Bramwel Ligama B. Shitsama v Paul Onyango Kiagi, Chrisant Mulili Kaloki, The County Government of Mombasa, Cecilia Wangari Kihara & LJ Manghnan, Nabhan Swaleh t/a Sachdeva, Nabhan Swaleh Advocates

against the 2nd respondent and also allowed in part the 2nd respondent’s Counterclaim against the appellant. 2. In the original suit filed by the 1st respondent (Onyango) he pleaded that vide a sale agreement dated 04.07.2018 he bought sub-division No. 17034 (original No. 1495/2 Section 1/MN) (the suit property) from the 2nd respondent (Kaloki) for a consideration of Kshs 7,700,000/=. It was pleaded that Kaloki had warranted that he had a good title to the suit property and that it was not on a buffer zone, road reserve or public land and that it was not subject to any threatened legal challenge. 3. The material on record shows that Onyango pleaded further that later on he discovered that the suit property was either in part or in whole a public road after incurring substantial expenses in preparation for construction thereon. It was his case that Kaloki was guilty of fraud, misrepresentation and breach of warranties in consequence whereof he suffered special damages amounting to Kshs 9,436,900. 4. As a result, Onyango sought the following reliefs by original suit: a) A declaration that Plot Subdivision Number 17034 (Original No. 1495/2) Section 1 Mainland North is wholly or partially a public road of access. b) A declaration that the 1st defendant had no good title to pass to the plaintiff over Plot Subdivision No. MOMBASA ELCA NO. E053 of 2024 (JUDGMENT) Page 2

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17034 (Original No. 1495/2) Section 1 Mainland North. c) A declaration that the agreement for sale of Plot Subdivision No. 17034 (Original No. 1495/2) Section 1 Mainland North dated 4/7/2018 between the plaintiff and the 1st defendant and the resultant transfer dated 16/7/2018 is null and void. d) A mandatory injunction compelling the 1st defendant to refund the plaintiff that sum of Kshs. 9,336,900/or part thereof and in default execution to issue. e) Interest in (d) above from 1st September 2018 until payment in full. f) 5. Costs of the suit. The record also shows that Kaloki filed a defence and counterclaim dated 16.01.2019 in response to the original suit. By his defence, he denied all the adverse allegations made against him in the suit. He denied any fraud, misrepresentation, or breach of warranties as pleaded by Onyango and put him to strict proof of his allegations. 6. He pleaded that he had no knowledge that the suit property was either partially or wholly a road reserve at any given time. It was his case that he bought the suit property from one Samwel Ligami Shitsama for a sum of Kshs 5,400,000 vide a sale agreement dated 15.05.2017 MOMBASA ELCA NO. E053 of 2024 (JUDGMENT) Page 3

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7. By his counterclaim in which he joined Bramwel Ligami (Bramwel) and the firm of Sachdeva, Nabhan Swaleh Advocates, he pleaded that Bramwel had impliedly warranted that he had a good title to the suit property and that it was not a buffer zone, road reserve or other public property. Kaloki pleaded that Bramwel was guilty of fraud, misrepresentation and breach of warranty since it turned out that the suit property was part of a road reserve. 8. As a consequence, Kaloki sought the following reliefs in his counterclaim: a) The original suit be dismissed. b) A declaration that the 4th defendant had no good title to pass on sub-division No. 17034 Original No. 1495/2/Section 1 Mainland North and is liable to compensate the Plaintiff in the main suit and or indemnify forthwith the (Plaintiff in Counterclaim) 1 st defendant for any Judgment passed against him. c) A declaration that the 2nd defendant the County Government of Mombasa as the planning authority and trustee of land within the County in charge of approval of development plans and provisions of access to property is liable to compensate the Plaintiff in the suit and or indemnify forthwith the 1 st Defendant (Plaintiff in counter claim) for Judgment passed against him. MOMBASA ELCA NO. E053 of 2024 (JUDGMENT) Page 4 any

