Wekesa & 2 others v Simiyu & 2 others (Environment and Land Case 42 of 2019) [2026] KEELC 2972 (KLR) (13 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC NO. 42 OF 2019** **EVERLYNE WEKESA------------------------------------------------1ST PLAINTIFF** **WHITNEY FARIDA WAFULA---------------------------------2ND PLAINTIFF** **PETER PRESTON WAFULA-------------------------------------3RD PLAINTIFF** **VERSUS** **TIMOTHY WAFULA SIMIYU-------------------------------1ST DEFENDANT** **THE LAND REGISTRAR** **TRANS-NZOIA COUNTY----------------------------------2ND DEFENDANT** **RITA NALIAKA--------------------------------3RD DEFENDANT(DECEASED)** **JUDGMENT** 1. The plaintiffs approached this court through a further amended plaint dated **6/11/2023**. They seek: **(aa) Declaration that Land Parcel No. Kiminini/Matunda/Block4/Cheptarit/246, hereinafter the suit land, belongs jointly to the 2nd and 3rd plaintiffs.** **(bb) Declaration that the Land Control Board consent letter dated 2/7/2009 and the subsequent registration of the 1st defendant and the 1st plaintiff, as the owners of the suit land, were procured by the 1st defendant irregularly, and contrary to the joint proprietary interest of the 2nd and 3rd plaintiffs.** **(bbb) Declaration that the 1st and 3rd defendants have no legally protected property interest in the suit land.** 1. **Order cancelling the registration of the suit land in the names of the 1st defendant and the 1st plaintiff, as well as the title deed issued in the joint names on 3/7/2009.** **(dd) Declaration that the occupation of and continued cohabitation of the 1st defendant and the 3rd defendant, now deceased, on the suit land has infringed the right of the 2nd and 3rd plaintiffs to occupy and enjoy the same.** **(e) Order directing the 2nd defendant to issue a title deed in the joint names of the 2nd and 3rd plaintiffs or in the 2nd plaintiff to hold the land for herself and for her brother, the 3rd plaintiff, then a minor.** **(f) Order directing the 1st and 3rd defendants to vacate the suit land or be forcefully evicted therefrom.** **(g) In the alternative, an order for the subdivision of the suit land into equal portions of one acre to the plaintiff and one acre to the defendant.** 1. The contention by the plaintiffs is that the 1st plaintiff and the 1st defendant had cohabited for several years, which unfortunately did not result in a marriage but bore two children, namely, the 2nd and 3rd plaintiffs, before the 1st defendant and the 3rd defendant, now deceased, contracted a church wedding, and continued with cohabitation. 2. The plaintiffs aver that desirous of buying land for the two children in **2007**, the 1st plaintiff informed her late father, Festo Wekesa Wasilwa, who introduced her to John Mukisa Mukopi, hereinafter the seller. 3. The 1st plaintiff pleads that the seller had bought **2** acres of land, which he was selling from Noah K. Kemboi and Annah Kemboi, though they had not transferred the land to him. 4. By a sale agreement dated **28/7/2007**, the 1st plaintiff avers that she bought for her children the **2** acres at **Kshs.540,000/=,** out of which she paid a deposit of **Kshs. 500,000/=,** leaving a balance of **Kshs. 40,000/=,** in the presence of the 1st defendant. 5. The plaintiffs aver that the suit land was part of a large parcel of land still in the name of Mr. and Mrs. Noah K. Kemboi, hence on the same day, an identical sale agreement was made between the registered owners of the larger title with the initial purchasers and his relative, so that the land could be directly transferred to the 2nd and 3rd plaintiffs, who were then minors. 6. The plaintiffs aver that out of **Kshs. 540,000/=,** the only payment which the 1st defendant made was for the balance of **Kshs. 40,000/=,** equivalent to **7%** of the total purchase price. The plaintiffs aver that after two months, the 1st plaintiff and the 1st defendant bought another half an acre from the same seller at **Kshs. 135,000/=,** a deposit of **Kshs. 100,000/=** in cash was paid by the 1st plaintiff, and later the balance of **Kshs. 35,000/=** through the 1st defendant, making the total payment a paltry **11%** of the **Kshs.675,000/=.** 7. The 1st plaintiff avers that, despite contributing **89%** of the purchase price, the 2nd and 3rd plaintiffs, as beneficiaries of the land, remain landless. The 1st plaintiff avers that she later came to learn that the 1st defendant, during their love affair, secretly was married to the 3rd defendant (deceased), through a church wedding, hence lacked legal capacity to contract another marriage with her or any other woman. 8. The plaintiffs aver that she mandated the 1st defendant to process the land control board consent and obtain a transfer and a title deed in the joint names of the 2nd and 3rd plaintiffs, then minors, having prepared the land control board application in their names, only to discover that he instead fraudulently and without following the correct procedure processed the registration of the title to the suit land in the names of herself and the 1st defendant, which resulted to an irregular and improperly acquired title deed without her consent or approval or by using forged land control board application form or transfer form. 9. The plaintiffs aver that the 1st defendant continued perpetuating the said fraud by procuring and uttering documents that purported that there were two land control board applications for consents and minutes in respect of the same transaction. 10. To protect the interests of the 2nd and 3rd plaintiffs, the 1st plaintiff avers that she registered a caution against the title register for the suit land on **15/7/2009**. 11. The 1st plaintiff avers that during the course of their love affairs with the 1st defendant, she developed the suit land by commencing the construction of a house therein, which unfortunately had not been completed by the time their relationship broke, and the 1st defendant unilaterally and discretely completed, without her involvement and settled the deceased wife thereon, to the exclusion of the 1st plaintiff and her children, who are the rightful owners of the suit land. 12. The 1st defendant opposed the suit through an amended statement of defence dated **7/9/2021**. He admitted that the 2nd and 3rd plaintiffs are his biological children born on **27/6/2000** and **8/6/2006**, following a long cohabitation with the 1st plaintiff since **1997**, which led to a marriage under Luhya Customary Law, after he paid dowry, hence the 1st plaintiff remains his wife, whom they have never divorced before any court of law. 13. The 1st defendant avers that on **28/7/2007** and **1/8/2008**, he purchased a two-acre parcel of land from one John Mukopi at **Kshs. 675,000/=,** which was to be excised from Plot No. **83** Muungano Farm, situated in Nabiswa Sub-location, Kiminini Location. 14. The 1st defendant admits that the seller had also bought the land from the registered owners, Mr. and Mrs. Noah K. Kemboi, who had not transferred it to him but had agreed to accompany them during the transfer process. 15. The 1st defendant avers that in all those instances, the 1st plaintiff was aware of the two transactions as she witnessed them, after which he processed the title in their joint names, the former being as his lawful wife to protect her interest and that of their two children. The 1st defendant avers that the land control board consent referred to in the plaintiff’s list of documents was for a different parcel of land, No. **240**. 16. The 1st defendant avers that, given their earlier agreement(s), the caution by the 1st plaintiff registered on **15/7/2009** was not only irregular but also registered in bad faith, and hence should be lifted. 17. Further, the 1st defendant avers that it is indeed he, who, as the purchaser, followed up the transfer, hence denies the alleged particulars of fraud, given that the 1st plaintiff at the time was his legally married second wife. The 1st defendant avers that, indeed, he had a first wife, now deceased, with whom they had five children. 18. The 1st defendant avers that he solely constructed the house on the suit land using savings and a development loan that he had procured; hence, it was a lie on the part of the 1st plaintiff to aver that she is the one who partly constructed the house sitting on the suit land. 19. The 1st defendant avers that the 1st plaintiff is using the 2nd and 3rd plaintiffs as a shield and was deviously trying to evict him from the suit land that he lawfully purchased for his family, the plaintiffs included. The 1st defendant admits receiving two demand letters from the plaintiffs. 20. In the reply to the defence dated **15/1/2021**, the plaintiffs deny the alleged cohabitation or marriage between the 1st plaintiff and the 1st defendant as alleged or at all, under any Luhya Customary Law or otherwise, including the alleged dowry agreement, terming it false. 21. The plaintiffs aver that if any payment in cash or in the form of livestock was ever paid by the 1st defendant, the same may have been a customary payment as a fine for children born out of wedlock and not as dowry for marriage, for there was no marriage or cohabitation. The 1st plaintiff denies being aware of or party to any purported dowry agreement or any having been signed, witnessed, or participated in by herself or the late father. 22. The 1st plaintiff avers that the 1st defendant had no capacity to contract any other marriage, given his previously unknown but secret marriage. The 1st plaintiff insists that the 1st defendant was attempting to defraud her two children of the suit land, its ownership, and occupation, terming his current occupation wrongful. 23. Further, the 1st plaintiff insists that the purported registration of the suit land in their joint names was a scheme by the 1st defendant to become a co-owner through the back door without having made any substantial contribution towards its acquisition. 