https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4239

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC NO. 28 OF 2017** **FRANCIS ODONGO BULUMA ………………….….……. PLAINTIFF** **= VERSUS =** **PRISCAH NIGHT MANYURU ……………….…... 1ST DEFENDANT** **CONSOLATA AUMA MANYURU ………………... 2ND DEFENDANT** **JOHN OSIGE ………….……………………….….... 3RD DEFENDANT** **J U D G M E N T** 1. By his amended plaint amended at Nairobi on 9th November 2023, the Plaintiff has sued the Defendants and made the following prayers against them: 2. **The 1st Defendant be compelled to take back his money of Kshs.110,000 which was the purchase price of a portion of land parcel number BUKHAYO/BUGENGI/8618 that has since been sub-divided to create BUKHAYO/BUGENGI/13011, 13012 and 13013.** 3. **Damages for breach and fraud.** 4. **Costs of this suit.** 5. **Interests on (b) and (c) above.** 6. The 1st Defendant filed an amended statement of defence and counterclaim. In her counter claim, the 1st Defendant has sought orders that the Plaintiff pays her damages for breach of contract and for the losses incurred when the Plaintiff cut down trees planted by the 1st Defendant on the parcel of land claimed by the 1st Defendant. The 1st Defendant has also prayed for an order directing the Plaintiff to transfer to her land parcel NO L.R BUKHAYO/BUGENGI/13012 measuring 0.4Ha. 7. The 2nd Defendant has also filed an amended statement of defence and counterclaim wherein she has sought orders against the Plaintiff for a declaration that the purported cancellation of her title BUKHAYO/BUGENGI/8618 was unprocedural, illegal and fraudulent and the same should be restored to her, an order that the registrar of land be authorized to reinstate her title upon cancellation of the illegal sub-titles created on BUKHAYO/BUGENGI/13011, 13012 and 13013 and revert it to BUKHAYO/BUGENGI/8618; The 2nd Defendant has also counter-claimed for an order of injunction against the Plaintiff from in any manner interfering with the 2nd Defendants use and quiet possession of land parcel NO BUKHAYO/BUGENGI/8618 upon the same reverting to the name of the 2nd Defendant. 8. On 25.9.2023, Mr Nyegenye counsel for the Plaintiff informed the Court that the 3rd Defendant had never entered appearance and that judgment against the said Defendant had been obtained and therefore his matter proceeded on formal proof as against the 3rd Defendant. **THE PLAINTIFF’S CASE:** 1. The Plaintiff, Mr Francis Odongo Buluma adopted his statement and produced the documents listed in his list of documents, both dated 8.2.2017. The documents were produced as the Plaintiffs exhibit 1-16. The Plaintiff also produced the documents in his further list of exhibits dated 9.11.2023. They were produced as the Plaintiffs exhibit 17-24. 2. Copy of Plaintiff’s Identity Card. 3. Copy of sale agreement dated 2nd December 2008. 4. Copy of application of consent to sub-divide parcel number Bukhayo/Bugeng’i/8618 dated 6th July 2009. 5. Copy of the letter consent to sub-divide dated 14th July 2009. 6. Copy of mutation form of land parcel number Bukhayo/Bugeng’i/8618. 7. Copy of certificate of official search of land parcel number Bukhayo/Bugeng’i/8618 dated 10th September 2012. 8. Copy of the letter from Assistant Chief Bugeng’i sub-location dated 7th November 2013. 9. Copy of title of land parcel number Bukhayo/Bugeng’i/8618 issued on 16th August 2013. 10. Copy of Certificate official search of parcel number Bukhayo/Bugeng’i/8618 dated 3rd April 2014. 11. Copy of summoning letter of Consolata Auma Andera by the Land Registrar Busia County dated 15th July 2014. 12. Copy of summoning letter of Consolata Auma Andera by the Land Registrar Busia County dated 1st August 2014. 13. Copy of summoning letter of Consolata Auma Andera by the Land Registrar Busia County dated 4th December 2015. 14. Copy of the register of land parcel number Bukhayo/Bugeng’i/8618. 15. Certificate of official search dated 16th August 2016. 16. Copy of the demand letter dated 22nd January 2017. 17. Copy of reply to the demand letter dated 25th January 2017. 18. Copy of Register for land parcel BUKHAYO/BUGENGI/13013 measuring zero point three two Hectares (0.32ha). 19. Certificate of official search for land title BUKHAYO/BUGENGI/13013. 20. Copy of register for land parcel BUKHAYO/BUGENGI/13012 measuring zero point four zero hectares (0.40 ha). 