Dar (Suing as Personal Representative the Administratrix of the Estate of the Late Yusufali Adamali Dar) & 2 others v Sikondo & 3 others (Environment and Land Case E94 of 2021) [2026] KEELC 402 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a landowner's claim because a title from a valid court order stands unless that order is set aside, and ownership itself was never proved.
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 Plaintiffs have proved their case to warrant the orders sought
- 2.Whether the Plaintiffs proved their interest/root of title in the suit property Kwale/Msambweni 'A'/1666 purchased from Hassan Mgala
- 3.Whether the title issued in 2014 to the 1st and 2nd defendants pursuant to court orders was obtained fraudulently and illegally
- 4.Whether this court can interrogate the circumstances under which orders of a court of concurrent jurisdiction (High Court, Mombasa) were issued
- 5.Whether the 4th defendant (Land Registrar) was culpable in effecting the registration
- 6.Whether the plaintiff is entitled to the reliefs sought, including rectification, injunction and damages
Key legal issues
#Root of title and proof of purchase
The plaintiffs failed to prove their ownership: no sale agreement, no proof of payment of the Kshs.350,000 consideration, no replacement application for the lost title, and both green cards in the registry were marked forgeries
Section 3(3) of the Law of Contract Act requires a written contract for disposition of land. PW1 and PW2 admitted there was no sale agreement and neither knew how the purchase price was paid, which the court found contradictory and unconvincing. Land Control Board consent was merely a statutory compliance requirement under section 6 of the Land Control Act and could not substitute for a sale agreement and proof of payment. The transfer instrument alone could not perfect the transaction.
Impeachment of title issued pursuant to court orders
The court cannot interrogate the validity of orders of a court of concurrent jurisdiction in a fresh suit; the plaintiffs ought to have sought setting aside of the High Court and Magistrates Court orders
The 2014 title was issued pursuant to a vesting order dated 6/9/2011 in Mombasa High Court Misc. Cause, following adoption of a Land Disputes Tribunal award in Kwale PMCC Land Case No. 12 of 2010. The plaintiffs were not parties to those proceedings and took no steps to set the orders aside. This court, being of concurrent jurisdiction with the High Court, had no capacity to adjudicate the plaintiffs' claim as a fresh suit challenging those orders.
Burden and standard of proof of fraud
The plaintiff bore the burden of proving fraud specifically pleaded, to a strict standard, and failed to discharge it
Citing section 107 of the Evidence Act and Kuria Kiarie v Sammy Magera, the court held that fraud must be specifically pleaded with particulars and strictly proved, being a serious charge requiring proof higher than balance of probabilities though not beyond reasonable doubt. The documentation showed the proceedings and orders existed and were implemented; the plaintiffs led no evidence that the orders had been set aside or reviewed.
Liability of the Land Registrar
The 4th defendant was not culpable; the registry acted in accordance with a court order presented to it
DW3, the Land Registrar, confirmed the court order of 2011 was in its original and that the registry implemented it. Although she could not confirm the proprietorship in the absence of authentic green cards, the court found no basis to hold the Registrar liable, as the registration flowed from subsisting court orders which the plaintiffs never challenged.
Legal principles established
#- A court order issued by a court of concurrent jurisdiction remains valid until set aside, and a fresh suit is not the proper forum to impeach it; the proper course is to seek setting aside or review of the order
- Where a registered proprietor's root of title is under challenge, it is not enough to dangle the instrument of title; the proprietor must prove the legality of the acquisition
- Allegations of fraud must be specifically pleaded and strictly proved, to a standard higher than a balance of probabilities but not beyond reasonable doubt
- A contract for the disposition of land must be in writing, signed by all parties and attested, under section 3(3) of the Law of Contract Act; a transfer document cannot cure the absence of a valid sale agreement and proof of consideration
Court orders
#- 1.The plaintiffs' suit is dismissed with costs to the defendants
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 over disputes relating to ownership and registration of land (registered land under the Registered Land Act, now repealed, and the Land Registration Act, 2012)
Relief refused
#Declaration that the plaintiffs are the bonafide and rightful owners of Kwale/Msambweni 'A'/1666
Plaintiffs failed to prove their root of title - no sale agreement, no proof of payment of purchase price, and both green cards in the registry were marked as forgeries
Rectification of the register by cancelling the 2014 entries in favour of the 1st and 2nd defendants
The 2014 title was issued pursuant to orders of the High Court and the Magistrates Court which remain valid and un-set-aside; this court of concurrent jurisdiction cannot interrogate them
Permanent injunction against the 1st, 2nd and 3rd defendants
Suit dismissed; plaintiffs failed to prove entitlement to the orders sought
General damages against the 4th defendant and general damages for trespass
The Land Registrar simply acted in accordance with a court order presented to them and no culpability was established
Costs
Suit dismissed with costs to the defendants
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.
The upshot of the foregoing is that the plaintifis have failed to prove their case on a balance of probabilities. The suit must fail and it is dismissed with costs to the defendants. Orders accordingly.
The orders remain valid orders of the court until they are set aside. Everything that has been raised by the plaintifis against the said orders would have been properly ventilated there.
It is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title
It is trite law that any allegations of fraud must be pleaded and strictly proved.
My answer would be in the negative. I find support and agree with the following decisions; -
As against the 4th defendant having considered the totality of the evidence adduced, I see no reason to find them culpable.
Issues in the judgment
#The judgment inconsistently refers to the vesting order as emanating from 'Miscellenous Cause No. 20 of 2011' (per the plaint particulars) and 'Mombasa High Court Miscellenous Cause No. 90 of 2011' (per PW1's evidence)
The defendants' submissions refer to the suit as against the '1st and 3rd Defendants' and '1st and 2nd Defendants' interchangeably when describing the registered proprietors under the 2014 title
The judgment omits paragraph 64 (numbering jumps from 63 to 65)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dar (Suing as Personal Representative the Administratrix of the Estate of the Late Yusufali Adamali Dar) & 2 others v Sikondo & 3 others (Environment and Land Case E94 of 2021) [2026] KEELC 402 (KLR)", Case Analysis (2026). Kwale/Msambweni 'A'/1666 suit, plaint dated 10/07/2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/402/eng@2026-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.