Kittony v Kisorio & 2 others

THE 1ST DEFENDANT AND CANCELLATION OF THE CERTIFICATE OF LEASE ISSUED THERETO. D.REINSTATEMENT OF THE PLAINTIFF’S TITLE WITH RESPECT TO L.R. NO. ELDORET MUNICIPALITY BLOCK 12/423 AND ISSUANCE OF A CERTIFICATE OF LEASE UNDER THE PLAINTIFF’ NAME. E. A PERMANENT INJUNCTION RESTRAINING THE 1ST DEFENDANT AND HIS AGENTS OR SERVANTS FROM TRESPASSING ONTO OR IN ANY OTHER WAY INTERFERING WITH THE PLAINTIFF’S OWNERSHIP, POSSESSION, OCCUPATION AND USE OF L.R. NO. ELDORET MUNICIPALITY BLOCK 12/423. F. ANY OTHER RELIEF AS THE HONOURABLE COURT MAY DEEM JUST AND FAIR TO GRANT. G.COSTS OF THE SUIT. 2. The facts in support of the prayers sought in the present suit were outlined as follows; i. The Plaintiff was the lawful allottee of the property currently known as LR.NO. ELDORET MUNICIPALITY BLOCK 12/423 (hereinafter referred to as “the suit property”). ii. The Plaintiff’s ownership of the suit property was based on a Letter of Allotment dated 30.01.1991 of which all terms and conditions therein were fully complied with. iii. Thereafter, the Plaintiff did commence the process of procuring and executing the formal Lease issuance of the Certificate of Lease in her name. iv. Due to the Plaintiff’s busy schedule and the unfamiliarity with the process of procuring the formal Lease for ELC.E025 of 2024 JUDGEMENT 2

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execution and registration, she did seek the assistance of the 1st Defendant who was indeed familiar with this process. v. The 1st Defendant indeed did accept the assignment given to him by the Plaintiff and was handed over all the appropriate documents to facilitate the process of procuring a formal Lease, registering the same and acquiring the Certificate of Lease thereof. vi. However, on or about April 2024, the Plaintiff did learn that the 1st Defendant has taken possession of the suit property herein and dealing with the same as though he was the lawful owner of the same. vii. It is based on these actions by the 1 st Defendant that the Plaintiff did undertake an official search of the suit property to verify the status of its registration. viii. The outcome of the official search on the suit property did indicate that the Plaintiff had actually been registered as the lawful owner of the suit property on the 09.02.2021 and thereafter, the same was transferred to the 1st Defendant on the 22.02.2022. ix. The Plaintiff’s position is that the purported transfer of the suit property from herself to the 1 st Defendant was undertaken irregularly and without her consent as there was no valid Agreement For Sale, an Application For Consent to Sale and/or the formal Transfer Form executed by her to alienate the same in favour of the 1 st Defendant. x. The Plaintiff therefore did plead that the 1 st Defendant’s actions of transferring the suit property from the Plaintiff was contrary to her instructions and were for his own self-enrichment to her detriment. ELC.E025 of 2024 JUDGEMENT 3

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xi. xii. The Plaintiff did seek the Court to cancel the purported Transfer Form registered by the 1 st Defendant alienating the suit property in his favour as well as all the supporting documents therein and the 2 nd Defendant be directed to rectify the Register of the suit property by deleting the name of the 1 st Defendant and retaining the name of the Plaintiff as the legitimate and lawful owner of the suit property. The Plaintiff did further seek for a Permanent Injunction prohibiting the 1st Defendant from interfering, dealing with and/or in whatsoever manner acting on the suit property contrary to the ownership rights of the Plaintiff herein. 3. The present suit was duly served on the 1 st, 2nd and 3rd Defendants herein. 4. The 1st Defendant did oppose the present suit by filing a Statement of Defence and Counter-Claim dated 24.09.2024. 5. In the 1st Defendant’s Statement of Defence dated 24.09.2024, the following facts were pleaded in opposition to the present suit; i. First and foremost, the 1st Defendants did deny the facts pleaded by the Plaintiff in the present suit in totality. ii. The 1st Defendant did state that he was the lawful registered owner of the suit property as provided for in the Register held by the 2nd Defendant herein. iii. The 1st Defendant did further plead that he was the person in occupation and use of the suit property as the lawful registered owner of the same. iv. According to the 1st Defendant, there indeed does exist a valid Agreement for Sale between the Plaintiff and himself with all the relevant completion documents to facilitate the alienation of the same to his name. ELC.E025 of 2024 JUDGEMENT 4

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v. 6. The 1st Defendant therefore did plead that the facts pleaded in the present suit were a misrepresentation of the correct facts and the orders sought therein should therefore be dismissed with costs. In addition to the 1st Defendant’s Statement of Defence, there was a Counter-Claim dated 24.09.2024 against the Plaintiff herein seeking the following Orders; A. A DECLARATION THAT THE PLAINTIFF BY COUNTERCLAIM IS THE LAWFUL OWNER OF ELDORET MUNICIPALITY BLOCK 12/423. B. A PERMANENT INJUNCTION RESTRAINING THE DEFENDANT AND HER AGENTS OR SERVANTS FROM TRESPASSING OR IN ANY OTHER WAY FROM INTERFERING WITH THE PLAINTIFF’S OWNERSHIP, POSSESSION AND USE OF THE LAND REFERENCE NUMBER ELDORET MUNICIPALITY BLOCK 12/423. C. MESNE PROFITS. D. COSTS OF THE SUIT. E. ANY OTHER RELIEF THAT THIS HONOURABLE COURT MAY DEEM JUST TO GRANT. 7. The facts in support of the prayers sought in the CounterClaim were as follows; i. The 1st Defendant did reiterate the facts pleaded in his Statement of Defence in their entirety. ii. According to the 1st Defendant, the Plaintiff did offer to sale the suit property to the 1st Defendant which offer was duly accepted and an Agreement for Sale dated 07.06.2016 was executed thereof. ELC.E025 of 2024 JUDGEMENT 5

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8. 9. iii. The 1st Defendant did plead that the consideration in the Agreement for Sale dated 07.06.2016 was Kenya Shillings Eight Million (KShs. 8,000,000/-) which was fully settled. iv. Upon full settlement of the Purchase Price in the Agreement for Sale dated 07.06.2016 by the 1 st Defendant, the Plaintiff herein did voluntarily execute all the completion documents including the Application for Consent to Transfer and the Transfer Forms ready for registration. v. The 1st Defendant did confirm that the completion documents duly executed by the Plaintiff relating to the suit property were duly and lawful registered in the 2 nd Respondent’s offices and a Certificate of Lease in the name of the 1st Defendant issued accordingly. vi. Based on the Certificate of Lease issued in favour of the 1st Defendant, he did take possession of the suit property and in fact has undertaken a number of developments on the same. vii. Despite the suit property now being vested with the 1 st Defendant, the Plaintiff herein did continue demanding unjustified payments over the same and even did threaten to take back the ownership of the same if the 1 st Defendant did not comply. viii. In essence, the 1st Defendant did plead that the CounterClaim herein be allowed and the Plaintiff’s case be dismissed. The 2nd and 3rd Defendants also did oppose the present suit through a Joint Statement of Defence dated 02.07.2024. In the Joint Statement of Defence dated 02.07.2024, the present suit was opposed on the following grounds; - ELC.E025 of 2024 JUDGEMENT 6

