Nzeki & another v Diya Holdings Limited & 3 others (Environment and Land Case E012 of 2023) [2025] KEELC 5464 (KLR)

2. 3. c. An order compelling the 4th Defendant to cancel the certificate of titles IR No. 249066 LR No. 16115/40, IR No. 249068, LR No. 16115/42 and IR No. 249065 LR No. 16115/38. d. General and exemplary damages for loss of use of the property and trespass. e. Costs of this suit with interest. The suit is opposed by the 1st Defendant vide its Statement of Defence and Counterclaim dated the 5th April 2023. It contends that LR No. 16115/16 is no longer in existence, having been subdivided into several land parcel numbers being 16115/39, 16115/40, 16115/41, 16115/42, 16115/43 and that it is the valid proprietor of LR 16115/40 (Original number 16115/16/2) measuring 0.75 acres which it purchased from Museum View Ofice Suites Limited hereinafter referred to as ‘Museum View Suites’, for ksh.20,120,000/= in the year 2021, after ascertaining that the said company was the registered owner. Further, that it obtained title on 1st July 2022 and that the said title is Charged to Bank of Baroda (K) Limited for Kshs.15 million. It contends that the Certificate of title to land parcel number 16115/16 purportedly registered in the name of the Plaintifis is non-existent. It seeks the following orders: a. A declaration that the title to land parcel number 16115/16 purportedly registered in the names of the Plaintifis or any other person or persons claiming under the Plaintifis is void and illegal having been acquired illegally and/or fraudulently. b. A declaration that the title to land parcel number 16115/16 purportedly registered in the names of the Plaintifis or any other person or persons claiming under the Plaintifis is invalid since the said land parcel number 16115/16 is no longer in existence, having been subdivided into several parcels, Land reference number 16115/40 being one of the resultant subdivisions. c. An order for cancelation of the title to land parcel number 16115/16 which is purportedly registered in the names of the Plaintifis. d. An order for rectification of the Land Register (if any) by way of cancellation of the certificate of title and all entries on the land register in respect to Land Reference 16115/16, held or made in favour of the Plaintifis. e. A declaration that the 1st Defendant is the valid, legal, beneficial, and/or bona fide owner of land parcel number 16115/40 having acquired a bona fide title to the same for valuable consideration. f. An order of permanent injunction against the Plaintifis, their agents, servants or employees restraining them from leasing, selling, transferring, charging, taking possession, or in any other manner howsoever from dealing/interfering with the 3rd Defendant’s peaceful and quiet enjoyment of the title to land reference Number 16115/40. g. General damages for fraud. h. Costs of and incidental to the suit. i. Any other or further relief the court may deem fit and just to grant. The suit is opposed by the 2nd Defendant vide its Statement of Defence and Counterclaim dated 5th April 2023. It avers that upon subdivision of LR No. 16115/16, it purchased LR No. 16115/42 (Original number 16115/16/42) measuring 0.75 acres from Museum View Suites in 2021, after ascertaining that the said Company was the registered owner. Further, that it Charged its title to the property to Bank of Baroda (K) for Kshs.15 million. It contends that the Certificate of title to land https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5464/eng@2025-07-22 2

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parcel number 16115/16 purportedly registered in the name of the Plaintifis is non-existent. It seeks for the following Orders: 4. a. A declaration that the title to land parcel number 16115/16 purportedly registered in the names of the Plaintifis or any other person or persons claiming under the Plaintifis is void and illegal having been acquired illegally and/or fraudulently. b. A declaration that the title to land parcel number 16115/16 purportedly registered in the names of the Plaintifis or any other person or persons claiming under the Plaintifis is invalid since the said land parcel number 16115/16 is no longer in existence, having been subdivided into several parcels, Land reference number 16115/40 being one of the resultant subdivisions. c. An order for cancelation of the title to land parcel number 16115/16 which is purportedly registered in the names of the Plaintifis. d. An order for rectification of the Land Register (if any) by way of cancellation of the certificate of title and all entries on the land register in respect to Land Reference 16115/16, held or made in favour of the Plaintifis. e. A declaration that the 2nd Defendant is the valid, legal, beneficial, and/or bonafide owner of land parcel number 16115/42 having acquired a bona fide title to the same for valuable consideration. f. An order of permanent injunction against the Plaintifis, their agents, servants or employees restraining them from leasing, selling, transferring, charging, taking possession, or in any other manner howsoever from dealing/interfering with the 2nd Defendant’s