Barno v Waithaka & 5 others

and or dealing in any manner whatsoever with the parcel of land known as Title No. Nanyuki Municiplaity block 7/415, Block 7/416, Block 7/417, Block 7/418, block 7/419 and Block 7/420. ii. An eviction order compelling the defendants to vacate from the suit property. iii. An order compeling the OCS Nanyuki Police Station to enforce the orders issued by this Honourable court. iv. General damages for trespass. v. Costs of this suit.” 3. The 1st, 3rd, 4th and 5th defendants led separate statements of defence and counterclaim all dated 2.5.2024. They aver that the discussions on purchase were initiated by the plainti but they did not agree on the oer because the defendants had already bought the land. They lodged the caution because they were innocent purchasers. 4. In their respective counter claims, these defendants aver that they bought their parcels of land from Marura marketing agency who in in turn had bought the land from the plainti, adding that it was fraudulent for the plainti to be registered as the owner of the land in year 2016, knowing well that the defendants were in occupation. They pray that the titles issued to the plainti be cancelled and fresh ones be issued in their favour. 5. The 2nd defendant was discharged from these proceedings pursuant to a consent recorded on 29.10.2025 which was adopted as a partial judgment of the court on 29.10. 2026. On 8.6.2026, counsel for the plainti informed the court that they had recorded a similar consent on 2.6.2026 with the 6th defendant. 6. It follows that the trial herein concerns the plainti and the 1st, 3rd , 4th and 5th defendants. 7. At the trial, the plainti, DAVID SOME BARNO testied as PW1. He adopted his witness statement dated 20.2.2026 as his evidence. He also produced the 39 documents in his bundle as his exhibits and the criminal proceedings as exhibit 40. 8. His evidence is that sometime in year 2016, the defendants illegally entered his parcels No. 415 – 420 but thereafter the parties entered into discussions regarding purchase of the suit plots which did not bear fruits. Thus his Advocate issued a demand notice dated 30.1.2017 requiring the defendants to vacate the suit parcels. That the defendants promised to pursue the people who conned them and also to vacate the parcels and out of compassion the plainti allowed them to stay through the year 2017. That in year 2022 the parties had a meeting at the Chief’s oce where the plainti made it clear through his friend and contact one Mr. Kosgei that it was the high time that he was given vacant possession of his parcels. However, the defendants have resisted this move and they continue to erect structures on the suit parcels. 9. He also came to learn that the defendants have registered cautions on the suit parcels claiming purchaser’s interests. He contends that he is unable to fence and even develop the said parcels because of the presence of the defendants on the land and the cautions lodged therein. 10. In cross-examination Pw1 stated that he got the land from the Government as per the allotment letters at page 7 and 8 of his trial bundle. He has seen the agreement at page 9 of the defendants’ bundle dated 3.2.2026. He denies that his name is Arap Some and he also denies that the signatures therein are his, adding that his signature is the one at page 5 of his trial bundle. He also denies the receipt at page 11 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5593/eng@2026-09-17 2

