Kepokel & another v Ketere & 2 others (Environment and Land Case E003 of 2023) [2026] KEELC 370 (KLR) (29 January 2026) (Judgment)
Neutral citation:
[2026] KEELC 370 (KLR)
Republic of Kenya
Environment and Land Case E003 of 2023
LN Gacheru, J
January 29, 2026
Between
Dopoi ole Kepokel
1st Plaintiff
Leina ole Kepokel
2nd Plaintiff
and
Lemasoi ole Ketere
1st Defendant
Kaleku ole Ketere
2nd Defendant
Kinampet ole Ketere
3rd Defendant
Judgment
1.The Plaintiffs herein moved the court vide an Amended Plaint dated 3rd July 2024, and sought for Judgment against the Defendants jointly and severally for;a.A declaration that the Plaintiffs are the rightful owners of the Sixty Three (63) acres to be excised from LR. Nrk/Cis-Mara/Olkinyei/1225 (Original number Plot Number 1025) as properly identified on the ground vide the sale agreement of 14th January 2013b.An order of specific performance compelling the Defendants to effect transfer of the sixty three(63) acres to be excised from LR Nrk/Cis-Mara/Olkinyei/1225(Original Number Plot Number 1225) and in default the Deputy Registrar of this court be granted authority to sign all the necessary transfer documents for and on behalf of the Defendants.c.Damages for breach of contract.d.In the alternative and without prejudice to prayers (a), (b) and (c) above the Plaintiffs pray for a refund for the sum of Ksh.1,575,000/= together with the interest at the rate of 30% per annum with effect from 9th April 2014 until payment in full.e.Interest (b), (c) and (d) above from the date of filing till payment in fullf.Costs of the suit.g.Any other or future relief this court deems fit and just to grant.
2.In their claim, the Plaintiffs averred that on or about 14th January 2013, they entered into a sale agreement with the 1st and 2nd Defendants for the sale of sixty-three (63) acres to be excised out of land parcel No. Nrk /Cis Mara. Olkinyei/1225(Group Ranch 1025), which measures 68.0Ha (170 acres), or thereabout, which land is within Olkinyei Group Ranch.
3.They further averred that prior to the signing of the sale agreement, the Defendants were the beneficiaries of the suit land No. 1225, under membership No. 1025 within Olkinyei Group Ranch, and the Plaintiffs purchased 63 acres from the Defendant at ksh 25,000/=, per acre. The total purchase price was ksh. 1,575,00/=, which the Plaintiffs fully paid to the 1st and 2nd Defendants.
4.Further, that on 9th April 2014, the 1st and 2nd Defendants acknowledged receipt of ksh 1,050, 000/= being the final payment of the purchase price, and they took possession of the 63 acres. That with the consent of the Defendants, they leased the said land to Porini Olkinyei Ltd, and the said lessee has been paying the lease amount every month.
5.The Plaintiffs claimed that sometime in 2016, unknown to then, the 3rd Defendant fraudulently caused his name to be entered as the sole proprietor of the suit land, which was in breach of the contractual obligations on the part of the Defendants.
6.They particularised the fraud on the part of the 3rd Defendant in para 11 of the Plaint, and breach of contractual obligations on the part of the Defendants in Para 14 of the Plaint.
7.It was their further claim that in June 2023, when they went to collect their monthly dues from Porini Olkinyei Ltd, the Defendants refused to give their consent alleging that they had not sold the suit land to the Plaintiffs. Therefore, the Plaintiffs stand to suffer irreparable damages by being denied from benefiting from the parcel of land which they had duly paid for and thus this suit.
8.The suit is opposed through the Defendants defence dated 28th October 2024, in response to the Plaintiffs’ amended Plaint, they denied the sale agreement dated 14th January 2013, which was in respect of land referenced as No1025, measuring 68.0 ha, but not Nrk/Cis Mara/Olkinyei/1225.
9.The Defendants also denied that the suit property was ever owned by the Defendants, and that in the alleged sale agreement of 14th January 2013, the 3rd Defendant never executed the same, as a co-proprietor of the suit property. Further, that the said sale agreement was never about the land parcel No. Cis Mara/ Olkinyei/1225.
