Mutwol v Mutwol & 4 others (Environment and Land Case 37 of 2020) [2026] KEELC 1876 (KLR)

Thousand (Kshs. 7,800,000/=) only and entered into an agreement for sale on 17th April 2007 at the law firm of M/S Yano & Company Advocates. She made the payment for the purchase price to the 4th Defendant and took possession of the subject parcel of land. Her further averment was that she took possession of the suit land in December 2007 and started farming it between the year 2008 and 2010. 4. She claimed further, since she was based in Mombasa, she entrusted the 1st Defendant to assist with processing the transfer of the subject land. She also entrusted her with the documentation to aid the transfer process. The Plaintifi pleaded further that the transfer process dragged but the 1st Defendant kept indicating to her that the process delayed due to a third party’s action by which he had lodged a caution against the subject parcel of land. 5. She pleaded further that in 2011, the 1st Defendant requested to be allowed to cultivate the land. The Plaintifi allowed her to do so. In January 2020 the Plaintifi notified the 1st Defendant of her intention to utilize the parcel of land, but to her surprise, the 1st Defendant became hostile to her. The hostility prompted the Plaintifi to check on the status of the land from the Lands Ofice. She was surprised to learn that the land had been fraudulently registered in the name of the 1st Defendant in the year 2011 without her knowledge or consent. She noted from the records in the lands ofice that the parcel of land was transferred into the name of the 1st Defendant without the requisite Land Control Board consent, hence bringing to bear either complicity or negligence on the part of the 3rd Descendant. 6. It was her further claim that she talked to the 4th Defendant who confirmed to her that she never signed transfer documents in favour of the 1st Defendant, hence the transfer documents used to obtain the title deed in favor of the 1st Defendant were wrought with fraud and forgery. It was the Plaintifi’s claim that she had justifiable grounds to believe that the 4th defend either colluded with the 1st Defendant or acted recklessly in transferring the suit parcel of land into her name in spite of the fact that she knew the Plaintifi was the legitimate purchaser. 7. It was the Plaintifi’s further claim that she conducted an oficial search on the subject parcel of land and discovered that it had been used as collateral to secure a loan facility from the 2nd Defendant. Further, at the time, the 2nd Defendant, the Agricultural Finance Corporation (AFC) was holding the original title deed with respect to the subject parcel of land as security and was likely to sell it in the event of default on repayment of the loan. 8. The Plaintifi averred further that she brought up the matter at the family level. In that level, when the 1st Defendant was pressed by the elders to give answers, she admitted to having irregularly transferred the property into her name to enable her to secure a loan facility with it. The Plaintifi tried to resolve the matter with the 1st Defendant amicably, but she declined to do so. 9. It was the Plaintifi’s claim that the 1st Defendant in collusion with the 2nd, 3rd and 5th Defendants fraudulently transferred the parcel of land to the 5th Defendant after the commencement of the instant suit in a bid to defeat or frustrate the substratum of the and father did fraud her. Further, the 5th Defendant now holds a title deed over the subject parcel of land which was obtained through fraud and without following due process, hence it is a nullity. She averred further that the 5th Defendant did not pay any consideration for the suit parcel of land and the transfer into his name was purely aimed to knowingly perpetuate fraud hence he does not qualify for the protection of an innocent purchaser for value. 10. Her further claim was that collusion and fraud on the transfer of the suit parcel of land to the 5th Defendant was evident from the fact that the Kenyan Revenue Authority (KRA) details refiected at the Lands Ofice purportedly used to afiect the payment of stamp duty belonged to another person namely, Alice Mutenyo Webala who has since distanced herself from impugned transaction. Further, there was https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 2

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no Land Control Board meeting to approve the transfer of the suit land to the 5th Defendant and no valuation for stamp duty, and the 5th Respondent did not pay the Capital Gains Tax. She pleaded further that the Defendant’s actions had infringed her proprietary rights occasioning her extensive losses taking into account the fact of appreciation of land. 11. The Plaintifi prayed for the following reliefs: 1. A declaration that the subject passed along land being Chepsiro/Kibuswa Block 1/ Kelchinet/137 belongs to the Plaintifi and the transfer process leading to the issuance of a title deed in the name of the 1st and 5th Defendants is irregular and illegal. 2. A nullification or cancellation of the transfers and title deeds issued favour of the 1st and 5th Defendants with respect to land title number Chepsiro/Kibuswa Block 1/Kelchinet/137 and issuance of a title deed in the name of the Plaintifi with respect of the said parcel of land. 3. A permanent injunction restraining the defendants and their agents either severally or jointly from interfering with the Plaintifi’s ownership, possession, occupation and use of the subject parcel of land. 4. Costs of this suit. 12. The 1st Defendant filed a Statement of Defence dated 10th July 2020 which she amended on 17th February 2022 vide a 1st Defendant’s Defence to the Amended Plaint. She averred that the 3rd Defendant was not a legal person or institution capable of being sued. She admitted Paragraph 5A and 5B of the Amended Plant to the efiect the then 4th Defendant resided in Trans Nzoia County and the 5th Defendant was a resident of Mombasa. She denied all the paragraphs 6A, 7A, 8A, 9A, 10, 11, 12, 13, 14 and 15 of the Plaint whose contents were, in summary, that the Plaintifi bought the suit land in the year 2007 from the 4th Defendant; the 1st Defendant introduced the Plaintifi to the 4th Defendant; the 4th Defendant and the Plaintifi entered into an agreement of sale on 17th April 2007; the Plaintifi made payment of the purchase price as agreed with the 4th Defendant and took possession of the land; the Plaintifi had trusted her with assisting in the process of transfer and the documentation with respect to the transfer process; the 1st Defendant kept promising that the land would be transferred but there was a delay due to a caution lodged by a third party; the Plaintifi took possession of the land between 2008 and 2010; in 2011 she requested the Plaintifi to allow her to utilize the land, and in January 2020, the Plaintifi notified her of intention to utilize the land. She put the Plaintifi to strict proof of the allegations. 13. The 1st Defendant specifically traversed in Paragraph 5 of the Defence to the Amended Plaint parts regarding the above allegations and added further traversed that the agreement exhibited by the Plaintifi was genuine; she further denied she made any promise to the Plaintifi; a representation or commitment to the Plaintifi regarding the transfer process; there was any basis for the transfer of the suit parcel of land to the Plaintifi from the 4th Defendant; the Plaintifi was ever in possession of the suit land; the Plaintifi ever farmed or undertook farming activities on the parcel of land in 2008, 2009 and 2010 or any other time; the request by the 1st Defendant to the Plaintifi could have been tenable; and the Plaintifi was entitled to take possession and use of the parcel of land. 14. Further, the 1st Defendant denied paragraphs 16, 17, 18, 19, 20, 21, 22, 23, 24A - 24E and 25 of the Ament Plaint whose contents were that the suit land was fraudulently transferred to the name of the 1st Defendant in the year 2011 without the Plaintifi’s knowledge; the search in the lands registry ofice showed that the land was transferred without the Land Control Board consent; the 4th Defendant never signed transfer documents in favour of the 1st Defendant; an oficial search showed that the land was used as collateral to secure a loan facility with the 2nd Defendant; the 2nd Defendant was then https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 3

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holding the original title; the matter was discussed with the family and the 1st Defendant admitted to having irregularly transferred the property to her name to secure the loan; the parties tried to resolve the matter; the 1st Defendant was intending to sell the land to an innocent purchaser; the 1st Defendant took advantage of the trust between her and the Plaintifi. 15. The 1st Defendant specifically denied the assertions that the Plaintifi’s demand on the suit parcel of land was justified; the 1st Defendant was expected to accede to the Plaintifi's demands; the parcel of land was fraudulently transferred to her; the transfer of the suit parcel to the 1st Defendant required the consent and knowledge of the Plaintifi; the transfer of the suit land was unaccompanied with a consent of the Land Control Board; there was any wrongdoing or complicity on the part of the 1st Defendant and the 3rd Defendant; that the Interested Party never executed transfer documents for the suit land in favor of the 1st Defendant; the transfer of their land to the 1st Defendant was obtained through fraud or forgery; the 1st Defendant admitted to having irregularly obtained transfer of the suit land into her name; the purpose of the transfer of the suit land to the 1st Defendant’s name was the need to obtain credit facilities or a loan; the 1st Defendant was intent to dispose of the suit land or any part thereof; the 1st Defend and had taken an unfair advantage of her relationship with the Plaintifi; the 1st Defendant was ever a trustee of the Plaintifi nor had the Plaintifi been a beneficiary of the suit land; and the Plaintifi had been defrauded of the suit parcel of land. 16. She pleaded that the Plaintifi was not entitled to the reliefs she sought. Further, the Plaintifi's claim was intended to defraud the 5th Defendant of her property. The suit land was acquired by the 1st and 5th Defendants regularly, procedurally and illegally. The Plaintifi’s claim was legally untenable. The suit was time barred under the Limitation of Actions Act. The entire suit was incompetent and unsustainable. She prayed for the dismissal of the suit with costs to her. 17. The 2nd Defendant entered Appearance on the 5th of March 2021. It was dated 10th December 2020. It also filed on 5th March 2021 a Statement of Defence dated the same date Appearance. It averred that it was a stranger to all paragraphs 6A to 19 of the Amended Plaint. In response to paragraph 20 of the Amended Plaint the 2nd Defendant averred that the 1st Defendant and itself entered into an Agreement dated 31st May 2011 wherein it advanced the 1st Defendant a sum of Kenya Shillings Two Million (Kshs. 2,000,000/=) only for purposes of purchasing 135 heads of cattle. 18. It was its further claim that the 1st Defendant ofiered the title deed to the suit land as security. The loan was to be repaid within 3 years. Prior to advancing the loan to the 1st Defendant the 2nd Defendant conducted a search and confirmed that the 1st Defendant was the proprietor of the suit land. A first ranking charge was registered on 6th June 2020 in favor of the 2nd Defendant in the sum of Kshs. 2,000,000/=. No objection was raised to the registration of the charge. It was done in good faith. The 2nd Defendant further conducted a search to ensure that the charge had been registered in its favor. The loan had since been fully repaid. 19. The 2nd Defendant averred further that it was a stranger to paragraphs 21, 22, 23, 24 and 25 of the Amended Plaint. It pleaded further that the registration of the charge of the suit property was done within the confines of the law. The 2nd Defendant performed due diligence and confirmed that the 1st Defendant was registered the proprietor of the suit land. The 2nd Defendant had no otherwise than to believe the information and evidence provided by the by the 1st Defendant since it was verified by the records held by the 3rd Defendant. The Plaintifi did not raise any objection to the registration of the charge and neither did the Plaintifi bring the averments in the Plaint to the knowledge of the 2nd Defendant. The 2nd Defendant had since prepared the relevant discharge of charge documents for the said property and given them to the 1st Defendant as required by law. The 2nd Defendant admitted the jurisdiction of the Court and that there was no suit pending between the parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 4

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20. Without prejudice to the foregoing the 2nd Defendant prayed to be removed from the suit since it did not have any interest beyond discharging the suit property. It averred that the claims against it were an abuse of the process of the court. It prayed for the suit to be dismissed with costs to it. 21. The 3rd Defendant filed its Statement of Defence dated the 20th April 2021. It amended it upon service of the Amended Plaint by filing its undated the 3rd Defendant’s Amended Statement of Defence on 14th March 2022. It admitted the descriptive parts of the Amended Plaint. It averred that it was a stranger to the contents of paragraphs 6A, 7A, 8A, 9A, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19A, 19B, 20, 21, 22, 23 and 25 of the Amended Plaint and put the Plaintifi to strict proof thereof. Further, it pleaded, in response to paragraphs 24A, 24B, 24C, 24D and 24E in addition to the previous and other paragraphs in the Amended Plaint, that the suit land was transferred in the name of the 1st Defendant on or before 21st April 2011 and a title deed issued to her on the same date. It was subsequently transferred and registered in the name of Meshack Kimutai Keter (now the 5th Defendant) on 19th of June 2020. The transfer and registration of the 1st Defendant and subsequent transfer and registration of Meshack Kimutai Keter, the 5th Defendant, was lawfully and procedurally done as provided for by the law and carried out in good faith based on documents duly executed and submitted to the 3rd Defendant. 22. It averred, in the alternative, that if there was any fraud, irregularity or illegality in regard to the transfer and registration of the suit land to the 1st Defendant and subsequently to Meshack Kimutai Keter then the 3rd Defendant was not a party to it and had no knowledge of the same. It invited the Plaintifi to strict proof of all the allegations denied above. It also denied the contents of paragraph 26 regarding the jurisdiction of the court. It averred that the Plaintifi did not have a cause of action against it. Lastly, the 3rd Defendant pleaded that the suit was fatally defective, incompetent and bad in law, for it ofiended the Civil Procedure Rules and it would, at the earliest opportunity, apply to have it struck out or dismissed with costs. 23. The 1st Defendant filed a List of Documents dated 31st January 2021. She annexed to copies of 10 documents. Namely: - 24. 1. Certified copy of the register to land reference Chepsiro/ Kibuswa Block 1/ Kelchinet/137. 2. Transfer form from Sarah C Busienei to the 1st Defendant. 3. Consent to transfer from Sarah C. Busienei to the 1st Defendant. 4. Land purchase agreement between the 1st Defendant and the Interested Party. 5. Transfer form from the 1st Defendant to Meshack Kimutai. 6. Consent to transfer from the 1st Defendant to Meshack Kimutai. 7. Application for consent of the Land Control Board. 8. Copy of title to the suit land issued on 21st April 2011. 9. Certificate of oficial search for the suit land. The 4th and 5th Defendants entered Appearance difierent dates and filed Statements of Defence dated the same date of 16th March 2022 in response to the Amended Plaint. The 4th Defendant filed hers on 21st March 2022 and the 5th Defendant on 4th May 2022 respectively, The Statements of Defence to the Amended Plaint were filed by the same law firm, and they were nearly the same in content save for one or two particulars that were in reference to the specific party. This Court, thus, details the common parts of the Statements of Defence as one, and needs not rehash the same separately. But it will single out the specific averments unique to each party, after giving the common ones. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 5

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25. The 4th and 5th Defendants averred, separately, that the 3rd Defendant was not a legal person or institution capable of being sued. They admitted Paragraph 5B of the Amended Plant to the efiect the then 4th Defendant resided in Trans Nzoia County and the 5th Defendant was a resident of Mombasa. They denied all the paragraphs 6A, 7A, 8A, 9A, 10, 11, 12, 13, 14 and 15 of the Amended Plaint whose contents were, in summary, that the Plaintifi bought the suit land in the year 2007 from the 4th Defendant; the 1st Defendant introduced the Plaintifi to the 4th Defendant; the 4th Defendant and the Plaintifi entered into an agreement of sale on 19th April 2007; the Plaintifi made payment of the purchase price as agreed with the 4th Defendant and took possession of the land; the Plaintifi had trusted her with assisting in the process of transfer and the documentation with respect to the transfer process; the 1st Defendant kept promising that the land would be transferred but there was a delay due to a caution lodged by a third party; the Plaintifi took possession of the land between 2008 and 2010; in 2011 she requested the Plaintifi to allow her to utilize the land, and in January 2020, the Plaintifi notified her of intention to utilize the land. They put the Plaintifi to strict proof of the allegations. 26. They specifically traversed the above allegations and added further traversed that the agreement exhibited by the Plaintifi was genuine; the Plaintifi the suit parcel of land in 2007 or any other time; the Plaintifi bought the suit land from the 4th defendant; the 1st Defendant introduced the Plaintifi to 4th defendant; the Plaintifi and the 4th Defendant entered into a sale agreement in respect of the suit land on 17th April 2007; the Plaintifi paid consideration to the 4th Defendant; The Plaintifi and trusted the 1st Defendant with documents to efiect a transfer of the suit parcel of land to the Plaintifi; a representation or commitment to the Plaintifi regarding the transfer process; there was any basis for the transfer of the suit parcel of land to the Plaintifi from the 4th Defendant; the Plaintifi was never in possession of the suit land; the Plaintifi never farmed or undertook farming activities on the parcel of land in 2008, 2009 and 2010 or any other time; the request by the 1st Defendant to the Plaintifi could have been tenable; and the Plaintifi was entitled to take possession and use of the parcel of land. 27. Further, the two respective Defendants denied paragraphs 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of the Plaint whose contents were that the suit land was fraudulently transferred to the name of the 1st Defendant in the year 2011 without the Plaintifi’s knowledge; the search in the lands registry ofice showed that the land was transferred without the Land Control Board consent; the 4th Defendant never signed transfer documents in favour of the 1st Defendant; an oficial search showed that the land was used as collateral to secure a loan facility with the 2nd Defendant; the 2nd Defendant was then holding the original title; the matter was discussed with the family and the 1st Defendant admitted to having irregularly transferred the property to her name to secure the loan; the parties tried to resolve the matter; the 1st Defendant was intending to sell the land to an innocent purchaser; the 1st Defendant took advantage of the trust between her and the Plaintifi. 28. The said Defendants specifically denied the assertions that the Plaintifi’s demand on the suit parcel of land was justified; the 1st Defendant was expected to accede to the Plaintifi's demands; the parcel of land was fraudulently transferred to her; the transfer of the suit parcel to the 1st Defendant required the consent and knowledge of the Plaintifi; the transfer of the suit land was unaccompanied with a consent of the Land Control Board; there was any wrongdoing or complicity on the part of the 1st Defendant and the 3rd Defendant; the 4th Defendant never executed transfer documents for the suit land in favor of the 1st Defendant; the transfer of their land to the 1st Defendant was obtained through fraud or forgery; the 1st Defendant admitted to having irregularly obtained transfer of the suit land into her name; the purpose of the transfer of the suit land to the 1st Defendant’s name was the need to obtain credit facilities or a loan; the 1st Defendant was intent to dispose of the suit land or any part thereof; the 1st Defendant had taken an unfair advantage of her relationship with the Plaintifi; the 1st https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 6

