Christopher Tinega Morigori & 68 Others v Board of Management, Kenya African National Farmers & Traders Union (KANTAFU) & Another

PATRICK P.M.M KATUBI………….PLAINTIFF IN THE COUNTERCLAIM JUDGMENT 1. In the interest of clarity, parties will be referred to as per the original suit. In a further amended plaint dated 9 August 2023, the plaintiffs stated that they were members of the Kenya African National Farmers & Traders Union (union) through shareholding or by purchasing shares or plots from the original members. They explained that they paid all necessary fees to acquire a plot, which was Kshs. 7,000 and received properties from the union, took possession, and are still waiting for their title deeds. 2. Back in 2021, the 1st defendant called them to the union’s office. There, they were asked to provide photocopies of their ownership certificates, which were returned with comments showing their plots had been reallocated to new plot numbers. 3. When they inquired about this, they learned that their plots, located at L.R. No. Donyo Sabuk/Komarock Block 1/529 (mother parcel), had allegedly been irregularly allocated to them by officials of the 1st defendant. Allegedly, because the initial purchase by the union (as the buyer) and the 2nd defendant (as the seller) had not been fully paid for. It was confirmed that the mother parcel was still registered in the 2nd defendant’s name. They pleaded that the 1st and 2nd ELC E091 OF 2022 JUDGMENT 2

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defendants colluded and threatened them with eviction if they did not pay the remaining balance of the purchase price. As a result, they sought the following orders.: a. A permanent injunction restraining the defendants, their employees, agents, servants, assignees or any person working under their express and/or implied instructions or authority from interfering with the plaintiffs' quiet possession and occupation in respect of their allotted plots carved out from LR. No. Donyo Sabuk/Komarock Block 1/529. b. An order compelling the defendants to issue title deeds to the plaintiffs in respect of their allotted plots. c. Costs of this suit. 4. In a defence dated 28 March 2023, which mainly consisted of denials and challenged the plaintiffs to prove their case, the 1st defendant described how, in 2021, the 2nd defendant approached them and claimed that he had initially sold L.R. No. Donyo Sabuk/Komarock Block 1/546 (546), a property adjacent to the mother parcel, to the 1st defendant. He also said that when the 1st defendant defaulted, he sold it (546) to a third party. Following these disclosures, the parties held a meeting with the 2nd defendant's representative, Thaddeus Kiio Katuvi ELC E091 OF 2022 JUDGMENT (DW2). During the meeting, they found 3

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discrepancies in the plaintiffs’ documents, including the irregular reallocation of plots in the mother parcel, in which the 1st defendant had no interest whatsoever. 5. Building on these discussions, the 2nd defendant agreed to sell the mother parcel to the 1st defendant, who would then help regularise the plot allocation for its members, including the plaintiffs. However, they also needed to verify membership to ensure everything was in order. It was mentioned that only a few recent temporary developments had taken place on the mother parcel. It urged the court to dismiss the suit. 6. Respecting the 2nd defendant, he filed a defence and counterclaim dated 3 April 2023. It was mostly composed of denials and put the plaintiffs to strict proof. He asserted that during the COVID-19 pandemic, the plaintiffs invaded the mother parcel, and when he confronted them, they claimed they were allottees of the 1st defendant. He also visited the 1st defendant's offices, where the 1st defendant denied any such allocation. 7. He explained that the only connection he has with the 1st defendant is a sale agreement for parcel 546 on 2 November 1995, which was for Kshs. 4,000,000/-. After the 1st defendant breached this agreement, he rescinded it and sold parcel 546 to a third party. He maintained that only a few temporary structures belonging to the plaintiffs exist on the mother ELC E091 OF 2022 JUDGMENT 4

