Chebet & another v Paro & 2 others (Environment and Land Case E015 of 2022) [2026] KEELC 369 (KLR) (29 January 2026) (Judgment)

Chebet & another v Paro & 2 others (Environment and Land Case E015 of 2022) [2026] KEELC 369 (KLR) (29 January 2026) (Judgment) Neutral citation: [2026] KEELC 369 (KLR) Republic of Kenya In the Environment and Land Court at Narok Environment and Land Case E015 of 2022 LN Gacheru, J January 29, 2026 Between Selly Chebet 1st Plaintiff Beatrice Naipanoi 2nd Plaintiff and Jackson ole Paro 1st Defendant The Land Registrar, Narok 2nd Defendant The Hon Attorney General 3rd Defendant Judgment 1.Vide a Plaint dated 7th November 2022, the Plaintiffs sought for Judgment against the Defendants jointly and severally for;i.The caution lodged /registered against the land title No. LR NO. Cis Mara /Ololulunga /18438, on 14th July 2022, and /or any other date by the Respondents be removed.ii.The orders issued herein be served upon the Land Registrar, Narok and /or the requisite land registrar for compliance.iii.Costs of and attendant to the suit together with interest thereon from date due and until payment in full. 2.In their claim, the plaintiffs averred that at all material times relevant to this case, they were the registered proprietors of the land parcel No. Cis Mara / Ololulunga /18438, situated in Narok County, the suit property. 3.The plaintiffs also averred that on or about the 14th July 2022, without any colour of the right or lawful interest, the 1st defendant herein wrongful and unlawful caused to be registered a caution against the title to the said property whilst purportedly claiming purchaser's interest. 4.It was their further claim that the presence of the said caution has made it impossible for the them to deal with in the suit land as they so desire. Therefore, the existence and continued existence of the said caution, albeit wrongful and unlawfully continues to be an affront and in violation of their constitutional rights, especially the right to property. 5.They urged the court to intervenes by granting them the prayers sought, as there is immense risk that they might continue to suffer gross violation of their constitutional right, thus irreparable loss and harm. 6.The suit is contested by the Defendants herein. The 1st Defendant Jackson Ole Paro, filed his statement of Defence and Counter-claim dated 14th February 2023, and denied the claims made by the Plaintiffs, and urged the court to dismiss the plaintiffs suit, as well as allowing his Counter-claim. 7.The 1st Defendant averred that he purchased the suit land together with his wife from Moses ole Nkaru, and when they visited the said parcel of land, to their shock, they established that the said land had since been subdivided and the subdivided shares were jointly registered in the name of the plaintiffs. 8.In the Counter-claim, the 1st Defendant as the plaintiff alleged that he is a bona fide purchaser for value of 5 acres, together with his wife Netaya Ene Paro, and they purchased the same from the original title Cis Mara/ Ololulunga/151, which was in the names of Moses Ole Nkaru and Daniel Muntet Naimodu. Further, that the full purchase price was fully paid on the date of execution of both sale agreements. 9.He also claimed that his effort to have the parcel of land registered in their names was hindered by the fact that by the time they entered into the two sale agreements, the counterpart to the late Moses Ole Nkaru was already deceased. Further, that upon the demise of Moses ole Nkaru, they expected the families of the two to subdivide the land parcel among the beneficiaries, and thereafter transfer the purchased portion to the plaintiff in the Counter-claim. 10.Consequently, the plaintiff in the Counter-claim(1st Defendant in the main suit), prayed for the following prayers;i.A declaration that the plaintiff purchased 5 acres together with his spouse from land parcel no. Cis Mara/ Ololulunga /151, then registered in the names of Moses Ole Nkaru, also known as Karanja Ole Nkaru and Daniel Montet Naimodu,ii.A declaration that land parcel no. Cis Mara Ololulunga /18438 is a subdivision of land parcel no Cis Mara/ Ololulunga /209, subsequently an excision of land parcel Cis Mara/ Ololulunga /151,iii.A declaration that the defendants in the counter-claim concealed material facts when they filed a succession cause in relation to the estate of Moses Ole Nkaru, also known as Karanja Ole Nkaru,iv.An order compelling the defendants in the counter-claim to transfer the 5 acres purchased by the plaintiff in the counter-claim from Moses Ole Nkaru the initial registered proprietor,v.The costs of the suit. 11.The 2nd and 3rd Defendants to the Counter-claim filed their statement of defence and denied all the allegations made in the plaint, and did put the plaintiffs to strict proof. They urged the court to dismiss the plaintiffs claim with costs contained in the Counter-claim. 12.After the pre- trial conferences, the matter proceeded for hearing via the viva voce evidence. The plaintiffs gave evidence for themselves and called one witness to support their claim. The 1st Defendant gave evidence for himself and called two witnesses, while the 2nd and 3rd Defendants gave evidence through the Land Registrar, Narok. Plaintiffs' Case. 13.PWI; Selly Chebet, the 1st Plaintiff from Ololulunga area, told the court that she resides on land parcel No 18438 the suit land, which is registered in the joint names of the two plaintiffs. She adopted her witness statement dated 7th of November 2022, as her evidence in chief. 14.She produced the list of documents dated 7th of November 2022, and 28th of April 2023 as exhibits. She confirmed she's the wife to Moses Nkaru who died in 2013 as confirmed by the death certificate, which she produced as her exhibit. 15.It was her evidence that she filed for a Succession Cause in respect of land parcel No. 18438. That as she was attempting to sell a portion of land to enable her to pay school fees, the intended buyer noted that there was a caution lodged on the suit property by Jackson Ole Paro, who was a friend to her late husband. 16.She further testified that Jackson Ole Paro did not buy the land from her husband together with his wife, and she did not know about the sale agreements that Jackson had allegedly signed over the sale of the suit land. Further, that she did not accompany the buyer to the advocate's office and she did not witness the sale agreement in respect of land parcel No. 151. 17.It was her further evidence that she did not see any money being exchanged between Jackson and her husband. However, Jackson had been given a portion of land to cultivate because he used to assist her husband to lease out the land to other people. She claimed that because of the caution, she has not been able to sell the portion of land, which she had intended to sell for school fees. 18.In cross-examination by Mr. Lang'at for the 1st Defendant, Pw1 confirmed that she got married to her late husband in 1993, and started living on the suit land. That the 1st Defendant entered onto the suit land in the year 2007 and he built on the land in 2009. 19.Further, PW1 confirmed that the 1st defendant was still on the suit land when her husband died. The land was initially registered in the name of Karanja Ole Nkaru, one of the joint proprietors of land parcel No.151. This parcel No. 151 was subdivided into two portions being parcel No. 209 and 210. Later land parcel No. 209 was subdivided to give rise to parcel No. 18437 and 18438. 20.She filed for Letters of Administration in the year 2020, and Jackson was still on the suit land. She confirmed Jackson Ole Paro was a close friend to her husband. That Ole Paro's home is about two kilometers from the suit land. She denied that Ole Paro buried his mother on the suit land. 21.It was her evidence that they did not inform Jackson Ole Paro while applying for letters of administration, which they filed in 2015, and which Grant was confirmed in 2017, and she was a beneficiary of the estate of Moses Ole Nkaru. Apart from Jackson Ole Paro, there is no other dispute concerning land parcel No. 209. 