Yator & 3 others v Kiplagat (Environment and Land Case 95 of 2019) [2026] KEELC 2947 (KLR) (14 May 2026) (Judgment)

Yator & 3 others v Kiplagat (Environment and Land Case 95 of 2019) [2026] KEELC 2947 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEELC 2947 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Case 95 of 2019 CK Yano, J May 14, 2026 Between Moses K. Yator 1st Plaintiff Isaac K. Cheboi 2nd Plaintiff Margaret Kimaiyo 3rd Plaintiff Aaron Kibet Maiyo 4th Plaintiff and Joyce Jerotich Kiplagat Defendant Judgment 1.The Plaintiffs instituted the present suit vide a Plaint dated 25th May, 2011, against the Defendant, seeking the following orders:-a.An order of declaration that the defendant’s acquisition and her consequent registration of the parcel of land known as Kiplombe/Kiplombe Block 10 (growel)/389 was fraudulent, unprocedural, illegal and therefore null and void.b.An order for the cancellation and revocation of the Title No. Kiplombe/Kiplombe Block 10 (growel)/389 and a re-registration of the same in favor of the 3rd and 4th plaintiffs.c.An order of permanent injunction to restrain the defendant by himself, his agents and/or servants from interfering with the 3rd and 4th plaintiffs’ use and enjoyment of the parcel of land known as Kiplombe/Kiplombe Block 10 (growel)/389.d.General and exemplary damages.e.Costs of this suit.f.Any other relief that this honourable court deems fit and just to grant. Plaintiffs’ Case; 2.It was pleaded that the 1st and 2nd plaintiffs instituted the present proceedings in their capacity as the Trustees, duly appointed of the parcel of land known as Kiplombe/Kiplombe Block 10 (growel)/389 (hereinafter referred to as the ‘suit land’) and on behalf of the members and legal beneficiaries of the said parcel. 3.The 3rd and 4th plaintiffs on the other hand are the widow and son of the late Dickson Kimaiyo Lagat and are the legal beneficiaries of the suit land. 4.The plaintiffs aver that the suit land was given to the late Dickson Kimaiyo Lagat, who was a member and a shareholder of the Growel Farm and the same was subsequently issued in favor of the 3rd and 4th plaintiffs as the legal beneficiaries of the said estate. 5.They thus maintained that the suit land legally belongs to the 3rd and 4th plaintiffs and not the defendant, who is the current registered owner. 6.It is their claim that the defendant illegally, fraudulently and without any color of right whatsoever caused herself to be registered as the owner of the suit land without the consent or authority of the plaintiffs. They outlined the particulars of fraud on the part of the defendant thereto. 7.It is the plaintiffs’ contention that as a result of the defendant’s illegal and fraudulent actions, the 1st and 2nd plaintiffs have been unable to effectively complete their mandate as Trustees and effect the transfer of the suit land in favor of the 3rd and 4th plaintiffs. 8.Further, that the 3rd and 4th plaintiffs have also been denied the enjoyment of their beneficial interests rightfully and have thus suffered loss and damage as a result. 9.The plaintiffs maintained that the defendant is a total stranger to them and is not entitled at all to the suit land or any portion thereof formerly known as Kiplombe/Kiplombe Block 10 (growel)/2. 10.Consequently, they urged the court to allow their claim and grant the orders as sought. 11.The plaintiffs’ case was opposed. The defendant filed her statement of defence in response to the allegations raised against her in the plaint. Defendant’s Case; 12.The Defendant filed a Statement of Defence dated 3rd June, 2011, wherein she denied each and every allegation of fact raised in the plaint and in particular, paragraphs 4,5,7,8,9,11,12,13 and 14 of the plaint and put the plaintiffs to strict proof thereof. 13.The defendant dismissed the plaintiffs’ suit as being bad in law for mis-joinder and non-joinder of the proper parties, that no cause of action had been demonstrated against her and the same is thus incompetent and ought to be struck out with costs. 14.It was the defendant’s claim that the plaintiffs have no capacity to institute any suit against her as they lack the requisite locus standi. 15.She averred that she was/is the sole registered owner of the suit land having acquired the property legally for value through a transparent and lawful process and therefore deserves an exclusive use and enjoyment of her rights thereto. 16.She denied the existence of a Trust in toto and put the plaintiffs to strict proof thereof. 17.In response to the contents of paragraphs 11,12,13 and 14 of the plaint, the defendant denied in toto the particulars of fraud attributed to her and further accused the plaintiffs of colluding to conduct a fraudulent transaction. She outlined the particulars of fraud on part of the plaintiffs. 18.In conclusion, she urged the court to strike out the plaintiffs’ suit and/or in the alternative that the suit be dismissed with costs. 19.Upon close of pleadings, the suit was certified ready for hearing and proceeded for hearing. Trial: 20.The plaintiffs’ case proceeded for hearing on 14.04.2021. The 1st Plaintiff testified and was marked as PW1. He informed the court that he recorded a witness statement dated 25.05.2021 which he adopted as his evidence in chief. 