Godfrey Mwangi Kimani (Suing as a legal representative of the estate of Kimani Mina (Deceased)) v John Muniu, Mahiira Hosiing Company Limited & Johnson Mwangi Gachoya

under a company resolution of 5th November 1986, sold to the 1st Defendant, and registered in his name. 3. The suit was commenced by a Plaint filed on 6th July 2011 by Kimani Mina, who has since died. The Plaint was amended on 30th June 2021 and Godfrey Mwangi Kimani, the administrator of his estate, was substituted as Plaintiff. In this judgment, "the deceased" refers to Kimani Mina. THE PLAINTIFF'S CASE 4. The Plaintiff pleaded that the deceased was a fully paid-up shareholder of the 2nd Defendant. That made him eligible for allocation of a plot on the company's land, L.R. No. 10901/36 at Kahawa South, Nairobi/Ruiru. 5. To qualify for a plot, a member had to pay a purchase price of Kshs. 6,600. The deceased paid it on 12th April 1985 and was issued with receipt No. 011. He was then issued with plot certificate No. 011 dated 21st March 1987 for Plot No. 11, measuring 50 by 80 feet. 6. The deceased also paid survey fees of Kshs. 1,600. He was shown Plot No. 11 on the ground by the company's surveyor and took possession immediately. From then on, the plot was cultivated by his friend, Kahugi Watene. 7. The cause of action arose in or about May 2011. Kahugi Watene reported that the 1st Defendant had ordered him to stop cultivating the plot, and THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 2

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that the 1st Defendant had hurriedly started putting up permanent structures on it. 8. The deceased asked the 2nd Defendant how his plot had been taken over and got no satisfactory answer. He then sent a demand letter to the 2nd Defendant, copied to the 1st Defendant. The 2nd Defendant's advocates replied by letter dated 16th June 2011. They stated that the plot had been repossessed and sold to the 1st Defendant, who had transferred it to the 3rd Defendant. 9. The Plaintiff says he has been deprived of the use, occupation, possession and ownership of the suit property. He prays for judgment against the Defendants jointly and severally for: (a) a declaration that the Plaintiff is the lawful and legitimate owner of the plot formerly known as Plot No. 11, measuring 50 by 80 feet, now known as Ruiru/Kiu Block 10/280 (Mahiira), at Kahawa South of Ruiru Town; (b) a permanent injunction restraining the 3rd Defendant, by himself, his agents, servants or employees, from trespassing on, remaining on, constructing on, dealing with, transferring or alienating the suit property, or otherwise interfering with the Plaintiff's quiet use, occupation and enjoyment of it; (c) a mandatory injunction ordering the 3rd Defendant to demolish and remove the structures he has illegally put up on the suit THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 3

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property, failing which the Plaintiff be at liberty to do so and recover the cost from the 3rd Defendant; (d) costs of the suit; and (e) any other relief the court may deem fit. The 1st and 3rd Defendants' defence and counterclaim 10. The 1st and 3rd Defendants, through M/s Arusei, filed a defence and counterclaim on 22nd June 2012, amended on 10th August 2021. They deny the Plaintiff's claim and assert that the 1st Defendant owns the suit property. 11. They plead that the 1st Defendant bought the plot from the 2nd Defendant and paid the purchase price and the title processing fees, for which receipts were issued. The 1st Defendant was issued with a title deed on 5th March 2009, which they describe as the first registration of Plot No. 11 on L.R. No. 10901/36. He then sold the suit property to the 3rd Defendant on 22nd September 2010. 12. In the counterclaim, the 1st Defendant pleads that he and the 3rd Defendant entered into a sale agreement for two plots, one of them Ruiru/Kiu Block 10/280 (Mahiira). The purchase was financed by Equity Bank, and the 3rd Defendant was registered as proprietor. 13. Later, by mutual agreement, and because the 1st Defendant had already started developing the property, the 3rd Defendant transferred it THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 4

