Ngaruiya v Registered Trustees of Faith Mission Church & 11 others

JUDGMENT Introduction 1. The Plainti, Wilfred Ng’ang’a Ngaruiya, instituted this suit by way of a Plaint dated 13th December 2016 and led in this Court on 14th December 2016. With leave of the Court, the Plainti subsequently led a Further Amended Plaint on 6th April 2023. 2. The Plainti's case, as pleaded in the Further Amended Plaint and articulated in his witness statement and evidence before the Court, is that he is the registered proprietor of L.R. No. 12715/155, measuring approximately 2.023 hectares and situated in Machakos District. He states that he acquired the property through his membership in Syokimau Farm Limited in the late 1980s and was registered as proprietor on 8th June 1993 under Grant I.R. No. 44490. 3. The Plainti avers that he became a member of Syokimau Farm Limited in 1989, paid the requisite amounts and was allocated the suit property. He states that he was issued with a share certicate and allotment documents which he surrendered in June 1990 in the course of the registration process. 4. The Plainti further avers that he remained the registered proprietor of the suit property and continued paying land rent and rates. In early 2012, he discovered that the 8th Defendant, Mosica Properties Limited, was asserting an interest in the property through the 9th Defendant, Mwangangi Mutula Mutua. 5. The Plainti states that he has not sold, transferred or in any way dealt with the suit property for the benet of the 9th Defendant or any of the other Defendants. He says that he has never met the 9th Defendant, has never received any consideration from him and has never signed any document which involves the transfer of the suit property. 6. The Plainti argues that the 9th Defendant therefore had no valid proprietary interest which could be transferred to the 8th Defendant; he also submits that since the 8th Defendant had no valid interest, he had no authority to subdivide the property and sell parts of it to the other Defendants. 7. Based on the foregoing, the Plainti seeks the following reliefs: a. A declaration that the sale transaction of Land Reference No. 12715/155 between the 8th, 9th and 10th Defendants and any subsequent sale transaction between the 8th Defendant and any other parties of the suit property including the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 11th Defendants was fraudulent, illegal and of no legal eect. b. A declaration that the copy of Title in the name of the 9th Defendant is clearly suspect and invalid. c. A declaration that the Plainti is entitled to ownership and exclusive use, occupation and vacant possession of Land Reference No. 12715/155 to the exclusion of the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 11th Defendants or any person claiming for himself or through any one of them. d. An order of eviction be issued against the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 11th Defendants or any of them, their servants, agents and/or others claiming through them and occupying the land known as Land Reference No. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 2

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12715/155 and that such Order be eected under the supervision of the Ocer Commanding Station Mavoko Police Station. e. The 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 11th Defendants and any other person trespassing on the property known as Land Reference No. 12715/155 jointly and severally by themselves, their servants or agents and others claiming through them be restrained by a permanent injunction from entering, remaining upon, using, dealing with or otherwise transacting upon Land Reference No. 12715/155 or any other title interest derived therefrom. f. An award for Compensation for violation of Article 40 of the Constitution. g. Mesne Prots. h. Costs of the suit and interest thereon. i. Such other or alternative remedy as this Honourable Court may deem apt to grant. The Defendants' Case 8. The 1st, 3rd, 5th, 7th and 11th Defendants opposed the suit. They subsequently led a Counterclaim dated 1st November 2023. Their case is that they purchased portions of the property for value from the 8th Defendant and that they were bona de purchasers without notice of any defect in the title upon which the 8th Defendant relied. 9. The case advanced by the 1st, 3rd, 5th, 6th, 7th and 11th Defendants was that they were purchasers for value who acquired their respective portions from the 8th Defendant after undertaking what they considered necessary due diligence. They stated that they were shown the title held in the name of the 9th Defendant, together with other documents relating to the property, and that they purchased their respective portions in reliance upon those documents. 10. The Defendants questioned the Plainti's title and doubted the way in which it came about. In support of their position they referred to the reconstructed registry records and said that the Plainti had not adequately shown the origin of his title. They also stated that they had acted in good faith and had not been aware of any competing claim. Counterclaim 11. By the Counterclaim, the said Defendants challenge the Plainti's title and seek, among other reliefs: a. A declaration be and is hereby issued that the 1st, 3rd, 5th, 7th and 11th Defendants are innocent purchasers for value who had no notice of any fraud at the material time of purchase of their portions of land from land parcel number 12715/155; b. A declaration that the transfer of L.R. No. 12715/155 to the names of the Plainti by the 12th Defendant is unlawful and fraudulent and an order for the cancellation of the said title deed; c. A declaration be and is hereby issued that the Plainti, Mr. Wilfred Ng'ang'a Ngaruiya, acquired the parcel of land known as L.R. No. 12715/155 either illegally, unprocedurally or through a corrupt scheme; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 3

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d. An order be and is hereby issued directed to the 12th Defendant to cancel from its register the title of all that land known as L.R. No. 12715/155 in the name of Mr. Wilfred Ng'ang'a Ngaruiya and have the same issued to its rightful owners for purposes of registering transfers and issuing titles to the 1st, 3rd, 5th, 7th and 11th Defendants; e. A permanent injunction be issued, restraining the Plainti whether by himself, his agents and/or servants from trespassing on, wasting, constructing on, alienating or otherwise interfering or dealing with the 1st, 3rd, 5th, 7th and 11th Defendants' property and right of occupation, quiet possession and use of all that parcel of land described as title number 12715/155 located in Machakos District; f. Mesne prots; g. The cost of the suit. The 2nd, 4th 9th and 12th Defendants 12. The 2nd and 4th Defendants executed a Consent dated 9th March 2017 relinquishing their respective claims to the suit property and did not participate further in the trial. The 9th Defendant entered appearance, but neither led a Defence nor adduced evidence before his death, and no legal representative of his estate was substituted. 13. The 12th Defendant did not le a Defence or call a witness on its own behalf. However, a Land Registrar subsequently testied pursuant to summons issued at the instance of the Defendants. The Plainti's Reply to Defence and Defence to Counterclaim 14. In his Replies to the Defences and Defence to Counterclaim, the Plainti joined issue with the Defendants and maintained that neither the 9th nor the 8th Defendant acquired any lawful interest in the suit property capable of transmission to the purchasing Defendants. The Evidence The Plainti ’s Evidence 15. The Plainti called two witnesses, Wilfred Ng’ang’a Ngaruiya (PW1) and Mungai Ngaruiya (PW2), who both testied on 5th November 2019. 16. The Plainti, Wilfred Ng’ang’a Ngaruiya, testied as PW1. He adopted his witness statement dated 25th October 2018 as his evidence in chief and relied on the documents led on 14th December 2016 and the supplementary list of documents led on 29th October 2018. The documents led on 14th December 2016 were produced as Plainti’s Exhibits 1 to 13, while the Gazette Notices were produced as Plainti’s Exhibits 14, 15 and 16. 17. PW1 testied that he became a member of Syokimau Farm Limited in 1989 upon paying Kshs. 2,505 for a share. He was issued with a share certicate and a letter of allotment. Following the subdivision of the company’s land and the publication of Gazette Notices dated 6th January 1989 and 23rd November 1990, he surrendered the share certicate and letter of allotment in June 1990 as part of the process leading to the issuance of his individual title. He stated that Grant No. I.R. 44490 was subsequently issued to him on 8th June 1993. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 4