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Defendant was ever a trustee of the Plaintifi nor had the Plaintifi been a beneficiary of the suit land; and the Plaintifi had been defrauded of the suit parcel of land. 29. The 4th and 5th Defendants denied in their separate Defences that there was collusion between the 1st, 2nd 3rd and 5th Defendants in the acquisition of the title to the suit land; the 5th Defendant’s acquisition of the suit parcel of land had anything to do with a suit which had not been filed; the acquisition of the suit parcel of land by the 5th Defendant was calculated at defeating the Plaintifi’s claim or defrauding the Plaintifi or frustrating the substratum of the of the suit; the 5th Defendant obtained the title to the suit parcel of land fraudulently and without adhering to due process; the 5th Defendant’s acquisition of the suit land was a nullity; the 5th Defendant acquired the suit parcel of land without paying valuable consideration; the 5th Defendant’s right to the suit land is unprotected; the 5th Defendant is not an innocent purchaser for value; the use of another person’s KRA details to pay stamp duty defeats the title; there was no Land Control Board meeting to approve the transfer of the suit land to the 5th Defendant; there was no valuation prepared for purposes of paying stamp duty; the 5th Defendant was under any duty to pay capital gains tax; the Plaintifi had a proprietary right over the suit land; the Plaintifi had sufiered any loss attributable to the 5th Defendant. 30. The 4th and 5th Defendants then pleaded in their respective Defenses that the 5th Defendant was an innocent purchaser for value without notice. The 5th Defendant conducted due diligence before purchasing the suit land. His dealings with the 1st Defendant was above board. There was nothing in the manner in which the 1st and 5th Defendants acquired the suit land which could defeat their title to it. The Plaintifi was disentitled to the relief she claimed. Her claim was intended to defraud the 5th Defendant of his property. The suit land was acquired by the 5th Defendant regularly procedurally and legally, and the Plaintifi’s claim was untenable. Lastly, they pleaded that the Plaintifi’s claim was time barred under the Limitation of Actions Act and the suit was both incompetent and unsustainable. They prayed the suit be dismissed. 31. The 4th and 5th Defendants filed a joint List of Documents dated 28th July 2022 on 4th April 2023. Again, the 1st and 5th Defendants filed a separate List of Documents dated 12th September 2024. But the 4th Defendant filed a Notice of Chance of Advocates dated 31st July 2023 on 07th August 2023. 32. The 1st, 4th and 5th Defendants filed a joint List of Documents dated 28th July 2022 on 03rd March 2023. B. Evidence 33. The Plaintifi listed ten (10) witnesses to call, besides herself, for proof of her case. However, at the hearing, she testified in her behalf as PW1 and called one other witness. In her written witness statement dated 29th April 2021, which she adopted as her evidence in-chief, the Plaintifi stated that the 1st Defendant and her were first cousins since their fathers were biological brothers. According to their culture, they regarded each other as sisters. 34. In 2007 the 1st Defendant informed her that there was somebody selling land measuring about 50 acres at Chepsiro in Trans Nzoia County. She got interested in the property and the 1st Defendant introduced her to the owner, Sarah Cheptengeny Busienei, the Interested Party (now the 4th Defendant). Sarah confirmed that she was the owner of the land parcel number Chepsiro/ Kibuswa Block 1/ Kelchinet/137 measuring 20.2 hectares. She showed her the original title deed which was in her name and confirmed that she was selling the parcel of land. They entered into negotiations for the transaction and eventually agreed at a sum of Kenya shillings 155,000 per acre, cumulatively being Kenya Shillings is 7,750,000/=. There was an additional sum of Kenyan shillings 50,000/= for the developments on the land, bringing a total of Kenyan shillings is 7,800,000/=. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 7

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35. The Plaintifi agreed with the vendor to have a formal sale agreement executed before an advocate. They visited the ofices of Advocate Charles K. Yano on 14th July 2007 to prepare and execute the agreement. They met the Advocate Charles K. Yano (now Honorable Justice Charles K. Yano) who knew them well. They explained to him the nature of the transaction and the terms of agreement. He prepared the agreement of sale and gave it to them to review it. Then they signed it in the presence of the Advocate and one Alex Chepsiror, Sylvester Mutwol and Emmy J. Mutwol, the 1st Defendant, and Alex Chepsiror who is a son to the vendor, the interested party. Sylvester Mutwol was the Plaintifi's father, now deceased. 36. The Plaintifi added that she paid a sum of Kenya Shillings 4, 000, 000/= at the execution of the agreement as a deposit of the purchase price. Subsequently, she added a sum of Kenya shillings 3,800,000/=, both payments being made to the Interested Party. At the time of the transaction and during the intervening period she was stationed in Mombasa. She had limited time to pursue the transfer process and entrusted her cousin, the 1st Defendant, to assist with it. She left the 1st Defendant with the original of the agreement, her documents and the vendor’s documents to facilitate the transfer. The process dragged on, but the 1st Defendant kept promising that the process was on course. She cited the existence of a Caution placed on the land by one Mary Muthoni as the reason for the delay. She did not suspect anything fishy at the time because of the trust she had in her. 37. She stated further that she took possession of the land in 2007 December. He used the land in the years 2008, 2009 and 2010. In 2011, the 1st Defendant requested her to use the land, and she allowed her to cultivate it until the end of the year 2019. In January 2020, she informed the 1st Defendant of her intention to use the land for cultivation. Surprisingly, the 1st Defendant became hostile and declined to voluntarily hand over possession to her. The 1st Defendant’s attitude prompted her to carry out an oficial search at the County Lands Ofice on 7th May 2020. To her shock, she discovered that the 1st Defendant was registered as the owner of the parcel of land. The records at the ofice of Lands indicated that she, the Defendant, registered herself as the proprietor on 21st April, 2011 and a title deed was issued to her on the same date. She already had used the property as security for a loan from the Agricultural Finance Corporation, the 2nd Defendant. 38. She stated further that the registration of the property in the name of the 1st Defendant was fraudulent and irregular. She, the Plaintifi, talked to the Interested Party (the 4th Defendant) before commencing the instant suit. The 4th Defendant confirmed to her that she had not transferred the land to the 1st Defendant. She also confirmed that she executed her transfer in favour of the Plaintifi. She added that it was inexplicable how then the parcel of land ended up in the name of the 1st Defendant. She added that the fraudulent transfer of the parcel of land could only have been possible due to connivance or negligence on the part of the County Land Registrar, the 3rd Defendant. Further, the 1st Defendant took advantage of the trust she had in her and breached it to gain the parcel of land in an irregular manner. Also, she may have taken advantage of the age of the Interested Party to mislead her into executing a transfer form instrument in her favour. The 1st Defendant’s afinity to fraud could be gleaned from the demeanor in the manner that she made contradicting statements before the honorable Court. 39. Lastly, she stated that in view of the relationship between she and the 1st Defendant, they tried to resolve the matter in an amicable manner. Unfortunately, the 1st Defendant declined to transfer back to the parcel of land to the Plaintifi's name as initially thought. That was why she sought the intervention of the court in order to get her land back. 40. The Plaintifi filed a List of Documents dated 29th February 2021. He annexed to it copies of four documents, being: - https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 8

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1. A copy of the title deed in the name of Sarah Cheptengeny Busienei. 2. Agreement for sale dated 17th April 2007. 3. Certificate of Oficial site dated 27th May 2020. 4. Green Card extract dated 3rd June 2020. 41. During her oral testimony PW1 produced as P. Exhibits 1, 3 and 4, a copy of the Title Deed for the suit land, being parcel No. Chepsiro/Kibuswa Block 1/ Kelchinet/137 in the name of Sarah Cheptengeny Busienei, the 4th Defendant, the certificate of oficial search, and the original of the green card for the parcel of land. She marked as PMFI-2 the copy of the Agreement for Sale dated 17th April 2007. 42. In cross-examination by the 1st and 5th Defendant’s counsel, PW1 admitted that she did not have any document to show she gave Emmy (1st Defendant) any documents relating to the transaction. Also, that she was aware of the 1st Defendant’s claim that bought the land. It was her evidence that the purchase agreement was prepared in Kitale and was given one copy while the seller (4th defendant) was given another copy. She added that her deceased father, a witness then, was given a photocopy while another copy remained in the Advocate’s ofice. 43. PW1 added that she endeavored to get one from Justice Yano’s former ofice but when she went there she found another lawyer in the firm. She did not ask the lawyer to give her a copy. 44. Her further testimony was that the land was registered in the name of Sarah (the 4th defendant) in 2007. She stated that in her documents she indicated that Sarah signed the documents in favour of the 1st Defendant. 45. When referred to an afidavit sworn by the said Sarah on 14/7/2020 and filed on 16/7/2020, the confirmed that Sarah deponed at paragraph 3 that she sold the land to the 1st Defendant, Emmy Mutwol, on 17/4/2007. Further, that at paragraph 4 she added she allowed the 1st Defendant to take possession and she did and had been in occupation, as deponed at paragraph 5. Further, that the 4th Defendant stated that all procedures were followed to transfer the land to 1st Defendant. She acknowledged that at paragraph 10, the 4th Defendant deponed that her (the Plaintifi’s) agreement was a forgery and she never sold to her any land. 46. She denied quarrelling with Sarah in 2020. She stated she would call Justice Yano as her witness although she was unaware if he had recorded a statement in favour of the 1st Defendant. She was not aware of any complaint lodged by Sarah (4th defendant) with the police against the 1st Defendant. She was unaware of any document examination report by a document examiner that the documents held by the 1st Defendant were not genuine. Neither was she aware of any criminal case against the 1st Defendant. 47. Regarding use of the land and documents from the AFC or the National Cereals Produce Board (NCPD.) or area Chief that she had ever used the land, she admitted she did not have any. She also did not have any document to show that she handed over possession of the land to the 1st Defendant. 48. Of the 5th Defendant, Meshack, she stated she knew him on 23/7/2020. She admitted he filed a Defence claiming he bought the land, and did not know her. But she knew Alex Chepsiror, the son to the 4th defendant. He was listed as a witness to the agreement she had. She was unaware he renounced the agreement by stating he was not a witness. 49. About an Afidavit sworn by Alex Chepsiror, the son to 4th defendant, on 14/7/2020 and filed on 16/7/2020, she admitted he deponed in paragraph 6 that the only person he knew who purchased land https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 9

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from his mother was the 1st Defendant. Further, he disowned the agreement she claimed was done by her. She admitted that in her Agreement she alleged Alex witnessed it, but she did not list him as her witness yet she did not have any difierences with him. 50. Asked about the afidavit sworn by Sarah on 14/7/2020 she confirmed the 4th Defendant confirmed she only knew Emmy (the 1st Defendant). That the 4th Defendant stated she procedurally and voluntarily transferred the land to Emmy and the green card of the land confirms she transferred the land as stated. Further, when she sold the land it was in her name. 51. She stated that the transfer form had the PIN, passport and copy of the ID attached to it. She confirmed there was a letter of consent of the Land Control Board in favour of Emmy, and there was an application for consent for transfer of the land, and the agreement between Sarah and Emmy. She had not interacted with Meshack before filing the instant case, but she interacted with 4th Defendant who did not sufier any incapacity. 52. She admitted the agreement between the 1st and 4th Defendants showed the land was sold on 17/4/2007, yet the instant case was filed in 2020. She admitted that between April, 2007 and April, 2019 were 12 years. She added that the 4th Defendant and her son confirmed that what they said in their statements as being same in their afidavits. 53. Regarding the possibility of a double sale by same person PW1 stated that for her it was not unusual as it could happen. She admitted the agreements she and the 1st Defendant had Emmy were made the same day before the same lawyer and it was not an unusual occurrence. 54. She added that she produced her Barclays Bank Account statements to show she paid the seller. 55. She stated that as at 2020 when she filed the case the registered owners were AFC and Emmy Mutwol jointly, with AFC as chargee. She admitted that 4th Defendant had not filed a complaint with the police and she was unaware of any criminal case over the parties. 56. She added she used the land at one time when she planted the maize but she did not deliver any to the Cereals Produce Board. She did not produce any document to show she harvested maize. 57. On cross-examination by the State Counsel for the 3rd Defendant, she admitted she and the 1st Defendant were cousin sisters from the paternal side. They tried to resolve the matter at home but could not agree. Her evidence was that there was collusion between the 1st and 3rd defendant to transfer the land to the 5th Defendant. 58. PW1 added that the Land Registrar was not a party between the alleged agreement between her and Sarah (4th Defendant) and the one between Emmy and Sarah. Further, the Land Registrar was not aware that she handed over her transaction documents to 1st Defendant for safe keeping. 59. She added that by the time she purchased the land there was a caution placed on the parcel of land by Mary Muthoni who was claiming a boundary issue. She knew of the same after entering the agreement with Sarah. She was unaware whether the caution finally removed. 60. She added that the property was first registered in the name of Lillian Wangari Mbugua on 14/1/1997 who transferred the land to Sarah Busienei on 11/5/2006. Then a caution was registered on 4/6/2007 by which time she had already purchased the land. Thus, by the time she bought the land it had no encumbrance. The caution was withdrawn on 13/6/2007. 61. She admitted the green card showed no entry in her favour between when the land was registered in in the name of Sarah on 11/5/2006, and 13/6/2007 when the caution was withdrawn after which the land was transferred to Emmy Mutwol on 21/4/2011. She stated that the caution was placed because https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 10

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she had not completed the purchase. But she did not inform the Land Registrar that she had an interest in the land. Thus, the Land Registrar could not have known she had an interest in the land. 62. PW1 testified further, that collusion occurs when two conspiring parties to some act to defeat the interest of another. But in her case, the Land Registrar did not know her. That collusion was only between Sarah and Emmy Mutwol alone. 63. She added that the Land Registrar’s actions usually come at the tail end of transactions. Once instruments of registration were presented on behalf of Emmy Mutwol, the Land Registrar had no reason for not to register the transaction. There was no caution against the registration. 64. In her testimony, PW1 added that the transfer between the 1st Defendant and the 5th was on 19/6/2020. At that time there was no entry of a caution, restriction or court order that restrained the Land Registrar from transferring the land to the 5th Defendant. She added, by that time she had already filed the instant case. The Registrar of Lands relied on falsified documents to transfer the land to the 5th Defendant. Her further testimony was that by 19/6/2020 the title was still charged with the AFC since there were no discharge documents and had no receipt to show the discharge. 65. PW1 added that there was a group of surveyors who were discharging their land on 19/6/2020 and it was their receipt that was used. Her testimony was that stamp duty is paid upon purchase of land. The 5th Defendant did not pay for it. She added that one of the Land Registrar used the receipt of Alice Webala to transfer the land. She added that there was no proof of fees payment for the Land Control Board. The transfer to the 5th Defendant was on 19/6/2020 and she filed case on 29/6/2020 while the order injunction was issued on 30/6/2020, by that date the property was registered in name of the 5th Defendant. 66. PW1 changed her testimony to stated that by the time of transfer to 5th Defendant on 19/6/2020, she had not filed the instant case. Further, that the order of 30/6/2020 was received and registered by the Land Registry on 10/7/2020. That the Land Registrar so while acting on documents filed. 67. The Plaintifi added that the transfers to Emmy and to Meshack were done when there existed a charge to AFC. The charge was for Kshs. 2 million, and made on 16/6/2011. On further crossexamination she admitted the discharge of charge was made on 18/6/2020 while the transfer to Meshack was on 19/6/2020 hence the transfer to Meshack after the land was discharged. Also, the transfer was accompanied with passport photos of the 1st Defendant and Meshack and a receipt marked as 3DMFI-3, reference No. 5486927 for Kshs.1000/= was paid by Meshack. Also, there was an application for the consent of the Land Control Board and a letter of consent dated 16/6/2020. The land was valued on 18/6/2020 at Kshs. 7.8M. The value was similar to the one in 2007. Accompanying the transfer also was the KRA PIN certificate of Emmy, her ID and that of Meshack. The payment of Kshs. 150,000/= for stamp duty was made by Alice Mutenyo Webala under her PIN No. A010351802U. It was made through a receipt for Co-operative Bank. She stated that Alice should not have used her PIN to transfer the land. The transferor and transferee were Emmy Mutwol and Meshack K. Keter respectively, PW1 admitted that all documents for transfer of the land from Emmy to Meshack were in existence. 68. She added that the Land Registrar should have verified the receipt to confirm that it was in the name of Alice and not transferred the land. She added that Alice complained about the receipt and she would testify on it but no one had been arrested and charged over it. 69. PW1 admitted that neither the KRA nor the Land Registrar had not complained that there was no stamp duty paid. She added that the Land Registrar had not known all along and there could be no collusion on the issue between the Land Registrar and others against me. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 11

