David Kamau Ndirangu & Another v Ruth Wamuyu Wang'ombe & 3 Others

RUTH WAMUYU WANG’OMBE.……..….…………………..…..1ST DEFENDANT JOHN NGUGI KARANJA………………………………………..…2ND DEFENDANT ALICE NYAMBURA NJAMA…………………………….1st INTERESTED PARTY PATRICK KAMAU NDERITU…………………………2nd INTERESTED PARTY JUDGEMENT. 1. Coming up for determination on Appeal is a matter which was heard and determined by Hon. Abdulqadir Lorot Ramadhan, Chief Magistrate, Naivasha, in Naivasha CMELC case No. 29 of 2016, wherein, upon considering the evidence of both parties, vide his Judgement delivered on 31st October 2025, found that the title to the suit property No. L.R No. Naivasha/Maraigushu Block 7/1268 held by the 1st Plaintiff was obtained fraudulently; hence, he (1st Plaintiff) could not pass a good title to the 1st Interested Party, who could not also pass any title to the 2nd Interested Party. Subsequently, the trial Magistrate dismissed the Plaintiff's Claim against the 1st Defendant regarding the land parcel (Naivasha/Maraigushu Block 7/1268) and directed a cancellation of the title deed issued on July 7, 2022, to the 2nd Interested Party (Patrick Kamau Nderitu). He further directed the Land Registrar in Naivasha to register the property in the name of the 1 st Defendant (Ruth Wamuyu Wang’ombe), thus allowing her Counterclaim based on the terms above, with costs. 2. The 1st and 2nd Plaintiffs/Appellants, being dissatisfied with the decision of the court, have now filed the present Appeal based on the following grounds in their Memorandum of Appeal; i. That the learned Magistrate erred in law and fact by misdirecting himself on the nature of the sale transaction entered into between the 1st Appellant and the Respondent by admitting allegations of fraud by the Respondent when the same Respondent failed to NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 2 of 42

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prove fraud in an elaborate criminal trial that had been orchestrated by the same Respondent before the civil case was set down for hearing. ii. The learned Magistrate erred in law and fact by accepting a finding of a criminal trial that he did not conduct and whose proceedings were not forming part of the civil trial before him. iii. The learned magistrate erred in law and fact when he took the position of the District Land Registrar who is mandated by law to inspect, scrutinize, pass or reject the instruments of transfer of land and without the benefit of the material the said registrar had at his disposal when accepting transfer of the suit land on more than (sic) occasion, he cancelled the title and ordered a fresh one in favour of the Respondent. iv. The learned Magistrate erred in law and in fact by failing to make a finding that the Respondent who had sought to impugn titles issued by the District Land Registrar ought to have issued Third Party Notices to the District Land Registrar, Naivasha before ordering the cancellation of issued titles and rectification of the records held at the registry. v. The learned Magistrate erred in law and fact in allowing casual shifting of the burden of proof of fraud by the Respondent when the Appellant had been cleared of fraud charges by a due process of a court of concurrent jurisdiction. vi. The learned Magistrate erred in law and in fact in allowing the Respondent to introduce completely irrelevant material to the case when the same was not capable of substantiation and when it is clear the defective and irrelevant material influenced his ultimate determination in the case. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 3 of 42

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3. The Appellants thus prayed that the appeal herein be allowed and the entire judgement dated the 31st October 2025 and all consequential orders be set aside with cost. 4. In response, the Respondent, vide her Reply to Appeal dated 27 th February 2026, argued that the Learned Trial Magistrate was right in dismissing the Appellant’s case as there was clear evidence that the sale agreement between the Appellant and the Respondent had not been executed by the Respondent; hence the Respondent had not sold land parcel No. Naivasha/Maraigushu Block 7/1268 to the Appellant (suit property). That the Learned Trial Magistrate was also satisfied that the suit property that was purportedly bought by the Appellant had been obtained fraudulently. 5. She contended that the Learned Trial Magistrate had been right in ordering the cancellation of the Title Deed that had been issued to the Appellant and ordering that a fresh Title Deed be issued to the Respondent on the weight of the evidence before the Court. That the trial Magistrate had also been right in accepting the relevant and admissible evidence that had been presented by the Respondent and making the correct findings that the Appellants’ Title Deed to the suit property could stand. 6. That the Learned Trial Magistrate was right in finding that the Appellant could not pass any good title; hence the title held by the 2 nd Interested Party stood cancelled. That the Learned Trial Magistrate had been right in accepting the evidence of the Respondent and did not in any way rely on irrelevant evidence; neither had he been influenced by any irrelevant material in his determination. 7. She thus prayed for the following orders: i. That the Honourable Court do confirm the Judgment of the Learned Trial Magistrate. ii. That the Appellant’s claim to land parcel No. Naivasha/Maraigushu Block 7/1268 be dismissed. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 4 of 42

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iii. That the Title to Land Parcel No. Naivasha/Maraigushu Block 7/1268 continue to be retained in the name of the Respondent. iv. That the Appellant’s Appeal be dismissed with costs. 8. The 1st and 2nd Interested Parties did participate in the Appeal. 9. The Appeal was admitted for hearing on 21 st April 2026, and directions taken for the same to be disposed of by way of written submissions. However, at the time of writing this judgement, only the Appellants had complied and filed their Submissions dated 30th April 2026 10. In their submissions, on grounds 1 and 2, the Appellants contended that the trial Magistrate wrongly inferred fraud based on the Respondent’s claims that the Appellant had been arrested and charged in a Naivasha lower court. The court failed to address that the Appellant was acquitted after the prosecution failed to prove fraud, preserving the Appellant's presumption of innocence. 11. That the reports and evidence from the criminal case were improperly allowed into civil proceedings despite their original purpose having been lost, creating a travesty of justice by mixing unverified allegations rejected by the criminal court. 12. On grounds 3 and 4 in relation to the validity of Official Land Records and Due Diligence, they submitted that the titles (tracing from the Appellant to the 1st Interested Party, and subsequently to the 2nd Interested Party) were officially processed by the District Land Registrar and therefore the court erred in second-guessing the acts of a professional registrar who was never investigated by the DCI. 13. They argued that if the respondent had reasons to believe that the District Land Registrar had exercised his powers wrongly, there was always the option of raising third party notices so that an opportunity could be availed to test the veracity of the documents originating from their registry. However, in the instant matter, meticulously done work of a registrar, that had been undertaken severally over time, had been annulled on mere allegations of an interested, partisan person in the name of the Respondent. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 5 of 42

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14. That due diligence had been conducted at every stage, and setting aside official titles based on mere allegations of a partisan party undermined the sanctity of land registration. 15. That there had been judicial bias in the standard of proof for allegations of fraud where the trial court approached the case with a fixed mind, making extensive arguments on behalf of the Respondent that far exceeded those presented by the Respondent's own lawyer. A land title was proof of ownership in Kenya unless irrefutable proof of fraud was established. The onus was therefore on the party alleging fraud to prove it, rather than requiring the title holder to prove innocence. 16. The Appellants argued that courts of law have variously found that a title document to land is proof of land ownership in Kenya, unless there is irrefutable proof of fraud during the process of obtaining the same and which fraud cannot be a mere allegation by one interested party against the other. They contended that once the title holder avers that he is a holder of a title that had been issued by a valid authority, it is incumbent upon the party alleging fraud to prove it, not the title holder to prove his innocence. To buttress the foregoing, he relied on the Court of Appeal’s decision in Civil Appeal No. 246 of 2013; Arthi Highway Developers Ltd -Vs- Westend Butchery Ltd & Others. 17. The Appellant then sought that their Grounds 1–4 be sustained, the appeal be allowed, and the findings and judgment of the lower court be set aside with costs to the Appellant. Analysis of the evidence. 18. The Court of Appeal in Paramount Bank Limited vs. First National Bank Limited & 2 Others (Civil Appeal 468 of 2018) [2023] KECA 1424 (KLR), held as follows; “A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. A first NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 6 of 42