10.It was the Defendants’ contention that they never received the said amount as purchase price, and that they did not acknowledge receipt of any money from the Plaintiffs. They contended that the 1st and 2nd Defendants are illiterate and were not capable of appending their signatures or executing the sale agreement dated 14th January 2013, nor the acknowledgment dated 9th April 2014, and did put the plaintiffs to strict proof.
11.Further, the Defendants denied that they were privy to the agreement between the Plaintiffs and Porini Olkinyei Ltd, and they denied that the Plaintiffs have ever been in possession of the suit land. It was the 3rd Defendant’s contention that he is a co-registered proprietor of the suit land with indefeasible title which was issued on 3rd June 2016.
12.The Defendants further denied that they ever ceded any part of the suit land to the Plaintiffs, and they denied the allegations of fraud and breach of contract. They further denied any transaction between the Plaintiffs and the Defendants over the suit property and did put the Plaintiffs to strict proof.
13.It was their contention that the Plaintiffs have not suffered any damages, given that there has never been any transaction legally in law between the parties herein over the suit property.
14.The defendants urged the court to dismiss the Plaintiffs suit with costs.
15.After the case management, the suit was set down for hearing through viva voce evidence. The Plaintiffs called five witnesses to support their case, and the Defendant only called one witness.
Plaintiffs’case
16.PW1 Dopoi Ole Kepokel, adopted his witness statement as his evidence in chief. He also produced his list of documents as P. exhibits 1 to 3. It was his evidence that together with his brother Leina, they bought 63 acres out of land parcel No.1225, from the Defendants on 14th January 2013. That they entered into a sale agreement, which was drawn by Mungai Advocates. The Plaintiffs paid the purchase price in two instalments, which the Defendants fully acknowledged. He identified the sale agreement in court and produced it as an exhibit.
17.It was his further evidence that after purchase, they leased the land to Porini Conservancy Ltd, and they entered into the suit land in 2015, and leased it to Porini Ltd the same year, and there was no objection from the Defendants who were the vendors.
18.However, in 2023, the 3rd Defendant alleged that the whole suit land belongs to him, and denied that the Plaintiffs had purchased the 63 acres. It was his evidence that when they bought the land, it was in still registered in the name of the Defendants’ father name Olkisenyeki Ole Ketere, and when they bought the land, it was never transferred to them, as survey work had not been done. He also testified that the lease with Porini Conservancy was registered and he produced the Green Card to confirm that position.
19.Upon being cross examined by Mr Kamwaro for the Defendants, he confirmed that the sale agreement was over land parcel No 1025, and not 1225. He also confirmed that during the time of purchase, the suit land was in the name of Olkiseiyeki Ole Ketere, and not in the names of the 1st and 2nd Defendants, who did not have the title deed for the suit land. He also confirmed the acknowledgment was signed before Mary Wanjuhi Advocates and not Mungai Advocates. Further that the title deed was never given to them, and the lease agreement with Porini Conservancy remained with them.
20.It was his evidence that the Defendants were to subdivide the land and later transfer 63 acres to the Plaintiffs, which subdivision and transfer has not been done as there was a dispute with the surveyor. He confirmed that he knew the land was registered in the name of the Defendants father when they bought it.
21.In re-exam, he confirmed that he witnessed the 1st and 2nd Defendants signing the sale agreement.
22.PW2 Leina Ole Kepokel a brother to Pw1, also adopted his witness statement as his evidence in chief. He confirmed that he knew the Defendants and that they purchased land from them.
23.In cross exam by Mr Kamwaro, for the Defendants, he confirmed that the land that they purchased was not in the names of the Defendants, and that they did not produce any lease agreement with Porini Conservancy.
24.PW3 Rereu Ole Kipokel confirmed that he recorded his witness statement on 28th May 2024, which he adopted as his evidence in chief. He also confirmed that he knows the parties herein; the plaintiffs are brothers and the Defendants are brothers too.