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back to him. The 1st Defendant says due process was followed in that retransfer. He now lives on the property with his family. 14. The 1st Defendant prays in the counterclaim for: (a) dismissal of the Plaintiff's suit with costs; (b)a declaration that he is the legitimate, rightful and legal owner of Ruiru/Kiu Block 10/280 (Mahiira) and is entitled to the protection of the law; (c) a permanent injunction restraining the Plaintiff, his servants, agents or anyone claiming under him from trespassing on, occupying, entering, constructing on, developing, subdividing, selling, disposing of, transferring or otherwise dealing with the suit property; (d)costs of the suit; (e) interest at court rates; and (f) any other relief. The 2nd Defendant's defence 15. The 2nd Defendant filed a defence dated 22nd June 2012, amended on 10th August 2021. It denies the Plaintiff's claim and relies on a resolution passed on 5th November 1986 under Minute 15/86. By that resolution the company resolved that: (a) a purchaser of a plot on L.R. No. 10901/36 or L.R. No. 10901/37 who remained in debt for 4 years, each plot costing Kshs. 6,600, THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 5

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would be refunded his money, as he might find the plots had run out; and (b) a purchaser who stayed away from his plot for about 8 years would lose it and have no claim whatsoever. 16. The 2nd Defendant pleads that the deceased stayed away from the plot for 24 years without developing it. Under the resolution, he therefore lost the plot, and his claim is also barred in law. It further pleads that title to land comes into existence only after a letter of allotment is issued and its conditions are met. 17. The 2nd Defendant affirms that the 1st Defendant owns the suit property. The Evidence The Plaintiff's evidence 18. The hearing began on 3rd November 2022. PW1, Godfrey Mwangi Kimani, testified that he is the son of the deceased and the administrator of his estate. He adopted the deceased's witness statement dated 11th July 2011 as part of his evidence. He produced the Plaintiff's bundle of documents as Exhibits 1 to 8, including: (a) receipt No. 011 dated 12th April 1985 for Kshs. 6,600; (b) receipt No. 2046 dated 11th March 1989 for Kshs. 1,600 (survey fees); (c) plot certificate No. 011 dated 21st March 1987; and THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 6

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(d) Letters from the 2nd Defendant dated 30th May 1996 and 21 st October 1997 (pages 180 and 181 of the bundle) confirming that the deceased had paid in full. 19. PW1 testified that the suit property is at Kahawa, Ruiru. It was registered in the 1st Defendant's name, transferred to the 3rd Defendant, and transferred back to the 1st Defendant. He said the registration in the 1st Defendant's name was illegal, and that no reason for repossession was ever given to the family. 20. On the 1986 resolution, PW1 said there was no notice of repossession and no meeting. He pointed out that the company confirmed the deceased's ownership in writing in 1996 and 1997, which he said could not be reconciled with a forfeiture in 1986. He added that the deceased paid the purchase price in 1985 and survey fees afterwards. 21. PW1 testified that the deceased took possession and placed a caretaker on the plot but did not build on it. He was waiting for title before developing. The deceased was never given a letter of allotment, which PW1 said the 2nd Defendant was bound to issue once the price had been paid. In his view the plot ought to have been surveyed and registered in the deceased's name. The Defendants' evidence THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 7

