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ELCDismissedNanyuki 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)· [2026] KEELC 1896 (KLR)

Kabare v Kabare & 4 others (Environment and Land Appeal E030 of 2024) [2026] KEELC 1896 (KLR)

Environment and Land Court
25 March 2026
3,773 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Environment and Land Court at Nanyuki by Lucy N. Mbugua J against the judgment of the trial magistrate delivered on 29.11.2024 dismissing the appellant's suit in Nanyuki Magistrate's LEC Case No. 37 of 2020. The appellant, son of the 1st respondent, claimed that a share in Muramati Farmers Co-operative Society Limited transferred to him after his father's death entitled him to parcel Laikipia/Daiga/Umande Block III (Muramati)/181; that a Co-operative Tribunal award in his favour was nullified by her subsequent transfer of the land to herself; and that her subdivision of parcel 181 into parcels 431-433 and transfers to the 2nd-4th respondents during the pendency of Misc. 415 of 1987 violated lis pendens and constituted fraud, warranting cancellation of titles, rectification of the register and a permanent injunction. The court framed two issues: whether the trial court erred on lis pendens and on fraud. It held that the 1st respondent was not a party or defendant in the tribunal proceedings or the resulting decree, was never shown to have been served or aware of them, and that parcel 181 was first registered only on 8.12.1989 after the appellant's rights had not crystallized, so lis pendens did not apply. On fraud, following Vijay Morjaria, the court found the particulars not distinctly proved and that the 1st respondent, as registered owner and a beneficiary of her husband's estate, lawfully subdivided the land. Issues raised for the first time in the 4th respondent's submissions (dismissal of ELC 37 of 2020 and limitation) were disregarded for want of evidence at trial. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the doctrine of lis pendens was violated by the 1st respondent's subdivision and transfer of the suit parcels

Holding

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

Reasoning

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.

p. 6
02

Whether the appellant proved fraud and illegality against the 1st respondent

Holding

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

Reasoning

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.

p. 7
03

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

Holding

No. Issues not contested at trial and not supported by evidence tendered before the trial court cannot be tabled on appeal

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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

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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, "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.