Ngabia v Wachiuri & 2 others (Environment and Land Case 71 of 2020) [2026] KEELC 1499 (KLR)

b. The Plaintifi to execute the relevant Application forms for Consent by the relevant Land Control Board and the Transfer Forms for the transfer of the 1st Defendant’s property, that is Land Reference Number 13537/233 Thika Municipality as well as avail the requisite Afidavit of Consent by spouse together with the Plaintifi’s provision of the relevant copies of his Identity Card, PIN Certificate and coloured passport photographs, all for purposes of the transfer of the 1st Defendant’s property, that is Land Reference Number 13537/233 Thika Municipality to the 1st Defendant herein c. The Plaintifi to provide all other necessary documentation and execute such further and or other documents as shall be necessary for purposes of efiecting and facilitating the registration of the transfer of the 1st Defendant’s property, that is Land Reference Number 13537/233 Thika Municipality and the to the 1st Defendant herein. d. Should the Plaintifi fail to comply with (b) and (c) above, then the Honorable Court do mandate the Deputy Registrar of the Court to execute and or sign all such applications forms for consent, surrender, transfers, afidavits and or such other documentation as shall be necessary for the transfer of the 1st Defendant’s property, that is Land Reference No. 13537/2333 Thika Municipality and the subsequent registration thereof in favour of the 1st Defendant herein. e. Costs of the Counter-claim. f. Any other further and or relief this Honorable Court may deem just and necessary to grant and order. 3. The 1st Defendant avers that despite the Plaintifi’s clear and unequivocal admission of having sold the 1st Defendant’s property to the 1st Defendant and also having received entire purchase price for the same from the 1st Defendant, the Plaintifi refused, neglected and or failed to complete the said sale transaction by causing the 1st Defendant’s property to be transferred to the 1st Defendant. 4. The 1st Defendant stated that he has been willing to complete the sale of the 1st Defendant’s property and he even issued the requisite Completion Notice to the Plaintifi through his Advocates on record. 5. The 1st Defendant claim against the Plaintifi is for orders of specific performance of the Sale Agreement in general and in particular for: i. The Plaintifi to surrender the original Certificate of Title for the suit property to the Honorable Court to the 1st Defendant for purposes of surrender of the same to the Lands Ofices for subsequent issuance of a separate certificate of Title for the 1st Defendant’s property to be released to the 1st Defendant herein and another for the Plaintifi’s property for release for the Plaintifi herein ii. The Plaintifi to execute the relevant Application forms for Consent by the relevant Land Control Board and the Transfer forms for the transfer of the 1st Defendant’s property as well as avail the requisite Afidavit of Consent by spouse together with the Plaintifi’s provision of the relevant copies of his Identity Card, PIN Certificate and coloured passport photographs, all for purposes of the transfer of the 1st Defendant’s property, to the 1st Defendant herein. iii. The Plaintifi to provide all other necessary documentation and execute such further and or other documents as shall be necessary for purposes of efiecting and facilitating the registration of the transfer of the 1st Defendant’s property, to the 1st Defendant herein. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1499/eng@2026-03-11 2

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iv. Should the Plaintifi fail to comply with (ii) and (iii) above, then the Honorable Court do mandate the Deputy Registrar of the Court to execute and or sign all such applications forms for consent, surrender, transfers, afidavits and or such other documentation as shall be necessary for the transfer of the 1st Defendant’s property, and the subsequent registration thereof in favour of the 1st Defendant herein 6. The 1st Defendant averred that despite issuance of notice to sue the 1st Defendant (Plaintifi in the main suit) has refused and neglected to comply. 7. The second Counter-claim filed by the Interested Party (hereinafter referred to as “2nd Counterclaimant”) seeks the following: a. A declaration that the Interested Party is the proprietor of the Land Reference No. 13537/232 Thika Municipality. b. The Plaintifi to execute the relevant Application forms for consent by the relevant Land Control Board and the Transfer Forms for the transfer of the Interested Party property, that is Land Reference No. 13537/232 Thika Municipality as well as avail the requisite Afidavit of Consent by spouse together with the Plaintifi’s provision of the relevant copies of his Identity Card, PIN Certificate and coloured passport photographs, all for purposes of the transfer of the Interested Party property, that is, Land Reference No. 13537/232 Thika Municipality to the Interested Party herein. c. The Plaintifi to provide all other necessary documentations and execute such further and or other documents as shall be necessary for purposes of afiecting and facilitating the registrations of the transfer of the Interested Party Property, that is Land Reference No. 13537/232 Thika Municipality to the Interested Party herein d. Should the Plaintifi fail to comply with (b) and (c) above, then the Honorable Court do mandate the Deputy Registrar of the Court to execute and or sign all such applications forms for consent, surrender, transfers, afidavits and or such other documentation as shall be necessary for the transfer of the Interested Party property, that is Land Reference No. 13537/232 Thika Municipality and the subsequent registration thereof in favour of the Interested Party herein. e. Costs of the Counter-Claim. f. Any other further and or relief this Honorable Court may deem. just and necessary to grant and order. 8. The Counter-claimant pleads that he bought one and a half acres of land from the Plaintifi in 1985 vide a Sale Agreement dated 11/04/1985 and he paid the full purchase price of Kesh 102,500 which was acknowledged by the Plaintifi. 9. That at the time of purchase the Plaintifi’s land was known as Plot No. 48 Ithuri Farm Juja Ltd and for proof of ownership the Plaintifi gave the Interested Party a copy of his Share Certificate No. 48 for Ithuri Farm Juja Ltd. 10. That the Interested Party immediately took possession of the suit property and has been on the suit property uninterrupted for thirty-three (33) years to date. At paragraph 3 of the Sale Agreement, it was agreed that the Plaintifi would give the Interested Party a title for his one and a half acres as soon as he secured the same from Ithuri Farm Juja Ltd. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1499/eng@2026-03-11 3

