Dr. Rev Humphrey Irungu, Nelson Nyoike Nganga & Elisha Odhiambo Abuonji (suing for and on behalf of Kakoe Anglican Church of Kenya) v The City County of Nairobi, Walter Ojwang Dibogo & Catherine Njeri Nduati

that the Anglican Church of Kenya-Komarock Parish, herein referred to as the ‘church’ is the legal owner of Plot No. 32 situated at Kayole Shopping Centre, hereinafter referred to as the ‘suit plot’, vide purchase from the 3 rd Defendant who in turn purchased it from one Joseph Gateri Kimaru. Further, that by a demand letter dated 25th March 2017, the 2nd Defendant claims to be owner of the suit plot and has demanded that the church vacates. They averred that their request to the 1st Defendant, which is the allocating authority to clarify on ownership was ignored. In the alternative, they seek a refund of the purchase price of kshs.1,350,000 paid to the 3rd Defendant. They sought for judgement against the Defendants jointly and/or severally for: a) Declaration that Plot No.32 situated at Kayole Shopping Centre (commercial) within the City County of Nairobi belongs to and continues to be owned by the Anglican Church of Kenya Komarock Parish and is entitled to possession of the same. ELC CASE NO. 307 OF 2017 Page 2 of 37 Judgement

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b) An order of injunction restraining the Defendants either by themselves, their servants, agents and /or otherwise howsoever trespassing on, repossessing, evicting, demolishing structures and/or any on alienating, in from grabbing, other any manner whatsoever from interfering with the Plaintiffs’ church’s quiet occupation and situated and at peaceful enjoyment Kayole of possession, Plot Shopping No.32 Centre (commercial) within the City County of Nairobi. c) In the alternative, the 3rd Defendant be ordered to refund the kshs.1,350,000/=, purchase together price with of interest thereon at the rate of 24% per annum from 14 th January 2103, until the date of judgement in this case and thereafter at court rates until payment in full. d) Costs of this suit. e) Any other and/or further relief that this Honourable court may deem fit and just to grant. ELC CASE NO. 307 OF 2017 Page 3 of 37 Judgement

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2. The 1st Defendant filed a statement of defence denying allegations levelled against it,in the Plaint. It contended that the suit plot was allotted to the 2nd Defendant on 18th January 1994 thus it was not available for allocation to the Plaintiffs in 2013. 3. The 2nd Defendant filed an amended statement of defence and counterclaim. He averred that he was allocated the suit plot on 18th January 1994 and that the 1st Defendant has never repossessed it as he paid all dues thus the 3 rd Defendant could not acquire a good title to transfer to the Plaintiffs. He sought for the Plaintiffs amended Plaint to be dismissed with costs and judgement be entered against the Plaintiffs jointly and severally for: a) A declaration that Plot No.32 situated at Kayole Shopping Centre (commercial) within the City County of Nairobi belongs absolutely and continue to be owned by the 2 nd Defendant being the genuine, true and just registered proprietor. ELC CASE NO. 307 OF 2017 Page 4 of 37 Judgement

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b) An order evicting the Plaintiffs from the suit property. c) A permanent injunction against the Plaintiffs, restraining the Plaintiffs from henceforth entering, developing and /or in any other way interfering with the suit property. d) Mesne profits. e) Costs of this suit. f) Interest. g) Any other and /or further relief that this Honourable Court may deem fit and just to grant. 4. The 3rd Defendant also filed a statement of defence. She admitted to selling the suit plot to the Plaintiffs and averred that she had in turn purchased it, from the original allotee, one Joseph Gateri Kimaru on 5th October 2006. Further, that prior to the purchase, she had conducted due diligence in the 1st Defendant’s office and established ownership by the said ELC CASE NO. 307 OF 2017 Page 5 of 37 Judgement