25.It was his evidence that the two groups transacted wherein the 1st and 2nd Defendants sold 63 acres out of land parcel No 1225 to the Plaintiffs. He confirmed that he was present during the transaction, and the sale agreement was drawn at Muigai, Kemei Advocates, and he witnessed the said transaction by signing the sale agreement. It was his evidence that the land was sold at ksh 25,000/= per acre, and the total purchase price was ksh 1,575,000/=, and that he was present from the beginning of the transaction to the end. He confirmed that the full purchase price was paid in his presence and that the Defendants signed the sale agreement.
26.Further, he testified that the Plaintiffs bought the land with a lease to Porini Olkinye Ltd, and the Plaintiffs also entered into a lease with the said Porini Conservancy, but the Defendants have now refused to give the purchased land to the Plaintiffs and thus this case.
27.Upon being cross examined, he confirmed the sale agreement refers to land parcel No 1025 and not 1225. That the said land was already leased to Porini Conservancy as evident from a copy of the Green Card. He also confirmed that at the time of entering the sale agreement, the land was registered in the name of Olkisenyeki, but the said land was later registered in the name of Kinampet, the 3rd Defendant herein.
28.He told the court that he did not see the lease agreement between the Plaintiffs and Porini Olkenyei Ltd and the Defendants. He confirmed that there was no title in the name of the 1st and 2nd Defendants, and no title was issued in the names of the Plaintiffs. He also testified that the Defendants later sold the land to another purchaser, who was not in court.
29.In re-exam, he confirmed that land Parcel No 1025, was the same as land parcel No 1225, as No 1025 was before the title was issued. Further, that Porini Ltd Knew that the Plaintiffs had bought the land from the Defendants, while it was on lease and the Plaintiffs continued receiving the lease money.
30.PW4 Pariken Ole Kipukel told the court that he knew the Plaintiffs as sons of Kepokel. He also knew the Defendants too and he adopted his witness statement as his evidence in chief. He further told the court that on 14th January 2013, the plaintiffs bought land from the Defendants, and he was present when the sale agreement was drawn. That the said sale agreement was prepared by Mary Mungai Advocate’s office, and he witnessed the signing of the said sale agreement.
31.Further, he witnessed the acknowledgement of receipt of all the monies paid towards the purchase price. Further, that the land purchased by the Plaintiffs was part of Parcel No 1225. It was his evidence that he did not know why the Plaintiffs have sued the Defendants.
32.Upon being cross examined, he testified and confirmed that he is not literate and he does not know how to read and write although he witnessed the land being sold via the sale agreement of 14th January 2013. He also did not know that the land was registered as parcel No 1025, but he knew it was No 1225. It was his evidence that he knew the Pefendants from the date he witnessed the sale agreement.
33.PW5 Sammy Mumeita Mpusia an employee of Olkinyei Conservancy where he works as a caretaker and liaison person of the land owners adopted his witness statement dated 28th May 2024 as his evidence in chief.
34.It was his evidence that he is the one responsible of dispensing lease payments to the land owners since 2013 and he knew about the suit land which is at Olkenyei. He stated that he knows the Defendants well and in 2013, the Defendants as representatives of Ole Keter family visited their offices and reported that they had sold a portion of their land to Kepokel family being 63 acres, and they had a sale agreement, which he saw, and identified it in court.
35.Further, that the Defendants directed them to be paying the Kepokel for the 63 acres, and they have done that since then, and there was a lease signed by the parties. It was his evidence that the Ole Keteres sold 42 acres to one Siti, and the Ole Ketere have no land left for them, as they also sold land to Porini Conservancy. He was surprised that the Ole Ketere were denying ever having sold the land to the Ole Kepokel.
36.Upon being cross examined, he confirmed that the suit land No 1225 belonged to the Defendants’ father, and there was not title in the name of the Defendants, as the title was in the name of their father. He confirmed having seen the sale agreement, and the sale agreement indicates the land sold was No 1025, but it is supposed to be No 1225. It was his further evidence that the family of Ole Ketere has no interest on the suit land as they sold it wholly to the Ole Kepokel, Siti and Porini Conservancy. He did not have sale agreements for the other purchasers or their title deeds and the land is not sub divided.