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18. PW1 produced among other documents the original title No. LR No. 12715/155 for the suit property (Plainti Exhibit 1). He testied that the Defendants had entered and occupied the property and that, despite demands through his advocates, they failed to vacate. He stated that their occupation had prevented him from enjoying and developing the property. 19. In cross-examination, PW1 acknowledged that he did not have a sale agreement for the original purchase of his share in Syokimau Farm Limited or evidence establishing the value of the share. He conrmed that he had been issued with a letter of allotment, which he subsequently surrendered to the company. He stated that investigations had been undertaken concerning the transactions relating to the property and that some persons had been charged. However, he did not have a copy of the charge sheet. He maintained that he had undertaken due diligence before acquiring his interest and had veried the existence of Syokimau Farm Limited. 20. PW1 further testied that he rst became aware of attempts by other persons to enter upon the property in early 2012. He reported the matter to the Criminal Investigations Department and stated that he had fenced the property. When he inquired of persons developing it, he was informed that they had purchased the land from another person. His investigations led him to Mosica Properties Limited, which, according to him, had purported to sell portions of the property to the Defendants. PW1 maintained that the title relied upon in support of those transactions was a forgery and that the Ministry of Lands had conrmed that position. 21. In re-examination, PW1 referred to a letter dated 2nd October 2014 from the Lands Oce concerning the status of the property. He further stated that he had continued to pay land rent and rates in respect of the suit property. 22. Mungai Ngaruiya testied as PW2. He stated that he is the Plainti’s brother and business partner and had known the circumstances surrounding the acquisition of the suit property. He adopted his witness statement dated 25th October 2018. He testied that the property had subsequently been dealt with by persons who relied upon a title allegedly held by Mwangangi Mutula. PW2 maintained that the title relied upon in those transactions was not valid and that the Land Registrar had conrmed that the Plainti was the registered proprietor. 23. PW2 explained the process through which members of Syokimau Farm Limited acquired individual titles. He stated that, in the early stages, members were issued with share certicates and letters of allotment and that individual titles were subsequently processed. He referred to Gazette Notices (Plainti Exhibits 14-15) calling upon members to collect their titles upon surrendering their share certicates and letters of allotment. He stated that he and the Plainti had acquired other plots in the area through the same process. 24. In cross-examination, PW2 identied the letter from the Land Registrar which, according to him, conrmed the validity of the Plainti’s title. He testied that the registry le relating to the suit property had been lost and was subsequently reconstructed. He stated that he had encountered similar reconstruction processes in respect of other properties. He further testied that he made inquiries at the Survey of Kenya and obtained a copy of the Deed Plan relating to L.R. No. 12715/155, which, according to him, did not disclose any subdivision of the property. The Defendants’ Evidence 25. The Defendants called ve witnesses. Josphat Mutinda Mutuku (DW1) and Harun Ngugi Ndung’u (DW2) testied on 4th November 2024, Joseph Waweru Chege (DW3) and Fabian Chimakati (DW4) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 5

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testied on 15th June 2026, while George Gichere Gitonga (DW5), a Land Registrar, testied on 29th June 2026. 26. Josphat Mutinda Mutuku, the 11th Defendant, testied as DW1. He described himself as a Quantity Surveyor and Arbitrator. He adopted his witness statement dated 4th December 2018 as his evidencein-chief. He produced a Letter of Allotment (Defence Exhibit No. 2) issued by Mosica Properties, a Deed Plan relating to L.R. No. 12715/8944, a mutation relating to L.R. No. 12715/155 together with Deed Plan No. 294273 dated 13th February 2009, and receipts dated 2008 and 2009 evidencing payments totalling Kshs. 520,000. 27. DW1 also produced an original title deed for L.R. No. 12715/155 (Defence Exhibit No. 1) issued in the name of Mwangangi Mutula on 8th June 1993. He produced a transfer dated 17th May 1993 said to have been executed between Syokimau Farm Limited and Mwangangi Mutula, (Defence Exhibit 2) a Power of Attorney dated 12th June 2008 between Mwangangi Mutula and Joseph Maweu Chegu (Defence Exhibit 3) and a sale agreement dated 10th June 2008 between Mwangangi Mutula and Mosica Properties (Defence Exhibit 4). 28. In cross-examination, DW1 stated that he had purchased his interest from Mosica Properties Limited. He acknowledged that Mosica Properties did not itself hold a title to the property. His search had disclosed Mwangangi Mutula as the registered proprietor. He stated that he had undertaken due diligence, inspected the property and found it vacant. After paying the purchase price, he submitted his photograph and paid the transfer charges. 29. DW1 acknowledged that the sale agreement between Mosica Properties and the vendor was not witnessed on the page bearing the vendor’s signature and that the purchaser’s signature was similarly unwitnessed. He further acknowledged that the agreement had not been stamped or franked at the lands oce. He stated that he had been unaware of those requirements. He nevertheless maintained that he had not relied solely on the sale agreement but had also relied upon the Power of Attorney. He acknowledged that he did not hold a title to his portion of the property and that the property had not been transferred to him. 30. In further cross-examination, DW1 acknowledged that the Power of Attorney did not contain an acknowledgement by the Land Registrar. He maintained that the sale agreement was binding and relied on the transfer said to have been executed between Syokimau Farm Limited and Mwangangi Mutula. 31. In re-examination, DW1 stated that the Ministry of Lands stamped and endorsed the Power of Attorney. He maintained that the agreement between Mwangangi Mutula and Mosica Properties evidenced the parties’ intention to transact. He stated that, from 2009, the purchasers had followed up with the directors of Mosica Properties for issuance of titles. According to him, the title in Mwangangi Mutula’s name subsequently disappeared from the lands oce, which was why registration had not been completed. He nevertheless conrmed that the search he did showed Mwangangi Mutula as the registered proprietor. 32. Harun Ngugi Ndungu, the 5th Defendant, testied as DW2. He stated that he resided on the suit property, which he identied as Plot No. 12 within L.R. No. 12715/155. He adopted his witness statement dated 10th July 2023, led on 2nd November 2023. He produced a Letter of Allotment dated June 2008 issued by Mosica Properties, (Defence Exhibit 5), building approvals and receipts relating to approvals, rates and other payments. He testied that he had never received a title to the property. According to him, he had submitted his documents to Mosica Properties, which informed the purchasers that the titles were being processed until 2016, when he was informed that he had trespassed upon the property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 6