21. Certificate of official search for land title BUKHAYO/BUGENGI/13012. 22. Copy of register for land parcel BUKHAYO/BUGENGI/13011 measuring zero point one three hectares (0.13 ha). 23. Certificate of search for land title BUKHAYO/BUGENGI/13011. 24. Mutation form of title number BUKHAYO/BUGENGI/8616 measuring zero point seven three (0.73 ha). 25. Certificate of official search for land title BUKHAYO/BUGENGI/8616. 26. In his said statement, the Plaintiff has stated that on 8.12.2008, the 1st and 2nd Defendants together with one Raphael Osinya visited his home seeking for land to purchase. The Plaintiff states that he wanted to sell a portion of his entitlement from land parcel NO BUKHAYO/BUGENGI/148 measuring 0.4Ha at an agreed purchase price of Kshs.110,000/=. The Plaintiff states that after sub-division of L.R. BUKHAYO/BUGENGI/148 between himself and his brothers, he got the sub-division BUKHAYO/BUGENGI/8618. It is the Plaintiff’s evidence that the 1st Defendant and himself attended the Land Control Board for an application to sub-divide the land and when it was time to seek the consent of the Land Control Board to transfer the land, the 1st Defendant did not attend but instead sent her mother, the 2nd Defendant to represent her. 27. The Plaintiff testified that during the transaction, he left with the 1st Defendant a photocopy of his National Identity card, a copy of her KRA PIN and two (2) passport size photographs. Later, the Plaintiff was to be surprised to learn that he had transferred his entire parcel of land to the 2nd Defendant; even as the Plaintiff did not know how to read and write. The Plaintiff at this point turned to his brother Ignatius Muyenga to find out if his brother had sold the remaining part of his land, his brother denied. 28. On 9.9.2012, the Plaintiff states, the 2nd Defendant visited her in the company of the assistant chief of Nangoma and requested to execute another agreement which the Plaintiff declined insisting on an original agreement that he signed earlier on. Later, the Plaintiff was to learn that the entire parcel of land was registered in the name of the 2nd Defendant. The Plaintiff later reported the matter to the chief who could not resolve the issue and eventually, the matter was reported to the District Lands Registrar, who reversed the registration of the suit land and had it restored in the names of the Plaintiff. 29. While under cross-examination, the Plaintiff confirmed that he had sold land to the 1st Defendant and she had paid the full purchase price. The Plaintiff confirmed that the 1st Defendant had planted trees, that he had not transferred the land to the 1st Defendant. He further confirmed that he had no objection in giving the 1st Defendant her land. The Plaintiff confirmed that he is the one who cut the trees that had been planted by the 1st Defendant. 30. On further cross-examination by counsel for the 2nd Defendant, the Plaintiff denied selling any land to the 2nd Defendant and that upon learning that the land had been registered in the name of the 2nd Defendant, the Plaintiff lodged a complaint with the area chief. 31. The Plaintiff’s witness, **MR IGNATIUS WABWIRE MUYAGA** relied on his witness statement dated 26.4.2023. 32. The witness in his statement has stated that on 2.12.2008, his brother, the Plaintiff herein sold to the 1st Defendant one Acre of land to be excised from land parcel NO. BUKHAYO/BUGENGI/148 which measured approximately 6 Acres. It was the evidence of PW2 that land parcel BUKHAYO/BUGENGI/148 was sub-divided into three portions BUKHAYO/BUGENGI/8618, 8619 and 8620. The Plaintiff got parcel NO BUKHAYO/BUGENGI/8618 out of which the 1st Defendant was to get one (1) Acre. 33. PW2 further states in his statement that the 1st Defendant ended up transferring the whole of BUKHAYO/BUGENGI/8618 into the name of the 2nd Defendant who is her mother. The PW2, upon learning of the transfer placed a restriction on the land and for which the Defendant sued him vide BUSIA ELC NO 98 of 2015. While the said case was ongoing, the PW2, the Plaintiff and the 1st and 2nd Defendants were summoned by the District Land Registrar who ultimately cancelled the registrations of the 2nd Defendant as the proprietor of land parcel BUKHAYO/BUGENGI/8618. After the title reverted to the Plaintiff’s name, the Plaintiff sub-divided the land into three separate numbers BUKHAYO/BUGENGI/13011, 13012 and 13013. 