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parcel. He emphasised that he had never sold the mother parcel to the 1st defendant, had not transferred possession, and averred that the plaintiffs were trespassers. He prayed for the following orders: a. A declaration be and is hereby issued that the 2nd defendant is the lawful proprietor of all that parcel of land known as title no. L.R. No. Donyo Sabuk/Komarock Block 1/529. b. An eviction order be and is hereby issued against the plaintiffs, including the additional defendants in them immediately to the counterclaim, directing deliver vacant possession thereof of all that parcel of land known as L.R. No. Donyo Sabuk/Komarock Block 1/529 to the 2nd defendant. c. An order of injunction be and is hereby issued restraining the plaintiffs, including the additional defendants in the counterclaim, themselves, their servants, employees, agents, family members, kin, or any persons acting under their instructions or interests from entering, interfering with the 2nd defendant’s entry, occupation, or possession, or otherwise remaining, from trespassing, dealing, or in entering, any other manner interfering with the 2nd defendant’s ELC E091 OF 2022 JUDGMENT 5

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quiet enjoyment of all that parcel of land known as L.R. No. Donyo Sabuk/Komarock Block 1/529 to the 2nd defendant. d. The officer commanding the police division in the Matungulu Sub-County area does provide security to ensure that orders (b) and (c) hereinabove are complied with. e. Any other relief that this honourable court may deem just and fair to order. f. Costs of the suit. 8. Accordingly, having considered the pleadings and the evidence presented by the parties during the hearing on the merits and the issues outlined in the filed submissions, it is the considered view of this court that the succinct issues for determination are: a) Whether it was proved that an enforceable contract existed between the defendants; b) If (a) is in the affirmative, whether the plaintiffs are members of the 1st defendant and could benefit from the contract; and c) Whether the plaintiffs, including the defendants added in the counterclaim, are trespassers. Having outlined the issues to be decided, this court will now summarise the parties’ evidence on the identified issues. 9. The case proceeded to a hearing on 21 May 2025, at which Kenga Emmanuel Karissa, an expert forensic document ELC E091 OF 2022 JUDGMENT 6

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examiner (PW1), Timothy Mwangi Kimaru (PW2), Fredrick Kinuthia Mwicigi (DW1) and DW2 gave evidence. 10. PW1 produced his forensic examination report dated 31 May 2023 (Pex. 9), which showed that he considered signatures in the 2nd defendant’s verifying affidavit of 3 April 2023 and 3 November 2023, the witness statement of 3 April 2023, and those on an incomplete agreement, a shareholder certificate and a plot ownership certificate, respectively dated 18 October 1993 and 16 May 2022, by the union in the names of Alex Ndubui Kangee and Pauline Njeri Mungai, and a shareholder certificate and a plot ownership certificate by the union in the names in the name of Disciples Temple Ministry, respectively dated 3 May 1995 and 19 December 2017. He stated that all these signatures were from a common origin and were similar and indistinguishable. In other words, they belonged to the 2nd defendant. His evidence was unshaken during crossexamination. 11. PW2, in his testimony, stated that he believed the agreement for sale over the mother parcel, dated 12 September 2022, in clause 18 accommodated an earlier agreement dated 21 June 1994. PW2 produced several documents showing his relationship with the union and the mother parcel. These documents and testimony show that he had been a union member since 1994 and had been allocated plot nos. 628, 752, and 1302 in phase 2 or 77 before being ELC E091 OF 2022 JUDGMENT 7