peaceful and quiet enjoyment of the title to land reference Number 16115/42(Original Number 16115/16/4). g. General damages for fraud. h. Costs of and incidental to the suit. i. Any other or further relief the court may deem fit and just to grant. The suit is also opposed by the 3rd Defendant vide its Statement of Defence and Counterclaim dated 5th April 2023. It denies allegations levelled against it in the Plaint and contends that after conducting due diligence, it purchased LR No. 16115/39, a subdivision of LR No. 16115 from Museum View Suites. It seeks the following reliefs: a. A declaration that the title to land parcel number 16115/16 purportedly registered in the names of the Plaintifis or any other person or persons claiming under the Plaintifis is void and illegal having been acquired illegally and/or fraudulently. b. A declaration that the title to land parcel number 16115/16 purportedly registered in the names of the Plaintifis or any other person or persons claiming under the Plaintifis is invalid since the said land parcel number 16115/16 is no longer in existence, having been subdivided into several parcels, Land reference number 16115/40 being one of the resultant subdivisions. c. An order for cancelation of the title to land parcel number 16115/16 which is purportedly registered in the names of the Plaintifis. d. An order for rectification of the Land Register (if any) by way of cancellation of the certificate of title and all entries on the land register in respect to Land Reference 16115/16, held or made in favour of the Plaintifis. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5464/eng@2025-07-22 3

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5. e. A declaration that the 3rd Defendant is the valid, legal, beneficial, and/or bona fide owner of land parcel number 16115/39 having acquired a bona fide title to the same for valuable consideration. f. An order of permanent injunction against the Plaintifis, their agents, servants or employees restraining them from leasing, selling, transferring, charging, taking possession, or in any other manner howsoever from dealing/interfering with the 3rd Defendant’s peaceful and quiet enjoyment of the title to land reference Number 16115/39. g. General damages for fraud. h. Costs of and incidental to the suit. i. Any other or further relief the court may deem fit and just to grant. On 22nd April 2024, the Plaintifis’ suit was dismissed for non-attendance and the 1st to 3rd Defendants were directed to proceed with their respective Counterclaims. Evidence of the 1st - 3rd Defendants 6. The 1st to 3rd Defendants called DW1 who was John Kiumi Wambugu, as their joint witness. He confirmed that he is an Advocate of the High Court and a director of Museum View Ofice Suites Limited. He adopted his witness statement as his evidence in chief. He claimed that in a newspaper advertisement posted by Keysian auctioneers on 23rd October 2013, the said auctioneers notified bidders that LR No. 16115 was scheduled for auction on 8th November 2013. Having considered the parcel a viable investment, Museum View Ofice Suits Limited’s representative attended the auction and placed a bid of ksh.570 million which was declared the highest bid at the fall of the hammer. It was his testimony that subsequently, the auctioneers presented the ofier to their principal, Kenya Commercial Bank Limited, which communicated their acceptance of the bid for the said property. He explained that Museum View Suites remitted Kshs.143, 500,000/= as a deposit of the purchase price to secure the property on the understanding that the balance of the purchase price would be paid within sixty (60) days. Further, that the Auctioneers then prepared a Memorandum of Sale which was executed between the said Auctioneers and Museum Ofice Suites. It was his testimony that pursuant to the sale, Museum Ofice Suites secured financing from Jamii Bora Bank Limited to settle the balance of the purchase price with the proceeds thereof were utilized to settle the balance of the purchase price in full and a Certificate of sale was issued confirming the said sale. 7. He clarified that subsequently, the said property was transferred to Museum Ofice Suites pursuant to a Transfer by Charge in exercise of the statutory power of sale dated the 28th February 2014 and the Transfer was duly registered on 7th March 2014, after payment of Stamp Duty. Thereafter, the title was Charged to Jamii Bora Bank Limited (now Kingdom Bank Limited) which still holds the original title (s) and only permits partial discharges once the various parcels of land are sold. 8. He claimed that after transfer, Museum Ofice Suites submitted a proposal to the County Government of Machakos County sometime in April 2014 to have LR No. 16115 subdivided into thirty - four (34) subplots of difierent sizes of which, its proposal was approved by the County Surveyor, County Physical Planning Department, County Administration Ofice, National Land Commission and the Director of Survey. Further, that amongst the Deed Plans submitted was Deed Plan number 376172, which was in relation to Land Reference number 16115/16 which parcels forms the substratum of this suit. Further, the same was also registered as a Leasehold for a term of fourty five (45) years with efiect from 1st March 1991 in favour of Museum View Ofice Suites Limited https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5464/eng@2025-07-22 4

