Prof. Robert Obwocha Oboko v Benard Kiplagat Rotich & Micah Cheserem Rotich & Chief Land Registrar

2. The Plaintiff avers that he is the registered owner of land parcel No. L.R Number 13287/37 I.R 50164 NORTH OF NJORO TOWN, NAKURU measuring approximately 10.25 ha (25 acres). 3. The Plaintiff also avers that he purchased the subject property from one Kiprotich Kibowen who had acquired the subject property from the Agricultural Development Corporation in the month of June 1990. 4. The Plaintiff also avers he entered into a sale agreement dated 8th March 2006 for purchase of the subject property from Kiprotich Kibowen at a total consideration of KSHS 10,400,000/= which sum was paid between the year 2006 2008. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 2

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5. The Plaintiff also avers that transfer documents were executed on 14th December 2017. 6. The Plaintiff further avers that in the month of April 2019 the Defendants together with their family members unlawfully occupied a portion of the suit land measuring approximately 0.788 Hectares (2 acres) by erecting semi-permanent residential houses and cultivating it while claiming to be heirs of one ROTICH KIPNGOK. 7. It is his averments that the Defendants together with their family members unlawfully occupied a portion of the suit land measuring approximately 0.788 Hectares (2 acres) without any legal basis. 8. The Plaintiff also avers that he has been a lecturer at the main campus Nairobi University for the last 15 years and has decided to sub-divide and sell the suit property to raise --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 3

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school fees and undertake personal projects but his efforts have been thwarted by the Defendants' occupation coupled with their claims of ownership. 9. The Plaintiff further avers that on 19 th September, 2018 he engaged the services of a surveyor to sub-divide the portion measuring approximately 0.48 Hectares (1.2 Acres) of land occupied by the Defendants and his family and that the residual unoccupied portion is 9.32 Hectares (23 Acres). 10. He avers that at the time of erecting the residential houses by the Defendants he was a lecturer at the University of Nairobi and was fully occupied by work schedules and frequently travelled out of country. 11. The Plaintiff also avers that the transfer of the suit property into his names could not be effected immediately upon purchase due to the engaging work schedules and frequent travels out of the country. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 4

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12. The Plaintiff further avers that the Defendants have no legal right over the Plaintiff’s property and their continued unlawful occupation is occasioning substantial losses to the Plaintiff who has already contracted Point A Commercial Agencies for sub-division and sale of the subject parcel. 13. The Plaintiff also avers that the official searches for the subject land at the Lands Registry, Nairobi show the Plaintiff to be the duly registered owner of the land which parcel is free from any encumbrances. 14. The Plaintiff further avers that he is the party who pays for the land rates for the suit property at the Rongai Sub-County offices, Nakuru, thus the recognized owner. 15. The Plaintiff avers that on the 22nd August, 2019 the Defendants' Advocates issued the Plaintiff with a letter claiming that the suit parcel belonged to one Rotich --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 5

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Kipngok (deceased) and that the Defendants are beneficiaries of the said deceased's estate which includes the suit property. 16. The Plaintiff prays that judgment be entered against the Defendants jointly and severally for: a. A declaratory order that the Plaintiff is entitled to exclusive and unimpeded possession of the suit property L.R. Number 13287/37 I.R. 50164 North of Njoro Town, Nakuru, measuring approximately 10.12 Hectares (25 Acres) and that the Defendants are trespassers occupying the Plaintiff's parcel unlawfully. b. Eviction orders and/or mandatory injunction orders for vacant possession against the Defendants to move out of parcel L.R. Number 13287/37 I.R. 50164 North of Njoro Town, Nakuru belonging to the Plaintiff immediately within thirty (30) days from the court's order, failing which the Plaintiff be at liberty to seek the services of a licensed court bailiff with the assistance of the O.C.S. Ngata Police Station, Nakuru to evict the Defendants. c. A permanent injunction restraining the Defendants, --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 6

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their servants/agents or family members from interfering, remaining, using and/or in any way dealing with all that parcel of land known as L.R. Number 13287/37 I.R. 50164 North of Njoro Town, Nakuru in a manner that would prejudice the Plaintiff's registered interests. d. General damages for trespass to land and unlawful occupation. e. Costs and interest at court rates. 10 The Defendants filed their Statement of Defence and counterclaim dated 8th November, 2019, which statement of defence was amended on the 14 th day of June 2021, wherein they deny the averments in the Plaint and seeks that the suit be dismissed with costs. 11 The Defendants in their amended statement of defence state that at all material times to the suit their late father Rotich Kipngok was the legal owner of the land parcel known as L.R. No. 13287/37 having been allocated the --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 7

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same by the Agricultural Development Corporation back in 1988. 12 They also state that sometime in the year 1988 the Headmaster of Kabarak High School, one M.C.N. Langat wrote to the Development Managing Corporation director of requesting the to Agricultural consider the school's teaching staff for allocation of land at the Agricultural Development Corporation Ngata Farm. 13 They Defendants further state that among the suggested teaching staff to be considered for allocation of included Mr. Kiprotich A. T. Kibowen, Mr. Bekyibei Ndoigo and their late father, Rotich Kipngok. 14 They also state that in the year 1988 the government accepted the Headmaster's request and allocated land held by the Agricultural Development Corporation to teachers of --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 8

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Moi High School- Kabarak whereby each teacher was shown their respective parcel of land and was allowed possession of the same as they awaited communication on payments that needed to be made for purposes of facilitation of the registration and issuance of titles. 15 The Defendants further state that among the teachers allocated land was their late father who was allocated L.R. 13287/37, Mr. Kiprotich who was allocated L.R No 13287/144 and Mr. Bekyibeyi who was allocated L.R 13287/145 among. 16 The Defendants also state that at the point of registration the subject land was erroneously registered in the names of one Kiprotich Kibowen instead of in the name of the late Kipngok Rotich. 17 The Defendants further stated that both Mr. Kiprotich Kibowen and the Agricultural Development Corporation --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 9

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acknowledged the error and all affected parties embarked on rectifying the same.The Defendants add that their father unfortunately passed on in the year 2007 before the error could be rectified. 18 The Defendants also state that their late father took occupation of the suit property in the year 1988 and their family home was built in early 2000’s thus the suit property formed part of their fathers estate making them the legal and/or beneficial owners. 19 In the counterclaim the Defendants state that they are the legal and/or beneficial owners of land registered as L.R 13287/37 as it forms part of their late father's, Rotich Kipngok, estate having been allocated the same by the government. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 10

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20 They further state that sometime in the year 1988 the Headmaster of Kabarak High School, one Mr. C.N. Langat wrote to the Managing director of the Agricultural Development Corporation requesting them to consider three of the school's teaching staff for allocation of land at the Agricultural Development Corporation Ngata farm. 21 They also state that in the year 1988 the government accepted the Headmaster's request and allocated land held by the Agricultural Development Corporation to teachers of Moi High School Kabarak whereby each teacher was shown their respective parcel of land and was allowed to take possession of the same as they awaited communication on payments that needed to be made for purposes of facilitation of the registration and issuance of titles. 22 The Defendants also stated that among the teachers allocated land was their late father who was allocated L.R. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 11

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13287/37, Mr. Kiprotich Kibowen who was allocated L.R. No. 13287/144, Mr. Bekyibei Ndoigo who was allocated L.R. 13287/145, among others. 23 The Defendants further stated that their late father immediately took possession and fenced off the subject parcel of land using barbed wire and cider posts and subsequently started cultivating the suit property. 24 The Defendants further state that at the point of registration of the various parcels of land in the teachers’ names, the suit property which was allocated to their deceased father was erroneously registered in the name of one Kiprotich Kibowen instead of in the name of the late Rotich Kipngok (their deceased father). 25 The Defendants also stated that immediately their deceased father noted the error made, he immediately notified the Agricultural Development Corporation vide a --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 12

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letter dated the 7th of November, 1991 and requested them to rectify the same. Both Mr. Kiprotich Kibowen and the Agricultural Development Corporation acknowledged the error and all affected parties embarked on rectifying the same. 26 The Defendants further state that on the 12th November, 1991 the Agricultural Development Corporation wrote to both Kiprotich Kibowen and their late father asking them to avail themselves before the Lands Registrar to correct the anomaly and sign a consent to transfer the said parcel of land back to Kipngok Rotich and add that they did. 27 They also state that despite signing the requisite forms and consents in order to rectify the error, the transfer had still not been done as at 11th of October, 1995 and thus the deceased wrote to the ADC raising his concerns on the continued delay. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 13

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28 They also state that on the 17 th of October, 1995 the ADC acknowledged that the transfer documents had indeed been executed by both our late father and Mr. Kiprotich Kibowen and confirmed that the same had been submitted to the Land Control Board at the Nakuru Municipal Council. The ADC further informed our late father that the transfer documents will be submitted to Ardhi House for proper registration once the consent had been given from the Land Control Board. 29 They further state that the Agricultural Development Corporation instructed their late father to make payments in order to facilitate the transfer of the aforesaid parcel of land to his name which payments were done Agricultural Development Corporation and the acknowledged receipt of the said payments. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 14

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30 The Defendants also state that on 2nd April, 1996 the Agricultural Development Corporation wrote to one Mr. Joel Langat, the Estates manager at Agricultural Development Corporation in Nakuru, confirming that the application for consent to transfer the title of the parcel of land to Kipngok Rotich had been signed by both Kiprotich Kibowen and Kipngok Rotich. 31 They further state payments and that after making the requisite signing the requisite documents, the deceased made various follow ups on the transfer and registration of the parcel of land in his name but the same took long to materialize. 32 The Defendants also state that they permanently settled on the suit property in the 90s whereon they put up a stone wall hose, with iron sheet roofing, a pit latrine and a store; --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 15

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the Plaintiffs still continued to cultivate the potion of land and rare livestock. 33 They also stated that in the year 2003 their mother passed on and was subsequently buried on the suit property after obtaining requisite burial permit. 34 They further state that the deceased herein died on the 24th of September, 2007 when the process of registering the subject parcel of land in his name had not been concluded and was interred on the suit property on the 29th September, 2007. 35 The Defendants, also stated that after the demise of their father they made various attempts with the help of Mr. Kiprotich Kibowen, to have the suit parcel transferred to the beneficiaries of the estate of the deceased. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 16

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36 The Defendants state that they retained the firm of CHEPTUMO & CO. ADVOCATES to pursue the transfer of the suit property but the said firm of advocates was faced a great challenge in registering the transfer as the land registry file mischievously went missing and attempts to retrieve it proved futile. 37 The defendants stated that at this point Mr. Kiprotich Kibowen had become seriously ill and was frequently in and out of the hospital. 38 The Defendants also stated that since the allocation of the suit pparcel to their late father, they have been in occupation and continue to inhabit to date. 39 The Defendant stated that in the year 2017 KETRACO Way Leave passed through the suit property and through their homestead and that they were forced to demolish the --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 17

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structures affected by the aforementioned Way Leave but were compensated by KETRACO. 40 They also state that once they were compensated, they rebuilt a new homestead within the subject parcel of land but outside the Way Leave area within three months of receipt of the funds and that they inhabit the said portion to date. 41 The Defendants further state that it has come to their attention that the Plaintiff, illegally and/or fraudulently obtained documents transferring title of the suit property, without their knowledge or the knowledge of Mr. Richard Kibowen (Deceased). 42 The Defendants pray for orders of cancellation of title and a permanent injunction restraining the Plaintiff from encroaching onto, occupying, trespassing onto, intruding --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 18

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on, destructing, transferring, alienating and/or subdividing or in any way dealing with the suit parcel and an order directing the Chief Land registrar to facilitate and conclude the process of transfer of the suit land L.R. No. 13287/37 from the name of Kiprotich Kibowen to the name the deceased Mr. Rotich Kipngok. THE PLAINTIFF’S EVIDENCE. 43 Professor Robert Obwocha Oboko, hereinafter referred to as PW1 testified in support of the Plaintiff’s case. 44 He introduced himself by stating that he lives in Nairobi, Westlands area and that he works at the University of Nairobi as a Professor of Computer Science. 45 He further stated that he filed a witness statement dated 7 th October 2019 and a Further Witness Statement dated 7 th June --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 19

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2021 and prayed that the Court adopts them as part of his evidence-in-chief, which prayer the court acceded to. 46 PWI referred to his list of documents dated 7 th October 2019 and supplementary list of documents dated 7 th June 2021 and the documents annexed therein were marked and produced as follows; a. A copy of Certificate of title dated 6 th June, 2018 for the suit land registered in the names of the Plaintiff as Exhibit P1. b. A copy of the Sale agreement dated 8th March, 2006 selling the suit parcel to the Plaintiff as Exhibit P2. c. A copy of Application for Consent of the Land Board dated 11th July, 2006 as Exhibit P4. d. A copy of Letter by Plaintiff addressed to Mugambi & Kariuki Advocates dated 27th October, 2016 as Exhibit P5. e. Transfer documents to the Plaintiff dated 14th December, 2017 and --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 20

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registered on 6th June, 2018 as Exhibit P6. f. Copies of receipts for payment of purchase price and legal fees as paid by Plaintiff; receipts are dated between 2006–2008 totaling to Kshs. 10,569,000/= (inclusive of Kshs. 169,000/= legal fees) as Exhibit P7. g. Acknowledgment note by Kiprotich Kibowen for payment of Kshs. 300,000/= and confirming final payment of Kshs. 10,400,000/= (inclusive of Kshs. 45,000/= legal charges as Exhibit P9. h. A copy of Agricultural Development Corporation transfer forms to previous owner Kiprotich Kibowen as Exhibit P11. i. A copy of Application for Consent of Land Board dated 29th January, 1990 by Agricultural Development Corporation to Kiprotich Kibowen as Exhibit P12. j. Consent of Land Control Board dated 20th March 1990 to Kiprotich Kibowen as Exhibit P13. k. A copy of Letter dated 9th February 1990 forwarding Application for consent of land board by A.D.C. as Exhibit P14. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 21

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l. A Copy of Undertaking by Kiprotich Kibowen to pay purchase price to Agricultural Development Corporation for suit parcel dated 12th November 1991 as Exhibit P15. m. Photos exhibiting occupation and cultivation by Defendants as Exhibit P16. n. Report by Landline Surveyors and Sketch Plan as Exhibit P17. o. Copies of Plaintiff's employment contracts dated between 2004 to subsisting contract of 2017 as Exhibit P18. p. Extracts of Plaintiff's passport exhibiting entry visas to various countries between 2009–2018 as Exhibit P 19. q. Contract dated 6th August, 2019 between Plaintiff and Point A Commercial Agencies for sub-division and sale of the suit parcel as Exhibit P20. r. Online search dated 22nd August, 2019 for the suit parcel evidencing Plaintiff as Exhibit P21. s. Manual search for suit parcel evidencing plaintiff as proprietor as Exhibit P22. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 22

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t. Demand for land rates issued in the names of Plaintiff by Rongai Subcounty offices as Exhibit P23. u. A Copy of Letter to Plaintiff by Defendants' advocates – Sheth & Waithigo as Exhibit P24. v. A copy of Demand letter dated 2nd September 2019 issued to the Defendants by Kanyi Ngure Advocates as Exhibit P25. w. A copy of Reply to demand addressed to Kanyi Ngure Advocates by Dated 12th September 2019 Sheth & Waithigo Advocates as Exhibit P26. 47 It was PW1’s his evidence that he sued the Defendants for trespassing onto his land L.R Number 13287/37 I.R 50164 NORTH OF NJORO TOWN, NAKURU and added that he would like orders for their eviction. 48 It was also his evidence that he is the registered proprietor of Land Parcel No. L.R. NO. 13287/37 North of Njoro town, Nakuru, measuring approximately twenty-five (25) acres. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 23

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49 It was his testimony that he acquired the suit property by way of purchase from one Kiprotich Kibowen pursuant to a Sale Agreement executed between March 2006 and April, 2008 and added that he completed payment of the purchase price. 50 He testified that the agreed purchase price was Kenya Shillings Ten Million Four Hundred Thousand (Kshs. 10,400,000/= and the current value of land is a sum of KSHS 125,000,000/=. 51 He further testified that the property Land Parcel No. L.R. NO. 13287/37 North of Njoro town, Nakuru is 25 acres and the Defendants have occupied 2 acres of said property as per the surveyors report. 52 It was also his evidence that before purchasing the suit property in March, 2006, he visited the land and observed semi-permanent structures erected thereon. He stated that --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 24

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the vendor informed him that the said structures were occupied by his workers. 53 He testified that he discovered that the Defendants were trespassing in the month of April 2019 and wrote a letter in the month of August 2019 and September, 2019 asking them to vacate. 54 He further testified that the defendants failed to vacate claiming the suit property belongs to their father Rotich Kipngok. 55 He also testified he did not buy the suit property from the Defendants’ father but he purchased the same from Kiprotich Kibowen. 56 He ended his testimony by claiming general damages of Kshs. 600,000/= and explained that this is the amount is --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 25

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calculated at Kshs. 100,000/= per year from the year 2019 when the Defendants were in occupation. 57 In his ffurther witness statement, the Plaintiff states that the deceased Rotich Kipngok has never had any registered or beneficial interest in the Suit property. 58 The Plaintiff further states that it is clear that the Agricultural Development Corporation never made any allocation or transfer of the Suit property to Rotich Kipngok as misrepresented by the Defendants and adds that the defendants have not exhibited any written document or acknowledgement from the previous owner of the Suit property which documents would be key in confirming that there was mistaken registration of the suit property into the names of the State previous owner. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 26

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59 The Plaintiff also states that he is an innocent purchaser of the suit property for valuable consideration from the previous registered owner i.e. Kiprotich Kibowen and adds that at the time of purchase and transfer the issue of mistaken registration was not raised and that the suit property therefore changed ownership without notice of fraud or mistake. 60 In his further written statement the Plaintiff goes on to state that he became aware of the Defendants’ interest in the Suit Parcel when he noticed construction of new houses in April 2018 and also upon being issued with a demand letter by the Defendants’ Advocate on 22nd of August 2019 and adds that it is in the said demand letter that he learnt of the Defendants’ claim of beneficiary interest over the Suit Parcel. 61 The Plaintiff also states that if there was any occupation of the Suit property by the defendant prior to the month of April --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 27

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2019 then their occupation of the land was as licensees of the previous owner i.e. Kiprotich Kibowen. He adds that the Defendants could not claim any ownership interest over the suit land or claim interest as heirs of their deceased’s father’s estate over the suit land while fully aware that the bona fide or legitimate registered owner was Kiprotich Kibowen who never relinquished his registered interest on the Suit property. 62 The Plaintiff further states that there is no contention that the defendants occupy a portion of the Suit property measuring approximately 2 acres as indicated in the Surveyor’s report dated 19th of September 2019. 63 The Plaintiff goes on to state that the Defendants irregularly collected way leave money from KETRACO as they have no registered interest over the Suit property. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 28

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64 The Plaintiff states that the defendant are relying on fraudulent transfer documents allegedly issued by the previous owner i.e. Kiprotich Kibowen and also states that the said the documents are undated and were not attested to or properly witnessed as would be required of legal instruments for transfer of land. 65 It is the Plaintiff’s further statement that the consent of the Land Control Board was duly obtained to transfer the suit land in his favour and all documents of transfer were executed by the previous owner Kiprotich Kibowen. 66 The Plaintiff states that the allegations that the transaction was tainted with fraud is unfounded since he could not have been in possession of documents highlighting history and sale of the Corporation suit to land Kiprotich from Agricultural Kibowen Development unless they say documents were handed to him by the previous owner --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 29

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together with the details of his National Identity Card and PIN certificate. 67 The Plaintiff ends his further witness statement by stating that the Defendants are trespasses on the Suit parcel of land and they continue to occupy the Parcel of land as licensees of the previous owner. 68 Upon cross-examination by counsel for the Defendants, PW1 confirmed that he purchased land known as Land Parcel No. L.R. NO. 13287/37 North of Njoro town, Nakuru by way of an agreement dated March 2026. 69 He stated that he was looking for land and a broker referred him to Kiprotich Kibowen in early 2006. 70 He further confirmed that the said broker showed him the land which had beckons and homesteads. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 30

