In re Estate of the Late Joshua Kipkorir Bitok - Deceased (Environment and Land Case E008 of 2022) [2025] KEELC 6640 (KLR)
The bottom line
#Buyers who purchased land from a deceased registered owner won their ownership claim, but title deeds must wait until the succession court confirms the grant.
What this practically means
#Executive summary
#Key legal issues
#Validity of the sale agreements with the deceased
All three plaintiffs entered into valid sale agreements with the deceased complying with the pre-2003 Section 3(3) of the Law of Contract Act; allegations of forgery were unsupported by evidence.
The applicable law was the pre-2003 version of Section 3(3) of the Law of Contract Act, requiring only a written memorandum signed by the party to be charged. The agreements were all signed by the seller and purchasers. Defendants' allegations of forgery were unsupported; no document examiner was called and no contrary evidence tabled. The court found the agreements valid.
Extent of the 1st Plaintiff's entitlement
The 1st Plaintiff purchased and paid for 11.5 Acres, leaving a balance of KShs. 7,244/-; she is entitled to the full acreage on payment of the balance, or to a portion commensurate with what she has paid.
The court traced the payments: KShs. 300,000 under the first agreement, KShs. 275,000 under the acknowledgment of 2nd September 1998, and KShs. 165,256 paid to AFC as found by the Uasin Gishu Land Disputes Tribunal, totalling nearly the full price of KShs. 747,500/-. The allegation that the additional 1.5 Acres note was not made by the deceased was unproved.
Whether beneficiaries' consent was required for the deceased's sale of the land
No; the land belonged to the deceased who could freely deal with it as he wished, and no claim of customary trust was made requiring the children's consent.
Relying on Munyao J's holding in Oganga v Orangi, the court held that a parent is under no legal obligation to consult children before disposing of free land, and children cannot reverse a sale freely entered into by their late father. No customary trust was pleaded or proved, and the 2013 family agreement was neither produced in evidence nor signed by the deceased.
Whether the 2nd Defendant witnessed the revocation agreement of 13th February 2002
The court disbelieved the 2nd Defendant's denial; the advocate who drafted and attested the agreement testified that the 2nd Defendant was the witness for his father.
PW4, the advocate who drafted and attested the second agreement, testified that the 2nd Defendant was his father's witness. The 2nd Defendant never reported the alleged forgery of his signature nor called a document examiner. The first agreement was revoked and the second, reducing the acreage to 7 Acres and the price to KShs. 485,000/-, which the 2nd Plaintiff paid in full, is operational.
Whether permanent injunction should issue
Yes; having proved their entitlement, the plaintiffs were entitled to a permanent injunction restraining the defendants from interfering with their quiet possession.
There have been actual clashes over occupation and use of the land, including the 2nd Defendant's charge and conviction for destroying the 3rd Plaintiff's fence. To preserve peace and allow the plaintiffs quiet and peaceful possession without threat of injury or loss, the defendants were restrained from accessing or utilising the plaintiffs' portions.
Costs of the suit
The plaintiffs, being successful, were awarded the costs of the suit.
Costs follow the event under Section 27 of the Civil Procedure Act. The plaintiffs demonstrated they deserved to be declared the rightful proprietors of their respective portions, and the defendants failed to defend their claim, so no good reason existed to depart from the general rule.
Legal principles established
#- Under the pre-2003 version of Section 3(3) of the Law of Contract Act, a contract for the disposition of an interest in land is enforceable where there is a written memorandum signed by the party to be charged, even without attestation, and part performance by a purchaser in possession cures the absence of writing.
- The owner of registered land is free to dispose of it without consulting or obtaining the consent of his children/beneficiaries, and children cannot reverse a sale freely entered into by their late parent where no customary trust is claimed.
- Allegations of forgery must be proved by evidence; a party alleging a forged signature should call a document examiner, and failing which the court will not accept the allegation.
- Costs follow the event and the successful party is entitled to costs unless there is good reason to depart from the general rule.
Court orders
#- 1.A declaration that the 1st, 2nd and 3rd Plaintiffs are the legal and lawful owners of their respective portions of land within the parcel known as Uasin Gishu/Sosiani/77
- 2.The 1st Plaintiff shall, upon payment of the balance of KShs. 7,244/- to the estate of the late Joshua Kipkorir Bitok, be entitled to 11.5 Acres of the land known as Uasin Gishu/Sosiani/77; in the alternative, she be allocated a parcel commensurate with the amount paid under the agreements dated 9th July 1998 and 2nd September 1998
- 3.The 2nd and 3rd Plaintiffs are entitled to portions measuring 7 Acres and 5 Acres respectively, which they paid for in full
- 4.A permanent injunction restraining the defendants, their servants, agents and/or assigns from interfering with the plaintiffs' quiet possession, use and enjoyment of their respective parcels within Uasin Gishu/Sosiani/77
- 5.The Plaintiffs shall have the costs of this suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) of the Constitution, implied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of the Late Joshua Kipkorir Bitok - Deceased (Environment and Land Case E008 of 2022) [2025] KEELC 6640 (KLR)", Case Analysis (2025). ELC Case (Eldoret), Plaint dated 1st February 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6640/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.