22.In the re-examination, she insisted that her husband did not sell the land to Jackson Ole Paro and his wife. She also did not appear before an advocate during the preparation of the sell agreement. 23.PW2: Beatrice Naipanoi Nkaru, the second plaintiff from Ololulunga village adopted a witness statement as her evidence in chief and also produced the list of documents as her exhibits. It was her evidence that she's the administrator of property No. 18438 via a Succession cause. 24.She denied that the 1st defendant was purchaser of 5 acres of land from her late father. However, the 1st Defendant was a friend of her late father, Moses Ole Nkaru who died in the year 2013. That the suit land was registered in the name of Karanja Nkaru and Daniel Montet as per the Green card produced as exhibit. 25.The 1st Defendant could not purchase land from Moses Nkaru in the year 2007, because he had not applied for Letters of Administration over the estate of Karanja Ole Nkaru. That she applied for Letters of Administration in 2015 together with her mother. It was her evidence that the 1st Defendant has built a temporary on the suit land. 26.In cross-examination by Mr. Lang'at, she confirmed that her father is Moses Nkaru and her mother is Selly Chebet. Further, that land parcel No. 18438 came from parcel No. 151 which initially belonged to Karanja Nkaru and Daniel Montet. Karanja Ole Nkaru was her grandfather, and her father died in the year 2013. 27.She confirmed her father's share was land parcel No. 18438 which was a subdivision of parcel No. 151. The Succession Cause they filed was in respect of land parcel No. 151, and they filed the Succession Cause on behalf of her father. She confirmed that the 1st Defendant reside on the same parcel of land. 28.Though she alleged the agreement was fraudulent, she never reported any fraud to the Police. That she has never filed any case for eviction of the 1st Defendant. She did not witness any sale agreement between Ole Paro and her father. Further, that she got married in the year 2009 and the 1st Defendant was still on the suit land. 29.Upon being cross-examined by Ms. Wanjiru for the 2nd and 3rd Defendants, she confirmed that she sued the 2nd and 3rd Defendants for failing to remove the caution on the land. She did not know if the advocate made and application for the removal of the caution before filing re-suit. 30.On re-examination, she confirmed the sale agreement of 20th November 2006, was for land parcel No.151. That they filed this suit after trying to sell the suit land, but they could not sell because of the caution that had been lodged. 31.PW3: Partoip Ole Nchoko, the Chief of Ololulunga Sub-Location told the court he knows Selly Chebet, the 1st plaintiff herein. He also knows Jackson Ole Paro, and the husband to Selly Chebet known as Moses Ole Nkaru. However, he did not know Beatrice Naipanoi. 32.He confirmed to have authored the letter dated 8th December 2014 which was referenced as Selly Chebet, which letter indicated that Selly Chebet was the widow to Moses Ole Nkaru. He also confirmed that Moses Ole Nkaru was a teacher, and he wanted his children to benefit from his dues. He produced the said letter as exhibit in court. 33.It was his evidence that he used to hear people referring to Selly Chebet as Juliana, and also her husband used to refer to her as Juliana Nkaru. To him, it was not right for the name Juliana Nkaru to have been used in the sale agreement. However, he confirmed to have written the letter dated 4th April 2023 to indicate that Juliana was the wife of Moses Ole Nkaru, and that was based on what he used to hear people calling her. 34.On being cross examined by Mr Langat for the 1st Defendant, he confirmed that he knew Jackson Ole Paro, as his subject, and he also knew his wife Netaya Ene Paro, whom he has known for a while. Further, he confirmed to have known Selly Chebet as the wife to Moses Ole Nkaru. Further, he confirmed that Moses and Jackson used to reside near each other. 35.It was his evidence that he never heard any land dispute involving Moses Ole Nkaru while he was alive. However, he heard that Jackson had purchased the land where he resided with his family, from Moses Nkaru. That the said purchase was done in 2008, and Jackson has resided on the said land to date. It was his evidence that he did not witness the sale agreement, between Selly and Jackson. 36.He reiterated that he did not know Beatrice Naipanoi, and he could not tell whether he was the daughter to Selly Chebet and Moses Ole Nkaru. He was aware that Selly Chebet had inherited the suit land from her husband, and he did not know if other people had purchased land from Moses Ole Nkaru. 37.He also reiterated that Jackson purchased the land from Moses in 2008, and he continued to reside thereon, even by the time of writing the letter dated 2014, and he did not know of other purchasers of the said land. He also confirmed that Jackson buried his mother on the suit land, and that Selly is also known as Juliana in the village. 38.On re-exam, it was his evidence that he has heard people referring to Selly as Juliana, which name is not in her Identity Card. That Jackson is the one who requested him to write the letter clarifying the name, and that Jackson moved into the suit land in 2008 but he could not confirm whether he purchased the land or not. He did not know if there was a sale agreement between Moses Ole Nkaru and Jackson, and he did not know Moses’ daughters. 1ST DEFENDANT'S CASE. 39.DW1; Jackson Ole Paro, a resident of Ololulunga village adopted his witness statement dated 14th February 2023, as his evidence in chief. He confirmed to know the Plaintiffs herein. That Selly also known as Juliana Nkaru was the wife of Moses Nkaru, who sold a parcel of land to him. The portion of land that he purchased was in Cis Mara /Ololulunga /151, which was approx. 2 acres. He identified the sale agreement in court, and produced the list of documents as D. Exhibits 1 to 5. 40.It was his evidence that when Moses Ole Nkaru was alive, there was no problem or dispute, but when Moses died, his wife gave him notice to vacate. He testified that Moses died before he could transfer the land to him, and the Plaintiffs filed a Succession Cause in Nakuru High Court, and did not give material disclosure, and notify him of the said Succession Cause. Consequently, he placed a caution on the title of the suit land. 41.It was his further evidence that he has lived on the suit land for over 20 years. That his wife Netaya Taru also entered into a sale agreement with Moses, and she was also a witness in his sale agreement. He confirmed that the initial owner of the suit land was Karanja Ole Nkaru, and the initial land parcel was subdivided into two portions, one of them being 209. Later 209 was subdivided into two portions being No. 18437 and 18438 the suit land. 42.He urged the court to dismiss the plaintiffs case and allow the counter-claim, as he has buried his mother on the suit land. He claimed that he is seeking for the rightful ownership of his parcel of land. 43.Upon being cross examined by Mr Onani for the Plaintiffs, he told the court that although he stated in his witness statement that the sale agreement was executed before an advocate, that was not correct, as they fixed the stamp in advocate’s office. He also reiterated that he purchased 5 acres from the land parcel No. Cis Mara /Ololulunga /151, which land he bought from Moses Ole Nkaru, and he paid the full consideration. 