When the Land Register Fails: High Court Clarifies State Indemnity for Lenders Relying on Official Land Records

Article By Z.O.G

Introduction

The integrity and reliability of Kenya's land registration system are central to the functioning of the property and credit markets. Financial institutions routinely advance substantial sums on the strength of registered interests in land, while purchasers, investors and other commercial actors rely on official searches, title documents and registry records when making decisions affecting valuable property.

A recent decision of the High Court has brought the consequences of errors within that system into sharp focus.

In Gulf African Bank Limited v Halgan Megabids Limited & 7 Others [2026] KEHC 12929 (KLR), the High Court considered whether a financial institution that had advanced funds in reliance on official land records could obtain indemnity after discovering that the titles securing its facility were fraudulent and incapable of realization.

The Court found in favour of the Bank on its claim for indemnity, holding that, in the circumstances of the case, a lender that was not party to the underlying fraud and that had acted upon official records maintained by the land registration authorities could obtain relief under the statutory indemnity framework.

The Court awarded the Bank Kshs. 102,369,273.50, together with default damages at 20% per annum from 19 October 2021 until payment in full, while declining the claim for punitive and exemplary damages. The Court also addressed the issue of subrogation to prevent double recovery.

The decision is significant for banks, financial institutions, lenders, conveyancing practitioners, investors and parties who routinely rely upon Government-maintained land records.

The Facts

Gulf African Bank Limited advanced Kshs. 100 million to Halgan Megabids Limited under a Tawarruq financing facility.

The facility was secured by, among other securities, legal charges over two parcels of land, namely Limuru/Rironi/151 and Dagoretti/Kinoo/164, an all-assets debenture and joint and several personal guarantees.

Before advancing the facility, the Bank undertook various due diligence measures. These included obtaining official searches, commissioning valuations involving physical inspection, obtaining Land Control Board consents and proceeding with registration of the charges.

The official land records represented the chargors as the registered proprietors of the respective properties.

The borrower subsequently defaulted. When the Bank sought to realize its securities, however, questions arose concerning the authenticity of the titles and underlying land records. The Bank's case was that the titles had been fraudulently procured and that relevant signatures and registry records were not genuine.

The consequence was commercially significant. The Bank had advanced money against security which, when enforcement became necessary, could not effectively be realized.

As at 19 October 2021, the outstanding indebtedness stood at Kshs. 102,369,273.50.

The Bank consequently pursued the borrower and other parties while also seeking indemnity against the relevant Government defendants associated with the land registration system.

The Central Legal Question

The central question was not merely whether the titles were fraudulent.

The more fundamental question was:

Who should bear the loss where a lender acts in good faith on official land records, only for those records subsequently to prove erroneous or fraudulent?

The Government defendants resisted liability, essentially contending that the State should not become an insurer of commercial lending transactions merely because a lender had relied upon a registered title.

The Bank's position was that it had acted upon information generated and maintained within the official land registration system, had undertaken appropriate due diligence and had registered its charges through that same system.

The dispute therefore brought into focus the relationship between the indefeasibility of registered title, reasonable due diligence, the reliability of the land register and statutory indemnity.

The Statutory Framework

The starting point is the Land Registration Act, 2012, No. 3 of 2012.

Section 26(1) provides that a certificate of title issued by the Registrar is to be taken by courts as prima facie evidence that the person named as proprietor is the absolute and indefeasible owner, subject to the exceptions provided by the Act.

The section permits challenge to title where it is shown that the certificate of title was obtained through fraud or misrepresentation to which the person is proved to be a party, or where the title has been acquired illegally, unprocedurally or through a corrupt scheme.

Section 26 must therefore be read as part of the broader statutory architecture governing registered land. Registration provides substantial protection and certainty, but it does not protect a title that falls within the statutory grounds for challenge.

The Supreme Court has repeatedly emphasised the importance of compliance with the statutory framework governing registration. In Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR, the Court affirmed that fraud and illegality may defeat the protection ordinarily accorded to a registered proprietor where the statutory requirements for impeaching title are established.

Similarly, in Munyu Maina v Hiram Gathiha Maina [2013] eKLR, the Court of Appeal held that where the root of title is challenged, the registered proprietor may be required to go beyond merely producing the certificate of title and demonstrate the legality of the acquisition.

These authorities are important in understanding the background against which Gulf African Bank was decided. The validity of the title and the protection of a party who relies upon official records are related, but distinct, questions.

Section 81 and Statutory Indemnity

The provision of particular significance in Gulf African Bank was section 81 of the Land Registration Act.

Section 81(1) provides, in substance, for indemnity where a person suffers damage by reason of:

1.       the rectification of the register under the Act; or

2.       an error in a copy or extract from the register, or in a certified copy or extract of a document or plan.

Section 81(2), however, imposes an important limitation. No indemnity is payable where the claimant caused or substantially contributed to the damage by fraud or negligence.

The statutory scheme therefore does not establish an unrestricted Government guarantee against all losses connected with land.

Rather, it creates a specific statutory mechanism for compensating qualifying loss arising from errors within the land registration system, subject to the statutory exclusions.

This distinction is critical.

A claimant seeking indemnity must establish the statutory basis of the claim and demonstrate the necessary connection between the error and the loss. Equally, the claimant's own conduct remains relevant.

Reliance on Official Land Records

One of the most significant aspects of the judgment concerns the Bank's reliance on official land records.

