Bayview Investments Limited v Kenya Airports Authority

3. In spite of numerous reminders to refrain from its conduct, the Defendant has refused or neglected to comply. The Plaintiff therefore substantively prays for: (i) An order of permanent injunction restraining the Defendant from further encroaching upon, trespassing on, or damaging any part of the Suit Land, (ii) an order compelling the Defendant, its agents and/or servants to give vacant possession of the Suit Land to the Plaintiff, (iii) an order of permanent injunction to restrain the Defendant, its agents and/or servants from interfering with or dealing with the Suit Land in any way, and (iv) The Defendant be ordered to pay damages for trespass. (v) Interest on (iv) from the date of encroachment till payment in full at court rates. (vi) Costs of the suit. (vii) Any other relief the court may deem just. 4. In response, the Defendant through its Statement of Defence dated 15th August 2016, asserts that the Suit Land is part of the property Land Reference Number 209/13080. The Defendant pleads that L.R. Number 209/13080 is public land reserved by the Government in 1928 for purposes of Wilson Airport Aerodrome Reserve and that the land is currently held by the Defendant by operation of the Kenya Airports Authority Act Cap. 395 Page 2 of 24

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Laws of Kenya. It is further asserted that the Defendant has never authorised the excision of L.R. Number 209/13080 to give rise to the Suit Land and that in fact, the Defendant has always used the Suit Land as a security screening and parking area. 5. The Defendant states that the Suit Land is located at the entrance to Wilson Airport, off Langata Road. The Defendant avers that it commenced installing an automated parking system equipped with a vehicle and people monitoring mechanism for security purposes, and that these activities precipitated the present suit. The Defendant asserts that the Suit Land is illegally acquired public land and prays that the Plaintiff’s suit be dismissed with costs. 6. The Plaintiff filed a Reply to the Statement of Defence dated 11th October 2023. The Reply pleads that the Plaintiff is an innocent purchaser for value from the initial allottee, Jolly Ventures Limited, which company had a valid and unimpeached title to the Suit Land. The Plaintiff further adds that the acquisition of the Suit Land by Jolly Ventures Limited was lawful. THE EVIDENCE 7. Patrick Igadwa Inzira (PW-1) adopted his witness statement dated 15th June 2023. He testified that he is the Plaintiff’s property manager. He stated that the Plaintiff acquired the Suit Land from Jolly Ventures Limited on 14th June 1996 for K.Shs. 5,000,000/-. The witness gave evidence of Page 3 of 24

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several attempts to settle the matter out of court, with the Defendant offering the Plaintiff alternative land, as exhibited in the letters at pages 7374 of their bundle. When negotiations slowed, the Plaintiff opted to prosecute its case. 8. He told the court that page 14 of their bundle (page 4 of the grant) shows they purchased the land for Kshs 5,000,000. Pw1 stated that the Defendant entered the land without the Plaintiff’s permission and started excavation. He further testified that the Plaintiff is suffering losses occasioned by the Defendant’s occupation of the Suit Land and the excavations done by the Defendant. 9. PW-1 further testified that in 2020, the parties negotiated and resolved to engage the government authority to give the Plaintiff an alternative piece of land. This resolution was not implemented; thus, the Plaintiff opted to continue with the suit. He added that for almost two decades, the Defendant has never claimed ownership of the Suit Land. PW-1 further relied on the documents in its trial bundle which included a copy of certificate of grant in their favour, a letter of allotment issued to Jolly Ventures Ltd, consent of the commissioner of lands to transfer the land to the Plaintiff, rates and rents clearance certificates, certificate of incorporation of Jolly Ventures Ltd. 10. Further, the Plaintiff relies on the letter dated 8 th November, 1996 from the Defendant referenced “Sign Posts- plot No 209/12324” which he avers is Page 4 of 24