34. PW2 while under cross-examination confirmed that he knew the 1st Defendant who he also confirmed had purchased one (1) Acre from the Plaintiff. The witness stated that the trees on parcel NO BUKHAYO/BUGENGI/13012 were planted by the 2nd Defendant. PW2 was adamant that thought the 1st Defendant purchased the land, they would give him any land but they were willing to refund the initial purchase price. 35. Further cross-examined by counsel for the 2nd Defendant, PW2 stated that the agreement dated 20.7.2010 was between the Plaintiff and the 2nd Defendant but that he does not know if the 2nd Defendant paid any money. **THE DEFENCE CASE:** 1. The 1st Defendant adopted her statement dated 15.9.2017 as her evidence in chief and produced the document in her list of documents dated 15.9.2017 as 1st Defendants exhibits 1-8. 2. Copy of Land Sale Agreement dated 2/12/2008. 3. Copies of acknowledgment dated 5/2/2009, 11/4/2009, 4/5/2009. 4. Copy of letter dated 12th June, 2017. 5. Copy of letter dated 24th January, 2017. 6. Copy of Certificate of official search for L.R NO BUKHAYO/BUGENGI/13012. 7. Copy of letter dated 22nd February 2017. 8. Copy of letter dated 22nd January 2017. 9. Copy of letter dated 25th January 2017. 10. The 1st Defendant in her said statement states that she purchased 0.4Ha from the Plaintiff and which portion was to be excised from land parcel NO BUKHAYO/BUGENGI/13012. 11. The 1st Defendant further states that the Plaintiff, instead of transferring the land to the 1st Defendant, he transferred the entire parcel to the 2nd Defendant and also cut the trees that the 1st Defendant had planted on her portion of land. It is the 1st Defendant’s position that if the purchase price was to be refunded, then, it ought to be on the basis of the current market prices, otherwise the Plaintiff ought to be ordered to transfer the land to the 1st Defendant. 12. Upon cross-examination by counsel for the 2nd Defendant, the 1st Defendant confirmed that she was purchasing only one (1) Acre from the Plaintiff. She further told the Court that she was not aware if the Plaintiff had sold any land to the 2nd Defendant. 13. Further cross examined by the counsel for the Plaintiff, the 1st Defendant told the Court that she was accompanied by the 2nd Defendant when she went to purchase land from the Plaintiff and was further not aware of any sale agreement between the Plaintiff and the 2nd Defendant for the sale of land. 14. The 1st Defendant did confirm that at one time, they went to the office of the District Land Registrar with the Plaintiff and the 2nd Defendant after the Plaintiff had lodged a complaint that his land had been transferred to the 2nd Defendant. **THE 2ND DEFENDANT’S CASE:** 1. The 2nd Defendant adopted her witness statement dated 6.12.2023 as her evidence in chief. She also produced in evidence the documents in her list of documents and had them numbered as her exhibits 1-6. 2. Copy of Title deed Bukhayo/Bugengi/8618 in the name of Consolata Auma Andera. 3. Copy of stamp duty declaration Assessment and pay-in-slip dated 22.2.2011. 4. Copy of payment transaction to National Bank Branch for land transaction Bukhayo/Bugengi/8618 transfer Consolata Auma Andera. 5. Copy of Receipt by Land Registrar dated 7.6.2011. 6. Copy of Land Sale Agreement dated 20.7.2010. 7. Copy of search dated 3.4.2014 showing restriction on land parcel Bukhayo/Bugengi/8618. 8. In her statement, the 2nd Defendant (hereinafter the Defendant) states that she purchased land parcel NO BUKHAYO/BUGENGI/8618 from the Plaintiff and had the same registered in her name and a title deed issued. 9. The Defendant states that in further consideration, she purchased half an acre of land for the Plaintiff who then moved out of the land purchased by the Defendant only to come back later and rebuild on the very portion he had sold to the Defendant. 10. It is the Defendant’s evidence that she purchased the land in 2009, acquired the title in 2011 and that Plaintiff vacated the suit premises in the year 2015. 