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11. That the 1st Defendant also bought from the Plaintifi a portion of land next to the Interested Party four years after the Interested Party had purchased his. The Plaintifi promised both the Interested Party and the 1st Defendant that he would comply but meanwhile the parties were at liberty to develop their plots. 12. Soon after the sales Plaintifi relocated to Nakuru but he never gave the Interested Party his contacts but he came to learn from the 1st Defendant on 11/10/1998 the Plaintifi got a title deed and deed plan for Plot 48 Ithuri Juja Farm and it is LR 46155 (LR 13537/99) Thika without informing him. Further that the Plaintifi despite knowing that the Interested Party is a purchaser in possession, failed to advise the Surveyor (2nd Defendant) to excise the one and a half (1 ½) acres from LR 46155 (LR 13537/99) Thika Municipality and issue the Interested Party title Deed and a deed plan. 13. It is the averment of the Interested Party that the Plaintifi’s conduct was with intent to defraud the Interested Party his land by failing to give him notice of the proposed subdivision of LR 46155 (LR 13537/99) Thika Municipality. 14. The Interested Party has set out four (4) grounds of fraud against the Plaintifi at paragraph 24 of the Counter-claim and averred that also claimed adverse possession stating that limitation period for bringing any action against the Interested Party occupation has lapsed and the occupation has been notorious, open and without secrecy. 15. When the parties appeared in Court on 8/12/2025 the Plaintifi did not turn up despite the date for hearing having been issues earlier still the Plaintifi failed to attend Court. 16. At one point the Counsel for the 1st Defendant sought leave from the Court to substitute the 1st Defendant with a Guardian Ad Litem through the Notice of Motion Application dated 27/01/2025 due to illness following a report filed in Court. The Application being unopposed was allowed. 17. This led to the dismissal of the Plaintifi’s case for want of prosecution and Court attendance and the counter-claim was lined up for hearing at 10:15 a.m. Hearing of the Counter-Claim 18. DW1 testified through a Guardian Ad Litem. Micheal Ruirie Kigathi with the consent filed in Court from his siblings since he was testifying on behalf of the ailing 1st Defendant, Andrew Kigathi Wachuiri. He adopted his witness statement and supplementary witness stated filed on 10/09/2025 as his evidence in chief and sought to have documents contained in the Trial Bundle dated 10/09/2019 produced as exhibits. 19. Further following the transfer of the file to the Thika ELC Court he sought to have the 1st Defendant’s List of Documents filed on 19/04/2017 at pages 20-52 of the trial bundle adopted and the documents at pages 53-54 adopted and produced as exhibits. 20. With that DW1 closed his case. 21. DW3 – Stanley Paul Mbugua Githongo who had filed documents as Interested Party adopted his witness statement contained in the Trail Bundle as his evidence in chief. He told the Court that he will not call any witness. He produced documents at pages 1-12 of his Trial bundle. He produced the original copy of the Sale Agreement dated 11/04/1985 of which he had filed a copy in the Trial Bundle at page 14. 22. He testified to have paid Kesh 102,000 for the suit property and that he owes nothing since he paid the full amount as stated in the Sale Agreement for the portion of 1 ½ acres. He testified to have received a receipt from the lawyer who stamped and signed the Agreement. It was his testimony that at the time https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1499/eng@2026-03-11 4

