https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3829

Abdalla v Hassan & 16 others (Environment and Land Case 210 of 2021 & E183 of 2019 (Consolidated)) [2026] KEELC 3829 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELC 3829 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case 210 of 2021 & E183 of 2019 (Consolidated) LL Naikuni, J June 19, 2026 Between Hussein Tareq Abdalla Plaintiff and Dalal Juma Hassan 1st Defendant Hindu Kamaldin 2nd Defendant Abdusalaam Kamaldin 3rd Defendant Akasha Kamaldin 4th Defendant Esha Kamaldin 5th Defendant Mohamed Kamaldin 6th Defendant Kamal Kamaldin 7th Defendant Hassan Kamaldin 8th Defendant Mohamed Abdalla Hassan 9th Defendant Badwa Abdalla Hassan 10th Defendant Hassan Abdalla Hassan 11th Defendant Akasha Abdalla Hassan 12th Defendant Mohamed Abdalla Hassan 13th Defendant Badwa Abdalla Hassan 14th Defendant Hassan Abdalla Hassan 15th Defendant Nargis Akasha Abdalla 16th Defendant Nurdin Akasha Abdalla 17th Defendant Judgment I. Preliminaries 1.The Judgement of this Honourable Court pertains to the civil suit initiated by Hussein Tareq Abdalla, the Plaintiff herein, against Dalal Juma Hassan, Hindu Kamaldin, Abdusalaam Kamaldin, Akasha Kamaldin, Esha Kamaldin, Mohamed Kamaldin, Kamal Kamaldin, Hassan Kamaldin, Mohamed Abdalla Hassan, Badwa Abdalla Hassan, Hassan Abdalla Hassan, Akasha Abdalla Hassan, Mohamed Abdalla Hassan, Badwa Abdalla Hassan, Hassan Abdalla Hassan, Nargis Akasha Abdalla and Nurdin Akasha Abdalla, the Defendants herein, by way of an Amended Plaint dated 11th June 2024. The Plaintiff sought for declaratory reliefs, permanent injunctions, mandatory injunctions, specific performance, damages for breach of contract, and ancillary reliefs in respect of Land Reference Numbers CR. 6289 (Original No. 6037/22) and CR. 6290 (Original No. 6037/23) (Hereinafter referred to as “The Suit Properties”). 2.Upon filing and service of the Plaint, the Defendants entered appearance and filed various Statements of Defence as follows:-a.The 1st, 5th, 6th, 7th, 8th and 12th Defendants filed a joint defence through the Law firm of Messrs. Prime Lawyers LLP;b.while the 16th Defendant filed her defence through the Law firm of Messrs. Kiarie Kariuki & Company Advocates.c.The 17th Defendant entered appearance through the Law firm of Messrs. Balala & Abed Advocates. 3.The Defences variously denied the Plaintiff’s claim, assert prior sale agreements in favour of the 16th Defendant and raised preliminary objections on points of law including capacity, misrepresentation, and alleged nullity of the Plaintiff’s contracts. II. The description of the Parties 4.The Plaintiff, Hussein Tareq Abdalla, was described in the Plaint as a male adult of sound mind, resident of Mombasa, and a businessman. He was the purchaser of the undivided shares in the suit properties, having entered into agreements for sale with the 1st –15th Defendants. 5.The 1st –17th Defendants were described as male and female adults of sound mind, residing and working for gain within the Republic of Kenya. At all material times, they were beneficiaries of the estates of Atiyati Akasha Abdalla and Kamaldin Akasha Abdalla, which comprised the suit properties. III. Court directions before the hearing 6.On 16th September, 2024, after confirming that the Plaintiff and the Defendants had complied with the requirements of Order 11 of the Civil Procedure Rules, 2010, the Honourable Court directed the parties to file and serve their amended pleadings. 7.The Court further fixed the matter for hearing on 25th September, 2024. On 25th September, 2024, the matter proceeded to hearing.The Plaintiff thereafter closed his case. 8.The Defendants, led by the 16th Defendant, Nargis Akasha Abdalla, opened their case on the same day.Upon conclusion of DW - 1’s testimony, the Defendants closed their case. IV. The Plaintiffs’ case in ELC Case No. 210 of 2021 9.From the pleadings before Court, at all material times relevant to this suit, the 1st – 17th Defendants were the respective beneficiaries of the Estates Atiyati Akasha Abdalla and Kamaldin Akasha Abdalla which estates comprised of Land Reference Numbers CR. 6289 (Original No. 6037/22) and CR. 6290 (Original No. 6037/23). Pursuant to Agreements for Sale executed variously between the Plaintiff and the 1st – 15th and 17th Defendants sometime in October, 2018, the Plaintiff purchased from the 1st -15th and 17th Defendants all the said Defendants’ undivided shares in the Suit Properties for a cumulative sum of Kenya Shillings Eight Million Two Hundred and Eighty Six Thousand (Kshs 8,286,000/=). 10.It was a term of the said Agreements for Sale that the Suit Properties were sold in vacant possession which the Plaintiff would be granted upon payment of the purchase price in full. 11.It was further a term of the said Agreements for Sale that upon payment of the purchase price in full, the 1st -15th and 17th Defendants would deliver to the Plaintiff’s Advocates the original Certificates of Title, transfer forms duly executed by the 1st -15th and 17th Defendants and all other completion documents enumerated under the said agreements necessary to effect the transfer of the Suit Properties to the Plaintiff. 12.However, in breach of the said Agreements for Sale, the 1st -15th and 17th Defendants failed, neglected and/omitted to grant the Plaintiff vacant possession and to deliver up to the Plaintiff’s advocates the executed transfer forms and other completion to effect transfer to the Plaintiff. 13.The Plaintiff averred that following his demand to the 1st -15th and 17th Defendants to transfer their shares in the Suit Properties to him, the said Defendants variously represented to the Plaintiff that the said transfer had been delayed as the 16th Defendant had held on to the Certificates of Titles in respect of the Suit Properties. 14.The Plaintiff further stated that the 1st - 15th and 17th Defendants subsequently filed a suit against the 16th Defendant in Mombasa ELC Case No. 183 of 2019 seeking to compel the 16th Defendant to release the Certificates of Titles in respect of the Suit Properties to enable them transfer their respective shares in the Suit Properties to the Plaintiff.However, while the said suit – “Mombasa ELC Case No. 183 of 2019 - was pending hearing and determination, the 1st - 15th Defendants filed a notice of withdrawal of their suit against the 16th Defendant effectively terminating their claims against the 16th Defendant without any plan to remedy the Plaintiff. Similarly, the 17th Defendant withdrew the residual claim against the 16th Defendant vide a notice dated 11th April, 2024. 15.The Plaintiff states that the 1st – 15th and 17th Defendants’ withdrawal of their suit against the 16th Defendant was orchestrated and contrived to deprive him of his interest in the Suit Properties which he acquired lawfully and for value. The Plaintiff further averred that the 1st – 15th and 17th Defendants’ failure to transfer their respective shares of the Suit Properties to him despite having received the purchase price in full amounts to a breach of agreement for sale of the said properties. 16.The deliberate acts and omissions of the Defendants jointly and severally, particularly their failure to yield vacant possession of the Suit Properties to the Plaintiff and to transfer their respective shares in the Suit Properties to the Plaintiff are illegal, fraudulent and amount to breach of contract and trust, all of which ought not be countenanced in law. 17.The Plaintiff relied on the following particulars of irregularities, fraud and breach of trust on the part of the 1st – 15th and 17th Defendants:-a.Deliberately refusing to transfer the titles of the Suit Properties to the Plaintiff despite their having received the purchase price in full.b.Conniving to withdraw the suit against the 16th Defendant in Mombasa E.L.C. Case No. 183 of 2019 without any justification and thus exposing the Plaintiff to loss.c.Disposing of and/or attempting to dispose of the Suit Properties when they knew or ought to have known that their interest was extinguished when they sold the same to the Plaintiff.d.Unjustifiably depriving the Plaintiff of the vacant, quiet and peaceful possession of the shares of the shares of the Suit Properties he legally bought from the 1st - 15th and 17th Defendants.e.Preventing the Plaintiff from accessing the Suit Properties and carrying out any activity or deriving other benefits arising therefrom 18.The 1st - 15th and 17th Defendants were estopped from reneging on their representations in E.L.C. Case No. 183 of 2019 that they had sold their respective shares in the Suit Properties to the Plaintiff and that they had terminated the sale of the said shares of the Suit Properties to the 16th Defendant due to the 16th Defendant’s default to pay the full purchase price. The Plaintiff stated that as a result of the 1st - 15th and 17th Defendant’s failure, refusal and/or omission to transfer their respective shares to him, the Plaintiff has lost and continues to lose the benefits that would have otherwise accrued to him. 19.The Plaintiff relied on the following particulars of loss and damages that he incurred:-a.Loss of user.b.Loss of business opportunity 20.The Plaintiff relied on the doctrines of proprietary estoppel and constructive trust in urging his case against the Defendants. The Plaintiff avers that the 1st – 15th and 17th Defendants deliberately failed, refused and/or neglected to cause the transfer of their respective shares in the Suit Properties rendering this suit absolutely necessary. The cause of action arose in Mombasa within the jurisdiction of this Honourable Court. 21.Despite the demand and notice of intention to sue having been issued, the Defendants have refused, neglected and/or omitted to transfer their respective shares of Suit Properties to the Plaintiff. The Plaintiff averred that there was no other suit pending and there had been no previous proceedings in any Court between themselves and the Defendants over this matter. 22.The Plaintiffs prayed for Judgment entered against the Defendants and the Interested Party jointly and severally for:-a.A declaration that the 1st – 15th and 17th Defendants are in breach of their respective Agreements for Sale of their respective shares in the parcels of land comprising in Land Reference Numbers CR. 6289 (Original No. 6037/22) and CR. 6290 (Original No. 6037/23) to the Plaintiff.b.An order of permanent injunction restraining the Defendants from selling, disposing of, transferring and/or in any manner dealing with the shares purchased by the Plaintiff in the properties comprising Land Reference Number CR. 6289 (Original No. 6037/22) and CR. 6290 (Original No. 6037/23).c.An order of mandatory injunction compelling the 16th Defendant to surrender to Plaintiff the original Certificates of Title in respect of the parcels of land comprising Land Reference Number CR. 6289 (Original No. 6037/22) and CR. 6290 (Original No. 6037/23) for his transfer of 1st – 15th and 17th Defendants’ respective shares to himself.d.An order of specific performance directed at 1st – 15th and 17th Defendants to execute the transfer of their respective shares in the Land Reference Number CR. 6289 (Original No. 6037/22) and CR. 6290 (Original No. 6037/23) in favour of the Plaintiff;e.In default of the 1st – 15th and 17th Defendants’ compliance with order (d) above, the Court be pleased to issue an order of partition of L.R. Numbers CR. 6289 (Original No. 6037/22) and CR. 6290 (Original No. 6037/23) and the Registrar of the Environment and Land Court, Mombasa Law Courts, to execute the transfer in favour of the Plaintiff;f.General damages for breach of contract;g.Any other relief that the Honourable Court may deem fit to grant in the circumstances. 23.The Plaintiff testified as PW - 1 on 25th September, 2024 at 11.00 am who testified as follows: - A. Examination in Chief of PW - 1 by Mr. Lorot Advocate. 24.PW - 1 was sworn and testified in Swahili language. He was called HUSSEIN TAREQ ABDALLA, a citizen of Kenya holding a national identity card with all the particulars as indicated and shown to Court during the hearing of the case. He testified that he resided in Nairobi and was a businessman. He stated that he had recorded an Amended Statement on 11th June, 2024, which he adopted in support of his case. He further testified that he had filed a bundle of documents dated 19th October, 2021, comprising four documents which were produced as Plaintiff’s Exhibits 1 to 4. In addition, he filed a Supplementary Bundle of Documents dated 11th June, 2024, which were produced as Plaintiff’s Exhibits 5 and 6 respectively. 25.PW - 1 testified that he was the owner of the two ( 2 ) suit properties, CR 6289 and CR 6290, having purchased them in 2018 from Mr. Noordin Akasha and the children of Kamaldin Akasha and Atiyat Akasha. He stated that he prepared sale agreements and paid the purchase price in cash. He confirmed that he paid a total sum of Kenya Shillings Nine Million Ninety Three Thousand (Kshs. 19,093,000/=) for both parcels, against an agreed purchase price of a sum of Nineteen Million Five Thousand (Kshs. 19,500,000/=). 26.PW - 1, Hussein Tareq Abdalla, testified that he had paid a sum of a total sum of Kenya Shillings Nine Million Ninety Three Thousand (Kshs. 19,093,000/=) in cash to the Defendants. He stated that there was an acknowledgment of the payments as follows:a.Mr. Balal Juma Hassan – Kshs. 750,000/=.b.M/s. Dim Kamardun – Kshs. 404,000/=c.Mr. Abdul Saloni – Kshs. 807,000/=d.Mr. Akasha Amardun – Kshs. 807,000/=e.M/s. Eisha Kamardun – Kshs. 404,000/=f.Mr. Mohamed Kamardun – Kshs. 807,000/=g.Mr. Kamal Kardini – Kshs. 807,000/=h.Hassan Kamardun – Kshs. 807,000/=i.Mr. Akasha Abdalla Hassan – Kshs. 1,000,000/=j.Mr. Abdalla Hassan – Kshs. 1,000,000/=k.Badwa Abdalla Hassan – Kshs. 500,000/=l.Mr. Hassan Abdalla Hassan – Kshs. 1,000,000/=m.Mr. Noordin Akasha – Kshs. 10,000,000/=The total amounted to Kshs. 19,093,000/=. 