Sang v Lagat & 2 others (Environment and Land Case E013 of 2024) [2026] KEELC 2245 (KLR)
The bottom line
#Kenya's Environment and Land Court in Kitale cancelled a land transfer made through a flawed succession process, confirming that a buyer who paid, occupied and developed land keeps enforceable rights even without a registered title.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If the 1st and 2nd defendants obtained letters of grant and their confirmation by concealing material facts and without disclosing the interests of the primary plaintiff in the suit land
- 2.If the plaintiff acquired an interest in 15 acres of Land Title No. Trans Nzoia/Maridadi/317 from the deceased by offsetting the Settlement Fund Trustees' loan through a mutual agreement
- 3.If the 1st defendant knew of and affirmed the plaintiff's interest in the agreement and transfer form dated 9/2/2010
- 4.If the plaintiff took vacant possession of and developed the 15 acres following the mutual agreement with the deceased
- 5.If the 1st and 2nd defendants deliberately failed to disclose the plaintiff's interests to the 3rd defendant while transferring Title No. Trans Nzoia/Maridadi/629
- 6.If the 1st and 2nd defendants had a duty to involve the plaintiff in the succession proceedings or disclose his interest
- 7.If the sale agreement or arrangement between the plaintiff and the deceased or the 1st defendant had any legal effect or required the estate's sanction
- 8.If the 3rd defendant was a bona fide and absolute registered owner of Title No. Trans Nzoia/Maridadi/629 without notice of the interests of the plaintiff and the 2nd defendant in the counterclaim
- 9.If the 3rd defendant pleaded and proved that the defendants in the counterclaim were trespassers
- 10.If the 2nd defendant in the 2nd counterclaim proved that he is a bona fide purchaser and occupant of the four acres
- 11.If the primary plaintiff is entitled to prayers (a), (b), (c), (d) and (e) of the plaint
- 12.If the 3rd defendant is entitled to the reliefs sought in her counterclaim
- 13.If the 2nd defendant is entitled to the reliefs sought in the 2nd counterclaim
- 14.What is the order as to costs?
Key legal issues
#Whether the plaintiff acquired a beneficial/enforceable interest in the 15 acres despite no written contract compliant with Section 3(3) of the Law of Contract Act
Yes. The oral/mutual agreement with the deceased predated 1/6/2003, so Section 3(3) did not apply; the plaintiff's payment of Kshs.158,000/= towards the loan, taking of possession, and developments constituted part performance, and the 1st defendant's 9/2/2010 agreement affirmed his interest, creating equitable interests (constructive trust/proprietary estoppel) binding as overriding interests on the land.
The court found the correspondence from 1986-2003 and the unimpeached sale agreement of 9/2/2010 established offer, acceptance and consideration plus part performance. Pre-2003 oral land contracts followed by part performance are enforceable. The defendants never pleaded or proved fraud or forgery of the receipts or letters. The 1st defendant's voluntary execution of the agreement and transfer forms affirmed the plaintiff's interest, which bound the land as an overriding interest even against the 3rd defendant's subsequent title.
Whether the 1st and 2nd defendants obtained the grant by concealing material facts
Yes. They falsely included Plot No. 317 in the succession proceedings when it was still registered in the name of the Settlement Fund Trustees and was not the deceased's free property, and never rectified the grant after perfecting the charge.
The land remained registered to the Settlement Fund Trustees until 22/1/2014; only free property forms part of an estate under Section 3 of the Law of Succession Act. Including the plot in the grant schedule without disclosure of the plaintiff's beneficial interest and without the land being the deceased's free property rendered the transmission to the beneficiaries legally flawed, so the 1st and 2nd defendants lacked capacity to convey valid title to the 3rd defendant.
Whether the 3rd defendant is a bona fide purchaser for value without notice entitled to indefeasible title
No. Her root of title was tainted by the flawed succession process, she produced no documentary trail of the transfer, and occupation by the plaintiff predated her registration.
Following Dina Management, a party must prove the acquisition was legal, formal and free of encumbrances when the root of title is challenged. The 3rd defendant produced no transfer documents, title papers or Land Control Board consents, gave no witness statement, and could not explain the occupation predating her 2022 registration. Article 40(6) does not protect unlawfully acquired property, so indefeasibility could not avail her.
Whether the plaintiff and the 2nd defendant in the counterclaim were trespassers
No. They held subsisting equitable/overriding interests predating the 3rd defendant's registration; the 3rd defendant failed to prove trespass and issued no eviction notice.
Trespass requires unauthorised entry on land in another's exclusive possession. The plaintiff was a permissive occupier as agent/caretaker from 1985 and later beneficial owner of 15 acres; the 2nd defendant in the counterclaim bought 4 acres from him in 2013. The 3rd defendant tendered no evidence of her counterclaim and complied with no eviction procedure under Sections 152A-1 of the Land Act, which also protects the right to housing under Article 43(1).
Whether the claim in adverse possession succeeded
No. Adverse possession cannot run against land registered to the Settlement Fund Trustees, and the plaintiff's claim was founded on agreement, not adversity.
Section 41 of the Limitation of Actions Act and Section 175 of the repealed Agriculture Act bar adverse possession against government land; the Trustees, as chargee, held the land until 2014. Further, a purchaser in possession under an agreement cannot claim the possession is adverse while asserting rights under the agreement; time would only run on repudiation.
