Farah & 2 others v Adan & 2 others (Environment and Land Case E131 & 136 of 2021 (Consolidated)) [2026] KEELC 2964 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed three business partners own 75% of a Nairobi property, ordered their partner to account for rent, and directed the property be sold.
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 Plaint in the main suit is defective for want of a date and signed verifying affidavit
- 2.Whether the dispute falls within the jurisdiction of the Environment and Land Court
- 3.Whether the Plaintiffs and Defendant are co-owners of LR No. 36/VII/405 in the ratio of 75% to 25% and if the Defendant should be compelled to account for rent proceeds and the suit property sold
- 4.Whether the Defendant proved existence of a resulting trust
- 5.Whether the Plaintiffs proved entitlement to special damages
- 6.Whether the Plaintiffs are entitled to the Orders as sought in their plaint and if the Defendant is entitled to prayers sought in his plaint in the consolidated suit
Key legal issues
#Defect in the verifying affidavit to the original plaint
The court declined to strike out the amended plaint because an amended plaint with a proper verifying affidavit had been filed pursuant to orders of 2nd December 2025, curing the defect
The original verifying affidavit was undated and PW1 initially disowned the signature. However, the court record showed a verifying affidavit sworn by the 1st Plaintiff on 20th January 2026 verifying the amended plaint. The court held that an amended plaint and its verifying affidavit entirely supersede the original plaint and become the definitive document outlining the plaintiff's case.
Jurisdiction of the Environment and Land Court
The suit falls within the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act because the fulcrum of the dispute is co-ownership of land; sharing of rental proceeds is secondary
The Defendant argued the suit was a purely commercial dispute over rent and profits. Applying the Predominant Purpose Test from Suzanne Achieng Butler and the subject-matter approach in Lydia Nyambura Mbugua, the court found the core dispute concerned proprietary interests in LR No.36/VII/405, co-ownership, possession and sale of the land, bringing it squarely within Section 13 of the ELC Act.
Co-ownership and the alleged resulting trust
The Plaintiffs and Defendant are co-owners of LR No.36/VII/405 in the ratio of 75% to 25%; no resulting trust was proved
The Indenture dated 7th July 1996 showed both parties purchased the property from Salim Abubaker Ahmed Bajaber for Kshs.7,000,000/=, and the Defendant's own valuation report confirmed the four registered owners. Citing Peter Ndungu Njenga, Juletabi and Stack v Dowden, the court held the Defendant failed to demonstrate he singly paid the purchase price, so the resulting trust presumption failed and joint ownership in 75%:25% ratio stood.
Accounts for rental proceeds
The Defendant is compelled to render audited accounts of all rental proceeds received from January 2016 to date
The Defendant had managed the mall and collected rent since 2016 without accounting, and had also disobeyed the order of 26th April 2022 (Lady Justice Komingoi) that rent be deposited in a joint interest-earning account. Having failed to present evidence that the Plaintiffs were not entitled to the rental proceeds, he was ordered to account for all rent received from January 2016.
Special damages for rental proceeds
Special damages of Kshs.2,009,550/= per month from January 2016 until payment in full awarded, based on the Defendant's own valuation report figure of Kshs.2,679,400/= less his 25% share
Applying Jogoo Kimakia, special damages must be specifically pleaded and proved. The Plaintiffs adopted the Defendant's sanctioned valuation by Cephas Valuers as the rent measure; the Defendant tendered no evidence to dispute the claim. The court therefore found the claim proved and fixed the monthly entitlement at the pleaded figure.
Sale of the suit property and disposal of the consolidated suit
The suit property is to be valued afresh at current market value and sold, with the Plaintiffs holding 75% proprietary interest and the right of first refusal; the Defendant's consolidated suit was dismissed
The parties' business relationship had irretrievably broken down and all three Plaintiffs testified they wanted the property sold, which was not disputed. The Defendant, having failed to call any witness, was not entitled to the prayers in his plaint in ELC No.136 of 2021. The court therefore ordered a fresh valuation, sale and sharing of proceeds net of the decretal sum.
