https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3764

 **REPUBLIC OF KENYA** **IN THE ENVIRONMET AND LAND COURT AT THIKA** **ELC NO. E049 OF 2023** **DAVID GATUMBU WAIREGI………………………………….…….PLAINTIFF** **VERSUS** **ZABLON MURUNGI M’RINGEERA…………………………..1ST DEFENDANT** **HENRY KIMANI THAIRU…………………………………….2ND DEFENDANT** **STEPHEN NDINGURI NJENGA………………………………3RD DEFENDANT** **ELIZABETH NJAMBI…………………………………………..4TH DEFENDANT** **(Both sued as the Trustee of Sukari Kimbo-Self Help Group)** **RUIRU DISTRICT LAND REGISTRAR…………….………….5TH DEFENDANT** **JUDGMENT** 1. Vide a plaint dated 10/10/2023 the Plaintiff requests the Court to grant the following judgments against the Defendants, jointly and severally: 2. **An order declaring the Plaintiff as the sole proprietor of the Suit Plots known as Ruiru Kiu Block 18/227, Ruiru Kiu Block 18/228, and a half-share of Plot No. 93 situated at Ruiru in the Kiambu County.** 3. **In the alternative to Order (a) above, the Defendants be ordered to compensate the Plaintiff with the current market value of the suit plots** 4. **In the alternative to order (b) above the Defendants be ordered to compensate the Plaintiff with ALTERNATIVE PLOTS of similar size and value of the suit plots situated in the same locality as the suit plots situated in the same locality as the suit plots.** 5. **An Order of permanent injunction restraining the Defendants, jointly and severally their servants and or agents and any other third party from trespassing on, wasting, damaging, demolishing, alienating, developing and or adversely interfering with the suit plots known as RUIRU KIU BLOCK 18/227, RUIRU KIU BLOCK 18/228 and half share of Plot No. 93, respectively situated at Ruiru in Kiambu County.** 6. **Costs of this suit.** **Plaintiff Case** 1. This Plaint outlines a property dispute centered on allegations of fraud, double allocation, and the illegal transfer of land parcels in Ruiru, Kiambu County. 2. The Plaintiff claims ownership of two primary parcels of land Plots Nos. 227 and 228 (now registered as Ruiru Kiu Block 18/227 and 18/228) and a half-share of Plot No. 93. He asserts that he purchased Plots 227 and 228 from the 3rd Defendant in September 2013, having paid the full purchase price and survey fees to the Sukari Kimbo Self-Help Group. Despite the 3rd Defendant claiming the original Share Certificates were lost, the Plaintiff was allowed to take possession, fence the land, and begin farming. 3. The dispute escalated in early 2023 when the Plaintiff, allegedly after paying Kshs. 70,000 for title processing at the direction of the Self-Help Group’s officials the 2nd, 3rd and 4th Defendants, discovered that Plots 227 and 228 had been registered in the name of the 1st Defendant**.** The Plaintiff further alleges that his half-share in Plot No. 93, which he purchased jointly with the 3rd Defendant from a third party in 2014, was also sold to a stranger without his consent. 4. The Plaintiff contends these transfers are products of forgery and collusion. Additionally, he argues the transactions are legally void because the Defendants failed to obtain mandatory Land Control Board consent required for agricultural land under the Land Control Act (Cap 302). 5. As specified in paragraph 31 of the Plaint, the Plaintiff outlines the following Particulars of Illegalities committed by the Defendants, jointly and severally: 6. *Unlawfully and illegally effecting transfer of the suit-plots and Plot No. 93 to the 1st Defendant and to a third party respectively;* 7. *Purporting to deny the Plaintiff his ownership rights and interests over suit plots and Plot No. 93 respectively;* 8. *Falsification and misrepresentation of facts;* 9. *Lying to the Plaintiff that the original Share Certificates for Plots Nos. 227 and 228 had been misplaced with the ulterior motive to dispossess the Plaintiff of the suit plots;* 10. *Making a document contrary to relevant laws;* 11. *Executing the transfer forms unlawfully;* 12. *Giving false information to the 5th Defendant;* 13. *Threatening to evict the Plaintiff from the suit plots without a Court order;* 14. *Claiming ownership of the suit plots without valid ownership documents;* 15. *Using unorthodox means to illegally purport to acquire the suit plots and Plot No. 93 rather than following the due process of law;* 16. *Disregarding the Plaintiff's indefeasible rights and interest over the suit plots and Plot No. 93 respectively;* 17. *Interfering with the smooth and quiet occupation of the suit plots by the Plaintiff.* **1st Defendant’s Case** 1. In response the 1st Defendant, Zablon Murungi M'Ringeera, denies the Plaintiff's claims in their entirety, asserting that he is the bona fide legal and beneficial owner of the properties correctly identified as Ruiru Kiu Block 18/227 and Ruiru Kiu Block 18/228. He maintains that he has been a member of the Sukari Kimbo Self-Help Group since 1984 and was procedurally allocated these plots based on his share ownership, with formal titles issued in his name on 4/11/2022. 2. He argues that the 3rd Defendant never owned these plots and therefore had no legal capacity to sell them to the Plaintiff, invoking the principle of *Nemo Dat Quod Non Habet* one cannot give what they do not have. Furthermore, the 1st Defendant denies that the Plaintiff ever occupied the land, alleging instead that the Plaintiff is a stranger to the Self-Help Group who recently hired goons to uproot crops on the property, an incident reported to the Mwihoko Police Station. 