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22. DW1, John Muniu, a police officer, testified on 1st February 2023. He adopted his witness statement and his list and bundle of documents. He testified that he holds title to the suit property and lives on it. He built rental units on it between 2009 and 2010, and a three-bedroom house, where he lives, between 2015 and 2018, while this suit was pending. 23. DW1 said he had earlier bought Plot No. 162 (Ruiru/Kiu Block 10/507) from the 2nd Defendant. When he later had money, he asked the company whether it had more plots and was shown the suit property. He said it was vacant, with no structures and no caretaker. He said he carried out due diligence at the company before buying. 24. DW1 testified that the 3rd Defendant is his first cousin. The 3rd Defendant needed a loan but had no security, so DW1 transferred two properties to him to use as security. After the loan was repaid, the 3rd Defendant transferred the suit property back and kept the other plot. DW1 denied any conspiracy. He said his title was issued in 2009 and he was served with this suit in 2011. 25. On cross-examination, DW1 said he had no sale agreement with the company. The plot was offered to him and he paid Kshs. 170,000. He did not obtain Land Control Board consent because the plot was not yet titled; the company gave him a plot certificate referring to L.R. No. 10901/36. He was not aware that the plot had been repossessed from an earlier owner, the company did not show him any repossession THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 8

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resolution, and he did not know that Kimani Mina held a certificate for the same plot. He produced a sale agreement with his cousin (page 88 of his bundle) for two plots at Kshs. 1,500,000. With leave, the Defendants later produced certified copies of the register (the green card) and the charge. 26. DW2, Johnson Mwangi Gachoya, a high school teacher, testified on 19th March 2025. He adopted his witness statement dated 4th August 2021 and his documents. He testified that he bought the suit property from the 1st Defendant after confirming it was registered in the 1st Defendant's name. He took a loan from Equity Bank to buy the suit property and another plot, and the bank paid the purchase price directly to the 1st Defendant. The transfer to him was registered in 2010 after Land Control Board consent. 27. DW2 said that after he repaid the loan and the charge was discharged, he agreed with the 1st Defendant to transfer the land back to him, obtained Land Control Board consent, and did so. On crossexamination he gave the price as Kshs. 1,400,000. He learnt of this dispute when he was served with summons in 2012. He did not ask the 1st Defendant how he had acquired the land, and he said he used the title of the suit property only to secure the bank loan. 28. DW3, Raphael Waweru Kungu, testified on 2nd October 2025 and adopted his statement dated 28th March 2018. He is the secretary and THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 9

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the only surviving official of the 2nd Defendant, which bought and sold land. He testified that the suit property belongs to the 1st Defendant, a member of the company, who completed payment and whose documents were lodged at the lands office for title. 29. On cross-examination, DW3 said he did not know Kimani Mina. He was referred to the public notice (page 39 of the Plaintiff's bundle) in which the company told the public that purchasers who had not paid within 4 years would forfeit their plots, and those who had not developed within 8 years would lose them. He confirmed the notice was published in the Daily Nation on 10th December 2009 and was based on the meeting of 5th November 1986. 30. DW3 was referred to the 1st Defendant's receipts (page 27 of the Defendants' bundle), dated 19th July 2007, 11th December 2008, 19th January 2009 and 5th March 2009. He conceded that the company had put up no notice before 10th December 2009, though he said it held regular meetings with purchasers and used vernacular radio stations such as Kameme and Inooro. He said Kimani Mina lost the plot because he did not develop it within 8 years, and that the deceased died without title and had not paid for survey or title. 31. In re-examination, DW3 said the resolution in the advertisement was made on 5th November 1986, the company's land measured about 200 acres, and he did not know all purchasers personally. He described the deceased's receipts at page 9 as receipts for allocation of plots. THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 10

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The register 32. The green card for Ruiru/Kiu Block 10/280 (Mahiira), produced with leave on 1st February 2023, shows that on 22nd May 2009 the 2nd Defendant was registered as proprietor and, on the same day, John Muniu was registered as proprietor. A title deed was issued to him on 9th June 2009. On 25th October 2010, Johnson Mwangi Gachoya was registered as proprietor and issued with a title, and a charge in favour of Equity Bank Ltd to secure Kshs. 1,400,000 was registered on the same day. The charge was discharged on 9th December 2015. On 2nd October 2017, John Muniu was again registered as proprietor and issued with a title deed. On 12th January 2022, a restriction was registered, the title being held as surety at the Kibera Magistrates' Court in a criminal case. The documentary evidence 33. The Plaintiff produced receipt No. 011 dated 12th April 1985 for Kshs. 6,600, being the purchase price paid by the deceased; plot certificate No. 011 dated 21st March 1987 in the name of the deceased for Plot No. 11, measuring 50 by 80 feet, on L.R. No. 10901/36; receipt No. 2046 dated 11th March 1989 for Kshs. 1,600, being survey fees; and letters from the 2nd Defendant dated 30th May 1996 and 21st October 1997 confirming that the deceased had paid in full. THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 11