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Joseph Gateri Kimaru thus the title she passed to the Plaintiffs is indefeasible. 5. The suit was heard by way of viva voce evidence. The Plaintiff’s evidence 6. The 2nd Plaintiff, PW1 testified that vide a Sale Agreement dated 14th January 2013, the church purchased the suit plot for kshs.1,350,000/= from the 3rd Defendant. Further, that prior to the purchase, it had conducted a search and confirmed that the property belonged to the said vendor, who informed it that she had in turn purchased the said property from one Joseph Gateri Kimaru vide a Sale Agreement dated 5th October 2006, while the said Joseph Gateri Kimaru had been allocated the plot by the 1 st Defendant as a repossessed plot and had been issued with a Clearance Certificate confirming that all dues regarding the plot had been paid. 7. He claimed that upon purchase, the church built a branch called Kakoe Anglican Church and was in peaceful occupation until the 2nd Defendant wrote a demand letter ELC CASE NO. 307 OF 2017 Page 6 of 37 Judgement

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dated 28th March 2017 by which he purported to claim that he is the rightful owner of the suit plot and demanded that the church vacates. Subsequently, the church wrote to the 1st Defendant seeking clarification regarding the true owner of the suit property but the 1st Defendant declined to divulge such information and instead wrote to the 2 nd Defendant vide a letter dated 15th March 2017 confirming that he is the registered owner of the suit plot despite their earlier search confirming the 3rd Defendant as owner. 8. It was his testimony that account numbers appearing on receipts issued by the 1st Defendant to the 2nd Defendant at pages 29-32 of the 2nd Defendant’s list and bundle of documents dated 21st September 2019 have been cancelled where account no.880005 was indicated and replaced with “plot 32 Kayole Shopping Centre’ while other receipts indicate payment in respect of Account No.880091, which implies that two different accounts were paying for the same plot. ELC CASE NO. 307 OF 2017 Page 7 of 37 Judgement

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9. He produced the Plaintiffs’ list and bundle of documents dated 28th April 2017 as P. Exhibits No. 1-19. 10. Upon cross -examination, PW1 confirmed that the Plaintiffs’ have a Letter of Allotment for the suit plot, issued to Joseph Gateri Kimaru, dated 12th July 2003, which is referenced ‘allocation of Plot No.32-Kayole Shopping Centre (repossessed).’ He acknowledged that it is the 1 st Defendant who is tasked with repossession. He admitted that the church did not have a beacon certificate. He also stated that though the 1st Defendant through its letter dated 15th March 2017 confirmed that the 2nd Defendant was owner of the suit plot, they filed the suit because a search conducted before the Plaintiffs purchased the said suit plot indicated that Joseph Gateri Kimaru was owner. 11. He insisted that the 3rd Defendant passed a good title but in their sale agreement with her dated 14th January 2013, they had a clause in which they agreed that the vendor would ELC CASE NO. 307 OF 2017 Page 8 of 37 Judgement

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refund the purchase price to the church in case the sale fell off. He also confirmed that a transfer was not effected from Joseph Gateri Kimaru to the 3rd Defendant but the search certificate dated 23rd November 2012 indicates the 3rd Defendant as owner of the suit plot. 12. He admitted that there are inconsistencies in the Letter of Allotment issued to Joseph Gateri Kimaru and the one issued to the 2nd Defendant in terms of acreage and the prescribed fees. He highlighted that in the Letter of Allotment issued to Joseph, it indicates the charges payable to be kshs.13,200/= while the acreage of the suit plot is 0.030 hectares. On the other hand, the one issued to the 2 nd Defendant alleges that the suit plot measures 0.037 hectares and prescribes charges of kshs.16,800/=. He also pointed out that in the sale agreement between Joseph Gateri Kimaru and the 3 rd Defendant, the ID No. of the said Joseph is indicated as 0733674 while in the Special Power of Attorney dated 26 th September 2011 to her, by Nicholas Mwangi Gateri to deal ELC CASE NO. 307 OF 2017 Page 9 of 37 Judgement

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with the suit plot, Joseph Gateri Kimaru’s ID No. is indicated as 336744129. He also confirmed that the sale agreement between the church and the 3rd Defendant is signed in the presence of Charles M. Ngugi, the advocate who filed the suit on the Plaintiffs’ behalf. 13. He claimed that the suit plot was vacant when the church took possession but neighbours had put walls on both sides. He also confirmed that the church has a mabati structure on the suit plot but it had started a permanent construction at the back, though it did not seek approval from the 1 st Defendant. 14. In re-examination, PW1 reiterated his evidence in chief and contended that the inconsistency in acreage in the two Letters of Allotment in dispute indicate that the said letters do not refer to the same plot. The 1st Defendant’s evidence ELC CASE NO. 307 OF 2017 Page 10 of 37 Judgement

