James Muchiri Waweru & Another v Faith and Hope Properties Kenya Ltd

representatives from occupation and use of the suit property and consequently annul the Sale Agreement entered on 18th January, 2019 between the plaintiffs and the defendant for the purchase of land parcels known as title No. Mavoko town block 3/13128, title No. Mavoko town block 3/13129, title No. Mavoko town block 3/13130, title No. Mavoko town block 3/13131, title No. Mavoko town block 3/13132, title No. Mavoko 3/13133, title No. Mavoko town block 3/13134 and title No. Mavoko town block 3/13135. b) A grant of permanent injunction directed at the defendant restraining it from offering for sale, transfer, constructing, fencing off and or destroying any fixtures on the suit parcels of land known as title No. Mavoko town block 3/13128, title No. Mavoko town block 3/13129, title No. Mavoko town block 3/13130, title No. Mavoko town block 3/13131, title No. Mavoko town block 3/13132, title No. Mavoko 3/13133, title No. Mavoko town block 3/13134 and title No. Mavoko town block 3/13135 (herein referred to as suit properties) 2

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c) Damages for trespass and conversion. d) Costs of this suit. 2. The plaintiffs’ case is that, pursuant to an agreement for sale dated 18th January 2019, they agreed to sell the suit properties to the defendant. The defendant paid a 10% deposit of Kshs. 2,593,750/-. That it was further agreed that upon payment of the deposit, the defendant was to be deemed to have fully settled the purchase price for parcel No. Mavoko town block 3/13134 only, and entitled to vacant possession thereof, while the balance of the purchase price, amounting to Kshs. 23,243,750/-, was to be paid within 120 days from the date of execution of the agreement. That upon payment of the entire purchase price on each independent title, the plaintiffs were to release the relevant completion documents. 3. The plaintiffs averred that the defendant failed to pay the balance of the purchase price within the agreed period. That consequently, they communicated their intention to rescind the agreement through a deed of 3

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intended rescission. They further alleged that despite demand and notice of intention to sue, the defendant failed to remedy the breach, thereby necessitating the filing of the suit. The plaintiffs’ contended that unless restrained, the defendant’s continued occupation and dealings with the suit properties would occasion them substantial prejudice. 4. The defendant filed a statement of defence dated 12 th October 2022 denying the plaintiffs’ claim. The defendant contended that his failure to complete the purchase price was occasioned by the plaintiffs’ breach and lack of cooperation, including their failure to undertake an effective survey. He further asserted that the 10% deposit related to all the suit properties and not merely title No. Mavoko town block 3/13134. According to the defendant, the acreage had been reduced from approximately 12 acres to about 9 acres due to encroachment into road reserves and neighboring properties. The defendant also denied being a party to, or bound by, the alleged rescission agreement. 4

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5. The matter proceeded to hearing by way of viva voce evidence after the parties had complied with Order 11 of the Civil Procedure Rules. The plaintiffs called one witness in support of their case. The defendant, however, did not call any witness, and the defence case was consequently closed. Plaintiffs’ evidence 6. PW1 was James Muchiri Waweru. He adopted his witness statement dated 27th July 2022 as his evidence-in-chief and produced the documents filed alongside the Plaint. He testified that he is the registered proprietor of the eight parcels of land, namely title Nos. Mavoko town block 3/13128 to 3/13135, situated within Machakos County, and produced the respective title deeds in evidence. He stated that he and his spouse, the 2nd plaintiff herein, entered into an agreement for sale with the defendant, which was to be completed within 120 days. That however, the defendant breached the terms of the agreement by paying the deposit four months after the stipulated completion 5 period and thereafter

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continuously failing and/or refusing to pay the balance of the purchase price. 7. PW1 further testified that the defendant declined to execute the deed of rescission and instead proceeded to commence construction on and fence off the suit properties, while denying the plaintiffs and their agents access thereto. He stated that the defendant also proceeded to offer the remaining seven parcels for sale to third parties despite knowing that he had not acquired a good title capable of being transferred to such third parties. He maintained that the defendant’s continued occupation and use of the suit properties was unlawful and urged the court to grant the prayers sought in the plaint. 8. On cross-examination, PW1 confirmed that the parties had entered into an agreement for sale under which the defendant, as purchaser, was required to undertake due diligence and complete payment of the purchase price within the agreed period. He acknowledged receipt of some amount of money from the defendant, but maintained that the defendant 6

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failed to complete payment as agreed. Consequently, he issued a Notice of default and thereafter proceeded to rescind the agreement. 9. PW1 further testified that there were no pre-existing disputes with neighbours as alleged by the defendant and that the defendant had an opportunity to undertake due diligence and verify the properties before entering into the agreement. He acknowledged, however, that there were issues relating to third-party occupation, the acreage of the land and an apparent boundary overlap involving land parcels Mavoko town block 3/2644 and 2645. He maintained that the deposit paid by the defendant entitled it to vacant possession and ownership of only title No. Mavoko Town Block 3/13134 and the remaining seven parcels, which, according to him, remained the plaintiffs’ properties. He relied on the notice of default and rescission and the survey report, and stated that following the rescission, the defendant was entitled to a refund of the monies paid. He maintained that the 7

