Mohamed Omar Kulala & Another v Peter Misheni Njagi

evicting or interfering with the applicants' quiet possession of the suit property. d)Costs of the suit. 2. According to the appellants, they purchased the suit property from John Mutinda Njagi and paid the entire purchase price on 27/1/2014. That upon purchase, the appellants took possession and constructed a permanent home with the respondent's full knowledge. 3. The appellants contend that the respondent, despite being aware of their possession since 2014, started laying claim on the suit property and threatened to demolish their house. 4. The respondent filed an amended defence and counterclaim dated 28/2/2020. He denied the alleged sale of the suit property, since he was not a party to it, and stated that he is the sole proprietor of the suit property. 5. The respondent asserts that while in Lodwar, the appellants, between July 2019 and 12/1/2020, trespassed on the suit property and constructed a permanent house without his knowledge. 6. According to the respondent, the appellants should be evicted from the suit property since they are trespassers. JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 2

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7. By way of counterclaim, the respondent stated that he has been the registered owner of the suit property, which measures approximately 0.289 Ha. The respondent contended that trespass occurred between July 2019 and 12/1/2020. 8. The respondent sought the following orders against the appellants: a)An eviction against the appellants, their agents, servants, and all those claiming under them from the suit property by demolishing their structures thereon or through the OCS Kitale Police Station. b)Costs of the counterclaim. 9. The appellants filed a reply to the defence and defence to the counterclaim dated 29/2/2020. They contended that they have been in possession since purchase and that the respondent was well aware. 10. Further, the appellants allege that the respondent secretly and fraudulently registered the suit property in his name, yet he was aware of their purchase. The respondent failed to inform the seller, one John Mutinda, or the appellants who were in possession. 11. The appellants denied that the respondent was away in Lowdar during the period between July 2019 and 12/1/2020. They insisted that they were lawfully in JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 3

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possession and were not trespassers and should not be evicted. 12. During trial, Mohammed Omar testified as PW1. He adopted his witness statement dated 5/10/2022 as his evidence-in-chief. He stated that the 2 nd appellant is his wife. 13. PW1 insisted that he entered into a sale agreement with one John Mutinda, and purchased the suit property measuring 1.83 ha at Kshs.600,000/=, which was empty at the time. That the land was Plot Number 235, Meru Farm. 14. According to PW1, he immediately took possession and began to develop the suit property by building a permanent house which he was yet to occupy. PW1 stated that he had been served with a demand letter indicating that the suit property belonged to Peter Micheri. He responded to the letter but was still prevented from accessing the suit property. 15. As a result, PW1 filed a case where he learnt that the defendant had acquired a title on 10/07/2018. He indicated that Peter and the defendant are siblings. PW1 insisted that he bought the suit property and did not forcefully occupy it. JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 4

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16. According to PW1, the defendant acquired the title to the suit property fraudulently since, at the time, PW1 had already constructed the house. 17. PW1 confirmed that he bought the suit land from a brother of the vendor. He prayed for an order that the defendant should transfer the suit property to him. 18. He produced the sale agreement, photographs, and the letters as P. Exhibit Nos. 1 - 3(b). 19. In cross-examination, PW1 confirmed that he did not have a title deed to the suit property, but had a sale agreement. He also stated that DMFI-1 indicated that the suit land was 0.289 ha, but he had bought 1.884 ha of Block 235 Meru Farm. 20. Further, PW1 stated that the title to the suit property measures 0.289 ha and the acreage does not tally. He admitted that he did not conduct an official search prior to the purchase, but he visited the suit property with the vendor. 21. He denied being aware of any succession matter pending and that he did not confirm whether the vendor was a legal administrator. PW1, however, insisted that the defendant was present throughout the construction period. JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 5

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22. Upon re-examination, PW1 confirmed that the suit property was initially Plot No. 235 and is now Parcel No. 541. 23. John Mutinda testified as PW2. He produced his witness statement dated 5/5/2022 as his evidence-inchief. PW2 confirmed that he sold the suit property to PW1 on 27/1/2014 upon payment of the entire purchase price and execution of a sale agreement. 24. PW2 confirmed that Plot No. 235 belonged to his mother and he had only sold part of it to PW1, who has a construction thereon. 25. He confirmed that his mother and brother, the defendant, were present during the execution of the sale agreement and witnessed it as he showed the land to PW1. He denied knowing whether the defendant had a title. 26. During cross-examination, PW2 confirmed that he sold part of the suit property. He also insisted that his mother's name was in the agreement, but he could not recall the name. 27. In re-examination, PW2 insisted that his mother and brother were present when he showed PW1 his portion of land. JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 6