21.It was also his testimony that he was one of the Trustees of Growel Farm, in charge of the parcel of land known as Kiplombe/Kiplombe Block 10/2 together with the late Charles Mango and Isaac Cheboi. 22.He stated that the original parcel land was 30 Acres by measurement and the same was subdivided into plots of 50 by 100 and divided amongst its members. 23.It was his claim that plot No. 389 (the suit land herein) was given/allocated to Margaret Kimaiyo and Aaron Kibet Kimaiyo, who were the beneficiaries of the late Dickson Kimaiyo. He explained that the late Dickson Kimaiyo Kiplagat was a member but he passed on before allocation and registration of his portion of land. 24.It was his testimony that they obtained the requisite consents from the LCB, signed the various transfer forms in respect of all the plots for the members, carried out survey and subsequently, title deed were issued. 25.It is however his claim that the 3rd and 4th plaintiffs did not get their title deed in respect to the suit land since the land had already been registered in the name of the defendant. 26.He produced the following documents as Exhibits in support of their claim as follows: -- Pexh. 1 – copy of the Consent from the LCB- Pexh. 2 – copy of the Consent from the LCB for subdivision.- Pexh. 3 – copy of the transfer form in respect to the suit land- Pexh. 4 – copy of the letter dated 23.01.2004.- Pexh. 5 – copy of the Death Certificate belonging to Dickson Kimaiyo. 27.In conclusion, he maintained that the suit land does not belong to the defendant and urged the court to issue an order cancelling the defendant’s title and the suit land to be registered in the names of the 3rd and 4th plaintiffs. 28.On cross-examination, he reiterated that he was one of the Trustees of Growel Farm in charge of the whole/original parcel of land No. 2. 29.He however conceded that he did not have any documents to support his appointment as a Trustees or of the registration of the said Growel Farm. He further stated that the list containing the members was with the Surveyor Chalam. 30.It was his testimony that the member register was prepared according to the list given by the chiefs within the 10 locations but conceded that he did not have the said member register. 31.He denied knowledge of the claims that one Robert Kimutai Kosgei was given the suit land sometimes in 2006 by their office and maintained that the said Robert was not a member of the Farm. 32.He further conceded that he was not aware whether the requisite letters of administration in respect to the estate of Dickson Mango had been issued to the 3rd and 4th plaintiffs. 33.It was also his testimony that the late Dickson used plot nos. 70 and 24, which have a current No. 389 but conceded that the same had not been indicated in the letter produced as Pexh. 4. He further testified that the original parcel of land No. 2 was subdivided into 179 plots. 34.On re-examination, he explained that the suit land is a resultant subdivision of lot No. 2. That plot No. 34 was the old/previous for the present No. 389. He also reiterated that the chiefs were given 10 plots each to allocate to their members. He maintained that they have a list of all persons who were allocated the plots. 35.It was his testimony that even though they were elected as trustees of the farm by the members, he admitted to not having registered a trust deed. 36.In the end, he reiterated and maintained the said Robert was not a member of the farm. 37.Isaac Kipruto Cheboi, the 2nd plaintiff herein testified as PW2. He informed the court that he recorded a witness statement dated 25.05.2011 and a supplementary statement dated 29.06.2019 which he adopted as his evidence in chief. 38.It was also his testimony that he was one of the Trustees of the group. That they purchased the original parcel of land as a group. That they were comprised of 10 groups at the time of purchase and each group were given various plots. 39.He further explained that Dickson was given Plot No. 34 in one of the centre plots. However, when the complete list of all the centre plots was combined, plot No. 34 became plot No. 389. 40.He further stated that he has a list showing the original numbers and the minutes of the group. He produced the same as Pexh. 6. 41.He went on to state that when Dickson, who was a member of the group died, they asked his family to give them the names which would appear in the register in his place. It is then that they were given the names of the 3rd and 4th plaintiffs and plot No. 389 was then registered in their names. 42.However, when the surveyor tried to process the title deed in respect to plot No. 389 in the names of Margaret and Aaron, it was discovered that someone else had been registered as the owner of the same plot. 43.It was his claim that the Land Registrar cancelled the said registration and the subsequent title deed that was issued vide a Gazette Notice. He produced the said Gazette Notice as Pexh. 7. It was however his contention that the said title that was cancelled was never returned. 