The Bank had obtained official searches which identified the relevant chargors as registered proprietors. It then proceeded through the statutory registration process and had the charges registered against the properties.

The Court considered the nature and extent of the due diligence undertaken and found that the Bank had taken substantial steps before advancing the facility.

This raises an important question concerning the extent of due diligence expected of lenders.

The Government defendants argued that the Bank ought to have undertaken further investigations into matters including:

• the historical root of title;
• previous ownership;
• the identity and authority of the proprietors;
• the history of the land records; and
• the authenticity of documents underlying the registered interests.

The Court rejected that argument on the facts before it.

The reasoning is commercially significant. If an official search identifying a person as registered proprietor could never reasonably be relied upon without the lender independently reconstructing the entire historical chain of ownership, the practical value of the land registration system would be substantially diminished.

The Court therefore recognised a distinction between reasonable due diligence and an obligation to assume that official land records are inherently unreliable.

Due Diligence Is Still Required

The judgment should not, however, be understood as holding that a lender can simply obtain an official search and ignore all other circumstances.

The Bank succeeded in circumstances where the Court found that it had undertaken significant due diligence.

The measures included official searches, valuation and physical inspection, obtaining Land Control Board consents and registration of the charges.

The practical lesson is therefore that due diligence must be adequate and proportionate to the circumstances of the transaction.

A lender should consider matters such as:

• the identity of the chargor;
• capacity and authority to deal with the property;
• the authenticity of title documents;
• existing encumbrances;
• valuation and physical inspection;
• requisite statutory consents;
• corporate approvals where the chargor is a company;
• spousal consent where applicable; and
• any obvious inconsistencies or red flags.

Where circumstances give rise to suspicion, further investigation may be required.

What Gulf African Bank establishes is that the law does not necessarily require an innocent lender to conduct an exhaustive historical investigation in every transaction where the official register is regular and the lender has undertaken reasonable due diligence.

The Distinction Between a Purchaser and a Lender

An important feature of the case is the distinction between a purchaser of land and a financial institution taking land as security.

A purchaser acquires an interest in the property. A lender, ordinarily, advances money and takes a charge over the property as security for repayment.

The commercial position of the two parties is therefore different.

The Court considered the Supreme Court's decision in Fanikiwa Limited & 3 Others v Sirikwa Squatters Group & 17 Others [2023] KESC 105 (KLR) in considering the position of financial institutions dealing with registered land.

A lender's decision to advance money against land is substantially dependent upon the existence of an enforceable security interest. The lender does not necessarily intend to acquire the property itself; its principal concern is whether the charge can be enforced if the borrower defaults.

Consequently, where the lender has relied upon official records indicating that a person has the legal capacity to charge the property, and that representation subsequently proves to have resulted from an error or fraud within the registration system, the lender may suffer a distinct form of loss.

This is an important consideration when determining the appropriate application of the statutory indemnity provisions.

The Government Is Not an Insurer of Land Transactions

The decision should nevertheless be approached with caution.

It would be incorrect to conclude that the Government is automatically liable whenever a bank or purchaser suffers loss from a fraudulent title.

Section 81 of the Land Registration Act contains specific requirements and limitations. In particular, a claimant who caused or substantially contributed to the loss through fraud or negligence may be excluded from indemnity.

The Court's decision therefore turns on the statutory framework and the particular facts established by the Bank.

The correct proposition is that where the statutory conditions are satisfied, an innocent party may be entitled to indemnity for qualifying loss arising from an error within the land registration system.

That is materially different from saying that the Government guarantees every transaction conducted through the land registry.

Causation and Proof of Loss

The judgment also highlights the importance of causation.

A claimant seeking statutory indemnity must be able to establish a clear connection between the relevant error in the registration system and the loss suffered.

In the case of a lender, this may require evidence demonstrating:

the official record → the lender's reliance → the advance of funds → registration of the security → discovery of the error → inability to realise the security → resulting financial loss.

This makes proper documentation essential.

A lender should retain the official search, title documents, valuation reports, consents, registration documents, correspondence, credit approvals and other materials demonstrating the due diligence undertaken before the facility was advanced.

Such documents may become critical evidence if the security is later challenged.

Subrogation and the Prevention of Double Recovery

The Court also addressed the question of double recovery.

The Bank had claims against the borrower and guarantors, and judgment in default had already been entered against other defendants.

The Court recognised that the Bank should not obtain a double recovery of the same loss.

Accordingly, upon payment by the Government defendants, the State would be subrogated to the Bank's rights against the borrower and guarantors to the extent of the amount paid.

This approach is consistent with the broader principle that compensation should place an injured party in the position it would have occupied had the relevant loss not occurred, rather than provide a windfall.

The issue is also consistent with the statutory recovery mechanism under section 84 of the Land Registration Act, which permits recovery of indemnity paid from persons who caused or substantially contributed to the loss through fraud or negligence.

Punitive and Exemplary Damages

The Bank also sought punitive and exemplary damages.

The Court declined to grant that relief.

This is an important qualification to the judgment.

The fact that a claimant establishes entitlement to statutory indemnity does not automatically mean that punitive or exemplary damages will follow.

Such damages are exceptional and require an appropriate legal and evidentiary foundation. The Court was not persuaded that the circumstances justified such an award.

The judgment therefore distinguishes between compensatory relief arising under the statutory indemnity regime and punitive relief requiring a separate justification.

