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ELCPartially AllowedELC Case No. 26 of 2023· [2025] KEELC 4330 (KLR)

Ngachulot v Sondang (Environment & Land Case 26 of 2023) [2025] KEELC 4330 (KLR)

Environment and Land Court
9 June 2025
6,007 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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The Kitale Land Court cancelled a buyer's title because he could not prove he actually paid for the land or that his documents were genuine.

What this practically means

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Executive summary

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The plaintiff sued as the registered owner of Parcel No. West Pokot/Tapach/1027, claiming he bought 12 acres out of Tapach Adjudication Section No. 337 from the defendant for Kshs. 2,250,000/= by agreement dated 3/5/2016, paid a deposit, took possession, and was registered on 8/1/2019 and issued a title deed on 28/1/2019 which contained typographical errors showing 12.14 Ha. He sought declarations of ownership, removal of a caution, rectification of the title and a permanent injunction. The defendant denied selling the land or receiving the purchase price, alleging the money went to his nephew and trustee Joel Kaptoi, that the plaintiff exploited his illiteracy (he was about eighty and could not read or write), and that the title for 12.14 Ha was fraudulently procured. He counterclaimed for eviction, cancellation of the title and an injunction. The court framed eleven issues and held that the plaintiff bore the burden of proving payment of the purchase price and the regularity of his title. The plaintiff failed to call the advocate, the maker of the agreements, Joel Kaptoi or other eyewitnesses; the agreements bore uncountersigned alterations; and he did not produce adjudication records or explain how 12 acres became 12.14 Ha or how parcel No. 337 became 1027. The defendant's plea of non-est factum was found properly pleaded and unrebutted, no reply to the defence and counterclaim having been filed. The plaintiff's suit was dismissed, the title was invalidated and ordered recalled and cancelled, the land reverted to the defendant, the plaintiff was given 90 days to vacate failing which eviction would issue, a permanent injunction was granted against re-entry, and costs were awarded to the defendant.

Key legal issues

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01

Whether the plaintiff proved payment of the purchase price and the validity of the sale agreement

Holding

The plaintiff failed to prove payment of Kshs. 2,250,000/= to the defendant; he did not call the advocate, witnesses or the maker of the agreements to corroborate payment and signature

Reasoning

The burden of proving payment rested on the plaintiff under Sections 107-109 of the Evidence Act. Payment was allegedly made to Joel Kaptoi, a third party, who was not called as a witness. The agreements bore overwriting and alterations that were not countersigned, and no forensic document examination was undertaken to prove the defendant's thumbprint or signature.

p. 7
02

Whether the title acquired by the plaintiff was lawfully, regularly and procedurally obtained

Holding

The court found the title was unprocedurally and irregularly issued, with unexplained anomalies in name, acreage and description, and invalidated it

Reasoning

Transfers during adjudication require documentation signed before a land adjudication officer, with entries in the adjudication register endorsed by the parties. The plaintiff did not produce adjudication records or call the adjudication officer or Land Registrar to explain how parcel No. 337 became 1027 or how 12 acres became 12.14 Ha, nor explain his delay in discovering the errors.

p. 10
03

Whether the defendant proved the doctrine of non-est factum in his counterclaim

Holding

The court held the doctrine was properly pleaded through particulars of fraud and taking advantage of illiteracy, and the plaintiff did not rebut it by a reply to the defence and counterclaim

Reasoning

The defendant pleaded in paragraph 4 of the defence and counterclaim that his mind did not accompany his signature, being an eighty-year-old who could neither read nor write and only thumbprinted. The plaintiff filed no reply to the defence or defence to counterclaim, so the allegations stood uncontroverted under Order 2 Rule 12 of the Civil Procedure Rules.

p. 9
04

Whether the counterclaim should succeed

Holding

The counterclaim was proved to the required standards and the defendant was granted the reliefs sought, including cancellation of title, eviction and permanent injunction

Reasoning

Having found the title irregularly procured and the plaintiff unable to demonstrate payment, lawful acquisition or procedural regularity, the court allowed the counterclaim as an independent suit and ordered the land to revert to the defendant.

