Pheris Wanjira Muriithi VS Jecinta Wangechi Mukoma

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1. This is an appeal from the entire judgment of Hon. Nelly W. Kariuki, Principal Magistrate, Nyeri, in ELC Case No. 18 of 2019 delivered on 29th November 2022. The Appellants filed the Memorandum of Appeal dated 16th December 2022, setting out the following grounds:
1) The Learned Magistrate erred in law and in fact, in failing to make a finding that the Plaintiff had not proved a case of fraud against the Defendant as filed, and as such, the Plaintiff''s case should have been dismissed with costs.

2) The Learned Magistrate erred in law and in fact in failing to make a finding that the deceased (RUTH WANGUI GITONGA) had willingly transferred Land Parcel No.LR Nyeri/Uasonyiro/901 to the Defendant during her lifetime before her lawyer, who attested the same and testified in court, hence there was no illegality in her registration.


3) The Learned magistrate erred in law and in fact in revoking and cancelling the Defendant’s title to Land parcel No.LR Nyeri/Uasonyiro/901 under section 80 of the Land Registration Act, yet no fraud or mistake was proved as provided by the law.

4) The Learned magistrate erred in law and in fact in failing to make a finding that it is not the Defendant who had brought a suit against the Plaintiff seeking to enforce the agreement; hence, the provisions of section 3 of the Law of Contract Act and Section 38 of the Land Act 2012 did not apply herein.

5) The Learned magistrate erred in law and in fact in failing to make a finding that the deceased (RUTH WANGUI GITONGA) had received consideration for the land. 

6) The Learned Magistrate erred in law and in fact in failing to consider that the Defendant''s title was issued legally, having followed all laid down procedures, including obtaining Land Board Consent for the transfer.

