Kimutai v Changwony & 2 others (Environment and Land Case 160 of 2015) [2026] KEELC 1875 (KLR)

occupation, surveying, demarcating, fencing ofi, cultivating and/or from doing anything whatsoever, howsoever on the said parcel of land comprised in Title No. Sergoit/karuna Block 3 (tugen) 353 and/or from doing anything that will violate the plaintifi’s interest and rights and/or quiet occupation and use of her matrimonial property and matrimonial home. f. Costs of this suit. g. Any other or further relief that this Honourable Court may deem fit to grant. 2. The Plaintifi sued as the legal wife of Kimutai Chelanga. She contends that on or about 1984, her late father in-law Mr. Chelal Cherutich Barkenei, gave her and her husband Plot No. 439 and which was later changed to Title No. Sergoit/karuna Block 3 (tugen) 286 and which was registered in the name of her husband. That they have been residing on the said land from 1985 to date and have done substantial developments thereon, which she avers is their matrimonial home and property and her family depend on the same for their livelihood. 3. It is her claim that they had been living peacefully on the original suit parcel No. 286 until sometimes in the year 2009 when the 1st defendant without any color of right attempted to encroach into their property. She further claims that she only lear became aware of the sale agreement purported to have been entered between her husband and the 1st defendant when she was served with pleadings in respect to Eldoret CMCC No. 208 of 2010 which is still pending final determination. Thus, the said agreement was made without her knowledge or consent. 4. It is her contention that sometimes in the year 2013, she attempted to conduct an oficial search to confirm the status of the suit land No. 286 but was informed by the 2nd defendant that the register of Title No. 286 had been closed upon the creating of new numbers. She then discovered that parcel No. 286 had been subdivided into two portions; parcel nos. 352 and 353. On 23/4/2013, parcel No. 353, measuring 5 Acres was transferred to the 1st defendant and a title deed issued to him to that efiect. 5. The plaintifi avers that despite parcel No. 353 being registered in the name of the 1st defendant, the land still forms part of her matrimonial property. 6. She further contends that her consent was necessary before any transaction could be done in respect to her matrimonial property. She argues that the process leading up to the said sale and transfer is fraudulent, null and void. She thus denied there being any valid and legal sale transaction and the subsequent transfer is therefore fraudulent and unlawful and the 1st defendant could not have obtained a valid title on it. She outlined the particulars of illegality and fraud on the part of the 1st and 2nd defendants. 7. She thus claims a beneficial and overriding interest in Title No. Sergoit/karuna Block 3 (tugen) 353 and urged the court to grant the orders sought. 8. In her Reply to Defence and Counter-claim, she reiterated contents of her plaint in its entirety. She further maintained that parcel Nos. 352 and 353 (formerly known as No. 286) were and continues to be part of their matrimonial home and property hence they are the rightful and legal proprietors of the said parcels and further that her consent was required with regards to any transaction concerning the suit land. 9. In response to the Counter-Claim, she reiterated the contents of her plaint in entirety and denied all the claims made by the counter-claimer and put him to strict proof thereof. She denied the allegations that her husband was holding a portion of the suit land in trust for his brother Kiprono Chelal and maintained that the suit land was given to them by her late father in-law. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 2

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10. She dismissed the Counter-Claim as being unfounded in law, fundamentally defective and that it amounts to an abuse of the court process. She urged the court to dismiss the same with costs. 11. In response to the averments made in the 2nd and 3rd defendants’ statement of defence, the plaintifi reiterated the contents in her plaint against them in entirety. She further maintained that no due process was followed regarding the suit land and that if any approval was granted, then the same was not proper but was based on a forged application for consent for subdivision and forged mutation. 1st Defendant’s Case 12. The 1st Defendant entered appearance and filed a Statement of Defence and Counter-claim dated 17th August, 2015. In his defence, he denied all the allegations levelled against him by the plaintifi. It was his claim that he purchased the suit land from one Kiprono Chelal, which sale was reduced into writing and witnessed by the plaintifi’s husband. He thus avers that there was no need to obtain a consent to sell from the plaintifi as the land belonged to the plaintifi’s husband’s brother. He maintained that the subsequent process of subdivision and acquisition of title deed followed the due process of law. 13. He confirmed the existence of a similar case touching on the subject land vide Eldoret CMCC No. 208 of 2010 but stated that the same had been stayed pending the determination of the instant suit. 14. He denied the allegations by the plaintifi that the transaction and the process leading up to the transfer of the suit land was null and void. He maintained that he was not required to seek any consent from the plaintifi as the land did not belong to the plaintifi’s husband. He further denied the averments of illegality and fraud particularized by the plaintifi. 15. He thus dismissed the plaintifi’s suit as being misconceived, fatally defective and untenable and urged the court to dismiss the same with costs. 16. In his Counter-claim, he reiterated that he lawfully purchased the suit parcel from the defendant’s husband, who was holding the same in trust for his brother Kiprono Chelal. That even though the agreement was between him and the defendant’s husband, the same was witnessed by the said Kiprono Chelal and Timon Chelal. Further, that the agreement clearly stated that the defendant’s husband was selling the land on behalf of his brother Kiprono Chelal. 17. He contends that he obtained the relevant consent from the Land Control Board to enable him transfer the land in his name, engaged surveyors who carved out the portion of 5 acres bought from parcel No. 286 and he thereafter took immediate possession of the 5 acres. That he fenced ofi the said portion and ploughed it in the year 2010 and 2011 but in 2013, the defendant’s son forcefully took possession from him. 18. It was also his contention that having purchased the land from the defendant’s brother in-law, the same could form part of her matrimonial property. He thus argues that the plaintifi fraudulently and unlawfully misrepresented facts by claiming that the land is her matrimonial property. He set out the particulars of fraud and misrepresentation. Further, he accused the plaintifi and her son of trespassing into his rightful property and evicting him. 19. He sought the following orders in his Counter-claim against the defendant (plaintifi in the main suit): i. A declaration that the land parcel in dispute was acquired by him lawfully. ii. An order of permanent injunction directed at the plaintifi, her servants, agents, assignees and/ or employees or any person acting on her behalf from entering, trespassing or interfering, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 3