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Appellate Court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. While considering the scope of section 78 of the Civil Procedure Act, a first Appellate Court can appreciate the entire evidence and come to a different conclusion.” 19. The core dispute in this matter is that vide their Plaint dated 25 th January 2026, the Appellants (Plaintiffs) filed suit seeking judgment to be entered against the Defendants jointly and severally for: i. An order of permanent injunction against the Defendant, stopping them by themselves, their agents and/or servants from entering, trespassing, encroaching or in any other manner whatsoever interfering in any one, part or the entire suit plots known as: a) LR Naivasha/Maraigushu Block 7/1268 in the name of the 1st Plaintiff. b) LR Unsurveyed/Residential Plot Naivasha Municipality (Plot A) in the name of the 2nd Plaintiff. c) LR Unsurveyed/Residential Plot Naivasha Municipality (Plot B) in the name of the 2nd Plaintiff. ii. An order of declaration that the suit premises belong to the Plaintiffs to the exclusion of the defendant or any other party claiming through him. iii. 20. Costs of the suit and interest at court rates. Subsequent to the filing of the suit, the Respondent (1st Defendant) vide her Defence and Counter Claim dated the 3 rd July 2020, which was amended on the 20th November 2024 and Further Amended on the 12 th NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 7 of 42

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May 2025, gave a standard blanket denial of all claims made in the Plaint except where she explicitly admitted them. 21. She contended that the registration of land parcel L.R No. Naivasha/Maraigushu Block 7/1268 to the 1st Plaintiff had been obtained through fraud, illegality and unlawful means which she particularized as follows: i. Unlawfully, illegally and fraudulently forging sale agreement dated 16th September 2014. ii. Presenting and acting on false and illegal documents purporting the same to be signed by the 1st Defendant. iii. Refusing to surrender or release back the Title Deed of land parcel No. Naivasha/Maraigushu Block 7/1268 which had been given to the 1st Plaintiff as a security for money that the 1st Plaintiff had advanced to the 1 st Defendant but which had been repaid in full. iv. Claiming illegally, unlawfully and fraudulently that the 1st Defendant had released the title deed to the land parcel as No. Naivasha/Maraigushu Block 7/1268 to the 1st Plaintiff for sale. v. The 1st Plaintiff purported that the 1st Defendant had surrendered Land Control Board Consent, Transfer forms, Photographs, Identity card to the 1 st Plaintiff as completion documents for sale of land parcel No. Naivasha/Maraigushu Block 7/1268 22. She denied trespassing upon or interfering with the 1 st Plaintiff’s land and contended that land parcel No. Naivasha/Maraigushu Block 7/1268 was her land, which the 1st Plaintiff had fraudulently taken. She denied having been served with any Notice of Intention to sue, claiming that the Plaintiffs were not entitled to the prayers sought in the Plaint and therefore their suit should be dismissed with costs. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 8 of 42

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23. In her Counter Claim, she reiterated the contents of her Further Amended Statement of Defence and the particulars of unlawful, illegal and fraudulent acts on the part of the 1 st Plaintiff therein, and contended that, as a result of those actions, she had suffered loss and damage, which she particularized as follows: i. Loss of Land Parcel No. Naivasha/Maraigushu Block 7/1268. ii. Loss of the value of Land Parcel No. Naivasha/Maraigushu Block 7/1268. iii. Loss of use or opportunity to use or utilize Land Parcel No. Naivasha/Maraigushu Block 7/1268. 24. She argued that the 1st Plaintiff had no land or title to land that he could have caused to be registered in his name, or lawfully transferred to himself or to any other person. She further argued that she had not sold Land Parcel No. Naivasha/Maraigushu Block 7/1268 to the 1 st Plaintiff or to any other person. She prayed that the title deed obtained by the 1st Plaintiff in respect of Land Parcel No. Naivasha/Maraigushu Block 7/1268, which was obtained illegally and unlawfully and is currently registered in the name of the 2 nd Interested Party, be cancelled and that the title deed revert to her name, since the 1 st Plaintiff had no good title to pass to the 2 nd Interested Party, who claims to have bought the same from the 1st Interested Party. She maintained that the title held by the 1st Plaintiff had been obtained illegally, unlawfully and fraudulently and sought the following orders in her counterclaim. i. That the title deed in respect of Land Parcel No. Naivasha/Maraigushu Block 7/1268, which the 1 st Plaintiff (now the 1st Defendant) had caused to be registered to himself or any other subsequent transfer to any other person, be cancelled, and the title deed be registered to the 1st Defendant (now Plaintiff). NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 9 of 42

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ii. That the Honourable Court do issue an order for Rectification of the Register to reflect the 1 st Defendant (now 1st Plaintiff) as the proprietor of the suit land. iii. xxxxxxx name of the first Defendant (now Plaintiff) iv. That the 1st Plaintiff (now 1st Defendant) do pay general damages for loss and damages to the 1 st Defendant (now 1st Plaintiff). v. Costs of the 1st Plaintiff (now the 1st Defendant’s suit) and costs of counter-claim and interests thereof at court rates. vi. Any other relief that the Honourable Court may deem fit to grant. 25. The 2nd Defendant did not enter an appearance, and a request for judgment against him was made via an application dated 1 st August 2023. 26. The 1st Interested Party filed a Statement of Defence dated 8 th September 2020, mistakenly as a 3rd Defendant, generally denying the contents of the Plaint while arguing that she was the registered owner of Land Parcel No. Naivasha/Maraigushu Block 7/1268 (suit property) having purchased the same from the 1 st Plaintiff in the year 2019 for a consideration of Kshs. 890,000/= after which a title had been registered in her name in the same year. 27. She argued that she had undertaken the necessary due diligence before purchasing the suit property, and thus was an innocent purchaser for value, having followed due process. She further contended that the suit property had been unencumbered at the time of purchase and transfer and any contestation over the same prior to the purchase date was unknown to her as she was unaware of any misconduct or negligence on the part of the Plaintiff and the Defendant prior to the registration of the suit property in her name. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 10 of 42

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28. That she was a stranger to the transaction alluded to in the Defendant’s Statement of Defence and Counter-Claim; thus, she could not respond to the same. She argued that the 1 st Plaintiff was liable to compensate her should the court find that he had fraudulently acquired the suit property before effecting its transfer to her. 29. She thus prayed for judgement against the Plaintiffs and the Defendants jointly and severally for: i. Declaration that the Interested Party is the bona fide owner of all that land known as Naivasha/Maraigushu Block 7/1268. ii. Kshs. 890,000/= with interest, in the event the Court finds that the 1st Defendant was the owner of the suit property prior to the transfer of the same to the Interested Party. iii. Costs. iv. Any other suitable relief that the Court may be inclined to award as deemed fit and just. 30. The 2nd Interested Party in his Statement of Defence dated 28 th November 2024, denied all allegations made in the 1 st Defendant's Amended Defence and Counterclaim, except for basic descriptive details (paragraphs 1, 2, and 2A) and the court's jurisdiction. 31. He asserted that he was the legitimate, absolute registered owner of land parcel Naivasha/Maraigushu Block 7/1268, having purchased it in good faith for value from the 1st Interested Party. 32. He denied any involvement in, or prior knowledge of, alleged fraud, illegalities, negligence, or ownership disputes between the Plaintiffs and Defendants before acquiring the property and requested the court for; i. Dismissal of the Counter Claim. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 11 of 42