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71 PW1 further stated that Mr. Kibowen’s home was not on the land and that Mr. Kibowen informed him that the said homes were for his workers. 72 He confirmed that he did not talk to the people in occupation of the suit parcel or to Mr. Kibowen’s wife and explained that the land is agricultural. 73 PW1 confirmed that he met Mr. Kiprotich Kibowen when he (Mr. Kibowen) was working elsewhere and not in Kabarak. 74 He confirmed that the sale agreement was drawn by the firm of Mugambi & Kariuki Advocates in Nairobi and that the purchase price for the suit parcel was Kshs.10,400,000/=. 75 PW1 admitted that in the agreement, time was of the essence and therefore the completion date was 120 days. He --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 31

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added that the completion date would have been on or about the month of July/August 2006 and went on to explain that on the completion date he was not handed over possession due to the fact that Mr. Kiprotich Kibowen’s workers were in occupation. 76 He further admitted that he did not write any letter to demand vacant possession until the year 2019. 77 PW1 confirmed that he learnt of the death of the vendor, Kiprotich Kibowen, in the year 2018 and added that by the time he became aware of the vendor's death, the transfer had already been completed in his favour. 78 When he was referred to the transfer documents produced as Exhibit P6 at page 6 and the sale agreement produced as Exhibit P2, he stated that he paid stamp duty amounting to --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 32

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Kshs. 2,000,000 and he explained that the suit parcel was agricultural land. 79 PW1 went on to explain that stamp duty payable is calculated as at two per cent of the purchase price i.e. 2% of Kshs. 10,400,000/= which is Kshs. 208,000. 80 PW1 then changed his mind and stated instead that stamp duty is calculated at 2% of the value of the property at the time of transfer and admitted that he did not have a valuation report to verify the value of the suit property. 81 PW1 went on to state that the transfer was typed at the Advocate’s office and admitted that this transfer states that the value of the suit parcel is Kshs. 100,000,000 and he confirmed that there is no agreement for the sale of the suit parcel for Kshs. 100,000,000. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 33

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82 PW1 confirmed that transfer was signed in Nairobi on 14 th December, 2017 and also confirmed that him, Kiprototich Kibowen and his lawyer were also present. He added that Kiprotich Kibowen had a male helper whose name he could not remember. 83 PW1 stated that in 2018 he learnt of Kiprotich Kibowen had died. 84 PW1 explained that his advocate was one S.V Kivuva and explained that this Advocate’s office was at Kimathi house next to Nation Centre and he explained that Kivuva is a female Advocate. He, however, denied knowing the said Advocate was struck off from the roll of advocates in the year 2006 and stated that she was present during the transaction. 85 PW1 explained that the transaction was done by Mugambi Advocate but on account of Mr. Mugambi’s bereavement; --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 34

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having lost his father, he asked Advocate Kivuva to assist as he was away burying his father on 15th December, 2017. 86 PW1 was shown a copy of an obituary for Mr. Mugambi’s father and he confirmed that Mr. Mugambi’s father died on 8th January, 2018 and stated that his testimony was that Mr. Mugambi was out of office on 14th and 15th December 2017 on account of his bereavement and added that that is the information he was given by Mr. Mugambi. 87 PW1 confirmed that he paid some money into the account of Mugambi Advocate and that it reflected in their bank statement. 88 PW1 confirmed that he paid money, in cash to Mr. Mugambi as follows; a. Kshs. 3,000,000/= paid on 8th March 2006 under Receipt No. 7261. b. Kshs. 69,000/= under Receipt No. 7266 paid on 8th March 2006 c. Kshs. 2,600,000/= paid on 7th April 2006 under Receipt No. 7262, --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 35

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d. Kshs. 2,600,000/= paid on 18th May 2006 under Receipt No. 7263. (In words it Two million five hundred Thousand only) 89 When asked to look at the sequence of the receipts, PW1 admitted that the said receipts follow each other haphazardly and explained that he had known his advocate for years and was not sure if the advocate was only receiving payments from him between 28th Marc, 2006 and 21th April, 2008 and further explained that when dealing with his advocate he would not simultaneously pay and pick up receipts. 90 PW1 confirmed that receipt No.7266 was issued on 8 th March, 2006, denied that the receipts are fabricated and confirmed that he did not have Electronic Tax Register (ETR) receipts. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 36

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91 PW1 confirmed that receipts 7261 -7266 are sequential and confirmed that logically the payment made earliest would have been the earliest number. 92 PW1 stated that the receipts are a confirmation that money was paid to the advocate for transfer to the seller. 93 When referred to 7265 he confirmed that it was for 2008 and shows that Kiprotich Kibowen took in cash. 94 When referred to MFIP8 ( bank statement), PW1 stated that the bank statement is genuine and explained that the account is at Harambee Avenue Nairobi and the statement is certified by the manager at Kenyatta Avenue and added that it is his advocate who gave him the statement of account and denied that the said bank statement is fabricated. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 37

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95 PW1 admitted that there were no witnesses from the family of Kiprotich Kibowen to testify since he was facing hostility from them and added that despite this, Kiprotich Kibowen told him that he was owner of the suit parcel and added that he did not know where Kiprotich Kibowen’s home is. 96 PW1 confirmed that he had seen documents from the Agricultural corporation from 20 years ago. 97 He further confirmed that he duly applied for the consent of the Nakuru Land Control Board and appeared before the Board in July, 2006 together with the vendor alone and added that the vendor was asked why he was alone. 98 When referred to MFI P3 paragraph 6(b) he confirmed that it is indicated as ‘none’ and confirmed that although it is indicated as such, there were structures on 2 acres of the suit parcel. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 38

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99 PW1 stated that as at the time of filing the suit in 2019 there was a permanent house, water tank and farm structures and when asked how it was possible that strangers occupied the suit parcel and put up permanent structures he stated that he lives in Nairobi and travels a lot and believed that the property was secure. 100 PW1 stated that he engaged a land agent to sub-divide the suit parcel but did not visit it. 101 PW1 also confirmed that he had seen documents signed by Kiprotich Kibowen in which he agreed to transfer the suit parcel of land to the owner but added that the land belong to Kiprotich Kibowen. 102 He was then referred to photographs attached to Exhibit P6, PW1 stated that the said photographs were taken at the --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 39

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time of drafting the sale agreement in the year 2006 and that the appearance of the said Kiprotich Kibowen was different during execution of transfer because he was unwell. 103 Upon re-examination, PW1 reiterated that the sale agreement stipulated that he should take possession. 104 He further reiterated that it was Mr. Kiprotich Kibowen’s workers who were residing in the suit property and there was therefore no need to write to Mr. Kiprotich Kibowen to vacate. 105 He stated that in the year 2006, Mr. Kiprotich Kibowen showed him the workers and semi-permanent house. 106 He further stated that he has never occupied the land and wanted to occupy in the year 2019 when he discovered permanent structures. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 40

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107 He reiterated that he knew when Mr. Kiprotich died and added that he allowed the workers to reside on the land. 108 He stated that the transfer document produces as Exhibit P6 were prepared in December 2017 and confirmed that in the said transfer form, the land was valued at Kshs. 100,000,000 and that he paid stamp duty of Kshs. 2,000,000. 109 PW1 went on to explain that stamp duty is assessed at the time of transfer and that it is his advocate who was dealing with the conveyance and added that it is the government that receives stamp duty. 110 He further confirmed that the photo attached to Exhibit 6 was given by Mr. Kiprotich Kibowen and also confirmed that the next photo is his. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 41

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111 He also stated that cash paid was through Mr. Mugambi and he does not understand why the receipts have varying numbers and/or do not follow a sequence. 112 The next witness to testify in support of the Plaintiff’s case is one Lucas Taracisio, herein after referred to as PW2. He introduced himself as an advocate of the High Court of Kenya practicing under TW Murage & Co Advocates. 113 He stated that he signed a witness statement dated 7 th June 2021 and prayed that the court adopts the said statement as part of his evidence-in-chief which prayer the court acceded to. 114 He testified that his law firm came into being in the year 2018 and explained that he previously worked at the firm of Mugambi & Kariuki Advocates and that he worked there until the year 2018. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 42

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115 He further testified that on the 8th of March 2006 the firm of Mugambi and Kariuki Advocates drafted a sale agreement in respect of purchase of land. 116 PW2 was referred to Exhibit P2, being the Sale Agreement between Kiprotich A.T. Kibowen as the vendor and Professor Robert Obwocha Oboko as the purchaser and he testified that the agreed purchase price was Kshs. 10,400,000/= payable within one hundred and twenty (120) days. 117 It was his evidence that the vendor was paid the full amount and added that the vend or was paid by cheque as itemised 1 to 7 in his witness statement. 118 He was also his evidence that the cheques were issued by Mugambi & Kariuki Advocates and that there was a bank statement to show that money was paid out to the vendor and --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 43

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added that the law firm of Mugambi & Kariuki initiated the conveyance process. 119 It was his further evidence that the vendor surrendered his passport photos and pin certificate and confirmed that the transaction was by a willing buyer & seller. 120 In his witness statement, PW2 states that upon the transfer documents being prepared, signed and duly witnessed by Advocate Sarah Kivuva, the parties deposited the transfer documents at their offices which documents were then forwarded to the Land Registry in Nairobi. He adds that the purchase paid stamp duty of Kshs. 2,000,000 to the government because the land was valued at one hundred million. 121 PW2 states that a receipt dates 29th December, 2017 for stamp duty was issued to them and a certificate of title was --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 44

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extracted and registered in the name of the plaintiff on 6 th June, 2018. 122 He ends his written statement by stating that the transaction was properly executed by their law firm and that all the parties to the said transaction were satisfied and there have been no complaints from either party. 123 Upon cross-examination by Counsel for the Defendants, PW2 stated that he was admitted to the bar on the 5 th June 1996 and gave his admission number as P105/3202/96. He added that he is practicing under the name T.W Murage. 124 PW2 showed his business card to counsel and the court and added that his office is at Uniafric house. 125 It was PW2’s evidence that until October 2018 he was an associate at the firm of Mugambi & Kariuki and admitted --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 45

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that he had no evidence of the fact of his employment at the said law firm. 126 He stated that although he was an associate at the firm of Mugambi & Kariuki Advocates, the transaction was personally handled by Mr. Mugambi and gave the reference of the file in respect of the transaction as MSG/67/6. 127 PW2 stated that Mr. Mugambi died on 20 th May 2018 and added that the file was passed to one Chritopher Kimanothe advocate who was appointed by the Law Society of Kenya to administer the law firm and confirmed that the said Chritopher Kimano would be better placed to verify the transaction. 128 PW2 confirmed that he did not handle the conveyance transaction, that he was not doing any accounting work and that he was not a signatory to the firm accounts but --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 46

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explained that he got the information on the transaction form a file. 129 PW2 also confirmed that he did not witness the agreement and did not also draft it 130 It was his further evidence that duty of Kshs. 2,000,000 was paid and that the suit parcel was valued at Kshs.100,000,000 in the year 2017 but that it was bought at Kshs. 10,000,000. 131 PW2 stated that he did not have any valuation report and transfer for the subject property and his statement was based on what he was given. 132 He further stated that the Consent of the Land Control Board was obtained by the Vendor and Purchaser and confirmed --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 47

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the contents of his written statement that the transfer of the suit parcel was effected in the year 2017. 133 PW2 explained that the transfer could not be signed for 9-11 years for the reason that the vendor was ailing and the purchaser was engaged in a lot of travel. 134 PW2 was taken to task to explain why the transfer form remained unsigned for so long and confirmed that they did not write to the vendor to inform him that it was time to conclude the transaction and explained that a letter was written in 2016 and that on 14th December 2017 the transfer was signed. 135 PW2 confirmed that he was not present when the transfer was signed but was informed that an appointment had been booked to enable the signing of the transfer forms. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 48

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136 PW2 confirmed that on 14th December 2017 they were not in office and explained that they were in Nyahururu preparing for Mr. Mugambi’s father- Githinji Mwai Mwangi funeral who was to be buried at Olkalao. PW2 confirmed that he had no evidence to confirm the fact that they were away and were preparing for a funeral. 137 The contents of the obituary for Mr. Mugambi’s father were red out to PW2 and confirmed that they were familiar. PW2 stated that on 15th December he did not attend the funeral service but attended the burial ceremony and added that he was not familiar with the fact of burial in January 2018. 138 PW2 confirmed that the photograph appearing on the obituary was that of Mr. Mugambi’s father and added that there must be some confusion as related to the dates of closure of office, date of the burial and date of death. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 49

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139 It was put to PW2 that at the time of executing the transfer advocate Kivuva was incapable of doing so and he responded by stating that he was not in practice in the year 2017 and added that advocate Kivuva’s office was at Kimathi House. 140 PW2 stated that Mugambi had three bank accounts held at Bank of Baroda, Bank of India and Stanbic bank and confirmed that he was not a signatory to the bank accounts. 141 He explained that the Stanbic account was at Kenyatta Avenue in Nairobi and explained that it’s a building opposite nation center and has red bricks. 142 When referred to MFIP8, he confirmed that that the account was held at the Harambe Avenue Branch in Nairobi. 143 Upon re- examination, PW2 he reiterated that Mugambi passed away on 20th May, 2018. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 50

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144 He stated that Christopher Kimano took over the files from June,2018 but he was not present at the time of the transaction and would him but would consult him from time to time. 145 PW2 also stated that at the time of Mr. Mugambi’s demise, the file as not active and no payments were made thereafter but reiterated that he was present when the vendor and purchaser visited the office. 146 When referred to Exhibit P6 (Transfer form), PW2 stated that the document is stamped and franked and has a valuation assessment of Kshs. 100,000,000 and went on to state that a copy can be obtained from the land registry. Counsel for the Plaintiff undertook to avail a clear copy of Exhibit P6 before close of trial. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 51

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147 PW2 went on to clarify that when Exhibit P6 (Transfer form) was being executed, they were out of office attending a burial at Olkalau in Nyandarua. 148 He reiterated that transfer document was signed and stamped by Advocate S.M Kivuva and also reiterated that the said Advocate was in practice when she witnessed the transfer. 149 He further reiterated that the bank statements, MF1P8, was certified at Kenyatta Avenue but emanates from an account at Harambee Avenue and added that any branch can give a statement. 150 On the question of fact of death and date of death of Mr. Mugambi’s father, PW2 stated that there was no evidence that he died in January 2018. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 52

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151 He also reiterated that the upon demise of Mugambi, Christopher Kimano, who is the Law Society of Kenya Administrator took over the files. 152 Peter Ouma Adipo ,herein after referred to as PW3, was the third witness to testify in support of the Plaintiff’s case. 153 He introduced himself as a Land Administrator at the Ministry of Lands and Physical Planning stationed in Nakuru and added that he has held the said position since the year 2019. he also stated that serves as the Secretary to the Nakuru Land Control Board. 154 He explained that he was in court in answer to summons and was supposed to verify the consent of Land Control Board dated 20th July 2006. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 53

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155 It was his testimony that after checking through his records, he found the said consent (produced as Exhibit P4). 156 It was his evidence that the said consent was in respect of land known as Land Parcel No. L.R. NO. 13287/37 North of Njoro town, Nakuru. 157 It was his further evidence that he wrote a dated 16 th February 2022 to court which letter forwarded the consent. he added that the said consent was certified by the Director of Land Administration who also stamped the copy. 158 He went on to stated that in his capacity as the Land administration officer, he has also taken upon himself to attach a copy of a Gazette notice dated 8 th November, 2019 which states that all land administration officers shall act as Land Control Board Secretaries. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 54

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159 PW3 produced the letter from the secretary Land control board as Exhibit P3a. 160 He produced a certified copy of the consent dated 20 th July, 2006 from the Nakuru Land Control Board as Exhibit P3b. 161 The Gazette notice dated 8th November, 2019 was marked and produced as Exhibit 3c. 162 Upon cross-examination by counsel for the Defendant, PW3 confirmed the he is a Land Administration officer in Nakuru since the month of October, 2019. 163 He confirmed that the documents he produced in evidence are from records in Nairobi and are in custody of someone in Nairobi. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 55

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164 He further confirmed that the Land control board sat 20 th July, 2006 as indicated on the said Consent. 165 PW3 also confirmed that the Land Control Board was constituted but could not confirm the names of the persons who sat on the board and did not also have the minutes for 20th July, 2006. 166 He confirmed that he could not confirm the persons who attended the meeting either as board members or as seller and purchaser. 167 PW3 stated that a vendor and purchaser can appear before the board either in person or through their representatives and added that when they appear through their representatives, the board might require them to appear in person depending on the nature of transaction so to allow the board to control the transactions. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 56

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168 He went on to explain that the Land Control board controls transactions so as to ensure that land remain viable for agriculture and also so as to safeguard interests of other family members. 169 PW3 stated that he did not know the name of secretary of board in 2006 and added that he may not be able to get the records. 170 When referred to Exhibit P4, the application for consent of the Land Control board, PW3 and stated that the registered holder is shown as Kiprotich Kibowen whose address is 7044-00100 Nairobi. 171 When he was further referred to paragraph 6b of Exhibit P4 . PW3 confirmed that the approximate value of improvement is indicated as ‘none’ and that the application is dated as 11th July 2006 . --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 57

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172 He confirmed the board sat on 20 th July 2006 and consent was issued on the same day and added that the consent was given to Kiprotich Kibowen of Nairobi address. 173 PW3 explained that the number LCR NO could be a unique number of file number in which the matter was dealt and that he did not have the file and had never seen it. 174 Upon re-examination PW3 was referred to Application for Consent of the Land Control Board which was produced as (Exhibit P4) and he explained that the same was presented by the purchaser and owner and added that they both signed. 175 He stated that the minutes could not be found because sometimes in the gazette notice appointing board members, the secretary position is often held by different people and explained that sometimes it is held by the Land Registrar, --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 58

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District Commissioner and that it was at the time of his testimony being held by the Land Administration Officer. 176 He further explained that that the minutes of the Land Control Board contain names of members of the Land Control Board present, cases heard and consent approved and not approved. he went on to explain that once approval is given consent is very often issued on the spot. 177 One Hannah Ngahu, herein after referred to as PW4 also testified in support of the Plaintiff’s case. 178 She introduced herself as working for the Kenya Revenue Authority (KRA) situated at Times Towers, Nairobi. She explained that she was working at the Finance Division & Corporate Support Services Department and that her job description was Assistant Manager, coordinating verification of payments made by taxpayers. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 59

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179 PW4 went on to state that Kenya Revenue Authority, received court summons to produce documents relating to ELC Miscellaneous Case No. 233 of 2021, in which the Applicant is Prof. Robert Obwocha Oboko, the 1st respondent is KRA, and the 2nd respondent is the Hon. Attorney General. 180 It was her testimony that KRA was required to verify payment of Kshs 2,000,000 for stamp duty which amount was said to have been paid by Robert Obwocha Oboko, as set out in a receipt dated 29th December 2017, for stamp duty in respect of LR No. 13287/37, Njoro Town, Nakuru. She went on to explain that the payment was recorded as having been made to a KRA account held at KCB, Kenyatta Avenue Branch. 181 It was her further testimony that upon verification against KRA's KCB statement account, she was unable to trace the --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 60

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payment and added that KRA then wrote to Kenya Commercial Bank to confirm whether the payment had been received, and that Kenya Commercial Bank responded vide a letter by a letter dated 10th December 2021 confirming that it had not received the payment and that the receipt was not genuine. 182 PW4 stated that the letter from KCB was attached to KRA's replying affidavit sworn on 14th December, 2021, which bears her signature and name. 183 She further testified that in March, 2022 Kenya Revenue Authority received a deposit slip, dated 21 st February, 2022, bearing a Kenya Commercial Bank University Way Branch, Nairobi, stamp, and that the said receipt was for Kshs 2,000,000, in the account of Robert Obwocha Oboko, for stamp duty on LR No. 13287/37. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 61

