Mwakisha & 2 others

d. Interest on (b) thereon at Court rates from the date of ling this suit till payment in full. 2. The plaintis pleaded that vide a sale agreement dated 19.03.2015 the 1st defendant sold to them a portion of Sub-division No. 236/II/MN measuring about 50 by 90 feet at an agreed purchase price of Kshs.1.9 million only. It was pleaded that the Plaintis paid a deposit of Kshs. 1 million only and that the balance was to paid upon the 1st defendant handing over the original title document to the plaintis’ advocates. 3. The plaintis pleaded that at the time of making the said agreement, the 1st defendant showed them a copy of a sale agreement dated 05.05.2005 whereby the 2nd defendant had agreed to sell the said portion of land to the 1st defendant. It was the plaintis’ case that the 2nd defendant had since failed to process transfer and title documents in favour of the 1st defendant and that the latter also failed to avail the necessary completion documents to facilitate completion of the sale. 4. It was the plaintis’ case that both defendants were in breach of the respective sale agreements they had signed and that despite issuance of a demand and notice of intention to sue the defendants had failed to oblige them thereby rendering the suit necessary. 5. The 1st defendant led a defence and counterclaim dated 21.07.2025. By his defence, the 1st defendant denied the plaintis’ claim in its entirety and put them to strict proof thereof. In his counterclaim, the 1st defendant pleaded that he was the lawful owner of the property claimed by the plaintis by reason of having purchased it from the 2nd defendant for valuable consideration. 6. The 1st plainti further pleaded that the plaintis were not entitled to the suit property because they had failed to complete payment of the purchase price. As a consequence, the 1st defendant sought the following reliefs in the counter claim; a. A declaration that the 1st defendant is the lawful proprietor of the parcel of land known as Plot No. 236/II/MN. b. A permanent injunction restraining the plainti, his agents or servants from interfering with the 1st defendant’s quiet possession and enjoyment of the aid parcel. c. The honourable court makes an order directing the plainti to vacate the suit property and be directed to remove the church structure. d. The honourable court makes an order directing the plainti to deliver vacant possession to the 1st defendant for breach of terms in the sale agreement dated 19th March 2015. e. Costs of the suit and counter-claim. f. Any other relief this honourable court deems t to grant to do justice in the matter. 7. The 2nd defendant led a defence dated 03.10.2017 which was amended on 22.05.2024 to introduce a counterclaim. By his defence, the 2nd defendant denied having sold any portion of the suit property to the 1st defendant. He pleaded that the agreement dated 05.05.2005 was for the lease of a plot measuring 40 by 80 feet and was dierent from the plot claimed by the plaintis. 8. The 2nd defendant pleaded that the suit property was part of a large parcel measuring 30.5 acres which was held in trust for the Wakf of Ali Bin Said Bin Abdulrehman (the Wakf) which could not be sold as freehold property. It was pleaded that at all material times the Plaintis were fully aware of the status of the subject property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5738/eng@2026-09-17 2

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9. By his counterclaim, the 2nd defendant pleaded that the 1st defendant was in breach of the agreement dated 05.05.2005 by, inter alia, failing to pay monthly rent and in purporting to sell the same to the plaintis without involving the trustees of the Wakf. He pleaded that as a result of the 1st defendant’s said actions he was entitled to rescind the lease agreement dated 05.05.2005. 10. As a result, the 2nd defendant sought the following reliefs in his counterclaim: a. Eviction orders against the 1st defendant and the Plaintis and/or vacant possession of the suit property. b. Permanent injunction to restrain both the 1st defendant and the plainti either by themselves or by the servants or agents from entering, occupying, erecting structures, sub-leasing, selling, alienating or in any other manner dealing with the suit property in a manner likely to interfere with the rights of the owners and trustees of the Wakf. c. Damages for breach of contract against the 1st Defendant. d. Mesne prot calculated at the rate of Kshs.250/= perm month until vacant possession is given. e. Costs and interest of the counterclaim. 11. The record shows that the plaintis led a reply to defence and defence to the 1st defendant counterclaim dated 07.11.2025. By his reply, the plaintis joined issue with the 1st defendant on his defence and reiterated the contents of the plaint. By their defence to counterclaim, the Plaintis denied the contents of the counterclaim and denied that they had failed to complete payment of the purchase price. 12. The plaintis maintained that the 1st defendant had sold the suit property to them and that they had constructed a church facility thereon valued at 6 million. 13. The plaintis also led reply to defence and defence to the 2nd defendant’s counterclaim dated 12.05.2025. They similarly denied the contents of the defence and reiterated the contents of the plaint. The plaintis denied that the suit property was protected under a Wakf or that they were made aware of any trust aecting the property. 14. In their defence to counterclaim, the plaintis reiterated that the transaction between the 1st and 2nd defendants was a sale and not a lease and that the same could not be rescinded. It was disputed that the 1st defendant had no title to pass to the plaintis at the time the sale agreement of 19.03.2015 was signed. 15. At the trial hereof, the 1st plainti, Pastor Samuel Venant Mwakisha, testied on behalf of the plaintis as the sole witness. The 1st and 2nd defendant also testied on their own behalf by adopting the contents of their respective witness statements as their evidence. 16. The court has considered the pleadings, evidence and documents in this matter. The court is of the view that the following are the main issues for determination herein: a. Whether there was a valid sale agreement between the plaintis and the 1st defendant. b. Whether the 1st defendant was in breach of the said sale agreement. c. Whether the plainti is entitled to the reliefs sought in the plaint. d. Whether the 1st defendant is entitled to the reliefs sought in his counterclaim. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5738/eng@2026-09-17 3