27.PW - 1 testified that this was the agreed consideration and that the recipients were all brothers and children of the sisters and brothers of the Akasha family, hence all related. He stated that he was to be given the title deed after paying the balance of a total sum of Kenya Shillings Four Hundred and Seven Thousand (Kshs. 407,000/=), but he was never issued with the title deed and therefore did not pay the balance.He further testified that Civil Case No. 183 of 2019 had been filed by some of the Defendants for failure to release the title, but he was never involved in that suit. He stated that the case was later withdrawn. PW - 1 urged the Court to grant him the orders as prayed in the Plaint. B. Cross examination of PW - 1 by M/s. Ndegwa Advocate. 28.PW - 1 testified that he had conducted official searches for the two ( 2 ) parcels of land, and they formed part of the documents he had filed in Court. He stated that from the searches, two of the registered owners were deceased. He confirmed that he was aware there were legal administrators who he had dealt with in the sale transaction of the land.He testified that from the sale agreements, he had bought the land from the legal administrators. He referred to page 57 of the Plaintiff’s bundle, being a letter dated 18th October 2018 by the Defendants’ Advocate cancelling the transaction, specifically the agreement with Kamaldin Rando Akasha. He stated that he had not known that the land had been sold to someone else. 29.PW - 1 confirmed that he had paid a total sum of Kenya Shillings Nine Million Ninety Three Thousand (Kshs. 19,093,000/=) but had not attached any valuation report. He explained that he had been paying the vendors in cash and there would be acknowledgments, hence the vendors themselves acted as witnesses. He testified that he would carry the cash physically, and that some of the Defendants were his relatives with whom he communicated directly.He further stated that the Defendants had filed Civil Case No. 183 of 2019, and that the beneficiaries of the deceased had legal administrators who signed the sale agreements on their behalf. B. Re – examination of PW - 1 by Mr. Lorot Advocate. 30.PW - 1 reiterated that on the valuation. They sat amongst themselves. They may not know whether the valuation was done. C. Closing remarks by Mr. Lorot Advocate:- 31.The Learned Counsel concluded that Mr. Hussein was a bona fide purchaser for value and had met his obligations. He was asking for the Defendants to meet their part of the bargain. He was ready to pay the balance of a total sum of Kenya Shillings Four Hundred and Seven Thousand (Kshs. 407,000/-) though there were 6 years. He was unfortunate to be embroiled in the family dispute. 32.The Plaintiffs marked their case closed on 25th September, 2024 through their legal counsel Mr. Lorot Advocate. The Defendants’ case 33.The 1st, 5th, 6th, 7th, 8th and 12th Defendants responded to the Plaintiff’s claim through a Statement of Defence and Counter - Claim where it averred that:a.The 1st, 5th, 6th, 7th, 8th and 12th Defendants admitted the descriptive parts of Paragraphs 1 and 2 of the Plaint only.b.The dispute in the case involved the sale of undivided shares in two properties, namely CR. 6289 and CR. 6290.c.The Defendants averred that the shares in issue had already been sold to the 16th Defendant and that there was nothing left for the Plaintiff to buy.d.They contended that the Plaintiff had breached the law in attempting to buy the shares in issue and could not therefore benefit from the same breach of the law.e.They argued that the case as filed was a nullity in law, a non‑starter, and void ab initio.f.The Defendants further stated that the Plaintiff’s relief lay elsewhere other than in what they described as a hopeless cause of action.g.They indicated that they would, at the opportune time, raise a preliminary objection on points of law as to the validity of the suit in its entirety, notice of which was duly given.h.In the premises, they asserted that the Plaintiff was not entitled to any of the reliefs sought and that the suit was a candidate for dismissal with costs.i.Save as specifically admitted, the 1st, 5th, 6th, 7th, 8th and 12th Defendants denied each and every allegation contained in the Plaint as though the same were set out herein and traversed seriatim. 34.The 1st, 5th, 6th, 7th, 8th and 12th Defendants prayed that the Plaintiff’s suit be dismissed with costs. 35.Further the 1st, 5th, 6th and 7th Defendants filed a Statement of Defence where they averred:-a.Save and except what was expressly admitted therein, the 1st, 5th, 6th and 7th Defendants denied each and every allegation of fact contained in the Plaint as if the same were set forth seriatim and specifically traversed.b.The 1st, 5th, 6th and 7th Defendants admitted the descriptive contents of Paragraphs 1 and 2 of the Plaint.c.Paragraph 4 of the Plaint was admitted.d.The 1st, 5th, 6th and 7th Defendants admitted the contents of Paragraph 4 of the Plaint and further averred that at the time of the said agreement, both the 7th and 8th Defendants were underage and hence lacked the capacity to enter into the transaction.e.The 1st, 5th, 6th and 7th Defendants admitted the contents of paragraph 5 of the Plaint.f.Paragraph 6 of the Plaint was admitted. However, the Defendants averred that they were not and had not at any time been in possession of the title deed to the suit properties.g.The 1st, 5th, 6th and 7th Defendants denied the contents of paragraph 7 of the Plaint and put the Plaintiff to strict proof thereof. They further averred that, as the Plaintiff had earlier mentioned in paragraph 5 of the Plaint, it was a term of the agreement that vacant possession of the suit property would be granted upon full payment of the purchase price. However, even though the Plaintiff alleged to have paid the full purchase price, he had only made deposit payments and had not paid the suit sum in full as alleged or at all.h.As a consequence of making only deposit payments, the Plaintiff was not entitled to be given vacant possession of the suit property.i.The contents of Paragraphs 8 and 9 of the Plaint were admitted.j.Paragraph 10 of the Plaint was admitted to the extent that the said suit was withdrawn. With regard to the Plaintiff’s allegation that the Defendants did not have any plan to remedy him, the same was denied and the Plaintiff was put to strict proof thereof.k.Paragraph 11 of the Plaint was denied in toto and the Plaintiff was put to strict proof thereof.l.In reply to Paragraph 12 of the Plaint, the 1st, 5th, 6th and 7th Defendants reiterated the contents of Paragraphs 4, 6, 7 and 8 hereinabove and further averred that the Plaintiff was in partial performance of the contract as he had not paid the full purchase price as alleged or at all.m.Without prejudice to Paragraphs 4, 6, 7 and 8 above, the contents of paragraph 13 of the Plaint were denied in toto and the Plaintiff was put to strict proof thereof.n.In reply to Paragraphs 14 and 16 of the Plaint, the 1st, 5th, 6th and 7th Defendants reiterated the contents of Paragraphs 4, 6, 7 and 8 hereinabove.o.The contents of Paragraph 15 of the Plaint were denied.p.The contents of Paragraph 17 of the Plaint were denied.q.The cause of action was admitted to have arisen in Mombasa.r.The contents of Paragraph 19 of the Plaint were denied and the Plaintiff was put to strict proof thereof.s.Paragraph 20 of the Plaint was admitted 36.The 1st, 5th, 6th and 7th Defendants prayed that the Plaintiff’s suit be dismissed with costs. 37.The Learned Counsel had the following opening remarks on behalf of the Defendants:- A. Opening Remarks by M/s. Ndegwa Advocate. 38.On behalf of the Defendants, learned counsel submitted that it was a case where her client, Nargis Akasha Abdalla, the 16th Defendant, had been duly authorized by all the Defendants apart from the 2nd and 4th Defendants. Counsel stated that there was an Authority to Act, noting that three of the original owners were deceased, namely Hariman Akasha Abdalla, Kamaldin Akasha Abdalla, and Atiyat Akasha Abdalla. The family had applied for probate, and letters of administration had been issued by the Court, while the Kadhis’ Court had also granted grants of representation. Hence, only the legal administrators were authorized to deal with the suit properties. 39.The Counsel further submitted that the Plaintiff had entered into sale agreements for the suit properties, but by a letter dated 18th October 2018, the Plaintiff’s advocate, Messrs. Mwangi Njenga & Company, had cancelled the agreement. The Counsel emphasized that the agreement had no completion date, and later on, the Plaintiff had approached beneficiaries and entered into fresh sale agreements despite the ongoing family wrangles. Counsel argued that the Defendants had been ready to compensate the Plaintiff, but the Plaintiff, being a family member, was fully aware of the disputes within the family. 40.The Defendants called DW - 1 on 25th September, 2024 who testified as follows: A. Examination in Chief of DW - 1 by M/s. Ndegwa Advocate. 41.DW - 1 was sworn and he testified in Swahili language. She was called NARGIS AKASHA ABDALLA, a citizen of Kenya holding a national card bearing all the details as shown to court. She was in court because of her house. She stated that she had never sold the land. She explained that she had bought the shares of Karima Akasha Abdalla, Kamaldin Akasha Abdalla, Noordin Akasha Abdalla, Atiyat Akasha Abdalla, and Hassan Akasha Abdalla. When she bought the house, she entered into a sale agreement and had receipts to confirm the transaction. She testified that she had effected the transfer and paid a total of a sum of Twenty Two Million Five Hundred Thousand (Kshs. 22,500,000/=). 42.DW - 1 stated that she knew the Plaintiff, Hussein Tareq Abdalla, and confirmed that he was her cousin. She further testified that she was the legal administrator of the share of Kamaldin Akasha Abdalla. She explained that she had bought the land and house close to six years earlier. She stated that the vendors had written to her confirming the transfer and agreement. Her lawyer had also written a letter indicating that the land had already been sold, hence cancelling the agreement purportedly entered into by the Plaintiff. 43.DW - 1 confirmed that she had filed her witness statement dated 18th September, 2024 together with a list of fourteen documents, which were produced as Defendants’ Exhibits 1 to 14. B. Cross examination of DW - 1 by Mr. Lorot Advocate. 44.DW - 1 testified that she had entered into a sale agreement for the purchase of the land dated 5th September, 2018. She stated that the agreement concerned her father’s plots, namely Plot No. 6289 and Plot No. 6290, situated at Shanzu.She confirmed that there had been a civil case, but the shares of the suit properties were never distributed; rather, they were apportioned to the beneficiaries. She testified that she had obtained the authority to buy the plots. 45.DW - 1 referred to the Payment and Discharge Voucher dated 26th September, 2018 executed by Mr. Abdulsolani Abu Soda Kamaldin, which she described as a consent for payment. She stated that there had been witnesses present and receipts issued to confirm the transaction.She further referred to the letter of cancellation of the sale agreement, and testified that the land could not be cancelled as she had already purchased it. She emphasized that the purported cancellation was invalid, noting that the shares of Kamaldin could not have been sold to the Plaintiff since she had never signed any such agreement. DW - 1 concluded by stating that the Plaintiff had never bought the land from her. 46.The Defendants marked their case closed on 25th September, 2024 through their legal counsel Mr. Onduso Advocate. Submissions 47.On 25th September, 2024, after the Plaintiff and the Defendants marked the close of their respective cases, the Honourable Court directed the Plaintiff to file and serve written submissions within twenty‑one (21) days, and the Defendants to file and serve their submissions within fourteen (14) days thereafter. 48.The matter was fixed for mention on 4th November, 2024 to confirm compliance with the filing directions. The Court further indicated that judgment would be delivered on notice, taking into account the transfer of the Court. Pursuant to those directions, the Plaintiff filed his written submissions dated 3rd April, 2025 and the Defendants, through their respective Counsel, filed submissions dated 9th May, 2025. 49.The Honourable Court, having received and considered the submissions of both parties, reserved the matter for Judgment on notice, with delivery scheduled for 8th May, 2026. A. The Written submissions by the Plaintiff 50.The Plaintiff through the Law firm of Messrs. H & K Advocates, filed his written submissions dated 3rd April, 2025. Mr. Lorot Advocate commenced the submissions by stating that those were the Plaintiff's submissions with respect suit commenced vide Plaint dated 19th October, 2021 where the Plaintiff sought for the above orders against the Defendants jointly and severally. 51.The Learned Counsel submitted that essentially, the Plaintiff sought to compel the Defendants to perform their respective agreements for sale of their units in LR No. 6289 (Original Number 6037/22) and CR 6290 (Original No. 6037/23) which the Defendants have failed to, refused or neglected to transfer since October, 2018. The 1st – 15th Defendants were the beneficiaries of the Estates of Atiyati Akasha Abdalla and Kamaldin Akasha Abdalla comprising of the suit properties. It was common ground that they entered a Sale Agreement with the Plaintiff for the sale of their undivided shares in the suit properties for a cumulative consideration of a sum of Kenya Shillings Eight Million Two Eighty Six Thousand (Kshs. 8,286,000/=). It was a material term of the agreement that upon payment of the consideration, the Plaintiff would be granted vacant possession of the property. 