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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 4249 (KLR)

Barake (Suing as the legal representative of the Late Jones Gekara Barake) v Ole Partungas & another (Environment and Land Case 47 of 2024) (Environment and Land) [2026] KEELC 4249 (KLR)

Environment and Land Court
9 July 2026
7,649 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Naivasha cancelled a land title obtained through a dead man's registration, ruling the family who farmed the land for decades is its true owner.

What this practically means

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Executive summary

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The Plaintiff, widow and administrator ad litem of the estate of Jones Gekara Barake, sued the 1st Defendant, Santa Ole Partungas, and the County Land Registrar, Naivasha, seeking a permanent injunction, a declaration that the estate owns land originally allocated as Ol Jorai Settlement Scheme Phase I Plot No. 92 (now Naivasha/Ol Jorai Phase 1/359), and cancellation of the title held by the 1st Defendant. She claimed her late husband was allocated Plot No. 92 in 1996 and the family occupied and developed the land from 2000, but the 1st Defendant procured a title in 2020 through transmission from a deceased allottee. The 1st Defendant entered appearance but filed no defence and adduced no evidence. The 2nd Defendant, the Land Registrar, denied involvement, relying on the Green Card showing first registration to Levionka Ole Pantungas on 29th June 2018 and transmission to the 1st Defendant on 27th July 2020, and raised Section 13A of the Government Proceedings Act. A court-ordered inspection by the Land Adjudication and Settlement Officer confirmed the Plaintiff's long occupation and revealed the allottee Lelionka Ole Partungas had accepted the offer and paid in August 2018 despite dying in November 2017, and that Plot No. 359 was never discharged by the Settlement Fund Trustees. The court held the 1st Defendant's title was acquired irregularly, illegally and constructively through fraud, lost Article 40 protection, and was defeated by the Plaintiff's overriding interest from over two decades of occupation. Judgment was entered for the Plaintiff against the 1st Defendant: declaration of ownership in favour of the estate, cancellation of the title and rectification of the register within 30 days, permanent injunction, and costs to the Plaintiff at a lower scale payable by the 1st Defendant.

Key legal issues

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01

Whether the 1st Defendant's title was fraudulently or irregularly acquired

Holding

The title was acquired irregularly, illegally and constructively through fraud: the root registration was of a person (Lelionka Ole Partungas) already deceased, and the mandatory SFT discharge and ground-verification processes were skipped; the title is therefore liable to cancellation.

Reasoning

Official records showed the first registered owner accepted the offer and paid in August 2018 yet died in November 2017; a deceased person lacks capacity to accept a land offer. The Land Settlement Officer confirmed Plot No. 359 was never discharged by the SFT and the mandatory 2015 circular requiring a ground visit was ignored. The 1st Defendant filed no defence or evidence, so the Plaintiff's evidence stood uncontroverted and the root of title was fundamentally tainted.

p. 11
02

Whether the Plaintiff's long occupation established an overriding interest

Holding

The Plaintiff's continuous, exclusive and open occupation and development for over two decades constituted an overriding interest under Section 28(h) of the Land Registration Act that binds the land and overrides the defective title; the court also invoked the doctrine of adverse possession under Section 7 of the Limitation of Actions Act.

Reasoning

The court-ordered site inspection verified old structures, mature trees and cultivation evidencing decades of occupation, which amounted to constructive notice to the world. The Supreme Court's decision in Shah v Mombasa Bricks & Tiles confirms overriding interests, including constructive trusts, defeat registered titles. Occupation exceeding the 12-year statutory threshold extinguished the registered title.

p. 12
03

Whether the suit was procedurally incompetent against the 2nd Defendant

Holding

The suit against the 2nd Defendant was procedurally incompetent for non-compliance with the 30-day notice under Section 13A of the Government Proceedings Act, but this could not defeat the suit since the Land Registrar is a necessary party for executing cancellation and rectification of the register.

Reasoning

No proof of the statutory notice was adduced, rendering the claim against the Registrar defective. However, only the Land Registrar holds the statutory power to open Green Cards, issue titles, alter the register or implement a cancellation order; misjoinder or non-joinder cannot defeat the suit, so the Registrar remains a necessary party for execution of the remedies.

p. 13

Legal principles established

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  • A registered proprietor whose root of title is under challenge must go beyond the instrument of title and prove the legality of the acquisition
  • A title that fails the standards of Article 40(6) of the Constitution, having been acquired illegally, unprocedurally or through a corrupt scheme, is not indefeasible
  • Fraud in civil matters must be pleaded and strictly proved to a standard higher than a balance of probabilities

Court orders

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  1. 1.A declaration that the estate of the late Jones Gekara Barake is the lawful allottee and beneficial owner of all that parcel of land originally known as Ol Jorai Settlement Scheme Phase I Plot No. 92, now registered as Naivasha/Ol Jorai Phase 1/359 measuring 1.17 Hectares
  2. 2.The County Land Registrar, Naivasha, to within 30 days of the judgment cancel the Title Deed issued in respect of Land Parcel No. Naivasha/Ol Jorai Phase 1/359 currently held in the name of Santa Ole Partungas, and rectify the Land Register/Green Card to reflect the Estate of Jones Gekara Barake as the lawful proprietor
  3. 3.An order of Permanent Injunction restraining the 1st Defendant, his agents, servants, and/or any person claiming under him from selling, transferring, charging, disposing of, or in any other manner interfering with the Plaintiff's quiet possession and occupation of Land Parcel No. Naivasha/Ol Jorai Phase 1/359
  4. 4.Costs of the suit awarded to the Plaintiff, at a lower scale, to be paid by the 1st Defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes); not expressly stated in the judgment

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, "Barake (Suing as the legal representative of the Late Jones Gekara Barake) v Ole Partungas & another (Environment and Land Case 47 of 2024)  (Environment and Land) [2026] KEELC 4249 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4249/eng@2026-07-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.