Suleman & another v Suleman & 2 others (Environment and Land Case Civil Suit E003 of 2023) [2026] KEELC 3289 (KLR)
The bottom line
#A Kenyan court enforced a family land-swap agreement between siblings despite a later gift of the land to the defaulting brother's sons.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether time has lapsed for the Plaintiffs to institute this suit
- 2.Whether the Memorandum of Understanding dated 10th May 2011 is meant to vary the Certificate of Confirmation of Grant
- 3.Whether the Plaintiffs have any cause of action against the 2nd and 3rd Defendants
- 4.Whether the Plaintiffs are entitled to the prayers sought
- 5.Who should bear the costs of the suit
Key legal issues
#Limitation - whether the suit was time-barred under Section 4(1) of the Limitation of Actions Act
Not time-barred; the cause of action accrued upon the 1st Defendant's refusal to transfer after demand (2021-2023), and in any event the claim for recovery of land falls under Section 7 (12 years)
The court distinguished contract-based claims from claims for recovery of land. Although the MoU was executed in 2011, the cause of action could not arise before renewal of the lease and registration in 2016. Demands were made in 2021, 2022 and 2023 and the suit filed in March 2023. Even as a contract claim, it fell within six years from breach; alternatively Section 7's twelve-year period applied.
Whether the MoU unlawfully varied the Certificate of Confirmation of Grant
It did not; it was a valid, voluntary post-distribution arrangement among adult beneficiaries regarding their proprietary interests
The confirmed grant distributed the suit property jointly among the plaintiffs and 1st Defendant in 2004. The MoU was executed in 2011 by the beneficiaries themselves and did not purport to revoke or rectify the grant. Rectification or revocation requires the statutory procedures (Section 74, 76 Law of Succession Act), none invoked. Parties' conduct in implementing the MoU confirmed its consensual character.
Cause of action against the 2nd and 3rd Defendants
None sustainable; their title could not be impeached absent proof of fraud
The Plaintiffs voluntarily transferred parcel 2620 to the 1st Defendant and his wife, vesting full proprietary rights including the right to gift. No evidence of fraud or illegality in the subsequent transfer to the sons was adduced; allegations of fraud must be specifically pleaded and strictly proved. The MoU created obligations only between its parties.
Entitlement to the prayers sought
Plaintiffs proved their case on a balance of probabilities against the 1st Defendant; specific performance granted (prayers (a) and (b)); alternative restoration refused
The Plaintiffs performed their part by transferring parcel 2620; the 1st Defendant benefited and cannot approbate and reprobate. Independent sister witnesses corroborated the MoU. The gift transfer to the sons did not extinguish the plaintiffs' equitable interests against the 1st Defendant, but no fraud was proved against the sons.
Admissibility of the 1st Defendant's Defence dated 16th April 2025 not titled 'Amended Defence'
A curable procedural defect; the Defence deemed properly filed and to remain on record
Under Article 159(2)(d) courts must administer substantive justice without undue regard to procedural technicalities. Striking out is a drastic remedy exercised sparingly in plain and obvious cases. No prejudice was demonstrated that could not be compensated by costs.
Legal principles established
#- Once a grant is confirmed and the estate distributed, proprietary rights vest in the beneficiaries who may deal with their shares, including by private post-distribution arrangements among themselves
- A cause of action founded on breach accrues when breach occurs, not when the agreement is executed
- A party cannot approbate and reprobate by accepting the benefit of an agreement while refusing its corresponding obligations
- A gratuitous transfer of land by way of gift does not extinguish equitable interests arising from an agreement by which the transferor acquired the land
Court orders
#- 1.A declaration that the Memorandum of Understanding dated 10th May 2011 did not vary the Certificate of Confirmation of Grant issued in Nairobi High Court Succession Cause No. 1357 of 2003, but constituted a valid post-distribution arrangement between the beneficiaries
- 2.A declaration that the 1st Defendant is in breach of the terms of the Memorandum of Understanding dated 10th May 2011
- 3.A declaration that the transfer of CIS/Mara/Koiyaki Dagurugueti/2620 to the 2nd and 3rd Defendants by way of gift did not extinguish the Plaintiffs' equitable interests, but the Plaintiffs cannot be returned to status quo ante
- 4.The Plaintiffs are entitled to reliefs in prayers (a) and (b) of the Amended Plaint - specific performance compelling the 1st Defendant to execute transfer documents and furnish the original Certificate of Lease, and in default execution by the Deputy Registrar
- 5.Costs of the suit awarded to the Plaintiffs as against the 1st Defendant only; the 2nd and 3rd Defendants to bear their own costs
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 disputes relating to land (Article 162(2)(b) Constitution; not expressly cited in judgment)
Relief refused
#Alternative prayer (c) - restoration of the parties to status quo ante by revocation/cancellation of the 2nd and 3rd Defendants' title to CIS/Mara/Koiyaki Dagurugueti 2620 and reinstatement of the Plaintiffs and 1st Defendant as registered proprietors
The Plaintiffs voluntarily transferred the property under the MoU and proved no fraud against the 2nd and 3rd Defendants, who received it gratuitously by gift
Costs against the 2nd and 3rd Defendants
They were not parties to the MoU and no fraud, collusion or bad faith was proved against them
Costs
Costs of the suit awarded to the Plaintiffs as against the 1st Defendant only; the 2nd and 3rd Defendants shall bear their own 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.
i. A declaration be and is hereby issued that the Memorandum of Understanding dated 10th May 2011, did not vary the Certificate of Confirmation of Grant issued in Nairobi High Court Succession Cause No. 1357 of 2003, but constituted a valid post-distribution arrangement between the beneficiaries.
Consequently, the Plaintifis are entitled to the reliefs sought in the Amended Plaint in terms of prayers Nos (a), and (b) with costs.
Costs of the suit are awarded to the Plaintifis as against the 1st Defendant, only. In respect of 2nd and 3rd Defendants, they shall bear their own costs.
this Court finds that the present suit is not statute-barred.
The 1st Defendant equally benefited from the said arrangement and cannot approbate and reprobate by accepting the benefit of the agreement while refusing to honour the corresponding obligations thereunder.
The Statement of Defence dated 16th April 2025, is hereby deemed as properly filed and shall remain on record
Issues in the judgment
#Typographical error in the heading of issue III - numbering rendered as '). Whether...' and in orders 'Iv)' and 'ii).'
Date of the original Plaint appears inconsistently as 6th March 2023 in paragraph 1 and as 6th April 2023 in paragraph 56
Delivery date stated as 25th May 2026, after the filing of submissions dated 27th February 2026; no internal contradiction in the reasoning but the date falls unusually later in the year
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Suleman & another v Suleman & 2 others (Environment and Land Case Civil Suit E003 of 2023) [2026] KEELC 3289 (KLR)", Case Analysis (2026). ELC Case at Narok (Narok/Town/block 63 suit; Plaint dated 6th March 2023, Amended Plaint dated 4th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3289/eng@2026-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.