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Case Brief · caselaw.co.ke
ELCAllowedNot stated in the judgment (further amended plaint dated 5/3/2025)· [2025] KEELC 7656 (KLR)

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)

Environment and Land Court
5 November 2025
4,598 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiffs, joint legal representatives of the estate of Kiptalam Arap Cherunya, sued the defendant, seeking declarations that his acquisition and registration of Title No. Trans Nzoia/Mito Mbili/2 was fraudulent, illegal and void, that the land belongs to their father's estate, and for cancellation of the title and rectification of the register. Their case was that the deceased had lawfully purchased the land from the original allottee, John Kithinji, who died on 20/10/1982 before transfer, and that in 2020 the defendant forged transfer instruments in the name of the long-deceased owner to obtain title. With leave, the plaintiffs joined Hellena Kithinji, John Kithinji's legal representative, as an interested party; she confirmed the sale to the deceased and denied any dealing with the defendant. The defendant, though represented, did not testify or file witness statements or documents. The court framed four issues: the plaintiffs' capacity to sue, proof of fraud, entitlement to relief, and costs. It held that as personal representatives the plaintiffs could enforce the deceased's chose in action; that the death of John Kithinji was proved by Gazette Notice and unchallenged testimony without a death certificate; and that the defendant, whose title was challenged, failed to prove a regular, unbroken chain of acquisition, and could not invoke Section 26 indefeasibility where the process was tainted. Under Section 80 of the Land Registration Act, the court invalidated the defendant's title, ordered the register to revert to its position as of 5/7/2017 for regularisation in favour of the estate of Kiptalam Arap Cherunya, and awarded costs to the plaintiffs.

Key legal issues

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01

Capacity of the plaintiffs to sue

Holding

The plaintiffs, as holders of letters of administration, had capacity to enforce the deceased purchaser's chose in action over the suit land.

Reasoning

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.

p. 6
02

Whether the defendant fraudulently and irregularly obtained title

Holding

Yes. The defendant forged transfer instruments in 2020 in the name of a man dead since 1982, and produced no evidence supporting his defence.

Reasoning

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.

p. 8
03

Proof of death without a death certificate

Holding

Death of John Kithinji on 20/10/1982 was proved by Gazette Notice and unchallenged testimony of his widow; no death certificate was required.

Reasoning

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.

p. 7
04

Indefeasibility of title under Section 26 of the Land Registration Act

Holding

The defendant could not invoke indefeasibility because his root of title was fundamentally defective.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 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. 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

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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, "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.