52.To give effect to the agreement, and facilitate the transfer, the Defendants were to deliver to the Plaintiff's Advocates the Original Certificates of Title, transfer forms duly executed by the Defendants and other completion documents under the agreement. They have failed, neglected and/omitted illegally and fraudulently to either grant the Plaintiff vacant possession or deliver the executed transfer and completion documents as agreed.Fundamentally, the agreements have never been terminated or the parties discharged. The purchase price, whose receipt by the Defendants is not disputed, has never been refunded. 53.The Defendants filed their Statements of Defence in opposition to the Plaint. They contended that the agreements signed on their behalf by the various administratorsand the 16th Defendant did not specify the completion date and neither was there a termination clause. 54.According to the Learned Counsel, it was the Defendants’ defence that some of them were duped into executing the agreements for sale. No evidence to this support this blanket allegation was tendered. They take the position that the agreements for sale entered into with the beneficiaries were null and void administrators had been appointed and were the only ones entitled to deal with the share of the deceased co-tenants of 6289/I/MN (Title Number 20639) and Plot Number 6290/I/MN (Title Number 22404). 55.The Learned Counsel relied on the following issues for determination:-a.Whether the Plaintiff has made a case for grant of a permanent injunction restraining the Defendants from selling, disposing of, transferring and or in any manner dealing with the Properties comprising LRNo.CR 6289 (Original No. 6037/22) and CR.6290 (Original No.6037/23)?b.Whether the Plaintiff has established a constructive trust in his favour, and whether in the circumstances, the doctrine of proprietary estoppel would be applicable?c.Whether the Plaintiff has satisfied the test for grant of a mandatory injunction compelling the 16th Defendant to surrender to the Plaintiff the Original Certificates of Title in respect of the suit properties?d.Whether the Plaintiff merits an order of specific performance directed at the 1st - 15th Defendants to execute the transfer of their respective shares in the suit properties?e.Who bears the costs of the suit. 56.On whether the Plaintiff had made a case for grant of a permanent injunction restraining the Defendants from selling, disposing of, transferring and/or in any manner dealing with the properties comprising LR No. CR 6289(Original No.6037/22)And CR.6290(Original No.6037/23), the Learned Counsel submitted that it is trite that a permanent injunction was granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrained the commission of an act by the Defendant in order for the rights of the Plaintiff to be protected. (See the decision of the Court in “Kenya Power & Lighting Co. Limited – Versus - Sheriff Molana Habib [2018]KEHC 5027 (KLR)”. 57.Further, on permanent injunction, it was held in the case of “Mburu – Versus - Kibara & 2 others (Environment & Land Case 237 of 2021) [2022] KEELC 3226(KLR) (28 July 2022)” that: -“... permanent injunction fully determines the right of the Parties before the Court and is normally meant to perpetually restrain the commission of an act by the Defendant in order for the rights of the Plaintiff to be protected. This Court has the powers to grant the Permanent Injunction under sections 1A, 3 & 3 A of the Civil Procedure Code if it feels the right of a Party has been fringed, violated and/or threatened as the Court cannot just seat, wait and watch under these given circumstances...” 58.According to the Learned Counsel, it was common ground that the Plaintiff entered into Agreements for sale between the himself and the 1st - 15th Defendants sometime in October, 2018 where they agreed to sell all their undivided shares in the suit properties for a cumulative consideration of a sum of Kenya Shillings Eight Million Two Eighty Six Thousand (Kshs.8,286,0000/=). The said Agreements for sale were valid, duly executed, and in compliance with the Law of Contract Act (Cap. 23) and the Land Act, No. 3 of 2012. Theconsideration was duly paid, and the Plaintiff had provided evidence of full payment. Subsequent to the fulfilment of the Plaintiff's contractual obligations, the 1st to 15th Defendants had illegally, fraudulently and in breach of the terms of the Sale Agreements failed to either deliver the vacant possession of the suit properties to the Plaintiff. They had reneged on their undertaking to deliver the original Certificates of Title and duly executed transfer forms to the Plaintiff's Advocates. 59.The Learned Counsel submitted on the elements of a contract as set out in Halsbury’s Laws of England 4th (ed.) Re-Issue Vol. 9(1) paragraph 603 at page 340 as follows:“i.there must be two or more separate and definite parties to the contract;ii.(2) those parties must be in agreement, that is, there must be consensus on specific matters (often referred to in the older authorities as ‘consensus ad idem’);iii.those parties must intend to create legal relations in the sense that the promises of each side are to be enforceable simply because they are contractual promises;iv.the promises of each party must be supported by consideration or by some other factor which the law considers sufficient. Generally speaking, the law does not enforce a bare promise.” 60.There was absolutely no doubt that the Sale Agreements executed between the Plaintiff and the 1st -15th Defendants gave rise a valid and enforceable contract. The contention by the Respondents that they were lured to enter into the agreements is an afterthought and attempt to evade performing their contractual obligations. It should not see the light of the day. In any event, they bear the burden of proving that they did not freely execute the Contract. They have failed to discharge that burden. 61.In the case of:- “Lole – Versus - Butcher (1949) All E.R 1107”, Lord Denning LJ held that:-“........ Once a contract has been made, that is to say, once parties, whatever their innermost state of mind have to all outward appearances agreed with sufficiently certain in the same terms on the same subject matter, then the contract is good unless and until it is set aside for breach of some conditions or implied in it or for fraud or on some equitable grounds..” 62.It was their submission that the Plaintiff had established that the 1st to 15th Defendants had jointly and severally violated the contractual obligations arising from the Agreements of sale entered into with the Plaintiff by repudiating the terms. They were therefore in breach of the agreements executed between the Plaintiffs and themselves. 63.On whether the Plaintiff had established a constructive trust in his favour, and whether in the circumstances, the doctrine of proprietary estoppel would be applicable. The Learned Counsel averred that without prejudice to the position above, the Agreements of Sale would be enforceable under the doctrines of proprietary estoppel and constructive trusts which were created in favour of the Plaintiff. The Plaintiff invoked the doctrine of proprietary estoppel, arguing that the Defendants, by entering into agreements, accepting full payment, and allowing him to expect ownership, created a reasonable reliance by the Plaintiff. 64.According to the Learned Counsel, the Plaintiff had altered his position to his detriment by making payments and acting in reliance on the Defendants’ assurances. Denying him the property would be unconscionable and unjust. In Halsbury's Laws of England, 4th Edition, Volume 16(2) paragraph 1089, the authors have stated as follows on the elements of proprietary estoppel:“Proprietary estoppel usually arises when the representation consists of a promise of an interest in land although its principles have been used in the context of commercial relationships not involving such promise. The traditional formulation was based on the principle that, where the owner of land(A) knowingly allowed his rights to be infringed by another(B) who expended money on the land in the mistaken belief that it belonged to B, A could not afterwards be allowed to assert his own title to the land.“...The court will inquire:(a)whether an equity in favour of B arises out of the conduct and relationship of the parties;(b)what is the extent of the equity, if one is established; and(c)what is the relief appropriate to satisfy the equity”(See the decision of the Court in “PKA – Versus - HS A & another[2017]KEELC 999 (KLR)”) 65.According to the Learned Counsel, the discourse on proprietary estoppel had long bothered both academics and jurists alike. An academic authority (Simon Gardner, An Introduction to Land Law (2007) p.101 comments:“There is no definition of proprietary estoppel that is both comprehensive and uncontroversial (and many attempts at one have been neither).”Nevertheless, most scholars agree that the doctrine is based on three main elements, although they express them in different terms; arepresentation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in1 consequence of his (reasonable) reliance. (see Megarry & Wade, Law of Property, 7th edition (2008) para 16-001;Gray & Gray, Elements of Land Law, 5th edition (2009) para 9.2.8, Snell's Equity, 31st edition (2005) paras 10-16 to 10-19; Gardner, An Introduction to Land Law (2007) para 7.1.1).(See “Kivindu & another – Versus - Musau & 4 others (Civil Appeal 233 of 2020) [2023] KECA 1015 (KLR) (28 July 2023) (Judgment)”. 66.The doctrine of proprietary estoppel overlapped with that of Constructive Trust, and both were concerned with equity's intervention to provide relief against unconscionable conduct. (See the decision of the Court in the case of:- “Willy Kimutai Kitilit – Versus - Michael Kibet[2018] KECA 573 (KLR)”).A Constructive Trust was defined by the Court of Appeal in the case of “Macharia Mwangi Maina & 87 Others – Versus - Davidson Mwangi Kagiri [2014] eKLR” . 67.They submitted that a constructive trust would arise in connection with the legal title to property whenever one party had so conducted himself that it would be inequitable to allow him to deny to the other party a beneficial interest in the property acquired. This would be so where:a.there was a common intention that both parties should have a beneficial interest; andb.the claimant has acted to his detriment in the belief that by so acting he was acquiring a beneficial interest. 68.Similarly, in the case of:- “Kiplagat Kotut – Versus - Rose Jebor Kipngok [2019] eKLR” the Court cited with approval the holdings in the case of:- “Macharia Mwangi Maina and William Kipsoi Sigei – Versus - Kipkoech Arusei & another” and held that the trial judge had erred in failing to apply the concept of constructive trust and the doctrine of equitable estoppel in the matter before it. The court stated that:“.... the doctrine of Constructive Trust comes into play to restore property to the rightful owner and to prevent unjust enrichment. It prevents unconscionable conduct and ensures one party does not benefit at the expense of another.” 69.Ombwayo J in the case of “Arekai – Versus - Olweny & another (Environment & Land Case 374 of 2013) [2023]KEELC 22154 (KLR) (7 December 2023)(Judgment)” found that there existed a Constructive Trust and granted a declaration that the Plaintiff was the proprietor of parcel of land measuring 1.3 Acres to be surveyed out of the property subject of the dispute in that case. He proceeded to grant an Order for excision of 1.3 acres of Title in that property and transfer to the Plaintiff. In so doing, the Court was guided by the decisions of the Court of Appeal in the case of:- “Juletabi African Adventure Limited & another – Versus - Christopher Michael Lockley [2017] eKLR”, the Court of Appeal dealt with the issue of trust at length. 70.Further, the Court in the case of:- “Twalib Hatayan Twalib Hatayan & Anor – Versus - Said Saggar Ahmed Al-Heidy & Others [2015] eKLR” re-stated the law on trusts as follows:-“.......If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (see Halsbury’s Laws of England supra at para 1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment....A resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a beneficial interest upon the transferee...” 71.It was their submission that it was the common intention of both the Plaintiff and the Defendants to enter into the Sales of Agreements and execute the transfer of the suit properties to the Plaintiff, a position that the 1st to 15th Defendants had disingenuously attempted to vacate. The 1st – 15th Defendants had attempted to dispose off their undivided shares to the 16th Defendant, while blatantly violating the terms of the Sale Agreements executed between the Plaintiff and the 1st to 15th Defendants.The doctrines of constructive trust and proprietary estoppel are doctrines of equity that aims to prevent such unconscionable conducts, whereby the Defendants have attempted to fraudulently enrich themselves at the expense of the Plaintiff. The 16th Defendant has alleged that the agreement for the sale of the 1st - 15th Defendants' shares to her were entered into inSeptember 2018 while the Plaintiff sought to rely on Sale Agreements entered into in October 2018. 72.The obviously fraudulent, unconscionable and illegal acts by the Defendants that aim to enrich them at the expense of the Plaintiff must not be countenanced by the Court. 73.On whether the Plaintiff had satisfied the test for grant of a mandatory injunction compelling the 16th Defendant to surrender to the Plaintiff the original certificates of title in respect of the suit properties. The Learned Counsel asserted that it was settled that the threshold for grant of mandatory injunctions was higher than in the case of prohibitory injunctions. See the Court of Appeal decision in the case of “Kenya Breweries Limited – Versus - Washington Okeyo (2002) EA 109)”. 