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an admission by the Defendant that the land belongs to the Plaintiff. He also produced a letter dated 29th November, 2006 from the Commissioner of Lands in response to their letter dated 7 th November, 2006. According to this letter, the Commissioner of Lands confirm that the Plaintiff was the registered proprietor of the suit land. 11. In cross-examination, the witness testified that the Plaintiff undertook due diligence before purchasing the Suit Land. He denied the assertion that the Plaintiff attempted to identify the land only after the Defendant commenced operations on the Suit Land. He explained that beacons identify the property and that a beacon certificate was produced in evidence. 12. PW-1 further confirmed that he did not produce a cadastral survey plan or a Part Development Plan (PDP) for the Suit Land. Despite asserting that the Plaintiff had fenced the land, the witness admitted that he did not have any evidence to show that the land had been fenced. He also denied that the Suit Land was part of Wilson Airport before allotment. 13. In re-examination, PW-1 testified that title to the Suit Land confirms that the Plaintiff is the proprietor of the land. This ownership was confirmed the Commissioner of Lands through a letter dated 29th November 2006, and a fact also admitted by the Defendants per the minutes of a meeting of the parties of 02nd July 2020. Page 5 of 24

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14. Rashid Abdulahi (DW-1) testified that he works with the Defendant as the manager, Planning, Research, and Budgeting, where he oversees survey and titling of the Defendant’s land. Professionally, he is a land surveyor and a full member of the Institution of Surveyors of Kenya. DW-1 adopted his witness statement dated 14th June 2024. 15. DW-1 testified that the Defendant is the proprietor of property L.R. No. 209/13080 comprised in Grant No. 70522 by operation of the Kenya Airports Authority (Vesting) Order of 1994. The Defendant’s interest in the land is a lease for a term of ninety-nine (99) years from 01st August 1996. The dimensions of L.R. No. 209/13080 are as delineated on survey plan No. F/R 265/26. The land was set aside by the government in 1928 as evidence by Survey Plan No. FR 100/102, for the development of the Wilson Airport Aerodrome. He asserted that per the survey map No. F/R 265/26, the Suit Land has no number but is triangular in shape and situated within the boundaries of L.R. No. 209/13080. 16. DW-1 testified that L.R. No. 209/13080 has never been allocated to any other person, thus, the Plaintiff is claiming ownership of public land. He testified that the Defendant has been using the Suit Land for over 20 years, and its attempts to widen the access road to the airport to accommodate an integrated parking management system at the airport’s entrance led to the present suit. Page 6 of 24

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17. The witness further testified that the allocation to the first owner came after the Vesting Order of June 1994 and the reservation of 1928. He stated that such reservation and vesting in the Defendant were sufficient ownership of L.R. No. 209/13080. Moreover, DW- testified that the Plaintiff did not follow the proper process in obtaining the Suit Land. 18. In cross-examination, DW-1 testified that the process of acquisition of unalienated government land begins with preparation of a PDP by the Department of Physical Planning. An offer is then made and upon acceptance, a letter of allotment is issued. However, in this case, the allotment letter does not include a plan showing the land’s location. 19. DW-1 also testified that L.R. No. 209/13080 was initially reserved in 1928 as aerodrome measuring 265.5 acres or 107 Ha. In the 1996 map, L.R. No. 209/13080 measures 169.0 Ha. The witness explained that in 1928, the reserved aerodrome land was surrounded by a game reserve. In 1996, the government allocated more land from the game reserve to the Defendant, thus the increase in acreage. He testified further that from the survey maps, the Suit Land forms part of the original reservation of 1928. 20. DW-1 stated that by 1996, there had been many allocations of the land on the edges of the Defendant’s land, some of which are illegal allocations. There is a committee comprising officials from the National Land Commission and the Kenya Airports Authority formed to look into these Page 7 of 24