7) The Learned Magistrate erred in law and in fact in failing to consider that the Plaintiff''s case, as filed, was based on fraud, which was not proved, yet the judgment was based on other issues which were not relevant. 
2. The Plaintiff’s case was set out in the plaint amended on 3rd December 2020. The suit was initially filed by Ruth Wangui Gitonga (now deceased), who was substituted by the Legal Representative of her estate, Jecinta Wangui Mukoma, the Respondent herein.  The Deceased’s claim was based on ownership of Land Parcel No. Nyeri/Uasonyiro/104, which was subdivided into several parcels of land, including the suit parcel of land No. Nyeri/Uasonyiro/901 (referred to as the “suit land”). 
3. The deceased claimed that the Defendant fraudulently, unlawfully and without authority transferred the suit land to herself and encroached on it by fencing and utilizing it. 
4. The Plaintiff set out particulars of fraud, stating that the Defendant forged transfer documents purportedly signed by her and represented herself as having the authority of the proprietor of the suit land to transfer it. The Plaintiff further claimed that the Defendant obtained title to the suit land based on false documents.
5. The Plaintiff prayed for judgment against the Defendant for revocation of the Defendant’s title to the suit land and its restoration to her, and costs of the suit.
6. The Defendant filed a defence amended on 23rd May 2021, where she denied the Plaintiff''s claim.  She gave particulars of fraud, illegality and/or dishonesty on the part of the Plaintiff, claiming that the transfer of land document was not forged and the details of the transfer were well known to the Plaintiff.  The Defendant stated that the Plaintiff failed to acknowledge that she received consideration for the land and that the Plaintiff made a false claim that the title was acquired through false documents, while she had taken the Defendant to obtain the Land Control Board Consent. 
Evidence of the Trial – Plaintiffs'' Case
7. The Plaintiff, Jecinta Wangui Mukoma, testified by adopting her witness statement and producing the documents on the list of documents filed in court. She stated that she was the daughter of the initial Plaintiff, Ruth Wangui Gitonga (deceased) and administrator of her estate. She confirmed that her mother was the owner of the suit land and there were never any dealings or transactions between her and the Defendant over the suit land. She claimed that the Defendant forged transfer documents and thereafter encroached onto the suit land by cultivating.
8. On cross-examination, she stated that Land Parcel No. Nyeri/Uasonyiro/104 was subdivided into several parcels: Land Parcel No.Nyer/Uasonyiro/900 (which was sold to Susan Waithera & John Mwangi), Land Parcel No.Nyeri/Uasonyiro/901 (the “Suit Property”), Land Parcel No.Nyeri/Uasonyiro/902 (which was given to Paul Thamaini), Land Parcel No.Nyeri/Uasonyiro/903 (which was given to Michael Maina) and Land Parcel No.Nyeri/Uasonyiro/905 (which was given to Samson Wandere Gitonga).
9. She added that Ruth Wangui Gitonga was using a thumbprint and that there was a thumbprint on the transfer indicating that the transfer was for the land from the Plaintiff to the Defendant.  She also stated that Minute 141 of the Agenda for Kieni West Land Control board, Month of March 2014, showed that Ruth Wangui Gitonga was to transfer land parcel No.Nyeri/Uasonyiro/905 measuring 6.72 Ha to the Defendant.
10. On re-examination, the Defendant confirmed that Ruth Wangui Gitonga had not sued the other transferees of the subdivided portions.  She stated that she never took the late Ruth Wangui Gitonga to the March 2014 meeting of the Kieni West Land Control Board. 
11. PW2, Regina Wanjiru Njaramba, adopted her witness statement filed on 12th October 2016 as her evidence in chief.  She was the daughter of the Late Ruth Wangui Gitonga, the registered owner of Land Parcel No. Nyeri/Uasonyiro/104; that she was not aware of any Sale Agreement between her mother and the Defendant.  She added that she was not a witness to any sale transaction between the Defendant and her late mother and that she did not know the Defendant.
12. On cross-examination, she testified that her mother subdivided No.Nyeri/Uasonyiro/104 into several land parcels Nos.Nyeri/Uasonyiro/900 – 905, and that she was not present when her mother transferred Land Parcels Nos/ Nyeri/Uasonyiro/900, 903, 904, and 905. 
13. On re-examination, she stated that she did not sign any documents or see her mother sign any documents.  She added that she did not witness the Defendant do so. 
Defendant’s Case
14. DW1, Pheris Wanjira Muriithi, adopted her witness statement dated 27th February 2017 and produced her List and Bundle of Documents dated 21st March 2016 as Exhibits.  She testified that the suit property was bought for her by her husband through an oral agreement.  She added that Ruth Wangui Gitonga signed the transfer documents drawn by Theuri Mwangi Advocate, that she was present during the Land Control Board Meeting.
15. On cross-examination, the Defendant testified that she did not buy the suit property and did not pay any money to the late Ruth Wangui Gitonga for the suit property.  She stated that she was present with Samson Wandere when the oral agreement was made, but that she was not a party to the oral agreement.   She added that the transfer was registered by her husband, but that it did not feature in the Search for the Property.  She also stated that she did not know anything about the Consent. 