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i) The 2nd and 3rd Defendants did deny the allegations contained in the present suit in totality. ii) The 2nd and 3rd Defendants did plead that according to the Register relating to the suit property, the original owner of the property was the Plaintiff who then did transfer the same to the 1st Defendant on the 22.02.2022 and the relevant Certificate of Lease was duly issued. iii) The 2nd and 3rd Defendants did admit that the Letter of Allotment relating to the suit property was issued in favour of the Plaintiff who then did comply with all the terms and conditions therein warranting the issuance of a Lease in her name and registration of the suit property in her name. iv) The 2nd and 3rd Defendants did state that the transfer of the suit property from the Plaintiff to the 1 st Defendant was lawful done based on the documents that were presented in the offices of the 2 nd Defendant for registration. v) In essence, the 2nd and 3rd Defendants did deny participating in any form of fraud and/or misrepresentation as alleged by the Plaintiff in the present suit. vi) In conclusion, the 2nd and 3rd Defendants did urge the Court to find that the Plaintiff’s suit lacks merit and to dismiss the same with costs. 10. The 1st Defendant’s Statement of Defence and Counter-Claim was duly served on the Plaintiff. 11. The Plaintiff on the other hand did file a Reply to Defence and a Defence to the Counter-Claim dated 20.06.2025. 12. In the Reply to Defence to the 1st Defendant’s Statement of Defence, the Plaintiff did plead the following facts; - ELC.E025 of 2024 JUDGEMENT 7

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i) The Statement of Defence by the 1st Defendant was a mere denial and did not raise any triable issues therein. ii) The Plaintiff did further specifically deny the existence of any Agreement for Sale over the suit property to the 1 st Defendant herein and put him to strict proof thereof. iii) In essence, the Plaintiff did plead that the 1 st Respondent’s registration as the owner of the suit property and his subsequent occupation of the same was unlawful and illegal. iv) The Plaintiff did state that the 1 st Respondent’s actions of transferring the suit property from her name to his name was a product of a fraudulent scheme and therefore null and void. v) In other words, the Plaintiff did urge the Court to dismiss the 1st Defendant’s Statement of Defence. 13. As regards the Counter-Claim, the Plaintiff did file a Defence to the Counter Claim dated 20.06.2025 based on the following facts; i) The Plaintiff did deny the facts pleaded in the 1 st Defendant’s Counter-Claim in total. ii) To begin with, the Plaintiff did state that the suit property herein was not in her name until the year 2021 as demonstrated in the Official Search procured in 2022. iii) Secondly, the Plaintiff had not made contact with the 1 st Defendant in the year 2016. iv) Consequently, the allegation that there was an Agreement for Sale made over the suit property between the Plaintiff and the 1st Defendant was not true. ELC.E025 of 2024 JUDGEMENT 8

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v) The Plaintiff did further deny knowledge of the Advocate known as E.K ROTICH NYONGIO who is purported to have witnessed the signatures on the Agreement for Sale and did further deny issuing any instructions to any other advocate to prepare an Agreement for Sale in relation to the suit property. vi) In essence, the Plaintiff did deny receipt of any monies from the 1st Defendant as consideration of the suit property and in particular the sum of Kenya Shillings Eight Million (KShs 8,000,000/-) as alleged by the 1 st Defendant. vii) Further to the above, the Plaintiff did deny either lawfully and intentionally executing any Transfer Forms or any other documents of transfer over the suit property in favour of the 1st Defendant. viii) As regards possession of the suit property, the Plaintiff did deny that the 1st Defendant was in occupation of the same and did plead that she was the one in occupation and use of the suit property. ix) The Plaintiff did reiterate that her instructions to the 1 st Defendant was to assist her procure the formal Lease of the suit property and upon execution, register the same for purposes of procuring the Certificate of Lease therein. x) In conclusion, the Plaintiff did seek the Court to dismiss the 1st Defendant’s Counter-Claim with costs and allow the present suit. 14. The Plaintiff did not file any Reply to Defence to the 2 nd and 3rd Defendants Statement of Defence within the prescribed time in law. ELC.E025 of 2024 JUDGEMENT 9

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15. The 1st Defendant was duly served with the Reply to Defence and Defence to Counter-Claim by the Plaintiff but there was no Reply to the Defence on the Counter-Claim that was filed. 16. As such, pleadings were duly closed and the present suit was set down for hearing. PLAINTIFF’S EVIDENCE TESTIMONIES & DOCUMENTARY 17. The Plaintiff herein was called as the first witness and she was marked as PW 1. 18. The Plaintiff did introduce herself as a senior citizen having played different roles in public service. 19. The Plaintiff did state that she resides both in Nairobi and Tran Nzoia Counties. 20. The Plaintiff then did inform the Court that she had prepared, signed and filed a witness statement dated 30.04.2024 of which she did adopt as her evidence in chief. 21. Thereafter, the Plaintiff did produce the following documents in support of her evidence in chief; PW 1 EXHIBIT 1 – A Copy of a Letter of Allotment dated 30.01.1991 in relation to Industrial Plot contained in attached Plan No. 31710/XXI/24 in favor of the Plaintiff. PW1 EXHIBIT 2 (a, b & c) – Copies of receipts No. 5/07/91, 22/1/93 and 02/04/93 from the Commissioner of Land to the Plaintiff. PW1 EXHIBIT 3 – A Copy of an Official Search of Eldoret Municipality Block 12/423 dated 23/06/2023 ELC.E025 of 2024 JUDGEMENT 10

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PW1 EXHIBIT 4 – A Certified Copy of the White card of the suit property dated 11/04/2024. PW1 EXHIBIT 5 – copy of a Demand letter dated 04/04/2024 from the Plaintiff counsel to the 1st Defendant. 22. In concluding her evidence in chief, the Plaintiff did seek the Court to allow the present suit and grant prayers sought therein. 23. On cross-examination by the 1st Defendant, the Plaintiff did admit being familiar with the 1st Defendant. 24. The Plaintiff did further confirm that the 1 st Defendant was the one currently registered as the owner of the suit property. 25. However, the Plaintiff did deny executing any documents to alienate the suit property to the 1 st Defendant and in particular the Application for Consent to Transfer and the formal Transfer Form therein. 26. The Plaintiff did confirm that the 1 st Defendant had presented a number of documents for her execution which were to facilitate the procurement of the formal Lease and registration of the same in her name and not transfer the suit property to the 1st Defendant. 27. The Plaintiff did concede that her plan was to dispose of the suit property once she had acquired the Certificate of Lease. 28. Consequently, the 1st Defendant did advance her a friendly loan of Kenya Shillings One Million (KShs.1,000,000/-) which would be refunded once the suit property had been disposed of. ELC.E025 of 2024 JUDGEMENT 11

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29. The Plaintiff did further inform the Court that the intended consideration of the suit property at the time of sale had been agreed with the 1st Defendant. 30. On further cross-examination by the 2nd and 3rd Defendants, the Plaintiff did reiterate that the sum of Kenya Shillings One Million (KShs.1,000,000/-) received from the 1 st Defendant was a friendly loan and not a portion of any purchase price relating to the suit property. 31. The Plaintiff did inform the Court that the sum of Kenya Shillings One Million (KShs.1,000,000/-) was received on the 25.04.2022 and not when the purported Agreement For Sale was executed. 32. On being referred to the 2 nd and 3rd Defendants List of Documents, the Plaintiff did testify that she was not familiar with the Transfer Forms and the Consent To Transfer that were held by the 2nd Defendant’s office. 33. On being referred to the Agreement For Sale in the 1 st Defendant’s List of Documents, the Plaintiff did admit that the 2nd Defendant was not a party to the same. 34. On being referred to the Transfer Form relating to the suit property held by the 2nd Defendant, the Plaintiff did confirm that it bears her signature and photograph thereon. 35. The Plaintiff did confirm that the signature and photographs of the 1st Defendant were on the Transfer Form held by the 2 nd Defendant. 36. On being referred to the Application For Consent To Transfer held by the 2nd Defendant, the Plaintiff did deny executing such a document in favour of the 1 st Defendant as was shown on the same. ELC.E025 of 2024 JUDGEMENT 12

