Daniel Njuguna Murigi & 5 Others v John Gicheha Njoroge (Sued as Administrator of the estate of Hannah Ngendo Murigi) & 2 Others

JUDGMENT 1. The Plaintiffs and 2nd 3rd Party are all children of Hannah Ngendo Murigi (now deceased). The said Hannah Ngendo was registered as the owner of land parcel number KIAMBAA/ THIMBIGUA/3366 to hold it in trust for her children. In their initial Plaint dated 4 th April 2019 the Plaintiffs filed suit against the 1st, 2nd and 3rd Defendants claiming that the 1st Defendant had fraudulently transferred the suit property to the 2nd Defendant who in turn charged it to the 3 rd Defendant to secure a loan of Kshs. 7,000,000/=. The Plaintiff sought the following reliefs: a) A declaration the 2nd Defendant acquired title to the land parcel number KIAMBAA/ THIMBIGUA/3366 fraudulently and the same be cancelled. b) A declaration that the charge in favour of the 3rd Defendant be cancelled and discharged unconditionally. c) That the register of land parcel number KIAMBAA/ THIMBIGUA/3366 be rectified so as to remove the entries in favour of Nicholas Karunjigi Munyua and the charge in favour of Equity Bank (Kenya) limited and the title to revert back to the proprietorship of Hannah Ngengo Murigi to hold it in trust for all her children. d) Costs of the suit jointly and/or severally against Defendants. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 2 the

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2. The 3rd defendant subsequently took out a Third Party Notice against the 1st and 2nd Third parties seeking indemnity and /or contribution. The 3rd Defendant also filed a Notice of Claim against the 1 st and 2nd Defendants seeking indemnity/contribution against them. 3. The 2nd Defendant and 1st Third party filed an Amended Defence and Counterclaim dated 30th April 2023 denying the Plaintiff’s claim against them. The 2nd Defendant states that he is an innocent purchaser who was not aware of the alleged fraud perpetrated by the 1st Defendant as he was neither charged in Kiambu CM Criminal Case no. 395 of 2017 nor was he found guilty of any offence. He further avers that the plaintiffs gave their written consent of the suit property to him and that he paid the full purchase price. 4. The 2nd Defendant further denies the 3rd Defendant’s claim against him and states that upon lawful transfer of the suit property to him, he did not require the consent of any stakeholders to charge the same to the 3rd Defendant and that the 3rd Defendant could only have granted the 2nd Defendant the financial facility upon satisfaction that he was the rightful owner of the suit property. 5. In their Counterclaim the 2nd Defendant and 1st Third Party pray for a declaration that the 2nd defendant is the rightful registered owner of the suit property. They further pray that the Plaintiffs, Hannah Ngendo (Deceased), 3rd Defendant and 2nd Third Party be restrained THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 3

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by way of injunction from entering or in any way dealing with the suit property. 6. In the alternative they pray for full refund of the monies paid to Hannah Ngendo (Deceased) by the 2nd and 3rd Defendants together with interest thereon as per the terms of the contract 7. The 3rd Defendant filed its Amended Defence and Counterclaim dated 4.3.2021 denying the Plaintiff’s claim. In its Counterclaim the 3rd Defendant claims indemnity against the Plaintiffs the 1 st and 2nd Third parties and 1st and 2nd Defendants. and states that in the event any order is made in favour of nullification of the sale of the suit property by the 1st Defendant to the 2nd defendant and nullification of the charge registered on the suit land to secure the sum of Kshs. 7,000,000, it be paid the balance of the loan which stood at Kshs 5,381,707.85 as at 15.6.2020. 8. The 2nd third party neither entered appearance nor filed a Defence. PLAINTIFFS’ CASE 9. The Plaintiff called 3 witnesses. Ruth Wamaitha Murigi the 2nd plaintiff testified as PW1. She relied on her witness statement date 4.4.2019 and produced the 9 documents in the Plaintiffs’ bundle of documents as Plaintiffs’ exhibits 1-9. Upon cross-examination, she stated that she learned of the sale of the suit property through her sister’s boyfriend in late 2013 after which she reported the matter to the District Officer and their area Member of Parliament. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 4