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ii. Declaration that the 2nd Interested Party is the bona fide owner of all that land known as Naivasha/Maraigushu Block 7/1268. iii. Costs. iv. Any other suitable relief that the Court may be inclined to award as deemed fit and just. 33. Subsequently, the case had proceeded for hearing on 15 th July 2024 wherein PW1, David Kamau Ndirangu, testified that he was the 1 st Plaintiff and held the authority to represent the 2nd Plaintiff, which was his company. 34. He stated that he had recorded a statement filed alongside the plaint, as well as a supplementary statement filed on 9th July 2024, both of which he wished to rely upon as his evidence-in-chief. (The court adopted the statements as evidence-in-chief.) 35. PW1 further stated that he had prepared a list of documents dated 25th January 2016, which he wished to present as follows; i. Copy of Title for L.R No. Naivasha/Maraigushu Block 7/1268 as Pf exh. 1. ii. Allotment Letter, Maps and ownership documents (in a bundle) for L.R Unsurveyed/Residential Plot/Nivasha Municipality (Plot A) as Pf exh. 2. iii. Allotment Letter, Maps and ownership documents (in a bundle) for L.R Unsurveyed/Residential Plot/Nivasha Municipality (Plot B) as Pf exh. 3. 36. Continuing his testimony, PW1 stated that the land claimed by Ruth was no longer in his possession, as he had sold it to Alice Nyambura, the 1st interested party. 37. Under cross-examination by Counsel for the 1 st Defendant, PW1 testified that Ruth Wamuyu Wang'ombe became known to him in 2016, when she sold him the land. He denied being part of a merry-go-round NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 12 of 42

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or the Kianda Investment Group with her, stating that neither he nor his company had ever loaned money to anyone. 38. He reiterated that he was not a member of the Kianda Investment Group and advised counsel to verify this with their chairperson. He denied knowing Edward Kabira Kimuhu or Alfred Mwenda, maintaining that he had never loaned money to anyone, including Ms Wang'ombe, and that he was not a shrewd lender. He stated that she had sold him the land—specifically Naivasha/Maraigushu Block 7/1268—and had not given him the title deed as security for an advance loan. He asserted that she provided all the necessary documents upon the sale of the property. 39. He testified that the agreement for the sale of land was handwritten at a restaurant named Wambugu, while the transfer was executed at the offices of an advocate. He stated that a witness named Mwaura was present and could be brought to court if required. He further stated that Mwaura had signed the agreement as a witness, and that the agreement was currently with the DCI (referring to Defendant's List No. 4, an agreement dated 16th September 2014). 40. Upon further questioning, PW1 conceded that Mwaura might not have signed the agreement despite being present, noting that he may have forgotten whether Mwaura signed and that he did not recall the date well. 41. PW1 further testified that he had been arrested by the DCI and charged in Naivasha Criminal Case No. 421 of 2016 (Republic v. David Kamau Ndirangu). He stated that the charges related to the alleged forgery of the transfer and agreement, but the criminal case was concluded, and the charges were thrown out. 42. He acknowledged that his signature had been taken during investigations, though he claimed not to know the outcome or the Document Examiner’s Report referenced in the Defence list. He reiterated that Ms. Wang'ombe had signed the agreement, sold him the land, and handed over all property documents. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 13 of 42

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43. He clarified that the sold land was situated in Maraigushu, along the road to Engineer. He stated that they obtained consent from the Land Board to transfer the property, though he had not produced it as an exhibit in court because he had handed the consent document over to the DCI. 44. He further testified that he later sold the land to Alice Nyambura after an unspecified period, asserting he had the authority to do so. He stated that they had attended the Land Board in Naivasha and that Ms. Nyambura retained the documents. He noted that he had not presented these documents to the court, but his lawyer could explain. He added that he had not shown the court the transfer document executed by Ms. Wang'ombe because he had left it with the DCI. 45. Upon cross-examination by Counsel for the interested party, PW1 confirmed purchasing the parcel Naivasha/Maraigushu Block 7/1268, though he could not recall the exact year, suggesting reference be made to the agreement. 46. He stated that when he entered into an agreement to sell the land to Alice Nyambura, it was registered in his name. They obtained consent from the Land Control Board. He further testified that Ruth Wamuyu had reported him to the police, leading to criminal charges, but the case was ultimately dismissed and he was acquitted. 47. In re-examination, PW1 affirmed that the criminal case against him had been dismissed. He explained that during the investigations, the police took his original documents and never returned them. This marked the close of the Plaintiff’s case. 48. The defence case proceeded with the evidence of DW1, Ruth Wamuyu Wang'ombe who testified that she resided and performed administrative work at KALRO (Kenya Agricultural and Livestock Research Organization) in Naivasha. 49. That she was the 1st Defendant and she knew the Plaintiff, having met him in 2013 when both were members of the Kianda Investment Group, which held its meetings at the Aberdare Building next to NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 14 of 42

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Safaricom in Naivasha. She referred to her written statement dated and filed with the defence on 7 th July 2020, which she wished to rely upon as her evidence-in-chief. (The court adopted the statement as evidence-in-chief.) 50. DW1 then stated that her statement explained how she became acquainted with the Plaintiff and how he came into possession of her title deed. She asserted that she was the registered owner of land parcel No. Naivasha/Maraigushu Block 7/1268, maintaining that she had never, at any time, sold it to the Plaintiff, sought consent from the Land Control Board, or executed a sale agreement. 51. She testified that she only discovered that the Plaintiff had converted the land into his own name while she was in the process of repaying a debt owed to him. Upon discovering this, she reported the matter to the CID in Naivasha, which led to the arrest and prosecution of Mr. Kamau. 52. She then produced the documents in her list of documents dated 3 rd July 2020 as follows: i. Original Title Deed to Land Parcel Number Naivasha/Maraigushu Block 7/1268 (North Karati) as Df exh. 1. ii. Copy of Certificate of Official Search dated 8 th October 2015 as Df exh. 2. iii. Certified copy of Green Card (Register) as Df exh. 3 iv. Copy of the Purported Sale Agreement dated 16th September 2014 as Df. exh. 4. v. Copy of Charge Sheet in CR Case No. 421 of 2016 as Df exh. 5, vi. Copy of Document Examiner Report as Df exh. 6. vii. Copy of Exhibit Memo as Df exh. 7. viii. Copy of Title Deed in the name of the 1st Plaintiff as Df exh. 8. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 15 of 42

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ix. Copy of undated purported Application for consent of Land Control Board as Df exh. 9. x. Copy of undated purported Transfer Form as Df exh 10. 53. Concluding her examination-in-chief, DW1 prayed for the reversion of the title deed into her name and requested an award of costs for the suit. 54. Under cross-examination by the Plaintiff’s Counsel, DW1 maintained that Mr. Kamau Ndirangu was a fellow member of the Kianda Investment Group. She acknowledged that she had not produced documents in court to prove the existence of the group, but stated she could do so if required, as there was ample material connecting the Plaintiff to it. She noted that Edward Kimuhu was not a witness in the matter. 55. Regarding the criminal proceedings, DW1 testified that she had reported the Plaintiff to the police, provided them with all her documents, and given evidence against him in court. She stated that the Plaintiff had been fined in court, although she added that, if she was not mistaken, he was fined before being released. She explained that he was initially released on bail, later found guilty, and that she possessed the charging documents. However, she noted that the case ultimately proceeded without her knowledge. 56. DW1 reiterated her claim to the land as the original owner, stating that the Plaintiff had transferred the title deed into his own name. She admitted that she did not stop the registration transaction initially, but upon realizing he had sold the property, she placed a caution on the title. She expressed confusion about how the land was subsequently transferred to the 2nd Defendant despite the caution in place. 57. She admitted that she had not joined the Land Registrar to the suit because she was unaware that the Land Registrar could be sued. 58. She testified that the Plaintiff was a shylock who had advanced her a loan, which she claimed to have repaid in full by 25 th May 2015 via M- NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 16 of 42

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PESA Agent 98988597. She noted that while M-Pesa statements existed, they had not been included in the defence documents. 59. She acknowledged that the land had since been transferred to Ms. Nyambura, and confirmed that her counter-claim included a prayer seeking the cancellation of Ms. Nyambura’s title deed. 60. When cross-examined by Counsel for the Interested Party, DW1 testified that she had placed a restriction on the title on 9 th October 2015. She stated that she had proof of the caution, though it was not included among the court documents. 61. In re-examination, she stated that she possessed receipts and photographs relating to the Kianda Investment Group, which was in the process of registration at the time. 62. Regarding the outcome of the criminal case against Mr. Ndirangu, she stated that she did not know the final result, but maintained that even if he had been acquitted, it did not alter the fact that he had taken her land. 63. She reiterated that she was pursuing a counterclaim to recover her property. She explained that the caution was placed while the land was registered in Mr Ndirangu's name, and that she only learned he had transferred it to someone else when she went to obtain the Green Card around 2018. She added that she had not been aware that Mr Ndirangu had instituted court proceedings. 64. DW2: Edward Gachago Wang'endo, the second witness for the 1 st Defendant, testified that he resided in KARI, Naivasha, but had relocated to his family home in Kamburi, Githunguri, following his retirement. That he knew both David Kamau Ndirangu and Ruth Wamuyu Wang’ombe. He testified that Mr. Ndirangu was an official of the Kianda Investment Group, which had been formed to purchase land, and that Ms. Wang’ombe served as Mr. Ndirangu’s deputy. 65. He identified his written statement dated 7 th July 2020, filed alongside the statement of defence, and requested that the court adopt it as his evidence. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 17 of 42