74.The Court of Appeal held that the test for grant of a mandatory injunction was as correctly stated in VOL 24 of Halsbury’s Laws of England 4th Edition paragraph 948 that:“In the absence of special circumstances, an interlocutory mandatory injunction “will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can easily be remedied, or if the defendant attempts to steal a match on the plaintiff,... a mandatory injunction will be granted.” 75.A mandatory injunction could be granted on an interlocutory application as well as at the hearing, but in the absence of special circumstances would not normally be granted. However, ‘if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can easily be remedies, or if the Defendant attempted to steal a march on the Plaintiff.......... a Mandatory injunction will be granted on an interlocutory application’. 76.The Learned Counsel submitted that the instant case was a case of breach of contract that reeks of illegality and fraudulent conduct by the 1st to 15th Defendants as regards to the grant of vacant possession of the suit properties to the Plaintiff despite an agreement that the Plaintiff would be handed vacant possession upon completion of the payment of the consideration. The instant case presents a clear set of special circumstances where the Defendants had attempted to defraud the Plaintiff and deny him possession of properties he has duly paid consideration for. The conspectus of the Defendant's conduct was that they were keen on frustrating the Plaintiff's equitable and legal rights to the suit properties. 77.According to the Learned Counsel, the Plaintiff had established that the 16th Defendant had no legal basis to withhold the original Certificates of Title, as the Plaintiff had fully performed his obligations under the sale agreements. Failure to release the documents continued to frustrate the Plaintiff's rights to property ownership and prevents the completion of the transfer process. 78.It was their submission that the balance of convenience lied in favour of granting the injunction, as the Plaintiff had a legal and equitable right to the titles, while the 16th Defendant had no legitimate reason to retain them. 79.On whether the Plaintiff merits an order of specific performance directed at the 1st - 15th Defendants to execute the transfer of their respective shares in the suit properties. The Learned Counsel relied on the case of “Reliable Electrical Engineers (K) Limited – Versus - Mantrac Kenya Limited [2006] KEHC 2855 (KLR)”, the court held:-“The jurisdiction of specific performance is based on the existence of a valid, enforceable contract. It will not be ordered if the contract suffers from some defect, such as failure to comply with the formal requirementsor mistake or illegality, which makes the contract invalid or unenforceable.” 80.Similarly, in the case of:- “Caltex Oil (Kenya) Limited – Versus - Rono Limited [2016] KECA 457 (KLR)” the court adopted the dictum in “Gharib Suleman Gharib – Versus - Abdulrahman Mohamed Agil LLR No.750(CAK)Civil Appeal No. 112 of 1998” where it was held that:“The jurisdiction to order specific performance is based on the existence of a valid and enforceable contract and being an equitable relief, such relief is more often than not granted where the party seeking it cannot obtain sufficient remedy by an award of damages the focus being whether or not specific performance will do more perfect and complete justice than an award of damages.” (emphasis added) 81.The Plaintiff and the 1st to 15th Defendants entered into a valid and enforceable contract that was executed by all parties voluntarily. No one was coerced into executing the agreement and no fraudulent conduct has been established.However, the Defendants have elected to violate their contractual obligations by repudiating the terms and it would only in the interest of justice that they are ordered to specifically perform their obligations and execute the transfer forms of the suit properties and hand over the Original Certificates of Title to the Plaintiff's advocates. 82.In issuing an order of specific performance, the court focuses on whether or not specific performance will do more perfect and complete justice that the award of damages. The instant case presents a scenario where the Defendants have frustrated the Plaintiff's legal and equitable proprietary rights to the suit properties. 83.They humbly submitted that the Defendants and the Plaintiff had a common intention to enter into Sale Agreements that would see the transfer of undivided shares to the suit properties to the Plaintiff, a position that he took with reliance on the 1st to 15th Defendants intention and promise. The Plaintiff has sufficiently demonstrated why the 1st to 15th Defendants. In retrospect, specific performance only allows for more perfect and complete justice to the Plaintiff that an award of damages would not particularly fulfil. 84.On who bears the costs of the suit. The Learned Counsel argued that the provisions of Section 27 of the Civil Procedure Act, Cap.21 were clear that Costs follow the event, and are awardable at the discretion of the Court. The Supreme Court has set forth guiding principles applicable in the exercise of that discretion in the case of “Jasbir Singh Rai & 3 others – Versus - Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012;[2014] eKLR”, as follows:-“[18]It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs.” 85.They invited the Court to exercise its discretion in favour of the Plaintiffs and award them costs of the suit. 86.In conclusion, the Learned Counsel submitted that they had discharged their burden of proof on the required standard, that they were legitimate owners of their respective portions of land from the suit land and were entitled to the orders sought in their Plaint. On the strength of the evidence tendered, their submissions above, and the authorities they had cited, they urged the Court to enter Judgment in favour of the Plaintiffs. B. The Written Submissions by the 8th, 9th, 10th, 11th, 12th, 16th and 17th Defendants 87.The Defendants through the Law firm of Messrs. Balala & Abed Advocates dated 9th May, 2025. M/s. Ndegwa Advocate submitted that Vide an amended Plaint dated 11th June, 2024 the Plaintiff prayed for Judgment to be entered against the Defendant and prayed for the above stated orders. 88.The Learned Counsel submitted that the 1st, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 16th and 17th Defendants filed their defense and prayed the Plaintiff's suit be dismissed with costs and for directions that the transaction of sale and transfer of Plot Number 6289/1/MN(Title Number 20639) and Plot Number 6290/I/MN(Title Number 22404)(hereinafter referred to as the suit properties) to the 16th Defendant be completed and registered in favour of the 16th Defendant. 89.On the brief facts of the case, the Learned Counsel submitted that the suit properties are registered to the following tenants in common in equal undivided shares Nargis Akasha Abdalla (the 16th Defendant) as trustee of Karima Akasha Abdalla (Deceased), Kamaldin Akasha Abdalla(Deceased), Nurdin Akasha Abdalla, Atiyat Akasha Abdalla (Deceased), and Hassan Akasha Abdalla.On the 5th September, 2018 the administrators of the estate of the late Kamaldin Akasha Abdalla namely Nargis Akasha and Dalal Juma entered into an agreement with the 16th Defendant and sold the shares of the late Kamaldin Akasha Abdalla in suit properties to the 16th Defendant at a consideration of a sum of Kenya Shillings Five Million (Kshs.5,000,000/-). 90.The Learned Counsel averred that on the 5th September, 2018, the administrator of the estate of the late Atiyat Akasha Abdalla namely Akasha Abdalla entered into an agreement with the 16th Defendant and sold to the her the shares of the late Atiyat Akasha Abdalla in the suit properties at a consideration of Kenya Shillings Two Million Five Hundred Thousand (Kshs. 2,500,000/=).On 5th September, 2018 Hassan Akasha Abdalla, the 1st surviving co-owner of the suit properties also got into an agreement with the 16th Defendant and sold his share to her at a consideration of Kenya Shillings Five Million (Ksh.5,000,000/=). 91.However, on 15th and 17th October, 2018 respectively, the 16th Defendant received letters from the Law firm of Messrs. Mulwa Nduya & Co allegedly on instructions of the administrator of the estate of the late Atiyat Akasha Abdalla and a few beneficiaries of the estate the late Kamaldin Akasha Abdalla namely Abdulsalam Kamaldin, Rando Kamaldin, Asha Kamaldin and Hindu Kamaldin allegedly terminating the agreements.On 22nd October, 2018, the 16th Defendant’s Advocate responded to those letters declining to terminate the agreements as the vendors had already received a huge amount of the purchase price. 92.It was interesting to note that the basis for the alleged termination was that the Plaintiff was offering a higher purchase price and an allegation that the 16th Defendant had not completed the purchase price as per the letter dated 17th October, 2018 from the said advocate.The agreements the 16th Defendant got into with the surviving co-tenants as well as the administrators of the estates for the deceased co-tenants did not specify the completion date and neither was there a termination clause. 93.From the foregoing and more specifically the letter dated 17th October, 2018 it was clear that the Plaintiff was aware of the fact that there was an ongoing conveyancing transaction for sale of the suit properties to the 16th Defendant but this notwithstanding, he proceeded to get into individual sale agreements with some beneficiaries of the deceased co-tenants of the suit properties. In addition to this, on 19th April, 2023 Nurdin Akasha Abdalla(the 17th Defendant) who was the other surviving co-owner of the suit properties, also got into an agreement with the 16th Defendant and sold to her his share in his personal capacity as one of the co-tenants and also as an administrator for the estate of the late Karima Akasha Abadalla at a consideration of Kenya Shillings Ten Million (Ksh.10,000,000/=). 94.Thus, all the surviving co-tenants and administrators of the estates of the deceased co-tenants entered into agreements with the 16th Defendant and sold the entire undivided share of the suit properties to her. The 16th Defendant proceeded to make payment of the purchase price and the respective beneficiaries of the various estates of the deceased co-tenants acknowledged receipt of it. These agreements were also registered at the Land's registry and some of vendors proceeded to execute the transfer forms.It is against this background that the matter proceeded for full hearing and the Honourable Court directed the parties file their respective submissions. These were the 8th, 9th, 10th, 11th, 12th, 16th and 17th Defendant’s written submissions. 95.The Learned Counsel relied on the following issues for determination:-a.Whether the beneficiaries of the deceased co-tenants had capacity to sell the suit properties despite the fact that a grant had been issued and administrators;b.Whether the sale agreements entered between the 16th Defendant, the surviving appointed by court; co-tenants and the administrators of the deceased co-tenants are still valid; 96.On whether the beneficiaries of the deceased co-tenants had capacity to sell the suit properties despite the fact that a grant had been issued and administrators. The Learned Counsel submitted that the Honourable Court issued grants and appointed administrators for the estates of the deceased co-tenants and also listed the beneficiaries for these estates as follows:-a.A Certificate of confirmation of Grant dated 7th November, 2014 for the Estate of the late Karima Akasha Abdalla was issued to Nurdin Akasha where by Nurdin Akasha, Hassan Atiyat, Atiyat Akasha and Nargis Akasha were listed as the beneficiaries of this estate.b.A Certificate of Confirmation of Grant dated 22nd April, 2009 for the Estate of the late Kamaldin Akasha Abdalla was issued to Nargis Akasha and Dalal Juma Hassan were by Karima Akasha, Dalal Juma, Hindu Kamaldin, Abdulsalam Kamaldin, Hayat Kamaldin, Rondo Akasha, Asha Kamaldin, Mohamed Kamaldin and Hassan Kamaldin were listed as the beneficiaries of the estate; andc.A Judgment was delivered by the Kadhi’s Court on 30th August, 2018 and Akasha Abdalla Hassan was appointed as an administrator for the estate of the late Atiyat Akasha Abdalla with Akasha Abdalla Hassan, Mohamed Abdalla Hassan, Badwa Abdalla Hassan, and Hassan Abdalla Hassan as beneficiaries to this estate. 97.The Learned Counsel averred that the Plaintiff in this case, got into individual sale agreements with some beneficiaries of the deceased co-tenants to purchase the suit properties sometime in October, despite the fact that administrators had been appointed for the estates of the deceased-co tenants. The Plaintiff initiated the process of purchasing the suit properties after the 16th Defendant had already started the process of purchasing the undivided shares of all the other co-tenants. 98.They submitted that the only people who had capacity to sell the shares of the deceased co-tenants were the administrators appointed by the Honourable court and thus the beneficiaries who allegedly sold the suit properties to the Plaintiff had no capacity to sell as they lacked the authority to lawfully deal with it.The Law of Succession is clear on who is authorized to deal with property of a deceased person. The provision of Section 45 of the Law of Succession Act, Cap. 160 states that:-“Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, takepossession or dispose of, or otherwise intermeddle with, any free property of a deceased person.Any person who contravenes the provisions of this section shall-a.be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; andb.be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.” 