Legal principles established
#- Land registered in the name of the Settlement Fund Trustees, a government entity, cannot be acquired by adverse possession under Section 41 of the Limitation of Actions Act and Section 175 of the repealed Agriculture Act
- Only free property of a deceased person forms part of their estate available for distribution under Section 3 of the Law of Succession Act; property not yet registered in the deceased's name cannot be distributed through a grant
- A claim by a party as a beneficial holder to a parcel of land registered in the name of a deceased goes to the Environment and Land Court, not the probate court
- Equitable rights of occupation and possession are overriding interests binding on the land notwithstanding registration of title in another's name
- A title flowing from a process tainted with irregularity is a nullity that cannot be cured by indefeasibility
- Fraud must be specifically pleaded and proved to a standard higher than the ordinary civil standard but below the criminal standard
Court orders
#- 1.A declaration that the transfer of Land Parcel No. Trans Nzoia/Maridadi/629 to the 3rd defendant was fraudulent, and the transfer is cancelled
- 2.A declaration that the plaintiff in the main suit is the rightful owner of 15 acres contained in Land Parcel No. Trans Nzoia/Maridadi/629
- 3.An order for the restoration of Land Parcel No. Trans Nzoia/Maridadi/629 to the plaintiff in the main suit
- 4.A permanent injunction restraining the defendants, their agents, servants or employees, from interfering with Land Parcel No. Trans Nzoia/Maridadi/629
- 5.Costs of the suit and of the counterclaims to the plaintiff in the main suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (as discussed in the judgment); original first-instance jurisdiction over land ownership, use, tenure and boundaries
Relief refused
#Declaration of ownership by adverse possession of the residual 5.3 acres of the suit land (prayer (c) of the plaint)
The court found that adverse possession does not apply to land still registered in the name of Settlement Fund Trustees, a government entity, by virtue of Section 41 of the Limitation of Actions Act and Section 175 of the repealed Agriculture Act, and that a claimant who also asserts superior rights under an agreement cannot simultaneously claim adverse possession
Reliefs sought in the 3rd defendant's counterclaim (declaration of legitimate ownership, eviction, permanent injunction)
The counterclaim was unsubstantiated; the 3rd defendant gave no witness statement in support and her title was successfully challenged as deriving from a tainted process
Reliefs sought in the 2nd defendant in the counterclaim's 2nd counterclaim (declaration that 4 acres belong to him and permanent injunction)
The court only granted the reliefs listed in favour of the plaintiff in the main suit; the four specific orders issued made no provision for the 2nd defendant in the counterclaim's declaration, and costs of the counterclaims were awarded against him to the plaintiff
Costs
Costs of the suit and of the counterclaims awarded to the plaintiff in the main suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A declaration be, and is hereby issued that the transfer of Land Parcel No. Trans Nzoia/ Maridadi/629, to the 3rd defendant, was fraudulent and is hereby cancelled.
A declaration be, and is hereby issued that the plaintiff in the main suit is the rightful owner of 15 acres contained in the Land Parcel No. Trans Nzoia/Maridadi/629.
An order of permanent injunction is granted restraining the defendants, by themselves, their agents, servants, or employees, from interfering with Land Parcel No. Trans Nzoia/ Maridadi/629.
Costs of the suit and of the counterclaims to the plaintiff in the main suit.
the 1st and 2nd defendants falsely included plot No. 317 in the application for letters of administration and in the schedule for confirmation of grant when they knew the charge had not been perfected
The court said that a constructive trust can be imported into a land sale agreement to defeat a registered title to avoid unjust enrichment.
The court said that a nullity remains a nullity, no matter how many hands it passes through.
From the foregoing case law, I do not doubt in my mind that there existed an agency relationship which subsisted even beyond the death of the deceased in 2008 till the 1st defendant confirmed the same by an agreement dated 9/2/2010.
Issues in the judgment
#The case number of the primary suit is not stated anywhere in the judgment; the first two numbered paragraphs are blank and the suit is only referred to as 'a plaint dated 2/4/2024'
The plaintiff's pleadings inconsistently date the sale agreement affirmed by the 1st defendant as '9/2/2020' in paragraph 5 of the plaint but '9/2/2010' throughout the evidence and judgment
Internal inconsistencies in dates of the certificate of confirmation of grant ('10/11/2009' in the plaint vs '10/11/2001' at P. Exhibit No. (4) and '26/10/2009' in DW1's testimony)
Inconsistencies in the plaintiff's pleaded purchase date (plaint avers possession from 1985; PW1 testified he bought the 15 acres 'in 2004')
Several case citations in the judgment contain apparent typographical errors (e.g. 'Galaxy Plaints Co. Ltd' for Galaxy Paints; '[225] KECA 1621'; 'Boniface Orebo' vs 'Boniface Oredo'; inconsistent appeal numbers '248 of 2018' and '348 of 2018' for Beatrice Okoth)
The court framed issue 2 in duplicative terms with issue 1 on concealment from the probate court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sang v Lagat & 2 others (Environment and Land Case E013 of 2024) [2026] KEELC 2245 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2245/eng@2026-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.