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34. The 1st and 3rd Defendants produced the 2nd Defendant's resolutions of 5th November 1986 (Minute 15/86) and its memorandum and articles of association. They also produced receipts issued by the 2nd Defendant to John Muniu dated 19th July 2007, 11 th December 2008, 19th January 2009 and 5th March 2009 (page 27 of their bundle) for the purchase price and title processing fees. 35. In their additional lists of documents, the 1st and 3rd Defendants produced the public notice published in the Daily Nation of 10th December 2009 (page 41); the sale agreement dated 22nd September 2010 between John Muniu and Johnson Mwangi Gachoya for two plots, including the suit property; the title deed issued to Johnson Mwangi Gachoya on 1st November 2010; the application for, and the consent of, the Land Control Board dated 12th September 2017; the executed transfer; the title deed issued to John Muniu on 2nd October 2017; an official search dated 14th July 2021 showing him as the registered proprietor; and photographs of the permanent buildings on the suit property. With leave granted on 1st February 2023, they produced the green card described above. 36. The documents therefore show three things. First, the 2nd Defendant issued plot certificates for the same Plot No. 11 to two different people: to Kimani Mina in 1987 and to John Muniu between 2007 and 2009. Second, John Muniu's receipts show he paid the company for the plot. THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 12

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Third, every one of his receipts, and his registration as proprietor, came before the company's public notice of 10th December 2009. Submissions The Plaintiff's submissions 37. The Plaintiff filed submissions dated 4th November 2025. He submits that the deceased paid the full purchase price, was allocated Plot No. 11, and took possession through his friend, who cultivated the land on his behalf. That, he says, satisfied both the physical and the mental elements of possession. He relies on Cherutich v Kebut [2025] KEELC 179 and Mwangi & another v Mwangi (1986) KLR 328 for the proposition that a person placed in possession after purchase acquires equitable rights enforceable against all but a bona fide purchaser for value without notice. 38. He submits that once land has been allocated and paid for, it cannot be reallocated unless the first allocation is lawfully cancelled, and that non-development is not a lawful ground for forfeiture. He relies on Kibiri & 5 others v Harambee Savings and Credit Co-operative Society Ltd [2024] KEELC 1149 (KLR), John Muchiri Mbuthia v Rebecca Were Mutanda & another [2015] eKLR, and Rukaya Ali Mohamed v David Gikonyo Nambacha & another (Kisumu HCCA No. 9 of 2004). 39. He further submits that on receiving full payment and giving possession, the 2nd Defendant became a constructive trustee of the plot THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 13

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for the deceased, and was barred by proprietary estoppel from reselling it. He relies on Githae v Kinga & 9 others [2023] KEELC 19227, which held that such a trust is an overriding interest under section 28(b) of the Land Registration Act, as well as Rwigi v Karuthu & another [2025] KEELC 747 and Njami v Njami [2025] KECA 492. On the maxim nemo dat quod non habet, he submits that the 1st and 3rd Defendants acquired no valid title, and he invokes Articles 10, 27 and 40 of the Constitution. 40. On the injunctions, he cites Kenya Power & Lighting Co. Ltd v Sheri Molana Habib [2018] eKLR and Kenya Breweries Ltd v Washington Okeyo [2002] EA 109. 41. In his submissions, the Plaintiff adds prayers not found in the amended Plaint: a declaration of a constructive trust between him and the 2nd Defendant, a declaration that the transfers to the 1st and 3rd Defendants were void, and an order that the suit property be transferred to him. He does not seek, in the Plaint or in the submissions, a refund of the purchase price, damages, or an alternative plot. The Defendants' submissions 42. The Defendants filed joint submissions dated 27th January 2026. They submit that the 2nd Defendant is a separate legal person that acts through resolutions of its members (Salomon v Salomon & Co. Ltd; Victor Mabachi & another v Nurturn Bates Ltd [2013] eKLR; Moir v Wallersteiner [1975] 1 All ER 849). They argue that the resolution of 1986, which they THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 14