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70. On further cross-examination she admitted she knew the 4th Defendant well through the 1st Defendant. She added she made her first payment to the 4th Defendant through a Banker’s Cheque issued by Barclays Bank while she made the other instalments through Banker’s Cheques and in cash at times. The last one was in January, 2008. She met Alex, the son to Sarah, once in 2007 at the execution of the agreement. He swore his Afidavit on 14/7/2020 but she was not present. 71. She bought the land when she resided in Mombasa but Emmy was in Eldoret. She permitted Emmy to use the land from 2011 to 2012 but did not authorize Sarah to transfer it to Emmy. Emmy did not produce any evidence of payment of money to Sarah over the land. PW1 did not receive the original title deed from Sarah. She could not know how Sarah surrendered it to Emmy. 72. On re-examination she stated that the payment slip for the stamp duty was fraudulent. She explained that it was because it showed the tax payer was Alice Webala and not either Emmy Mutwol or Meshack Keter. 73. She added that Webala stated that on that date she was doing Succession for their land and not in respect of the matter herein. 74. PW1 summed a what she regarded as number is anomalies. Regarding the letter of consent from the L.C.B, she added that the discharge having been made on 18/6/2020 yet the consent given earlier meant the Board sat while there was a charge over the land. She said this was an anomaly. She added that her claim against the Land Registrar was over the transaction between Emmy and Meshack. She took issue with the transaction timings, being when the L.C.B. gave consent while the title was under charge and issued, and also the use of other people’s receipt for issue. Again, her complaint was that everything was done within one day, and the valuation of the land being Kshs.7.8M yet she paid the same amount in 2007. 75. Regarding the twelve-year period, PW1 stated that her complaint against the defendants was that her land was not procedurally transferred. It was fraudulently transferred in April, 2011. She added, from 2011 to the time of filing suit 12 years had not elapsed. Further, when she discovered the fraud she talked with (Hon.) Justice Yano about it. She added that the 4th Defendant told her she did not know what the afidavits contained. 76. Alice Mutenyo Webala a farmer resident in Kongoni Scheme testified as PW2. She adopted her written witness statement dated 12/7/2022 as her evidence in-chief. In it she stated that her identity card number was 1934653 and her career PIN A010351802U. She added that regard the KRA payment slip bearing registration number 2020200001486876 used for a paying stamp duty for the suit parcel of land and the bank deposit slip bearing reference number 017220115830 issued by the Corporate Bank of Kenya on 20th June 2020 were strange to her. 77. She added in the statement that she had not made any payment for stamp duty to the Kenya Revenue Authority with regard to the suit parcel of land or any other parcel of land. Further, the persons indicated in the payment slip as transfer and transfer being Mutwol Jepkemoi Emmy and Meshack Kimutai Keter were unknown to her. She had never made a transaction or in dealing with them. She never gave consent to both or any other person to make payments to the Kenya Revenue Authority under her name. She did not know both how both obtained the personal information to enable them generate a payment slip under her name but it must have been fraudulent. 78. She urged the Court to have the County Land Registrar of Transit Nzoia explain how he received the payment and why he accepted it to efiect a transfer whereas the same related to a stranger to the transaction. She added that he must have been working in collusion with the parties to the alleged https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 12

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transaction since due diligence would have required him to counter check the payment with her. She added she had reported the matter to Matunda Police station on 21st September 2020 under OB28/21/9/2020 and the police promised to carry out investigations appropriately. She was waiting their action. She added that she had made the witnesses statement voluntarily, without coercion or undue infiuence and with the sole intention of getting the record straight in respect of the fraudulent transaction between Emmy Mutwol and Meshach Keter. 79. She was cross examined immediately after the adoption. On cross-examination she stated that she did not know about the payment for the transfer of the land. She was called to the police but she was the complainant about the suit land. She neither knew the suit land nor the persons involved in the transfer. She also did not know the Land Registrar in Kitale. She did not know anything that went on in the Lands Ofice. She denied being called to any government ofice over any allegation of loss of revenue or tax. She had never gone visited the bank to know whether payments were made. 80. She admitted that Phyllis (the Plaintifi) was the one who called her to tell and informed her about the land in Chepsiro (suit land). She added she did not know her KRA PIN. She did not know the 1st Defendant or Meshack Kimutai Keter (the 5th Defendant). 81. She stated the family had a Succession matter in court in respect of her husband in 2018 when it ended. They paid tax in 2018 and started succession. Its title deed was closed. She was the administrator of the Estate. Each buyer was given their parcel of land. 82. She stated the Advocate asked them to pay Kshs. 40,000/=. She could not tell if the fees to the KRA during Succession matters is Kshs. 200/=. She did not know if the Kshs. 150,000/= was for the Succession case as alleged by Phyllis (Plaintifi). She did not know if the Kshs. 150,000/= was paid at the bank. Upon being referred to 3rd DMFI-10, the payment for the stamp duty, she denied knowledge of the same. She added she never gone to any bank to know who paid the money. She stated she never went to the Co-operative Bank about that payment. She denied ever complaining to the police that someone paid KRA using her PIN. She was only called by Phyllis to the police. PW2 denied knowing 4th defendant. She never knew the outcome of the police investigation she was called over. 83. She denied knowing Phyllis. She added that Phyllis had brought her to court, alleging that she had bought her land. She was shocked. They met in court. She added that she asked the Plaintifi how as a Bukusu she would buy a Nandi’s land. 84. On further cross-examination she admitted that the Plaintifi, Phyllis, usually carried her motor vehicle from home to court. Further, the Plaintifi knew her home and had been going for her there. She stated that it would be a lie if anyone claimed she colluded with the Land Registrar to defraud Phyllis land. 85. On re-examination PW2 denied knowledge of both the 1st and 5th Defendant. She also did not know about the suit land or even where Chepsiro (where the land is situate) is. She added that when she was called to Matunda Police Station was when she was told someone had used her KRA PIN to say she bought land. She said someone stole her papers to use. She stated that the only transaction she did at the Lands Ofice was to give people titles to their parcels in Kongoni Scheme and not in relation to Chepsiro. She denied ever going to Co-operative Bank to make any payments there. 86. That closed the Plaintifi’s case. 87. The Defence cases began with DW1, Sarah Chetengeny Busienei, a resident of Kibuswa, testifying first. She stated that knew both Phyllis Mutwol and Emmy Mutwol. She knew them in 2005 or 2006. She knew Emmy earlier than Phyllis. She adopted her written Witness Statement dated 28/7/2023. In the Statement she stated that she was the 4th defendant. She knew Phyllis Jerotich Mutwol and Emmy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 13

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Jepkemoi Mutwol. In 2007 she was contacted by Emmy Mutwol looking for land. They met and she showed her the land. Emmy informed her that she was looking for land specifically for her sister who was in Mombasa to purchase. Emmy went with Phyllis on a later date to her home. They agreed at the purchase price of Kshs. 155,000/= per care. 88. Later they went to it to draft the agreement at the lawyer’s ofice. The ofice was Yano and Company advocates. Phyllis and Emmy were present. The agreement was done on 17th April 2007. She was the seller while the Phyllis was the purchaser. Emmy was a witness. The money was paid by Phylis to her account. The agreement had three witnesses, namely, Alex Chepsiror, Sylvester Mutwol and Emmy Mutwol. The deed was to be surrendered after the final payment. 89. Emmy was her contact person. She always called to monitor the deposits to clear the balance as per the sale agreement. She also called her to ask about the deposits whenever she, the 4th defendant, needed money. Both she and Emmy dealt with each other most of the time. She only saw Phylis twice before the last installment was paid. After the last deposit Emmy asked for the original title deed. She inquired why Emmy wanted the title deed and not Phylis. Emmy told her that she together with Phylis had agreed that she, the 4th defendant, transfers the land to Emmy for them to facilitate the processing of a facility from the Agricultural Finance Corporation for farming that planting season and also because Phylis liked to keep her properties private. 90. In 2011 Emmy asked that she, the 4th defendant, attend the Land Control Board and transfer the land to her. She did not refuse because of the reasons above that she had an agreement with Phylis. They both visited the Land Board together with Emmy. Along the way Emmy asked that they proceed to procure a special Land Board rather than for the regular one. They appeared before the Oficer at the land’s ofice. She gave her details. Emmy was to pick the consent later. She gave Emmy the title on that date. 91. After that she never heard from Emmy or Phylis. She believed everything was all right. On a date late in 2020 she was called by Phylis and Emmy’s parents who wanted to know whom she gave the land. They told her that the land had been taken by Emmy. They asked her to visit their home to discuss the issue that had arisen because both Ammy and Phylis claimed the property. She called Emmy who asked her not to attend the meetings organized by Phyli’s parents. The meetings all of which she did not attend were rescheduled three times. She did not attend following Emmy’s advice. 92. In 2020 Emmy went to her home and told her that Phylis had tried to take the land from her. She (the 4th Defendant) asked Emmy that she informed her that the land belonged to Phylis. Emmy told her that Phylis told her she did not like the land as there were so many Nandis living there. Therefore, Emmy bought the land from Phylis. She asked Emmy if she paid the purchase price. Emmy informed her that she gave Phylis a house in Nairobi and a trailer equal to the value of the land. They were to sort out the remaining balance later on their own. 93. After Emmy went to the defendant’s place in 2021 she took her to Emmys lawyer’s ofice. They asked her to sign that the land belonged to Emmy and she had transferred it to her. All the time Emmy did the statement at the lawyer’s ofice. Emmy guided her in drafting the Statement. The 4th Defendant thought she spoke about the events of the transfer of the title and not agreement to Emmy. After that oficers from the Criminal Investigation Department visited her home. They asked her about the sale of the suit land. They also asked to have her signature as they were doing investigations. She informed them that she was unwell on that day due to (high blood) pressure and that her signature would be difierent because of lack of stability. She asked them to let her go another day to their Kitale ofice and give her sample signatures. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 14

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94. The 4th defendant called Emmy inquiring why oficers had visited her home and if there was anything wrong. She informed her not to see them or give signatures. She also asked to see her as soon as possible. She called several times. Emmy’s husband also called her and advised not to give any information to the oficers or sign documents. It was then that she realized that things were not okay. She quickly fiashed through her mind that Emmy denied her to visit their parents and now was against signing documents for this CID ofice. She refused to meet Emmy and her husband as they were up to something not good. She went the following day to see the oficers of the Criminal Investigation Department and gave her Statement on the transfer of the land as well as the sample signatures. 95. She stated further that having dealt with her for so long and Emmy being the contact person between her and Phylis she took advantage of her closeness, used the opportunity to her advantage and absence of Phylis to transfer the land to herself by duping her into transferring the land to herself. She stated that she entered into agreement for the sale of the land with Phylis. Also, she received money from Phylis for purposes of the land. Emmy only brought an agreement that she signed. It was not true. She did not attend any agreement writing day with Emmy. She never sold the land to Emmy but she transferred the land to her. She asked the court to give Phylis the land for she was the rightful purchaser and the true owner. 96. DW1 continued orally that she sold the land to Phylis. She referred to a copy of an agreement, PMFI 2, to show she sold the suit land. She added, the original was misplaced. 97. On cross-examination she stated know Emmy and Phylis Mutwol well. The suit land Chepsiro/ Kibuswa/Block 1/Kolimet/137 was hers and she sold it 2007 to Phylis Cherutich Mutwol. She was approached by Emmy to sell the land to Phylis. She denied selling the land to Emily Mutwol. She added that Phylis Mutwol was the one who paid her the purchase price. About PMFI 2, the agreement, she signed it in “wakili Yano’s ofice”. It was made on 17/4/2007. she was with Emily and another mzee and Alex. The mzee was the father to Phylis while Alex Chepsior was her son. 98. When she was shown another agreement dated the same date of 17/4/2007 on the 1st Defendant’s List, she denied knowledge of it and selling the land twice. She denied selling the land to Emmy Muthwol. She denied the signature thereon as hers although she admitted the agreement indicated it was between her and Emmy and was done before the Advocate. She denied doing any agreement without one of her children as a witness. 99. When referred to her own Statement attached to 1st Defendant’s List of witnesses dated 31/5/2021, DW1 admitted it was dated 17/5/2021. She added that when she went to the ofices of the advocate of Emmy she did not sign the statement. She did not go for the statement. 100. She admitted that she transferred the title to Emmy (the 1st Defendant). She gave Emmy the title to give Phylis but she did not. She added that she transferred the land to Emmy was because Emmy was very involved in the process of transfer. Further, that Emmy informed her that she needed a transfer so that she would take the papers to the Agricultural Finance Corporation (AFC). She believed her. Later DW1 asked Phylis about the transfer of the title to her name and Phylis informed her it was okay because she did not want all properties to be registered in her name. By that time, she had given Emmy the title (transfer into her name). The land belonged to Phylis. 101. She added in further cross-examination that she did not visit the 1st Defendant’s Advocate’s ofice with (her son) Alex Chepsiror who is a lawyer and is still alive. She added Alex may have gone there after left. She knew Alex was an advocate. On being shown the Statement of Alex dated 28/8/2021 and hers she stated she had not seen the statements before in order to complain about the allegation that she wrote it. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 15

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102. About her Afidavit sworn on 14/7/2020 she admitted it was in her name and the signature thereon hers. 103. About the agreement between her and Emmy Mutwol DW1 stated again that she had not gone to the police to complain that the signature was not hers although she denied it. She also admitted not reporting to the police her agreement with Phylis got lost. She had not also gone to the ofice of Yano Advocate to complain or get a copy. She stated she did not see the need after Phylis brought the suit since she would tell the court how it was. 104. Regarding the payment of the purchase price, DW1 stated that her Statement did not show that the purchase price was deposited in a bank and it did not show any bank account. She admitted not availing any bank statement to show she received money from Phylis. She admitted not having a document to show that Phylis deposited money into her bank account. 105. About the execution of the agreement she referred to, she admitted that none of the people who signed it with her before Yano Advocate (as he then was) had written a statement that she received money from Phylis on 14/7/2007. She did not also have any written statement from Yano advocates or my son Alex that she went to Yano’s ofice. She admitted she wrote a Statement before the advocate of Emmy and she had not complained to the Law Society that she was told to sign documents involuntarily. She admitted she not forced to sign the two documents (Statement and Afidavit). 106. She admitted that her written statement did not include anywhere that she talked with Emmy on phone, and she and Emmy did not write anywhere that they talked about the transfer. But she added that her Statement showed that Emmy was the contact person who used to update her through phone about the bank deposits. But she admitted in cross-examination that she neither wrote the phone number down nor did she talk to Emmy on phone. 107. On further cross-examination regarding the transfer to Emmy Mutwol, she admitted she voluntarily went to the land control board to give consent to transfer the land to Emmy. She voluntarily signed the transfer forms in favour of Emmy. She was not misled and signed documents including the transfer form, knowing what she was doing. Then she gave her photograph and Identity Card No. 5723143. 108. She did not know if Charles Yano (now Judge) said he only knew of the agreement between her and Emmy. She personally went to the land control board and was given a consent to transfer upon which she gave to Emmy original title deed, with the aim of transferring the land to Emmy. She stated that when she went to the land control board she told them (Board) that she wanted to transfer the land to Emmy as a buyer. She never went back to tell them that she made an error. She added the court could look at the application to the Land Control Board, the Consent and transfer form. She admitted she surrendered her title. She stated that when the title came out in the name of Emmy the transfer process was done in accordance with her will. 109. DW1 denied writing a Statement at the police about the agreement. On being referred to her statement, she admitted it showed she wrote a written statement at the police. She added the police only needed her signature. She did not know that what the police investigations were about. 110. DW1 repeated that when the land was being transferred to Emmy (the 1st Defendant), Phylis knew of it. 111. Regarding occupation of the land, DW1 stated that when the land was being transferred, Phylis was on it but she, DW1, did not have anything including any evidence from neighbours to show that fact. 112. DW1 denied the agreement between her and Phylis being fraudulent. She stated both she and Phylis did not have the original of the agreement. She stated that the person she found in the Advocate’s ofice https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 16