Implications for Banks and Financial Institutions

The decision contains several important lessons for lenders.

1. Official searches remain fundamental

A lender should obtain current official searches before accepting land as security.

The official search provides critical evidence concerning the registered proprietor and interests appearing on the register.

2. Due diligence should be comprehensive but proportionate

The decision does not eliminate the lender's duty to undertake reasonable due diligence.

It does, however, indicate that reasonable due diligence does not necessarily require a complete reconstruction of the historical title in every transaction.

3. Documentation is critical

The lender should preserve a complete documentary record demonstrating what information it obtained and what steps it took before advancing funds.

This may become decisive in establishing that the lender acted reasonably and did not contribute to the loss through negligence.

4. Red flags require further investigation

An official search should not be treated as conclusive where other circumstances raise reasonable suspicion.

Unusual transfers, inconsistent signatures, unexplained changes in ownership, suspicious documentation or discrepancies between registry records and other documents should trigger further investigation.

5. Alternative security remains important

The possibility of statutory indemnity should not cause lenders to relax ordinary credit-risk management.

Guarantees, debentures and other forms of security remain important elements of prudent lending.

6. Recovery strategy must account for subrogation

Where the State indemnifies a lender, the consequences for the lender's existing recovery rights against borrowers, guarantors and other liable parties must be considered.

Implications for Conveyancing Advocates

The judgment is equally relevant to advocates involved in conveyancing and secured lending.

Advocates should ensure that official searches are properly conducted and retained, that relevant title documents are carefully examined and that statutory consents and registration requirements are complied with.

Where inconsistencies emerge, they should be investigated rather than ignored.

The case also reinforces the importance of maintaining a complete transaction file. The advocate's file may ultimately provide important evidence of the steps taken to verify the transaction and the information upon which the lender relied.

At the same time, Gulf African Bank provides some reassurance that an innocent lender that has complied with the ordinary requirements of a secured transaction will not necessarily bear the entire loss resulting from fraud or errors within the official registration system.

Implications for Investors and Other Property Actors

The reasoning has relevance beyond the banking sector.

Property investors, purchasers, developers and businesses routinely rely on information issued by Government agencies.

The broader lesson is therefore the importance of documented reliance on official information.

Where a party enters into a transaction following an official search or other Government-issued record, it should preserve evidence of:

• the information obtained;
• the date it was obtained;
• the advice received;
• the verification undertaken; and
• the transaction or decision made in reliance upon that information.

Such evidence may become crucial if the official information is subsequently challenged.

The Broader Policy Question

At its core, Gulf African Bank concerns confidence in public registration systems.

Land registration is intended to create certainty, facilitate transactions and reduce the risks associated with establishing ownership and interests in land.

The Land Registration Act therefore creates a statutory framework in which the register has significant legal consequences.

If parties dealing with registered land could never reasonably rely upon official records, every transaction would potentially require an independent reconstruction of the entire history of the property.

Such a requirement would significantly increase transaction costs and undermine the commercial purpose of registration.

The judgment recognises that reality.

At the same time, the Court did not impose unlimited liability upon the State. The statutory indemnity regime contains safeguards, including the exclusion of claims where the claimant's own fraud or negligence caused or substantially contributed to the loss.

The judgment therefore represents an attempt to balance three competing interests:

commercial certainty, individual responsibility and public accountability.

A Balanced Reading of Gulf African Bank

The significance of the decision can be distilled into several propositions.

First, registration remains fundamental to Kenya's land law, but registered title is not immune from challenge in the circumstances expressly recognised by section 26 of the Land Registration Act.

Second, section 81 provides a statutory mechanism for indemnifying qualifying loss arising from specified errors in the land registration system.

Third, a claimant's own fraud or negligence may defeat or limit the right to indemnity.

Fourth, the standard of due diligence expected from a lender must be considered in the circumstances of the particular transaction.

Fifth, an innocent lender is not necessarily required to reconstruct the entire historical chain of title merely because the land register subsequently proves to contain an error.

Sixth, the position of a financial institution taking land as security may differ from that of a purchaser acquiring the land itself.

Seventh, indemnity should not result in double recovery, and mechanisms such as subrogation may be used to preserve recovery rights against those ultimately responsible for the loss.

Finally, statutory indemnity does not automatically justify punitive or exemplary damages.

Conclusion

Gulf African Bank Limited v Halgan Megabids Limited & 7 Others [2026] KEHC 12929 (KLR) is an important decision in the developing Kenyan jurisprudence on land registration, secured lending and State liability for errors in public records.

The judgment demonstrates that a lender which acts in good faith, undertakes reasonable due diligence and relies upon official land records may, where the statutory requirements are satisfied, obtain indemnity for qualifying loss arising from errors in the registration system.

The decision should not, however, be interpreted as making the Government an insurer against every fraudulent land transaction. The statutory limitations remain important, particularly the exclusion relating to a claimant's own fraud or negligence.

For banks and other lenders, the practical message is therefore twofold: undertake appropriate and well-documented due diligence, but recognise that the law may provide protection where an innocent lender suffers loss because of an error within the official registration system.

For conveyancing practitioners, the case underscores the importance of careful verification, proper registration and meticulous record keeping.

For investors and other parties dealing with land, it reinforces the value of obtaining and preserving official records and professional advice.