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10. This resulted in her mother being arrested and charged. She denied that she had signed the consent dated 22.3.2013. She testified that 1st defendant fraudulently transferred the suit property to the 2nd Defendant who in turn charged it to the 3rd Defendant. She stated that her brother Daniel lodged a caution against the title but it was vacated on the basis of a fake court order. Simon Arome, the Magistrate who is alleged to have signed the said court order testified in the Criminal Case and stated that the signature was fake. 11. Roxana Muthoni Murigi who testified ad PW2 corroborated PW1’s evidence and stated that she had testified against her mother in the criminal case. She stated that the signature attributed to her on the consent was a forgery. She said she was aware that her mother had sold the suit property but she did not give them any money. She said that the relationship between her mother broke down due to the illegal sale of their land. 12. Ruth Omesa Nyamongo a Land Registrar based at Kiambu Land Registry testified as PW3. She told the court that on 21.2.2008 the suit property was registered in the name of Hannah Ngendo Murigi to hold it in trust for all her children. A caution was registered on the title on 26.6.2010 by Priscillah Wairimu claiming a beneficial interest but the said caution was removed on 10.1.2013 pursuant to a court order in Kiambu HC Misc App No. 1 of 2013. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 5

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13. A second caution was registered on 13.3.2013 by Daniel Njuguna Murigi and Teresiah Wanjiru Muikamba but it was removed on 15.7.2013 pursuant to a court order in RM Misc Application no. 39 of 2013. The suit property was then registered in the name of the 2nd Defendant and a charge was registered in favour of Equity Bank on the same day. 14. PW3 took the court through the documents that are needed to effect a transfer and confirmed that that they received all the necessary documents before the transfer was effected. She explained that since the suit property was held in trust, they were required to confirm the trusteeship and obtain the consent of all the children before any transfer could be made. 15. She testified that although there was a Letter of consent of the Land Control Board to transfer the title from Hannah Ngendo to Nicholas Karunjigi Munyua, the said consent did not indicate if Hannah’s children had consented to the transfer. She confirmed that they normally check that all the documents are in order before a transfer is effected. 2ND DEFENDANT AND 1ST THIRD PARTY’S CASE 16. Nicholas Karunjigi Munyua the 2nd Defendant and director of the 1st Third Party testified as DW1. He relied on his witness THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 6

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statement dated 3.10.23. He produced the documents in the 2 nd Defendant and 1st Third Party’s Bundle of documents dated 30.3.21 and Supplementary Bundle of Documents dated 16.7.24 as the 2 nd & 1st Third Party’s exhibits 1-19. 17. He told the court that he met the Plaintiffs in 2012 through a property agent who informed him that the Plaintiffs intended to sell the suit property. He visited the suit property and found that Hannah, Daniel and Ruth were staying on the land. They took him round and confirmed that they were selling the land. He approached Equity Bank which sent one of its officers to accompany him to the suit property after which they agreed to finance part of the purchase price. 18. DW1 testified that the plaintiff’s family appointed Hannah and Jennifer to represent them in the negotiations with the bank and he subsequently entered into a sale agreement dated 24.1.2013 with Hannah Ngendo Murigi. The agreed purchase price was Kshs. 10 million out of which he paid Kshs. 3 million and the bank agreed to extend loan facility of Kshs. 7 million secured by a charge over the title to the suit property to clear the balance. The amount of Kshs. 7 million was paid into a joint account at Equity bank in the names of Hannah and Jennifer. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 7

