Kabare v Kabare & 4 others (Environment and Land Appeal E030 of 2024) [2026] KEELC 1896 (KLR)
The bottom line
#The Environment and Land Court dismissed a son's bid to cancel his mother's land titles, confirming that registered owners can deal with their land unless fraud is clearly proved.
What this practically means
#Executive summary
#Key legal issues
#Whether the doctrine of lis pendens was violated by the 1st respondent's subdivision and transfer of the suit parcels
The doctrine does not apply because the 1st respondent was not a party or defendant in the tribunal proceedings or the decree in High Court Misc. 415 of 1987, was never shown to have been served or aware of them, and the suit parcel 181 did not exist when the decree was issued
The 1989 appeal before the tribunal named Muramati Co-operative Society and its management committee as appellants against James Mungai Kaburu and Simon Njuguna Kabare; the 1st respondent was not among them. The decree of 30.5.1990 in Misc. 415/1987 captured only those parties. Parcel 181 was first registered on 8.12.1989, after the decree's subject matter arose, so the appellant's rights had not crystallized. Without service or notice, reliance on lis pendens was untenable.
Whether the appellant proved fraud and illegality against the 1st respondent
No. Fraud must be distinctly pleaded and proved; as the registered owner of parcel 181, the 1st respondent was entitled to deal with it and her subdivision was not fraudulent
Although particulars of fraud were pleaded, no sufficient evidence linked the tribunal award to parcel 181, the award being silent on share and property. The 1st respondent was the second registered proprietor from 8.12.1989 and, as a beneficiary of her late husband's estate, was not barred from claiming the society shares and subdividing to beneficiaries. The trial court's finding of no fraud was therefore affirmed.
Whether issues raised for the first time in the 4th respondent's submissions (res judicata as to ELC 37 of 2020 and limitation) could be considered
No. Issues not contested at trial and not supported by evidence tendered before the trial court cannot be tabled on appeal
The 4th respondent raised in submissions only that the appellant's suit ELC No. 37 of 2020 had been dismissed and that the decrees were stale under the Limitation of Actions Act. Having tendered no evidence on these points before the trial court, such assertions were disregarded by the appellate court.
Legal principles established
#- Issues not made a subject of contest by the parties or supported by evidence at trial cannot be raised for the first time on appeal in submissions
- The purpose of lis pendens is to preserve suit property until the suit is finally determined or the court gives orders/terms on its dealing
- Fraud must be specifically pleaded, its particulars stated on the face of the pleading, and distinctly proved; it cannot be left to inference
- A first appellate court must reconsider and evaluate the evidence afresh while making due allowance for not having seen or heard the witnesses
Court orders
#- 1.The appeal is not merited and is hereby dismissed with costs to the respondents
- On appeal from
- Nanyuki Magistrate's Court (Environment and Land)
- Nanyuki Magistrate's LEC Case No. 37 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the magistrate's court (Environment and Land Court), appeal on grounds that the trial magistrate erred in law and fact
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabare v Kabare & 4 others (Environment and Land Appeal E030 of 2024) [2026] KEELC 1896 (KLR)", Case Analysis (2026). Nanyuki Environment and Land Court Appeal (Memorandum of Appeal dated 16.12.2024, from Nanyuki Magistrate's LEC Case No. 37 of 2020; plaint dated 12.8.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1896/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.