16. On re-examination, the Defendant stated that both parties to the transfer signed before an Advocate.  She added that she was present when the Ruth Wangui Gitonga and her husband were negotiating for the sale of the land and that her husband procured Susan Waithera to purchase a parcel of land from the Plaintiff, and that the search was dated 20th January 2016, by which time the land had been transferred to her, and as such, the Plaintiff''s name could not appear.
17. DW2, Douglas Gichuki Ng’ayu, adopted his witness statement dated 27th February 2017 as his evidence in chief.  He testified that he had been a member of Kieni West Land Control Board for about 5 years and that in March 2014, the late Ruth Wangui Gitonga made an application for consent to transfer the suit property to the Defendant.  The application was received in their offices on 19th March 2014, and the consent was issued on the same date (Minute 141) when the Plaintiff and the Defendant were present.
18. On cross-examination, he stated that he had a letter of appointment as a member of the Kieni West Land Control Board from the District Commissioner, but he did not produce it in court.  He stated that in the minutes (Minute 141), the size of the Suit Property is indicated to be 6.72 Hectares, and that he did not know who typed the minutes.  He added that he had not given consent for the subdivision of the mother title.  He further added that he did not see a title for the Suit Property in the name of Ruth Wangui Gitonga.
19. On re-examination, he testified that when approving applications, they just look at the minutes; they do not get to see the applications for consent, the Clerks in the Registry make mistakes and typing errors and that the application for consent indicated 0.83 Hectares. He added that he did not know anything about the subdivision. 
20. On 1st March 2022, DW3 John Mucire Kamau adduced his evidence, adopting his witness statement dated 27th February 2017, where he stated that he knew the Plaintiff and that the Defendant was his wife.  He testified that in the year 2014, he brought Susan Waithera to buy one of the Plaintiff’s subdivided properties and that he was entitled to a commission of Kshs 300,000, which would be paid for with 2 acres of land.  Further, that the late Ruth Wangui Gitonga and Samson Wandere were present at the LCB Board, and that the land was transferred to DW3''s wife, who is the Defendant. 
21. On cross-examination, DW3 stated that he was a Land Agent who solely owned Gathando Agencies, which had an office at Kiawara, Gatarakwa.  He stated that he did not have a licence but that Nyeri City Council had given him a permit.  He stated that he went up to Standard 7 in his studies and that he did not know the Estates Registration Board.  He added that he did not have a licence from the Estates Registration Board.
22. He stated that he met Ruth Wangui and Samson Wandere in 2012, and that there was no written agreement for the commission of Kshs.300 000 and whether there was a written agreement for the exchange of land instead of paying the Kshs.300,000=
23. He added that he did not have a Sale Agreement between the late Ruth Wangui and Susan Waithera, and neither was there an agreement between the late Ruth Wangui Gitonga and the Defendant.  He added that the Defendant did not pay any money to Ruth Wangui Gitonga, and the said Defendant was not present when the oral agreement to the transfer of the land was made. He concluded by stating that the Transfer was done in the car at Gathungu House and that the Late Ruth Wangui Gitonga was seated with the Defendant.
24. DW4 Theuri Mwangi Advocate testified and adopted his witness statement dated 30th March 2022 and stated that he prepared the Transfer dated 20th March 2014, that the attesting signature on the document was his and that both parties appeared before him.
25. On cross-examination, the witness stated that a Simon Wandere went to his office at Gathungu House, and they both went down to see the Late Ruth Wangui Gitonga, who was in the car.  He did not know the parties to the transfer, and he could not recall who paid his legal fees, how much was paid, or that he did not issue a receipt for the said fees.  He stated that he did not see the title document for the land he was preparing a transfer for, and he did not confirm whether the Late Ruth Wangui Gitonga had a title to the land.  He also added that he did not do any search on the suit property and that he did not draw any Agreement for Sale. 
26. On re-examination, he stated that he used the application for consent and the Consent to prepare the transfer. 
27. The trial Court delivered judgment on 29th November 2022, finding the Plaintiff’s suit merited and issuing the following orders: 1. That the Defendant’s title to land parcel no. LR NYERI/UASONYIRO/901 is hereby revoked and cancelled under Section 80 of the Land Registration Act, and the Defendant''s title to land parcel no. LR NYERI/UASONYIRO/901shall revert to the previously registered owner, Ruth Gitonga.
28. The trial Court found that there was no written sale agreement between the Appellant and the Respondent of the suit land.  The Court also found that there was no proof of consideration for the transaction.  The trial court found that the Land Transfer was unprocedural and illegal.  The court also faulted the Land Agent, who claimed to have been owed a commission, for acting illegally since he had no licence to practice as an Estate Agent.

