Wambua v Ndunda & 2 others (Civil Case 1264 of 2010) [2025] KEMC 362 (KLR)

2. 3. c. Thirdly, the Plaintifi seeks a perpetual order of injunction restraining the Defendants, by themselves, their agents, and servants, from interfering with or working on land parcel No. Kathiani/Kaewa/1006. d. The costs of the suit and interest. The Defendants opposed the Plaintifi’s claim and filed separate defences and counterclaims. The 1st Defendant filed an Amended Statement of Defence and Counterclaim wherein he denied the Plaintifi’s allegations and sought judgment against the Plaintifi for: a. A declaration that the sale agreement between the Plaintifi’s deceased husband and the 1st Defendant, dated 7th November 1992, was illegal, null, and void. b. An order directing the Land Registrar to cancel the title deed and that a new title be issued to the 1st Defendant. The 2nd Defendant filed a Further Amended Statement of Defence and Counterclaim dated 4th November 2023. In her counterclaim, she prayed for: a) A declaration that the sale agreement between the Plaintifi’s deceased husband and the 1st Defendant, dated 7th November 1992, was illegal, null, and void, and that the suit property herein belongs to the 1st and 2nd Defendants jointly for the benefit of the entire family. c) The costs of the suit. The Plaintifi ’s Case 4. PW1 Elizabeth Ndinda Kali, the Plaintifi, gave evidence as the sole witness for the Plaintifi’s case. Adopting her witness statement dated 2nd April 2024 as her evidence-in-chief, she stated that she is a farmer from Kathiani and the widow of the late John Kalii Wambua. She produced the Grant of Letters of Administration issued to her, enabling her to prosecute the suit on behalf of the estate. She identified the suit property as Kathiani/Kaewa/1006 and stated that she had known the Defendants for over 30 years. PW1 produced a list of documents dated 30th April 2014 and a further list dated 26th August 2019. These included the title deed in her late husband’s name, dated 15th November 2013, and various sale agreements. PW1 testified that her late husband purchased the land from the 1st Defendant. She referred to adjudication proceedings involving Lucas Munyao, stating that the adjudication section confirmed that the land belonged to her late husband and could be registered in his name. She asserted that her husband had obtained the necessary consent to file the suit before his death. She prayed that the Defendants vacate the land and pay the costs of the suit. She stated that she had used the land as recently as the week before her testimony. 5. Upon cross-examination by the 1st Defendant, PW1 maintained that the land belonged to her husband. When asked about witnesses to the transaction, she identified only one, Michael Kisingu. She stated that the District Land Adjudication Oficer had signed the consent to file this suit. Regarding the village administration at the time, she mentioned Nzula Kioko as the village elder. Subsequently, she expressed uncertainty about whether a village elder was actually involved. She stated that her husband had written the agreement himself. Contrary to her earlier statement about recent use, she admitted during cross-examination that she had not used the land recently due to fear of harm, citing that her husband had previously been hurt. 6. During cross-examination by Ms Wangui, counsel for the 2nd Defendant, PW1 stated that the sale agreement was dated 9th November 1992 and described the land as “Kya Mulili.” She was shown a list of payments indicating that the 1st Defendant was given Kshs 4,400 on 7th November 1992 and https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/362/eng@2025-12-19 2