37.On re exam, he confirmed that he 1st and 2nd Defendants sold the land to the plaintiffs, although he did not have the said sale agreement in court, and that the Defendants sold the whole parcel of land, and they do not own any portion of he said land, as they also sold the remaining land o two other purchasers Porini Conservancy included.
Defence Case
38.DWI Kinampet Ole Ketere, the 3rd Defendant herein adopted his witness statement as his evidence in chief. It was his evidence that the Defendants own the suit land Nrk/ Cis Mara /Olkinyei/1225 and he produced the certificate of search as his exhibit in court.
39.He denied that the Plaintiffs purchased the suit land and that they have ever owned the said land at all.
40.Upon being cross examined by Ms Saika for the Plaintiffs, he testified that he owns the land together with Porini Conservancy. It was his evidence that he became the registered owner of the suit land on 3rd June 2016, and he obtained a title to that effect. He confirmed that the land initially belonged to his father, who died in a year that he could not recall.
41.He denied that there was fraud in having the land transferred to his name, and he denied that the Plaintiffs rights were denied due to the transfer of the land to his name. He also denied that the land was ever sold to the Plaintiffs, and further denied that the Plaintiffs have ever been paid by Porini Conservancy, and although he raised a complaint with the Chief, he did not produce that complaint in court as his evidence.
42.However, he confirmed that when he reported that matter to the chief, the payment by Porini Conservancy to the Plaintiffs stopped, and thus he Plaintiffs filed this suit. It was his evidence that he obtained the title for the suit land in his name, but not through fraud. He also confirmed that he had authority to plead for the other Defendants. I was his evidence that the land had been leased to Porini Conservancy, but Porini never paid him.
43.On re exam, he told the court that he was not familiar with the sale agreement in issue. He also denied having obtained the title to the suit land fraudulently, but alleged he acquired it legally or regularly. Further, he testified that the 1st and 2nd Defendants had no right to sell the land, and that no transfer forms were signed in respect of transfer of the suit land to the Plaintiffs.
44.After the close of the case, the court directed the parties to file and exchange written submissions. The parties complied through their respective advocates and filed the written submissions.
45.The Plaintiffs filed their submissions through Saika& Co Advocates, set out the background of the case and three issues for determination being;i.whether there was a binding and valid agreement for sale entered between the plaintiffs and defendants;ii.whether the plaintiffs are entitled to the orders of specific performance;iii.(iii) whether the suit land forms part of the deceased estate and should therefore revert to the estate.
46.On whether the parties entered into a valid and binding agreement the Plaintiffs submitted that indeed the parties entered into a sale agreement dated 14th January 2013, for sale and purchase of 63 acres out of land Parcel No. Cis Mara/Olkinyei/ 1225, under membership 1025. The Plaintiffs relied on the provisions of Section 3(3) of the Law of Contact Act on what entails a contract of sale of land being; in writing; signed by all parties and attested by witnesses.
47.For the above submissions, the applicant relied on the case of Omar Gorhan vs Municipal Council of Malindi, Overlook Management Kenya Ltd (2020) eklr; and submitted that the sale agreement entered in 14th January 2013, between the Plaintiffs and Defendants was binding as there was an offer by the Defendants, which was accepted by the Plaintiffs and they paid a consideration being the purchase price. Further that both parties had intention to create a legal relation when they both executed the sale agreement which was also attested and is legally binding on both parties.
48.On whether the Defendants received and acknowledged full consideration for 63 acres, the Plaintiffs submitted that there is evidence that on 9th April 2014, the Defendants indeed signed an acknowledgement that indeed they received the full purchase price, which acknowledgement was executed by both the plaintiffs and the Defendants and attested as per the law.