More fundamentally, the judgment highlights the importance of public confidence in Kenya's land registration system. Where the State establishes an official system upon which members of the public are expected to transact, the consequences of errors within that system cannot, in every case, simply be transferred to an innocent party that acted reasonably and in good faith.

The decision therefore marks an important development in the allocation of risk between the State, financial institutions, borrowers and other participants in Kenya's land market.

Disclaimer: This article is intended for general information and legal commentary only. It does not constitute legal advice and should not be relied upon as a substitute for advice on the facts and circumstances of a particular transaction or dispute. The law and judicial interpretation may change, and practitioners should consult the full judgment, current legislation and applicable authorities before relying on the propositions discussed in this article.

 

Contentious Probate and Succession Disputes in Kenya: Key Issues, Remedies and the Proper Forum

When an estate is disputed, the question is rarely simply, “Who should inherit?”

A succession dispute may involve the validity of a Will, the circumstances in which it was made, whether a person is entitled to reasonable provision, who qualifies as a beneficiary or dependant, whether an executor or administrator has properly performed their duties, or whether a particular asset actually belonged to the deceased.

These questions can become complex because different disputes may call for different remedies and, in some circumstances, may fall within the jurisdiction of different courts.

In Kenya, contentious probate and succession disputes are principally governed by the Law of Succession Act, Cap. 160, together with the Probate and Administration Rules and the constitutional and statutory provisions governing the jurisdiction of the courts.

The starting point in any contested estate should therefore be to identify the real dispute, the appropriate remedy, and the correct forum before substantial litigation costs are incurred.

1. Challenging the validity of a Will

A Will is an important expression of a person's testamentary wishes, but its existence does not necessarily make it valid or enforceable.

Section 5 of the Law of Succession Act permits a person of sound mind who is not a minor to dispose of their free property by Will. The Act, however, imposes important limitations on testamentary freedom and provides circumstances in which a Will or part of it may be rendered invalid.

Testamentary capacity

One of the most common challenges concerns the testator's mental capacity.

Section 5(3) of the Law of Succession Act provides that a person making a Will is presumed to be of sound mind unless, at the time of executing the Will, they were in such a state of mind—whether because of mental or physical illness, drunkenness or another cause—as not to know what they were doing. The burden of proving lack of testamentary capacity rests upon the person alleging it.

The fact that a testator was elderly, ill or receiving medical treatment does not, by itself, establish lack of testamentary capacity. The relevant question is the testator's state of mind at the time the Will was made.

The courts have consistently treated testamentary capacity as a question of fact to be determined from the evidence. In In re Estate of G.K. (Deceased) [2017] eKLR, the court considered the requirements surrounding testamentary capacity and the circumstances in which a Will may properly be challenged.

Evidence may include medical records, evidence from the advocate who prepared the Will, the attesting witnesses, persons who interacted with the testator around the relevant period, and evidence concerning the testator's conduct and understanding.

Fraud, coercion, undue influence and mistake

Section 7 of the Law of Succession Act provides that a Will, or part of a Will, is void where its making was caused by fraud or coercion, or by such importunity as deprived the testator of free agency, or by mistake.

The circumstances surrounding the preparation and execution of a Will can therefore become highly significant.

Questions may arise where:

• a beneficiary was closely involved in preparing the Will;
• the testator was dependent upon or vulnerable to another person;
• the Will substantially departs from previous testamentary wishes;
• the testator was allegedly pressured to exclude particular family members;
• the signature or thumbprint is disputed;
• the contents of the Will were allegedly not explained to an illiterate testator; or
• there are other suspicious circumstances surrounding its preparation or execution.

However, suspicion alone is not necessarily sufficient to invalidate a Will. The party challenging the Will must establish the legal ground relied upon with sufficient evidence.

Formal validity and execution

Section 11 of the Law of Succession Act sets out the formal requirements for a written Will. Among other requirements, the testator must sign or affix their mark to the Will, and the Will must be attested by at least two competent witnesses in the manner prescribed by the Act.

Accordingly, where execution is disputed, evidence from the attesting witnesses and the advocate or other person who prepared or supervised execution of the Will may become particularly important.

A challenge may therefore concern not only what the Will says, but also whether it was properly made and executed.

2. Reasonable provision for dependants

A valid Will does not necessarily end every succession claim.

Kenyan law recognises testamentary freedom while also protecting certain dependants who have not been adequately provided for.

Section 26 of the Law of Succession Act empowers the court, upon an appropriate application, to make reasonable provision from the deceased's net estate where the disposition made by Will, by gift in contemplation of death, under the law of intestacy, or through a combination of these, has not made reasonable provision for a dependant.

This is an important distinction.

A dependant may not necessarily be asking the court to declare the Will invalid. Instead, the complaint may be that even though the Will is valid, the provision made for the dependant is inadequate.

In determining whether to make an order for reasonable provision, the court exercises a statutory discretion. Section 27 permits the court to order a specific share of the estate, a lump sum, periodic payments or another appropriate form of provision.

Who is a dependant?

Section 29 defines the persons who qualify as dependants for purposes of Part III of the Law of Succession Act.

The first category includes the spouse or spouses and children of the deceased, whether or not they were maintained by the deceased immediately before death. The second category includes specified relatives and other persons who were being maintained by the deceased immediately before death.

The distinction is important because persons falling within the second category may have to establish actual maintenance or dependency.