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of the defence bundle. He contends that only some of the defendants stay on the suit land. He wanted to build on that land but he has no documents to that eect. 11. In re-examination, Pw1 stated that his name is David Some Barno and he does not know a person by the name David Arap Some. 12. PW2 is one JAMES KOSGEI, he adopted his witness statement dated 20.2.2026 as his evidence. He contends that he has known the plainti for a period of 25 years and he also knows that the plainti is the owner of the suit properties. He avers that in year 2016 he observed that the defendants had trespassed on plainti’s land and he therefore informed the plainti accordingly. He is aware that the defendants expressed an interest in purchasing the properties claiming that they had been defrauded by a conman but the purchase negotiations failed. He actively participated as an intermediary between the plainti and the defendants whereby the later promised to vacate the suit properties but they didn’t. He attended the meeting at the Chief’s oce within Nanyuki in the year 2022 where he clearly communicated plainti’s wish that the later wanted his land back. That the defendants did not dispute the title of the plainti but they pleaded for more time to vacate, however they did not vacate. 13. In cross-examination Pw2 stated that he knows the defendants and that they started staying on the suit property in year 2000. That from year 2000 to year 2016 and even 2022 the plainti had never chased the defendants from that land. He is aware that the defendants bought the land from one Daniel Mbogo but it is not true that the plainti had sold the land to Daniel Mbogo. 14. DW1 is Beatrice Wangeci Waithaka, the 1st defendant. She adopted her witness statement dated 2.5.2024 as her evidence. She also produced the documents in her list dated 2.5.2024 as exhibits 1 – 6. Her evidence is that on 19.8.2000 she bought plot No. F3 in Nanyuki from one Daniel Mbogo Gathia who was trading as Marura marketing agencies whereby the sellers stated that they had bought the entire land from the plainti. That she immediately took possession and constructed on the land of which some of her buildings are permanent. That it was only in year 2016 that the plainti through an agent communicated to them that they were occupying his land. She contends that she is an innocent purchaser of the suit property which she has occupied for a period of 24 years without interruption. 15. In cross examination, Dw1 stated that Marura marketing Agency was under Daniel Mbogo Kagia and he is the one who was in the oces of Marura Agencies. She avers that she did not do a search and that the agreement at page 12 of her bundle was signed by Mbogo. She believes that the documents they were shown were genuine as they were original. She avers that they did due diligence by going to the oces of the County where they conrmed that the allotment was there. She however did not investigate the name Arap Some. She avers that in her counterclaim the person she sued is David Some Barno and not Arap Some. 16. Dw1 avers that they have sued Daniel Mbogo in another case where the charge is “ obtaining money by force pretences”. Her complaint in the case was that Mbogo had failed to give them documents. She identied the charge sheet in which she testied in a criminal case. 17. In re-examination, Dw1 reiterates that she did due diligence as she went to the oces of the County where she was shown the original allotment letter by Daniel Mbogo. 18. DW2 is Nicholas Eroman Hau the 3rd defendant. He adopted his witness statement dated 2.5.2024 as his evidence. He also produced the documents at page 36 of their bundle as his exhibit 1 – 4. His evidence is that he bought his land on 21.9.2000 from Daniel Mbogo who was Director of Marura Marketing Agency and was told that they in turn bought the land from David Some. 19. In cross-examination, Dw2 stated that he bought the land from Daniel Mbogo who owned Marura Marketing Agencies. He avers that they have sued Daniel Mbogo in the criminal case for selling to them https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5593/eng@2026-09-17 3

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land which was not his. He admits to having lodged a caution in year 2016 because Some was claiming the land. He is not aware if the caution was removed. 20. DW3 is Ann Wanjiku Ngunyi the 4th defendant. She adopted her witness statement dated 17.10.2024 as her evidence and she produced the documents at page 48 of her trial bundle as her exhibit 1 – 5. Her evidence mirrors that of Dw1 and Dw2, save that she bought her parcel plot F on 10.8.2000. 21. In cross-examination, Dw3 stated that they sued Daniel Mbogo because of selling to them land which was not his. She contends that she was taken to the land after the purchase by an advocate. She admits to having lodged a caution as she wanted to know the owner of the land. She had come to learn that the owner of the land is the plainti. 22. DW4 is David Macharia Gitahi the 5th defendant. He adopted his witness statement dated 2.5.2024 as his evidence and he produced the documents in his list at page 60 as exhibits 1 – 6. Similarly, his evidence is like that of the other defendants. He added that his parcel was measuring 50 x 100 ft and was unsurveyed residential plot F. 23. In cross examination, Dw4 stated that they were given documents by Daniel Mbogo the proprietor of the Marura Company. He avers that a search indicates that the land belongs to Some, but he didn’t look for this person as they were only dealing with documents. He avers that they led the other case because they were not getting the documents for the land. He avers that he lodged a caution because Some called them and told them that he would chase them away. He avers that he is entitled to his plot as an innocent purchaser. For the meeting at the Chief’s place, he did not attend but had sent a representative. 24. In re-examination, Dw4 stated that they were given the allotment letter by Mbogo and the others. He admitted that they have another case with Mbogo where they had complained that Mbogo had failed to give them documents for the land. 25. The parties did not le and serve submissions in tandem with the court’s directions that is by 23.6.2026 for plainti and 17.7.2026 for defendants. Determination 26. I have considered the pleadings, the evidence tendered and the rival submissions. The issues falling for determination are; Whether the claim of the plainti on eviction of the 1st, 3rd ,4th and 5th defendants ( herein the defendants) is merited, or whether the counterclaim on fraud advanced by the defendants is merited. 27. It is trite law that he who alleges bears the burden of proof as set out under section 107 and 109 of the Evidence Act. The plainti contends that he is the registered owner of the parcels in question, thus he is entitled to the orders in the plaint. The defendants on the other hand contend that they bought the parcels of land from one Daniel Mbogo who was trading us Marura Marketing Agency who in turn had bought the parcels from the plainti. The defendants contend that they were shown the documents of ownership particularly the letter of allotment and it had the name of the owner. 28. In the Court of Appeal case of in Munyu Maina-Vs- Hiram Gathina Maina (2013) eKLR, the court stated that: “ When a registered proprietor’s proof of title is under challenge, it is not sucient to dangle the instrument of title as proof of ownership; the registered proprietor must go beyond the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5593/eng@2026-09-17 4