44.He also produced a copy of the Green Card in relation to the original parcel of land known as Kiplombe/Kiplombe Block 10 (Growell)/2 which was marked as PMFI 8. 45.He produced the Transfer Form which was duly signed in favor of Margaret and Aaron (3rd and 4th plaintiffs) as Pexh. 9. He denied the claims by the defendant that she purchased the suit land from one Robert Kimutai Kosgei and maintained that the said Robert was not a member of the group. 46.In conclusion, he urged the court to cancel the title deed issued in favor of the defendant and order that the suit land be registered in the name of the 3rd and 4th plaintiffs. 47.On cross-examination, he confirmed that he had not been shown any document to prove that the family of Dickson had obtained the requisite letters of administration. 48.Further, he admitted that he had not produced any document to show that Dickson was a member of their group. He however stated that Dickson was a Chief of Kocholwo location. 49.It was his testimony that about 25 acres of land was set aside for the centre plots and each of the group/locations were given 10 centre plots. The said locations are as contained in Pexh. 6. He conceded that the minutes produced as Pexh.6 were neither signed nor dated. 50.He also conceded that plot No. 34 was not among the plots under Kocholwo location. He confirmed that he did not produce a copy of the mutation or the list of the 100 names that they were given. 51.It was his testimony that even though he did not have the list of the names of the members of the group, he was sure that Robert Kimutai Kosgei was not among the members of the group. 52.He stated that the 25 acres of the centre plots was originally registered in the three names of the trustees of the group. He admitted that at the time of dating the transfer forms, one of the Trustees, Charles Maiyo had already died. 53.He also admitted that although the land registrar attempted to cancel the title deed issued in the name of the defendant, the defendant filed a case before the High Court seeking to quash the said cancellation by the land registrar. 54.On re-examination, he stated that Growell Farm was subdivided in 1986 and plot No. 2 was reserved for the market centre. When referred to Pexh. 6, he confirmed that the said minutes were neither dated nor signed but stated that the signed minutes were given to the surveyor. 55.He reiterated that plot No. 34 was given to Dickson, who passed on in 1998. When referred to pexh. 9, it was his testimony that they duly signed the documents but left the dating part blank. The same was however done by the surveyor upon collection of the various documents by a member for purposes of registration. 56.He reiterated that plot No. 34 is the same plot that later became plot No. 389. He also maintained that Robert Kosgei was not a member of any of the locations/group. 57.Margaret Kimaiyo, the 3rd plaintiff herein, testified as PW3. She informed the court that she had prepared and signed a witness statement dated 25.05.2011 and a supplementary statement dated 29.06.2019, which she adopted as her evidence in chief. 58.She stated that she is the wife of the late Dickson Kimaiyo. 59.She produced two letters from the Chief stamped on 21.11.2021 as Pexh. 10 (a) and (b). 60.In conclusion of her examination in chief, she urged the court to cancel the title deed illegally acquired by the defendant and to order that the same be registered in her name. 61.On cross-examination, she confirmed that her husband died in 1998 and that they have never obtained letters of administration in respect to his estate. 62.She further confirmed that it was her late husband who was dealing with the suit land in dispute. 63.Diana Agunda, the Land Registrar, Uasin Gishu County, testified and was marked as PW4 pursuant to court summons issued by the court. 64.She produced a certified copy of the Green Card in respect to the original parcel of land Kiplombe/ Kiplombe Block 10 (Growel)/2 as Pexh. 8. 65.She went on to explain that the green card was opened on 12.03.2004 and the said parcel of land measures approx. 10.4Ha. 66.That the first entry is that of Growell Farm. Entry No. 2 was the registration in the names of Moses K. Yator, Isaac K. Cheboi and Charles Maiyo. 67.Further, it was her testimony that the said title No. 2 was later subdivided into parcel 337 – 516 with parcel No. 389 being one of them. 68.She however stated that they did not have a card for plot No. 389 but only have a Gazette Notice No. 7740 cancelling parcel No. 389. The said cancellation was made by Y.M. Chepkwesi. 69.On cross-examination, she confirmed that parcel No. 389 resulted from parcel No. 2. She reiterated that the register for parcel No. 2 was opened on 12.03.2004. 70.She also reiterated that first entry was the registration in the name of Growell Farm while Entry No. 2 was the registration in the names of Moses K. Yator, Isaac K. Cheboi and Charles Maiyo. Later the parcel was subdivided into parcel Nos. 337 – 516. 