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37. The Plaintiff did further testify that although the Letter of Consent held by the 2nd Defendant was over the suit property, the same had been acquired irregularly and/or unprocedurally. 38. The Plaintiff did admit that based on the documents presented by the 1st Defendant to the 2nd Defendant for registration, the 2nd Defendant was not at fault to accept the same and register them. 39. The Plaintiff did reiterate that she had not made contact with the 1st Defendant in the year 2016 and therefore there was no way she would have executed the Agreement For Sale dated 07.06.2016 regarding the suit property herein. 40. Further to the above, the Plaintiff did deny receiving the sum of Kenya Shillings Eight Million (KShs.8,000,000/-) from the 1 st Defendant in the year 2016 as consideration of the suit property. 41. The Plaintiff did aver that the sum of Kenya Shillings One Million (KShs.1,000,000/-) owing to the 1 st Defendant as a friendly loan had not been paid back to date. 42. On re-examination, the Plaintiff did testify that she had never applied and/or attended any Land Control Board meeting for purposes of processing the Letter of Consent to Transfer the suit property to the 1st Defendant. 43. Similarly, the Plaintiff did testify that she had never executed any Transfer Form relating to the suit property in favour of the 1st Defendant. 44. Nevertheless, the Plaintiff did admit that the 1 st Defendant had presented a number of documents for execution relating to the procurement of the Formal Lease and its registration only in the year 2022. ELC.E025 of 2024 JUDGEMENT 13

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45. On being referred to the Agreement For Sale produced by the 1st Defendant, the Plaintiff did point out that the suit property therein was LR.NO.ELDORET BLOCK 12 (XII)/423 and not the suit property herein. 46. The Plaintiff did further aver that according to the Agreement For Sale, the full purchase price of Kenya Shillings Eight Million (KShs.8,000,000/-) was to be paid between June 2016 and December 2016. 47. However, at this particular time, the Plaintiff and the 1 st Defendant had not known each other and there is no proof of any payment of the same. 48. The Plaintiff did inform the court that the only monies she did receive from the 1st Defendant was the sum of Kenya Shillings One Million (KShs.1,000,000/-) on the 25.04.2022 which was a friendly loan advanced to her by the 1st Defendant. 49. In concluding her re-examination, the Plaintiff did confirm that the suit property was registered in the name of the 1 st Defendant on 22.02.2022 and the transfer of Kenya Shillings One Million (KShs.1,000,000/-) was received on the 25.04.2022. 50. At the end of this re-examination, the Plaintiff was duly discharged from the witness box. 51. The Plaintiff’s second witness was one MR. AMGE KIPROP KIPTUI who was marked as PW2. 52. PW 2 did introduce himself as a farmer by occupation and a resident of both Nairobi and Trans Nzoia Counties. 53. PW 2 did inform the Court that he recorded, signed and filed a Witness Statement dated 05.12.2025 which he did adopt as his evidence in chief. ELC.E025 of 2024 JUDGEMENT 14

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54. PW 2 did confirm to the Court that he was familiar with both the Plaintiff and the 1st Defendant herein. 55. In ending his evidence in chief, PW 2 did disclose that he was the nephew to the Plaintiff and the 1 st Defendant had been his friend for over a period of Twenty (20) years. 56. On cross-examination by the 1st Defendant, PW 2 did testify that he was the one who had introduced the 1 st Defendant to the Plaintiff herein. 57. PW 2 did further confirm that currently the suit property was registered in the name of the 1st Defendant. 58. PW 2 however did aver that he was not aware of any Agreement for Sale between the Plaintiff and the 1 st Defendant relating to the suit property. 59. Consequently, PW 2 did deny any knowledge of any transfer documents that were signed by the Plaintiff relating to the suit property in favour of the 1st Defendant herein. 60. PW 2 did insist that if the 1st Defendant’s registration as the owner of the suit property was to be upheld, then the correct procedures must be followed. 61. Nevertheless, PW 2 did confirm that the 1 st Defendant had informed him that he was in possession and/or occupation of the suit property. 62. On further cross-examination by the 2nd and 3rd Defendants, PW 2 did indicate that he was not aware of any Sale transaction between the Plaintiff and the 1 st Defendant in regards to the suit property. ELC.E025 of 2024 JUDGEMENT 15

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63. According to PW 2 knowledge, the 1 st Defendant was tasked to assist the Plaintiff procure her formal Lease and ensure the registration of the suit property in her favour. 64. PW 2 did deny any knowledge of the existence of an Agreement for Sale between the Plaintiff and the 1 st Defendant over the suit property or any consideration paid for the same. 65. In concluding his cross-examination, PW 2 did testify that he had visited the suit property in the year 2025 but at time, the 1st Defendant was not in possession or use of the suit property and there were no structures belonging to the 1 st Defendant on the ground. 66. On re-examination, PW 2 did confirm that he had introduced the Plaintiff to the 1st Defendant in the year 2020. 67. PW 2 did reiterate that the main duty of 1 st Defendant was to assist the Plaintiff to procure the formal Lease of the suit property and have the same registered in her name so that the Certificate of Lease could be issued. 68. In concluding his re-examination, PW 2 did categorically testify that the Plaintiff and the 1 st Defendant did not know each other before the year 2020. 69. At the end of the re-examination, PW2 was discharged and the Plaintiff thereafter did close her case. 1ST DEFENDANT’S EVIDENCE 70. TESTIMONIES & DOCUMENTARY The 1st Defendant was the first witness to testify and was marked as DW 1. ELC.E025 of 2024 JUDGEMENT 16

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71. The 1st Defendant did introduce himself as a businessman by occupation and a resident of both Nairobi and Uasin Gishu Counties. 72. The 1st Defendant did inform the Court that he had recorded and filed a witness statement dated 07.04.2025 of which he did adopt as his evidence in chief. 73. In support of his evidence in Chief, the 1 st Defendant did produce the following documents; DW1 EXHIBIT 1 – A Copy of a Certificate of Lease dated 22.02.2022 for Eldoret Municipality Block 12/423 in favor of the 1st Defendant. DW1 EXHIBIT 2 – A Copy of an Official Search of the suit property dated 21.03.2022. DW1 EXHIBIT 3 – A Copy of the Agreement of Sale dated 07.06.2016 between the plaintiff and the 1st Defendant over L.R. No. Eldoret Municipality Block 12(XII)/423 DW1 EXHIBIT 4 – A Copy of the Advice slip of a Bank Transfer dated 25.04.2022 from the 1st defendant to the Plaintiff for Kshs.1,000,000/= DW1 EXHIBIT 5 – A copy of an Mpesa Statement dated 14.05.2026 showing transfers from 24.01.21 to 07.04.2022 from the 1st Defendant to the Plaintiff amounting to Kshs.232,100/= DW1 EXHIBIT 6 – A copy of the duly executed Transfer Form not dated but attested on 19.12.2020. 74. On being referred to DW 1 EXHIBIT 3, the 1 st Defendant did inform the Court that the date appearing on the Agreement ELC.E025 of 2024 JUDGEMENT 17

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For Sale as 07.06.2016 was not correct and the correct dated was 07.06.2019. 75. The 1st Defendant did testify that the Agreement For Sale was prepared by an Advocate known as OGOLLA OCHOLLA & ADVOCATES. 76. The 1st Defendant did aver that the full sum of Kenya Shillings Eight Million (KShs.8,000,000/-) indicated in the Agreement For Sale was paid to the Plaintiff in cash on or before December 2019. 77. The 1st Defendant did further state that the sum of Kenya Shillings One Million (KShs.1,000,000/-) and the additional sum of Two Hundred and Thirty-Two Thousand (KShs.232,000/-) were additional payments over and above the consideration of Kenya Shillings Eight Million (KShs.8,000,000/-). 78. The 1st Defendant did inform the Court that after his registration as the owner of the suit property in 2022, he did take possession but was evicted by the Plaintiff in the year 2024. 79. In concluding his evidence in chief, the 1 st Defendant did seek the Court to declare him the lawful owner of the suit property as contained in his Certificate of Lease and issue a Permanent injunction against the Plaintiff from interfering with his quiet possession of the same. On cross-examination by the 2nd and 3rd Defendants, the 1st Defendant did reiterate that the Agreement for Sale with the Plaintiff was entered on the 07.06.2019. 80. 81. The 1st Defendant did aver that the Agreement for Sale was prepared on his instructions by the firm of OGOLLA OCHOLLA & COMPANY, ADVOCATES and executed by the Plaintiff on the 07.06.2019. ELC.E025 of 2024 JUDGEMENT 18

