A family land dispute that pitted a man against his mother and four brothers has ended with the Environment and Land Court in Nyandarua overturning a magistrate’s decision that had cancelled the son's title deed.
Justice Mugo Kamau ruled that the lower court erred in declaring the sale agreement void for lack of spousal consent and ordered that each party remain on the portion they received from their deceased father.
Benson Ng’anga Kamau had sued his mother and siblings after they entered his parcel on March 11, 2025, with a surveyor and members of the Tumaini ACC, purporting to excise portions of the land.
Kamau testified that his late father, Shadrack Kamau Muriba, transferred the land to him on December 22, 2022, and that he had developed it exclusively until the respondents entered the property.
In his plaint, he sought a permanent injunction restraining the defendants, their agents, servants, employees, proxies or any other persons claiming through or under them from entering, possessing, occupying, using or in any manner whatsoever interfering with the parcel of land.
The respondents, led by Samuel Kamuhu Kamau, denied the claim.
They argued that the appellant had entered into a sale agreement for Sh1 million and paid Sh700,000 as a deposit.
They said he later defaulted on the balance and accepted a refund of the deposit, thereby extinguishing his rights.
In a counterclaim, they sought to have portions of the land hived off, including 0.22 hectares (0.54 acres) for the deceased’s estate, 0.322 hectares (0.79 acres) for their mother, Hannah Njoki Kamau, and the remainder for themselves.
They maintained that the land was matrimonial property and that their mother had been evicted from the parcel where she had lived since 1982.
The trial magistrate at Ol Kalou dismissed the appellant’s suit, ordered the title cancelled and directed that the land revert to the deceased’s estate.
The magistrate held that the sale lacked spousal consent and that the wife had been rendered landless.
However, on appeal, Justice Kamau found critical inconsistencies in the respondents’ case.
The judge said the respondents were not present when the agreement was executed, yet admitted that Sh700,000 had been paid.
He questioned the failure to call the area ACC, who allegedly witnessed the refund.
The judge also pointed to contradictions in the respondents’ evidence, with one witness stating the deposit was paid on a different day while another insisted no money had ever been paid.
He further rejected the trial magistrate’s finding that the appellant had failed to produce the Land Control Board consent or transfer forms.
Quoting the mother’s testimony, he stated: “DW2, mother to the parties herein said that she was aware the transfer forms had been signed. Secondly, the consent of the land control board would not have been expected to be in the hands of the appellant because it was certainly presented to the Land Registry during the transfer.”
The court allowed the appeal, ordered that Kamau’s title deed remains valid and dismissed the counterclaim.
However, because it remained unclear whether the appellant paid the outstanding Sh300,000 balance, the judge directed that the amount be set off against the costs awarded to the appellant in both the lower court and the appeal.
Any surplus after taxation shall go to the deceased’s estate to avoid further friction.
“For the avoidance of doubt,” the judge ruled, “each party to remain in what each got from their late father.”
