Yunis (Suing as a trustee for and on behalf of Suhail Shahid) & 3 others v Rengwa (Sued personally and as Executors of Estate Swalehe Mohamed) & 4 others (Environment & Land Case 167 of 2021 & 4 (CM) of 2019 (Consolidated)) [2025] KEELC 29 (KLR)
The bottom line
#A Kwale court cancelled a family's land title and a company's purchase, restoring land sold decades earlier and refunding buyers KShs 1.9 million.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff is the lawful registered proprietor of the property known as Kwale/Msambweni 'A'/2909 (the Suit Property)
- 2.Whether the rectification of the register under Section 79(2) & (3) of the Land Registration Act No. 3 of 2012 was procedural
- 3.Whether the transfer of the Suit Property by transmission to the 1st and 2nd Defendant was fraudulent, illegal, null and void and should be revoked
- 4.Whether the 1st and 2nd Defendants transferred a good title to the 3rd Defendant
- 5.Whether the 3rd Defendant is a bona fide purchaser for value without notice of fraud
- 6.Whether the 3rd Defendant is entitled to the reliefs sought in the Counterclaim
- 7.Whether the 2nd Plaintiff is entitled to the reliefs sought
- 8.Whether the Plaintiffs in Kwale ELC Case No. 4 of 2019 are entitled to the Suit Property
- 9.Costs
Key legal issues
#Validity of the 1978 sale and registration to the Plaintiffs in ELC 167 of 2021
On a balance of probabilities the deceased Swalehe Mohamed sold the suit property to the 1st Plaintiff and the ensuing registration was lawful; the defendants produced no forensic or other evidence to impeach the documents
PW1 produced the sale agreement, acknowledgement notes, Land Control Board consent, transfer, registration fees receipt and land certificate. Although discrepancies in signatures and ID numbers were noted, the defendants called no handwriting expert and produced no proof of the deceased's true signature or the pre-transmission search they claimed to have conducted. The court had nothing against which to find the documents were forgeries.
Whether the rectification of the register under section 79(2) & (3) LRA was procedural
The rectification restoring the register to the deceased Swalehe Mohamed was unprocedural and unlawful; no notice of intention to rectify was issued, no errors or fraud were identified by evidence, and the green card was in effect reconstructed without compliance with section 33 or indemnity under section 81
DW3 the Land Registrar confirmed no notice of intention to rectify was issued and no application from a proprietor existed in the parcel file. He could only hazard a guess that fraud motivated the rectification, which cannot prove fraud. The reopening occurred to facilitate the 1st and 2nd Defendants' transmission, contrary to section 79 and Article 40 of the Constitution.
Whether the transmission to the 1st and 2nd Defendants was valid
The registration of the 1st and 2nd Defendants by transmission was a nullity because it was anchored on the unlawful rectification, and the property was not part of the deceased's estate at the time of succession as it had been sold and registered to the Plaintiffs decades earlier
Nothing comes out of an illegality; no entry anchored on the replaced green card can be sustained. Further, the sale and registration to the Plaintiffs predated the 2016 Kadhis Court succession proceedings, so the Rengwas had nothing to transmit. The court declined to determine the absence of a grant as academic.
Whether the 3rd Defendant was a bona fide purchaser for value without notice
The 3rd Defendant failed to prove bona fide purchaser status: no sale agreement, no proof of payment of the Kshs. 8 million consideration, no due diligence documents, and it purchased a tainted title from parties with no capacity to transfer
DW2 admitted she bought only a portion yet the transfer and title covered the entire 1.10Ha without subdivision contrary to section 42 LRA; she produced no search, no beacon certificate and no proof of payment. Her title could not be saved by indefeasibility under section 26(1)(b) as it was acquired illegally and unprocedurally.
Relief for the Plaintiffs in CMCC ELC No. 4 of 2019
Though the Deyas proved the sale agreement and payment of Kshs. 1.9 million, they were not entitled to the property or specific performance since the vendors' title was void; equity granted a refund of the purchase price despite it not being pleaded
The vendors' title derived from an irregular transmission and could pass no valid title, so specific performance could not issue for want of a valid enforceable contract. However, the money was acknowledged in writing and admitted orally as received, and it would be unconscionable to let the vendors retain it; equity intervened to order a refund.
