Wakaba v Kariuki & 3 others

a) An order of perpetual injunction restraining the 1st, 2nd and 4th Defendants, their servants, agents workmen, licensees and persons acting on their behalf from trespassing, selling, entering sub-dividing, encroaching, remaining in, taking disposing of, over, alienating , reclaiming , fencing cultivating, charging, further charging interfering with or harassing the Plaintiff her peaceful entitlement or and possession of title number RUIRU EAST BLOCK 1/215. b) An order of cancellation of the registration and green card made to the 1st, 2nd and 4th Defendants by the 3rd Defendant in respect of land parcel number RUIRU EAST BLOCK 1/215 and all other resultant titles number RUIRU EAST BLOCK 1/6219, 6220, 6223,6224,6225,6226,6227,6228 and 6229 6221,6222, and the registration of the title in respect of the Plaintiff be sustained. c) Costs of this suit. 4. Upon being served with the Plaint and Summons to enter appearance, the 1st and 2nd Defendants filed a Statement of Defence dated 3.11.2017 denying that Kariuki Karanja sold the suit property to Grace Wairimu Gachie or any other person as by 1992, the said Kariuki Karanja had been dead for 3 years. 5. They state that the family of the late Kariuki Karanja had been in occupation of the suit property since the deceased acquired it from GithunguriConsituency Ranching Farmers Company and that the plaintiff had never taken possession thereof. 6. They aver that after completing the succession process in respect of the estate of the late Kariuki Karanja, they were unable to trace the green card for the suit property prompting them to apply for Page 2 of 18

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reconstruction of the same. The said green card did not reflect the name of the plaintiff or one Grace Wambui Gachie. 7. They deny the allegations fraud levelled against them and state that sub-divisions were lawfully done. The 3rd Defendant similarly denied he Plaintiff’s claim. 8. The suit was set down for hearing and parties testified and called their witnesses. predecessor Hon. The plaintiff’s Justice Eboso case proceeded before my while the Defendant’s case proceeded before me. PLAINTIFF’S CASE 9. The Plaintiff testified as the sole witness for her case. She adopted her witness statement dated 2.10.2017 and produced the documents in her list and bundle of documents. 10. In brief her evidence was that she purchased he suit property from one Grace Wairimu Gachie in October 2007 and she was registered as the owner thereof on 15.2.2008. The said Grace Wairimu Gachie in turn purchased the suit property from Kariuki Karanja Deceased in 1992. It was her testimony that sometime in 2010 the 1st Defendant’s brother one Joseph Karanja Kariuki (now deceased) filed Nairobi HCCC No. 859 of 2010 claiming a beneficial interest in the suit property but the case was subsequently dismissed for want of prosecution on 18.3.2015. 11. Upon cross examination she stated that she bought the suit property from Grace Wairimu Gachie at a purchase price of Kshs. 1,200,000/= out of which she paid the sum of Kshs. 400,000 leaving a balance of Kshs. 800,000/= which she never paid. However, she did not produce any sale agreement. Page 3 of 18

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12. It was her evidence that Grace informed her that she purchased the suit property from Kariuki Karanja who had acquired it from Githunguri Constituency Ranching Farmers Company Ltd. She stated that Grace Wairimu Gachie was registered as the owner of the suit property in 1992. 13. Contrary to her written statement where she stated the she had been in occupation of the suit property, she confirmed that she had never taken possession of the suit property as she was prevented from doing so by Joseph Kariuki. 14. She admitted that the green card she had produced did not bear the Land Registrar’s number nor does it have a date to indicate when it was certified. She said she did not call Grace Wairimu as a witness as she claimed that Grace had turned against her and denied selling the suit property to her. 15. Asked about the consent and other transfer documents that she produced, she stated that her advocate obtained the said conveyance documents. DEFENDANTS’ CASE 16. Nancy Wangui Kariuki, the 1st Defendant testified as DW1. She produced the 8 documents in her List of documents as 1 st Defendant’s exhibits 1-8. In cross examination, she stated that the suit property initially belonged to her late father Kariuki Karanja who bought it from Githunguri Constituency Ranching Farmer’s Company. She said her late father did not know Grace Wairimu Gachie. She told the court that her later brother Joseph Kariuki Karanja had sued the plaintiff because she claiming their late father’s land. She denied that her late father had transferred the suit property to the plaintiff because he was known to the Plaintiff’s mother. Page 4 of 18