24. The 1st plaintiff avers that although the identification card number used to register the title deed is hers, the name purported to be hers does not belong to her, as her ID card names are Evelyne Wekesa and not Everlyne Wekesa Wafula. The 1st plaintiff insists that the caution was lawfully registered at the Lands Registry, Kitale, only that the statutory declaration supporting it was commissioned at Thika Law Courts, where she was working at the time. 25. AG 26. **Everlyne Wekesa,** the 1st plaintiff, testified as **PW1**. She relied on witness statements dated **14/5/2019** and **12/7/2024**, a further statement. PW1 told the court that she and the 1st defendant came to know each other in **1995** and thereafter cohabited for many years, which did not result in any marriage. PW1 said that their relationship bore the 2nd and 3rd plaintiffs as their children. 27. PW1 said that in her desire to invest for her children on **28/7/2007,** in the company of the 1st defendant, she bought **2** acres of land from Mr. and Mrs. Noah Kemboi, situated in the Kiminini area, with a clear intention to register it under her children’s name. PW1 said that she even obtained the land control board consent dated **11/5/2009** for a transfer. 28. PW1 said that the purchase price was **Kshs. 540,000/=** which she solely paid, and mandated the 1st defendant to follow up on the transfer, which she later discovered that the land was instead registered in the joint names of the 1st defendant and herself. 29. Eventually, PW1 said that, being unhappy with the registration, and to protect the interests of her children, she registered a caution against the title on **15/7/2009**. PW1 said that after the 1st defendant became estranged, their cohabitation ended, given that the 1st defendant had another woman whom he settled on the suit land, effectively dispossessing her and the children of the ownership, occupation, and enjoyment of the suit land. 30. PW1 said that during the cohabitation, she started the construction of a house on the suit land, which at the time of breakup had not been completed. 31. PW1 said that the house was later completed by the 1st defendant, who settled therein with the other woman, to the exclusion of herself and the children, yet they are the rightful owners of the suit land. 32. PW1 said that before the breakup with the 1st defendant, she was not aware of any marriage between the 1st defendant and the deceased at a church wedding. PW1 denied that she was a co-wife to the 3rd defendant, now deceased, and that the two of them had a common matrimonial home. She said that it was only after the house was completed that the 1st defendant brought the deceased to the suit land. She termed the said occupation wrongful and prejudicial to her and the children. 33. PW1 relied on exhibits such as an identification card No. **10454229**, as **P. Exhibit No. (1).** PW1 said that their relationship started at the age of **29 years** and that her 2nd plaintiff was born on **27/6/2000** as per birth certificate **No. 3948883**, with their names as parents. She produced the same as **P. Exhibit No. (2).** PW1 also produced a birth certificate of the 3rd plaintiff as **P. Exhibit No. (3).** 34. PW1 said that the 1st defendant had promised to marry her but did not honour the same. At the time of the second born's birth, PW1 said that the 1st defendant was working at the National Youth Service Ruaraka, while she was working as a customer care attendant at Mathare North. 35. PW1 said that she was later employed as a District Officer and posted to Nyeri, Tetu Division in **2003,** until **2005** when she was transferred to Thika, where the 1st defendant would visit her after she was allocated a house. 36. PW1 said that she gave birth to the second-born child in Thika. PW1 said that it was while in Thika that her late father looked for her the suit land in Kiminini, which belonged to his friend Mr. and Mrs. Noah Kimboi, who had sold the same to John Makobi. PW1 said that after visiting the land, he called the 1st defendant to view it, for he was still making promises to marry her. 37. Again, PW1 said that her intention was solely to buy the suit land for and on behalf of her children, for they were not yet married. PW1 said that the sale agreement dated **28/7/2007** was drafted at the seller’s house, using the names of the registered owner as the principal seller, who was also present. She produced the sale agreement as **P. Exhibit No. (4),** which was witnessed by the seller, the original registered owner, the area assistant chief, and Mr. Mukopi, with her and the 1st defendant as purchasers, on behalf of the minors. 38. PW1 said that she paid **Kshs. 500,000/=** from her bank account in the Co-operative Bank Kitale Branch, leaving a balance of **Kshs. 40,000/=,** which she also paid later on. 39. PW1 said that after a while, John Makobi wanted to dispose of another half an acre at **Kshs. 135,000/=,** to which a second sale agreement was prepared, and she paid a deposit of **Kshs. 100,000/=** at Thika town. She said that the balance of **Kshs. 35,000/=** was cleared by the 1st defendant. 40. PW1 said that she processed the papers to get a mutation form by clearing the survey fees, obtained a land control board consent for the subdivision of **2 ½ acres**. She produced the mutation form dated **14/6/2009** as **P. Exhibit No. (5).** PW1 said that she later applied for a land control board consent for subdivision and transfer, as per the application dated **23/7/2009,** to transfer the suit land on behalf of the children, her name appearing as the trustee. She produced the same as **P. Exhibit No. (6).** 41. Equally, PW1 produced the land control board consent dated **11/5/2029** as **P. Exhibit No. (6),** in favour of the 2nd and 3rd plaintiffs as per Minute No. **DCB/80, LOR No. 80/07/08**. PW1 said that she produced the same as **P. Exhibit No. (7).** Equally, PW1 produced the receipt for **Kshs.1500/=** dated **20/5/2009**. PW1 said that despite all these documents, the suit land was not transferred in the names of the 2nd and 3rd plaintiffs, yet she had entrusted them with the 1st defendant. 42. PW1 said that she later discovered that after calling the Land Registrar, the 1st defendant instead transferred the suit land to their two names, but using names that do not belong to her. 43. PW1 produced a copy of the title as **P. Exhibit No. (8).** PW1 said that she later lodged a caution against the title register, which she produced as **P. Exhibit No. (9),** dated **15/7/2009.** 44. Regarding the 1st defendant’s allegation of the lack of means to acquire the land, PW1 said that at the time she had just bought a vehicle, a Toyota Harrier, at **Kshs. 1,300,000/=,** as per a copy of the logbook marked **P. Exhibit No. (10).** PW1 also produced a letter of promotion to a D.O.1 as **P. Exhibit No. (11).** PW1 said that the 1st defendant used a different land control board consent and transfer to obtain the title deed dated **4/7/2009**, Serial No **343/87**. LCB Mil No. **97** and a LOR No. **97/7/08**. 45. PW1 said that the land control board consent marked **DMFI-1(b)** was not accompanied by any application for land control board consent. She termed the consent as illegal, for the transaction was conducted fraudulently, without her involvement. PW1 said that the land control board chairman should have been a D.O. Kiminini Division and that a special land control board consent was not allowed at the time. 46. PW1 reiterated the particulars of fraud in paragraph **8(a)** of the amended plaint. She urged the court to declare the land control board consent letter dated **21/7/2009** and the subsequent registration as procured illegally and irregularly, contrary to the proprietary interests of the children. 47. PW1 said that her intention of buying the suitland was to put up a homestead for her children. PW1 denied that the 1st defendant had ever sought her hand in marriage. 48. Asked about **DMFI-1(3),** a sale agreement dated **28/7/2007**, PW1 said that the seller was John Mukopi, while the purchaser is the 1st defendant. She said that though it was initially signed, she found out it had a mistake, given that the owners, as per the title deed, were Mr. and Mrs. Noah Kemboi. PW1 said that they abandoned the said agreement, on the same date, and opted to make another one showing her as the purchaser and not a witness. 49. As to the agreement dated **1/8/2008**, a cheque dated **28/7/2007,** and a certificate of incorporation, PW1 confirmed knowledge of the same, but said that the payments were for a totally different issue. Nevertheless, PW1 admitted that “we” meant the suit land was for the two of them. 50. PW1 denied that the 1st defendant who paid **Kshs. 260,000/=** for the suit land out of Jolet Enterprises from account No. **011206254**, University Way, Nairobi, as per **DMFI-(30**). PW1 admitted that the two of them had a CDSC account, as shown in **DMFI-(42)**. Shown Equity Bank Ltd bankers' cheque as **DMFI-(38), (39),** and **(4)**, PW1 said that she was not aware of the said joint account cheques since, as of **2018**, they had parted ways. 51. PW1 denied that the 1st defendant used to give her money to bank in her savings account as deposited in **DMFI-(34).** PW1 said that all the documents that the 1st defendant was relying on are original, which he obtained from her during their cohabitation, as the father of her children. 52. PW1 denied that **Kshs. 260,000/=** part of the **Kshs. 300,000/=** used in the sale had been banked in the account of Jolet Enterprises Limited. PW1 denied that the 1st defendant had estranged her with any money to buy the suit land. PW1 denied that the 1st defendant assisted her in getting employed. 53. PW1 said that she had included the 1st defendant as the next of kin in her public service records on account of being the father of her kids. PW1 admitted that the cows given to her father by the 1st defendant were a penalty for a late introductory visit concerning the children, and were not for dowry payment. 