Maina & 3 others v Land Registrar, Mbeere District & another (Environment and Land Case E012 of 2020) [2026] KEELC 1984 (KLR)

They sought an order for the 2 nd Judgment-ELC Case No. E012 of 2020 (OS) Defendant to give vacant possession of the 6 acres to the 1 st Plaintiff and for the Officer Commanding the Siakago Police Station to provide security to the Plaintiffs to enable them take possession of the suit land. In the alternative, they sought to have the 2 nd Defendant refund the purchase price at the current market rate. They also sought the costs of the suit. 2. The 1st Plaintiff swore the supporting affidavit and averred that he purchased 6 acres out of Nthawa/Riandu/619 from the late Maringa Kibisho in 1978 and paid the full purchase price. That, upon making payment, the late Maringa Kibisho gave the 1 st Plaintiff the original title deed to proceed with the subdivision of the land. The process began in 1978. He paid the registration fees but before the transfer could be effected, Maringa Kibisho died in 1986, which stalled the transfer process. He placed a caution against the suit land. He notified the family of the late Maringa including the 2nd Defendant, in a meeting convened by the area Chief on 22/6/1993, that he held the original title over the suit land. The family was expected to obtain letters of administration to effect the transfer. 3. He stated that the succession proceedings did not commence despite various follow-ups and the estate of the late Maringa devised a myriad of schemes to defeat his interest in the suit land including publication of a claim in the Kenya Gazette of 6/11/2020 that the title over the suit land was lost. He averred that the 1st Defendant intimated that he would proceed with the registration of a transmission of the suit land and register the 2 nd Page 2 of 15

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Judgment-ELC Case No. E012 of 2020 (OS) Defendant as the proprietor despite his objections. He added that the 2nd Defendant and his family became hostile to the Plaintiffs and did not allow them to take possession of the suit land. 4. Mr. Isaac Njiru, the Principal Land Registrar, swore the replying affidavit in response to the claim. He averred that on 11/1/1978, Maringa Kibisho was registered as the owner of the suit land measuring approximately 4.4 hectares (ha) (10.868 acres) and that a land certificate was issued to him on 6/5/1978. On 31/12/1984, the 1st Plaintiff registered a caution against the land claiming a purchaser’s interest. In October 2020, the 2 nd Defendant sought advice from the Land Registrar, Siakago on how to register a grant and was given guidance. The 2 nd Defendant indicated that attempts to trace the original title deed proved futile and they were advised to seek gazettement of the loss, which was done on 6/11/2020. The Plaintiffs’ advocate wrote to the Defendants objecting to the gazette notice and the objection was noted on the land register. They did not oppose the Plaintiffs’ claim. 5. The 2nd Defendant filed a replying affidavit in which he averred that he was neither aware of any sale transaction between the 1st Plaintiff and the late Maringa Kibisho nor was he aware of a sale agreement or acknowledgement receipts as the Plaintiffs claimed. He denied that he knew that the 1 st Plaintiff was in possession of the original title deed or that the process of subdivision commenced in 1978 upon the 1 st Plaintiff paying the Page 3 of 15

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Judgment-ELC Case No. E012 of 2020 (OS) requisite registration fees. He denied the Plaintiffs’ claim and urged that the suit should be dismissed for being res judicata. 6. During the hearing, the 1st Plaintiff told the court the late Maringa Kibisho sold him the suit land and gave him the original title deed after he completed payment of the purchase price. He explained that he started by buying the vendor an overcoat, a goat and then a big calabash full of honey and that he paid him Kshs. 5,100/= in cash. The vendor died eight years after he bought the land. During those years, they went to the Land Control Board (LCB) but the seller fell sick twice and their efforts to get the land transferred failed. His own father got sick and died in 1987 and he could not follow up on the transfer of the land. 7. He filed a suit in Meru in 1993 against the 2nd Defendant when the 2nd Defendant demanded the title that the vendor had given him. He then filed the suit. He explained that it took him time to file the instant suit since he was educating his children and that he and his wife got sick. He sued the Registrar because they claimed that the title over the suit land got lost. 8. On further cross-examination, he confirmed that the probate for the late Maringa was done but he was not included in the succession proceedings. The Plaintiffs learnt in March 2023 that the 2nd Defendant was the administrator of the estate of the late Maringa. He explained that the case in Meru did not proceed as the vendor’s estate did not have an administrator at the time. 9. The 1st Plaintiff produced copies of gazette notice no. 9170 of 6/11/2020, sale agreement dated 30/3/1978, acknowledgement Page 4 of 15