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illegal allocations. There are also cases pending in Court regarding the same. 21. DW-1 also produced the documents in the Defendant’s list and bundle of documents. SUBMISSIONS 22. Written submissions on behalf of the Plaintiff are dated 08th December 2025 filed by the firm of Oyatta & Associates Advocates. The Plaintiff’s Advocate places reliance on Section 26(1) of the Land Registration Act, 2012, and the holding of the Courts in Portsmouth Holdings Limited v Kenya Railways Corporation (2025) eKLR and Mount Robbin Limited v Ali Salim Toza (2025) eKLR in the submission that a Certificate of Title issued by the Registrar is indefeasible and conclusive evidence of absolute proprietorship (under the repealed Registration of Titles Act), and under the prevailing legal regime, that a Certificate of Title is prima facie evidence of ownership impeachable by fraud, misrepresentation, or an illegal or corrupt acquisition process. It is submitted that the Defendant did not demonstrate any illegality or fraud attributable to the original allotee or the Plaintiff. Without proof of fraud, the Court is asked not to invalidate the Plaintiff’s title. 23. It is further submitted on behalf of the Plaintiff that the Plaintiff is a bona fide purchaser for value without notice. The case of Cecelia Njoki Njenga Page 8 of 24

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& 3 Others v James Mburu Ndua & Another (2021) eKLR, is cited to the effect that a party arguing to be a bona fide purchaser should demonstrate that they hold a valid certificate of title, act in good faith, have no knowledge of fraud, have paid valuable consideration, and purchase from a vendor with apparent valid title. The Plaintiff asserts that it has met all the foregoing requirements. 24. The Plaintiff challenges the Defendant’s contention that lack of a PDP, survey report, or beacons is sufficient to invalidate the Plaintiff’s title to the Suit Land. It is submitted that these are technicalities preceding the registration of title, and which are in sufficient, within the meaning of Section 26(1) of the Land Registration Act, to impeach a properly issued title. 25. The Plaintiff also raises the contention that the Kenya Airports Authority (Vesting) Order, 1994 under Legal Notice No. 201 of 1994, through which government land then under the Aerodromes Department (as at 07th June 1994) was placed under the Kenya Airports Authority, is only a subsidiary legislation incapable of displacing statutory obligations and procedures on allocation of unalienated government land. The Plaintiff submits that a vesting order, without more, cannot nullify the Plaintiff’s title to the Suit Land that had already crystallized at the time of making of the 1994 order. 26. It is further submitted on behalf of the Plaintiff that the Defendant’s case suffers a serious procedural defect; the Defendant neither specifically Page 9 of 24

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pleaded nor strictly proved any allegations of fraud. The Defendant did not file a counterclaim challenging the Plaintiff’s title, thus, there is no basis for this Court to invalidate the Plaintiff’s title to the Suit Land on allegations of fraud. 27. The Plaintiff argues that the Defendant’s allegations of ownership of the Suit Land are an afterthought, that the Suit Land is distinct from the Defendant’s L.R. No. 209/13080, the Suit Land is not physically within the Defendant’s land, and that the Defendant’s survey maps and documentary evidence of ownership of the Suit Land are inadmissible because they are public records that should have been produced in their original form or through certified true copies of the original. The Court is also urged to infer from the Defendant’s letter of 1996 and the minutes of a meeting of the parties in 2020 that the Defendant acknowledged the Plaintiff’s title to the Suit Land, and to find, as a consequence of the such acknowledgement, that the Defendant is estopped from denying its earlier position. 28. Submissions on behalf of the Defendant are dated 03rd February 2026, filed by the firm of Wambugu & Muriuki Advocates. It is submitted that the survey plan L.R. 4959 dated 26 th October 1928 reserved 265.5 acres as an Aerodrome Reserve. The details of this plan are similar to those under or are replicated in the Aerodromes (Control of Obstructions) Act, Cap. 396 laws of Kenya. Citing the decision of the Supreme Court in Dina Management Limited v County Government of Mombasa & 5 Others Page 10 of 24