54. Shown **DMFI-(6),** PW1 admitted that she swore the same while married to the 1st defendant in **1997,** to enable her to change the identification card on **5/4/2006**. She termed it as invalid, since the 1st defendant did not show up; hence, it was rejected by the Registrar of Persons. 55. Shown **DMFI-(6),** a demand letter written on **14/11/2014**, PW1 said that it indicated both of them as joint purchasers of the suit land, hence, requested a subdivision into two. 56. Equally, PW1 admitted that **P. Exhibit No. (9)** had also shown that the property was jointly bought on behalf of the children. Regarding **P. Exhibit No. (5)** and **(6),** PW1 said that parcel No. **246** was missing. Shown the copy of the register for **L.R. No. 246 (DMFI-48)**, PW1 said that it was a subdivision form parcel No.**820**. PW1 denied that Rita Naliaka was married to the 1st defendant, whose children she was living with in Nyeri. 57. PW1 said that she sued the Land Registrar for being party to processing the title deed without evidence of her consent or approval of the transaction, such as **DMFI-(49),** a transfer form which lacked her vital details. PW1 denied that her signature was in the application for land control board consent marked **DMFI-(5),** which is contrary to what he signed in **P. Exhibit No. (6),** PW1 blamed the Land Registrar for registering the transfer without verifying its contents and proceeding to issue the title in the wrong names, contrary to **P. Exhibit No. (1).** 58. PW1 point out some alterations in the **DMFI-(50**) which are not countersigned. He also said that the signatory of the consent was not the D.O. Kiminini but the D.C. Trans Nzoia. 59. Concerning the transfer form marked **DMFI-(49),** she again said that it was not she did not sign and that her vital details are missing. She denied appearing before the attester to append her signature, which is also missing. 60. Asked about the circumstances leading to two sale agreements, namely hers and **DMFI-(2)** and **(3),** PW1 said that it arose after discovering that the setter was not the registered owner of the land, hence the need to reflect the true position. Regarding the parcel number, PW1 said that the initial one was parcel No **82** before it was erased by parcel No. **82**. 61. Shown the title and the application for land control board, the transfer namely; **DMFI-(4), 40, and (5),** vis-à-vis **P. Exhibit No. (6)**, PW1 said that the acreage is the same, save for the words “Kiminini”. PW1 admitted that the consideration reflected in **DMFI-(49)** is erroneous or misleading, as compared with the one in the sale agreement, perhaps made for purposes of evasion of payment of stamp duty. 62. PW1 denied that the 1st defendant, as shown in **DMFI-(34)**, could have deposited any monies to her personal salary account on the date of the sale agreement. She insisted that the consideration which was paid on **28/7/2007** was a withdrawal from her Co-operative Bank account, Kitale branch. PW1 said **DMFI-(43)** could not amount to an affidavit of marriage since the 1st defendant did not sign it. PW1, concerning **DMFI-(43),** said that they had not started having a love affair with the 1st defendant; otherwise, the affidavit was strange to her. 63. Concerning **DMFI-(44)** sworn on **25/4/1988**, PW1 said that she was unaware that the 1st defendant had contracted another marriage before they met in **1995**. Concerning Parcel Nos. **240** and **246**, PW1 said that her interest is in parcel No. **246**, which they bought in favour of their two children. 64. Regarding the transfer form **DMFI-(49),** PW1 said that it had critical missing details, including a spousal consent for the seller. PW1 said that the 1st defendant’s business had nothing to do with the purchaser of land, terming **DMFI-(31)** as irrelevant to the case. PW1 said that she had no business relationship with the 1st defendant as purported in **DMFI-(38), (39),** and **(4),** hence could not tell the purpose the cheques were being issued. 65. **Whitney Farida Wafula** testified as **PW2**. She relied on a witness statement dated **17/10/2021** as her evidence-in-chief. She told the court that the suit land belongs to her and her brother, the 3rd plaintiff, which their parents bought for them while they were minors. PW2 said that as of the filing of the suit on **28/9/2019**, she was already **18** years old, though she only obtained an identification card in **2020**. 66. PW2 confirmed that she was in the same school in Nyeri with her step-sister. PW2 said that all that she had stated in the witness statement regarding the land was relayed to her by PW1. 67. **Sharon Gerald** testified as **DW1**. As the Land Registrar, Trans Nzoia County, she confirmed that **P. Exhibit No. (5)** was a mutation form for **L.R. No. Kiminini/Matunda Block 4/Cheptarit/85**, which was silent on the resultant numbers arising out of the subdivision. DW1 said that from the green card for Parcel No. **85**, there are no entries on any resultant subdivision. The green card was produced as **D. Exhibit No. (51).** 68. Regarding **P.Exhibit No. (6),** DW1 said that if the land had never been subdivided, it means that there could never have been any land control board consent for subdivision in respect to Parcel No. **240**. DW1 said that it was not possible for **P. Exhibit No. (6)** to exist without a subdivision of Title No. **82**. DW1, however, confirmed that Title No. **82** was closed for subdivision on **3/7/2009**. The green card was produced as **D. Exhibit No. (48),** as per the mutation dated **3/7/2009** produced as **D.Exhibit No. (52).** 69. DW1 said that the resultant subdivision numbers of Parcel No. **82** were **245** and **246**. DW1 said that the owner of Parcel No. **246**, Mr. Noah K. Kemboi, as per Entry No. **(2),** transferred the land to the 1st defendant and Everlyne Wekesa Wafula as per **D. Exhibit No. (49).** 70. DW1 said that the transfer form was accompanied by a land control board consent, later LOR **97/07/08**, produced as **D. Exhibit No. (50),** issued on **2/7/2009**. DW1 said that there was no caution registered in the green card produced as **D. Exhibit No. (49)** between No. **(1)** and **(2)** to inhibit any transaction against the land register with respect to the suit property. 71. DW1 said that the Land Registrar was not aware of the particulars of the sale agreement between the 1st plaintiff and the 1st defendant, nor was it privy to the contract they had over the land. DW1 said that her office had not yet been notified of any forged documents that were used by the 1st defendant to procure the transfer and registration of the title. 72. DW1 confirmed that a caution was placed on the title on **15/7/2009** as Entry No**. (4).** Again**,** DW1 said that it is not mandatory to provide the land control board minutes to the Land Registrar, who approved the land control board consent. DW1 confirmed that the transfer form, produced as **P. Exhibit No. (49)** had photostat and identification copies accompanying it, but no Kenya Revenue Authority PINs and identification card for the 1st plaintiff. 73. Similarly, she said that copies of the Kenya Revenue Authority Personal Identification Number for the transferee were missing. DW1 said that without copies of the Kenya Revenue Authority Personal Identification Number and the identification card for the 1st plaintiff, the transfer should not have been effected. 74. DW1 confirmed that there are irregularities in the transfer in view of **P. Exhibit No. (1),** missing on the transfer form or showing different names of the transferee. DW1 said that had the Land Registrar been shown **P. Exhibit No. (1),** it would not have allowed the transfer. DW1 said that a land control board consent application form must also reflect the consideration. 75. In this case, **D. Exhibit No. (50)** indicates a consideration of **Kshs. 150,000/=,** which sum was missing in the land control board consent. DW1 said that the errors are not material, according to her, save for the issue of an identification card to avoid transfer of properties of the deceased person, or to prevent fraud, or transfer to fictitious persons. 76. As to the Kenya Revenue Authority Personal Identification Number, DW1 said that it is a key requirement for payment of stamp duty. DW1 said that it is for the land administrator to determine the period it takes from the sale of land, and for the application for a land control board consent. In this case, DW1 said that the period was slightly over a year. It means, therefore, according to DW1, that it took over a year to obtain a letter of consent from the date of the land control board meeting on **23/7/2008**. 77. DW1 could not ascertain the full details of the initials used in the land control board consent letter. DW1 said that she was unable to tell whether the identification card and **Kenya Revenue Authority Personal Identification Number** copies of the parties from her file, if the said Kenya Revenue Authority Personal Identification Number and identification card were missing thereon, were supplied or not. 78. **Timothy Wafula Simiyu** testified as **DW2**. He relied on a witness statement dated **17/6/2019**. He confirmed that the 1st plaintiff is his wife, while the 2nd and 3rd plaintiffs are the children from his marriage with the 1st plaintiff. According to DW2, he was the one who bought the suit land on **28/7/2007**, as per the sale agreement produced as **D. Exhibit No. (2),** with the 1st plaintiff being among the witnesses to the same. 79. DW2 said that he also made another agreement dated **1/8/2008** for an extra **0.5 acres** of land from the same seller, which was produced as **D. Exhibit No. (3).** DW2 said that he paid the consideration via a cheque of **Kshs. 260,000/=** in favour of the seller produced as **D. Exhibit Ni (32)** from a company account which belongs to him as per **DMFI-(31).