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9. He stated that in July 2021, Museum Ofice Suites was approached by five (5) companies being the 1st to 3rd Defendants herein, OM Shree Holdings Limited and Nihal Construction Limited who were desirous of purchasing the parcels of land resulting from the subdivision of LR No. 16115/16 and pursuant to various agreements for sale executed on 13th August 2021, Museum Ofice Suites sold difierent portions of land measuring 0.75 acres each to the 1st to 3rd Defendants, which were titles numbers; 16115/39 (Original number 16115/16/1),16115/40 (original number 16115/16/2), and 16115/42 (original number 16115/16/4), that were transferred to 1st to 3rd Defendants pursuant to various Transfer Instruments duly executed between them. 10. He confirmed that Museum Ofice Suites is the registered and bonafide proprietor of Land Reference Number 16115/16 and has never sold it to the Plaintifis. Further, that it has had exclusive possession of the suit property from the time it purchased it. He produced the 1st to 3rd Defendants’ joint supplementary list of documents dated 9th January 2024 as D. Exhibits 1-22. 11. DW2 was Ramesh Gangji Vekariya, a director of the 3rd Defendant. He adopted his witness statement as his evidence in chief and produced the 3rd Defendant’s bundle of documents dated the 7th June 2023 as D. Exhibits 23-40. 12. His evidence was that with an intention to purchase a portion of LR No. 16115/16, the 3rd Defendant commissioned Wanjohi Holdings Limited (a firm of land consultants and surveyors) to conduct an independent investigation to ascertain the history of the title. Further, that the said investigation revealed that LR No. 16115 was a grant from the President of Kenya to Crescent Construction Limited for a Leasehold term of fourty five (45) years with efiect from 1st March 1991. He testified that, the said land was then purchased by Museum Ofice Suites for a consideration of Ksh.570 million. It was his testimony that in April 2014, Museum Ofice Suites submitted a proposal to the County Government of Machakos to subdivide the land into thirty - four (34) plots, which proposal was approved and amongst the Deed Plans submitted was LR No. 16115/16, which was registered to Museum Ofice Suites. Further, that pursuant to a Sale Agreement executed on 13th August 2021, Museum Ofice Suites sold to the 3rd Defendant a portion measuring 0.75 acres for Ksh.20,120,000/= but since the 3rd Defendant was not financially sound to complete the sale, it sought a loan facility from Bank of Baroda (Kenya) Limited. 13. He averred that after successful subdivision, Museum Ofice Suites obtained the title deed for allocation to the 3rd Defendant as title number 16115/39 (original number 16115/1) and transferred it to the 3rd Defendant pursuant to a Transfer Instrument dated 8th September 2022. Further, that the 3rd Defendant then remitted the unsecured balance of Kshs. 3,108,000/= to Museum Ofice Suite’s Advocates. Further, it then Charged its Certificate of title to Bank of Baroda (Kenya) Limited for Ksh.15 million, to secure its interest in the said parcel of land pursuant to an Instrument of Charge dated 17th October 2022. He explained that the Instruments of Transfer and Charge were registered simultaneously at the Land Registry on 2nd November 2022, after payment of statutory taxes. 14. DW3 was Mavji Devji Vekariya, a director of the 2nd Defendant. His witness statement was adopted as his evidence in chief. He produced the 2nd Defendant’s bundle of documents dated the 7th June 2023 as D. Exhibit 41-59. His evidence is similar to that of DW2 with regard to the history of the suit parcel. He averred that the 2nd Defendant was issued with a Certificate of title number 16115/42 (Original Number 16115/16/4) by Museum Ofice Suites following purchase and that it Charged the said land to Bank of Baroda (K) Limited. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5464/eng@2025-07-22 5

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15. DW4 was Bhimji Jadva Varsani, a director of the 1st Defendant. His evidence as pertaining to the history of the suit parcel is similar to that of DW2. He produced the 1st Defendant’s bundle of documents dated 7th June 2023 as D. Exhibit 60-77. He stated that in July 2021, the 1st Defendant sought to purchase a portion of land measuring 0.75 acres for Ksh.20,120,000/= which was a subdivision of land reference number 16115/16, from Museum Ofice Suites after conducting due diligence and carrying out independent investigations to ascertain its history. 16. He testified that at the time of purchase, the 1st Defendant was not financially sound to complete the sale thus it sought a loan facility from Bank of Baroda (Kenya) Limited. Further, after a successful subdivision of the suit property into several portions, Museum Ofice Suites obtained the title deed for allocation to the 1st Defendant referenced as title number 16115/40 (Original Number 16115/16/2) dated 1st July 2022, after settling all statutory payments. 