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19. He told the court that after he bought the suit property, he was not able to take vacant possession thereof as Hannah, Ruth and Daniel were in occupation. He stated that he had hoped to get rental income from the houses on the suit property in order to service the loan but owing to the fact that he was unable to get the rental income combined with the onset of COVID 19, he defaulted in repayment of the loan. This caused the bank to advertise the property for sale by public auction. 20. Upon cross -examination he stated that the bank’s advocate submitted the application for Land Control Board consent and all the plaintiffs were present during the meeting of the Land Control Board. He insisted that the consent to transfer the suit property was lawfully obtained. He was however unable to produce the minutes of the meeting of the Land Control Board as he said they were kept at D. C’s office. 21. He stated that at the time he signed the sale agreement, there was no caution on the suit property. He told the court that he was not present when the plaintiffs executed the consent dated 22.3.2013. 22. He confirmed that the bank was not in touch with the plaintiff’s family nor were they involved when the sale agreement was signed. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 8

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23. Eunice Wanjiru Kiumu, the Relationship Manager, Equity Bank testified on behalf of the 3rd Defendant as DW3. She adopted her witness statement dated 8.8.2019 and supplementary witness statement dated 26.3. 2021 as her evidence in chief. She produced the documents in the 3rd Defendant’s bundle of documents as 3rd Defendants’ Exhibits 1-11. 24. Upon cross-examination she confirmed that the Valuation Report indicates that there is an encumbrance on the suit property dated 13.3.2013 in the form of a caution by Daniel Njuguna and Teresia Wanjuhi Muikamaba. The Certificate of official Search dated 23.4.2013 produced by the 3rd Defendant also shows that there is a caution dated 23.4.2013. She stated that the letter of offer to Kimri Consultants (1st Third Party) was issued on 22.4.2013. 25. She stated that the official search was done after the offer was accepted. She informed the court that the bank conducted due diligence and consent of the beneficiaries was obtained before the loan was disbursed. She also confirmed that by the time they disbursed the loan there was no encumbrance on the suit property. 26. Hanna Ngendo Murigi who was the initial 1st Defendant passed away in July 2022 and was substituted by John Gicheha Njoroge. However, the said John Gicheha Njoroge opted not to give any evidence as he said he was not conversant with the matter and he was not present when the loan was disbursed. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 9

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27. After the hearing was concluded the Plaintiffs, 2nd Defendant and 1st interested Party filed their written submissions. The 1 st and 3rd defendants did not file any submissions. PLAINTIFFS’ SUBMISSIONS 28. Learned counsel for the plaintiffs framed the following issues for determination: i. Whether a family trust exists over the suit premises in favour of the plaintiffs ii. Whether the 1st and 2nd defendant and third parties had authority or capacity to deal with the suit property without the consent of the beneficiaries. iii. Whether the sale to the 2nd defendant was valid or void/voidable by virtue of lack of consent of the beneficiaries. iv. Whether the title issued to the 2nd defendant should be cancelled. v. 29. Whether the Plaintiffs are entitled to the reliefs sought. On the existence of a trust counsel submitted that it is undisputed that the suit property was registered in the name of Hannah Ngendo, the Plaintiffs’ mother to hold in trust for all her children. It has been submitted that the suit property was sold without the consent of the plaintiffs. The Plaintiffs further submitted that despite the fact that there was a caution over the suit property THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 10

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at the time of sale, this was not mentioned in the sale agreement. They contend that they neither signed nor witnessed the sale agreement thus casting a doubt on the validity of the same. 30. The consent alleged to have been signed by the plaintiffs has been dismissed as forgery as the plaintiffs denied signing the said consent. The fact that the said consent was allegedly signed several months after the sale agreement and immediately before the 3rd Defendant advanced a loan to the 2 nd defendant to finance the purchase of the suit property has been flagged as an attempt to sanitize the transaction. 31. The 3rd defendant has been faulted for failing to conduct further due diligence after discovering that there was a caution lodged on the title. 32. The court order that was used to lift the caution has also been called into question. Indeed, the Land Registrar who testified in this matter confirmed that the title was the subject of investigations for by DCI which resulted in the plaintiffs’ mother being charged with forgery in Kiambu CM Criminal Case No. 395 of 2017. In the said suit the Magistrate who is alleged to have issued an order for the removal of the caution disowned the signature on the said order. 33. It was submitted that the deceased 1 st Defendant who held the title in trust for the plaintiffs breached the trust by disposing of THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 11