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15. The 1st Defendant’s witness, DW1 was Josephat M. Munene, its surveyor in charge of Embakasi Central Sub County. He testified that he has no knowledge of the Plaintiffs and their documents and insisted that the suit plot was allocated to the 2nd Defendant in 1994. Further, that once a plot was allocated, it could recommendation from only be repossessed vide a the 1st Defendant’s Housing Development Committee on account of non-payment of statutory fees and minutes to that effect would be recorded. He confirmed that there was no evidence of repossession of the suit plot. He maintained that the 2nd Defendant had been paying rates and other charges related to the suit property and that the 1st Defendant confirmed his ownership vide its letter dated Defendant’s 13th list March and 2027. bundle of He the 1st dated 30 th produced documents November, 2021 as D. Exhibit No.1-4. ELC CASE NO. 307 OF 2017 Page 11 of 37 Judgement

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16. Upon cross-examination, DW1 confirmed that the allotment letter dated 18th January 1994 is the genuine one. He was not aware of a transfer from Joseph Gateri Kimaru to the 3 rd Defendant and that there were no minutes or notice of repossession of the suit plot from the 2 nd Defendant. He insisted that it was not possible for the 1 st Defendant to issue two allotment letters for the same plot. He declined to confirm the authenticity of the search certificate filed by the Plaintiffs, insisting that no search was conducted at their offices. He reiterated that it is only the 1st Defendant’s finance department that could explain why the account number in relation to the suit plot is indicated as No. 850011 in the Plaintiffs’ receipts while in the 2 nd Defendant’s, it is No. 880091. 17. Upon re-examination, DW1 stated that receipts in the 3rd Defendant’s bundle indicating that Joseph Gateri Kimaru paid for the suit plot are not in the 1 st Defendant’s registry file and they do not confirm ownership of the suit plot. ELC CASE NO. 307 OF 2017 Page 12 of 37 Judgement

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Further, that the search in the Plaintiffs’ documents is also not in the 1st Defendant’s file and there is no receipt confirming that it was paid for. He also contended that the letters of allotment in dispute refer to the same Plot No. 32 Kayole Shopping Centre. The 2nd Defendant’s evidence 18. The 2nd Defendant testified as DW2. He confirmed that he was allocated the suit plot by the 1 st Defendant and paid stand premium including all dues. It was his testimony that subsequently, beacons were placed and then he put up a perimeter foundation wall alongside his neighbours on the adjacent plots. He claimed that on 21st May 2012, he submitted his structural and sectional elevation plans to the 1st Defendant’s Housing and Development department for approval and thereafter applied for title but he was informed that it was not available. 19. It was also his testimony that since allocation of the suit plot, he has continued to pay all dues including rent and rates in ELC CASE NO. 307 OF 2017 Page 13 of 37 Judgement

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his name. However, about the year 2013, the Plaintiffs trespassed thereon and erected temporary structures. He stated that upon engaging with the Plaintiffs, they requested him to furnish them with his ownership documents and in January 2017, they all appeared before the 1 st Defendant’s Embakasi Central Sub-County Administrator’s office, who confirmed him as the legal proprietor of the suit plot. Further, that on 15th March 2017, he received a letter of confirmation of ownership from the 1 st Defendant confirming that Plot No. 32 is registered under his name. He produced the 2nd Defendant’s list and bundle of documents as D. Exhibit 5-16. 20. Upon cross-examination, DW2 stated that as per conditions in his Letter of Allotment dated 18 th January 1994, he was required to pay ksh. 16,800/= in 30 days, by 17th February 1994, but he paid on 16th June 1995. He claimed that there was a handwritten undated letter certifying him to pay on the said date. He insisted that he has been paying all dues since ELC CASE NO. 307 OF 2017 Page 14 of 37 Judgement