In Okello v Onyango (Succession Appeal E002 of 2022) [2023] KEHC 22828 (KLR), the High Court emphasised that an application for reasonable provision under section 26 is available only to persons who fall within the statutory definition of a dependant under section 29. The court distinguished spouses and children, who fall within the first category, from other relatives who must establish dependency.

Similarly, in In re Estate of Stanley Paul Buliba (Deceased) [2023] KEHC 2702 (KLR), the court emphasised that “dependant” is a technical statutory term in the context of Part III of the Law of Succession Act and should not simply be equated with everyone who may, in an ordinary sense, have depended upon the deceased during their lifetime.

A reasonable-provision claim should therefore be approached as an evidence-based statutory claim rather than merely an assertion that the claimant was a member of the deceased's extended family.

3. Disputes over beneficiaries, spouses and dependants

Succession disputes frequently arise because parties disagree about who is entitled to participate in the estate.

Questions may include:

• Was the claimant legally married to the deceased?
• Was there more than one recognised spouse?
• Is a particular person a child of the deceased?
• Was a child adopted or otherwise taken into the deceased's family?
• Was a relative being maintained by the deceased?
• Is a person claiming under the Will actually entitled to the property in question?
• Has a beneficiary been deliberately or inadvertently left out of the proceedings?

These questions are significant because the identity of the beneficiaries determines the manner in which an estate may ultimately be administered and distributed.

Evidence may include marriage records, birth certificates, adoption documents, identity records, correspondence, financial records and testimony from persons familiar with the family circumstances.

Where dependency is disputed, evidence of financial or other support provided by the deceased before death may become critical.

4. Disputes concerning estate assets

Another major category of contentious succession litigation concerns the assets said to form part of the deceased's estate.

The succession court must establish the property available for administration and distribution. But not every dispute concerning property associated with a deceased person is necessarily a succession dispute.

For example, there may be a dispute as to whether:

• land registered in another person's name was actually beneficially owned by the deceased;
• property was held on trust;
• the deceased had already transferred an asset during their lifetime;
• a third party purchased property from the deceased;
• property was jointly owned;
• property was unlawfully transferred before or after death; or
• a third party has an independent proprietary claim.

The distinction between succession and ownership can therefore be decisive.

In Isaya Masira Momanyi v Daniel Omwoyo & Another [2017] eKLR, the court recognised that disputes concerning ownership of land between an estate and third parties are matters for determination in the appropriate land forum rather than matters to be conclusively determined through succession proceedings.

Similarly, in In re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR, the High Court explained the distinction between the probate court's mandate to administer and distribute an estate and disputes concerning proprietary rights in land.

More recently, in Njuguna (Suing in his own capacity and in his capacity as the personal representative of the Estate of Monicah Wanjiku Thuo (Deceased)) & another v Mwaura (Sued as the personal representative/administrator of the Estate of the Late Paul Mwaura Thuo (Deceased)) [2024] KEELC 3772 (KLR), the Environment and Land Court considered the relationship between succession jurisdiction and disputes concerning land, noting the statutory and procedural distinction between inheritance and distribution of land under succession law and independent disputes concerning land rights.

The practical lesson is that a party should not assume that every dispute concerning property forming part of an estate belongs before the probate court.

5. Identifying the correct forum

This is one of the most important considerations in contentious succession litigation.

Section 47 of the Law of Succession Act gives the High Court jurisdiction to entertain applications and determine disputes under the Act. Magistrates' courts may also exercise succession jurisdiction where authorised by law and within their jurisdictional limits.

The Constitution, however, separately establishes the Environment and Land Court to determine disputes relating to the environment and the use and occupation of, and title to, land.

The distinction becomes particularly important where an estate dispute involves land.

A dispute between beneficiaries concerning the inheritance or distribution of land forming part of the deceased's estate will generally be dealt with through the succession process.

An independent dispute concerning title, ownership, use or occupation may, however, fall within the jurisdiction of the Environment and Land Court.

The courts have repeatedly emphasised this distinction.

In Njoroge v Njoroge & another (Environment & Land Case 36 of 2023) [2023] KEELC 21808 (KLR), the Environment and Land Court held that a dispute concerning the mode of distribution of a deceased person's estate was properly a succession matter and not a dispute concerning the use, occupation or title to land falling within the ELC's jurisdiction.

Similarly, in Muriu & 3 others v Onesmus & 2 others (Environment & Land Case E061 of 2022) [2023] KEELC 22230 (KLR), the court recognised the separate legal regimes governing succession and land disputes and referred to the applicable practice directions, which provide that cases concerning inheritance, succession and distribution of land under the Law of Succession Act should continue to be filed and heard by the High Court or competent Magistrates' Courts.

The position is therefore not that the ELC has no connection whatsoever with estate-related land disputes. Rather, the critical question is what the dispute is actually about.

In Njoroge & another v Kinuthia (Environment and Land Case E126 of 2025) [2026] KEELC 185 (KLR), the court considered the interaction between section 47 of the Law of Succession Act and the jurisdiction of the Environment and Land Court. The decision illustrates the importance of identifying whether the dispute concerns succession and distribution or an independent proprietary dispute concerning land.

The same issue was considered in In re Estate of Marko Mukhweso Muidakho (Deceased) [2026] KEHC 1702 (KLR), where the High Court emphasised that the fact that a dispute touches upon land does not automatically remove it from the jurisdiction of the succession court where the substance of the dispute concerns administration of the deceased's estate.