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informed her a copy could work but it was not a certified one as a true copy of the original. She added that the purchase of price of Kshs. 7.8 million of which payments were made as Kshs. 4 million on execution and the balance of Kshs. 3.8 million to be paid as Kshs. 1 million by 6.5.2007 and Kshs. 2.8 million by 31.12.2007. The Kshs. 4 million was paid via a bank account transaction at Equity bank. She admitted not having any document to show the payments having been made. Regarding lack of her bank statement she stated that the bank informed her that it does not store statements or documents after 10 years. She did not have evidence to show she wrote to Equity to give her the statement. 113. DW1 denied being in enmity with the son Alex. 114. DW1 admitted that Clauses 5 and 7 of the agreement required her to sign all papers, the transfer and other documents required to transfer the land to Phylis but she did not do so. Instead she signed the transfer in favour of Emmy who was not the buyer. Phylis did not give her any written document to sign the documents in favour of Emmy. She added that the document signed in favour of Emmy were in breach of the agreement. She admitted breach of the agreement. She stated further that any claim over the breach of the agreement should be borne by her. 115. She admitted the Land Registrar was not present at the time of entering into the agreement. He could not know the agreement was entered agreement into with Phylis. After giving the documents to Emmy, the land registrar was given them to transfer the land and he did it. He did no wrong in the transfer. 116. On re-examination she stated that Emmy told her to transfer the land to her. She had no reason to doubt Emmy about it since she used to discuss the transactions of the land with her on behalf of Phylis. She denied seeing any document showing that Emmy paid her. She stated that she got the copy of agreement between her and Phylis from Yano and Company Advocates. She added she did not go to complain to the police about the agreement between Emmy and her because she signed hers before a lawyer. She did not refute the Equity Bank being asked to give evidence in court. She closed her case. 117. The 1st Defendant, Emmy Mutwol, testified as DW2. She adopted her written witness Statement dated 18/5/2021 filed on 2nd June 2021 as evidence in-chief. 118. In it she stated that she was a civil servant, and the Plaintifi was her cousin. She knew the other defendants. The Interested Party was the registered owner of the suit land up to 21st April 2011. On 17th April 2007 she, the 1st Defendant, bought the said parcel of land from the interested party. An agreement was executed in the presence of Charles Yano Advocate in Kitale. From 21st April 2011 to 19th June 2020, she had been the exclusive registered owner of the suit land after it was transferred to her by the interested party. She added that the Plaintifi had never purchased the suit land reference number, Chepsiro/Kibuswa Block 1/ Kelchinet/137. It was untrue that she witnessed the Plaintifi's purchase of the suit land from the Interested Party on 17th April 2007 when she, the 1st Defendant, purchased it. It was untrue that the Interested Party sold the suit land twice on 17th April 2007 in the same advocates’ ofice to two difierent purchasers. She had never participated in negotiations or a meeting in which there were negotiations over the purchase of the suit land by the Plaintifi. 119. She stated further that Alex Chepsiror, Sylvester Mutwol and herself did not witness any land sale agreement between the Plaintifi and the Interested Party. Further, the Plaintifi had not made any payments towards the purchase of the parcel of land nor was the alleged Sale Agreement between her and the Interested Party genuine. She has not been entrusted with the responsibility of dealing with the suit land or its conveyance by the Plaintifi. She did not receive any documents of conveyance of the suit land in favor of the Plaintifi from the Plaintifi or anyone else. She did not receive any instructions from the Plaintifi to deal with the suit parcel of land in that behalf. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 17

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120. She added that there was no way she, the 1st Defendant, would have received instructions from the Plaintifi on how to deal with her land, being, land Reference Number Chepsiro/Kibuswa Block 1/ Kelchinet/137. She had never given any excuse or explanation to the Plaintifi as to why this suit land was not immediately transferred to her as the same could not have arisen. The Plaintifi had never been in possession of the suit land. It is her, the 1st Defendant, who had always been on the suit parcel of land since she purchased it until last year (the previous year to the filing of the Statement) when she sold it to Meshack Kimutai and vacated. 121. She added that she had never requested the Plaintifi to allow her to use the suit parcel of land, nor could it have been tenable for her to make such a request. The Plaintifi unjustifiably staked acclaim on her parcel of land in 2020, which obviously she could not accede to. There was no way she could hand over possession and use of the parcel of land to the Plaintifi. The Plaintifi had known all along that the suit land belonged to her, the 1st Defendant. The registration and transfer of the suit land in her favor was done by the Land Registrar in the usual and normal manner of business. As a matter of fact, the Interested Party transferred the suit land to her as she was the one who purchased it from her. The Interested Party had never executed a transfer of land in favor of the Plaintifi. The transfer of the parcel of land from the interested party to her name was not fraudulent. It was regular and legal. There was no negligence or connivance at the Land's ofice during the processing of the transfer of the land to her and the subsequent transfer to the current registered owner's name. 122. She stated that she had not breached any trust between herself and the Plaintifi on the suit parcel of land, as there was none. The Interested Party had not been taken advantage of. She, 1st Defendant, had no afinity to fraud. There was no way she could have entered into the negotiations on the suit parcel of land with the Plaintifi as she, Plaintifi, had no interest, whether legal or equitable, in it. There was no arrangement whereby the suit land was to be transferred to the Plaintifi's name. The Plaintifi had no interest in the suit parcel of land. 123. Further, the Plaintifi had been trying to unjustly enrich herself from her sweat. The advocate who handled the land sale agreement, now Justice Charles Yano, would vindicate her on her position on the parcel of land. The Interested Party would also vindicate her in confirming who between she and the Plaintifi dealt over the suit parcel of land. It was improbable that the same seller of the parcel of land would on the same date, execute two separate sale agreements over the same puzzle band to two difierent purchasers in the same advocates ofice. It was also improbable that the same parcel of land would be sold to her on the same date, and she also witnessed the Plaintifi's purchase of the same parcel of land. 124. Further, she had seen witness statements from Phillip Boit Mutwol, John Komen Seroney, Samuel Yego Cheboi, Robert K Chesinen, Benjamin K. Kibor, Paul Kosgei and Paul Kemboi Yano regarding a meeting that took place on 12th December 2020. It was not true that at the meeting she stated that she did not buy the land from Sarah C. Busienei. It was untrue that she stated in the meeting that Phylis Mutwol was the one who bought the suit land. She did not admit in the said meeting that the parcel of land belonged to Phylis Mutwol. She did not state in the meeting that Phylis intended to sell the land to her, but she was unable to raise the purchase money. She did not make a request that Phylis Mutwol surrenders part of the land to her in the form of appreciation for taking care of it. The elders unjustly and baselessly tried to convince her to surrender the land to Phylis in exchange for some acreage of land which she declined because in any event, she did not have land to give. She never agreed to receive any land from Phylis in consideration of the suit parcel of land being surrendered to her. She was not aware of any committee formed to oversee the implementation of the agreement or settlement, as there was none. She never made any proposals on who to oversee the implementation or any resolutions as none was agreed upon. There was no resolution reached on 12th to December 2020 and if there was one, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 18

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she could have endorsed it. She could not resolve to give what she did not own. In the meeting that took place on that date, the elders appeared to have been compromised and were not impartial hence she walked out of the meeting. The Plaintifi was trying to put into question the character of Justice Yano while he was in private practice. 125. In her oral testimony she stated that she was a paternal cousin to Phylis J. Mutwol. She, DW2, bought the land and not Phylis J. Mutwol. She produced a number of documents as Exhibits in support of her case. She produced the certified copy of the register (Green card) as 1 Dexh 1. 126. She added that Sarah, the 4th Defendant, transferred the land to her. She produced the certified copy of the transfer form from Sarah to her as 1 Dexh 2; the certified copy of the consent to transfer land from Sarah to her as 1 Dexh 3; the original agreement between myself and the defendant dated 17/4/2007 as 1 Dexh 4; a certified copy of the consent to dated 16/6/2020 transfer between her and the 5th Defendant Meshack as 1 Dexh 5; a certified copy of transfer form dated 19/6/2020 between her and Meshack Kimutai as 1 Dexh 6; a certified copy of the application dated 12/6/2020, for the land control board consent between her and the 5th Defendant as 1D exh 7; a certified copy of the title deed issued on 21/4/2011 in her name as 1Dexh 8; the original agreement dated 15/5/2020, between her and Meshack as 1D exh 9; the original of Acknowledgments dated 30/6/2020 and 28/7/2020 from Meshack about payments as 1 Dexh 10(a) and (b). 127. She testified further that it was not true that Phylis bought the land. Rather, it was her who purchased it. She denied selling the land to Meshack to defeat the interest of Phylis. She was the owner and had a right to sell. She also relied on the statement of Sarah dated 14/7/2020 and her afidavit and that of Alex. She asked that the case be dismissed. 128. On cross-examination she stated that Phylis had a firm stance against resolving the case. She too was not willing to resolve the matter at home. She repeated she knew Sarah Busienei in 2006 or 2007. Someone introducer her to Sarah that she had a parcel she wanted to sell the land. She denied meeting Sarah together with Phylis. She refuted Sarah’s evidence that she sold the land to Phylis. She stated all she knew was the earlier position of Sarah and not the one she, DW1, took or said in court. 129. DW2 denied the evidence by DW1 that she sold the land to Phylis and that she and the said DW1 went to the advocates ofice and signed an agreement, with her (DW2) being a witness. She was only aware of an agreement between her and Sarah, which she produced (see 1DExh 4). She too agreed that the land registrar was not a party or present at the execution. He did neither sign it nor was present when money exchanged hands between her and Sarah. He only became aware of the transaction when she presented the transfer of the land to him. He was not aware of the agreement, the payment of the consideration or even signing the transfer. Even when she and Sarah went to the land control board the land registrar was not present. 130. About Land Registrar efiecting the transfer from Sarah to her, she added that there was no caution on the title when that happened hence the Land Registrar had no reason not to register the land to her. He made no mistake or bore any blame. 131. About the agreement between her and Meschack K. Keter, Land Registrar was not present when they prepared it. After executing agreement, she went to the Land Control Board to transfer the land to Meshack. The Land Registrar was not present. He did not sign the application for consent. In the transaction between her and Meshack, the Land Registrar became aware of the transaction when she presented the transfer to him. All the fees and duties were paid before the registration in favour of Meshack. She transferred the land to Meshack when there was no caution to prevent the transaction. It was the duty for the Land Registrar to transfer the land as a public oficer. She could not blame him for anything or any wrong. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 19

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132. On further cross-examination she repeated she knew Sarah in 2006-2007 through someone she could not recall. She added she was then doing farming in the area. 133. Regarding the agreement between Sarah and her produced as 1Dexh 4, she stated it was not witnessed. Further, Sarah sold to her the property but she did not have any acknowledgment thereof. She paid Sarah in cash at execution. Her source of income in 2006 and 2007 was farming. She did some savings and borrowed from her husband money to pay. 134. On re-examination she stated that at paragraph 4 the Afidavit of Sarah sworn on 14/7/2020 indicated that she sold all the land to her and put her into possession. She was in exclusive possession. Further, that deponed that she had never sold the land to the Plaintifi. At paragraph 10 and 11 she deposed that the agreement allegedly executed between herself and Plaintifi was a forgery, and she had never received any money from the said Plaintifi. 135. DW2 added that Sarah did not complain that she did not received any money from her or that she sold the land to someone else. About the Afidavit of Alex Chepsiror sworn on 14/7/2020 she repeated that he deponed he did not recognize the purchase of the land by Phylis. Further, he deponed that she, DW2, bought the land from the 4th defendant. When referred to the Statement of Sarah dated 14/7/2020, she added it confirmed it at paragraph 14 of the Afidavit. Further, that at paragraph 6 of Alex’s Afidavit it was confirmed that the land was sold to me. She concluded her testimony that Sarah was not claiming any money from her. 136. The 5th Defendant, Meshack Kimutai Keter, testified as DW3. He adopted his written witness statement dated 26/5/2022 filed on 15/6/2022, as evidence in-chief. In it he stated that he bought the suit land from Emmy vide an agreement dated 15/6/2020. He paid Emmy by way of instalments. Before buying the land, he visited it and found Emmy’s workers on it. He carried out a search. It showed the land had a charge to the AFC. It was removed. They went to the Land Control Board and obtained consent to transfer. Emmy signed transfer documents in his favour. 137. He testified orally that he bought the suit land from Emmy. They entered into an agreement dated 15/6/2020, 1Dexh 9. He relied on it. He paid Emmy and she acknowledged the money, in documents 1Dexh 10(a) and (b). He relied on them. He stated that before buying the land he visited the land and went to the lands to confirm who the owner was. The owner was Emmy Jepkemoi Mutwol. The land had a charge. They went to the Land Control Board and applied for and were given a consent. He relied on the documents, being 1Dexh 5 and 7. The land was transferred to him vide a transfer between Emmy and him. It was 1Dexh 6. He paid all fees. He was introduced to Emmy when he heard she was selling land. He was not aware of any claim by Phylis on the land. He too prayed that the suit by Phylis be dismissed. 138. On further cross-examination he added that when he met Emmy she told him about the land, its location and that it had no issue except the charge to the AFC. She promised to have it discharged. He visited the land and met Emmy’s workers. They were doing top dressing at the time. He asked them about the land. They said it was owned by Emmy. He also interacted with the locals. Then he went to Kitale land’s ofice, conducted a search and confirmed it. 139. He added, they entered into the agreement during the Covid-19. Interactions were limited at the time hence he did not have a witness. He paid a consideration of Kshs. 20 million. He was a businessman and maize trader. He paid in cash. He admitted, Clause 3 (c) of the agreement provided that payments be by RTGS, electronic transfer. 140. About the Land Registrar, he was not involved in the transaction. He could not know whether DW3 paid the money or not. The transfer in his favour was done outside of the Lands registry. He only https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 20

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submitted it for registration. The land registrar was not involved in the process. The land registrar was not with him at the Land Control Board. He did not participate. The land Registrar was only involved when DW3 presented the transfer. By that time the charge was already withdrawn. There was no reason to prevent the land registrar form proceeding with the registration in his favour. 141. That closed the 1st and 5th Defendant’s cases. 142. The 3rd Defendant called the Land Registrar in charge of Trans Nzoia County, Sharon Gerald, as 3DW1. She stated that her mandate was being the custodian of the land records for, as well as being the administrator of, the lands ofice in Trans Nzoia County. One other duty is to register title deeds. 143. She had the parcel file for parcel number Chepsiro/Kibuswa Block 1/Kelchinet/137 whose approximate size was 20.2 Ha. Its registered owner was Meshack Kimutai Keter. Its Green card was opened on 14/1/1997, as absolute ownership. It was first owned by Lilian Wangari Mbugua from 14/1/1997 and its title deed issued on 20/1/1997. It was charged to Co-operative Bank of Kenya on 7/10/1997 for Kshs. 240,000/= and discharged on 17/2/2004. Then on 11/5/2006 it was transferred to Sarah Cheptengeri Busienei and a title deed issued the same day. A caution was registered on it on 4/7/2007 in favour of Mary Muthoni and withdrawn on 13/7/2007. On 21/4/2011 it was transferred to Emmy Jepkemoi Mutwol and a title deed issued the same date. It was charged to for Kshs. 2 million and discharged on 18/6/2020 as Entry No. 5 on the encumbrance section. It was transferred on 19/6/2020 to Meshack Kimutai Keter, and a title deed issued the same day. On 10/7/2020 there was temporary injunction on dealings on the property. 144. 3DW1 stated further that at the time of transfer from Emmy J. Mutwol to Meshack Keter there was no charge on the land. The charge on it was discharged a day before the transfer, that is, the charge was discharged on 18/6/2020 and the transfer made on 19/6/2020. She refuted the claim by the Plaintifi that the land was transferred to Meshack in defiance of a court order as the order of injunction was registered on 10/7/2020. By the time the land was transferred the lands ofice had not been served with the order. She produced the certified Green card as 3Dexh.1. 145. 3DW1 produced the Transfer in favour of Mary Muthoni as 3Dexh2; the one dated 21/4/2011 from Sarah C. Businei to Emmy Mutwl as 3 Dexh3; and the one for Emmy Mutwol to Meshack Keter dated 19/6/2020, as 3 Dexh 4. She produced as 3Dexh 5 the title deed surrendered from Sarah C. Busienei to Emmy Mutwol. She produced as 3Dexh 6 the application dated 20/4/2011 for consent to the Cherangani Land Control Board; and the consent dated 20/4/2011 issued from the Control Board; and a transfer from Sarah C. Businei to Emmy J. Mutwol as 3DExh.7. She did not see the receipts for the payment of stamp duty. 146. 3DW1 produced the transfer from Emmy Mutwol to Meshack Keter, and the title issued on 21/4/2011 and surrendered by Emmy as 3Dexh. 8; the application dated 12/6/2020 made to the Land Control Board as 3Dexh.9; the consent dated 16/6/2020 for transfer between Emmy Mutwol and Meshack Kimutai Keter as 3 Dexh.10; the valuation for stamp duty dated 18/6/2020 as 3Dexh.11. The value was indicated by the County Valuer as Kshs. 7,500,000/=; the Stamp Duty of Kshs. 150,000/= was paid as per the assessed valuation. It was paid through the Cooperative Bank of Kenya dated 13/6/2020 to K.R.A on 19/6/2020 and an E.T.R receipt from the Co-operative Bank Agent and a payment slip of the same date by K.R.A given. She produced the Cooperative Bank receipt as Dexh.12(a) and the KRA payment slip as Dexh.12(b). She produced a fee receipt for payment of certificate of title and registration dated 19/6/2020 as 3Dexh 13. Further, the copies of the identity card of Emy Mutwol 3Dexh14(a); the KRA certificate for Emmy 3 DExh.14(b); and the copy of ID for Meshack Keter and his KRA PIN certificate as 3Dexh 14(c) and 3Dexh.14(d) respectively. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 21