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he got allocated the suit plot and that the perimeter wall he put up in 2006 was demolished and a temporary structure was put up, yet his plot has never been repossessed. He confirmed that he has a Beacon certificate which is only issued to one person and not two people for the same property. The 3rd Defendant’s evidence 21. The 3rd Defendant testified as DW3. It was her testimony that about 5th October 2006, she purchased Plot No. 32 Kayole Shopping Centre from its original allotee, one Joseph Gateri Kimaru after due diligence ascertaining the said Joseph’s ownership, as he had been allocated the suit plot by the 1 st Defendant vide a Letter of Allotment dated 12 th July 2003. She explained that before transfer of the property could be effected to her, Joseph Gateri Kimaru passed on thus his son, Nicholas Mwangi Gateri became the personal representative of his estate and completed the transaction. She pointed out that the said Nicholas applied for a clearance certificate from ELC CASE NO. 307 OF 2017 Page 15 of 37 Judgement

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the 1st Defendant, which was issued on 23rd September 2011 stating that Joseph Gateri Kimaru (deceased), was the registered owner of the suit plot. Further, that he also signed a Power of Attorney donating to her powers to deal with the suit plot, and that she enjoyed quiet peaceful possession before selling the said property to the Plaintiffs in January 2013. 22. She claimed that the church, through its advocates, also conducted due diligence at the 1st Defendant’s Dandora offices which ascertained that Joseph Gateri Kimaru was the original allotee of the suit plot. She insisted that she passed a good title to the Plaintiffs. On a without prejudice basis, she urged the Court to indemnify her if it finds her liable to refund the purchase price to the Plaintiffs, on the basis that the 1st Defendant confirmed that Joseph Gateri Kimaru was the suit property’s original allotee and for reasons that it was responsible for double allocation. She produced her list and ELC CASE NO. 307 OF 2017 Page 16 of 37 Judgement

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bundle of documents dated 11th December 2019 as D. Exhibit 17-25. 23. In cross-examination, DW3 stated that the 2nd Defendant paid fees prescribed in the Letter of Allotment dated 18 th January, 1994, out of the prescribed time of thirty (30) days thus he was not owner of the suit property by the time she sold it to the Plaintiffs. She also insisted that she did a search at the 1 st Defendant’s offices at Dandora before she purchased the suit plot and that there was only one file in the name of Joseph Gateri Kimaru. She admitted that she did not seek to know whom the suit plot was repossessed from. She also acknowledged that the Power of Attorney donated to her by Nicholas Mwangi Gateri was not registered at the Ministry of Lands and confirmed that it could have been an omission. 24.Parties thereafter filed their respective written submissions. Submissions ELC CASE NO. 307 OF 2017 Page 17 of 37 Judgement

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25. The Plaintiffs submitted that they have proved the legality of their acquisition of the suit plot by demonstrating that they conducted due diligence and their chain of title is traceable to an allotee, one Joseph Gateri Kimaru. Further, that they paid full consideration and have been in open continuous possession of the suit plot while in contrast, the 2 nd Defendant failed to prove his root of title by failing to demonstrate that he fulfilled the conditions in his alleged letter of allotment dated 18th January, 1994 and he did not lead any evidence against them, on his allegation that they engaged in fraud. 26. On the 2nd Defendant’s Counterclaim, they submitted that it is unsustainable and on the alternative claim for a refund, they submitted that the 3rd Defendant admitted to receiving the purchase price thus she ought to return it, if the Court confirms the 2nd Defendant as owner. 27. To buttress their averments, the Plaintiffs’ relied on the following decisions: Dina Management Limited v County ELC CASE NO. 307 OF 2017 Page 18 of 37 Judgement

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Government of Mombasa & 5 others (Petition 8(E010) of 2021) [2022] KESC 24 (KLR); Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000]KECA 5 (KLR); Kemboi v Macharia & 2 others (Civil Appeal 17 of 2020) [2025] KECA 1665 (KLR) (21 October 2025); Williams & Kennedy Limited & 3 others v Gicharu & 10 others (Civil Appeal 2024(Consolidated) [2026] E682 & E705 OF KECA 130 (KLR) (23 January 2026), and DT Dobie & Company (k) Ltd v Muchina [1982] KLR. 28. The 1st Defendant submitted that it demonstrated that the suit plot was allocated to the 2nd Defendant. Further, that since a party that alleges a fact has liability to prove, the Plaintiffs and the 3rd Defendant had the burden to prove that the suit plot was repossessed and allocated to Joseph Gateri Kimaru as per their letter of allotment dated 12 th July 2003, which they pegged their claim on, but they did not adduce evidence to that effect. It also insisted that prior to filing this ELC CASE NO. 307 OF 2017 Page 19 of 37 Judgement