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moving into, using, disturbing quiet possession and use by the defendant of all the land in question. iii. A declaration that the process of surveying and subsequent issuance of title to the defendant was lawful. 2nd and 3rd Defendants’ Case 20. The 2nd and 3rd Defendants filed a Statement of Defence dated 23rd December, 2015 in response to the allegations made in the Plaint. They denied all the averments against them and put the plaintifi to strict proof thereof. They further dismissed the plaintifi’s suit against them as being a non-starter, bad in law, scandalous, frivolous and vexatious. 21. They specifically denied that the original land No. 286 was a matrimonial property. They stated that they were not aware of any breach of the alleged beneficial or overriding interests thereto and the particulars of fraud and illegality made against them and put the plaintifi to strict proof thereof. 22. They contended that according to the records in their custody, parcel No. 286 was first registered on 6.7.1990 in the name of Kimutai Chelanga and a title deed was issued to him. That on 15.4.2013, parcel No. 286 was closed on sub-division into two numbers namely 352 and 353 after due process of subdivision, approval of the sub-division and the registration of duly executed mutations, was complied with. 23. On the same date; parcel No. 352 was registered in the name of Kimutai Chelanga while parcel No. 353 was transferred and registered in the name of the 1st defendant on 23.4.2013. 24. It was therefore their claim that being satisfied that the documents presented for registration were duly executed, relevant statutory fees duly paid and that the land was unencumbered; the 2nd defendant caused the aforesaid entries on subdivision and transfer to be entered in the register of the suit land. That the 2nd defendant’s actions were bonafide and within the statutory and constitutional mandate, that they were neither aware nor party to the alleged fraud or particulars thereof. They thus urged the court to dismiss the suit against them with costs. The Evidence 25. The hearing commenced on 31.10. 2017 before Justice Ombwayo who took the evidence of PW1. Justice Kibunja took the evidence of PW2 and PW3 while I took over the proceedings and the stage of the Defence case. 26. The Plaintifi testified as PW1. She adopted her witness statement dated 29.9.2015 as her evidence in chief. She further stated that they were given the suit land by her late father in-law sometimes in the year 1984 and he subsequently registered it in her husband’s name. She further stated that they were the first to take possession of the land and maintained that no one had a share of 5 Acres on their land. 27. She averred that no surveyor had ever visited their land and that she had never consented to the sale of the suit land. 28. She produced a bundle of photographs showing the status of the land as PEX. 1(a) – (f), sample signature of Kimutai Chelanga as PEX. 2, application for consent of the Land Control Board as PEX.3, statement of Kimutai Chelanga marked as PMFI 4, Mutation form as PEX.5, Document Examiner’s Report marked as PMFI 6a, Exhibit Memo marked as PMFI 6b and the specimen signatures marked as PMFI 6c, 6d and 6e and a letter by Chelanga Cherutich addressed to Tugen Estate Farm as PEX. 7 in support of her case. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 4

