Wayumba & 2 others (Suing as the Trustees of Avenue Park Self Help Association) v Sevo Limited & 2 others (Environment and Land Case E253 of 2024) [2026] KEELC 3950 (KLR)

b) If the order No. (a) is not complied within 7 days of the judgement, an order of mandatory injunction be issued compelling the 2nd and 3rd Defendants to transfer LR No.13768/64 and 13768/65 in the name of the Plaintifi, without the completion documents, specifically the mother title, among others, being availed. c) In the alternative a declaration be issued that the 1st Defendant’s right to title in respect of LR No.13768/64 and 13768/65 has been extinguished under the doctrine of adverse possession and the said titles be registered in the name of the Plaintifi. d) Costs of the suit be borne by the 1st Defendant. 2. The 1st Defendant did not enter appearance. While the 3rd Defendant appeared for the 2nd Defendant in the suit, he did not file a statement of defence on its behalf. 3. The suit was canvassed by way of viva voce evidence. Evidence of the Plaintifi 4. The Plaintifi’s sole witness, PW1 was Mr. Charles Macharia, chairperson of the Plaintifi. It was his testimony that the 1st Defendant was owner of LR No. 13768, IR No.41906 as registered under Deed Plan No. 128767 and that he constructed sectional properties thereon and sold to various members of the Plaintifi through leasehold titles. Further, that he also curved the suit properties, being LR No. 13768/64 and 13768/65 out of the mother title and designated them for transmission to the Plaintifi’s name as playgrounds. He testified that on 25th January 2010, the Plaintifi entered into a Transfer Agreement with the 1st Defendant for transfer of the suit properties to its name and that in furtherance of the transmission, the 1st Defendant duly signed Transfer Forms to have the suit properties transferred to the Plaintifi’s name. PW1 then presented them to the 2nd Defendant who informed him that a copy of the mother title ought to be availed so that the transfer could be efiected but the 1st Defendant refused to avail a copy of the said mother title to facilitate the processing of the transfer. He also averred that the Plaintifi has been in actual possession of the suit properties since 2010 thus the 1st Defendant’s title has extinguished by efiuxion of time and adverse possession. 5. He produced documents listed on the Plaintifi’s list and bundle of documents dated 19th June 2024 as P. Exhibit 1-9. 6. In cross-examination, PW1 confirmed that the Plaintifi is registered by the Registrar of Societies and that he is one of the oficials as per the Plaintifi’s last AGM. Further, that he works in close collaboration with the Plaintifi’s Trustees, though he was not sure if documents were filed to confirm the Plaintifi’s current oficials. He also explained that the Plaintifi is run by a committee of oficials while Trustees take care of assets of the estate, which are the suit properties. 7. He emphasized that the Plaintifis’ visited the 1st Defendant’s last known address which is Pan Afric Hotel to request for surrender of title but the 1st Defendant did not avail it. He clarified that while the Plaintifi has not indicated any wrong doing against the 2nd Defendant, they have a procedural claim for Court to direct it, to proceed with the transaction because it is the entity which is supposed to process it. 8. In re-examination, PW1 emphasized that the Plaintifi is a registered association and that he is the chairman of the Special Lands Committee elected by residents who are members of the association. 9. The 2nd and 3rd Defendants closed their cases without calling any witness. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3950/eng@2026-06-30 2

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Submissions 10. The Plaintifi submitted that they have met the threshold for grant of the prayer of specific performance as there exists an enforceable contract between the 1st Defendant and themselves. Further, that in proof of their intention, the parties duly executed the transfer forms dated 25th January 2010, in respect of the suit properties, adding that a party cannot be allowed to casually escape from the terms of a contract in which they freely executed. 11. They also submitted that there is no other relief available to them save for the remedy of specific performance since land is unique in nature and damages would not be an adequate remedy where property rights are concerned. He insisted that the suit properties were specifically designated as play grounds for the benefit of members of the Plaintifi who own Sectional properties on the mother title and form part of the overall development scheme. 12. It was also submitted that in the event that the 1st Defendant fails to comply with an order of specific performance, a mandatory injunction directing the 2nd and 3rd Defendants to efiect registration without the mother title would be justified in order to give efiect to the parties’ intention and prevent injustice. 13. They urged the Court that in the event the orders of specific performance and mandatory injunction are not complied with, then a declaration ought to be made that they have acquired a good title by adverse possession by virtue of being in open and uninterrupted possession of the suit properties for over 12 years. 14. To buttress their averments, the Plaintifi relied on the following decisions: Reliable Electrical Engineers Ltd v Mantrac Kenya Limited (2006) eKLR; Amina Abdulkadir Hawa v Rebinder Nath & Another [2012] eKLR; Thrift Home Limited v Kenya Investment Limited [2015] eKLR and National Bank of Kenya Ltd v Pipeplastic Samkolit (k) Ltd & another [2001] eKLR. Analysis and Determination 15. Upon consideration of the Plaint, testimony of the witness, exhibits and submissions, the following are the issues for determination:Whether the Plaintifi is entitled to an order of specific performance.Whether a mandatory injunction may issue against the 2nd and 3rd Defendants if the 1st Defendant fails to comply. 16. The Plaintifi’s case is founded upon a transfer agreement dated 25th January 2010 and duly executed transfer instruments between the 1st Defendant and themselves, relating to LR No. 13768/64 and LR No. 13768/65, derived from the 1st Defendant’s mother title, LR No. 13768, I. R No. 41906. They seek an order of specific performance to compel the 1st Defendant to avail all the necessary completion documents, specifically the mother title, for purpose of allowing the LR No. 13768/64 and 13768/65 to be transferred to them. The Defendants did not oppose this suit by filing their respective defences nor availing witnesses. 17. It is trite that the remedy of specific performance can only issue where there exists a valid and enforceable contract, as it is an equitable remedy granted where damages are inadequate. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3950/eng@2026-06-30 3