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the suit property without the consent of the beneficiaries. It was counsel’s submission that Section 25(2) of the Land Registration Act, 2012 provides that the rights of a registered proprietor are subject to overriding interests including those of persons with a beneficial interest or those arising under a trust. It was further submitted that Section 28 of the Act recognizes trusts, including customary trusts as overriding interests. The sale of the suit property without the beneficiaries’ consent therefore renders the transaction illegal and unenforceable. 34. It was submitted that the transfer of the suit property when there was an existing caution demonstrates that the sale was tainted with fraud and that the same is impeachable under the provisions of section 26 (1) (a) and (b) of the Land Registration Act. Reliance was placed on the case of Daudi Kiptugen V Commissioner of Lands & 4 Others (2015) eKLR where the court held that: “No court ought to sanction the retention of property that has been obtained through fraud or illegality. Such title stands to be nullified.” 35. It was further submitted that the registration of the suit property in the 2nd Defendant’s name did not extinguish the beneficial interest of the Plaintiffs. Reliance was placed on the case of Mbui Mukangu v Gerald Mbui (2004) eKLR where the Court THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 12

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of Appeal affirmed that a trust is an overriding interest that need not be noted in the register. 36. Further reliance was placed on the case of Njinu v Orkesi & 5 Other; Tumpes (Interested Party ( 2024) where the Court annulled transfers that were effected without the consent of beneficiaries and held that the beneficiaries’ equitable interests under the trust override the registered title obtained in breach of procedure. 37. It was submitted that in view of the fraud, lack of consent of the beneficiaries and breach of trust the court ought to cancel the 2nd defendant’s title so that it reverts to Hannah Ngendo Murigi to hold it in trust for all her children. 2ND DEFENDANT & 1st THIRD PARTY’S SUBMISSIONS 38. The 2nd Defendant filed their submissions dated 9th December 2025. It is their contention that the transfer and charge of the suit property was done procedurally and if there was any fraud then the same was perpetrated by the late Hannah Ngendo Murigi and Jennifer Murigi, the 2nd Third party. They deny that they were party to any fraud and claim that they were also victims hence they should be compensated. 39. They singled out three issues for determination: THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 13

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i. Whether the Plaintiffs have proved the allegations of fraud and forgery to the required standard; ii. Whether the 2nd defendant is the registered owner of L.R Number Kiambaa/Thimbigua/3366 and is an innocent purchaser for value. iii. Whether the 3rd Defendant is liable for negligence and wrongfully enjoined the 1st Third party. 40. It was submitted that according to the evidence of the Land Registrar, there was no caution on the suit property by the time Hannah Ngendo entered into a sale agreement with the 2 nd Defendant on 24th January 2013. The caution that had been placed on the suit property on 25th June 2010 had been removed on 19.1.2013 through a court order dated 10.1.2013. 41. A second caution placed on the suit property on 13 th March 2013 was removed vide a court order issued on 11.7.2013. It is this court order that gave rise to criminal proceedings against Hannah Ngendo in Kiambu Criminal Case N. 395 of 2017 Republic v Hannah Ngendo Murigi. However, it was submitted that the criminal proceedings were not concluded and therefore could not the basis of a conclusion that the order removing the caution was fraudulent. It was further submitted that the 2nd defendant was not involved in the preparation or presentation of the said court order. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 14

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42. Regarding the manner in which the consent of the Land Control Board Consent was obtained, it was submitted that the process for obtaining the consent was legitimate and the consents to transfer and charge the suit property were genuine. It was contended that there was no proof that the 2nd defendant participated in any fraud. 43. On whether the 2nd Defendant is the registered owner of the suit property and whether he was an innocent purchaser for value, it was submitted that the 2nd Defendant had no reason to doubt that the late Hannah Ngendo had the consent of all her children to enter into the sale agreement with the 2 nd Defendant since she had a Certificate of Confirmation of Grant and she informed him that her children had consented to the sale. Further that the 2nd Defendant contracted with Hannah Ngendo in her capacity as an absolute proprietor without notice of the trust. 44. It was submitted that the chain of ownership of the suit property from James Murigi to Hannah Ngendo in trust for her children and subsequently to Nicholas Munyua was regular and that the 2nd Defendant obtained a good title. However, the 2 nd Defendant contends that if there were any irregularities with respect to the transaction, he had no notice of the same and it did not go the root of title to warrant nullification of the title. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 15