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29. On cross-examination by Mr. Kibii, she stated that she was not involved in the transaction and she was not aware of the sale agreement. 30. Upon being cross-examined by Mr. Ngumbi, it was her testimony that her husband never sold the suit land. She further stated that her husband never signed the mutation form nor went to the Land Control Board. 31. Elijohn Mwangi of No. 97178, a forensic examiner, attached to the forensic documents examination department of the D.C.I. testified as PW2. It was his testimony that they received a number of documents as exhibits accompanied by an exhibit memo which had questioned signatures, they also received specimen signatures and their task was to ascertain whether the questioned signatures were made by the same author of the specimen signature. 32. That upon examination and comparison, they found that the signatures were made by difierent authors and not the maker of the specimen signature known as Kimutai Chelanga. He explained the procedure used and outlined the considerations made in arriving at the said finding. 33. He then produced Examination Report dated 11.8.2015 and the exhibit memo as PEX. 6(a) and 6(b), MFI 2(a) as PEX.2, MFI3 as PEX.3, statement of Kimutai Chelanga in Eldoret CMCC No. 114 of 2015 MFI4 as PEX.4 and Mutation Form MFI5 as PEX.5 and specimen signatures MFI 6(c) to (e) as PEX.6(c) to (e). 34. On cross-examination by Mr. Keter, he stated that he did not know whether anyone was prosecuted pursuant to the report. He confirmed that the exhibit memo was made by the police. He maintained that the report shows the efiect of variations done to time span. He however stated that no sale agreement was availed for examination. 35. When cross-examined by Mr. Odongo; he confirmed that they have standard procedures and principles that guide their examination of documents. He further stated that he would have arrived at the same conclusion had he done the examination himself. 36. In addition, he explained that even though 2 signatures by the same person may vary, the 2 will always have similar characteristics. 37. Nehemiah Kimutai testified as PW3. He adopted his witness statement dated 29.9.2015 as his evidence in chief. It was his testimony that their land had never been subdivided. He denied the claims by the 1st defendant that he purchased part of their land. 38. On cross-examination by Mr. Keter, he maintained that the suit land belongs to his father Kimutai Chelanga and that the 1st defendant has never lived on the suit land and is not entitled to it. He further stated that the 1st defendant forged the documents he used to get the land. 39. When cross-examined by Mr. Odongo, he stated that even though the suit land is subdivided according to the register, on the ground there is no such subdivision. 40. He conceded that the mutation form was done by a private surveyor, who then presented the same to the Land Registrar for registration and that the mutation in question was not done by the Government Surveyor. He however maintained that the 2nd defendant is still liable since he is the one who registered the transfer and issued the defendant with a title deed. The plaintifis thereafter closed their case. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 5

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Defence Case 41. The defence case proceeded for hearing on 23.2.2023. The 1st defendant testified as DW1, he adopted his witness statement dated 17.8.2015 and filed in court on 30.11.2015 as his evidence in chief. 42. He further stated that he bought the suit parcel from one Kiprop Chelanga vide a sale agreement dated 21.1.2009 and he took immediate possession thereof. They applied for the requisite Land Control Board Consent and theywere subsequently issued with the letter of Consent on 4/.0.2012. Upon survey and subdivision of the original land No. 286, his parcel was given parcel No. Sergoit/Karuna Block 3 (Tugen) 353. 43. That at the time of purchase, the land was registered in the name of Kimutai Chelanga, who is the brother of Kiprop Chelanga. He was however prevented from using the land by Adams Kimutai sometimes in the year 2019 which necessitated the filing of a Criminal Case vide ELD CM CR Case No. 793 of 2009 against him, wherein he was found guilty of creating a disturbance. 44. He produced the following exhibits as Defence Exhibits in support of his case; a copy of the sale agreement dated 21.1.2009 as DEX1, copy of the application for LCB Consent as DEX.2, copy of the letter of Consent dated 4.10.2012 as DEX.3, copy of Mutation Form dated 31.1.2013 as DEX.4, copy of title of land parcel No. Sergoit/Karuna Block 3 (Tugen)/353 as DEX 5, letters dated 20/1/2009 and 21/1/2009 marked as DMFI. 6 & 7 respectively, a copy of the proceedings in the criminal case as DEX.8, a copy of a duly signed Transfer Form as DEX.9 (erroneously indicated in the pleadings as DEX. 8). 45. He thus urged the court to be allowed to use and plough his land as he has not been able to use it since the year 2010. 46. On cross-examination by counsel for the plaintifi, he stated that he planted maize on the land between the period 2009 to 2010. He confirmed that the plaintifi was the wife of Kimutai Chelanga, that Kiprono Chelal is the elder brother of Kimutai Chelanga. He maintained that the said Kimutai Chelang’a has never stayed on the suit parcel. 47. He reiterated that he paid the entire purchase price to Kiprop Chelanga, who thereafter gave the money to his brother. He conceded that he did not have a sale agreement with Kiprono. That he bought 5 Acres at Kshs. 725,000/= which was to be paid in two instalments; Kshs. 600,000/= was paid as the deposit and the balance of Kshs. 125,000/= was to be paid after obtaining the title deed. He however conceded that he had not paid the balance of the purchase price agreed despite obtaining the title deed in the year 2013. 48. It was his contention that that Kiprop was holding the land in trust for Kiprono; that Kimutai Chelanga sold him the land on behalf of Kiprono Chelal. He however conceded that he did not have a Power of Attorney. 49. He further conceded that at the time of transfer of the suit land there were two cases pending in court in respect of the suit land and in addition, there was a caution registered against the title of the land. He however maintained that the transfer was efiected by the plaintifi’s husband. 50. He also conceded that there were no beacons on the suit property and he had not produced a Beacon Certificate. He confirmed that the plaintifi did not give her consent to the sale. 51. When shown the Application for LCB Consent produced as his exhibit; he confirmed that the same was neither signed nor dated and further that it is indicated on the said application that the consent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 6