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of signing the Sale Agreement, the Plaintifi did not have a title deed and so he gave DW3 a copy of the Share Certificate but not the original. 23. It was his testimony that he got to know about this instant matter when he met the 1st Defendant who informed him that the Plaintifi had refused to given him their title deeds including the one for the Interested Party. He testified that he now does not hold that the 1st Defendant tried to defraud him since the 1st Defendant asked him to join the suit as a 3rd Defendant. 24. He also stated that the land that he bought reduced due o the access road and so he just needs to get what is remaining of the 1 ½ acres since he has no complaint about the access road. 25. According to him, he occupied the suit property in 1985 but the 1st Defendant came to the suit property in 1989. That he has been doing farming on the suit land since he bought it. 26. In cross-examination he testified that he had no claim for fraud against the 1st Defendant that he had been misled by some neighbours and that he has a good neighbourly relationship with the 1st Defendant. 27. With that he closed his case. 28. Parties were directed to file their written submissions. Submissions 29. As intimated before, the 3rd Defendant chose to join issues with the 1st Defendant and therefore did not file any submissions. The 1st Defendant’s submissions state that this case originally filed as ELC No. 1571 of 2016 (transferred from Nairobi), focusing on the claim for specific performance regarding a land transaction. 30. In his submissions, the 1st Defendant outlines a litigation history beginning with the Plaintifi’s suit in 2016. A significant turning point occurred during the full hearing on 8/12/2025. Despite being duly served, neither the Plaintifi nor his legal counsel attended the proceedings. Consequently, the Court exercised its authority to dismiss the Plaintifi’s suit for want of prosecution. The matter then proceeded to a full hearing based on the 1st and 3rd Defendants' respective counterclaims. The 1st Defendant’s case was anchored by the testimony of Michael Ruirie Kigathi, appearing as a Guardian Ad Litem for the 1st Defendant (his father), who is currently mentally ill. 31. The 1st Defendant’s submission details a valid land transaction initiated in 1989. The 1st Defendant responded to a newspaper advertisement for the sale of a plot by the Plaintifi through his agents, Kuria Holdings Limited. Following an introduction to the Plaintifi and his advocates, the parties executed a Sale Agreement dated 30/01/1989, for a 1 ½ acre portion of land for a consideration of Kshs. 350,000. 32. The evidence confirms that the 1st Defendant paid the purchase price in full, settled the legal fees, and was subsequently issued a Share Certificate for Ithuri Farm Juja Limited. Since the time of purchase, the 1st Defendant has maintained exclusive possession and has developed the property. The land was later surveyed and subdivided into two parcels: L.R. No. 13537/232 which was sold to the 3rd Defendant) and L.R. No. 13537/233 which is the 1st Defendant’s property. 33. From the submissions of the 1st Defendant, the primary legal issue is whether the 1st Defendant is entitled to an order for specific performance to compel the completion of the sale. The 1st Defendant argues that this entitlement is reinforced by the Plaintifi’s own pleadings. Specifically, he submits that in both the Plaint and the Reply to the Counterclaim, the Plaintifi expressly admitted to selling the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1499/eng@2026-03-11 5

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property to the 1st Defendant and even authorized the 1st Defendant to have custody of the original title deed, Title No. 13537/99. 34. The submission emphasizes that because the Plaintifi’s main suit was dismissed, all allegations of fraud previously leveled against the 1st Defendant remain unproven and legally dead. The 1st Defendant contends that the Plaintifi has already signaled a readiness to complete the transaction through these judicial admissions. 35. The 1st Defendant in the submission relies on the equitable remedy of specific performance and the principles of land law regarding the finality of valid sale agreements where the consideration has been fully paid. To guide the Court on the appropriate relief, the submission cites the precedent of Gigi Vs. Njeri & 2 Others (2025) KEELC 8580 (KLR). In that case, the Environment and Land Court established a framework for relief in similar disputes, which the 1st Defendant moves the Court to adopt, including: 36. i. A declaration of lawful ownership. ii. Orders directing the Defendant to undertake subdivision and register the mutation within 60 days. iii. The execution of all necessary transfer documents. iv. A provision that, should the Defendant fail to comply, the Deputy Registrar of the Court be authorized to execute the transfer documents on the Defendant's behalf. The 1st Defendant sums up his submission and concludes that the counterclaim is meritorious and undisputed in fact. They pray for a Judgment that grants specific performance, ensuring the legal title is finally transferred to the 1st Defendant, consistent with the long-standing possession and the Plaintifi’s previous admissions. Analysis and Submissions. 37. The litigation originated from a Plaint filed by the Plaintifi on 14/12/2016 in Nairobi and subsequently transferred to Thika. However, the Plaintifi demonstrated a consistent lack of interest in prosecuting the matter, culminating in the dismissal of the Plaintifi’s suit on 8/12/2025, for want of prosecution and non-attendance. 38. What remained for the Court’s determination were two distinct Counterclaims: 1. The 1st Defendant’s Counterclaim based on a 1989 Sale Agreement for 1.5 acres for L.R. No. 13537/233 for Kshs. 350,000. 2. The Interested Party’s (3rd Defendant) Counterclaim based on a 1985 Sale Agreement for 1.5 acres for L.R. No. 13537/232 for Kshs. 102,500. 39. Both parties sought Specific Performance, alleging they had paid the full purchase prices, taken possession, and developed the land, yet the Plaintifi had failed to formalize the transfers. 40. Based on the pleadings and the evidence adduced by DW1 Michael Ruirie Kigathi as Guardian Ad Litem and DW3 Stanley Paul Mbugua Githongo, the following issues arise: i. Whether there exist valid and enforceable Sale Agreements between the Plaintifi and the Counter-claimants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1499/eng@2026-03-11 6