3. The 1st Defendant prays for judgment against the Plaintiff for:- 4. A declaration that the 1st Defendant is the legal owner of RUIRU KIU Block 18/227 and RUIRU KIU Block 18/228 and entitled to possession of all those parcels of land known as RUIRU KIU Block 18/227 and RUIRU KIU Block 18/228. 5. An order of permanent injunction to restrain the Plaintiff, his agents, servants, employees and/or any other person acting on their instructions from trespassing on, wasting, damaging, demolishing, alienating, developing and or adversely interfering with the suits plots known as RUIRU KIU Block 18/227 and RUIRU KIU Block 18/228 belonging to the 1st Defendant. 6. Costs of the suit and counterclaim. 7. Such further order which this Court deems fit to grant. **2nd and 4th Defendant’s Case** 1. The 2nd and 4th Defendants, being officials and trustees of the Sukari Kimbo Self-Help Group, deny the Plaintiff's claims in their entirety and maintain that the Plaintiff is a complete stranger to the Group. They assert that the properties now known as Ruiru Kiu Block 18/227 and 18/228 were originally part of the Group's land and were procedurally balloted and allocated to the 1st Defendant, Zablon Murungi M'Ringeera, as far back as August 2005 and April 2009. The Defendants emphasize that the 1st Defendant has been a bona fide member of the Group since 1984, whereas the Plaintiff has never held membership nor has he ever been advised by the officials to make payments for title processing. 2. The 2nd and 4th Defendants further contend that at the time the Plaintiff purportedly entered into a sale agreement with the 3rd Defendant in 2013, the 3rd Defendant had no legal or beneficial interest in the suit properties to convey. Consequently, any such transaction was a nullity under the doctrine of *Nemo Dat Quod Non Habet*. They refute allegations of collusion or double allocation, stating that the subdivision of the mother title and the subsequent registration of leases in favor of the 1st Defendant were carried out in strict adherence to the law and the Group's internal procedures. 3. The Defendants deny that the suit properties were ever occupied or developed by the Plaintiff, noting that the land remained vacant until its lawful allocation and subsequent development by the 1st Defendant. 4. The 2nd and 4th Defendants pray that the Plaintiff’s suit be dismissed with costs. **5th Defendant’s Statement of Defence** 1. The 5th Defendant filed their Statement of Defence dated 28/11/2023. The 5th Defendant, denies each and every allegation of fact set out in the Plaint as if the same were traversed seriatim, save for what is expressly admitted herein. 2. Regarding the core of the dispute, the 5th Defendant maintains that he is a total stranger to the averments contained in paragraphs 5 through 29 of the Plaint. Specifically, the 5th Defendant denies being privy to any sale agreement or transaction between the Plaintiff and the 3rd Defendant and puts the Plaintiff to strict proof of the existence and validity of any such dealings. 3. Furthermore, the 5th Defendant avers that they remain a stranger to the allegations of illegality or procedural impropriety raised in paragraphs 30, 31, and 32, averring that he was not a party to any alleged unlawful acts. 4. While admitting the jurisdiction of this Honourable Court to hear and determine the matter, the 5th Defendant asserts that the suit against him lacks merit and is otherwise an abuse of the Court process. 5. The 3rd Defendant did not file any response to the suit. **Plaintiff’s Evidence** 1. The Plaintiff testified as PW1 and adopted his witness statement dated 9/10/2023 as his evidence in chief and also asked the Court to adopt his list of documents as exhibits which is at page 6 of the Trial Bundle and marked as **“PExh 1-13”**. Counsel for the 1st Defendant objected to the production of the photographs in the bundle since they were not accompanied with an electronic certificate. The Counsel for the Plaintiff moved the Court to have the photographs marked for production. The Court delivered a brief ruling where the photographs were marked for production. 2. Upon cross-examination the Plaintiff testified that he owned the suit property having entered into a sale agreement dated 9/08/2013 produced at page 9 of the Plaintiff’s trial bundle and that he signed it on 04/09/2013. He however testified not having any Share Certificate, nor membership certificate as proof of his membership. He stated that he had sued the 3rd Defendant as the one who sold the suit property to him and that he showed the Plaintiff the certificates but he never gave them to him. 3. That upon signing the Agreement the 3rd Defendant agreed to allow the Plaintiff to continue farming on Plot 227 and 228. He told the Court that whereas he bought the suit property in 2005, the sale agreement was entered into in 2013. He told the Court that whereas he paid for the suit property he has not indicated the cost of purchase since it was an internal agreement and that he also paid the money in the account of Mwihoko but that he was not given a receipt. 4. That the surveyor despite showing him the suit property he never gave him a beacon certificate. It was his testimony that the 3rd Defendant told the Plaintiff that he had lost the Share Certificates of the sellers of plots 227 and 228 but there is not police report that was made. 5. He testified having stayed on the suit property since 2005 although he was shown the land in 2013. That since the occupation he has been farming. He stated however that for now he was not aware who was on the suit property. 