99.The Learned Counsel relied on the case of:- “In the matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR”, Musyoka J stated that:“The property of a dead person cannot be lawfully dealt with by anybody unless such person is authorized to do so by the law. Such authority emanates from a grant of representation, and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence.In this matter the respondent sold property belonging to a dead person without authority as letters of administration had not yet been made to him. The fact of having petitioned for the letters did not clothe him with any authority...As the respondent had no authority to sell the property in question, Felix Kinuthia acquired no interest in it at all as the seller had no title to it whatsoever. A buyer, such as Felix Kinuthia, is not in the same footing with a creditor, for the interest he alleges to have acquired in the estate was not acquired from the deceased during his lifetime or from a person authorized to sell the property. It should be noted that even where a grant of representation has been obtained, the grant-holder has no power to sell any immoveable asset before confirmation of the grant.” 100.The authority to sell the shares of the deceased co-tenants in the suit property only emanated from the grant of representation which was issued to the administrators that has entered into agreements with the 16th Defendant for the sale of undivided shares. They submitted that the beneficiaries who got into sale agreements with the Plaintiff had no authority and/or capacity to sell and they are guilty of intermeddling which is a criminal offence.The Plaintiff was ignorant of the law of succession and also the fact that there was an ongoing sale which had not been terminated or finalized when he lured the beneficiaries to sell the property to him. 101.Therefore the parties that got into sale agreements with the Plaintiff did not have capacity to sell thus the sale agreements being relied upon by the Plaintiff were null and void ab initio. In the case of:- “Delphis Bank – Versus - Sanyu Int. Limited, Nairobi HCCC No.714 of 1995”, the court held that that:-“A contract is illegal as formed if its very formation is prohibited and is void ab initio if it is a nullity”. 102.They submitted that the agreements that were entered into between the Plaintiff and some of the beneficiaries of the estate were null and void ab initio. The Plaintiff’s sale agreements with the beneficiaries were null and void as administrators had already been appointed and they are the only ones entitled to deal with the shares of the deceased co-tenants of the suit properties and majority of the alleged vendors to the Plaintiff had no capacity to sell. 103.On whether the sale agreements entered between the 16th Defendant, the surviving co-tenants and the administrators of the deceased co-tenants are still valid, the Learned Counsel submitted that uponthe demise of the deceased co-tenants, namely Karima Akasha Abdalla (Deceased), Kamaldin Akasha Abdalla (Deceased) and Atiyat Akasha Abdalla (Deceased), the court administrators for the estates of the deceased co-tenants. These administrators got into agreements for sale with the 16th Defendant. The 16th Defendant who is also one of the co-tenants, proceeded to buy the shares of the other surviving co-tenants namely Nurdin Akasha Abdalla, Hassan Akasha Abdalla in the suit properties. 104.Thus, they submitted that the 16th Defendant bought all the undivided shares of the entire suit properties from all the co-tenants as follows:-i.On the 5th September 2018 the administrators of the estate of the late Kamaldin Akasha Abdalla namely Nargis Akasha and Dalal Juma entered into an agreement with the 16th Defendant and sold to the her the shares of the late Kamaldin Akasha Abdalla in suit properties at a consideration of Kenya Shillings Five Million (Ksh.5,000,000/=).ii.On the 5th September 2018 the administrator of the estate of the late Atiyat Akasha Abdalla namely Akasha Abdalla entered into another agreement with the 16th Defendant and sold the shares of the late Atiyat Akasha Abdalla in Plot Number 6289/l/MN(Title Number 20639) and Plot Number 6290/I/MN (Title Number 22404) at a consideration of Kenya.iii.On 5th September, 2018 Hassan Akasha Abdalla, the 1st surviving co-owner Shillings Two Million Five Hundred Thousand (Ksh.2,500,000/=).of Plot Number 6289/l/MN(Title Number 20639) and Plot Number 6290/I/MN(Title Number 22404) also got into an agreement with the 16th Defendant and sold his share to her at a consideration of Kenya Shillings Five Million (Ksh.5,000,000/=).iv.On 19th April, 2023 Nurdin Akasha Abdalla, the other surviving co-owner of Plot Number 6289/l/MN(Title Number 20639) and Plot Number 6290/I/MN(Title Number 22404) also got into an agreement with the 16th Defendant and sold his share in his personal capacity as one of the co-tenants and as an administrator of the estate of the late Karima Akasha Abadalla to the 16th Defendant at a consideration of Kenya Shillings Ten Million (Ksh. 10,000,000/=).v.Upon signing the respective agreements the 16th Defendant proceeded to make the payments whereby beneficiaries of the respective estates acknowledged receipt of their share of the sale purchase price.vi.These agreements were also registered at the Land's registry and some of vendors proceeded to execute the transfer forms. 105.According to the Learned Counsel, on 15th and 17th October, 2018, the 16th Defendant received letters from the Law firm of Messrs, Mulwa Nduya & Co. allegedly on instructions of the administrator of the estate of the late Atiyat Akasha Abdalla and a few beneficiaries of the estate the late Kamaldin Akasha Abdalla namely Abdulsalam Kamaldin, Rando Kamaldin, Asha Kamaldin and Hindu Kamaldin allegedly terminating the agreements despite the fact that no terms been breached but based on an allegation that the Plaintiff was offering a higher purchase price and that the 16th Defendant had not completed the purchase price. 106.On 22nd October, 2018, the 16th Defendant’s Advocate responded to those letters declining to terminate the agreements as the vendors had already received a huge amount of the purchase price. The agreements that were entered into between the 16th Defendant, the surviving co-owners and the administrators of the estates of the deceased co-owners and did not specify the completion date and neither was there a termination clause.In addition to these, the agreements for purchase of the suit properties by the 16th Defendant were between the 16th Defendant and the Administrators of the estate, thus the few beneficiaries of the estate the late Kamaldin Akasha Abdalla namely Abdulsalam Kamaldin, Rando Kamaldin, Asha Kamaldin and Hindu Kamaldin had no capacity to terminate the sale agreements. 107.The Learned Counsel submitted that one of the reasons for terminating the agreements entered by 16th Defendant was the fact that the Plaintiff was willing to purchase the properties for a higher price than the 16th Defendant as per the letter dated 17th October, 2018 and the Plaintiff offered to reimburse the 16th Defendant some money paid for the purchase of the suit properties. The alleged termination of these agreements was invalid and if at all they intended to terminate them, they were required to terminate or rescind the contract in accordance with the law. 108.What was the law? the law was and still is that, the party exercising the option to terminate or rescind the agreement is required to do so in accordance with the terms spelt out in the agreements.However, the material contracts did not have an express clause on termination or rescission as well as the completion date and neither did they incorporate the Law Society Conditions of Sale (1989 Edition). Nonetheless, under Clause 4 (7)of the Law Society of Kenya Conditions of Sale, a vendor who is ready, able and willing to complete the sale and is aggrieved by the purchaser's default to complete the contract within the completion period is required to issue a twenty one days' notice requiring the purchaser to complete the contract. Clause 4(7)provides thus.4(7) This sub-condition applies unless a special condition provides that time is of the essence in respect of the completion date:a.In this condition “Completion notice” means a notice served in accordance with this sub-condition;b.If the sale shall not be completed on the completion date, either party (being then himself ready, able and willing to complete) may after that date serve on the other party notice to complete the transaction in accordance with this sub-condition. A party shall be deemed to be ready, able and willing to complete:i.If he could be so but for some default or omission of the other party;ii.Notwithstanding that any mortgage on the property is unredeemed when the completion notice is served, if the aggregate of all sums necessary to redeem all such mortgages (to the extent that they relate to the property)does not exceed the sum payable on completionc.Upon service of the completion notice it shall become a term of the contract that the transaction shall be completed within twenty-one (21) days of service and, in respect of such period, time shall be of the essence of the contract.d.If the purchaser does not comply with a completion notice:i.The purchaser shall forthwith return all documents delivered to him by the vendor and at his own expense procure the cancellation of any entry relating to the contract in any register;ii.Without prejudice to any other rights or remedies available to him, the vendor may forfeit and retain any deposit paid and/or resell the property by auction, tender or private treatye.If on any such re-sale contracted within six (6) months after the completion date the vendor incurs a loss, the purchaser shall pay to the vendor liquidateddamages. The amount payable shall be the aggregate of such loss, all costs and expenses reasonably incurred in any such re-sale and any attempted re-sale and interest at the contract rate on such part of the purchase money as is from time to time outstanding(giving credit for the amount of the forfeited deposit (if any) and for all sums received under any re-sale contract on account of the re-sale price)after the completion date;f.If the vendor does not comply with a completion notice, the purchaser, without prejudice to any other rights or remedies available to him, may give notice to the vendor forthwith to pay to the purchaser any sums paid by way of deposit or otherwise under the contract and interest on such sums at the contract rate from four (4) working days after service of the notice until payment. On compliance with such notice, the purchaser shall not be entitled to specific performance of the contract but shall forthwith return all documents delivered to him by the vendor and, at the expense of the vendor, procure the cancellation of any entry relating to the contract in any register;g.Where, after service of a completion notice, the time for completion shall have been extended by agreement or implication, either party may again invoke the provisions of this condition which shall then take effect with the substitution of “ten (10) days” for “twenty-one (21) days” in paragraph (c) of this sub-condition. 109.In summary, Clause 4 (7) stipulates the procedure to be followed in terminating or rescinding an agreement for sale of land on account of non-completion by a party to the agreement.In the case of:- “Anne Murambi – Versus - John Munyao Nyamu & another [2018]KEELC 2375 (KLR)”,the ELC court in Nairobi stated that:-“In my view, in the absence of a completion/termination/rescission notice in the manner stipulated, the material contract remained in force and is enforceable subject to the law of limitation of actions. Secondly, failure to complete the contract in 90 days did not terminate the contract because time was not expressed to be of essence in the material contract. Neither did the parties agree that the contract would stand terminated if there was no completion within 90 days. The court finding on this issue therefore is that the contract dated 14/7/2004 was not in any way terminated or rescinded by any of the parties and the contract is enforceable by either party to it......” 110.They reiterated the fact that upon signing the respective agreements, the 16th Defendant proceeded to make the payments and as at today, all the co-tenants have executed sale agreements in favor of the 16th Defendants and the agreements have registered at the Land’s registry including some executed transfer forms for the undivided. Therefore, they submitted that the contracts entered between the 16th Defendant, the surviving co-tenants and the administrators of the estates of the deceased co-tenants were never terminated, are still valid and ought to be enforced by this Honorable Court. 111.According to the Learned Counsel, in light of the above, we humbly pray that this Honourable Court finds that the sale agreements entered by the 16th Defendant, the surviving co-tenants and administrators of the estate of the deceased co-tenants are valid and for directions that the transaction of sale and transfer of Plot Number 6289/I/MN(Title Number 20639) and Plot Number 6290/l/MN(Title Number 22404) to the 16th Defendant be completed and registered in favor of her. 112.On whether the Plaintiff’s agreements with Defendants were procured through misrepresentation, deceit and false assurances and if the Plaintiff had provided proof of the amount he allegedly paid for purchase price. The Learned Counsel asserted that some of the Defendants who are beneficiaries to the deceased co-tenants estates got into sale agreements with the Plaintiff for the sale of the suit properties based on misrepresentations, deceit and false assurances. They reiterated the fact that the 16th Defendant had already paid a huge sum of money to purchase the suit properties to the administrators of the deceased co-tenants and this money had been distributed to the beneficiaries, who are majority of the defendants in this suit. 113.Despite the above and the Plaintiff being aware of the ongoing sale, he approached some of these Defendants and lured them into getting into agreements for sale of the suit properties. The Defendants averred that they were lured by the Plaintiff to sign agreements and sell the suit properties to him despite the fact that they had already received the proceeds of sale of the suit properties from the 16th Defendant.The Plaintiff misled the Defendants who got into agreements with him to believe that he would reimburse the 16th Defendant, the amount of money she had already paid for the purchase of the suit properties. 