Mullei v Kisangi & another

submitted that his client was not interested in the money. His client wanted the shop. The trial magistrate xed the matter for mention on 25th August, 1983. 5. On 25th August, 1983 the record shows that all the four Defendants were present. The 1st Defendant informed the court that they had admitted to pay back the money to the Plainti. As to the Plainti’s insistence that the plot be transferred to him, he left that to the court. The 2nd Defendant adopted what the 1st Defendant had said because they had sold the plot. The magistrate then entered judgment as prayed and ordered the Defendants to transfer the plot to the Plainti. 6. The 4th Defendant who is the Plainti in this case led an application seeking to review the exparte order of 25th March, 1983. In a ruling delivered on 8th March,1984 the application for review was granted. 7. In 2006 the Plainti in this case learnt that the suit property had been transferred to Raymond Kalovya. He wrote a complaint letter to the County Council of Makueni. The County Council of Makueni wrote back to him telling him that they transferred the suit property to Raymond Kalovya based on a court order. They advised him to seek recourse in court. This is what prompted the Plainti to le Machakos Chief Magistrate Civil Suit No. 176 of 2007 against the County Council of Makueni and Raymond Kalovya. 8. The Plainti in Machakos Senior Resident Magistrate court Civil Court No. 56 of 1982 died ono 4th December, 2008. There was no substitution made. By law the suit against the 4th Defendant abated by operation of law on 4th December, 2009. On 4th October, 2010 the 4th Defendant, the Plainti in this case led an application seeking to have the suit declared as having abated. This application was allowed on 1st November, 2010 and the costs of the application were awarded to the 4th Defendant. 9. On 12th June 2012 the Plainti’s counsel in Machakos chief Magistrate court civil suit No. 176 of 2007 informed the court that as the suit against Raymond Kalovya had abated, they wished to proceed as against the 1st Defendant, the County Council of Makueni. The case proceeded on that day and was concluded. On 3rd July, 2012 judgment was delivered in favour of the Plainti against the 1st Defendant ordering rectication of the registrar to reect the Plainti as owner of the suit property. The judgment has since been executed and the Plainti’s name restored as owner of the suit property. 10. In 2016, the 1st Defendant in this suit trespassed into the suit property on the ground that he had purchased the suit property from the children of Raymond Kalovya. It is on this basis that the Plainti led this suit against the Defendants in which he seeks the following reliefs: a. An order of injunction restraining the Defendants, their agents, workers, servants or anybody howsoever claiming under them from trespassing remaining on, or in any other manner dealing with plot No. 12 Kikima Market. b. Eviction of the Defendants from plot No. 12 Kikima Market and the structures erected thereon demolished. c. Costs and interest. Plainti ’s Case 11. Much of the Plainti’s case has been captured in the background above. It is the Plainti’s evidence that he is the registered owner of the suit property. The Plainti produced proceedings in Machakos Senior Resident Magistrate court No. 56 of 1982. He also produced an order extracted from the above suit conrming that the suit had abated. The Plainti called Jackson Daudi from the County Government of Makueni who conrmed that according to their records, the Plainti is the registered owner of the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5456/eng@2026-09-17 2

