REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MAKUENI ELC NO. E014 OF 2024 THOMAS MAINGI WAMBUA........ …………………………….PLAINTIFF -VERSUS JACOB WAMBUA MUNYWOKI... …………………............ DEFENDANT AGRICULTURAL FINANCE CORPORATION....INTERESTED PARTY JUDGMENT 1. The Plaintiff is a son to the Defendant. The Defendant had taken a loan from the Interested Party and had a charge registered over LR No. Kibauni/Malunda/38 to secure a loan of Kshs.30,000/=. The charge was registered against the title on 4th April, 1996. 2. The Plaintiff alleges that the Defendant defaulted in repayment of the loan. The Defendant agreed with the Plaintiff that he was to help him repay the loan to avoid the land being auctioned to realize the security. The Plaintiff alleges that the Defendant agreed to give him a larger share upon the Defendant subdividing his land amongst his children. 3. The Plaintiff states that his father reneged on the agreement with him after he had made payment on his behalf and the balance of the loan was waived by the Interested Party. It is on this basis that he filed this suit against the Defendant claiming the reliefs in the Plaint. 4. The Plaintiff testified that the Defendant had given his brothers 5 acres each yet they did not contribute to the repayment of the loan. He stated that the Defendant has reduced his entitlement within plot No. Kibauni/Malunda/38 to 1.3 acres and that he has been selling the land without caring about the family and using the money received on drinking. 5. The Defendant and the Interested Party who were duly served neither entered appearance nor filed a defence to the Plaintiff’s claim. During the hearing, the Plaintiff adopted his witness statement dated 13 th May, 2024. He ELC NO. E014 OF 2024 1|Page
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produced 19 exhibits in support of his case. He also called his wife Ruth Wambua who adopted her statement dated 16th June, 2025. He also called his farm manager Martin Wambua who adopted his witness statement dated 12 th May, 2025. 6. The Plaintiff filed his submissions dated 13 th May, 2025. I have carefully considered the evidence adduced by the Plaintiff and that of his witnesses as well as the submissions filed. Though the case proceeded by way of formal proof, the Plaintiff was bound to prove his case on a balance of probabilities. 7. The Plaintiff did not prove that there was any agreement between him and his father or that the Defendant was going to give him a bigger share once he subdivided his land amongst his children. The Plaintiff produced receipts issued for payments made between 11th June, 2001 and 25th May, 2005. There was a total of Kshs.100,000/= made towards repayment of the loan for that period. The Interested Party waived the balance of loan being Kshs.74,054.92 on. 13th January, 2004. There was payment of the cost of waiver and discharge of Kshs.2,000/= and Kshs.500/= made on 25th May, 2005 respectively. 8. All the payments were made in the name of the Defendant. I have already stated hereinabove that the Plaintiff did not provide any agreement between him and the Defendant. The Plaintiff claimed to have been making payments by cheque but he did not produce any copy of cheque or bank statement to confirm that he was the one making payments. There was also no evidence adduced to show that the Interested Party had received notification for sale of plot No. Kibauni/Malunda/38. 9. There was also no evidence adduced that the Plaintiff’s land had been reduced to 1.3 acres or that his brothers had been given 5 acres or that the Defendant had sold family land to third parties. The alleged subdivision using alleged forged title was not proved. ELC NO. E014 OF 2024 2|Page
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10.The Plaintiff did not prove the Kshs.8,500/= claimed as special damages or payment of the sum of Kshs.132,500/= being claimed in the alternative as compensation for what he allegedly spent. In the absence of this evidence, the Plaintiff is not entitled to any order of specific performance, injunction, eviction, or any other reliefs being claimed. I find that the Plaintiff has failed to prove his claim on a balance of probabilities. The Plaintiff’s suit is hereby dismissed with no order as to costs. .................................................. HON. E. O. OBAGA JUDGE JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 18TH DAY OF MAY, 2026. IN THE PRESENCE OF: Ms. Gitonga for Plaintiff. Court assistants Kilonzo and Musyoki ELC NO. E014 OF 2024 3|Page
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