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33. In cross-examination, DW2 stated that he purchased the property in 2008 and commenced construction in 2010. He stated that his occupation had not been interrupted until the present dispute arose. He testied that he had undertaken due diligence before purchasing the property and had not previously known the Plainti. He stated that Mosica Properties had shown him a title in the name of Mwangangi Mutula, although he had never met or dealt with Mwangangi Mutula. 34. DW2 acknowledged that he had occupied the property since 2010. He further acknowledged that a rates clearance certicate dated 3rd December 2010 was issued in the name of Wilfred Ng’ang’a Ngaruiya and that some of the receipts for rates and rent reected payment by Ngaruiya Wilfred. He nevertheless conrmed that he did not have a title to the property. 35. DW2 further testied that, when he applied for building approval, he was required to produce a title. The title he used was in Mwangangi Mutula’s name. He stated that he used Mwangangi Mutula’s name to obtain approvals and pay rates, although the building approvals were issued in his name. He maintained that Mosica Properties had purchased the property from Mwangangi Mutula and that his own agreement was with the donee of the Power of Attorney. He acknowledged that he had been occupying the property without a title. 36. Joseph Waweru Chege testied as DW3 on behalf of the 8th and 10th Defendants. He stated that he was a director of Mosika Property and adopted his witness statement dated 23rd August 2017. He relied on the documents contained in the bundle dated 10th December 2019. He testied that Mosika Property had purchased the property from Mwangangi Mutula pursuant to an agreement dated 25th October 2007 at a consideration of Kshs. 6.5 million. 37. DW3 testied that the search undertaken by Mosika Property showed Mwangangi Mutula as the registered proprietor. They obtained documents said to evidence the transfer from Syokimau Farm Limited to Mwangangi Mutula and understood that the registration had taken place on 8th June 1993. He acknowledged that he was aware that the Plainti also claimed to have received a transfer from Syokimau Farm Limited, although he had not seen the Plainti’s transfer document. 38. DW3 stated that the purchase price was payable by way of a deposit of Kshs. One million followed by nine instalments and that the balance was eventually cleared. He testied that Mwangangi Mutula had executed a power of attorney in his favour to enable Mosika Property to register the property in favour of its clients. He stated that title was never issued in his name. According to him, after the agreement was entered into, the property was subdivided and transfer documents were submitted to Ardhi House for issuance of sub-titles. The original documents remained at Ardhi House. He stated that, in 2011, an investigating ocer visited their oce and sought the documents. They informed the ocer that the documents were at Ardhi House. He further stated that, following the investigations, he was not charged with an oence relating to fraud. 39. In cross-examination, DW3 stated that he was appearing in his personal capacity and on behalf of Mosika Property. He acknowledged that Mosika Property was not duly registered and did not hold a licence. He maintained that due diligence had been undertaken but acknowledged that they had not obtained the green card or established whether Mwangangi Mutula was a member of Syokimau Farm Limited. He stated that Masika Property subdivided the property into 34 plots and allocated all of them. He estimated that the plots were sold for between Kshs. 350,000 and Kshs. 400,000 each and that approximately Kshs. 9 million had been realized from the sales. 40. DW3 further acknowledged that the signatures on the agreement produced as Defence Exhibit 5 were not witnessed and that the rst page was not franked. He did not produce evidence of payment of the purchase price. He conrmed that the Power of Attorney was issued to Joseph Chege personally and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 7

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not to Mosika Property. He stated that the documents submitted to Ardhi House were returned in 2017. 41. DW3 referred to the letter dated 2nd October 2014 from the Chief Land Registrar. He acknowledged that the letter stated that the Plainti held a valid title and that the title relied upon in the name of Mwangangi Mutula was suspect. He stated that he was unaware of any prosecution arising from the alleged fraud. He maintained that Masika Property had purchased the property in 2007, that title had not been transferred, and that several purchasers had constructed on the property while awaiting issuance of titles. 42. In further cross-examination, DW3 conrmed that Mosika Property sold portions of L.R. No. 12715/155 to the 1st, 3rd, 5th, 6th, 7th and 11th Defendants. He stated that Mosika Property had advertised the property in newspapers and had received the full purchase price from the purchasers. He acknowledged that the purchasers were given copies of the title and transfer documents relating to Mwangangi Mutula. He maintained that the Plainti was not in occupation and that the purchasers were innocent purchasers without notice of fraud. 43. Fabian Chimakati, the 7th Defendant, testied as DW4. He stated that he had constructed a ve-bedroom house on the suit property after purchasing it from Mosika Property Limited. He acknowledged that Mosika Property did not produce a title in its own name. The title shown to him was in the name of Mwangangi Mutula, together with the Power of Attorney issued to Joseph Chege. He stated that he had met Mwangangi Mutula once and had undertaken due diligence before purchasing the property. 44. DW4 stated that the purchase price was Kshs. 300,000 and that a further Kshs. 25,000 was paid for the title deed. He acknowledged that he did not ascertain whether the purchase price was remitted to the registered proprietor. He stated that he obtained a rates clearance certicate but had never received a title deed. 45. DW4 acknowledged that the rates clearance certicate produced by the Plainti was issued in the Plainti’s name. He stated that he had never been summoned and had not faced criminal proceedings concerning the suit property. 46. In cross-examination, DW4 stated that, when he rst visited the property, two persons had already constructed thereon. He nevertheless stated that his due diligence had not disclosed documents in the Plainti’s name. He relied on approvals issued by the Municipal Council of Mavoko and stated that he had not received any complaint concerning the property until 2016. He had occupied the house since 2011. Evidence of the Land Registrar 47. George Gichere Gitonga, a Land Registrar in the oce of the Chief Land Registrar, Nairobi, testied as DW5. His evidence concerned the ocial land records relating to L.R. No. 12715/155, Grant I.R. No. 44490. He conrmed that the registry le relating to the property had been lost or misplaced and that the matter had been the subject of investigations by the Directorate of Criminal Investigations. 48. DW5 explained the documents ordinarily required for registration of a transfer, including the transfer instrument, original title, sale agreement, clearance certicates, consent where applicable, evidence of payment of stamp duty, valuation documents, identication documents and passport photographs. He was referred to the documents contained in the bundle relied upon by the 8th and 10th Defendants, including a search, the alleged transfer instrument, rates clearance documents, the Deed Plan and documents said to evidence payment of stamp duty. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 8

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49. In cross-examination, DW5 stated that he was the custodian of the land registry records and was competent to testify on the registered ownership of the suit property. He conrmed that, according to the records held by the lands oce, the registered proprietor of L.R. No. 12715/155 as at 26th June 2026 was the Plainti, Wilfred Ng’ang’a Ngaruiya. He stated that a search conducted on that date conrmed that the property had been transferred to the Plainti on 8th June 1993. 50. DW5 was shown the Plainti’s original title, which he conrmed corresponded with the registry records. He testied that, according to those records, the Plainti had not transferred the property to any other person and that the property had never been subdivided. He explained that the registry le had disappeared around 10th November 2014. Following the prescribed process, a Gazette Notice dated 12th June 2015, Gazette Notice No. 4300, was issued in respect of reconstruction of the lost or destroyed register. The le was subsequently reconstructed. DW5 conrmed that the reconstructed le reected the Plainti as the registered proprietor. 51. DW5 was also referred to the letter dated 2nd October 2014 produced by the Plainti. He conrmed that the letter originated from the oce of the Chief Land Registrar. It indicated that the title relied upon in the name of Mwangangi Mutula was suspect, while the Plainti’s title was valid. DW5 further testied that the registry records did not disclose any registration in the name of Mwangangi Mutula, Mosica Properties subsequent to the Plainti’s registration. According to the records, Syokimau Farm Limited was the original proprietor and transferred the property to the Plainti, who remained the registered proprietor. 52. DW5 was shown the rates clearance certicates produced by the Plainti. He conrmed that they were issued in the Plainti’s name and were consistent with the registry records. He maintained that, according to the records available at the lands oce, the Plainti remained the registered proprietor of the suit property. 53. In cross-examination, DW5 conrmed that payment of stamp duty is ordinarily required in connection with a transfer. He stated that he had not seen evidence of payment of stamp duty by the Plainti in the reconstructed le. He nevertheless acknowledged that the documents relied upon by the 8th and 10th Defendants contained evidence said to relate to payment of stamp duty in respect of the alleged transfer to Mwangangi Mutula, including a National Bank of Kenya advice dated 7th July 2009. 54. DW5 explained that, although the documents bearing stamps appeared to evidence a transaction, they were not supported by corresponding entries in the records of the Ministry of Lands. He referred to the stamp appearing on the alleged transfer between Syokimau Farm Limited and Mwangangi Mutula and acknowledged that the original registry le had subsequently been misplaced. His evidence remained that the ocial records presently held by the lands oce reected the Plainti as the registered proprietor of L.R. No. 12715/155. Submissions 55. Upon the close of the parties’ respective cases, the Court directed the parties to le exchange their respective written submissions. Parties led submissions as captured below. The Plainti ’s Submissions 56. The Plainti’s written submissions dated 16th July 2026 were led through N. K. Mugo & Company Advocates. The Plainti submitted that he acquired the suit property from Syokimau Farm Limited and had remained its registered proprietor since 8th June 1993. He relied on his title, the documents https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 9