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147. She testified that the ofice did not received any complaint of a forgery of consent from Land Control Board in favour of Meshack Keter from Emmy J. Mutwol, or even for the application for consent. Further, she stated that the land registrar does not sit in the Land Control Board, and the Board had not disputed the issuance of the consent. 148. 3DW1 testified further that although the complaint was that the payment for stamp duty was paid by a stranger, one Alice Mutengo Wabala, at the payment details section the transferee’s details were Mutwol Jepkemoi Emmy and Meshack Kimutai Keter. She added that the transferor’s details were same and the transferor’s PIN given. If KRA had an issue to confirm that the land was registered in their names, their PIN numbers had also been given. As to why the parties chose to use the PIN of Alice Mutenyo Wabula, she would not know. She would not know if the land should not have been registered without payment of the Capital Gains Tax. 149. On cross-examination 3DW1 stated that there was no caution or restriction at the behest of Phylis Mutwol. Further, the order of injunction was made on 30/6/2020 and issued on 11/7/2020, about 10 days later. It could not have prevented a transaction made on 19/6/2020. 150. Regarding a case of an issue of non-payment stamp duty 3DW1 testified that the step the registrar takes is registration of a restriction on the land to prevent further transactions stamp duty until stamp duty is collected first. Non-payment of stamp duty does not nullify a transfer. She stated that the transfer between Meshack and Emmy was done procedurally and therefore legitimate. 151. On further cross-examination the witness noted that the payment of stamp duty was made by Alice Webala but it was up to the parties to agree on how they agree but ideally it should be paid by the purchaser. She added that Alice was neither the purchaser nor the vendor in the transaction. She stated that the payment by Alice was not irregular because parties were free to choose who to make payment for them. 152. On re-examination 3DW1 stated that the description of the payment by Alice Mutenyo shows the payer is her but the PIN number for her Alice M. Wabula was not indicated. She added that as per 3Dexh 12(b) the beneficiary of the payment, the KRA, acknowledged the same. The payment showed the transferee’s and transferor’s details and the amount payable as Kshs. 150,000/=. The transferor was Emmy Mutwol and transferee Meshack Keter. Further, that the Kenya Revenue Authority (KRA) acknowledged receipt of the Kshs. 150,000 on behalf of the parties. 153. Asked further to explain steps the Land Registrar takes in case of payment of stamp duty that is not full, 3DW1 stated that the Registrar places a file under lock and key and not placing a restriction on it. When the parcel is then subsequently brought up in case of a new purchaser, he is told that the payment was not made and he has to pay it first. A penalty is also made under the Stamp Duty Act. Her evidence was that the failure to pay the fees does not nullify transaction. A penalty would be put against the transaction. She summed it that the KRA could not receive any payment for a transaction purporting to emanate from the lands ofice of which transactions does not exist. 154. That closed the 3rd Defendant’s case, and the entire case. Parties were given chance to submit. C. Submissions Plaintifi ’s Submissions 155. The Plaintifi filed her submissions dated 4th February 2026. She began by summarizing that she commenced the instant suit vide its Plaint dated 24th June, 2020, whose substratum was the fraudulent, irregular and unlawful transfer of the suit parcel of land to the 1st Defendant who later transferred it to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 22

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the 5th Defendant. Further, she amended the Plaint through an Amended Plaint dated 8th, February, 2022. In it she sought the four reliefs given at the initial pages (above) of this judgment. She summarized that the Defendants entered appearance and lodged Statements of Defence to the Plaint. 156. She then gave two issues for determination, being; a. Whether the transfer process leading to the issuance of a Title Deed in the name of the 1st and 5th Defendant with respect to the suit parcel of land is irregular, and b. Whether an Order for Permanent Injunction can be granted to the Plaintifi. 157. She submitted on the first that the 1st Defendant fraudulently or irregularly obtained a Title Deed on 21st April, 2011 over the suit parcel of Land under her name in a blatant disregard to her proprietary rights since she (the Plaintifi) paid for the value of the land in the year 2007 and has been in possession occupation and use of the suit Land for a period exceeding 12 years. 158. She contested the sale agreement produced by the 1st Defendant as being valid, given the evidence of the 4th Defendant. She relied on the case of Dismas Munialo Kalamu v Martin Juma Kwata & 4 others [2020] eKLR the Court wherein the court held that the fact of one having a title to the suit land is not proof of ownership when the root thereof is under challenge since it requires the registered proprietor to go beyond the instrument and prove the legality of how he acquired it. 159. She argued that no consent of the Land Control Board was obtained hence proof of fraud. She urged the Court to look at the evidence of DW1 (Sarah Busienei Cheptekeny), the previous owner of the suit Land who stated that she sold the Land to the Plaintifi and not the 1st Defendant. Further that DW1 stated that she received payment for the suit Land from the Plaintifi. She added that the evidence of DW1 was that the 1st Defendant only helped the Plaintifi with scouting the Land, and DW1 only transferred the Land to the 1st Defendant because the 1st Defendant told her that the Plaintifi had allowed her so that she could secure a loan from AFC. That DW1 denied ever signing the Agreement presented by the 1st Defendant and acknowledged the one presented by the Plaintifi (sic). 160. On the 5th Defendant being an innocent purchaser for value the Plaintifi denied it and argued that it was incumbent upon him to undertake due diligence before purchasing the suit property. Further, had the 5th Defendant undertaken due diligence, he would have discovered that the 1st Defendant was never in actual possession of the suit property, but that Plaintifi was. She argued that it was not enough for a party to state that they have a title. That the 5th Defendant ought to have conducted a forensic historical audit which would have helped him ascertain from the initial owner if indeed she sold the Land to the 1st Defendant and who was in actual possession of the land. 161. The Plaintifi relied on the Court of Appeal case of Teleposta Pension Scheme Registered Trustees v Intercountries Exporters Limited & 5 others (Civil Appeal 293 of 2016) [2024] KECA 870 (KLR) (12 July 2024) Judgment). In it their Lordships held that the title of an innocent purchaser for value without notice can be defeated if it originates from an irregular and illegal allocation. Also, that the Supreme Court in Dina Management Limited vs Mombasa County Government & 5 others [2023] KESC 30 KLR held that it could not sanction irregularities and illegalities in the allocation of public land on the basis of indefeasibility of title. 162. The Plaintifi then urged the court to find that the transfer process leading to the issuance of the title Deed in the name of the 1st Defendant and subsequently the 5th Defendant with respect to the said parcel of Land was irregular and illegal hence void ab initio and cancel it. 163. The Plaintifi relied further on the case of Zacharia Wambug Gathimu & another v John Ndungu Maina [2019] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 23

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164. On whether an Order for permanent injunction could be granted to her, the Plaintifi relied on the case of Giella v Cassman Brown & Co Ltd [1973] EA 358 which laid down the conditions to prove as a prima facie case with a probability of success, irreparable injury that cannot be compensated by an award or damages, and if in doubt a decision on the balance of convenience. 165. She relied on the case of Mrao versus First American Bank of Kenya Limited & 2 others [2003] eKLR to define a prima facie case. She argued that the Plaintifi had been in possession, occupation and use of the suit land from the year 2007 which she said was proved by her List of Documents and evidence of witnesses. She argued that the 1st Defendant misled the Court that she purchased the Land from the 4th Defendant who vehemently denied selling it to her and entering into a Sale Agreement with her. 166. She relied on the Court of Appeal case of Maina & 87 others v Kagiri (Civil Appeal 6, 26 & 27 of 2011 (Consolidated)) [2014] eKLR where the Court held that the superior one erred in failing to consider that the Appellants were in possession of the suit property and a constructive trust created in favour of all individuals who had paid the purchase price for respective plots. 167. The Plaintifi argued that she had a valid uncontested Sale Agreement dated 17th April, 2007 with respect to the suit land, duly executed between her and the original owner to the suit land. She then submitted that the Sale Agreement was marked as Dexh 2. It complied with the requirement of Section 3(3) of the Law of Contract Act which requires all contracts for the sale of land to be in writing, signed by all parties and attested. Further, she made payment of the entire Purchase Price as envisaged in the Agreement hence the proprietary interests over the suit land transferred to her on 31st December, 2007 upon the completion of the payment of the Purchase price, which fact, according to her, was confirmed by the 4th Defendant. 168. The Plaintifi then made an interesting argument that the Defendant had failed to establish a prima facie case. On this she contended that the Defendant had not presented any evidence to show that she purchased the Land from the 4th Defendant and thus the transfer in her favour was irregular. She discounted the 1st Defendant’s evidence of the Agreement produced as an exhibit, indicating that she bought the suit land from the 4th Defendant. She argued that the 4th Defendant denied ever entering into an agreement with her and stated that the signature appended in that Agreement doesn't belong to her. 169. The Plaintifi again submitted that the property was unique in its own way and had sentimental/social value to the Plaintifi since it was where she sought to build her dream retirement home. Its location was unique for the consideration of a home by the Plaintifi and her family hence any interference with the ownership and possession would have far-reaching repercussions on her and the family, which could never be remedied by compensation. Moreover, the land was located in a prime area within TransNzoia County in close proximity to the Plaintifi's home in Marakwet and it would be impossible to get another parcel of similar acreage within the same area. She urged the Court to consider the catastrophic harm to be sufiered by the Plaintifi if the reliefs sought were declined. 170. Lastly, the balance of convenience tilted towards allowing the injunctive orders sought. She relied on the case of Films Rover Internationale [1986] EALL ER, on grant of orders of injunction. 171. The Plaintifi submitted that the suit had merit. 1st & 5th Defendants' Submissions 172. On their part, the two defendants began their submissions by giving the summary of the Plaintifi’s claim and the defences thereto. They summed it that the issue was basically whether it was the Plaintifi or the 1st Defendant who purchased the suit parcel of land from the 4th defendant. They then summed https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 24

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up the Plaintifi’s evidence and the Defendants’. They proposed that for the Plaintifi's suit to succeed she was required to demonstrate three things, namely, that she was the purchaser; the transfer into the 1st and 5th Defendant was fraudulent, and if so, that the 5th Defendant was privy to the fraud. 173. They argued that the Plaintifi failed to prove her assertion of purchase to the requisite standard. She did not produce the land sale agreement and the acknowledgments of payment. They added that the 5th Defendant (sic) on their other hand clearly indicated in her afidavit and statement that the person she sold the land to was the 1st Defendant. Further, that the Plaintifi was a stranger to her and that all payments of the purchase sum came from the 1st Defendant. They argued that the evidence was supported by that of Alex Chepsiror. They concluded that the 1st Defendant discharged the burden of proof by demonstrating the purchase of land by production of the original land sale agreement in her favour and all the other documents in support of the transfer. 174. On the Plaintifi’s claim of fraud on the part of the Defendants they submitted that the case ought to have been proved beyond a preponderance of probability. 175. Regarding the Plaintifi’s claim about fraud on the part of the 1st and 5th Defendants, they contended that no evidence was tendered to demonstrate the perpetration of fraud. they added that the Plaintifi having failed to prove purchase of the land, she admitted that the land was transferred to the 1st Defendant by the 4th defendant and all the procedures were adhered to. On the Plaintifi’s claim that the transfer to the 5th Defendant was done when the suit was already filed and interim orders in place, they argued that the transfer preceded both the suit and court order and even the discharge of charge. Again, they argued that stamp duty was paid, and even though in another person's name the receipt captured the name of the rightful transferor and transferee and that could not possibly vitiate the transfer. 176. Regarding the issue as to whether the 5th Defendant was privy to any fraud, they submitted that he was not and no evidence was tendered to connect him with any fraud. He was an innocent purchaser for value without notice. 177. They relied on the cases of Arthi Highway Developers Ltd v West End Butchery Limited & 6 Others (2015) eKLR which held that fraud ought to be specifically pleaded and proved on higher balance of probability but not beyond reasonable doubt. They added that the burden lay with the Plaintifi to prove that she was the real purchaser. 178. They relied further on that Court of Appeal decision in Munyu Maina v Hiram Githiha (2013) eKLR in which the held an owner of a property whose title is challenged ought to go beyond the instrument to prove the legality of how he acquired the title. They added that the 1st and 5th Defendants went beyond tangling the certificate of title. They demonstrated the purchase, transfer and the acquisition of the requisite consents. 179. About innocent purchaser for value without notice, they relied on the case of Said v Shume & 2 others Civil Appeal E050 of 2023) KECA 866 (KLR) (26 July 2024) (Judgment); the Black’s Law dictionary; the Dina Management Limited v County Government of Mombasa & 5 Others (Petition 8 (E010 of 2021) (2023) KESC 30 (KLR). In the last authority, the Supreme Court held that a bona fide purchaser for value must prove that they acquired a valid and legal title, and carried out the necessary due diligence to determine the lawful owner, and they paid valuable consideration for the purchase of the suit property. 180. They prayed for dismissal of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 25

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3Rd Defendants’ Submissions 181. The 3rd Defendant filed its written submissions dated 30th January 2025. In them, after summarizing the parties’ cases and the reliefs sought in the Amended Paint, it identified two issues for determination. The first one was whether the Plaintifi had proved her case against the 3rd defendant to the required standard. 182. On this issue, the 3rd Defendant submitted that the allegations about the its involvement in the alleged fraud was borne at paragraphs 18, 21 and 24 of the Amended Plaint. In them, the Plaintifi alleged fraud and collusion on the part of the 3rd defendant. The first limb on fraud was the manner in which the 1st Defendant obtained the title from the 4th defendant. That the Plaintifi contended that the 3rd defendant should be held liable for being party to the fraud and allowing it to be perpetuated by the 1st Defendant. 183. Regarding this allegation, the 3rd Defendant submitted that it collapsed when the Plaintifi (PW1) and the 4th Defendant (DW1) were subjected to cross-examination. Both admitted that the 3rd Defendant was not a party to the agreement of sale and could not know who between the Plaintifi and the 1st Defendant purchased the suit land. Therefore, the allegation that the 3rd defendant transferred a suit proper to the 1st Defendant who was not a party to the agreement collapsed. 184. The second limb was that the alleged transfer was fraudulent. But the 3rd Defendant submitted that both PW1 and DW admitted that the transfer from the fourth defendant to the 1st Defendant was based on duly executed instruments of transfer and completion documents. PW1 admitted after the resale transaction she neither notified the 3rd defendant of her interest in the suit land nor did she register a caution to prevent any dealings on the land. Furthermore, DW1 admitted that the transfer of the land in favor of the 1st Defendant was signed by her and she surrendered to the 1st Defendant a copy of her identity card, the KRA PIN card; and the original title deed. She also obtained a consent from the Land Control Board on an application thereto, and upon attending the Board for that purpose to facilitate the transfer of the suit land to the 1st Defendant. 185. The other limb of alleged fraud was that the transfer between the first and 5th Defendants was not procedural. The third defend, however, submitted that the evidence of the Plaintifi the 1st Defendant and the 3rd Defendant’s witness was clear on the point. First, they confirmed that the 3rd defendant was not to blame for anything done innocently on documents presented for registration and that none of the documents presented had an anomaly which would prevent the 3rd Defendant from efiecting the transfer. Thus, the allegation of fraud failed. It relied the definition of fraud and the Black’s Law Dictionary 7th Edition. It had added that for a claim of nature the Plaintifi should have proved that the 3rd defendant misrepresented material facts to the detriment of the Plaintifi or concealed material facts to induce the Plaintifi to act to their detriment. 186. The 3rd Defendant relied on Sections 107 10 and 112 of the Evidence Act on the bad proof being placed on anyone who alleges fraud to Strictly Pro the same 187. It relied on the case of Jennifer Nyambura Kamau versus Humphrey Mbaka Nandi (2013) eKLR by the Court of Appeal. and also Ndolo versus Ndolo (2008) 1KLR (G&F) 742 (sic) and Central Bank of Kenya Limited via Trust Bank Limited & 4 others, NAI Civil Appeal No. 215 of 1996 (UR); and Rosemary Wanjiku Muriithi versus George Maina Ndinwa, NYR Civil Appeal No. 9 of 2014 (2014) eKLR. 188. It submitted that fraud allegations are serious and proof thereof should be above a balance of probabilities but below beyond reasonable doubt. Further, that it was not enough for anyone to infer https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 26