49.On whether the Plaintiffs are entitled to specific performance and given that they are in actual occupation, they submitted that they entered into the sale agreement in good faith, but the Defendants have not transferred the suit land to them, and should be compelled to do so through specific performance. Reliance was sought in the case of Maina & 87 others vs Kagiri (Civil Appeal No 6 ,26& 27 of 2011) consolidated (2014) (KECA 880(KLR) (22nd January 2014); Isack M’inanga Kieba vs Isaaya Theuri M’lintari (2018) eklr.
50.On whether the Defendants subsequent dealings with the land was fraudulent and unlawful, they submitted by the 3rd Defendant procuring registration of the suit land in his name, he acted fraudulently, unlawful and contrary to the law. That he concealed material facts being the prior sale of the suit land to the Plaintiffs, and that the original allottee was deceased. Therefore, the 3rd Defendant’s title was impeachable for having been obtained through fraud, illegally and through corrupt scheme.
51.On whether the suit land forms part of the deceased estate and should revert back to his estate, they submitted that the suit land does not form part of the estate of the deceased father to the Defendants and should not revert to his estate. It was their argument that the suit land Cis Mara/Olkinyei/ 1225 was part of Olkinyei Group Ranch, but was not registered in the name of the deceased, but was subsequently allocated to the deceased’s sons as his beneficiaries, who treated it as a joint family land. They relied on the case of Isack M’inanaga Kieba vs Isaaya Theuri M’lintari (supra).
52.In conclusion, the Plaintiffs submitted that the 3rd Defendant cannot in equity seek relief or protection of the law when his hands are tainted with dishonesty and illegality since he who comes to equity must come with clean hands. The Plaintiffs further submitted that the 3rd Defendant procured the title deed through unscrupulous means after the death of his father and in disregard of the Plaintiffs existing proprietary rights under the sale agreement of 2013.
53.Reliance was sought in the case of Kenya Airport Authority Vs Mitu -Bell Welfare Society (2021) KECA 105(KLR) where the Supreme Court held that equity frowns upon unjust enrichment and rewards only those with integrity and clean hands. The Plaintiffs urged this court which sits both as a court of law and equity to decline any relief sought by the defendants.
54.The Plaintiffs urged the court to allow their prayers as sought in the Plaint being a declaration that they are the rightful owners of 63 acres to be excised from LR Nrk/Cis Mara/Olkinyei/1225, as well as the other prayers sought in the Plaint and/ or as the court may deem necessary to grant.
55.In opposition to the claim, the Defendants filed their written submissions dated 8th November 2025, through Kamwaro& Co advocates and urged the court to dismiss the plaintiffs claim with costs to themselves.
56.After brief facts of the case, the Defendants submitted on four issues. On whether the Plaintiffs have established a cause of action against the Defendants, it was submitted that the Plaintiffs claim is grounded on the sale agreement dated 14th January 2013, that was allegedly between the Plaintiffs and the 1st and 2nd Defendants over land parcel No Nrk/Cis Mara/Olkinyei/1225. However, the 1st and 2nd Defendants were not the owners of the suit land, but the said land was owned by Olkiseiyeki Ketere, and later by 3rd Defendant and Porini Olkenyei Ltd.
57.It was their further submissions that the sale agreement in issue cannot be enforced since the 1st and 2nd Plaintiffs were not the registered owners, and the 3rd Defendant was not privy to the said sale agreement. Therefore, the Plaintiffs do not disclose any cause of action against the Defendants.
58.On whether the sale agreement in issue between the Plaintiffs and 1st and 2nd Defendants was an enforceable contract, the Defendants submitted that the alleged vendors 1st and 2nd Defendants were never registered as proprietors of the suit land, and they had no capacity to sell the said suit land.
59.Reliance was sought in the following cases being; Re-estate of M’Ajogi M’kiugu ( deceased) ( 2017) eklr; Kamau vs Kiarie & Another( Legal Representatives of the estate of Naomi Wambui Kiarie( 2024) KEELC 222(KLR) & Samuel Ariga Bosire vs Abagusi Oenyo Self help group ( 2021) eklr; Morris Mwiti Mburugu vs Dennis Kimanthi Mburugu( 2016) eklr; David Sironga Ole Tunai vs Francis Arap Muge & 2 Others( 2014) eklr and submitted that ant person who interferes with the free property of the deceased person contrary to the provisions of sections 45 and 82 of the Law of Succession, intermeddles and cannot be protected by the court.