6. He told the Court that he has reported the trespass on this property to Mwihoko police station although he did not produce an OB number. Further that he went to the Office of Sukari Kimbo Self Help Group to complain and the chairman noted the double allocation although he has not presented any letter before the Court documenting his complaint to Sukari Kimbo Self Help Group. He however testified that he has messages sent to him by Chairman of the Group from Safaricom where the Chairman confirmed that the suit property belonged to the Plaintiff. 1. On the issue of Plot No. 93, he testified that he said plot belonged to Rebecca Muthoni who signed a Power of Attorney and gave to her sister but the said Power of Attorney was not signed by an Advocate nor was it registered in Kenya. It was his word to Court that he was not a member of Kahawa Sukari Kimbo Self-Help Group. 2. Upon further cross-examination by Counsel for the 4th Defendant he testified that he has never owned shares from the Sukari Kimbo Self Help Group and neither is he a member of the group. That the 3rd Defendant is the one who sold to him the two plots. That other leaders of the self-help group were not present when the 3rd Defendant sold the plots to the Plaintiff and that he paid Kesh 70,000 for the titles. 3. He told the Court that he produced at page 19 of his bundle the WhatsApp snapshots from Thairu the Chairman of Mwihoko but that his number does not appear in the snapshots. 4. That for Plot 93 he told the Court that it is him and Stephen Njenga who bought it and it was sold to another person but that he had not produced any documents in Court to support his claim. He stated that whereas he has testified that there are procedures that were not followed, the has not supported this claim through production of any documents. 5. Upon re-examination, he told the Court that the 3rd Defendant was known to him and that he did a search and verified that he owned the two plots he sold to the Plaintiff. Further, that he took the Plaintiff to see the plots. That following the purchase he was given two Share Certificates which were in the name of the 3rd Defendant who wrote the Plaintiff’s names on the Share Certificates which however he states that the 3rd Defendant asked him to surrender for processing of title and that he did not keep copies of the said Share Certificates. 6. It is his testimony that the sale agreement was made but that the seller, the 3rd Defendant and the purchaser, the Plaintiff never signed it together that the 3rd Defendant signed the agreement later. That infact the 3rd Defendant was a secretary in the self-help group. It is his word that the surveyor showed him the plot in 2005 and that he never went back to the suit property with the Surveyor and that he only got to know about Zablon in February 2023. 7. He also testified that whereas he deposited Kesh 70,000 as instructed by the Chairman he never got the title deeds nor was his money refunded. As for Plot 93 he stated that he bought it with Mr Njenga and it was sold by Muthoni for Kesh 1,300,000 and that he paid Kesh 650,000 and Njenga also paid Kesh 650,000 as seen at page 17 and 18 of the Trial Bundle. 8. The witness was stood down to allow the presentation of the Electronic Certificate for the photographs but the Certificate when produced did not show the equipment used and ownership leading to the evidence being struck out. With that the Plaintiff closed his case. **Defense Case** 1. Prof Francis Xavier Gichuru testified as DW1 adopting his witness statement dated 13/11/2023 as his evidence in chief. 2. Upon cross-examination by Counsel Owang for the Plaintiff, he told the Court that he knows Zablon who is his father-inlaw and that he is aware how he acquired the two suit properties. That once he bought the two pots in 1984 he became a member of Kahawa Sukari Kimbo. That in fact he gave DW1 money and he, purchased the plots for him. Which he bought from Kahawa Sukari Ranch Waunyomu Ngeke Ranch and that he paid the money to a Mr Njenga and the payment was recorded in a Land Register once transfer was done and those who bought became members of Kahawa Sukari Kimbo Ranch. 3. That in the big register Mr Zablon’s name was entered in 1984 although in purchasing the plots there was no agreement signed but that every time he paid receipts were issued in the name of Zablon. He told the Court that he is aware that Mr Zablon has acquired possession of the two plots although in 2007 he had not completed paying and DW1 is not aware when he completed. 4. When he was cross-examined by Counsel Njuguna for the 4th Defendant, he testified that people bought shares which would then entitle them to a plot. So it is from the shares that Zablon was allocated a plot and monies paid were to Kahawa Sukari Self Help group and not to Njenga as a person. 5. When he was re-examined he told the Court that Waunyomu Ngeke Ranch was connected to Kahawa Sukari Kimbo Ranch. 6. Domissiano Ntong’oundu testified as DW2 and after adopting his witness statement dated 13/11/2023 testified during cross-examination that he knows Mr Zablon who he met when they visited his home in the company of Dr. Gichuru and Dr Kilemi. That they visited him on Gicheha farm where the land was subdivided and the plots sold to workers. 