https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4888

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC APPEAL CASE NO. E017 OF 2024** **ANN NJOKI HINGA::::::::::::::::::::::::::::::::::::::::::::::::: 1ST APPELLANT** **MARGARET NJERI HINGA::::::::::::::::::::::::::::::::::::::2ND APPELLANT** **VERSUS** **JANE WAMBUI KIMOTHO:::::::::::::::::::::::::::::::::::::::::RESPONDENT** **JUDGEMENT** The Appellants herein Ann Njoki Hinga and Margaret Njeri Hinga being aggrieved by the judgment given on 15th April 2024 in Kangundo ELC No. 85 of 2020 Jane Wambui Kimotho vs Ann Njoki Hinga and Margaret Njeri Hinga by Honourable Ole Keiwua K.D Chief Magistrate at the Chief Magistrate's Court at Kangundo appeals to this Honourable Court against the whole of the said judgment and sets down the following grounds; 1. That the learned trial magistrate erred both in law and in fact in finding that the Respondent was the rightful proprietor of the properties known as Mavoko Town Block 3/12933 and Mavoko Town Block 3/12945. 2. That the learned trial magistrate erred in law and in fact in holding that properties known as Lukenya Ranch Plot No.516/30 and Lukenya Ranch Plot No.516/31 and Mavoko Town Block 3/12933 and Mavoko Town Block 3/12945 referred to one and the same plots. 3. That the learned trial magistrate erred in law and in fact in holding that the Respondent had proved her case against the Appellants when the evidence tendered in support of the claim was wanting. 4. That the learned trial magistrate erred in law and in fact in deciding the case against the weight of the evidence on record and misdirected himself when he allowed the Respondent’s claim and dismissed the Appellants’ counterclaim. 5. That the learned trial magistrate erred in law and in fact in failing to uphold the sanctity of the Appellants’ titles to the suit properties. 6. That the learned trial magistrate failed to consider submissions by counsel for Appellants and failed to critically analyze the same and accord it due weight particularly on the issue of impeachment of title of a registered proprietor. 7. That the learned trial magistrate erred both in law and fact by failing to appreciate sufficiently or at all the judicial nature of the case that was before him and as such failed to properly take into account the legal principles regarding impeachment of a title of a registered proprietor. 8. That the learned trial magistrate erred in law and fact by failing to properly scrutinize and evaluate the evidence tendered by the appellants and took into consideration extraneous matters, which were not issues for determination thereby reaching a wrong conclusion that the appellants' titles should be cancelled by the Land Registrar Machakos. 9. That the decision of the learned trial magistrate was plainly wrong and biased against the Appellants. 10. That the judgement of the trial court was against the weight of evidence tendered and has occasioned a tremendous miscarriage of justice to the appellants. The Appellants seek for orders that: - 1. The appeal be allowed. 2. The finding of the lower court and more specifically the judgment of the lower court against the Appellants be set aside and substituted with an order dismissing the Respondent's case against the Appellants with costs and allowing the appellant's counterclaim. 3. The Appellants be granted costs of the appeal. 4. This Honourable Court be pleased to make such further and other appropriate orders as it may deem just in the circumstances of the case. This is the first appeal, the primary role of the court is to re-evaluate, re-assess and re-analyze the evidence on record and decide as to whether the conclusion reached by the learned magistrate was sound, and give reasons either way. This duty was emphasized by the Court of Appeal in Mbogo and another vs Shah (1968) EA 93 where it was held that; *“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matter on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. It is for the company to satisfy this court that the judge was wrong and this, in my view it has failed to do.”* The court has considered the pleadings, evidence presented before it, submissions made as well as the authorities relied upon by the parties. The issues for determination are: 1. *Who is the lawful proprietor of the* *land parcels Lukenya Ranch Plots 516/30 and 516/31 registered as Mavoko Town Block 3/12933 and 3/12945?* 2. *What orders should this court issue?* I have carefully perused the documents produced as exhibits and find that the 1st and 2nd Defendants/Appellants are the registered owners of the said suit land parcels Mavoko Town Block 3/12933 and 3/12945, the title deed having been issued on the 12th March 2014 and 28th September 2015 respectively. The Court of Appeal in Munyu Maina vs Hiram Gathiha Maina (2013) eKLR held that; *“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”* The Plaintiff PW1, testified that she is a member of Waswa Investment Co. Limited and in 1996 she bought the suit properties known as Lukenya Ranch Plot No. 516/30 and No, 516/30. The land was subdivided and she was issued with allotment letters dated 24th June 1996. She produced inter alia the sale agreement dated 15th November 1994 between Mwalimu Properties