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d) A declaration that the 3rd defendant is well served with an access road and should indemnify the 1 st defendant forthwith to any Judgment passed against him. e) A declaration that the 5th defendant Sachdeva, Nabwah Swaleh, connived and or colluded in the sale of the property and are liable to compensate the plaintiff in the main suit and or indemnify forthwith the 1st defendant (Plaintiff is the counterclaim) for any judgment passed against him. 9. Upon a full hearing of the suit the court was satisfied that the suit property was part of a road reserve hence Kaloki had no good title to pass to Onyango. The court also found him liable to refund the entire purchase price together with the expenses incurred by Onyango in preparation for construction. As a result the court granted the following remedies in the original action: a) A declaration is hereby issued that Plot Subdivision Number 17034 (Original No. 1495/2) Section 1 Mainland North is wholly or partially an access road. b) A declaration is hereby issued that the 1 st defendant had no good title to pass to the plaintiff over Subdivision Number 17034 (Original No. 1495/2) Section 1 Mainland North. c) A declaration is hereby issued that the agreement for sale of Plot Subdivision Number 17034 (Original No. 1495/2) Section 1 Mainland North dated 4.7.2018 MOMBASA ELCA NO. E053 of 2024 (JUDGMENT) Page 5

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between the plaintiff and the 1st defendant and the resultant transfer dated 16.7.2028 is null and void. d) A mandatory injunction is hereby issued compelling the 1st defendant to refund the Plaintiff the sum of Ksh.9,336,900 within 90 days from the date hereof in default execution to issue. e) Interest at court rates on (d) above from the date of filing suit until payment in full. f) Costs of the suit with interest thereon at court rates from the date hereof until payment in full. 10. The trial court also found merit in the counterclaim by Kaloki and allowed the same in part against Bramwel in the following terms only: a) A declaration is hereby issued that that the 4 th defendant had no good title to pass to the plaintiff over Subdivision Number 17034 (Original No. 1495/2) Section 1 Mainland North and is liable to compensate the 1st defendant for the Judgment passed against him. b) Costs of the suit and interest thereon at court rates from the date hereof until payment in full. 11. The record further shows that the suit against the rest of the Defendants in the original action was dismissed with costs to be borne by Kaloki. The trial court also dismissed Kaloki’s Counterclaim against the rest of the Defendants with costs to be borne by Bramwel. MOMBASA ELCA NO. E053 of 2024 (JUDGMENT) Page 6

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12. Being dissatisfied with the said Judgment Bramwel file a memorandum of appeal dated 20.12.2024 in Mombasa ELCLA E053 of 2024. He contended that the trial court erred in law and fact in holding that the suit property was part of a road reserve and in holding that he had given some warranties as to the condition of the suit property or its fitness for the intended purpose. 13. Kaloki was similarly aggrieved by the Judgment of the trial court and he filed a memorandum of appeal dated 22.01.2025 and amended on 13.06.2025 in ELCLA E005 of 2025. He contended that the title to the suit property was indefeasible and could only be impeached if the proprietor was party to some fraud. He also faulted the trial court for failing to hold the County Government of Mombasa (the County) liable in the Counterclaim since it was the planning and approving authority under the law. 14. As a result, Kaloki sought the following reliefs in his appeal: a) That the Judgment of the trial court be set aside and in lieu thereof an order be issued dismissing the 1 st respondent’s suit with costs. However, in the alternative the appellant prays for: b) That the order of mandatory injunction compelling the appellants to refund the sum of Kshs.9,336,900 to the 1st respondent be set aside, with all consequential orders as to costs and interest. MOMBASA ELCA NO. E053 of 2024 (JUDGMENT) Page 7

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c) That the order to pay costs by the appellants to 1 st, 2nd, 3rd & 5th Respondents be set aside. d) That there be a declaration that the 2 nd respondent (the County Government of Mombasa) as the planning authority and Trustees of land within the County in charge of approval of development plan and provision of access road be liable to compensate the appellant and the 1st respondent. e) That the 2nd respondent be condemned to pay costs of this appeal and the costs below. 15. When the two appeals were listed for directions it was directed that they shall be consolidated for hearing and disposal. The court also directed that the appeals shall be canvassed through written submissions. The parties were consequently granted timelines within which to file and exchange their respective submissions. The record shows that all the parties in the consolidated appeals filed their respective submissions. 16. The court has considered the material and submissions on record. The court is of the view that there are two main issues for determination herein. The first is whether the suit property was part of a road reserve. The second is whether Bramwel and Kaloki gave any warranties, whether express or implied, that they had a good title to sell. 17. The evidence which was tendered at the trial and which was not controverted by any other credible evidence was that the MOMBASA ELCA NO. E053 of 2024 (JUDGMENT) Page 8