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relating to his acquisition, land rent and rates records, and the Land Registrar’s evidence conrming his registration and the absence of any registered transfer to the 9th or 8th Defendant. 57. Relying on Sections 107, 108 and 109 of the Evidence Act, Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR) and Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR), the Plainti submitted that the Defendants were required to establish the legality of the 9th Defendant’s acquisition once its root was challenged. He maintained that the documents relied upon by the Defendants were unsupported by the ocial Registry records. 58. The Plainti further submitted that the 8th Defendant acquired no interest capable of subdivision or sale. He argued that the Sale Agreement was unattested contrary to Section 3(3) of the Law of Contract Act, the property was never transferred to the company, and the Power of Attorney was donated to the 10th Defendant personally. Citing Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR) and Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), he invoked the principle that a person cannot convey an interest which he does not possess. 59. On the defence of bona de purchase, the Plainti relied on Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), Katende v Haridar & Company Limited as cited in Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v Attorney General & 4 others [2017] KECA 700 (KLR), and Samuel Kamere v Lands Registrar, Kajiado [2015] KECA 644 (KLR). He contended that the purchasers failed to establish a valid root of title or adequate due diligence, having purchased from an unregistered vendor and never obtained titles to their portions. He maintained that his own title was protected under Section 26(1) of the Land Registration Act. 60. On reliefs, the Plainti sought vacant possession, a permanent injunction and Kshs. 13,600,000 as mesne prots arising from the subdivision and commercial exploitation of the property. He relied on Attorney General v Halal Meat Products Limited [2016] KECA 306 (KLR), Wahonjo v Mogere & another [2023] KEELC 15888 (KLR) and Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah [2016] KEHC 1880 (KLR). 61. He also sought Kshs. 150,000,000 as exemplary damages, relying on Rookes v Barnard [1964] AC 1129, and general damages for violation of his property rights under Article 40 of the Constitution. In that regard, he cited Arnacherry Limited v Attorney General [2014] KEHC 8304 (KLR) and Article 23(3)(e) of the Constitution. He further sought costs under Section 27 of the Civil Procedure Act. The 1st, 3rd, 5th, 6th, 7th and 11th Defendants’ Submissions 62. Through submissions dated 27th July 2026 led by Mwangi Mwangangi & Kyalo Advocates, these Defendants submitted that they purchased their respective portions from the 8th Defendant in 2008 for valuable consideration and after conducting due diligence. They maintained that their ocial search disclosed the 9th Defendant as proprietor and challenged the Plainti’s acquisition and the reliability of the reconstructed Registry le. 63. Relying on Sehmi & another v Tarabana Company Limited & 5 others [2025] KESC 21 (KLR), Katende v Haridar & Company Ltd [2008] 2 EA 173 and Samuel Kamere v Lands Registrar, Kajiado [2015] KECA 644 (KLR) they submitted that they were bona de purchasers for value without notice. They relied on the searches and ownership documents supplied to them, payment of consideration, and their subsequent possession and development of the property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 10

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64. They further submitted that the Plainti had not established a lawful root of title and that his registration was impeachable under Section 26(1)(b) of the Land Registration Act. They relied on Arthi Highway Developers Limited (supra) and Dina Management Limited (supra), arguing that the principle of nemo dat quod non habet operated against the Plainti. They also cited Zebak Limited v Nadem Enterprises Limited [2016] KEHC 4357 (KLR) on the protection of innocent purchasers. 65. The Defendants invoked laches and estoppel, contending that the Plainti delayed in asserting his rights while they occupied and developed the land. They also urged the Court to apply proportionality, considering the homes and places of worship erected on the property and their payment of rates and taxes. They referred to Registered Trustees of Faith Mission Church & 10 others v Ngaruiya [2022] KECA 57 (KLR), concerning an application under Rule 5(2)(b), in which the Court of Appeal found the intended appeal arguable without conclusively determining ownership. 66. They urged the Court to uphold the plea of bona de purchase and grant the Counterclaimants the declarations, cancellation and registration orders, permanent injunction, mesne prots and costs sought in the Counterclaim. The 8th and 10th Defendants’ Submissions 67. The 8th and 10th Defendants led written submissions dated 6th August 2026 through Jumba & Company Advocates. They submitted that each party bore the burden of establishing the validity of the title relied upon under Sections 107, 108 and 109 of the Evidence Act. Citing Hubert L. Martin & 2 others v Margaret J. Kamar & 5 others [2016] KEELC 1092 (KLR), they argued that the Court was required to investigate both competing roots of title. 68. They contended that the Plainti had not established a sucient documentary trail of his acquisition from Syokimau Farm Limited. In support of their own claim, they relied on the transfer to the 9th Defendant, the Sale Agreement dated 25th October 2007, the Power of Attorney, searches, subdivision consents and approvals, and stamp-duty documents. 69. They challenged the Land Registrar’s evidence, emphasising the absence of documents supporting the Plainti’s acquisition, including proof of payment of stamp duty. They submitted that the Registrar had acknowledged the stamps and signatures appearing on their documents. They further argued that the Plainti had not produced a written agreement demonstrating his acquisition in compliance with Section 3(3) of the Law of Contract Act and that a letter of allotment did not suce as a contract for the sale of land. As regards their own Sale Agreement, they disputed the contention that the absence of attestation necessarily rendered it null and void. 70. On fraud, they relied on Kinyanjui Kamau v George Kamau Njoroge [2015] KECA 347 (KLR) and Fanikiwa Limited & 3 others v Sirikwa Squatters Group & 17 others [2023] KESC 105 (KLR), submitting that the Plainti had not strictly proved the pleaded allegations. They also relied on correspondence from the DCI and ODPP concerning the investigations and the decision not to institute criminal proceedings. 71. They opposed the monetary claims, arguing that the Kshs. 150,000,000 sought in submissions was neither properly pleaded nor supported by evidence. They similarly maintained that no evidential basis had been established for general damages or mesne prots. 72. Finally, they submitted that the suit was barred by Section 7 of the Limitation of Actions Act. They relied on the Plainti’s registration in 1993, subdivision consents and approvals dating to 2008, and evidence of occupation from 2010. Citing Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 11