page 2 of 7

12. The witness from Makueni County Government stated that the change in ownership from Raymond Kalovya to the Plainti was pursuant to the judgment in Machakos Chief Magistrate Civil Suit No. 176 of 2007 which he produced as exhibit. He also produced a court order conrming ownership, receipts for payment of conservancy and rates as well as an ocial search. 13. The Plainti also called PW3 Cyrus Iiya Ndambuki who testied that he was aware that the suit property had been given to the Plainti by his father. The Plainti also called PW2 Stephen Mutua Mbithi who is his neighbor and owns plot No. 11. He stated that the Defendants are the ones occupying the suit property. He had sold part of his plot to Raymond Kalovya. Defendant’s Case 14. The 1st Defendant stated that he is the one in possession of the suit property. He took possession of the suit property on 3rd August, 2018 after he purchased it. He stated that before he purchased the suit property be conducted a search which showed that Raymond Kalovya was the registered owner of the property. He stated that he purchased the suit property from the family of Raymond Kalovya. He further stated that he subsequently learnt that Raymond Kalovya had litigated over the suit property in civil suit No. 56 of 1982 whereby he was granted the suit property. 15. The Defendants called DW4 Anthony Mule Munyao a former Councilor who stated that he knew the history of the suit property well. He stated that the suit property belonged to Mullei Kyai, the father the Plainti. He was pproached by the family of Raymond Kalovya to purchase the property but that he could not do so as he had no money. He later connected the 1st Defendant to the family of Raymond Kalovya who purchased the property. He claimed that there is a time the Plainti approached him that he wanted to pay Raymond Kshs.400,000/- but that did not happen. 16. DW3 Patrick Wambua Kalovya is the elder brother of Raymond Kalovya. He stated that he knew plot 12 belonged to his brother but he did not know from whom he purchased the land. 17. DW2 Joseph Nyamai Raymond stated that he is son of Raymond Kalovya. He stated that he is aware that his father purchased the suit property from Mullei Kyai. He also said that he was aware that there was a case against his father in Machakos court and that there is a pending appeal arising from a decision in that court which is pending before this court. He stated that there was no one claiming ownership of the suit property prior to their family selling it to the 1st Defendant. Parties Submissions 18. The parties were directed to le written submissions. The Plainti led his submissions dated 11th September, 2025. The Defendants led their submissions dated 3rd February, 2026. Plainti ’s Submissions 19. The Plainti submitted that the issue of ownership of the suit property was determined in Machakos CMCC No. 176 of 2007. The judgment in this case directed the records of the County Council to be rectied to read the Plainti’s name. This was done and there has never been any appeal against the said judgment. It was submitted that there was a certicate of search produced which conrmed that the Plainti is the registered owner. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5456/eng@2026-09-17 3

page 3 of 7

20. It was further submitted that there is no evidence which was adduced to how that the Plainti obtained ownership through fraudulent means. Reliance was placed on the case of Kiplagat Shelisheli Mutarakwa –vs- Joseph Rotich Kones (2018) eKLR where it was held as follows: “ Nothing has been presented by the Defendant to prove that the Plainti’s title is unlawful or that it was fraudulently acquired. Thus, from the evidence that has been presented before me, I have no diculty in holding that the Plainti’s title is a good title which deserves protection. As title holder, it is only the Plainti who is vested with proprietary rights over the suit property.” 21. The Plainti further submitted that upon the Plainti herein moving to review judgment in Machakos SRMCC No. 56 of 1982, the court ruled that it is the 1st, 2nd and 3rd Defendants in that suit who were liable to refund Kshs.9,100/= to Raymond Kalovya. The ruling was clear that the 1st, 2nd and 3rd Defendants had nothing to transfer to Raymond Kalovya. 22. The Plainti further submitted that had the 1st Defendant bothered to do a search, he would have noticed that the suit property did not belong to Raymond Kalovya whose family sold it to him. It was submitted that the 1st Defendant was not an innocent purchaser. Reliance was placed on the case of Samuel Kamere –vs- Land Registrar Kajiado (2015) eKLR. “ ......in order to be considered a bona de purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property”. 23. It was further submitted that the 1st Defendant relied on the letter of 2nd November, 2018 which was a mere recommendation which was never acted on. Defendant’s Submissions 24. The Defendants submitted that the judgment in Machakos CMCC No. 176 of 2007 which was the basis of rectication of the register in the records of the County Council of Makueni was a nullity as Raymond Kalovya had died before conclusion of the case. It was submitted that proceeding against the 1st Defendant in that case without Raymond Kalovya was untenable. Reliance was placed in the case of Kenya Farmers Cooperative Union Limited –vs- Charles Murgor (Deceased) T/A Kaptabei Coee Estate 2005 where it was held as follows: “ If a suit has abated it has ceased to exist. There is no suit upon which a trial can be conducted and judgment pronounced. Purporting to hear and determine a suit that has abated is really an exercise in futility. It is a grave error on the face of the record”. 25. The Defendants further submitted that the Plainti in this case was present when the orders of 25th August, 1983 were given and that he was given an opportunity to review the orders but he did not. It was therefore submitted that as at the time the Plainti led Machakos CMCC No. 176 of 2007, the orders given on 25th August, 1983 were subsisting. 26. It was further submitted that Machakos CMCC No. 176 of 2007 was res judicata and that it ought to have been struck out. It was further submitted that the family of Raymond Kalovya had been paying land rates and rent up until 2022 when the register was rectied to reect the Plainti’s name. It was https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5456/eng@2026-09-17 4

