Michire v Ngimu Farm Land & 3 others (Environment and Land Case E041 of 2025) [2026] KEELC 2329 (KLR)

purchased LR No. Makuyu/Kimorori/Block 1/ 1928, the suit land, from the 1st Defendant vide a sale agreement dated 17-12-2002. He paid the full purchase price and took possession of the suit land. He fenced the land, planted a Kei apple fence and trees. He also cultivated the land and planted food crops all with the knowledge of the area chief, Muthaiga Ngugi. In paying the purchase price, the Plaintifi did so in an open manner through the 1st Defendant’s advocate G.M. Muhoro. Secondly, all through the payment of the purchase price, the fencing of the land, the occupation and the development of it, the oficials of the 1st Defendant assured the Plaintifi that all was well. This is especially so because the suit land had not been oficially transferred to the Plaintifi. Thirdly, in a fraudulent manner the 1st Defendant in cahoots with the 3rd and 4th Defendants secretly and unlawfully transferred the suit land to the 2nd Defendant after secretly lifting the caution that the Plaintifi had registered against the suit land. The Plaintifi did not take this lying down. He reported the matter to the Land Fraud Investigation ofice at the Directorate of Criminal Investigations Headquarters at Mazingira House and he is still waiting for their action. Fourthly, some unknown persons trespassed into the suit land, cutting down the Plaintifi’s trees and claiming to be the owners. It later turned out that these people included the 2nd Defendant. Finally, in a deliberate move to complicate the case even further, the 4th Defendant gave clearance to the 2nd Defendant to use the suit land as a security to secure a loan of Kshs. 14,471,790 from the Cooperative Bank of Kenya. For the above and other reasons, the Plaintifi prays for the orders as above. 3. The motion is opposed by the 1st and 2nd Defendants and in this connection , Peter Kamande Mungai, the Director and Chairman of the 1st Defendant has sworn a replying afidavit dated 6-10-2025. The second defendant has also sworn a replying afidavit dated 2-12-2025. 4. The response by the 1st Defendant is as follows. One, the suit land, Makuyu/Kimorori/1928 is a subdivision of , Makuyu/Kimorori/1609. All the subdivisions of LR No. 1609 are the subject of litigation in Murang’a ELC Case No. E028 of 2022, Ngimu Farm vs Patrick Njuguna Kariuki and 6 Others. The Plaintifi is the 5th Defendant in the suit where the 1st Defendant seeks cancellation of the transfers and the subdivisions of LR No. 1609. Two, in the suit No. E028/2022, the 1st Defendant’s case is that the Plaintifi in this case procured registration of the suit land by fraudulent means. The mother title for LR No. 1609 is currently being held by the firm of Wambugu and Muriuki advocates who act for the liquidator of the now defunct Kenya Planters Co-operative Union (KPCU). KPCU holds the titles to the properties belonging to the 1st Defendant as security for a loan. It is the 1st Defendant’s case that neither the Plaintifi nor the 2nd Defendant are in possession or control of the suit land. Their occupation is recent after a major survey exercise which was recently conducted by the District Surveyor exercise on all the property belonging to the 1st Defendant. Three, granting the Plaintifi leave to institute these proceedings would convolute the proceedings in ELC case No. E028 of 2022 and this will results in a multiplicity of suits. Finally, the Plaintifi has evaded the filing of a defence and counterclaim in EO28/2022 in a bid to defeat the course of justice and avoid being held accountable for his significant role in defrauding the 1st Defendant of its many properties. This suit should be consolidated with ELC E028/2022 so that the whole dispute can be conclusively dealt with. 5. In his response the 2nd Defendant states as follows. Firstly, he lawfully purchased the suit land from the 1st Defendant pursuant to an agreement dated 31-5-2013 after which he was issued with a title deed. Secondly, he took immediate possession of the land which was vacant and built a house which he resides in. All the developments of the suit land happened openly, continuously and without any objection from any person including the Plaintifi. If the Plaintifi bought the suit land in 2002, he has no title deed or possession yet the land had no encumbrances when the 2nd Defendant purchased it. Thirdly, the suit is time barred for having been filed outside the time allowed by the Limitation of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2329/eng@2026-04-27 2

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Actions Act. The Plaintifi has therefore not established a prima facie case with a probability of success to warrant the orders that he seeks. 6. Counsel for the parties filed written submissions dated 24-2-2026 and 9-4-2026 respectively.. Only the Plaintifi’s counsel identified two issues for determination. Counsel for the 2nd Defendant did not identify any issues for determination. 7. I have carefully considered the motion in its entirety including the grounds, the supporting afidavit, the replying afidavits, the written submissions and the law cited therein. I agree with the Plaintifi’s counsel that the two issues identified will resolve the motion. The issues are as follows. 8. i. Whether this suit is properly filed as per the statute of limitation. ii. Whether this court should grant a temporary injunction pending the hearing and determination of the suit. On the first issue, I am not sure when the fraud alleged was discovered by the Plaintifi. It however seems to be a continuing fraud which is still pending investigations by the DCI. In the afidavit by the chairman of the 1st Defendant, he stated as follows at paragraph 12 of the replying afidavit. “ …These parties have only recently began interfering with our quiet possession of our properties upon a major resurvey exercise which was recently conducted by the District Surveyor or all the properties belonging to Ngimu Farm Limited.” The Defendants have not yet filed any defences even though I directed in July 2025 that they be served with all the pleadings and summons to enter appearance. Further to this, the 1st Defendant is inviting the Plaintifi to file these pleadings in ELC E028/2022. This would seem to be an admission that the Plaintifi’s claim is within time. Until I have all the pleadings including a possible reply to defence, I cannot determine if the suit is time barred or not. A Court of law would rather sustain a suit rather than dismiss it without first having all the facts. See DT Dobie and Company (Kenya) v Joseph Mbaria Muchina and another [1980] eKRL. 9. As for the second issue, I find that the Plaintifi has established a prima facie case with a probability of success. He has shown by oral and documentary evidence that he paid for land belonging to the 1st Defendant and he has never got the land because he was forcibly evicted from it without due process. None of the Defendants has responded to this claim by the Plaintifi. If the application is not allowed, the suit land could be alienated to the detriment of the Plaintifi. The substratum of the suit should therefore be preserved until the suit is heard and determined. For the above stated reasons, I allow the notice of motion dated 24-6-2025 in terms of prayer (iv). Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 27TH DAY OF APRIL, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Anthony Plaintifi’s Counsel – Mr. Thuo 1st Defendant’s Counsel – Mr. Wahome https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2329/eng@2026-04-27 3

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2nd Defendant’s Counsel – Mr. Githinji https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2329/eng@2026-04-27 4

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