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suit, the Plaintiffs and the 2nd Defendant visited its offices where it confirmed to them that the 2 nd Defendant owns the suit property, a position it also re affirmed in its letter to the 2nd Defendant, dated 15th March 2017. 29. The 2nd Defendant submitted that the 1 st Defendant as custodian of records relating to the suit plot led evidence that he was the one who was allotted the said plot and there is no evidence that his allotment was cancelled/the suit plot repossessed therefore under Article 40 of the Constitution and Section 24 of the Land Registration Act, he is vested with absolute rights of ownership. Further, that there is no evidence that the Plaintiffs conducted due diligence before purchasing the suit plot and that their documents do not lead to a good root of title because they have glaring inconsistencies. 30. He also submitted that he is entitled to mesne profits calculated at what he ought to have received were it not for the Plaintiffs’ deprivation. He urged the Court to award him ELC CASE NO. 307 OF 2017 Page 20 of 37 Judgement

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monthly rent which would have been derived from the suit property, which was kshs.100,000x12x13 years. 31. To buttress his averments, the 2nd Defendant relied on the following decisions: Independent and Boundaries Commission & anor v Stephen Mutinda Mule & 3 others [2014] eKLR; Christie v Wilson and others [1999] 1ALLER 545; Caroline Awinja Ochieng & another v Jane Anne Mbithe Gitau & 2 others [2015] eKLR and Attorney General v Halal Meat Products Ltd [2016] eKLR. 32. The 3rd Defendant submitted that the 2nd Defendant did not establish a lawful and superior interest in the suit plot as there is no proof that he complied with conditions in the Letter of Allotment dated 18th January 1994. To this end, she urged the Court to uphold repossession and reallocation after non- compliance, since there is no evidence that Joseph Gateri Kimaru’s allocation was fraudulent while in contrast, she did conduct due diligence. She insisted that she acquired ELC CASE NO. 307 OF 2017 Page 21 of 37 Judgement

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a valid and transferrable interest which she lawfully transferred to the Plaintiffs. 33. On the Plaintiffs’ alternative claim for a refund, she submitted that it is unsustainable as the Plaintiffs voluntarily entered into the transaction after conducting their own due diligence and have failed to establish fraud, breach of contract, misrepresentation /unlawful conduct on her part. 34.To buttress her averments, the 3rd Defendant relied on the following decisions: Kedoki & another v Nchoe (Environment and Land Appeal E004 of 2025) [2026] KEELC 6879 KLR Mbau Saw Mills Ltd v Attorney General & Another [2015] KECA 681 (KLR) Anne Waceke Makori v Thomas Kebwaro Gwako & another [2018] eKLR. Analysis and Determination ELC CASE NO. 307 OF 2017 Page 22 of 37 Judgement

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35. I have considered witnesses, exhibits the pleadings, including testimonies rivalling of the submissions, the following are the issues for determination: a) Who between the Plaintiffs’ and the 2nd Defendant has established ownership of Plot No.32 Kayole Shopping Centre? b) Whether the Plaintiffs are entitled to the Orders as sought in the Plaint. c) Whether the 2nd Defendant is entitled to the Orders as sought in the Counterclaim. 36. The Plaintiffs' claim over the suit plot is founded on the allotment letter issued to Joseph Gateri Kimaru on 12 th July 2003 referenced, “allocation of Plot No. 32 - Kayole Shopping Centre (repossessed).” They allege that the said Joseph Gateri Kimaru sold the suit plot to the 3 rd Defendant who in turn sold it to them. They also allege to have conducted a search before purchase and that as per the search certificate ELC CASE NO. 307 OF 2017 Page 23 of 37 Judgement

