Ndumbuthi

through them from subdividing, selling, alienating and/or disposing o and or any other way interfering with land parcel No. Nzaui/Mumbuni/207. d. An order do issue restraining the 3rd Defendant from registering any subdivision to the title LR No. Nzaui/Mumbuni/207. e. Costs of this suit. f. Any other or further relief that this honourable court may deem t to grant. 2. The Plainti is the administrator of the estate of his late father Ndumbuthi Mwania Muoka. The Defendants are the administrators of the estate of their late father Kyuti Mbole alias Kyunde Mboli. 3. The late Ndumbuthi Mwania Muoka (Ndumbuthi) and Kyuti Mbole alias Kyunde Mboli (Kyuti) were brothers. The late Ndumbuthi owned parcel NO. 205 which upon registration became Nzaui/ Mumbuni/205 (suit property). 4. In the late 1960’s, Kyuti moved from parcel 207 with his family and went and settled at Kitonyoni. He left behind Daniel Muthama Mutuku to look after his land. Kyuti died in 1971. Plainti ’s Case 5. The Plainti testied that Ndumbuthi purchased Kyule’s land LR No. Nzaui/Mumbuni/2017 between 1969 and 1971. Ndumbuthi had two wives. The rst wife was Nduuti Ndumbuthi who was settled on LR No. Nzaui/Mumbuni/205. The second wife Munaa Ndumbuthi was settled on the suit property. 6. It is the Plainti’s evidence that the family of Kyuti was severally approached to transfer the suit property to Ndumbuthi but they declined. When Ndumbuthi died on 15th September, 2013, the family of Kyuti denounced the sale between Kyuti and Ndumbuthi. The family of Kyuti secretly went and carried out succession in respect of the estate of Kyuti without disclosing that Ndumbuthi had purchased the suit property. 7. When a grant in respect of the estate of Kyuti was conrmed, the administrator’s subdivided the suit property into twelve (12) portions. The Plainti’s brother Harrison Mutua Ndumbuthi testied that his step mother was buried on the suit property and that his step brother is residing on the suit property. He stated that when Ndumbuthi was sick, he sold portions of the suit property to raise money for treatment. He stated that his step brother has colluded with the family of Kyuti to deny their mother’s house their share of the suit property. Defendants’ Case 8. The evidence from the Defendants is that Ndumbuthi is brother to Kyuti who died in 1971. When Kyuti moved from the suit property, he left his brother Ndumbuthi to take care of the suit property. They denied that Kyuti sold the suit property to Ndumbuthi. The Defendants stated that the sale agreements produced were never signed by any of the parties to the agreements. 9. DW1 Peter Muasya Kyuti testied that he was born in 1964. In 1971, he was about seven (7) years. He stated that at that tender age, there is no way he would have been a witness to a land sale agreement. He denied the Plainti’s allegation that they secretly carried out succession in respect of the estate of their father. 10. The Defendants testied that there are three persons on the suit property who purchased land from Ndumbuthi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18272/eng@2025-12-11 2

page 2 of 5

11. The Defendants called Daniel Muthama Mutuku who is a village elder where the suit property is situated. He stated that he was not aware of any land sale by Kyuti to Ndumbuthi. During cross examination, it turned out that he was Kyuti’s caretaker between 1969 until 1971 when Kyuti died that is when he ceased to be a caretaker. Parties Submissions 12. The parties were directed to le written submissions. The Plainti led his submissions dated 20th September, 2025. Plainti ’s Submissions 13. The Plainti submitted that his father purchased the suit property in 1969 after which the family of Kyuti moved out. The Plainti took possession and has been in possession since then. The Plainti’s step mother Munaa Ndumbuthi died and was buried on the suit property. The Defendants did not attempt to stop her burial. 14. The Plainti submitted that the Ndumbuthi family has built houses on the land and have even sold portions of the suit property to the third parties. The Plainti relied on the case of Harris TR & Sav Bank –vs- Solomon Smith Barney Inc 530 US 238, 250-51 (2000) citing Moore –vs- Crawford, 130 US 122 128 (1989) where the United States Supreme Court stated as follows: “ Whenever the legal title to property is obtained through means or under circumstances which render it unconscientious for the holder of legal title to retain and enjoy the benecial interest, equity impresses a constructive trust on the property thus acquired in favour of the one who is truly and equitably entitled to the same.” 15. The Plainti submitted that the succession proceedings in respect of the estate of Kyuti were conducted fraudulently. They relied on the case of Re Estate of Mwania Mutungi alias Mwaura Gichichio Mbura (Deceased) (2018) eKLR where it was held that concealment of material facts when petitioning for grant is sucient ground for revocation under Section 76 of the Law of Succession Act. 16. The Plainti nally submitted that he had proved a case for grant of an injunction. He relied on the case of Giella –vs- Cassman Brown & Co. Ltd (1973) EA 358 and Mrao Ltd –vs- First American Bank of Kenya Ltd (2003) eKLR. 17. The Defendants submitted that there was no valid sale agreement between Kyuti and Ndumbuthi. They relied on Section 3(3) of the Law of Contract Act which states as follows; “ No suit shall be brought upon a contract for the disposition of an interest in land unless— a. b. the contract upon which the suit is founded— i. is in writing; ii. is signed by all the parties thereto; and the signature of each party signing has been attested by a witness who is present when the contract was signed by such party: Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18272/eng@2025-12-11 3