** 80. DW2 said that he also made a cash deposit on **28/7/2007** in the Co-operative Bank account of his wife in favour of the seller for **Kshs. 260,000/=.**he produced the slip as **D. Exhibit No. (30)**, which the 1st plaintiff later paid on her behalf to the seller, as per a withdrawal slip dated **28/7/2007**, for **Kshs. 300,000/=**. DW2 told the court that he was holding the original withdrawal slip, since he is the one who had initially given her the money to deposit in her account out of his business. He insisted that the money belonged to him. The slip was produced as **D. Exhibit No. (34).** 81. The court noted the demeanour of the witness. Equally, DW2 produced a copy of the cheque as **D. Exhibit No. (6)** for **Kshs. 200,000/=**. Further, DW2 said that he also paid the balance of **Kshs. 40,000/=** to the seller out of his business income. As to the **Kshs. 135,000/=** DW2 said that he was also the one who cleared it. DW2 said that the 1st plaintiff was his wife a confirmed in the affidavit she swore on **5/4/2006**, produced as **D. Exhibit No (5),** a permit to non-staff residing in government quarters, **D. Exhibit No. (27).** 82. DW2 said that the issue of purchase is also admitted in the demand letter dated **14/10/2014** and **13/10/2019**, produced as **D. Exhibit No. (6)** and **(7),** which are also silent on **Kshs. 135,000/=**. DW2 said that he is the one who purchased all the materials to erect the house as per the purchase orders and receipts produced as **D. Exhibit No. (1), (11), (12), (13), (14),** and **(15),** after procuring the drawings plan produced as **D. Exhibit No. (22).** 83. DW2 also produced a cash withdrawal slip for **Kshs.100,000/=** and **Kshs. 130,000/=** regarding monies the 1st plaintiff had received from him, which he used to pay for the land dated **19/3/2008** and **30/7/2008,** produced as **D. Exhibit No. (35)** and **(36)**. He said that he is the one who had initially deposited into her account **Kshs.150,000/=** as per the slip produced as **D. Exhibit No. (37).** 84. DW2 said that he and the 1st plaintiff used to have joint investments, such as shares in Safaricom, as per **D.Exhibit Nos. (38), (39), (40), and (42).** DW2 said that Rita Naliaka Wafula was his first wife, as per the affidavit produced as **D. Exhibit No. (43)**, who has been living on the suit land. 85. Following directions given on **16/4/2025**, this matter, by consent of the parties, proceeded from where it had reached under **Order 18** of the Civil Procedure Rules. DW2 was then recalled. He also produced baptismal cards for the 2nd and 3rd plaintiffs as **D. Exhibit No. (18).** 86. DW2 told the court that the purpose of purchasing the land was to set up a rural matrimonial home and not for the land to be in trust for the children. DW2 insisted that they wrote one sale agreement. DW2 insisted that they were validly married with effect from **1997** to an extent that she was paid dowry. He refused the allegation that the cows which he took to the 1st plaintiff’s father were five. DW2 said that the 1st wife even knew of the 1st plaintiff as the 2nd wife since she stayed with one of her children in Nyeri. 87. DW2 said that it is the 1st plaintiff who deserted their matrimonial home in Baraka in **2009/2010**, after which he decided to regularize his marriage with the 1st wife, now deceased in church in **2017/2018**. DW2 said that to date, he has never divorced the 1st plaintiff. 88. DW2 admitted that he has tendered evidence of any money getting in and out of his personal bank account, out of any business he was running at the time. 89. DW2 said that he had no evidence of acknowledgement of the purchase price from the seller, that he is the sole contributor of the **Kshs. 675,000/=,** other than as shown in **D. Exhibit No. (30), (34), (35),** and **(36)**. DW2 denied that the 1st plaintiff was the one who contributed the largest share, going by the aforesaid withdrawal from her personal account. DW2 did not produce any evidence that he had lent the 1st plaintiff the money, which was eventually used to purchase the land. 90. Asked about a land control board consent for both subdivisions and transfer, as well as a mutation form, DW2 said that all of them were handed over to his lawyers. DW2 insisted that he involved the 1st plaintiff in all processes leading to the issuance of a title deed. However, he had no evidence that she appended her signature to any of those documents. 91. DW2 blamed the seller for any anomalies in the transfer form, since he was the one who purchased and lodged it. DW2 could not explain why he did not call the attester to the transfer form to prove that the 1st plaintiff was the one who appended her signature on the transfer form. DW2 denied being a party to the 2nd agreement, which the plaintiffs relied upon. 92. PW2 could not tell how the title deed came out with a name that does not belong to the plaintiff. DW2 confirmed that he is the one who handed over their personal documents to the seller for purposes of processing the title, during which he personally wrote the details of the 1st plaintiff. 93. The plaintiffs rely on written submissions dated **27/3/2026**. It is submitted that their suit is not a dispute about matrimonial property or trust as characterized by the 1st defendant. The plaintiffs submit that the case is not about marriage, cohabitation, the existence of a relationship, or the appointment of beneficial interest in a lawfully acquired property, but is one of a tainted land transaction, a defective chain of title, and a registration process procured through misrepresentation, nondisclosure, and the exclusion of the 1st plaintiff from mandatory steps. 94. The plaintiffs submit that they were never married or established a matrimonial home, only that their relationship brought forth the 2nd and 3rd plaintiffs. The plaintiffs submit that the assertion that they were married was not supported by any tangible and cogent evidence or documents, and what was availed was not translated into the language of the court. 95. As to whether the acquisition and registration of the suit land was lawful, the plaintiffs submit that the 1st defendant dwelt with a person who was not the registered owner of the land. 96. It was submitted that the exhibits produced by the 1st defendant, such as the sale agreement, since the alleged seller was not the registered owner of the land, he had no capacity to pass any title to him, rendering the transaction fatal. The plaintiffs submit that evidence of payment of the consideration further undermines the 1st defendant’s case and strongly supports the 1st plaintiff’s case as the sole provider of the purchase price, in view of documents in support of such payments, unlike the 1st defendant. 97. The plaintiffs term the documents used by the 1st defendant as falling short of showing his capacity to pay the sum. The plaintiffs submit that the alleged cheques were from an entity which was not party to the transaction, admissible proof of legal connection to the entity and the 1st defendant are missing, and that no bank statement, clearance record, or stamped document marked paid, acknowledgement, or receipt of the funds by the payee were produced. 98. In any event, it is submitted that those cheques only account for **Kshs. 240,000/=** and no more, on a worst-case scenario. The plaintiffs submit that the land control board process relied upon by the 1st defendant shows irregularities which are a strong indicator of fraud, such as being undated, lacking proof of authentic signatures of the 1st plaintiff, or lacking evidence of the witnesses to the same. 99. The plaintiffs submit that the figure of consideration stated is **KShs. 150,000/=** and not **Kshs. 675,000/=,** which is a material contradiction of the sale agreements, and which smacks of an intention to defraud or not to disclose the reality. The plaintiffs term the Land Control Board Consent letter and its application form raising irregularities as to the signatures, inordinate delay, or gap between the application, the meeting, and the actual issuance of the letter after almost a year. Evidence of proof of attendance at the said meeting, or signatures of the 1st plaintiff, is also lacking to be termed as a lawful spouse. 100. The plaintiffs submit that the sodden process was also opaque since no applications for consent to subdivide, mutation form duly executed, survey approval, or records were produced showing how **2.5 acres** were carved out and rendered for transfer. The plaintiffs submit that the Land Registrar conceded to all these anomalies in the process, which are necessary steps in a lawful subdivision process. The plaintiffs submit that in the absence of these elementary steps, there is no documentary basis to trace the lawful creation of the portion allegedly sold and transferred to the 1st defendant. 101. The plaintiffs submit that the transfer process is also riddled with irregularities. It is submitted that the date when the transfer form was executed is unclear, for the 1st plaintiff denies signing it. 102. It is submitted that, out of that denial, it cannot be true that she executed the documents, yet the transfer form shows that the 1st plaintiff appeared before an attester, who was not called to testify; her documents were not attached to the same, yet the Land Registrar said that they are mandatory as a co-transferee, the names used do not belong to her. The plaintiffs submit that there was no deed poll, gazette, or any official communication linking that name to the 1st plaintiff, making the process suspect. 103. The plaintiffs submit that the result is that a title issued partly in favour of a person whose legal identity was neither verified nor established and whose participation in the transaction was never properly demonstrated. The plaintiffs submit that a title cannot vest in a non-existent person, making the instant one collapse. 