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(The court adopted the statement.) 66. He then proceeded to testify that Mr. Ndirangu used to operate as a loan provider. He explained that the Kianda Investment Group intended to purchase land identified in Nyandarua. When Ms. Wang'ombe sought a loan from Mr. Ndirangu, she was required to provide security, whereupon she handed over her title deed to secure the loan. 67. Under cross-examination by counsel for the Plaintiff, DW2 affirmed his duty to tell the truth and noted that he had been waiting outside the courtroom and had not heard DW1's testimony. He acknowledged that his filed statement was brief and that he had not produced any documentation concerning the Kianda Investment Group, explaining that he was not an official and that all records were held by the group's executives. He stated that each member contributed KSh 20,000/=. 68. He testified that Mr. Ndirangu was a shylock and stated that he had personally remitted money to Mr. Ndirangu on behalf of Ms. Wang'ombe. He claimed that this was reflected in his M-Pesa statement, which he had submitted to their lawyer. He confirmed that Ms. Wang'ombe’s title deed was used as collateral, though he had no physical evidence to produce in court and did not know what transpired after the title was delivered. 69. DW2 detailed the repayment, stating that he paid KSh 10,000/= while Ms. Wang'ombe paid KSh 10,000/=, followed by an additional KSh 8,000/= paid by her. He stated he later learned that Mr. Ndirangu had refused to return the title deed. 70. He explained that he and Ms. Wang'ombe were colleagues at KARI, where he served as a procurement officer, and that she had introduced him to the Kianda Investment Group. That he was aware that Mr. Ndirangu was criminally charged and that Ms. Wang'ombe had placed a caution on the land. He stated, however, that he did not participate in the criminal proceedings or record a statement with the police. 71. When cross-examined by counsel for the interested party, he clarified that he paid Mr. Ndirangu Ksh 8,000/= directly and gave Ms. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 18 of 42

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Wang'ombe KSh 2,000/= to deliver to Mr. Ndirangu. He explained that Ms. Wang'ombe had taken a loan, secured by her title deed, and shared the proceeds with him. He restated that he possessed the Safaricom transaction records, though they were not available in court. 72. In re-examination, DW2 confirmed that he received Ksh 10,000/= from Ms. Wang’ombe after she obtained the loan from Mr. Ndirangu. He reiterated that he repaid his Ksh 10,000/= share by depositing Ksh 8,000/= via M-Pesa and handing over Ksh 2,000/= in cash to Ms. Wang'ombe, adding that he had given his M-Pesa statement to Ms. Wang'ombe. 73. He testified that the leadership of the Kianda Investment Group was held by Mr. Kimuhu (a former Chief), Ms. Wang’ombe, and Mr. Ndirangu, while he remained an ordinary member. Concluding his testimony, DW2 re-affirmed his professional background with Ms. Wang’ombe at KARI and testified that he personally witnessed the 1 st Defendant handing over the title deed to Mr. Kamau Ndirangu when they travelled together in his motor vehicle. 74. On 19th June 2025, the 1st Defendant was recalled and sworn afresh. She acknowledged that her prior testimony was delivered on 15 th July 2024, and confirmed its accuracy to the court after it was read to her. She then testified that following their last court appearance, leave was granted to amend the statement of defence, leading to the filing of a further amended statement of defence dated 12th May 2025. 75. She stated that the land was currently registered in the name of Patrick Kamau Nderitu, having previously been registered under Alice Nyambura Njama. She prayed that the titles issued to both Patrick and Alice be revoked and that the property revert to her name. 76. She was referred to a further statement filed on 20 th November 2024, which she wished to rely upon alongside four additional documents listed in her further list of documents of the same date, which she produced as; NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 19 of 42

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i. A sale Agreement dated 16th September 2014 between Ruth Wamuyu Wang’ombe and David Kamau Ndirangu as Df exh. 11. ii. Sale Agreement dated 6th October 2006 between Imani Self Help Group and Ruth Wamuyu Wang’ombe as Df exh. 12. iii. 1st Defendant’s Specimen Signatures marked as D1 to D6 as Df exh. 13. iv. Copy of Register (Green Card) of Land Parcel No. Naivasha/Maraigushu Block 7/1268 (North Karati) dated 4th October 2024 as Df exh. 14. 77. DW1 reiterated that no sale agreement existed between herself and Mr. Kamau. She stated that Mr. Kamau was charged in court after disappearing when she demanded her title deed, prompting her to report the matter to the police. She explained that the police requested her sample signatures, after which DCI headquarters established that her signature had been forged. 78. Under cross-examination by counsel for the Plaintiff, DW1 maintained her earlier testimony. She confirmed that the land was no longer in David Kamau Ndirangu’s name. She testified that after reporting the matter to the police, it was found that the signature on the sale agreement was not hers. She noted that the criminal case against Mr. Kamau proceeded without her knowledge, and she only learned later that it had been thrown out. She firmly denied ever selling her land to Mr. Kamau, asserting that she had fully repaid her debt to him. However, by the time the debt was cleared, he had already transferred the property into his own name. She explained that she had placed a caution on the land, but Mr. Kamau suspiciously removed it and executed the transfer. 79. Under cross-examination by counsel for the interested party, DW1 restated that Mr. Kamau had transferred the land to himself prior to her settling the debt. She mentioned that Edward Gachanga Wanyendo, whom she could call as a witness, was unwell that week. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 20 of 42

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80. Regarding the removal of the caution, she could not recall whether she pursued follow-up action, though she noted that a complaint letter addressed to the magistrate was in the file, and offered to retrieve the relevant documents if granted time. She described the land as plain and undeveloped. 81. Referring to Defence Exhibit 14 (a copy of the Green Card), DW1 noted that Entry No. 7 recorded the removal of the caution pursuant to a decree in MCCC 29/16, which referenced a letter dated 14 th December 2006 from Gachiengo and Company Advocates. She stated that she did not understand the decree’s legal aspects, as it was issued in her absence. She further observed that the Green Card dated 19 th February 2019 listed Alice Nyambura Njama as the owner, with Patrick Kamau as the seller, and confirmed the land remained vacant. 82. When re-examined, DW1 testified that Patrick Nderitu was the current occupant who acquired title from Alice Nyambura, noting that court proceedings were already ongoing before Ms. Nyambura acquired the title. She maintained that she had never exchanged land with Mr. Kamau and that he had unilaterally transferred the title into his name. 83. DW3, Inspector Martin Kitayi, confirmed that his service No. was 240526 and that he was attached to the Forensic Documents Section at DCI Headquarters. He stated that he held a Bachelor’s Degree in Criminology from Egerton University (2012) and had undergone specialized document examination training at the DCI Documents Forensics Laboratory, Foster & Freeman (United Kingdom), the Gujarat Forensic Laboratory, and the Regional Forensic Laboratory in Khartoum under Ribar University, obtaining certificates in Forensic Document Examination. 84. He then proceeded to testify that on 15 th March 2016, the Forensic Laboratory received an exhibit memo along with exhibits delivered by PC Kimathi of the Flying Squad, Naivasha. The memo was stamped and assigned Reference No. 285 of 2016. 85. He detailed the exhibit markings as follows: NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 21 of 42