page 3 of 5

of the Auctioneers Act (Cap. 526), nor shall anything in it aect the creation of a resulting, implied or constructive trust. 18. The Defendants submitted that the agreements presented by the Plainti were not dated and signed by either the seller or the purchaser. DW1 Peter Muasya Kyuti who was listed as one of the witnesses was a minor and did not sign the agreement and was not capable of witnessing an agreement at that tender age. 19. The Defendants submitted that Ndumbuthi was allowed to take care of the suit property as he was related to Kyuti who had died and left young children. He could not therefore have any proprietary interest even if he was in occupation. 20. The Defendants submitted that the suit property was demarcated between 1969 and 1972 and if Ndumbuthi had any claim, he should have raised it during that time. On the issue of succession, the Defendants submitted that the Plainti led objection proceedings in Makindu which were dismissed. He appealed to Makueni High Court but the appeal was withdrawn. 21. The Defendants submitted that the allegations of fraud were never proved. The succession proceedings were carried out lawfully. Analysis and Determination 22. I have considered the evidence of the Plainti and that of the Defendants. I have also considered the submissions by the parties. The issues which emerge for determination are rstly, whether there was a valid sale agreement between Kyuti and Ndumbuthi over the suit property. The second issue is whether the Defendants were under obligation to inform the Plainti of the succession proceedings in respect of the estate of Kyuti. Thirdly is the Plainti entitled to any reliefs in the plaint. Fourthly who is to pay the costs of the suit. 23. On the rst issue, the Plainti alleges that Ndumbuthi purchased the suit property from Kyuti between 1969 and 1971. The Plainti produced two agreements. The rst agreement is dated 12th December, 1969. The second agreement was made in 1971. There is no date written in this agreement. In both agreements the witnesses did not sign the two agreements. 24. I am aware that the requirements of signing a contract and witnessing the same came later on but in this case, the two agreements are doubtful. First, one of the witnesses to both agreements was Peter Kyuti who is Kyuti’s son. This witness testied as DW1. He stated that he was born in 1964. In 1969, he was ve years old. In 1971, he was seven years old. It is very doubtful that a child of 5 or 7 years would have witnessed a sale of land at that tender age. 25. In the rst agreement of 12th December, 1969, Ndumbuthi claims to have given Kyuti 3 cows. In the agreement of 1971, he claims to have paid Kyuti Kshs.3,500/=. Payment was made in ve instalments whose dates are not given. The total of the ve instalments is Kshs.2,900/=. There was no evidence given on the balance of Kshs.1,600/=. 26. The evidence which was adduced is that Kyuti died in 1971. It is therefore not clear whether this agreement was made shortly before Kyuti died or it was made after Kyuti had died. The evidence which came out is that Kyuti was a brother to Ndumbuthi. He had been left to take care of the land left by Kyuti after Kyuti moved out of it. DW3 conrmed that if there would have been any sale, he would be aware because he was the secretary of the area assistant chief. This witness was the one who was taking care of Kyuti’s land until after the demise of Kyuti. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18272/eng@2025-12-11 4

page 4 of 5

27. It is clear from the evidence that there was no sale between Kytui and Ndumbuthi. PW2 Harrison Mutua Ndumbuthi is the eldest son of Ndumbuthi. In his witness statement, he stated that his step brother John Kioo Ndumbuthi was colluding with the Kyuti family to deny them a share of the suit property. I saw the certicate of conrmation of the estate of Kyuti. The name of John Kioo Ndumbuti is not among the beneciaries of the suit property. I do not therefore understand the basis of the Plainti’s claim. I therefore nd that there was no sale between Kyuti and Ndumbuthi over the suit property. 28. On the second issue, the Defendants were not under any obligation to inform the family of the Plainti about the succession of their father’s estate. There was no sale of the suit property to Ndumbuthi. When the Plainti learnt of the succession cause at Makindu Succession Case No. 57 of 2016, he applied for annulment of the grant dated 7th August, 2019. This application was dismissed on 28th January, 2020. The Plainti had led a similar application dated 26th July, 2018 which was dismissed on 18th December 2018. The Plainti appealed to the High Court but this appeal was withdrawn. 29. There was therefore nothing fraudulent in the succession proceedings. The Defendants were therefore under no obligation to inform the Plainti or involve him in the succession proceedings as Ndumbuthi had not purchased the suit property. Disposition 30. On the third issue, it is my nding that the Plainti is not entitled to any of the reliefs in the plaint in view of my nding that there was no sale agreement between Kyuti and Ndumbuthi. I therefore nd that the Plainti has failed to prove his case on a balance of probabilities. The Plainti’s case is dismissed with costs to the Defendants. JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 11TH DAY OF DECEMBER, 2025. ............................................ HON. E. O. OBAGA JUDGE In The Presence Of: Mr. Kasyoka for Defendant. Ms. Wawira for Mr. Wakwaya for Defendants Court assistant Steve Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18272/eng@2025-12-11 5

page 5 of 5