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ELCPartially AllowedELC E014 of 2020 (lead file), consolidated with ELC E002 of 2020

Dannel Commercial Partners Ltd v Peresian & 3 others (Environment and Land Case E014 & E002 of 2020 (Consolidated)) [2026] KEELC 4607 (KLR)

Environment and Land Court
9 July 2026
8,040 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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The High Court-registered Kitengela buyer keeps the Kajiado land, but must pay the family Kshs 20.7 million within 90 days; fraud allegations failed.

What this practically means

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Executive summary

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This consolidated first-instance suit concerned ownership of Title No. KJD/Kitengela/42740 in Kajiado County. The Plaintiff, Dannel Commercial Partners Limited, claimed it purchased the land from the late Betty Siparo Lemeiruiko under a written Agreement for Sale dated 29th September 2012 for Kshs. 31,000,000/=, paid a deposit, and was registered as proprietor on 25th February 2013, but was denied vacant possession. The 1st and 2nd Defendants, administrators of the deceased's estate, denied any sale, alleging the transfer was a fraud orchestrated by Job Kariuki, the deceased's son-in-law, and sought cancellation of the Plaintiff's title in the consolidated counter-suit ELC E002 of 2020. The court framed eight issues. It found the Agreement and Addendum satisfied Section 3(3) of the Law of Contract Act, and that the Defendants failed to prove forgery or incapacity: no handwriting expert, specimen signatures, photographs or medical records were produced, and material witnesses (the surveyor and investigating officer) were not called, attracting an adverse inference. The fraud allegations amounted to mere suspicion, so the statutory exceptions under Section 26(1)(a) and (b) of the Land Registration Act were not established and the Plaintiff's title was held indefeasible. The court found the Plaintiff substantially performed by paying the deposit, acknowledged in the Addendum, payment to the vendor's advocates being payment to her agent. Specific performance, vacant possession and a permanent injunction were granted, conditioned on payment of the balance of Kshs. 20,700,000/= within 90 days. Alternative refund and general damages were refused. Notably, despite the Plaintiff's success, the court made no orders as to costs, directing each party to bear its own costs.

Questions the Court framed

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

  1. 1.Whether there existed a valid and enforceable Agreement for Sale between the Plaintiff and the late Betty Siparo Lemeiruiko in respect of Title No. Kjd/kitengela/42740
  2. 2.Whether the Plaintiff has proved that the late Betty Siparo Lemeiruiko voluntarily executed the Agreement for Sale, the Addendum, the transfer instruments and all the completion documents
  3. 3.Whether the transfer and subsequent registration of the suit property in favour of the Plaintiff was procured fraudulently, illegally, unprocedurally or through a corrupt scheme
  4. 4.Whether the Plaintiff's title is entitled to protection under Sections 24, 25 and 26 of the Land Registration Act or is liable to impeachment
  5. 5.Whether the Plaintiff performed or substantially performed its obligations under the Agreement for Sale, including payment of the purchase price, and whether any breach was established
  6. 6.Whether the Plaintiff is entitled to the declaratory, injunctive, vacant possession, specific performance, refund and damages sought
  7. 7.Whether the Defendants have established a basis for cancellation or rectification of the register
  8. 8.Who should bear the costs of the suit

Key legal issues

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01

Validity of the Agreement for Sale under Section 3(3) of the Law of Contract Act

Holding

The Sale Agreement and Addendum satisfied Section 3(3) on their face, being written, signed by the parties and attested by advocates

Reasoning

The court set out Section 3(3) verbatim and noted it is replicated under section 38 of the Land Act. A perusal of the documents produced by the Plaintiff showed they were reduced into writing, ostensibly signed by both purchaser and vendor and duly attested by their respective advocates. The challenge to validity rested on forgery and capacity, which failed on the evidence.

p. 10
02

Burden of proof on allegations of forgery and lack of capacity

Holding

The Defendants failed to rebut the presumption of regularity; forgery required expert evidence and incapacity required medical records, none of which were produced

Reasoning

The court held that while the Plaintiff bears the initial burden of proving the transaction, a registered transfer duly attested by an advocate carries a presumption of regularity. Once a specific criminal allegation of forgery is introduced, the evidential burden shifts to the party alleging it. The Defendants conceded they never engaged a handwriting expert, produced no specimen signatures or photographs, and tendered no medical records to prove incapacity.

p. 12
03

Alleged fraud, illegality and corrupt scheme

Holding

The allegations amounted to mere suspicion and conjecture, falling short of the heightened standard for proving fraud

Reasoning

The Defendants alleged a scheme orchestrated by Job Kariuki but failed to call the surveyor and the investigating police officer, and produced no charge sheet or criminal proceedings for Criminal Case No. 617 of 2013. The court drew an adverse inference from the failure to call these material witnesses and found the allegations unproven to the strict standard required in civil litigation.

p. 13
04

Indefeasibility of the Plaintiff's title under Sections 24, 25 and 26 of the Land Registration Act

Holding

The statutory exceptions in Section 26(1)(a) and (b) were not proved; the Plaintiff's title is protected and indefeasible

Reasoning

While acknowledging due diligence as a hallmark of an innocent purchaser, the court found the Plaintiff conducted an official search, obtained an identification verification report and secured Land Control Board consent, and received completion documents including the original title from the vendor's advocates. The Defendants failed to prove to the heightened standard that the Plaintiff was an active participant in fraud, misrepresentation or a corrupt scheme.