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i. Exhibit E1: The questioned document (a handwritten purported land sale agreement dated 16 th September 2014. ii. Exhibits D1 to D6: Specimen handwriting and signatures of Ruth Wamuyu Wang’ombe. iii. Exhibit F1: Known signature of Ruth Wamuyu Wang’ombe. 86. DW3 explained that the investigating officer tasked him with determining whether the questioned handwriting and pencil-enclosed signature on Exhibit E1 matched the specimen handwriting/signatures (Exhibits D1–D6) and the known signature (Exhibit F1) of Ruth Wamuyu Wang’ombe. 87. That he then wrote to the Land Registrar, stating that he had not been summoned to testify in Mr. Kamau’s criminal trial, which he later learned was dismissed. 88. That upon forensic examination, he had formed the expert opinion that the questioned handwriting and signature on Exhibit E1 were executed by a different author than the known and specimen signatures of Ruth Wamuyu Wang’ombe. He explained that his methodology was detailed in his signed report dated 16th March 2016, which, along with the exhibits and memo, DCI officers subsequently collected from Naivasha. 89. He then proceeded to confirm and produce the following documents: i. Defence Exhibit 6: His forensic report dated 18 th March 2016, bearing his signature. ii. Defence Exhibit 7: The Exhibit Memo dated 15th March 2016. iii. Defence Exhibit 12: The questioned handwritten agreement dated 16th September 2014. iv. 90. Defence Exhibit 13: The specimen signature sheet. He concluded his direct evidence by testifying that Ms. Wang’ombe was not the author of the purported sale agreement, as established by NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 22 of 42

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comparing the vendor’s signature with her known and specimen handwritings. 91. In cross-examination by the Plaintiff’s Counsel, DW3 clarified that he was not the investigating officer and that his role in 2016 was strictly limited to forensic document examination. He stated that the exhibit memo did not specify whether a court case was pending, and he was unaware if anyone had been formally charged. 92. He testified that he was never summoned to testify in the criminal proceedings regarding his report, though he appeared in the current civil suit pursuant to court summons. He noted that the sale agreement was the sole document examined and that no transfer documents were submitted to him. He added that no specimen signatures from any other individual were provided for analysis. 93. When cross-examined by counsel for the interested party, DW3 defined ‘known signatures’ as signatures executed before the dispute arose and unrelated to the suit. He confirmed that the investigating officer provided the signatures. He explained that while signatures might appear different to a layperson, expert inquiry focuses on structural characteristics to determine authenticity. He noted that although other signatures appeared on the sale agreement, his mandate was restricted to examining the questioned signature of Ruth Wamuyu Wang’ombe, who was listed as the complainant on the exhibit memo, with David Kamau Ndirangu listed as the suspect. 94. In relation to the criminal acquittal, DW3 observed that acquittals occur under various statutory grounds, such as lack of proof or nonattendance of witnesses. He acknowledged that if the criminal court found insufficient evidence, he could not contradict that judicial finding. 95. When re- examined, DW3 confirmed once again that he was never called to testify in the criminal case concerning the forensic documents and had not been shown any criminal court proceedings. He reiterated that he did not know whether the suspect was charged or on what grounds an acquittal was granted. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 23 of 42

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(This marked the close of the 1st Defendant’s Case.) 96. The 1st Interested Party’s case proceeded with the evidence of DW4, Alice Nyambura Njama, who stated that she resided in Naivasha, worked as a businesswoman, and was aware of the reasons for her court appearance. She referred to her written statement recorded on 8th September 2020 and requested the court to adopt it as her evidence-in-chief. 97. She then produced her list of documents dated 8 th September 2020, as follows; i. A copy of her National Identity Card, as Interested Party Exhibit 1: ii. A copy of the Title Deed for Naivasha/Maraigushu Block 7/1268, as Interested Party Exhibit 2 iii. A copy of the Sale Agreement dated 8/1/2018, as Interested Party Exhibit 3 iv. A copy of a Co-operative Bank deposit slip for KSh 890,000/= dated 8/1/2019, as Interested Party Exhibit 4 v. A copy of an Official Search Certificate dated 2/1/2019, as Interested Party Exhibit 5 vi. A copy of an Application for Land Control Board Consent dated 15/1/2019, as Interested Party Exhibit 6 vii. A copy of the Title Deed for the land in the name of David Kamau Ndirangu, as Interested Party Exhibit 7. 98. DW4 then proceeded to testify that she acquired the land from Mr Kamau Ndirangu, who personally took her to view the property. She stated that he provided her with the relevant documents and she conducted an official search, which confirmed the land was registered in his name. She stated that they executed the transaction before an advocate, where she paid the full purchase price of Ksh 890,000/=. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 24 of 42

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99. She further testified that they subsequently visited the Lands Office, obtained Land Control Board consent, and had the property registered under her name. She asserted that no one claimed the property at the time. She stated that she did not know Ruth Wamuyu Wang’ombe, who had never attempted to evict her, and that Mr. Ndirangu had never disclosed to her that the land did not belong to him. 100. She stated that due to financial distress and severe economic difficulties during the COVID-19 period, she sold the land to Patrick in 2022. She affirmed that there was no caveat or order barring the transaction, maintaining that she was the rightful owner who had legitimately purchased the property from Mr. Ndirangu. 101. Under cross-examination by Counsel for the Plaintiff, DW4 testified that she only came to know David Kamau Ndirangu during the transaction. She confirmed that she performed due diligence by conducting an official search at the Land Registry, paid the requested purchase price in full, and that Mr. Ndirangu facilitated the board consent and transfer process. 102. She stated that nothing irregular occurred prior to her registration as the owner, describing the title as clean. She added that she took physical possession without any interference and affirmed that she had no claim against Mr. Ndirangu. 103. Under cross-examination by counsel for the 1st Defendant, DW4 acknowledged that the final paragraph of her pleading prayed that if the court found Mr. Ndirangu failed to pass good title, he should be ordered to refund her money. She admitted that the land was unfenced, that she had not erected any structures, and that she was neither cultivating nor working on the land prior to selling it to Patrick. 104. DW4 explained that she was introduced to Mr. Ndirangu through a deceased friend named Wairimu, who was not listed as a witness. She clarified that while Wairimu introduced them, only she and Mr. Ndirangu visited the land by hiring a taxi, and that she had omitted mentioning Wairimu in her witness statement. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 25 of 42

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105. Refreshing her memory using the sale agreement, DW4 confirmed she paid Mr. Ndirangu on 8th January 2019. She testified that she was unaware that court proceedings concerning the land had already been instituted in 2016, as Mr. Ndirangu never disclosed it to her. She stated that she would not have purchased property burdened by a pending lawsuit. 106. She stated that she had been joined to the suit in September 2019 and signed her statement of defence on 8th September 2020 because Mr Ndirangu and Ms Wang’ombe were disputing ownership of property she considered hers. She admitted that, despite knowing the suit was ongoing, she sold the land to Patrick in 2022 for Ksh 1,500,000/= due to financial hardship. She denied fleeing, noting her continued presence in court. 107. She conceded that she did not inform Patrick of the ongoing court case when selling the land to him, reasoning that there was no caution, caveat, or injunction issued against her dealings with the property. She described the land at the time of sale to Patrick as vacant, unfenced, and undeveloped, identical to how she found it and denied conspiring with Mr. Ndirangu to defraud Ms. Wang’ombe or deceiving Patrick. 108. She testified that Patrick only discovered the dispute in 2023, when a new search failed to issue after he had already paid the full purchase price. She stated that she accompanied him to the Lands Office to assist, where they were informed of the pending court case, although the land had not yet been cautioned. She added that she could not construct a house on the property due to a lack of funds and COVID-19related hardships. 109. When she was re-examined, DW4 stated that she had known Patrick before 2023 and had successfully transferred the title to him. She reiterated that her failure to develop the land was attributed to COVID19 constraints and servicing a loan. 110. DW5, Patrick Kamau Nderitu, the 2nd Interested Party, stated that he resided in Naivasha, worked as a businessman, and had recorded a NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 26 of 42

