Mbui & another (Suing on Behalf of the Estate of the Deceased Richard Mbui Ndavi) v New Akamba Unity & 3 others (Environment and Land Case 128A of 2018) [2025] KEELC 7318 (KLR)
The bottom line
#The Environment and Land Court in Kakamega dismissed a family's bid to cancel a land title, ruling that fraud must be strictly proved and that it cannot overturn a High Court succession order.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st defendant acquired the registration of the suit property lawfully
- 2.Whether the plaintiffs deserve the prayers sought in the plaint
Key legal issues
#Whether the 1st defendant lawfully acquired registration of the suit property
Yes. Registration was effected through transmission pursuant to a confirmed grant in Machakos Succession Cause No. 499 of 2007, endorsed by the probate court in the presence of the plaintiffs and beneficiaries; no fraud or illegality was proved.
The court found it common ground that the transfer was predicated on the confirmed grant which the beneficiaries, including the plaintiffs, endorsed in court. The plaintiffs signed the transfer forms and refused the balance of the purchase price. Their claim of inducement was rejected since they sold out of genuine financial need. The confirmed grant awarding the property to the 1st defendant remains in force, so the registration rests on a lawful court order and the title is protected under section 26 of the Land Registration Act.
Whether the plaintiffs were entitled to the declarations, rectification and injunction sought
No. The suit was dismissed because the registration was based on a lawful court process and the court cannot review or overturn the confirmation of grant.
The court held that since the title flowed from a lawful confirmation of grant of the High Court which had not been set aside or reviewed, cancelling it would amount to sitting on appeal over that order. The plaintiffs' grievance about the distribution in the confirmed grant belonged to the succession proceedings, not this court. Consequently none of the prayers in the plaint could issue.
Legal principles established
#- A title may be challenged where it was acquired illegally, unprocedurally or through a corrupt scheme, or where the proprietor is party to fraud or misrepresentation
- Where a registered proprietor's root of title is challenged, the proprietor must prove the legality of the acquisition beyond the title instrument
- Allegations of fraud must be pleaded with precision and strictly proved to a standard higher than balance of probabilities but below beyond reasonable doubt
- An Environment and Land Court cannot cancel a title founded on a subsisting order of confirmation of grant of the High Court as that would amount to sitting on appeal over it
Court orders
#- 1.The plaintiffs' suit is dismissed
- 2.Costs of the suit awarded to the 1st defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (equal status to the High Court) over land title disputes
Relief refused
#Declaration that the sale agreement and transfer of Athi River/Athi River Block 5/164 are illegal, null and void
Plaintiffs failed to prove fraud or illegality; registration was pursuant to a confirmed grant in Succession Cause No. 499 of 2007 which remains in force
Order compelling the 2nd defendant to rectify the land register and vesting the suit property in the plaintiffs
Court lacks power to cancel a title founded on an order of confirmation of grant of the High Court; doing so would amount to sitting on appeal
Permanent injunction restraining the 1st defendant from dealing with the suit property
Suit dismissed in its entirety; no finding of fraud or unlawful acquisition
Costs
Suit dismissed with costs to the 1st defendant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As the defendant obtained registration of the suit property through transmission, upon succession having been done in the presence of the plaintifis and his family members, I find and hold that the plaintifis failed to prove fraud.
this court having the same status as the high court, has no power to cancel the title for the suit property as that would amount to sitting on appeal of the order of confirmation of grant from the High Court
I find no merit in the plaintifis' case which I hereby dismiss with costs to the 1st defendant.
It is so ordered.
Issues in the judgment
#Judgment refers to DW1 in paragraph 49 as 'he' although DW1 was Salome Syomweu, a female director of the 1st defendant; the evidence attributed to DW1 (signing forms at night) was actually given by PW1
Plaintiffs pleaded and testified the deposit paid was Kshs. 400,000/= and elsewhere Kshs. 470,000/=; PW1 conceded on cross-examination that Kshs. 470,000/= was paid
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbui & another (Suing on Behalf of the Estate of the Deceased Richard Mbui Ndavi) v New Akamba Unity & 3 others (Environment and Land Case 128A of 2018) [2025] KEELC 7318 (KLR)", Case Analysis (2025). Not stated in the judgment (Plaint dated 28th October 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7318/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.