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fraud as having been committed. The registrar only acted on documents presented to him. The person who presented such documents was to do so within the rules, and absence of any objections to the documents the only option the registrar had was to register the instruments. 189. It is submitted further that the evidence tendered to prove every case depended on the cause of action and particular pleadings. It added that since the 5th Defendant’s title was under challenge; it was upon the Plaintifi to prove fraud on the part of the said Defendant. 190. On the second issue which was whether the 3rd defendant acted in good faith and in furtherance of its statutory duty. It submitted that every action taken by the ofice in regard to the property was in good faith and in accordance with the law. Further, that the evidence of DW confirmed that the 3rd defendant was mandated to receive and register documents of transfer duly executed and attested, and issue titles. It acted within that mandate and within the provisions of the Land Registration Act. It further submitted that it followed the prescribed procedures. It relied on Section 32 of the Land Registration Act to argue the registrar’s role was essentially to register interests on land in a manner that refiected the intention of the parties. There was no evidence led that it acted the contrary. 191. On the allegation that there was some form of irregularity in the documents submitted for registration the 3rd Defendant submitted that the Plaintifi neither proved the specifics of the pleaded irregularities nor did she prove the alleged irregularities which would rendered the transaction void. It was their contention that under-stamping of an instrument could be remedied by the Land Registrar demanding for the payment of unpaid stamp duty and penalties as the 3DW1 for testified. 192. Regarding the allegation by the Plaintifi on the receipt for payment of stamp duty as a forgery it submitted that the payment of stamp through other person(s) than the parties to a transaction did not afiect the transaction. Further, PW2 was unable to explain how her details found her way to the Kenya Revenue Authority. This, they submitted, dented her credibility. Moreover, her evidence that she used her details for a difierent transaction involving a Succession matter of her deceased father’s estate was not proved. Additionally, she failed to explain the variance in the stamp duty noting that the stamp duty for transmissions was a nominal fee of Kenya shillings 200/= whereas the payment in the transaction was a sum much higher. It concluded that PW2 was a gun for hire to denounce a transaction undertaken by her in good faith. 193. It was their submission that in any event, the 3rd defendant was not privy to the arrangement between the 1st and 5th Defendants. Further, that in absence of evidence from the KRA to the extent that a duty was not actually paid, the court ought to reject the invitation by the Plaintifi and PW 2 on any wrongdoing on its part. It relied on the case of Hussein versus the Land Registrar (2021) eKLR wherein the court held that public oficers, including land registrars, are not reliable for errors committed in the course of performing their duties if there is no evidence of deliberate wrongdoing. It summed it that the case be dismissed. 4th Defendant’s Submissions 194. On her part, the 4th Defendant filed submissions dated 21st January 2025. She started by giving a summary of the parties’ cases. This court needs not summarize it again here. Sufice it to say that regarding her case, she argued that she was over 80 years old. In or about April, 2007, Emmy Jepkemoi Mutwol (the 1st Defendant) approached her looking for a property for her sister to purchase. They met and she showed her the suit property. The 1st Defendant informed her that she was specifically looking for land for her sister who stayed in Mombasa. The said sister was Phylis Jerotich Mutwol (the Plaintifi). The 1st Defendant agreed with her to meet with the Plaintifi to finalize the transaction. They met and agreed on the price. On 17th April, 2007 they proceeded to advocate Yano’s ofice to draft the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 27

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sale agreement between the Plaintifi and her and 3 witnesses, being, Alex Chepsiror (4th Defendant’s son), Sylvester Mutwol and Emmy Mutwol. 195. The Plaintifi paid the purchase price and with deposits therein. Upon payment of the final deposit, the 1st Defendant informed her that she needed the original title deed for the suit property. The 4th Defendant enquired why she needed the title deed and not for her to handover it the Plaintifi. The 1st Defendant informed her that they had agreed with the Plaintifi that she transfers the property to her to facilitate her get financing for Agricultural Finance Corporation (AFC) the 3rd Defendant for farming on the suit property. She believed her. She went to the 1st & 5th Defendants’ Advocate’s ofice to draft the transfer where she signed documents. 196. It was her submission that some of the documents may have included the sale agreement which the 1st Defendant alleges to have been entered into for sale of suit property. That was how the 1st Defendant became the registered owner of the property she now sold to the 5th Defendant. Her case was that she sold the suit property to the Plaintifi. 197. She set forth the following two issues for determination; 1. Whether the 4th Defendant entered into a contract with the Plaintifi or the 1st Defendant; 2. Whether the sale agreement herein referred to as contract for sale of land between the 1st Defendant and the 4th Defendant amounts to a contract. 198. In regard to the first issue, the 4th Defendant submitted that she entered into a contract for the sale of land with the Plaintifi, a copy of which she marked for identification as PMFI-2. She submitted that the Plaintifi’s evidence was that she purchased the suit property from her and paid the purchase price. She added that the only contrary evidence was whether the transaction was done. Further, she testified that it had been a long time and the bank she used to deposit the money informed her that most records for that period had been transferred to Mombasa ofices archives and given time she would avail them. 199. About whether the sale agreement, DExh-1, amounted to a contract for sale of land, she submitted that it does not have any witness to the transaction. Further, the 1st Defendant did not produce any transaction relating to the contract showing payment of consideration thereon. Also, that the 4th Defendant denied receiving any money from the 1st Defendant. She relied on Section 3(3) of the Law of Contract whose text she reproduced and argued that DExh 1 was unenforceable. She relied on the Court of Appeal in the case of Jane Catherine Karani Vs Daniel Mureithi Wachira (sic). She urged the court to find that there was no valid contract between the 1st Defendant and the 4th Defendant, and that the execution thereof showed the intentions of the contracting parties to be bound by the terms therein. 200. She submitted further that C.K Yano Company Advocates who drew the contract were not called to testify, yet the title was under scrutiny, as was captured in the case of Munyu Maina v Hiram Gathiha Maina, Civil Appeal No 239 of 2009 (sic). 201. Further, that there was no evidence that the 1st Defendant ever paid the consideration for the Sale to the 4th Defendant. She added that no contract was formed in the drawn agreement and it was only meant to cover up for misrepresentation towards transfer of land. She argued that the Plaintifi gave testimony that she bought the suit property from the 4th Defendant and produced a copy of a Sale Agreement which was dully and legally drawn as per the parameters of Section 3(3) of the Law of Contract Act. She reproduced the terms of the agreement and argued that she (the 4th Defendant) acknowledged in her evidence receipt of these funds hence evidenced that the Plaintifi paid the consideration of sale. She finally urged the court to find that the contract for sale of land between her and the 1st Defendant was https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 28

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mere expression of intention to enter into legal agreement and did not amount to passing of interest in land. Issue, Analysis And Determination 202. The Court has carefully considered the Plaintifi’s claim, the defences thereto, the law (both statutory and case law), the evidence adduced by the respective parties in support of their claim or defences and their submissions. At this point, it is worth noting that the parties did not agree on issues for determination. Rather, each of them set forth issues as they deemed fit. The court having considered the respective submissions wherein the issues were set forth now lists them hereunder. 203. The Plaintifi set forth two issues for determination, namely: 204. 205. 206. 207. a. Whether the transfer process leading to the issuance of a Title Deed in the name of the 1st and 5th Defendant with respect to the suit parcel of land is irregular. b. Whether an Order for Permanent Injunction can be granted to the Plaintifi. On their part the 1st and 5th Defendants set forth following three issues for consideration: 1. Did the Plaintifi prove her assertion of purchase of the land to the requisite standard? 2. Did the Plaintifi prove that the transfer into the 1st Defendant and 5th Defendant was fraudulent? 3. Was the 5th Defendant privy to any fraud. The 3rd Defendant also set forth two issues: 1. Whether the Plaintifi has proven his (sic) case against the 3rd defendant to the required standard. 2. Whether the 3rd Defendant acted in good faith and in furtherance of their statutory duties. The 4th Defendant set forth two issues for determination, being: 1. Whether the 4th Defendant entered into a contract with the Plaintifi or the 1st Defendant; 2. Whether the sale agreement herein referred to as contract for sale of land between the 1st Defendant and the 4th Defendant amounts to a contract. Having considered the respective issues at length and the entire case, this court formulated the following issues for determination: a. Whether parties are bound by their pleadings and can adduce evidence to the contrary. b. Whether documents marked for identification but not produced can be relied on in evidence. c. Whether the 4th Defendant is a credible witness. d. Whether the Plaintifi proved her assertion of purchase of the land to the required standard. e. Whether the Plaintifi proved that the transfers to the 1st and 5th Defendants were fraudulent or forgery. f. Whether the Plaintifi has proven her case against the 3rd defendant to the required standard. g. Whether the 5th Defendant was privy to any fraud or an innocent purchaser for value. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 29

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h. Whether the sale agreement between the 1st Defendant and the 4th Defendant amounts to a contract. i. Whether the Plaintifi can recover the land, if it is hers, or her title thereto is extinguished. j. Whether the Plaintifi’s suit was time barred. k. Whether an Order for permanent injunction can be granted to the Plaintifi. l. Who to bear the costs of the suit. 208. Before embarking on the determination of the issues this court reminds the parties herein that the cardinal principle of the law of evidence is that he who alleges proves, unless the law has specifically placed the onus of proof on another person other than the one who asserts. Section S107, 109 and 112 of the Evidence Act are to the efiect that he who alleges or relies on certain facts as proof of the existence or non-existence of a fact bears the burden of proving the facts unless the law specifically places the onus on another party. 209. Section 107 of the Act provides: “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 210. Section 109 of the same Act provides: “ The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.” 211. In this case, the burden lay on the Plaintifi to prove the allegations in the Amended Plaint. In particular, and summary, she bore the burden of proving that she bought the suit and therefore became the legal proprietor; she took occupation thereof; she still retains the ownership; the 1st, 3rd, 4th and 5th Defendants committed the acts of fraud alleged against them, her claim of fraud was not time barred; the 3rd Defendant committed irregularities alleged; the 5th Defendant was not an innocent purchaser for value, among many other issues. 212. This court will consider the issues it formulated sequentially. In doing so, the court will endeavor as much as possible to use the simple legal technique or process of determining issues. It is Issue (I), Rule (R), Application (A) and Conclusion (C), simply abbreviated as IRAC. This means that the court will ask itself a question at each stage. Put in simple terms the mnemonic would translate into four simple questions: 1. My Lords and My Ladies, what is the problem or Issue? Answer: the dispute herein is… (Assuming the party posing the question wants to understand the real issue better than the Respondent puts it, they would move to the next question). 2. My Lords and Ladies, we suppose now you know what we are complaining about. So, what is the law or Rule (R) on it? Answer: this provision which creates the right or is said to be breached is this one. 3. My Lords and Ladies, then why is the party asserting complaining or what did the Respondents do to the contrary? That means, my Lords and Ladies now apply (A) the law to the facts. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 30

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4. 213. My Lords and Ladies, what answer have you come up with on this issue? Meaning, what do we conclude (C), my Lords and my Ladies? That said, the first four issues this court formulated for determination cut across the parties’ respective positions from the gravamen of fundamental legal issues that lay the basis of determining the rest of the issues subsequent thereto. The first issue was: (a) Whether parties are bound by their pleadings, and can adduce evidence to the contrary 214. The issue in this suit is that parties drew and filed respective pleadings as summarized at the beginning of this judgment. They proceeded to lead evidence to support each of their standpoints or claims. But one of the parties’ evidence, the 4th Defendant’s, was diametrically difierent, contrary or divergent from the pleadings she filed. That being so, how should the Court treat the same, in terms of the law? 215. To determine the issue, the law is that parties present their cases to courts or judicial for a through pleadings. They bind themselves to their pleadings. The starting point here is that pleadings are a critical nerve in the life of any claim. Parties must always pay attention to their pleadings because they are bound by them. They cannot trudge beyond their claims. The Supreme Court of Kenya in Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR while discussing the essence of pleadings in an election petition found and held as follows in respect to: “ In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is afirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings...’” 216. In Odongo v Wadiya & 2 others (Environment and Land Appeal 029 of 2025) [2025] KEELC 7976 (KLR) (13 November 2025) (Judgment), this court held; “ Parties bound by their pleadings. They are not permitted to depart in adduction of evidence from the pleadings otherwise it would amount to trial or defence by ambush. One’s case must be stated and made plain to the other or adverse party so that they know what to expect both in pleadings and evidence so that they too prepare. To do otherwise would lead to an unfair trial which is not only unconstitutional but would open a den and present to the adverse party of a boundless marouding mongrel which would obviously devour them. That would be unfair and an uneven ground for play.” 217. In a fairly similar issue for determination, A C Mrima J. in the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, stated as follows: “ It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 31

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Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-afirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.” 218. In Tolksdorf v Mwangi & 3 others (2025) KEELC 848 (KLR), the court restated this principle by holding that; “ Additionally, this is an issue that was not pleaded in them Plaint dated 8th April 2022. It is trite that parties are bound by their pleadings and cannot be allowed to depart from the same." 219. Even the situation which may call for the Court to look at parties’ pleadings difierently by altering them are not permitted by the law, unless in extremely exceptional circumstances where the content does not change at all. Thus, in Obonyo v Owuoti & another (Environment and Land Appeal E031 of 2024) [2026] KEELC 405 (KLR) (29 January 2026) (Judgment) this court stated as follows: “ It is trite law that parties are bound by their pleadings, and the court should not trudge into granting that which has not been pleaded, unless whatever relief other than that which is pleaded is arising out of the necessity to give eficacy to the main reliefs granted. In the circumstance, it is this court’s view that in as much as the trial court found that the 1st Respondent was the owner of the suit parcel, the trial magistrate erred in fact and law in directing the Land Registrar Migori County to remove the caution registered by the Appellant because in any event the Land Registrar was not a party to the proceedings.” 220. Therefore, it is clear that a party should not trudge in evidence adduction beyond his or her pleadings. If that were to happen then her claim or defence collapses. The claim or defence would be likened to ‘dead’ dry skeleton bones to which no life can be breathed since there is no fiesh that can be attached to them. 221. In the instant matter and as noted in this Judgment at paragraphs 10 to 16 herein-above, the 4th Defendant filed a Defence which was similar in many respects as the one for the 5th Defendant. The 4th Defendant specifically denied all of the Plaintifi’s claims in paragraphs 6A, 7A, 8A, 9A, 10, 11, 12, 13, 14 and 15 of the Amended Plaint whose contents were, in summary, that the Plaintifi bought the suit land in the year 2007 from the 4th Defendant; the 1st Defendant introduced the Plaintifi to the 4th Defendant; the 4th Defendant and the Plaintifi entered into https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 32

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an agreement of sale on 19th April 2007; the Plaintifi made payment of the purchase price as agreed with the 4th Defendant and took possession of the land; the Plaintifi had trusted her with assisting in the process of transfer and the documentation with respect to the transfer process; the 1st Defendant kept promising that the land would be transferred but there was a delay due to a caution lodged by a third party; the Plaintifi took possession of the land between 2008 and 2010; in 2011 she requested the Plaintifi to allow her to utilize the land, and in January 2020, the Plaintifi notified her of intention to utilize the land. 222. Further, the besides the above and other denials, the 4th Defendant also traversed the Plaintifi’s claims that there was collusion between the 1st, 2nd 3rd and 5th Defendants in the acquisition of the title to the suit land; the 5th Defendant’s acquisition of the suit parcel of land had anything to do with a suit which had not been filed; the acquisition of the suit parcel of land by the 5th Defendant was calculated at defeating the Plaintifi’s claim or defrauding the Plaintifi or frustrating the substratum of the of the suit; the 5th Defendant obtained the title to the suit parcel of land fraudulently and without adhering to due process; the 5th Defendant’s acquisition of the suit land was a nullity; the 5th Defendant acquired the suit parcel of land without paying valuable consideration; the 5th Defendant’s right to the suit land is unprotected; the 5th Defendant is not an innocent purchaser for value; the use of another person’s KRA details to pay stamp duty defeats the title; there was no Land Control Board meeting to approve the transfer of the suit land to the 5th Defendant; there was no valuation prepared for purposes of paying stamp duty; the 5th Defendant was under any duty to pay capital gains tax; the Plaintifi had a proprietary right over the suit land; the Plaintifi had sufiered any loss attributable to the 5th Defendant. 223. The 4th Defendants then pleaded that the 5th Defendant was an innocent purchaser for value without notice; he conducted due diligence before purchasing the suit land; his dealings with the 1st Defendant was above board; none of the actions of the 1st and 5th Defendants in their acquisition of the suit land could defeat their title to it; the Plaintifi was not entitled to the relief she sought; her claim was intended to defraud the 5th Defendant of his property; the suit land was acquired by the 5th Defendant regularly procedurally and legally; and lastly, that the Plaintifi’s claim was time barred under the Limitation of Actions Act. 224. After filing documents to support the said pleadings, she also filed a written Witness Statement dated 28th July, 2023 to accompany it. It was on all fours contrary in content with the pleadings. This Court needs not repeat the content. Notably, when the party testified orally she adopted her written Witness Statement. 225. I have stated above that the parties are bound by their pleadings. They should adduce evidence in line with their pleadings. That being so, in the instant case therefore, the defendant would not be heard to adduce evidence which was totally at variance with her pleadings or depart from them. Again, even if she were permitted to amend the pleadings, it would change her Defence diametrically or substitute it with a new Defence, which is not permissible in law. Thus, that being the factual position herein, her defense miserably failed. (b) Whether documents marked for identification but not produced can be relied on in evidence 226. The Plaintifi and her witness place a lot of weight on the copy of the agreement dated 14th July 2007 which was marked as PMF1 2. Her counsel and that of the 4th Defendant submitted that the document was produced in evidence and that it showed and proved that the Plaintifi bought the suit land from the 4th Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 33