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184 PW4 explained that that when a person pays money to Kenya Revenue Authority, a payment slip is generated; and that the relevant payment slip is dated 14th February, 2022. 185 It was her testimony that the deposit slip of 21 st February, 2022 and the payment slip of 14 th February, 2022 were verified and confirmed as having been received in Kenya Revenue Authority's account on 21st February, 2022, in the account of Robert Obwocha Oboko. She went on to state that an email dated 21st February, 2022 confirmed that the payment had been credited to Prof. Obwocha's ledger and added that these were genuine. 186 PW4 produced , the Application in ELC Miscellaneous Case No. 233 of 2021 as Exhibit 10(a), the replying affidavit by KRA officer Hannah Ngahu, marked Exhibit 10(b); a letter dated 20th December 2021 by KCB to KRA as Exhibit 10(c), the approved payment slip dated 14 th February 2022 by KRA for payment of Kshs 2,000,000 as Exhibit 10(d), the KCB --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 62

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deposit slip for stamp duty Kshs. 2,000,000 dated 22 nd February, 2022 for Exhibit 10(e) and an email dated 21st February, 2022 from KRA acknowledging receipt of stamp duty as Exhibit 10(f). 187 PW4 confirmed that she has appeared in court once before, and that she swore the replying affidavit in response to an application by Mr. Obwocha. 188 When referred to Exhibit 10(b), PW4 confirmed it to be a replying affidavit sworn by her and explained that that KRA had been asked to verify the documents which are annexed to her replying affidavit and further explained that the verification is important for purposes of investigation, audit, updating of customers' ledgers, and court cases. 189 She confirmed that the authenticity of the stamp duty payment was in doubt and explained that on 29th December --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 63

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2017 Mr. Obwocha alleged to have paid stamp duty of Kshs 2,000,000 to KCB and that upon verification, KRA found that it had not received the payment, and that KRA then contacted KCB, who stated that they had not received the payment and that the receipt was fake. 190 PW4 confirmed that the payment slip is part of Exhibit 10(a) and is dated 29th December, 2017. She went on to state that there is a KRA payment slip, which the taxpayer generates in order to make payment at the bank and that after payment into the KCB account a person receives a deposit slip. She explained that the deposit slip of 29 th December 2017 was confirmed not to be genuine. 191 She also confirmed that in 2022 Prof. Obwocha made a further payment of Kshs 2,000,000 and added that the payment slip is quoted on the bank slip and states that the payment is in respect of title LR No. 13287. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 64

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192 PW4 reiterated that her testimony in court is to confirm that the payment of 2017 was not genuine, but that the payment of 2022 is genuine. 193 Upon re-examination, PW4 clarified that Kenya Revenue Authority collects on behalf of the Ministry of Lands, and that her role is to verify whether payment has been received. 194 The final witness to testify in support of the Plaintiff’s case is one Leonard Surmat, hereinafter referred to as PW5. 195 He introduced himself as a manager at Stanbic Bank, Nakuru Branch and stated that Stanbic Bank was issued with summons to attend court in answer to a Court order issued in Nakuru CM Miscellaneous Application No. E001 of 2022. 196 It was his evidence that the Applicant in that matter is Prof. Robert Obwocha, and that the Respondent is Stanbic Bank and added that the Court order compelled the Bank to --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 65

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produce a bank statement for Mugambi & Kariuki Co. Advocates, Account No. 0100002920799, held at Stanbic Bank, Harambee Avenue, Nairobi, for the period 1st March, 2006 to 30th September, 2006. He explained that the Court order is dated 20th January 2022. 197 PW5 went on to state that the Bank complied with the said Court order by writing a letter dated 17 th February, 2022, in which it stated that it could not provide the statement, for the reason that the records requested fell outside the retention period under Section 46 of the Proceeds of Crime and Anti-Money Laundering Act, as well as the CBK guidelines, which require records to be kept for seven years from the date of the business transaction. 198 It was his further testimony that the records requested could not be provided since they were for a period of more than 15 years ago, and thus fell outside the statutory period. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 66

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199 He also testified that the letter was written by the Bank's Legal & Governance Department. He produced the court order, marked as Exhibit P8(a) and the Bank's letter as Exhibit P8(b). 200 subsequent to the testimony of the Plaintiff and all the witnesses as captured in the foregoing paragraphs, the Plaintiff filed an application dated 30th May 2022 seeking leave to recall the plaintiff. 201 A ruling was delivered on 8th December, 2022 and the application was allowed in the following terms; “a. The Plaintiff Prof Robert Obwocha Oboko (PW1) is hereby recalled so as to produce the certified bank statements from Stanbic Bank Harambee Avenue Branch, Nairobi for the bank account of Mugambi and Kariuki Co. Advocates, being account No 0100002920799, for the period --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 67

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running between 8th March, 2006 to September, 2006. b. The Plaintiff Prof. Robert Obwocha Oboko (PW1) shall, for purposes of production of the document in (a) above, be subjected to further examinationin-chief and/or further crossexamination and re-examination. c. The cost of this application shall abide the outcome of the suit.” 202 PW1 once again took the witness stand on 7th March, 2023. 203 It was his evidence that he had testified on the 14th October 2021. 204 He stated that he recalls his earlier evidence wherein he mentioned bank statements in respect of payments made to Kibowen Kiprotich. 205 He testified that the bank statements had been issued by Stanbic Bank, Harambee Avenue in Nairobi. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 68

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206 PW1 also testified that the bank statements are in the name of Mugambi Kariuki Advocates Account Number 0100002920799. 207 He further testified that the bank statements are for the period 8th March, 2006 to 28th September, 2006 and added that the bank statements were given to him by the advocate Samuel Gathungu Mugambi, the managing partner of Mug ambi Kariuki & Co advocates in the year 2016. 208 It was also his evidence that he wrote to the said firm of Advocates on the 27th day of October, 2016 requesting that they give him evidence of the payment made to the seller. The said letter was already produced as Exhibit P5. 209 It was further his evidence that Mr. Mugambi was his legal advisor for many years and that he had started working with him since the year 2000 until he passed away in year 2018. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 69

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210 PW1 testified that the seller of the suit property is KIPROTICH KIBOWEN and that he passed away on the 31 st December 2018. 211 He also testified that on the 18th May 2022, there was a witness from Stanbic Bank who testified as PW5. 212 He further testified that he remembers that PW5 said that the time for keeping the Bank statements had lapsed and they could not verify them against their records. 213 It was his evidence that he was in possession of certified copies of the said Bank statements and would like to produce them as evidence. 214 Counsel for the Defendant objected to the production of the said bank statements and the Plaintiff was stood down. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 70

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215 PW1 was then recalled on the 3rd July, 2023. He testified that he was last in court on the 7 th March, 2028 where he attempted to produce bank statements and an objection was raised. 216 It was his evidence that the court delivered a ruling on the 28th March, 2023 that he was not the proper person to produce the bank statements. 217 It was also his evidence that he did not have anyone else to produce the statement. 218 He testified that the bank should have produced the Bank statement but they invoked the limitation of time for keeping bank records. 219 Upon cross-examination, PW1 confirmed that the witness who had testified was the Bank manager Nakuru Branch who --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 71

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had been sent to appear in court on behalf of their branch in Nairobi. 220 He admitted that he had not summoned anyone from the head office or legal department of the Bank. 221 He also admitted that he was not sure if anyone from Nairobi was summoned. 222 PW1 confirmed that the statement he sought to produce originated from a branch in Nairobi and also confirmed that the branch in Nairobi is Harambee Avenue Branch. 223 PWI admitted that he had not requested witness summons to be issued to Stanbic Bank Harambee Avenue Branch. 224 Upon re-examination, PWI was referred to Exhibit P 8(a) and stated that it was a court order to Stanbic Bank to come to come to Court to verify the Bank statement. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 72

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225 When he was refereed to Exhibit P 8 (b) . PW1 stated that it was a letter in response to the court order. 226 He also stated that there were witness summons issued to the branch manager Harambee Avenue dated 22 nd October, 2021. 227 This marked the close of the Plaintiff’s case. THE DEFENDANTS’ EVIDENCE. 228 Bernard Kiplagat Rotich, hereinafter referred to as DW1, was the first witness to testify for the defence. 229 He stated that he resides in Ngata, Rongai Constituency in Nakuru and added that he lives on land parcel Land Parcel No. L.R. NO. 13287/37 North of Njoro town, Nakuru (Hereinafter referred to as the suit parcel) --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 73

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230 DW 1 further testified that he is a farmer and practices farming on Land Parcel No. L.R. NO. 13287/37 North of Njoro town, Nakuru and also testified that he has been practicing farming together with his family on the suit parcel of land since the year 1988. 231 He stated that he knows the 2 nd Defendant and added that he is his brother. 232 He went on to state that the Plaintiff instituted the present suit against his brother and him in respect of the suit parcel of land and added that in response to the suit, they have filed a counterclaim. 233 DW1 also stated that he filed his witness statement in court on 13th February 2020 and prayed that his witness statement be adopted as part of his evidence-in-chief, which prayer the Court acceded to. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 74

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234 DW1 further prayed, which prayer was allowed, that the documents attached to his list of documents filed on 13th February 2020 be marked and produced a follows: a. Copy of Limited Grant of Letters of Administration ad litem to the estate of his late father, Kipngok Rotich, issued jointly to himself and his brother, as Exhibit D1(a) and (b). b. Copy of Death certificate of the late Rotich Kipngok, as Exhibit D2 c. Copy of Letter dated 21st January 1988, as Exhibit D3. d. Copy of Allotment letter dated 31 st May 1988 for the suit parcel as Exhibit D4. e. Copy of Letter dated 6th June 1988 from the Headteacher of Kabarak High School acknowledging receipt of allocation letters, as Exhibit D5. f. Copy of Letter dated 10th July 1991 written by Kiprotich Kibowen seeking to purchase land LR No. 13287/144, as Exhibit D6. g. Copy of Letter dated 8th November 1991 written by his father to ADC regarding the erroneous registration, as Exhibit D7. h. Copy ADC's response dated 12th November 1991 acknowledging the error --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 75

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and requesting the parties to appear for rectification, as Exhibit D8. i. Copy of Certificate of Title for parcel no LR 13287/37 I.R 50164 NORTH OF NJORO NAKURU registered in Kiprotich Kibowen's name, as Exhibit D9. j. Letter dated 28th August 1995 from the ADC addressed to Mr. Kiprotich Kibowen and Rotich L, as Exhibit D10(a) and (b). k. Letter dated 11th October 1995 informing his father that the transfer from Kiprotich Kibowen to Mr. Kipngok Rotich had not been effected, as Exhibit D11. l. ADC's response dated 17th October 1995 explaining the transfer process and calling for payment, as Exhibit D12. m. Letters dated 26th October 1995 and 20th September 1996 evidencing his father's suspension from work, as Exhibit D13(a) and (b). n. Receipts dated 8th April 2003 and 3rd December 2003 for payment made by his father, as Exhibit D14(a) and (b). o. Letter dated 2nd April 1996 from ADC to the Estate Manager confirming the erroneous registration of Kibowen's consent, as Exhibit D15. p. Bundle of photographs depicting the fence, cattle, family graves and other --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 76

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structures on the suit parcel, as Exhibit D16(a)-(h). q. Photographs of Kibowen attending his mother's funeral, as Exhibit D17(a) and (b)Extract of the condolence book bearing Kibowen's signature and address, as Exhibit D18. r. Burial permits for his father and mother confirming burial on the suit parcel, as Exhibit D19(a) and (b). s. Letter dated 12th May 2004 by his father reminding ADC that the transfer process had not been concluded, as Exhibit D20. t. Letter dated 10th April 2008 from the Kenya Power & Lighting Company regarding power supply to the family home, as Exhibit D21. u. Letter dated 3rd February 2000 by Kibowen requesting HELB funding for his children, as Exhibit D22. v. Bank statement for Kiprotich Kibowen's account at the Kenya Commercial Bank, as Exhibit D23. w. Letter dated 5th November 2019 from the area Chief confirming his father's burial on the suit parcel, as Exhibit D24. x. Draft transfer purportedly from Kibowen to Kipngok, together with a spousal consent, as Exhibit D25(a) and (b). --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 77

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y. Four receipts for payment of water supplied to the family home, as Exhibit D26(a)-(d). z. Letter dated 16th December 2017 from the Kenya Electricity Transmission Company (KETRACO) regarding a power line wayleave, as Exhibit D27. aa. Certificate of title showing a subsequent, disputed transfer effected in June 2018, as Exhibit D28. bb. Twelve photographs showing demolition works and new structures following the wayleave compensation, as Exhibit D29(a)-(l). cc. Medical report dated 18th December 2017 recording Kibowen's dialysis treatment, as Exhibit D30. dd. Marriage Certificate dated 23rd December 1981, as Exhibit D31a. ee. Copy of National Identity Card of Zipporah Jepichii Sogomo, as Exhibit D31 (b). ff.Pleadings in Machakos ELC E072 of 2021, as Exhibit D32(a). gg. Proceedings in Machakos ELC E072 of 2022, as Exhibit D32(b). hh. Decree issued in Machakos ELC E072 of 2022, as Exhibit D32(c). --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 78

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235 DWI testified that the suit parcel was initially owned by his late father and that the Plaintiff claims ownership on allegations of having bought the suit parcel from one Kiprotich Kibowen. He added that the Plaintiff now wants to evict them from the suit parcel. 236 It was his testimony that he had Limited Grant of Letters of Administration ad litem to the estate of his late father, Kipngok Rotich, issued jointly to himself and his brother. The same was marked and produced as Exhibit D1(a) and (b). 237 It was his evidence that land LR 13287/37 I.R 50164 NORTH OF NJORO NAKURU COUNTY was originally owned by the Agricultural Development Corporation (ADC) and was allocated to many people , his father being one of them. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 79

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238 It was also his evidence that his father, Rotich Kipngok, is deceased, having died in September 2007. He produced his death certificate produced as Exhibit D2. 239 He testified that the land was allocated to his father in 1988 by Agricultural Development Corporation and that his father was, a teacher at Kabarak High School, having commenced his teaching at Kabarak High School in January 1988. He went on to testify that his father previously taught at Torongo Secondary School. He referred to a letter dated 21st January 1988, as evidence of his father's transfer. It was marked and produced as Exhibit D3. 240 DW1 went on to testify that he had an allotment letter for the parcel LR 13287/37 I.R 50164 NORTH OF NJORO NAKURU dated 31st August 1988. It was marked for identification as MFI D4. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 80

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241 It was his evidence that the allotment letter bears number 37 on it, was written by Agricultural Development Corporation, noting that a further reference number, 13287/37 also appears. 242 It was also his evidence that the family of Mr. Rotich Kipngok settled on the suit parcel in the year 1988 and that his parents and five siblings settled cultivated on the suit parcel. 243 It was DW1’s testimony that other persons, including one Kibowen and one Chesoni, benefited from the allotments and added that the Plaintiff’s testimony is that he purchased the land from Kiprotich Kibowen. He stated that he knows Kiprotich Kibowen as a neighbour and relative. 244 He further testified that Kiprotich Kibowen was allocated the adjoining parcel No. 13287/144 in the year 1988 where he settled with his family. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 81

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245 It was DW1’s evidence that there was a parcel of land that lay between their parcel of land and that of Kiprotich Kibowen. He added that Kiprotich Kibowen died in 2018 and that during his lifetime he was also a teacher at Moi High School Kabarak. 246 DW1 went on to testify that following the allotment letter of 31st May 1988, titles were issued, and it emerged that his father's title had been erroneously registered in Mr. Kiprotich Kibowen's name. 247 He stated that he had a letter dated 6th June, 1988(Exhibit D5) from the Headteacher of Kabarak acknowledging receipt of allocation letters for High School some of his teachers. 248 It was also his evidence that he had a letter dated 10th July 1991 (Exhibit D6) written by Kiprotich Kibowen which letter speaks to purchase land LR No. 13287/144. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 82

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249 He explained that November 1991 his father wrote a letter dated 8th (Exhibit the D7) to Agricultural Development Corporation, bringing to the Corporation's attention that the information in its file regarding the suit parcel was incorrect and that the suit property was in another person’s name. 250 He also testified that Agricultural Development Corporation responded to their letter dated 8th November 1991 and wrote response dated 12th November, 1991 (Exhibit D8) addressed to both his father and Kiprotich Kibowen, acknowledging the error and asking the parties to appear before the undersigned to sign a Consent of the Land Control Board land transfer form to enable transfer of land from Kiprotich Kibowen to his father. 251 DW1 further testified that he had a copy of the Certificate of Title registered in Kiprotich Kibowen's name. The same was produced as Exhibit D9. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 83

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252 It was his evidence that, following the acknowledgment of the error, they received a letter dated 28 th August 1995 addressed to Mr. Kiprotich Kibowen regarding parcel No. 13287/144, stating the purchase price of that parcel [Exhibit D10(a)] and to his father regarding parcel No. 13287/37 (Exhibit D10(b). 253 DW1 testified that he had a letter dated 11 th October 1995 written by his father in response to Exhibit D10(b), informing the Agricultural Development Corporation that the transfer from Kiprotich Kibowen to Kipngok Rotich had not been effected. It was marked and produced as Exhibit D11. 254 He also testified that Agricultural Development Corporation responded to the letter dated 11 th October 1995 through a letter dated 17th October 1995 explaining the transfer --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 84

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process and calling for certain payments as Exhibit D12 and that they further acknowledged that the family had settled on the land. 255 It was his evidence that his father subsequently made payments and explained that the payments were not immediate because his father had been suspended from work. He produced a letters dated 26 th October 1995 as Exhibit D13(a) and another dated 20th September 1996 as Exhibit D13 (b) as evidence of his father’s suspension. 256 He testified that his father subsequently made payment in 2003 i.e. on 8th April 2003 and 3rd December 2003. The receipts were produced as Exhibit D14(a) and (b). 257 It was his further evidence that he had a letter dated 2nd April 1996 from Agricultural Development Corporation to the Estate Manager, enclosing copies of consent to transfer for transmission to the Nakuru County Council. He added that --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 85

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the said letter also states that Kiprotich Kibowen to whom the transfers were erroneously registered had consented to the transfers from him to Rotich Kipngok. It was marked and produced as Exhibit D15. 258 DW1 produced a bundle of photographs depicting the fence, cattle, the graves of his mother and father, and other structures on the suit parcel as Exhibit D16(a)-(h). He added that his mother died in 2003 and his father in 2007. 259 He testified that when his parents were buried, Kiprotich Kibowen was alive and was aware of the deaths and burials and that he attended the funerals and signed the condolence book. 260 DW1 also testified there was no objection from Kiprotich Kibowen's family to the Rotich Kipngok family's occupation and ownership of the suit parcel. He produced --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 86

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photographs of Kibowen attending his mother's funeral shown standing in the back row wearing a blue shirt. He explained that the photograph was taken by his uncle. He also had another photograph showing Kiprotich Kibowen standing among neighbours. He explained that in both photographs Kiprotich Kibowen is circled. The photographs were marked and produced as Exhibit D17(a) and (b). 261 It was further his evidence that Kiprotich Kibowen signed the condolence book and an excerpt from it was produced as Exhibit D18. He explained that Kiprotich Kibowen appears at No. 2 on the condolence book which was signed on 24th September, 2007 and that Kiprotich Kibowen’s address is indicated. 262 DW1 went on to testify that his father was buried on 28th September, 2007 and he stated that he has burial permits for both his father and mother as evidence that they were --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 87

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buried on the suit parcel. they were marked and produced as Exhibit D19(a) and (b). 263 DW1 further testified that he had a letter dated 12 th May, 2004 which was written by his father and was intended to remind ADC that the process of transferring the land to his name had not been concluded. It was marked and produced as Exhibit D20. 264 He also had a letter dated 10th April, 2008 from the Kenya Power & Lighting Company relating to an application he had made for power supply to the family home. The said letter makes reference to the suit parcel. It was marked and produced as Exhibit D21. 265 DW1 also had a letter dated 3 rd February, 2000 which letter was written by Kiprotich Kibowen requesting HELB funding for his two children. It was marked and produced as Exhibit --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 88