page 4 of 7

therefore submitted that the County Government of Makueni acknowledged Raymond Kalovya as the owner of the suit property. 27. Finally the Defendants submitted that the letter of 2nd November, 2018 from the Director of Lands, Mining, Housing, Physical Planning and Urban Development conrmed that the transfer to the 1st Defendant had been recommended and that despite there being no evidence of payment of purchase price by the 1st Defendant, the sale agreement had been executed by the family of Raymond Kalovya in the presence of the area chief. Analysis and Determination 28. I have carefully considered the evidence adduced by the Plainti and the Defendants. I have also considered the submissions by the parties. The issues which emerge for determination are rstly who is the lawful owner of the suit property. Secondly, did the children of Raymond Kalovya have any interest in the suit property which was capable of being passed on to the 1st Defendant. Thirdly, is the Plainti entitled to the prayers in the Plaint. Lastly, which order should be made on costs. Who is the lawful owner of the suit property? 29. The evidence which was adduced is that the suit property originally belonged to Mullei Kyai who is the Plainti’s father. During his lifetime, Mullei Kyai gave the suit property to the Plainti. This came out even in the proceedings from Machakos SRMCC No. 56 of 1982 that the suit property was an inheritance in favour of the Plainti from his father. 30. The Plainti’s step brothers sold the suit property illegally to Raymond Kalovya. The Plainti’s step brothers were unable to transfer the suit property to Raymond Kalovya forcing Raymond Kalovya to le a suit against the Plainti’s three brothers including the Plainti. 31. The Plainti’s step brothers admitted to selling the suit property to Raymond Kalovya and they agreed to refund him the Kshs.9,100/= which Raymond Kalovya had paid. The proceedings of 25th August, 1983 erroneously captured the Plainti who was the 4th Defendant in that case as being present. The Plainti then moved the court in an application for review. The review was allowed as it was conceded that the Plainti was not present. The ruling of 8th March, 1984 clearly shows that the three step brother of the Plainti had nothing to transfer to Raymond Kalovya. What remained in the judgment on admission which was not reviewed is the aspect of refund of Kshs.9,100/= to Raymond Kalovya. The Defendants’ advocate in their submissions stated that the Plainti was given an opportunity to review the judgment of 25th August, 1983 but did not. This is not the correct position as there was a review of the judgment of 25th August, 1983 and a ruling thereof was delivered on 8th March, 1984. 32. The late Raymond Kalovya presented the judgment of 25th August, 1983 to the County Council of Makueni which then made changes in the register to reect that Raymond Kalovya as the owner of the suit property. When the Plainti discovered that ownership records had been changed, he wrote to County Council of Makueni who informed him that the change was pursuant to a court order. He was advised to seek recourse in court. The Plainti then moved to court and led Machakos CMCC No. 176 of 2007. A judgment in his favour was delivered on 3rd July, 2012. The judgment found that the change in ownership of the suit property was null and void. The court ordered that there be rectivation of the register. This was done by the County Government of Makueni, the successors of County Council of Makueni. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5456/eng@2026-09-17 5

