Cherunya & 3 others (Suing as the Legal Representative of the Estate of Kiptalam Arap Cherunya - Deceased) v Cherunya; Kithinji (Interested Party) (Environment and Land Case 15 of 2023) [2025] KEELC 7656 (KLR) (5 November 2025) (Judgment)

Key Facts

Deceased Name

Issues

• The court must decide if the plaintiffs are entitled to the reliefs sought, including declarations that the defendant's title is fraudulent and the cancellation of the registration. This hinges on proving the illegality of the defendant's acquisition and the validity of the plaintiffs' claims under the Land Registration Act and the Law of Succession Act. The judgment references cases like Koringura & Another v Simatwa and Munyu Maina v Hiram Gathiha Maina to establish the legal principles governing such disputes.
• The court must determine if the plaintiffs, as joint legal representatives of the estate of the late Kiptalam Arap Cherunya, have the capacity to bring this lawsuit against the defendant. This involves assessing their authority under the Law of Succession Act, particularly Sections 79 and 82, to enforce the estate's rights against the defendant. The defendant challenges this, arguing the plaintiffs cannot sue on behalf of the estate of John Kithinji, who was the original registered owner.
• The plaintiffs allege the defendant fraudulently obtained the title deed by forging documents and misrepresenting himself as a legal representative. The court must assess whether the defendant's acquisition was illegal, unprocedural, and based on forged signatures of deceased parties. Evidence includes witness testimony confirming the original owner's death in 1982 and the absence of valid transfer procedures. The defendant claims the title was lawful but failed to provide evidence to substantiate this.
• The final issue is to determine the costs of the suit. The court will decide whether the plaintiffs or the defendant should bear the costs, based on the outcome of the legal disputes. The plaintiffs' successful proof of the defendant's fraudulent acquisition and the invalidation of the title under Section 80 of the Land Registration Act will influence this determination.

Date of Death

Holdings

• The court rejected the defendant's argument that the plaintiffs lacked locus standi, citing the Evidence Act and the need to prove the legitimacy of the title. The defendant's failure to produce evidence or testify further weakened his claim.
• The court determined the plaintiffs have the legal capacity to sue as joint legal representatives of the estate of Kiptalam Arap Cherunya, per Section 82(a) of the Law of Succession Act. The defendant failed to prove lawful acquisition of the title, leaving critical deficiencies in his chain of title.
• The court found that the plaintiffs proved their claim to the required standards, determining that the defendant fraudulently and illegally acquired the title to the suit land. The title held by the defendant is invalidated under Section 80 of the Land Registration Act, and the register reverts to its position as of 5/7/2017 for the estate of John Kithinji to regularize in favor of Kiptalam Arap Cherunya's estate. The court awarded costs to the plaintiffs.

Remedies

• The court invalidated the title held by the defendant, ruling it fraudulent and illegal, and ordered it to be revoked.
• The court directed that the title register revert to its state on 5 July 2017, allowing the estate to regularize the title in favor of the late Kiptalam Arap Cherunya's estate.
• The court awarded the costs of the legal proceedings to the plaintiffs, as they successfully proved their claims against the defendant's fraudulent acquisition.

Will Type

Probate Status

Legal Principles

• The court applied the burden of proof principle under Section 107 of the Evidence Act, holding that the defendant failed to disprove the plaintiffs' claim that John Kithinji died in 1982. The plaintiffs' evidence, including a gazette notice, was accepted as prima facie sufficient without requiring a death certificate.
• The court held that the defendant's title was void under the principle of 'Nemo Dat' (one cannot transfer what they do not have), as it was obtained through forged documents and without proper registration. Fraudulent acquisition of land titles was invalidated, with the register reverting to its 2017 state.

Succession Regime

Precedent Name

• Mwinyihaji -vs- Mwebeyu & another
• Torino Enterprises Ltd -vs- Attorney General
• Daniel Kiprugut -vs- Rebecca Chepkurgat Maina
• Union Insurance Co. of (K) Ltd -vs- Ramzan Abdul Dhanji
• Munyu Maina -vs- Hiram Gathiha Maina
• Administrators of the Estate of Letoire ole Ntirori (Deceased) & 9 others -vs- Mwangi & 25 others
• Karl Wehner Claasen -vs- Commissioner of Land & Others
• Dina Management Ltd -vs- County Government of Mombasa & Others
• Athi Highway Developers Ltd -vs- West End Butchery Ltd & Others
• Zehrabanu Janmohammed (Suing as the Executrix of the Estate of F. H. Janmohamed) & Another vs. Nathaniel K. Lagat & 4 Others
• Troustik Union International and another -vs- Jane Mbeyu & Another
• Alice Chemutai Too -vs- Nickson Kipkurui Korir

Executor Name

• James Kiplele Cherunya
• Helena Kithinji
• Grace Cherunya
• Sammy Kipkorir Cherunya
• John Kiptalam Cherunya

Cited Statute

• Land Registration Act
• Law of Succession Act
• Agriculture Act
• Evidence Act
• Birth and Deaths Registration Act

Executor Appointment

• Court appointed administrator for the estate of Kiptalam Arap Cherunya via grant of letters of administration dated 30/8/2017
• Court appointed administrator for the estate of John Kithinji via gazetted letters of administration in Kenya Gazette No. 46 dated 25/3/1983

Judge Name

Passage Text

• Uttering false documents purporting to have been signed by a deceased person is what the defendant did to obtain the title on 20/2/2020. The defendant knew that he was not the holder of letters of administration, but his siblings were, with effect from 2017.
• The plaintiffs have produced evidence that the defendant was not the legal representative of the estate at the time he purported to obtain registration of the title under his name. PW1, as the allocating authority to the suit land, confirmed that the late John Kithinji passed on and that they were notified by the area D.O. in 1986, hence could not release the discharge of charge and the transfer in favour of anyone else except the holder of the legal grant of letters of administration.
• The failure of the defendant to attend court and offer testimony by way of filed documents under Order 7 Rule 5 of the Civil Procedure in support of his statement of defence, and to produce the paper trail that he used to obtain the title as lawful, regular, procedural, and free of any encumbrances, left breaks in his title acquisition.

Beneficiary Classes

• Spouse / Civil Partner
• Child / Issue