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contractual period had lapsed and that the agreement had consequently been rescinded. 10.During re-examination, PW1 confirmed that he had transferred title No. Mavoko Town Block 3/13134 to the defendant in accordance with the agreement. He stated that the defendant did Not respond to the Notice of rescission and had never communicated to him that it was experiencing financial difficulties that prevented it from paying the balance of the purchase price. He maintained that the agreement had been validly rescinded. This marked the close of the plaintiffs’ case. 11. The matter was thereafter fixed for hearing of the defendant’s case. However, on the dates scheduled for the defence hearing, the defendant’s counsel was not present to proceed with the case and therefore, the court proceeded to mark the defendant’s case as closed and directed the parties to file written submissions in support of their respective positions. 8

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12. The plaintiffs filed submissions dated 11 th April 2025, which the court has duly considered. The defendant, however, did not file any submissions. Plaintiffs’ submissions 13. The plaintiffs submitted that they entered into an agreement for sale dated 18th January 2019 with the defendant in respect of the suit properties. The defendant paid a 10% deposit of Kshs. 25,937,500/-, which, under clause 2.4 of the agreement, entitled it to possession of only title number Mavoko town block 3/13134. The balance of Kshs. 23,343,750/- was to be paid within 120 days, but the defendant failed to do so. 14.They argued that despite failing to complete the purchase, the defendant proceeded to occupy, subdivide and purport to sell or otherwise deal with the other parcels forming the subject matter of the agreement. The plaintiffs consequently rescinded the agreement on account of the defendant’s fundamental breach. 9

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15. The plaintiffs submit that the defendant’s continued occupation and dealings with the properties were unlawful and amounted to trespass and conversion, since the defendant had no contractual or legal right to occupy or dispose of the parcels for which it had not paid the purchase price. The plaintiffs rely on sections 24 and 25 of the Land registration act and article 40 of the Constitution in asserting their proprietary rights. Relying on the case of Philip Ayaya Aluchio v Crispinus Ngayo [2014] KEHC 7055 (KLR) the plaintiffs submitted that damages may be awarded as long as there is illegal occupation even where there is no actual proof of damage. 16. The plaintiffs further submit that their evidence remained uncontroverted after the defendant failed to attend court for the hearing of its case and its counsel indicated that he No longer had conduct of the matter. They therefore urge the court to accept their evidence and find that they have proved their case on a balance of probabilities. 10

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17. Consequently, the plaintiffs urge the court to find that the defendant breached the agreement, unlawfully occupied and interfered with the suit properties, and subjected the plaintiffs to loss and prejudice, and to enter judgment in their favour as prayed in the plaint. Analysis and determination 18.The court has carefully considered the pleadings, the evidence adduced by plaintiff, the documents produced in evidence, the submissions by the plaintiff and the applicable law. In its view, the following are the issues that arise for determination: a) Whether the defendant breached the agreement for sale of land between itself and the plaintiff b) Whether the plaintiffs validly rescinded the land sale agreement between them and the defendant; c) Whether the plaintiffs are entitled to the orders of permanent injunctions damages for trespass and conversion. 11 and

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d) Who should bear the costs of the suit. 19. The burden to prove a claim, rests on the plaintiff. Sections 107 and 109 of the Evidence Act place the legal and evidential burden upon the person seeking judgment on the basis of particular facts. This burden remains on the plaintiff whether or not the defendant fails to defend the suit or present evidence. 20.Section 107 of the Evidence Act provides that; “(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.’’ 21. Section 109 further provides that 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’’ 12

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22. The Supreme Court restated this principle in Kamau v Karanja & Another (Petition E005 of 2024) [2024] KESC 64 (KLR), where it held: “Sections 107 and 109 of the Evidence Act cast the burden of proof on a party who desired to get a judgment from the court to prove the existence of any legal right or liability and the burden of proof as to any particular fact lay on the person who wished the court to believe in its existence, unless it was provided by law that the proof of that fact lay on any particular person.” 23. The Supreme Court further held that: “Even though the respondents had Not participated in the proceedings, the respondent's absence did not relieve the appellant from proving his claim on a balance of probabilities.” 24. The plaintiffs’ case herein is that the defendant breached the sale agreement. It is not disputed in this case, that against the agreed consideration of Kshs. 23, 343, 750/= for the purchase of eight parcels of land, the defendant only paid the 10% deposit being 13

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the sum of Kshs. 2, 593, 750/=; which was applied towards the purchase price of parcel No. Mavoko Town Block 3/13134. The plaintiff also conceded that they received a further Kshs. 1, 500, 000/=. The completion period was 120 days. No further payment was made. 25. In its defence, the defendant did not deny its failure to pay the entire consideration. It merely blamed the plaintiff for the failure. In the premises, I find and hold that the plaintiff proved that the defendant breached the terms of the parties’ sale agreement. 26. It is my view that material breach of a contract entitles the innocent party the right to rescind the contract. Clause 4 of the sale agreement herein specified that the sale was subject to the Law Society conditions of sale (1989 Edition). 27. The Court of Appeal in Mwaura v Maina & Another (Civil Appeal 550 of 2019) [2026] KECA 298 (KLR) held that where the agreement incorporates the Law Society Conditions of Sale, a 14