44.He confirmed that Moses had inherited the land from his father, though his name did not appear in the Green Card. That the land initially belonged to Karanja and Montet, who died in 1976 and 1984 respectively. It was his further evidence that Moses died in 2013, and though the agreement was drawn in 2006, there was no Land Control Board documents produced in court. 45.He confirmed that he received a demand letter to move from the suit land, and that his mother was buried on the suit land, and the grave is still there. 46.Upon being cross examined by Ms. Jepkemei for the AG, he confirmed to have placed a caution on the land parcel No 18438, Ololulunga. 47.On re-exam, he confirmed that the sale agreement is dated 2006, and Moses died in 2013, and he was alive when the sale agreement was drawn. That the said sale agreement was drawn signed by Selly Chebet and her husband, Moses Ole Nkaru, which was drawn at home, and later stamped at the advocates office. He reiterated that he lives on the suit land, and since the Plaintiffs gave them notice for vacant possession, that was enough evidence that he lives on the suit land. 48.DW2; Netaya Ene Paro, told the court she the wife of Jackson Ole Paro, and that she knows Selly Chebet also known as Juliana Nkaru, who was the wife to Moses Ole Nkaru. She relied on her witness statement entirely. It was her evidence that she purchased 3 acres from Moses Ole Nkaru in 2007, which he produced as an exhibit in court, and the vendors were Moses and his wife Juliana Nkaru. That she paid ksh 120,000= as the purchase price. Further, that they moved into the suit land , and have lived thereon to date. She urged the court to allow their claim. 49.Upon being cross examined by Mr Onani for the Plaintiffs, she reiterated that they bought the land from Moses and Juliana Nkaru, and by the time of the sale, the Succession Cause had not been filed, and the sale agreement was drawn at home. Further, that they did not go to the Land Control Board, for consent, and that the plaintiffs refused to release the title to them. 50.On re-exam , she confirmed that they bought the suit land in 2007, and they have lived thereon without any dispute, until when Moses died , and then the plaintiffs gave them a notice to vacate the suit land. 51.DW3; James Leina, from Ololulunga village told the court that he witnessed the sale agreement between Moses Ole Nkaru, and Jackson Ole Paro, and between Moses and Netaya Taru. That the 1st agreement was drawn in 2006 while the 2nd one was drawn in 2007. Further, that he knew Selly Chebet as Juliana Nkaru, and she participated in the sale of the suit land. 52.He confirmed that Moses Ole Nkaru and his wife Juliana Nkaru, sold the land to the 1st Defendant , and that a dispute arose after Moses died. He urged the court to dismiss the plaintiffs case. 53.Upon being cross examined by Mr. Onani for the plaintiffs, he confirmed that though he live on the land he bought from Moses and his wife, there was no evidence to that effect. The 2nd and 3rd Defendants' case. 54.DW4; Kennedy Too, the Land Registrar, Narok County adopted his witness statement dated 24th November 2023 as his evidence in chief. He also produced the list of documents as D.Exhibit 7. 55.Upon being cross examined by Mr. Onani for the plaintiffs, he confirmed that the land parcel No. 18438 was registered in the name of Karanja Nkaru, and he could tell that since he was the custodian of the lands documents. He told the court that he did not have documents in the name of Moses Ole Nkaru. 56.It was his evidence that a caution was lodged by Jackson Ole Paro on 20th October 2022. He confirmed having received letters from the Plaintiffs dated 17th October 2022, and 17th November 2022, over the property Cis Mara/ Ololulunga/ 184368 and the said letters stated that Jackson was never a purchaser of the suit land. The letters had sought for removal of the caution . since the office of the Land Registrar has no interest, they did not respond to the letter, though one of the quasi-judicial power of the Land Registrar is to resolve such issues. 57.That he notified the owners of the suit land about the caution, though he did not have the notification in court. He confirmed that the caution was still lodged on the title. 58.Upon being cross examined by Mr. Langat for the Plaintiffs, he confirmed that the registration history of the suit land; it was initially registered in the names of Karanja Ole Nkaru and Montet, and the initial title was Cis Mara Ololulunga/ 151, which later gave rise to parcels No. 209 and 210. 59.He confirmed that land parcel No. 209, was registered in the names of Karanja Ole Nkaru and Monica Wanjiku Kimani. Later land parcel No 209 was partitioned to give rise to No.18437 and No.18438 which is the suit land. The said land was registered in the name of Karanja Ole Nkaru. 60.Further, after Moses died, the plaintiffs filed a Succession Cause, and through the said Succession Cause, the suit land was registered in the names of the Plaintiffs herein, who were beneficiaries of the estate of Karanja Ole Nkaru. 61.He also confirmed presence of a Caution which was lodged by 1st Defendant, and he attached a sale agreement to support his claim. He also took the court through the process of removal of caution, either by the Cautioner, Land Registrar, or the Court. It was his evidence that there was no application for removal of caution, and their office has not done a caution hearing by both parties. 62.After the viva voce evidence, parties filed and exchanged written submissions. The Plaintiffs filed their written submissions dated 4th November 2025 through M. M Wangila & Co Advocates, and set out various issues for determination. 63.On whether the 1st Defendant and his wife are bonafide purchaser for value, they submitted that without a confirmed grant, no person can enter into a valid sale agreement for sale of immovable property of a deceased person. 64.Reliance was sought in the case of re Estate of Paul M'Maria(2017)klr; re Estate of Isaac Kaburu Marete(deceased)eklr; and submitted that since the suit land Cis Mara/ Ololulunga/151 was originally registered in the names Karanja Ole Nkaru and Montent Ole Naimodu, who are deceased, then the alleged transactions of 2006 and 2007, by the 1st Defendant and his wife from Moses Ole Nkaru, were null and void. 65.Therefore, it was the Plaintiffs’ submissions that the purported sale agreements relied upon by the 1st Defendant and his wife which were allegedly entered into with a person who did not have letters of administration, then the said vendor had no locus standi, no authority and no legal capacity whatsoever to pass ant interest in the land. Thus the defence of bona fide purchaser for value cannot hold water. 66.On whether the plaintiffs concealed material facts while filing Succession Cause, the Plaintiffs submitted that though the 1st Defendant alleged that he should have been listed as a purchaser in the Succession Cause of the estate of Moses Ole Nkaru, also known as Karanja Ole Nkaru, they argued that the suit property was never registered in the name of Moses Ole Nkaru, and there is no way they would have included the alleged purchase of the 1st Defendant as a liability during the Succession proceedings. 67.As ownership of land is governed by the registration as was held in the case of Hurbet L. Martin & 2 others vs Margaret J. Kamar & 5others( 2016) eklr, the Plaintiffs submitted that since Moses Ole Nkaru was not a registered proprietor of the suit land, the 1st Defendant could not have transacted with him, and his purchase could not have been a liability in the succession proceedings. 