Maxted v Kithi (Environment and Land Case E025 of 2025) [2026] KEELC 2545 (KLR)
The bottom line
#A Kenyan court removed a name from a Diani Beach land title after finding an implied trust, but foreign owners must still convert freehold to leasehold through the National Land Commission.
What this practically means
#Executive summary
#Key legal issues
#Whether an undefended suit can be granted judgment without formal proof
No - the plaintiff was bound to prove her case on a balance of probabilities even though the suit was undefended and proceeded by way of formal proof
Relying on Sections 107, 108 and 109 of the Evidence Act and the Court of Appeal authorities on burden of proof in formal proof matters, the court held that failure by a defendant to file a defence or adduce evidence does not entitle the plaintiff to judgment automatically. The plaintiff must adduce credible and believable evidence which proves the claim on a balance of probabilities even in the absence of rebuttal.
Whether the defendant held the suit property in trust for the plaintiff and whether the register should be rectified
Yes - an implied/resulting trust existed because the plaintiff sourced the purchase funds and the defendant contributed nothing, so the register could be rectified to expunge the defendant's name
The plaintiff produced a bank transfer evidencing funds from her mother used to purchase the property, and a title showing joint registration of the defendant and her son. There was also a prior judgment (ELC No. 112 of 2021) finding a trust. The court applied Sections 28, 79 and 80 of the Land Registration Act, holding that the trust was an overriding interest and that rectification was warranted since the defendant's contribution to acquisition was never established.
Whether the court could directly convert the freehold title to leasehold and issue a Certificate of Lease
No - the court could not directly convert; the statutory conversion window under the Land Regulations 2017 had lapsed, and the process for a foreigner-held freehold under Article 65 must be pursued through the National Land Commission
The court noted the plaintiff and her son remained foreign nationals with no evidence of Kenyan or dual citizenship. Under Article 65(2) land held by a foreigner automatically becomes leasehold, but the Land Regulations 2017 conversion period of five years lapsed in 2022. The individual-instigated process requires publication of notice by the National Land Commission, re-survey, surrender of title and issuance of a leasehold title. The court therefore directed service of the judgment on the Commission to facilitate conversion within 120 working days rather than granting direct conversion.
Who bears the costs of the suit
The plaintiff, having established her case, was entitled to costs from the defendant
Applying Section 27(1) of the Civil Procedure Act, costs follow the event and are at the court's discretion. Since the plaintiff successfully established her case through formal proof, the event favoured her and costs were awarded against the defendant.
Legal principles established
#- A plaintiff in an undefended suit must still prove the case on a balance of probabilities; failure by the defendant to contest does not absolve the plaintiff of that duty
- Where a joint registration is held on trust for the beneficial owner who funded the purchase, the register may be rectified to expunge the trustee's name under Sections 79 and 80 of the Land Registration Act
Court orders
#- 1.Judgment entered in favour of the Plaintiff in accordance with the prayers sought in the Plaint dated 9th December 2024 in its entirety
- 2.Order directing the Land Registrar, Kwale Land Registry, pursuant to Section 79(1) & (2) of the Land Registration Act, No. 3 of 2012, to rectify the land register for Kwale/Diani Beach Block/1497, cancel/expunge the name of Alex Ngombo Kithi and replace it with that of Daniel Thomas Ford
- 3.A copy of the Judgment to be served upon the National Land Commission to facilitate conversion of the suit property from freehold to leasehold within the next 120 working days
- 4.Costs of the suit awarded to the Plaintiff, to be borne by the Defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a land dispute concerning parcel Kwale/Diani Beach Block/1497
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maxted v Kithi (Environment and Land Case E025 of 2025) [2026] KEELC 2545 (KLR)", Case Analysis (2026). Not stated in the judgment (Plaint dated 9th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2545/eng@2026-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.