page 2 of 9

Kshs 4,200 on 9th November 1992. She acknowledged that there were two agreements with identical particulars. PW1 admitted that she was not present when her husband paid the money to the 1st Defendant and that she had no witnesses to confirm the payments personally. She stated that her husband occupied the land after the purchase, but later found the 2nd Defendant, Milcah, and her children using it. She claimed Milcah entered the land in 2008. PW1 denied knowing Francis, the clan chairman, and stated she did not see the author of the letter from the clan (Exhibit P6). She was questioned about a discrepancy regarding the Land Adjudication Objection proceedings, noting that the plaint cited number 516 while her witness statement cited number 532. She denied that her husband bought another parcel (Block 1006) from one Peter Muasa for Kshs 150,000 in the presence of Muthuka, asserting that the land sold by Peter Muasa was not the one in issue. 7. In re-examination, PW1 clarified that her husband’s book contained several agreements for difierent transactions. She identified Exhibit P1 as a letter from the Atwii clan bearing their stamp. She reiterated that she had a letter from the Adjudication Section confirming the land belonged to her husband. She confirmed that the witnesses to the sale agreement were Nzula Kioko and Michael Kisingu Wambua, noting that Michael is deceased. She explained that title deeds had not been issued when her husband bought the land. She maintained that the land is near Lucas's home but that his family does not reside on the specific parcel in dispute. The Defence Case 8. DW1 Lucas Munyao Ndunda, the 1st Defendant, testified and adopted his witness statement dated 18th September 2020. He stated that he is from Kathiani and Milcah's husband. He testified that the land was given to them by his father. He asserted that he could not have sold the land without his wife’s permission and emphasised that his family uses the land and has no other property. He denied signing the sale agreement produced by the Plaintifi. He clarified that the land is not named “Kya Mulili” as that refers to a larger area. He prayed for the court to issue a title deed in both his and his wife’s names. 9. In cross-examination by Mr Makau on behalf of the Plaintifi, DW1 acknowledged knowing the late John Kalii. He was shown the sale agreement and categorically denied that the signature on it was his. He denied receiving instalment payments for the land. He explained that he and the deceased worked together and occasionally exchanged money, but it was not for the purchase of land. He dismissed the alleged payment of Kshs 20 or 30 as amounts too small to buy land. He claimed that the letters to the adjudication oficer and the 1997 letter from the Land Adjudication Oficer were fabricated (“cooked”). He denied knowing Nzula Kioko or Michael Kisingu. He objected to the objection proceedings document shown to him, noting it lacked a signature and witnesses, and denied that the thumbprint on it was his. He stated that he does not know the Atwii clan. 10. In cross-examination by Ms Wangui, DW1 confirmed that the land belonged to him and his wife, having been given to them by his late father, whom his wife had cared for. He confirmed he has 11 children and is currently cultivating the land. He reiterated that he never sold the land to anyone. 11. DW2 Milcah Ndulu Lucas, the 2nd Defendant, gave evidence and adopted her witness statement dated 19th June 2013. She produced documents marked EXD1 to D6. She stated that the land belongs to her and her husband, having been given to them by her father-in-law because they worked for him, harvesting cofiee and cooking. She said she has used the land since she had only two children (she now has 12), growing maize, beans, and bananas. She stated that she built a house for her son on the land. She said she only learned of John Kalii’s claim when he asserted that Lucas had sold the land to him. She maintained that Kalii never occupied the land. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/362/eng@2025-12-19 3

page 3 of 9

12. In cross-examination by Mr Makau, DW2 stated that her son, who was to build on the land, had died. She denied writing to the Atwii Clan and disputed paragraph 11 of her defence regarding the clan letter. She also denied writing the letter mentioned in paragraph 12 of her defence and denied the exhibits she had purportedly produced. She admitted knowing John Kalii since school, but denied knowing Michael Kisingu Wambua or Nzula Kioko. She denied signing any agreement and admitted she had no documents to prove ownership of the land. 13. In re-examination by Ms Wangui, DW2 clarified that she was not present when any sale agreement was signed and only learned of the transaction from Kalii himself. She corrected her earlier testimony regarding the clan letter, stating she had forgotten but had indeed brought a letter from the clan and other ofices. She testified that she went to the sub-chief upon learning of the transaction. She confirmed that there were no title deeds at the time of the alleged transaction. The Parties’ Submissions 14. Counsel for the Plaintifi submitted that the Plaintifi had proved her case on a balance of probabilities. The Plaintifi argued that her deceased husband was the lawful owner of the land, evidenced by the title deed issued on 15th November 2013. Relying on Section 24 (a) and Section 26 of the Land Registration Act, the Plaintifi submitted that the certificate of title is conclusive evidence of ownership and can only be challenged on grounds of fraud or illegality, which the Defendants had failed to prove. Counsel for the Plaintifi relied on Kagunda v Njogo & 2 others [2024] KEELC 246 to emphasise that the burden of proof lay with the plaintifi since she alleged ownership, but contended that this burden was discharged by the production of the title deed and the adjudication records. 15. On the issue of the validity of the sale agreement, the Plaintifi submitted that the agreement dated 7th November 1992 complied with Section 3(3) of the Law of Contract Act as it was in writing, signed, and witnessed by village elders, specifically Nzula Kioko and Michael Kisingu Wambua. The Plaintifi argued that the burden of disproving the fingerprint and signature lay with the 1st Defendant, who was denying them, citing Concepta Nyaboke v Peter Muasya Wangaika & Others [2019] eKLR. The Plaintifi urged the court to find that the sale agreements were validly executed. 16. Regarding the adjudication process, the Plaintifi submitted that Objection No. 516 was heard and determined in favour of the deceased and that, under Sections 26 and 29 of the Land Adjudication Act, the Adjudication Oficer's decision was final, as no appeal was lodged within the requisite 60 days. 17. The Plaintifi invoked the bona fide purchaser doctrine, placing heavy reliance on the Supreme Court decision in Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR). 18. On the contentious issue of spousal consent, the Plaintifi argued that the Matrimonial Property Act of 2013 applies prospectively and was not in force in 1992. Citing JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) (Petition 11 of 2020) [2023] KESC 4 (KLR), the Plaintifi submitted that the applicable law at the time was the Married Women’s Property Act of 1882, which did not require spousal consent. 19. The 1st Defendant submitted that the agreement failed to meet the mandatory requirements of Section 3(3) of the Law of Contract Act. He argued that the agreement was neither executed nor attested as required by law, highlighting that the Plaintifi admitted in court to never having seen or interacted with the document before the suit. Citing the decision of Daudi Ledama Morintant vs Mary Christine Kiarie & 2 Others [2017] eKLR, the 1st Defendant argued that the provisions of Section 3(3) of the Law of Contract Act are couched in mandatory terms. That failure to comply renders the suit defective. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/362/eng@2025-12-19 4