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18. In William Muthee Muthami v Bank of Baroda [2014] eKLR the Court of Appeal stated that: “ In the law of contract, the aggrieved party to an agreement must, in addition, prove that there was ofier, acceptance and consideration. It is only when those three elements are available that an innocent party can bring a claim against the party in breach.” 19. Similarly, it was stated as follows in William Kazungu Karisa v Cosmas Angore Chanzera [2006] eKLR: “ The basic rule of the law of contract is that the parties must perform their respective obligation in accordance with the terms of the contract executed by them” 20. Further, in Reliable Electrical Engineers Ltd. vs Mantrac Kenya Limited (2006) eKLR, it was held thus: “ The Jurisdiction of specific performance is based on the existence of a valid enforceable contract. It will not be ordered if the contract sufiers from some defect, such as failure to comply with the formal requirements or mistake or illegality, which makes the contract invalid or enforceable. Even when a contract is valid and enforceable, specific performance will however not be ordered where there is an adequate alternative remedy. In this respect damages are considered to be an adequate alternative remedy where the claimant can readily get the equivalent of what he contracted for from another source. Even when damages an adequate remedy specific performance may still be refused on the ground of undue infiuenced or where it will cause severe hardship to the defendant.” 21. I note PW1 in his testimony confirmed that the 1st Defendant was owner of LR No. 13768, IR No. 41906 as registered under Deed Plan No. 128767. He explained that the 1st Defendant had constructed sectional properties on the aforementioned parcel of land and sold to various members of the Plaintifi through leasehold titles. PW1 confirmed that the 1st Defendant had also curved the suit properties, being LR No. 13768/64 and 13768/65 out of the mother title and designated them for transmission to the Plaintifi’s name as playgrounds. Further, that on 25th January 2010, the Plaintifi entered into a Transfer Agreement with the 1st Defendant for transfer of the suit properties to its name and that in furtherance of the transmission, the 1st Defendant duly signed Transfer Forms to have the suit properties transferred to the Plaintifi’s name. 22. However, it was PW1’s testimony that upon presenting the duly signed Transfer Forms to the 2nd Defendant for purposes of efiecting the Transfer to the Plaintifi’s name, he was informed that a copy of the mother title ought to be availed so that the said Transfer could be efiected. It was his further testimony that the 1st Defendant refused to avail a copy of the said mother title to facilitate the processing of the transfer. 23. It is trite that for a party to be entitled to specific performance, there has to exist a valid enforceable contract. From the evidence tendered before this Court, I note the Plaintifi produced the duly executed Agreement of Transfer and Transfer Form dated the 25th January, 2010 for the suit properties, Copy of Title for LR No. 13768, Trust Deed, Registration Certificate and Letter to the 1st Defendant. 24. In the foregoing, while associating myself with the decisions cited, I find that there was indeed a valid enforceable agreement between the 1st Defendant and Plaintifi. Further, that since the 1st Defendant signed the Transfer Form, it was incumbent upon it to produce the mother title to aid in efiecting of the Transfer. Since the 1st Defendant has failed to produce it, in the interest of justice noting that the Plaintifi has been utilizing the suit property and there being no evidence to rebut the Plaintifi’s averments, I find that the Plaintifi is entitled to an order of specific performance as against the 1st https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3950/eng@2026-06-30 4

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Defendant who should be directed to avail the mother title within thirty (30) days from the date hereof, to enable the Plaintifi obtain the transfer. In my view if it fails to avail the mother title as directed, then the Chief Land Registrar can be compelled to proceed to efiect the registration without the mother title. 25. In the foregoing, I find that the Plaintifi has proved their case on a balance of probability and will proceed to enter judgement in their favour as against the Defendants in the following terms: i. An order of specific performance be and is hereby issued compelling the 1st Defendant, within thirty (30) days from the date hereof, to avail all the necessary completion documents, specifically the mother title, for purpose of allowing the LR No. 13768/64 and 13768/65 to be transferred in the name of the Plaintifi. ii. If the order No. (a) is not complied within thirty (30) days from the date of this Judgement, an order be and hereby issued compelling the 2nd and 3rd Defendants to transfer LR No. 13768/64 and 13768/65 in the name of the Plaintifi, without the completion documents, specifically the mother title, among others, being availed. iii. The costs of this suit is awarded to the Plaintifi to be borne by the 1st Defendant. DATED SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JUNE, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Ms Manyara holding brief for Ochieng for Plaintifi Court Assistant: Vena https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3950/eng@2026-06-30 5

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