68.It was their submissions that no one can transact on behalf of the estate of the deceased person’s estate without first obtaining Letters of Administration. Reliance was sought in the cases of Troustik Union International vs Jane Mbeya( 1993) eklr, virginia Edith Wambui Otieno vs Joash Ougo( 1987) eklr and re Estate of Thiongo Ngunu ( 2015) eklr. 69.The plaintiffs argued that the sale agreements relied on were fraudulent, forged, mutilated and altered. Reliance was also sought in the case of Arthi Highway Developers Ltd vs West End Butchery Ltd & 6 Others ( 2015) eklr, where the court of Appeal held that no interest can arise from a forged or fraudulent document and the illegality destroys any claim founded on such instrument. 70.The Plaintiffs also relied on the cases of Munyu Maina vs Hiram Gathiha Maina( 2013) eklr, Lawrence Mukiri vs Attorney General ( 2013) eklr, Samuel Kamere vs Land Registrar (2015)eklr and Elijah Makeri Nyangwara vs Stephen Mungai Njuguna( 2013) eklr, where the court held that an innocent purchaser cannot rely on a title that is rooted in illegality or fraud. 71.While relying on the case of Re estate of Gitau(deceased) 1993 eklr, the Plaintiffs submitted that no liability to be disclosed because the alleged purchase was a nullity from inception, and therefore, the plaintiffs did not conceal any material facts, because there was nothing capable of being concealed in law. 72.On whether the court should order the transfer of 5 acres allegedly purchased by the 1st Defendant and his wife from the late Moses Ole Nkaru, the Plaintiffs submitted that such an order would be legally impossible to grant. They relied on Section 45(1) of the Succession Act, which prohibits any person from intermeddling with the free property of a deceased person, except under the authority of a grant of representation. 73.Since at the time of the alleged sale, Moses Ole Nkaru did not have grant of representation whether full or limited, then he had no capacity to sell or transfer such parcel of land. Reliance was sought in the case of Re Estate of M'Ngarithi M'Miriti( deceased)(2017) eklr, Virani t/a kisumu Beach Resort vs Phonix of East Africa Assurance Co Ltd( 2004) 2klr 269, where the Court of Appeal held that a party cannot pass any interest in property that he does not lawfully posess- nemo dat quod non habet principle. 74.It was the plaintiffs further argument that the suit is barred by limitation of time. Since the 1st Defendants allegedly entered into the disputed sale agreements in 2006 and 2007, then as provided by Section 4(1) of the [Limitation of Actions Act](/akn/ke/act/1968/21), the suit is time barred as it was supposed to have been filed within a period of 6 years. Further Section 7 of said Act bars actions for recovery of land after 12 years, but the 1st Defendant's claim is brought after 16 years, thus time barred. 75.For this argument on limitation of action, reliance was sought in the cases of Gathoni vs Kenya Co-operative Creamaries Ltd( 1982) klr 104 and Bosire Ongero vs Royal Media Services ( 2015) eklr, where the court held that it lacks jurisdiction to entertain or resurrect a claim that has already died by operation of statute. 76.Further, since the 1st Defendant did not produce any documents evidencing payments of the purchase price, then the Counter-claim is founded on speculation, is questionable, and transfer can be ordered in the absence of proof of consideration. They argued that since the Counter-claim is founded on illegality, is defeated by statutory limitation and is unsupported by any admissible evidence, then the same should be dismissed. 77.On whether the Plaintiffs suit on removal of caution is merited, the plaintiffs relied on Sections 71 and 73 of the [Land Registration Act](/akn/ke/act/2012/3), and they argued that the caution registered against the suit property is unlawful and maliciously lodged, as the 1st Defendant's claim is founded on fraudulent and void documents. That the continued subsistence of the caution is unjustified and contrary to the law. 78.Further, it was submitted that the unlawful maintenance of the caution constitutes an affront to the Plaintiffs’ constitutional protection to property under Article 40 of [the Constitution](/akn/ke/act/2010/constitution) and the full utilization of the property as provided by Sections 24 and 25 of the [Land Registration Act](/akn/ke/act/2012/3), which vests in a registered proprietor the absolute ownership together with all rights and privileges appurtenant thereto. 79.On who should bear costs, it was submitted that costs follow the event, and due to the conduct of the 1st Defendant, he should bear costs of this suit and the counter-claim. 80.Ultimately, the plaintiffs submitted that their claim is meritorious and should be allowed with costs. However, the 1st Defendant's Counter-claim is not merited and should be dismissed with costs to the Plaintiffs. 81.The 1st Defendant filed his submissions dated 1st October 2025 through the Law Firm of C. K Langat &Co Advocates, and submitted on a number of issues, and urged the court to dismiss the Plaintiffs suit, and allow the 1st Defendant's Counter- claim. 82.On whether the 1st Defendant is a bona fide purchaser for value, without notice, he submitted that he is not a stranger to the suit land, nor a squatter having entered into sale agreements in 2006 and 2007, with the deceased Moses Ole Nkaru, for purchase of 5 acres. That he paid the full consideration, took possession, developed the land, lived thereon and he even buried his mother on the suit land. Therefore, he has been in open and occupation of the suit land for over 16 years. 83.It was his submissions that the above are not footprints of a fraudster, but a bona fide purchaser for value without notice. Reliance was sought in the case of Katende vs Haridar &Co Ltd(2008)2EA 173, in which case the court of appeal defined a bona fide purchaser for value. 84.He also relied on Sections 26(1)(b) and 80(2)of the [Land Registration Act](/akn/ke/act/2012/3), which protects a registered proprietor who is in possession and acquired the land for value, unless he had knowledge of fraud or contributed to it. He also relied on the case of David Peterson Kiengo &2 Others vs Kariuki Thuo (2012)eklr, and insisted that the 1st Defendant is a bona fide purchaser for value without notice, whose rights are protected by law, equity and conscience. 85.On whether the Plaintiffs Succession proceedings violated legal obligations to disclose liabilities under the Law of Succession, he submitted that while in pursuit of title No Cis Mara /Ololulunga/ 18438 the Plaintiffs omitted material facts that were so central to the estate ,which absence renders the whole transmission suspect. That the Plaintiffs knew the 1st Defendants interest, they had witnessed the transaction, and lived beside them for decades, but omitted the said interest during the succession proceedings. 86.Reliance was sought in the cases of Re estate of charles Kuloba (2019)eklr, where the court held;“failure to disclose a purchaser’s interest in the estate constituted fraudulent concealment, warranting revocation of grant under section 76 of the succession Act.” 87.Further reliance was sought in the case of Adome vs Ogutu(2024)KEHC 7682(KLR); R vs Registrar of titles exparte David Gachungi (2017)eklr. 88.On whether the Plaintiffs are estopped from denying the 1st Defendants interest on the suit land, it was submitted that the Plaintiffs watched the 1st Defendant develop, live and even buried his mother on the suit land, and now seeks to evict him from thereon and therefore the Plaintiffs are estopped from denying the 1st Defendant's interest thereon. 89.For this submissions, reliance was sought in the case of Mwangi &Another vs Mwangi(1999)eklr, where the Court of Appeal held that where a person is allowed to occupy and develop land with the knowledge and acquiescence of the legal owner, and does so to their determent, the owner is estopped from asserting exclusive title. Further reliance was sought in the case of Teasdale vs Carter (2023) EWHC 490(Fam) where the court stated equity does not permit a party to revenge on a promise when the other has acted irreversibly in reliance. 