page 4 of 9

Regarding the payments received, the 1st Defendant submitted that any monies received from the deceased were for other business dealings and were not consideration for the land. 20. On the issue of the title deed, the 1st Defendant relied on Dina Management Limited v County Government of Mombasa (supra) to argue that a title deed alone is insuficient proof of ownership if the root of the title is challenged. He contended that the Plaintifi’s title was acquired fraudulently during the pendency of the suit without a valid sale agreement. 21. The 2nd Defendant submitted that the suit property is ancestral and matrimonial property held in customary trust. She argued that the land was given to her and the 1st Defendant by her father-in-law for the benefit of the family. Relying on Sections 28 and 30(g) of the repealed Registered Land Act (Cap 300), she contended that customary trusts are overriding interests that do not require registration. She cited the Court of Appeal case of Mbui vs Mukangu (C.A. No. 281 of 2000) to define customary trust as a concept of intergenerational equity. Counsel also cited the Supreme Court Case of 22. Regarding the sale agreement, the 2nd Defendant argued that it was invalid for lack of specificity, noting that it referred vaguely to “Kya Mulili,” a broad area. She claimed that the 1st Defendant lacked the legal capacity to sell the land, as he held it in trust for the family. She submitted that she was a stranger to the transaction and that no family consent was obtained, rendering the sale void ab initio. 23. Counsel further submitted that the averment regarding the hearing of Objection 516 by Land Adjudication is not proved, as the proceedings were not produced. The court is therefore not able to determine who lodged the objection and whether it was in relation to the suit land. Analysis and Determination 24. Upon reviewing the pleadings, the evidence presented by the parties, and the submissions of counsel, I distil the issues for determination as follows: i. Whether there was a valid sale agreement between the Plaintifi's deceased husband and the 1st Defendant concerning land parcel No. Kathiani/Kaewa/1006. ii. Whether the adjudication process was finalised. iii. Whether the land was subject to a customary trust and whether the lack of spousal consent invalidates the title. iv. Whether the Plaintifi’s deceased husband was a bona fide purchaser for value and whether the title is indefeasible. Validity of the Sale Agreement 25. The Defendants challenged the validity of the sale agreement, arguing that it failed to comply with statutory formalities. The 1st Defendant’s counsel argued that the agreement did not meet the threshold under Section 3(3) of the Law of Contract Act (Cap 23), which provides that: “ No suit shall be brought upon a contract for the disposition of an interest in land unlessa. the contract upon which the suit is foundedi. is in writing; ii. is signed by all the parties thereto; and https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/362/eng@2025-12-19 5