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D22. He explained that the letter was given to him by Kibowen's wife who he would be calling as a witness and added that had Kiprotich Kibowen received the sum of Kshs. 10,000,000 as alleged by the Plaintiff, he would not have needed to seek such assistance. 266 It was his further testimony that he had Bank Statements for Kiprotich Kibowen's account at the Kenya Commercial Bank, covering the period 6th February, 2006 to 5th April, 2008 and explained that he obtained them from Kiprotich Kibowen's wife. It was his testimony that the bank statement does not reflect the alleged payment. It was marked and produced as Exhibit D23 267 He also testified he had a letter dated 5th November, 2019 from the area Chief confirming that his late father was buried on the suit parcel and also identifies the beneficiaries. It was marked and produced as Exhibit D24. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 89

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268 He further testified that he had Copies of undated draft transfer forms prepared in the year 2018 from Kiprotich Kibowen to Rotich Kipngok, signed by Kiprotich Kibowen and by the beneficiaries of the Rotich Kipngok estate i.e. by himself and his siblings. The same were marked and produced as Exhibit D25(a). It was his evidence that Kiprotich Kibowen could not sign the copies of draft transfers directly to his father Rotich Kipngok since Rotich Kipngok was deceased. 269 It was also his evidence that as at that time Kiprotich Kibowen was elderly, diabetic, and had suffered an injury impairing his mobility such that he required assistance to walk and that Mr. Kiprotich Kibowen’s photo and their photographs were affixed to the transfers. 270 It was further his evidence that Kiprotich Kibowen’s wife had signed the spousal consent. the same was marked and --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 90

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produces as Exhibit 25D (b). DW1 explained that if Kiprotich Kibowen had sold the land he would not have executed the transfer forms. 271 He testified that he had four receipts for payment of water supplied to the home which confirms that they lived on the suit parcel. He explained that there are three receipts each for Kshs. 6,000 each and a fourth from the Transnational Bank for Ngata Water Project. They were marked and produced as Exhibit D26(a)-(d). 272 He also testified that he had a letter dated 16 th December,. 2017 from the Kenya Electricity Transmission Company (KETRACO) relating to a power line that was supposed to cut across their land, for which compensation was received for the wayleave. It was marked and produced as Exhibit D27. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 91

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273 He further testified that he had a further certificate of title showing that the Plaintiff transferred the suit parcel to himself. he explained that the transfer was effected in June 2018 for an alleged consideration of Kshs 100,000,000. The certificate of title was marked and produced as Exhibit D28. 274 DW stated that he had another twelve photographs showing demolition works undertaken to give way to the wayleave and the erection of new structures after compensation by KETRACO in the year 2018. They were marked and produced as Exhibit D29(a)-(l). 275 It was his testimony that had the Plaintiff visited the parcel at the time of the alleged sale and transfer, he would have found them at the suit parcel. 276 He produced a medical report dated 10 th February, 2020 showing Mr. Kiprotich Kibowen’s state of Health. The report mentions the date 13th December, 2017 and stated --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 92

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that on the said date t Kiprotich Kibowen underwent dialysis from 12.40 p.m. to 4.40 p.m. DW1 further testified that the transfer presented by the Plaintiff (Exhibit P6) presupposes that Kiprotich Kibowen went to Nairobi on 14th December, 2017 to sign transfer documents. He explained that he obtained the said report from Kiprotich Kibowen's family as received from Kibowen’s doctor. 277 It was also his evidence he was aware that Kibowen's illness and used to help in carrying him into the car and also taking him hospital and added that Kiprotich Kibowen could not have driven to Nairobi or walked in Nairobi on the date that he is alleged to have signed transfer forms. 278 DW1 explained that Kiprotich Kibowen was living with his wife and children they could therefore confirm Kiprotich Kibowen’s condition. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 93

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279 He testified that attached to the draft transfer-Exhibit D25(a)- is a photograph of Kibowen taken in the year 2018. He also testified that the Plaintiff attached a photograph of Kiprotich Kibowen (Exhibit P6a) for the year 2017. He Further testified that during the year and 2017 and 2018 he looks like the photograph in Exhibit 25 (a) and added that it is him (DW1) who took the photograph. 280 It was his evidence that on the photograph appearing on the impugned transfer (Exhibit P6) is a photograph of Kibowen as a younger man, which he had seen in the funeral programme and in an online obituary, and which must accordingly have been picked during the burial or online and is not a photograph of Kiprotich Kibowen in 2017. 281 It was also his evidence that the signatures appearing on Exhibit D25(a) and Exhibit P6 are radically different. DW1 He drew the court's attention to the period of approximately t --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 94

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welve years said to have elapsed between the alleged sale a nd the eventual transfer as between the Plaintiff and Kibowe n. 282 He testified that the Plaintiff’s receipts of payment total Kshs 10,000,000, (Exhibit P7) but that the six receipts said to evidence this payment, when totaled, come to Kshs 10.5 million, and contain further inconsistencies: Receipt No. 7263, dated 18th May, 2006, bears a figure in words that differs from the figure in numerals; The transfer says 100,000,000 as opposed to 10.5 million ;Receipt No. 7266 is dated 8th March, 2006, while Receipt No. 7265 is dated 2nd April 2008 — the receipts numbered 7261 to 7266 thus not following a consistent chronological sequence; and the receipts, though covering a two-year span (2006 to 2008), appear to have been issued sequentially and only to a single individual, as if the law firm was waiting for one person to issue receipts to. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 95

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283 DW1 further drew the court's attention to the confirmation from the Kenya Revenue Authority that no stamp duty had been paid at the time of the transfer, and that a new document was subsequently produced in the course of proceedings which, according to him, demonstrates that the document used for the transfer was a forged document. 284 He testified that the advocate who signed the transfer, Kivuva & Co Advocates, was struck off the Roll of Advocates in January 2017, and indicated that he would be calling a representative of the C.E.O Law Society of Kenya as a witness. 285 He referred to the Plaintiff's further witness statement filed on 7th June 2021 and testified that at page 3, the Plaintiff stated that the funeral of Mr. Mugambi’s Advocates father was on 15th December, 2017 while on the Obituary it was --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 96

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stated that he died in 20th May, 2018 and that when the advocate (PW2) was shown on the obituary confirmed that it is of the person whose funeral he attended. 286 He testified that in his assessment, the Plaintiff's testimony and documents are outright forgeries, and that he filed a counterclaim that states the suit property belongs to his father. 287 He further testified that the transfer to the Plaintiff was fraudulent; he confirmed that he has particularized the fraud on the part of the Defendants and that he seeks orders as set out in the counterclaim. 288 He testified that the Rotich family (His family) has been in occupation of the suit parcel since 1988 and denied the Plaintiff's allegation that they commenced construction of structures only upon institution of the suit. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 97

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289 He also testified that he is aware that the Plaintiff is party to a suit similar to the current suit at the Environment and Land Court in Machakos , being ELC No. 072(A) of 2021, in which the Plaintiff herein a Defendant. 290 Upon cross-examination, DW1 confirmed his name as Bernard Kiplagat Rotich and that Rotich Kipngok was his father. 291 He also confirmed that his father was never registered as the proprietor of the suit property. 292 When referred to Exhibit D1 (a)and (b) -grants of letters of administration ad litem to the estates of the late father- He confirmed that his father passed away in September, 2007, and that his mother, Gladys Chesaskwony Cheruiyot, passed away in December 2003; both were, at the time of their deaths, residing on LR No. 13287/37 at Ngata Farm, having occupied the land since the 1988 allotment. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 98

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293 Upon cross-examination, DW1 confirmed that his name is Bernard Kiplagat Rotich and also confirmed that that Rotich Kipngok was his father,. 294 He further confirmed that his father was never registered as the proprietor of the suit property. 295 When referred to Exhibits D1 a and b, he confirmed that they are grant of letters of administration to the estate of his deceased father and also confirmed that his father passed away in September, 2007. 296 DW1 further confirmed that his mother is Gladys Chesaskwony Cheruiyot and that she passed away in December, 2003 and added that the time of their demise, both his mother and father were residing on LR No. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 99

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13287/37 at Ngata Farm and had been in occupation since allotment in the year 1988. 297 He admitted that he did not have any letter by his father specifically confirming that he took occupation of the parcel in 1988. 298 DW1 stated that he is the second-born child in the family, having been born in 1987, and is older than the 2 nd Defendant, his brother. 299 He also stated that he lived with his father since birth and that his father died while on duty adding that his father began his teaching career around 1983 or 1986 and that his father by virtue of being a teacher at Kabarak High School was allocated the suit parcel. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 100

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300 When referred to the Exhibit D3 , DW1 confirmed that his father was transferred to Kabarak High School on 21 st January, 1988 and explained that before the transfer they were living in a village at Kibatany. 301 He also explained that before his father’s transfer to Kabarak High School, he was teaching at Turango Secondary School and that they resided in houses within the school. 302 When referred to Exhibit D13(b), a letter dated 5th September, 1996, DW1 confirmed that as at that date his father was at Keturwa Secondary School and he added that did not know the location of that school. 303 When he was Referred to Exhibit D13(a), a letter dated 26th October, 1995, he confirmed that as at that date their family had taken possession of the suit parcel but was not yet residing on it because the family had been transferred from --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 101

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Kabarak and were living at Kibotany in Mogotio, which was their village home. 304 He confirmed that his parents' were buried on the suit property, and denied the suggestion that the family had never occupied the suit property despite the burials. 305 When referred to Exhibit D26(a)-(d), DW1 confirmed that they are receipts and do not indicate the property in respect of which they were paid. 306 He confirmed that the suit land was owned by Agricultural Development Corporation, which allocated it to his fatherRotich Kipngok- vide an allotment letter. 307 DW1 also confirmed that registration of title is done by the Ministry of Lands and that during registration the Ministry erroneously registered the land in the name of Kiprotich Kibowen instead of his father Rotich Kipngok and that the --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 102

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error was subsequently acknowledged by Agricultural Development Corporation vide the letter marked Exhibit D8. 308 DW1 further confirmed that Kiprotich Kibowen is his uncle and explained that his mother came from the same clan. He also confirmed that Kiprotich Kibowen is his neighbour and admitted that in his written statement he does not refer to Kiprotich Kibowen as his uncle. 309 DW1 denied that his brother and him resided on the suit property with Kiprotich Kibowen's permission and stated that they took possession in 1999. 310 He admitted that Kiprotich Kibowen never acknowledged that he was mistakenly allocated the land LR 13287/37 I.R 50164 NORTH OF NJORO NAKURU COUNTY but added that signed documents that were taken to the Lands office. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 103

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311 He also admitted that he does not know why Agricultural Development Corporation did not place a caution on the suit land but explained that his father did not sue because there were no wrangles or disputes between them. 312 Upon clarification being sought by the court, DW1 explained that Kiprotich Kibowen was also a teacher at Kabarak High School and further explained that a total of three teachers were allotted land by ADC. He referred the court to the letter dated 8th November, 1991 produced as Exhibit D7. 313 He confirmed that his father discovered the error and wrote to the Manager Agricultural Development Corporation and also confirmed that no suit was filed between the year 1991 and 2007 because there was no dispute because Kiprotich Kibowen and his father having acknowledged the mistake. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 104

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314 He further confirmed that in the counterclaim, he seeks orders for transfer of the property from Kiprotich Kibowen to Rotich Kipngok, notwithstanding that he does not hold letters of administration to Kiprotich Kibowen's estate and that Kiprotich Kibowen is not a party to the suit. 315 DW1 confirmed that the receipt of Kshs 2,500,000/= from KETRACO in the year 2018 in respect of a wayleave and that he did not inform the Plaintiff because they came to know the Plaintiff in 2019. 316 DW1 further admitted that the funds were used to construct a new house because the wayleave had affected their previous home and confirmed that the house built was modern. He however denied that that is what woke up the Plaintiff and added that they have always been living on the suit parcel. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 105

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317 DWI stated that that the statement by the Plaintiff that he got as semi-permanent on the suit property is not true because there are photographs showing the structures before concrete construction. 318 He also confirmed that the family lives on the suit land, rearing livestock and growing crops and that they earn approximately Kshs 30,000 per year from farming activities. 319 He stated that he does not know the value of the suit land but confirmed that it measures 25 acres. 320 DW1 went on to state that the family only learnt in the year 2019 that the suit land had been registered in the Plaintiff's name and added that have not paid and cannot pay the Plaintiff because he is not the owner. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 106

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321 DW1 also admitted that he received a letter dated 2nd September 2019 requiring him to vacate the land but he did not vacate. 322 When he was Referred to Exhibit D12, a letter dated 11th October, 1995, DW1 confirmed it asked for payment of Kshs 44,650 /= to transfer the land. 323 When he was also referred to Exhibit D10 (b), a letter dated 28th August 1995, he confirmed that the letter asked for Kshs. 30,007 within one month to enable closure of the file and added that it was a letter in response to the allotment. He explained that the sum of Kshs 30,007/= was the purchase price and the sum of Kshs 44,650/= included survey and conveyance. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 107

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324 When he was referred to Exhibit D14(a) and (b), DW1 confirmed that the receipt dated 8th April, 2003 for Kshs 30,007 /= is for the purchase price which responds to Exhibit D10(b) while the receipt dated 3 rd December, 2003 for Kshs 25,010/= settled conveyance, stamp duty, survey and related fees. 325 DW1 confirmed that these payments were made eight years later and explained that this was on account of his father's financial difficulties which arose from his suspension from work and the illness of his children, as explained in the letter to the Teachers Service Commission produced as Exhibit D13(b). 326 When he was referred to (Exhibit D13(b), he confirmed that his father deserted duty between 1994 and 1995 and was suspended from work for three months in the year 1996 and was expected to resume duty in January 1997. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 108

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327 DW1 He stated that his father did not seek further extension from Agricultural Development Corporation and no further explanation was given for the delay and added that his father simply paid the total sum of Kshs 55,010/= and was given a receipt. he explained that a receipt acknowledges payment therefore he believed that no further acknowledgment was needed. 328 He further stated that he was not aware that Kiprotich Kibowen received Kshs 44,000,000/= and that Kibowen's family should be able to answer. 329 He also confirmed that the Kipngok Rotich’s family did not sue Kiprotich Kibowen and that the Plaintiff should have sued Kiprotich Kibowen and added that they did not sue Agricultural Development Corporation since there was no dispute. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 109

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330 When he was Referred to Exhibit D30, the medical report, he confirmed that Kiprotich Kibowen passed away on 31st October, 2018 noting that last paragraph records that Kiprotich Kibowen collapsed and died on 31st December, 2018 which was a mistake. 331 He also confirmed that the medical report is dated 10 th February, 2020 and admitted that the medical report was obtained for purposes of the present case, to confirm that Kiprotich Kibowen's state of health and that he was not in any position to do any transaction without being accompanied by someone. 332 When referred to Exhibit P6, DW1 confirmed that the transfer form shows that it was signed by Kiprotich Kibowen 14th December, 2017 and added that he did not agree that the signature thereon is Kiprotich Kibowen's. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 110

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333 He also stated that the medical report shows Kiprotich Kibowen was undergoing dialysis on 13th December, 2017 and added that Kiprotich Kibowen never used a wheelchair but would walk while being supported. 334 He confirmed that the transfer document shows that it was registered on 6th June, 2018 and that at the time of registration Kiprotich Kibowen was alive. 335 DW1 admitted that transfer document has a photograph of Kiprotich Kibowen which was his photo when he was younger and added that the photo appearing on the transfer and Kiprotich Kibowen's obituary are the same and admitted that it is therefore not true that the photo was taken from the obituary because the transfer was done earlier. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 111

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336 He further admitted that the family does not hold letters of administration to Kiprotich Kibowen's estate but confirmed that they challenge the sale agreement and do not agree with it. 337 He confirmed Kiprotich Kibowen had six adult children (four boys and two girls) and also had one wife and further confirmed that he was aware that, none of them has sued the Plaintiff to revoke the agreement. 338 When he was Referred to Exhibit P2, the sale agreement, DW1 admitted that agreement states that the purchase price is Kshs 10,200,000=/ while the transfer (Exhibit P6) states the value of the suit parcel as Kshs 100,000,000/=. He further stated that the value of the land had gone up and was not a valuation but the price paid. 339 When he was referred to Exhibit P25 the draft transfer, he confirmed that it is undated and was prepared before --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 112

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Kiprotich Kibowen's death and that it is signed but not witnessed. 340 DW1 confirmed that the Plaintiff's claims Kshs 600,000/= in respect of two acres they occupied however, they are not illegal occupants. 341 When he was referred to the valuation and survey report Exhibit P17, DW1 confirmed that the report states that his family is in occupation of two acres but clarified that while the family resides on two acres, it occupies the whole of the parcel. 342 DW1 admitted that he particularized fraud and illegality on the part of the Plaintiff in his counterclaim and confirmed that he does not have an expert report on the alleged forged signature. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 113

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343 He further admitted that in his counterclaim he stated that the Plaintiff fraudulently obtained transfer documents for the following reasons: a. The Advocate who prepared the transfer ( S.M Kivuva) had been struck off the Roll of Advocates. b. the medical report produced speaks to Kiprotich Kibowen's condition at the time of the alleged transfer. c. The transfer forms state the purchase suit parcel as Kshs 100,000,000 d. That question of signature on the transfer forms e. The fact that stamp duty had never been paid prior to the transfer. 344 Upon cross-examination by counsel for the 2 nd Defendant in the counterclaim DW1 confirmed that he claims that there was fraud orchestrated by the 2 nd Defendant in the counterclaim and added that he reported to the police. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 114

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345 DW1 also stated that both Kiprotich Kibowen’s family state that neither them not Kiprotich Kibowen sold the suit parcel. 346 He further confirmed that he has not sued the Ministry of Lands. 347 Upon re-examination, DW1 reiterated that the transaction transferring the suit land to the Plaintiff is fraudulent for the following reasons. First, he stated that on 14 th December, 2019, is when Kiprotich Kibowen is said to have gone to Nairobi to sign the transfer yet on the13th December, 2017 Kiprotich Kibowen was undergoing dialysis until 4.30 p.m. 348 He went on to state that on the 14 th December 2019 Kiprotich Kibowen could not have travelled to Nairobi because he was walking while being supported and could not have travelled to Nairobi without his family's knowledge. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 115

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349 DW1 also explained that stated that secondly, the sale agreement states a purchase price of Kshs 10,400,000/= whereas the transfer states Kshs 100,000,000/= as the sum paid and further clarified that the Kshs. 100,000,000 is not the valuation of the suit parcel. 350 DW1 also explained that his third point is that the report obtained from the Kenya Commercial Bank and the Kenya Revenue Authority stated that the receipt used for the transfer was not genuine lastly that the advocate who prepared the transfer had been struck off the Roll of Advocates thus rendering the transfer invalid. 351 DW1 reiterated that when the Professor Obwocha bought the land it was not vacant and further he did not see any surveyors who purportedly visited the suit land. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 116

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352 On the question whether there is confirmation that they took occupation upon allotment by Agricultural Development Corporation, DW1 stated that stated that people do not ordinarily write to notify the fact if occupation but stated that he has produced Exhibit D12 a letter dated 17th October, 1995 which states in part “since you already have possession”. 353 DW1 reiterated that they have no dispute with the Kibowen’s family and further that the said family has not no claim over the suit parcel. 354 DW1 also reiterated that they have no dispute with the Agricultural Development Corporation and added that the suit land belongs to his father and the transaction should be completed adding that he has already produced the draft transfer which has photos of Kiprotich Kibowen and is also signed by him. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 117

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355 He further reiterated that the photo in the transfer documents produced by the Plaintiff are lifted from the obituary and are backdated and he added that the deceased Kiprotich Kibowen did not look like that at the time when the transfer documents produced by the Plaintiff are purported to have been signed. 356 The next witness to testify in support of the defence case is one Zipporah Jepichii Sogomo hereinafter referred to as DW2. 357 She stated that she lives in Ngata and that she is a retired teacher. 358 She also testified that she is aware that the case is about land Ngata. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 118

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359 She further testified that the she had recorded and signed a witness statement dated 5th February 2020. 360 It was her evidence that she was married to Kiprotich Kibowen (Deceased) in 1981 and produced her marriage certificate as Exhibit D31(a) and a copy of her identity card, marked Exhibit D31(b). 361 DW2 prayed that the court adopts her written statement dated 5th February 2020 as part of her evidence-in chief which prayer the court acceded to. 362 It was also her evidence that her husband died on 31st October, 2018 from kidney-related complications caused by diabetes adding that he had suffered from diabetes since 1996. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 119