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17. She pointed out that by the time the suit property was transferred to the Grace Wairimu in 1992, her father had already died. He died in April 1989. It was her evidence that she surrendered the original title in her late father’s name before the suit property was transferred to her. She later sold the suit property to Blessed Shelters Holdings Limited (3rd Defendant). She said she applied for reconstruction of the green card as she was informed that the original green card for the suit property was missing from the records at the Lands Office. 18. Daniel Gitau Kuria who introduced himself as a director and shareholder of Blessed Shelters Holdings Ltd testified as DW2. He adopted his witness statement dated 3.11.2017 as his evidence in chief. He told the court that the 2 nd Defendant purchased the suit property from the 1st Defendant after which they sub-divided it into 11 portions and transferred them to various buyers. 19. He confirmed that before they bought the suit property they conducted due diligence and established that the suit property initially belonged to Kariuki Karanja but was subsequently registered in the name of Nancy Wangui Kariuki. They also visited the suit property and established that it was previously occupied by the late Kariuki Karanja as his grave and that of his wife and son were visible. 20. Robert Mugendi Ngumaba, the Land Registrar, Ruiru testified as DW3. He relied on his witness statement and produced the 43 documents in his list and bundle of documents as the 3 rd Defendant’s exhibits. He informed the court that the suit property was registered in the name of Blessed Shelters Holdings Limited on 24.4.2017 and it had been sub-divided to give rise to new titles being RUIRU EAST BLOCK 1/6219-6229. Page 5 of 18

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21. He testified that land parcel number RUIRU EASTBLOCK 1/215 had never been registered in the name of the Mriram Mwihaki Wakaba (plaintiff) or Grace Wairimu Gachie as they did not have records of such registration in their office. 22. He testified that they had a trail of documents showing that the property was first registered in the name of Kariuki Karanja before it was transferred to Nancy Wangui Kariuki through transmission on 25.2.2017. Nancy then transferred it to Blessed Shelter Holidngs Ltd on 4.4.2017 after which they sub-divided it on 27.4.2017 to give rise to 10 parcels in the names of different people. 23. Upon being shown the green card produced by the plaintiff as Plaintiff’s exhibit 4, he said the signature did not belong to Mr. K.Leitich, the Land Registrar who is alleged to have signed it. He said he did not have any transfer document in the name of Grace Wairimu Gachie. 24. He explained the procedure for reconstruction of a green card which begins with a complaint by the owner of the land that the green card is missing followed by gazettement in the Kenya Gazette. The green card is then reconstructed using the documents in the parcel file. He told the court that the reconstructed green card he produced differed from the green card produced by the plaintiff as the reconstructed one did not have any entries relating to the period between 8.1.92 and 7.5.2009. 25. He testified that they had received the original title registered in the name of Kariuki Karanja on 28.7.1983 and entry no. 4 in the reconstructed green card shows that the transfer by transmission was made to Nancy Wangui Kariuki on 25.2.2017. He explained that had Kariuki Karanja transferred to title to Grace Wairimu Gachie in Page 6 of 18

