Veronica Wangui Achuo v Naomi Wanjiru & Gerald Thiong'o Kanyingi

Association and thereafter continued making payments towards rates and processing of the title. 3. It was the Plaintiff’s evidence that the Defendants had initially been allocated the suit property by the Association, but that their interest was conditional upon compliance with the Association’s requirements, including payment of the requisite remittances. She contended that upon their default, the property was repossessed and subsequently allocated to Peter Mwaura Ndung’u, who later sold it to her. In support of her claim, she relied, inter alia, on the Agreement for Sale, the Transfer Agreement, the Certificate of Ownership issued in her favour, the Constitution of Umoja II Jua Kali Association and receipts evidencing payments made to the Association. 4. The Plaintiff further relied on the evidence of PW2, the Chairman of Umoja II Jua Kali Association, who testified that the Defendants failed to make the requisite remittances to the Association, following which the suit property was repossessed and allocated to Peter Mwaura Ndung’u. PW2 also confirmed that Peter Mwaura Ndung’u was a member of the Association and that a member who had been allocated a plot could sell the same to a non-member. 5. The Plaintiff also referred to a resolution of the Board of Umoja II Jua Kali Association made on 28th October 2016, by which the Association maintained that she was the bona fide owner of the suit property and directed the 2nd Defendant to surrender the Association’s documents for purposes of refunding his contribution of Kshs. 21,000. PW2 confirmed that he attended the meeting in which the said resolution was made. 6. The Plaintiff contended that despite her acquisition of the property, the 1 st Defendant entered upon it and erected semi-permanent structures thereon, thereby denying her possession and enjoyment of the property. She consequently termed the Defendants’ continued occupation as ELC CASE NO. 1521 OF 2016 2

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trespass and sought vacant possession, general damages for trespass, costs of the suit and the other reliefs set out in the Plaint. The Defendants’ Case 7. The Defendants denied the Plaintiff’s claim and maintained that they are the lawful allottees and occupiers of the suit property. Their case was that the property was allocated to them by Umoja II Jua Kali Association in the 1990s, as evidenced by an Allocation Certificate issued in their names. They stated that they took possession of the property when it was vacant, erected a perimeter wall and later put up permanent and semi-permanent structures thereon using their own resources. 8. The Defendants disputed the Plaintiff’s contention that their interest in the suit property was lawfully repossessed by the Association. They maintained that they were never served with any notice of expulsion, loss of membership or intended repossession and that they were never afforded an opportunity to be heard before the alleged reallocation. They further contended that the Gazette Notice relied upon by the Association did not identify either the Defendants or the suit property and therefore could not, in their view, operate to extinguish their interest. 9. It was further the Defendants’ case that cessation of membership in the Association did not automatically result in forfeiture of an already allocated proprietary interest. They relied on the Association’s Constitution and contended that, while it provided for cessation of membership for non-payment of subscriptions, it did not expressly provide that such cessation would automatically divest a member of land already allocated to him or her. Their position was therefore that the alleged repossession and subsequent reallocation to Peter Mwaura ELC CASE NO. 1521 OF 2016 3

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Ndung’u were unlawful and ineffective. 10. The Defendants also challenged Peter Mwaura Ndung’u’s capacity to sell the suit property to the Plaintiff. They contended that at the time of the alleged sale, ownership of the property was already the subject of litigation in Milimani CMCC No. 2973 of 2007, in which Peter Mwaura Ndung’u had sued the Association, its officials and the 2nd Defendant herein. They argued that the dispute over ownership remained unresolved and that Peter Mwaura Ndung’u could not pass a better interest to the Plaintiff than he himself lawfully possessed. 11. The Defendants further maintained that they had remained in continuous occupation and possession of the suit property since the time of their allocation and denied that they were trespassers. They contended that the Plaintiff had failed to establish a superior proprietary or possessory right over the property and, consequently, that her claim for vacant possession and general damages for trespass could not succeed. They therefore prayed that the suit be dismissed with costs. Hearing 12. The matter proceeded to hearing, during which the Plaintiff testified in support of her claim and also called the Chairman of Umoja II Jua Kali Association as a witness. The Defendants, on their part, called the 1st Defendant, Naomi Wanjiru, who testified in support of the Defence. Upon the close of the parties’ respective cases, the Court directed them to file and exchange written submissions. The Plaintiff’s Submissions 13. The Plaintiff submitted that the principal issue before the Court was whether she acquired a valid beneficial interest in the suit property ELC CASE NO. 1521 OF 2016 4