Legal principles established
#- A registered proprietor whose title root is under challenge must go beyond the instrument of title and prove the legality of its acquisition
- A registrar's rectification materially affecting a proprietor's interest requires notice and due process under section 79 of the Land Registration Act
- Nothing comes out of an illegality; a registration anchored on an unprocedural rectification is a nullity
- A title acquired illegally, unprocedurally or through a corrupt scheme is impeachable under section 26(1)(b) even against a holder who did not participate in the vitiating conduct, and nemo dat prevents passing good title downstream
- Equity will order relief such as a refund even where the specific remedy was not pleaded, to avoid unconscionable enrichment
Court orders
#- 1.A declaration that the alleged rectification of the register under section 79(2) & 3 of the Land Registration Act No. 3 of 2012 was a nullity ab initio, devoid of procedure, illegal, unlawful and breach of Article 40 of the Constitution
- 2.A declaration that the Plaintiffs are the lawful owners of the suit property known as Kwale/Msambweni 'A'/2909
- 3.An order vesting wholly and unconditionally the suit property known as Kwale/Msambweni 'A'/2909 to the Plaintiffs
- 4.An order directing the Land Registrar Kwale to cancel the illegal entries vesting the suit property with the estate of the deceased Swalehe Mohamed, the 1st, 2nd and 3rd Defendant, and Certificate of Title held by the 3rd Defendant and reinstate the 1st and 2nd Plaintiffs as the lawful, bonafide proprietors, to be effected within 60 days of the date of judgment
- 5.No order for mesne profits
- 6.The 3rd Defendant's counterclaim dismissed with no orders as to costs
- 7.Costs of the Plaintiffs' suit in ELC 167 of 2021 payable by the 1st and 2nd Defendants
- 8.Judgment for the Plaintiffs in CMCC ELC No. 4 of 2019 against the 1st and 2nd Defendant for refund of Kshs. 1.9 Million with interest at court rates from the date of judgment, payable within 60 days
- 9.The suit against the 3rd Defendant in CMCC ELC No. 4 of 2019 dismissed with no orders as to costs
- 10.Costs of CMCC ELC No. 4 of 2019 plus interest payable by the 1st and 2nd Defendants
- 11.Leave to appeal granted to any of the parties if required
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over disputes relating to land parcel Kwale/Msambweni 'A'/2909
- Consolidated with
- Kwale CMCC ELC No. 4 of 2019
Relief refused
#Mesne profits sought by the 2nd Plaintiff
None of the parties took actual possession and no proof of future plans for the property was tabled; each case is decided on its facts
Registration of the suit property in favour of the Plaintiffs in CMCC ELC No. 4 of 2019 (specific performance)
Specific performance requires a valid enforceable contract, but the vendors had no capacity to transfer as their own title was irregular and void; their recourse is a refund
Plaintiffs' suit against the 3rd Defendant in CMCC ELC No. 4 of 2019
Fraud particulars against the 3rd Defendant were an afterthought not supported by witness statements or affidavit, and the court cannot speculate on missing documents
3rd Defendant's counterclaim
The 3rd Defendant failed to prove its case to the required standard, produced no sale agreement and no proof of payment of the purchase price
Costs
Costs of the Plaintiffs' suits in both ELC Case No. 167 of 2021 and CMCC ELC No. 4 of 2019 plus interest payable by the 1st and 2nd Defendants as the main originators of the litigation; the 3rd Defendant's counterclaim and the suit against the 3rd Defendant dismissed with no orders as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A declaration that the alleged rectification of the register under section 79(2) & 3 of the Land Registration Act No. 3 of 2012 was a nullity ab initio, devoid of procedure, illegal, unlawful and breach of Article 40 of the Constitution.
An order directing the Land Registrar Kwale to cancel the illegal entries vesting the suit property with the estate of the deceased Swalehe Mohamed, the 1st, 2nd and 3rd Defendant, and Certificate of Title held by the 3rd Defendant and reinstate the 1st and 2nd Plaintiffs as the lawful, bonafide proprietors.
The court hereby enters judgement for the Plaintiffs against the 1st and 2nd Defendant in CMCC ELC No. 4 of 2019 for the refund of Kshs. 1.9 Million with interest at court rates from the date of this judgement.
It is therefore the finding of this court that the rectification of the register was unprocedural and unlawful.
Nothing comes out of an illegality - see the Court of Appeal dictum in Athi Highway Developers Vs. West End Butchery & 6 Others (2015)
It cannot be saved on the basis of indefeasibility of title neither can it be saved on the basis of the doctrine of innocent purchaser for value without notice of fraud or defect.
where the registered proprietor's title root is under challenge, it is not enough to dangle the instrument of title as proof of ownership.
Leave to appeal the judgement of the court by any of the parties is hereby granted if required. It is so ordered.
Issues in the judgment
#The judgment states the suit property measures 1.10 hectares but DW2's evidence records her as purchasing '3 and a quarter Ha out of the 1.10HA', an internally inconsistent description
The judgment recites the sale agreement in the lower court suit as dated 3.08.2017 but states it was executed before an advocate on 22nd December 2022, an apparent typographical inconsistency
Paragraph numbering in the analysis section jumps from paragraph 170 to 180, and a number of dates contain evident typographical errors (e.g. payment acknowledgement 'dated 3/8/2027' and cross-examination date '29/12//17(sic 19)')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yunis (Suing as a trustee for and on behalf of Suhail Shahid) & 3 others v Rengwa (Sued personally and as Executors of Estate Swalehe Mohamed) & 4 others (Environment & Land Case 167 of 2021 & 4 (CM) of 2019 (Consolidated)) [2025] KEELC 29 (KLR)", Case Analysis (2025). ELC Case No. 167 of 2021 (consolidated with Kwale CMCC ELC No. 4 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/29/eng@2025-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.