104. The plaintiffs submit that the 1st defendant's fragmented and irregular account is in contrast to their coherent, lawful, and well-documented chain of acquisition, grounded in dealings with its registered proprietor, which is regular, valid, and enforceable in law, placing the 1st plaintiff on a firm legal footing. 105. The plaintiffs submit that the 1st plaintiff’s documentary evidence is internally consistent and aligned with the statutory requirements executed in favour of the 2nd and 3rd plaintiffs, clearly showing the intention to register their land in trust for the children. 106. The 1st plaintiff submits that she was not acting for her sole benefit but was to hold the suit property in trust for the 2nd and 3rd plaintiffs, thereby explaining the structure of the transactions and the intended beneficial ownership. 107. The plaintiffs submit that the existence of the subdivision documentation, land control board consents application, and consents are connected to the plaintiff’s transaction, unlike the 1st defendant who would not produce any application for subdivision, consent to subdivide, or any mutation form for a lawful transaction, showing that she is following the statutory pathway required for lawful disposition of agricultural land, which is traceable, clear, identifiable, procedural, local and proper. 108. The plaintiffs submit that the legal documentation alluded to above is also consistent with the financial evidence towards the purchase of the suit land emanating from her own account as the true purchaser and the intended transferee of the property. The plaintiffs submit that the financial trail aligns with the 1st plaintiff’s position that she was the true purchaser, the intended legal transferee, which offers a logical explanation why the transfer documents were prepared in her name and why she was to hold the suit property in trust for the 2nd and 3rd plaintiffs. 109. As to attempts to cast doubts on the plaintiff’s documentation, the plaintiffs submit that the discrepancy in the description of the parcel as No. **240** instead of **246** was a minor error or a clerical error, which was explained in evidence by PW1. The 1st plaintiff submits that she had entrusted he finalization to the 1st defendant including to pursue that the documentations were without any error that such errors are not uncommon in land transactions, and that the 1st defendant was supposed to ensure that the documents align with the parcel number in question, and therefore as a trusted persona unknown to the 1st plaintiff he should have ensured that the identified error was corrected through amendment or re-issuance of documents and regularized before registration. 110. The plaintiffs submit that the 1st defendant had both an opportunity and the ability to correct that discrepancy, but instead did the opposite, to defeat the intention to have the land held in trust by the 1st plaintiff on behalf of the 2nd and 3rd plaintiffs. It is submitted that the 1st defendant exploited the opportunity, used the surrounding confusion of the documentation to interfere with the process, and ultimately caused the property to be registered in a manner that excluded the lawful intention. 111. The plaintiffs submit that the existence of the errors in the documentation does not invalidate an otherwise lawful transaction, particularly where the intention of the parties is clear and supported by other evidence, including the sale agreement with the registered owner, proof of payment by the 1st plaintiff, and the surrounding documentation showing the intended transfer. 112. The plaintiffs submit that what is clear is that the 1st defendant intervened at a critical stage and diverted the transaction and therefore the court should not view the discrepancy as a weakness in the plaintiffs’ case, but as part of the broader factual matrix demonstrating how the 1st defendant manipulated the process, which therefore reinforces the plaintiffs pleaded case of fraud, taking advantage of the 1st plaintiff’s trust and the transactional process to procure registration irregularly. 113. The plaintiffs submit that, taken as a whole, the evidence which they have submitted reveals a lawful transaction giving rise to a trust dispute, but a fundamentally defective acquisition process, where the 1st defendant transacted with a non-owner, misrepresented material facts, or particulars, relied on an irregular registration in a name not legally established, which are not isolated defects, but form a consistent pattern pointing to fraud and illegality. 114. The plaintiffs submit that the 1st defendant’s reliance on the existence of a relationship does not cure these defects. It is submitted that it is not disputed that the parties at one time had a personal relationship leading to children together, which explains the trust reposed in the 1st defendant, which per se did not confer him with proprietary rights, nor does it sanitise an unlawful process. 115. The plaintiffs submit that even on the law of trust, the documentary evidence of contribution points to the 1st plaintiff and not the 1st defendant, and therefore, equity cannot be invoked to validate a title born of fraud. The plaintiffs submit that the factual background points decisively in one direction: that the 1st defendant took advantage of a personal relationship, appropriated a transaction financed by the 1st plaintiff, and caused a registration to be effected through irregular and fraudulent names without her lawful participation. 116. Further, the plaintiffs isolate three issues for determination. On the lawfulness of acquisition and registration of the title held by the 1st defendant. The plaintiffs submit that the legality through which the title was procured and issued is tainted. Reliance is placed on ***Dina Management Ltd -vs- the County Government of Mombasa & Others [2021] KESC 30, Arthi Highway Developers Ltd -vs- West End Butchery Ltd & Others [2015] eKLR,*** and ***Funzi Island Development Ltd & Others -vs- County Government of Kwale & Others [2014] eKLR***. 117. On whether there was fraud, and or illegality in the process of procuring the title, the plaintiffs submit that the evidence tendered shows a deliberate and coordinated scheme designed to circumvent the law and procure registration through unlawful means which, as the court warned in ***Arthi Highway Developers -vs- West End Butchery*** *(supra),* such schemes where parties manipulate documentation and bypass the true owner to facilitate unlawful transfers, the resulting title cannot stand. 118. The plaintiffs submit that the land control board documentation reflects a figure of **Kshs. 150,000/=,** which is materially inconsistent with the purchase price as reflected in the sale agreements of **Kshs. 675,000/=**, which is a major misrepresentation of material facts to a statutory body, which goes to the root of the consent obtained. The plaintiffs submit that where statutory processes are tainted by misrepresentation or illegality, the resulting title is null and void, as held in ***Funzi Developments -vs- County Government of Kwale & Others*** *(supra).* 119. In the instant case, it is submitted that the land control board consent was obtained on false or inconsistent information and cannot, therefore, sanitize an otherwise unlawful transaction. The plaintiffs submit that the irregularities extend to the transfer instrument itself, which is undated and unsupported by mandatory identification documents, allegedly lawfully witnessed by an advocate who was never called to testify, making the court doubt verification and execution of the same. 120. The plaintiffs submit that the absence of the documents of the 1st plaintiff has already been confirmed by the 1st and 2nd defendants, which are not procedural niceties but are mandatory safeguards designed to ensure that land transactions are attributable to a real, identifiable person, their absence of which enables anonymity, and therefore fraud. 121. The plaintiffs submit that the process is also compounded by the use of the name of the 1st plaintiff, which is not supported by any official identification document or a legally completed name–change process, and was a mechanism of obscuring identity and avoiding accountability. 122. The plaintiff submits that this was not an isolated incident but a design, but amounts to an opaque, inconsistent, and contrary registration to statutory requirements, leading to the conclusion that the transaction and the title were unlawfully acquired. Reliance is placed on ***Josephine Mwai Wambugu -vs- Samuel Njoroge Kagiri & Others [2022] eKLR***. 123. As to whether the 1st plaintiff has established a lawful and superior claim on the suit land on behalf of the 2nd and 3rd plaintiffs, it is submitted that the claim is not only a contract or property law, but in the constitutional protection afforded to children, whose interests, this court is obligated to protect under **Article 53(2)** of the Civil Procedure Rules as held in ***FAAF -vs- RFM & 2 others (Petition E035 of 2023) [2025] KESC 45 (KLR).*** 124. It is submitted that the intention of the transaction, out of the uncontroverted evidence tendered, is that it was not incidental or secondary but controlled the structure of the transaction itself. The 1st plaintiff submits that she was not acquiring the property as a mere investment or for her own exclusive enjoyment, but for the benefit of her children, placing the dispute squarely within the constitutional framework governing the protection of children's welfare, stability, and future security. 125. The plaintiffs submit that the court is not being asked to resolve a contest between adults over proprietary rights, but also to determine whether property that was lawfully acquired and specifically intended for the benefit of children should be allowed to remain in the hands of a party whose title has already been shown to be tainted by illegality and fraud. 