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statement dated 28th November 2024 concerning his land, which he requested the court to adopt as his evidence-in-chief. 111. He then produced two documents listed in his bundle dated 28th November 2024, as follows: i. A Title Deed for the parcel issued in the name of Patrick Kamau Nderitu on 7th July 2022, as Interested Party Exhibit 8. ii. A Sale Agreement dated 23rd June 2022, as Interested Party Exhibit 9. 112. He then testified that he purchased the land from Ms. Alice Nyambura Njama, whom he knew as a fellow business person. He stated that he was unaware of any pending court case at the time of purchase, as the official search confirmed her as the registered owner and no restraint stopped the sale. 113. He confirmed paying the full purchase price of Ksh 1,500,000/= without any objection from third parties. He stated that he did not know Ruth Wamuyu Wang’ombe, who was currently in possession of the land, and had not been evicted by anyone. 114. There was no cross-examination by counsel for the Plaintiff. However, when cross-examined by counsel for the 1st Defendant, he said he purchased the land on 23 rd June 2022 after Alice Nyambura Njama informed him directly that she was selling it. He explained that they had been doing business together for about five years prior to the sale, though she had never sold him anything during that period. He detailed their business relationship, stating that Ms. Njama operated clubs in Naivasha while he supplied alcohol. 115. DW5 testified that prior to conducting an official search, he personally inspected the land in the company of Ms. Njama, with no one else present. He described the property as being located in Nyondia, within the Maraigushu area, as the second plot from the road leading from Kinamba toward NYS, with the nearest trading center NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 27 of 42

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being the Nyondia Shopping Centre. He confirmed that he had not fenced, tilled, or erected any structures on the land. 116. He stated that Ms. Njama did not disclose the pending court proceedings to him, nor was he aware that she had joined the suit in 2020. He maintained that she failed to make material disclosure and denied conspiring with her in executing the sale agreement, affirming that he purchased the land as an ordinary bona fide purchaser. 117. DW5 explained that in 2023, he attempted to conduct a second search as a matter of good practice, but the search was not processed. He learned of the pending case around that time and subsequently returned to Ms. Njama. 118. He admitted that he never issued a formal demand letter or written complaint to Ms. Njama, nor did he involve elders, because she remained accessible and agreed to support him through the legal process until the matter was resolved. He observed that he was currently left with neither the land nor his money. 119. He testified that he had not utilized the land, noting that he last visited the property around February 2025. He acknowledged that he did not possess copies of the rejected search applications. He firmly denied conspiring with Ms Njama and Mr Ndirangu to defraud Ms Wang’ombe of her land. He also noted that he and Ms. Njama were testifying from the same physical location. 120. He was not re-examined, but he told the Court he was testifying from Ms Njama’s residence in Kayole, Naivasha. That was the close of the interested party’s case. Determination. 121. Having considered the record of appeal, the evidence in the trial court, the holding of the trial Magistrate, the written submissions of learned Counsel, the authorities cited and the applicable law as hereinabove stated. Briefly, the Plaintiffs/Appellants’ case was that he brought suit in his personal NAIVASHA ELCLA NO. E028/25 capacity and JUDGEMENT as the authorised Page 28 of 42

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representative of his company (2nd Plaintiff), asserting that he lawfully purchased the land known as Naivasha/Maraigushu Block 7/1268 in 2014 (or 2016) from the 1st Defendant (Ruth Wamuyu Wang’ombe), wherein they executed a handwritten Sale Agreement dated 16 th September 2014 at Wambugu Restaurant in the presence of a witness named Mwaura. 122. Later they signed transfer documents at an advocate’s office, where DW1 voluntarily handed over all relevant land ownership documents to him upon the sale; they had appeared before the local Land Control Board to obtain formal consent to transfer the land, after which the parcel was registered under his name, he acquired a clean title, and later sold the parcel to the 1st Interested Party (Alice Nyambura Njama) where they then attended the Land Control Board in Naivasha together to execute the transfer into her name. 123. He denied being a shylock or a moneylender, having loaned money to DW1, or having taken her title deed as security/collateral for a debt, or having any connection to or membership in the Kianda Investment Group, although he acknowledged having been arrested and charged on allegations of forgery of the transfer and sale agreement in relation to the same parcel of land, in a matter where he had been acquitted. 124. The 1st Defendant (Respondent’s) case, on the other hand, was that she was the legitimate original owner of Naivasha/Maraigushu Block 7/1268 and had never sold her land, executed a sale agreement, or appeared before a Land Control Board to transfer it to the 1st Plaintiff. 125. That she met the 1st Plaintiff through the Kianda Investment Group, an informal investment group in Naivasha to which she belonged, where he operated as an informal moneylender (shylock). In 2013/2014, she borrowed money from him and handed over her Title Deed strictly as collateral/security for the loan. She fully repaid the debt via M-Pesa by May 2015; however, upon clearing the debt, the 1st Plaintiff refused to return her title deed, prompting her to discover that he had fraudulently registered the land in his own name. She placed an official caution/restriction on the title register on 9 th October 2015 and NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 29 of 42

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reported the fraudulent conversion to the DCI in Naivasha, whose investigations revealed that her signature on the purported sale agreement was forged. 126. That in the meantime, the 1st Plaintiff fraudulently caused the caution to be removed and secretly transferred the land to Alice Nyambura Njama, who later transferred it to Patrick Kamau Nderitu. 127. She confirmed that the 1st Plaintiff had been charged and subsequently acquitted in Naivasha Criminal Case No. 421 of 2016, a matter that had proceeded without her knowledge or participation, despite her having recorded a statement and provided sample signatures. 128. The 1st Interested Party’s Case (Alice Nyambura Njama) was that she was a bona fide purchaser for value having bought Naivasha/Maraigushu Block 7/1268 directly from the 1st Plaintiff in good faith in 2018/2019, after verifying that the land was lawfully registered in his name without any encumbrances on the register. That they subsequently obtained consent from the Land Control Board and officially registered the land in her name. Due to severe financial difficulties during the COVID-19 pandemic and loan repayment pressures, she resold the vacant, undeveloped land in 2022 to DW5, Patrick Kamau Nderitu. 129. She admitted that she did not disclose the pending court suit to DW5 when selling to him because there was no active injunction, court order, or official caution on the Green Card preventing her from dealing with her registered title. 130. The 2nd interested party, DW5’s case, on the other hand, had been that he too was an innocent, ordinary purchaser for value who had bought Naivasha/Maraigushu Block 7/1268 in good faith directly from the registered owner, Alice Nyambura Njama (DW4), without any knowledge or notice of the ongoing court dispute. That after executing the purchase, he carried out due diligence by personally inspecting the vacant plot with DW4 and conducting an official search at the Land Registry, which confirmed she was the sole registered owner. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 30 of 42

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131. Subsequently, they executed a Sale Agreement on 23rd June 2022 for a purchase price of Ksh 1,500,000/=, which he paid in full, and he was issued with a Title Deed in his name on 7th July 2022. He maintained that the 1st interested party never disclosed that the land was subject to an active court suit and that no caution, caveat, or court order appeared on the official search to stop the sale. He had only discovered the court dispute in 2023, when he attempted a routine second official search, and upon confronting the 1st interested party, she admitted as much. 132. Having summarized the matter at hand, and conscious of my duty as the first Appellate Court, I find the issues for determination as being; i. Whether the Wang’ombe) 1st Defendant legitimately sold (Ruth Land Wamuyu Parcel No. Naivasha/Maraigushu Block 7/1268 to the 1 st Plaintiff (David Kamau Ndirangu), or whether the Title Deed was handed over merely as security for an advanced loan. ii. Whether the 1st Appellant/1st Plaintiff obtained title to land parcel No. Naivasha/Maraigushu Block 7/1268 fraudulently. iii. Whether the dismissal/acquittal of the 1st Plaintiff in Naivasha Criminal Case No. 421 of 2016 barred or settled the 1st Defendant’s claim of fraud and forgery in a civil court. iv. Whether the Interested Njama) and Patrick Parties Kamau (Alice Nderitu Nyambura (DW5) the subsequent purchasers of No. Naivasha/Maraigushu Block 7/1268 were bona fide purchasers for Value without Notice. 133. On the first issue for determination as to whether the 1 st Defendant (Ruth Wamuyu Wang’ombe) legitimately sold Land Parcel No. Naivasha/Maraigushu Block 7/1268 to the 1 st Plaintiff (David Kamau NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 31 of 42