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(KLR), they argued that the Plainti ought reasonably to have discovered the occupation earlier and urged dismissal of the suit with costs. Issues for Determination 73. Having carefully considered the pleadings, the evidence adduced, the written submissions led by the parties and the authorities cited therein, I frame the following issues for determination: a. Whether the Plainti’s suit is barred by Section 7 of the Limitation of Actions Act; b. Whether the Plainti has established his title to L.R. No. 12715/155. c. Whether the Defendants have established a valid competing title or interest in L.R. No. 12715/155 and, if so, whether the same was capable of being transferred to the Defendants. d. Whether the transactions upon which the Defendants rely were fraudulent and illegal and whether the Defendants have established the defence of bona de purchaser for value without notice. e. Whether the Defendants’ Counterclaim is merited. f. Whether the Plainti is entitled to the reliefs sought. Analysis and Determination Whether the Plainti ’s suit is Barred by Section 7 of the Limitation of Actions Act 74. The 8th and 10th Defendants argued that the action brought by the Plainti is precluded by section 7 of the Limitation of Actions Act. The basis of their argument was that the Plainti's right of action arose in 2008, that being the year when the 8th Defendant secured the subdivision consents and approvals for the property in issue. The Plainti disagreed with this claim and stated that it was in 2012 that he became aware of the fraudulent activities relating to the property in question. 75. Section 7 of the Limitation of Actions Act provides: “ 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 rst accrued to some person through whom he claims, to that person.” 76. The question is therefore when the Plainti’s right of action accrued. I have considered the evidence relied upon by the Defendants. The obtaining of subdivision consents and approvals in 2008 does not, on the evidence before me, establish that the Plainti knew of the alleged fraudulent dealings with his property at that time. There is no evidence that he became aware of those approvals in 2008. 77. The Plainti stated that he became aware of the transactions relating to the suit property in early 2012 and then carried out some inquiries before bringing the matter under investigation. That evidence has not been contradicted. DW2 said that he carried out construction on his part in 2010. Nevertheless, even if that evidence is considered to show adverse occupation from 2010, the action was led on 14th December 2016. 78. In a claim founded on fraud, section 26 of the Limitation of Actions Act postpones the running of time until the fraud is discovered or could, with reasonable diligence, have been discovered. On the evidence https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 12

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before me, the Plainti discovered the alleged fraud in 2012. The suit led in 2016 was therefore brought within the prescribed period. 79. I nd that the Plainti’s suit is not barred by section 7 of the Limitation of Actions Act. The contention by the 8th and 10th Defendants accordingly fails. I now turn to the competing claims to title. Whether the Plainti has Established his Proprietary Interest in L.R. No. 12715/155 80. The dispute before Court relates to competing claims to Land Reference No. 12715/155, Grant I.R. No. 44490. The Plainti claims the property by virtue of his registration as proprietor on 8th June 1993. The Defendants’ case rests on a title said to have been issued to Mwangangi Mutula Mutua on the same date and on the subsequent sale and subdivision of the property through Mosica Property Limited. The question is which competing claim establishes a valid and enforceable interest in the suit property. 81. Where a Court is confronted with competing claims to the same parcel of land, it must inquire into the root of the respective claims. The inquiry extends beyond the titles produced before the Court to the process through which each interest was acquired and the chain by which that interest is said to have passed to the person asserting it. 82. This position was stated by the Supreme Court in Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), in the following terms: 83. 93. As held by the Court of Appeal in Munyu Maina v Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR, where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register. 93. To establish whether the appellant is a bona de purchaser for value therefore, we must rst go to the root of the title, right from the rst allotment, as this is the bone of contention in this matter. In Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR) the Court of Appeal stated as follows: “ We state that when a registered proprietor’s root of title is under challenge, it is not sucient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony. We nd that a trust exists in relation to the suit property.” 84. The approach where competing titles are placed before the Court was also considered in Martin & 2 others (Suing as Ocers of the Church of God Prophecy) v Kamar & 5 others [2016] KEELC 1092 (KLR), where the Court stated: “ A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 13

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investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certicate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder. With the nature of case at hand, I will need to embark on investigating the chain of processes that gave rise to the two titles in issue as it is the only way I can determine which of the two titles should be upheld.” 85. The Court further observed: “ No party should take it for granted that simply because they have a title deed or Certicate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.” 86. It is in that context that I turn to the respective claims before the Court. The question is whether the Plainti has established the root of his title and whether the Defendants have established the root of the interest upon which they rely. 87. The burden of proof lies upon the party asserting the existence of a fact. Sections 107, 108 and 109 of the Evidence Act, Cap. 80, place that burden upon the person who seeks judgment based on the existence of facts asserted by him. Section 107(1) provides: “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 88. On evidentiary burden of proof, Sections 109 of the Evidence Act provides as follows: “ 109. 89. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.” I shall therefore look at the evidence relating to the acquisition and registration of L.R. No. 12715/155 and then consider the interest claimed by the Defendants. The Plainti's Root of Title 90. The Plainti's case is that he is the registered proprietor of Land Reference No. 12715/155, Grant I.R. No. 44490. He testied that he became a member of Syokimau Farm Limited in 1989 after paying Kshs. 2,505. He was issued with a share certicate and a letter of allotment. He testied that, pursuant to Gazette Notices issued in relation to the completion of the company's allocation process, he surrendered the share certicate and letter of allotment and was subsequently issued with Grant I.R. No. 44490 in respect of L.R. No. 12715/155 on 8th June 1993. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 14

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91. The Plainti produced the original Grant in Court. He testied that he remained the registered proprietor of the suit property and that he never sold, transferred or otherwise dealt with it in favour of Mwangangi Mutula Mutua or any of the Defendants. He also produced evidence of payment of land rates and rent in respect of the property. 92. PW2 supported the Plainti's evidence and testied about how Syokimau Farm Limited dealt with its members and the process by which members were allocated land and subsequently issued with titles. PW2 testied that he also acquired property through the same process. His evidence was not displaced in cross-examination. 93. The evidence of the Land Registrar is material to the determination of the Plainti's claim. He testied as DW5 that the ocial records relating to L.R. No. 12715/155 show the Plainti as the registered proprietor and that his registration was eected on 8th June 1993. He produced an ocial search dated 26th June 2026 which continued to show the Plainti as the registered proprietor. 94. The evidence of the Land Registrar bears directly on the Plainti’s case. He testied as DW5 that the ocial records relating to L.R. No. 12715/155 show the Plainti as the registered proprietor and that his registration was eected on 8th June 1993. He produced an ocial search dated 26th June 2026 which continued to show the Plainti as the registered proprietor. 95. The Land Registrar further testied that the registry le relating to the suit property had been lost or misplaced and that the register was reconstructed following the publication of Gazette Notice No. 4300 of 12th June 2015. He conrmed that the reconstructed records are available. He stated that those records do not show any transfer by the Plainti to Mwangangi Mutula Mutua or to any other person. They do not show Mwangangi Mutula Mutua as having been registered as proprietor of L.R. No. 12715/155. He further testied that the suit property has never been subdivided. He conrmed that the original Grant produced by the Plainti corresponds with the records held at the Lands Registry. 96. The evidence of the Land Registrar bears directly on the Plainti’s case. The Land Registration Act places upon the Registrar the responsibility of maintaining the register and the documents required to be kept under the Act. Section 9(1) requires the Registrar to maintain the register and such documents in a secure, accessible and reliable form. Section 35 further provides for the evidential status of the records maintained by the Registrar. In particular, section 35(3) provides that every entry or note in or on the register, cadastral map or led plan shall be received in proceedings as conclusive evidence of the matter or transaction that it records. 97. In the present case, DW5 produced and explained the reconstructed records relating to L.R. No. 12715/155. He testied that the registry le had been lost or misplaced and that the register was reconstructed following the publication of Gazette Notice No. 4300 of 12th June 2015. The reconstructed records show the Plainti as the registered proprietor from 8th June 1993. They do not disclose a subsequent transfer to Mwangangi Mutula Mutua or to any other person. 98. The importance of the Registrar’s evidence in a case of competing claims to title was recognised in Gitata v Kaino & 4 others [2024] KEELC 3539 (KLR), where the Court stated: “ It is my view that since there are two competing titles, the evidence of the land registrar who is the custodian of the records relating to land is very vital.” 99. The evidence of DW5 is consistent with the Plainti’s account of his registration. The Plainti produced the original Grant showing his registration on 8th June 1993. The ocial search and the reconstructed registry records continue to show him as proprietor. The records do not disclose a https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 15