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[2023] KESC 30 (KLR), the Defendant’s Counsel submits that the reserved aerodrome land was public utility land under Regulation 10 of the Development and Use of Land (Planning) Regulations, 1961, thus, the aerodrome land was not available for allotment. 29. Counsel further places reliance on the holding of the Court of Appeal in Frann Investments Limited v Kenya Anti-Corruption Commission & Others [2025] KECA 1707 (KLR) and Nelson Kazungu Chai & 9 Others v Pwani University College [2017] eKLR that land planned and reserved for a public purpose is not unalienated land available for allocation. As such, it is urged that Grant No. 63928 over the Suit Land could not lawfully be issued to the first allottee, Jolly Ventures Limited. 30. It is further submitted that Section 26 of the Land Registration Act, 2012 is a clear departure from Section 23 of the repealed Registration of Titles Act. Under the Registration of Titles Act, Courts were mandated to treat a certificate of title as conclusive evidence of ownership, whereas the current legal position is that a certificate of title is prima facie evidence of ownership. Effectively, it is not sufficient to produce a grant or a certificate of title as proof of ownership, Courts have the latitude to scrutinise the origin of a party’s title. The Defendant submits that if the initial allotee had a defective title, they could not transfer a valid title to the Plaintiff in this case. Page 11 of 24

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31. The Defendant contests the validity of the initial allotment to Jolly Ventures Limited on the basis that a PDP was not produced by the Plaintiff as proof of propriety of the allotment. In support of the Defendant’s position, the holding of the Court in Nelson Kazungu Chai & 9 Others v Pwani University College [2017] eKLR is cited. The Court stated that “…It is trite law that under the repealed Government Lands Act, a Part Development Plan must be drawn and approved by the Commissioner of Lands or the Minister for lands before any un-alienated Government land could be allocated”. 32. In response to the Plaintiff’s argument that they are a bona fide purchaser for value without notice, the Defendant places reliance on the holding of the Supreme Court in Sehmi & Another v Tarabana Company Limited & 5 Others [2025] KESC 21 (KLR), at paragraph 84, that “The bottom line is that the doctrine of bona fide purchaser for value cannot be invoked to protect a title to an illegally acquired public land”. 33. Guided by the holding of the Court in Portsmouth Holdings Limited v Kenya Railways Corporation, the Plaintiff submitted that a subsidiary legislation such as the Kenya Airports Authority (Vesting) Order, 1994 cannot be relied upon to invalidate existing rights to land. However, the Defendant distinguishes the case and elaborates that in that case, the Court was dealing with a subsidiary legislation purporting to, of its own accord, confer rights to land. In the present case, the 1994 Vesting Order was Page 12 of 24

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signed to implement Section 4 of the Kenya Airports Authority Act Cap. 395 laws of Kenya, that provides that “Subject to subsection (2), the Minister may, by order published in the Gazette, transfer to the Authority any property belonging to the Government which appears to him to be necessary or useful to the Authority for the performance of its functions under this Act, which property shall vest in the Authority by virtue of the order without further assurance”. 34. Applying the holding of the Court of Appeal in Kenya Airports Authority v Africa Inland Church of Kenya & Others Civil Appeal No. 198 of 2018, it is submitted that the 1994 vesting order was only transferring ownership of government land from the Department of Aerodromes to the Kenya Airports Authority, and it was operating, in this regard, under the authority of Section 4 of the Kenya Airports Authority Act- a substantive statutory provision. 35. On the Plaintiff’s contention that the survey maps produced by the Defendant are inadmissible in evidence as they are not originals or certified true copies of the originals, the Defendant’s Advocate submitted that issues of admissibility should have been raised at the hearing. Instead, the Plaintiff fully participated in the hearing and the Plaintiff’s Advocate cross-examined the Defendant’s witness using the same documents. It is argued that the Plaintiff is deemed to have waived, acquiesced to, or is Page 13 of 24