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ii. Whether the Counter-claimants have fulfilled their contractual obligations (payment of purchase price). iii. Whether the 3rd Defendant (Interested Party) has established a claim for Adverse Possession through 33 years of uninterrupted occupation. iv. Whether the Defendants are entitled to orders of Specific Performance to compel the Plaintifi to execute transfer documents. v. Whether the Deputy Registrar of the Court should be authorized to sign documents in the event of the Plaintifi’s default. 41. A contract for the sale of land must meet the requirements of Section 3(3) of the Law of Contract Act (Cap 23), which stipulates that the agreement must be in writing, signed by both parties, and the signature witnessed. The evidence shows that the 1st Defendant entered into an agreement in 1989 and the 3rd Defendant in 1985. Both provided original or secondary evidence of these contracts. Notably, the Plaintifi’s own pleadings contained judicial admissions of these sales, which, under the Evidence Act Cap 80, do not require further proof. 42. Specific performance is an equitable remedy where the Court directs a party to fulfill their contractual obligations. This is a frequently applies relief by the Courts when land is involved, as monetary compensation is rarely considered an adequate substitute for unique real property. In Gigi vs. Njeri & 2 Others (Supra), the Court held that where a purchaser has paid the full price and taken possession, the vendor holds the legal title only as a constructive trustee for the purchaser. The Plaintifi’s failure to complete the transfer despite receiving full payment is a breach of trust and contract. 43. The 3rd Defendant pleaded Adverse Possession under Section 7 of the Limitation of Actions Act (Cap 22), which bars a legal owner from recovering land after 12 years of open, notorious, and uninterrupted occupation by another. Having occupied the land since 1985 for 33 years, the 3rd Defendant's right to the land has crystallized, and the Plaintifi's title is efiectively extinguished by operation of law. 44. The Plaintifi previously alleged fraud against the Defendants. However, as established in Ratnam v. Cumarasamy (1965) 1 WLR 8 and adopted by Kenyan Courts, the burden of proving fraud is higher than the standard balance of probabilities. Since the Plaintifi’s suit was dismissed, these allegations remained mere allegations with no probative value and no evidentiary weight. Final Orders 45. Having considered the unopposed evidence of the 1st and 3rd Defendants, the Court finds the Counterclaims highly meritorious and issues the following orders: i. A declaration is hereby made that the 1st Defendant is the lawful owner of L.R. No. 13537/233 and the Interested Party (3rd Defendant) is the lawful owner of L.R. No. 13537/232. ii. The Plaintifi is ordered to surrender the original Certificate of Title for L.R. No. 13537/99 (Thika Municipality) to the Court within 30 days for purposes of subdivision and issuance of separate titles. iii. The Plaintifi shall execute all necessary transfer forms, Land Control Board consents, and provide requisite identification (ID, PIN, Photos) to facilitate the registration of the two parcels in favor of the 1st and 3rd Defendants respectively within 60 days. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1499/eng@2026-03-11 7

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iv. In the event the Plaintifi fails to comply with orders (2) and (3) above, the Deputy Registrar of this Court is hereby authorized and mandated to execute all applications, surrender forms, transfers, and afidavits necessary to efiect the registration of the land in the names of the Defendants. v. The costs of both Counterclaims are awarded to the 1st Defendant and the Interested Party (3rd Defendant), to be borne by the Plaintifi. Orders accordingly. DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS THIS 11TH DAY OF MARCH 2026. ………….…………. MOGENI J JUDGE In the Presence of: Plaintifi – Absent Kibunja for the 1st Defendant 2nd Defendant – Absent Wambui holding brief for Mr. Wainaina for the 3rd Defendant (Interested Party) Mr. Melita - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1499/eng@2026-03-11 8

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