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cite as Minute 19/86, has never been revoked or set aside, that the deceased was aware of it, and that his plot certificate ceased to be valid after 8 years of non-occupation. 43. They submit that the 1st Defendant bought the plot in good faith, for full consideration and without notice of any defect, was issued with a plot certificate, and then obtained title. His title is protected by section 26(1) of the Land Registration Act. They rely on Dr. Joseph Arap Ngok v Justice Moijo ole Keiwua & 5 others (Civil Appeal No. 60 of 1997), Embakasi Properties Ltd & another v Commissioner of Lands & another [2019] eKLR, and Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (deceased) & 5 others [2013] eKLR. 44. They point out that the Plaintiff pleaded neither fraud nor that the title was acquired illegally, unprocedurally or through a corrupt scheme. Fraud, they submit, must be specifically pleaded and strictly proved (Mutiria Karumbai Macaw v James Njagi Makembo & 3 others [2018] eKLR; Gudka v Dodhia, Civil Appeal No. 21 of 1980; R.G. Patel v Lalji Makanji [1957] EA 314). In the alternative, they submit that the 1st Defendant is a bona fide purchaser for value without notice, citing Arthi Highway Developers Ltd v West End Butchery Ltd & 6 others [2015] eKLR and Snell's Principles of Equity. 45. On trusts, they submit that no constructive trust arose once the company repossessed the plot, and that the court will not imply a trust THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 15

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except where necessary (Gichuki v Gichuki [1982] KLR 285; Mbothu & 8 others v Waitimu & 11 others [1986] KLR 171; Twalib Hatayan Twalib Hatayan & another v Said Saggar Ahmed Al-Heidy & others [2015] eKLR). They argue that, if anything, a resulting trust arises in favour of the 1st Defendant, who paid the purchase money, relying on Juletabi African Adventure Ltd & another v Christopher Michael Lockley (Civil Appeal No. 75 of 2016). 46. I have considered both sets of submissions and the authorities cited. Issues for Determination 47. Having considered the pleadings, the evidence and the submissions, I find that three issues fall for determination: (a) whether the 2nd Defendant lawfully repossessed Plot No. 11 from the deceased, and whether the claim is time-barred; (b) whether the 1st Defendant acquired the suit property as a bona fide purchaser for value without notice, and whether his title is protected; and (c) what reliefs should issue, including whether the court can grant the Plaintiff any remedy against the 2nd Defendant, and what order should be made on costs. Issue (i): Whether the plot was lawfully repossessed, and whether claim THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 16

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is time- barred. 48. The deceased's documents were not challenged as forgeries. Receipt No. 011 of 12th April 1985 shows payment of Kshs. 6,600, the very price the 2nd Defendant says the plot cost at the time. Plot certificate No. 011 of 21st March 1987 identifies Plot No. 11. Receipt No. 2046 of 11 th March 1989 shows payment of survey fees, and the letters of 30 th May 1996 and 21st October 1997 confirm full payment. DW3 did not know the deceased and could not contradict these documents. In re-examination, he described the deceased's receipts as receipts for the allocation of plots. 49. I find that by 1987 the deceased had bought, paid for and been allocated Plot No. 11. The 2nd Defendant's argument that no interest arises without a letter of allotment does not assist it. Letters of allotment belong to the allocation of public land. This was a private company whose instrument of allocation was its plot certificate, and the 1 st Defendant relies on exactly such a certificate for the same plot. 50. The 2nd Defendant's defence rests on the resolution of 5 th November 1986. It bore the burden of proving that the resolution was validly passed, that it bound the deceased, and that it was lawfully applied to him. It has not discharged that burden. Limb (a) of the resolution concerns purchasers who remained in debt for 4 years. The deceased THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 17