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82. Upon execution of the Agreement for Sale, the signatures of the Plaintiff and the 1st Defendant were witnessed by an Advocate known as ROTICH NYONGIO. 83. As regards the consideration of Kenya Shillings Eight Million (KShs.8,000,000/-) contained in Clause 3.1 of the Agreement For Sale, the same was paid in cash to the Plaintiff on or before December 2019. 84. The 1st Defendant did concede that it was not possible to have paid the full purchase price of Kenya Shillings Eight Million (KShs.8,000,000/-) on the date of execution and again pay the same amount by December 2019. 85. On being referred to PLAINTIFF EXHIBIT 1, the 1 st Defendant did state that the sum of Kenya Shillings One Million (KShs.1,000,000/-) paid to the Plaintiff on the 25.04.2022 was over and above the consideration of the Agreement For Sale. 86. In total, the 1st Defendant did inform the Court that the Plaintiff had received a total sum of Kenya Shillings Nine Million Two Hundred and Thirty-Two Thousand (Kshs.9,232,000/=) 87. The 1st Defendant did testify that the Transfer Form of the suit property was executed by the Plaintiff on the 19.12.2020 in her home in Kitale, Trans Nzoia County. 88. However, the 1st Defendant could not confirm who was given the instructions to prepare the Transfer Forms by the Plaintiff. 89. The 1st Defendant did further aver that the Transfer Form was not executed by both the Vendor and the Purchaser on the same date. 90. Consequently, if the Transfer Form states that both the Vendor and the Purchaser did execute the same on the same date, then this was not the correct position. ELC.E025 of 2024 JUDGEMENT 19

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91. The 1st Defendant did state that at the time of execution, he did sign his part before the Advocate known as NYONGIO and left the Transfer Form with the same advocate for the Plaintiff to execute. 92. As regards submission for registration, the 1 st Defendant did inform the Court that the Transfer Documents were lodged for registration by the Advocate known as NYONGIO acting on instructions issued by him. 93. The 1st Defendant did aver that the 2nd Defendant was not present during the transaction with the Plaintiff and did only register the documents which had been presented to its office on behalf of the 1st Respondent. 94. The 1st Defendant did confirm to the Court that he had no claim whatsoever against the 2 nd Defendant herein based on his Counter-Claim. 95. The 1st Defendant did testify that there was no witness when the consideration of Kenya Shillings Eight Million (KShs.8,000,000/-) was being handed over to the Plaintiff. 96. Similarly, the 1st Defendant did not have any form of acknowledgement of the sum of Kenya Shillings Eight Million (KShs.8,000,000/-) from the Plaintiff herein. 97. The 1st Defendant did admit being friends with PW 2 for a long period of time but did deny the allegations that he was the one that had introduced him to the Plaintiff herein in the year 2020. 98. The 1st Defendant did reiterate that the proposal to purchase the suit property was made by the Plaintiff in the year 2018 but the title would be transferred to him after the Certificate of Lease was issued by the 2nd Defendant. ELC.E025 of 2024 JUDGEMENT 20

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99. The 1st Defendant did aver that in the year 2021, the Certificate of Lease of the suit property was issued in the name of the Plaintiff and collected by her. 100. Subsequently, the Plaintiff’s Certificate was accordingly attached to the Transfer Form in favour of the 1 st Defendant. 101. The 1st Defendant did aver that after his registration as the owner of the suit property, he did take possession of the same but was evicted by the Plaintiff herein in Mid-2024. 102. On cross-examination by the Plaintiff, the 1 st Defendant did reiterate that the date appearing on the Agreement for Sale was not the correct date. 103. The 1st Defendant did further admit that in all his pleadings namely the Defence and the Counter-Claim, the date of the Agreement for Sale pleaded therein was 07.06.2016 although this was not the correct date. 104. On being referred to Clause 3 of the Agreement for Sale, the 1st Defendant state that this was not the correct position. 105. The 1st Defendant did admit that there was no Agreement For Sale dated 07.06.2019 which had been presented before the Court and he does not have any acknowledgement and/or proof of paying the consideration amounting to Kenya Shillings Eight Million (KShs.8,000,000/-) to the Plaintiff. 106. The 1st Defendant did concede that the Plaintiff was not the registered owner of the suit property either in the year 2016 and/or 2019. 107. On being referred to PLAINTIFF EXHIBIT 4, the 1 st Defendant did state that the suit property was registered in the name of the Plaintiff on the 09.02.2021. 108. On being referred to DW 1 EXHIBIT 6, the 1 st Defendant stated that the Transfer Form from the Plaintiff to the 1 st Defendant was executed on the 19.12.2020. ELC.E025 of 2024 JUDGEMENT 21

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109. In essence, the 1st Defendant did admit that the Transfer Form dated 19.12.2020 was executed before the Plaintiff was registered as the lawful owner of the suit property on the 09.02.2021. 110. On being referred to DW 1 EXHIBIT 1, the 1 st Defendant did describe the suit property as LR.NO.ELDORET MUNICIPALITY BLOCK 12/423. 111. On being referred to DW 1 EXHIBIT 6, the property in the Transfer Form dated 19.12.2020 was described as ELDORET MUNICIPALITY BLOCK (XII)/423. 112. The 1st Defendant did insist that despite the differences in the description of the property in the Agreement For Sale and that in the Certificate of Lease, the two properties were one and the same. 113. On being referred to the Application Form for the Land Control Board Consent, the 1st Defendant did confirm that the property therein was identified as LR.NO.ELDORET MUNICIPLAITY BLOCK 12 (XII)/423 and not the suit property herein. 114. The 1st Defendant did also admit that he did not have the Registration Booking Form to confirm when the Transfer was presented for registration before the 2nd Defendant’s office. 115. The 1st Defendant did testify that the Transfer Form was actually prepared, witnessed and presented for registration by the Advocate NYONGIO although he was not present when the Plaintiff did execute the same. 116. The 1st Defendant did testify that PW 2 came to learn about his transaction with the Plaintiff in the year 2024 when the Certificate of Lease had already been issued in his name. ELC.E025 of 2024 JUDGEMENT 22

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117. On re-examination, the 1st Respondent did reiterate that the property described in the Agreement For Sale was the same as that described in the Certificate of Lease in his name. 118. The 1st Defendant did refer to DW 1 EXHIBIT 3 which according to his testimony had the signature of the Plaintiff herein as the Vendor. 119. The 1st Defendant did insist that the full purchase price of Kenya Shillings Eight Million (KShs.8,000,000/-) was paid in full to the Plaintiff before the Transfer Form was executed and registered. 120. The 1st Defendant did conclude his re-examination by stating that the Certificate of Lease issued in his name was lawful and legitimate. 121. At the end of this re-examination, the 1 st Defendant was discharged from the witness box. 122. The second witness who testified in support of the 1 st Defendant’s case was one SABINA KHAYEJA SHIBACHI and was marked as DW2. 123. DW 2 did introduce herself as a farmer by occupation and a resident of Uasin Gishu County. 124. DW 2 did inform the Court that she had prepared and filed a witness statement dated 05.02.2026 of which she did adopt the same as her evidence in chief. 125. DW 2 did testify that she was on occupation of the suit property herein on instructions of the 1 st Defendant until the year 2025 when she was directed to vacate from the same. 126. During DW 2 occupation on the suit property, the 1 st Defendant had planted trees and put up some other forms of structures therein. 127. On cross-examination by the 2nd and 3rd Defendant, DW 2 did testify that she had been in occupation of the suit property ELC.E025 of 2024 JUDGEMENT 23

