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ELCPartially AllowedELC Case (Kitale) – amended plaint dated 13/5/2024 and amended defence and counterclaim dated 19/6/2024

Watibini & 2 others v Board of Management St Brigid’s Girls High School Kiminini & 2 others (Environment and Land Case 24 of 2020) [2025] KEELC 6691 (KLR)

Environment and Land Court
1 October 2025
5,237 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A family lost their land claim in Kitale after skipping their own hearing, and the school that bought part of the land won a court order forcing its transfer to them.

What this practically means

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Executive summary

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The plaintiffs, executors of the estate of Wenslau Watibini (deceased), sued alleging that L.R. No. 6670 at Kiminini, beneficially owned by the deceased, had been erroneously registered in the name of the interested party, and that the 1st defendant school, sponsored by the 2nd defendant (Catholic Diocese of Kitale), had trespassed onto part of it on the strength of a forged and illegal sale agreement allegedly made with the deceased. They sought declarations of beneficial ownership, forgery, trespass, eviction and damages. The defendants denied the claim, asserting they bona fide purchased 0.75 acres for Kshs. 1,550,000/- under an agreement dated 19/5/2008, paid by deposit and bankers' cheques, took vacant possession in 2008, and developed the land, raising a constructive trust and counterclaiming for a declaration of purchase and an order compelling transfer. At the hearing on 2/7/2025 the plaintiffs and their advocates failed to attend, and the court dismissed the suit for non-prosecution and directed the counterclaim to proceed. Francis Murikwa (PW1) and Edward Baraza (PW2) testified for the defendants, producing the sale agreement, bankers' cheques, minutes, surveyor's report and photographs. The court held that allegations of fraud and forgery required specific pleading and proof, which was absent; that the deceased had lawfully sold, been paid and handed over possession during his lifetime; and that payment of the full price and delivery of possession created a constructive trust, the defendants also being bona fide purchasers for value. The counterclaim was allowed with costs to the defendants.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.If the plaintiffs have the capacity to advance the suit on behalf of the late Wenslaus Watibini regarding the suit land
  2. 2.If the deceased was the beneficial owner and occupier of L.R. No. 6671
  3. 3.If the plaintiffs have proved that the defendants have trespassed onto L.R. No. 6671 and caused permanent developments thereon
  4. 4.If the plaintiffs have proved that there was illegality in the alleged sale, occupation, use and development of the suit land by the defendants
  5. 5.If the plaintiffs have proved entitlement to a transfer of the suit land from the interested party
  6. 6.If the plaintiffs are entitled to reliefs (b), (c), (d), (e) and (f) of the amended plaint dated 13/5/2024
  7. 7.If the defendants have proved justification by way of the purchase of 0.75 acres out of L.R. No. 6671 from the deceased
  8. 8.If the defendants are entitled to the reliefs sought

Key legal issues

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01

Effect of plaintiffs' non-attendance and non-prosecution

Holding

The plaintiffs' suit was dismissed under Order 12 Rule 3(1) for non-attendance; filed documents remained mere statements, not evidence

Reasoning

The plaintiffs took a hearing date by consent but failed to attend or call witnesses. Their pleadings and documents were never tendered in evidence, so the contents remained mere statements. The dismissal left the counterclaim to be prosecuted, and the defendants still had to prove their case.

p. 7
02

Whether the plaintiffs proved forgery, fraud or illegality of the sale

Holding

No - no evidence of forgery or fraud was tendered, and exhibits were never subjected to forensic examination

Reasoning

The plaintiffs alleged the sale agreement was forged but produced no evidence, no forensic document examination, and the interested party was not called. The deceased signed the agreement, received bankers' cheques on 19/5/2008 and handed over vacant possession before his death in 2010.

p. 7
03

Whether a constructive trust arose in favour of the defendants

Holding

Yes - payment of full purchase price and handing over of vacant possession in 2008 created a constructive trust

Reasoning

Relying on Kimutai Kitilit and Shah v Mombasa Bricks & Tiles, the court found that the deceased received consideration, handed over vacant possession, and neither he nor the plaintiffs objected to occupation and development between 2008 and the filing of suit. It would be unjust to let the plaintiffs retain both land and money.