Submissions by Counsel for the parties
29. Counsel for the Appellant filed written submissions dated 19th February 2025, while the Respondent''s submissions are dated 25th March 2025.  The Court has considered the said submissions in this judgment.
Analysis and Determination
30. The court has considered the Record of Appeal, Grounds of Appeal and Submissions filed by counsel and determined that the Grounds of Appeal may be summarised into the following issues for determination –
A) Grounds 1, 3 and 7: Whether the Respondent proved fraud or mistake against the Appellant in the sale of the suit land to the Appellant.

B) Grounds 2, 4, 5 and 6: Whether there was a legally binding and enforceable sale and transfer of the suit land from the Respondent to the Appellant upon payment of consideration.


A) Whether the Respondent proved fraud or mistake against the Appellant in the sale of the suit land to the Appellant.
31. Even though this issue arose from a summary of the grounds of Appeal, Counsel for the Appellant submitted extensively on the question of whether the Respondent proved fraud or mistake as particularised in the Plaint. He emphasised the submission that the Judgment of the trial court was based on extraneous and irrelevant issues not pleaded.  The counsel cited the Malawi Supreme Court of Appeal Case of Malawi Railways Ltd Vs. Nyasulu (1998) MWSC3 for the propositions that in an adversarial system, the parties as well as the court are bound by the pleadings and the court cannot pronounce itself on a matter not in the pleadings.  The Respondent, on her part, claims that fraud was proved as pleaded in the Plaint.
32. The Trial court, in its finding, concluded that the transfer of land was unprocedural and illegal for various reasons.  The Court found that there was no written sale agreement of the suit land between the Appellant and the Respondent.  The Court also found that there was no proof of consideration for the transaction.  The court faulted the Land Agent, who claimed to have been owed a commission, for acting illegally since he had no licence to practice as an Estate Agent.
33. This Court is of the view that the Respondent pleaded that there was fraud in the process of the sale and transfer of the suit land. However, the Court also sees that illegality and failure to follow the legally laid down procedure as having been pleaded generally at paragraphs 4, 5 and 7 of the Amended Plaint, where the Plaintiff stated that the Defendant fraudulently, unlawfully and with no authority transferred to herself the suit land. The Plaintiff further stated that the transfer was effected while there had never been any dealings between herself and the Defendant.
34. The Appellant in her amended defence denied the particulars of fraud particularised by the plaintiff. She also gave particulars of fraud, illegality and dishonesty on the part of the Plaintiff, stating that the documents of transfer were not obtained through forgery. She further pleaded that the Plaintiff received consideration for the sale of the suit land and that the Plaintiff had taken the Defendant to the Land Control Board for its consent to the sale of the suit land.
35. The evidence adduced before the trial Court extensively discussed the issues which finally formed the basis of the Trial Court’s determination. In particular, DW3 John Mucire Kamau brought in the question of the agency agreement, the consideration for the transfer of the land, the execution of the transfer form and the Land Control Board Consent. He testified that, sometimes in the year 2014, he brought Susan Waithera to buy one of the Plaintiff''s subdivided properties and that he was entitled to a commission of Kshs 300,000, which would be paid for with 2 acres of land.  Further, that the late Ruth Wangui Gitonga and Samson Wandere were present at the LCB Board, and that the land was transferred to DW3''s wife, who is the Defendant.  On cross-examination, DW3 stated that he was a Land Agent registered as Gathando Agencies, which had an office at Kiawara, Gatarakwa.  He stated that he did not have a licence from the Estates Registration Board. He further stated that there was no written agreement for the commission of Kshs. 300,000 or for the exchange of land instead of paying the Kshs.300,000=
36. The Defendant also testified that the agreement for the transfer of land was oral and that she did not pay any consideration for the same.
37. Taking into account the entirety of the evidence above, this Court is of the view that the issues determined by the Trial Court in its judgment were pleaded in the Plaint and in the defence. Further, the said issues were discussed extensively by witnesses during their examination in chief and in cross-examination.  In the Court’s view, it appears from the course followed at the trial that the issues determined had been left to the court for decision, and the Trial Court cannot be faulted for making findings on the said issues.
38. The Supreme Court of Kenya in Muthuuri & 4 Others v Attorney General & 2 others (Petition 15 (E022) of 2021) [2023] KESC 52 (KLR) (23 June 2023) (Judgment) stated that;