7. It was his testimony that Zablon was not a worker not a member of the self-help group but became one when he registered in 1984 and plots 227 and 228 were bout as shares from the self-help group and the register shows that Zablon was the owner of the shares. He stated that he was not aware whether Zablon completed paying but he added that one cannot be shown the shamba or plots without paying. 8. According to his testimony, it is his father who called Zablon, Gichuru and Kilemi to purchase the shamba. That workers and outsiders alike were allowed to buy shares. He testified that Mr Zablon was given the Share Certificate in 2005. That it is the company that gives receipts once one pays for the shares and on the receipt, it indicates the plot number(s). 9. DW3 – Zablong Murungi M’Ringera testified that he was sued and he filed a witness statement dated 13/11/2023 and a list of documents on even date. He adopted the witness statement and his list of documents as **“DWExh 1-17”**. 10. When cross-examined by Mr Owang, he stated that he was allocated plots 227 on 18/08/2005 and plot 228 on 10/04/2009 and that he became a legal owner when he was given a Share Certificate and that he became a member of the self-help group. He testified sending Professor Gichuru to pay for the plot for him and sometimes he paid himself. 11. He testified that the payments he made were dictated by the self-help group that sometimes it was Kesh 5,000 and other times it was different and that each time he was issued with receipts but he had not produced them in Court. That he took possession in 2005 and 2009 and there was nobody on the suit property. That he cleared payments for the plot 227 in 2005 but plot 228 he delayed in payments. According to him the copy of the register indicates that the shares were bought in his name as can be seen at page 55 of the trial bundle. 12. He testified that plot 228 was sold to him by Mr Nyaga and not from Kahawa Sukari Kimbo. That Mr Nyaga who was the initial allottee agreed to transfer to him his shares but that he had no minutes nor sale agreement to support this claim since at the self-help group the procedure is different. 13. When he was shown the record at page 56 where there an X on the name of Stephen Njenga he said he did not know the reason but that his name is added as Zablon M. Ringera as number 3. 14. For plot 227 he against testified that although he signed the transfer he could not remember the date. That the transfer of the said plot to him is by Kanise Holdings Ltd and not Kahawa Sukari Self Help Group. That it is not clear when the transfer was executed. 15. Also, for plot 228 the transferee is Kenise Holdings Ltd and it is not clear when it was transferred. He stated that he took possession in 2005 and that he never destroyed any crops. That whereas he paid Njenga in the self-help group he had no minutes. 16. On further cross-examination he told the Court that at page 55 of the Register of Sukari Kimbo there is a name of Stephen Njenga which cancelled and that his certificate of lease is shown at page 20 and that he has done a search which confirm that his title is legitimate. For plot 228 he states that the Share Certificate is at page 54 and it is signed by the Chairman of the group and the treasurer. That at page 56 it shows that the initial shareholder for plot 228 was one Mr Nyaga and he purchased his shares. The name Stephen Njenga appears but there is an X on it and a comment that he did not own the plot. The date at the comment is 10/04/2009 and next comment shows how much DW3 paid for it. That he has done a search which show that the certificate of lease at page 24 is legitimate. 17. Upon re-examination he testified that he has a register with his name in it and there is no name of David Wairegi, the Plaintiff. That at page 56 the name Stephen Njenga is cancelled and being the clerk at the self-help group he is the one who keeps the register and he can cancel his name. 18. That in 2005 he never found David Wairegi on the suit property he saw him in Court when he reported to the police. 19. With that DW3 closed his case. 20. Elizabeth Njambi Ngugi testified as DW4 after adopting her witness statement she was cross-examined by Counsel for the Plaintiff and she testified knowing the chairman Mr Kimani Thairu and Mr Stephen Njenga the Secretary of the Company or self-help group. She told the Court that the self-help group used to be known as Wanyomu Ngeke Ranching Company before becoming Sukari Self Help Group and that she was not aware about Kenise Holdings Ltd. 21. She testified knowing Zablon whose transfer she stated having signed as a transferor and director of Kenise. She told the Court that for a Share Certificate to be canceled the one transferring must go to the group office and the chairman, treasurer and secretary do the takes and sign the new certificate. 22. She denied that Stephen Njenga receives money she instead stated that the process is that a person goes to the bank pays and brings a receipt to the company office. Therefore, anyone saying they paid Stephen Njenga is not honest. That plot 228 belongs to Zablon. For non-members she testified that one had to buy shares from members. According to her, the Plaintiff never went to the office he was sold the plot by Mr Njenga. 23. She testified that she did not know David Wairegi and that she was not present when as claimed by the Plaintiff he was sold a plot. She also stated that that the entry at pages 55 and 56 are all fake about cancellation of Stephen Njenga’s name. According to her, when someone buys a plot they must go to the office to verify if the seller has a plot to sell or not. 24. That Zablon went to the office. The Register for the group she testified is kept by the Chairman. She told the Court that the original land was owned by Mama Ngina and that she is the one who handed over the suit property to the new development known as Kenrise Holdings Ltd. According to her, when transfer is done, it is signed by three persons therefore a transfer signed by one person is not possible. 