p. 8
04

Whether the defendants are bona fide purchasers for value

Holding

Yes - they proved innocence, purchase for value and possession of the land since 2008

Reasoning

The defendants paid valuable consideration, took vacant possession in 2008, and developed the land without objection. No evidence was tendered to show they were not innocent purchasers. The later rectified certificate of lease was subject to the overriding interests accrued in their favour since 2008.

p. 9

Legal principles established

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  • Parties are bound by their pleadings and issues flow from the pleadings
  • Allegations of fraud and illegality must be specifically pleaded and proved to a standard higher than a balance of probabilities
  • A document does not become evidence merely by filing; it must be produced and proved as an exhibit
  • To succeed in a claim for trespass a claimant must prove title or actual/constructive possession
  • Receiving full purchase price and putting a purchaser in possession creates a constructive trust evidencing common intention
  • A constructive trust can be imported into a land sale agreement to defeat a registered title

Court orders

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  1. 1.Dismissal of the plaintiffs' suit for non-attendance and non-prosecution
  2. 2.Declaration that the 2nd defendant is the lawful and bona fide purchaser for value of 0.75 acres out of L.R. No. 6671 from the deceased (prayer (a) of the counterclaim)
  3. 3.Order that the plaintiffs' administrator sign all necessary legal documents to subdivide, transfer, and register the bought suit land in favour of the 2nd defendant, in default the Deputy Registrar to execute (prayer (b) of the counterclaim)
  4. 4.Costs of the plaint and the counterclaim to the defendants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) of the Constitution); counterclaim under Order 12 Rule 3(3) of the Civil Procedure Rules

Relief refused

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Declaration that the deceased was the beneficial owner of Parcel No. 6670 and entitlement to transfer

Suit dismissed for non-prosecution; no evidence tendered

p. 4

Damages for trespass and eviction

Ingredients of trespass and fraudulent transaction unproven; no evidence from plaintiffs

p. 8

Costs

Costs of the plaint and the counterclaim to the defendants

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, I find the defendants entitled to prayers (a) and (b) of the amended defence and counterclaim dated 19/6/2024. Costs of the plaint and the counterclaim to the defendants.
p. 9Final orders
The court, after having listed the matter during the call over earlier and waiting for the plaintifis till 10:55 a.m., proceeded to dismiss the plaintifis' suit for non-attendance and non-prosecution.
p. 4Dismissal for non-prosecution
Acts committed by the deceased willingly, consciously, and lawfully require credible and reliable evidence to invalidate them.
p. 8Invalidating acts of a deceased person
The issuance of the rectified certificate of lease, lease, and a deed plan No. 466 322 on 12/5/2023 was therefore subject to the overriding interests or rights of possession, use, and occupation that had accrued in favour of the defendants herein since 2008.
p. 9Overriding interests against rectified title
A bona fide purchaser for value was defined as one who has, in good faith, paid valuable consideration for property without notice of any prior adverse claim.
p. 9Definition of bona fide purchaser

Issues in the judgment

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minor

Plaintiff role confusion: paragraph 26/27 record the plaintiffs' absence and dismissal of their suit, yet Miss Munialo for the plaintiffs is recorded present at delivery of judgment

minor

Internal inconsistency in the date of death of the deceased: paragraph 1 states 6/9/2010 while paragraph 52 states 6/6/2010

minor

Pleadings date inconsistency: reply to defence and defence to counterclaim dated 3/7/2020 described in a suit whose plaint is dated 13/5/2024

minor

Sale agreement date inconsistency: paragraph 8 refers to a sale agreement dated 19/5/2008 while paragraph 5 of the defence narrative describes the purchase as in 2002

material

Counterclaim land parcel inconsistency: counterclaim prayer references L.R. No. 6671 while the pleaded sale concerned L.R. No. 6670

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Watibini & 2 others v Board of Management St Brigid’s Girls High School Kiminini & 2 others (Environment and Land Case 24 of 2020) [2025] KEELC 6691 (KLR)", Case Analysis (2025). ELC Case (Kitale) – amended plaint dated 13/5/2024 and amended defence and counterclaim dated 19/6/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6691/eng@2025-10-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.