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45. It is the 2nd Defendant’s submission that the 3rd Defendant which was financing the transaction had control of the entire process from valuation of the suit property upto the time the property was registered in the 2nd Defendant’s name and a charge registered in favour of the 3rd Defendant. 46. The 3rd Defendant was faulted for failing to exercise due diligence in the registration process while the Land Registrar was blamed for failing to verify the Court order that was used to lift the caution. It was submitted that under section 26 of the Land Registration Act, a person’s title could only be challenged on grounds of fraud to which the person is proved to be a party but in the instant case, the 2nd defendant was not a party to any alleged fraud. 47. Regarding the joinder of the 1 st Third Party to the proceedings, it was submitted that under section 91 of the Land Act a chargee can only sue to recover its money if the charge is deprived of its security as a result of the wrongful act or default of the chargor but in this case, the 2nd defendant was still the registered owner of the suit property. The joinder of the 1 st Third Party was therefore said to be wrongful and speculative. 48. It was submitted that the challenge to the 2 nd Defendant’s title arose due to the 3rd defendant’s negligence in conducting due THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 16

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diligence and it was therefore liable for any losses and costs arising therefrom. 49. The 3rd Defendant was faulted for failing to conduct proper due diligence by failing to notify the 2 nd defendant and 1st Third Party of the existence of the caution and process through which it was removed. ANALYSIS AND DETERMINATION 50. I have carefully considered the pleadings, evidence on record and the party’s submissions and the following issues arise for determination: i. Whether a family trust exists over L.R Number Kiambaa/Thimbigua/3366; ii. Whether the plaintiffs consented to the sale of the suit property to the 2nd Defendant; iii. Whether the sale of the suit property to the 2 nd defendant was tainted with fraud or illegality. iv. Whether the 2nd Defendant’s title should be cancelled. v. Whether the 3rd Defendant has proved its claim against the 2 nd defendant and third parties. vi. Whether the 2nd Defendant and 1st Third Party are entitled to the reliefs sought in their Counterclaim. vii. Whether the 3rd Defendant has proved its claim against the 2 nd Defendant and 1st Third Party. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 17

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51. It is not in dispute that the suit property was initially registered in the name of James Murigi, the late father of the Plaintiffs and husband to Hannah Ngendo Murigi. Upon his demise the property was transferred to her through transmission to hold it in trust for all her children. 52. Section 25 of the Land Registration Act provides as follows: The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of the court , shall not be liable to be defeated except as provided in this Act and shall be held by the proprietor together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject a)…. b) to such liabilities, right and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. (2) nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject as s trustee. 53. Additionally, section 28 of the Act provides that . Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 18

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time being subsist and affect the same, without being noted on the registera)… b) trusts including customary trusts. As a trustee Hannah Ngendo was under a fiduciary duty to safeguard the suit property for the benefit of the plaintiffs who are the beneficiaries. 54. The basis of the Plaintiffs case is that their mother Hannah Ngendo Murigi sold the suit property which she held in trust for them without their consent. Both PW1 and PW2 testified that they did not consent to the sale of the suit property. In particular Roxana who testified as PW2 stated that the signature against her name on the consent presented to the 3 rd Defendant by their mother was forged. When the plaintiffs learnt of the sale, they reported Hanna Ngendo to the District Officer and their Member of Parliament who advised them to report the matter to the Director of Criminal investigations. Hannah was subsequently arrested and charged in Kiambu Criminal Case no. 395 of 2017. 55. Granted that the criminal case had not been concluded by the time this case was heard, the Plaintiffs did not produce any forensic report to show that their signatures were forged. I am therefore unable to arrive at the finding that the Plaintiffs did not consent to the sale of the suit property. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 19