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28. DW1 was Peter Micheri Njagi. He adopted his witness statement dated 26/2/2020 as his evidence-in-chief. He denied knowing PW1 before 2020, when he constructed a permanent house on his land. He insisted that he had a title deed to the suit property and produced the same as D. Exhibit No.1. 29. DW1 confirmed that his brother sold 1.884 ha of the suit property when it was still in their late father's name. According to DW1, his land measures ½ acre, and there was no house when he left for Lodwar in July 2019. 30. Upon his return in 2020, he found PW1 had constructed a house on his land and issued him a demand letter dated 14/1/2020, which he produced as D. Exhibit No. 2. 31. DW1 asserted that he had sought an eviction order in his counterclaim. He denied being present and agreeing to sell a portion of the suit land. DW1, however, confirmed that John Njagi has a portion of the suit property. 32. DW1 confirmed that their father passed on before 2014 and that they filed a succession cause in 2015, and the same concluded by 2016. Further, DW1 confirmed that he did not have a title deed in 2014 when his brother sold a portion of the suit land, since it was in the name of Dedan Njagi. JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 7

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33. DW1 denied that the construction of the house by PW1 began immediately after the alleged purchase, since his workers or neighbours would have informed him. 34. Further, DW1 confirmed that PW2 was involved in the succession, following which a survey was conducted, and PW2 was shown his portion. DW1 confirmed that his brother had sold 0.25 acres of the suit property. According to DW1, the value of 1 acre at Meru Farm was Kshs.2,500,000/=. He denied having intentions to sell the land at a higher value. 35. In re-examination, DW1 confirmed that their mother is the administrator of the estate and has a duty to transfer the same to the beneficiaries. 36. Jane Karimi Njagi testified as DW2. She relied on her statement dated 28/2/2020. She confirmed that she was the mother of DW1 and PW2. She insisted that four of her children lived in Lodwar while she resided in Meru Farm together with DW1. 37. She confirmed that DW2 sold the land in 2014, though she was not present at the time of sale. DW2 stated that some of his children had yet to acquire titles since they incurred costs in the succession cause. She, however, confirmed that she was ready to hand over the titles. JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 8

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38. According to DW2, the position sold by PW1 was not his, and the house thereon ought to be demolished. 39. During cross-examination, DW2 confirmed that the portion of the suit property was sold in 2014, when the land was still in her late husband's name. 40. DW2 confirmed that the portion sold to PW1 was ¼ acre compressed in the land belonging to DW1. She denied being present during the construction of the house, as she was away in Lodwar. 41. The trial court delivered its judgment on 7/5/2024. It dismissed the appellants' suit and allowed the respondent’s counterclaim. 42. Aggrieved by the decision, the appellants filed a memorandum of appeal dated 20/5/2024. The grounds of appeal are: a)The trial court erred in law and in fact by failing to appreciate that when the sale agreement dated 27/1/2014 was executed, the family of the deceased Dedan Njagi had not carried out succession proceedings and thus, John Njagi validly sold a portion to the appellants. b)The trial court erred in law and in fact when she failed to find that the respondent, having obtained title to the suit land after the sale to the appellants herein was executed on 27/1/2014, the respondent held the suit land in trust for the appellants. JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 9

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c) The trial court erred in law and in fact when she held that the sale agreement dated 27/1/2014 is null and void. d)The trial court erred in law and in fact when she failed to hold that the respondent obtained title to the suit property fraudulently. e)The trial court erred in law and in fact when she held that the appellants are trespassers on the suit property. f) The trial court erred in law and in fact when she issued eviction orders against the appellants. g)The trial court erred in law and in fact when she failed to appreciate the evidence of John Njagi. 43. The appellants thus prayed that the judgment be set aside and the appellants' claim be allowed with costs. 44. Parties were directed to canvass the appeal through written submissions. 45. The appellants filed written submissions dated 8/6/2026. On grounds 1, 3, 5, 6 and 7 of the appeal, the appellants submit that the respondent acquired title to the suit land and is out to benefit by selling the land at the current market price. 46. On the 2nd ground of appeal, the appellants submit that the respondent fraudulently acquired the title to the suit JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 10

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property while they were already in possession and occupation, to enrich himself unjustly. 47. The respondent urged the court to be guided by the holding in Nairobi Court of Appeal, Civil Appeal No. 415 of 2018, George Mwaura Kaboi -vs- Catherine Muthoni Kabui and Eldoret Court of Appeal, Civil Appeal No. 51 of 2015, Willy Kimutai Kitillt -vsMichael Kibet, on the propositions of constructive trust and proprietary estoppel. 48. The respondent relied on written submissions dated 4/6/2026. He submitted that the appeal lacks merit and should be dismissed with costs. It is the respondent's submission that he is the absolute owner of the suit property. 49. Further, the respondent submits that he was not privy to the sale agreement between the appellants and his brother. He submits that the sale was conducted secretly while he was away. 50. According to the respondent, during the pendency of the suit, he had offered to sell the suit property to the appellants, but they declined. 51. The respondent further submitted that the appellants failed to carry out due diligence before purchase, to know the acreage as well as the proprietor. The JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 11