page 5 of 9

b. the signature of each party signing has been attested by a witness who is present when the contract was signed by such party...” 26. Reliance was placed on the decision in Daudi Ledama Morintant vs Mary Christine Kiarie & 2 Others (supra) to argue that these provisions are mandatory. However, it is essential to note that the Law of Contract (Amendment) Act (No. 2 of 2002), which introduced Section 3(3) in its current form, came into force in 2003, well after the impugned agreement was executed in 1992. Statutes afiecting substantive rights do not apply retrospectively. The agreement in question was in writing and signed by the parties, thereby satisfying the legal requirements applicable at that time. 27. Regarding the 1st Defendant's denial of his signature, the Plaintifi correctly submitted that the burden of proving forgery lies with the person alleging it. As held in Concepta Nyaboke v Peter Muasya Wangaika & Others (supra), a bare denial is insuficient. The 1st Defendant did not adduce cogent evidence to disprove the signature. There is also a letter by the 2nd Defendant dated 30th June 2007 addressed to the District Land Oficer, Machakos, in which she wrote, “Mr Lucas Munyao Ndunda, who is my husband, sold the quoted parcel of land to one John Kalii Wambua secretly without my knowledge.” This constitutes an admission that a transaction did indeed occur. The Adjudication Process 28. Another contentious issue in this matter concerns the proof of the adjudication process. The Defendants argued that the Plaintifi failed to produce the proceedings of Objection No. 516 to show that the dispute was heard and determined. Indeed, the specific minutes of the objection proceedings were not among the exhibits produced in court. However, they were annexed to an afidavit in support of the Plaintifi's first application, resulting in the issuance of a temporary injunction. 29. However, this Court finds that the absence of the proceedings is not fatal to the Plaintifi’s case where there is other oficial correspondence confirming the outcome. The Plaintifi produced a letter dated 23rd July 1997 from the District Land Adjudication & Settlement Oficer. This letter explicitly confirms that Objection No. 516 regarding Plot No. 1006 was finalised in favour of John Kalii Wambua and that the Adjudication Register was complete. 30. Section 29 of the Land Adjudication Act (Cap 284) provides that any person aggrieved by the determination of an objection may appeal to the Minister within sixty days. There is no evidence that the 1st Defendant, who was a party to the proceedings, lodged such an appeal. The confirmation letter serves as proof that the administrative machinery under the Act was exhausted. By failing to appeal to the Minister, the Defendants allowed the decision to become final. As observed in Amarnath (Suing on Behalf of the Estate of the Late Amarnath Gupta) v Kazungu & 2 others [2023] KECA 1280 (KLR): “ The Act is clear that any person aggrieved by a decision made under the Section 26 of the Act must follow the process under Section 29 and appeal to the Minister. Once the Minister, or the panel delegated to makes a determination, his order is final. That means the Minister’s decision cannot be appealed, whether under the Act or in Court. The option the Appellant had was to pursue Judicial Review process provided under Article 47 of the Constitution, and the Fair Administrative Action Act, 2015 a statute enacted pursuant to the Article 47 of the Constitution. He could not re-open the case and challenge it except through Judicial Review. The Appellant was attempting to undo the process he participated in using a process that is not provided for, and that is not allowed.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/362/eng@2025-12-19 6