05

Performance of the purchase price obligations

Holding

The Plaintiff substantially performed by paying the deposit of approximately Kshs. 10,300,000/=, acknowledged in the Addendum; further performance was frustrated by the restriction and denial of possession

Reasoning

The court held that proof that funds did not enter the deceased's ABSA personal account did not negate documentary evidence of remittances to her advocates via RTGS and cleared cheques, since payment to an appointed agent is payment in law. The written acknowledgment in the Addendum, witnessed by an advocate, carried significant evidential weight.

06

Appropriate remedies

Holding

Specific performance, vacant possession and a permanent injunction granted, subject to payment of the balance of Kshs. 20,700,000/= within 90 days; refund and damages refused

Reasoning

Guided by the sanctity of contract and the principle that courts cannot rewrite contracts, the court found the Plaintiff ready and willing to complete. Since primary relief was granted, the alternative refund relief failed, and general damages were declined as the equitable orders provided adequate restitution.

p. 14

Legal principles established

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  • Fraud must be specifically pleaded and distinctly proved to a standard higher than a mere balance of probabilities; it cannot be left to inference
  • A party alleging forgery bears the burden of proving it, ordinarily through a document or handwriting expert
  • A registered instrument of transfer duly attested by an advocate carries a presumption of regularity, shifting the evidential burden to a party alleging forgery
  • A parent is under no legal obligation to obtain the consent of children before disposing of free land
  • Payment to a vendor's appointed agent constitutes payment in law
  • A court cannot rewrite a contract between parties
  • Where relief is prayed in the alternative, the court must choose between main and alternative relief on the facts and give reasons
  • Failure to call a material witness who could elucidate the facts invites an adverse inference

Court orders

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  1. 1.An order for specific performance, alongside orders for vacant possession and a permanent injunction restraining the Defendants from interfering with the Plaintiff's quiet enjoyment of Title No. Kjd/kitengela/42740
  2. 2.The Plaintiff shall pay the 1st and 2nd Defendants the balance of the purchase price amounting to Kshs. 20,700,000/- in ninety (90) days from the date of judgment, failing which it shall attract interest at court rates from the date of judgment until payment in full
  3. 3.The 1st and 2nd Defendants and any persons claiming through or under them to surrender vacant possession of Title No. Kjd/kitengela/42740 to the Plaintiff within ninety (90) days from the date of judgment
  4. 4.A permanent injunction restraining the 1st and 2nd Defendants and their agents from alienating, transferring or in any way interfering with the Plaintiff's peaceful possession and quiet enjoyment of the suit property, effective on expiry of ninety (90) days from the date of judgment
  5. 5.No orders as to costs; each party to bear its own costs

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 under Article 162(2)(b) of the Constitution (implied by the court's subject matter); no express provision cited
Consolidated with
ELC E002 of 2020

Relief refused

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Alternative relief for refund of the deposit of Kshs. 14,000,000/= under Clause 17.1.7.C of the Agreement

The primary relief of specific performance was granted, so alternative relief could not issue

p. 14

General damages for breach of contract

Specific performance and vacant possession constituted adequate restitution; damages unavailable in any event on the facts

p. 14

Defendants' claim for cancellation of the Plaintiff's title and reinstatement of the deceased as proprietor

Defendants failed to discharge the heavy burden of proving fraud, illegality or corrupt scheme under Section 26 of the Land Registration Act

p. 15

Costs

No orders as to costs; each party shall bear its own costs

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.

A. An order for specific performance, alongside orders for vacant possession and a permanent injunction to restrain the Defendants from interfering with the Plaintiff's quiet enjoyment of Title No. Kjd/kitengela/42740 are granted.
p. 15Final orders - specific performance granted
The Plaintiff shall pay the 1stand 2nd Defendants the balance of the purchase price amounting to Kshs. 20,700,000/- in ninety (90) days from the date of this judgement.
Final orders - payment of balance
Considering the unique circumstances of this case, the court makes no orders as to costs. Each party shall bear its own costs.
p. 15Final orders - costs
It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from facts
p. 12Standard of proof of fraud
Consequently, the Plaintiff's title enjoys statutory protection and remains indefeasible.
Indefeasibility of title under Section 26 Land Registration Act
The advocates acted as her agents, and payment to an appointed agent constitutes payment in law.
p. 14Payment to agent
In the absence of expert testimony or cogent medical evidence, the Defendants' mere oral assertions cannot displace the documentary evidence presented by the Plaintiff.
p. 12Forgery and capacity must be proved by evidence

Issues in the judgment

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minor

Internal inconsistency on costs: paragraph 89 states the Plaintiff is entitled to costs of the consolidated suit, yet the final order E directs each party to bear its own costs

minor

Date of judgment appears anomalous: '9TH DAY OF JULY 2026'

minor

Discrepancy in deposit figures: the Amended Plaint pleads a deposit of Kshs. 14,000,000/= while the Addendum acknowledged payment of Kshs. 10,500,000/= and PW1 testified to aggregate payments of approximately Kshs. 10.3 million

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, "Dannel Commercial Partners Ltd v Peresian & 3 others (Environment and Land Case E014 & E002 of 2020 (Consolidated)) [2026] KEELC 4607 (KLR)", Case Analysis (2026). ELC E014 of 2020 (lead file), consolidated with ELC E002 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4607/eng@2026-07-09

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