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227. This Court notes that from the record, it is clear that such a document was never ultimately produced in evidence. Thus, regarding documentary evidence, particularly where the document is not the original, there proof thereof is preceded by three stages, as stated by this Court in Lwangu v Ndote (Environment & Land Case 79 of 2010) [2021] KEELC 2 (KLR) (10 November 2021) (Ruling). It the decision this Court held, “ It is worth explaining here the four stages of the production of secondary evidence (for example the photocopy in this case). Before a document is produced to show its contents, its existence or state/physical appearance (whichever is relevant to the proceedings before the court), it passes through three stages if it is the original or four if it is the secondary thereof that is available. (i) First, the document is filed in court (according to the rules or legal requirements. In civil cases, refer to order 3 rule 2 and order 11 of the Civil Procedure Rules and rule 28 of the Practice Directions on Proceedings in the Environment and Land Courts, and on Proceedings Relating to the Environment and the Use and Occupation of, and Title to Land and Proceedings in other Courts (herein referred to as the “Mutunga Rules”). Worth noting here is that if the party has not complied with the rules of filing the documents, he has to seek leave of the court to be permitted to file them out of time. The court has to be satisfied on the reasons why the party failed to comply with the rules. In Mansukhalal Jesang Maru v Frank Wafula [2021] EKLR, this court held as follows, “Essentially, I am saying here that the bar at which the court gets convinced that there is need of filing and relying on an additional document or witness statement should be very high, higher than the fifty-fifty chance. This is because by the time the parties are having the pre-trial conference, they shall have weighed their case and become satisfied that all is ready for the ship of trial to unhook from the anchor and sail. ” This means that it is not a walk in the park for a party who fails to comply with the timelines set by law or an order of the Court. Even Article 159(2) (d) that parties often rely to does not come to the aid of all parties in all situations. Each case has to be treated on its own merits. Even so, the bar for convincing the court to exercise its discretion to permit documents to be filed out of time is higher than the usual standard. (ii) Second, if the document is not the original, that is to say, it is secondary evidence, the party has to show the copy to the other parties and the court first. Then he will proceed to lay the basis for the production of the copy and not the original. This has to fall within the usual standard of satisfaction of the requirements of reliance on secondary evidence. (iii) Third, one the Court is satisfied that the party has laid a proper basis for producing secondary evidence of the document, it then permits the party to lay further basis for production of the document. This has to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 34

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be in according with the rules of relevance and admissibility in the law of evidence. (iv) Once, the above is complete, then the party has to prove the contents, state or physical appearance of the document. 21. Short of following the above steps, the party seeking to rely on a document to prove the issue in court will not succeed to do so unless the court exercises its discretion under section 69(iv) of the Evidence Act to dispense with the need for production of the document.” 228. In the instant matter the Plaintifi did not produce in evidence the document marked as PMFI 2. The same document it did not pass through the four (4) stages envisioned above. Therefore, its content would not amount to proof of the existence of an agreement between the Plaintifi and the 4th Defendant. Any oral evidence, unsupported by any documents amounts to nothing but mere inadmissible hearsay. This was the position held by the Court of Appeal in the case of Mwige v Kiguta & 2 others (Civil Appeal 140 of 2008) [2015] KECA 334 (KLR) (16 October 2015) (Judgment) where the Court of Appeal held; “ Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.” 229. In any event, Section 3 (3) of the Law of Contract Act requires the production of evidence of a written agreement with each signature of the parties attested by signatures of witnesses. Therefore, the Plaintifi, and indeed any other party herein could not rely on a document marked for identification, as evidence in support of their claim or position. (c) Whether submissions amount to pleadings and evidence (of parties) 230. The Plaintifi and the 4th defendant submitted at length on various aspects which touched on evidence which was not adduced at the hearing. For instance, the Plaintifi submitted extensively that the suit land was strategically situate and of sentimental value. On that basis she urged the Court to make a determination in her favor by granting her an injunction. The issue that arises here from is whether parties can introduce evidence into proceedings through submissions. 231. The position of the law submissions neither constitute participating nor are they evidence they are only a language it is used to convince the court to then onto their proposed view in the dispute before the court. Simply put, as was in the case of Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR) (9 May 2014) (Judgment), they are a marketing language of the parties. In the case, the Court held: “ Submissions are generally parties’ “marketing language”, each side endeavoring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 35

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232. In summary then, the court shall only rely on evidence adduced at the trial in order to make its findings herein. d. Whether the 4th Defendant is a credible witness 233. The issue at this point is that the 4th Defendant testified as DW1. She adopted her witness Statement dated 28th July 2023 as evidence in-chief. Her oral testimony was in line with the written Statement. However, the court record bears that on 2nd June 2021 the 4th Defendant who was then an Interested Party filed a written Statement which she titled “The Interested Party’s Statements.” It was dated 17th May 2021 this statement was totally in line with her pleadings to the efiect that there was no fraud on the part of the 1st Defendant and that she never sold the land to the Plaintifi and that the transactions between her and the Plaint as alleged were a forgery and she never received any payments from the Plaintifi when this statement is with her afidavit which she swore on 14th July 2020 and on which she was crossexamined extensively and she admitted that she swore it. The Statement was totally similar in content or in agreement with her depositions in the said Afidavit. The question that follows is whether the witness could talk out of both sides of her mouth. 234. The law is that when witnesses are called upon to give evidence they should be truthful hence credible. Section 154 of the Evidence Act, Chapter 80 Laws of Kenya provides that, “ When a witness is cross-examined he may, in addition to the questions hereinbefore referred to, be asked any questions which tend(a) to test his accuracy, veracity or credibility; (b) to discover who he is and what is his position in life; (c) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.” 235. The 4th defendant was the owner of the suit parcel of land issue before she sold allegedly sold it to one of the two parties herein, namely, Plaintifi or the 1st Defendant. Therefore, her evidence was critical in this case since both parties held unto their distinct positions. This was because, in the face of the two fiercely clashing standpoints between the two parties, Sarah was expected to be the independent impartial party, and witness to unravel the mystery of the alleged sale transaction, besides other witnesses. 236. The 4th defendant was examined extensively by 1st and 5th Defendants counsel and the 3rd Defendant’s counsel regarding her statement, her pleadings and the afidavit which she swore as stated above, and the variance thereto. It turned out the witness took two difierent positions in two difierent situations but over the same issue. Her credibility then came into sharp focus and in question. The court is of the humble view her credibility was great damaged, on crossexamination. 237. For instance, at one time, the witness stated that she did not transfer the land to the 1st Defendant. In her written statement she stated as much and on testifying and adopting her witness’s statement she stated as much. But on cross-examination she admitted that she https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 36

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voluntarily and willingly signed all the transfer documents in favor of the 1st Defendant and her intention was to transfer the said parcel of land to the said 1st Defendant. 238. Further, in my view her evidence tended to be more confusing than enlightening. This is because the said witness at one time appeared to side with the 1st Defendant completely in terms of confirming that she was the one to whom she sold the parcel of land. This was in line with the Afidavit the 1st Defendant produced which she (the 4th Defendant) swore in her advocate’s ofice while in the company of her son Alex who is a lawyer by training. The Afidavit and that of her son detailed the fact she sold the land in issue to the 1st Defendant. 239. This evidence was the opposite of the oral and adopted testimony. Besides, at one time she stated that she did not sign a Statement in the 1st Defendant’s lawyer’s ofices yet she admitted as much in her same statement, and the said lawyers filed her defence. In my humble view this witness could not be relied on in evidence. e. Whether the Plaintifi proved her assertion of purchase of the land to the required standard 240. At the core of the dispute herein was the alleged sale and transfer of land parcel number Chepsiro/Kibuswa Block 1/ Kelchinet/137. The Plaintifi claimed to have bought it from the 4th defendant, on 14th July 2007. The 1st Defendant also claimed as much. The Plaintifi attempted to prove her claim by adducing evidence in that regard through a copy of a sale agreement, marked PMFI 2 dated the same, purportedly signed between her and the 4th defendant and witnessed three people. But she ultimately did not produce the copy of the agreement in evidence. The 1st Defendant, on her part, produced an agreement, purportedly signed by her and the 44th also on the same date as that the Plaintifi alleged. Both documents were allegedly signed before one lawyer who would thereafter rise to the position judge in Kenya. 241. Interestingly both parties were relatives by virtue of being first cousins. As to what transpired between before and after the alleged transaction it is known between them. Needless to say, the Court was called upon to determine the issue of the purchase of the land by either. Thus, The Plaintifi sued the first defend over an allegation that the 1st Defendant defrauded her of the parcel of land which was hers by virtue of having allegedly bought it from the 1st Defendant. At this point it is worth repeating that Sections 107, 109 and 112 of the Evidence Act provide in totality that he who alleges a fact proves it except where the law has placed the onus on another person. In this case, therefore, the burden lay on the Plaintifi to prove that she bought the suit land. She was to do so on a balance of probabilities. 242. It was not on the 1st Defendant to disprove that the Plaintifi bought the suit land. This finding or observation is important here for the reason that the Plaintifi emphasized in her evidence, and also the 4th defendant summoned all evidence she could, to convince the Court to make a finding that the 1st Defendant had provided any evidence by way of valid agreement ofi sale or documentary proof payments of money to the 4th defendant over the alleged transaction of sale of the suit land. To require the 1st Defendant to adduce evidence to show that indeed it was not the Plaintifi but her who bought the suit land would inverse the law and make a grave error. I sympathize with the clashing views herein especially of that of the Plaintifi who did not at all adduce any documentary evidence to prove her claim. But that is the law. 243. Thus, in terms of Section 3(3) of the Law of Contract Act, it was incumbent on the Plaintifi to adduce evidence by way of a written agreement duly executed by her and the 4th defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 37

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and each signature witnessed by or attested by independent persons in accordance with the law. Section 33 provides as follows: “ No suit shall be brought upon a contract for the disposition of an interest in land unless(a) (b) the contract upon which the suit is founded(i) is in writing; (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: Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it afiect the creation of a resulting, implied or constructive trust.” 244. The Plaintifi brought the instant for a claim over a disposition of land. She led oral evidence, by herself as PW1 to the efiect that the she handed over the original of the sale agreement to the 1st Defendant to use to use it to assist her to process the registration of the suit land in her favor. This claim and evidence were vehemently refuted by the 1st Defendant. Even when the defence was raised in that regard, the Plaintifi did not attempt to have the copy of the agreement which she had certified as a true copy of original by lawyers who allegedly prepared the document. Furthermore, a disposition of land, or transaction of such a nature, would be required to be in writing and evidence led that indeed money exchanged hands during the transaction, particularly in accordance with the terms of the alleged agreement. The Plaintifi called to aid the evidence of the 4th Defendant. While I have stated above that the said party was an unreliable witness, neither the Plaintifi nor her produced any evidence to that efiect, other than alleging orally in the dock that indeed such transactions took place. Therefore, since there was compliance Section 33 of the Land Contractor Act, this Court finds that the Plaintifi failed to prove to the required standard of a balance of probabilities that she bought the suit land from the 4th defendant. Her allegation then that she was the owner fails. f. Whether the Plaintifi proved that the transfers to the 1st and 5th Defendants were fraudulent or forgery 245. The issue between the and the Plaintifi and the 1st and 5th Defendants is that the suit land was transferred from the 4th defendant to the 1st Defendant fraudulently, and all that the documents used for that purpose were fraudulent and a forgery. Regarding the transfer between the 1st Defendant and the 5th she alleged that it too was unprocedural, carried out with collusion with the 3rd Defendant and intended to defeat her proprietary interests in the suit land. This court will look the evidence on the transactions on the two transfers separately, starting with the transfer between the 1st and 4th defendants. 246. It was the Plaintifi’s testimony that the 4th Defendant confirmed to her that she had not transferred the land to the 1st Defendant. Further, PW1 testified that DW1 confirmed that she executed her transfer in favour of the Plaintifi and not the 1st Defendant. She added that it was inexplicable how then the suit land got registered in the name of the 1st Defendant. It was her evidence that the fraudulent transfer could only be possible due to connivance or negligence https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 38

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on the part of the 3rd Defendant. The 1st Defendant took advantage of the trust between her and herself and breached it. Also, she may have misled the 4th Defendant due to her age to executing a transfer instrument in her favour. 247. This Court, however, finds that it came out from the evidence of DW1, the 4th defendant, that indeed she signed a transfer in favor of the 1st Defendant and gave her the necessary documents for purposes of processing the transfer of the title in her favor. This testimony sharply contradicted both the Plaintifi’s pleadings that the 4th Defendant never signed documents in favour of the 1st Defendant and the Plaintifi’s own testimony that there was a fraudulent process of transfer of the suit land to the 1st Defendant, without documents of transfer being made. She also testified that she and the 1st Defendant made an application to the Land Control Board and attended it. Further, that through a special Control Board the 1st Defendant was given a consent to transfer the property to herself. Furthermore. the Land Registrar testified that all the procedures were followed and that instruments of transfer of the land executed and presented to the said ofice which acted on them by issuing the title deed in favor of the 1st Defendant. 248. The Plaintifi having found out that the 4th Defendant signed documents of transfer in favour of the 1st Defendant, and applied for and actually attended with the Plaintifi the Land Control Board, did not amend her pleadings. Thus, her own testimony also contradicted her claim. 249. Regarding the transfer between the 1st Defendant and the 5th, the Plaintifi testified that it was irregular: that it was done when there existed a charge to the AFC, a court order, and also that the instruments of transfer were not in existence, and no stamp duty was paid. 250. From the evidence on record, the Land Registrar testifying as 3DW1, provided evidence by way of documents as 3DWExh 1 to 14, which included transfer applications, valuation forms, Land Control Board consent and payment for stamp duty that, among others, to show that the transfer was lawful. 3DW1 also testified that all procedures were followed regarding the transfer of the suit land. On whether there existed a charge or a subsisting charge when the transfer was made, the Registrar gave evidence and DW2 also, contrary to that of the Plaintifi that indeed there was no charge subsisting at the time of transfer from 4th defendant to the 1st. Evidence was led by both 3DW1 and the 1st Defendant on the fact the discharge of charge was done a day before the transfer was afiected. Similarly, they testified and there was documentary evidence by the two witnesses, particularly the green card, 3DExh 1, that by the time the suit was instituted 29th June 2020 and the order of injunction issued on 30th of June 2020, the suit land had already been transferred to the 1st Plaintifi, which happened on 19th June 2020 while the order was served on 11th of July 2020, eleven (11) days later. 251. Regarding payment of stamp duty for the transfer between the 1st Defendant and the 5th, the Plaintifi stated that none was paid by the two. Further, that the payment used was that of PW2, Alice Webala, whose KRA Personal Identification Number (PIN) was used and a payment from her Cooperative Bank account made in that behalf. PW2 testified that she neither knew of the two parties nor had she ever gone to the bank to make such a transaction. The Plaintifi added that the Kenyan Shillings 150,000/= paid through PW2 account was for Succession proceedings she was carrying out on behalf of the Estate of her deceased father. Again, PW1 stated the valuation for the land was less than it ought to have been because the value given and paid for was the same as one of 2007 when she bought the land. She testified that the transfer was irregular and the transaction should be canceled. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 39

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252. This Court notes that PW2 was hard pressed and failed in cross-examination to explain how her PIN and Bank details and account could be used for the transaction without her knowledge and authorization. Whereas she testified that she did payments on behalf of the estate, she did not explain why a transmission whose fees is Kshs. 200/=would suddenly translate to Kshs. 150,000/= yet she said that she did not transact for stamp duty for any other transaction. Again, she did not explain how money could be withdrawn from her account without her knowledge yet she could not complain to the police or any other authority it so done. Moreover, the witness failed two explain how all the details of her private data or information would find its way to the transaction without her knowing and complaint about it. 253. It is curious to note that PW2 and PW1 had been doing transactions closely together, particularly, with the Plaintifi giving favours to PW2 by way of lifts to and from Court and even asking her to the police station yet (or while) PW1 had complained of or accused PW2, if true, that she had participated in or taken or ‘stolen’ her land. She did not bring bank documents from her bankers to confirm that indeed she was not the one who made the payments because contrary to the Plaintifi’s earlier evidence of bank transactions of 2007 having been very old and archived, those of her witness, PW2, we recent: less than four years at the time of testimony. For these reasons, this court is inclined to agree with the 3rd Defendant’s submissions that the witness, PW2 was an individual who participated well in the process of paying stamp duty for and on behalf of the 1st and 5th Defendants but was now being used as a gun for hire to scuttle the transfer process. 254. Be that as it may, 3DW1 testified that there was nothing irregular arising from the use of another person’s identification number to pay stamp duty in a transaction. Again, the KRA was not called to give evidence that the stamp duty it received for the transaction was irregular. Further, it was upon the parties to choose or through whom a duty would be paid. 255. In addition, the land registrar testified that when stamp duty has not been paid or a lesser sum paid than required it would not entail a cancellation of the transaction or annul it but rather the Registrar would keep the title under lock and key and raise an invoice for the sum or balance and penalties until they are paid for completion. Therefore, this Court finds that even if capital gains tax too was not paid that is a procedural process curable by asking the owner of the land to pay it. 256. Lastly, the Plaintifi testified that since the Land Control Board consent was obtained during the pendency of the charge on the property it was irregular. Indeed, the court finds that an application dated 12/6/2020 (3Dexh.9) was made to the Land Control Board and a consent dated 16/6/2020 (3DExh 10) issued while the charge was discharged on 18th June 2020. But in my humble view, and I agree with the evidence of DW2 and 3DW1, that there was no irregularity in that process because apart from unrecorded overriding interests, the law is concerned with transactions or entries in the Register that afiect a proprietor’s interests because that is what is ‘tangible’ and alters a proprietor’s position. If the process outside of the register would be taken to be unprocedural as the Plaintifi wants this court to believe then it would be unprocedural or illegal for a party who wishes to create a further charge on charged agricultural property to seek a consent to create that further charge during the pendency of the earlier one. To hold that was would stifie genuine and forward-looking economic transactions. It would call for parties to be shut up in their private negotiations and plans over transactions where charges exist. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 40