17. He confirmed that the said Certificate of Title was transferred to the 1st Defendant pursuant to a Transfer between Museum Ofice Suites and itself, dated 8th September 2022. Further, that their then Advocates remitted the unsecured balance of Ksh.3,108,000/= to Museum Ofice Suites’ Advocates. He confirmed that the said Certificate of Title was then Charged to Bank of Baroda Kenya Limited for Ksh.15 million. Submissions 18. The 1st Defendant submits that having adduced a copy of the Certificate of title in respect of Land Reference Number 16115/40 which indicates that the interest in the said parcel of land was transferred to it on 2nd November 2022 and by dint of Section 26 (2) of the Land Registration Act, suficient proof of ownership has been adduced. Further, that it produced an uncontested trail of transactions that culminated into the said registration, thus it satisfied the test laid out by the court in Hubert L. Martin & 2 Others v Margaret J Kamar & 5 Others [2016] eKLR. 19. It submitted that while the Plaintifis’ have a Certificate of Title to LR 16115/16, registered to them as joint owners, it is not enough proof of ownership as held in the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR, David Kiptugen v Commissioner of Lands, Nairobi & 4 Others [2016] eKLR and Alberta Mae Gacci v Attorney General & 4 Others [2006] eKLR. 20. It also submitted that it is trite law that there can never be two Certificates of title in regard to one piece of land, thus the Plaintifis’ title should be cancelled under Section 80 of the Land Registration Act. To this argument, it relied on the following decisions: Siriekesi Morris Wanjala v Boniface Bruno Wanjala [2021] eKLR, Nkena Ole Kashu v Mateki Ole Tiima [2021] eKLR and Jan Wulfert Verwoedrd & Another v Victor Innocent Otieno & 5 Others [2019] eKLR. 21. The 1st Defendant further submitted that the Plaintifis have admitted to have trespassed into its land as in the afidavit sworn by the 1st Plaintifi herein, he averred that by the time the 1st Defendant began building a perimeter wall around its land, they had already built a site house on it and stationed a caretaker thereon, thus the 1st Defendant is entitled to damages. To support its averments, it relied on the following decisions: Adrian Gilbert Muteshi v William Samoei Ruto & 4 Others [2013] eKLR and Fleetwood Enterprises Ltd v Kenya Power & Lighting Co. Limited [2017] eKLR. 22. In respect to quantum for damages for trespass, the court was urged to consider that the 1st Defendant’s parcel is situated in the prime and lucrative economic zone of Syokimau area and given that the 1st Defendant had started developing it by putting a perimeter wall thereon, its not unforeseeable that were it not for the interim status quo order issued herein, it could have been making substantial amounts from the parcel by now. It sought general damages of Kshs.5 million for trespass. It further relied on https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5464/eng@2025-07-22 6

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very many decisions including: Hema Hospital v Wilson Makongo Marwa [2015] eKLR; Tushar Shah & Another v John Mariara Kingotho & Another; John Munge (Interested Party) [2021] KEELC 879 (KLR) [2021] eKLR; Kenya Power & Lighting Co. Limited v Sherrif Molana Habibi [2018] eKLR; Mohamed v Fadhil & 2 Others (Environment & Land Case 68 of 2016) [2022] KEELC 3278 (KLR) (26 July 2022) and Re estate of Raphael Ngugi (deceased) [2022] eKLR. 23. The 2nd and 3rd Defendants also filed submissions in which they reiterated their respective averments made in the pleadings and evidence. The said submissions mirror those of the 1st Defendant, thus this court will avoid duplicating them. It is however worth pointing out that both parties also sought Ksh.5 million each as general damages for trespass. Analysis and Determination 24. 25. Upon consideration of the Plaint, Defences including Counterclaims, testimonies of the witnesses, exhibits and submissions, the following are the issues for determination: a. Whether the Plaintifis have established ownership to title LR No. 16115/16. b. Whether the 1st to 3rd Defendants lawfully acquired titles to LR Nos. 16115/40, LR No. 16115/42, and LR No. 16115/39 respectively. c. Whether the 1st to 3rd Defendants are entitled to the Orders as sought in the Counterclaim. Before I proceed to determine the aforementioned issues, I wish to point that the Plaintifis’ never filed a Reply to Defence and Defence to Counterclaim. Further, on 22nd April, 2024 after time allocation, the Plaintifis including their Counsel failed to attend Court culminating in their suit being dismissed with costs, for non - attendance. The 1st to 3rd Defendants hence proceeded with their Counterclaim. As to whether the Plaintifis have established ownership to title LR No. 16115/16 or if the 1st to 3rd Defendants lawfully acquired titles to LR Nos. 16115/40, 42, and LR No. 16115/39 respectively. 