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instrument and prove the legality on how he acquired the title and show that the acquisition was lawful, formal and free from any encumbrances.” 29. While in Daudi Kiptugen v Commissioner of Lands & 4 Others [2015] eKLR the court stated that: “ …the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process, the title itself cannot be a good title.” 30. The titles of the plainti are under challenge, as the defendants contend that he was the owner of the allotment letter for the parcel F, the one that yielded their parcels. During the trial, the defendants admitted that the letter of allotment bore the name David Arap Some and not David Some Barno. It was therefore crucial for the plainti to tender evidence distancing himself from this letter of allotment. 31. During cross examination, the plainti stated that he does not have his own letter of allotment in his trial bundle. Where did his titles then emanate from? The plainti has not availed any single document relating to the root of his title, which calls for interrogation of the allotment letter availed by the defendants. I nd that “Arap” means “son of” , thus the letter of allotment of 10.11.1998 was issued to David Son of Some. Thus in absence of any other allotment, I am inclined to nd that the plainti is the person named in the letter of allotments given to the defendants. 32. Despite this conclusion, I nd no tangible evidence to indicate that the plainti was part and parcel of the sale of his own land in respect of the agreements availed by the defendants. The agreement of 3.2.2000 availed by the defendants indicates that it was between Daniel Mbogo Gathia T/A Marura Marketing agencies, the purchaser and David Arap Some. Save the said agreement, there is nothing to indicate that a transfer of the rights and interests in that land were eventually eected in favour of Daniel Mbogo. 33. Thus even as the defendants embarked on purchasing their plots from Daniel Mbogo or Marura Marketing Agency, they were buying nothing. They did not enter into any agreement with the real owner of the land. As it were, the alleged seller, Daniel Mbogo had not acquired any rights and interests in the suit property. 34. Even the agreements that the defendants were making with Daniel or Marura are outrightly questionable as what was being sold is not identiable. For instance, the agreement of Dw1 (1st defendant ) is for sale of plot No. F3 excised from plot No. F – D.E.B. Nanyuki Municipality between Marura Marketing Agencies Nanyuki and Beatrice Waithaka. The one for Dw2 ( 3rd defendant) is for Sale agreement of plot No. F2 excised from plot No. A – Nanyuki Municipality between Marura Marketing Agencies (vendor) and Mr. Nicholas Eroman Hau. The one for Dw3 ( 4th defendant ) is for plot No. F1 excised from plot No. F – Nanyuki Municipality – DEB Primary between Marura Marketing Agencies and Annah Wanjiku Ngunyi while the one for Dw4 ( 5th defendant ) was made on 29.8.2000 between Daniel Mbogo Gathia T/A Marura Marketing Agencies and David Gitahi Macharia for a portion measuring 50ft x 100ft excised from unsurveyed residential plot No. F Nanyuki Municipality! 35. . In the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR, it was stated that; “ It was common knowledge, and well documented at the time, that the land market in Kenya was a mineeld and only a foolhardy investor would purchase land with the alacrity of a potato dealer in Wakulima market”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5593/eng@2026-09-17 5

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36. . And that is exactly what the defendants did!. This is a classic case where the “nemo dat quod non habet” principle applies translating to "no one can give what they do not have." See Abed Vs Ali (Civil Appeal E140 of 2022) 2025 KECA 1323 (KLR) (18 July 2025) (Judgment). 37. The defendants were rather casual in the manner they went about purchasing the suit parcels. Thus even if the court has found that the plainti is the one who was issued with the letter of allotment on 10.11.1998, there is no sucient evidence to connect him with the shady deals that the defendants were entering into with one Daniel Mbogo aka Marura Marketing Agency in respect of the suit properties. In that regard, I nd that the claim of fraud advanced by the defendants must fail. 38. . In the end, I nd that plainti’s case is merited the same is hereby allowed while the counter claims of the defendants are dismissed. On costs, the court has taken into account the evidence of Dw2 who stated that “ I know the defendants, they started staying on the suit land in year 2000…..From year 2000-2022, Some had never chased them”. I have also considered that the letter of allotment issued to the plainti was associated with the shady land deals. It would therefore be unjust to condemn the defendants to pay costs, yet the owner of the land all along appears to have had knowledge of their occupation. In that regard, I direct that each party shall bear their own costs of the main suit and even the counterclaims. DATED, SIGNED AND DELIVERED AT NANYUKI THIS 17TH DAY OF SEPTEMBER 2026 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of: Yaru/Consolata – C/A Jerono for plainti absent Maina for 1st, 3rd and 5th defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5593/eng@2026-09-17 6

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