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issued by the 1st Defendant, Joseph Gateri Kimaru was the original allotee of the suit plot. 37. The 1st Defendant, which is the allotting authority and custodian of records relating to the suit plot produced the Letter of Allotment dated 18th January 1994, allocating the suit plot to the 2nd Defendant. It insisted that there was no record that the suit plot had ever been repossessed or reallocated to another person. 38. The 2nd Defendant insisted that after he was allotted the suit plot by the 1st Defendant, he complied with conditions thereof and has been paying rates until the Plaintiffs trespassed thereon about thirteen (13) years ago. 39. On her part, the 3rd Defendant contends that she conducted due diligence before purchasing the suit plot from its original allotee, Joseph Gateri Kimaru though he died before effecting a transfer to her thus his legal representative, Nicholas ELC CASE NO. 307 OF 2017 Page 24 of 37 Judgement

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Mwangi Gateri signed a Special Power of Attorney, which she admitted was not registered. She insists that the 2 nd Defendant did not comply with the conditions in his Letter of Allotment dated 18th January 1994, thus the Court should infer that his allocation was cancelled and the plot repossessed. The Plaintiffs and the 3 rd Defendant pointed out that the 2nd Defendant paid the prescribed Kshs.16,800/= in his alleged Letter of Allotment outside the thirty (30)-day period stipulated therein. 40. While the 2nd Defendant admitted to have paid the said prescribed fee on 16th June 1995 rather than by 17th February 1994, he testified that there was an undated handwritten authority permitting him to do so. 41. On the first issue, the suit property is not registered, the Plaintiffs and the 2nd Defendant’s claims are pegged on two separate Allotment Letters. DW1 in his testimony confirmed that as per their records, the suit plot belongs to the 2 nd Defendant. DW1 was emphatic that as per their records, the ELC CASE NO. 307 OF 2017 Page 25 of 37 Judgement

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suit plot had not been repossessed as there were no minutes from their Housing Committee to that effect. DW1 was emphatic that the suit plot had always belonged to the 2 nd Defendant who paid rates and rent for it. DW2 further confirmed he owned the suit plot, had a Letter of Allotment to that effect and had paid land rates and rent to that effect. 42. The Plaintiffs and 3rd Defendant claimed the suit plot was repossessed but did not tender evidence on the alleged repossession. In my view, it was incumbent upon each of them to demonstrate that their ownership crystalized through the said Letter of Allotment. 43. In Caroline Awinja Ochieng & another v Jane Anne Mbithe Gitau & 2 others [2015] eKLR, the Court stated as follows: “… tracing ownership of unregistered land is dependent on tracing the root of title. Unlike registered land where ownership is domiciled and founded in the register of titles, ownership of ELC CASE NO. 307 OF 2017 Page 26 of 37 Judgement

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unregistered land confirmation thereof involves journey wading through of and the ascertainment the or intricate documentary history…” 44. In Co-operative Management Committee of Emparnat Farmers Dairy Co-operative Society Ltd v Kelempu (Civil Appeal E147 of 2021) [2026] KECA 1608 (KLR) (31 July 2026) (Judgment), the Court of Appeal while dealing with a case of similar facts observed as follows: ‘The learned Judge made observations, and correctly so in our view, that even though the appellant claimed that the County Government of Kajiado reallocated the suit properties to them, there was no evidence tendered to the effect that the respondent’s allocation of the plots had been cancelled. On the contrary, evidence tendered indicated that the County Government of Kajiado continued to receive……… Be that as it may, can a second allotment be validly made where an earlier allotment had been made? This Court has on previous occasions found that in such a situation, the second allotment cannot stand. That was the ELC CASE NO. 307 OF 2017 Page 27 of 37 Judgement

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position adopted in the case of Kenya Ihenya Company Limited & Another vs. Njeri Kiribi [2019] eKLR, where the court stated; “ … it was clear that the 1st appellant had allotted the suit land to both the respondent and the 2nd appellant, hence the learned Judge’s conclusion that there was a double allocation. That being the case, since the respondent was first in time, as the evidence is clear that she completed making payments in the year 1983 whilst the 2nd appellant claimed to have purchased the same on 24th June, 1997, she was the bona fide proprietor.” Based on the documents that were tendered before the learned Judge as well as the testimony of the witnesses, we are of the considered view that the learned Judge was fully justified in arriving at the conclusion that the suit properties were unavailable for reallocation, land rates and rents from the respondent.’ 45. The burden of proof was upon the Plaintiffs and 3 rd Defendant to demonstrate that there were minutes from the 1st Defendant’s Housing Committee confirming repossession of the suit plot and reallocation to Joseph Gateri Kimaru. In ELC CASE NO. 307 OF 2017 Page 28 of 37 Judgement