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56. I will now to move on to determine whether the sale of the suit property was tainted with fraud or illegality. 57. Black’s Law Dictionary defines fraud as follows: “Fraud consists of some deceitful practice or willful device resorted to with intent to deprive another of his right or in some manner do him injury. As distinguished from negligence, it is always positive, intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artifice with design to obtain some unjust advantage to the one party or cause an inconvenience or loss to the other. Fraud in the sense of a court of equity properly includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust or confidence justly reposed and are injurious to another or by which an undue and unconscientious advantage is taken of another” 58. It is clear that fraud entails conduct that willfully deceives a person and deprives him of his right. The consequences of a finding of fraud are grave as they may lead to impeachment of a title to land. The jurisprudence on fraud is well settled. Fraud must not only be specifically pleaded but it must be strictly proved. General allegations, suspicions and inferences are insufficient to prove fraud. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 20

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The standard of proof is not as high as beyond reasonable doubt but it is higher than a balance of probabilities. See the case of Vijay Morjaria v Nansingh Madhusingh Darbar (2000) eKLR. 59. In their Plaint the Plaintiffs set out various particulars of fraud against the 1st and 2nd Defendants and what they termed as particulars of negligence against the 3rd Defendant. 60. Firstly, they accused the 1st and 2nd Defendants of preparing a fake court order purportedly issued in Kiambu Miscellaneous Application No. 39 of 2013 by Honourable Simon Arome on 11.7.2013. and presenting the said order at the Lands Registry, Kiambu to lift the caution dated 13 th March 2013 placed on the suit property by the plaintiffs. 61. In her witness statement dated 4.4.2019, Roxana Muthoni Murigi who testified as PW2 stated that the Division of Criminal Investigations at Kiambu found that there was forgery of a court order to remove the caution that had been placed on the suit property enabling illegal transactions. 62. As a result of the said investigations Hannah Ngendo was charged with criminal offences related to forgery. Although Roxana testified that the Magistrate who is alleged to have signed the court order vacating the caution testified in the criminal case that his THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 21

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signature had been forged, the plaintiffs did not produce the DC1 report nor did they produce the judgment in the criminal case. Whether or not the court order was fake therefore remains inconclusive. 63. Secondly, the plaintiffs alleged that the 1st and 2nd Defendants obtained the Land Control Board Consent to transfer the suit property from the 1st Defendant to the 2nd defendant in a fraudulent manner as none of the beneficiaries appeared before the Land Control Board. This was controverted by the 2 nd Defendant who testified that he appeared before the Land Control Board together with all the plaintiffs and 1st defendant. In the absence of the minutes of the Land Control Board meeting that approved the transfer of the suit property, the court is unable to conclude that the plaintiffs did not attend the said meeting. 64. Thirdly, the Plaintiffs accused the 1st and 2nd Defendants of transferring the suit property from the 1st to the 2nd defendant without the knowledge and consent of the plaintiffs who are beneficiaries of the suit property. 65. As noted earlier in this judgment, the plaintiffs did not produce any forensic report to prove that their signatures on the consent produced by the 2nd Defendant were forged, hence the transfer was proper. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 22

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66. Fourthly, the Plaintiffs claim that the 2nd Defendant created a charge in favour of the 3rd Defendant while in full knowledge that he had no good title to the suit property and that he subsequently defaulted on the loan. 67. Ruth Omesa Nyamongo, the Land Registrar, Kiambu who testified as PW3 testified that the suit property was transferred from Hannah Ngendo Murigi to Nicholas Karunjigi Munyua on 31.7.2013 after removal of the caution and upon confirming that all the documents were in order. The property having lawfully passed from Hannah Ngendo Murigi to Nicholas Karunjigi Munyua, there was nothing barring the charge from being registered in favour of the 3 rd Defendant. 68. The totality of the evidence on record demonstrates that there may have been some irregularities and lapses but the plaintiffs failed to present cogent evidence to prove fraud to the required standard. 69. This leads me to the next question as to whether the 2 nd defendant’s title should be cancelled. Having arrived at the finding that fraud was not proved, there would be no basis to cancel the 2 nd Defendant’s title. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 23