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363 She testified that her parcel of land, LR No. 13287/144, measures 25 acres. 364 DW2 narrated that the former President was known to allocate land to persons in government and her husband was among five teachers at Kabarak High School who were allocated land. 365 It was also her evidence that she knows the two Defendants and added that Rotich Kipngok is her cousin. She further stated that his (Rotich Kipngok’s) wife comes from the same clan as her husband. 366 It was also her evidence that Rotich Kipngok was also a teacher at Kabarak High School and was also allocated land. She further explained that there is only one parcel of land that lies between her parcel of land and that of Rotich Kipngok. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 120

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367 DW2 went on to testify that she has visited the Defendants' home severally and further explained that she attended their mothers and father’s funeral and added that the Defendant’s parcel of land is LR No. 13287/37. 368 DW2 also testified that her husband told her that Kiprotich Kipngok's parcel had been registered in his name erroneously, and that Agricultural Development Corporation wrote to Kiprotich Kibowen directing him to go with Kiprotich Kipngok to rectify the mistake. 369 She further testified that her husband was not a corrupt person, was a churchgoer, and would not have engaged in corrupt dealings. 370 DW2 went on to testify that she came to know of the Plaintiff through the 1st Defendant and added that on that on learning of the mistake that had occurred in respect of --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 121

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registration, she asked her husband to assist the Defendants with the transfer of land. 371 It was her evidence that on 14 th December 2017 it is suggested that Kiprotich Kibowen travelled to Nairobi to an advocate to transfer the parcel to the Plaintiff however the same was not true and explained that at the time her husband was very unwell and required support even to walk. 372 She stated that he had a medical report, prepared by her husband's doctor, Dr. Kirop dated 10th February, 2020, setting out his medical history and explained that this was important so as to explain the illness and treatment he had undergone. 373 It was DW2’s evidence that on 13th December, 2017 her son and her took Kiprotich Kibowen for dialysis, after which he could not walk and therefore it was not possible for him to have travelled to Nairobi on 14th December, 2017. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 122

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374 It was her further evidence that whenever her husband sold land, he would inform her and his brothers and his brothers always acted as witnesses to the transactions. 375 DW2 stated that it was not true that a payment of Kshs 10,000,000/= was made to her husband and she added that if they had such money she would not be looking as shabby as she was. 376 It was also her evidence that from 2015 she would got to the bank and was also a signatory to Kiprotich Kibowen’s bank account. 377 It was DW2’s further her evidence that in the year 2007/2008 she had three children going to school had to sell 5 acres of land at Mochangoi to raise school fees and also asked for bursary. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 123

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378 She testified that her husband did not go to Nairobi and further stated that the signature appearing on the transfer documents is not her husband's. 379 It was also her evidence that the photograph appearing on the transfer documents is of her husband but when he was younger. 380 It was also her evidence that when her husband’s health started deteriorating, she asked him to resolve the matter of the suit land. 381 When referred to Exhibit D25(a), DW2 testified that it was her idea that the transfer form be signed and added that the photo appearing in the documents is what her husband looked like and that the signature on the transfer form is his and added that if it is true that he sold the suit parcel in the year 2006, he would not have signed the draft transfer. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 124

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382 She further testified that the transferee’s photographs are on the next page of Exhibit Number D25(a) and they have no claim over the suit parcel and have only one portion which is agricultural land but she never obtained Land Control Board consent. 383 It was also her evidence that Rotich Kipngok and his wife were buried on the suit parcel and that she attended their funerals. 384 DW2 further testified that the addresses appearing on the transfer forms is not correct as they had since left at Kabarak and added that their addresses is P.O Box 13222, Nakuru which address they acquired in 2001. 385 She explained further that her family left Kabarak in the year 1996 after which they went to Kabarnet High School and then moved to Rift Valley Institute. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 125

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386 It was her further evidence that the address on the transfer forms is stated as 7049 -00100 Nairobi and added that it should be an address in Nakuru and added that that her husband retired in the year 2008 so he could not also have been using the Kabarak address. 387 She also testified that she left Kabarak in 1996 and thereafter they moved to Kabarnet High School and then to Rift Valley Institute. 388 When referred to Exhibit Number P4 it was her evidence that the address on the Application for Consent of Land Control Board is 7049-001 Nairobi and explained that in the year 2006 they were at Rift Valley Institute and that that was not their address. She went on to explain that at time, they already had their personal address which was 13222 Nakuru. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 126

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389 When referred to Exhibit P3b she reiterated that in 2006 July she testified that she was not using the address appearing on the Consent. 390 It was her evidence that she does not know about the transaction and payments that were made to the Plaintiff. 391 DW2 also stated that she does not know the Plaintiff and reiterated that even as she stood on the witness stand, she still doesn’t know him. 392 In ending her examination-in-chief, DW2 testified that her h husband Kiprotich Kibowen was buried on the parcel in Ngata, next to the suit parcel. She went on to state that the dispute pertaining to the suit parcel only started after her husband's death and that she heard of the Plaintiff in the year 2019. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 127

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393 Upon Cross-examination, DW2 confirmed that she married Kiprotich Kibowen in the year 1981. 394 She also confirmed that her husband’s other name is Kiprotich Arap Toroitich Kibowen. she had his National Identity card in Court and showed it to Court. The name therein is Kiprotich Arap Toroitich Kibowen and the Number is 4199614. 395 She stated that she got married at ACC Emurung located after Mogotio. 396 She confirmed that LR No. 13287/37 is not Kiprotich Kibowen’s family's parcel, but belongs to Rotich Kipngok and explained that her husband previously lived in Emurung and Ravine where he did not own land and added that Kiprotich Kibowen retired in 2008. 397 She stated that she does not remember her husband’s salary and went on to state that in 2006 and 2007 he was paying --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 128

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university fees for their three children at Egerton, Moi and Kabarak Universities. 398 DW2 confirmed that Kiprotich Kibowen was diagnosed with diabetes in 1996, developed kidney failure, and commenced dialysis in 2017 and that he attended dialysis twice a week. 399 She confirmed that they were using the Nation Hospital Insurance Fund Card to pay for his treatment which cost Kshs. 10,000 and further confirmed that her husband was on a special diet which diet was affordable as it consisted of millet and vegetables. 400 DW2 also confirmed that her husband was a big farmer and could therefore support his medical expenses. 401 When Referred to Exhibit P2, the sale agreement, and the receipts relied upon for payment, she stated that these exist --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 129

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only on paper, and added that it is not true that Kshs 10,400,000 was used to meet her husband's medical bills and admitted that they sold land at Mochogoi for Kshs 500,000/= to help meet medical and school expenses, and added that she had relevant agreement. 402 She stated that, to her knowledge, her husband had no other wife or concubine and that upon allocation of land the family settled together with her mother-in-law on the land. 403 DW2 confirmed that they brought cattle onto the said land and visited the parcel regularly and that during the day the house manager one Emily, helped as she was at work. 404 She admitted that her husband held one Sacco account, used for borrowing, and one at Kenya Commercial Bank account and added that she was a signatory to the Kenya Commercial Bank account as set out in the bank statement (Exhibit D23) and that those were the only accounts she knew. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 130

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405 She confirmed that her husband never obtained the title deed to the suit property which she would otherwise have seen and that she only knew that the title deed had been erroneously issued in his name. 406 When Referred to Exhibit P1, a title dated 2nd August 1990 in the name of Kiprotich Kibowen for LR No. 13287/37, she confirmed it shows a subsequent transfer to the Plaintiff Robert Obwocha. She stated that she has a letter confirming the error and added that her husband never collected the title and that she does not know whether Agricultural Development Corporation retained it. 407 DW2 denied that her husband surrendered the title document to Robert Obwocha (The Plaintiff) and stated that he could not have sold the land while knowing that it belonged to Rotich Kipngok. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 131

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408 She confirmed that ADC was aware of the error and had directed Kibowen and Kipngok to have it corrected. 409 When Referred to Exhibit P6, the transfer form, DW2 confirmed that the photograph is of her husband and was used in his obituary. 410 She also confirmed that the identity number recorded is correct and that the PIN number is probably also correct. 411 When was Referred to Exhibits P11, P12, P13, P14, DW2 stated that it is possible for documents to be acquired illegally in Nairobi, and added that the Plaintiff should explain where he got the documents. 412 When Referred to Exhibit P7, an acknowledgment note dated 7th June, 2008, she stated that the signature is not her husband's and that the address recorded, P.O. Box 7049, --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 132

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Nakuru, is also not theirs, as the family at the time working at Rift Valley Institute. 413 She further confirmed that everything on the acknowledgment is untrue and added that she stated that she first saw the transfer documents in 2019 when shown by the 1st Defendant. 414 DW2 admitted that she did not report the matter to the police as it was already before the court and explained that she is not the one who instituted the suit against the Plaintiff. 415 She confirmed that the size of her parcel and the Defendants' are the same , and that they are the same prize but she does not know the current value of the land. 416 She also confirmed that, after the land was allocated to Rotich Kipngok he made use of it and added that her husband wanted to resolve the question of the erroneous --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 133

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registration and wanted a vehicle availed so that they could sort out the issue. 417 She reiterated that in the year 2016/2017 her husband could not have travelled to Nairobi to deal with the land and that although he was not on a wheelchair, he was always wheeled from the dialysis unit. 418 DW1 denied that her husband travelled to Nairobi for the transfer without her knowledge, and confirmed that she has never herself resided on the suit parcel because it was not theirs and they therefore had no business on it. 419 Upon re-examination, DW2 reiterated that the signature appearing on the acknowledgment note does not belong to her husband, and that the address recorded thereon is not the family's. 420 She further reiterated that the title deed was never collected by her husband, each teacher having been issued with one --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 134

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and that she suspects that, the land having remained unclaimed for a long period, someone tampered with the record. 421 One Walter Ngetich, hereinafter referred to as DW3, was the third witness to testify for the defence. 422 He introduced himself as hailing from Ngata in Nakuru County, that he is a farmer and resides on land parcel LR No. 13287/40, which belongs to his parents. 423 He further informed the court that he had had filed a written statement in court on 18th February, 2020 and prayed that his witness statement be adopted as part of his evidence-inchief which prayer the court acceded to. 424 It was DW3’s testimony that the suit land originally belonged to Agricultural Development Corporation and was allocated to land allocated to them in May, 1988 and that --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 135

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the family took occupation in 1990 and that they have remained in occupation to date. 425 It was his evidence that he knows the 1st and 2nd Defendants who occupy LR No. 13287/37, with two parcels lying between his parcel and theirs. He added that and that the Defendants' father was one Kipngok Rotich and that both families' parcels were allocated at the same time. 426 It was also his evidence that he does not know the Plaintiff and stated that Kiprotich Kibowen is a neighbour and that he only heard of the facts of the sale when the present case commenced. 427 It was further DW3’s evidence that he has never seen the Plaintiff living on the suit land. 428 He went on to state that he knows both Kipngok and Kibowen and added that he has never heard of any dispute --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 136

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between them over their respective parcels, both of which are fenced. He also stated that he has never heard of any dispute between the family of Kibowen and Kipngok. 429 Upon cross-examination DW3 reiterated that he lives on LR No. 13287/40 at Ngata Farm, which belongs to his father, Kipngetich Rotich (deceased) and added that he (DW3) holds the title to the said parcel. 430 He admitted that he has no letter from the chief to confirm that he lives on the said parcel of land. 431 DW3 also confirmed that he does not know that LR No. 13287/37 (The suit land) was registered in Kiprotich Kibowen's name. 432 immediately after DW3’s testimony, the following documents were admitted in evidence pursuant to a consent between the parties. They are: --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 137

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a. Pleadings in Machakos ELC E072 of 2021, as Exhibit D32(a). b. Proceedings in Machakos ELC E072 of 2022, as Exhibit D32(b). c. Decree issued in Machakos ELC E072 of 2022, as Exhibit D32(c). 433 Anthony Ngigi, hereafter referred to as DW4, was the fourth witness to testify for the defence. 434 He introduced himself as residing in Nairobi and also stated that he is a banker and works for Stanbic Bank at the Kenyatta Avenue Branch. 435 He stated that Stanbic Bank was served with witness summons to attend court to testify and added that the witness summons were received by the bank on 14th February, 2025. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 138

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436 He went on to state that he had a copy of the said summons and his work identification which shows his staff No. as A221176. 437 It was his testimony that he is a team leader at the customer service department of the bank. 438 DW4 testified that the account referenced in the summons is Account No. 0100002920799 and explained that it was alleged that in March 2006, payments were made to Kiprotich Kibowen by cheque on various dates, namely 13 th March, 2006, 20th April 2006, 26th May, 2006 and 8th August, 2006. 439 It was also his evidence that he had a document in court showing the said entries and added that the account No. 0100002920799 did not exist in 2006, therefore the documents forwarded to him did not belong to the said account. He reiterated that the said account does not exist. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 139

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440 DW4 testified that the document forwarded to him was a purported bank statement and went on to state that it is supposedly certified by the manager, Kenyatta Avenue Branch. 441 He also testified that the bank statement did not originate from Stanbic Bank and was also not certified by Stanbic bank. He added that Mugambi Kariuki & Company Advocates did not hold the account in question. 442 It was his further evidence that in the year 2006, the account did not exist and that he could not confirm whether it existed as at the time he was testifying now because the summons issued were seeking information for an account held in the year 2006. 443 It was his evidence that the payments made through Stanbic Bank on 13th March, 2006, 20th April, 2006 and 8th August, --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 140

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2006 could not have been effected because the account did not exist. 444 DW4 reiterated that the documents produced and payments made could not have happened since the account did not exist. 445 Upon cross-examination by the counsel for the Plaintiff, DW4 confirmed that he works at Stanbic Bank and was employed in the year 2015. 446 He confirmed that he worked in Gikomba Branch and that he never worked at the Harambee Avenue Branch an added that he was at the time of his testimony working at the Kenyatta Avenue Branch. 447 DW4 admitted that the summons were in respect to Account No. 0100002920799. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 141

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448 He stated that he was not aware of the court order dated 20 th January 2022 issued in Nakuru Misc. No. E001 of 2022 (Exhibit P8(a)). 449 DW4 confirmed that Stanbic Bank has a legal and governance department and also confirmed that he was not aware that the said department responded to the Court order. 450 He confirmed that there is a policy by Stanbic Bank not to retain records that are more than 7 years old and added that he was not aware that the legal & governance department stated that they could not produce any documents on account of this policy (Exhibit D8(b)). 451 He admitted that the documents forwarded to him from the Defendant were purportedly certified by the Harambee Avenue Branch. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 142

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452 DW4 also stated that the Bank's system can go as far back as when the Bank started operation. He reiterated that the account did not exist and added that he had checked the system. 453 DW4 also admitted that the Harambee Avenue Branch existed but as at the time of his testimony, it had been closed. 454 He confirmed that there is a stamp appearing on the bank statement forwarded to him by the Defendant and went on to state that the document did not originate from the Bank and that the manager could not have certified it as an original document because there was no original. 455 DW4 refused to comment on what was said by the governance and legal department because his summons did not ask him to confirm what they said. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 143

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456 DW4 stated that he is allowed to step in for the Branch Manager when the Branch Manager is absent and explained that his employment contract allows him to do so. 457 He confirmed that stated that he did not have a report from an expert to say that the documents subject of his testimony are not bank statements. 458 Upon re-examination, DW4 reiterated that the Harambee Avenue Branch had closed and he explained that upon closure of a branch, the accounts are not closed but are transferred to another branch. 459 He reiterated that the identity of the account remained unchanged. 460 He further clarified that he did not need any expert opinion to confirm that the statement is correct since he could access --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 144

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the same from the Bank's system, which has information on accounts as far as beyond 7 years. 461 DW4 reiterated that the account did not exist. 462 The next witness to testify was one Esther Njeri Mutitu, hereinafter referred to as DW5. 463 She introduced herself by stating that she lives in Nairobi, Embakasi area and that she works for the Law Society of Kenya as a Programme Officer dealing with Compliance & Ethics. 464 She stated that she was appearing in answer to summons issued to the Deputy Secretary and Director, Compliance & Ethics Directorate, Law Society of Kenya, which summons were served on 14th December 2017. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 145

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465 DW5 further testified that the summons requested confirmation of the practice status of Mrs. S.M. Kivuva, who was practicing in the name of S.M. Kivuva and Co. Advocates. 466 She made reference to Exhibit P6 and stated that she had a copy of transfer forms dated 14 th December, 2017 (Exhibit P6) which was prepared by Sarah Kivuva, Advocate. 467 She went on to testify that she also had records from the Law Society of Kenya which speak to the practice status of the said advocate and added that from their records, S.M. Kivuva was struck off the roll of Advocates with effect from 10th November 2008 pursuant to an order of the Disciplinary Tribunal in case No. 80 of 2008. 468 She stated that during the period in question, that is, from 2015 to the date on which she testified in court, S.M. Kivuva was not allowed to practice law and had also not been restored. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 146

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469 DW5 explained that once a person is struck off the roll, he/she ceases to be an advocate and cannot practice law or run a law firm. 470 Upon cross-examination by counsel for the Plaintiff, she stated that once an advocate is struck off the roll, the advocate search engine is updated and made accessible to the public. 471 She further stated that the first posting is made soon after the striking out and the same is updated in the system. 472 DW5 also stated that one is not allowed to work under the supervision of another advocate after being struck out, and that if found, criminal charges are preferred. 473 She explained that an advocate struck off the roll of advocates is like a masquerader. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 147

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474 The next witness to testify was Nicholas Ayugi, hereinafter referred to as DW6. 475 It was his evidence that he works with the Agricultural Development Corporation as an Officer in charge of Lands. 476 It was also his evidence that he is the Land Administrator at the Agricultural Development Corporation. 477 He testified that he joined the Corporation in the year 2014 and that he holds the land records at the corporation. 478 It was his evidence that he was appearing in court in respect of summons served upon the Corporation which summons required the officer in charge of records to testify. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 148

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479 DW6 testified that he knew land LR No. 13287/37 and LR. No. 13287/144 and is familiar with the records of LR No. 13287 relating to Ngata Complex (Ngata Farm). 480 He also testified that the land (Ngata Farm) was sub-divided and gave rise to 13287/37 and 13287/144 and many other sub-divisions. 481 It was his further evidence that LR 13287/37 was allocated to Rotich Kipngok through an allocation letter dated 31st May 1988, and explained that in the said allocation letter the Land Reference number does not appear because the subdivisions were still on-going and further that numbers had not been approved so as to issue the official LR numbers. 482 He went on to explain that after the allocation process , subsequent correspondences to an allotee would confirm the transition to a specific LR number. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 149

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483 In relation to LR 13287/37, DW6 testified that he had a letter dated 17th October, 1995 and another dated 12 th November, 1991 confirming that Rotich Kipngok was a beneficiary of parcel No. LR 13287/37. (The two letters were already marked and produced as Exhibit D12 and Exhibit D7 respectively). 484 It was his evidence that LR 13287/144 was allocated to Kiprotich Kibowen, and that from the records, it would seem that the two parcels were erroneously transferred to Kiprotich Kibowen. 485 DW6 produced the allotment letter dated 31 st May, 1988 issued to Mr. Rotich Kipngok as Exhibit D4. 486 It was also his evidence that parcel number LR 13287/37 ought to have been transferred to Rotich Kipng'ok. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 150

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487 It was further his evidence that the letter dated 12 th November 1991 (Exhibit D7) is addressed to Kiprotich Kibowen and Rotich Kipngok, and states that LR 13287/37 was erroneously registered in the name of Kiprotich Kibowen instead of Rotich Kipngok. 488 DW6 went on to state that Kiprotich Kibowen and Rotich Kipngok were asked to appear before the undersigned to sign the consent to transfer so as to rectify the mistake. 489 He also testified that the letter dated 17th October, 1995, which was produced as Exhibit D12, was addressed to Rotich Kipngok and its subject is LR 13287/37, informing him that once the consent to transfer is made available, the transfer documents will be executed and the parcel registered in his name. 490 DW6 further testified that the letter produced as Exhibit D12 asked Rotich Kipngok to pay Kshs 44,650 /=as --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 151