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Judgment-ELC Case No. E012 of 2020 (OS) receipts dated 4/9/1978 and 5/10/1978 and title deed for parcel no. 619. He also produced copies of the mutation form dated 5/10/1978, LCB consent issued on 26/9/1978, application for LCB dated 4/9/1978 and caution registered against the land. The other documents tendered in evidence include copies of the Chief’s letters dated 22/6/1993 and 29/9/2020, official search dated 15/9/2020, Plaintiffs’ identity cards, letter of objection to the Land Registrar dated 27/11/2020 together with letters dated 1/12/2020 addressed to the Land Registrar and to the High Court Registrar as well as the response from the High Court Registrar dated 2/12/2020. He also produced copies of the demand letter to the 2nd Defendant dated 27/11/2020, letter to the Government Printers dated 25/2/2021 and response dated 10/3/2021 and the copy of the limited grant for the estate of Brenda Wairimu Wahome. He also tendered documents Miscellaneous Civil Application No. 48 relating of to Meru 1993 and correspondence exchanged between the 1st Defendant and the Plaintiffs’ advocates. 10. The 2nd and 3rd Plaintiffs and Rosaline Wanjiku, who are the 1 st Plaintiff’s sons and daughter in law respectively testified and supported the averments of the 1 st Plaintiff’s that he purchased the suit land from the late Maringa Kibisho but the land was not transferred to the 1st Plaintiff. The Plaintiffs also relied on the evidence of Bethel Oyoo, a registered practicing valuer who works with Fortune Realtors Limited. Ms. Oyoo produced the valuation report dated 18/9/2023 and told the court that the suit land is approximately 10.87 acres and has permanent and semiPage 5 of 15

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Judgment-ELC Case No. E012 of 2020 (OS) permanent structures erected on it. She gave the value of six acres as Kshs. 7,200,000/=. On cross-examination, she stated that she valued the property on 14/9/2023. They checked the measurements of the title against the suit land and used google maps to establish the size of the land. The value given in their report was for the bare land. 11. John Mwangi, the Land Registrar Mbeere, North gave evidence on behalf of the 1st Defendant. He produced the documents annexed to the affidavit including a caution registered against the suit land, draft gazette notice and forwarding letter, gazette notice no. 9170 and letter dated 27/11/2020 from the Plaintiffs’ advocate. 12. The 2nd Defendant, Njuki Maringa testified and adopted his replying affidavit. He confirmed that he was the administrator of the estate of the late Maringa Kibicho. He stated that he did not know that the 1st Plaintiff bought the land and that he saw the sale agreement and the acknowledgement slips after the suit was filed. He maintained that the title over the suit land, which belonged to his late father got lost. He told the court that his father’s children lived on about 5 acres of the suit land and that no other person lives there. He denied receiving the Chief’s letter in 2020 and maintained that he was not summoned to that meeting. 13. The court directed parties to file and exchange written submissions, which it duly considered. The Plaintiffs submitted that the Environment and Land Court (ELC) has exclusive original jurisdiction under Article 162(2)(b) of the Constitution and Page 6 of 15

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Judgment-ELC Case No. E012 of 2020 (OS) Section 13 of the Environment and Land Court Act to hear and determine disputes relating to the environment and the use and occupation of land. That in this case, the dispute involves enforcement of a sale agreement, registration of transfer and allegations of fraud, which are matters within the ELC’s mandate. They submitted that the valuation report dated 18/9/2023, which gave the value of the suit property as Kshs. 7,200,000/= supports the alternative prayer for a refund of the market value of the land. They pointed out that no other valuation was produced by Defendants. 14. Further, they submitted that the sale agreement dated 30/3/1978 is valid and enforceable and meets the requirements of Section 3(3) of the Law of Contract Act since it is written, signed by all parties, witnessed, and was supported by consideration. That LCB consent was obtained as required, which renders the agreement enforceable. They urged that even if the court were to find that some formalities were not fulfilled, a constructive trust could be inferred for there was a common intention between the parties to actualize the transaction and that the estate of the vendor would be unjustly enriched. They urged that a constructive trust could be inferred from the testimonies of the witnesses and the evidence produced even when it was not pleaded. The decision in Aliaza v Saul (2022) KECA 583(KLR) was cited to support that position. 15. The Plaintiffs also submitted that the vendor’s death did not vitiate the sale agreement and that under Section 79 of the Law of Succession Act, property vested in the administrator, who is Page 7 of 15