60.On whether the Plaintiffs are entitled to the remedies sought, the Defendants submitted that the Plaintiffs are not entitled to the orders of specific performance. Reliance was sought in the case of Reliable Electrical Engineers Ltd vs Mantrac Kenya Ltd (2006) eklr, where the court held;
61.On costs, the Defendants relied on the case of Machakos ELC Pet No. 6 of 2013 party of Independent Candidate of Kenya & Another vs Mutula Kilonzo & 2 others [2013]eklr and urged the court to award them costs of the suit.
62.The above are the pleadings in the instant case, the rival written submissions and he cited authorities which this court has carefully read and considered and finds the issues for determination are;i.Whether the plaintiffs are entitled to the prayers sought in their amended Plaint;ii.Who should bear costs of this suit?
63.In answering the above two issues, the court also consider the issues raised by the parties in their respective written submissions.
64.From the Plaintiffs claim and the available evidence, there is in existence a sale agreement for sale of 63 acres out of land parcel No 1025, which measure 68.0ha. The Plaintiffs averred that this sale agreement was in respect of land parcel No. Nrk/Cis Mara/ 1225, with membership No 1025.
65.The Defendants denied ever having entered into any sale agreement with the Plaintiffs, and in any event they claimed that the suit land Cis Mara/ Olkinyei/ 1225, was not registered in their names, and therefore they could not enter into any valid agreement.
66.The 1st and 2nd Defendants did not testify in court nor record witness statements, and so their denial or truthfulness could not be tested through cross examination, and the court could also not have the benefit of observing their demeanour nor confirm of their literacy or not.
67.However, apart from the Plaintiffs, three other witnesses being Pw3, Pw4 and Pw4 gave evidence and confirmed that they were present when the Plaintiffs and 1st and 2nd Defendants signed the sale agreement dated 14th January 2013.
68.From the said sale agreement which was produced as P.Exibit No 1, the said agreement was signed by Lemasoi Ole Ketere and Kaleku Ole Ketere as the vendors, and Dopoi Ole Kepokel and Leina Ole Kepokel signed as purchasers by affixing their thumb prints. The Plaintiffs gave evidence in court, and the court confirmed that they were not literate and gave their evidence in Masaai Language which was interpreted to English by the Court Assistant.
69.However, since Lemasoi Ole Ketere and Kaleku Ole Ketere chose not to give evidence in court, but participated through the 3rd Defendant, this court cannot hold and find that they all illiterate and could not have appended their signatures on the sale allegations. The court holds so while considering the provisions of Section 107 and 109 of the Evidence Act on the fact that he who alleges must proof.
70.The three witnesses called by the Plaintiffs confirmed that they were present at the Advocates office, and they saw the 1st and 2nd Defendants append the signatures on the sale agreement dated 14th January 2013.
71.Further, the Plaintiffs and the witness confirmed that at the first instance of signing the sale agreement, the Plaintiffs paid ksh 525,000/= as first instalment for the purchase price. The witnesses also confirmed that the Plaintiffs paid the balance of ksh 1,050,000/= to 1st and 2nd Defendants and on 9th April 2014, the parties appeared before the advocates office where the 1st and 2nd Defendants signed an acknowledgment that they had received the full purchase price towards sale of 63 acres out of Nrk /Cis Mara/Olkenye/1225, though the initial sale agreement indicated land parcel No.1025.
72.Therefore, there is no doubt that the Plaintiffs and the 1st and 2nd Defendants entered into a sale agreement for sale of 63 acres out of the suit land, which was alleged to be 170 acres. This sale agreement was in writing, was signed by the vendors and the purchasers, and was witnessed by three witnesses at the time of execution. Therefore, primafaciely, the sale agreement fits the description of a contract for sale of land as provided by Section 3(3) of the Law of Contract Act, and Section of the Land Registration Act.