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subsequent transfer by him. They do not disclose the registration of Mwangangi Mutula as proprietor or any subdivision of L.R. No. 12715/155. 100. The position emerging from the ocial records is therefore that the Plainti's registration on 8th June 1993 has remained intact. There is no entry showing that he transferred the property, that his registration was cancelled, or that Mwangangi Mutula Mutua was subsequently registered as proprietor. 101. I have considered the matters put to the Plainti in cross-examination concerning the payment of Kshs. 2,505 and the fact that the share certicate and letter of allotment were not produced in Court. He testied that he became a member of Syokimau Farm Limited, was allocated the suit property, surrendered the share documents in the course of obtaining title, and was thereafter issued with the Grant. No evidence was called from Syokimau Farm Limited to contradict that account. There is likewise no evidence from the Lands Registry showing that the Plainti's registration on 8th June 1993 did not occur. 102. The evidence concerning the payment of land rates and rent is also consistent with the Plainti's account. The rates clearance certicate produced in evidence was in his name. The evidence therefore does not present a case of a person asserting ownership solely on the strength of a title document. The Plainti's original Grant, his account of the acquisition of the property, the evidence of PW2 and the ocial records produced by the Land Registrar all point to the same registration. 103. The evidence before the Court establishes that the Plainti was registered as proprietor of L.R. No. 12715/155 on 8th June 1993. The original Grant produced in Court, PW2's evidence, and the records maintained by the Lands Registry support that registration. The register continues to reect the Plainti as proprietor. 104. I have therefore come to the conclusion that the Plainti has established the root of his title to L.R. No. 12715/155. I now turn to the interest asserted by the Defendants. The Defendants’ Root of Title 105. The Defendants’ case is that Mwangangi Mutula Mutua acquired L.R. No. 12715/155 from Syokimau Farm Limited. Their evidence was that a transfer was executed on 17th May 1993 and that Mwangangi Mutula Mutua was thereafter issued with a title in respect of the suit property on 8th June 1993. The subsequent dealings upon which the Defendants rely are founded upon that alleged title. 106. The rst question is whether the alleged transfer from Syokimau Farm Limited to Mwangangi Mutula Mutua has been established. I have considered the document dated 17th May 1993 relied upon as evidence of that transfer. No evidence was called from Syokimau Farm Limited to establish that it transferred L.R. No. 12715/155 to Mwangangi Mutula Mutua. There was also no evidence that Mwangangi Mutula Mutua was a member of Syokimau Farm Limited or that the company had allocated the suit property to him. 107. The Land Registrar's evidence is signicant in this regard. DW5 testied that the ocial records do not show Mwangangi Mutula Mutua as having been registered as proprietor of L.R. No. 12715/155. They do not disclose a transfer from Syokimau Farm Limited to him. The records instead show the Plainti as having been registered as proprietor on 8th June 1993 and continue to show him as proprietor. 108. The Defendants also relied on documents which they contended supported the alleged transaction. DW5 acknowledged that some of those documents contained what purported to be evidence of payment of stamp duty in relation to the alleged transfer. He referred to an advice from the National https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 16

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Bank of Kenya dated 7th July 2009. However, he testied that the alleged payment was not supported by corresponding entries in the Ministry of Lands records. 109. The signicance of that evidence is that the alleged transfer relied upon by the Defendants does not appear in the property's ocial history. No registration of Mwangangi Mutula Mutua followed the alleged transfer. The register continued to show the Plainti as proprietor. 110. I have also considered the evidence of DW3, Joseph Waweru Chege. He testied that he was a director of Mosika Property Limited and that the property was subdivided into 34 plots which were subsequently sold to various persons. He acknowledged that the entity was not duly registered and had no licence to undertake the transactions. He had not obtained the green card relating to the suit property. He could not establish that Mwangangi Mutula Mutua was a member of Syokimau Farm Limited or that the company had allocated the suit property to him. 111. DW3 further testied that Mwangangi Mutula Mutua granted him a Power of Attorney. The Power of Attorney was granted to him personally and not to Mosika Property Limited. He stated that he purchased the property from Mwangangi Mutula Mutua for approximately Kshs. 6.5 million and thereafter sold 34 plots for between Kshs. 350,000 and Kshs. 400,000 each. He did not, however, produce evidence of payment of the alleged purchase price of Kshs. 6.5 million. 112. DW1, Josphat Mutinda Mutuku, testied that he purchased his portion from Mosica Properties Limited. He relied upon a search which showed Mwangangi Mutula Mutua as the registered proprietor. He did not obtain title in his own name, and no transfer was registered in his name. He acknowledged that the sale agreement was not witnessed and had not been stamped or franked. He further acknowledged that the Power of Attorney had not been acknowledged by the Land Registrar. 113. DW2, Harun Ngugi Ndungu, testied that he purchased his portion in 2008 and constructed on it in 2010. He did not obtain a title. He relied upon the title said to have been issued to Mwangangi Mutula Mutua when dealing with the local authorities. He acknowledged that the rates clearance certicate dated 3rd December 2010 was in the Plainti’s name and that some of the receipts reected payment by Wilfred Ngaruiya. 114. DW4, Fabian Chimakati, testied that he purchased his portion from Mosika Limited and constructed a ve-bedroom house thereon. He was shown a title in Mwangangi Mutula Mutua’s name and was informed that Joseph Chege held a Power of Attorney. He paid Kshs. 300,000 together with Kshs. 25,000 in respect of the title. He testied that he took occupation in 2011. He also stated that when he rst visited the property, he found two people who had already constructed thereon. 115. The evidence of these witnesses establishes the transactions through which the Defendants came to claim portions of the suit property. It does not establish the transaction by which Mwangangi Mutula Mutua acquired the property in the rst place. That is where the Defendants’ asserted chain of title begins, and the evidence has not established it. 116. The burden of proving that Mwangangi Mutula Mutua acquired L.R. No. 12715/155 from Syokimau Farm Limited lay upon the Defendants, who asserted that fact. Sections 107 and 109 of the Evidence Act place that burden upon the person who asserts a fact and upon the person who wishes the Court to believe in the existence of that fact. 117. Having considered the evidence, I nd that the Defendants have not established the alleged root of Mwangangi Mutula Mutua’s title. The evidence does not establish that Syokimau Farm Limited allocated or transferred L.R. No. 12715/155 to him. The ocial records do not show his registration as proprietor. They show the Plainti as proprietor from 8th June 1993, and it continues to do so. The https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 17