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reallocated to plot nos. 57, 59 and 58 within the mother parcel. He stated that these various reallocations, including those of the other plaintiffs, occurred in 2021. 12. He further testified that he did not know where his land was until the union took him to it in 2016, and that only some plaintiffs (not him) occupied the mother parcel. He later contradicted himself, testifying that he occupied his plots in the mother parcel either in 1994 or 2013. Some of the documents he tendered as evidence were from KANTAFU Company Ltd, which is distinct from the union. 13. To substantiate the 48th plaintiff’s position, he tendered various documents showing that she became a union member in 2022 and was reallocated in 2022 from plot no. 2066 in phase (x) 10 to plot no. 121 in the mother parcel. He was at pains to explain how the 48th plaintiff obtained documents from the 1st defendant in 1995, when she was 3 years old. 14. He also presented documents pertaining to the 14th plaintiff, but some of these were not legible. The legible ones revealed that he was a member of the union and was similarly reallocated from plot no. 1941 in phase xi (eleven) to plot no. 65 in the mother parcel on 15 November 2021. Regarding the 23rd plaintiff, his documents showed that he was a member of the union and was reallocated from plot 1260 in another parcel to plot 165 in the mother parcel. All these documents were ELC E091 OF 2022 JUDGMENT 8

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produced as Pex.1. The other plaintiffs did not present an iota of evidence to substantiate their claims. 15. Notably, photographs (Pex. 2) were tendered to demonstrate various developments on the suit land. The official search (Pex. 5) of the mother parcel, conducted on 17 November 2022, demonstrated that the 2nd defendant is the registered owner thereof. He also tendered correspondence from various counsel or parties (Pex. 6-8), importantly, a letter from the 2nd defendant's counsel to the 1st defendant dated 30 November 2022 (Pex. 8) stating that, by an agreement dated 12 September 2022, the 2nd defendant had agreed to sell the mother parcel to the 1st defendant for Kshs. 59,400,000/-, payable by 31 December 2022. It stated that the agreement had been breached for non-payment and that, in default, the 2nd defendant would proceed with eviction. 16. DW1, a secretary of the 1st defendant, stated that at a meeting on 4 October 2022, attended by the occupants and a representative of the 2nd defendant, it was found that the occupants of the mother parcel were second buyers from the original allottees and had been re-allocated from various parcels of land (Phase 7-15) owned by the 1st defendant that were subject to ownership disputes in court. To him, a former official had erroneously allocated plots in the mother parcel to the plaintiffs, as the 1st defendant had no interest in it. Further, an ELC E091 OF 2022 JUDGMENT earlier agreement over 546 between the 9

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defendants on 2 May 1995 (Dex. 1) was breached. This agreement shows that the 2nd defendant never executed it. 17. He stated that following these deliberations, the defendants entered into an agreement dated 12 September 2022 (Dex. 4) to regularise occupancy by paying the purchase price of Kshs. 59,400,000/- through the 2nd defendant's advocate, with a completion period of 90 days from the date of execution. Under clause 18, this agreement revived and amended the agreement dated 21 June 1994. He stated that he needed to verify if the plaintiffs were its members. The witness was evasive during cross-examination about the plaintiffs’ membership with the 1st defendant. 18. From the record, the 2nd defendant had been quite unwell and was represented by DW2, his nephew and caretaker, who produced a copy of the title document for the mother parcel (Dex. 5), showing that the 2nd defendant is the registered owner of the mother parcel. He also relied on Dex. 1 and 4, photographs showing structures on the mother parcel (Dex. 8), and a copy of a green card for 546 (Dex. 9), which showed that the 2nd defendant transferred this land to the alleged purchaser on 25 November 2008 for consideration. He stated that in 1994, he was still in school and that the agreement for sale dated 21 June 1994 had not been tendered to the court. ELC E091 OF 2022 JUDGMENT 10

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19. At the conclusion of the hearing, the court directed the parties to file written submissions, and the plaintiffs’ law firm on record, Ms Eric N. Amati & Co. Advocates, filed their submissions dated 2 June 2026, whereas the defendants’ counsel, to the time of writing this judgment, have not filed theirs despite clear directions from the court on timelines. If they are filed at all, they will be considered filed out of time without further reference to the court. That said, we now address the issues identified earlier in chronological order. a) Whether it was proved that an enforceable contract existed between the defendants 20. This was the crux of the issue for determination, as the plaintiffs’ entitlement to the mother parcel could solely be derived from such an agreement. It was uncontested from the evidence that the 2nd defendant is the lawful owner of the mother parcel. Although the plaintiffs asserted that the 1st defendant reallocated the plots, the defendants denied any contractual relationship between them (defendants) and maintained that the 1st defendant erroneously allocated the mother parcel to the plaintiffs. 21. They further contended that the only agreement in existence between them (defendants) was the one dated 12 September 2022, which aimed to regularise the plaintiffs' illegal occupation. Since the plaintiffs were the ones contending that ELC E091 OF 2022 JUDGMENT 11