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1992, the original title in the name of Kariuki Karanja would have been surrendered at that point. 26. He also pointed out the green card that was produced by the plaintiff was not sealed with the seal of the Land Registrar as required. 27. With that evidence, the defendants closed their case after written submissions were filed on behalf of the plaintiff as well as the 1s, 2nd an 3rd Defendants. PLAINTIFF’S SUBMISSIONS 28. In his submissions learned counsel for the Plaintiff summarized the evidence and identified 5 issues for determination namely; i. Did the initial proprietor alienate land parcel number RUIRU BLOCK 1/215 during his lifetime? ii. Did the Plaintiff purchase title number RUIRU BLOCK 1/215 without knowledge of defects in title for reasonable consideration? iii. Did the 1st Defendant have authority to cause transmission of the title in RUIRU BLOCK 1/215 to herself irregularly? iv. Did the 3rd Defendant act in good faith by ordering reconstruction of the diligence? (sic) v. Did the transfer of the original title no. RUIRU BLOCK 1/215 vest a good title to the 2nd defendant? 29. With regard to the first issue, counsel submitted that the initial proprietor one Kariuki Karanja alienated his title to Grace Wairimu Gachie on 8.1.1992. He was of the view that the green card produced by the plaintiff forms the basis of what existed before the Page 7 of 18

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reconstruction of the same. He wondered how the green card could haven been reconstructed without notifying the plaintiff. 30. He submitted that there was no explanation why the proceedings in Nairobi ELC Case No. 359 of 2010 between the Plaintiff and the 1st Defendant’s brother were dismissed for want of prosecution. He maintained that the 1st Defendant was aware that her late father had alienated the suit property. 31. Regarding the second issue, counsel submitted that the plaintiff obtained a good title from Grace Wairimu Gachie as the original registered owner’s title had been extinguished upon transfer of his title to the said Grace Wairimu Gachie on 9.1.1992. 32. Counsel faulted the process of transmission of the title to the 1st Defendant as the Grant she relied on which was issued in Thika CM Succession Cause No. 176 of 2015 was confirmed within a period of 2 months which was irregular. He also wondered how a Grant could have been issued in respect of a title which did belong to the estate of Karanja Kariuki as he had already sold the suit property. He was of the view that the transfer of the title to the 1st defendant was irregular. 33. On the fifth issue counsel submitted that the transfer of the title from the original proprietor to Grace Wairimu Gachie and finally to the Plaintiff was proper and that the plaintiff should be granted the reliefs sought. 1ST AND 2ND DEFENDANTS’ SUBMISSIONS 34. Learned counsel for the 1st and 2nd Defendant filed her submissions dated 16.7.25. She took issue with the Verifying affidavit filed by the Plaintiff pointing out that it had not been properly attested as it was signed in Thika and commissioned by an advocate based in Nairobi. She also highlighted the fact the 1 st Page 8 of 18

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Defendant had erroneously been referred to as Mary Kariuki Wangui instead of Nancy Wangui Kariuki thus creating confusion as to her identity. 35. After summarizing the evidence, she zeroed in on the following issues i. Whether the plaintiff has proved that Grace Wairimu Gachie had any proprietary right that she could legally pass onto the plaintiff from which proprietary right the plaintiff can now claim ownership of the subject parcel of land. ii. Whether the Plaintiff has proved that there was a legally binding contract of sale of land executed between herself and the said Grace Wairimu Gachie. iii. Whether the plaintiff has proved that there were acts of fraud committed by the Defendants as pleaded. 36. On whether Grace Wairimu Gachie obtained title to the suit property from the late Kariuki Karanja which she could pass on to the Plaintiff, counsel submitted that this was not possible as the 1 st defendant adduced evidence to show that Kariuki Karanja died on 16.4.1989 and he could therefore not have sold his land to Grace Wairimu Gachie in 1992. 37. It was counsel’s submission that the Certificate of confirmation of Grant obtained by the 1st defendant in Succession Cause No. 176 of 2015 was proof that Kariuki Karanja died in 1992 and his estate devolved to the 1 st Defendant. Counsel further submitted that since Grace Wairimu Gachie’s title is questionable, she could not have passed a good title to the plaintiff. 38. Turning to the second issue, counsel submitted that the Plaintiff did not produce any sale agreement between herself and Page 9 of 18

