Mwanjira

or heard from the Defendant, who had breached the sale of land contract by failing to fulll his end of the bargain. The Plainti further avers that the Defendant has not paid any amount in furtherance to the initial deposit of Kenya Shillings Thirty Thousand (Kshs. 30,000/-) and that the contract having stayed for fourteen years without execution has abated and is null and void to that extent. The plainti maintains that as a result of the Defendant's actions, his family have suered irreparable damage in that they have been fraudulently and unlawfully dispossessed of the suit property as the Defendant continues to construct the residential house on the suit property. That at the moment, the Plainti and his family are squatters in their own land. The Plainti and her family have no other land to settle into except the suit property and their rights to own property under Article 40 (l) of the Constitution stand to be violated. The Plainti prays that judgment be entered against the Defendant for; 2. 1. A declaration that the purported sale of the suit parcel of land to the Defendant is statutebarred and unenforceable under the Limitation of Actions Act rendering its enforcement null and void as the same is abated. 2. The Defendant is a trespasser on the suit land and that the Defendant's actions as are illegal. Prayer for general damages and mesne prots arising from the 2nd Defendant's unlawful acts. 3. An order of a permanent injunction restraining the defendant, their servants, workmen and agents, from entering on and/or from erecting or causing to be erected thereon any structures, in any way interfering with the plaintis use and enjoyment of the suit property; 4. Costs of this suit and any other relief the court deems t to grant. The Defendant states that he is the lawful and/or bonade proprietor of all that parcel reference Title No. CR 2124 (Original No. 121/mainland V NORTH SECTION V, containing by measurement 42 by 120 Meters, situated at Jomvu-AIdina within Mombasa County. That vide land sale agreement dated 7th January 2007, agreement for sale dated 10th February 2007 and transfer of lease dated 10th February 2007, the Plainti, Khamisi Athman Mwanjira Alias Khamisi Kombo Mwanjira and his mother Fatuma Koloo Nyamawe absolutely sold and transferred all their rights, title and interests in and to the suit property, together with all buildings creations and improvements created and being thereon to the Defendant and his wife Purity John Syombua Maithya. That upon the successful completion of the transaction and transfer of the suit property to the Defendant and his wife as aforementioned the Plainti and his mother handed over a copy of the certicate of ownership of the parent title; all relevant completion documents and vacant possession of the suit property to date culminating in a phased Development thereon now comprising of two (2) residential units thereon. That the Defendant's development on the suit property was concluded in late October or early November, 2020, as depicted in the still photographs annexed to the defendant's list of documents. The Plainti (By Counter-Claim) prays that Judgment be Entered against the Defendant (By CounterClaim), for: a. A Declaration that the plainti (by counter-claim) is the lawful, bonade proprietor of all that Parcel Reference Title Number NO. CR 2124 (Original No. 121) Mainland v North Section V, containing by measurement 42 by 120 Meters, situated at Jomvu-AIdina within Mombasa County, together with all Buildings, Creations and Improvements created and being thereon. b. A declaration that the Entirety of Claims to Proprietorship by Defendant (By counter-claim) over Parcel Reference Title Number Title No.CR 2124 (Original No .121) mainland V North Section V, containing by measurement 42 by 120 Meters, situated at Jomvu-Aldina within Mombasa County, together with all Buildings, Creations and Improvements created and being thereon was, is and remains fraudulent and/or illegal therefore null and void ab initio; https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13696/eng@2024-12-11 2

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3. c. An order of permanent injunction do issue restraining the defendant (by counter-claim), whether by himself, his agents/employees/servants and/or anyone whosoever laying claim through him, jointly and severally, from entering into, dwelling upon , interfering with the plainti's open, peaceful, quiet, lawful, continuous, exclusive and uninterrupted possession, occupation, enjoyment and derivative use, and/or in any other manner whatsoever, dealing with and/or utilizing the suit property in any manner adverse to the plainti' s interest and/or if said party/ parties have entered upon the suit property said party/parties be evicted forthwith. d. Order directing the defendant (by counter-claim) to pay the plainti (by counter-claim) income lost 1st December, 2020. e. Costs of this suit and interest herein. This court has considered the evidence and submissions therein. When the matter came up for hearing on the 6th June 2022, the Plainti and his Advocate were absent despite the date having been taken by consent. The court noted that the nal adjournment was given on the 9th March 2022 and the Plainti’s case was dismissed and the court proceeded to hear the counterclaim. The Defendant testied that by a Land Sale Agreement dated 7th January 2007, Agreement for Sale dated 10th February 2007 and Transfer of Lease dated 10th February 2007, the Plainti, Khamisi Athman Mwanjira alias Khamisi Kombo Mwanjira and his mother Fatuma Koloo Nyamawe absolutely sold and transferred all their rights, title and interests in and to the suit property. Section 3(3) of the Law of Contract Act provides; “ No suit shall be brought upon a contract for the disposition of an interest in land unless: a) b) 4. ….. i) …… ii) is signed by all the parties thereto; and The signature of each party signing has been attested by a witness who is present when the contract was signed by such party.” This court has carefully considered the documents adduced by the defendant in this case. He produced the vide Land Sale Agreement dated 7th January 2007 (DEx2), Agreement for Sale dated 10th February 2007 (DEx3) and Transfer of Lease dated 10th February 2007 (DEx4). No evidence has been adduced by the Plainti that the Defendant had not completed the payment of the purchase price. All the sale agreements have been signed by the Plainti and his mother including the transfer form. It is upon the successful completion of the transaction and transfer of the suit property to the Defendant and his wife as the Plainti and his mother handed over a copy of the certicate of ownership of the parent title, all relevant completion documents and vacant possession of the suit property. The Defendant has produced photographs to show he has developed the land and constructed on it. This evidence was not controverted. This is a case of the Plainti hoping to benet twice after selling the land to the Defendant. This suit was led way back in 2020 and the Plainti’s conduct shows that he was not interested in prosecuting the matter as he wanted to continue beneting from the suit property. Be that as it may, I nd that the income lost has not been proved and the same will not be awarded. I nd that the Defendant has proved his counter claim on a balance of probabilities and I make the following orders; 1. A Declaration that the Defendant is the Lawful, Bonade Proprietor of all that Parcel Reference Title Number NO. CR 2124 (Original No. 121) Mainland v North Section V, containing by measurement 42 by 120 Meters, situated at Jomvu—AIdina within Mombasa https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13696/eng@2024-12-11 3

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County, together with ALL Buildings, Creations and Improvements created and being thereon. 2. An order of permanent injunction do issue restraining the Plainti, whether by himself , his Agents/Employees/Servants and/or anyone whosoever laying Claim through him, Jointly and Severally, from Entering into, Dwelling Upon Interfering with the Defendant’s Open, Peaceful, Quiet, Lawful, Continuous Exclusive and Uninterrupted possession, occupation, enjoyment and derivative use, and/or in any other manner whatsoever, dealing with and/or Utilizing the Suit Property in Any Manner Adverse to the Defendant' s interest and/or if said Party/Parties have entered Upon the Suit Property said Party/parties are to vacate within the next 30 days upon service of this order and in default eviction order to issue. 3. Costs of this suit to be paid by the Plainti. It is so ordered. DELIVERED, DATED AND SIGNED AT MOMBASA THIS 11TH DAY OF DECEMBER 2024. N.A. MATHEKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13696/eng@2024-12-11 4

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