page 5 of 7

33. The suit which Raymond Kalovya led against the 4th Defendant remained unprosecuted until after his demise on 4th December, 2008. The suit was marked as having abated by order of court on 1st November, 2010. It is therefore clear that the suit property lawfully belongs to the Plainti. Did the children of Raymond Kalovya have any interest in the suit property which was capable of being passed on to the 1st Defendant 34. The children of Raymond Kalovya purported to sell the suit property to the 1st Defendant vide a sale agreement dated 3rd August, 2018. The children of Raymond Kalovya were of the view that their father had purchased the suit property. This was wrong because those who purported to sell the same had no interest in the suit property. The ruling of 8th March, 1984 is clear that the step brothers of the Plainti had no interest to transfer to Raymond Kalovya. Those who had sold the suit property admitted that the suit property belonged to the Plainti through inheritance. They oered to refund what Raymond had paid as part of the agreed amount. This is the judgment which was entered but the magistrate went ahead to order transfer. This was found to be the position after review. The magistrate in his ruling stated as follows: “ Quite clearly the order of 25th August, 1983 is not in accordance with what the applciation intended to be done. The application which was heard on 25th August, 1983 intended that judgment be entered against the 1st, 2nd and 3rd Defendants to refund to the Plainti the money they had received from the Plainti. Instead the order of 25th August, 1983 allowed the transfer of the plot to the Plainti.” 35. The late Raymond Kalovya had agreed to purchase the suit property at Kshs.13,500/=. He had paid Kshs.9,100/= when the Plainti’s step brothers refused to transfer the land to him. He sued for specic performance with an alternative prayer for refund of Kshs.9,100/= already paid. When the 1st and 2nd Defendants in Machakos SRMCC 56 of 1982 appeared before the Magistrate on 25th August, 1983, they agreed to refund the amount paid by Raymond Kalovya. They did not say that they had admitted to transfer the land and in any case this would not have been possible as he had not cleared the balance or indicated that he was willing to clear the balance. 36. It is on the basis of the error apparent on the record that a review was allowed. This is why the magistrate stated thus in his ruling: “ In the circumstances there is an error apparent on the face of the record. Moreover, since the 1st, 2nd and 3rd Defendants could not transfer what they did not have the order bound the 4th Defendant only”. 37. Raymond Kalovya took the judgment of 25th August, 1983 to the County Council of Makueni who eected the transfer from the Plainti’s name to his name. When the Plainti learnt of the change, he complained to the County Council of Makueni who advised him to seek redress in court. The Plainti led Machakos CMCC 176 of 2007 and obtained judgment on 3rd July, 2012 nullifying the change. The record at County Government of Makueni has since been changed to reect the Plainti as owner of the suit property. 38. The children of Raymond Kalovya did not have any interest in the suit property which was capable of being transferred. The children were aware that their father had been sued in Machakos CMCC 176 of 2007. Their father’s advocate was in court when the case proceeded and a judgment date reserved for 3rd July, 2012 and judgment was delivered as scheduled. The sale took place long after the judgment nullifying Raymond Kalovya’s name had been delivered. It is therefore clear that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5456/eng@2026-09-17 6

page 6 of 7

children of Raymond Kalovya had no interest in the suit property capable of being transferred to the 1st Defendant. In fact 1st Defendant attempted to have his name entered in the register but this was not possible as the suit property did not belong to those who had sold it to him. Whether the Plainti is entitled to the prayers sought? 39. The Plainti is the registered owner of the suit property as per the records held by the County Government of Makueni. This was conrmed through letter dated 15th October, 2018. I have demonstrated hereinabove that the children of Raymond Kalovya who purported to sell the suit property to the 1st Defendant had no interest to pass to the 1st Defendant. The Plainti is therefore entitled to the prayers in the plaint. Disposition 40. The Plainti has proved his case on a balance of probabilities. I allow the Plainti’s claim in terms of prayer (a) (b) and (c) of the plaint dated 18th December, 2018. ........................................... HON. E. O. OBAGA, FCIArb JUDGE JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 17TH DAY OF SEPTEMBER, 2016. In the presence of: Mr. Mutinda for Plainti Mr. Wabende for the Defendants Court assistants – Kilonzo & Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5456/eng@2026-09-17 7

page 7 of 7