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subsequent transactions relied upon by the Defendants therefore rest on an interest which has not been shown to have been acquired by Mwangangi Mutula Mutua. 118. I accordingly nd that the title relied upon by the Defendants has no valid root. The alleged acquisition by Mwangangi Mutula Mutua was not proved and the title founded upon that acquisition is therefore defective. Whether the Defendants were Innocent Purchasers for Value 119. The next question is whether the Defendants have established that they were innocent purchasers for value without notice of the Plainti's interest in the suit property. 120. In Sehmi & another v Tarabana Company Limited & 5 others [2025] KESC 21 (KLR) the Supreme Court explained that the element of innocence connotes the exercise of diligence expected of a reasonable purchaser, who must demonstrate that he acted diligently and conducted a reasonable inquiry into the status of the estate or land sought to be purchased. Those principles apply directly here because the purchasing Defendants trace their claims through the 8th Defendant, which was never registered as proprietor and has not been shown to have acquired a lawful proprietary interest. 121. In Samuel Kamere v Lands Registrar, Kajiado [2015] KECA 644 (KLR) the Court of Appeal established that in order to be recognized as a bona de purchaser for value, a person must demonstrate three key elements: rst, that they obtained a valid and legally recognized title; second, that they conducted adequate due diligence to verify the rightful owner from whom they acquired legitimate title; and third, that they paid genuine consideration for the property in question. 122. The burden therefore rests upon the Defendants to establish these matters. I begin with the question whether the persons from whom they derived their interests had a proprietary interest capable of being transferred. 123. I have already found that Mwangangi Mutula Mutua was not shown to have acquired a valid interest in L.R. No. 12715/155 from Syokimau Farm Limited. The ocial records do not show him as a registered proprietor. The Plainti remained the registered proprietor from 8th June 1993. 124. The 8th Defendant could not therefore acquire from Mwangangi Mutula Mutua an interest greater than the interest which Mwangangi Mutula Mutua himself possessed. The subsequent purchasers could likewise acquire no greater interest from the 8th Defendant. 125. The rst question is whether the Defendants acquired a legal estate. I have already found that the evidence does not establish that Mwangangi Mutula Mutua acquired a valid interest in L.R. No. 12715/155 from Syokimau Farm Limited. The ocial records do not show him as a registered proprietor. The Plainti remained the registered proprietor from 8th June 1993. 126. This is the position recognised by the Supreme Court in Dina Management Limited v County Government of Mombasa & 5 Others [supra], where it stated: “ Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible. The rst allocation having been irregularly obtained, H.E. Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co. (1993) Ltd, who in turn could pass to the appellant. Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 18

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property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution. The root of the title having been challenged, as we already noted above, the appellant could not benet from the doctrine of bona de purchaser.” (Emphasis added) 127. I have also considered the Power of Attorney relied upon by the Defendants. It was granted to the 10th Defendant personally and not to Mosica Property Limited. The evidence therefore does not establish the authority under which Mosica Property Limited purported to deal with the suit property. 128. I turn to due diligence. The Defendants relied upon the title said to have been issued in Mwangangi Mutula’s name. They did not, however, establish that he was the registered proprietor of the suit property. The ocial records, as explained by DW5, showed the Plainti as proprietor. The Plainti’s title was therefore capable of verication at the Lands Registry. 129. The evidence concerning the rates clearance certicate is also signicant. DW2 acknowledged that the certicate dated 3rd December 2010 was in the Plainti’s name and that some of the receipts reected payment by Wilfred Ngaruiya. That was information concerning the very property which the Defendants sought to purchase. It called for further inquiry. 130. I have considered the evidence against that standard. The Plainti was registered as proprietor of L.R. No. 12715/155 on 8th June 1993. The ocial records produced by the Land Registrar do not disclose any subsequent transfer by the Plainti. They do not show Mwangangi Mutula Mutua as the registered proprietor of the suit property. The land register therefore does not support the alleged title in his name. 131. The third matter is consideration. I accept that the evidence shows that consideration was paid for the various portions purchased. That, however, does not resolve the matter. Consideration cannot confer upon a purchaser an interest which the vendor did not possess. The evidence does not establish that Mosica Property Limited had a proprietary interest in L.R. No. 12715/155 which it could lawfully convey. 132. The Court of Appeal expressed the consequence in Kemboi v Macharia & 2 others [2025] KECA 1665 (KLR) in the following terms: “ Having established that the appellant's root of title was fundamentally defective, it becomes unnecessary to delve into the remaining issues raised in the appeal. The principle is now rmly settled: a certicate of title cannot cure an unlawful allocation process. A title is merely the end-product of a process, and where that process is tainted, whether through procedural irregularity, fraud, or illegality, then the resultant title is void. No right can ow from nothing. A nullity at inception remains a nullity, No matter how many hands it passes through. In our humble view, the suit property was not available for allocation and alienation to Chomba, therefore the subsequent transfer was equivalent to putting nothing over nothing.” 133. The position in the present case is therefore clear from the evidence. The Plainti’s registered interest was never shown to have been transferred to Mwangangi Mutula Mutua. The Defendants’ purchases were founded upon an interest which he had not been shown to possess and which Mosica Property Limited was not shown to have acquired. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 19

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134. I accordingly nd that the Defendants have not established the requirements for protection as innocent purchasers for value without notice. In particular, they have not established that their vendors possessed a proprietary interest capable of being conveyed. 135. I appreciate the hardship this conclusion may occasion to the purchasing Defendants, who paid valuable consideration in the belief that they were acquiring valid interests in the suit property, but their recourse lies against those who sold or purported to sell the property to them. Whether the Transactions were Fraudulent and Illegal 136. Having found that the Defendants have not established a valid root of title and have not proved the defence of bona de purchaser for value without notice, I turn to the question whether the transactions complained of by the Plainti were fraudulent and illegal. 137. The Plainti pleaded at paragraphs 19 and 20 of the Further Amended Plaint that the purported transfer of the suit property to Mwangangi Mutula Mutua was fraudulent. Fraud in a civil claim must be strictly proved. The standard is higher than a mere balance of probabilities, although it does not require proof beyond reasonable doubt. 138. In R.G. Patel v Lalji Makanji [1957] EA 314, the Court of Appeal established the threshold on the burden of proof required in civil cases founded on fraud when the court observed that, “ There is one preliminary observation which we must make on the learned Judge’s treatment of this evidence: he does not anywhere in the judgment expressly direct himself on the burden of proof or on the standard required. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required…”. 139. I have considered the evidence against that standard. The Plainti was registered as proprietor of L.R. No. 12715/155 on 8th June 1993. The ocial records produced by the Land Registrar do not disclose any subsequent transfer by the Plainti. They do not show Mwangangi Mutula Mutua as the registered proprietor of the suit property. The land register therefore does not support the alleged title in his name. 140. I have also found that the Defendants did not establish that Syokimau Farm Limited allocated or transferred L.R. No. 12715/155 to Mwangangi Mutula Mutua. No evidence was called from the company to establish that transaction. The evidence instead shows that the Plainti was the person allocated the property and registered as proprietor on 8th June 1993. 141. The evidence further established material irregularities in the documents the Defendants relied upon. The Power of Attorney was granted to the 10th Defendant personally and not to Mosica Property Limited. The sale agreements relied upon by the purchasers were not witnessed and some were neither stamped nor franked. The alleged payment of stamp duty relating to the purported transfer to Mwangangi Mutula Mutua was not supported by corresponding entries in the Ministry of Lands records. 142. I have considered the evidence as a whole. I am satised that the Plainti has proved, to the required standard, that the purported transfer to Mwangangi Mutula Mutua and the subsequent dealings founded upon it were fraudulent and illegal. The transactions did not lawfully divest the Plainti of his registered interest in L.R. No. 12715/155. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 20