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from February 2021 to March 2025 and not 2018 as indicated in her witness statement. 128. On further cross-examination by the Plaintiff, DW 2 could not identify the property on which she was in occupation. 129. DW 2 did admit that she had not produced any documents to prove her occupation of the suit property. 130. At the end of this cross-examination, there was no reexamination and DW2 was thereafter discharged. 131. The third witness in support of the 1 st Defendant’s case was ADVOCATE ROTICH NYONGIO who was marked as DW3. 132. DW 3 did introduce himself as an Advocate of the High Court of Kenya, practicing within Uasin Gishu County. 133. DW 3 did inform the Court that indeed the Agreement for Sale Dated 07.06.2016 was duly executed by the Plaintiff and the 1st Defendant in his presence at the Plaintiff’s residence in Trans-Nzoia. 134. Similarly, DW3 did testify that the Transfer Form produced as DW 1 EXHIBIT 6 was executed by both the Plaintiff as the Vendor and the 1st Defendant as the Purchaser on the same date at the Plaintiff’s residence in Trans-Nzoia in his presence. 135. The other document that DW 3 did point out had been executed in the Plaintiff’s residence in Trans-Nzoia was the Application for Consent Form by both the Plaintiff as the Vendor and the 1st Defendant as the Purchaser in his presence. 136. DW 3 then confirmed that upon obtaining all the relevant documents for Transfer, he did witness the signatures thereof and handed over the same to the 1st Defendant for his further action. ELC.E025 of 2024 JUDGEMENT 24

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137. DW 3 therefore denied the allegation by the 1 st Defendant that he was the one that had presented the Transfer documents for registration in the 2nd Defendant’s office and/or procured their registration. 138. DW 3 then did produce the following document in support of his testimony in chief; DW2 EXHIBIT 1 – A Copy of the Application Form to the Land Control Board Eldoret certified on 29.05.2024. 139. On cross-examination by the Plaintiff, DW 3 did clarify that he was not the one that had prepared the Agreement for Sale dated 07.06.2016 because the same had been prepared by the firm of OGOLLA OCHOLLA & ADVOCATES. 140. DW 3 did state that his mandate as regards the Agreement for Sale dated 07.06.2016 was limited to only witnessing of the signature therein. 141. Be as it may, DW 3 did confirm that the date appearing on the Agreement for Sale as 07.06.2016 was not the correct date and the actual date was 07.06.2019. 142. DW 3 unfortunately did not have any evidence that the firm of OGOLLA OCHOLLA & ADVOCATES had actually instructed him to witness the signatures of the Plaintiff and the 1 st Defendant. 143. Nevertheless, DW3 maintained that the signatures of the Plaintiff and the 1st Defendant were undertaken on the 07.06.2019. 144. On being referred to Clause 3 of the Agreement for Sale produced as DW 1 EXHIBIT 3, DW 3 did confirm that the firm of OGOLLA OCHOLLA & ADVOCATES were to act only for the Purchaser and not the Vendor who is the Plaintiff. ELC.E025 of 2024 JUDGEMENT 25

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145. DW 3 did state that at the time of witnessing the signatures of the Plaintiff and the 1st Defendant against the Agreement for Sale and/or the Transfer Forms, he did not see the ownership documents of the suit property. 146. Similarly, DW 3 was not in a position to ascertain the lawful owner of the suit property. 147. DW 3 did state that it was possible that at the time of witnessing the Agreement for Sale dated 07.06.2016, the Plaintiff was not yet registered as the lawful owner of the suit property. 148. DW 3 did inform the Court that indeed the description of the property in the Agreement for Sale dated 07.06.2016 and the description of the suit property in the Certificate of Lease issued to the 1st Defendant were not the same. 149. Nevertheless, according to DW 3, this variation in the description of the property in the Agreement for Sale dated 07.06.2016 and the one appearing in the Register held by the 2nd Defendant was not material. 150. DW 3 did state that the Transfer Form dated 19.12.2020 was for the property known as LR.NO. ELDORET MUNICIPALITY BLOCK 12 (XII)/423 which has the same description as that in the Certificate of Lease produced as DW 1 EXHIBIT 1. 151. DW 3 did point out that while the Application Form to the Land Control Board was provided for Agricultural Land which are freeholds, the suit property was an industrial plot and the ownership documents issued was a Certificate of Lease meaning it was leasehold. 152. On re-examination, DW 3 did state that he was familiar with the terms and conditions of the Agreement for Sale dated ELC.E025 of 2024 JUDGEMENT 26

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07.06.2016 having carefully read the same to the Plaintiff and the 1st Defendant at the point of execution. 153. DW 3 did further confirm that the property described in the Agreement for Sale, the Application for Consent to Transfer and the Transfer Form was one and the same as that described in the Register of the suit property and the Certificate of Lease in the name of the 1st Defendant. 154. DW 3 did reiterate that all the Completion documents of the suit property transferring the same from the Plaintiff to the 1st Defendant were executed in his presence. 155. However, DW 3 did confirm that he was never given any instructions by the Plaintiff to prepare the Completion Documents on behalf of the Plaintiff who was the registered owner of the suit property. 156. After re-examination, DW3 was discharged and the 1 st Defendant thereafter did close his case. 2ND & 3RD DEFENDANTS DOCUMENTARY EVIDENCE TESTIMONIES & 157. Counsel for the 2nd and 3rd Defendants did inform the Court that no witnesses would be called on their behalf. 158. The 2nd and 3rd Defendant’s case was therefore closed. 159. This being the end of the hearing, the Court did direct the parties to file their final submission in support of their positions. 160. The Plaintiff did file her submissions dated 10.06.2026, while the 1st Defendant did file his submissions on the 06.07.2026. 161. The 2nd and 3rd Defendants did not file any final submission in support of their case. ELC.E025 of 2024 JUDGEMENT 27

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162. The Court has carefully gone through the pleadings, testimonies of the parties herein and the documentary evidence produced before the Court and identifies the following issues for determination; ISSUE NO.1- WHAT IS THE TRUE DESCRIPTION OF THE SUIT PROPERTY IN DISPUTE? ISSUE NO.2- WHAT WAS THE VALIDITY AND/OR LEGALITY OF THE AGREEMENT FOR SALE DATED O7.06.2016? ISSUE NO.3- WERE THE COMPLETION AND/OR TRANSFER DOCUMENTS USED TO TRANFER THE SUIT PROPERTY LAWFUL AND LEGITIMATE? ISSUE NO.4- WAS THE CERTIFICATE OF LEASE ISSUED IN FAVOUR OF THE 1ST DEFENDANT LAWFUL AND LEGITIMATE? ISSUE NO.5- IS THE PLAINT MERITED OR NOT? DATED 30.04.2024 ISSUE NO.6IS THE COUNTER-CLAIM 24.09.2024 MERITED OR NOT? DATED ISSUE NO.7- WHO BEARS THE COSTS OF THE PRESENT SUIT AND THE COUNTER-CLAIM THEREOF. 163. The Court having identified the main issues for determination, the same will now be discussed and resolved as follows; ISSUE NO.1- WHAT IS THE TRUE DESCRIPTION OF THE SUIT PROPERTY IN DISPUTE? 164. The first issue for determination seeks to establish the correct description of the suit property before the Court. ELC.E025 of 2024 JUDGEMENT 28

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165. The Plaintiff did plead that she was allocated the suit property through a Letter of Allotment dated 30.01.1991 (PLAINTIFF EXHIBIT 1). 166. The Plaintiff did further plead and testify that upon acceptance of the Letter of Allotment dated 30.01.1991, the due process was undertaken and finally the suit property was registered as LR.NO. ELDORET MUNICIPALITY BLOCK 12/423 based on the White Card certified on the 11.04.2024. (PLAINTIFF EXHIBIT 4). 167. It was therefore the Plaintiff’s position that the correct description of the suit property was LR.NO. ELDORET MUNICIPALITY BLOCK 12/423. 168. The 1st Defendant on the other hand did not dispute the fact that the proper description of the suit property was LR.NO. ELDORET MUNICIPALITY BLOCK 12/423 in any of his pleadings. 169. In fact, the 1st Defendant did produce two documents namely a Certificate of Lease dated 22.02.2022 in his favour and a Copy of an Official Search dated 21.03.2022 all referring to the suit property as LR.NO. ELDORET MUNICIPALITY BLOCK 12/423. (DW 1 EXHIBIT 1 & 2). 170. It is therefore this Court’s finding that the correct and proper description of the suit property before the Court is LR.NO. ELDORET MUNICIPALITY BLOCK 12/423. ISSUE NO.2- WHAT WAS THE VALIDITY AND/OR LEGALITY OF THE AGREEMENT FOR SALE DATED O7.06.2016? 171. The second issue for determination is the validity and/or legality of the Agreement for Sale dated 07.06.2016. 172. The Plaintiff herein in her Reply to the Statement of Defence and Defence to the 1st Defendant’s Counter-claim did deny ELC.E025 of 2024 JUDGEMENT 29