25. It is her testimony that Mr Njenga has his own plots that he bought but plot 227 and 228 are not his. That any outsiders who bought a plot from members had their names entered in the register to reflect the change but this had to be done in the office. For the name to be entered there had to be an exchange of payment of money. 26. On re-examination she told the Court that long time people who bought plots used to pay money to one elder who then would bank the monies paid. 27. Henry Kimani Thairy testified as DW2 and he adopted his witness statement dated 25/07/2024 and a list of documents dated 10/01/2024 as exhibits DW2-Exh 1-6. He told the Court that he has been chairman of the self-help group since 2002. He acknowledged knowing Stephen Njenga and Elizabeth Njambi 28. On cross-examination he told the Court that members of the group who worked on the suit property bought the lane but when they sold the condition was that for one to sell, they had to have a Share Certificate and therefore the new owner had to be a member and his name to be in the register. 29. That during his time one had to pay Kesh 5,000 and then obtain Share Certificate and at the time to obtaining title one had to pay Kesh 70,000 for members in the Register. The Kesh 5,000 was being paid by old members so that one qualifies for the quarter acre of land. New members who were buying from old members were paying back the older member as per negotiations and they had to surrender back to the office the old Share Certificate for cancellation. 30. He told the Court that he found Henry Kimani in the old register of 1983 but he was in the register of 1984 and that according to DW2 he thinks that Henry bought it from a member since he was not a worker like the original members. It his word to Court that he found the name of Henry in the register when he got into leadership and his name was there for plots 227. 31. That when the 1st Chairman died before he took over, the books were taken by the Secretary and so according to him the records must have been tampered with. He had to be summoned so that he could give the chairman the books. That DW1’s name was in the register for plot 227 but he was only given a share in 2005. That the documents at page 55 of the 1st Defendant’s bundle show the register dated 14/10/2003 and plot 227 is for Zablon Murungi. That in those days member who could not afford to pay Kesh 5,000 always brought their names to the office so that it is what would be reflected in the register. 32. For Stephen Njenga, he testified that there is a comment at page 56 of the 1st Defendant’s bundle indicating that he did not own plot 228. That the reason is that Stephen Njenga had illegally written that the said plot was transferred and this is not true. He drew the Court’s attention to his signature and comments at the said page and that he blames Stephen Njenga for the falsified records. 33. That the Certificate of Lease at page 227 is in the name of Zablon although at the time of processing of title, HE Mama Ngina had come up with a company to process titles which was registered in 2014 and so the new Company Kenrise Holdings Ltd processed DW1’s title. The Certificate of Lease at page 28 had conditions and the group was told that its members could not obtain freehold titles and the members agreed. 34. According to DW2 condition 7 barred members from selling unless with prior consent in writing but he told the Court that he does not have the prior consent presented in Court. He testified having met the Plaintiff in either 2022 or 2023 but denied telling him to pay Kesh 70,000. That the Plaintiff told him he had been sold to a plot by Mr Njenga and that he told the secretary to refund the said money. According to DW2 he has not seen the name of the Plaintiff in the register. 35. He stated that he did not know the owner of plot 93 and according to him, Mr Njenga is the one who has caused all the problems leading to this cause of action. On further cross-examination he told the Court that he became chairman in 1985. That the organization was for purchase of land and that it is the workers who bought the land and that he was a manager and Mr Njenga was a worker but Elizabeth Njambi the treasurer was not a worker she bought from those who sold their share. 36. That when Mr Muturi he took over from was chairman, the members shared out the land and they agreed that those who wanted to sell their plots were at liberty to do so and when they did the office recorded the changes in ownership. 37. He testified that plots 227 and 228 belonged to Mr Ringera who bought them from one of the workers. That the document at page 44, the 1st Defendant’s Share Certificate is for Zablon Murungi and he as the Chairman signed the transfer and that both the plots and shares were for Kesh 5,000 38. According to him, the document at page 55 shows the register which has the entry of the name of Zablon and the name of Stephen Njenga is crossed out. That the entry at pay 56 is the 1st entry and it shows owner and transfer to Zablon Murungi Ringera to be owner of plot 228 and that in the remarks he wrote “did not own plot” which remarks refer to Stephen Njenga and which is the position DW2 holds todate. 