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estopped from challenging the admissibility of the documents at the submissions stage. 36. The Defendant further submits that negotiations and correspondence between the parties should not be taken as admission or acknowledgement of the Plaintiff’s ownership of the Suit Land, bearing in mind that the land in dispute is alleged to be public land, which is to be governed in accordance with set public land management principles and statutory provisions. 37. On proof of the alleged trespass, the Defendant submits that the Plaintiff failed to produce evidence of the location of the land, upon which the Court could determine whether the Defendant had crossed a boundary and trespassed on the Plaintiff’s land. 38. Finally, it is submitted that the Defendant is not challenging the Plaintiff’s title on the basis of fraud, which needs to be specifically pleaded and strictly proved, but on the basis of illegality and procedural impropriety in acquisition of the title to the land. Illegality and procedural impropriety are not subject to the same pleading and evidentiary requirements as those applicable to fraud. The Defendant urges that the Plaintiff’s suit be dismissed with costs. ISSUES FOR DETERMINATION Page 14 of 24

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39. After carefully considering the parties’ pleadings, evidence, submissions, and the relevant legal provisions, the following are the issues that fall for determination: a. Whether parcel L.R. No. 209/12324 is separate or located within L.R. No. 209/13080. b. Whether L.R. No. 209/12324 was allocated in accordance with the law. c. Whether the Plaintiff was a bona fide purchaser for value without notice. d. Whether the Defendant trespassed on L.R. No. 209/12324. e. Whether the Plaintiff is entitled to the orders sought. Whether parcel L.R. NO. 209/12324 is Distinct or within L.R. NO. 209/13080 40. Before the Court are two titles, one over L.R. No. 209/12324 issued in the name of the Plaintiff and the other over L.R. No. 209/13080 in the name of the Defendant. The chronology of events leading to the existence of these two parcels, much of which is not in dispute is as follows: 41. Through a Survey Plan No. FR 100/102, produced by DW-1, the government reserved a portion of land measuring 265.5 acres or 107 Ha for purposes of setting up an aerodrome. The land was declared aerodrome land under the Aerodromes (Control of Obstructions) Page 15 of 24

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Ordinance, Cap. 396 laws of Kenya, revised in 1962. The Kenya Airports Authority Act, Cap. 395 Laws of Kenya came into force on 31st May 1991 and Section 4 authorised the Minister to transfer government land to the Kenya Airports Authority for the performance of the Authority’s functions under the Act. 42. In this regard, the Kenya Airports Authority (Vesting) Order, 1994, under Legal Notice No. 201 of 1994, was made, under which “all Government property previously administered by the now Erstwhile Department of Aerodromes, Office of the President” was transferred to the Defendant. The land was resurveyed in accordance with survey map No. F/R 265/26, and title number L.R. No. 209/13080 was issued in the Defendant’s name. 43. On its part, the Plaintiff acquired L.R. No. 209/12324 from Jolly Ventures Limited on 14th June 1996. L.R. No. 209/12324 was allocated by the Commissioner of Lands to Jolly Ventures Limited, an unsurveyed commercial plot in Nairobi, through an allotment letter dated 27th September, 1994, measuring 0.06ha. 44. The allottee acceptance was not produced but vide a letter dated 4 th November, 1994 Jolly Ventures Ltd paid for the stand premiums stated on the face of the allotment letter. Similarly, the PDP prepared before allotment (if any) and a Cadastral Survey Plan of L.R. No. 209/12324 were not produced. However, the Plaintiff produced a Certificate of Title bearing his names for the Suit Land. Page 16 of 24