126. In this case, the court is urged not to approach the matter with sterile formalism, but to look into the substance, which is the 2nd and 3rd plaintiffs standing to be deprived of property intended for their benefit through a title that has no foundation, by adopting an approach that protects the children’s welfare, long-term security, inheritance, and future dignity. 127. The 1st plaintiff submits that she has established a superior claim based on a coherent documentary and financial trail, unlike the 1st defendant, whose claim rests on a defective claim of acquisition, which is legally unsustainable. 128. On whether the existence of a personal relationship can defeat a claim granted in fraud and illegality, the plaintiff submits that the attempts by the 1st defendant to reframe this case as a dispute on matrimonial property resulting from, or an informal joint acquisition, are illegally untenable. 129. It is submitted that the equitable doctrine, whether grounded in relationship, cohabitation, or informal arrangement, can override or sanitize an unlawful or fraudulent transaction, and, given the clear evidence of title procured through misrepresentation, fraud, and illegality, no reliance on personal relationship can cure the defect, and that a party cannot rely on equity to shield an unlawful acquisition. Reliance is placed on ***Arthi Highway Developers*** *(supra).* 130. The plaintiffs submit that even if the court were to find that a relationship existed between the parties, that fact alone can't confer proprietary rights in land, to substitute the requirement of a lawful conveyance process, or override mandatory statutory safeguards such as a land control board consent and a proper execution of transfer documents, since a relationship is no one made of acquiring title. 131. The plaintiffs submit that the 1st defendant’s attempt to elevate the relationship into a proprietary entitlement has failed to prove the existence of a lawful marriage, cohabitation consistent with a matrimonial home, and lastly any agreement, express or implied, conferring ownership of the suit property. The plaintiffs submit that at most the evidence suggests a past personal relationship; that fact, without more, is legally insufficient to defeat a claim grounded on fraud and unlawful acquisition. 132. The plaintiffs submit that to hold otherwise would have profound and dangerous implications by permitting a party to bypass lawful procedures on land acquisition, procure registration through irregular means, and subsequently invoke a personal relationship as a shield against scrutiny, which is not and has never been the law. 133. The plaintiffs submit that, whereas the court has referred to the evolving jurisprudence that recognizes proprietary interests arising out of a relationship even in the absence of formal marriage, the authority of ***MNK -vs- POM Petition No.9 of 2021***, which affirmed that a resulting or constructive trust may arise where there is clear evidence of contribution and intention, the case is distinguishable in that the Supreme Court of Kenya did not create a free-standing right to property arising from relationship but rather, it emphasised a trust may arise from lawful acquisition, it must be supported by a clear evidence of contribution and must reflect the intention of the parties at the time of the acquisition, which elements are absent in the present suit. 134. In this case the plaintiffs submit that no trust can arise out of an unlawful transaction, and that in the present suit, unlike in ***MNK -vs- POM*** *(supra),* where there was a lawful acquisition, and the issue was on the apportionment of beneficial interest, the 1st defendant did not acquire the title lawfully, or from the registered owner, the land control board consent process was defective, the transfer instrument is invalid and the registration is founded on unlawful process. 135. The plaintiffs submit that there is no evidence of any financial contribution by the 1st defendant, who relies on unverified and unproven cheques, in contrast to the 1st plaintiff, whose documentary trail supports her source of funds, which were directly used to purchase the land. The plaintiffs submit that whereas the court in ***MNK -vs- POM*** *(supra)* established that the intention is central to the establishment of trust, the evidence in this case shows that the 1st plaintiff transacted with the registered owner, the property was to be registered under her name, and that she was to hold it in trust for the children. 136. Further, the plaintiffs submit that the doctrine of a resulting trust does not assist the 1st defendant, since he relies on a personal relationship to divert the central issue of fraud, which is not a legal defence. 137. The plaintiffs submit that the court should find that among the two competing scenarios, their version demonstrates a lawful, coherent, and well-documented transaction, grounded on dealings with the registration owner of the suit property, supported by credible evidence, unlike the other narrative by the 1st defendant, which collapses under scrutiny, due to being founded on a transaction that is defective at every critical stage. 138. Therefore, the plaintiffs submit that the law is that where a title is founded on an unlawful process, it cannot stand, and no right, legal, or equitable can arise from it. The plaintiffs submit that the 2nd and 3rd plaintiffs have now attained the age of majority and have the capacity to hold the title deed under their names, hence their rights to the suit property should be recognised and vested in them. 139. The 1st defendant relies on written submissions dated **8/4/2026**. It is submitted that the 1st plaintiff was aware of the alleged fraud on **15/7/2009,** when she proceeded to register the caution, only then to wait until **28/5/2019** to file the suit. Relying on **Section 26** of the Limitation of Actions Act, the 1st defendant submits that the clock for the time limit to start ticking is when the 1st plaintiff became aware of it. 140. The 1st defendant submits that the argument that John Mukopi had nothing to sell is misplaced and is a deliberate attempt to mislead the court. It is submitted that there are two sale agreements dated **27/7/2007**. In the sale agreement produced by the 1st plaintiff, it is submitted that she failed to call the witnesses to her sale agreement, including the purported seller and the area assistant chief. Without those two key witnesses, the 1st defendant submits that the plaintiffs failed to discharge the burden of proof under **Sections 107** and **108** of the Evidence Act. Reliance is placed on ***Pandhai & Another -vs- Amingo [2023] KEHC 27485 [KLR]***. 141. The 1st defendant submits that right from the beginning of this dispute, the 1st plaintiff acknowledged that they were joint owners of the land bought from the seller, whose house, **P. Exhibit No. (4)** was made, hence it is ridiculous for her to turn round and submit that the said seller had nothing to tell. The 1st defendant submits that he was in a marriage relationship with the 1st plaintiff, regardless of how many denials she raises, going by the affidavits which she voluntarily signed, and as evidenced by the children born in that relationship. 142. The 1st defendant submits that **D. Exhibit No. (6)** was a clear admission of purchase and joint ownership in common in undivided shares and a proposal for subdivision into equal halves. 143. Further, it is submitted that in **D. Exhibit No. (6),** the same law firm of Sifuna & Sifuna Advocates admitted cohabitation, and that in the 1st letter, there was no serious contest as to the name. The 1st defendant submits that, going by those two letters, the allegation of fraud was and remains an afterthought, which has not been proved to the required standard. Reliance is placed on ***Laisu & Others -vs- Sharif & Another [2024] KEHC 155121 [KLR].*** 144. The 1st defendant submits that the inclusion of the name of the 1st plaintiff in the transfer was made in good faith with no intended fraud. Regarding the claim by the 2nd and 3rd plaintiffs, the 1st defendant submits that this court has no jurisdiction to compel a living parent to transfer land to a child, as both parents have the legal right to dispose of their property as they wish, and the children can only await inheriting their parents' property through succession. The 1st defendant submits that it is the 1st plaintiff who is bringing the children into a collision course with him, which is quite unfortunate, by misconstruing the concept of trust. 145. The 1st defendant submits that, looking at the sale agreement produced by the plaintiffs, there is nothing to show that the property was intended solely for the benefit of the 2nd and 3rd plaintiffs. 146. In a rejoinder, the plaintiffs, concerning the 1st defendant's submission on a time-barred claim under **Section 26** Limitation of Actions Act, Cap **22**, submit that the plea is legally unsustainable by dint of **Section 7** of the Act, meaning **12 years** lapsed on **3/7/2021**, while this suit seeking recovery of land was filed on **28/5/2019**. The plaintiffs submit that **D. Exhibit Nos. (4), (6),** and **(7)** were clear that there was uninterrupted assertion and preservation of their proprietary interests. 147. The plaintiffs submit that the plea of limitation was not pleaded in the defence dated **17/6/2019**, and later amended on **7/9/2021**, or framed for determination or evidence led to that effect. The plaintiffs submit that they were not allowed to address the issue during the hearing, submissions are not pleadings, and parties cannot introduce new issues through submissions. The plaintiffs submit that the issue of limitation is not a procedural triviality, but a substantive and complete defence that must be pleaded to allow the opposite party to respond to it both functionally and legally, hence it is being raised as an ambush. Reliance is placed on ***Kamau -vs- Njoroge & Others [2025] 1081 [KLR]***, and ***Patrick Simiyu Wamoto & Another -vs- County Surveyor, Trans Nzoia Andrew Kitum & Others [2021] eKLR***. 