39. That at page 24 it shows that the title was issued on 4/11/2022 to Zablon for plot 228 and page 28 is a lease and it was issued by Kenrise Holdings Ltd and the lease is dated 28/07/2022 and at page 31 he confirms that the signature at the page belongs to him and also Njambi the treasurer signed. The second lease he told the Court is as shown at page 32, it was issued on 28/07/2022 and both the Treasurer and himself signed the document. 40. He testified that there is also a transfer a page 36 to Zablon and they (himself and treasurer) appended their signatures at page 38. At page 48 and 52 there is a green card showing the ownership history and the owner as Zablon Murungi Ringera. 41. That all the transfer were signed by Stephen Njenga since he did not own the plots because if he did, he would not have signed the transfers. To him he stated that he never saw any plots owned or paid for by Mr Wairegi. That since Mr Wairegi paid to facilitate transfer of the two plots on 6/02/2023 he was making the payments when the titles had already been issued on 4/11/2022. 42. It was his word that they never colluded to take away any plot from Mr. Wairegi, and that they were never reported to the police and also that no complaint letter was ever filed at the company. 43. He concluded by testifying that he is a director of Kenrise Holdings together with Mr Njenga and Njambi. On re-examination he testified that they were sold to the suit property by HE Mama Ngina Kenyatta. Kenrise Holdings Ltd took over from Sukari Kimbo as a vehicle to transfer land to members who were workers. With that the 2nd and 4th Defendant’s case was closed. 44. The Plaintiff and the 2nd and 4th Defendants filed written submissions, the Plaintiffs are dated 19/02/2026 and the 2nd and 4th Defendants filed their submissions dated 21/02/2026. **Plaintiff’s Submissions** 1. The Plaintiff avers that he is the rightful and beneficial owner of Ruiru Kiu Block 18/227, Ruiru Kiu Block 18/228, and a half share of Plot No. 93, having purchased Plots Nos. 227 and 228 from the 3rd Defendant vide a Sale Agreement dated 4th September 2013, and having jointly purchased Plot No. 93 with the 3rd Defendant from one Ruth Muthoni Mbuthia vide a Sale Agreement dated 19/11/2014. The Plaintiff contends that he has been in quiet and peaceful possession of the suit plots since the year 2000, and that as late as February 2023, the 2nd, 3rd and 4th Defendants directed him to deposit Kshs. 70,000/= towards the processing of title deeds in his name, which payment he duly made, thereby affirming his continuing beneficial ownership. It is the Plaintiff's further contention that in May 2023, only three months thereafter, the Defendants colluded to fraudulently transfer the suit plots to the 1st Defendant, and that the 3rd Defendant's deliberate failure to enter appearance or attend Court is an admission of guilt in the fraudulent scheme orchestrated against the Plaintiff. 2. The Plaintiff further submits that the 1st Defendant cannot avail himself of the protection accorded to a bona fide purchaser for value without notice. Relying on the criteria set out in **Hannington Njuki v William Nyanza*,*** the Plaintiff urges that the 1st Defendant gave demonstrably false evidence by claiming to have been allocated the suit plots as a member of Sukari Kimbo Self Help Group, whereas evidence adduced by his own witness DW1 established that the plots were in fact purchased from third parties. The Plaintiff urges that no sale agreements were produced by the 1st Defendant to demonstrate purchase for valuable consideration, and that the membership register was doctored to insert his name prior to completion of his share contributions. Further, the Plaintiff draws the Court's attention to the undisclosed involvement of Kenrise Holdings Limited, a company incorporated in 2014 and associated with the 2nd, 3rd and 4th Defendants, as the transferor of the suit plots to the 1st Defendant a material fact deliberately concealed from the Plaintiff and the Court throughout the proceedings. 3. The Plaintiff implores this Honourable Court to find that the title held by the 1st Defendant is liable to be impeached pursuant to Section 26(1) of the Land Registration Act and Section 80(1) thereof, the registration having been obtained through fraud, illegality and a corrupt scheme. As was pronounced by the Supreme Court in **Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR)*,*** a title is the end product of a process, and where that process was tainted, the resulting title cannot be held to be indefeasible. This position was further affirmed in **Gitau v Munyaka & 2 Others [ELC Appeal No. E003 of 2024] [2025] (KLR)*,*** where the Court restated that under Section 26(1)(b) of the Land Registration Act, a title obtained illegally, unprocedurally or through a corrupt scheme remains impeachable regardless of the innocence of the holder. The Plaintiff therefore prays that he be declared the sole and legal owner of the suit properties, or in the alternative be compensated at current market value, that he be declared entitled to a half share of Plot No. 93, and that the 1st Defendant's counterclaim be dismissed with costs. **2nd and 4th Defendants’ Submissions** 1. The 2nd and 4th Defendants submit that the suit concerns three properties, namely Ruiru Kiu Block 18/227, Ruiru Kiu Block 18/228 and Plot No. 93 situated at Ruiru, and that the 1st Defendant is the duly registered proprietor of the first two suit properties, having acquired the same through a legitimate process of share acquisition within Sukari Kimbo Self Help Group. The Defendants explain that the suit properties were derived from the subdivision of Ruiru Kiu Block 18, previously owned by HE. Mama Ngina Kenyatta who sold it to the Group, and that Kenrise Holdings Limited was incorporated by HE Mama Ngina as a special purpose vehicle to receive the transfer, effect subdivision and transmit individual plots to verified members. 