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respondent submitted that the appellants should be given the vendor's portion and not his, since he did not sell to them. 52. The respondent relied on the provisions of Sections 24 and 26 of the Land Registration Act. 53. The court has evaluated the lower court record, the rival submissions and the relevant law. The following issues commend themselves for determination: i. Whether there was a valid and enforceable sale agreement between the appellants and John Njagi. ii. Whether the appellants are trespassers on the respondents' land. iii. Whether the appellants deserved the orders in the plaint. iv. Whether the counterclaim was valid. v. Whether the appeal is merited. vi. What is the order as to costs? 54. It is trite law that parties are bound by their pleadings, and issues for determination flow from the pleadings. See Raila Odinga & Others -vs- Independent Electoral and Boundaries Commission & Others [2017] eKLR. Pleadings lay out the facts and the issues for determination by the court, and give notice to the opposite party to prepare for the hearing. JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 12

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55. Facts and issues are supported by evidence available at the hearing by the parties. Any evidence at variance with the pleadings is to be disregarded. See Independent Electoral and Boundaries Commission -vs- Stephen Mutinda Mule & Others [2014] EKLR. Pleadings in law include a claim and counterclaim, but not the evidence. 56. A valid sale agreement must conform to the provisions of Section 3 (3) of the Law of Contract Act and Section 38 of the Land Act. Looking at D. Exhibit No.1, the seller is indicated as Mr. and Mrs. John Njagi, while the purchasers are Mr. and Mrs. Mohammed Omar. The suit property is described as Plot No. 235, measuring 0.289 ha. 57. By 27/1/2014, the suit property was subject to succession since the registered proprietor, Dedan Njagi, had already passed on. A party cannot pass what he does not have. The vendor had no valid proprietary rights transferable to the appellants. The principle nemo dat quod non habet means one cannot give what one does not have. The rationale is that whoever owns the legal title to property holds it until he or she decides to transfer it to someone else. JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 13

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58. A nullity is a nullity as held in Macfoy -vs- United Africa Co. Ltd 1961] 3 ALL ER 1169. There was therefore nothing to sell to the appellants. The sale between the appellants and DW1 was void ab initio, for it had infringed his rights given that the seller was not the actual owner of the land and therefore had no good title to pass. 59. Trespass refers to unjustified entry into the private land of another and committing acts of destruction therein. See Section 3(3) of the Trespass Act. To succeed in trespass, a party must prove immediate exclusive occupation or possession that has been disturbed by the respondent. In M'Ikiara M'Rinkanya and Another -vsGilbert Kabeere M'Mbijiwe NYR CA Civil Appeal No. 124 of 2003 [2007] eKLR, trespass was defined as a violation of the right to occupy and use land. 60. From the evidence on record, the appellants have not established a valid sale and purchase of the alleged portion of the suit property. The appellants allege that they took possession subject to a sale agreement. The sale agreement has, however, been found to be invalid. The appellants cannot therefore continue to occupy the suit land. JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 14

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61. Parties are bound by their pleadings. The appellants allege in their submissions that the respondent acquired title to the suit property through fraudulent means. Fraud must be pleaded and proved. The appellants did not plead and prove the same in their pleadings at the lower court. 62. The appellants also admitted that they did not carry out due diligence by conducting an official search. They can only blame themselves for being indolent, as equity aids the vigilant. 63. It flows from the analysis that the appellants failed to lead cogent evidence to substantiate their claim, to warrant any of the orders sought in the plaint. 64. On the failure to attach a decree, Section 2 of the Civil Procedure Act provides: “Provided that, for appeal, ‘decree’ includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree... may not have been drawn up...” This provision considers judgment as sufficient where the decree is absent, but the substance is clear. See Dragon Fire Protection Limited -vs- African Highlands Produce Co Ltd [2023] KEHC 1735 (KLR), where the court declined to strike out an appeal due to failure to attach a decree. JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 15

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65. Regarding the counterclaim, the respondent, as the registered owner of the suit property, denied knowing the appellants or being a party to the alleged sale. 66. Section 26 of the Land Registration Act provides that a certificate of title to land is to be taken as prima facie evidence of ownership, subject to impeachment of the same on account of fraud, illegality or issuance through a corrupt scheme. See Dr. Joseph Arap Ng'ok -vsJustice Moijo Ole Keiuwa & Others Civil Appeal No. 60 of 199. 67. The appellant did not plead or prove the allegation of fraud to impeach the respondents' title. 68. It follows, therefore, that I am unable to fault the findings of the trial court. There are no sufficient reasons to interfere with the judgment of the trial court. 69. The upshot is that the appeal is lacking in merit and is hereby dismissed with costs. 70. It is so ordered. Judgment dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 25th day of September, 2026. In the presence of: Court Assistant: Matui/Nancy JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 16

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Ms. Mufutu holding brief for Mr. Kiarie for the respondent Ms. Walker for Ms. Arunga for the appellants HON. G.M. GITONGA JUDGE, ELC KITALE JUDGMENT: KITALE ELC APPEAL NO. E009 OF 2024 – D.O.D. – 25/09/2026 17

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