Legal principles established
#- An amended plaint with a proper verifying affidavit supersedes the original plaint and cures defects in the original verifying affidavit
- ELC jurisdiction is determined by the predominant purpose of the dispute; where the fulcrum of a dispute is co-ownership of land and sharing of rental proceeds, the suit falls within the ELC even if rental accounting is a commercial element
- A party alleging a resulting trust bears the burden of proving that he singly paid the purchase price for property registered in joint names; absent such proof, joint registered proprietors own in the proportions of their purchase
- Special damages must be specifically pleaded and proved; where the defendant tenders no evidence to dispute the pleaded and quantified special damages, the claim is proved
Court orders
#- 1.An Order for the Defendant to render audited accounts of the premises erected on Land Reference No.36/VII/405 since January 2016
- 2.An Order that the Plaintiffs are entitled to Special Damages of the rent proceeds owed by the Defendant in the sum of Kshs. 2,009,550/= per month from January 2016 until payment in full
- 3.An Order that property Reference No.36/VII/405 be valued afresh and sold with the Plaintiffs together owning 75% proprietary interest in the suit property and being granted the right of first refusal
- 4.An Order that when the property is sold, the purchase price be shared among the parties equally but the Defendant's share shall be net of the decretal sum owing to the Plaintiffs arising from the suit herein
- 5.Cost of the suit and interest in (ii) above at court rates be borne by the Defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
- Consolidated with
- ELC No. 136 of 2021
Relief refused
#The Defendant's prayers in the consolidated suit ELC No. 136 of 2021 (declaration of entitlement to custody and rent collection, permanent injunction, restoration of status quo ante, enforcement by OCS Pangani, and general damages for eviction)
The Defendant failed to call any witness to prove his claim in the consolidated suit
Costs
Cost of the suit and interest in (ii) above at court rates be borne by the Defendant
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.
It is trite that the import of an amended Plaint and accompanying verifying afidavit, is that it entirely supersedes the original Plaint.
Based on the facts before Court while associating myself with decisions cited while exercising the ‘Predominant Purpose Test’, I find that the suit falls squarely within the jurisdiction of this Court as it concerns land. The issue of sharing of the rental proceeds is simply a secondary matter.
I hence find that the Plaintifis and Defendant are co-owners of LR No. 36/VII/405 and there was no resulting trust as claimed by the Defendant. Since they were four purchasers of the suit property being the three Plaintifis and Defendant, I find that they own the said property in the ratio of 75% to 25% between themselves.
Since the Defendant failed to present evidence that the Plaintifis were not entitled to the rental proceeds emanating from the suit property, I hold that he should hence be compelled to render the accounts for all the rental proceeds he has received from January 2016, to date.
i. An Order be and is hereby issued for the Defendant to render audited accounts of the premises erected on Land Reference No.36/VII/405 since January 2016.
iii. An Order be and is hereby issued that property Reference No.36/VII /405 be valued afresh and sold with the Plaintifis together owning 75% proprietary interest in the suit property and being granted the right of first refusal.
v. Cost of the suit and interest in (ii) above at court rates be borne by the Defendant.
Issues in the judgment
#The judgment does not state the case number of the main suit; only the consolidated suit ELC No. 136 of 2021 and the earlier MCELC No. E077 of 2021 are identified
Internal date inconsistencies: the verifying affidavit is recorded as sworn on 20th January 2026 pursuant to orders of 2nd December 2025, yet the judgment recites that judgment had been reserved on 5th June 2025 and was delivered 18th May 2026, and the Plaintiffs' submissions allegedly filed before Justice Omange are dated after her recusal ruling
The Defendant's defence avers collection of rent for 'over twenty (23) years', an internally inconsistent figure
The monthly rent figure is inconsistently stated as Kshs 2,699,400/=, 2,679,400/- and 2,009,500/=/2,009,550/= in different passages, though the decretal special damages adopted Kshs. 2,009,550/= per month
Order (iv) directs that the purchase price 'be shared among the parties equally' despite the court having found a 75%:25% proprietary split, an apparent internal tension
The judgment records that Lady Justice Omange 'recused herself' but also that she determined a recusal application by ruling dated 18th June 2025; the sequence is not entirely clear
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Farah & 2 others v Adan & 2 others (Environment and Land Case E131 & 136 of 2021 (Consolidated)) [2026] KEELC 2964 (KLR)", Case Analysis (2026). Main suit number not stated on the judgment (consolidated with ELC No. 136 of 2021; earlier related suit MCELC No. E077 of 2021 mentioned). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2964/eng@2026-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.