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Grace Wairimu contrary to the provisions of Section 3(3) of the Law of Contract Act which requires that a contract for the sale of land be in writing and signed by the parties. 39. She further submitted that the Plaintiff did not produce any evidence of payment nor did she call the said Grace Wairimu as a witness to corroborate her evidence. She relied on Thika ELC Case No. E040 of 2021 Joseph Munji Mbucho & 2 Others v Margaret Wangui Muhia & Another where the Court cited the case of Peter Mbiri Michuki v Samuel Mugo Michuki (2014) eKLR in which the Court of Appeal held as follows: “Section 3(3) of the Law of Contact Act provides that no suit based on a contract for the disposition of an interest in land can be entertained unless the contract is in writing, executed by the parties and attested. Section 3(7) of the Law of Contract Act excludes the application of section 3(3) of the said Act to contracts made before commencement of the subsection . Section (3) of the Law of contract Act came into effect on 1st June 2003.” 40. It was counsel’s submission that the plaintiff had failed to prove that there was a binding contract for the sale of land between herself and Grace Wairimu Gachie as the said contract ought to have been in writing. 41. On the question of fraud counsel submitted that the chain of events leading to the Plaintiff’s title was incomplete. She relied on Muranga ELC Case No. 10 of 2022 Martine Mwai Kimani v Teresia Njeri & 3 Others where the court cited the case of Hubert Martin & 2 Others v Margaret Kamar & 5 Others (2016) eKLR for the proposition that where a court is faced with two or more titles over the same land, it has to make investigations starting from the root Page 10 of 18

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of title in order to determine which title should be upheld. It was her submission that the Plaintiff had failed to prove her root of title. 42. Noting that fraud must not only be pleaded but it must be proved to a standard that is above a balance of probabilities but not beyond reasonable doubt, counsel submitted that in the instant case the plaintiff had failed to prove the particulars of fraud set out in paragraph 16 of her Plaint. 43. It was counsel’ submission that the 1 st and 2nd defendants had rebutted the Plaintiff’s allegations by producing documents to show how they acquired the suit property. They demonstrated that the initial owner of the suit property died in 1989 after which the 1st Defendant obtained a Grant and had the suit property transferred to her by transmission. 44. She refuted the Plaintiff’s assertion that the 1 st Defendant misled the 3rd Defendant to register the suit property in her name when it was already registered in the Plaintiff’s name. 45. Regarding the allegations levelled against the 4th Defendant, counsel submitted that the Plaintiff had not adduced any evidence to demonstrate that the suit property was registered in the 4 th Defendant’s name. 46. Conversely, counsel submitted that the 1 st and 2nd Defendants had produced documents to show how the title moved from Githunguri Constituency Ranching Farmer’s Company Ltd to Kariuki Karanja then to the 1st Defendant and eventually to the 2nd Defendant who subsequently sub-divided the land resulting in land titles no. RUIRU EAST BLOCK 1/6219-6229. Page 11 of 18

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47. On her part, the Principal State Counsel representing the 3rd Defendant submitted on two main issues: i. Whether the purported transfer of the suit property to the Plaintiff was lawful and ii. Whether the Plaintiff demonstrated that the 1st and 2nd defendants knowingly colluded with the 3rd Defendant to erase prior entries and sub-divide the suit property unlawfully. 48. It was her submission that the transfer of the suit property from Kariuki Karanja to the Grace Wairimu Gachie could not have taken place in 1992 as he died in 1989 and no grant of letters of administration had been issued in respect of his estate. She added that if any transfer took place in 1992 then the same was contrary to the provisions of Section 45 of the Law of Succession Act which prohibits intermeddling with the estate of a deceased person. 49. Counsel pointed out that the copy of the green card produced by the Plaintiff was disowned by the Land Registrar who said it was not authentic since it did not bear the date together with the name and signature of the certifying officer. 50. Counsel submitted that if a transfer had been made to Grace Wairimu Gachie by Kariuki Karanja, the original title in his name would have been surrendered to the Lands Office. However, in this case, the original title in the name of Karanja Kariuki was still being held by his family at the time they obtained a Grant of Letters of Administration and the same was only surrendered when the transfer was registered in the name of the 1st Defendant as a beneficiary of the deceased. 51. It was counsel’s submission that the Plaintiff had failed to prove that Kariuki Karanja transferred the suit property to Grace in Page 12 of 18