2. The 2nd Defendant further testified that the 1st Defendant was the last registered owner of Plots 227 and 228 as per the Group's records, and that the transfer in his favour was effected upon due verification and payment of requisite fees, whilst also disclosing the 3rd Defendant's notorious conduct of defrauding innocent persons through manipulation of the Group's records, which had been in his custody for a considerable period following the death of the previous chairman. 3. On the question of impeachment of the 1st Defendant's title, the 2nd and 4th Defendants place considerable reliance on Section 26(1) of the Land Registration Act, which provides that a certificate of title shall be taken as prima facie evidence of absolute and indefeasible ownership, and that such title shall only be subject to challenge 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. 4. The Defendants argue that the Plaintiff has wholly failed to discharge the evidential burden necessary to impeach the 1st Defendant's title, noting that the Plaintiff himself confirmed under cross-examination that he has never been a shareholder of the Group and has never been issued a Share Certificate. The Defendants further contend that since the 3rd Defendant was equally never a registered owner of the two plots, he had no valid or legal title capable of passing to the Plaintiff, and the allegations of fraud and illegality against the officials of the Group and the 1st Defendant therefore remain unproven. 5. With regard to Plot No. 93, the 2nd and 4th Defendants submit that the Plaintiff has equally failed to prove his claim on the requisite standard, urging that it is trite law that he who alleges must prove, and that the Plaintiff tendered no evidence establishing that the said plot was transferred to a third party, nor did he particularize any fraudulent or illegal conduct on the part of the Group's officials in relation thereto. In the premises, the Defendants submit that the entire suit ought to be dismissed with costs, and that to the extent the Plaintiff paid Kshs. 70,000/= to the Group, the same may be refunded. It is the further submission of the Defendants that the Plaintiff's proper recourse, if any, lies in a claim for refund against the 3rd Defendant and the said Ruth Muthoni Mbugua for failure of consideration, having regard to the fact that the Plaintiff did not acquire the benefit of the transactions he alleges to have entered into. **Analysis, Findings and Determination** 1. The central issues falling for determination in this suit are threefold: 2. Whether the Plaintiff has established, on a balance of probabilities, a legal or beneficial interest in Ruiru Kiu Block 18/227 and Ruiru Kiu Block 18/228 sufficient to warrant the impeachment of the 1st Defendant’s registered title; 3. Whether fraud, illegality or a corrupt scheme tainted the process by which the 1st Defendant's titles were procured, within the meaning of Section 26(1) of the Land Registration Act; 4. Whether the Plaintiff has proven his entitlement to a half-share of Plot No. 93. 5. At the heart of this dispute lies a painful but familiar story in Kenya's land justice narrative where an ordinary man, the Plaintiff, who placed his trust and his life savings in another, the 3rd Defendant, only to find himself years later holding nothing but a piece of paper while another man holds the title deed to the very land he believed was his. The Court is nonetheless reminded that sentiment, however justified, cannot substitute for evidence, and that the burden of proof in civil proceedings, as settled in **Midland Hotel v Kioko [2024] KEHC 9709 (KLR)**, rests on he who asserts. 6. The standard, as Lord Denning stated in **Miller v Minister of Pensions [1947] 2 All ER 372,** requires that the evidence must reach the same degree of cogency as is required in a criminal case before the act is established only in fraud cases and fraud, as the Court of Appeal of Kenya affirmed in **Kinyanjui Kamau v George Kamau [2015] eKLR**, must be strictly pleaded and strictly proved. Measured against this standard, the Plaintiff's case reveals significant evidentiary gaps; since he produced no Share Certificate, no membership card, no beacon certificate, no receipt of payment from the Group, and no police abstract despite claiming to have reported trespass. The photographs evidencing his occupation were struck out for non-compliance, and critically, the Plaintiff himself candidly admitted under cross-examination that he was never a member of Sukari Kimbo Self Help Group and was never issued a Share Certificate by the Group. 7. On the question of title impeachment, the Court is guided by Section 26(1) of the Land Registration Act, No. 3 of 2012, which provides that; ***“A certificate of title shall be taken by all Courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner"*** and that such title shall not be subject to challenge except 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. 