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70. The next issue for determination is whether the 2 nd Defendant and 1st 3rd Party are entitled to the orders sought in their Counterclaim. 71. In their Amended Counterclaim dated 30.4.21 the 2 nd Defendant and 1st Third Party seek the following reliefs: a) A declaration that the 2nd Defendant is the legal and rightful registered owner of land parcel number Kiambaa/Thimbigua 3366, the suit property; b) The Plaintiffs, 1st Defendant, 3rd Defendant and 2nd Third Party be restrained by way of permanent injunction from entering or in any way dealing with the suit property. c) The Plaintiffs, 1st Defendant, 3rd Defendant and 2nd Third Party be restrained by way of permanent injunction from interfering with the 2nd Defendant’s quiet enjoyment of the suit property. 72. In the alternative they seek the following reliefs: d) A full a refund of all monies paid to the 1 st Defendant by the 2nd and 3rd Defendants plus interest thereon as per the terms of the contract; e) Damages for breach of contract; f) The 3rd Defendant refunds all sums collected from the 2 nd defendant and/or the 1st Third Party and all cost incurred from his account in connection with the charge on the suit property THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 24

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g) The 3rd Defendant provides the 1st Third party statement of account number 0870260582991 from inception and until the date of judgment; h) The 2nd defendant and the 1st Third Party be discharged fully from any debt or liability in connection with the charge on the suit property. 73. Apart from holding that the 2nd defendant is the registered owner of the suit property, the court is unable to grant the other prayers in the counterclaim as no evidence was led regarding the same. 74. In its Amended Defence and Counterclaim, the 3rd Defendant seeks indemnity against the Plaintiffs, 1st and 2nd third parties and the 1st and 2nd Defendants in the event of any order in favour of the Plaintiff for nullification of sale of the suit property by the 1 st Defendant to the 2nd Defendant and nullification of the charge registered on the suit property to secure the sum of Kshs. 7,000,000 which indemnity is to the extent of the unpaid loan, interest and penalties incurred by the 3rd Defendant. 75. In particular the 3rd Defendant prays for a declaration that the charge registered on land parcel number Kiambaa/ Thimbigua 3366 in favour of the 3rd Defendant and the 3rd Defendant’s right as chargee is indefeasible. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 25

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76. In the alternative, it prays for full payment of the loan to the 1st Third Party, interest and penalties. 77. As correctly submitted by counsel for the 2nd Defendant and 1st Third Party, the proceedings in this suit and the evidence adduced by the parties was for purposes of establishing the parties claims to the suit property and not for purposes of establishing the 2 nd Defendant and 1st Third Party’s debt to secure the rights of the parties. 78. This court will therefore not delve into the issue of recovery of the outstanding debt as that falls outside the jurisdiction of this court. However, having affirmed the 2nd Defendant’s title, it follows that the charge in favour of the 3rd defendant is valid. 79. In the final analysis, the Plaintiffs’ suit is dismissed. The Counterclaim of the 2nd Defendant and 1st Third Party and 3rd Defendant’s Counterclaim are partially allowed and I make the following final orders: a) A declaration that the 2nd Defendant is the legal and rightful registered owner of land parcel number Kiambaa/Thimbigua 3366, the suit property; b) A declaration is hereby issued that the charge registered on land parcel number Kiambaa/ Thimbigua 3366 in favour of the 3 rd THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 26

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Defendant and the 3rd Defendant’s right as chargee is indefeasible. c) Considering the circumstances of this case, each party shall bear its own costs. Dated, signed and delivered virtually this 29th day of September 2026. J.M ONYANGO JUDGE Judgment delivered in the absence of the parties. THIKA ELCLC 63 OF 2019 (JUDGMENT) Page 27

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