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had paid in full in April 1985. In any event, limb (a) provides for a refund, not forfeiture, and no refund was ever offered to him. 51. Limb (b) was passed 19 months after the deceased had bought and paid for the plot. Nothing in his receipt or certificate obliged him to develop the plot within any period. A company cannot, by a later resolution of which the purchaser has no notice, add a forfeiture term to a completed sale. There is no evidence that the resolution was ever served on the deceased, or that he attended the meeting at which it was passed. The Defendants' submission that he was aware of it is not supported by any evidence. 52. The letters dated 30th May 1996 found at page 14 and 21st October 1997 written in Swahili only “reminds” the deceased as a courtesy to develop his property “kwa haraka” 53. The company's own conduct is inconsistent with forfeiture. After the resolution, it issued the deceased with a plot certificate in 1987, accepted his survey fees in 1989 and confirmed his full payment in writing in 1996 and 1997. By 1996 the 8-year period had already run, yet the company still treated him as the owner. A party that affirms a contract after the alleged ground for forfeiture has arisen cannot later rely on that ground. THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 18

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54. The only public notice of the resolution was the Daily Nation advertisement of 10th December 2009. DW3 conceded that nothing was published before then. By that date, the 1 st Defendant had paid for the plot. The notice came after the resale, not before it. 55. I find that the 2nd Defendant's repossession and resale of Plot No. 11 were unlawful. They were done in breach of the company's obligation to the deceased, who had paid for the plot and to whom the company owed a duty to transfer it. 56. On limitation, section 7 of the Limitation of Actions Act bars an action to recover land after 12 years from the date on which the right of action accrued. Time runs from dispossession, not from purchase or from a period of non-development. The deceased's interest was first dealt with adversely between 2007 and 2009, when the plot was resold and registered, and the suit was filed on 6 th July 2011. The claim is not timebarred. Issue (ii): Whether the 1st Defendant is a bona fide purchaser for value without notice THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 19

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57. My finding that the 2nd Defendant wronged the deceased does not by itself decide this suit. The Plaintiff's claim is not against the company alone; it is for ownership of land now registered in the name of the 1 st Defendant. The question is whether the 1 st Defendant took the land free of the deceased's interest. 58. It is necessary to be precise about the nature of each party's interest. The 2nd Defendant was the owner of the mother title, and the green card shows it was registered as the first proprietor of the suit property on 22 nd May 2009. The deceased never held title. What he held was an equitable interest: a paid-up allocation, evidenced by a plot certificate, which entitled him to call on the company to transfer the plot to him. The 1 st Defendant, by contrast, holds the registered legal title. 59. The Plaintiff's argument on nemo dat quod non habet therefore does not carry him as far as he contends. The company did hold the legal title when it sold to the 1st Defendant. What it lacked was the right, as against the deceased, to sell. That is a breach of the company's obligation to the deceased. Whether that obligation binds the 1 st Defendant depends on whether he took with notice of it. 60. The law on this point is settled. A purchaser for value who obtains the legal estate without notice of a prior equitable interest takes free of that interest. The Court of Appeal in Arthi Highway Developers Ltd v West End Butchery Ltd & 6 others [2015] eKLR (paragraphs 67 and 68) adopted the statement of the principle in Snell's Principles of Equity. It THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 20