“The general rule is that parties are bound by their pleadings. However, a court may make a determination on an unpleaded issue where, in the course of the hearing, parties have canvassed the issue and left it to the court to determine. See Odd Jobs v. Mubia [1970] EA 476.”
39. The Court of Appeal in Herman P. Steyn v Charles Thys [1997] KECA 395 (KLR) stated as follows;
"Having acquiesced in the departure and participated as set out above, the appellant cannot now be allowed to complain that the trial judge was in error in view of the state of the pleadings. Such a course as taken by the trial judge is well recognised in our law. In Odd Jobs Vs. Mubia [1970] E.A. 476, it was held: "A court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for decision; on the facts the issue had been left for decision by the court as the advocate for the appellant led evidence and addressed the court on it"
B) Whether there was a legally binding and enforceable sale and transfer of the suit land from the Respondent to the Appellant upon payment of consideration.
40. The Trial Court determined that the sale of the suit land was premised on an oral contract that was not reduced into writing. This, the Trial Court found, was blatantly contrary to law. The Respondent denies having disposed of her interest in the suit land. This court agrees with the trial court and finds that the title to the suit land was transferred in contravention of the provisions of Section 3 (3) of the Law of Contract Act and Section 38 of the Land Act. Section 3 (3) of the Law of Contract Act states that;
(3) No suit shall be brought upon a contract for the disposition of an  interest in land unless—
(a) the contract upon which the suit is founded—
(i)is in writing;
(ii)is signed by all the parties thereto; and
(b) The signature of each party signing has been attested by a witness who is present when the contract was signed by such party:
Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it affect the creation of a resulting, implied or constructive trust.
(4) Subsection (3) shall not apply to a contract made in the course of a public auction, nor shall anything in that subsection affect the creation or operation of a resulting, implied or a constructive trust.
(5) The terms of a contract may be incorporated in a document either by being set out in it or by reference to some other document.
41. The requirement for a written sale agreement is also provided under Section 38 of the Land Act, which states that -
1)  Other than as provided by this Act or by any other written law, no  suit shall be brought upon a contract for the disposition of an  interest in land—
(a) the contract upon which the suit is founded—
(i)is in writing;
(ii)is signed by all the parties thereto; and
(b) The signature of each party signing has been attested to by a witness who was present when the contract was signed by such party.
(2) Subsection (1) shall not apply to—
(a) a contract made in the course of a public action;
(b) the creation or operation of a resulting, implied or a constructive trust; or
(c) any agreement or contract made or entered into before the commencement of this Act, provided that—
(i) the verbal contracts shall be reduced to writing within two years from the date of enactment of this Act; and
(ii) the Cabinet Secretary shall put a notice of the requirement to reduce the contracts in writing, in a newspaper of nationwide circulation.
42. This court finds that for a disposition of an interest in land to be upheld, for having been legal, it must comply with the above two sections of the law.  This position was confirmed in the cases cited by the Respondent in Lucy Mirigo & 550 Others Vs. Minister for Lands & 4 Others, Maisha Investment Ltd Vs. Hsssan Mohamed Hassanal & Another (2019)eKLR.  In Daud Ledama Murintat Vs. Mary Christine Kiarie & 2 Others (2017) KEELC 2998 (KLR), the court held that –
"The Plaintiff thus makes admission that there was no agreement that was in writing, yet the foundation of the suit is the said alleged oral agreement.  The said agreement, having not been in writing, contravened Section 3(3) of the Law of Contract Act and cannot be relied upon to sustain the present suit by the Plaintiff.  The contract is enforceable as it related to a disposition of an interest in land, and such a contract has to have been in writing and signed by the parties to it and witnessed as required under Section 3(3) of the Law of Contract Act."
43. The court agrees with the above finding, noting that in the present case, it is not in dispute that there was no written agreement of sale of the suit land between the Appellant and the Respondent.  There was also no written agreement between the Respondent and the Appellant''s husband, DW3 John Mucire Kamau.  In the court''s view, the basis upon which any transfer of land would have been made was in contravention of clear provisions of the law and was thus illegal and unprocedural. 
44. The other ground the trial court relied on in finding the transfer illegal was the fact that there was no consideration for the said transfer. On this issue, the Appellant claimed before the trial court that in 2014, her husband bought her a 2-acre plot of land 2 acres. She, however, did not mention any money she or her husband paid for the land. 
45. DW3, John Mucire Waweru, the Appellant''s husband, testified that Ruth Wangui (Deceased) asked him to assist them in selling eight acres of land at an agreed commission of Kshs 300,000=, which was to be paid by way of transfer of  2 acres out of the land being sold.  Thereafter, he stated that the transfer of land and consent of the Land Control Board were obtained and registered.