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entering into an Agreement for Sale dated 07.06.2016 with the 1st Defendant herein over the suit property in dispute. 173. The 1st Defendant on the other hand did plead in his Statement of Defence and Counter-Claim that there was an Agreement for Sale dated 07.06.2016 over the suit property between himself and the Plaintiff herein. 174. The 1st Defendant did produce the Agreement for Sale dated 07.06.2016 as DW 1 EXHIBIT 3. 175. During his testimony in chief, the 1st Defendant did state that the purchase price for the suit property was Kenya Shillings Eight Million (KShs.8,000,000/-) which was paid to the Plaintiff in cash on or before the date agreed for its payment. 176. Nevertheless, the 1st Defendant did clarify that although the Agreement for Sale was dated 07.06.2016, the actual and correct date was 07.06.2019. 177. The 1st Defendant did testify that the Plaintiff herein did execute the Agreement For Sale in her residence in TransNzoia fully being aware of the terms and conditions thereof which had been mutually agreed. 178. The Plaintiff disputed these facts and did state that the suit property was never sold to the 1 st Defendant through the Agreement For Sale dated 07.06.2016. 179. First and foremost, the Plaintiff did testify that the 1 st Defendant was not known to her in the year 2016 when the Agreement For Sale dated 07.06.2016 was purported to have been executed. 180. The Plaintiff did testify that she was introduced to the 1 st Defendant in the year 2020 through PW 2 who is her nephew to assist her procure the formal lease of the suit property and have the same registered in her name. ELC.E025 of 2024 JUDGEMENT 30

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181. The Plaintiff further did deny instructing any advocate known as OGOLA OCHOLLA & ADVOCATES or ADVOCATE ROTICH NGONYIO to act on her behalf or prepare the alleged Agreement For Sale dated 07.06.2016. 182. The Plaintiff did state that the instructions issued to the 1 st Defendant by her was to assist in the procurement of the formal Lease to the suit property and register the same in her name. 183. It is important in resolving this issue that the Court indeed carefully peruses the Agreement For Sale dated 07.06.2016 and thereafter verify the facts adduced by the parties to make a finding on whether the same was valid and/or lawful. 184. The first aspect for consideration by this Court is the date when the Agreement For Sale was executed. 185. According to the copy of the Agreement For Sale dated 07.06.2016 produced by the 1st Defendant, the date of execution indicated thereon is 07.06.2016. 186. In the same Agreement For Sale dated 07.06.2016, Clause 3.1 did provide that the consideration contained therein would be settled in June and December 2016. 187. In other words, the year which was expressly inserted at the date of execution and Clause 3.1 was the year 2016. 188. The Plaintiff herein did dispute having met the 1 st Defendant in the year 2016 and/or entered into any Agreement For Sale dated 07.06.2016 as alleged. 189. On this objection by the Plaintiff, the 1st Defendant as well as DW 3 in their testimonies did state that the date of ELC.E025 of 2024 JUDGEMENT 31

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07.06.2016 provided in the Agreement For Sale was not correct. 190. The 1st Defendant and DW 3 did testify that the correct date was 07.06.2019. 191. If indeed the date of 07.06.2016 was not the correct date, Clause 8.1 in the Agreement For Sale did provide for a manner in which the parties would verify or modify the Agreement For Sale. 192. Unfortunately, the 1st Defendant and DW 3 who is the Advocate who handled the execution of the Agreement For Sale dated 07.06.2016 did not invoke the provisions of Clause 8.1 to rectify the anomaly relating to the date of execution and payment of the consideration contained therein. 193. It is a settled principle of law that where the testimony of a witness is in conflict with the written pleadings and/or documents filed before the Court, then the Court should disregard the testimonies of the witness(es) and rely on the pleadings and/or documents placed before it. 194. In this scenario then, this Court hereby makes a finding that the actual and correct date that the Agreement For Sale produced by the 1st Defendant as DW 1 EXHIBIT 3 was 07.06.2016. 195. The second aspect for consideration in this issue is who gave instructions for the Agreement for Sale dated 07.06.2016 to be prepared and executed? 196. According to the Plaintiff, her position was that she did not issue any instruction to the firm of OGOLA OKELLO & COMPANY, ADVOCATES to prepare any Agreement For Sale over the suit property with the 1st Defendant. ELC.E025 of 2024 JUDGEMENT 32

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197. The 1st Defendant indeed did also admit that the instructions to prepare the Agreement For Sale dated 07.06.2016 over the suit property were issued by himself and not the Plaintiff herein. 198. The Court to summarise this position did confirm in the Agreement For Sale dated 07.06.2016 that the firm of OGOLA OKELLO & COMPANY, ADVOCATES were only acting for the 1st Defendant herein who was the Purchaser of the suit property. 199. An Agreement For Sale is in all aspects premised on the Law of Contract, Cap 23. 200. For any contract to be valid and binding, there must be an offer by the seller, an acceptance by the purchaser, a preparation of the contract in writing and payment of the consideration agreed upon in the contract. 201. Based on the testimony of the Plaintiff, there was no offer to sale the suit property to the 1 st Defendant that was made to the 1st Defendant. 202. In essence, the Plaintiff did deny the allegation that she did give any instructions for an Agreement For Sale to be done relating to the suit property with the 1st Defendant. 203. The 1st Defendant on the other hand having made the allegation that there was an Offer to Sale the suit property made by the Plaintiff over the suit property was under a duty pursuant to Section 107 (1) of the Evidence Act, Cap 80 to proof the said fact. 204. The two possible ways that the 1st Defendant was required to demonstrate this offer to sale the suit property by the Plaintiff was to produce any documentary evidence either ELC.E025 of 2024 JUDGEMENT 33

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written to him transaction. directly and/or his advocate in the 205. In the alternative, the 1 st Defendant would have called the Advocate who draw the Agreement For Sale dated 07.06.2016 known as OGOLA OKELLO & COMPANY, ADVOCATES to confirm that indeed they had been instructed by the Plaintiff to make an Offer of Sale to the 1 st Defendant in relation to the suit property. 206. As the proceeding show, the 1st Defendant did not do any of the two options to satisfactorily demonstrate that there was a valid offer to sale the suit property made by the Plaintiff to the 1st Defendant. 207. In essence, this Court hereby makes a finding that there was no valid offer to sale made by the Plaintiff to the 1 st Defendant to warrant the preparation and execution of the Agreement For Sale dated 07.06.2016. 208. The second aspect of this Agreement for Sale to be considered is whether the alleged purchase price of Kenya Shillings Eight Million (KShs 8,000,000/-) contained in the Agreement For Sale dated 07.06.2016 was paid to the Plaintiff by the 1st Defendant or not? 209. The Plaintiff in her Reply to the Statement of Defence and Defence to the Counter-Claim did deny receipt of any consideration amounting to Kenya Shillings Eight Million (KShs 8,000,000/-) from the 1st Defendants in regard to the suit property. 210. Once the Plaintiff did dispute receipt of the purported consideration in the Agreement For Sale dated 07.06.2016, the burden to prove the same was on the 1 st Defendant as provided in Section 107 (1) of the Evidence Act, Cap 80. ELC.E025 of 2024 JUDGEMENT 34