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outlined in the letter. He went on to state that the said letter also mentions that he was already in occupation. 491 It was DW6’s further evidence that from his records, he can confirm that payments were made to Rotich Kipngok, who was issued with Receipt No. 18300 for Kshs 30,000 and Receipt No. 18357 for Kshs 25,010. 492 He testified that the process he has outlined in his evidence was intended to rectify the anomaly that had been presented and added that it was never the intention of Agricultural Development Corporation to allot parcel No. 37 to Kiprotich Kibowen. 493 He further testified that Kiprotich Kibowen had been allotted parcel No. 144, and that Kiprotich Kibowen was never the owner of 37 and was never intended to be its owner. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 152

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494 Upon cross-examination by counsel for the Plaintiff, DW6 confirmed that he was in court in respect two parcels of land; Parcel Nos. 37 and 144, both parcels having been mentioned in the summons. 495 He also confirmed that parcel No. 37 was erroneously registered in the name of Kiprotich Kibowen. 496 He further confirmed that parcel LR 13287 was in the name of Agricultural Development Corporation and was thereafter transferred to allottees upon sub-division. 497 DW6 admitted that title LR 13287/37 was registered erroneously in the name of on 7th August, 1990 and that he had a copy of the title document in Court. He reiterated that the registration of LR. No.13287/37 in the name of Kiprotich Kibowen was mistaken. 498 It was his evidence that Kiprotich Kibowen who was to get LR. No.13287/37 complained to complained to Agricultural --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 153

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Development Corporation vide a letter dated 7 th November 1991. 499 When referred to Exhibit D7, DW6 stated that he had the letter in his file and described the said letter as a letter of complaint. he stated that the date of the latter is no clear, that it has a cancellation but believed the letter to be of 7 th November, 1991. 500 He also stated that the response from ADC is Exhibit D8, dated 12th November 1991, and that the said letter makes reference to a consent of the Land Control Board as follows; “…The two of you are required to call on the undersigned for signing forms for application of consent of the Land Control Board…” 501 DW6 further stated that he has not seen the consent of the Land Control Board in his file. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 154

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502 He confirmed that Kiprotich Kibowen was given the land erroneously and admitted that he did not have any letter in writing where he acknowledged that the land was given to him by mistake. 503 DW6 further confirmed that the Agricultural Development Corporation never registered a restriction or inhibition because Kiprotich Kibowen and Rotich Kipngok were aware the process of rectification was underway. 504 He admitted that ADC never sued Kiprotich Kibowen for cancellation of the mistaken registration and explained that he had a record showing the same. 505 DW6 explained that Kiprotich Kibowen was a willing participant who wanted to transfer the land to Rotich Kipngok. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 155

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506 He also confirmed that apart from Exhibit D8, no other letter was written to Kiprotich Kibowen to follow up on the matter. 507 When he was referred to Exhibit D12, DW6 stated that it had tabulated fees of Kshs 44,000/= to be paid by Rotich Kipngok to rectify the anomaly. He explained that there was no condition as to time within which the money was supposed to be paid, and added that there was no letter stipulating time. 508 DW6 confirmed that the receipt for Kshs 30,000 is dated 8 th April, 2003 and the receipt for Kshs 25,010/= is dated 3 rd December 2003 (Exhibit (D14 a & b). 509 He also confirmed that the letter demanding money is dated 17th October, 1995. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 156

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510 He further confirmed that the land had not been repossessed or allocated to anyone and therefore the allottee was at liberty to pay. 511 DW6 admitted that the Agricultural Development Corporation did not write to Kiprotich Kibowen to confirm or inform him that they would rectify the mistake. 512 He further admitted that he has no proof that Rotich Kipngok settled on parcel No. 37, and explained that the Corporation does not go around to confirm occupation once allottees are advised to take possession. 513 Upon further cross-examination by Counsel for the 2 nd Defendant in the counterclaim, DW6 confirmed that there was a mistake in the transfer of LR 13287/37, and that the mistake originated at Agricultural Development Corporation. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 157

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514 Upon re-examination, DW6 stated that in 1988, when land was allotted to Richard Kipngok, the allottees were, as per paragraph 3 of the allotment letter dated 31st shown their respective portions and May, 1988, advised to take occupation. 515 He reiterated that there was no stipulation as to time in the letter requesting payment, and that the Corporation accepted payment no matter how late it may have come. 516 This marked the close of the defense case. ISSUES FOR DETERMINATION. 517 The Plaintiff filed submissions on 10th December, 2025 while the Defendant filed submissions on 9th January, 2026. Plaintiff’s Submissions. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 158

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518 The Plaintiff sets out a brief history of the dispute, a summary of the evidence adduced during the hearing, a list of documents produced as exhibits and submits on the following issues; a. Whether there is privity of contract between the Plaintiff and the Defendants so as to warrant the challenge of the Plaintiff's title to the suit land. b. Whether the Defendants have proved fraud and/or illegality in acquisition of title to the suit land by the Plaintiff. c. Whether the Defendants' claim of title to the suit land is barred by Section 7 of the Limitation of Actions Act. d. Whether the Plaintiff has proved that the Defendants are trespassers on the suit land. e. Whether the Plaintiff is entitled to the reliefs sought in the Plaint. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 159

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f. Whether the defendants' counterclaim has been proved. g. What orders should the Court grant. 519 On the first issue, the Plaintiff submits that it is not disputed that he is the registered owner of LR No. 13287/37 North of Njoro Town. 520 The Plaintiff also submits that he purchased the suit parcel of land from Kiprotich Bowen (Deceased) between the years 2006 and 2008 at a consideration of 10,800,000/=. 521 The Plaintiff further submits that the Defendants in their Counterclaim confirm that the suit property was initially registered in the name of Kiprotich Kibowen (Deceased) but contend that the land was fraudulently transferred to the Plaintiff as it was done without the knowledge of Kiprotich Kibowen (Deceased). --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 160

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522 It is the Plaintiff’s submissions that the Defendants also contend that he (Plaintiff) fraudulently obtained the transfer documents and allegedly forged the signature of Kiprotich Kibowen (Deceased). 523 It is also the Plaintiff’s submissions that he produced the following documents which show that he purchased the suit parcel of land from Kiprotich Kibowen (Deceased); a. Sale agreement for the suit land (Exhibit P2). b. Consent issued by the Land Control Board to the Plaintiff for the transfer of the suit parcel of land. (Exhibit P3(b). c. Application for consent of the Land Control Board. (Exhibit P4) d. Transfer form for the suit parcel of land. (Exhibit P6) e. Copies of receipts issued upon payment of the purchase price and legal fees. (Exhibit P7) f. Acknowledgement receipts signed by Kiprotich Kibowen upon receipt of the full purchase price. (Exhibit P2) --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 161

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524 The Plaintiff relies on Section 3(3) of the Law of Contract Act, Section 38(1) of the Land Act and submits that the land sale agreement for the suit parcel of land dated 8 th March, 2006 (Exhibit P2) was signed by both the vendor and the purchaser. 525 The Plaintiff also submits that it is trite law that only parties who are privy to a contract can sue or be sued on the issues of invalidation and/or enforcement of a contract. 526 The Plaintiff further submits that the Defendants are not legal representatives of the estate of Kiprotich Kibowen (Deceased) and they do not therefore have the authority to challenge the land sale agreement he entered into with Kiprotich Kibowen (Deceased) and/or his title to the suit parcel of land. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 162

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527 The Plaintiff relies on the judicial decisions of Agricultural Finance Corporation -Vs- Lengetia Limited [1985] KLR 765, William Muthee Muthami -Vs- Bank of Baroda [2014] KECA 591 (KLR) and reiterates that a party who is not privy to a contract lacks the capacity to seek a judicial remedy in respect to a contract’s validity. 528 It is the Plaintiff’s submissions that the Defendants challenge of his title is a hopeless venture which is incompetent and ought to be rejected by the Court. 529 On the second issue, the Plaintiff submits that under paragraph 26 of the Amended Counterclaim, the Defendants set out particulars of illegality, fraud and misrepresentation. 530 The Plaintiff also submits that the burden is on the Defendants to prove that he acquired the title to the suit --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 163

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parcel of land fraudulently and/or that he forged the signature of Kiprotich Kibowen (Deceased). 531 The Plaintiff relies on Sections 26 and 80 of the Land Registration Act and submits that since the Defendants contend that there was forgery, they ought to have subjected the documents to a handwriting expert for examination of the disputed signatures. 532 It is the Plaintiff’s submissions that this was not done. The Plaintiff relies on the judicial decisions of William Muthee Muthami -Vs- Bank of Baroda [2014] KECA 591 (KLR), Shah -Vs- Padamshi [1984] KLR 531 and submits that the failure by the Defendants to seek the expertise of a document examiner in the analysis of the documents mean that the allegations of fraud and forgery remain unsubstantiated. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 164

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533 It is also the Plaintiff’s submissions that the Defendants contend that at the time of transfer of the suit parcel of land, stamp duty was not paid and that the advocate who witnessed the transfer was at that time struck off from the roll of advocates and therefore there was an illegality in the transfer of the suit parcel of land. 534 It is further the Plaintiff’s submissions that during the trial, it emerged that that the receipt issued on 29 th December, 2017 upon payment of Kshs. 2,000,000/= as stamp duty was not genuine. 535 The Plaintiff submits that it was his evidence that he gave his advocate, one Samuel Mugambi of Mugambi & Kariuki Co. Advocates Kshs. 2,000,000/= for payment of stamp duty. 536 The Plaintiff also submits that he filed Nakuru Misc. Civil Application No. E233 of 2021 (Exhibit P10(a) where he sought orders that the Kenya Revenue Authority verifies from --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 165

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their Kenya Commercial Bank account whether the said sum of money was paid on 29th December, 2017. 537 The Plaintiff further submits that Kenya Commercial Bank vide a letter dated 10 th December, 2021 (Exhibit P10(c) stated that the said sum of money was not deposited in its bank account and that the receipt was not genuine. 538 It is the Plaintiff’s submissions that on 14 th February, 2022, he was given an approval payment slip of Kshs. 2,000,000/= by the Kenya Revenue Authority and on 21st February, 2022, he paid the stamp duty. 539 It is also the Plaintiff’s submissions that he produced in Court the deposit slip of Kshs. 2,000,000/= (Exhibit P10(e) and an email by the Kenya Revenue Authority acknowledging receipt of payment of the stamp duty (Exhibit P10(f). --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 166

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540 It is further the Plaintiff’s submissions that the late payment of the stamp duty to the Kenya Revenue Authority did not invalidate the transfer document (Exhibit P6) and neither did it render the transaction illegal. 541 The Plaintiff relies on the judicial decisions of Abok James Odera T/A. J. Odera & Associates -Vs-John Patrick Machira T/A Machira & Co. Advocates [2013] KECA 208 (KLR), Rubo Kipngetich Arap Cheruiyot -Vs- Peter Kiprop Rotich [2013] KECA 188 (KLR) and Sunderji Nanji Limited -Vs- Mohamedali Kassam Bhaloo [1958] 1 EA 762 in support of his submissions. 542 The Plaintiff submits that the Defendant contends that the transfer dated 14th December, 2017 (Exhibit D6) was prepared by an advocate who had been struck off from the roll of advocates. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 167

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543 The Plaintiff also submits that the evidence of DW5 was that at the time the transfer instrument was prepared, S.M Kivuva, the advocate who prepared it, had been struck off the roll of Advocates. 544 The Plaintiff relies on Sections 107, 108 and 109 of the Evidence Act and submits that the allegations that S.M Kivuva was struck off from the roll of advocates was not substantiated through evidence and neither was the said issue pleaded. 545 The Plaintiff also relies on Kamau -Vs- Ngoya [2024] KEBPRT 1140 (KLR), Independent Electoral And Boundaries Commission (Iebc) -Vs- National Super Alliance (Nasa) Kenya & 6 Others [2017] KECA 436 (KLR) in support of his submissions. 546 The Plaintiff relies on the judicial decision of Daniel Toroitich Arap Moi -Vs- Mwangi Stephen Muriithi & --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 168

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Another [2014] KECA 642 (KLR) and submits that the Defendants introduced new evidence in their submissions. 547 The Plaintiff also relies on Section 345 of Penal Code, the judicial decisions of Koinange & 13 Others vs Koinange [1986] KLR 23, Eliud Mathu Chege -Vs- Mary Waithera Chege [2018] KEELC 2739 (KLR) and submits that no complaint was made to the Directorate of Criminal Investigations on the alleged forgery and/or fraud. 548 It is the Plaintiff’s submissions that it is axiomatic that a party alleging fraud in the registration of land must first prove that the fraud was attributable to the transferee. 549 It is also the Plaintiff’s submissions that the transferee must be guilty of some fraudulent act or must have known of such an act and taken advantage of it. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 169

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550 The Plaintiff relies on Section 80 (2) of the Land Registration Act and submits that the Defendant has failed to prove to the required standard the allegations of fraud. 551 On the third issue, the Plaintiff submits that in his Defence to the Counterclaim, he has raised the issue that the Defendants claim in the Counterclaim is statute barred. 552 The Plaintiff relies on Section 7 of the Limitation of Actions Act, sets out paragraphs 9, 10, 11, 19 and 20 of the Counterclaim and submits that the cause of action with respect to the Defendants claim arose on 7 th November, 1991 when their deceased father one Rotich Kipngok allegedly discovered the erroneous registration of the suit parcel of land in the name of Kiprotich Kibowen (Deceased). 553 It is the Plaintiff’s submissions that the Defendant’s deceased father wrote a letter dated 7 th November, 1991 (Exhibit D7) --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 170

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where he complained about the said registration to the Agricultural Development Corporation. 554 It is also the Plaintiff’s submissions the Defendant’s deceased father died on 24th September, 2007 before he could file any suit against Kiprotich Kibowen (Deceased). 555 It is further the Plaintiff’s submissions that the period of twelve years lapsed on 7th November, 2003 and therefore by the time the Defendants filed the Counterclaim on 12 th November, 2019, their claim for land was stale. 556 The Plaintiff relies on Section 26 of the Limitation of Actions Act, the judicial decisions of Iga -Vs- Makerere University [1972] EA. 65, Nelson Machoka Keraro -Vs- Land Registrar Kisii & 3 Others [2019] KEELC 3050 (KLR), Lucia Njeri Kaberu -Vs- Josphine Wanjiru Mwangi, Peter J. Kiragu Mwangi & Attorney General [2017] KEHC 2167 (KLR), Ehrabanu Jan Mohammed (SC) --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 171

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(suing as Executor of the Estate of the late H.E Daniel Toroitich Arap Moi) [2024] KESC 39 (KLR) and reiterates that the Defendants Counterclaim is statute barred and the reliefs sought cannot be granted. 557 On the fourth issue, the Plaintiff reiterates that he purchased the suit parcel of land from Kiprotich Kibowen (Deceased) and was registered as the owner on 6 th June, 2018. 558 The Plaintiff also reiterates that Defendants trespassed onto the suit parcel of land and he therefore seeks that eviction orders be issued against them. 559 The Plaintiff relies on Section 3(1) of the Trespass Act, the judicial decision of M'mukanya-Vs-M'mbijiwe (1984) KLR 761 and submits that the Defendants are in occupation of the suit parcel of land on the mistake belief that their deceased father Rotich Kipngok was its bonafide owner. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 172

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560 It is the Plaintiff’s submissions that the Defendants are relying on a Letter of Allocation dated 31 st May, 1988 (Exhibit D4) which letter became irrelevant once Kiprotich Kibowen (Deceased) was registered as the owner on 2 nd August, 1990. 561 It is also the Plaintiff’s submissions that the only course of action that was available to the Defendants deceased father, was for him to sue the Agricultural Development Corporation and Kiprotich Kibowen (Deceased) to have the land transferred to him as he was the original allottee. 562 It is further the Plaintiff’s submissions that the requisite documents for transfer and registration of the suit parcel of land in the name of Kiprotich Kibowen (Deceased) were executed and issued by the Agricultural Development Corporation. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 173

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563 The Plaintiff submits that the registration of Kiprotich Kibowen (Deceased) as the owner of the suit parcel of land cannot be said to be erroneous. 564 The Plaintiff relies on the judicial decisions of Michael Githinji Kimotho -Vs- Nicholas Muratha Mugo [1997] KECA 45 (KLR), Torino Enterprises Limited -Vs- Attorney General (PETITION 5 (E006) OF 2022)[2023] KESC 79 (KLR) and submits that the Defendants are trespassers on the suit parcel of land despite their lengthy occupation of it. 565 The Plaintiff also relies on the judicial decisions of Avid Mutegi Njuru -Vs- Kasamba Farmers Company Ltd & Pauline Wanjiru [2006] KEHC 1838(KLR) and Ngethe Vs-Gitau And Another [1999] 1 EA 225 (CAK) in support of his submissions. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 174

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566 With regard to the fifth issue, the Plaintiff addresses each of the prayers sought in the Plaint. The Plaintiff submits that the Court should issue a declaration that he is entitled to exclusive possession of the suit parcel of land. 567 The Plaintiff relies on the judicial decision of Thomson -VsPark (1944) 2 ALL ER and submits that the Defendants were issued with a demand notice to deliver vacant possession of the suit parcel of land. 568 The Plaintiff also submits that the moment the Defendants refused to vacate the land, they became trespassers and they should therefore be evicted. 569 The Plaintiff further submits that the Court should issue a permanent injunction and award him damages for trespass. 570 It is the Plaintiff’s submissions that the Defendants occupy a two-acre portion of the suit parcel of land and it is also his --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 175

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submissions that he discovered the said trespass in April, 2019. 571 It is further the Plaintiff’s submissions that in his pleadings he sought that the Court awards him Kshs. 600,000/= as damages for trespass which was for a period of three years. 572 The Plaintiff submits that since the Defendants have been in occupation for six years, he should be awarded Kshs. 200,000/= for the two acres multiplied by the number of years the Defendants have been in occupation. 573 The Plaintiff also submits that the amount he should be awarded for trespass for a period of five years is Kshs. 1,000,000/=. 574 The Plaintiff relies on the judicial decisions of Imon Njage Njoka-Vs- Simon Gatimu Kanyi [2007] KEHC 1558 (KLR), Eliud Njoroge Gachiri -Vs- Stephen Kamau --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 176

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Ng'ang'a [2007] KEHC 1558 (KLR) and Munuhe -VsWagacha [2023] KEELC 18602(KLR) in support of his submissions. 575 The Plaintiff concludes his submissions by urging the Court not to grant the prayers sought in the Counterclaim. THE DEFENDANTS SUBMISSIONS. 576 In their submissions, the Defendants set out a background of the suit and submit on the following issue; a. Whether or not the Plaintiff or the late Mr. Rotich Kipngok is the rightful owner of the suit property. (sic) 577 It is the Defendants submissions that the cause of action in the Counterclaim did not arise in the year 1991. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 177

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578 It is also the Defendants submissions that in the year 1991, Kiprotich Kibowen (Deceased) was erroneously registered as the owner of the suit parcel of land. 579 It is further the Defendants submissions that this error was acknowledged by all the parties involved and it cannot therefore be construed to mean that that is when the course of action arose. 580 The Defendants submit that Kiprotich Kibowen (Deceased) begun the process of transferring the suit parcel of land to Rotich Kipngok (Deceased) which process was inadvertently delayed. 581 The Defendants also submit that the Agricultural Development Corporation acknowledged the error and delay and it would have therefore been an abuse of the Court process if Rotich Kipngok (Deceased) were to have instituted a suit. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 178