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following its alleged repossession from the Defendants and subsequent allocation to Peter Mwaura Ndung’u. She maintained that the Defendants’ original allocation was conditional upon compliance with the financial obligations imposed by Umoja II Jua Kali Association and that their failure to make the requisite remittances led to cessation of membership and loss of the benefits attached thereto, including the suit property. She further submitted that Peter Mwaura Ndung’u thereafter acquired a valid beneficial interest which he lawfully transferred to her. 14. In support of her position, the Plaintiff relied on Torino Enterprises Limited -Vs- Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) on the effect of failure to fulfil conditions attached to an allotment; Githunguri Dairy Farmers Co-operative Society -VsWaweru & 22 Others (Civil Appeal E845 of 2022) [2024] KEHC 3608 (KLR) and Paul Mwangi Ndereba & Another -Vs- Moses Macharia Gacheru & 2 Others [2020] KEMSET 41 (KLR) on cessation of membership; and Mwangona & 2 Others -Vs- Zania Limited & Another (Environment & Land Case E154 of 2021) [2024] KEELC 1543 (KLR) on damages for trespass. She urged the Court to find that the Defendants had no continuing interest in the suit property and to grant the reliefs sought. The Defendants’ Submissions 15. The Defendants submitted that the central issues were whether the suit property was lawfully repossessed and reallocated; whether cessation of membership under the Association’s Constitution automatically extinguished rights in land already allocated; whether Peter Mwaura Ndung’u had capacity to sell the suit property; whether the Plaintiff acquired any valid proprietary interest; whether she could rely on the doctrine of bona fide purchaser; and whether trespass had been ELC CASE NO. 1521 OF 2016 5

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established. Their position was that the alleged repossession was procedurally defective, that no notice or hearing preceded it and that the Association could not lawfully reallocate property in which they already held an existing interest. 16. The Defendants relied, inter alia, on Munyu Maina -Vs- Hiram Gathiha Maina [2013] eKLR on proof of the root of title; Benja Properties Limited -Vs- Syedna Mohammed Burhannudin Sahed & 4 Others [2015] eKLR and Philemon L. Wambia -Vs- Gaitano Lusitsa Mukofu & 2 Others [2019] eKLR on the effect of an earlier allocation; Peter Mbiri Michuki -Vs- Samuel Mugo Michuki [2014] KECA 342 (KLR) on possession; and David Kiptugen -Vs- Commissioner of Lands & 4 Others [2015] eKLR on the legality of the process through which title is acquired. They consequently urged the Court to find that Peter Mwaura Ndung’u had no transferable interest and that the Plaintiff’s claim for ownership, vacant possession and damages for trespass ought to be dismissed. Issues for Determination 17. Having considered the pleadings, the evidence adduced by the parties and their respective submissions, the Court is of the view that the following issues arise for determination: a) Whether the Defendants’ interest in the suit property was lawfully extinguished and whether the Plaintiff consequently acquired a valid beneficial or proprietary interest in the suit property; and b) Whether the Defendants are trespassers on the suit property and what reliefs, if any, should issue. ELC CASE NO. 1521 OF 2016 6

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Analysis and Determination Issue No. 1: Whether the Defendants’ interest in the suit property was lawfully extinguished and whether the Plaintiff acquired a valid interest in the suit property 18. It is common ground that the suit property was first allocated to the Defendants by Umoja II Jua Kali Association. The Defendants relied on the Allocation Certificate Ref. No. 93/64/PA, while the Plaintiff’s case is that the Defendants subsequently lost that interest after defaulting in their obligations to the Association. The Plaintiff’s claim therefore does not arise from an original allocation in her favour but from the alleged repossession of the Defendants’ plot, its subsequent allocation to Peter Mwaura Ndung’u and the eventual sale to her. 19. The burden of proving that chain lay upon the Plaintiff. Section 107 of the Evidence Act places the burden upon the party who seeks a court to give judgment on the basis of facts asserted by that party. In a dispute involving competing claims to land, the Court is required to interrogate the root of the respective interests and not merely the final document relied upon. That approach is consistent with Munyu Maina -Vs- Hiram Gathiha Maina [2013] eKLR, where the Court of Appeal emphasized that where the root of title is challenged, the holder must go beyond the instrument relied upon and demonstrate the legality of the acquisition. 20. The Plaintiff relied on Clause 5(f) of the Constitution of Umoja II Jua Kali Association, which provides that a member who falls into arrears with monthly subscriptions for more than six months shall automatically cease to be a member and may be struck off the register. She also relied on Gazette Notice No. 4772 of 23rd June 2006, which warned defaulting members that their membership would lapse and their benefits would be forfeited if they failed to regularise their position. PW2 ELC CASE NO. 1521 OF 2016 7