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order for Grace to transfer the same to her. She relied on the case of Diamond Trust Bank Kenya Ltd v Said Hamud Shamisi & 2 Others (2015) eKLR where the court discussed the principle of nemo dat quod non habet, that a person who does not have title to goods cannot without he owner’s authority or consent sell them and confer a better title than he has. 52. Counsel submitted that the Plaintiff failed to prove the allegations of fraud and collusion against the 1 st, 2nd and 3rd defendants as the green card produced by the 1st Defendant was reconstructed based on the documents contained in the parcel file which were produced by the Land Registrar. ANALYSIS AND DETERMINATION 53. I have carefully considered the pleadings, evidence on record and the submissions filed by the parties. What emerges is that land title no. RUIRU BLOCK 1/215 was initially registered in the name of Kariuki Karanja (now deceased) who obtained the same from Githunguri Constituency Ranching Farmers Company Ltd. What is in dispute is whether the deceased transferred the suit property before he died or whether the transfer took place after his death as both the plaintiff and the 1st Defendant claim to have obtained their titles from the deceased. The issues for determination are therefore as follows: i. Did Kariuki Karanja transfer land title number RUIRU BLOCK 1/215 to Grace Wairimu Gachie during his lifetime? ii. Was the transfer of the suit property to the Plaintiff lawful? iii. Did the 1st defendant obtain a valid title to the suit property? Page 13 of 18

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iv. Did the plaintiff prove that the 1st ,2nd defendants colluded with the 3rd defendant to fraudulently transfer the suit property to the 2nd Defendant? v. Is the Plaintiff entitled to the reliefs sought? 54. It is the plaintiff’s case that the late Kariuki Karanja who was the initial owner of land parcel no. RUIRU BLOCK 1/215 transferred the suit property to Grace Wairimu Gachie in 1992 after which she purchased it from Grace who in turn transferred it to the plaintiff in 2008. However. the plaintiff did not produce any sale agreement or transfer documents between Kariuki Karanja and Grace. 55. To make matters worse, the 1st Defendant who is a daughter of Kariuki Karanja produced Succession documents relating to the estate of Kariuki Karanja in Thika CM Succession Cause No. 176 of 2015 which clearly indicate that he died in 1989. 56. It is therefore the finding of this court that Kariuki Karanja (Deceased) did not transfer the suit property to Grace Wairimu Gachie during his lifetime. 57. I will now move on to determine whether the transfer of the suit property to the Plaintiff was lawful and whether the Plaintiff obtained a valid title to the suit property. 58. The applicable principles are now settled. In Munyu Maina v Hiram Gathitha Maina Civil Appeal No. 239 of 2009 ( 2013) eKLR the Court of Appeal held that where the root of title of registered proprietor is challenged, it is not sufficient to merely dangle the instrument of title as proof of ownership. The proprietor must go beyond the title and demonstrate the legality of its acquisition. See also Muranga ELC Case No. 10 of 2022 Martine Mwai Kimani v Teresia Njeri & 3 Others. Page 14 of 18

