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ELCDismissedKisumu ELC Case (plaint dated 25th September 2018)

Cheluget & 3 others (Suing as joint administrators of the Estate of Isaiah Kiplangat Arap Cheluget - Deceased) v Ominde & another (Environment and Land Case 49 of 2018) [2026] KEELC 3379 (KLR)

Environment and Land Court
28 May 2026
5,154 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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The Environment and Land Court in Kisumu dismissed a family's claim that a land sale was fraudulent, ruling fraud must be proven to a higher standard.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of Isaiah Kiplangat Arap Cheluget (deceased), sued over land parcel KISUMU/NYALENDA "B"/481, which the deceased had agreed by an agreement dated 9th June 2006 to sell to the 1st Defendant for Kshs. 4,700,000. The estate alleged the agreement became void for non-payment of the balance and want of Land Control Board consent, and that the 11th December 2015 transfer to the 1st Defendant was fraudulent; it sought a declaration of nullity, cancellation of entries, vacant possession, and damages for trespass and mesne profits. The 1st Defendant admitted the sale and deposit of Kshs. 940,000, asserted full payment partly through off-set of fees for architectural and construction services rendered to the deceased, and counterclaimed for Kshs. 3,519,684. The 2nd Defendant (Attorney General) filed no evidence or submissions. The court framed five issues and found: the sale agreement was valid and never became null and void, payment of the balance being due only upon transfer of title; only Kshs. 2,940,000 was proved paid, leaving Kshs. 1,760,000 outstanding, with no proof of any set-off agreement; fraud was not proved to the required standard higher than a balance of probabilities, the burden resting on the plaintiffs; and the counterclaim was not proved since the additional works were separate from the land sale. Both the suit and the counterclaim were dismissed with each party bearing its own costs. The court observed that the unpaid balance with interest, though found due, was never prayed for in the plaint.

Questions the Court framed

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

  1. 1.Whether or not the land sale agreement dated 9th June 2006 became null and void and hence unenforceable
  2. 2.Whether or not the 1st Defendant paid the consideration as agreed
  3. 3.Whether or not the transfer of the suit land in favour of the 1st Defendant was fraudulent
  4. 4.Whether or not the 1st Defendant is entitled to Kshs. 3,519,684 as sought in the counterclaim
  5. 5.Costs of the suit

Key legal issues

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01

Validity and enforceability of the land sale agreement of 9th June 2006

Holding

The agreement was valid and did not become null and void; payment of the balance was due only upon transfer of the title, so non-payment before transfer was not breach

Reasoning

The agreement complied with Section 3(3) of the Law of Contract Act, being written, signed and witnessed. Its payment clause provided that the final payment of Kshs. 3,760,000 was to be made upon delivery of the title deed in the purchaser's name, with a 60-day period running before or after transfer. Since transfer was to precede payment, failure to pay the balance before transfer could not amount to breach. Evidence also showed Land Control Board consent was obtained through DW4.

p. 5
02

Whether the purchase price was paid in full

Holding

Only Kshs. 2,940,000 was proved paid, leaving a balance of Kshs. 1,760,000; no set-off against additional works was established

Reasoning

The deposit of Kshs. 940,000 was admitted. The Kshs. 1,000,000 cheque by Kamro Agrovet Limited was proved, and architectural services worth Kshs. 1,000,000 were proved as part of the agreement. However, there was no evidence of any agreement varying the sale agreement to allow fees for additional works to be off-set against the purchase price, so the purchaser had not paid in full.

p. 8
03

Whether the transfer of the suit land was fraudulent

Holding

Fraud was not proved to the required standard; the plaintiffs bore the burden and failed to show the deceased performed his part or that the transfer was irregular

Reasoning

The plaintiffs pleaded fraud particulars including forgery, unsupported by adequate proof. The document examiner produced no evidence of licensure. DW4, identified in the agreement to handle the transfer, testified the deceased signed transfer forms and Land Control Board consent, and the gazettement of the lost title was undisputed. The burden rested on the plaintiffs, and the allegation of forgery failed.

p. 9
04

The 1st Defendant's counterclaim for Kshs. 3,519,684

Holding

Dismissed; the additional works agreement was separate from the land sale and no set-off was agreed or proved

Reasoning

The court found the agreement for additional works/services was not part of the land sale transaction and there was no evidence of any agreement that fees due to the 1st Defendant for those works were to be off-set against the balance of the purchase price. The counterclaim was therefore not proved.

p. 10

Legal principles established

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  • Fraud must be proved to a standard higher than a balance of probabilities
  • A contract for disposition of land must comply with Section 3(3) of the Law of Contract Act - in writing, signed by all parties and attested by a witness
  • Parties are bound by their pleadings and evidence of unpleaded facts is inadmissible

Court orders

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  1. 1.The suit is dismissed
  2. 2.The counterclaim is dismissed as well
  3. 3.Each party shall bear its own costs of the suit and the counterclaim

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 disputes relating to land (Article 162(2)(b) of the Constitution; plaint dated 25th September 2018)

Relief refused

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Declaration that the transfer of the suit property was irregular, illegal, fraudulent and void

Fraud was not proved to the required standard, which is higher than a balance of probabilities

p. 10

Cancellation of entries 5 and 6 and restoration of the deceased as registered proprietor

The plaintiffs did not prove the claim in the plaint

p. 10

Vacant possession/eviction of the 1st Defendant

The suit having failed, possession orders could not issue

General damages for trespass and mesne profits

Not established, the claim having failed

Unpaid balance of purchase price of Kshs. 1,760,000/- with interest

The court found the plaintiffs entitled to it but it was not pleaded or prayed for

p. 10

Counterclaim for Kshs. 3,519,684

No evidence of an agreement for set-off of fees for additional works against the balance of the purchase price

p. 10

Costs

Each party shall bear its own costs of the suit and the counterclaim.

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.

i. The suit is dismissed. ii. The counterclaim is dismissed as well iii. Each party shall bear its own costs of the suit and the counterclaim.
p. 10Final orders and disposition
Taking into account the totality of the evidence placed before court, I find that fraud has not been proved to the required standard, which is higher than proof on a balance of probabilities.
p. 10Standard of proof for fraud
I find that the land sale agreement dated 9th June 2006 between the 1st Defendant and the deceased was valid.
p. 5Validity of the sale agreement
I find that the 1st Defendant paid a total sum of Kshs. 2,940,000/- only, to the deceased as part of the purchase price, leaving a balance of Kshs. 1,760,000/-.
p. 8Findings on payment of purchase price
Further, I find that there is no evidence of an agreement between the deceased and the 1st Defendant that any charges/fees due from the deceased to the 1st Defendant in respect of the additional works were to be ofiset against the balance of the purchase price.
p. 10No set-off established; counterclaim fails

Issues in the judgment

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material

The court finds the plaintiffs entitled to the unpaid balance of the purchase price but then dismisses the suit because that relief was not prayed for; the judgment contains no order for the balance found due

minor

Internal inconsistency in the measurement of the suit land stated in the judgment

minor

Cheque number recorded inconsistently as No. 10144 and No. 101442

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, "Cheluget & 3 others (Suing as joint administrators of the Estate of Isaiah Kiplangat Arap Cheluget - Deceased) v Ominde & another (Environment and Land Case 49 of 2018) [2026] KEELC 3379 (KLR)", Case Analysis (2026). Kisumu ELC Case (plaint dated 25th September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3379/eng@2026-05-28

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