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e. Whether the 2nd defendant is entitled to the reliefs sought in his counterclaim. f. Who shall bear costs of the suit and counterclaim. 17. The court has considered the evidence and submissions on record. The evidence on record shows that the subject property is part of the original sub-division 236/II/MN. The material on record shows that vide an order made by the High Court at Mombasa in HCCC No. 218 of 2001 on 01.11.2001 – In the matter of the Wakf properties of Abdulrahman Bin Ali, the court appointed Ahmed Ali Said and Salwa Ali Said as trustees under the Wakf. The said order was registered against the title of the Wakf properties on 05.12.2001. 18. The plaintis’ claim is based on an alleged sale agreement between the 1st defendant and the 2nd defendant dated 05.05.2005 to which Salwa Ali Said was not party. The court takes the view that where there is more than one trustee in a Wakf, a single trustee cannot unilaterally deal with the Wakf property without reference to the other trustees. The action of the 2nd defendant in purporting to unilaterally lease or sell a portion of subdivision 236/II/MN to the 1st defendant was invalid and null and void for all purposes. He could not pass a good title to the 1st defendant. Similarly, the 1st defendant could not pass a good title to the plaintis’ vide the agreement dated 19.03.2015. 19. The answer to the second issue ows naturally from the court’s nding on the rst one. The court has found that there was no valid sale agreement between the plaintis and the 1st defendant. It would thus follow that the 1st defendant could not be found liable for breach of an invalid agreement which the court has found to be null and void. 20. The court has already found that there was no valid sale agreement between the plaintis and the 1st defendant. The court has also found that there was no breach of the agreement on the part of the 1st defendant. The material on record shows that the court order of 01.11.2001 was clearly registered against the title to the suit property. The extract of title showed that there were two appointed trustees of the Wakf. This information was publicly available as early as 05.12.2001. The material on record shows that when the Plainti commenced construction works on the suit property they were alerted by the location chief vide a letter dated 26.03.2015 that the 2nd defendant had a claim on the property. 21. The court is thus of the opinion that the plaintis are not entitled to any of the reliefs sought in the suit because they not only ignored information available in public documents regarding the status of the property but also because they ignored a warning from the location chief. 22. The court has already found that there was no valid sale or lease agreement between the 1st defendant and the 2nd defendant. As such, the 1st defendant did not obtain any legal interest or right over the suit property. The 1st defendant can only have himself to blame for turning a blind eye to ocial records in his dealing with the 2nd defendant. The court is thus of the opinion that the 1st defendant is not entitled to the reliefs sought in his counterclaim, or any one of them. 23. The court has found that the 2nd Defendants could not validly and legally alienate the suit property through his unilateral action. The suit property still remains the property of the Wakf hence the court is obligated to restore the same to the rightful owner. The court is, however, not inclined to award the 2nd defendant damages for breach of contract against the 1st defendant. As indicated before, the said lease or sale agreement was null and void. The court shall not award the 2nd defendant mesne prots for the same reason. In fact, the material on record indicates that it was the 2nd defendant who misled the 1st defendant to enter into the agreement dated 05.05.2005. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5738/eng@2026-09-17 4

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24. The court is not inclined to grant a permanent restraining injunction against the Plaintis because it would not serve any useful purpose. The actions complained of such as entering, occupying, erecting structures, etc took place long time ago. They cannot be remedied by a restraining injunction which looks to the future or threatened future actions. In the opinion of the court, all that the 2nd defendant requires is a declaration that the Wakf is the legitimate owner of the suit property and an eviction order. 25. Although costs of an action or proceedings are at the discretion of the court, the general rule is that costs shall follow the event. As such, the successful litigant should be awarded costs of an action unless the court orders otherwise for good reason. The court is of the view that the 2nd defendant should not be awarded any costs because he was the author of the unfortunate situation in which the parties found themselves. As such, the court shall order that each party shall bear his own costs. 26. The upshot of the foregoing is that the court nds and holds that the Plaintis have failed to prove their claim against the Defendants on a balance of probabilities. The court also nds that the 1st defendant has failed to prove his counterclaim. However, the court is satised that the 2nd defendant has proved part of his counterclaim and is entitled to some limited reliefs. As a consequence, the court makes the following orders for disposal of the suit and counterclaims: a. The plaintis’ suit against the 1st and 2nd defendants is hereby dismissed. b. The 1st defendant’s counterclaim is hereby dismissed. c. Judgment is hereby entered for the 2nd defendant in the following terms only: d. i. A declaration is hereby made that the original suit property i.e subdivision No. 236/ II/MN and any subdivisions thereof still belong to the Wakf of Ali Bin Said Bin Abdulrahman (deceased). ii. The Plaintis shall hand vacant possession of the portion of suit property they are occupying within 90 days from the date hereof in default of which they shall be forcibly evicted. Each party to the suit shall bear its own costs. It is so decided. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 17TH DAY OF SEPTEMBER 2026 Y. M. ANGIMA JUDGE In the presence of: No appearance for Plainti No appearance for the 1st Defendant Ms. Nduku for the 2nd Defendant Court Assistant: Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5738/eng@2026-09-17 5

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