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testified that the Defendants failed to make the requisite remittances and that the suit property was thereafter repossessed and reallocated to Peter Mwaura Ndung’u. 21. The Defendants disputed that position and produced receipts dated 6th March 1999 and 13th November 2016 as evidence of payments made to the Association. The Plaintiff challenged the probative value of those receipts on the basis that they did not identify the suit property and that the latter receipt was issued long after the alleged cessation of membership. That criticism is not without basis. However, the question before the Court is not merely whether the Defendants produced sufficient receipts, but whether the Plaintiff proved the default said to have triggered the repossession. No statement of account, ledger, demand notice or other record identifying the amount allegedly outstanding from the Defendants was produced. 22. The Plaintiff’s reliance on Torino Enterprises Limited -Vs- Attorney General [2023] KESC 79 (KLR) is relevant to the extent that an allottee who fails to satisfy conditions attached to an allotment may not acquire or retain the interest contemplated by that allotment. Equally, the decision in Paul Mwangi Ndereba & Another -Vs- Moses Macharia Gacheru & 2 Others [2020] KEMSET 41 (KLR) demonstrates that membership may cease automatically where the governing constitution expressly so provides. However, that latter decision also drew a distinction between membership in an association and participation in a land or housing project. The Tribunal found that although the claimants had ceased to be members, they remained participants in the housing project and were entitled to have their payments reconciled for purposes of processing their titles. ELC CASE NO. 1521 OF 2016 8

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23. That distinction is material here. Clause 5(f) expressly speaks to cessation of membership. It does not expressly state that upon cessation of membership, an already allocated plot automatically reverts to the Association. The Gazette Notice refers generally to forfeiture of “benefits”, but it does not identify the suit property or specify the process by which the Defendants’ allocation was to be cancelled. In the absence of an express provision linking cessation of membership to automatic forfeiture of the particular plot, the Court must look for evidence of a separate and identifiable process of repossession. 24. The record does not disclose such a process with sufficient clarity. There is no specific notice addressed to the Defendants informing them that Plot No. 29 was being repossessed, no resolution contemporaneous with the alleged repossession specifically cancelling their allocation, and no documentary evidence identifying the arrears upon which that repossession was founded. The later Board resolution of 28th October 2016, which recognised the Plaintiff as the owner and directed that the 2nd Defendant’s contribution of Kshs. 21,000 be refunded, is evidence of the Association’s position at that time, but it was made several years after the alleged repossession and after the sale to the Plaintiff. 25. The Plaintiff also relied on the subsequent allocation to Peter Mwaura Ndung’u, the Agreement for Sale, the Transfer Agreement, the Certificate of Ownership issued to her and receipts evidencing payments made to the Association. Those documents support the fact that the Association thereafter dealt with the property as though it had reverted to it and could be reallocated. They do not, however, by themselves answer the prior question whether the Defendants’ earlier interest had first been lawfully extinguished. ELC CASE NO. 1521 OF 2016 9

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26. The prior proceedings in Milimani CMCC No. 2973 of 2007 are also significant. Peter Mwaura Ndung’u obtained interlocutory orders in relation to the suit property, but the material before this Court does not show that the substantive question of ownership was finally determined in his favour. The existence of that litigation demonstrates that the competing claims were already live before the Plaintiff’s purchase. It therefore reinforces the need to establish, independently, the legality of the repossession and reallocation rather than treating the interlocutory orders as conclusive proof of ownership. 27. On the totality of the evidence, the Court is satisfied that the Plaintiff established that the Association treated the Defendants as having ceased to be members and thereafter dealt with the suit property in favour of Peter Mwaura Ndung’u and ultimately the Plaintiff. What has not been established on a balance of probabilities is that the Defendants’ earlier allocation was lawfully extinguished before that subsequent dealing took place. The evidential gap lies in the absence of a clear contractual, constitutional or procedural basis showing that cessation of membership automatically resulted in forfeiture of the suit property, together with the absence of documentary evidence demonstrating the specific default and repossession of Plot No. 29. 28. Accordingly, the Court finds that the Plaintiff has not proved a lawful and complete chain by which the Defendants’ original interest was extinguished and a valid interest thereafter passed to Peter Mwaura Ndung’u for onward transfer to her. The consequence is that the Plaintiff has not established, on a balance of probabilities, a superior beneficial or proprietary interest in the suit property. ELC CASE NO. 1521 OF 2016 10

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Issue No. 2: Whether the Defendants are trespassers and what reliefs should issue 29. Having found that the Plaintiff did not establish a superior beneficial or proprietary interest in the suit property, the claim for trespass cannot succeed. Trespass presupposes an unjustifiable intrusion upon land in the possession of another. In the present case, the Defendants’ occupation preceded the Plaintiff’s alleged acquisition, and the Plaintiff has not demonstrated that their interest had been lawfully extinguished before she acquired her claimed interest. The prayer for vacant possession and general damages for trespass therefore fails. Final Orders 30. In the result, the Court makes the following orders: a) The Plaintiff’s suit is hereby dismissed. b) The prayers for vacant possession and general damages for trespass are declined. c) The Defendants shall have the costs of the suit. It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on 24th day of September, 2026. MOHAMMED N. KULLOW JUDGE ELC CASE NO. 1521 OF 2016 11

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Judgement delivered in the presence of: Mr. Mburu for the Plaintiff Ms. Suima for Defendant Ms. Mwangi Court Assistant ELC CASE NO. 1521 OF 2016 12

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