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added that the doctrine protects a purchaser against prior equitable interests but never against prior legal rights, and that the onus of proving it lies on the purchaser. The elements were restated in Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v Attorney General & 4 others [2017] eKLR: the purchaser must have bought in good faith, for valuable consideration, from a vendor with apparently valid title, and without notice of any defect. 61. As regards to whether there was a valuable consideration, the 1st Defendant produced the 2nd Defendant's receipts dated 19th July 2007, 11th December 2008, 19th January 2009 and 5th March 2009. He testified that he paid Kshs. 170,000 for the plot and paid the title processing fees. The receipts were not challenged, and DW3 confirmed that he paid in full. I find that he gave valuable consideration. 62. The 1st Defendant bought directly from the company that owned the land and had allocated its plots, and from which he had earlier bought Plot No. 162. After his payments, the company issued him a plot certificate for Plot No. 11 and then procured his registration through the Land Registrar. There was nothing on the face of the transaction to suggest that the company could not sell. 63. There is no evidence that the 1 st Defendant knew of the deceased's allocation. The company did not disclose it to him, and it showed him no resolution or record of repossession. Its own secretary, DW3, did not THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 21

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know the deceased. The plot was unregistered, so there was no register to search. The Plaintiff did not show what inquiry the 1 st Defendant could have made that would have revealed the earlier allocation, other than asking the company, which is the very party that concealed it. 64. The Plaintiff contends that the deceased was in possession through Kahugi Watene, and that this should have put a purchaser on inquiry. His own authority, Mwangi & another v Mwangi (1986) KLR 328, as cited in his submissions, recognises that the rights of a person in possession do not bind a bona fide purchaser for value without notice. More importantly, possession was not proved. Kahugi Watene was not called as a witness. PW1 did not claim to have seen him on the land and conceded that the deceased never developed it. 65. The 1st Defendant testified that the plot was vacant, with no structures and no caretaker and that evidence was not shaken. I cannot find on a balance of probabilities that there was anyone in occupation whose presence ought to have put the 1st Defendant on inquiry. 66. The Plaintiff also relies on Kibiri, John Muchiri Mbuthia and Rukaya Ali Mohamed for the rule that land once allocated cannot be reallocated unless the first allocation is lawfully cancelled. That rule binds the allotting body. It explains why the 2nd Defendant was wrong to resell, which I have already found. It does not address the position of an innocent purchaser who buys from that body for value. THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 22

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67. Section 26(1) of the Land Registration Act allows a title to be challenged on the ground of fraud or misrepresentation to which the proprietor is proved to be a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The amended Plaint does not plead fraud, and it gives no particulars of any illegality or irregularity in the registration. Fraud must be specifically pleaded and strictly proved (Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR). No evidence was led that the 1 st Defendant was party to any fraud, or that the registration process itself was irregular. 68. This case is distinguishable from Arthi Highway and from Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR). In both, the root title was itself a nullity: in Arthi Highway it rested on forged company documents, and in Dina Management on an unlawful allocation of public land. Here the root, the 2nd Defendant's title to the mother parcel, was valid. The defect was the company's breach of its obligation to one purchaser, of which the 1 st Defendant had no notice. 69. The Defendants submit that the 1 st Defendant's registration was a first registration. The green card shows that the first registration was in favour of the 2nd Defendant, on the same day. Nothing turns on this, since I have found the 1st Defendant's title protected on other grounds. THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 23