Limited and Water and Sewerage Welfare Association, her allotment letters of the said plots and payment receipts, letter from Waswa Investment Co. Ltd dated 12th July 2020 confirming the sale and payment.PW2 and PW3 officials of Waswa Welfare Association corroborated her evidence. DW1 and DW2, the Defendant/Appellants has led evidence that on or about the 2009 and 2010 DW1 bought her plot from Homeward Agencies Limited and DW2 through her sister from the parcel known as Mavoko Town Block 3/7355 and were issued with title deeds for the suit known as land parcels Mavoko Town Block 3/12933 and 3/12945 on the 12th March 2014 and 28th September 2015 respectively. That they fenced off their plots and put up semi-permanent structures. In April 2019 the Respondent came and trespassed claiming ownership. In other words, the Appellants claim to be a bonafide purchasers. DW3 and DW4 stated that they were neighbours with DW1 and DW2 and do not know the Plaintiff. The definition of bona fide purchaser for value without notice is; *“that buyer who has paid a stated price for the property without knowledge of existing or prior claims or prior equitable interest”.* Bona fide is a Latin word meaning good faith, without fraud, sincere, genuine. See (Black’s Law Dictionary 9th Edn Page 199) A bona fide purchaser is a buyer who buys without constructive or actual notice of any defects or infirmities against the seller’s title. See (page 1355) Black’s Law Dictionary 9th Edition. It is trite law that a person who relies on the defence of bona fide purchaser for value without notice has the burden to prove that he or she acted in good faith. The purchaser must have given due consideration and purchased the land without notice of the fraud. Such notice covers both actual and constructive notice of fraud. In the case of Jones vs Smith (1841) I Hare 43, the Chancery Court held; *“a purchaser has constructive notice of fraud if he had actual notice, that there was some encumbrance and a proper inquiry would have revealed what it was (but if) it abstained either deliberately, carelessly from making those inquiries which a prudent purchaser would have made...then the defence cannot be available to him or her”* In Yakobo M. N Senkungu & Others vs Cresencio Mukasa Civil Appeal No 17 of 2014. The court reaffirmed the law regarding the importance of due diligence in land transactions holding that; *“…Lands are not vegetables which are bought from unknown sellers. Lands are very valuable properties and buyers are expected to make thorough investigations not only on land but also of the owner before the purchase.”* Section 109 of the Evidence Act Cap 80 is clear that; *''The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.''* The well-known mantra *“he who asserts must prove.”* Was well pointed out by the Court of Appeal in Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi (2013) eKLR as follows; *“We have considered the rival submissions on this point and state that Section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the respondent. Section 107 of the Evidence Act provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.”* In James Muigai Thungu vs County Government of Trans-Nzoia & 2 others (2022) eKLR it was held that; *“It is now settled law that whosoever asserts the existence of a legal right or liability is vested with the burden to prove it except in so far as the law may expressly exempt him or her. Section 107 of the Evidence Act Chapter 80 Laws of Kenya succinctly states:* *Whosever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.* *Also, further, Section 108 of the Act states thus:* *The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.* *Again Section 109 of Act refers to the burden of proof of a particular fact. It states that:* *The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.* The Defendants/Appellants testified that they had purchased the suit properties and were issued with title deeds for the suit known as land parcels Mavoko Town Block 3/12933 and 3/12945 on the 12th March 2014 and 28th September 2015 respectively. It is clear evidence that the Plaintiff’s allotment letters were issue in 1996 way before the Appellants bought the plots. As in the Supreme Court decision in Dina Management Limited vs County Government of Mombasa (2023) eKLR, the Court went on to hold that, once the root of the title has been challenged, a party cannot derive benefit from the doctrine of bona fide purchaser. I find that the suit land parcels Lukenya Ranch Plots 516/30 and 5/1/31 registered as Mavoko Town Block 3/12933 and 3/12945 had already been sold to the Plaintiff in 1996 as per the evidence adduced and were not available for sale and /or registration to the Defendants in 2014 and 2015. I find that the Defendants were being fraudulent knowing very well the said property was not available for sale and registering the same in their names. I find that the defence of bonafide purchaser is not available to the Appellants. I agree with the trial court that the Plaintiff has proved case her case on a balance of probabilities. I find this appeal is not merited and I dismiss it with costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 28TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**