1. The Supreme Court in **Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR)** was emphatic that; ***"The title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible."*** 1. The Court in **Gitau v Munyaka & 2 Others [ELC Appeal No. E003 of 2024] [2025] (KLR)** further restated that Section 26(1)(b) removes protection even from an innocent holder where the title was obtained illegally or through a corrupt scheme. These are sound and binding propositions. However, their application is contingent upon the party seeking impeachment first demonstrating, with credible and cogent evidence, the specific illegality or fraud complained of. 2. The 1st Defendant, in contrast, produced his Share Certificates for plots 227 and 228, copies of the membership register bearing his name, certificates of lease, transfer documents executed by the Group's officials including the 3rd Defendant himself, and a search confirming the legitimacy of his title. The Chairman of the Group, DW2, confirmed under oath that the 1st Defendant's name appears in the register and that he signed the transfer documents. 3. Critically, DW2 expressly attributed the falsified entries in the register to the 3rd Defendant, noting that; "**Stephen Njenga had illegally written that the said plot was transferred"** and that he **"blames Stephen Njenga for the falsified records."** The principle in *Nemo Dat Quod Non Habet* ; one cannot give what one does not have as invoked by the 1st and 2nd Defendants, finds full application here. Since the 3rd Defendant was never the registered owner of the suit plots, the purported sale to the Plaintiff was a nullity ab initio, and no legal or beneficial interest passed to the Plaintiff by virtue thereof. 4. On the claim for a half-share of Plot No. 93, the Plaintiff's case is even thinner. He produced a sale agreement and payment cheques showing that he and the 3rd Defendant jointly purchased the plot from Ruth Muthoni Mbuthia. However, he adduced no evidence whatsoever as to the identity of the third party to whom the plot was allegedly transferred, produced no title documents, no transfer records, and no particulars of the alleged fraud in relation to this specific plot. 5. The Power of Attorney relied upon was neither signed by an advocate nor registered in Kenya, raising serious questions as to its validity under the Powers of Attorney Act, Cap 531 of the Laws of Kenya. As Ojwang J (as he then was) stated in **Republic v Minister for Home Affairs & Another, ex parte Site [2004] 1 KLR 141**, ***"a party who comes to Court must come with clean hands and must place before the Court sufficient material to enable it to exercise its discretion or jurisdiction in his favour."*** 1. The Plaintiff has simply not done so with regard to Plot No. 93. The trite principle that *"he who alleges must prove"*, rooted in Section 107 of the Evidence Act, Cap 80, remains the immovable standard, and the Plaintiff has fallen far short of it on this limb of his claim. **Disposal Orders** 1. Having carefully weighed the totality of the evidence and the submissions of the parties, this Court finds and holds that the Plaintiff has failed to establish, on a balance of probabilities, any legal or beneficial interest in Ruiru Kiu Block 18/227, Ruiru Kiu Block 18/228, or Plot No. 93. The evidence overwhelmingly points to the 3rd Defendant as the architect of the Plaintiff's misfortune a man who, having no valid title to the suit plots, nonetheless sold them to the Plaintiff and pocketed the purchase price, then conveniently absented himself from these proceedings. The Court notes with displeasure the 3rd Defendant's deliberate failure to appear and offer an explanation, which is itself telling. 2. The Plaintiff is not without remedy, but his remedy does not lie against the 1st, 2nd, 4th or 5th Defendants it lies squarely against the 3rd Defendant for recovery of the monies paid. Accordingly, the Court makes the following orders: 3. ***The Plaintiff's suit against the 1st, 2nd, 4th or 5th Defendants is hereby dismissed;*** 4. ***The 1st Defendant's title to Ruiru Kiu Block 18/227 and Ruiru Kiu Block 18/228 is confirmed as valid and indefeasible;*** 5. ***The 1st Defendant's counterclaim is allowed, and a declaration is issued that the 1st Defendant is the legal owner of Ruiru Kiu Block 18/227 and Ruiru Kiu Block 18/228 and entitled to possession thereof;*** 6. ***A permanent order of injunction is hereby issued restraining the Plaintiff, his agents, servants or any person acting on his instructions from interfering with the suit plots;*** 7. ***The 3rd Defendant, having been served with summons and having deliberately failed to enter appearance, is condemned to refund to the Plaintiff all monies paid by him, including the sum of Kshs. 650,000/= in respect of Plot No. 93 and Kshs. 70,000/= paid for title processing, with interest at Court rates from the date of filing suit until payment in full; and*** 8. ***The costs of this suit and the counterclaim shall be borne by the Plaintiff and the 3rd Defendant jointly and severally.*** **Orders Accordingly**. **DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS ON THIS 17TH DAY OF JUNE 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **MOGENI J** **JUDGE** **IN THE PRESENCE OF:** Mr. Owang for the Plaintiff Mr. Otieno Gwade for the 1st and 2nd Defendants Mr. Njuguna holding brief for Ms. Kuria for the 2nd Defendant Mr. Motari holding brief for Ms. Ngunyu for 5th Defendant Ms. Lillian - Court Assistant **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **MOGENI J** **JUDGE**