11. The Defendant states in her statement that at the time her title was cancelled there was already a caution registered against the title; the purported sub-division was done in the year 2009. Further in the year 2011 and 2014, the land was registered in the Defendant’s name. It is the Defendant’s view that the cancellation of the title was illegal and the registration ought to revert back to her. 12. Under cross-examination by counsel for the Plaintiff, the Defendant told the Court that she was not aware if the 1st Defendant who is her niece purchased any land from the Plaintiff. The Defendant stated that she only remembered that sometimes in 2008, she went to purchase land from the Plaintiff and when she was paying the purchase price, the 1st Defendant, DW2 and the 3rd Defendant were present. 13. The Defendant further told the Court that she was purchasing ½ acre and paid Kshs.60,000/=. In the same breath, the Defendant said that she was purchasing 1½ acres at the price of Kshs.170,000/= which she paid to the Plaintiff. That although the whole parcel was registered in her name, she was not supposed to get the entire parcel registered in her name. 14. Further, cross examined by the counsel for the 1st Defendant, the Defendant told the Court that she purchased one acre for Kshs.110,000 although she had no agreement for the Kshs.110,000. She further stated that she bought the Plaintiff ½ acre of land at BUGENGI but the Plaintiff sold the same. She is no longer using the land neither can she remember when she was stopped from using the land. **ANALYSIS AND DETERMINATION:** 1. On 26.5.2025, the parties were directed to file and exchange their written submissions within 21 days. As at the time of writing this judgment, only the 1st Defendant and the Plaintiff had filed their submissions. The issues that arise for determination in my view are the following: 2. **Whether there existed a valid land sale agreement between the Plaintiff and the 1st Defendant for the sale of 0.4Ha.** 3. **Whether there existed a valid agreement for the sale of one and half acres (1½ acres) between the Plaintiff and the 2nd Defendant.** 4. **Whether the parties are entitled to the respective prayers they have made in their respective claims.** **ISSUE A:** 1. The Plaintiff, the 1st Defendant and PW2 all agree that the 1st Defendant entered into an agreement with the Plaintiff for the sale of 0.4Ha of land to be excised from the Plaintiff’s land parcel NO BUKHAYO/BUGENGI/8618. It is further admitted by the said parties that the 1st Defendant paid the full purchase price of Kshs.110,000 for the land but which she has not occupied and which has further not been transferred to her. The Plaintiff further informed Court that the 1st Defendant had planted trees and confirmed that he is the one who cut the trees. None of the parties has challenged the agreement between the 1st Defendant and the Plaintiff and in my view the agreement is valid and enforceable. The Plaintiff has not given any reason why he should keep the purchase price and the land and since he is not willing to pay to the 1st Defendant the current market rates for the land, the only option open in the circumstances is for an order that the Plaintiff transfers 0.4Ha of land parcel NO BUKHAYO/BUGENGI/8618 to the 1st Defendant. 2. The Plaintiff has denied entering into any land sale agreement with the 2nd Defendant. PW2 who was called by the Plaintiff also denied any agreement between the Plaintiff and the 2nd Defendant. The Plaintiff only admits to have given out to the 1st Defendant a copy of his National Identity Card, a copy of his KRA PIN certificate and two passport size photographs. The Plaintiff was to be later surprised that the entire parcel of land NO BUKHAYO/BUGENGI/8618had gotten registered in the names of the 2nd Defendant, with whom he had the agreement. The Plaintiff denied making any payments to KRA. The stamp duty declaration assessment and pay-in-slip are not clear on who paid and the customer transaction voucher is not clear on who paid. The receipt from the department of lands dated 7.6.11 shows that the 2nd Defendant paid transfer fees in the sums of Kshs.2,000/= for the suit land. 3. I have seen the “Land Agreement” dated 20.7.2010 and it is true that the said agreement does not identify the parcel of land being transacted. Although the agreement as drafted is difficult to understand, what I glean from it is that the Plaintiff added half (½) in acre to the one acre already purchased by the 2nd Defendant making it 1½ Acres. From the contents of the agreement, the 2nd Defendant was to purchase another ½ Acre for the Plaintiff to cover for the extra ½ Acre “added” to the 2nd Defendant. 