114.As a result of this, the Plaintiff never remitted most the purchase price sum as he retained the same in order to reimburse to the 16th Defendant the money the beneficiaries had received for the sale of the suit properties from the 16th Defendant. One of the reasons for terminating the agreements entered by 16th Defendant was the fact that the Plaintiff was willing to purchase the properties for a higher price than the 16th Defendant as per the letter dated 17th October, 2018 and the Plaintiff offered to reimburse the 16th Defendant some money paid. 115.The Defendants averred that the acknowledgment adduced by the Plaintiff was not the true reflection of the amount allegedly paid by the Plaintiff to somedefendants as the Plaintiff retained the money in order to reimburse the 16th Defendant. There was no proof adduced in court for reimbursement of money to the 16th Defendant or proof of payments made via bank or mobile money transfer to the Defendants for the purchase price allegedly paid by the Plaintiff for the purchase price. 116.The Learned Counsel submitted that the sum of money allegedly paid by the Plaintiff for the purchase of the suit property was a lot of money and it was not logical how he managed to settle the alleged sums by handing over lots money in cash to the Defendants without any bank transactions. On the contrary, the Plaintiff ought to have at least adduced receipts of withdrawing the huge sum of money from the banks or any other form of money transfer for further transmission to the Defendants in cash. These bank transactions or any other form of money transfers if adduced would have dates corresponding to the sale agreements of the suit properties. 117.It was a cardinal principle of law that he who alleged must prove and the Plaintiff had failed to adduce receipts of money transactions for the purchase price allegedly paid. In addition to this, they submitted that the agreements being relied upon by the Plaintiff were not only null and void for being entered into by persons who lacked capacity to sell but also invalid as they were procured through misrepresentation, deceit and false assurances of reimbursement of money already paid by the 16th Defendant for the purchase of the suit properties 118.In the case of “Mursal Guleid & 2 others – Versus - Daniel Kioko Musau [2020] KEHC 8604(KLR)” the Honourable Court held that:-With regard to misrepresentation, the Law Dictionary defines Misrepresentation as:“An intentionally or sometimes negligently false representation made verbally, by conduct, or sometimes by nondisclosure or concealment and often for the purpose of deceiving, defrauding, or causing another to rely on it detrimentally; also :an act or instance of making such a representation" See also Esso Petroleum Company Limited – Versus - Mardon [1976] 2 All ER 5.My take is that misrepresentation is a false statement of fact or law which induces a party to enter into a contract. There must be a false statement of fact or law as opposed to opinion or estimate of future events (See Bisset – Versus - Wilkinson [1927] AC 177).Once it has been established that a false statement has been made it is then necessary for the affected party to demonstrate that the false statement induced them to enter the contract (See Horsfall – Versus - Thomas [1862] 1 H&C 90). If the affected party does an act to adopt the contract, or demonstrate a willingness to continue with the contract after becoming aware of the misrepresentation they will lose the right to rescind it (See Long – Versus - Lloyd [1958]1 WLR 753).” 119.The contention by the Learned Counsel was that the Plaintiff had failed, refused and or ignored to adduce proof of those transactions despite the fact that the Defendants in the defense averred that it was in the interest of justice that the Plaintiff proves the mode of payment for the sum allegedly acknowledged. In light of this we submit that the acknowledgment is not the true reflection of the amount allegedly paid by the Plaintiff to some defendants as he promised that some amount of his purchase price would be set-off for the re-imbursement to the 16th Defendant for the purchase of the suit properties. 120.On whether the Plaintiff was entitled to an order of specific performance and if the suit was a candidate for striking out under the provision of Order 2 Rule 15 Civil Procedure Rules, 2010. The Learned Counsel posited that the Plaintiff was seeking an order of specific performance for agreements that were entered into by individuals who lacked capacity to sell the suit properties. In the case of:- “Thrift Homes Limited – Versus - Kenya Investments Limited [2015] eKLR” in which it was stated, ‘inter alia”, that:-“the remedy of specific performance like any other equitable remedy is discretionary. Second, the jurisdiction to grant the relief of specific performance is based on the existence of a valid enforceable contract. Third, specific performance will not be ordered if the contract suffers from some defect such as mistake or illegality or if there is an alternative effective remedy...” 121.According to the Counsel, the agreements entered between the Plaintiff and the beneficiaries of the deceased co-tenants were defective as the alleged vendors of the suit properties to the Plaintiff did not have capacity to sell.In addition to this the agreements were procured through misrepresentation, deceit and false assurances for reimbursement of money already paid by the 16th Defendant for the purchase of the suit properties.From the foregoing, they submitted that the Plaintiff was not entitled to a remedy of specific performance. In addition to this, the provision of Order 2 Rule 15 Civil Procedure Rules, 2010 empowers the Courts at any stage of the proceedings to among others strike out any pleadings on the grounds:i.that there exists no reasonable cause of action, orii.that its scandalous, vexatious, frivolous oriii.that it prejudice, embarrass or delay the fair trial oriv.it is otherwise an abuse of process of the court. 122.The Learned Counsel submitted that the present case fitted the description above as it does not only fail raise a reasonable cause of action, but was also scandalous, vexatious, frivolous, and an abuse of the court process. Thus, they invited this Honourable Court to exercise its discretion and dismiss this suit with costs. 123.In conclusion, the Learned Counsel submitted that the Plaintiff could not purport to use the inherent powers of the court to sustain this suit as the purported sale of the suit properties is void ab initio. On the contrary, all the surviving co-tenants and administrators of the estates of the deceased co-tenants entered into agreements with the 16th Defendant and sold the entire undivided share of the suit properties to her. 124.They submitted that the 16th Defendant was the rightful buyer of the suit properties as the same were brought from people who had authority to sell. In light of the above, they humbly prayed that this Honourable Court dismissed the Plaintiff’s suit with Court and further directs that the transaction of sale and transfer of Plot Number 6289/I/MN(Title Number 20639) and Plot Number 6290/I/MN(Title Number 22404) be completed and registered in her favour. V. Analysis and Determination 125.I have carefully considered the parties’ pleadings, testimonies, submissions, and all documentary evidence, including the Amended Plaint dated 11th June 2024, as well as the applicable Constitution of Kenya, 2010, statutory provisions and case law. I shall address the issues sequentially, guided by their legal and factual complexity. 126.In order to reach an informed, reasonable, and just decision in this matter, the Honourable Court has crafted the following seven (7 ) issues for determination: -a.Whether the Plaintiff entered into valid and enforceable sale agreements with the 1st –15th and 17th Defendants.b.Whether the Defendants breached the said agreements;c.Whether the withdrawal of ELC Case No. 183 of 2019 against the 16th Defendant affected the Plaintiff’s proprietary rights;d.Whether the Plaintiff has established fraud, illegality, or breach of trust on the part of the Defendants;e.Whether the doctrines of proprietary estoppel and constructive trust apply in the circumstances;f.Whether the Plaintiff is entitled to the reliefs sought in the Amended Plaint;g.Who should bear the costs of the suit. ISSUE No. a). Whether the Plaintiff entered into valid and enforceable sale agreements with the 1st –15th and 17th Defendants; 127.Before proceeding further under this sub - heading, it is trite law that a contract over land that does not satisfy the requirements of the provision of Section 3(3) of the Law of Contract Act, Cap. 23 and Section 38 ( 1 ) of the Land Act, No. 6 of 2012 are unenforceable. Section 3(3) of the Law of Contract Act provides that:-“no suit shall be brought on a contract for a disposition in an interest in land unless the contract upon which the suit founded is:-a)In writing;b)It is signed by all the parties thereto; andThe signature of each party signing has been attested by a witness who is present when the contract was signed by such party.Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it affect the creation of a resulting, implied or constructive trust.’ 128.While Section 38 (1) of the Land Law No. 6 of 2012 provides that:-“Other than as provided by this Act or by any other written law, no suit shall be bought upon a contract for the disposition of an interest in land –a.The contract upon which the suit is founded –i.Is in writing;ii.Is signed by all the parties thereto; andThe signature of each party signing has been attested to by a witness who was present when the contract was signed by such party. 129.The wording of the above provisions is mandatory.The Court of Appeal in the case of:- “Jane Catherine Karani – Versus - Daniel Mureithi Wachira” held/observed that:-“It is clear from the reading of section 3(3) of the Law of Contract act that the signature of each party is required to be attested by a witness who was present during the execution of the agreement. We have perused the agreement and we find that it is only the appellants signature that was attested by her husband. This was clearly contrary to section 3(3) of the law of contract.” 130.Under the provision of Section 3(3) of the Law of Contract Act, Cap. 23, contracts for the disposition of land must be in writing, signed by the parties, and attested. While the agreement was validly executed, performance was conditional upon payment of the full purchase price and provision of completion documents. 131.A contract being a voluntary obligation the law places a high value on ensuring parties have truly consented to the terms that bind them. The law also grants parties broad freedom to agree on the content of the agreement whose terms are incorporated through express promises. Those terms, in case of a disagreement are interpreted by the Courts to seek out the true intention of the parties, from the perspective of an objective observer and, in the context of the parties’ bargaining environment. Where there is an obvious gap, Courts typically imply terms to fill those gaps without, of course re-writing the agreement for the parties. It is a misnomer to describe this filling of the gaps as “re-writing” the agreement. Where there is evidence of fraud, misrepresentation or mistake, the contract will be set aside as was explained by the Court of Appeal in the case of:- “National Bank of Kenya Limited – Versus - Pipleplastic Samkolit (K) Limited & Another [2002] EA 503” as follows:-“A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved.” 132.The Plaintiff produced written agreements executed with the 1st –15th and 17th Defendants in October, 2018, supported by acknowledgments of payment totalling a sum of Kenya Shillings Nineteen Million Ninety Three Thousand (Kshs. 19,093,000/=). These agreements were in writing, signed, and witnessed, thereby satisfying the statutory threshold. 133.The Defendants argued that the Plaintiff contracted with beneficiaries who lacked capacity under the provision of Section 45 of the Law of Succession Act, Cap 160, which prohibits intermeddling with estate property without a grant of representation. However, the evidence showed that administrators of the estates of Atiyat Akasha Abdalla and Kamaldin Akasha Abdalla participated in the transactions. The Plaintiff’s bundle included receipts and acknowledgments signed by the duly appointed Legal Administrators and beneficiaries, indicating that the agreements were not mere intermeddling but transactions sanctioned by persons clothed with authority. 134.The provision of Section 38 of the Land Act, No. 6 of 2012, recognizes contracts for sale of land and provides for remedies including specific performance where consideration has been paid and possession delivered. The Plaintiff’s case falls squarely within this framework, as he paid the agreed consideration and was entitled to vacant possession. 135.In Harris JA in “Garvey – Versus – Richard (2011) JMCA 16” the court in considering the essential components of a contract reflected the following principles:-“It is a well – settled rule that an agreement is not biding as a contract unless it shows an intention by the parties to create a legal relationship. Generally, there basic rules underpin the formation of a contract, namely, an agreement, an intention to enter into contractual relationships and consideration. For a contract to be valid and enforceable an essential terms governing the relationship of the parties must be incorporated therein. The subject matter must be certain. There must be positive evidence that a contractual obligation, born out of an oral or written agreement is in existence.” 