26. The Plaintifis’ claim is that they are the registered proprietors of LR 16115/16 and have a title to that efiect. The 1st to 3rd Defendants opposed the Plaintifis’ suit and contended that LR 16115/16 does not exist, having been subdivided into several plots which gave rise to several parcels of land among them being the parcels in contention herein which are: LR No. 116115/40, LR 16115/43 and LR 16115/39 respectively. They claim that they have valid Certificates of title whose authenticity has not been challenged and that they have provided a trail of transactions they undertook, to acquire their respective parcels of land. 27. While the Plaintifis claimed to be the registered proprietor of LR 16115/116, they did not call any witness in evidence. Be that as it may, the 1st - 3rd Defendants still had the burden of proving their case. In Gichinga Kibutha v Caroline Nduku [2018] eKLR, the court stated as follows: “ It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest”. 28. Being that the Plaintifis claimed that they had a registered title to LR 16115/16, they had the burden to prove how they acquired the same. Equally, the 1st to 3rd Defendants were also required to demonstrate https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5464/eng@2025-07-22 7

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to the court how they acquired their respective titles. The Supreme Court held as follows in Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR): “ Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible...” 29. In this instance, DW1 confirmed that Museum Ofice Suites acquired LR No. 16115 through a public auction. He explained that in a newspaper advertisement posted by Keysian auctioneers on 23rd October 2013, the said auctioneers notified bidders that LR No. 16115 was scheduled for public auction on 8th November 2013. Further, that Museum Ofice Suites purchased the said land for Kshs.570 million through a public auction from Kenya Commercial Bank. DW1 explained that Museum Ofice Suites first remitted Kshs.143, 500,000/= as deposit of the purchase price and later secured financing from Jamii Bora Bank Limited to finalize the settlement of the balance of the purchase price. He confirmed that subsequently, the said property was transferred to Museum Ofice Suites pursuant to a Transfer by Charge dated the 28th February 2014 and the Transfer was duly registered on 7th March 2014, after payment of stamp duty. Thereafter, the title was Charged to Jamii Bora Bank Limited (now Kingdom Bank Limited) which still holds the original title (s) and only permits partial discharges once the various parcels of land are sold. It was DW1’s further testimony that sometime in April 2014 LR No. 16115 was subdivided into thirty four (34) subplots of difierent sizes. Further, that in July 2021, Museum Ofice Suites was approached by five (5) companies being the 1st to 3rd Defendants herein, that purchased resultant subdivisions of LR No. 16115/16 pursuant to various agreements for sale executed on 13th August 2021 and the titles sold were: LR Nos. 16115/39 (Original number 16115/16/1), 16115/40 (original number 16115/16/2), and 16115/42 (original number 16115/16/4), which were transferred to the 1st to 3rd Defendants pursuant to various Transfer Instruments duly executed between the 1st to 3rd Defendants. DW1 denied that Museum Ofice Suites sold land to the Plaintifis. 30. DW2, DW3 and DW4 respectively confirmed that the 1st to 3rd Defendants purchased their respective parcels of land from Museum Ofice Suites. They further confirmed that they took possession of the said parcels of land that are now Charged to Bank of Baroda (K) Limited. 31. Looking at the documents presented by the 1st to 3rd Defendants noting that the Plaintifis never filed a Defence to the Counterclaims to controvert their averments, I opine that the 1st to 3rd Defendants have indeed demonstrated the root of their respective titles. I note the Plaintifis except for claiming ownership of the suit land and presenting a title, did not demonstrate the root of their title. 32. On proof of proprietorship, section 26 (1) of the Land Registration Act provides inter alia: “ 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.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5464/eng@2025-07-22 8

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33. While Section 24 (a) of the Land Registration Act further stipulates as follows: “ Subject to this Act, the registration of a person as a proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto..............” 34. The Court of Appeal stated as follows in Wambui v Mwangi & 3 Others (Civil Appeal 465 of 2019) [2021] KECA 144 (KLR): “ …No court of law should sanction either the acquisition of title to property in favour of a party (christened crooks by the court) who has acquired such title from a legally registered innocent proprietor using forgery, deceit or any kind of fraud…” 35. While in Munyu Maina v Hiram Gathiha Maina [2013] eKLR, the Court of Appeal held as follows; “ We state that when a registered proprietor’s root of title is under challenge, it is not suficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.” 