Kimani & another v Mohammed alias Jaro Mohammed Abdi & 2 others (Enviromental and Land Originating Summons E022 of 2022) [2026] KEELC 5192 (KLR)
The bottom line
#The Environment and Land Court dismissed a Kshs 39.9 million land claim in Lavington, ruling money routed through the plaintiffs' accounts was county business income, not a property contribution.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If the plaintiffs have proved that they were in a business venture with the 1st defendant
- 2.If the plaintiffs have proved that they contributed towards the acquisition of the suit property
- 3.If the plaintiffs have proved that the defendants used fraudulent means to acquire, transfer, register and take possession of the suit property despite the plaintiffs' contribution of its acquisition
- 4.Whether the plaintiffs are entitled to the reliefs sought
- 5.If the 1st defendant was an agent of 3rd defendant in acquiring the suit property
- 6.If the 3rd defendant was the actual and beneficial owner of the suit property
- 7.If the 3rd defendant is entitled to the prayers in the counterclaim
- 8.What is the order as to costs
Key legal issues
#Whether there was a business venture between the plaintiffs and the 1st defendant and whether the plaintiffs contributed to the purchase of the suit property
A business venture existed, but the plaintiffs were never contributors of the purchase consideration; their funds were a conduit for county public works income from which the 1st plaintiff was paid an agreed commission.
The court examined the pleadings, testimonies, board resolutions, the 3rd defendant's bank signatory status and the use of the 2nd plaintiff's accounts, finding a meeting of minds. The plaintiffs produced no evidence of executing transfer forms, paying statutory charges, engaging completion lawyers, visiting the property, or calling corroborating witnesses such as co-directors. The defendants' evidence was more credible; the 1st plaintiff was paid a commission of about Kshs 18.2 million from county business income.
Whether the 1st defendant was an agent of the 3rd defendant and whether the 3rd defendant was the beneficial owner
The 1st defendant acted with express and apparent authority as agent of the 3rd defendant, binding the 3rd defendant as actual and beneficial owner.
Relying on agency principles (Bowstead & Reynolds; Garnak Grain; City Council of Nairobi v Githua), the court found consent between principal and agent shown through conduct: the 1st defendant negotiated, signed and paid the deposit on behalf of the 3rd defendant; the advocate DW4 confirmed the agency; the seller handed vacant possession to the 3rd defendant. Since the principal was disclosed, a suit could not lie against the agent.
Whether the plaintiffs proved fraud against the defendants
Fraud was not proved; it must be specifically pleaded and proved to a higher standard, and the plaintiffs' evidence fell short.
Relying on Ardhi Developers, Kuria Kiarie and Davy v Garrett, the court held that fraud cannot be inferred. Only PW1 testified for the plaintiffs; no directors or signatories corroborated the alleged breach, collusion or unjust enrichment. Failure to call material witnesses and unexplained delay until the fraud claim became time-barred undermined the claim.
Whether the 3rd defendant's counterclaim succeeds
The 3rd defendant proved his root of title and beneficial ownership and was granted a declaration of sole and exclusive ownership and expungement of adverse encumbrances.
The counterclaim stands independently of the primary suit. The 3rd defendant traced his title: he funded the deposit, acted through the 1st defendant as agent, cleared the balance through the 2nd plaintiff's account, paid legal fees, transfer, registration and stamp duty charges, and took possession, unchallenged by the main plaintiffs.
Legal principles established
#- The burden of proof lies on the party who alleges; fraud must be specifically pleaded and proved to a standard above that of an ordinary suit
- Where a principal is disclosed, the agent is not to be sued; a suit cannot lie against an agent of a disclosed principal
- An agency relationship may be established by consent of principal and agent, expressly or by implication from their words and conduct
- Where title to land is under contest, each party must trace the root of their title without any break in the chain
- A counterclaim stands or falls regardless of the outcome of the primary suit
Court orders
#- 1.The plaintiffs' primary suit is dismissed with costs
- 2.Judgment is entered in favour of the 3rd Defendant on the counterclaim
- 3.A declaration that the plaintiff in the counterclaim, Ali Ibrahim, is the sole and exclusive owner of Maisonette No. 1 erected on LR No. 3734/937, Lavington Nairobi, (now gazetted by the Ministry of Lands as LR No Nairobi Block 13/473), to the exclusion of all other parties in the suit
- 4.An order directing that all encumbrances on the title adverse to the proprietorship of the plaintiff in the counterclaim to Maisonette No. 1 be expunged from the register
- 5.Costs of the original suit and the counterclaim awarded as against the 1st and 2nd defendants in the counterclaim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over claims relating to land (suit property LR Nairobi Block 13/473), including the counterclaim
Relief refused
#Injunction restraining transfer of the suit property to the 1st defendant
Plaintiffs failed to prove contribution to the purchase or the alleged fraud
Order for pro rata transfer of the property to each individual contributor
The 1st and 2nd plaintiffs were never contributors of the consideration towards the purchase
Refund of Kshs. 39,925,869 plus damages and interest
Evidence showed the money was a conduit for county business proceeds, not a purchase contribution; the 1st plaintiff was paid an agreed commission
Cancellation of title in the defendants' names
Fraud was not specifically pleaded, particularised or proved to the required standard
Auction of the house on the suit property and share of proceeds
Claim dismissed; the 3rd defendant proved sole beneficial ownership on the counterclaim
Rental income plus interest pro rata from 30 June 2018
Main suit dismissed; possession and rental were enjoyed by the 3rd defendant as beneficial owner
Costs
The primary plaintiffs' suit dismissed with costs; costs of the original suit and the counterclaim awarded as against the 1st and 2nd defendants in the counterclaim
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.
The primary plaintiffs' suit is dismissed with costs, while judgment is entered in favour of the 3rd Defendant on the counterclaim and the reliefs sought therein are granted
A declaration that the plaintiff in the counterclaim, Ali Ibrahim, is the sole and exclusive owner of Maisonette No. 1 erected on LR No. 3734/937, Lavington Nairobi, (now gazetted by the Ministry of Lands as LR No Nairobi Block 13/473), to the exclusion of all other parties in the suit
An order directing that all encumbrances on the title as are adverse to the proprietorship of the plaintiff in the counterclaim to Maisonette No. 1 erected on LR No. 3734/937 (now Ministry of Lands as LR No Nairobi Block 13/473), be expunged from the register
Fraud and misrepresentation must be specifically pleaded and proven. It cannot be inferred from the facts. The burden to prove fraud is above the standard in ordinary suit
the principle of common law is that where the principle is disclosed, the agent is not to be sued
Where a title to land is under contest each of the parties to the dispute must trace the root of their title and claim without any break in the chain
The plaintiffs are estopped in law from denying the arrangements they had with the defendants.
Issues in the judgment
#Internal inconsistency in amounts: pleading says the county paid Kshs 39,926,869.40 while the plaint and judgment elsewhere refer to Kshs 39,925,869
Commission amount stated inconsistently as Kshs 15,200,000 in submissions and Kshs 18,200,000 in the judgment
Verdict on issue (a) states business venture proved, yet judgment elsewhere says plaintiffs' claim based on the venture fails; the finding that a venture existed sits uneasily with the finding that plaintiffs never contributed
Dates of submissions and some case citations appear typographically implausible (e.g. submissions dated 10.7.2016 and 9.7.2026 in a 2022 suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani & another v Mohammed alias Jaro Mohammed Abdi & 2 others (Enviromental and Land Originating Summons E022 of 2022) [2026] KEELC 5192 (KLR)", Case Analysis (2026). ELC OS NO. E022 OF 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5192/eng@2026-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.