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ELCPartially AllowedBungoma ELC Case (consolidated with Bungoma ELC Case No. 3 of 2012)· [2025] KEELC 8422 (KLR)

Sumbule v Makayo & another (Enviromental and Land Originating Summons 36 of 2011) [2025] KEELC 8422 (KLR)

Environment and Land Court
4 December 2025
ECE.C. Cherono
2,541 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court upheld a 1999 land sale agreement, declaring the buyer entitled to the land, but left estate distribution matters to the probate court.

What this practically means

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Executive summary

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The Plaintiff, by Originating Summons dated 28 April 2011, sought declaration as bona fide purchaser for value of LR No. E.Bukusu/W.Sang'alo/1531, inclusion as a beneficiary in the estate of Makayo Kituyi Kimusare, and an order compelling the 1st Defendant, upon confirmation, to transfer the land to him. He claimed to have bought 4.01 hectares from the 2nd Defendant under an agreement dated 15 November 1999 at Kshs.620,000/=, taking possession in 2000. The suit was consolidated with Bungoma ELC Case No. 3 of 2012, in which the Defendants sought nullity of the sale and eviction. The court framed two issues: validity of the 1999 agreement and appropriate reliefs. It found that neither party produced title documents, but uncontroverted evidence (transfer by transmission and Land Control Board consent) showed registration in Joseph Simiyu Makayo's name, and the succession record showed the vendor held a beneficial interest capable of transfer. Forgery allegations were unsupported by expert evidence. Applying the law as it stood (Legal Notice 189/2002 and section 3(7) of the Law of Contract Act), no attested vendor signature was required; taking vacant possession consummated the sale. The Defendants' decades-long acquiescence, evidenced by their awareness of the Plaintiff's open occupation since 2000, further defeated their claim. The court held that it could not adjudicate estate distribution, that being the probate court's province. Only prayer 1 was granted: a declaration that the Plaintiff is entitled to the suit land, plus costs of the suit.

Key legal issues

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01

Validity of the sale agreement dated 15/11/1999

Holding

The agreement was valid; the vendor had a beneficial interest capable of transfer and the plaintiff took possession in good faith

Reasoning

No certificate of title or official search was produced by either side, but uncontroverted documentary evidence (transfer by transmission and LCB consent) showed registration in the name of Joseph Simiyu Makayo. The forgery allegations were unsupported. The law then in force required no attested vendor signature, and the plaintiff took vacant possession in 2000, which consummated the transaction. The defendants' acquiescence over the years undermined their case.

p. 4
02

Whether the plaintiff could be included as a beneficiary in the deceased's estate

Holding

No - the ELC lacks jurisdiction to determine estate distribution or beneficiaries

Reasoning

Relying on the decision in Bungoma P&A No. 87 of 2006 and Isaac Kinyua v. Hellen Kaigongi, the court held that determining estate assets, survivors and beneficial interests is the province of the probate court under the Law of Succession Act. Granting prayers 2 and 3 would encroach on the succession court's jurisdiction, so only the declaration of entitlement was granted.

p. 5
03

Whether the defendants' counterclaim for nullity and eviction succeeds

Holding

It fails as unsupported by evidence

Reasoning

Both DW1 and DW2 acknowledged the plaintiff's open occupation since 2000; DW2 lived on an adjacent parcel. Their claim of unawareness and forgery was implausible and unsupported by expert evidence, so the court found the plaintiff's possession was pursuant to a good-faith transaction and dismissed the defendants' claim.

p. 5

Legal principles established

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  • At the material time, a land sale agreement did not require an appended vendor's signature or attestation; an acknowledgment note by the vendor or his representative, coupled with taking of vacant possession, sufficed
  • A party who acquiesces to a state of affairs cannot later invoke technicalities to defeat accrued rights
  • The probate court's mandate is limited and does not extend to determining issues of ownership of property

Court orders

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  1. 1.Declaration that the Plaintiff is entitled to the suit land LR No. E.Bukusu/W.Sang'alo/1531 (prayer number 1 only)
  2. 2.Plaintiff awarded the costs of the suit

Authorities

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Legislation

  • Law of Succession Act (Cap 160)Section 45
  • Law of Contract ActSection 3(7)
  • Legal Notice No 189/2002
  • Evidence ActSections 107-109
  • Constitution of KenyaArticle 162(2)
  • Environment and Land Court ActSection 13

Cases cited (6)

  • Mbuthia Macharia Vs. Annah Mutua Ndwiga & Anor
    [2017] eKLR
  • Chase International Instrument Corporation Anor Vs. Laxman Keshra & Others
    [1978] KLR 143 (1977-80) 1 KLR 891
  • Ochier & Another vs. Okoth & Another
    (ELCOS E024 of 2022) 2025 (KEELC) 90(KLR)
  • Arthi Highway Developers Ltd v. West End Butchery Ltd & Others
    [2015] eKLR
  • Steadman vs. Steadman
    [1976] A.C. 536, 540
  • Isaac Kinyua & 3 Others v. Hellen Kaigongi
    [2018] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and section 13 of the Environment and Land Court Act

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, "Sumbule v Makayo & another (Enviromental and Land Originating Summons 36 of 2011) [2025] KEELC 8422 (KLR)", Case Analysis (2025). Bungoma ELC Case (consolidated with Bungoma ELC Case No. 3 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8422/eng@2025-12-04

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