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this regard, the 3rd Defendant relied on the decisions of Kedoki & another v Nchoe (Environment and Land Appeal E004 of 2025) [2026] KEELC 6879 KLR and Ann Waceke Makori v Thomas Kebwaro Gwako & another [2018] KEELC 3351 (KLR) for her contention that the Court should infer that the suit plot was repossessed by the mere fact of the allocation to Joseph Gateri Kimaru vide the Letter of Allotment dated 12th July 2003. While the courts in both cases acknowledged that the allocating authority can lawfully repossess property from an original allottee on account of rent and rates arrears, there ought to be evidence in that respect, which was not presented. 46. DW1 who was representing the 1st Defendant who was the allotting authority, in his testimony was emphatic that the receipts in the 3rd Defendant’s bundle indicating that Joseph Gateri Kimaru paid for the suit plot were not in the 1 st Defendant’s registry file and they do not confirm ownership of the suit plot. He further stated that the search in the Plaintiffs’ documents is also not in the 1 st Defendant’s file and ELC CASE NO. 307 OF 2017 Page 29 of 37 Judgement

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there is no receipt confirming that it was paid for. He insisted that the Letters of Allotment in dispute refer to the same Plot No. 32 Kayole Shopping Centre. 47. It is worthnoting that the 1st Defendant that was the allotting authority confirmed in its pleadings and witness testimony that the suit plot was allotted to the 2 nd Defendant and was never repossessed. Further, it even confirmed in writing vide its letter dated 15th March, 2017, that the said plot belonged to the 2nd Defendant. It is further worthnoting that the Power of Attorney used to effect the transaction between the 3 rd Defendant and Plaintiffs was not even registered and hence could not confer any legal right. 48.It also emerged in evidence that the Plaintiffs and 2 nd Defendant were actually called for a meeting by the 1 st Defendant to resolve the dispute herein and the Plaintiffs were even informed that the suit plot belonged to the 2 nd Defendant but they still proceeded to institute this suit. DW2 ELC CASE NO. 307 OF 2017 Page 30 of 37 Judgement

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also confirmed that he was allowed to pay rates and rent and has continued paying for the same in respect to the suit plot. 49. Based on the facts as presented while associating myself with the decisions quoted, I find that the suit plot indeed belongs to the 2nd Defendant who has continued to pay rates and rent for it. Further, that the said plot was never repossessed and allotted to Joseph Gateri Kimaru as claimed by the Plaintiffs and 3rd Defendant. I will hence proceed to uphold the 2nd Defendant’s Letter of Allotment in respect to the suit plot. 50. As to whether the Plaintiffs are entitled to the Orders as sought in the Plaint, the Plaintiffs in their Plaint sought for various Orders which are enumerated above. A key prayer was refund of the purchase price if the Court found the suit plot did not belong to Joseph Gateri Kimaru. On her part, the 3rd Defendant contends that she conducted due diligence and passed a good title and that no fraud or bad faith has been proved on her part. In Danson Kimani Gacina & another v ELC CASE NO. 307 OF 2017 Page 31 of 37 Judgement

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Embakasi Ranching Company Ltd [2014] KEHC 8602 (KLR), the Court held that: “The law on unregistered land, unlike on registered land, is slightly unclear. Proof of ownership in the case of the former is found in documentary evidence which lead to the root of title. There must be shown an unbroken chain of documents showing the true owner. Once proof of ownership is tendered then the holder of the documents is entitled to the protection of the law. There is no doubt that such proof will be on a balance of probabilities but the court must be left in no doubt that the holder of the documents proved is the one entitled to the property.” 51. From the evidence tendered and since I have found that the suit plot belonged to the 2 nd Defendant, I find that the Plaintiffs are not entitled to the Orders as sought in the Plaint except to obtain their refund from the 3 rd Defendant who sold them the suit plot that did not belong to Joseph Gateri Kimaru. ELC CASE NO. 307 OF 2017 Page 32 of 37 Judgement