The question is therefore not simply whether the property is land. It is what legal issue the court is being asked to determine.

6. Challenging a grant of representation

A further source of contentious litigation is the grant of representation itself.

A grant may be challenged where, for example, the person who obtained it allegedly concealed material information, made a false statement, failed to disclose beneficiaries, or otherwise obtained the grant through defective or improper proceedings.

Section 76 of the Law of Succession Act provides the principal statutory grounds for revocation or annulment of a grant.

These include circumstances where:

• the proceedings to obtain the grant were defective in substance;
• the grant was obtained fraudulently by making a false statement or concealing something material;
• an essential allegation was made falsely;
• the person to whom the grant was made has failed to administer the estate diligently;
• the administrator has failed to produce inventories or accounts when required; or
• the grant has become useless or inoperative.

In In re Estate of the Late Kimeu Muthembwa Mbithi (Deceased) [2025] KEHC 17270 (KLR), the High Court reiterated the distinct role of the succession court in identifying the free property of the deceased, ascertaining beneficiaries and supervising distribution.

Revocation is therefore not simply a mechanism for correcting an unpopular distribution. The applicant should identify and prove a statutory ground under section 76.

7. Challenges to executors and administrators

Personal representatives occupy a position of significant responsibility.

Their statutory duties include collecting the deceased's free property, paying debts and expenses, preparing inventories and accounts, and distributing the remaining estate in accordance with the Will or applicable law.

Section 83 of the Law of Succession Act sets out the duties of personal representatives.

Disputes may therefore arise where an administrator or executor is alleged to have:

• failed to disclose estate assets;
• sold or transferred estate property improperly;
• failed to account for estate income;
• failed to pay legitimate debts;
• distributed assets contrary to the confirmed grant or Will;
• delayed administration without justification; or
• mixed estate property with personal property.

Where such conduct is established, the court may require accounts, issue directions concerning administration or, where the statutory requirements are met, revoke the grant.

The importance of the personal representative's duty to account was underscored in In re Estate of Patrick Mwangi Githinji (Deceased) [2025] KEHC 6867 (KLR), where the High Court considered questions concerning the administration of an estate and the court's jurisdiction over disputes arising within succession proceedings.

8. The importance of identifying the real dispute

A common mistake in estate litigation is to begin with the remedy rather than the underlying dispute.

For example, a party may seek revocation of a grant when the real dispute concerns ownership of land. Another may challenge a Will when the real complaint is that a dependant was inadequately provided for.

These are not necessarily the same claims and may require different evidence, procedures and remedies.

The principle that jurisdiction flows from the Constitution or statute is well established. In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court held that a court's jurisdiction flows from either the Constitution or legislation, or both, and a court cannot arrogate to itself jurisdiction beyond what the law permits.

Accordingly, a succession court should not be invited to determine an issue that properly belongs to another specialised forum merely because that issue arises in the broader context of an estate.

The courts have stressed that jurisdiction is determined by the nature and substance of the dispute, rather than merely by the labels placed upon the pleadings.

Early legal analysis can therefore help determine:

1.       What exactly is being disputed?

2.       Is the dispute about succession, administration or proprietary ownership?

3.       What statutory remedy is available?

4.       Who bears the burden of proof?

5.       What evidence is required?

6.       Which court has jurisdiction?

7.       Can the issue be determined within the existing succession cause, or is separate litigation necessary?

9. Evidence is often decisive

Contentious probate matters are rarely determined by allegations alone.

Where a Will is challenged, relevant evidence may include the original Will, evidence from attesting witnesses, the advocate who prepared the Will, medical records, handwriting or signature evidence, previous Wills, correspondence and evidence concerning the circumstances surrounding execution.

In reasonable-provision claims, evidence concerning the claimant's relationship with and dependency upon the deceased, the deceased's assets and liabilities, the claimant's financial circumstances and the reasons for the provision made under the Will may become relevant.

In disputes over estate assets, title documents, sale agreements, bank records, company records, trust documents and evidence of possession or beneficial ownership may be critical.

The earlier the evidence is preserved and evaluated, the easier it may be to identify the strongest legal route.

10. A practical approach to contentious estates

When an estate becomes disputed, parties should consider taking a structured approach rather than immediately commencing multiple proceedings.

First, identify the estate

Determine what property, liabilities, interests and obligations actually belonged to the deceased at death.

Second, establish the parties

Identify the executors or administrators, beneficiaries, dependants and any third parties asserting an interest.

Third, identify the precise dispute

Is the challenge directed at the Will, the beneficiaries, the grant, the administration of the estate, or ownership of a particular asset?

Fourth, determine the appropriate remedy

Depending on the circumstances, the appropriate application may involve an objection to a grant, revocation or annulment, an application for reasonable provision, directions concerning administration, an objection to confirmation, or separate civil or land proceedings.

Fifth, confirm jurisdiction before filing

A claim filed in the wrong forum can result in delay, additional costs and potentially significant procedural complications.

This is particularly important where succession proceedings overlap with disputes concerning land or proprietary rights.

Conclusion

Contentious probate and succession disputes in Kenya involve much more than determining who receives an inheritance.

A disputed estate may require the court to determine whether a Will is valid, whether a testator had testamentary capacity, whether a Will was procured through fraud or undue influence, whether a dependant has been adequately provided for, whether a claimant qualifies as a beneficiary, whether an administrator has properly discharged their duties, or whether a disputed asset actually forms part of the deceased's estate.

