Cherunya & 3 others (Suing as the Legal Representative of the Estate of Kiptalam Arap Cherunya - Deceased) v Cherunya; Kithinji (Interested Party) (Environment and Land Case 15 of 2023) [2025] KEELC 7656 (KLR)
The bottom line
#A Kenyan court cancelled a land title obtained with forged documents signed in a dead man's name, restoring the land to the buyer's family.
What this practically means
#Executive summary
#Key legal issues
#Capacity of the plaintiffs to sue
The plaintiffs, as holders of letters of administration, had capacity to enforce the deceased purchaser's chose in action over the suit land.
Under Sections 79 and 82(a)-(c) of the Law of Succession Act, a personal representative must enforce causes of action surviving the deceased. The right to the suit property had not vested in either deceased party but the deceased purchaser had paid and possessed it. The defendant pleaded lack of capacity but led no evidence; parties are bound by their pleadings. The court relied on Troustik Union International and Karl Wehner Claasen on choses in action vesting in administrators.
Whether the defendant fraudulently and irregularly obtained title
Yes. The defendant forged transfer instruments in 2020 in the name of a man dead since 1982, and produced no evidence supporting his defence.
PW1, the allocating authority, confirmed the discharge of charge and transfer were never executed in favour of the defendant, and that the registered owner died in 1982, making execution of 2020 land control board and transfer documents impossible. DW1 confirmed her husband never dealt with the defendant. The defendant did not testify, file witness statements or documents; his defence remained mere statements, leaving breaks in the chain of title.
Proof of death without a death certificate
Death of John Kithinji on 20/10/1982 was proved by Gazette Notice and unchallenged testimony of his widow; no death certificate was required.
Section 85 of the Evidence Act makes a copy of the Gazette prima facie evidence. DW1 testified to the death from personal knowledge, and relationship facts may be judicially noticed under Sections 53, 54, 59 and 60. Under Section 107, it was the defendant alleging the contrary who bore the burden, and he failed to testify.
Indefeasibility of title under Section 26 of the Land Registration Act
The defendant could not invoke indefeasibility because his root of title was fundamentally defective.
Relying on Dina Management, Munyu Maina and Kemboi v Macharia, the court held that where the initial acquisition is unlawful, all subsequent titles, even to innocent purchasers, are void. A certificate of title is the end product of a process; where the process is tainted by fraud or illegality, the title is void and Section 26 protection is unavailable. The defendant produced no paper trail of acquisition.
Legal principles established
#- A personal representative is clothed with power to enforce choses in action and causes of action that survive the deceased for the benefit of the estate.
- When a title is under challenge, the holder must prove that its acquisition was legal, formal and free of encumbrances; a tainted process vitiates the resultant title.
- Written submissions cannot replace pleadings or evidence.
Court orders
#- 1.The title held by the defendant over Title No. Trans Nzoia/Mito Mbili/2 is invalidated under Section 80 of the Land Registration Act
- 2.The title register shall revert to its position as of 5/7/2017, for the estate of the late John Kithinji to regularise it, in favour of the estate of the late Kiptalam Arap Cherunya
- 3.Costs of the suit to the plaintiffs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land disputes (further amended plaint dated 5/3/2025)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherunya & 3 others (Suing as the Legal Representative of the Estate of Kiptalam Arap Cherunya - Deceased) v Cherunya; Kithinji (Interested Party) (Environment and Land Case 15 of 2023) [2025] KEELC 7656 (KLR)", Case Analysis (2025). Not stated in the judgment (further amended plaint dated 5/3/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7656/eng@2025-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.