page 6 of 9

31. Similarly, in Julia v Kabeera & 5 Others [2007] eKLR, the Court of Appeal commented: “ The Land Adjudication Act provides an exclusive and exhaustive procedure for ascertaining and recording land rights in an adjudication section. By Section 30 (1) (2), the jurisdiction of the court is ousted once the process of land adjudication has started until the adjudication register has been made final ...In our respective view, the consent envisaged by Section 30 to institute or continue with civil proceedings is not a consent to file a suit challenging the decision of the Land Adjudication Oficer himself on the merits of his decision. Rather the consent is given to a person to file a suit or continue with a suit against persons who have a competing claim on the land under adjudication.” 32. It follows that the defendants, particularly the first, cannot bypass the statutory appeal process under the Act and then attempt to reopen the merits of an adjudication decision in a civil suit before a Magistrate’s Court. The only means by which the defendants could challenge the confirmation of the deceased Plaintifi as the rightful owner of the land was judicial review before a Superior Court, after exhausting the appeal mechanisms provided for in the Act. The letter dated 23rd July 1997 is therefore suficient evidence of the register's finality, and the subsequent issuance of a title deed in the name of the deceased was regular. Customary Trust and Spousal Consent 33. The Defendant relied on the doctrine of customary trust, arguing that the land is ancestral. In Isaack M'Inanga Kiebia vs. Isaya Theuri M'Lintari & Another [2018] eKLR, the Supreme Court set out the guiding principles for determining the existence of a customary trust: “ 52. Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act... The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor... Some of the elements that would qualify a claimant as a trustee are: 1. The land in question was before registration, family, clan or group land. 2. The claimant belongs to such family, clan, or group. 3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous. 4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances. 5. The claim is directed against the registered proprietor who is a member of the family, clan or group.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/362/eng@2025-12-19 7

page 7 of 9

As I said above, this court lacks jurisdiction to entertain any claim to ownership of the land that was adjudicated. An adjudication process confirmed the sale for value. 34. Regarding spousal consent, the Plaintifi relied on JOO v MBO; Federation of Women Lawyers (FIDA Kenya) (Amicus Curiae) KESC 4 (KLR) to argue that the Matrimonial Property Act of 2013 applies prospectively. Indeed, in 1992, the applicable regime (Married Women’s Property Act 1882) did not require spousal consent as it now does. The 2nd Defendant cannot raise this issue before this Court after the adjudication objection was determined in 1997. Indefeasibility of Title and the Bona Fide Purchaser 35. The 1st Defendant argued that the Plaintifi’s title is invalid because it was issued pendente lite. They relied on Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) to argue that a title is not absolute if the root is challenged. In that case, the Supreme Court cited Black's Law Dictionary to define a bona fide purchaser: “ One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller’s title; one who has good faith paid valuable consideration for property without notice of prior adverse claims.” 36. This Court distinguishes Dina Management from the present case. In Dina, the root of the title was illegal (public land). Here, the root of the title is the Adjudication Register, which I presume was finalised procedurally, as no appeal challenged it. The issuance of the title deed in 2013 was merely the administrative formalisation of rights that had already crystallised in 1997. The Plaintifi’s husband paid value, participated in the adjudication objection, which ruled in his favour, and is therefore a bona fide purchaser whose title is protected by law. Disposition 37. The upshot of the foregoing analysis is that the Plaintifi has proved her case on a balance of probabilities. The Defendants have failed to displace the finality of the adjudication record or prove irregular acquisition of the land. I accordingly enter judgment for the Plaintifi against the Defendants in the following terms: a. A declaration is hereby made that the Plaintifi’s deceased husband, John Kalii Wambua, was the sole and absolute proprietor of land parcel no. Kathiani/Kaewa/1006, and that the Plaintifi, Elizabeth Ndinda Kalii (as legal representative of the estate), is solely entitled to the occupation, use, and possession of the said parcel. b. An order for eviction is hereby issued against the 1st and 2nd Defendants, their agents, servants, employees, family members, and any other persons claiming through them, compelling them to vacate the land parcel no. Kathiani/Kaewa/1006 and deliver vacant possession to the Plaintifi within ninety (90) days of the date of this judgment. c. In default of compliance with Order (b) above, an eviction order shall be issued, and the Defendants shall bear the costs of such eviction and demolition of any structures on the suit land. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/362/eng@2025-12-19 8

page 8 of 9

d. A permanent injunction is hereby issued, restraining the Defendants, by themselves or their agents, from entering, cultivating, alienating, or interfering with the Plaintifi’s quiet possession of land parcel No. Kathiani/Kaewa/1006. e. The counterclaims filed by the 1st and 2nd Defendants are dismissed. f. The Plaintifi is awarded the costs of the suit, to be borne by the 1st Defendant, being the person who sold the land and participated in the adjudication proceedings. DATED, SIGNED AND ELECTRONICALLY. DELIVERED THIS 19TH DAY OF DECEMBER, 2025, HON. C.C. OLUOCH CHIEF MAGISTRATE SIGNED BY: HON. CHARITY OLUOCH https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/362/eng@2025-12-19 9

page 9 of 9