148. The issues calling for my determination are: 149. ***If the 1st plaintiff has proved that the 1st defendant fraudulently caused the transfer and registration of the suit land measuring 2.5 acres, jointly bought by them in breach of the intention for which they had bought the parcel, that is, in favour of the 2nd and 3rd plaintiffs.*** 150. ***If the 1st defendant has, contrary to the initial intention, justified denying the 2nd and 3rd plaintiffs occupation, possession, use, and enjoyment of the said suit land.*** 151. ***Whether the 2nd defendant was party to the alleged fraud or illegal subdivision, transfer, registration, and issuance of a title deed to the 1st defendant, in breach of the initial intention.*** 152. ***If the plaintiffs are entitled to the reliefs sought.*** ***(5) What is the order as to costs?*** 1. It is trite law that parties are bound by their pleadings and issues for the court’s determination follow from those pleadings. See ***Electoral & Boundaries Commission & another -vs- Stephen Mutinda Mule & 3 others [2014] eKLR.*** The primary pleadings in this case are the further amended plaint dated **6/11/2023**, the 1st defendant amended statement of defence dated **7/9/2021,** the 2nd defendant statement of defence dated **18/1/2022**, and a reply to defence dated **3/5/2024** and **15/10/2021**. 2. There was also a preliminary objection dated **30/12/2024** based on the Limitation of Actions Act, which was dismissed in a ruling dated **5/2/2025**. Consequently, it cannot be true, as submitted by the plaintiffs, that the plea of limitation was never pleaded or raised before the hearing or at all. 3. It is admitted by the 1st defendant and the 1st plaintiff that the 2nd and 3rd plaintiffs are children of their relationship, whether they were married or not, since both the 1st plaintiff and the 1st defendant contest whether they were a married couple or not since **1997**. It is also not disputed that the 1st plaintiff and the 1st defendant parted ways sometime in **2009** or thereabouts, each leading separate lives, but the 2nd and 3rd plaintiffs remaining in the custody, care, and protection of the 1st plaintiff. 4. It is also not disputed that the 1st plaintiff and the 1st defendant bought land measuring **2.5 acres** from the seller, though the registered owner had not transferred the land to him, but nonetheless, involved the registered owner in the initial transaction. What the 1st plaintiff and the 1st defendant do not agree on is the source of the consideration, the purpose for which, and whether the intended beneficiaries of the suit land were the 2nd and 3rd plaintiffs or themselves were the intended beneficiaries of the suit land. 5. The 1st plaintiff’s case is that the intention was clear that she was acquiring the land for exclusive use, possession, and occupation solely for her children, and hence entrusted the 1st defendant with the requisite documentation to effect the transfer and registration, only for him to fraudulently change cause and fraudulently register the land under their two names, one of which does not belong of her, without her knowledge, consent or approval. The 1st plaintiff urges the court to find the process fraudulent and illegal, hence the result is void. 6. On the other hand, the 1st and 2nd defendants deny the alleged intention as pleaded by the 1st plaintiff. The 1st defendant insists that he was the sole purchaser of the **2.5 acres** with the 1st plaintiff as a mere witness who knew about the two sale agreements, payment of the consideration, process of the transfer and registration, which were done in good faith, terms the caution as registered in bad faith, denies any alleged fraud or illegality, insisting that the 1st plaintiff was and remains his spouse, maintains that he is the one who solely developed the suit land by constructing a permanent house, terms the claim as aimed at evicting him from the land he lawfully purchased for his family, the plaintiffs included, and urges the caution to be lifted. 7. In the reply to amended defence dated **15/10/2021**, the 1st plaintiff denies that the 1st defendant had capacity to contract another marriage, terms his efforts as seeking to defraud the children of their ownership and occupation of the land, terms the 1st defendant’s occupation as wrongful, insists the 1st defendant purport to register the land, in a scheme for him to become a co-owner through the back door, without having made any substantial contribution to the purchaser price, she terms the identification cards used though hers, as including a name strange to her and terms the caution as regular. 8. The law is that when a land title is under attack, each party has a shared burden to prove its case that the process leading to the issuance of the title meets the legal muster of regularity, formality, procedural lawfulness, and being free of any encumbrances, including those that are not registered on the title register. See ***Munyua Maina & Others -vs- Hiram Gthiha Maina [2013] KECA 94 (KLR), Dina Management Ltd -vs- the County Government of Mombasa*** *(supra),* and***Presbyterian Foundation -vs- Kibera Siranga SHG Nursery School [2025] eKLR***. 9. Fraud is defined under *Black's Laws Dictionary, 9th Edition, page 131,* as consisting of some deceitful practice or willful device resorted to with intent to deprive another of his right, or do him injury. 10. Fraud also consists of a knowing misrepresentation of the truth or the intentional concealment of a material fact to induce another to act to his detriment. Fraud must be specifically pleaded and strictly proved as held in ***Vijay Morjaria -vs- Nansingh Madhusingh Darbar [2000] eKLR.*** 11. Proof of fraud is on a balance higher than in ordinary suits. See ***Kinyanjui Kamau -vs- George Kamau [2015] eKLR***, and ***Arthi Developers Ltd*** *(supra).* In ***Kabui -vs- Kabui Civil Appeal No 415 of 2018 [2024] KECA 1396 [KLR] (11th October 2022) (Judgment)***, evidence of consent to undertake subdivision, mutation form from the surveyor, and consent to transfer were missing. 12. The court held that under **Section 26(1)** of the Land Registration Act, a title can be challenged if it is demonstrated that it was obtained through fraud, misrepresentation, illegality, unprocedurally, or by way of a corrupt scheme. 13. In ***Hatayan & another -vs- Al-Heidy & 5 others [2015] KECA 713 (KLR),*** the court confirmed the definition of a trust as where the purpose or intent for which the property was bought remains in dispute. The definition of constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrongdoing, and which arises where the intention of the parties cannot be ascertained, and where the circumstances of the case are such as would demand that equity treats the legal owner as trustee, or where a person already a trustee takes advantage of his position for his own benefit. 14. The court said that the imposition of a trust is meant to guard against unjust enrichment. The court cited *Snell’s Equity 29th Edition, Sweet & Maxwell, page 175*, that a trust may arise either upon the unexpressed but presumed intention of the seller or upon his informally expressed intention. On resulting trust, the court observed that as a general rule, a resulting trust will automatically arise in favour of a person who advances the purchase price, whether or not the property is registered in his name or that of another, being immaterial. See ***Shah & 7 Others -vs- Mombasa Bricks & Tiles Ltd & Others [2023] KESE 106 [KLR].*** 15. In this suit, there are glaring inconsistencies in the exhibits produced by the 1st defendant, as pointed out by the plaintiffs and also admitted by the Land Registrar. Evidence of the source of the substantial part of the consideration from the 1st plaintiff’s own bank account has not been challenged by the defendants. On the other hand, the exhibits produced by the 1st defendant to show the source of his funds, equivalent to **Kshs. 675,000/=** is shaky. The makers, drawers, and drawees of the cheques, deposit slips, and withdrawal slips, or acknowledgement of the same by the seller, as solely from the 1st defendant, are missing. He who alleges must prove. 16. The court finds the explanation by PW1 more probable to have happened as opposed to that of the 1st defendant. On the trail of events leading to the transaction(s), starting from how the suit land was identified by PW1’s late father, the source of the suit land from a close friend of the late father, discovery of the registered owner as Noah Kemboi and his wife, how the two identical sale agreements were generated, and lastly due to the close relationship between the two parties, how the 1st plaintiff entrusted the 1st defendant with the duty and obligation as the father of the 2nd and 3rd plaintiffs to finalise the paper work in favour of their children. 17. An issue, for instance, was raised on the late issuance of the LCB consent, its signatures, and dates. In ***Aliaza -vs- Saul [2022 KECA 583 [KLR]***, the court said that both the proposed seller and the purchaser must sign the application form for the consent. 18. In ***Macharia Mwangi Maina & Others -vs- Davison Mwangi Kagiri & Others [2014] eKLR***, the critical issue was the lack of a land control board consent. The court said that regardless of the issuance or application of the consent on time or at all, the respondent, as the seller, had created an implied or constructive trust in favour of those persons who had paid the purchase price pending the sale of all the **240** plots. 19. In this suit, there is no evidence that the parties had made time of the essence in the contract of sale. In ***Gurdev Singh Birdi -vs- Abubakar Madhbuti [1997] eKLR,*** the court said that unreasonable delay, as held in ***Graham -vs- Pitkin [1992] 2 All ER 235***, does not entitle the vendor to rescind the contract without notice to complete it. The court record does not show that the 1st plaintiff wrote to the seller seeking to know why he instead transferred the land to the 1st defendant and herself, using a different name or without adhering to the earlier land control board consent application forms in favour of the 2nd and 3rd plaintiffs. 