71.The Defence case proceeded for hearing on 03.11.2025. The defendant testified as DW1. She informed the court that she had prepared and signed a witness statement dated 03.12.2019, which she adopted as her evidence in chief. 72.She produced the documents in her list of documents dated 03.12.2019 as Dexhibits 1,2,3,4,5,6,8,9 and 10. Document No. 7 was marked as DMFI7. By consent of parties, the said Valuation Report was produced as Dexh. 7. 73.She also produced the documents in her Supplementary List of Documents dated 12.04.2021 as Dexhibits 11 – 14 respectively. 74.It was further her testimony that before purchasing the suit land, she visited the same and confirmed that it was vacant. She also conducted an official search on 22.12.2010, which confirmed that the registered owner of the suit land was one Robert Kimutai Kosgei, who was registered as the owner thereof on 31.10.2006. 75.She further stated that the certificate of official search revealed no restrictions or encumbrances registered against the title of the suit land. 76.Upon conducting her due diligence and confirming the registration status of the suit land, she purchased the suit property vide a sale agreement dated 06.01.2011 for a consideration price of Kshs. 675,000/=. 77.Consequently, the suit land was transferred and registered in her name and the title deed thereto issued on 10.02.2011. She added that she has since developed the suit land extensively by constructing a building which has been occupied by tenants. 78.It was her testimony that she conducted a second official search on 08.03.2011 and the same showed that she was the registered owner of the suit land. 79.In the end, she maintained that she is the rightful owner of the suit land having purchased the same through an auction and that she is an innocent purchaser thereof. 80.She maintained that there is no connection between parcel No. 70 which the plaintiffs are claiming and the suit land No. 389 which belongs to her. 81.On cross-examination, she reiterated that the suit land No. 389 is her rightful land. That the genesis of her ownership is pursuant to a purchase vide a sale agreement between her and Robert Kosgei dated 06.01.2011. She however confirmed that the said Robert Kimutai Kosgei was neither a witness in support of her case nor a party to the case. 82.She maintained that before the said purchase, she did her due diligence. That she conducted an official search dated 22.12.2011 and was produced as Dexh. 3. 83.She went on to state that the second search was conducted on 08.03.2011. She confirmed that the title deed was issued in her favor on 10.02.2011 almost a month after the date of the sale agreement. 84.It was her testimony that the land registrar did not cancel her title deed since they raised an objection to the said cancellation. She confirmed that the cancellation was in the Kenya Gazette vide Kenya Gazette Notice of 08.07.2011, whereby she was summoned by the land registrar Uasin Gishu to attend a meeting in his office. 85.She went on to explain that her counsel, R.K Limo attended the said meeting with the land registrar on her behalf on 12.04.2011. 86.She acknowledged that her title was cancelled by the registrar upon determination of the genuine ownership thereof sometimes in July, 2011 but stated that the said cancellation was later quashed by the court. 87.In conclusion, she admitted that she was not aware that the suit land which she bought was a subdivision of parcel No. 2. 88.On re-examination, it was her testimony that she had not been shown any register to show that Robert Kosgei was not a member of Growel. 89.It was also her testimony that she has not been shown any certificate of search showing a different owner of the suit land. 90.She also explained that she challenged the decision of the land registrar on cancellation of her title vide J.R. No. 106 of 2011 and No. 66 of 2011. Consequently, the decision of the land registrar was quashed. The said decision by the court has never been appealed against by the plaintiffs. 91.At the end of the re-examination, DW1 was discharged and the defence thereafter closed their case. 92.Upon close of the defence case, directions were issued on the filing of the final submissions. The plaintiffs filed their submissions dated 17.02.2026 together with authorities while the defendant also filed her submissions dated 16.03.2026 together with authorities which I have read and duly considered. Analysis and Determination: 93.I have carefully considered the facts as contained in the various pleadings filed herein, the respective testimonies and exhibits adduced in support of the rival claims as well as the parties’ submissions filed herein and the authorities cited in totality. 94.Consequently, it is my considered opinion that the following issues arise for determination: -a.Whether the 3rd and 4th plaintiffs are vested with the requisite locus standi to institute the present suit.b.Whether the defendant acquired the title to the suit property fraudulently, unprocedurally and illegally rendering the said title null and void.c.Whether the plaintiffs are entitled to the orders sought in the Plaint against the defendant.d.Who should bear the costs of the present suit a. Whether the 3rd and 4th plaintiffs are vested with the requisite locus standi to institute the present suit; 95.The first issue herein seeks to ascertain the locus standing and/or capacity of the 3rd and 4th plaintiffs to institute the present proceedings. 