4. The agreement dated 20.7.2020 does not disclose the consideration for the one Acre allegedly sold to the 2nd Defendant neither was the agreement for the said sale produced in evidence. I agree with the submissions by the counsel for the Plaintiff that there was need to call the persons who allegedly witnessed the agreement and more so in view of the fact that the Plaintiff, the 1st Defendant and PW2 denied knowledge of the agreement between the Plaintiff and the 2nd Defendant. 5. Even assuming that the sale agreement produced by the 2nd Defendant is valid, the total acreage she allegedly purchased was 1½ Acres, the title she got registered in her name is for 0.75ha which translates to 1.853 Acres. During cross-examination, the 2nd Defendant told the Court that although the whole parcel was registered in her name, she was not entitled to the whole parcel. Why would the 2nd Defendant who only had a very sketchy agreement for the “addition of ½ Acre” of land proceed to process the registration of the entire parcel of land in her name and insist on protecting the said registration todate? The reason to this is obvious, the 2nd Defendant could only have been perpetrating an illegality and fraud upon the suit land. 6. The evidence of the 2nd Defendant does not support any definite figure on the purchase price she allegedly paid. The 2nd Defendant has swung between the figures of Kshs.60,000/=, 170,000/= and 110,000/=. There being no evidence of the payment of the said money and the Plaintiff having denied entering into any land sale agreement with the 2nd Defendant, it is my finding that there did not exist any valid land sale agreement between the Plaintiff and the 2nd Defendant. **ISSUE C:** 1. The Plaintiff in his amended plaint has sought an order that the 1st Defendant be compelled to take back the purchase price of Kshs.110,000/=. The 1st Defendant was purchasing 0.4ha out of land parcel NO BUKHAYO/BUGENGI/8618 which the Plaintiff has since sub-divided into that parcel Nos 13011, 13012, 13013. On her part the 1st Defendant has prayed that the land she purchased be transferred to her and according to the 1st Defendant, her parcels fall on land parcel NO BUKHAYO/BUGENGI/13012. The Plaintiff has not denied this. Further, the land the 1st Defendant purchased is identifiable since she had already planted trees thereon. Counsel for the Plaintiff has urged that specific performance should not be ordered in this case. The 1st Defendant has on her part stated that she would be willing to have the Plaintiff compensate her at market rates if he is unable to transfer land to her. The Plaintiff is adamant that he can’t and won’t pay to the 1st Defendant current market rates. 2. There are no compelling reasons in this case why an order of specific performance cannot issue. The Plaintiff knew very well that he was going to sub-divide the land when he sold a portion thereof to the 1st Defendant and he actually sub-divided parcel NO BUKHAYO/BUGENGI/8618 into the parcels indicated above. There is no suggestion by the Plaintiff that he has transferred the subdivisions to third parties and the only issue the Plaintiff and his brother PW2 raises against transferring the land to the 1st Defendant is that they are not on good terms. 3. In these circumstances, the Plaintiff is not entitled to the order for a refund of the purchase price to the 1st Defendant and I decline to grant the Plaintiff that prayer. To the contrary, the 1st Defendant is entitled to an order of specific performance and in this respect, I am guided by the finding of the Court in **NGABIA VS WACHIURI & 2 OTHERS (2026) KEEK 1499 KLR** where the Court delivered itself as follows: **“Specific performance is an equitable remedy where the Court directs a party to fulfill their contractual obligations. This is a frequently applied relief by the Courts when land is involved, as monetary compensation is rarely considered an adequate substitute for unique real property. In *Gigi vs. Njeri & 2 Others (Supra),* the Court held that where a purchaser has paid the full price and taken possession, the vendor holds the legal title only as a constructive trustee for the purchaser. The Plaintiff’s failure to complete the transfer despite receiving full payment is a breach of trust and contract.”