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582 The Defendants further submit that the cause of action in the present suit is fraud which fraud was discovered in the year 2019 when they realized that the Plaintiff had been registered as the owner of the suit parcel of land. 583 It is the Defendants submissions that subsequently, the Plaintiff begun his allegation that they trespassed onto the suit parcel of land. 584 The Defendants rely on Section 107(1) of the Evidence Act, the judicial decisions of Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, Mbuthi v Osman & another (Environment & Land Case E004 of 2022)(2024] KEELC 387 (KLR) (1 February 2024), Dina Management Ltd v County Government of Mombasa & 5 Others [2023] SC Petition No. 8 (E010) of 2021) eKLR, Mwangi James Njihia v Janetta Wanjiku Mwangi & Another (2021) eKLR, Katende v Haridar & --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 179

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Co. Ltd (2008) EA 173 as was cited in Lawrence P. Mukiri v Attorney General & 4 Others [CA No. 146 of 2014] and Sehmi & another v Tarabana Company Limited & 5 others (Petition E033 of 2023) [2025] KESC 21 (KLR) (11 April 2025) (Judgment) eKLR in support of his submissions. 585 The Defendants submit that in Virjay Morjaria Vs. Professor Robert Obwocha and 4 others (Machakos ELC Case No. E072 of 2021) and Robert Obwocha Oboko vs Margaret Nyangweso & 2 Others KISII ELC Case No 456 of 2015 (2025) KEELC 3194, the Court found that the Plaintiff herein had fraudulently acquired various parcels of land. 586 The Defendants rely on Section 99 of the Land Registration Act, the judicial decision of Mugo Muiru Investments Limited v E.W.B & 2 Others [2017] eKLR and submit that --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 180

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Zipporah Jepichii Sogomo the wife of Kiprotich Kibowen (Deceased) did not give her consent for the alleged sale of the suit parcel of land to the Plaintiff. 587 The Defendants submit that the suit parcel of land was matrimonial property and it was therefore necessary for spousal consent to be sought and given. 588 It is the Defendants submissions that the failure to get the spousal consent defeats the Plaintiff’s claim to the suit parcel of land. 589 It is also the Defendants submissions that the Plaintiff is not an innocent purchaser for value as he acquired the suit parcel of land fraudulently. 590 The Defendants submit that firstly, the conveyancing documents were prepared by a person who had been struck off from the roll of advocates. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 181

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591 It is the Defendants submissions that it is trite law that documents prepared by an unqualified person like in the instant suit, are null and void. 592 The Defendants rely on the judicial decision of National Bank of Kenya Limited v Anaj Warehousing Limited (Petition 36 of 2014) [2015] KESC 4 (KLR) (2 December 2015) (Judgment) eKLR in support of their submissions. 593 The Defendants submit that secondly, a representative of the Agricultural Development Corporation gave evidence and confirmed that there was an error in the registration of the suit parcel of land which error they undertook to rectify. 594 It is the Defendants submissions that the Plaintiff holds a contrary view and even gave evidence under oath as to such views which is in itself an act of fraud. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 182

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595 The Defendants submit that thirdly, the receipts for payment of the purchase price and stamp duty were forged. 596 It is the Defendants submissions that a representative of Stanbic Bank testified and disowned the bank documents that the Plaintiff alleged that he got from their bank and a representative of Kenya Commercial bank also testified and denied receiving any payments from the Plaintiff. 597 It is also the Defendants submissions that failure to pay stamp duty and forgery of payment receipts was clear evidence of fraud and therefore the alleged transfer of the suit parcel of land is fraudulent. 598 The Defendants also submit that the Plaintiff failed to conduct due diligence. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 183

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599 It is the Defendants submissions that had the Plaintiff conducted due diligence, he would have found them in possession of the suit parcel of land. 600 It is also the Defendants submissions that at the time of the alleged sale, Rotich Kipngok (Deceased) was still alive and he would have enlightened the Plaintiff as to how he came to be in possession of the suit parcel of land. 601 It is further the Defendants submissions that they have demonstrated that their deceased father was allocated the suit parcel of land which land was erroneously registered in the name of Kiprotich Kibowen (Deceased). 602 The Defendants submit that they produced a letter of allocation dated 31st May, 1988 which was signed by the then Managing Director Agricultural Development Corporation which showed that their deceased father was allocated the suit parcel of land. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 184

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603 The Defendants further submit that they also produced two letters written by officials of the Agricultural Development Corporation dated 17th October, 1995 and 2nd April, 1999 which confirmed the erroneous registration of the suit parcel of land in the name of Kiprotich Kibowen (Deceased). 604 The Defendants submit that they produced transfer forms and a consent which show that Kiprotich Kibowen (Deceased) had agreed to transfer the suit parcel of land to their deceased father. 605 It is the Defendants submissions that Kiprotich Kibowen (Deceased) did not therefore hold a proper title to the suit parcel of land and he could not therefore transfer it to the Plaintiff. 606 The Defendants rely on the judicial decisions of Munyu Maina v Hiram Gathiha Maina [2013] eKLR, Jacob --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 185

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Wekesa Bokoko Balongo v Kincho Olokio Adeya & another [2020] eKLR in support of their submissions. 607 It is also the Defendants submissions that they have led evidence to show that Rotich Kipngok (Deceased) is the rightful owner of the suit parcel of land and the Court should therefore issue the prayers sought in the Counterclaim. 608 The Defendants conclude their submissions by urging the Court to dismiss the Plaintiff’s suit and allow the prayers sought in the Counterclaim. ANALYSIS AND DETERMINATION. 609 After considering the pleadings, the evidence adduced by the Plaintiff, Defendants, 2nd Defendant in the Counterclaim and their respective witnesses and submissions, it is my view that the following issues arise for determination; a. Whether the Plaintiff fraudulently acquired land parcel No. L.R --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 186

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13287/37 I.R. 50164 NORTH OF NJORO TOWN NAKURU. b. Whether the prayers sought in the Plaint should be granted. c. Whether the counterclaim is time barred. d. Whether the prayers sought in the Counterclaim should be granted. e. Who should bear the costs of the suit. A. Whether the Plaintiff fraudulently acquired land parcel No. L.R 13287/37 I.R. 50164 NORTH OF NJORO TOWN, NAKURU. 610 It is the Plaintiff’s case that on 8 th March, 2006, he entered into a sale agreement for purchase of property Land Parcel No. L.R. NO. 13287/37 North of Njoro town, Nakuru measuring approximately 10.25 ha (25 acres) from one Kiprotich Kibowen who had acquired the subject property from the Agricultural Development Corporation. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 187

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611 It is also the Plaintiff’s case he paid the total purchase price of KSHS 10,400,000/= between the years 2006-2008 and that subsequent to the purchase, transfer documents were executed on the 14th of December 2017. 612 It is further the Plaintiff’s case that the Defendants together with their family members unlawfully occupied a portion of the suit land measuring approximately 0.788 Hectares (2 acres) by erecting semi-permanent residential houses and cultivating on the subject property. 613 On the other hand, the Defendants’ case is that their late father Rotich Kipngok was the legal owner of the land parcel known as Land Parcel No. L.R. NO. 13287/37 North of Njoro town, Nakuru having been allocated the same by the Agricultural Development Corporation in the year 1988. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 188

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614 It is also the Defendant’s case in the year 1988 the Headmaster of Kabarak High School, one M.C.N. Langat wrote to the Managing director of the Agricultural Development Corporation requesting him to consider the school's teaching staff for allocation of land at the Agricultural Development Corporation Ngata Farm. 615 It is further the Defendants’ case that among the teaching staff suggested to be considered for allocation of land included Mr. Kiprotich A. T. Kibowen, Mr. Bekyibei Ndoigo and their late father-Rotich Kipngok. 616 It is the Defendants’ case that at the point of registration, the suit property was erroneously registered in the names of one Kiprotich Kibowen instead of in the name of the late Kipngok Rotich. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 189

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617 It is also the Defendants' case that their father unfortunately passed on in the year 2017 before the error could be rectified. 618 It is further the Defendant’s case that the Plaintiff, illegally and fraudulently obtained documents transferring title of the suit property to his name without their consent or that of their father Richard Kibowen (Deceased). 619 It is not in dispute that the Plaintiff is the registered owner of Land Parcel No. L.R. NO. 13287/37 North of Njoro town, Nakuru. What is in dispute is the is whether the Plaintiff fraudulently acquired the suit parcel of land. 620 Fraud has been defined in Black’s Law Dictionary 11 th Edition as; “A knowing misrepresentation or knowing concealment of material --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 190

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facts made to induce another to act to his or her detriment.” 621 The Court of Appeal in Vijay Morjaria vs Nansingh, Madhusingh Darbar & another [2000] eKLR held that: “It is well established that fraud must be specifically pleaded and the particulars of fraud alleged must be stated on the face of the pleading. The act alleged to be fraudulent must of course be set out and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved and it is not allowable to leave fraud to be inferred from the facts.” (Emphasis mine) 622 In his counterclaim, the Defendant set out particulars of fraud, illegality and misrepresentation against the Plaintiff and the Chief Land Registrar. They are as follows: --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 191

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a) Fraudulently obtaining transfer documents. b) Forging the signature of the deceased Mr. Kiprotich Kibowen. c) Fraudulently transferring the subject property to the Plaintiff. d) Illegally creating title and having and having no rightful power to do so. e) Ignoring the rights of the legal owners of the subject land. 623 The first particular of fraud, illegality and misrepresentation against the Plaintiff is that he (the Plaintiff) fraudulently obtained the transfer documents and that the Chief Land Registrar fraudulently transferred the suit parcel to the Plaintiff. 624 The evidence adduced alleges fraud in the execution of the transfer forms, the documents supporting the transfer and process leading to the transfer. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 192

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625 A copy of the sale agreement dated 8 th March, 2006 was produced as Exhibit Kiprotich Kibowen P2. The (vendor) agreement and Robert is between Obwocha (purchaser). Pursuant to the sale agreement the purchase price of Kshs. 10,400,000/= was paid between the year 2006 and the year 2008 and that transfer documents were thereafter executed on 14th December, 2017 and registered on 6th June, 2018. 626 It is the Plaintiff’s case that he met with Kiprotich Kibowen in Nairobi on 14th December,2017 in the company of his (Kiprotich Kibowen) male helper and they were advised to proceed to the firm of Advocate S.M Kivuva for her to oversee the execution of the transfer forms (Exhibit P6) for reason that the Law firm of Mugambi & Kariuki Advocates who were acting for the Plaintiff in the conveyance remained --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 193

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closed because members of the said firm were attending Mr. Mugambi’s father’s funeral. 627 The Defendants have questioned the authenticity and validity of the transfer forms on grounds that; Kiprotich Kibowen was ailing on 14th December 2017 and had, on the day before, undergone dialysis and that it was medically impossible for him to have sneaked into Nairobi without their knowledge and help. A Medical report dated 18th December 2017 recording Kibowen's dialysis treatment was produced as Exhibit D30. b. The Defendants also dispute the authenticity of Kiprotich Kibowen’s signature as it appears on the Transfer forms. DW2 (Kiprotich Kibowen’s wife’s stated that the signature does not belong to her husband. c. The Defendants have also stated that the advocate S.M Kivuva who witnesses the execution of the transfer forms had no legal capacity to do so for reason that she had been struck off the role of advocate and that the transfer forms are therefore null and void. a. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 194

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628 Lucas Taracisio (PW2), an advocate formerly of the firm of Mugambi & Kariuki Advocates testified that although he was an associate of the firm at the material time, the transaction was personally handled by the late Mr. Samuel Gathungu Mugambi and that he neither witnessed the execution of the sale agreement nor was he present when the transfer was signed. 629 PW2 also testified that at the time of execution of the transfer documents he was attending the funeral of Mr. Mugambi's father. It is worth noting that PW2 had no documentary evidence of his own employment at the firm and was unable to reconcile a discrepancy between the date he gave for the funeral of Mr. Mugambi’s father and the date recorded in the corresponding obituary. 630 PW2’s evidence was intended to confirm to this court that the law firm in which he worked as an associate oversaw the --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 195

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conveyance of the suit parcel and also to inform the court of the circumstances under which the Plaintiff went to S.M Kivuva Advocate to execute the transfer forms. 631 Importantly, PW2 in his evidence in chief stated that the Plaintiff paid stamp duty of Kshs. 2,000,000 to the government because the land was valued at one hundred million and that a receipt dated 29th December, 2017 for stamp duty was issued to them and a certificate of title was extracted and registered in the name of the plaintiff on 6 th June, 2018. It turns out that this receipt was a forgery as was set out in the testimony of PW4 one Hannah Ngahu of Kenya Revenue Authority. 632 PW2’s testimony was also intended to inform the court that the purchase price was received by the firm of Mugambi & Kariuki Advocates and transferred to Kiprotich Kibowen through his bank account held at Kenya Commercial Bank. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 196

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His further evidence is that said amount of money was paid from a bank account of the Law firm held at Stanbic Bank. The defence countered this claim through the evidence of Kiprotich Kibowen’s wife- Zipporah Jepichii Sogomo (DW2). It was her testimony that she is a signatory to Kiprotich Kibowen’s bank account held at Kenya Commercial Bank and that the bank statement for their Kenya Commercial Bank account which was evidence as produced in Exhibit D23 does not reflect the said payments. 633 Upon scrutiny of the bank Statement of Kiprotich Kibowen for the period in question, I have found that it does not show the amounts alleged to have been paid into it as purchase price for the suit parcel. 634 There is also a discrepancy as to the consideration paid for the suit parcel. While the sale agreement indicated that the consideration is Kshs. 10,400,000, the Transfer form --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 197

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indicates that the purchase price in Kshs. 100,000,000. The Plaintiff attempted to explain this discrepancy by stating that the sale agreement indicates the purchase price while the transfer forms indicate the value of the suit parcel. Upon perusal of the transfer form, I have seen that the amount of Kshs. 100,000,000 indicated on the transfer forms is not the value of the suit parcel but consideration for the sale of the suit parcel. This discrepancy was not explained by the Plaintiff and/or the explanation offered does not hold. 635 It is the Defendants’ evidence, through Bernard Kiplagat Rotich (DW1), that the receipts said to evidence payment of the purchase price (Exhibit P7) do not run in a consistent chronological sequence approximately Kshs. inconsistent with the and that their total 10,500,000/=, which amount pleaded 10,400,000/=. His further consideration of was is Kshs. evidence was that one receipt --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 198

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records the amount in words in a manner inconsistent with the amount recorded in figures. 636 More significant than these internal inconsistencies is the evidence of three witnesses, none of whom is a party to the suit or has any apparent stake in its outcome. 637 The first is Hannah Ngahu, an officer of the Kenya Revenue Authority (PW4). She testified that upon a court ordered verification of a receipt dated 29 th December, 2017 for Kshs. 2,000,000/= purporting to evidence payment of stamp duty on the transfer, Kenya Revenue Authority was unable to trace the payment against its own account held at Kenya Commercial Bank and that Kenya Commercial Bank wrote to Kenya Revenue Authority that it had not received the payment and further that the receipt was not genuine. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 199

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638 She also confirmed that a second stamp duty payment of Kshs. 2,000,000/= made in February, 2022 during the pendency of this suit. Her evidence was that this second stamp duty payment was, by contrast, verified and confirmed as genuine. 639 The second independent witness one Anthony Ngigi, a banker with Stanbic Bank (DW4), testified that Account No. 0100002920799 the account from which the firm of Mugambi & Kariuki Advocates is said to have issued cheque payments to Kiprotich Kibowen in March, April and August, 2006 did not exist in the year 2006. This evidence was not displaced by that of Leonard Surmat (PW5), the Stanbic Bank Nakuru manager earlier called by the Plaintiff, who had in any event been unable to verify the bank statement purportedly issued by Stanbic Bank. His evidence was that Stanbic Bank does not retain records of accounts beyond seven years. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 200

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640 The third independent witness’ testimony is crucial in answering the question of the legal capacity of the S.M Kivuva Advocate, whether she indeed executed the transfer forms and the Legal effect of such execution. This witness is Esther Njeri Mutitu 641 Esther Njeri Mutitu (DW5) introduced herself as a Programme Officer in the Compliance and Ethics Directorate of the Law Society of Kenya. It was her evidence that Advocate S.M. Kivuva whose name and stamp appear on the transfer instrument had been struck off the Roll of Advocates with effect from 10th November, 2008 more than nine years before she purportedly executed the transfer forms. It was her further evidence that an advocate who has been struck off the roll of advocate has no lawful authority to practice, to prepare or attest legal documents. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 201

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642 The Plaintiff is his submissions stated that the question as to the legal capacity of the Advocate who executed the transfer forms was neither substantiated through evidence nor pleaded and further that the Defendants are introducing new issues in their submissions. However, I hold a contrary view. These are questions of law and cannot therefore be ignored and/or swept under the rug. Compliance with the law is mandatory, ignorance of the law is no defence. It is therefore immaterial that the pleading filed by the Defendants do not explicitly give notice and/or mention that they would be challenging the capacity of Advocate S.M Kivuva. 643 Section 2 of the Advocates Act (CAP 16) Laws of Kenya defines “unqualified person” to mean a person who is not qualified under Section 9 and includes an advocate who a. is not qualified under section 9; b. is not exempt under Section 10; and c. fails to take out a practicing certificate. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 202

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644 Section 9 of the Advocates Act (CAP 16) Laws of Kenya provides that no person shall be qualified to act as an advocate unless—(a) he has been admitted as an advocate; and (b) his name is for the time being on the Roll; and (c) he has in force a practicing certificate and further provides that a practicing certificate shall be deemed not to be in force at any time while he is suspended by virtue of Section 27 or by an order under Section 60(4). 645 Therefore, a person struck off the roll of advocates fails under Section 9(b) and (c) and on the plain words of Section 9, is not qualified to act as an advocate. 646 My view is that the effect of striking off is that it automatically and immediately terminates any subsisting practicing certificate at once on the date of the striking off order. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 203

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647 Section 34 1 (a) of the Advocates Act (CAP 16) Laws of Kenya provides that no unqualified person shall either directly or indirectly take instructions or draw or prepare any document or instrument relating to the conveyancing of property. 648 In Otieno and Another-vs- Bodo Civil Appeal 195 of 2019, [2025] KECA 73 (KLR) it was held as follows; 20. In any event, this Court has consistently taken the position that pleadings and other court actions taken by an advocate who is qualified and admitted but who did not, at the time of filing the pleading or engaging in the action, have a valid practicing certificate, are not null only for that reason. For example, in James Kanyiita Nderitu & Hellen Njeri Nderitu v Marios Philotas Ghikas & Mohammed Swaleh Athman [2016] KECA 470 (KLR), this Court held: “23. Regarding the validity of instruments or documents other than of conveyance, prepared by an advocate who at the time was not holding a current practising certificate, we are --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 204

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persuaded by the decision of Ngugi, J. in the case of R V Resident Magistrate’s Court at Kiambu Ex-Parte Geoffrey Kariuki Njuguna & 9 Others [2016] eKLR ….. 24. By parity of reasoning of the Supreme Court decision in the Anaj Warehousing Case, we find and hold that no pleadings, documents or submissions become invalid under Section 31 of the Advocates Act only by dint of their having been prepared by an advocate who at the time was not holding a current practising certificate. The contrary effect is that documents prepared by other categories of unqualified persons such as nonadvocates whose names have been struck off the roll of advocates shall be void for all purposes.” (Emphasis mine) 649 Upon reading the Advocates Act (CAP 16) Laws of Kenya and the judicial decisions it is evident that S.M Kivuva was an unqualified person and hence prohibited from taking instructions or drawing or preparing any document or --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 205

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instrument relating to the conveyance of the suit parcel and therefore the transfer was void for all purposes. 650 The second particular of fraud, illegality and misrepresentation against the Plaintiff is that the signature of the deceased Kiprotich Kibowen, appearing on the transfer instrument dated 14th December, 2017 (Exhibit P6), was forged. 651 It is the Plaintiff's case that the transfer was signed by Kiprotich Kibowen in Nairobi on 14th December, 2017, in his presence and that of Advocate S.V. Kivuva and that he (Kiprotich Kibowen) was accompanied by a male helper to the advocates office. 652 DW2, Kiprotich Kibowen’s wife stated that the signature appearing on the transfer form does not belong to her --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 206