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Ndirangu), or whether the Title Deed was handed over merely as security for an advanced loan. 134. I have considered the evidence of PW1, who confirmed that he knew the 1st Defendant when she allegedly sold him the suit property in 2016 (or 2014, as indicated in documents), and that they had executed a handwritten Sale Agreement dated 16th September 2014 at Wambugu Restaurant in the presence of a witness named Mwaura. That the transfer documents were executed before an advocate and Land Control Board consent was obtained. He, however, admitted that he did not produce the Land Board consent or the executed transfer form as court exhibits, claiming he left them with the police at the time he had been arrested and charged with forgery of the transfer and sale agreement in Naivasha Criminal Case No. 421 of 2016, wherein he had subsequently been acquitted. 135. Although he denied being a shylock or lending money to the 1 st Defendant, DW1’s evidence was that she was the registered proprietor of the suit land and that she met the 1st Plaintiff around 2013 through an informal group known as Kianda Investment Group. At the time, the 1st Plaintiff operated as a moneylender/shylock, and she had borrowed money from him, using her Title Deed strictly as collateral/security for the loan. 136. This evidence was supported by the evidence of DW2, her colleague at KARI (KALRO), who was a member of the Kianda Investment Group and who had accompanied her (DW1) in his vehicle when she delivered her title deed to the 1st Plaintiff, a shylock, as security for a loan. 137. DW1 confirmed that she neither sold the land to the 1 st Plaintiff, signed any sale agreement, nor appeared before any Land Control Board for transfer consent. That it had been only upon completing repayment of the loan and the request of her title deed that she had discovered that the 1st Plaintiff had fraudulently transferred the suit property into his name. That was when she initiated his arrest and criminal proceedings against him and also placed a caution on the title on 9th October 2015. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 32 of 42

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138. DW3, Inspector Martin Kitayi, a Document Examiner attached to the DCI Forensic Department Headquarters, testified as an expert witness, confirming that he had examined the questioned handwritten Sale Agreement dated 16th September 2014 alongside the known and specimen signatures of DW1, and had concluded that the signature and handwriting on the purported sale agreement were not executed by DW1, thus establishing that the sale agreement was a forgery. The 1st Plaintiff did not adduce any evidence to counter this evidence. 139. It therefore emerges that although the 1st Plaintiff relied heavily on this same handwritten Sale Agreement dated 16th September 2014, the evidence presented by the Forensic Document Examiner (DW3) completely eroded the integrity of this document, wherein his expert evidence stood uncontroverted that DW1 did not sign the sale agreement, thus directly supporting DW1’s claim that she never signed a contract to sell her property. Thus, the overwhelming evidence herein adduced, I find pointed irrefutably to a transaction where the Title Deed was handed over merely as security for an advanced loan. 140. Indeed, holding a title deed as informal security for a loan did therefore not pass beneficial ownership to the lender. Unilaterally converting pledged collateral into an absolute transfer without a formal legal charge or court decree amounts to illegal conversion. 141. On the second issue as to whether the Appellant/1 st Plaintiff obtained title to land parcel No. Naivasha/Maraigushu Block 7/1268 fraudulently, the law is very clear on the position of a title deed holder in respect of land. Indeed, Section 26(1) of the Land Registration Act provides as follows: “The Certificate of Title issued by the Registrar upon registration, to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all counts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 33 of 42

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certificate, and the title of the proprietor shall not be subject to challenge, except – a. On the ground of fraud or misrepresentation to which the person is proved to be a party b. Where the Certificate of Title has been acquired illegally, unprocedurally, or through a corrupt scheme 142. As may be observed, the law is extremely protective of title and provides only two instances in which title may be challenged. The first is where the title is obtained by fraud or misrepresentation, to which the person must be proved to be a party. The second is where the certificate of title has been acquired illegally, unprocedurally, or through a corrupt scheme. 143. The purpose of Section 26 (1)(b) is to remove protection from an innocent purchaser or title holder. It means an innocent person's title is impeachable if it was obtained illegally, unprocedurally, or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The aim of Section 26 (1)(b) is to protect the true title holders from losing their titles due to subsequent transactions. 144. The Court of Appeal in the case of Munyu Maina vs. Hiram Gathiha Maina [2013] eKLR, had held as follows: “We state that when a registered proprietor’s root of title is under challenge, it is not sufficient 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.” 145. In this case, the 1st Appellant/Plaintiff instituted these proceedings in 2016 seeking declaratory orders affirming his absolute ownership of the suit property and validating his subsequent transfer of the property NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 34 of 42

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to the Interested Party, Alice Nyambura Njama, who subsequently transferred it to Patrick Kamau Nderitu. 146. Conversely, the 1st Respondent/Defendant filed a Defence and Counter-Claim asserting that she is the legitimate original owner of the suit property. She maintained that she never sold the property to the 1st Appellant/Plaintiff, but merely deposited her original title deed with him as security for an informal money loan. 147. That instead, the 1st Appellant/Plaintiff had fraudulently forged her signature on a handwritten Sale Agreement dated 16 th September 2014, caused her caution to be removed using an ex parte court decree in MCCC 29/16, and illicitly transferred the land to Alice Nyambura Njama (1st interested party), who subsequently transferred it to Patrick Kamau Nderitu (2nd interested party) 148. She contended that the 1st Appellant/1st Plaintiff fraudulently generated a forged sale agreement and transfer documents to register the suit property in his name. Consequently, she sought the revocation and cancellation of all titles issued to the 1st Appellant/1st Plaintiff, the Interested Party, and Patrick Kamau Nderitu, and an order directing the Land Registrar to restore her as the registered owner. 149. Evidence on record was that as soon as the 1st Defendant completed her M-Pesa loan repayments by May 2015 and realised the 1st Appellant/1st Plaintiff refused to return her title deed, she immediately reported the matter to DCI Naivasha, resulting in his arrest and charging in Criminal Case No. 421 of 2016. She also placed a formal caution/restriction on the register on 9 th October 2015 to protect her property. Despite the caution being in place, the 1 st Appellant/1st Plaintiff subsequently used ex parte court proceedings in MCCC 29/16 to unprocedurally remove her caution and register himself as owner without her knowledge. 150. Fraud is a serious matter which must be proved to the required standard. In Fanikiwa Limited & 3 others v Sirikwa Squatters Group & 17 others (Petition 32 (E036), 35 (E038) & 36 (E039) of NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 35 of 42

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2022 (Consolidated) [2023] KESC 105 (KLR) (15 December 2023) (Judgment), the Supreme Court had observed as follows: “…However, it is trite law that fraud which, depending on the circumstances is recognized as a criminal offence, must be pleaded and strictly proved. In addition, although the standard of proof of fraud in civil matters is not proof beyond reasonable doubt, it is higher than proof on a balance of probabilities as required in other civil claims.’’ 151. I have no doubt that the 1st Defendant/Respondent, in her counterclaim, distinctly pleaded the facts on which fraud was alleged against the 1st Appellant/Plaintiff. The next step, however, was for her to prove it, which she did as follows: In normal conveyancing practice, a genuine vendor surrenders the original title deed to the purchaser upon completion of the sale to enable registration of the transfer. In the present case, the original Title Deed issued to the 1st Defendant/Respondent remained in her physical custody and was produced by her as Df exh 1, thus strongly corroborating the 1st Respondent’s position that she never transferred ownership of the land to the 1st Appellant/Plaintiff. It is trite that a legitimate purchaser would normally hold the original document after a genuine sale, yet here, the vendor retained it while the buyer claimed to have bought the land. 152. Secondly, a contract for the disposition of an interest in land must comply strictly with Section 3(3) of the Law of Contract Act, which mandates that the agreement must be in writing, signed by all parties, and the signature of each party executing must be attested by a witness who was present when the contract was signed. 153. The 1st Appellant/1st Plaintiff’s own testimony under cross- examination was evasive and contradictory. He claimed a witness named Mwaura signed the agreement, only to concede later in his testimony that Mwaura may not have signed at all. He further failed to call Mwaura or the advocate who allegedly drew the transfer forms to corroborate his claims. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 36 of 42