20. Equally, there is no evidence that the 1st plaintiff lodged a complaint other than the caution, after the transfer and registration in favour of the 1st defendant and herself. The 1st defendant urges the court to find that what he did was in good faith. What baffles one is that the 1st defendant, while admitting that a caution was lodged, did not move the Land Registrar to vacate it based on the affidavit of marriage in his possession showing the 1st plaintiff as his wife. 21. That notwithstanding, the doctrine of estoppel bars the 1st plaintiff from denying the existence of a marriage with the 1st defendant. The 1st plaintiff has not termed the affidavits as fraudulent, signed under duress, or made with the use of force. 22. The 1st plaintiff in her testimony admitted executing those affidavits alone and not out of pressure or duress from the 1st defendant. The 1st plaintiff also admitted that she had indicated the 1st defendant as her next of kin in official government documents held by her employer. Therefore, the 1st plaintiff cannot blow hot and cold at the same time. She cannot purport to renege on earlier representations by way of affidavit of marriage. Equally, the 1st plaintiff cannot renege on what she stated in the initial demand letters to the defendants and or in her initial witness statement, which she has purported to recant. 23. The doctrine of estoppel is captured in **Section 120** of the Evidence Act. In *Halsbury’s Laws of England Vol. 16, 4th Edition*, a word or conduct waived or made to the other party, a promise or assurance, which was intended to affect the legal relation between them and to be acted on accordingly, cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by them. 24. Therefore, the 1st plaintiff must accept the status of their legal relationship at the time when the sale agreements were made. The jurisdiction of this court does not extend to determining the status of the marriage then and now. 25. Whether or not the parties were validly married or not, and were cohabiting or not, and what caused the breakdown, is neither here nor there. It does not change the facts, the circumstances of the sale and transfer. It is not the law that only partners in a marriage relationship can transact in land. It is not the law that there cannot be fraud in land transactions between couples or parties in a special relationship. It is not the law that partners in a relationship cannot purchase land in favour of the children of their relationship, whether validly married or not. 26. This court has no jurisdiction to deal with marital disputes. Equally, this court has no jurisdiction to deal with matrimonial property disputes. All that this court has been called to determine is whether there was fraud or not, and if the intention of the parties to purchase the land in favour of the 2nd and 3rd plaintiffs has been established, and if so, if it was breached by the 1st defendant to the detriment of the 2nd and 3rd plaintiffs. The rest of the issues should go to the right court. 27. Having warned myself that jurisdiction cannot be conferred by the consent of parties through pleadings where none exists, have the plaintiffs succeeded in impeaching the title deed held by the 1st defendant on account of fraud, illegality, or breach of fiduciary duty? 28. The law is that where there are competing interests on one piece of land, each party has to trace the root of title without a break in the chain or doubts be cast as to the validity of the result, on a balance of probabilities. Regarding fraud, the balance should be higher but below a reasonable doubt, as held in **Ndolo -vs- Ndolo (2008*) 1 KLR (G & F) 742*.** 29. In my considered view, the 1st plaintiff has succeeded in showing that her footprints are missing right from the preparation of the land control board application form, land control board consent, transfer forms, and the title deed issued in favour of the two partners. The 1st defendant had the evidential burden to dislodge the 1st plaintiff’s strong evidence that all these processes were done without her consent, knowledge, or approval, to the extent that she did not append her signature(s), attach vital documents, or supply an identification card with the correct names to the 1st defendant. 30. For instance, the 1st defendant has been unable to tender cogent evidence that the signatures and names on those paper trial documents belong to and were signed and executed by the 1st plaintiff. 31. The 1st defendant has failed to call the attestator to the documents, who, as a lawyer, would have confirmed witnessing the 1st plaintiff appending her signature(s) on the transfer form(s) or had availed to him for certification her copy of identification card, photostat copies, and personal identification number certificates, which are vital documents in land registration. 32. The chairman of the land control board, who witnessed the 1st plaintiff, the 1st defendant, and the seller(s) appear and consent to the issuance of a land control board consent in the two names other than the children, was not called to testify and produce minutes of the land control board meeting, for both the subdivision and transfer of the land. 33. In the absence of all these key witnesses, my finding is that the transfer and registration of the title to the suit land was procured irregularly, unprocedurally, and illegally, making the same defeasible. 34. Coming to whether the plaintiffs have proved beneficial ownership and breach of fiduciary duties, the plaintiffs failed to call key witnesses who sold the land to the 1st plaintiff, who appended signatures to the application for the land control board consent or transfer form(s), showing that the 1st plaintiff was the sole trustee and had intended that she would hold the suit land in trust for the 2nd and 3rd plaintiffs, then minors. 35. PW1 did not call any other witness apart from the 2nd plaintiff to advance the intention of trust. PW1 did not call her late father or anyone else to say that they had actually severed their close relationship with the 1st defendant, hence the only remaining aspect of their relationship was to have the suit land in favour of the children. 36. This fact is compounded by the evidence of PW1 approbating and reprobating at the same time, on the kind of relationship she had with the 1st defendant. It is now trite law that, regardless of marital status, partners who are not in any known legal marriage relationship can still jointly acquire land as held in ***MNK -vs- POM*** *(supra)*. The contribution jointly made by the parties in acquiring the suit land here is evident. 37. What is lacking in this suit is the intention or beneficial interest solely and exclusively in favour of the 2nd and 3rd plaintiffs insofar as the marriage or otherwise is concerned. If the 1st defendant was not intended to or supposed to use, occupy, and possess the suitland alongside the 1st, 2nd, and 3rd plaintiffs, and if there was no relationship at all, then it defeats logic why the 1st plaintiff, over and above, entrusted and or surrendered the transfer documents to an estranged partner, and even after breach of such trust would still allow him to take vacant possession, occupy, and develop the land exclusively with effect from **2009** to **2019** when she knew that their relationship was no more. The court finds the conduct of the 1st defendant not fitting the bill of unjust enrichment or taking advantage of his capacity as a trustee. 38. Furthermore, the court finds the initial demand letters written by the 1st plaintiff to the 1st defendant are silent on both fraud and or breach of fiduciary trust. To the contrary, the two letters were suggesting that the 1st defendant surrender half of the suitland to the 1st plaintiff. The suit was filed after **10** years following the alleged estrangement. Already, a lot had happened between the parties and on the land without any precipitate action by the plaintiffs. Even after the demand letters dated **14/10/2014** were sent and remained unanswered, it took the 1st plaintiff another five years to send the demand letter dated **13/5/2019** and move to court. 39. Delay defeat equity. Equity aids the vigilant and not the indolent. Joint owners in common in undivided shares is what the 1st plaintiff described the suit land initially. The title was issued on **3/7/2009**. The discovery of fraud was first on **25/7/2009** and later in **October 2014**. Between **July 2009** and **2019**, when this suit was filed, there was a period of **10 years**. 40. Recovery of land under the law is, however, **12 years**. The operative law on joint ownership in **2009** was **Section 102(1)** of the repealed Registered Land Act, Cap **300. Section 91(8)** of the Land Registration Act cannot operate retrospectively. 41. The court has already made a finding that the registration of the title deed, **Land Parcel No. Kiminini/Matunda/Block4/Cheptarit/246 issued on 3/7/2019,** in favour of the 1st plaintiff and the 1st defendant, is a product of a flawed process. The court proceeds to invalidate and cancel the title deed. 42. The **Land Parcel No. Kiminini/Matunda/Block4/Cheptarit/246** shall revert to the names of the 1st plaintiff and the 1st defendant in equal shares, who shall be at liberty to deal with the same as it pleases them in favour of the 2nd and 3rd plaintiffs or otherwise, or sever the co-ownership. 43. There will be no order as to costs. 44. Orders accordingly. **Judgment dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **13th** day of **May 2026.** **In the presence of:** Court Assistant - Dennis Plaintiffs absent 1st defendant present Miss Muigai and Nabwile for the plaitniffs present Nafula for Samba for the 1st defendant present Attorney General for 2nd defendant absent  **HON. C.K. NZILI** **JUDGE, ELC KITALE.**