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husband. The Plaintiff in answer to this evidence submitted that the defence should have called a handwriting expert. 653 While this might seem as an evidentiary gap, it is not. Handwriting and signature may be established through other admissible evidence, including credible lay testimony of a person with long familiarity with the deceased's signature taken together with the surrounding circumstances. 654 Section 50 (1) and (2) of the Evidence Act provides as follows; Opinion as to handwriting. (1) When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is admissible. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 207

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(2) For the purposes of subsection (1) of this section, and without prejudice to any other means of determining the question, a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written 13 Evidence Act (Cap. 80) Kenya by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business documents purporting to be written by that person have been habitually submitted to him. (Emphasis mine) 655 Therefore, the evidence of DW2 is admissible to the extent that she is a person acquainted with the handwriting of Kiprotich Kibowen. The question that follows is; what should the Court then do with this evidence? Like all other evidence, it remains opinion evidence and the Court must --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 208

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make its own determination and/or measure it against all other testimonies and documents. 656 Zipporah Jepichii Sogomo (DW2), Kiprotich Kibowen's widow of over three decades in a bid to attack the authenticity of the transfer form also testified that the address recorded on the instrument does not correspond to the family's address at the material time. 657 A copy of a medical report of Kiprotich Kibowen which was produced as Exhibit D30 records that he underwent dialysis on 13th December, 2017 the day before the transfer was purportedly signed in Nairobi which is inconsistent with the unchallenged evidence of Kibowen's diabetes and dialysis treatment given independently by DW2. I find that it is improbable that Kiprotich Kibowen would have sneaked into Nairobi a day after his Dialysis, without the knowledge of --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 209

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his family and not accompanied by his family, for the sole purpose of signing the transfer forms. (Exhibit P6). 658 In a bid to further demonstrate fraud and illegality, the Defendants have submitted that Zipporah Jepichii Sogomo the wife of Kiprotich Kibowen (Deceased) did not give her consent for the alleged sale of the suit parcel of land to the Plaintiff. They also submit that the suit parcel of land was matrimonial property and it was therefore necessary that spousal consent to be sought and given and that failure to get the spousal consent defeats the Plaintiff’s claim to the suit parcel of land. 659 In the judicial decision of Kimutai v Changwony & 2 others (Environment and Land Case 160 of 2015) [2026] KEELC 1875 (KLR), one of the issues for determination was whether spousal consent was required. The Learned Judge observed and found as follows; --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 210

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96. Section 93 (3) (b) then provides that:“Where a spouse who holds land or a dwelling house in his name undertakes individually a disposition in that land the transferee shall if that disposition is a transfer of land be under a duty to inquire of the transferor of whether the spouse(s) has consented to that transfer...” 97. Additionally, section12 (1) Matrimonial Property Act states that; “An estate or interest in any matrimonial property shall not, during the subsistence of a monogamous marriage and without the consent of both spouses, be alienated in any form, whether by way of sale, gift, lease, mortgage or otherwise.” 98. In the case of Kadzo Mkutano v Mukutano Mwamboje Kadosho & 2 others [2016] eKLR the Judge held that; “Section 28 of the Land Registration Act recognizes spousal rights over matrimonial property as an overriding interest. Spousal consent, is therefore required before a spouse can sell matrimonial property. In the absence of such a consent, the sale becomes null and void”. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 211

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101. The 1st Defendant admitted that he was aware that the Plaintiff was married to Kimutai Chelanga. He was therefore obligated to inquire if the Plaintiff had consented to the sale. His failure to do so rendered the sale null and void. (Emphasis mine) 660 The alleged sale agreement was executed in the year 2006 when the Land Registration Act 2012 was in force and Section 93 (3) (b) referenced in Kimutai v Changwony & 2 others (Supra) is therefore applicable. 661 Similarly, I find that the failure by the Plaintiff to produce a copy of spousal consent obtained from Kiprotich Kibowen as being the consent issued by his wife Zipporah Jepichii Sogomo rendered the sale and transfer of the suit parcel to himself as illegal. 662 Taken together, these findings establish that the transfer forms by which the Plaintiff became a registered proprietor --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 212

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was not effected through a lawful and regular conveyancing process but through a chain of fraudulent instruments and false financial and professional records. 663 The fourth particular of Fraud, illegality and misrepresentation against the Plaintiff and the Chief Land Registrar is that the Chief Land Registrar illegally created title to the suit property and had no rightful power to do so. 664 Nicholas Agricultural Ayugi, the Land Development Administrator Corporation of the (DW6) an independent institutional witness with custody of the relevant records testified that parcel LR 13287/37 was allocated to the Defendants' late father, Rotich Kipngok, by an allotment letter dated 31st May, 1988 (Exhibit D4). 665 He also testified that it was erroneously registered in the name of Kiprotich Kibowen, who had separately been --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 213

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allocated the adjoining parcel LR 13287/144. He also testified that the error was acknowledged by the Agricultural Development Corporation in a letter dated 12 th November, 1991 (Exhibit D8); that both Kiprotich Kibowen and Rotich Kipngok signed consent forms to rectify the error, confirmed by the Agricultural Development Corporation’s letter dated 2nd April, 1996 (Exhibit D15) and that Rotich Kipngok made the payments required to complete the rectification in year 2003 (Exhibit D14(a) and (b)). 666 DW6 unequivocally confirmed that Kibowen "was never the owner of 37 and was never intended to be its owner" and that the mistake originated at the Agricultural Development Corporation. 667 An erroneous original allocation, standing alone, may be a matter of illegality or irregularity in the conduct of a third party (ADC and Kiprotich Kibowen) and not fraud by the --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 214

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Plaintiff. It is the manner in which the Plaintiff's own 2017 and 2018 registration was procured and not the 1988 allocation error that establishes this particular of fraud as pleaded. 668 I therefore find that the Defendant has proved, the fourth particular of fraud, namely that the Plaintiff illegally created his title to the suit property and had no rightful power to do so. This finding is based on the fraudulent process by which the Plaintiff's own registration was procured, and not on the separate and historical defect in the registration earlier held by Kiprotich Kibowen. 669 The Fifth particular of Fraud illegality and misrepresentation is that the Plaintiff ignored the rights of the legal owners of the subject land. The Defendants contend that the true legal owners are the beneficiaries of the estate of their late father, Rotich Kipngok, on the basis of the 1988 allocation by the --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 215

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Agricultural Development Corporation as has been considered above. 670 The evidence of the Defendants' occupation of the suit property is substantial and in material respects, not seriously disputed. DW1 testified, supported by photographic evidence (Exhibit D16(a)-(h)) and by burial permits (Exhibit D19(a) and (b). Kiprotich Kibowen attended both funerals and signed the condolence book, evidencing his own awareness of the family's presence on the land. It is important to mention that the Defendants’ father was buried on the suit parcel in the year 2007. Further, the evidence of DW6 from the Agricultural Development Corporation confirms that Defendants’ deceased father took occupation immediately upon allocation which fact is also expressly stated in the letter of allotment produced as Exhibit D5. Paragraph 3 of the allotment letter dated 31 st May 1988 states that Mr. Kipngok would be informed of the mode of payment and the --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 216

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letter further advises him to go ahead and settle on the said parcel of land. 671 It follows therefore that the rights of persons who might have had beneficial interest in the land whether as owners or otherwise were not interrogated or taken into consideration. In fact, the Defendants submit that had the Plaintiff conducted due diligence before “purchase” he would have discovered that there were other occupants. 672 Taking all the foregoing into consideration and in answer to this first question for determination, I find that the Defendants have proved on a balance of probability that the Plaintiff fraudulently acquired land parcel No. L.R 13287/37 I.R. 50164 North of Njoro Town, Nakuru. B. WHETHER THE PRAYERS SOUGHT IN THE PLAINT SHOULD BE GRANTED. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 217

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673 It would seem like an exercise in futility to answer this question especially in light of my finding on issue (A) above but I am obligated to determine each issue on its merits. 674 The prayers sought in the Plaint have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder for ease of reference; a. A declaratory order that the plaintiff is entitled to exclusive and unimpeded possession a of the suit property L.R Number 13287/37 I.R. 50164 NORTH OF NJORO TOWN, NAKURU measuring approximately 10.12 Hectares (25 Acres) and that the Defendants are trespassers occupying the plaintiff's parcel unlawfully. b. Eviction orders and/or mandatory injunction orders for vacant possession against the Defendants to move out of the parcel L.R Number 13287/37 I.R. 50164 NORTH OF NJORO TOWN, NAKURU belonging to the Plaintiff immediately within thirty (30) days from the court's order failure to which the --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 218

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plaintiff to seek the services of a licensed court bailiff with the assistance of the O.C.S. Ngata Police Station, Nakuru so as to evict the Defendants. c. A permanent injunction restraining the Defendants their servants/agents or family members from interfering, remaining, using and/or in any way dealing with all that parcel of land known as L.R Number 13287/37 I.R. 50164 NORTH OF NJORO TOWN, NAKURU in a manner that would prejudice the plaintiff's registered interests on his said parcel. d. General damages for trespass to land and unlawful occupation. e. Costs and interest at court rates. 675 A declaratory order can only be issued where a Plaintiff has established that evidence and the law favour the grant of it. 676 Section 26(1) of the Land Registration Act, 2012 provides that a certificate of title is taken by all courts as prima facie evidence of proprietorship and that title of a registered proprietor shall not be subject to challenge except --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 219

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on the ground of fraud or misrepresentation to which the person is proved to be a party, or where the certificate of title has been acquired illegally, unprocedurally, or through a corrupt scheme. 677 The conclusiveness of the register is therefore not absolute. It yields where the registration is shown to have been procured through fraud. 678 Having found, under the first issue for determination, that the Plaintiff's registration as proprietor of the suit property was procured through a fraudulent transfer instrument, a fabricated stamp duty payment, an Advocate with no lawful authority to attest the instrument and a forged signature, the Plaintiff's title falls squarely within the exception to conclusiveness contemplated by Section 26(1) of the Land Registration Act. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 220

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679 Therefore, the Plaintiff’s prayer for a declaration to exclusive and unimpeded possession of the suit property L.R. Number 13287/37 I.R. 50164 North of Njoro Town, Nakuru cannot be granted. 680 The Plaintiff also seeks orders of eviction against the defendants. The prayer for eviction proceeds on the premise that the Defendants are trespassers occupying land to which the Plaintiff holds valid and superior title. 681 The Defendants' family have been in open, continuous and largely unrebutted occupation of the suit property since 1988 after allocation of the land to their late father. Agricultural Development Corporation, The independently confirmed through the evidence `of its Land Administrator (DW6) that the allottees were shown their respective portions and advised to take occupation. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 221

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682 There is also evidence that the Defendants fenced, cultivated and buried both parents on the suit property and even had to relocate to another section of the suit parcel to give way for way leave after compensation by the Kenya Electricity Transmission Company (KETRACO). 683 A party whose own title is impeached for fraud cannot obtain an order evicting persons in such longstanding occupation on the strength of that impeached title. 684 The Plaintiff has also sought general damages against the Defendants on the allegation that the Defendants have trespassed onto his parcel of land i.e. the suit parcel 685 A claim in trespass requires the claimant to establish an exclusive right to possession of the land violated by the unauthorized entry of another. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 222

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686 Halsbury’s Laws of England 5 th edition, Volume 97 at page 465 paragraph 563 defines trespass as follows: “A person trespasses upon land if he wrongfully sets foot on it, rides or drives over it, or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or it, or if he erects or suffers to continue on his own land anything which invades the air space of another. He also commits a trespass to land if , having entered lawfully, he unlawfully remains after his authority to be there expires. (Emphasis mine) 687 Section 3 (1) of the Trespass Act, Cap 294 provides that: “Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 223

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the consent of the occupier thereof shall be guilty of an offence.” (Emphasis mine) 688 The Plaintiff's claim to damages for trespass rests on his right as an owner of the suit parcel. Taking into consideration the finding that he acquired title to the suit parcel fraudulently, his claim for general damages for trespass cannot be sustained. 689 Therefore, in answer to the second question for determination, I find that the prayers sought in the Plaint cannot be granted and are hereby dismissed. C. WHETHER THE DEFENDANTS’ COUNTERCLAIM IS BARRED BY SECTION 7 OF THE LIMITATION OF ACTIONS ACT. 690 The Plaintiff claims that the counterclaim is statute barred and relied on Section 7 of the Limitation of Actions Act. In his submissions, the Plaintiff states that the cause of action --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 224

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with respect to the Defendants’ claim arose on 7 th November, 1991 when their deceased father Rotich Kipngok discovered the erroneous registration of the suit parcel of land in the name of Kiprotich Kibowen (Deceased). 691 The question that follows is when the Defendants’ right of action accrued and not merely how many years have passed since 1991. Section 7 of the Limitation of Actions Act provides as follows; “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” 692 The Defendant’s Counterclaim was filed on 6th November 2021. It is not disputed that the family Rotich Kipngok took up occupation of the suit parcel in the year 1988, immediately --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 225

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following the allotment to Rotich Kipngok and that they have remained therein without interruption. 693 Section 7 bars an action “to recover land”. That phrase describes a claimant seeking to regain something they have lost, whether physical possession or, at minimum, a registered right they no longer enjoy. 694 The Defendants built a home on the suit parcel, cultivated it, buried both parents therein, and dealt directly with utility providers and KETRACO in respect of it without their occupation being disturbed until the events of the year 2019. There was nothing to recover between the year 1988 and 2019 because nothing had been taken from them; at least in their estimation. 695 The events of the year 1991 cannot be treated as the accrual of a limitation-triggering claim. An acknowledged --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 226

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administrative error, actively being corrected by agreement of all parties involved, is not an adverse claim that puts a possessor on notice to sue or lose their rights. 696 The draft transfer and spousal consent obtained, confirm that the correction process started in the year the 1991 right up to the point at which the Plaintiff’s transfer intervened. 697 I find, therefore, that the Defendants’ cause of action accrued in the year 2019, upon discovery of the fraudulent transfer, and that their counterclaim, filed within the same year, is not barred by dint of section 7 of the Limitation of Actions Act. D.WHETHER THE PRAYERS SOUGHT IN THE AMENDED STATEMENT OF DEFENSE AND COUNTERCLAIM SHOULD BE ALLOWED. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 227

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698 The prayers sought in the Amended Statement of Defence and Counterclaim have been set down in the preceding paragraphs but I will nonetheless replicate them as hereunder for ease of reference; a. The Plaintiff's (now Defendant) suit to be dismissed with costs. b. A declaration that the transfer of the suit property was illegal as the 2 nd defendant had no authority and title to pass to the Plaintiff. c. An order cancelling and/or nullifying the title deed in the name of the Plaintiff and an order directing the Chief Land Registrar to facilitate and conclude the process of transfer of the suit land L.R Number 13287/37 from the name of Kiprotich Kibowen to the name of the deceased Mr. Rotich Kipngok. d. Permanent injunction restraining the now Defendants their employees, agents, officials or any person claiming under them from trespassing, encroaching, intruding, remaining onto, occupying, constructing and/or subdividing the parcel of land or in any way dealing --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 228

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with the Plaintiff's parcel of land registered as L.R Number 13287/37 within Nakuru County. e. Costs and interest of the suit. f. Any other relief the Honorable court may be pleased to decree. 699 The Defendants, in their counterclaim, seek, among other reliefs a declaration that the transfer of the suit property to the Plaintiff was illegal and an order of cancellation and/or nullification of title. 700 Having found that the Plaintiff fraudulently obtained the transfer documents, that the signature of the deceased vendor was forged, that the transfer instrument was attested by an advocate with no lawful authority to do so, and that the transfer was accordingly procured through fraud, it follows that the transfer of the suit property to the Plaintiff was not merely fraudulent but irregular and illegal. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 229

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701 I therefore find that the transfer of the suit property to the Plaintiff, effected by the instrument dated 14 th December, 2017 and registered on 6th June, 2018, was illegal. 702 Whether an order for cancellation of title should issue is guided by Section 80 of the Land Registration Act, which provides as follows; (1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. (Emphasis mine) 703 Section 80 empowers the court to order the rectification of the register by directing that a registration be cancelled or amended where it is satisfied that a registration has been obtained, made or omitted by fraud or mistake. Having found the Plaintiff's registration to have been procured through fraud, this is a fit case for the exercise of that power. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 230

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704 I am, however, careful to confine the relief to what the evidence and the proper parties before the Court permit. The effect of cancelling the Plaintiff's registration is to revert the register to the position immediately preceding the impugned transfer, that is, to the registration in the name of Kiprotich Kibowen, this being the last entry on the register that has not itself been impeached in these proceedings. 705 I decline, on the present record, to go further and direct the Chief Land Registrar to complete the transfer of the suit property from the name of Kiprotich Kibowen to Rotich Kipngok. Bernard Kiplagat Rotich (DW1) himself admitted that the Defendants do not hold letters of administration to the estate of Kiprotich Kibowen and the personal representatives of that estate are not parties to this suit. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 231

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706 While the evidence of the Agricultural Development Corporation's own land administrator (DW6) establishes, largely without contradiction, that the suit parcel was always intended for the late Rotich Kipngok and that Kiprotich Kibowen’s registration in respect of it was an acknowledged administrative error which both men had before their respective deaths taken steps to rectify. 707 The completion of that rectification as opposed to the cancellation of the fraudulently procured registration now before the Plaintiff's name is a matter that should properly be pursued in proceedings, whether before this Court or the Chief Land Registrar to which the personal representatives of Kiprotich Kibowen's estate are joined. 708 I accordingly find that the prayer for cancellation of title is allowed to the extent that the registration of the suit property, L.R. Number 13287/37 I.R. 50164, North of --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 232

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Njoro Town, Nakuru, in the name of the Plaintiff is hereby cancelled and the register shall revert to reflect the registration in the name of Kiprotich Kibowen, without prejudice to such further proceedings properly constituted with the personal representatives of the estate of Kiprotich Kibowen as parties, as may be necessary to complete the rectification earlier commenced between Kiprotich Kibowen and the late Rotich Kipngok. E. WHO SHOULD BEAR COSTS OF THE SUIT? 709 The general rule is that costs shall follow the event. This in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). 710 A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. DISPOSITION. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 233

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711 In the result, I find that the Plaintiff’s suit fails and the Defendants’ counterclaim succeeds. I hereby enter judgment in the following terms; a. The Plaintiff’s suit is hereby dismissed with costs to the Defendants. b. A declaration is hereby made that the transfer of land L.R. Number 13287/37 I.R. 50164 North of Njoro Town, Nakuru to the Plaintiff and the certificate of title issued to him pursuant thereto, is null and void. and the same is hereby cancelled. c. The Chief Land Registrar is hereby ordered to cancel and/or nullify the title deed issued to and registration made in the name of the plaintiff and is hereby ordered to facilitate and conclude the process of transfer of the suit land L.R. Number 13287/37 I.R. 50164 North of Njoro Town, Nakuru from the name of Kiprotich Kibowen to the name of the Rotich Kipngok (deceased). --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 234

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d. Order (c) above is without prejudice to such further constituted proceedings, properly with personal representatives the of the estate of Kiprotich Kibowen as parties, as may be necessary to complete the rectification earlier commenced between Kiprotich Kibowen and Rotich Kipngok (deceased). e. A Permanent injunction is hereby issued restraining the Plaintiff, employees, agents, officials person under claiming or him trespassing, encroaching, his any from intruding, remaining onto, occupying, constructing and/or subdividing the parcel of land or in any way dealing with the suit land L.R. Number 13287/37 I.R. 50164 North of Njoro Town, Nakuru. f. The Defendants shall have cost of the counterclaim. 712 It is so ordered. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 235

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713 The Court thanks all Counsel who appeared in this matter for their great professionalism and commends the effort made by all of them in having this matter heard determined. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 24TH DAY OF SEPTEMBER, 2026. L. A. OMOLLO JUDGE. In the presence of: Mr. Kanyi Ngure for the Plaintiff. Mr. Kisilah for the 1st and 2nd Defendant. N/A for the 2nd Defendant in the Counterclaim Court Assistant; Mr. Joseph Makori. --------------------------------------------------------------------------------------------------------------------ELC 4B OF 2024 [KERICHO] FORMERLY ELC 120 OF 2019 [NAKURU] 236

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