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ELCPartially AllowedKitale ELC Case (No. not stated in judgment)· [2025] KEELC 6723 (KLR)

Singoei & 3 others (Suing on their own behalf and on behalf of 57 others) v Marete & 2 others (Environment and Land Case 48 of 2021) [2025] KEELC 6723 (KLR)

Environment and Land Court
1 October 2025
18,554 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~74 min to read original · ~4 min brief

The bottom line

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A Kenyan court invalidated land sale agreements signed without all co-owners' consent, but ordered the sellers to refund buyers rather than let them keep the money.

What this practically means

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Executive summary

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By an amended amended plaint dated 3/11/2023, 56 plaintiffs (later 57) sued over L.R. No. 13420 (Waigama Farm), Kitale, registered in 1990 in the names of the late Erastus Kirera Marete, Richard Gathogo (2nd defendant) and Reuben Wairichu (3rd defendant) as tenants in common in equal shares. The plaintiffs sought surrender of the original title to facilitate issuance of titles to them, or alternatively a declaration of constructive trust and subdivision, having purchased portions from individual co-owners, paid consideration and taken vacant possession. The 1st defendant counterclaimed for vacant possession of 10 acres and a declaration limiting the 57th plaintiff to 20 acres; the 2nd defendant counterclaimed for outstanding purchase price, eviction from 49.1 acres and general damages for trespass. The 3rd defendant did not oppose titling. The court framed nine issues. It held that the 4th plaintiff lacked leave to sue representatively and struck out the claims of the 5th to 57th persons, since leave of court, not party consent, confers representative capacity. On the title, it found the land held in tenancy in common in equal shares, as parol evidence and unregistered documents could not vary the certificate of title; none of the co-owners obtained the consent of the others to the sale agreements, which were therefore invalid and unenforceable, so no constructive trust arose. Neither defendant proved trespass. Applying the relaxed ex turpi causa rule to prevent unjust enrichment, the court declared the co-ownership, invalidated the sale agreements, ordered refund of consideration to genuine purchasers with vacatur in default after three months, and ordered each party to bear its own costs.

Key legal issues

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01

Representative capacity of the 4th plaintiff

Holding

The 5th to 57th persons were not properly joined; the 4th plaintiff's purported representative capacity was struck out

Reasoning

Order 1 Rule 8 of the Civil Procedure Rules requires leave of court for a representative suit. No leave was sought or obtained; the names, particulars and causes of action of the 57 persons were not pleaded in the body of the plaint, and the amended authority to sue was a mere photocopy with superimposed names, amounting to misrepresentation. Parties by consent cannot confer jurisdiction or leave to sue representatively.

p. 19
02

Ownership status of the suit land

Holding

L.R. No. 13420 was held by the three registered proprietors as tenants in common in equal shares

Reasoning

The 1990 certificate of title described the owners as tenants in common in equal shares. Under Sections 101-104 of the Registered Land Act (repealed) and Section 91 of the Land Registration Act, any contrary arrangement on defined shares had to be registered by instrument. The defendants produced no registered instrument defining shares, and parol evidence cannot vary the title.

p. 24
03

Validity of the plaintiffs' sale agreements and constructive trust

Holding

The sale agreements were invalid and unenforceable for lack of consent of all three tenants in common; no constructive trust arose

Reasoning

All plaintiffs dealt with individual co-owners without the consent of the others, contrary to Section 103(2) of the Registered Land Act. An illegal contract cannot be enforced. Constructive trust requires a valid and enforceable agreement; since the agreements suffered from illegality, the doctrine could not be invoked in the plaintiffs' favour. The court nevertheless relaxed the ex turpi causa rule to order refunds to prevent unjust enrichment.

p. 26
04

Trespass counterclaims

Holding

Neither the 1st nor 2nd defendant proved trespass

Reasoning

The 2nd defendant did not identify the trespassers on his alleged 49.1 acres, particulars of encroachment, or any surveyor's evidence locating the land on the ground. The 1st defendant produced no survey report showing encroachment by the 57th plaintiff and admitted no demand letter or police report on the alleged forgery.

p. 11

Legal principles established

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  • Leave of the court, not party consent, is mandatory before a suit may be commenced in a representative capacity
  • A co-owner who is a tenant in common cannot deal with the property without the consent of the other co-owners
  • A certificate of title showing tenancy in common in equal shares cannot be varied by parol evidence of informal agreements on shares
  • Courts may relax the ex turpi causa/pari delicto rule to prevent unjust enrichment of parties who received consideration under illegal contracts

Court orders

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  1. 1.Struck out the 4th plaintiff's purported capacity to sue on behalf of the unpleaded 57 persons with no orders as to costs
  2. 2.A declaration that the late Erastus Marete, Austin Richard Gathogo and Reuben Wairichu are registered as proprietors of L.R. No. 13420 (Original No. 5779/3 and 2198/1) as tenants in common in equal shares, and that any sale of portions by any one of them to third parties required the consent or authority of the other two tenants in common
  3. 3.A declaration that the plaintiffs' sale agreements are invalid and unenforceable in law in the absence of signatures, consent or approval by the three tenants in common at their execution
  4. 4.Plaintiffs who genuinely bought and were granted vacant possession by any of the three tenants in common are entitled to a full refund of the consideration from the individual tenant in common with whom they dealt, in the absence of any agreement to regularise the sale and occupation within 3 months
  5. 5.Upon refund of the full consideration and in the absence of an agreement to regularise the occupation, the bona fide plaintiffs shall vacate the suit parcel, in default of which the three tenants in common shall issue an eviction notice in accordance with the law
  6. 6.Each party to bear its own costs for the suit
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (Section 3 invoked by the 1st defendant on submissions); Article 159 of the Constitution invoked

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, "Singoei & 3 others (Suing on their own behalf and on behalf of 57 others) v Marete & 2 others (Environment and Land Case 48 of 2021) [2025] KEELC 6723 (KLR)", Case Analysis (2025). Kitale ELC Case (No. not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6723/eng@2025-10-01

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