Yunis (Suing as a trustee for and on behalf of Suhail Shahid) & 3 others v Rengwa (Sued personally and as Executors of Estate Swalehe Mohamed) & 4 others (Environment & Land Case 167 of 2021 & 4 (CM) of 2019 (Consolidated)) [2025] KEELC 29 (KLR)
The bottom line
#A Kwale court cancelled a family's land title and a company's purchase, restoring land sold decades earlier and refunding buyers KShs 1.9 million.
What this practically means
#Executive summary
#Key legal issues
#Validity of the 1978 sale and registration to the Plaintiffs in ELC 167 of 2021
On a balance of probabilities the deceased Swalehe Mohamed sold the suit property to the 1st Plaintiff and the ensuing registration was lawful; the defendants produced no forensic or other evidence to impeach the documents
PW1 produced the sale agreement, acknowledgement notes, Land Control Board consent, transfer, registration fees receipt and land certificate. Although discrepancies in signatures and ID numbers were noted, the defendants called no handwriting expert and produced no proof of the deceased's true signature or the pre-transmission search they claimed to have conducted. The court had nothing against which to find the documents were forgeries.
Whether the rectification of the register under section 79(2) & (3) LRA was procedural
The rectification restoring the register to the deceased Swalehe Mohamed was unprocedural and unlawful; no notice of intention to rectify was issued, no errors or fraud were identified by evidence, and the green card was in effect reconstructed without compliance with section 33 or indemnity under section 81
DW3 the Land Registrar confirmed no notice of intention to rectify was issued and no application from a proprietor existed in the parcel file. He could only hazard a guess that fraud motivated the rectification, which cannot prove fraud. The reopening occurred to facilitate the 1st and 2nd Defendants' transmission, contrary to section 79 and Article 40 of the Constitution.
Whether the transmission to the 1st and 2nd Defendants was valid
The registration of the 1st and 2nd Defendants by transmission was a nullity because it was anchored on the unlawful rectification, and the property was not part of the deceased's estate at the time of succession as it had been sold and registered to the Plaintiffs decades earlier
Nothing comes out of an illegality; no entry anchored on the replaced green card can be sustained. Further, the sale and registration to the Plaintiffs predated the 2016 Kadhis Court succession proceedings, so the Rengwas had nothing to transmit. The court declined to determine the absence of a grant as academic.
Whether the 3rd Defendant was a bona fide purchaser for value without notice
The 3rd Defendant failed to prove bona fide purchaser status: no sale agreement, no proof of payment of the Kshs. 8 million consideration, no due diligence documents, and it purchased a tainted title from parties with no capacity to transfer
DW2 admitted she bought only a portion yet the transfer and title covered the entire 1.10Ha without subdivision contrary to section 42 LRA; she produced no search, no beacon certificate and no proof of payment. Her title could not be saved by indefeasibility under section 26(1)(b) as it was acquired illegally and unprocedurally.
Relief for the Plaintiffs in CMCC ELC No. 4 of 2019
Though the Deyas proved the sale agreement and payment of Kshs. 1.9 million, they were not entitled to the property or specific performance since the vendors' title was void; equity granted a refund of the purchase price despite it not being pleaded
The vendors' title derived from an irregular transmission and could pass no valid title, so specific performance could not issue for want of a valid enforceable contract. However, the money was acknowledged in writing and admitted orally as received, and it would be unconscionable to let the vendors retain it; equity intervened to order a refund.
Legal principles established
#- A registered proprietor whose title root is under challenge must go beyond the instrument of title and prove the legality of its acquisition
- A registrar's rectification materially affecting a proprietor's interest requires notice and due process under section 79 of the Land Registration Act
- Nothing comes out of an illegality; a registration anchored on an unprocedural rectification is a nullity
- A title acquired illegally, unprocedurally or through a corrupt scheme is impeachable under section 26(1)(b) even against a holder who did not participate in the vitiating conduct, and nemo dat prevents passing good title downstream
- Equity will order relief such as a refund even where the specific remedy was not pleaded, to avoid unconscionable enrichment
Court orders
#- 1.A declaration that the alleged rectification of the register under section 79(2) & 3 of the Land Registration Act No. 3 of 2012 was a nullity ab initio, devoid of procedure, illegal, unlawful and breach of Article 40 of the Constitution
- 2.A declaration that the Plaintiffs are the lawful owners of the suit property known as Kwale/Msambweni 'A'/2909
- 3.An order vesting wholly and unconditionally the suit property known as Kwale/Msambweni 'A'/2909 to the Plaintiffs
- 4.An order directing the Land Registrar Kwale to cancel the illegal entries vesting the suit property with the estate of the deceased Swalehe Mohamed, the 1st, 2nd and 3rd Defendant, and Certificate of Title held by the 3rd Defendant and reinstate the 1st and 2nd Plaintiffs as the lawful, bonafide proprietors, to be effected within 60 days of the date of judgment
- 5.No order for mesne profits
- 6.The 3rd Defendant's counterclaim dismissed with no orders as to costs
- 7.Costs of the Plaintiffs' suit in ELC 167 of 2021 payable by the 1st and 2nd Defendants
- 8.Judgment for the Plaintiffs in CMCC ELC No. 4 of 2019 against the 1st and 2nd Defendant for refund of Kshs. 1.9 Million with interest at court rates from the date of judgment, payable within 60 days
- 9.The suit against the 3rd Defendant in CMCC ELC No. 4 of 2019 dismissed with no orders as to costs
- 10.Costs of CMCC ELC No. 4 of 2019 plus interest payable by the 1st and 2nd Defendants
- 11.Leave to appeal granted to any of the parties if required
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over disputes relating to land parcel Kwale/Msambweni 'A'/2909
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yunis (Suing as a trustee for and on behalf of Suhail Shahid) & 3 others v Rengwa (Sued personally and as Executors of Estate Swalehe Mohamed) & 4 others (Environment & Land Case 167 of 2021 & 4 (CM) of 2019 (Consolidated)) [2025] KEELC 29 (KLR)", Case Analysis (2025). ELC Case No. 167 of 2021 (consolidated with Kwale CMCC ELC No. 4 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/29/eng@2025-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.