90.On whether the registration of LR No 18438 constitute constructive fraud and unjust enrichment, it was submitted that the plaintiffs effected subdivisions of LR No 151, with the full knowledge of the 1st Defendant's occupation and purchaser interest. Reliance was sought in the case of R vs Registrar of titles exparte David Gachungi (supra), where the court held;“The plaintiff now enjoys the benefit of subdivision while excluding the purchaser which is a textbook case of unjust enrichment.” 91.On whether the 1st Defendant is entitled to declaratory relief and transfer orders, he submitted that having paid for the land, entered possession, and having been excluded from the Succession proceedings, then the 1st Defendant is entitled to the orders sought in his Counter-claim. Reliance was sought in Article 40 of [the constitution](/akn/ke/act/2010/constitution), and the case of Arthi Highway Developers Ltd vs West End Butchery Ltd(supra). 92.Ultimately, the 1st Defendant submitted that the court should dismiss the Plaintiffs’ suit and allow his Counter-claim. 93.The 2nd and 3rd Defendants filed their submissions through the Attorney General submitted on four issues. 94.On whether the 2nd Respondent acted within their statutory mandate and in a purely administrative capacity in registering the caution against the title to LR No. Cis Mara/Ololulunga/18438, it was submitted that action was strictly in accordance with their statutory duties and powers as prescribed in the [Land Registration Act](/akn/ke/act/2012/3). 95.They relied on Sections 12 and 71 the [Land Registration Act](/akn/ke/act/2012/3), which section mandates the Registrar to register a caution once the relevant documents are submitted, and the application is properly lodged by an application claiming a legitimate interest. 96.On whether the liability for the alleged wrongful and unlawful registration of the caution lies with the 1st Defendant, as per Section 75 of the [Land Registration Act](/akn/ke/act/2012/3), it was submitted that the Act, explicitly places liability for wrongful lodged or maintained caution on the cautioner, and not on the land Registrar. 97.It was further submitted that since the Plaintiffs pleaded that the 1st Defendant wrongfully and unlawfully caused a caution to be registered on the title, then as provided by Section 75 of [Land Registration Act](/akn/ke/act/2012/3) any claim for damages arising from the wrongful and unlawful nature of the caution should be directed towards the 1st Defendant, who lodged the caution, and not the Land Registrar, who registered it as per the statutory mandate. 98.On whether the 2nd Defendant is liable for the alleged violations of the Plaintiffs constitutional right due to the registration of the caution, it was submitted that the Registrar's action are anchored in the [Land Registration Act](/akn/ke/act/2012/3), and the cause of the alleged violation lies with the party who caused the caution to be registered, allegedly without lawful justification. 99.On whether the Plaintiffs are entitled to the orders sought, it was submitted that the Land Registrar, has strict guidelines to follow in order to remove caution as provided by Section 73 of the [Land Registration Act](/akn/ke/act/2012/3). Reliance was sought in the case of Mwangi Rukwaro &Another vs Land Registrar, Nyeri(2019)KEELC 3985(KLR). 100.They argued that the Plaintiffs should have initiated the process of removal of caution, as envisaged under the [Land Registration Act](/akn/ke/act/2012/3), before filing the instant suit. In conclusion, it was submitted that the Land Registrar who is a public officer performing his statutory duties should not be held liable for an alleged violation of constitutional rights that originated from the actions of the 1st Defendant in lodging a caution application. 101.The Plaintiffs filed Supplementary submissions and argued that even if the 1st Defendant was in occupation of the suit land at some point, that occupation was with permission of Moses Ole Nkaru, and it was not hostile, exclusive, continuous or as of right. it was temporarily and indulgent. 102.For the above submissions, reliance was sought in the case of Mbira vs Gachuhi(2002)eklr. Wmbugu vs Njuguna(1983) KLR 172, Kweyu vs Omutut(1990)eklr, Serah Njeri Mwobi vs John Kimani Njoroge(2013)eklr, where the Court of Appeal held that estopel cannot be invoked to defeat a registered proprietor's right where the factual basis of reliance is unproven. Further, legally, estoppel cannot override express statutory provisions protecting registered titles. 103.The Plaintiffs also submitted that Sections 24, 25 and 26 of [Land Registration Act](/akn/ke/act/2012/3) provide that registration of a person as proprietor confers absolute ownership and such title is only challenged on grounds of fraud, misrepresentation, illegality or procedural error attributable to the registered proprietor. 104.For the above submissions, reliance was placed in the case of Isaack Gathungu Wanjohi vs Attorney General & 6 Others ( 2012) eklr, where the court held that equity cannot defeat statutory title, and estoppel cannot create ownership of land , modify ownership , or transfer it. Further reliance was placed in the case of Dina Management Ltd vs County Government of Mombasa & 5 Others (2023), where the Supreme Court of Kenya reiterated that title cannot be defeated by equitable doctrines, unless the statutory exceptions are met. 105.Reliance was also placed in the case of R vs Land Registrar, Mombasa exparte Kahindi Ngala Mangi( 2016) eklr, which case affirmed that the official records are the prima facie proof of proprietorship. It was argued that the 1st Defendant's caution was lodged in October 2022, many years after the Plaintiffs had become the registered proprietors of the suit land, which is clearly an afterthought intended to obstruct the Plaintiffs lawful enjoyment of their land. 106.Therefore, the plaintiffs urged the court to find that the 1st Defendant's claim is without merit and should be dismissed with costs, while the court should order for removal of the caution lodged against LR Cis Mara/ Ololulunga/ 183438 and affirms the Plaintiffs right as the lawful and absolute proprietor of the suit land. 107.The above are the pleadings, the evidence adduced in court, the rival written submissions and cited authorities which this court has carefully considered and renders itself as follows; 108.The Plaintiffs herein are the wife and daughter of Moses Ole Nkaru, who passed on 12th August 2013 as is evident from the Certificate of death produced as exhibit. 109.There is no doubt that the late Moses Ole Nkaru was the son of Karanja Nkaru, alias Karanja Ole Nkaru, who passed on 1st January 1976 as confirmed by the Certificate of Death produced as an exhibit. 110.Further, it is evident that the root of the title in dispute herein is land parcel No. Narok/ Cis Mara/ Ololulunga/151, which was initially registered in the names of Daniel Mondet Ole Naimondu and Karanja Ole Nkaru, as proprietors in common on equal shares. This registration was done on 10th July 1980 and Land Certificate was issued on 9th July 1982, as is evident from the Green card produced as exhibit, and forming part of the evidence herein. 111.It is also evident that this land parcel No. Cis Mara /Ololulunga/151, was later subdivided into two parcels of land, being Cis-Mara/ Ololulunga/ 2009 & 2010\. Land parcel No. 209, was registered in the name of Karanja Ole Ngaru(Nkaru), on 20th January 2020 though by then the said Karanja Ole Nkaru was deceased, having died on 1st January 1976. 