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original owner of Plot No. 1495 subdivided the same into 1495/1 and 1495/2 and that the former was surrendered to the County as a road reserve. There was also credible evidence to show that further sub-division resulted in creation of the suit property which in effect subsumed the surrendered road reserve. There was no evidence before the trial court to show that the second sub-division was ever approved by the County as the planning authority. The court is thus satisfied that a proper analysis of the evidence before the trial court would lead to the inevitable conclusion that the suit property was irregularly or fraudulently created out of a road reserve. 18. The court is further of the opinion that a vendor holding a title document to a parcel which forms part of a public road reserve would have no good title to sell the same. The trial court cannot, therefore, be faulted for holding that both Bramwel and Kaloki had no good title to the property which they could pass to a purchaser for value. The court is not satisfied that Kaloki was an innocent purchaser for value without notice of defect in title. There was no evidence on record to demonstrate that he undertook due diligence besides merely doing a search on the title. 19. The court has perused a copy of the sale agreement dated 04.07.2018 between Kaloki and Onyango. MOMBASA ELCA NO. E053 of 2024 (JUDGMENT) Clause 8 thereof Page 9

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made various warranties as to title to sell and a warranty that the suit property was not on a buffer zone, road reserve or public land. However, the sale agreement between Bramwel and Kaloki does not contain similar warranties. The court is, however, of the opinion where the property the subject of the sale is found to be a road reserve, it does not matter whether the vendor gave any express or implied warranty that he had a good title to the property or that he had the right to sell it. The bottom line is that a vendor who purports to sell part of a road reserve has nothing to sell and such purported sale is liable to be set aside. 20. The court finds absolutely no fault with the finding of the trial court that the two appellants were in breach of fundamental warranties regarding the right to sell the suit property. The court was equally right in holding the appellants liable to refund the purchase price and to pay for the consequential loss. There was no other way of resolving the dispute justly. Every purchaser was entitled to recoup the purchase price paid together with other consequential losses. 21. The court does not agree with the submission by Kaloki that the County should be held entirely liable for the conversion of the road reserve. The County’s position as the planning and approving authority for sub-divisions would not, without more, MOMBASA ELCA NO. E053 of 2024 (JUDGMENT) Page 10

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make it liable. There was no evidence on record to demonstrate that the County participated in the alienation of the road reserve. There was even no credible evidence to demonstrate that it approved the second sub-division which subsumed the road reserve which was surrendered pursuant to the first subdivision. The court finds no sound legal basis for holding the County liable simply because an errant citizen grabbed a road reserve within its area of jurisdiction. As a result, the court finds no error of law or fact on the part of the trial court for not finding the County liable in both the suit and the counterclaim. 22. The upshot of the foregoing is that the court finds no merit in the consolidated appeals. As a consequence, the court makes the following disposal orders: a) The Appellant’s appeal in MSA ELCLA E053 of 2024 is hereby dismissed with costs to the Respondents. b) The Appellant’s appeal in MSA ELCLA E005 of 2025 is hereby dismissed with cost to the Respondents. c) The Judgment of the trial court in Mombasa CM ELC No. 2381 of 2018 dated 10.12.2024 is hereby affirmed. It is so decided. MOMBASA ELCA NO. E053 of 2024 (JUDGMENT) Page 11

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DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 24 TH DAY OF SEPTEMBER 2026 Y. M. ANGIMA JUDGE In the presence of: No appearance for the Appellant Mr. Mkomba for the 1st Respondent Mr. Mwanzia Mark for the 2nd Respondent Ms. Muema for the 3rd Respondent Ms. Mwanzia Aoron for the 4th Respondent No appearance for the 5th Respondent MOMBASA ELCA NO. E053 of 2024 (JUDGMENT) Page 12

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