136.Turning to the construction of the sale agreement, it is trite law a court of law cannot rewrite a land sale agreement for parties and courts are bound to enforce the will of the parties in a contract as long as the terms and conditions are clear and an unambiguous, valid, and lawful. See the case of:- “Julius Njue Makokha – Versus - Augustino Kinyua Njiru & Another [2019] eKLR” and “Thrift Homes Limited – Versus - Kays Investment Limited [2015] eKLR”. It is a general principle of law that parole evidence should not be used to contradict that which parties reduced into a contract and courts shall enforce contracts unless they are illegal or procured through fraud or coercion. See the cases of:- “Muthuri – Versus - NIC Bank Limited (2003) KLR 145”, “Caroline Cherono Kirui – Versus - Liner Cherono Towett (2018) eKLR”, “Fidelity Commercial Bank Limited – Versus - Kenya Grange Vehicles Industries Limited (2017) eKLR”. 137.Additionally, in the case of:- “Silas Mutuma Kabwima – Versus - Josphat Ntongai M’Ithungai [2022] KEELC 850”, the Court held that where a Purchaser has paid the purchase price and the Vendor acknowledges receipt, the Vendor is estopped from denying the purchaser’s rights. Here, the Defendants acknowledged receipt of a sum of Kenya Shillings Nineteen Million Ninety Three Thousand (Kshs. 19,093,000/=), and are estopped from reneging on their obligations. 138.The Plaintiff’s agreements were in writing, signed, and supported by acknowledgments of payment. As far as I am concerned, they fully satisfied the provisions of the Law - Sections 3(3) of the Law of Contract Act, Cap. 23 and Section 38 ( 1 ) of the Land Law Act, No. 6 of 2012. The participation of the duly appointed Legal Administrators mitigated concerns under the provision of Section 45 of the Law of Succession Act, Cap. 160 and the Defendants’ own conduct—suing the 16th Defendant to compel release of titles—confirmed their recognition of the Plaintiff’s rights. The Defendants’ subsequent withdrawal of the civil suit – “ELC Case No. 183 of 2019”, without remedying the Plaintiff’s interest, was a deliberate act to defeat his rights. Equity, as articulated in the case of:- “Singh – Versus - Africa International University [2022] KEELC 2444”, will not permit such unconscionable conduct. 139.Written agreements and payment acknowledgements. The Plaintiff produced written sale agreements dated October, 2018 and multiple acknowledgements of payment showing receipts totaling the sums he alleged he paid. The Amended Plaint expressly pleaded that “Pursuant to Agreements for Sale executed variously between the Plaintiff and the 1st –15th and 17th Defendants sometime in October, 2018, the Plaintiff purchased … for a cumulative sum of Kshs 8,286,000/=” and that “I duly paid the purchase price in full and the Defendants acknowledged their receipt of the said purchase price”. A written, signed agreement supported by payment is prima facie valid and enforceable. The authorities cited above, on “the burden of Proof” confirm that such a showing shifts the burden to the Vendor to prove a legal bar to enforcement. 140.The pleadings and witness evidence acknowledged that some original owners were deceased and that administrators or legal representatives were involved in the transactions; the Defendants themselves relied on succession processes in their defences and in separate proceedings (ELC 183 of 2019). The Plaintiff alleged that, despite payment and acknowledgements, the Defendants failed to deliver vacant possession, original title documents and executed transfer forms — conduct that, if proved, is a straightforward breach of a sale agreement. 141.The Defendants relied on succession technicalities and argued that some beneficiaries lacked capacity or that administrators alone could lawfully dispose of estate land. The Plaintiff’s evidence, however, included acknowledgements and receipts signed by persons described as beneficiaries and administrators; the pleadings also show the Defendants themselves initiated proceedings (ELC 183 of 2019) to compel release of titles — conduct inconsistent with a claim that the Plaintiff’s agreements were wholly void. Where administrators or persons clothed with authority participated in the sale and accepted payment, courts have treated the transaction as capable of enforcement or, at minimum, as giving rise to equitable remedies to protect the purchaser.The line of cases shows that lack of perfect succession formality does not automatically defeat a purchaser who has paid and relied on the transaction; the vendor must show that the sale was void in law, not merely irregular. 142.If the sale required Letters of Consent from the Land Control Board or other statutory steps, the vendor may argue the agreement was void for non‑compliance. But the authorities demonstrate two important points: (i) where the vendor is the party who fails to procure the statutory step and the purchaser has paid, equity may still grant specific performance or impose a constructive trust; and (ii) the vendor cannot rely on its own failure to defeat the purchaser’s equitable claim. The ELC and Appellate decisions emphasize that courts will look at the substance of the parties’ conduct and the equities, not only technical non‑compliance, when the purchaser has paid and the vendor has accepted the benefit. 143.The Plaintiff alleged that, after accepting payment, the Defendants failed to deliver titles, withdrew their suit against the 16th Defendant, and attempted to deal with the land anew. The case law treats such conduct as highly probative of unconscionability and breach: where a vendor accepts payment and then resiles or colludes to defeat the purchaser, courts will not allow the vendor to profit from its own wrong. The authorities cited above support imposing equitable remedies (specific performance, injunctions, constructive trust) in such circumstances. 144.If the Defendants’ core contention is mere irregularity in succession formalities (e.g., that some beneficiaries were underage or that administrators had not been properly appointed), that defense does not automatically void a written, signed sale supported by payment and contemporaneous acknowledgements. The vendor must show a legal incapacity or a statutory bar that renders the transaction void ab initio; mere irregularity or later change of mind is insufficient. 145.If the Defendants’ defense is that the sale was void because the Land Control Board consent was mandatory and not obtained, the court must examine whether the vendor or the vendor’s agents prevented compliance, whether the purchaser was ready and willing to comply, and whether equity requires relief despite the statutory omission. The ELC has repeatedly held that where the vendor’s conduct caused non‑compliance or where the vendor seeks to rely on its own default, equitable relief may still be appropriate. 146.If the Defendants prove fraud or that the Plaintiff knowingly contracted with persons who had no authority, that would defeat enforcement. But the record as pleaded and evidenced (written agreements, receipts, administrators’ involvement, and the Defendants’ own litigation conduct) points away from a clean fraud defence and toward a dispute about succession formality and post‑sale conduct — disputes that equity and the ELC’s jurisprudence resolve in favour of protecting purchasers who have paid and acted to their detriment. 147.On the pleaded facts and the documentary evidence the Plaintiff produced (written sale agreements and contemporaneous acknowledgements of payment), and applying the statutory tests and the controlling ELC authorities, the Plaintiff did enter into valid and enforceable sale agreements with the 1st –15th and 17th Defendants unless the Defendants can prove a specific legal bar (such as a conclusive statutory prohibition or proven fraud) that renders the contracts void ab initio. The balance of authorities shows that a written, signed agreement supported by payment creates enforceable rights and that equity will protect a purchaser who has paid and acted to his detriment. If the Court accepts the Plaintiff’s documentary proof and finds no conclusive legal bar, the appropriate remedies are equitable: declarations of breach, injunctions restraining further dealings, orders compelling surrender of original title documents, and specific performance (or, if transfer cannot be completed by the parties, an order directing the Registrar to effect transfer). The case law cited above supports these remedies where vendors accept payment and then refuse to complete the transaction. 148.Accordingly, the Court strongly finds that the Plaintiff entered into valid and enforceable sale agreements with the 1st –15th and 17th Defendants. The Defendants’ failure to transfer the suit properties amounted to breach of contract, and they are estopped from denying the Plaintiff’s proprietary rights. ISSUE No. b). Whether the Defendants breached the said agreements. 149.Under this sub–heading the Court has considered whether the Defendants breached the said agreements. A breach of a land sale agreement occurs when either the buyer or the seller fails to fulfill their obligations as defined in the contract. These obligations typically involve payment timelines, the delivery of title documents, and the transfer of ownership. 150.Two passages from the Plaintiff’s Amended Plaint framed the factual starting point for this analysis: “Pursuant to Agreements for Sale executed variously between the Plaintiff and the 1st -15th and 17th Defendants sometime in October, 2018, the Plaintiff purchased from the 1st -15th and 17th Defendants all the said Defendants’ undivided shares in the Suit Properties for a cumulative sum of Kshs 8,286,000/=.” And: “I duly paid the purchase price in full and the Defendants acknowledged their receipt of the said purchase price.” These averments, supported by the documentary bundle (sale agreements and payment acknowledgements), are the factual foundation for asking whether the agreements were valid and enforceable. 151.As already observed above, the provision of Sections 3(3) of the Law of Contract Act, Cap. 23 and 38 ( 1 ) of the Land Law Act, No. 6 of 2012 requires that a contract for the disposition of an interest in land be in writing and signed by the parties (or their agents lawfully authorised). A written, signed agreement therefore satisfies the primary formal requirement for enforceability. The provision of Law of Succession Act, Cap. 160 and related practice require that estate property be dealt with by persons lawfully authorised (administrators, executors, or beneficiaries with authority). Transactions by persons lacking authority may be voidable or unenforceable.The Land Act, No. 6 of 2012 and the Land Control Act, Cap. 302 impose procedural requirements (e.g., Land Control Board consent where applicable) and recognise equitable remedies (specific performance, injunctions, constructive trust) where a purchaser has paid consideration and the vendor refuses to complete. These statutory rules create a two‑stage inquiry: (1) do the agreements meet the formal statutory requirements (writing, signature, attestation); and (2) if formalities are met, are there legal bars (lack of authority, mandatory statutory non‑compliance, or proven fraud) that render the agreements void or unenforceable? 152.In the case of:- “Silas Mutuma Kabwima - Versus - Josphat Ntongai M’Ithungai [2022] KEELC 850”, a breach of land sale agreement often involves material failure, such as the buyer failing to pay the balance or the seller failing to transfer title and obtain Land Control Board consent. Such failures constitute a breach when one party fails to perform their contractual obligations. 153.The Plaintiff avers that he paid the cumulative sum of Kenya Shillings Eight Million Two Eighty Six Thousand (Kshs. 8,286,000/=) in full. In land transactions, once the purchase price is paid, the vendor’s primary obligation is to deliver “completion documents” (original titles, executed transfer forms, and rates/rent clearances). In the case of:- “Ottoman Bank – Versus - Hanna [1958] EA 92”, the court held that the obligation of the vendor to provide a valid and registrable title is a condition precedent to the completion of the contract. By failing to hand over the titles, clearly the 1st – 15th Defendants have failed in their most fundamental contractual duty. 154.On the documentary and testimonial proof, the Plaintiff relied upon, produced written sale agreements dated October, 2018 and contemporaneous acknowledgements of payment. The Amended Plaint expressly pleaded payment in full and vendor acknowledgements. The Plaintiff’s witness evidence described the payment ledger and named recipients; the Plaintiff also relied on the fact that the Defendants themselves initiated litigation (ELC No. 183 of 2019) to compel release of titles — conduct that, on its face, recognised the existence of competing claims and the commercial reality of the transactions. 155.Ideally, where a purchaser produces written agreements and contemporaneous receipts or acknowledgements, the evidential burden shifts: the vendor must show a legal bar (e.g., lack of capacity, statutory invalidity, or fraud) to avoid enforcement. Absent such a bar, the written agreement plus payment is a powerful foundation for enforceability. 156.The Plaintiff produced written sale agreements and contemporaneous payment acknowledgements. That satisfies the provision of Sections 3 (3) of the Laws of Contract and Section 38 ( 1 ) of the Land Laws No. 6 of 2012 on the fundamental requirements: the agreements were in writing and signed. The presence of receipts and contemporaneous acknowledgements corroborates the Plaintiff’s assertion of payment and performance. 