36. Based on the pleadings together with the evidence presented before Court, while relying on the legal provisions cited as well as associating myself with the quoted decisions, in my view the 1st to 3rd Defendants have actually explained the root of their titles through the entering into Sale Agreements with Museum Ofice Suites that was the proprietor of the mother title, paying the full purchase price including stamp duty and obtaining their respective Certificates of Title. I note the Plaintifis did not controvert the 1st to 3rd Defendants averments or tender any evidence to demonstrate that the 1st to 3rd Defendants Certificates of Title were obtained fraudulently. I hence opine that the Plaintifis have not established ownership to title LR No. 16115/16 but the 1st to 3rd Defendants have indeed demonstrated that they lawfully acquired titles to LR Nos. 16115/40, 42, and LR No.16115/29 respectively. In the circumstances, I find that the 1st to 3rd Defendants hold valid titles to their respective parcels of land. I further find that the Plaintifis’ title should be cancelled in accordance with the provisions of Section 80 of the Land Registration Act As to whether the 1st to 3rd Defendants are entitled to the Orders as sought in the Counterclaim. 37. The 1st to 3rd Defendants have sought for various Orders in the Counterclaim which I have enumerated above. They have further sought for general damages for trespass in their submissions, which they never sought in the Counterclaim. However, it is trite that parties are bound by their pleadings and are estopped from introducing new issues in the submissions. 38. I note DW1 who was representing the vendor, confirmed that indeed the various parcels of land which form the fulcrum of the dispute herein belong to the 1st to 3rd Defendants. DW2, DW3 and DW4 confirmed that they had taken possession of their various parcels of land but had Charged them to the Bank of Baroda (K) Ltd. They admitted that they had only commenced putting up a perimeter wall on the suit property, but did not demonstrate if there were any further developments thereon. They tried to make a case that the orders of status quo afiected their loan repayment but I did not find that convincing. Further, except for the site house, the parcels of land had not been developed in any way and there was no indication if they were obtaining income therefrom. In the circumstances, I am https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5464/eng@2025-07-22 9

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unable to grant them any general damages for trespass as claimed. I however find that they are entitled to the other orders sought in the respective counterclaims except for general damages for fraud. 39. In the foregoing, I find that the 1st to 3rd Defendants have proved their case as per the three Counterclaims and will proceed to enter judgement in their favour and make the following final orders: a. The Plaintifis’ suit stands dismissed. b. A declaration be and is hereby issued that the title to land parcel number 16115/16 purportedly registered in the names of the Plaintifis or any other person or persons claiming under the Plaintifis is void and illegal having been acquired illegally and/or fraudulently. c. A declaration be and is hereby issued that the title to land parcel number 16115/16 purportedly registered in the names of the Plaintifis or any other person or persons claiming under the Plaintifis is invalid since the said land parcel number 16115/16 is no longer in existence, having been subdivided into several parcels, Land reference number 16115/39, 40 and 42 respectively being some of the resultant subdivisions. d. The 4th Defendant be and is hereby directed to cancel the title to land parcel number 16115/16 which is purportedly registered in the names of the Plaintifis. e. An order be and is hereby issued for rectification of the Land Register (if any) by way of cancellation of the certificate of title and all entries on the Land Register in respect to Land Reference 16115/16, held or made in favour of the Plaintifis. f. A declaration be and is hereby issued that the 1st, 2nd and 3rd Defendants are the valid, legal, beneficial, and/or bona fide owner of land parcel number 16115/40, 16115/39, and 16115/42 respectively having acquired bona fide titles to the said parcels of land for valuable consideration. g. An order of permanent injunction be and is hereby issued against the Plaintifis, their agents, servants or employees restraining them from leasing, selling, transferring, charging, taking possession, or in any other manner howsoever from dealing/interfering with the 1st to 3rd Defendant’s peaceful and quiet enjoyment of the title to land reference Number 16115/40, 16115/42, and LR No. 16115/29 respectively. h. Costs of the suit and Counterclaim awarded to the 1st to 3rd Defendants to be borne by the Plaintifis. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF JULY 2025. CHRISTINE OCHIENG JUDGE In the presence of: Mbugua Anthony for 1st, 2nd and 3rd Defendant Kuria for 4th Defendant Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5464/eng@2025-07-22 10

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