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was being sought for subdivision. He conceded that the transfer form did not contain his photograph or PIN number. 52. He was also cross-examined by counsel for the 2nd and 3rd defendant. It was his testimony that the Land Registrar was not involved at the time of sale of the suit property. He further stated that Kimutai’s family was aware of the sale and that when he presented the transfer form to the Lands ofice, the same had his photograph. 53. It was his contention that the Land Registrar never informed him that there was a caution on the land and he was subsequently issued with a title deed. He maintained that he had never been accused of forging a signature by the plaintifi. 54. Timon Chelal Cherotich brother to Kimutai Chelanga and brother in-law to the plaintifi testified as DW2. He adopted his witness statement dated 1.8.2015 as his evidence in chief. 55. He further stated that the original suit parcel No. Sergoit/ Karuna/ 3(Tugen) 286 measuring 18 acres, belonged to his late father Chelanga Barkenenei Cherotich. That his late father bought the land in the year 1973 from the Tugen Estate. That his late father bequeathed the 18 acres to 2 of his brothers, Kimutai Chelanga and Kiprono Chelanga, each getting 9 acres. 56. He explained that after the subdivision, Kiprono Chelanga gave Kimutai Chelanga 4 acres from his 9acre portion as payment of Kshs. 40,000/- debt owed. Kiprono Chelanga thus remained with 5 acres which he decided to sell to the 1st defendant. The sale was reduced into writing and was duly executed at the Chief’s ofice. It was his testimony that at the time of the sale, the suit parcel was registered in the name of Kimutai Chelanga. It was his evidence that the suit land parcel No. 353 rightfully belongs to the 1st defendant and not the plaintifi. 57. On cross-examination by the plaintifi’s counsel, he reiterated that the suit land originally belonged to his late father, the same was however registered in the name of Kimutai Chelanga on 6.7.1990 and that the plaintifi’s sons were involved during the subdivision of the suit land. It was however his contention that his late father did not know that Kimutai Chelanga had registered himself as the sole proprietor of the entire parcel of land. 58. He confirmed that Kimutai Chelanga moved to the suit land originally No. 286 in the year 1985 and carried out developments therein by building houses. That the portion sold to the defendant did not include the developed area. 59. He further confirmed that Kiprono Chelal has never stayed on parcel No. 286 since he had another parcel at Koimur. That Kiprono Chelal was however the one who was paid the purchase price though the balance of Kshs. 125,000/= had never been paid by the 1st defendant. 60. He denied knowledge of the transfer of the title deed of the suit land to the 1st defendant’s name during the pendency of a suit in court. 61. On cross-examination by counsel for the 2nd and 3rd defendants; he reiterated that the suit land was registered in the name of the Kimutai Chelanga, which was part of the Tugen Estate, though Kimutai was not a member of the estate. The said the land originally belonged to his late father, who was a member of the Tugen Estate. 62. He however conceded that from the 3rd defendant’s list of documents (DMFI4), an excerpt of the register of the Tugen Farm, plot No. 286 is registered in the name of Kimutai Chelanga of ID No. 379817316 measuring approx. 6.981Ha. He conceded that according to the register, the name Chelal Barkenene Cherotich does not feature and thus, there was nothing to support his assertions that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 7

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land was originally registered in his late father’s name. He further confirmed that there was nothing on the register to show that Kiprono also had a share in the suit property. 63. When shown a copy of the Green Card of parcel No. 286, forming part of the 2nd defendant’s list of documents, he confirmed that the first entry thereon was made on 28../1990 and entry No. 2 is the name of Kimutai Chelanga on 6.7.1990. He stated that no complaint was raised against the registration of the suit land in the name of Kimutai Chelanga. He reiterated that that Kimutai had lived on the suit land since 1985. That neither him nor his brother Kiprono has ever stayed on the suit property. 64. He conceded that no written Spousal Consent had been obtained before the sale of the family land to show that Alice consented to the said sale. He confirmed that while the sale agreement was entered into in the year 2009, the land was subdivided on 15/4/2013 and parcel No. 286 gave rise to parcels No. 352 and 353. Parcel No. 353 was registered in the name of Kimutai Chelanga and on 23.4.2013 after which Kimutai Chelanga transferred the land to the 1st defendant. 65. He stated that he was aware that the law on spousal consent came into efiect in 2012 and any transaction after 2012 must be accompanied by a spousal consent and without it the transaction is considered null and void. Even though he conceded that no spousal consent had been obtained from the plaintifi, he maintained that the land that was sold belonged to Kiprono and therefore, there was no need for spousal consent. He however conceded that the sale agreement was between Kimutai Chelanga and the 1st defendant and the same indicated that Kimutai was the registered owner of the land. He thereafter agreed that there was need for spousal consent from the plaintifi. 66. In re-examination, he restated that on the sale agreement, it was indicated that Kimutai Chelanga was holding the land in trust for his brother Kiprono. That since Kiprono was disposing of his share, there was no need for spousal consent from the plaintifi. He maintained that no contrary evidence has been presented to rebut the contents of the sale agreement. 67. Elizabeth Nyakundi, the Land Registrar testified as DW3. She explained that she had a certified copy of the Green Card in respect to parcel No. 286 measuring approx. 6.981Ha. The said green card was opened on 27/5/1990. 68. She produced the register of the members of Karuna Farm as 2nd defendant’s DEX. 1 and confirmed that parcel No. 286 in the register was allocated to Kimutai Chelanga and the acreage indicated on the members’ register is 6.981Ha. It was therefore her testimony that the entry on the Green Card and the details on the members’ register tally. 69. That Entry No. 4 on the Green Card shows that the title was closed upon subdivision which gave rise to title Nos. 352 and 353. At the time of the said closure, the title had no encumbrances. She produced the green card of parcel No. 286 as 2nd defendant’s DEX.2, green card of parcel No. 352 as 2nd defendant’s DEX.3, green card of parcel No. 353 as 2nd defendant’s DEX. 4. 70. It was her testimony that she could not tell what led to the subdivision of parcel No. 286. 71. When cross-examined by Mr. Terer, she confirmed that DEX.3 and 4 shows that title deeds were issued and that proves that all the requirements for registration had been complied with. 72. On cross-examination by Mr. Wafula; she confirmed that DEX2 Application for LCB consent is not dated but she maintained that what matters is the date of registration. He also confirmed that DEX4 -the mutation form was not signed or dated. She further conceded that DEX. 8 -the Transfer Form was equally not attested and did not bear any photograph. She said that the documents were proper but incomplete. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 8