46. On the other hand, the Respondent and the witness denied the existence of an agreement that the Appellant was to be given land in lieu of money owed to her husband as a commission for the sale of land.  This leaves the court to decide who, between the Respondent''s and the Appellant''s witnesses, is to be believed and whether or not there was any consideration paid for the transfer of the suit land.
47. The court has considered the documents produced at the trial by the Appellant.  In particular, the court notes defects in the Transfer of Land Form dated 20th March 2014 for not having shown the consideration paid for the Transfer of Land. This form is crucial in the legal process of the transfer of land, and the same ought to contain crucial information.  The said form specifically provides as follows in the relevant part;
“I/We…………………………..in consideration of……………………..(the receipt whereof is acknowledged) Transfer to ……………………….”
This is a standard form that specifically provides a space to fill in the consideration paid for the transfer of land. The Court notes that instead of filling in the amount of consideration paid, the same shows “SALE”
48. The court also considered the evidence of Theuri Advocate, who stated that he prepared the transfer. On cross-examination, he stated that the person who went into his office was a gentleman who told him that his mother had a document which needed drawing.  He prepared the document and handed it to her to sign.  The Advocate confirmed that the lady did not go to his office, but the gentleman was the one guiding the transaction.  He confirmed that he did not see any Sale Agreement, the Title Deed and/or any Official Search.  The only thing he saw was the consent of the Land Control Board. 
49. In the Court’s view, the fact that the Transfer form was signed and witnessed by the Advocate did not validate the transaction.  This is because the Advocate did not carry out any due diligence to confirm the validity of the sale transaction.  He did not confirm that the land subject matter of the Transfer actually belonged to the person appearing before him.  The persons before him did not show him the title deed to the suit land to confirm ownership.  The Advocate did not confirm whether any consideration had been paid for the transfer of the land, and indeed, he failed to indicate on the Transfer Form the consideration, if any, that was received by the Vendor.
50. The Court is persuaded that failure to indicate the consideration paid for the transfer of land contravened the law, in particular, Section 43 of the Land Registration Act states that;
Every instrument effecting a disposition of land under this Act shall be in the form prescribed in relation to that disposition under this Act or any other written law.
51. Another form whose validity was challenged was the consent of the Land Control Board.  The court agrees that the application for consent of the Land Control Board was defective in fundamental ways. It was undated and was blank at paragraph 6, where consideration ought to have been indicated.  Further to this, the consent itself is premised on the existence of a sale agreement as provided under Section 8 of the Land Control Act.  In this case, there was no Sale Agreement.  Section 8 of the Land Control Act states that –
(1) An application for consent in respect of a controlled transaction shall be made in the prescribed form to the appropriate land control board within six months of the making of the agreement for the controlled transaction by any party thereto:
Provided that the High Court may, notwithstanding that the period of six months may have expired, extend that period where it considers that there is sufficient reason so to do, upon such conditions, if any, as it may think fit.
(2) The land control board shall either give or refuse its consent to the controlled transaction, and, subject to any right of appeal conferred by this Act, its decision shall be final and conclusive and shall not be questioned in any court.
(3) For the purposes of subsection (1), an application shall be deemed to be made when it is delivered to the authority prescribed in the manner prescribed.
(4) An application under subsection (1) shall be valid notwithstanding that the agreement for the controlled transaction is reduced to writing, or drawn up in the form of a legal document, only after the application has been made.
52. The Respondent denies that the deceased signed the application for consent. The court also noted a contradiction in the evidence at the trial on persons who attended the Land Control board meeting when the consent was issued.  The Appellant, as DW1, stated that the Plaintiff, her son Samson and her daughter Regina took her to the Board.  The Appellant''s husband, DW3, stated in his recorded witness statement that Wandere and his sister took them to the Land Board to obtain consent.  On cross-examination, he stated that he took Ruth and Samson to the Land Board. 
53. DW2, Douglas Gichuki Nganyo, stated that he was a member of the Land Control Board at the material time.  He testified that Ruth Gitonga appeared before the Board on 19th March 2014.  At the same time, he confirmed that he did not know Ruth personally. He also confirmed that he did not see the title deed to the land, and neither did he see the application for Land Control Board consent.  From the foregoing, it is not clear who attended the Land Control Board. 