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52. On whether the 2nd Defendant is entitled to the Orders as sought in the Counterclaim. I note he sought to be declared owner of the suit plot and a permanent injunction restraining the Plaintiffs from interference. He also sought mesne profits which at the submission stage he urged the Court to award kshs.100,000x12 months x13years. Since I have already found that the 2nd Defendant is the proprietor of the suit plot, I will proceed to make a determination on whether he is entitled to mesne profits or not. On the 2 nd Defendant’s claim for mesne profits, I wish to refer to Section 2 of the Civil Procedure Act Cap 21 which defines it as follows:“mesne profits”, in relation to property, means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but does not include profits due to improvements made by the person in wrongful possession;” 53. From the evidence tendered in court, I find that the 2 nd Defendant as DW2 except for stating that he had laid a ELC CASE NO. 307 OF 2017 Page 33 of 37 Judgement

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foundation on the suit plot and sought approvals for his plans, did not demonstrate any further development on the suit plot. Further, PW1 confirmed that the suit plot only had a mabati structure. Insofar as the 2 nd Defendant in his submissions provided a calculation of the mesne profits, I find that he did not provide sufficient proof in his pleadings or exhibits on this claim. 54. In Attorney General v Halal Meat Produces Ltd [2016] KECA 306 (KLR), the Court of Appeal held that: “It follows therefore that where a person is wrongfully deprived of his property, he/she is entitled to damages known as mesne profits for loss suffered as a result of wrongful period of occupation of his property by another” 55. However, since the Plaintiffs trespassed on the suit plot, but is not doing business on it, I opine that the 2 nd Defendant can be awarded a minimum amount of mesne profits which should be borne by the 3rd Defendant as she was the originator of the dispute herein. In the foregoing, I will ELC CASE NO. 307 OF 2017 Page 34 of 37 Judgement

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award 2nd Defendant mesne profits of Kshs.1,000,000/=. I hence find that the 2nd Defendant is indeed entitled to the Orders as sought in the Counterclaim. 56. It is against the foregoing that I find that the Plaintiffs have not proved their case on a balance of probability as against the 1st and 2nd Defendants and will proceed to dismiss it with costs to them. I further find that the Plaintiffs have only proved their case as against the 3rd Defendant and will enter judgement in their favour as against her and award them costs. I also find that the 2nd Defendant has proved his case as per the Counterclaim and will proceed to enter judgement in his favour as against the Plaintiffs and 3rd Defendant and award him costs. I will proceed to make the following final Orders: i. A declaration be and is hereby issued that Plot No.32 situated at Kayole Shopping Centre (commercial) within the City County of Nairobi belongs absolutely and continue to be owned by ELC CASE NO. 307 OF 2017 Page 35 of 37 Judgement

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the 2nd Defendant being the genuine, true and just registered proprietor. ii. The 3rd Defendant be and is hereby ordered to refund to the Plaintiffs, the purchase price of kshs.1,350,000/=, together with interest thereon at Court rates from the date of this judgement until payment in full. iii.An order be and is hereby issued evicting the Plaintiffs from the suit property after ninety (90) days from the date hereof. iv. A permanent injunction be and is hereby issued against the restraining Plaintiffs them from and 3rd Defendant, henceforth entering, developing and /or in any other way interfering with the suit property. v. Mesne profits awarded to the 2 nd Defendant at Kshs. 1,000,000/= to be borne by the 3 rd Defendant. vi. Costs of the suit and Counterclaim awarded to the 1st and 2nd Defendants to be borne by the 3rd Defendant. ELC CASE NO. 307 OF 2017 Page 36 of 37 Judgement

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vii. The costs of the Plaintiffs to be borne by 3 rd Defendant. viii. Interest at (v) above at court rates from the date of this judgement until payment in full. DATED SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Nganga for Ms Ngugi for Plaintiff Otenyo for 1st Defendant Ms Kiprop for 3rd Defendant Awiti for 2nd Defendant Court Assistant: Joan ELC CASE NO. 307 OF 2017 Page 37 of 37 Judgement

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