112.By the time of the above subdivision of Parcel No.151, into two parcels, Moses Ole Nkaru, the son of Karanja Ole Nkaru was also deceased, having died on 12th August 2013. Further, the other co- owner for land parcel No 151 Daniel Mondet Naimondu, also died on 23rd May 198, and therefore, at the time of above subdivision, he was also a deceased person. However, there is no dispute over the portion of land No 2010, that went to his beneficiaries. 113.From the available evidence, land parcel No Cis Mara/ Ololulunga/209, was later subdivided into two portions being Nos.18437 and 18438, after the conclusion of Succession proceedings in Succ Cause No 67 of 2015. These two parcels of land were registered in the names of the beneficiaries of the estate of Karanja Ole Nkaru. By the time of the filing and conclusion of the succession cause in respect of the estate of Karanja Ole Nkaru, his son, Moses Ole Nkaru was already deceased, and was therefore never registered as the proprietor of the portion of land that was entitled to him as his inheritance from the estate of Karanja Ole Nkaru. 114.The family of Moses Ole Nkaru after the subdivision of land parcel No. 209, was entitled to land parcel No. 18438, and since Moses Ole Nkaru was deceased, the said parcel of land was registered in the names of the Plaintiffs herein who are his wife and daughter, on 4th July 2022 and a title deed was issued in their joint names. 115.In fact, Moses Ole Nkaru did not file for succession proceedings over the estate of his late father, during his lifetime. The succession proceedings were filed by the Plaintiffs herein being Narok Succession Cause No. 67 of 2015, wherein Letters of Administration were issued to the Plaintiffs. 116.It is the Plaintiffs claim that as the proprietors of the suit land, they intended to sell a portion of the suit land, but could not do so since the 1st Defendant with the assistance of the 2nd Defendant, unlawfully placed a caution over land parcel No Cis Mara/ Ololulunga /18438, which caution has frustrate their effort to deal with the suit land, and thus this suit. 117.The 1st Defendant on his part alleged that he was justified in placing the caution on the title of the suit land, since he lawfully purchased 5 acres out of the original suit land from Moses Ole Nkaru in 2006 and 2007, and has been in occupation of the said 5 acres from 2006 to date. He urged the court to dismiss the Plaintiffs case and allow his Counter- claim, wherein he urged the court to direct the Plaintiffs to transfer 5 acres out of the suit land to himself and his wife Netayo Ene. 118.The Plaintiffs denied that the 1st Defendant purchased any parcel of land from Moses Ole Nkaru, who had not taken out Letters of Administration, and thus had no capacity to sell the said land. Further, that the 1st Defendant being a friend of Moses Ole Nkaru, had been allowed to use a portion of the land, but he had not purchased the same. 119.The Plaintiffs denied that the 1st Defendant had buried his mother on the suit land, and further the 1st Plaintiff denied ever having signed the sale agreements that were produced as exhibits by the 1st Defendant. She also denied that she was known as Juliana Nkaru, who witnessed the sale agreements in issue. 120.With the above background in mind, the court finds the issues for determination are;i.Is the 1st Defendant a lawful purchaser of 5acres from the land parcel No. Cis Mara/ Ololulunga /151;ii.Is the 1st Defendant entitled to the prayers sought in the counter-claim?iii.Are the Plaintiffs entitled to the prayers sought in their claim?iv.Who should bear costs of the suit? I) Is the 1st Defendant a lawful purchaser of 5acres from land parcel No. Cis Mara/Ololulunga/151? 121.The suit herein arise from the claim that the 1st Defendant Jackson Ole Paro, allegedly purchased 5 acres from Moses Ole Nkaru, and his wife, who is the 1st Plaintiff out of land parcel No. Cis Mara/ Ololulunga/ 151 which was initially owned by Karanja Ole Nkaru, the father to Moses Ole Nkaru and Daniel Ole Naimondu. 122.As analyzed above, the 1st Defendant alleged that he initially purchased 2 acres in 2006 as per the sale agreement produced as Dw1, and later his wife Netaya Ene Paro, purchased 3acres in 2007 as evidenced by the sale agreement produced as D. exhibit DW2. The 1st Defendant averred that immediately after purchase and payment of the purchase price, he took possession of the said 5 acres, and has lived thereon with his family, and had developed his portion of land. 123.The Plaintiffs denied that the 1st Defendant ever purchased the said portion of land from Moses Ole Nkaru, and averred that the 1st Defendant got access to the said portion of land because he was a friend of Moses Ole Nkaru, who allowed him to use a small portion of the land, because of their friendship, and the fact that the 1st Defendant would get persons to lease land from Moses, and Moses rewarded him with a small portion of land to use, but not to purchase. They claimed Jackson, the 1st Defendant occupied the portion of land with permission of Moses, but not through purchase. 124.Further, the plaintiffs averred that even if Moses sold the said portion of land, which they denied, he had no capacity to sell the same, since he was not an administrator of the estate of Karanja Ole Nkaru, and that Moses was never a registered as the owner of the suit land at all. 125.Since the 1st Defendant alleged, and this allegation were denied by the plaintiffs, the burden of proof was upon him as provided by Section 107 and 109 of the [Evidence Act](/akn/ke/act/1963/46), which provide;“ 107..1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 109..The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”. 126.The 1st Defendant had the onus of calling sufficient evidence to prove his case on the required standard of balance of probabilities. See the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] KECA 616 (KLR). 127.Has the 1st Defendant herein called sufficient evidence to prove his case? The 1st Defendant averred and alleged that he purchased 2 acres in 2006 and 80,000= for the two acres, and then took possession. The Plaintiffs averred that the 1st Defendant only entered into the suit land with permission of the late Moses Ole Nkaru, who was the son of the registered owner. If the 1st Defendant paid ksh 80,000= on 20th November 2006, the said Moses did not acknowledge receipt of the said amount of money. 128.The 1st Defendant alleged that upon purchase of the suit land, he took possession of the purchased portion, which he has developed, and he even buried his mother on the said portion of land. He did not produce any evidence pictorial or photographic evidence to support his allegation of development, and the graveyard of his deceased mother. 129.Even if the 1st Defendant is on the suit land, is the sale agreement in issue enforceable? The two sale agreements refer to sale of plot No 151. Are these sale agreements sufficient to describe the land that was being sold and purchased ? For a sale agreement to be enforceable, it must meet the criteria of a proper sale agreement, which agreement should describe the parcel of land being sold, the parties , purchase price and the witnesses. 130.In the case of Nelson Kivuvani vs Yuda Komora & Another, Nairobi HCCC No.956 of 1991 the court held;“The agreement for sale of land which contain the names of the parties, the number of the property, the purchase price and the conditions attached thereto, the obligations, express or implied, of each of the parties and signed and witnessed by two witnesses who signed against their names amount to a valid contract”. 131.The sale agreements herein fall short of the above conditions. 132.Even if the sale agreements meet the criteria for proper sale agreements, did Moses Ole Nkaru have capacity to sale the said parcel of land ? As the court observed earlier, the land parcel No Cis Mara/Ololulunga/ 151 was initially registered in the name of Karanja Ole Nkaru and Daniel Ole Naimondo, who died in 1976 and 1984 respectively. 