Rorua v Noah Muresi Kurraru t/a Mwamba Property AgenciesAgencies; Jepkemoi Kosgey & 3 others (Interested Parties) (Environment and Land Case Civil Suit 871 of 2017) [2022] KEELC 3129 (KLR)

2. The plaintifis case is as follows. On May 6, 2013, he sold the suit land to the first defendant for kshs 19, 500,000/-. The defendant did not pay the entire purchase price. He paid only kshs 2, 900,000/- leaving a balance of kshs 16,600,000/=. This is the amount that the plaintifi seeks together with interest. In the alternative, the plaintifi seeks the revocation of the title to the suit land because it was not obtained procedurally. There was no consent from the Land Control Board. All the plaintifi did was to give the defendant the title deed for safe keeping pending payment of the balance on the purchase price. In the meantime, the defendant caused the suit land to be subdivided into parcels no Kajiado/ Loodariak/3048, 3049, 3050, 3096, 3097 and 3098. Parcels numbers 3048 and 3050 were sold or charged to the first, second and third interested parties. 3. 4. In support of his case, the plaintifi filed the following evidence; i. Witness statements by the plaintifi and his son namely Ntiati Ole Nkuruna. ii. Copy of the register (green card) for the suit land. iii. Copies of the register, green cards for parcel number 3050 in the name of the first interested party and 3048 in the name of the second interested party. iv. Several acknowledgements to show that the plaintifi received various instalments of the purchase price from the defendant. Only the second interested party filed a defence in this case. The same is dated October 14, 2019. It is to the efiect that the first interested party applied for a loan of kshs 2.5 million from the second interested party against L R Kajiado/Loodariak/3050 registered in her name. Prior to registering the charge and releasing the loan amount, the second interested party conducted due diligence and confirmed that the title was clean. At the time of filing the defence, the said loan had been cleared even though the title had not been discharged. The defendant and other parties did not enter any appearance and the suit against them proceeded as undefended. At the trial, only the plaintifi testified. He relied on his witness statement and also produced the exhibits. 5. 6. The plaintifi’s counsel filed written submissions on December 17, 2021 in which he raised three issues as follows; i. Whther the sale and transfer of the land known as Kajiado/Loodariak/697 to the defendant was illegal, unlawful and or fraudulent? ii. Whether the plaintifi is entitled to the prayers sought? iii. Who should bear the costs? I have carefully considered all the evidence adduced in this case by the plaintifi including the witness statements, documentary evidence and the court testimony. I have also considered the submissions by the plaintifi’s counsel. I make the following findings; On the first issue, the plaintifi has not proved that the sale and transfer was illegal or fraudulent. No evidence was produced in this regard. Apart from the plaintifi’s word of mouth, there was documentary evidence from land registry to prove the absence of the necessary documents like the https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3129/eng@2022-06-09 2

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consent of the Land Control Board, transfer instrument, evidence of payment of stamp duty among other evidence. The burden was on the plaintifi to not merely plead fraud but also to prove it. He did not. On the second issue, I find that the plaintifi is not entitled to all the prayers. For example, he cannot be paid the balance of the purchase price and also get back his land. That would be unjust enrichment. I find that the fairest order would be that the defendant pays the plaintifi the balance of the purchase price, that is to say, kshs 16, 600,000/- together with interest at court rates. I also award the plaintifi costs. Order accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 9TH DAY OF JUNE, 2022. M N GICHERU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3129/eng@2022-06-09 3

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