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73. She also stated that the 1st Defendant was registered as the owner of parcel No. 353 on 23.4.2013 but she could not tell whether spousal consent had been obtained. She confirmed that the law requires that spousal consent be given if the transferor is married. 74. On re-examination, she stated that nothing showed that DEX. 2 originated from their ofice as the same is not certified by the Lands Registrar. She dismissed DEX. 8 (transfer form) as not having been presented in their ofice as the document did not have a Presentation Book Number as required. She further stated that she did not also know the origin of DEX. 4 since the same was not certified. 75. Upon close of the defence case, parties were directed to file their written submissions and they duly complied. Plaintifi ’s Submissions 76. In his submissions dated 14.12.24 learned counsel for the Plaintifi distilled the following issues for determination: i. Whether Kimutai Chelang’a was the sole proprietor of land parcel number Sergoit/karuna Block 3 (tugen)/286. ii. Whether or not spousal consent was required before the sub-division of title number Sergoit/ karuna Block 3 (tugen)/286 and the subsequent transfer of title No. Sergoit/karuna Block 3 (tugen)/353 to the 1st Defendant. iii. Whether the 1st Defendant has a good title to the suit land. iv. Whether the title No. Sergoit/karuna Block 3 (tugen)/353 is impeachable. v. Whether the 1st defendant is entitled to the reliefs sought in the Counterclaim. 77. On the first issue, counsel submitted that the Land Registrar produced a copy of the green card which indicates that the said parcel of land was registered in the name of Kimuatai Chelang’a on 6.7.1990 and the same conferred proprietary rights in the said Kimuatai Chelang’a. It is his further submission that the 1st Defendant’s assertion that he bought a portion of the said parcel of land from one Kiprono Chelal does not hold any water. 78. On the issue of spousal consent, counsel relied on section 93 (4) of the Land Registration Act 2012 which provides for spousal consent in the event that a spouse undertakes a disposition in land. It was counsel’s submission that section 28 of the Land Registration Act recognizes spousal rights in matrimonial property as an overriding interests and any sale or transfer without spousal consent is null and void. He therefore maintained that in the absence of spousal consent, the transfer of the suit property to the 1st defendant was null and void. 79. On whether the 1st Defendant acquired a good title to the suit property, counsel submitted that the Land Registrar admitted that the Mutation Form for parcel 286 and Transfer Form were not signed by the Land Registrar. Additionally, the signature on the application for consent of the Land Control Board which was purported to be Kimutai Chelanga’s signature was disputed by the plaintifi and the evidence of the document examiner on the same was to the efiect that the signature did not belong to Kimutai Chelang’a. Counsel submitted that the Land Registrar admitted the shortcomings in the registration documents thus pointing to fraud and illegality. 80. Counsel faulted the transfer of parcel 353 to the 1st defendant. He pointed out that no consent of the Land Control Board was obtained thus invalidating the transfer and rendering the process of transfer https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 9