** 1. The Plaintiff has also prayed for an order that the 1st Defendant pays him damages for breach and fraud. The 1st Defendant in her counterclaim has also counterclaimed for an order that the Plaintiff pays her damages for breach of contract and for the losses incurred when the Plaintiff cut down the 1st Defendants’ trees. I have not all through the proceedings seen any evidence to the effect that the 1st Defendant beached the terms of her agreement with the Plaintiff in any way. On the contrary, the Plaintiff failed to transfer the land to the 1st Defendant but not entirely so. Why do I say so? There is evidence that at the inception of the transaction between the Plaintiff and the 1st Defendant, that the Plaintiff co-operated by going to the Land Control Board to seek the consent to sub-divide the land. There is also uncontroverted evidence that the Plaintiffs gave to the 1st Defendant his KRA PIN, copy of Identity Card and 2 passport size photographs. It is not clear how these documents ended up with the 2nd Defendant who also ended up transferring the whole parcel to himself. I do not think the conduct of the Plaintiff can be termed as the conduct of a man who was bent on breaching the agreement between himself and the 1st Defendant. In my view, the entry of the 2nd Defendant into this transaction muddied the waters and made it impossible for the Plaintiff to perform freely his part of the bargain. In these circumstances, I am willing to find and I do find, that neither the 1st Defendant nor the Plaintiff can be found liable in breach of contract. 2. There is however the issue of the trees cut down by the Plaintiff. There is evidence and the Plaintiff admits, that the trees he cut down were planted by the 1st Defendant. No justifiable reason was given by the Plaintiff why he cut down the 1st defendant’s trees without the consent of the 1st Defendant and without compensating the 1st Defendant for the loss of her trees. 3. The letter dated 22.2.2017 from the Ecosystem Conservator Busia shows the total loss as a result of damage to trees in the 1st Defendants land is Kshs.114,045/=. This report was not challenged in evidence and on a balance of probabilities, I will adapt that figure as representative of the 1st Defendant’s loss. The Plaintiff having admitted to have cut/destroyed the 1st Defendant’s trees, it is my finding that he ought to compensate the 1st Defendant for the same. 4. The 2nd Defendant has counterclaimed for a declaration that the cancellation of title NO BUKHAYO/BUGENGI/8618 was illegal, unprocedural and fraudulent and should be reversed in her favour. She has also sought an order of injunction against the Plaintiff restraining him from interfering with land parcel NO BUKHAYO/BUGENGI/8618 once it reverts back to her. I think if the 2nd Defendant was minded of challenging the cancellation of her title, she ought to have joined the Land Registrar as a party to these proceedings. But this point is moot as I have already found that there did not exist a valid land sale agreement between the 2nd Defendant and the Plaintiff for the sale of land parcel NO BUKHAYO/BUGENGI/8618. Consequently, any subsequent transactions in the said land could not transfer any propriety rights to the 2nd Defendant. The orders sought by the 2nd Defendant are accordingly declined. **DISPOSITION:** 1. In view of the above findings, I make the following orders in disposing of this matter: 2. **That the Plaintiff shall transfer land parcel NO BUKHAYO/BUGENGI/13012 (a sub-division of Land parcel NO BUKHAYO/BUGENGI/8618) measuring 0.4ha to the 1st Defendant by executing all necessary documents and obtaining all necessary consent for the effective transfer of the said portions to the 1st Defendant.** 3. **That the Plaintiff failing to so transfer, the Deputy Registrar of this Court to execute all necessary documents for the said transfer.** 4. **That the Plaintiff will pay to the 1st Defendant Kshs.114,045 being the costs of the trees damaged/cut down by the Plaintiff.** 5. **That the Plaintiff’s suit is otherwise dismissed with costs to the 1st Defendant.** 6. **The 2nd Defendant’s counterclaim is dismissed with costs to the Plaintiff.** **C. MUGAMBI** **JUDGE** **8TH JULY 2026** **Judgment dated, signed and delivered in open Court on this 8th day of July 2026.** **Right of Appeal** **C. MUGAMBI** **JUDGE** **8TH JULY 2026**