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257. It is the finding of this court, from the evidence of DW2 and 3DW21, that the transfers between the 4th and 1st Defendants and the 1st and 5th Defendants were regular. g. Whether the Plaintifi has proven her case against the 3rd defendant to the required standard 258. This issue revolves around whether the said defendant acted in good faith and in furtherance of its statutory duties. On it, the Plaintifi alleged that the 3rd defendant committed irregularities and fraud, and colluded with the 1st and 5th Defendants, which actions would make it liable. 259. This court starts the determination of this issue by first observing that the inside defendant is a statutory body that is mandated, among other duties, to conduct processes leading to issuance of titles. It was upon the Plaintifi to prove that the actions of the 3rd Defendant fell outside of those that it is mandated to carry out. 260. Section 14 (5) of the Land Registration Act provides: “The Registrar shall not be held personally liable for lawful acts discharged by the Registrar under this Act in good faith.” By the same token any oficer acting in faith good faith in the ofice of the land registrar while executing the mandate that he has been given makes an honest mistake or error ought not to commit the ofice to liability. 261. In Hussein versus the Land Registrar (2021) eKLR it was held that public oficers, including land registrars, are not reliable for errors committed in the course of performing their duties if there is no evidence of deliberate wrongdoing. 262. The Plaintifi testified the actions of the 3rd defendant was such that it committed irregularities and participated in fraud and collusion with the 1st and 4th and 5th Defendants. It was her evidence in-chief the acts of the 3rd defendant in registering the property in question from the 4th Defendant into the name of the 1st Defendant and from that of the 1st Defendant to the 5th Defendant’s without proper documentation in existence and also without satisfying itself that all the processes had been followed was wrong. However, in cross-examination she admitted that the land registrar did not participate in the transactions between the set of the first two parties and even that between 1st Defendant and the 5th. Further, that his actions only came tail end of the process when he received documents prepared by the parties, analyzed and satisfied himself that they were proper and proceeded make the requisite entries or registration and issuance of title documents. This was the evidence of PW2 during cross-examination and also the 1st Defendant, the 4th and even the 5th. It was also the similar evidence by the 3rd defendant’s witness. The witness stated further that the actions of the 3rd Defendant in the two transactions fell within, and were in line with, the statutory mandate given to it. the Court was satisfied with this evidence. 263. The analysis above, and the totality of the evidence as analyzed in the previous issue (g) above, clearly shows the Plaintifi did not prove her claim against the 3rd defendant to the required standard. It is this court’s finding therefore that the Land Registrar did not a commit acts that would attach liability to the 3rd Defendant. h. Whether the 5th Defendant was privy to any fraud or an innocent purchaser for value 264. The competing claims on the issue of the purchase of the suit property between the Plaintifi and the 4th defendant as compared to that between 1st and 4th defendants are now settled. The question that remains is whether the 5th Defendant who bought the suit land from the 1st https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 41

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Defendant was an innocent purchaser for value without notice or a participant of the alleged fraud. 265. Where the root of the title is clear and a purchaser acquires it innocently for valuable consideration, his interest is or ought to be protected by law. Thus, in Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR), the Supreme Court held that an innocent purchaser for value is the purchaser who exercises due diligence, which includes, but is not limited to, carrying out an inspection of the suit property. It defined that person as follows; “ An innocent purchaser for value would also denote one was aware of what they were purchasing by inspecting the suit premises. This takes us to the question of whether the appellant had visited the suit premises and if so, what was its impression of the military installations on the suit premises? The fact that the suit land was occupied must have sounded a warning of “buyer be aware” to the appellant. We therefore find that it was not an innocent purchaser for value entitled to orders for restoration or compensation” [Emphasis added]. 266. The case of Sehmi (infra) reiterates that “ It is worth emphasizing that the innocent purchaser doctrine only protects the purchaser against those basing their claims upon an equitable interest in the suit land.” 267. 268. Similarly, in the case of Sehmi & another v Tarabana Company Limited & 5 others (Petition E033 of 2023) [2025] KESC 21 (KLR) (11 April 2025) (Judgment) the Supreme Court restated the principle of an innocent purchaser for value as follows: “ 58. It is a fundamental principle of the law of property in land that a purchase of a legal estate for value without notice is an absolute, unqualified and unanswerable defence against the claims of any prior equitable owner or encumbrancer. The onus of proof however lies upon the person claiming to be a bona fide purchaser. Three main ingredients must be present for a claimant to mount a successful defence based on the doctrine. These are, innocence, purchase for value, and a legal estate. 59. The element of innocence means that the purchaser must act in good faith. His conduct must not raise any doubt as to whether indeed, he did not have any notice or knowledge as to the existence of a rival interest in the suit land. If for example, it comes to light that during the process of purchase, the claimant engaged in conduct that was unconscionable in the eyes of equity, such conduct would weaken his claim of innocence as to the existence of a rival interest. The element of innocence also connotes the exercise of diligence expected of any reasonable purchaser. The claimant must demonstrate that he acted diligently and conducted a reasonable inquiry into the status of the estate or land that he sought to purchase.” The 5th Defendant bought the suit land on 16th June 2020. The land was sold to him by the 1st Defendant in the sum of Kenya shillings 20 million. Subsequent to that the purchase the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 42

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vendor obtained a consent from the Land Control Board for the transfer of the property to him and was registered as the owner. It was contended by the Plaintifi in both her claim and the evidence she adduced that the 5th Defendant did not do due diligence to ascertain who the registered owner of the property was or that it was regularly registered as such. Indeed, the Plaintifi claimed further that therefore if the defendant was not an innocent purchaser for value and his title thereto should be cancelled or nullified. The Plaintifi claimed further that the 5th Defendant ought to have known that the land was not owned by the 1st Defendant. 269. On his part the 5th Defendant testified that when he learnt of the seller’s intention to sell the land he did due diligence on it. First, he talked with the seller. Then he went to or visited the ground to actually see it. He found 1st Defendant’s workers on the ground. They were doing top dressing of her crops. He inquired from the workers whose land it was and they informed him it belonged to her. He also talked with neighbours about it. The 1st Defendant informed him that except for the charge in favor of the AFC the land did not have any issues. He then went to the land’s ofice in Kitale and carried out a search to confirm who the owner was. The search confirmed it. He embarked on negotiations over it. By the time he bought it and it was transferred to him the 1st Defendant had discharged the property. 270. Further, regarding occupation and due diligence, the Court observes that the Plaintifi herself testified that from the year 2011 she was not in occupation but the 1st Defendant was. DW1 too testified that the 1st Defendant was in occupation. 271. It is my finding, and as guided by the decisions above cited, the evidence of the 5th Defendant as supported by that of the 1st Defendant demonstrates that the 5th Defendant did that which was required of him to ascertain before purchase that that the interest he was about to acquire in the suit land was a valid and lawful one hence proper, following the steps he took prior to the transaction. Further, the fact that the occupation thereon was of the 1st Defendant and her workers, and given there was barrier in the register against any registrable interest at the time the 5th Defendant presented his documents for registration, it’s my view that he was an innocent purchaser for value without notice and his interests are protected. i. Whether the sale agreement between the 1st Defendant and the 4th Defendant amounts to a contract 272. The 4th Defendant raised the issue of the legality of the agreement between her and the 1st Defendant, under Section 3(3) of the Law of Contract Act, during submissions. Could the 4th Defendant successfully litigate on the issue without it being part of her pleadings? 273. This Court has carefully considered the issue. On the one hand, the 4th defendant did not file a Counterclaim. She also did not file a notice of claim against her co-defendant. In no other pleading did the 4th Defendant pray for the cancellation of the agreement between her and the 1st Defendant. Instead, her pleadings were that the transaction between herself and the 1st Defendant was regular and free from fraud and collusion. It was only the Plaintifi who prayed for that, and on the basis that she was the buyer of the suit property. On that relief, the Court has found to the contrary. 274. Therefore, it sees no basis for a declaration to be made based on a nonexistent relief of a party not seeking it by her pleadings, but only at the submissions stage that the agreement was not proper, invalid or defective. In any event, none of the parties challenged the validity or legality of the agreement between the 1st and 5th Defendants or even the one between the 1st and 4th Defendants. The Court can only grant, upon successful litigation, reliefs prayed for by parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 43

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275. In this suit, the dispute is between the Plaintifi and the 1st Defendant and the 5th over ownership of the suit land. The 4th Defendant had nothing to do with it apart from providing evidence on sale and transfer from her. 276. On the other hand, the 4th defendant adduced evidence in support of the Plaintifi’s case. She also argued in her submissions in support of the Plaintifi’s case. As the court has observed before, parties are bound by their pleadings. It is an absurdity for her to claim against a party she has not raised a claim against. This wonders why she did not attempt to amend her pleadings to align her case with that of Plaintifi. This Court, therefore, finds her submissions that the agreement between her and the first once a mere contract contrary to her case, misplaced and untenable. 277. As I have stated before the 4th defendant adduced evidence which was contrary to her pleadings yet she was bound by them. She could not abate and reprobate. Her evidence that she was taken to the 1st and 5th Defendant’s lawyer and caused to sign an agreement and documents she did not understand is an afterthought. It is my humble view that the contract between the 4th defendants and the 1st was as true and genuine and that the 4th defendant’s submissions were arguments likened to a drowning person clutching onto a reed. j. Whether the Plaintifi can recover the land, if it is hers, or her title thereto is extinguished 278. This issue is a simple one: the dispute is between the Plaintifi and the 1st and 5th Defendants. It stems from the Plaintifi’s claim that she was the owner of the suit land. She claimed that she bought it on 14th July 2007 and started farming it from 2008 all the way to 2011. That from 2011 she left it in the care or hands of the 1st Defendant. But on cross-examination the Plaintifi admitted that she did not have any evidence to show she bought the land, or that she actually occupied it. Further, the Plaintifi did not have any evidence to show that she used harvest farm produce from the land and deliver it in any government stores. 279. On her part, the 1st Defendant proved that she bought the land from the 4th defendant. She also stated that she took occupation of the land upon purchase and began farming it up to the time of suit. Her occupation of land the land was confirmed by the 5th Defendant who stated that by the time he bought the land it was the Plaintifi in occupation, and her workers were working on it. Further, her occupation of it was also confirmed by the Plaintifi, assuming she was truthful at that point, that from the year 2011, the 1st Defendant was the one occupying and using the land. 280. This court makes a finding that the Plaintifi’s claim and evidence that she occupied the land and worked on it from the year 2007 to 2011 is untrue for two main reasons. First, she never established that she ever bought the land. Secondly, the Plaintifis own testimony and that of the 4th Defendant in cross-examination, proved that when the land was bought she (the Plaintifi) resided in Mombasa. Further, the Plaintifi’s own pleadings and evidence show that her absence from the ground was why, according to her, she entrusted the 1st Defendant to scout for land for her and she made payments through her. Also, her evidence was that she gave the 1st Defendant the land to use, but which claim was profusely denied by the 1st Defendant. This, when compared to the 1st Defendant’s claim and evidence show that it was the 1st Defendant who was in occupation of the suit land from the period of purchase. This is because, the 4th Defendant did not refute the claim that she gave up possession upon completion of the payment of the purchase price. That was from that time she bought the land. In any event Clause 5 of the Agreement produced as 1DExh 4, was clear that she would give vacant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 44

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possession on 31st December 2007. There was no documentary proof to the contrary. Thus, in terms of SectionS 97(1) and 98 of the Evidence Act, no oral evidence by the 4th Defendant or other person can be adduced to contradict that fact unless the said evidence falls among the exceptions in paragraphs (i) to (vi) of the latter Section. Hence the 4th Defendant’s oral testimony on occupation is inadmissible. Further, apart from the unreliable evidence of the 4th Defendant, the Plaintifi did not produce any evidence of occupation. 281. It is the court’s finding then that, if indeed any other Court of competent jurisdiction were to find that the suit land was owned by the Plaintifi, then the fact that there was no evidence of permission by the 1st Defendant to occupy and use the land means that she was on it against the owner, whether the 4th Defendant or the Plaintifi. But the 4th Defendant renounced ownership. The totality of the evidence of the non-permissive occupation by the 1st Defendant and any subsequent heirs means time ran from 2007 to 2020 when the suit was filed. The claim by the Plaintifi to the title would stand extinguished. Then by virtue of Sections 7 and 13 of the Limitation of Actions Act the Plaintifi cannot recover the parcel it from her. k. Whether the Plaintifi ’s suit was time barred 282. The Plaintifi sued the defend claiming that for reason of fraud she lost the suit land which she bought on 14th July 2007. She pleaded and testified that the fraudulent activities which led to the 1st Defendant being registered were in 2011, specifically, on 21st April 2011 when the transfer took place. And in paragraph 14 of the Amended Plaint the Plaintifi pleaded that the 1st Defendant requested her to allowed her cultivate the land in the year 2011. At paragraphs 19, 24A, 24B, 24C, 24D, and 24E the Plaintifi pleaded that the land was fraudulently transferred to the 1st Defendant in 2011. The question that remains unanswered then is that if at all there was fraud as alleged, when did the Plaintifi discover it? This is important because time for institution of suit started running for the Plaintifi from the time of discovery of the fraud. 283. The Plaintifi testified that the fraud took place in 2011 when the 1st Defendant became the registered owner. She did not the specify the year she discovered the fraud. However, the evidence of the 4th defendant was clear that the alleged transactions or alleged actions of fraud took place in the 2011. She stated that when Emmy wanted to be registered as owner, the 4th Defendant approached Plaintifi to inquire whether she had instructed the Plaintifi to be registered as owner. She also asked her if she had consented to the fact that the 1st Defendant would be given title and have the parcel registered in her name. At that point, the Plaintifi informed her (4th Defendant) that she was okay with the transaction going on because she wanted a number of our properties to be kept private. 284. The 4th Defendant’s evidence above is analyzed with that of the Plaintifi, particularly during re-examination where she testified that from the year 2011 when the alleged fraud took place to 2020 when she filed the instant case, that the period was not more than twelve years. Further, the Plaintifi’s own testimony was that she was in occupation to 2011. Again, she pleaded and testified that from 2008 she used to inquire from the 1st Defendant why there was a delay in registration of the title in her name and the answer given was that there was a caution on the property. It was her evidence too that the fraud took place in 2011 and when she discovered, she talked with (now Hon.) Yano about it. 285. It is my humble view that this evidence confirms that indeed the Plaintifi was aware of the alleged fraud front the year 2011 when the registration was made in favour of the 1st https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 45

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Defendant. If she was not aware, then in terms of Sections 4(2) and 26(1) of the Limitation of Actions Act the Plaintifi ought to have, with due diligence, discovered the fraud from that year, and the limitation period for a suit thus started running from then. However, the Plaintifi chose not to sue within the stipulated time. She only raised the issue in the year 2020, over nine (9) years when she filed the instant suit. 286. Section 4 (2) of the Limitation of Actions Act if to the efiect that causes of action involving fraud should be brought within three years from the time of discovery of the fraud or when with due diligence the fraud would have been discovered. It stipulates, “ An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued: Provided that an action for libel or slander may not be brought after the end of twelve months from such date.” 287. The conclusion is that the Plaintifi’s claim for fraud was time barred hence the suit ought to be dismissed, even on that account alone. l. Whether an Order of permanent injunction can be granted to the Plaintifi 288. The success or otherwise of this issue depended on the finding about the Plaintifi’s claim that she was the owner of the suit parcel of land as against the 1st and 5th Defendants respectively. As noted from the determination of the issues above this Court has clearly and specifically found that the Plaintifi is not the owner of the suit land. It has also found out that, even if the suit land would have by any chance been the Plaintifi’s by virtue of the transaction allegedly between her and the 4th defendant, her right to recover the land, or put difierently, her title thereto was extinguished at the expiry of the end of 12 years of her non-occupation and none recovery of the land, given that the 1st Defendant was in occupation without her permission. It goes without saying then that the relief of a permanent injunction prayed for by her cannot be granted. It also then goes without saying that the orders status quo issued herein on the suit parcel of land are hereby discharged. m. Who to bear the costs of the suit 289. The totality of the determination in this judgment is that the plaintifi’s claim failed and the suit is dismissed. Under Section 27 of the Civil Procedure Act this Court is obligated to make an order on who to bear the costs of the suit. Having carefully considered all the facts herein and particularly the fact that the plaintifi and the 1st Defendant are family members, it is the Court’s view that for harmony purposes each party shall bear their own costs. 290. Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 17TH DAY OF MARCH 2026. HON. DR. IUR F. NYAGAKA JUDGE From 11:36 AM, in the presence of: Ms. Chelogoi Advocate for the Plaintifi Mr. Wainaina Advocate holding brief Momanyi Advocate for the 1st and 5th Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 46

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Mr. Ogongo, State Counsel for the 3rd Mr. Ketter N. K. Advocate for the 4th Defendant. Hon. Dr. (iur) Justice Ongarora Fred Nyagaka 0 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1876/eng@2026-03-17 47

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