54. Further, still on the question of consideration, the Letter of Consent of the Land Control Board dated 19th March 2014, paragraph 2(f) provides for details of consideration, but the space is blank. 
55. Thus, from the foregoing, the court sees that the three documents that were legally required to be presented for purposes of registration of transfer of land, and for which it was necessary to show the consideration paid for the transaction, failed to give the said details and were all defective in other fundamental areas as shown above, thus giving credence to the Respondent’s claim and to the Trial Court’s finding that there was no sale of land and no consideration was paid for the transfer of the suit land to the Appellant.
56. The court has also considered the Appellant''s claims that the consideration for the transfer of land was the commission arising out of the sale of the Respondent''s land by her husband as an agent for the Respondent. No agency agreement was adduced in evidence to show that the Respondent engaged the Appellant as her agent in the sale of land and how much was to be paid as commission.  Further, there was no agreement adduced before the Trial Court to show that the alleged commission was to be paid by way of transfer of land to the Appellant.
57. The Trial Court found that the Appellant''s husband, DW3, John Mucire Kamau, was not a licensed Estate Agent and thus acted illegally. The Court found that it could not enforce any land sale conducted by an unqualified professional. Section 18 of the Estate Agents Act prohibits unregistered persons from practising as estate agents and states that.
(1)  After the expiration of six months from the commencement of this Act or such further period as the Minister may, by notice in the Gazette, allow either generally or in respect of any particular person or class of persons—
  (a)  No individual shall practise as an estate agent unless he is a    registered estate agent;
   (b)  No partnership shall practise as estate agents unless all the    partners whose activities include the doing of acts by way of    such practice are registered estate agents;
   (c)  No body corporate shall practise as an estate agent unless all the directors thereof whose duties include the doing of acts by way of such practice are registered estate agents.
2)  Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding two years or to both
58. The court agrees with the Trial Court that any agency agreement for the sale of land that may have been entered into between DW3 and the deceased, Respondent was an illegality and could not be upheld by the Court. This position was held in Livingstone Gitonga Muchungi & 2 Others Vs. ICEA Lion Life Assurance Company Limited (2021)eKLR that –
"Indeed, Section 18(2) of the Estate Agents Act makes it an offence for one to practice as an Estate Agent without the requisite licence. 
(53) It is trite that no court will condone an illegality.  In the case of MIKE MUNGA MBUBI VS. KENYA AIRWAYS LIMITED (2017) eKLR, the court, citing the decision in SCOTT VS. BROWN DOERING, MCNAB & CO. (3) (1992) 2QB 724, held that:
“No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality.  It matters not whether the Defendant has pleaded the illegality or whether he has not, if the evidence adduced by the Plaintiff proves the illegality, the court ought not to assist him."
59. Similarly, the Court of Appeal in Mapis Investment (K) Limited Vs. Kenya Railways Corporation (2006)eKLR held that.
"That being the case, it was then a matter of law as to whether the non-registration resulted in the illegality of the contract; it is clear that a contract to perform estate agency services can only be legal if entered into with a registered Estate Agent.”
60.  This court thus agrees that there was no consideration paid for the contract.  The Court of Appeal in William Muthee Muthama Vs Bank of Baroda (2014) eKLR observed that.
“In the law of contract, the aggrieved party to an agreement must, in addition, prove that there was an offer, acceptance and consideration. It is not only when those three elements are available that an innocent party can bring a claim against the party in breach.”
61. Section 26 of the Land Registration Act provides that the Certificate of Title can be challenged where it was acquired through fraud or misrepresentation, or it was acquired illegally, unprocedurally or through a corrupt scheme.  The said section states as follows -
(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.
62. The court agrees with the finding of the Trial Court that the transfer of the suit land to the Appellant was unprocedural and illegal and that there was no legally binding and enforceable sale and transfer of the suit land from the Respondent to the Appellant and no payment of consideration. The court, thus sees no valid reason to interfere with the final orders of the trial court since it did not err in ordering cancellation of registration of the Appellant as proprietor of the land as provided under Section 80 of the Land Registration Act, which provides that;
1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.
2) The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default. 
62. The final order of this court is that the appeal lacks merit and the same is hereby dismissed with costs. 
Dated, Signed and Delivered at Nyeri, this 27th day of November 2025

Delivered in the presence of:-
M/S C. Kendi – Court Assistant
No attendance for the Appellant
Waweru holding brief for Thuge for the Respondent

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