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211. During the testimony of the 1 st Defendant and his crossexamination thereof, it was his testimony that the payment of consideration amount to Kenya Shillings Eight Million (KShs 8,000,000/-) was made in cash to the Plaintiff. 212. Unfortunately, the Court cannot make a finding on the basis of an allegation. 213. The 1st Defendant was under a duty to clearly demonstrate how the Plaintiff did receive and/or acknowledge receipt of the Kenya Shillings Eight Million (KShs.8,000,000/-) which was the agreed consideration in the Agreement For Sale. 214. The 1st Defendant did not bring any document to show the source of the funds demonstrating his ability to settle the said consideration or any acknowledgement by the Plaintiff that the consideration had been made in full. 215. It is important to also look at Clause 3.1 of the Agreement For Sale dated 07.06.2016 which provides as follows; “The purchaser paid the Vendor the entire purchase price of Kenya Shillings Eight Million (KShs 8,000,000/-) in June and December 2016” 216. The interpretation of the above Clause was that the purchase price by the Plaintiff was made in two portions in June 2016 and December 2016. 217. Keeping in mind that the Agreement for Sale was being executed in June 2016, how is it possible that the Agreement for Sale dated 07.06.2016 did also acknowledge receipt of the second portion made in December 2016. 218. These inconsistences are what the Court believes was being cured by the 1st Defendant’s and DW 3 testimonies that the date of the Agreement For Sale was not 07.06.2016 but 07.06.2019. ELC.E025 of 2024 JUDGEMENT 35

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219. The third aspect as regards the validity of the Agreement For Sale dated 07.06.2016 refers to the actual property on sale. 220. The Plaintiff in her pleading and testimony did state that the description of her property which is the subject of this suit was LR.NO.ELDORET MUNICIPALITY BLOCK 12/423. 221. As earlier stated in Issue No.1, this fact was not disputed by the 1st Defendant herein. 222. However, the Agreement For Sale dated 07.06.2016 produced by the 1st Defendant as DW 1 EXHIBIT 3 did describe the property for sale by the Plaintiff to be LR.NO.ELDORET MUNICIPALITY BLOCK 12 (XII)/423. 223. During the 1st Defendant and DW 3 cross-examination, their testimonies was that the difference in the description of the suit property was immaterial as both descriptions refer to one and the same suit property. 224. Unfortunately, this is not the correct and/or true position according to the documents produced by the 1 st Defendant. 225. According to the document produced by the Plaintiff as PW 1 EXHIBIT 4 which is a Certified Copy of the Register and/or White Card of the suit property was opened on the 09.02.2021. 226. In other words, the beginning of the Plaintiff’s ownership over the suit property was on the 09.02.2021 and not any other time before then. 227. If this is the position, then the Plaintiff has never been an owner of a property known as LR.NO. ELDORET MUNICIPALITY BLOCK 12 (XII)/423 as the same does not exist ELC.E025 of 2024 JUDGEMENT 36

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in law as contained in the Agreement For Sale dated 07.06.2016. 228. What fascinates the Court even more is Clause 6 of the Agreement for Sale dated 07.06.2016 which provides as follows;“ All ground rates payable in respect of the property for the year 2013 shall be apportioned between the parties as at the completion date and shall be payable by the Purchaser to the Vendor together with the balance of the purchase price on completion” 229. What this Clause implies is that the property known as LR.NO.ELDORET MUNICIPALITY BLOCK 12 (XII)/423 had been registered in the name of the Plaintiff way back in the year 2013 and therefore the rates payable in the year 2013 as well as the balance of the purchase price (which was purportedly agreed in the year 2016) was to be settled within the completion period. 230. Unfortunately, the 1st Defendant and/or DW 3 did not produce any legal document to demonstrate that indeed the property known as LR.NO.ELDORET MUNICIPALITY BLOCK 12 (XII)/423 did exist either from the year 2013, 2016 and/or 2019 and that it’s the same property that is now known as LR.NO.ELDORET MUNICIPALITY BLOCK 12/423. 231. Whatever it is worth, this Court is of the considered view and finding that the 1st Defendant did not produce any evidence to prove that the alleged consideration of Kenya Shillings Eight Million (KShs.8,000,000/-) contained in the Agreement For Sale dated 07.06.2016 was ever paid to the Plaintiff herein. 232. Clearly therefore, this Court having made a finding that the Plaintiff never made any offer of sale to the 1 st Defendant, ELC.E025 of 2024 JUDGEMENT 37

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issued instructions for the Agreement For Sale dated 07.06.2016 to be prepared and/or received the purported consideration amounting to Kenya Shillings Eight Million (KShs.8,000,000/-) in relation to the suit property herein, then this Court hereby makes a finding that the Agreement For Sale dated 07.06.2016 was null and void hence incapable of alienating the Plaintiff’s suit property in favour of the 1st Defendant. ISSUE NO.3- WERE THE COMPLETION AND/OR TRANSFER DOCUMENTS USED TO TRANFER THE SUIT PROPERTY LAWFUL AND LEGITIMATE? 233. The third issue for determination is the legitimacy and/or legality of the Completion Documents and/or Transfer Documents obtained and used by the 1 st Defendant to transfer the suit property from the Plaintiff. 234. The Plaintiff in her pleadings and her testimonies did state that she had never executed any transfer documents of the suit property to the 1st Defendant herein. 235. In particular, the Plaintiff did deny executing any form for an application for consent to Transfer the suit property in favour of the 1st Defendant, or attended any Land Control Board meeting to process the purported Consent to Transfer in favour of the 1st Defendant and lastly executing the Transfer Form appertaining to the suit property in favour of the 1 st Defendant. 236. The 1st Defendant on the other hand did plead and testify that the Plaintiff herein voluntarily executed the form for an Application For Consent to Transfer in regards to the suit property and the Transfer Form of the suit property in favour of the 1st Defendant. ELC.E025 of 2024 JUDGEMENT 38

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237. The Transfer Form relied upon by the 1 st Defendant to transfer the suit property was produced by the 1 st Defendant as DW 1 EXHIBIT 6 while the Form for the Application For Consent To Transfer relied on to procure the Consent to Transfer executed by the Plaintiff was produced by DW 3 EXHIBIT 1. 238. The Court did take time to peruse both the Form for the Application For Consent To Transfer produced as DW 3 EXHIBIT 1, the resultant Consent to Transfer dated 18.02.2021 and the Transfer Form produced as DW 1 EXHIBIT 6. 239. To begin with, the property description on the Application For Consent of Land Control Board produced as DW 3 EXHIBIT 1 is LR.NO.ELDORET MUNICIPALITY BLOCK 12 (XII)/423. 240. The property description on the Transfer Form produced by the 1st Defendant was DW 1 EXHIBIT 6 was LR.NO.ELDORET MUNICIPALITY BLOCK 12 (XII)/423. 241. As earlier stated, the Plaintiff herein has never been the registered owner of a property known as ELDORET MUNICIPALITY BLOCK 12 (XII)/423. 242. Consequently, any document purportedly executed by the Plaintiff containing the property described as LR.NO.ELDORET MUNICIPALITY BLOCK 12 (XII)/423 is null and void. 243. Turning to the Form for the Application for Consent to Transfer produced as DW 3 EXHIBIT 1, the Court takes note that the same was premised on the Land Control Act, Cap 302. ELC.E025 of 2024 JUDGEMENT 39

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244. The Land Control Act, Cap 302 is a statute deals with Consents of land that is for Agricultural use. 245. The suit property herein is one which was for Industrial Use as provided in the Letter of Allotment produced by the Plaintiff as PW 1 EXHIBIT 1. 246. It is on this basis that the registration of the suit property was done under the provisions of the Land Act, No. 6 of 2012 and a Certificate of Lease issued. 247. With this background in mind, this Court is of the considered view and finding that any Form for an Application For Consent to Transfer premised under the Land Control Act, Cap 302 could not possibly in law be used to procedure a Consent to Transfer a property registered for Industrial Use under the Land Act, Cap 6 of 2012. 248. In essence, this Court further makes a finding that the Form relating to the Application For Consent To Transfer produced as DW 3 EXHIBIT 1 was the wrong document to procure any Consent To Transfer the suit property and any Consent To Transfer procured using this document was irregular and incapable of producing any lawful Consent to Transfer for purposes of registering the Transfer Form produced as DW 1 EXHIBIT 3. 249. The correct procedure of obtaining a valid Consent to Transfer relating to the suit property would be the Plaintiff writing a Letter to the District Land Officer under the provisions of the Land Act, No. 6 of 2012 of which upon receipt of the same, the Letter of Consent would be issued in favour of the Plaintiff by the Land Administration Officer in Charge of Uasin Gishu on behalf of the Commissioner for Lands. 250. However, neither the 1st Defendant nor DW 3 did produce any letter by the Plaintiff directed to the Land Administration ELC.E025 of 2024 JUDGEMENT 40

