Kanderi v Kiki Investment Limited & 2 others; Nadupa Housing Limited (Interested Party) (Environment and Land Case 21 of 2019) [2025] KEELC 8606 (KLR)
The bottom line
#A Kajiado court dismissed a landowner's fraud claim, confirming the registered buyer's title and ordering the plaintiff to vacate within 90 days.
What this practically means
#Executive summary
#Key legal issues
#Adoption of AJS findings as a court order
The AJS report was not adopted because the Plaintiff was denied a fair hearing, breaching natural justice.
Article 159(2)(c) mandates promotion of AJS, but Article 159(3) subjects it to constitutional limits. The AJS minutes showed neither the Plaintiff nor the 2nd Defendant were present at the deliberations, and the Plaintiff deposed she was surprised by the meeting and report. Following JMK v MWM and Kamau v County Government of Trans-Nzoia, decisions of an AJS process cannot be imposed on a dissenting party where natural justice was violated.
Validity and breach of the oral sale contract
A valid oral contract existed (pre-2003, so section 3(3) did not apply) and the 2nd Defendant substantially performed; no breach was established.
The agreement was concluded in 1992, before section 3(3) of the Law of Contract Act came into effect, so the writing requirement did not apply. Payments comprising settlement of the AFC loan, subdivision fees and purchase consideration collectively showed the Plaintiff received the full benefit contemplated. The alleged arrears were unsupported by credible proof and the Court found the transaction was fully executed.
Proof of fraud against the registered proprietor
Fraud was not proved to the required strict standard; the 1st Defendant's title is indefeasible under section 23(1) of the Registration of Titles Act.
The Plaintiff pleaded forgery and collusion but produced no expert handwriting or forensic evidence; the Land Registrar's failure to produce documents raised questions but absence of production alone does not establish fraud; the Land Control Board minutes were not produced by either side; and the Plaintiff's own conduct in accepting payments undermined her allegations. Suspicion and conflicting accounts cannot impeach a registered title.
Interested Party's ownership of 80 acres
The Interested Party's interest, founded on the valid 1st Defendant title, is protected by indefeasibility and finality of registered interests.
Having found the root title lawful and regularly acquired, subsequent dealings based on it are equally unimpeachable. No legal or equitable basis was found to disturb the Interested Party's ownership of the 80 acres purchased from the 1st Defendant.
Counterclaim reliefs including mesne profits
Declaration, injunction and eviction were granted, but mesne profits and general damages failed for want of strict proof.
With the title upheld, the declaration and permanent injunction followed as a matter of law, and eviction was the natural consequence. However, no valuation reports, rental assessments or accounting evidence quantified the alleged loss, so mesne profits could not be granted in the abstract; general damages were also dismissed.
Legal principles established
#- A registered proprietor's title is conclusive and may only be impeached on the ground of fraud or misrepresentation to which the proprietor is proved to be a party.
- Allegations of fraud must be strictly proved; something more than a mere balance of probabilities is required.
- Section 3(3) of the Law of Contract Act does not apply to oral contracts for sale of land concluded before it came into force; section 3(7) makes an exception for oral contracts coupled with part performance.
- AJS or traditional dispute resolution findings cannot be imposed on a party who did not participate; natural justice requires hearing a person likely to be adversely affected.
- Mesne profits must be strictly proved with evidence of actual loss; they cannot be granted in the abstract.
Court orders
#- 1.The Plaintiff's claim dated 8th March 2019 (as amended) is dismissed in its entirety
- 2.The registration of the title of parcel Kajiado/Delalekutuk/3649 in favour of the 1st Defendant is affirmed and declared valid, binding and indefeasible
- 3.It is declared that the 1st Defendant is the lawful and absolute proprietor of Kajiado/Delalekutuk/3649
- 4.A permanent injunction is issued restraining the Plaintiff, her agents, servants, employees or any person claiming under her, from entering upon, remaining on, trespassing, cultivating, erecting structures, alienating, disposing of, or otherwise interfering with the 1st Defendant's possession of Kajiado/Delalekutuk/3649
- 5.The Plaintiff is ordered to vacate Kajiado/Delalekutuk/3649 within ninety (90) days from the date of the judgment
- 6.Should the Plaintiff fail to vacate within the time prescribed, the 1st Defendant is at liberty to evict her with assistance of the area OCS or relevant authority
- 7.The claim by the 1st and 2nd Defendants for mesne profits is dismissed for lack of proof
- 8.The claim for general damages is dismissed
- 9.The 1st and 2nd Defendants are awarded costs of the suit and counter-claim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over disputes relating to title to land (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanderi v Kiki Investment Limited & 2 others; Nadupa Housing Limited (Interested Party) (Environment and Land Case 21 of 2019) [2025] KEELC 8606 (KLR)", Case Analysis (2025). ELC Case of 2019 (Kajiado) - land dispute over Kajiado/Delalekutuk/3649. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8606/eng@2025-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.