Kamakya v Kitaka & another (Environment and Land Case E007 of 2023) [2026] KEELC 2157 (KLR)
The bottom line
#A Kenyan court cancelled a land title obtained fraudulently through an unauthorised sale by the owner's father, confirming the real owner keeps the property.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a sale of the suit property by the Plaintiff to the 1st Defendant
- 2.Whether the transfer of the suit property by the 2nd Defendant to the 1st Defendant was fraudulent
- 3.Whether the Plaintiff and the 1st Defendant are entitled to their respective claims
- 4.What order should be made on costs
Key legal issues
#Whether there was a sale of the suit property by the Plaintiff to the 1st Defendant
No valid sale by the Plaintiff was proved; the 1st Defendant in fact dealt with the Plaintiff's father, Kilundo Kamakya, who was not named as seller in either sale agreement and had not been authorised by the Plaintiff to sell.
The 1st Defendant's witness statement claimed purchase from the Plaintiff, but in testimony he said he bought from the Plaintiff's father. Neither the undated agreement nor the agreement of 8th November 2009 named Kilundo Kamakya as seller. The 1st Defendant admitted in cross-examination that the Plaintiff was absent when both the agreement and transfer form were signed, and that the father signed on the Plaintiff's behalf. Records of the 2nd Defendant showed the property in the Plaintiff's name.
Whether the transfer of the suit property by the 2nd Defendant to the 1st Defendant was fraudulent
Yes, the transfer was fraudulent. The Plaintiff was not present at the signing of the sale agreement or the transfer; there were two inconsistent sale agreements bearing different stamps of the same advocate; and the 2nd Defendant effected transfer knowing the seller was not the owner.
The 1st Defendant admitted the Plaintiff was neither present at the signing of the agreement nor of the transfer. The two agreements produced differed in content and in the advocate's stamps. The burden of proving the Plaintiff signed or was present lay on the 1st Defendant, who did not call the advocate, Ann M. Kiusya, to confirm who appeared before her. Further, the fraudulent transfer was effected on 17th November 2009 while transfer fees were paid only on 5th December 2009.
Whether the parties are entitled to their respective claims
The Plaintiff proved his case on a balance of probabilities and was granted cancellation of title, declaration of ownership and permanent injunction; the 1st Defendant's counterclaim failed.
Having found no valid sale by the Plaintiff and a fraudulent transfer, the court concluded the Plaintiff proved his case against the Defendants on a balance of probabilities and allowed prayers (a), (b) and (c) of the plaint. The 1st Defendant, who relied on the tainted sale and transfer, failed to prove his counterclaim to the same standard.
Legal principles established
#- The nemo dat principle - one cannot give what one does not have - protects the title of the true owner; an unauthorized transfer of title by a person other than the owner has no legal effect.
- The burden of proving that a plaintiff signed or was present at the execution of a sale agreement and transfer lies on the party asserting it.
- A father has no authority to sell property registered in his son's name without authorisation.
Court orders
#- 1.Allowed the Plaintiff's claim in terms of prayers (a), (b) and (c) of the Plaint dated 13th February, 2023 - cancellation of the title deed Konza South/Konza South Block 4 (Aimi Ma Kilungu) 1310, a declaration that the Plaintiff is the owner of the property, and a permanent injunction restraining the Defendants from selling, alienating, transferring, trespassing or otherwise interfering with the property
- 2.Awarded the Plaintiff the costs of the suit
- 3.Dismissed the 1st Defendant's counterclaim with costs to the Plaintiff in the main suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute concerning title to land (Konza South/Konza South Block 4 (Aimi Ma Kilungu) 1310); no specific constitutional or statutory provision invoked in the judgment.
Relief refused
#The 1st Defendant's counterclaim seeking declaration of ownership and a permanent injunction against the Plaintiff
The 1st Defendant failed to prove his counterclaim on a balance of probabilities; he dealt with the Plaintiff's father who had no authority to sell, and the transfer was fraudulent.
Costs
The Plaintiff shall have costs of the suit; the counterclaim is dismissed with costs to the Plaintiff in the main suit.
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.
I allow his claim in terms of prayers (a), (b) and (c) of the Plaint dated 13th February, 2023. The Plaintifi shall have costs of the suit.
The counterclaim is dismissed with costs to the Plaintifi in the main suit.
On the 2nd issue, there is no doubt that the transfer of the suit property was fraudulent.
It is clear from the 1st Defendant’s evidence that he dealt with the Plaintifi’s father and not the Plaintifi himself.
The burden of proving that the Plaintifi singed or was present was on the 1st Defendant.
Issues in the judgment
#The judgment describes the suit property as Konza South/Konza South Block 4 (Aimi Ma Kilungu) 1310 in the reliefs, but in the narrative it refers to LR No. Konza South/Konza South Block 4 (Aima Ma Kilungu) 1320 as the suit property - an internal inconsistency in the parcel number.
The judgment is dated and delivered on 16th April, 2026, which is an apparently anomalous future date relative to the submissions dated 7th November, 2025 and the plaint of 13th February, 2023.
The coram does not identify the court, case number or station; the court (Environment and Land Court) and case number fields cannot be confirmed from the judgment itself.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamakya v Kitaka & another (Environment and Land Case E007 of 2023) [2026] KEELC 2157 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2157/eng@2026-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.