133.Though Moses ole Nkaru was the son of Karanja Ole Nkaru, for him to have capacity to sell and or deal with the suit land, he needed to take out Letters of Administration as provided by Section 82(b) of the Succession Act, which provided;“(b)to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:” 134.Courts in this country have severally made determination on the effects of dealing with immovable property of a deceased person without having gone through the succession proceedings. In the case of the matter of the Estate of M’Ajogi M’Ikiugu(Deceased)[2017] KEHC 7348 KLR the court held;Sale of estate property before confirmation(4)Courts have said time and again- and I will not be tired of stating it again- that, under section 82(b) (ii) of the [law of Succession Act](/akn/ke/act/1972/14), sale of immovable property of the estate before confirmation of grant is prohibited. Again, under section 55 of the [Law of Succession Act](/akn/ke/act/1972/14), the law has placed restriction on distribution of any capital assets of the estate before confirmation of grant. Therefore, no person shall have any power or legal authority or capacity to sell immovable property of the deceased before confirmation of grant. As such, any such attempted sale of immovable property of the estate before confirmation of grant shall be null and void for all purposes and intents. I need not also state that beneficial interest of a person beneficially entitled to a share in the estate must be identified and be capable of registration in his name before it could be sold or pledged as security or exchanged with another type of property. It is during confirmation hearing that the court establishes the respective identities and shares of persons beneficially entitled, and when confirmed the grant specifies such persons and their respective shares in the estate. See section 71 of the [Law of Succession Act](/akn/ke/act/1972/14). Therefore, before confirmation, the interest of the beneficiary remains amorphous and entangled within the estate; and vested in the administrator or executor as the estate property as by law stated.But for completeness of the foregoing discourse, I wish to go two steps up. First, a void transaction is in law a nullity. It is not only bad, but incurably bad. And every proceeding or perceived right which is founded on it is not only bad but incurably bad. On this I can do no better than Lord Denning M. R in the case of Macfoy vs United Africa Co. Ltd[1961] 3 All ER 1169 at pg 1172 that“…if an act is void, then it is in law a nullity. It is not only bad, but incurably bad, void without more ado, though it is sometimes convenient to have the court declare there is no need for an of the court to set aside. It is automatically null and bad. You cannot put something on nothing and expect it to stay there. It will it to be so. And every proceeding which is founded on it is also bad and incurably collapse.”Second, any acquisition of land in violation of the [Law of Succession Act](/akn/ke/act/1972/14) is unlawful and a finding to that effect by a competent court brings the acquisition within the claw-back provisions of article 40(6) of [the Constitution](/akn/ke/act/2010/constitution) which declare that- -The right under this Article do not extend to any property that has been found to have been unlawfully acquired. 135.Section 82(b)(ii) of the Law of Succession provide that sale of immovable property of the estate of the deceased before confirmation of grant is prohibited. Further, Section 55 of the said [Law of Succession Act](/akn/ke/act/1972/14), places restriction on the distribution of any capital assets of the estate before confirmation of grant. 136.The Law is very clear that for a person to have capacity to deal with the assets of a deceased person, he must be allowed to do so through succession proceedings. Moses Ole Nkaru had not taken out Letters of Administration over the estate of his father Karanja Ole Nkaru, and therefore, he had no capacity to deal with the said estate. Moses Ole Nkaru, had no capacity to sell the said parcel of land that he allegedly sold to the 1st Defendant. 137.Without capacity to sell, Moses Ole Nkaru could not pass a good title to the 1st Defendant. Capacity or locus standi gives one a standing or power to act. 138.Without capacity to deal with the estate of Karanja Ole Nkaru, then the 1st Defendant did not acquire a good title, and he cannot even take refuge in the doctrine of bona fide purchaser for value, without notice. See the case of Arthi Highway Developers Ltd vs West End Butchery Ltd & 6 others (2015) eKLR. 139.In fact, by dealing with the deceased land without capacity, Moses Ole Nkaru was intermeddling in the deceased estate, as provided by Section 45 of the [Law of Succession Act](/akn/ke/act/1972/14). See the case of Morris Mwiti Mburugu vs Dennis Kimathi M'mburugu (2016)eklr, where the court held;“From the foregoing, it is clear and I so hold, that where any person interferes with the free property of the deceased or deals with the estate of the deceased person contrary to the provisions of sections 45 and 82 of the Act, is intermeddling, is unlawful and cannot be protected by the court. the transaction is subject to be nullified and set aside at the instance of the innocent beneficiaries, who may have been affected by the act, but were not involved in the same.” 140.Even if Moses was a beneficiary of the estate of Karanja Ole Nkaru, without having taken out Succession proceedings, he was forbidden from dealing with the estate of his deceased father. See the case of Samuel Ariga Bosire Vs Abagusi Otenyo Self Help Group (2021)eklr, where the court held;“….an administrator is not allowed to dispose of any part of the deceased’s property even if he is a beneficiary….if he does so, he will be guilty of intermeddling with the deceased estate under section 45 of the [Law of Succession Act](/akn/ke/act/1972/14) and is guilty of an offence under sub-section (2) punishable by a fine not exceeding Ksh.10,000/= or to a term of imprisonment not exceeding 1 year or both penalties.” 141.It is clear from the available evidence that at the time of the alleged sale agreements of 2006 and 2007 no Succession proceedings had been taken out over the estate of Karanja Ole Nkaru, and therefore Moses Ole Nkaru could not sell the said land to 1st Defendant and his wife. Consequently, this court finds and holds that the 1st Defendant did not lawfully purchase 5 acres out of the land parcel No Cis Mara /Ololulunga/151. II) Is the 1st defendant entitled to the prayers sought in the counter-claim? 142.In his Counter-claim, the 1st Defendant sought for various prayers among them a declaration that he purchased 5 acres together with his spouse from land parcel No Cis Mara/ Ololulunga/ 151 which was registered in the name of Moses Ole Nkaru also known as Karanja Ole Nkaru. 143.From the available evidence, it is clear that the suit land was never registered in the name of Moses Ole Nkaru. Further, Moses Ole Nkaru was the son of Karanja Ole Nkaru, and they were not the same person. Karanja Ole Nkaru died in 1976 and was the father to Moses Ole Nkaru who died in 2013. 144.Further, Moses Ole Nkaru being not the legal representative of the estate of Karanja Ole Nkaru did not have capacity to deal with the estate of Karanja Ole Nkaru. Consequently, this court cannot make the declaration sought in prayer No. (a) of the Counter-claim. 145.On prayer No. (b), there is no doubt that the suit land Cis Mara/ Ololulunga /18438, is a subdivision of parcel No. 209 which was an excision of Cis Mara /Ololulunga/151. There is no doubt about that, and the court makes such declaration. 