73.It was the Plaintiff’s evidence that at the time of the purchase, the suit land had been leased to Porini Olkenyei Ltd for 12 years with effect from 2007. Indeed, the Green card produced as exhibit confirms the said entry of a lease on the encumbrances section.
74.The Plaintiffs averred that after the purchase, they continued with the said lease with Porini Olkenyei Ltd, and the said Conservancy and the Plaintiffs signed a lease agreement. However, the said lease agreement was not produced as exhibit in court, and evidence of payment and receipt of payment for such lease was not availed in court as exhibits.
75.However, PW3, who testified that he was a liaison officer for the conservancies, and he was responsible for disbursing payments to lease holders and he told the court that in 2013, they were informed that the 1st and 2nd Defendants had sold their shares of the suit land to the Plaintiffs, and when they were given the sale agreement, the monthly lease payments was directed to the Plaintiffs until when the dispute arose.
76.Further, the 3rd Defendant in cross examination did confirm that the monthly payments for the lease was being paid to the Plaintiffs, and only stopped when he reported the matter to the Chief. Therefore, there is no doubt that due to the sale agreement between the Plaintiffs and the 1st and 2nd Defendants, the Plaintiffs continued being paid monthly payments for lease. However, evidence of such payment was not produced nor the lease agreement between the Plaintiffs and Porini Olkenyei Ltd.
77.Further, it is evident that the 3rd Defendant who is a brother to the 1st and 2nd Defendants was not privy to the sale agreement in issue since he never sold it. Further, it is not in doubt that at the time of signing the sale agreements, the suit land was registered in the name of Olkisenyeki Ketere, who was the father to the Defendants herein. It is not clear when the said father (registered owner)he passed on, but the Plaintiffs did confirm to court that at the time of entering into the sale agreement, the Defendants’ father was deceased.
78.It is evident that in the year 2023, the 3rd Defendant raised a complaint, which complaint culminated in the Plaintiffs being denied payment of the monthly dues from the lease of the suit land to Porini Olkenyei Ltd, and thus this suit. The Plaintiffs have urged the court to enforce the sale agreement and then find and hold that the Plaintiffs are the rightful owners of 63 acres out of the suit land Nrk/Cis Mara/Olkenyei/1225, as indicated in the said sale agreement.
79.Though the Defendants denied that they signed that said sale agreement, this court has found and held that there is sufficient evidence to proof that 1st and 2nd Defendants signed the sale agreement in dispute, but the 3rd Defendant was not privy to it.
80.The question that this court will determine next is whether the said sale agreement of 14th January 2013 is enforceable? It is evident that as at 14th January 2013, the suit land was registered in the name of the deceased person who was the father to the Defendants herein. There was no evidence whether Succession proceedings had been undertaken. What is not in doubt is that the land was not in the names of the 1st and 2nd Defendants who entered into the sale agreement for sale of 63 acres to the Plaintiffs, which was allegedly their shares of the land.
81.The suit land being registered in the name of a deceased person, then the 1st and 2nd Defendants did not have capacity to transact over it, leave alone to sell their expected sharesto be filed. The Defendants needed to wait for succession proceedings and after confirmation of Grant and distribution of the estate, then they could sell their respective shares.
82.This court will concur with the holding of the court in the case of Re-estate of M’Ajogi M’kugu (deceased) (supra) where the court held;
83.Further, from the above holding of the court and the provisions of Sections 55 and 82 of the Succession Act, it is clear that the law forbids any person, whether a beneficiary or not from disposing or selling off or dealing with the estate of a deceased person before letters of administration are taken and confirmed.
84.It is evident from the provisions of Section 45 of the Succession Act, that any person who interferes with the free property of the deceased contrary to the clear provisions of the Act is guilty of intermeddling with the estate of the deceased. See the case of re Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR.
85.From the Green Card the land was still registered in the name of the deceased father to the Defendants, then the did not have capacity to deal or enter into any sale agreement for the sale of the suit land.