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irregular and illegal. Counsel relied on the case of Mlechwa & Another ( Suing as the legal representative of Samwel Mbogho Mshila v Duwe Environment and Land Appeal 21 of 2023( 2024 KEELC 125 (KLR) for the proposition that fraud can be either directly attributed to a party or it can be implied. It was counsel’s contention that the 1st Defendant’s title was obtained fraudulently, unprocedurally or through a corrupt scheme and that the 1st Defendant was party to the fraud. 81. Counsel concluded that for the foregoing reasons, the 1st Defendant was not entitled to the reliefs sought in the counterclaim. 1st Defendant’s Submissions 82. Learned Counsel for the 1st Defendant submitted on the following issues: i. Whether the Plaintifi is the spouse of Chemutai Chelanga ii. Whether spousal consent from the plaintifi was required before the transfer of the suit property to the 1st defendant. iii. Whether the suit land is matrimonial property iv. Whether the 2nd Defendant fraudulently transferred the suit property to the 1st Defendant v. Whether the 1st Defendant is a bona fide purchaser for value. 83. Counsel submitted that the Plaintifi did not prove that she was the wife of Kimutai Chelanga in accordance with the Marriage Act which recognizes difierent forms of marriage as she did not produce a marriage certificate. He then went on submit that not having proved that she was married to the 1st Defendant the issue of spousal consent did not arise. 84. On the third issue regarding whether the suit property is matrimonial property, counsel relied on section 6 of the Matrimonial Property Act and submitted that the Plaintifi had not proved that the suit property was matrimonial property. It was her submission that the suit property was held by Kimutai Chelang’a in trust for his siblings and therefore in terms of section 6(2) of the Matrimonial Property Act it could not constitute matrimonial property. 85. On whether the plaintifi’s allegations of fraud were proved, it was counsel’s submission that the plaintifi did not prove fraud or illegality to the required standard. He relied on the case of Kuria Kiarie v Sammy Magera & 4 others (2018) eKLR and Kinyanjui Kamau v George Kamau. He faulted the Plaintifi for not having called Kimutai Chelanga to support her case. 86. Counsel submitted that the 1st defendant was a bona fide purchaser for value without notice. He relied on the case of Katende v Haridar & Co. Ltd. It was his contention that the 1st defendant had produced a green card indicating that he was the registered owner of the suit property and in accordance with section 26 of the Land Registration Act, his title was indefeasible. 2nd and 3rd Defendants’ Submissions 87. Learned counsel for the 2nd and 3rd Defendants submitted that there was no dispute that land parcel number SERGOIT/KARUNA BLOCK 3 (TUGEN)/286 initially belonged to Kimutai Chelanga and there was no evidence to prove that the same was ancestral land which he held in trust for Kiprono Chelanaga. 88. Counsel submitted that the plaintifi had demonstrated that she was married to Kimutai Chelanga and that they lived on the suit property with their children and therefore it was matrimonial property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 10

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Counsel relied on section 6(1) of the Matrimonial Property Act which defines matrimonial property as inter alia a matrimonial home or homes. He conceded that both section 93 of the Land Registration Act and section 9 of the Matrimonial Property Act provide that one must obtain spousal consent before disposing of matrimonial property. It therefore follows that a land transaction that is carried out without spousal consent is void ab initio. He relied on the case of Christine Adhiambo Oduor v Real people Kenya Ltd (2020) eKLR. 89. With regard to the transfer of portion of the said parcel to the 1st Defendant, counsel submitted that the 2nd defendant had acted in good faith and relied on the documents presented to them at the time of transfer. However, he conceded that the Plaintifi had adduced uncontroverted evidence through PW a forensic document examiner that the mutation forms qnd application for consent of the Land Control Board consent were forged. It was his submission that the Land registrar was misled to believe that the said documents were genuine. 90. On the issue of spousal consent, he submitted that the Land Registrar was not aware that Kimuatai Chelanga was married. Analysis and Determination 91. I have carefully considered the various pleadings filed, the testimonies in court and the respective exhibits produced by the parties and the plaintifi’s submissions. In that regard, it is this court’s considered view that the issues arising for determination are: a. Whether the Plaintifi is the wife of Kimutai Chelanga. b. Whether the suit property is matrimonial property. c. Whether spousal consent was required before the sale of the suit property. d. Who is the rightful, lawful owner of land parcel number Sergoit/karuna Block 3 (tugen)/353? e. Whether a good title was passed to the 1st defendant f. Whether the plaintifi is entitled to the reliefs sought. Whether the plaintifi is the wife of Kimutai Chelanga. 92. The plaintifi filed this suit in her capacity as the wife of Kimutai Chelang’a. At paragraph 5 and 6 of her Plaintifi she described herself as such and added that she was married under customary law in 1975. In his defence, the 1st defendant did not deny the contents of paragraphs 5 and 6 of the Defence. Upon cross-examination, he stated that the plaintifi was the wife of Kimutai Chelang’a It is trite law that parties are bound by their pleadings and the 1st Defendant is therefore estopped from challenging the Plaintifi’s marriage to Kimuai Chelang’a. In her testimony the plaintifi stated that she was married to Kimutai Chelang’a and they have seven children. It was her testimony that they have a home on the suit property where she lives with her husband and their children. She produced photographs of their home ad Plaintifi’s exhibit 1. 93. The plaintifi’s evidence that she was married to Kimutai Chelang’a was not shaken on crossexamination. The plaintifi stated that she was married under customary law and absence of a marriage certificate does not invalidate a customary marriage. It is therefore my finding that the plaintifi is the wife of Kimutai Chelang’a. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 11