Most importantly, not every dispute involving an estate is necessarily a succession dispute for determination within the probate court.

The proper approach is to identify the real issue, determine the applicable legal remedy, assess the evidence required, and establish the appropriate forum at the earliest possible stage.

Early and accurate identification of these issues can prevent unnecessary litigation, reduce procedural delays and help protect the value of the estate for those ultimately entitled to it.

This article is intended for general information only and does not constitute legal advice. The appropriate legal strategy will depend on the facts and circumstances of each estate.

Exemption of Public Educational Institutions from County Land Rates in Kenya

Public educational institutions, including public schools, are generally exempt from county land rates where the land is used for the statutory exempt purpose. The exemption is now expressly provided for under section 38 of the National Rating Act, No. 15 of 2024, which came into force on 24 December 2024.

However, the precise position depends on the nature and use of the land, the period for which rates are being demanded, the ownership of the property and whether any part of the land is being used for profit or residential purposes.

1. The current statutory exemption

The principal provision is section 38 of the National Rating Act, 2024.

Section 38(2) provides that a County Executive Committee Member shall not charge rates for land used exclusively for public purposes.

More specifically, section 38(3)(d) provides that valuation for purposes of rating shall not be conducted in respect of land used for “public educational institutions and libraries.”

This is a significant statutory protection for public schools.

Accordingly, where land is genuinely used as a public educational institution, the County ordinarily has no basis for subjecting that land to valuation for purposes of imposing ordinary land rates under the National Rating Act.

The exemption is, however, subject to the proviso in section 38 that the exemption does not apply to land used for profit or residential purposes.

2. The exemption existed under the previous law

Where a County Revenue Authority is demanding arrears relating to a period before 24 December 2024, the applicable legislation must also be considered.

Before the National Rating Act came into force, the relevant provisions were contained in the Valuation for Rating Act, Cap. 266.

Section 27(1)(d) of that Act provided that no valuation for rating purposes was to be made in respect of land used directly and exclusively for:

“educational institutions (including public schools within the meaning of the Basic Education Act...)”

The provision also extended to residences of students provided directly by educational institutions or forming part of, or ancillary to, educational institutions.

The statutory proviso excluded land used for profit or, subject to specified exceptions, residential purposes.

The former Rating Act, Cap. 267 also operated together with the Valuation for Rating Act in the rating regime.

The Rating Act and Valuation for Rating Act were subsequently repealed by the National Rating Act, 2024, which commenced on 24 December 2024.

Consequently, where a County is demanding historical arrears, it is important to identify the particular years for which the rates are allegedly due rather than treating the entire demand as governed by the current Act.

3. The courts have recognised the exemption for educational institutions

There is a particularly relevant Kenyan decision on this issue.

In Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR, the Environment and Land Court at Machakos considered a rates demand of approximately Kshs. 58 million in respect of property used for religious and educational purposes.

The County argued, among other things, that the schools operating on the property were commercial institutions because students paid fees.

The court rejected that argument on the evidence before it. Justice Angote held that section 27(1)(d) of the Valuation for Rating Act exempted land used for educational purposes, subject to the statutory exclusion relating to land used for profit.

Importantly, the County had not produced evidence demonstrating that the schools were being operated for profit. The court consequently held that the demand for rates was unlawful and granted the relief sought by the applicant.

The decision is particularly useful because it demonstrates that the mere fact that students pay school fees does not, without more, establish that land is being used for profit for purposes of the statutory rating exemption.

The critical question is the actual character and purpose of the use of the land.

4. “Public school” and “commercial school” should not automatically be treated as the same

The distinction between a public educational institution and a private or commercial educational enterprise is important.

Section 38(3)(d) of the National Rating Act expressly refers to public educational institutions and libraries.

Therefore, where the property is occupied and used by a public school for ordinary educational purposes, the statutory exemption is considerably stronger.

A County Revenue Authority should not simply assume that land is rateable because:

• students pay fees;
• the institution collects money;
• the institution has income;
• the institution operates a school canteen;
• the school has boarding facilities; or
• the school has other incidental revenue-generating activities.

The legal question is whether the land is being used for the exempt educational purpose or whether it is being used for a separate profit-making purpose within the meaning of the statutory proviso.

The decision in Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR is useful in this respect because the court required evidence establishing that the school was in fact operated for profit before the exemption could be displaced.

5. Incidental commercial use may require separate consideration

The exemption should not, however, be interpreted as an absolute exemption covering every activity conducted on land belonging to a public school.

For example, a school may have land containing:

• classrooms and laboratories;
• administration offices;
• teachers' accommodation;
• boarding facilities;
• playing fields;
• a school library; and
• other facilities directly connected with education.

These uses would ordinarily have a strong connection with the educational purpose.

But suppose part of the school's land is separately leased to a commercial entity for a supermarket, petrol station, commercial office, private residential development or other independent profit-making enterprise.

The County may then have an arguable basis for treating that portion differently.

The wording of section 38 must therefore be applied to the actual use of the particular land or portion of land rather than merely to the identity of the registered proprietor.

6. Payment of fees does not necessarily destroy the exemption

This is an issue likely to arise where the County argues that a school cannot be exempt because it collects fees.

That argument should be approached carefully.