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45. As regards the physical location of the Suit Land in relation to L.R. No. 209/13080, the Court is best guided by a survey report. Although the Plaintiff’s suit is predicated on trespass, the Plaintiff did not produce a Survey Report to clearly identify the boundaries between the two properties and the extent to which the Defendant encroached on or trespassed on the Suit Land. The evidence before the Court is by DW-1 who testified that he is a land surveyor. From survey plans no. F/R 265/26 and No. FR 100/102, DW-1 pointed the Court to the location of the Suit Land, within L.R. No. 209/13080. 46. He further explained that, having worked at the Department of Survey before his employment with the Defendant, he was familiar with the allotment process. He stated that it commences with a PDP and a survey to confirm the location of the land to be allotted and to determine whether and how it is to be developed. The Plaintiff was under a duty to produce these documents as proof of ownership, since its title to the Suit Land is disputed. The Plaintiff did not provide a survey report to controvert DW1’s testimony or the maps showing that the Suit Land falls within the larger Airport land. Accordingly, the Court finds that L.R. No. 209/12324 is geographically within L.R. No. 209/13080, which is alienated government land. Whether L.R. NO. 209/12324 procedurally allocated Page 17 of 24

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47. The Plaintiff argues that it holds a valid title which is indefeasible under the Registration of Titles Act Cap 281 (repealed). In the cited Act, section 23(1) states that: “The certificate of title issued by the Registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved a party to.”(underline mine for emphasis). 48. Thus, even the Statute under which the Grant was issued allow the registration to be challenged as stated above. The Court of Appeal faced with a question on the due process of allocating public land said in Nelson Kazungu Chai & 9 others v Pwani University College [2017] KECA 135 (KLR), cited by learned Counsel for the Defendant, stated at paragraph 18 as follows: “it is not in doubt that according to the Commissioner for lands and the director of physical planning, the land in question was at all material times government land reserved for the Institute. It is Page 18 of 24

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little wonder therefore, that no PDP was in the offing. Additionally, from the above correspondence, it is clear that once allotted to the institute, the suit land ceased being unalienated land as defined under section 2 of the repealed Government Lands Act. Consequently, the Commissioner of Lands could not cause allocation to issue in respect of the same because under section 3 of the Act, the only land that could be so allocated was unalienated land. Therefore under statutory law, the Commissioner of lands ceased to have the mandate to allocate the land the moment the same was allocated to the institute. Even if the Commissioner were to purport to allocate the land, the same would be null and void. As stated by the predecessor of this court in the case of Said Bin Seif v. Shariff Mohammed Shatry, (1940)19 (1) KLR 9; an action taken by the Commissioner of Lands without legal authority is a nullity and such an action, however technically correct, is null and void and is of no effect whether under legitimate expectation, estoppel or otherwise.” 49. There is no dispute that the suit property was public land before it was allocated to Jolly Ventures Ltd, which subsequently sold it to the Plaintiff. For the Plaintiff to hold title, it had to show that, in carrying out due diligence, it found the title was procedurally allocated. The procedures include identifying the land to be allocated and preparing a ground report Page 19 of 24

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confirming that the land is available. Once the land is confirmed as available, a survey of the land and the preparation of a PDP are undertaken. The allottee is given an allotment letter attaching the PDP, which identifies the location of the plot of land. It was therefore imperative for the Plaintiff to have obtained the PDP from the Vendor and to produce it in support of the legality of the root of its title. 50. Second, it was the Defendant’s evidence that L.R. No. 209/13080, within which the Suit Land is situated, was reserved for purposes of an aerodrome as far back as 1928. The land was vested in the Department of Aerodromes under the Aerodromes (Control of Obstructions) Ordinance, Cap. 396 of the Laws of Kenya. Further evidence states that it was transferred to the Defendant under the Kenya Airports Authority Act, Cap. 395 of the Laws of Kenya and the Vesting Order of 1994. Upon reservation of the land for a public purpose and the land being subsequently vested in a public authority, the portion of land identified in survey plans no. F/R 265/26 and No. FR 100/102 later issued title L.R. No. 209/13080 ceased being unalienated land within the meaning of Section 2 of the Government Lands Act (repealed) capable of allotment. 51. A part of the Aerodrome land as originally reserved could only be alienated to private use if the Defendant or its predecessor in title surrendered the same on account that it no longer required to use the part surrendered. In the instant case, the Defendant denies any such surrender Page 20 of 24