86.Capacity or locus standi herein means the right to administer or to deal with the estate of the deceased person, or a person who has been appointed as the Personal Representative of the estate of the deceased through grant of Probate or Letters of Administration with legal capacity to manage, sell and or distribute the deceased property. See the case of Kamau Vs. Kiarie & Another (2024) KEELC 222.
87.The 1st and 2nd Defendants lacked locus standi or capacity to transact or deal with the land or property of their deceased father. Therefore, this sale agreement dated 14th January 2013, having been a sale involving the land of a deceased person, and having been executed by parties without capacity is not enforceable. See the case of Hussein v Gedi; Adan (Interested Party) (Environment & Land Case E009 of 2024) [2025] KEELC 931 (KLR) (26 February 2025) (Ruling);
88.The Plaintiffs have sought to be declared the rightful owners of the suit land. Even if the 1st and 2nd Defendants had capacity to sell the land, the said sale was in regard to sell of agricultural land, and as provided by Section 6 of the Land Control Act, the consent of the local Land Control Board was required. See Section 6 of Land Control Act;6.Transactions affecting agricultural land“(1) Each of the following transactions that is to say—a.the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a land control area;b.the division of any such agricultural land into two or more parcels to be held under separate titles, other than the division of an area of less than twenty acres into plots in an area to which the Development and Use of Land (Planning) Regulations, 1961 (L.N. 516/1961) for the time being apply;(c)the issue, sale, transfer, mortgage or any other disposal of or dealing with any share in a private company or co-operative society which for the time being owns agricultural land situated within a land control area, is void for all purposes unless the land control board for the land control area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act.”
89.Without the Land Control Board Consent, it is evident that any transaction involving agricultural land or former Group Ranch land is null and void. See the case of Gatimu Kinguru v. Muya Gathangi [1976] KLR 253
90.Since there is a valid sale agreement which cannot be enforced or is not enforceable, the only reprieve the Plaintiffs have is a refund of the purchase price. See the case of Oyuga v Oluoch (Environment and Land Appeal 19 of 2020) [2023] KEELC 17348 (KLR) (11 May 2023)
91.Having found that the 1st and 2nd Defendants sold part of the deceased suit land without capacity, and thus the sale agreement is not enforceable, this court finds and holds that the Plaintiffs are not entitled to prayers No1 and 2 of their Plaint since the court cannot declare them to be the rightful owners of the suit land and/or order for specific performance in respect of the sale agreement of 14th January 2013.
92.However, the Plaintiffs are entitled to refund of the purchase price of ksh 1,575,000/= but not as prayed in prayer d, but in the following terms; ‘’the plaintiffs are entitled to refund of the full purchase price of ksh 1,575,000/= from 9th April 2014, to the date of payment in full with interests at court’s rate”
93.On damages, it is trite that a Claimant for such claim needs to avail evidence. The Plaintiffs herein did not avail any evidence in support of their claim for general damages and thus the court cannot grant them that prayer. See the case of Abdul Vs. Mokua (Civil Appeal E077 of 2023) [20225] KEHC 4105 (KLR).
94.On costs, it is evident from the provisions of Section 27 of the Civil Procedure Act that costs are awarded at the discretion of the court. Further costs follow the event unless circumstance exits to warrant the court to depart from the above position. In the instant case, no such circumstances exist, and since the Plaintiffs have partially succeeded, they are award costs of the suit.
95.Ultimately, the court finds and holds that the Plaintiffs have failed to prove their case against the Defendants on the required stand of balance of properties in terms of prayers No, a, b, and c, of their claim and the court declines to allows them. However the court allows the alternative prayer No (d) with modification being; the court directs the Defendants to refund to the Plaintiffs’ the full purchase price of ksh 1,575,000/=from 9th April 2014 until payment in full, with interests at the court’s rate.
96.Further, the Plaintiffs are awarded costs of this suit.it is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK THIS 29TH DAY OF JANUARY, 2026.………………………………L. GACHERUJUDGE.Delivered online in the presence ofElijah Meyoki - Court Assistant.N/A for PlaintiffsMr. Kamwaro for Defendants