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Judgment-ELC Case No. E012 of 2020 (OS) liable to complete the sale. They submitted that Gazette Notice No. 9170 dated 6/11/2020 was fraudulent, for falsely claiming loss of the original title deed despite the fact that the 2 nd Defendant knew that the 1 st Plaintiff had the title and had placed a caution against the land. They added that the gazette notice falsely referred to a non-existent Nairobi Succession Cause No. 20 of 2009, which constitutes fraud under the Penal Code. They argued that the Land Registrar facilitated this without proper verification in breach of Sections 10 and 33 of the Land Registration Act. They argued that the Defendants’ actions of causing the publication were fraudulent. 16. They submitted that the orders sought could issue even specific performance because the suit land had not been sold to a third party and the 2nd Defendant and his siblings stated in their testimony that they lived on about 5 acres of the suit land leaving the 6 acres without occupation. They urged that if transfer and specific performance were impracticable, then the court should order a refund of the purchase price at Kshs. 7,200,000/= as per the valuation report. 17. The 1st Defendant submitted that it does not challenge the 1 st Plaintiff’s claim. That the evidence placed before the court showed that the 1st Defendant did not act unilaterally but responded to a formal request by the 2 nd Defendant regarding the administration of the estate. That when the Plaintiff’s advocates filed an objection to the gazettement, the 1 st Defendant recorded the objection in the land register and notified the Attorney General and refrained from taking further Page 8 of 15

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Judgment-ELC Case No. E012 of 2020 (OS) steps which shows strict adherence to procedural fairness under Article 47 of the Fair Administrative Action Act. 18. The 2nd Defendant submitted that the suit was time-barred since the contract dated back to 1978, and actions founded on contract must be brought within six years in accordance with Section 4(1) of the Limitation of Actions Act. He submitted that the six year period of limitation is a jurisdictional issue fixed by law and could not be extended by the court. He cited the case of Josephat Ndirangu v Henkel Chemical (EA) Ltd 2013 KEELR C890 (KLR) in support of that position. He submitted that the Plaintiffs could not locate the 6 acres purchased let alone taking possession and therefore their claim should fail. He contended that the mutation forms were neither registered to give rise to new numbers nor was a sketch plan produced, which means that the land was not surveyed and the court cannot find that an unsurveyed and uncertain portion of land can give rise to an enforceable title to land against the deceased’s estate. 19. He argued that there was no fraud on his part because all along he believed that the original title got lost. He submitted that the succession cause was mistakenly referenced as Nairobi Succession Cause No. 20 of 2009 in the Gazette but that it relates to Siakago PM’s Court. That this error was unintentional and excusable. He urged that since the suit is time-barred, the court lacks jurisdiction and the reliefs sought should not be granted. 20. The Plaintiffs filed supplementary submissions and urged that the court had jurisdiction to determine the matter and that the Page 9 of 15

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nd 2 Judgment-ELC Case No. E012 of 2020 (OS) Defendant raised a preliminary objection that was dismissed in February 2022. They argued that the 2 nd Defendant’s actions of fraudulently causing the 1st Defendant to publish a gazette notice feigning loss of title arose in November 2020 and the suit was filed in December 2020, which was within time under Section 26 of the Limitation of Actions Act. They also submitted that they impute creation of a presumptive or implied constructive trust, which is not subject to limitation of time. They maintained that the court had jurisdiction. 21. The issues for determination are whether the 1 st Plaintiff entered into a valid and enforceable sale agreement with the late Maringa Kibisho, whether the suit is barred by the Limitation of Actions Act, and whether the Plaintiffs are entitled to the reliefs sought. 22. The cause of action arises out of a sale agreement entered into by the 1st Plaintiff and the late Maringa Kibisho, the 2 nd Defendant’s father, for the sale of 6 acres out of Nthawa/Riandu/619 on 30/3/1978. The 2nd Defendant argued that since the sale took place in 1978, the claim is barred by Section 4(1) of the Limitation of Actions Act. The Plaintiffs argued that the suit is not time-barred because it is based on fraud, which was discovered in November 2020, when the 1 st Defendant published a gazette notice on the pretext that the title for the suit land was lost yet the 2 nd Defendant was aware that he had the title deed pursuant to the sale. They averred that since the fraud was discovered in November 2020 and this suit was filed in Page 10 of 15

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Judgment-ELC Case No. E012 of 2020 (OS) December 2020 then under Section 26 of the Limitation of Actions Act, the suit is not time barred. 23. Section 26 provides that where, in the case of an action for which a period of limitation is prescribed, the action is based upon the fraud of the Defendant or his agent, or the right of action is concealed by such fraud, or the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the Plaintiff has discovered the fraud or mistake or could with reasonable diligence have discovered it. The Plaintiffs contend that even though they did not plead a constructive trust, such a trust can be implied in this case, and that trusts are not subject to limitation of time. 24. Section 4(1) of the Limitation of Actions Act provides that actions founded on contract may not be brought six years from the date on which the cause of action accrued. It is trite law that fraud must be specifically pleaded and particularly proved. It is evident from the Plaintiffs’ pleadings that their suit seeks enforcement of the agreement dated 30/3/1978. The Plaintiffs did not specifically plead fraud but accused the 2nd Defendant of falsely claiming that the original title was lost and causing the publication of a gazette notice to the effect that the title was lost. They also contended that the 2nd Defendant gave false details of a nonexistent succession cause. 25. The court can still make a determination on whether a constructive trust arises in this case in light of the fact that a constructive trust can be implied even when it is not pleaded (see Aliaza v Saul [2022] KECA 583 (KLR). The Plaintiffs’ Page 11 of 15