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70. I accept that on receiving full payment, the 2 nd Defendant held Plot No. 11 on a constructive trust for the deceased. But a trust binds the trustee, and a purchaser of the legal estate for value without notice takes free of it. Githae v Kinga treated such a trust as an overriding interest under section 28(b) of the Land Registration Act. That Act came into force in May 2012, after the 1 st Defendant's registration in 2009, and the Plaintiff did not show that such an interest bound a purchaser registered under the repealed regime. Once the land passed to the 1 st Defendant free of the equity, the equity did not revive on later dealings with it. The Defendants' contrary argument, that a resulting trust arose in favour of the 1st Defendant, is unnecessary to decide, since he holds the legal title in his own right. 71. The dealings with the 3rd Defendant. The evidence on the transactions between the 1st and 3rd Defendants was not consistent. The 1st Defendant described the transfer as a way of giving his cousin security for a loan, while the 3rd Defendant described it as a sale. They gave different prices, of Kshs. 1,400,000 and 1,500,000, and different dates. The re-transfer of 2 nd October 2017 was made while this suit was pending, and under the doctrine of lis pendens it took effect subject to the outcome of the suit (Naftali Ruthi Kinyua v Patrick Thuita Gachure & another [2015] eKLR). These dealings came after the 1 st Defendant acquired his title, however, and do not affect the validity of that THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 24

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acquisition. The 3rd Defendant took from a proprietor who held good title, and the property returned to the same proprietor. 72. I find that the 1st Defendant acquired the suit property as a bona fide purchaser for value without notice of the deceased's interest and that his title is protected under section 26 of the Land Registration Act. The Plaintiff's claim to ownership of the suit property fails, and the 1 st Defendant's counterclaim succeeds. 73. Having found that the 1st Defendant's title is protected, the declaration of ownership sought by the Plaintiff cannot issue. The injunctions sought against the 3rd Defendant fall with it. The additional prayers raised for the first time in the Plaintiff's submissions, namely a declaration that the transfers were void and an order transferring the suit property to him, are not in the amended Plaint and in any event cannot succeed in view of my findings. 74. That leaves the position of the deceased's estate as against the 2 nd Defendant. The estate has been wronged. The deceased paid for a plot in 1985 which the company, without lawful cause, sold to someone else more than twenty years later. 75. However, the Plaintiff has not pleaded any claim for a refund of the purchase price, for damages, or for an alternative plot. The amended Plaint seeks only a declaration of ownership, injunctions against the 3 rd THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 25

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Defendant, and costs. The Plaintiff did not seek such relief in his submissions either. No evidence was led on the present value of the plot or on any loss suffered, and the 2nd Defendant was never called upon to answer a claim for compensation. 76. Parties are bound by their pleadings, and a court may not grant relief that was neither pleaded nor canvassed (Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR). The exception recognised in Odd Jobs v Mubia [1970] EA 476, where an unpleaded issue was left to the court for decision, does not apply. The question of a refund or compensation was never put in issue or argued by any party. The prayer for "any other relief" cannot be used to award a money remedy that the opposing party had no opportunity to meet. 77. I therefore make no order for a refund or compensation against the 2nd Defendant. On the counterclaim, the 1st Defendant is entitled to a declaration that he is the lawful registered proprietor of the suit property, and to an injunction protecting his possession. The claim for interest is not explained, since no money sum was claimed and it is declined. 78. The upshot is that the Plaintiff has not proved his claim to the suit property against the 1st and 3rd Defendants, and the 1st Defendant has proved his counterclaim. I make these orders: THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 26

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a. The Plaintiff's suit is dismissed with costs b. The counterclaim succeeds and a declaration is issued that the 1st Defendant, John Muniu, is the lawful registered proprietor of the land parcel known as Ruiru/Kiu Block 10/280 (Mahiira). c. A permanent injunction is issued restraining the Plaintiff, by himself, his servants, agents or anyone claiming under him, from entering, occupying, constructing on, developing, subdividing, transferring or otherwise dealing with Ruiru/Kiu Block 10/280 (Mahiira). Dated, signed and delivered virtually at Malindi this 30 th day of September 2026. …………………… J. M ONYANGO JUDGE In the presence of: 1. Mr. Nga’anga for the Ms Ngugi for the Plaintiff 2. Ms Tanui for Mr. Arusei for the 1st Defendant THIKA ELCC NO.488 OF 2017 (JUDGMENT) Page 27

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