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defaulting party may be required to receive the stipulated completion notice before rescission can properly take effect. The Court stated: “Clause 4(7)(b) of the LSK Conditions of Sale requires a defaulting party to be issued with a 21 days’ completion Notice.” 28. On whether the agreement was rescinded, the evidence on record shows that the plaintiff’s counsel wrote a intention dated 29th June rescind the contract, letter to 2020 in indicating view of fundamental breach and default in non-payment of the consideration. Counsel for the defendant responded to the letter. Subsequently the plaintiff wrote a letter dated 1st September 2020, rescinding the contract. A rescission deed was issued to the defendant, the defendant has never shown intention to remedy the breach in respect to the sale agreement. I am therefore satisfied that the plaintiff validly rescinded the sale agreement on the basis of breach of a fundamental term. 15

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29. The plaintiffs are the registered proprietors of the suit property. The statutory protection accorded to a registered proprietor is provided under section 24(a) of the Land Registration Act, 2012, which provides that the registration of a person as the proprietor of land vests in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. 30. Section 25(1) further provides that the rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in the Act, and shall be held by the proprietor together with all privileges and appurtenances belonging thereto. 31. Therefore, the plaintiffs being registered owners of the suit property, are entitled to legal protection by grant of injunctions as sought in the plaint. 16

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32. It is trite that trespass is actionable per se without proof of actual damage. (See the case of Philip Ayaya Alucho (supra)). 33. The Court of Appeal in Doshi v Chemutut & 7 others (Civil Appeal E020 of 2023) [2025] KECA 776 (KLR) stated: “Trespass, as stated by this Court in the case of Charles Ogejo Ochieng v Geoffrey Okumu [1995] KECA 169 (KLR), is an injury to a possessory right, and therefore the proper plaintiff in an action of trespass to land is the person who has title to it, or a person who is deemed to have been in possession at the time of the trespass.” 34. The Court of Appeal in Bajaber v Abdulrahman & Another (Civil Appeal 87 of 2019) [2024] KECA 1736 (KLR), considered a claim for conversion and emphasized the necessity of proving ownership of the property alleged to have been converted. The court held: “Without proof of ownership, the tort of conversion could not apply or be proved.” 17

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35. The nature of the tort of conversion was also considered in Kingdom Bank Limited v Muchugia (Commercial Case E,069 of 2024) [2025] KEHC 3367 (KLR), where the court stated: “Conversion is the wrongful possession or disposition of another’s property as if it were one’s own an act or series of acts of willful interference without lawful justification with an item of property in manner inconsistent with another’s right whereby that other person is deprived of the use and possession of the property to an extent as to be inconsistent with the rights of the owner.” 36. The court has considered the fact that the parcels trespassed upon are 7 parcels. The defendant has been in trespass from 2019 to date, a period of 7 years. In view of the size of the land in issue being and the period of the trespass, I am persuaded that the sum of Kshs. 5, 000, 000/= shall be reasonable compensation for damages for trespass. 37. In the end, I find and hold that the plaintiffs have proved their case on the required standard and I 18

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therefore enter judgment for the plaintiffs against the defendant as follows; a) A permanent injunction is hereby issued restraining the defendant, its agents, servants or employees, third parties, and/or representatives from occupation and use of the suit property and consequently this court annuls the Sale Agreement entered on 18th January, 2019 between the plaintiffs and the defendant for the purchase of land parcels kNown as title No. Mavoko town block 3/13128, title No. Mavoko town block 3/13129, title No. Mavoko town block 3/13130, title No. Mavoko town block 3/13131, title No. Mavoko town block 3/13132, title No. Mavoko 3/13133, and title No. Mavoko town block 3/13135. b) A permanent injunction is hereby issued directed at the defendant restraining it from offering for sale, transfer, constructing, fencing off and or destroying any fixtures on the suit parcels of land known as title No. Mavoko town block 3/13128, title No. Mavoko town block 3/13129, title No. Mavoko town block 3/13130, title No. Mavoko town block 3/13131, title No. Mavoko town block 3/13132, title No. Mavoko 3/13133, and title No. Mavoko town block 3/131359. 19

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c) Damages for trespass and conversion are awarded in the sum of Kshs. 5, 000, 000/=. d) Costs of this suit are hereby awarded to the plaintiff. 38. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN MICROSOFT COURT/VIRTUALLY TEAMS VIDEO THROUGH CONFERENCING PLATFORM THIS 23RD DAY OF SEPEMBER 2026 A. NYUKURI JUDGE In the presence of; Mr. Kivuti for defendant Mr. Wambugu for proposed interested parties No appearance for the plaintiff Court Assistant- Delphine 20

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