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they were lawfully in occupation by virtue of their membership with the 1st defendant, the onus was on them to lead evidence to prove the fact that there existed a contractual relationship between the defendants over the mother parcel, as they bore the burden of proof under Sections 107 and 109 of the Evidence Act, as well as the principles concerning the shifting of the evidential burden. 22. Sections 107 and 109 of the Evidence Act delineate the burden of proof as follows: “107. Burden of proof. (1)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.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 109. Proof of particular fact. 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 that fact shall lie on any particular person.” 23. The Supreme Court of Kenya decision in Munya v The Independent Electoral and Boundaries Commission & 2 ELC E091 OF 2022 JUDGMENT 12

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others [2014] KESC 38 (KLR), paragraph 182, which was relied upon by the learned trial magistrate, held as follows on who bears the burden of proving a fact:“The person who makes such an allegation must lead evidence to prove the fact. She or he bears the initial legal burden of proof which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an alreadydischarged initial burden.” 24. In this case, the plaintiffs never led evidence of a contractual relationship between the defendants. The defendants rebutted the plaintiffs’ lawful occupation and maintained that no contractual relationship ever existed; hence, the regularisation through the agreement dated 12 September 2022, which the 1st defendant breached. 25. Once this rebuttal was advanced, the evidential burden shifted back to the plaintiffs to produce further evidence to controvert the defendants’ evidence, which could have included producing the alleged agreement for sale dated 21 June 1994 that the defendants had revived and amended by the agreement dated 12 September 2022. Unfortunately, they ELC E091 OF 2022 JUDGMENT 13

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did not. In the context of a contract, the word revival is defined by Black’s Law Dictionary, 11th edition, page 1579, as: “The act of restoring the validity or legal force of an expired contract” 26. In the absence of the agreement dated 21 June 1994, which the agreement dated 12 September 2022, in clause 18, affirms was rendered stale, the only existing contract between the defendants is that of 12 September 2022. However, this contract is unenforceable because the 1st defendant breached it by failing to pay the purchase price. 27. Significantly, PW2’s testimony was consistent in asserting that their rights over the mother parcel arose subsequent to reallocation from other parcels of land in the year 2021. In other words, what they acquired from the 1st defendant was not an interest in the mother parcel or the stale contract, but rather in other parcels of land prior to such reallocation. Consequently, this court finds that no enforceable contract exists between the defendants. Guided by the common law doctrine of nemo dat quod non habet, it is also hereby found that the 1st defendant could not reallocate the mother parcel to the plaintiffs, as it could not allocate land it did not own. It also finds that the plaintiff’s suit is for dismissal. This finding renders a determination of issue (b) unnecessary. ELC E091 OF 2022 JUDGMENT 14

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b) Whether the plaintiffs, including the defendants added in the counterclaim, are trespassers. 28. Concerning the tort of trespass, the relevant provisions of the law are contained in the Land Act and the Trespass Act, which specifically stipulate: Section 152A of the Land Act: “A person shall not unlawfully occupy Private, Community or Public Land.” Section 3 (1) of the Trespass Act: “any person who without unreasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on private land without the consent of the occupier thereof shall be guilty of an offence.” 29. Section 2 of the Trespass Act clarifies that private land includes land owned or occupied by anyone under a freehold title, a certificate of ownership, or a lease. Concerning prevailing jurisprudence, the recent Court of Appeal decision in Mohamed v Board of Management Pentrose Community School & another [2026] KECA 501 (KLR) affirms the definition of trespass as follows: ELC E091 OF 2022 JUDGMENT 15