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59. The plaintiff testified that she purchased the suit property from Grace Wairimu Gachie in 2007 at a purchase price of Kshs. 1,200,000/= out of which she only paid Kshs. 400,000 and the title was transferred to her. Although she produced a copy of the title deed, letter of Consent of the Land Control Board and evidence of payment of Stamp duty, she did not produce any sale agreement, Transfer Form or any evidence of payment of the purchase price. 60. The gaps in the plaintiff’s evidence call into question the validity of the alleged sale transaction between the Plaintiff and Grace Wairimu Gachie. In particular section 3(3) of the Law of contract Act provides as follows: “No suit shall be brought upon a contract for the disposition of an interest in land unless: a) The contract upon which the suit is founded is i) In writing ii) Signed by all the parties thereto b) The signature of each party signing has been attested by a witness who is present when the contract was signed by such party Provided that this subsection shall not apply to a contract made in the course of public auction by an auctioneer within the meaning of the Auctioneers Act nor shall anything in it affect the creation of a resulting or implied or constructive trust.” 61. It is also telling that even though the plaintiff stated that the said Grace Wairimu Gachie was available, she did not deem it necessary to call her as a witness. But more significantly, the Land Registrar who testified as DW3 stated that the title deed and all the other documents produced by the Plaintiff relating to the transaction between her and Grace Wairimu Gachie did not exist in the records at the Land Registry. He was emphatic that there was no double Page 15 of 18

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registration as the only documents he recognized were the ones that were available in their parcel file. 62. What this means is that the Plaintiff is unable to trace the root of her title and the said title is therefore invalid and unlawful. 63. Turning to the question of fraud and collusion raised by the Plaintiff against the defendants, it is trite law that fraud must not only be specifically pleaded but also distinctly proved, the standard of proof being higher that on a balance of probabilities. Fraud cannot be inferred from mere suspicion, conjecture or inconsistency. See the case of Vijay Morjeria v Nansigh Madhusingh Darbar & Another (2000) eKLR. 64. The Plaintiff’s claim that the 1st Defendant sold the suit property when she did not have any supporting documents was controverted by the 1st Defendant. The 1st Defendant produced a Grant in Thika CM Succession Cause no. 176 of 2015 to show that she was a beneficiary of the estate of Kariuki Karanja (Deceased) and the suit property was transferred to her by way of transmission. 65. Additionally, DW3 confirmed that the 1st Defendant surrendered her late father’s title before she was registered as the owner of the suit property. The validity of the 1 st Defendant’s Grant was never challenged by the Plaintiff during the hearing. 66. Although the Plaintiff insists that the suit property was registered in her name by the time the transfer to the 1 st Defendant was effected, DW3 categorically stated that they did not have any of the documents relied on by the plaintiff in their parcel file. According to him, there was no double registration as the Plaintiff’s title and accompanying green card simply did not exist in their records. Page 16 of 18

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67. This goes to show that the Plaintiff has not only failed to establish any fraud on the part of the 1st and 2nd defendants or collusion between them and the 3 rd Defendant but she has also failed to demonstrate that she has a valid title. 68. In the final analysis, the Plaintiff has filed to prove her case on a balance of probabilities. 69. Before I pen off, it would be remiss of me not comment on the irregularities in the Plaintiff’s pleadings pointed out by counsel for the 1st and 2nd Defendants. The Further Amended plaint which forms the basis of this judgment has a glaring mistake as the 1st Defendant’s first name has been erroneously indicated as Mary instead of Nancy. Whereas this may be viewed as a mere clerical error, it could have serious repercussions as it relates to the identity of the 1st Defendant. Counsel for the Plaintiff ought to have had the error corrected under the provisions of Section 99 of the Civil Procedure Act. 70. As regards the place where the Verifying affidavit in support of the Further Amended Plaint was signed in relation to where it was commissioned, there is an apparent irregularity although I am of the view that this issue ought to have been raised early enough to enable the Plaintiff respond appropriately. In the wider interest of justice, I decline the invitation to strike out the suit on those two grounds. 71. Ultimately, the Plaintiff’s suit is dismissed with costs to the Defendants. Dated, signed and delivered virtually via MS Teams at Malindi this 17th day of September 2026. Page 17 of 18

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J.M ONYANGO JUDGE In the Presence of: Mr. Kereu Benjamin for Mr. Muturi for the Plaintiff Ms Wambui for Mr. Kimaika for the 4th Defendant Ms Waithira Mwangi for the 1st and 2nd Defendants Court Assistant: Happy Page 18 of 18

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