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Whether the suit property is matrimonial property. 94. The definition of matrimonial property is found in section 6 of the Matrimonial Property Act which provides as follows; “ 6(1) For the purposes of this Act, matrimonial property means— 95. (a) the matrimonial home or homes; (b) household goods and efiects in the matrimonial home or homes; or (c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.” It is the Plaintifi’s case that the suit parcel No. 353 forms part of her matrimonial property, she gave a brief background on how they acquired the original land parcel No. 286 from her late father inlaw, took possession thereof and her husband became registered as the sole proprietor of the said land sometimes in 1990. This took place during the subsistence of her marriage. She thus asserts that the land rightfully and legally belongs to her husband, Kimutai Chelanga, and the same has and continues to form part of their matrimonial home and property. This evidence was not controverted by the Defendants. It is therefore my finding that the suit property is matrimonial property. Whether spousal consent was required 96. Section 93 (3) (b) then provides that:“ Where a spouse who holds land or a dwelling house in his name undertakes individually a disposition in that land the transferee shall if that disposition is a transfer of land be under a duty to inquire of the transferor of whether the spouse(s) has consented to that transfer...” 97. Additionally, section12 (1) Matrimonial Property Act states that; “ An estate or interest in any matrimonial property shall not, during the subsistence of a monogamous marriage and without the consent of both spouses, be alienated in any form, whether by way of sale, gift, lease, mortgage or otherwise.” 98. In the case of Kadzo Mkutano v Mukutano Mwamboje Kadosho & 2 others [2016] eKLR the Judge held that; “ Section 28 of the Land Registration Act recognizes spousal rights over matrimonial property as an overriding interest. Spousal consent, is therefore required before a spouse can sell matrimonial property. In the absence of such a consent, the sale becomes null and void”. 99. In the instant case, whereas the Plaintifi maintained that the suit property was matrimonial property the 1st Defendant argued that spousal consent was not necessary as the land purchased belonged to Kiprono Chelal. However, the sale agreement was between himself and the plaintifi’s husband who was the registered owner. It was his contention that the plaintifi’s husband held a 5-acre portion which formed part of the original land No. 286 in trust for Kiprono Chelal. 100. Apart from the 1st Defendant’s assertion, there was no evidence presented in court to show that the suit land was held in trust by Kimutai Chelanga for Kiprono Chelal. Further, neither the said Kiprono Chelal nor Kimutai Chelanga appeared in court to testify and confirm or deny the existence of a trust. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 12

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Mere allegations without proof cannot substantiate allegations of trust. In the absence of proof, I find that there is no evidence that the suit land was held in trust and as held hereinabove, the suit land forms part of the plaintifi’s matrimonial property. 101. The 1st Defendant admitted that he was aware that the plaintifi was married to Kimutai Chelanga. He was therefore obligated to inquire if the Plaintifi had consented to the sale. His failure to do so rendered the sale null and void. Who is the lawful owner of land parcel number Sergoit/karuna Block 3 (tugen)/353? 102. Whosoever asserts the existence of a legal right or liability is vested with the burden to prove it except in so far as the law may expressly exempt him or her. Sections 107, 108 and 109 of the Evidence Act is clear on who bears the burden of proof. 103. It is not in dispute that the suit parcel No. 353 is registered in the name of the 1st defendant. The plaintifi maintained that her husband’s signature was forged, that the suit land has never been sold. She dismissed the allegations made by the 1st defendant. 104. The 1st defendant on the other hand stated that he is the actual and registered owner of the suit land No. 353. It was his contention that the same was validly purchased and all the processes leading up to the transfer and registration of the land in his name were complied with. He thus maintained that the title he holds is a valid title and he is entitled to the purchased portion. 105. . Section 26(1) of the Land Registration Act provides that “ a certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, excepta. on the ground of fraud or misrepresentation to which the person is proved to be a party; or b. where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 106. Section 26 above provides 2 instances when the certificate of title of a registered proprietor may be challenged; the first one is on grounds of fraud or misrepresentation and the second one is where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 107. It is the plaintifi’s claim that the process leading up to the subdivision, transfer and registration of the suit land in the name of the 1st defendant was marred with fraud, illegality and procedural impropriety, she also accused the 1st defendant of forgery. In support of the forgery claims, PW2, a forensic document examiner testified in support of the plaintifi’s case and produced the Examiner Report and Exhibit memo as PEX. 6a and 6b respectively. 108. The Court of Appeal in Munyu Maina vs Hiram Gathiha Maina [2013] https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 13