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154. The 1st Appellant/1st Plaintiff also admitted that key supporting documents, such as the Land Board consent and the transfer form executed by the 1st Respondent/Defendant, were never produced as exhibits in court to substantiate his claim. Instead, he claimed that he had left them with the DCI during investigations but did not call evidence to support his claim. 155. Lastly, the resolution of this question turns fundamentally on the validity of the primary instrument of alienation, the handwritten Sale Agreement dated 16th September 2014, through which the 1st Plaintiff claims to have lawfully acquired all that parcel of land known as Title No. Naivasha/Maraigushu Block 7/1268 (North Karati) hereinafter referred to as the suit property. 156. The most compelling and decisive evidence before this Court regarding the questioned instrument was delivered by Inspector Martin Kitayi (DW3), a Document Examiner from the Directorate of Criminal Investigations (DCI) Forensic Headquarters, who had subjected the questioned handwritten Sale Agreement dated 16 th September 2014 to rigorous scientific comparison against the known, undisputed, and specimen signatures of the 1 st Defendant/Respondent. Vide his report dated 16th March 2016, he unequivocally found that the signatures on the questioned sale agreement were executed by a different author and were not the signatures of Ruth Wamuyu Wang’ombe. The 1st Plaintiff failed to present any counter-expert testimony or forensic analysis to rebut DW3's findings. 157. Section 48 of the Evidence Act allows expert opinions on handwriting because it is a specialised skill. The said provision of the law provides that; ‘’When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 37 of 42

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genuineness of handwriting or fingerprint or other impressions. (2) Such persons are called experts.’’ 158. The Court of Appeal in Shah and Another -vs- Shah and Others [2003] 1 EA 290, had held as follows: “One of the special circumstances when witnesses may be called to give evidence of opinion is where the situation involves evidence of expert witness and this is an exception to the general rule that oral evidence must be direct…The expert opinion is however limited to foreign law science or art; including all subjects on which a course of study or experience is necessary to the formation of an opinion and handwriting is one such field…However as a rule of practice, a witness should always be qualified in court before giving his evidence and this is done by asking questions to determine and failure to properly qualify an expert may result in exclusion of his testimony… The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so…Properly grounded expert evidence of scientific conclusion will be extremely persuasive in assisting the court to reach its own opinion” 159. This was a case where the Court of Appeal made a significant decision on the importance of forensic evidence, to the effect that it needed to be properly grounded in other relevant facts to be persuasive in assisting the Court. In the instant case, DW3, a forensic expert, testified that the 1st Defendant did not sign the impugned handwritten Sale Agreement dated 16th September 2014. 160. Under Section 3(3) of the Law of Contract Act (Cap 23), a contract for the disposition of an interest in land is unenforceable unless it is in NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 38 of 42

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writing, signed by all parties, and attested by a witness who was present at the signing. The 1st Plaintiff/ Appellant’s oral testimony regarding the execution of the agreement collapsed under crossexamination when he initially testified that the agreement was written by hand at Wambugu Restaurant in the presence of an attesting witness named Mwaura. However, when pressed, he recanted, conceding that Mwaura may not have signed the document at all and that he could not recall key aspects of the execution. The 1st Plaintiff/Appellant failed to call Mwaura to testify. 161. Furthermore, the 1st Plaintiff/appellant admitted that he could not produce the original Land Control Board consent or the formal Transfer Form executed by the 1st Defendant/Respondent, wherein the absence of corroborative conveyancing documentation reinforced the conclusion that the transaction lacked genuine vendor consent. 162. Having established that the 1st Respondent/Defendant’s signature on the Sale Agreement dated 16 th September 2014 was forged, the legal implications are absolute as a forged document is a legal nullity. I find that the Sale Agreement dated 16th September 2014 in respect of Land Parcel No. Naivasha/Maraigushu Block 7/1268 was fraudulent and illegal. 163. The 1st Appellant/Plaintiff therefore obtained registration through forgery, unauthorized conversion of pledged collateral, and unprocedural removal of a caution. Consequently, this Court holds that he fraudulently obtained title to Naivasha/Maraigushu Block 7/1268, rendering his initial title null and void under Section 26(1) of the Land Registration Act. 164. On whether the dismissal/acquittal of the 1st Appellant/Plaintiff in Naivasha Criminal Case No. 421 of 2016 bars or settles the 1st Defendant’s claim of fraud and forgery in a civil court, I find this argument legally flawed. Civil courts are not bound by the findings or acquittals of criminal courts. A criminal prosecution may fail due to procedural technicalities or the standard of proof beyond reasonable doubt, which differs from civil law, which requires proof on a balance of NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 39 of 42

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probabilities. An acquittal in a criminal court does not automatically prove in a civil court that a signature is genuine—especially when an unrefuted expert report proves the contrary. Indeed, as DW3 noted, he was never called to testify in the criminal case. 165. In a civil court assessing land title under Section 26(1) of the Land Registration Act, No. 3 of 2012, once fraud or forgery is proved to a high degree of probability, the title so obtained is impeachable regardless of a criminal acquittal. 166. As to whether the Interested Parties (Alice Nyambura Njama) and Patrick Kamau Nderitu (DW5), the subsequent purchasers of No. Naivasha/Maraigushu Block 7/1268, both the Interested Party (Alice Nyambura Njama - DW4) and the Subsequent Purchaser (Patrick Kamau Nderitu, DW5) claimed protection as bona fide purchasers for value without notice. 167. The Black’s Law Dictionary 9th Edition defines a bona fide purchaser as: “One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.” 168. It is a fundamental principle of property law that one cannot give what they do not have (nemo dat quod non habet). Indeed, a basic tenet of land law, reaffirmed by the Supreme Court in Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment), is that registration alone does not protect a buyer if the vendor’s title was acquired illegally or through fraud. Under Section 26(1) of the Land Registration Act (LRA), an initial title derived from forgery is void ab initio. In that case, the Supreme Court had held as follows: NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 40 of 42

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“To establish whether the appellant is a bona fide purchaser for value therefore, we must first go to the root of the title, right from the first allotment, as this is the bone of contention in this matter. …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 first 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 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 benefit from the doctrine of bona fide purchaser” 169. A title deed is not a sacred cow if its origin is questionable and therefore, having found that the 1st Appellant/Plaintiff’s title was rooted in forgery and fraud, he passed no valid legal interest to the Interested Party. 170. Furthermore, as regards the 2nd Interested Party (DW5), the evidence on record is to the effect that he purchased the land from the 1st Interested Party (DW4) in June 2022, and obtained the title in July 2022 during which period, the 1st Interested Party (DW4) had already formally joined this active lawsuit (in September 2019) and filed her statement of defence (in September 2020) NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 41 of 42

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171. The doctrine of lis pendens provides that during the pendency of a court suit regarding title to immovable property, the property cannot be transferred or dealt with to the prejudice of any party thereto except under an order of the court. 172. The 1st Interested Party admitted under cross-examination that she knowingly sold the suit land to Patrick during active litigation without disclosing the court dispute. Having purchased property that was actively sub judice, Patrick Kamau Nderitu cannot claim protection as an innocent purchaser against the original rightful owner. 173. Section 80 (1) of the Land Registration Act provides that:“Subject to sub-section (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.” 174. From the above provisions, it is clear that the court has powers to order rectification of a register by directing that the registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. 175. ‘The legal conclusion of this appeal therefore is that I find no fault in the trial Magistrate’s decision; the Appeal lacks merit and is dismissed with costs. Dated and delivered via Microsoft Teams at Naivasha, this 1st day of October 2026. M.C. OUNDO ENVIRONMENT & LAND COURT– JUDGE. NAIVASHA ELCLA NO. E028/25 JUDGEMENT Page 42 of 42

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