The fact that an educational institution receives fees does not necessarily mean that the land is being used for profit.

In Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR, the County made substantially that argument. The court nevertheless found that the County had failed to establish that the schools were being operated for profit and held the rates demand unlawful.

The focus should therefore be on the purpose and character of the land use, rather than merely the existence of revenue.

For a public school, this distinction is particularly important because the collection of fees or other statutory charges may form part of the financing of educational services without converting the institution into a profit-making commercial enterprise.

7. Ownership of the land is also important

The legal analysis should also establish who owns the land.

There is an important distinction between:

• land registered in the name of the National Government;
• land held by a county government;
• land vested in another public body;
• land registered in the name of a school or educational trust; and
• privately owned land upon which a public school operates.

The treatment of public land may involve the statutory regime concerning contribution in lieu of rates, rather than ordinary rates imposed on private rateable property.

Under the former regime, for example, section 25 of the Valuation for Rating Act dealt with the basis upon which public land was valued for purposes of contributions in lieu of rates.

The current National Rating Act contains its own provisions concerning public land and contributions in lieu of rates.

Consequently, before responding to a County's demand, the school's title and the legal status of the land should be established.

8. The County cannot rely solely on its valuation records

The fact that a property appears on a County valuation roll or rates account does not necessarily resolve the question of whether the property is legally rateable.

If the property falls within a statutory exemption, the County must apply the exemption.

This principle is particularly relevant where a public school has been incorrectly entered as an ordinary rateable property.

In Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR, the County sought to justify its demand partly on the basis of its records concerning the property's use. The court nevertheless considered the statutory exemption and the evidence concerning the actual use of the property.

A school receiving a rates demand should therefore ask the County to identify:

1. the statutory provision under which the rates are demanded;
2. the valuation roll in which the property appears;
3. the registered owner;
4. the assessed rateable value;
5. the period to which the demand relates;
6. the basis upon which the County considers the land to be rateable;
7. whether the County alleges that the land is being used for profit; and
8. the evidence supporting that allegation.

9. The constitutional framework

County governments derive their power to impose property rates from Article 209(3)(c) of the Constitution of Kenya, 2010.

That provision gives county governments power to impose property rates.

However, the power to impose rates is not unlimited.

The County must exercise its rating power within the framework established by national legislation, including the National Rating Act and any applicable county legislation.

The principle that a public authority must act within the limits of the power conferred upon it is well established in Kenyan administrative law.

In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court affirmed the fundamental principle that jurisdiction is derived from the Constitution or statute and cannot simply be assumed.

Similarly, in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR, the Court of Appeal emphasised the importance of legality and lawful exercise of statutory powers by public bodies.

A County Revenue Authority therefore cannot impose or recover a charge merely because its internal records indicate that an amount is outstanding. The demand must have a lawful statutory foundation.

10. What should a public school do upon receiving a rates demand?

A public school that receives a rates demand should not simply ignore it.

A formal objection or response should be prepared identifying the statutory exemption and providing evidence of the school's status and use of the property.

The response should ordinarily attach, where available:

• the title or lease;
• evidence establishing that the institution is a public school;
• registration or establishment documents;
• evidence showing the actual use of the property;
• the school's physical development or site plan;
• relevant correspondence with the County;
• previous exemption correspondence, if any; and
• the County's rates demand and relevant valuation records.

The school should expressly invoke section 38(3)(d) of the National Rating Act, 2024 where the demand concerns the current rating regime.

For historical demands, the response should additionally invoke section 27(1)(d) of the former Valuation for Rating Act, Cap. 266, where applicable.

11. The position in summary

The legal position can therefore be summarised as follows:

First, public educational institutions are expressly recognised as exempt from valuation for rating purposes under section 38(3)(d) of the National Rating Act, 2024.

Second, land used exclusively for public purposes is protected under section 38(2).

Third, the exemption is subject to the statutory qualification concerning land used for profit or residential purposes.

Fourth, for periods governed by the previous rating regime, section 27(1)(d) of the Valuation for Rating Act, Cap. 266 expressly exempted land used directly and exclusively for educational institutions, including public schools.

Fifth, the decision in Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR provides useful judicial authority on the application of the educational-institution exemption and demonstrates that the County must establish the factual basis for alleging that an educational institution is being operated for profit.

Sixth, the ownership and actual use of the land must be examined carefully, particularly where the property is public land or where only part of the property is used for educational purposes.

Conclusion

A County Revenue Authority cannot properly demand ordinary land rates from a public school without considering the statutory exemption applicable to public educational institutions.

Where the land is used for the public educational function, section 38 of the National Rating Act, 2024 provides a clear statutory basis for exemption from valuation and rating.

Where the demand relates to an earlier period, the corresponding exemption under section 27(1)(d) of the Valuation for Rating Act, Cap. 266 should be considered.

The strongest response to a rates demand should therefore not merely state that the school is “government property” or that it is a “public institution.” It should establish the ownership, statutory status and actual use of the land, identify the applicable rating legislation for each period claimed, and expressly invoke the statutory exemption.

Where the County alleges that the property is being used for profit, the school should require the County to identify the factual and legal basis for that allegation. The decision in Republic v County Government of Machakos ex parte Victory Faith Ministries [2018] eKLR demonstrates the importance of evidence on this issue.

Accordingly, where a public school has received a substantial rates demand, the matter should be formally challenged rather than the demand being accepted at face value.