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ELCPartially AllowedMalindi ELC 56 of 2011 (consolidated with Petition 12 of 2012)· [2025] KEELC 12 (KLR)

Gremmo & 4 others v Bora & 14 others (Environment & Land Petition E012 of 2012 & Environment & Land Case 56 of 2011 (Consolidated)) [2025] KEELC 12 (KLR)

Environment and Land Court
16 January 2025
15,646 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~63 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled property transfers obtained through forged documents, awarded the Gremmo family over Kshs 10 million, and confirmed even innocent buyers can lose tainted land titles.

What this practically means

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Executive summary

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The plaintiff, Liana Tamburelli, widow and administrator of the estate of Giovanni Gremmo, sued in HCCC 56 of 2011, while her three children filed Petition 12 of 2012 as beneficiaries, both matters being heard together against Milena Bora, land registry officials, Musinga & Co Advocates and Omar Salim Abdalla. The claimants alleged that transfers dated 19/5/2009 of half shares of Portion No 1757-Malindi and Gede/Mijomboni/162 to Milena were forgeries executed after Giovanni's death, that the Land Control Board consent was time-barred and posthumous, and that Milena thereafter sold the entire Portion No 1757 to Omar at a gross undervalue of Kshs 5,000,000/=. Milena claimed to be a common law wife of 16 years and counterclaimed for a declaration of valid title. The court found the signatures on the conveyances forged, relying on an uncontradicted DCI document examiner's report and the admission of the advocate Wameyo that the dates on the transfers did not reflect execution. The LCB consent was held time-barred under Section 8 of the Land Control Act and invalid because only the estate's administrator could have executed the application after Giovanni's death. Milena's title being void, the court applied nemo dat to cancel Omar's derived title despite finding no personal fraudulent intent on his part. The registry officials' failure to halt dealings after warning letters amounted to negligence and collusion. The court held Article 40 property rights were violated horizontally by private and public respondents alike. Both the suit and petition succeeded; the counterclaim failed. Declarations of nullity and rectification orders were issued, Kshs 8,400,000/= general compensation awarded against Milena and Omar, Kshs 2,000,000/= exemplary damages against the 2nd-4th respondents, with interest and joint and several costs. Claims for accounts of rent and disclosure regarding the Melina Residence were refused for want of evidence and lack of jurisdiction respectively.

Key legal issues

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01

Whether the transfers to Milena Bora were fraudulent

Holding

The transfers were fraudulent: the signatures were forged, the LCB consent was time-barred, posthumous and executed without the administrator's authority, and the register was not properly maintained

Reasoning

Milena was abroad when the documents were allegedly executed and could not establish when she signed them; her advocate admitted the date on the transfer was not the actual date of signing. A DCI document examiner's report that the signatures were forged was uncontradicted. The LCB application was made outside six months, executed after Giovanni's death by an advocate without authority from the administrator, with no evidence of an LCB meeting attended by any representative. Registration of transfers for a deceased person without succession proceedings rendered them void.

p. 16
02

Whether Omar Salim Abdalla was a bona fide purchaser for value protected by Section 26 of the Land Registration Act

Holding

His title was not protected because it derived from Milena's fraudulent and void title, and his advocate (who knew of the pending dispute) failed to disclose the defect to him

Reasoning

The court applied Dina Management and Munyu Maina: where root of title is challenged, the proprietor must prove the legality of acquisition beyond the title instrument. Wameyo, the advocate handling the purchase for Omar, knew of the pending ownership dispute and the irregular history yet failed to inform his client, making him negligent or complicit. Since Milena had no good title to pass, nemo dat defeated Omar's title despite the absence of personal fraudulent intent.

p. 18
03

Whether the respondents violated Article 40 property rights

Holding

Article 40 was violated by all respondents acting singly or in concert; the 2nd, 3rd and 4th respondents were additionally guilty of the constitutional tort of negligence

Reasoning

The Land Registrar registered the transfer on an invalid LCB consent, failed to note date discrepancies, failed to halt dealings after receiving a warning letter of 11/5/2010, and registered the transfer of the entire parcel to Omar despite Milena holding only a half share - indicating collusion rather than mere negligence. The court held that the Bill of Rights applies horizontally to private citizens, and the acts of both private and public respondents defeated the estate's property rights.

p. 23
04

Whether damages were payable and in what quantum

Holding

General compensation of Kshs 8,400,000/= against the 1st and 5th respondents and exemplary damages of Kshs 2,000,000/= against the 2nd, 3rd and 4th respondents

Reasoning

No evidence of quantum was adduced, but under Article 23(3)(e) the court was empowered to craft appropriate relief and assess compensation itself. Rent loss from the lettable structures on Portion No 1757 was assessed at Kshs 50,000/= per month from 16/11/2010, rounded to Kshs 8,400,000/=. Exemplary damages of Kshs 2,000,000/= were imposed on the land registry respondents for negligence that allowed the transfer to proceed despite warnings.