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case is that the 1 st Judgment-ELC Case No. E012 of 2020 (OS) Plaintiff purchased Nthawa/Riandu/619 from the late Maringa Kibisho vide a sale agreement dated 30/3/1978. That on paying the agreed purchase price, the 1 st Plaintiff was given the original title to pursue the transfer in his favour. The 1 st Plaintiff and the vendor went to the land board and obtained LCB consent for the transfer. The transfer process was not completed because the vendor died. Subsequently, the 2 nd Defendant and his family became hostile and refused to allow them to take possession of the suit land. 26. The 1st Plaintiff produced the sale agreement dated 30/3/1978, made between himself and the late Maringa Kibisho, for the sale of 6 acres out of the suit land at a consideration of Kshs. 4,800/= plus Kshs. 300/= to cover customary claims, bringing the total to Kshs. 5,100/=. The vendor acknowledged receipt of Kshs. 3,500/= at the time of the agreement, and the balance was payable after obtaining LCB consent. The agreement was signed by the parties and witnessed by H.M.J. Utuku, Advocate. The 1 st Plaintiff also produced acknowledgement slips for the balance of Kshs. 1,600/=, showing that the purchase price was paid in full. He also produced a copy of the mutation form and LCB consent dated 26/9/1978 for the transfer of 6 acres out of the suit land. 27. The doctrine of constructive trust applies in this case and can implied from the circumstances. The conduct of the parties, the payment of the purchase price, the release of the title deed to the 1st Plaintiff, and obtaining LCB consent, all point to a clear common intention between the vendor and the 1 st Plaintiff to transfer 6 acres of the suit land to the 1 st Plaintiff. The suit land Page 12 of 15

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Judgment-ELC Case No. E012 of 2020 (OS) is subject to an overriding interest in favour of the 1st Plaintiff within the meaning of Section 28 of the Land Registration Act, which recognizes trusts, including implied and constructive trusts, as interests that affect land without their noting in the register. 28. From the evidence adduced, it is clear that the 1 st Plaintiff lawfully purchased 6 acres out of Nthawa/Riandu/619 from the late Maringa Kibisho in 1978 and fulfilled his obligations under the agreement. The completion of the sale transaction was frustrated by the vendor’s death before the transfer could be effected. The title to the suit land is still in the name of Maringa Kibisho. The court is persuaded that an order of specific performance would be appropriate in the circumstances. 29. The 2nd Defendant is the administrator of the estate of the late Maringa Kibisho. Under Section 79 of the Law of Succession Act, the property of a deceased person vests in the administrator upon the grant of representation, and the administrator assumes the duty to complete any unfulfilled obligations of the deceased. As the administrator of the estate of the late Maringa Kibisho, the 2nd Defendant stands in the shoes of the deceased and is therefore obligated to complete the transfer of the six acres to the 1st Plaintiff. The Plaintiffs produced a valuation report which estimates the current market value of the 6 acres out of the suit land at Kshs. 7,200,000/=. The valuation report was not contested by the 2nd Defendant. 30. The Plaintiffs have proved their case on a balance of probabilities and are entitled to the reliefs sought. The Land Registrar, Page 13 of 15

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Judgment-ELC Case No. E012 of 2020 (OS) Mbeere District is directed to register a mutation for (6) acres out of Nthawa/Riandu/619 in favour of the 1 st Plaintiff. Further, the Land Registrar, Mbeere District is directed to register an instrument of transfer for six (6) acres out of Nthawa/Riandu/619 in favour of the 1 st Plaintiff, James Mwangi Maina. The 2nd Defendant, Njuki Maringa, as administrator of the estate of the late Maringa Kibisho, shall give vacant possession of the six (6) acres to the 1st Plaintiff forthwith. The Officer Commanding Station (OCS) Siakago Police Station will provide security to the Plaintiffs during the process of taking possession of the six (6) acres to be curved out of Nthawa/Riandu/619. 31. In the alternative, the 2nd Defendant shall refund to the 1 st Plaintiff the current market value of the six (6) acres in the sum of Kenya Shillings Seven Million Two Hundred Thousand (Kshs. 7,200,000) within 90 days of the date of this judgment. The costs of this suit shall be borne by the 2nd Defendant. Delivered virtually at Bungoma this 18th day of February 2026. K. BOR JUDGE In the presence of: Ms. Emily Osiemo for the Plaintiffs Mr. Nicholas Mogaka for the 2nd Defendant No appearance for the 1st Defendant Page 14 of 15

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