96.At the center of the plaintiffs’ suit is the ownership of the suit parcel of land, Kiplombe/ Kiplombe Block 10 (Growel)/389. It is the plaintiffs’ claim that the said parcel of land was duly allocated/given to the late Dickson Kimaiyo Lagat, who was a member of the Growel Farm. 97.The plaintiffs are therefore seeking at prayers (b) and (c) in the Plaint that the title in respect to the suit land be registered in the name of the 3rd and 4th plaintiffs as the legal beneficiaries of the late Dickson Kimaiyo Lagat. 98.The question that therefore follows is whether the said 3rd and 4th plaintiffs are vested with the requisite capacity to institute and maintain a suit on behalf and for the benefit of the estate of the late Dickson Kimaiyo Lagat. 99.A question on locus standi and/or capacity of a party to institute proceedings before a court is a question that goes to the root of the court’s jurisdiction to hear and determine the said suit. 100.The Supreme Court in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] eKLR held as follows on the issue of locus standi:-“The issue of locus standi raises a point of law that touches on the jurisdiction of the Court, and it should be resolved at the earliest opportunity. In Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, Sup. Ct. Petition No. 7 of 2013; [2014] eKLR, this Court held (at paragraphs 68 and 69) that the question of jurisdiction is a “pure question of law,” and should be resolved on a priority basis”. 101.The 3rd plaintiff testified as PW3 in support of their claim. During cross-examination, she admitted that they do not have the necessary letters of administration in respect to the estate of her late husband, Dickson Kimaiyo, who died in the year 1998. 102.I have also critically looked at the various documents produced by the plaintiffs as exhibits in support of their case and I do note that save for the Death Certificate which was produced as Pexh. 5 and the letters from the Chief produced as Pexh. 10 (a) and (b), there was no other document either in the form of letters of administration or an ad litem, vesting the 3rd and 4th plaintiffs with the requisite authority to institute and represent the estate of the deceased Dickson Kimaiyo in the present case. 103.The Law of Succession Act is clear on the procedure to be followed in instituting a suit on behalf of an estate of a deceased person and the consequence of failing to comply with the said procedure. 104.In the present case, it is evident that the said procedure was not followed before the filing of the present suit and has never been complied with to date. A certificate of death and the Chief’s letters cannot take the place of a letter of administration issued by a court of law. 105.Consequently, having held that the 3rd and 4th plaintiffs lack the necessary capacity to file the present suit on behalf of the estate of the late Dickson Kimaiyo, it is my considered finding that this court lacks the requisite jurisdiction to entertain the suit as filed. 106.Before penning off, I wish to point out that even though the issue of capacity touches on the 3rd and 4th plaintiffs alone, in my considered opinion, the suit cannot be sustained by the remaining 1st and 2nd plaintiffs for the main reason that at the center of the claim is the ownership of the suit land, which allegedly was allocated/given to the late Dickson Kimaiyo. 107.Further, the orders sought in the plaint are for the benefit of the estate of the late Dickson Kimaiyo. In essence therefore, the plaintiffs’ case seeks to protect and safeguard the interests of the estate of the deceased Dickson Kimaiyo and the 1st and 2nd plaintiffs cannot sustain the same on his behalf. 108.In view of the foregoing, having held that this court is not vested with the requisite jurisdiction to entertain the suit as filed, I must down my tools and the remaining issues fall by the way/ are abandoned. Who should bear the costs of the suit; 109.The general rule is that a successful party should ordinarily be awarded costs of the suit unless the court, for good reason, directs otherwise. 110.In this case, having held that the Plaintiffs’ suit is barred for lack of the requisite capacity on the part of the 3rd and 4th plaintiffs to institute the present suit on behalf of the late Dickson Kimaiyo, it is my finding that the defendant is entitled to the costs of defending the suit. Conclusion: 111.The upshot of the foregoing is that the Plaintiffs’ suit vide the Plaint dated 25th May, 2011 is barred for want of the requisite locus standi/capacity on the part of the 3rd and 4th plaintiffs. 112.Consequently, the said Plaint dated 25th May, 2011 is hereby struck out with costs to the defendant. 113.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET THIS 14TH DAY OF MAY, 2026.HON. C. K. YANOJUDGEIn the virtual presence of; -Kipseii for the PlaintiffsMr. Kibii for the DefendantCourt Assistant – Laban