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The 1st, 3rd, 5th, 6th, 7th and 11th Defendants’ Counterclaim 143. The 1st, 3rd, 5th, 6th, 7th and 11th Defendants by their Counterclaim sought, among other reliefs, declarations that they were bona de purchasers for value, cancellation of the Plainti’s title, and registration of the suit property in their favour. 144. I have considered the Counterclaim in light of the ndings I have made. I have found that the Plainti was registered as proprietor of L.R. No. 12715/155 on 8th June 1993 and that his registration remains reected in the ocial records. I have further found that the Defendants did not establish that Mwangangi Mutula Mutua acquired the suit property from Syokimau Farm Limited. The subsequent transactions were therefore founded upon an interest which was not shown to have been lawfully acquired. 145. There is consequently no basis for cancellation of the Plainti’s title or registration of the suit property in favour of the Defendants. The Defendants have also failed to establish that they were bona de purchasers for value without notice. 146. Accordingly, the Counterclaim fails and is dismissed. Whether the Plainti is Entitled to the Reliefs Sought 147. The reliefs sought by the Plainti are enumerated in the Further Amended Plaint. I now consider them in turn. 148. Prayer (a) seeks a declaration that the sale transaction relating to L.R. No. 12715/155 between the 8th, 9th and 10th Defendants and the subsequent transactions involving the suit property were fraudulent, illegal and of no legal eect. I have found that the Plainti was registered as proprietor of L.R. No. 12715/155 on 8th June 1993 and that the ocial register does not disclose any lawful transfer of the property to Mwangangi Mutula Mutua or to any of the persons through whom the Defendants claim. I have further found that the Defendants did not establish a lawful root of title. The declaration sought therefore follows from the ndings already made. I accordingly allow prayer (a). 149. Prayer (b) seeks a declaration that the copy of title in the name of the 9th Defendant is suspect and invalid. The evidence of the Land Registrar established that the ocial records do not show the 9th Defendant as having been registered as proprietor of L.R. No. 12715/155 and that the register continues to reect the Plainti as proprietor. The alleged title relied upon by the Defendants is therefore unsupported by the ocial register and cannot confer a lawful interest in the suit property. I accordingly allow prayer (b). 150. Prayer (c) seeks a declaration that the Plainti is entitled to ownership and exclusive use, occupation and vacant possession of L.R. No. 12715/155. Having found that the Plainti is the registered proprietor of the suit property and that the Defendants have not established any lawful interest capable of displacing his title, I am satised that the Plainti is entitled to the protection of his proprietary rights. I accordingly allow prayer (c). 151. Prayer (d) seeks an order of eviction against the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 11th Defendants, their servants, agents and persons claiming through them. The evidence establishes that some of the Defendants purchased portions of the suit property and that some have occupied or developed those portions. It does not, however, establish that each of the Defendants named in this prayer is presently in occupation of the suit property. I therefore decline to issue an order of eviction against persons whose occupation has not been established. Accordingly, I decline Prayer (d) as framed. The Plainti remains https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 21

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at liberty to pursue recovery of possession against any identied unlawful occupant in accordance with the law. 152. Prayer (e) seeks a permanent injunction restraining the Defendants and persons claiming through them from entering upon, remaining on, using, dealing with or otherwise transacting upon L.R. No. 12715/155 or any interest derived therefrom. Having found that the Plainti is the registered proprietor and that the Defendants have not established any lawful interest in the suit property, the Plainti is entitled to protection of his proprietary rights. I accordingly allow prayer (e). 153. Prayer (f) seeks compensation for violation of Article 40 of the Constitution. Article 40(3) provides for compensation in circumstances of compulsory acquisition or compulsory deprivation of property in accordance with the Constitution. The present case concerns an alleged unlawful interference with the Plainti's proprietary interest by private parties. The circumstances established in evidence do not found an award of compensation under that provision. I therefore decline prayer (f). 154. Prayer (g) seeks mesne prots. Although the claim was pleaded, the evidence does not establish the rental value of the suit property, the income allegedly derived from it, or the period and extent of occupation for which mesne prots are claimed. There is therefore no evidential basis upon which the Court can assess an award. I decline prayer (g). 155. Prayer (h) seeks the costs of the suit and interest thereon. The Plainti has substantially succeeded in establishing his claim. I therefore award the Plainti the costs of the suit and the Counterclaim. 156. Prayer (i) seeks such other or alternative remedy as the Court may deem appropriate. I do not consider it necessary to grant any further relief beyond the orders expressly set out below. Final Orders 157. In the result, I enter judgment for the Plainti against the Defendants and make the following orders: a. A declaration is hereby issued that the purported sale transaction relating to L.R. No. 12715/155 between the 8th, 9th and 10th Defendants and the subsequent transactions founded upon the alleged interest of Mwangangi Mutula Mutua were fraudulent and illegal and did not confer any lawful interest in L.R. No. 12715/155. b. A declaration is hereby issued that the alleged title in the name of the 9th Defendant, insofar as it purports to confer an interest in L.R. No. 12715/155, is invalid and incapable of conferring a lawful interest in the suit property. c. A declaration is hereby issued that the Plainti is the lawful proprietor of L.R. No. 12715/155 and is entitled to its exclusive use and occupation. d. A permanent injunction is hereby issued restraining the Defendants, their servants, agents and any persons claiming through them from entering upon, remaining on, using, dealing with or otherwise transacting upon L.R. No. 12715/155 or any interest derived therefrom. e. The prayer for eviction is declined as framed. f. The prayer for compensation for violation of Article 40 of the Constitution is declined. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 22

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g. The prayer for mesne prots is declined. h. The Defendants’ Counterclaim is dismissed. i. The Plainti shall have the costs of the suit and the Counterclaim. Orders accordingly DELIVERED AND DATED AT MACHAKOS THIS 24TH DAY OF SEPTEMBER, 2026. VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM. HON. J. N. KUYIONI JUDGE In the presence of; Catherine Court Assistant. Mr. Jomba for 8th and 10th Defendants. Ms. Wanja for the Plainti. Mr. Mwangi for the 1st, 3rd, 5th, 6th, 7th, and 11th Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5788/eng@2026-09-24 23

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