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“24.The textbook Clerk & Lindsell on Torts (21st Edition) at page 1345, specifies that trespass occurs where there is entry onto another person’s land without the consent of the owner or without lawful justification. So that, for trespass to be established, there must be a physical entry onto the land of another, and such entry must be without the permission of the landowner or without any reasonable or lawful excuse. 25.In the case of Church Commissioners for Kenya of the Anglican Church of Kenya vs Wayuga (Civil Appeal 111 of 2018) [2024] KECA 1048 (KLR), this Court held that;“Trespass is described under the Trespass Act Cap 294 to mean “any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof…” 30. The prevailing theme in the definition of trespass is that ownership is not a prerequisite for such a claim. Nevertheless, the assertion of a person holding title to the land takes precedence over competing claims of possession. ELC E091 OF 2022 JUDGMENT 16

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31. Still, the evidential burden rested with the 2nd defendant to prove his claim. In this case, it was undisputed that the 2nd defendant is the registered owner of the mother parcel. It was also undisputed that some of the plaintiffs are in occupation. It was also undisputed that the 2nd defendant did not put them in possession, but the 1st defendant did. Therefore, this court finds that the plaintiffs and all other occupants who claim ownership of the mother parcel from the 1st defendant are in illegal occupation thereof. It also finds that the counterclaim is for allowance. 32. It is well established that trespass is an actionable offence per se, without the need to prove actual damage. Accordingly, having considered the location of the land and the nature of the trespass, the court awards the 2nd defendant Kshs 1,500,00/- as general damages. As the 1st defendant is responsible for the circumstances in which the other parties find themselves, it shall bear the 2nd defendant's costs of the suit and counterclaim. Ultimately, the following disposition is made: a) The plaintiffs’ suit is dismissed. b) A declaration is hereby made that the 2nd defendant is the lawful proprietor of all that parcel of land known as title no. L.R. No. Donyo Sabuk/Komarock Block 1/529. ELC E091 OF 2022 JUDGMENT 17

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c) An order is hereby made that the plaintiffs and/or any other person deriving occupancy from the 1st defendant, whether by themselves, their servants and/or agents, or any other parties claiming under or through them, on L.R. No. Donyo Sabuk/Komarock Block 1/529, do vacate it and, at their own cost, remove any developments therein within 90 days hereof and give the 2nd defendant vacant possession, and in default, the 2nd defendant shall forcibly evict them together with their servants or agents. d) An order restraining person of injunction the plaintiffs deriving defendant, is hereby and/or occupancy including any from issued other the themselves, 1st their servants, employees, agents, family members, kin, or any persons acting under their instructions or interests, from interfering with the 2nd defendant’s entry, occupation, possession, or quiet enjoyment of all that parcel of land known as L.R. No. Donyo Sabuk/Komarock Block 1/529. e) The officer commanding the police division in the Matungulu Sub-County area does provide security to ensure that orders (b) and (c) hereinabove are complied with. ELC E091 OF 2022 JUDGMENT 18

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f) General damages of Kshs. 1,500,000/- is awarded to the 2nd defendant, to be borne by the plaintiffs. g) The 1st defendant shall bear the 2nd defendant’s costs of the suit and counterclaim. Judgment accordingly. Delivered and Dated at Machakos this 29th day of September, 2026. HON. A. Y. KOROSS JUDGE 29.09.2026 Judgment delivered virtually through Microsoft Teams Video Conferencing Platform; In the presence of; Ms. Kanja Court Assistant. Mr. Amati for the plaintiffs. No appearance for 1st defendant. Mr. Mutuku holding brief for Mr. Wanjohi for 2 nd defendant. ELC E091 OF 2022 JUDGMENT 19

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