146.On prayer No. (c) of concealment of material facts, the court finds that having gazetted the filing of the Succession cause, the court cannot hold and find that there was concealment of material facts. On prayer No. (d) of compelling the Defendants in the counter-claim to transfer 5 acres to the Plaintiff in the counter-claim, this court finds that the fact that Moses Ole Nkaru did not have capacity to sell the suit property, then Jackson ole Paro did not acquire good title, and this court cannot compel the Defendants to transfer the land to him. 147.The above position is based on the principle of Nemo dat quod non habet (No one can give what they do not have;) See the case the re-estate of M’ Ngarithi Vs. M’ Miriti (2017), where the court held that sale of the land from the deceased estate without grant was deemed to be void resulting in innocent buyer losing both the money and land. Further, in the case of re-estate of Eliakin Sigor Awimbo (2025), the court held; that the innocent purchaser for value was not protected because he knew the seller did not have authority to sell the land before the grant was confirmed. III) Are the plaintiffs entitled to the prayers sought in their claim (plaint)? 148.In their claim, the Plaintiffs have sought for removal of caution lodged over land parcel No Cis Mara/ Ololulunga /18438, on 14th July 2022. From the Green Card produced in court as exhibit, it is evident that the 1st Defendant herein did lodge a caution over land parcel No Cis Mara/Ololulunga /18438 on 25th October 2022, but not on 14th July 2022, as alleged in the plaint. The said caution was lodged on a claim of purchaser's interest. 149.The Plaintiff’s claim is that the 1st Defendant being facilitated by the 2nd Defendant lodged a caution on land parcel No. Cis Mara/Ololulunga/ 18438. The caution lodged by the 1st Defendant was lodged on 25th October 2022, and that is not the one referred in the plaint herein. 150.Be that as it may, it is evident that the 1st Defendant herein did lodge a caution over the suit land on a claim of purchaser’s interest. The 1st Defendant testified that he has been on the suit land since 2006. The Plaintiffs in their testimonies also confirmed that the 1st Defendant has been in occupation of the suit land from 2007, and even during the life time of Moses Ole Nkaru, the 1st Defendant occupied the portion he has been using. 151.Though the 1st Defendant's claim which is based on purchase could not stand, given that he has been in possession and occupation of the suit land for long, could his right of ownership of the said land have crystalized through adverse possession? However, there is no such prayer in his Counter-claim. 152.Section 71(1) & (2) of the [Land Registration Act](/akn/ke/act/2012/3) provides instances when a caution can be lodged. It provides as follows; - 71.Lodging of cautions(1)A person who—(a)claims the right, whether contractual or otherwise, to obtain an interest in any land, lease or charge, capable of creation by an instrument registrable under this Act;(b)is entitled to a licence; or(c)has made an application for a bankruptcy order against the proprietor of any registered land, lease or charge.(2)A caution may either—(a)forbid the registration of dispositions and the making of entries; or(b)forbid the registration of dispositions and the making of entries to the extent expressed in the caution. 153.The 1st Defendant lodged the caution based a claim of purchaser’s interest. With lodging of such a claim, the Land Registrar was mandated to enter such an entry. Section 73 of the [Land Registration Act](/akn/ke/act/2012/3) provides the procedure for removal of caution. 154.The plaintiffs alleges that the caution lodged on the suit property is unlawful and malicious. However, it is evident that the 1st Defendant has been on the suit land for long. He may have gotten into the said land through an attempted purchase which the court has found and held was not lawful since Moses Ole Nkaru had not taken letters of administration over the estate of Karanja Ole Nkaru, and thus had no capacity to deal with the said land. But could the 1st Defendant right to own the said portion of land have crystalized through other means? 155.The removal of caution maybe done by the court or the Land Registrar, upon giving parties an opportunity of being heard. The Land Registrar submitted that the Plaintiffs should have initiated the process of removal of caution as envisaged under Section 73 of the [Land Registration Act](/akn/ke/act/2012/3). This court concurs with the said submissions that the parties ought to have appeared before the land Registrar for hearing on the removal of caution, wherein the cautioner, that is the 1st Defendant ought to have been given an opportunity to be heard. See the case of Mwangi Rukwaro &Another vs Land Registrar , Nyeri(2019)KEELC 3985(KLR), where the court held;“Whilst this court has power to order for removal of the caution/restriction herein, it cannot do that through a process where the cautioner or his legal representative has not been given an opportunity to participate. In the special circumstances of this case, I am of the considered view that the applicants should invoke the process provided in Section 73[2] [3] [4] of the [Land Registration Act](/akn/ke/act/2012/3), 2012 as it is only through that process that it may be determined that there is no person with an interest in maintenance of the caution.” 156.Having found that there is evidence that the 1st Defendant has been in occupation and possession of a portion of the suit land for long, he may have had legitimate reasons to lodge the caution that he lodged on 25th October 2022, and not 14th July 2022. The land Registrar should conduct a hearing for removal of caution, and only after that hearing and determination may the parties move the court. 157.For the above reasons, this court finds no good reasons to direct the Defendants herein to remove the caution lodged by the 1st Defendant, before a caution removal proceedings are conducted before the Land Registrar. Consequently, this court finds and holds that the Plaintiffs are not entitled to the prayers sought in the plaint. Iv.) who should bear costs of the suit? 158.Ordinarily in civil suits, costs are granted at the discretion of the court as provided by Section 27 of the [Civil Procedure Act](/akn/ke/act/1924/3). However, costs follow the event and are awarded to the successful litigant. The plaintiffs have not succeeded in their claim, and neither did the 1st Defendant. None of the parties herein can claim to be the successful litigant. 159.Bearing the above in mind, and taken into consideration that costs are awarded at the discretion of the court, the court directs each of the party herein to bear its own costs, being costs of the main suit and the counter-claim. 160.Having considered the available evidence, the court finds and holds that the Plaintiffs have not proved their case on the required standard of balance of probabilities. For the above reasons, the plaintiffs suit dated 7th November 2022 is dismissed entirely with an order that each party to bear its own costs. 161.Equally, the court finds and holds that the 1st Defendant in his Counter -claim dated 23rd February 2023, did not prove his case on the required standard of balance of probabilities. Apart from allowing declaration No (b), the court dismisses the said counter-claim with an order that each party to bear its own cost. 162.Further, the court directs the parties to appear before the Land Registrar, Narok within a period of 30 days from the date herein for hearing of caution removal as provided by Section 73(4) of the [Land Registration Act](/akn/ke/act/2012/3).It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK THIS 29 TH DAY OF JANUARY 2026****L. GACHERU****JUDGE** Delivered online in the presence ofElijah Meyoki – Court AssistantMr. Wangila for 1st and 2nd plaintiffsMr. Lepore holding brief for Mr. Langat for 1st DefendantMs Wanjiru for 2nd 3rd Defendants