p. 25

Legal principles established

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  • Allegations of fraud must be specifically pleaded and strictly proved to a standard above a balance of probabilities though below the criminal standard
  • An application for land control board consent made outside the six-month period prescribed by Section 8(1) of the Land Control Act is time barred and invalid
  • Only the administrator of a deceased estate can validly execute a land control board consent application on behalf of the estate after the owner's demise
  • A transferor's execution alone does not pass interest; if the transferor dies before completion, the transaction must be continued with the estate's beneficiaries
  • A purchaser whose title derives from a tainted transfer cannot pass good title, on the nemo dat principle, even if personally unaware of the fraud
  • A conveyance of a half undivided share expressed 'to hold the same unto the purchaser as the joint beneficial owner thereof' does not create a joint tenancy with survivorship over the whole property
  • Understatement of value for stamp duty does not of itself vitiate a transfer; the remedy lies with the tax authorities
  • The Bill of Rights applies horizontally between private citizens, and acts of private parties may violate proprietary rights under Article 40

Court orders

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  1. 1.A declaration that the 3rd-7th defendants (inclusive) in the suit owe the plaintiff and the petitioners a duty of care and a duty to maintain proper records and adhere to strict established legal procedures
  2. 2.A declaration that the purported Land Control Board letter of consent serial number 393950 dated 11th February 2010 is null and void
  3. 3.A declaration that the indenture of conveyance dated 19th May 2009 transferring a half share of Portion No 1757 Malindi to Milena Bora and registered on 3rd March 2010 is invalid by reason of forgery and is cancelled
  4. 4.A declaration that the purported transfer of an undivided half share of Portion No 1757 Malindi from the deceased to the 1st defendant is null and void
  5. 5.A declaration that the indenture of conveyance dated 15th November 2010 transferring the entire freehold interest in Portion No 1757 Malindi from Milena Bora to Omar Salim Abdalla is null and void and is cancelled
  6. 6.An order directing the defendants jointly and severally to rectify the records relating to Portion 1757-Malindi by expunging or cancelling the registration of the 5th respondent as proprietor
  7. 7.A declaration that the purported transfer of the undivided share of Gede/Mijomboni/162 from the deceased to Milena Bora registered on 2nd March 2010 is null and void ab initio
  8. 8.An order directing the 3rd respondent to rectify the records for Gede/Mijomboni/162 by expunging the 1st defendant's registration and reinstating the name of Giovanni Gremmo
  9. 9.General damages of Kshs. 8,400,000/= awarded to the plaintiff on behalf of the estate under Article 23(3)(e) as against the 1st and 5th respondents jointly and severally
  10. 10.Exemplary damages of Kshs 2,000,000/= awarded to the petitioners for negligence as against the 2nd, 3rd and 4th respondents
  11. 11.Interest on the sums awarded at court rates from the date of judgment till payment in full
  12. 12.Costs of the petition and the suit borne by the 1st-9th defendants in the ordinary suit and the 6th defendant in the petition jointly and severally

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 23(3)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Land Registration ActSection 26(1)
  • Land Control Act (Cap 302)Sections 6, 8(1), 9(1)(c)(i)
  • Environment and Land Court ActSection 13(2)
  • Registration of Titles Act (Cap 282)Section 56(2)
  • Government Proceedings ActSection 13A
  • Registered Land ActSection 136
  • Law of Succession Actgrant of representation provisions

Cases cited (13)

  • Kinyanjui Kamau v George Kamau
    [2015] eKLR
  • Ndolo vs Ndolo
    [2008] 1 KLR (G & F) 742
  • Koinange & 13 others vs Charles Karuga Koinange
    1986 KLR
  • Elijah Makeri Nyang'wara V Stephen Mungai Njuguna & another
    [2013] eKLR
  • Dina Management Limited v County Government of Mombasa & 5 others
    (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023)
  • Samuel Kamere v Lands Registrar, Kajiado Civil Appeal No. 28 of 2005
    [2015] eKLR
  • Munyu Maina v Hiram Gathiha Maina Civil Appeal No. 239 of 2009
    [2013] eKLR
  • Diamond Trust Bank Kenya Limited vs Said Hamad Shamisi & 2 Others
    [2015] eKLR
  • Abel Odhiambo Were v Margaret Audi Ong'aro & another
    [2014] eKLR
  • Joseph Karua Ngareh v Mary Gathoni Kihara & 2 others
    [2018] eKLR
  • Nicholas Thuo Kabaiku v Serah Njeri Mbatia
    [2021] eKLR
  • Ndegwa (Suing as the Legal Representative of the Estate of Jedidah Wanjiku Ndegwa - DCD) v Jonada Services Limited
    (Land Case 216 of 2016) [2023] KEELC 89 (KLR) (19 January 2023)
  • Peter Mburu Echaria V Priscilla Njeri Echaria
    [2007] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act; constitutional jurisdiction under Article 23(3) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gremmo & 4 others v Bora & 14 others (Environment & Land Petition E012 of 2012 & Environment & Land Case 56 of 2011 (Consolidated)) [2025] KEELC 12 (KLR)", Case Analysis (2025). Malindi ELC 56 of 2011 (consolidated with Petition 12 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/12/eng@2025-01-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.