Manyim v Tarus (Sued in his personal capacity and as the administrator of the Estate of Kiptarus Chemworor - Deceased) (Land Case E008 of 2024) [2025] KEELC 7519 (KLR)

e) Any other orders that this Honourable Court may deem fit to grant in the interest of justice. 2. Briefiy, then plaintifi claimed that he is a bona fide purchaser of the suit land at Kshs 80, 000/= only from Kiptarus Chemwor (Deceased herein) whose estate the defendant is the Legal Representative pursuant to Eldoret Kadhi’s Court Succession Cause No. 44 of 2010. That the suit land is a sub division of the parent land reference number Nandi/Chepkongony/925. That he took vacant possession of the suit land and obtained consent dated 10th May 2007 but it has not been transferred to him. That he has been in occupation of the same since 2007 thus, provoking this suit. 3. The defendant was duly served by way of substituted service via the Star Newspaper by Moses K Rotich learned counsel for the plaintifi under Order 5 Rule 17 of the Civil Procedure Rules 2010 as disclosed in his afidavit of service sworn on 16th April 2025 herein; see Ephraim Njugu Njeru vs Justin Bedan Muturi & 2 others (2006) eKLR. 4. Be that as it may, the defendant opted not to file any statement of defence herein; see Ogada-vs-Mollin (2009) eKLR. 5. So, the suit was heard by way of formal proof. In his evidence, the plaintifi (PW1) relied on his statement dated 4th April 2024 as well as his list of documents of even date (P Exhibits 1 to 10) including Final agreement dated 28th May 2005 (P Exhibit 1), Land Control Board Consent dated 9th May 2007 (P Exhibit 2), and Minutes of Kaptumo Land Control Board consent dated 17th May 2004 (P Exhibit 4) and chief’s letter dated 24th October 2016 (P Exhibit 7). He testified, inter alia; ‘.......My name is minute No. 19 of 2007 as per P Exhibit 4. It was approved by the Land Control Board hence, issued with P Exhibit 2.....’ 6. PW2, David Kiptoo Rotich, the Chief Kaptumo Location, Nandi County confirmed that he prepared P Exhibit which he signed and stamped. Further, he stated that PW1 has been in occupation of the suit land even before 2009 when he (PW2) became chief of the location. 7. In the words of PW3, Mansur Kiprono Serem, a farmer and village elder of Bitapkeben village, Kaptumo Location, PW1 owns the suit land which he bought from the deceased. That PW1 has been in possession and occupation of it with a clear fence for more than fifteen years. 8. By the submissions dated 2nd October 2025, learned counsel for the plaintifi did refer to the plaint as well as the orders sought therein, delineated three issues for determination inclusive of whether the plaintifi has established that he is a bona fide purchaser. Counsel referred to the definition of the term ‘Bona fide purchaser’ in the Black’s Law Dictionary and the decision in the case of Katende-vs-Harider & Company Limited (2008) 2 EA 173 on the description of a bona fide purchaser, among others. That the plaintifi has proven that he purchased the suit land in good faith from the deceased, paid the entire purchase price and gained vacant possession of the same which he has been in use, occupation and possession to-date. That in the interest of justice and fairness, judgment be entered as per the plaint. 9. In the foregone, I endorse the three issues for determination framed in the plaintifi’s submissions pertaining to the plaintifi’s bona fide purchase for value of the suit land, acquisition of freehold interest in it and entitlement to the orders sought in the plaint. 10. It is was the evidence of PW1 that he bought the suit land from the deceased who took him to the local land control board and obtained consent thereof. His assertion is demonstrated by P Exhibits 1, 2, 3 and 4. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7519/eng@2025-10-28 2

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11. Moreover, PW1 testified that he has been in occupation of the suit land since 28th May 20027. This piece of evidence was afirmed by PW2 and PW3. 12. Evidently, the plaintifi is a bona fide purchase for value in respect of the suit land; see Katende case (supra) cited in the case of Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura-vsAttorney General & 4 others (2017) KECA 698 (KLR). 13. Furthermore, PW1 has acquired freehold interest on the suit land as there is no evidence to the contrary. Article 40 (1) of the Constitution of Kenya 2010 provides for protection of right to property including acquisition and ownership of the same. 14. Clearly, P Exhibits 1, 2 and 3 are valid and enforceable as this court gives efiect to equitable principles, in particular, doctrine of constructive trust enshrined under Article 10 (2) (b) of the Constitution of Kenya 2010 as noted by the Court of Appeal in the case of William Kipsoi Sigei-vs-Kipkoech Arusei & another (2019) eKLR. 15. The defendant did not ofier any evidence. However, the plaintifi still bears the burden of proving his case on the balance of probabilities even if the case was heard by way of formal proof only as held by the Court of Appeal in the case of Kirugi and another-vs-Kabiya and 3 others (1987) KLR 347. 16. In the instant suit, the plaintifi’s claim is unchallenged; see also the decision by Odunga J (now, JA) in Linus Ng’ang’a Kiongo & 3 others-vs-Town Council of Kikuyu (2012) eKLR. 17. The plaintifi’s case is also cogent and proven against the defendant on the balance of probabilities. Therefore, the plaintifi is entitled to the orders sought at the foot of the plaint. 18. Thus, Judgment is hereby entered for the plaintifi against the defendant for orders sought in the plaint as stated in paragraphs 1 (a) (b) (c) and (d) hereinabove. 19. It is so ordered DATED AND DELIVERED AT KAPSABET THIS 28TH DAY OF OCTOBER 2025 HON G M A ONGONDO JUDGE In the presence; 1. Mr Bungei Kibet instructed by Rotich learned counsel for the Plaintifi 2. Walter, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7519/eng@2025-10-28 3

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