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eKLR held that where an instrument of title is challenged, such proprietor must go beyond the instrument to prove legality: “ We have stated that when a registered proprietor root of title is challenged, it is not suficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.” 109. From the above-cited case, it is clear that the 1st defendant had the duty to go beyond the title deed produced as DEX.5 to prove the legality of his certificate of title. In an efiort to prove his ownership claims, the 1st defendant produced an Application for LCB Consent, Mutation Form and Transfer Form as DEX. 2, 4 and 9 respectively. 110. It is important to note that these documents were incomplete, some were undated, there was no indication of the parcel number in respect of which the consent was being obtained, the same had not been certified by the Land Registrar and the authenticity of the said documents thus remained in question. Further, the purported signature on the said documents was found to be a forgery. PEX. 6a was to the efiect that the signatures were not by the maker of the specimen signature known as Kimutai Chelanga. 111. The Land Registrar who testified as DW3 explained that their role is at the tail end of the process and they would therefore not have been aware of any forgery. She however admitted that the application for LCB consent was not dated and the mutation form was neither dated nor signed. She also admitted that the Transfer form did not bear the photographs and pin numbers of the transferor and transferee nor was it attested by the Land Registrar. She stated that she could not trace the parcel file in respect of parcel number 286 and she was therefore unable to confirm if all the documents were presented to them. For the same reason, she was unable to confirm if spousal consent had been given. 112. The plaintifi’s claim on the other hand was supported by 2nd defendant’s DEX. 1 and 2 which are Karuna members register and the green card for parcel No. 286 and which confirmed that her husband was the sole registered proprietor of the original land. In the absence of any document to support the legality of the certificate of title held by the 1st defendant and to further show that the process leading up to the subdivision, transfer and registration was proper and strictly complied with the law, it is my finding that the Defendant’s title was obtained un-procedurally and unlawfully and it is therefore impeachable. I therefore find and hold that the plaintifi is the lawful and beneficial owner of the suit land. Whether a good title was passed to the 1st defendant 113. I have discussed in detail the process that led to subdivision of parcel No. 286, transfer and registration of suit parcel No. 353 in the name of the 1st defendant in the first issue and I do not wish to reiterate the same. 114. However, I must point out that testimony of PW2 and the exhibits he produced, the Forensic Examination Report, PEX. 6 as and 6b are crucial documents that I have considered. Further, as aforementioned, the plaintifi’s spousal consent was a necessary document before subdivision could be done and the subsequent transfer and registration of the suit land in the name of the 1st defendant was done. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 14

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115. DW3 did not produce any documents required before the transfer and registration could be efiected save for the various copies of the Green Cards. 116. Further, it is not in dispute that the 1st defendant has to date not complied with the terms of the sale agreement on the payment of the purchase in full. Both DW1 and 2 confirmed that the balance of the purchase price is yet to be paid even though the land has already been transferred in his favour and a title deed issued. 117. The totality of the above is that no good title was passed to the 1st defendant and the title he holds to the suit parcel is not a good and valid title. In the circumstances, the 1st Defendant cannot be said to be a bona fide purchaser for value without notice. 118. Accordingly, it is my finding that the plaintifi has proved her case on a balance of probabilities and is therefore entitled to the reliefs sought. 119. The 1st Defendant did not satisfactorily prove his Counterclaim to the required standard to warrant the grant of the reliefs sought in the counter-claim. 120. With regard to costs, it is trite law that costs generally follow the event and, in this case, having held that the Plaintifi has proved her case to the required standard, I find that she is entitled to costs of the suit. 121. In conclusion, I dismiss the 1st Defendant’s Counterclaim with costs and enter judgment for the plaintifi in the following terms:a. A Declaratory Order is hereby made that the plaintifi has a legal interest and/or an overriding interest in that parcel of land comprised in Title No. Sergoit/karuna Block 3 (tugen) 353. b. An Order is hereby made that the processes and steps taken leading up to and including the name of the 1st defendant into the transfer of the said Title No. Sergoit/karuna Block 3 (tugen) 353 is declared null and void. c. An Order is hereby made declaring the title deed obtained by the 1st defendant over that parcel of land known as Sergoit/karuna Block 3 (tugen) 353 null and void for having been obtained on the basis of a null and void agreement. d. An order is hereby issued directing the Uasin Gishu County Land Registrar, the 3rd defendant, to cancel and/or revoke Title No. Sergoit/karuna Block 3 (tugen) 353 and 352 and the restoration of the original title, to wit, Title No. Sergoit/karuna Block 3 (tugen) 286. e. An order of permanent injunction is hereby issued restraining the 1st defendant, his servants, agents and any other person of his and/or at all from entering, re-entering into, occupying or continued occupation, surveying, demarcating, fencing ofi, cultivating and/or from doing anything whatsoever, howsoever on the said parcel of land comprised in Title No. Sergoit/ karuna Block 3 (tugen) 353 and/or from doing anything that will violate the plaintifi’s interest and rights and/or quiet occupation and use of her matrimonial property and matrimonial home. f. The costs of the suit shall be borne by the defendants. g. The 1st Defendant’s Counter-claim is dismissed with costs to the plaintifi. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 13TH DAY OF FEBRUARY, 2025. ……………………… https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 15

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J. M. ONYANGO JUDGE In presence of; Mr. R.M Wafula for the Plaintifi Mr Keter for the 1st Defendant No appearance for the 2nd and 3rd Defendants Court Assistant – Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1875/eng@2026-02-13 16

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