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Officer, Uasin Gishu County seeking for the Consent to Transfer to be issued over the suit property. 251. In the absence of this Letter by the Plaintiff herein, then no Consent to Transfer could lawfully be issued by the Land Administration Officer, Uasin Gishu to sanction the Transfer of the suit property to the 1 st Defendant and/or any other person. 252. As such, this Court is of the finding that the Consent to Transfer dated 18.02.2022 purportedly presented by the 1 st Defendant to facilitate the Transfer of the suit property from the Plaintiff to himself was irregular, unlawful, illegal, null and void. 253. In a nutshell, the Application For Consent to Transfer purportedly executed by the Plaintiff in relation to the property known as LR.NO.ELDORET MUNICIPALITY BLOCK 12 (XII)/423, the Consent to Transfer issued on the 21.02.2021 in relation to the suit property and the Transfer Form in relation to the property known as LR.NO.ELDORET MUNICIPALITY BLOCK 12 (XII)/423 are not legitimate and/or valid documents that can lawful and legitimately alienate the Plaintiff’s ownership over the suit property to the 1 st Defendant herein. 254. In conclusion therefore, this Court hereby makes a finding that the Completion documents and/or Transfer documents obtained by the 1st Defendant and used to alienate the suit property herein from the Plaintiff to the 1st Defendant were irregular, unprocedural, illegal, null and void. ISSUE NO.4- WAS THE CERTIFICATE OF LEASE ISSUED IN FAVOUR OF THE 1ST DEFENDANT LAWFUL AND LEGITIMATE? 255. The fourth issue is whether the 1 st Defendant’s registration and the Certificate of Lease issued in his name is lawful and legitimate. ELC.E025 of 2024 JUDGEMENT 41

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256. Based on the Court’s finding in Issue No. 3 hereinabove, this Court is of the considered view and finding that the 1 st Defendant’s registration made on the 22.02.2022 and the Certificate of Lease dated 22.02.2022 issued in his name are unlawful, illegitimate, null and void. ISSUE NO.5- IS THE PLAINT MERITED OR NOT? DATED 30.04.2024 257. The Court having made a finding that the 1 st Defendant’s registration as the owner of the suit property on the 22.02.2022 and the Certificate of Lease issued in his favour on the 22.02.2022 are null and void, then the Plaintiff’s suit is merited and the Orders sought therein should be granted. ISSUE NO.6IS THE COUNTER-CLAIM 24.09.2024 MERITED OR NOT? DATED 258. In view of the finding that the 1st Defendant’s registration on the 22.02.2022 as the registered owner of the suit property is null and void, then the Counter-Claim pleaded by the 1 st Defendant is not merited and therefore dismissed forthwith as he has no proprietary interests whatsoever on the same. ISSUE NO.7- WHO BEARS THE COSTS OF THE PRESENT SUIT AND THE COUNTER-CLAIM THEREOF. 259. Costs usually follow the event. 260. In view of the fact that the Plaintiff’s Claim has been allowed and the 1st Defendant’s Counter-Claim dismissed, then 1 st Defendant is condemned to pay costs for both the Plaint and the Counter-Claim to the Plaintiff herein only. CONCLUSION 261. In conclusion, the Court hereby makes the following orders in determination of the present suit herein; A. THE PLAINT DATED 30.04.2024 BE AND IS HEREBY MERITED AND THEREFORE ALLOWED. ELC.E025 of 2024 JUDGEMENT 42

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B. THE PLAINTIFF HEREIN BE AND IS HEREBY DECLARED THE LAWFUL AND LEGITIMATE OWNER OF THE PROPERTY KNOWN AS LR.NO.ELDORET MUNICIPALITY BLOCK 12/423. C. AN ORDER OF PERMANENT INJUNCTION BE AND IS HEREBY ISSUED IN FAVOUR OF THE PLAINTIFF AS AGAINST THE 1ST DEFENDANT PROHIBITING HIM FROM ACCESSING, ENTERING, OCCUPYING, USING, INTERFERING WITH AND/OR IN WHATSOEVER MANNER DEALING WITH THE PROPERTY KNOWN AS LR.NO.ELDORET MUNICIPALITY BLOCK12/423 HENCEFORTH. D. THE 1ST DEFENDANT’S REGISTRATION AS THE OWNER OF THE PROPERTY KNOWN AS LR.NO.ELDORET MUNICIPALITY BLOCK 12/423 MADE ON THE 22.02.2022 BE AND IS HEREBY DECLARED IRREGULAR, ILLEGAL, UNLAWFUL AND THEREFORE NULL AND VOID. E. THE CERTIFICATE OF LEASE ISSUED IN FAVOUR OF THE 1ST RESPONDENT ON THE 22.02.2022 RELATING TO THE PROPERTY KNOWN AS LR.NO.ELDORET MUNICIPALITY BLOCK 12/423 BE AND IS HEREBY DECLARED, IRREGULAR, ILLEGAL, UNLAWFUL, NULL AND VOID. F. THE 1ST DEFENDANT IS HEREBY ORDERED TO RETURN THE CERTIFICATE OF LEASE ISSUED IN HIS NAME ON THE 22.02.2022 RELATING TO THE PROPERTY KNOWN AS LR.NO.ELDORET MUNICIPALITY BLOCK 12/423 TO THE OFFICES OF THE 2ND DEFENDANT HEREIN WITHIN 14 DAYS FROM THE DATE OF THIS JUDGEMENT FOR CANCELLATION AND DESTRUCTION. ELC.E025 of 2024 JUDGEMENT 43

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G. THE 2ND DEFENDANT BE AND IS HEREBY ORDERED TO RECTIFY THE REGISTER OF THE PROPERTY KNOWN AS LR.NO.ELDORET MUNICIPALITY BLOCK 12/423 BY CANCELLING AND/OR DELETING THE ENTRY NO.3 MADE ON THE 22.02.2022 ST REGISTERING THE 1 DEFENDANT AS THE LAWFUL OWNER OF THE SAID PROPERTY AND ENTRY NO.4 RECORDING THE ISSUANCE OF A CERTIFICATE OF LEASE RELATING TO THE SUIT PROPERTY TO THE 1 ST DEFENDANT WITHIN 21 DAYS FROM THE DATE OF THIS JUDGEMENT. H. THE 2ND DEFENDANT BE AND IS FURTHER DIRECTED AND/OR ORDERED TO RE-ISSUE A CERTIFICATE OF LEASE IN FAVOUR OF PLAINTIFF HEREIN IN LINE WITH ENTRY NO. 1 AND 2 MADE IN THE REGISTER OF THE PROPERTY KNOWN AS LR.NO.ELDORET MUNICIPALITY BLOCK 12/423 WITHIN 30 DAYS FROM THE DATE OF THIS JUDGEMENT. I. THE 1ST DEFENDANT’S COUNTER-CLAIM 24.09.2024 BE AND IS HEREBY DISMISSED. J. THE PLAINTIFF HEREIN IS AWARDED COSTS OF BOTH THE PLAINT DATED 30.04.2024 AND THE COUNTER-CLAIM DATED 24.09.2024 PAYABLE BY THE 1ST DEFENDANT ONLY. DATED DATED, SIGNED and DELIVERED at ELDORET this on this 15TH DAY OF SEPTEMBER, 2026. EMMANUEL.M. WASHE JUDGE IN THE PRESENCE OF: Court Assistant: Brian Advocate for Plaintiff: ELC.E025 of 2024 Ms. Korir holding brief for Mr. Kenei JUDGEMENT 44

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Advocate for 1st Defendant: Mr. Sang (N/A) Advocate for 2nd & 3rd Defendants: Mr. Kwame holding brief for Ms Odeyo. ELC.E025 of 2024 JUDGEMENT 45

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