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took place. Consequently, the Court finds that the allocation of the Suit Land to the Plaintiff was illegal as the Suit Land was part of already alienated public land. Whether or not the Plaintiff is a bona fide purchaser 52. The Plaintiff pleaded that they are a bona fide purchaser for value without notice. Both parties, in their submissions, cite the Supreme Court holding in Dina Management Limited v County Government of Mombasa & 5 Others (2023) eKLR that whether a purchaser benefits from the doctrine of bona fide purchaser depends on the validity of the root of their title. The Defendant’s Advocate added the holding of the Supreme Court in Sehmi & Another v Tarabana Company Limited & 5 Others [2025] KESC 21 (KLR) that “the doctrine of bona fide purchaser for value cannot be invoked to protect a title to an illegally acquired public land”. 53. Furthermore, the Court of Appeal in Shah & another v Kenya National Highways Authority [2023] KECA 404 (KLR), stated as follows: “52. In any event, the doctrine of innocent purchaser without notice, does not inexorably operate to permit a successor to a title illegally acquired over land reserved for public utilities to keep the land. That would be inimical to public interest. At its most charitable, the doctrine only permits such a successor in title to look to the predecessor in title or, in exceptional circumstances, Page 21 of 24

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to the errant government agency that was complicit in the illegality for compensation.” 54. In the alternative, the Plaintiff was under a duty to prove that it fulfilled the conditions of who a bona fide purchaser for value is as set out in the case of Katende v Haridar & Company Ltd thus; “1. He holds a certificate of Title 2.he purchased the Property in good faith; 3.he has no knowledge of the fraud; 4.he purchased for valuable consideration; 5.the vendors had apparent valid title; 6.he purchased without notice of any fraud; 7.he was not party to any fraud.” 55. The Plaintiff said the property was transferred to them for a consideration of Kenya Shillings Five Million (Kshs 5,000,000). No evidence of such payment was exhibited neither did the Plaintiff produce a sale agreement executed with Jolly Ventures Limited. 56. Did the Plaintiff purchase the suit property in good faith? In the written statement of the Plaintiff’s witness, no background is given on the steps the Plaintiff undertook before purchasing the suit property. The Defendant stated, vide their witness statement, that they had been using the impugned portion for staff and visitors' parking before they tendered for the installation of an integrated parking management system. The Plaintiff stated that it fenced the plot but the Defendant removed its fences although it did not produce evidence of such fencing. Page 22 of 24

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57. The evidence that the Defendant had been using the impugned portion comprising the suit land was not contradicted by the Plaintiff. Hence, had the Plaintiff undertaken a physical inspection of the suit land before buying it, it would have noticed the Defendant’s presence on the land and asked the Vendor (Jolly Ventures Ltd) why. The court could only be persuaded of good faith and of having no notice of the fraud if the Plaintiff had shown that it had viewed the land before buying. 58. Thus, the Plaintiff only fulfilled the part of holding a title in its name which is not sufficient for this court to conclude that it is a bona fide purchaser for value without notice. Whether the Defendant trespassed on the suit land 59. The claim for trespass would stand had the Plaintiff proved that it legally owns the land. However, the Court has established from the evidence before it that L.R. No. 209/12324 forms part of L.R. No. 209/13080, which is registered in the Defendant’s name. That the Plaintiff acquired title whose root has been successfully challenged and found that the land was already alienated to the Defendant. Accordingly, the claim for trespass cannot stand as the Defendant cannot trespass on its own land. 60. In light of this finding, it follows that the claim for damages for trespass suffers the same fate for having no legs to stand on. Final Disposition: Page 23 of 24

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61. After analysing the evidence and the documents produced by both parties, I conclude that the Plaintiff has not proved its case on the balance of probabilities. Accordingly, the case is dismissed. As costs follow the event, I award costs of the suit to the Defendant. Judgment dated, signed and delivered this 1st day of October, 2026, virtually. A. OMOLLO JUDGE Page 24 of 24

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