p. 10

Legal principles established

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  • The burden to prove payment of the purchase price lies on the plaintiff under Sections 107-109 of the Evidence Act, and failure to prove payment could render the transfer ineffectual for lack of consideration
  • A party challenging-proof obligation: a holder of a challenged title must go beyond the instrument and prove lawful, regular and procedural acquisition with an unbroken paper trail
  • A counterclaim is an independent suit which succeeds or fails regardless of the outcome of the main suit
  • Under Section 3 of the Law of Contract Act read with Section 38 of the Land Act, a land sale agreement must be in writing, signed by the parties and attested by an independent witness
  • Once an issue of illegality is raised, a court must investigate the issue

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.The title deed issued to the plaintiff is invalidated
  3. 3.The Land Registrar is directed to recall and cancel the title deed, for the land to revert to the defendant
  4. 4.The plaintiff is directed to vacate the land within 90 days from the date of judgment, in default of which an eviction order shall issue against him at his costs and expenses
  5. 5.A permanent injunction shall issue stopping the plaintiff, his agents, servants or employees, upon eviction, from re-entering the said land
  6. 6.Costs of the suit to the defendant

Authorities

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Legislation

  • Land Control Actinapplicability to unregistered trust land under adjudication (as submitted)
  • Land Registration ActSection 80 (rectification of title)
  • Law of Contract ActSection 3
  • Land ActSection 38
  • Evidence ActSections 107-109
  • Civil Procedure RulesOrder 7 Rule 13; Order 2 Rules 3 and 12

Cases cited (24)

  • Moses Parantai and Another (Suing as the legal representatives of the estate of Sospster Mukuru Mbeere (deceased) -vs- Stephen Njoroge Macharia
    [2020] eKLR
  • Tebere Concrete C. Ltd -vs- Gichuhi & Another
    ELC Case No. 70 of 2017 [2022] KEELC 3021 [KLR]
  • Geofirey Mutie Mutunga -vs- Wilson Mutunga Mbai
    [2020] eKLR
  • Saunders (Executive of the estate of Rose Maude Gallie) -vs- Anglia Building Society
    [1970] 3 ALL ER 961
  • Gallie -vs- Lee
    [1969] 2 Ch. 17
  • Mary Ruguru Njoroge -vs- John Samuel Gathura Mbugu
    [2014] eKLR
  • Manyi Kyule vs Stephen Kalange
    [2021] eKLR
  • Jasbir Singh Rai & Others -vs- Tarlochan Singh Rai & Others
    [2014] eKLR
  • Little Africa (K) Ltd vs Andrea Mwiti Jason
    [2014] eKLR
  • Josephine Mwikali Kikenye -vs- Omar Abdallah Kombo & Others
    [2018] eKLR
  • IEBC -vs- Stephen Mutinda Mule
    (2014) eKLR
  • KBC Ltd -vs- James Karanja
    [1981] eKLR
  • Deacons EA PLC Ltd -vs- Modern Techno Fitness Gym Lab & Another
    [2021] eKLR
  • Fidelity Commercial Bank Ltd -vs- Kenya Garage Vehicle Industries Ltd
    [2017] eKLR
  • NBK -vs- Pipe Plastic Samkolit (K) Ltd
    (2003) 2 E.A 503
  • William Kagunga Karisa -vs- Cosmas Angore Enzera
    [2006] eKLR
  • Jeremiah Mucheru Ndibui -vs- David Gichuru
    [2019] eKLR
  • Pius Kimaiyo Lagat -vs- Co-operative Bank of Kenya Ltd
    [2017] eKLR
  • Munyu Maina -vs- Hiram Gathiha Maina
    [2013] eKLR
  • Macharia Mwangi Maina & Others -vs- Davidson Mwangi Kagiri
    [2014] eKLR
  • Solomon Meme Muthama -vs- Ntaari Kabutura & Land Adjudication Officer Meru
    [2001] eKLR
  • Nkarichia -vs- Magiri & Others
    Environment and Land Case E004 OF 2021 [2024] KEELC 4453 [KLR] (29th May 2024)
  • Juneja (Suing as the Legal Representative of the Estate of Hamida Amin Juneja) & another -vs- Meja & another
    Civil Appeal 35 of 2018 [2023] KECA 1241 (KLR) (6 October 2023)
  • Purple Rose Trading Company Ltd -vs- Bhano Shaashikant Jai
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to title and possession of land (Parcel No. West Pokot/Tapach/1027)

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, "Ngachulot v Sondang (Environment & Land Case 26 of 2023) [2025] KEELC 4330 (KLR)", Case Analysis (2025). ELC Case No. 26 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4330/eng@2025-06-09

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