157.The Defendants relied on the technicalities ostensibly found on the Laws of Succession Act, Cap. 160 (For instance that some original owners were deceased; the lack of the capacity and authority by the duly appointed Legal Administrators and so forth). But the Amended Plaint and the documentary record show the duly appointed Legal Administrators and beneficiaries were involved in the transactions and that the Defendants themselves litigated (ELC 183 of 2019) to compel release of titles. Where administrators or persons clothed with authority participated and accepted payment, the transaction is not a mere voidable intermeddling; it is a transaction that equity can enforce or protect. The law requires the vendor to prove a conclusive incapacity or statutory bar — not merely assert irregularity. 158.If the Letter of Consent from the Land Control Board under the provision of Section 6 of the Land Control Act, Cap. 302 or other statutory steps were mandatory and were not obtained, the Defendants could argue statutory non‑compliance. But the authorities require the court to examine who caused the non‑compliance. If the vendor’s conduct prevented compliance, or if the vendor accepted payment and later relied on the omission to resile, equity will not assist the vendor. The Plaintiff’s evidence that the Defendants accepted payment and later withdrew litigation against the 16th Defendant without remedying the Plaintiff’s interest is highly probative of unconscionability. 159.The Defendants’ withdrawal of ELC Case No. 183 of 2019 while the Plaintiff’s interest remained unprotected, and any attempts to deal with the land afresh after accepting payment, are conduct that courts treat as inconsistent with a bona fide defence. Such conduct supports estoppel and equitable relief. 160.On the counter arguments that the Defendant may legitimately raise and their weight, and on the complete lack of authority or proven fraud, the Court notes that if the Defendants can prove that the persons who purported to sell had no authority at all (e.g., no grant of representation, no appointment of administrators, and the signatures were forged or procured by fraud), the agreements would be void and unenforceable. That is a high threshold and requires cogent proof. 161.On the mandatory statutory non – compliance, it is this Court’s observation if the sale required Letters of Consent from the Land Control Board and that the consent was mandatory and absent, the sale may be voidable. Based on the provision of Section 8 of the Land Control Act, Cap. 302, the vendor cannot rely on its own failure to procure consent to defeat a purchaser who has paid and acted to his detriment; the court will weigh the equities. 162.If the Plaintiff had only made deposits and not paid the full agreed price, the vendor’s refusal to transfer may be justified. The documentary record here, however, pleads the consideration payment was in full and acknowledgements were made available. 163.Where the Defendants’ defences rest on irregularity, delay, or change of mind rather than conclusive legal incapacity or proven fraud, the balance of authority favours enforcement or equitable protection of the purchaser. 164.Now getting back to the breach of contract. The Court notes that there was failure to yield vacant possession. The agreement stipulated that the properties were sold with vacant possession.Failure to clear the land of encumbrances or third-party occupiers (including the 16th Defendant’s interference) constitutes a breach. In the case of:- “Njuguna – Versus - Thuku [2014] eKLR”, the court affirmed that a vendor who cannot deliver vacant possession as agreed is in breach and cannot claim the contract is still subsisting in their favour. 165.Certainly, there was anticipatory breach and collusion. The Plaintiff noted that the 1st –15th Defendants withdrew Mombasa ELC Case No. 183 of 2019 against the 16th Defendant. By withdrawing the suit intended to recover the titles, the Defendants actively placed themselves in a position where they could not perform their contract with the Plaintiff. Legally speaking, this is known as Repudiatory Breach. 166.In the case of:- “Mbogo – Versus - Shah [1968] EA 93”, the principle was reinforced that a party who, by their own act, makes the performance of the contract impossible, is deemed to have breached it. 167.Under the doctrine of Constructive Trust, when the 1st to 15th Defendants received the sum of Kenya Shillings Eigh Million Two Hundred and Eighty Six Thousand (Kshs 8,286,000/=) from Hussein Tareq Abdalla, they ceased to be “owners" in the absolute sense. They became trustees holding the legal title for the benefit of the Plaintiff, who acquired the beneficial interest.The provision of Section 28 of the Land Registration Act, No. 3 of 2012 recognizes the concept of “overriding interests and trusts” over the land. Furthermore, the provision of Section 10 of the Trustees Act imposes duties on those holding property for others. 168.In the case of:- “William Muthee Muthamia – Versus - Margaret Wariara Muthamia & another [2014] eKLR”, the Court of Appeal held that a constructive trust arises by operation of law where it would be “unconscionable” for the legal owner to deny the beneficial interest of another. 169.The Defendants violated this trust through two specific actions pleaded in the Plaint:a.Connivance and Collusion: By withdrawing ELC Case No. 183 of 2019, the 1st –15th Defendants actively frustrated the trust. Instead of protecting the Plaintiff’s beneficial interest (by recovering the titles from the 16th Defendant), they “connived” to leave the Plaintiff without a remedy.b.Equitable Fraud: In equity, “fraud” does not only mean deceit; it includes any act that unconscionably denies a party their rightful interest. By keeping the money and failing to transfer the land, the Defendants are unjustly enriched. 170.On the pleaded facts and the documentary evidence the Plaintiff produced — written, signed sale agreements and contemporaneous acknowledgements of payment — and applying the statutory tests and controlling case law principles, the Plaintiff did enter into valid and enforceable sale agreements with the 1st – 15th and 17th Defendants unless the Defendants can prove a specific, conclusive legal bar (such as proven fraud, forged signatures, or a statutory prohibition that renders the contracts void ab initio). The Defendants’ subsequent conduct (withdrawing litigation against the 16th Defendant, attempts to deal with the land after accepting payment) points strongly to breach and unconscionable behaviour that equity will not countenance. 171.On the facts and law, the Plaintiff entered into valid and enforceable sale agreements with the 1st – 15th and 17th Defendants. The agreements satisfied statutory formalities, were supported by payment, and involved administrators. The Defendants’ subsequent conduct — withdrawing litigation and failing to transfer — constituted breach. Equity will not permit them to retain the benefit unjustly. 172.The Plaintiff is entitled to declarations of breach, injunctions restraining further dealings, mandatory orders compelling surrender of titles, specific performance (or transfer by the Court Registrar), and damages for breach of contract. ISSUE No. C. Whether the withdrawal of ELC Case No. 183 of 2019 against the 16th Defendant affected the Plaintiff’s proprietary rights. 173.Under this sub – heading the Court whether the Withdrawal of ELC Case No. 183 of 2019 against the 16th Defendant Affected the Plaintiff’s Proprietary Rights.The Plaintiff pleaded that after paying the full purchase price for the undivided shares of the 1st –15th and 17th Defendants in the suit properties, the Defendants failed to transfer their shares. Instead, they filed ELC Case No. 183 of 2019 against the 16th Defendant seeking to compel her to release the original titles. While that suit was pending, the Defendants filed notices of withdrawal, effectively abandoning their claims against the 16th Defendant. The Plaintiff contends that this withdrawal was orchestrated to deprive him of his proprietary rights. 174.The Court reiterates the facts that the provision of Section 3 ( 3 ) of the Law of Contract Act, Cap. 23 and Section 38 ( 1 ) of the Land Law no. 6 of 2012 provides that once a purchaser demonstrates a written, signed agreement for land and payment of consideration, proprietary rights crystallize in equity even before registration. 175.The provision of Section 120 of the Evidence Act, Cap. 80 on general estoppel principles, on the other hand prevents a party from denying a fact where another has relied on their representation to their detriment.Thus, once the Defendants acknowledged receipt of the purchase price, they were estopped from denying the Plaintiff’s rights. Withdrawal of a collateral suit cannot extinguish proprietary rights already vested by contract. 176.In the case of:- “Silas Mutuma Kabwima (Supra)”, the Court held that once a vendor acknowledges receipt of purchase price, they are estopped from denying the purchaser’s rights. Withdrawal of subsequent proceedings does not undo the purchaser’s equitable interest. 177.In the case of:- “Mbijiwe – Versus - Muthuri [2023] KEELC 21515”, the Court opined itself that fraud must be proved to a higher standard than a balance of probabilities. Absent fraud, breach of contract suffices to ground relief. 178.The withdrawal of the civil case - ELC Case No. 183 of 2019 did not extinguish the Plaintiff’s proprietary rights. Those rights arose from the sale agreements and payment of consideration, not from the collateral suit. The Defendants’ withdrawal merely demonstrated their unwillingness to pursue enforcement against the 16th Defendant, but it did not negate their contractual obligations to the Plaintiff.By withdrawing the suit without remedying the Plaintiff’s interest, the Defendants acted unconscionably. Their conduct amounted to breach of trust and collusion. 179.In conclusion, the Court finds that the withdrawal of the civil case:- ELC Case No. 183 of 2019 against the 16th Defendant did not affect the Plaintiff’s proprietary rights. Those rights had already crystallized upon execution of the sale agreements and payment of consideration. The withdrawal only underscored the Defendants’ breach and collusion, strengthening the Plaintiff’s claim for equitable reliefs such as specific performance, injunctions, and damages. ISSUE No. d). Whether the Plaintiff has established fraud, illegality, or breach of trust on the part of the Defendants? 180.Under this sub–heading the Court whether the Plaintiff has established fraud, illegality, or breach of trust on the part of the Defendants.The Plaintiff pleaded that despite paying the full purchase price for the undivided shares of the 1st – 15th and 17th Defendants, they failed to transfer their shares, withheld vacant possession, and later withdrew the civil case:- ELC Case No. 183 of 2019 against the 16th Defendant. He alleged that these acts were deliberate, fraudulent, and amounted to breach of trust. 181.The Black’s Law Dictionary defines fraud thus: -“Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, In the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another”. 182.Fraud is essentially a common law tort of deceit and its essentials are:-a.false representation of an existing fact;b.with the intention that the other party should act upon it;c.the other party did act on it; andd.the party suffered damage 183.With respect to a contract, fraud means and includes any of the acts set out below committed by a party to a contract, or with his connivance or by his agent with the intent to deceive another party thereto or his agent or to induce him to contract:-a.the suggestion as a fact, of that which is not true by one who does not believe it to be true;b.the active concealment of a fact by one having knowledge or belief of the fact;c.a promise made without intention of performing it;d.any other act fitted to deceive; ande.any such act or omission or the law declares to be fraudulent. 184.Equity has exercised a general jurisdiction in case of fraud, sometimes concurrent with and sometimes exclusive of common law courts. Fraud would, therefore, consist of deceitful actions which may be made through either positive assertions or concealment of facts. 185.It is settled law that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. At page 427 in Bullen & Leake & Jacobs, Precedent of pleadings 13th Edition quoting with approval the cases of “Wallingford – Versus - Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709”, “Garden Neptune – Versus - Occident [1989] 1 Lloyd’s Rep. 305, 308”, “Lawrence – Versus - Lord Norreys (1880) 15 App. Cas. 210 at 221” and “Davy – Versus - Garrett (1878) 7 ch.D. 473 at 489” it is stated that:-“Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged. The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see). It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (|). “General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any court ought to take notice”. 186.Locally, the above principles have been stated in “HCCC No. 135 of 1998 Insurance Company of East Africa – Versus - The Attorney General & 3 Others” as thus whether there was fraud is, however, a matter of evidence. 187.The provision of Section 107 of the Evidence Act, Cap. 80 of the laws of Kenya states 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”. 188.Therefore, it is settled law that in civil cases, a party who wishes the court to give a judgment or to declare any legal right dependent on a particular fact or sets of facts, that party has a legal obligation to provide evidence that will best facilitate the proof of the existence of those facts. The party must present to the court all the evidence reasonably available on a litigated factual issue.It goes without saying that a party is bound by their own pleadings and the evidence they adduce in court. The purpose of pleadings is to ascertain with clarity the matters on which parties disagree and points of agreement so as to ascertain matters for determination. 189.The allegations of fraud in particular called for detailed evidence to reach the threshold of proof. I am well alive to the case of:- “Koinange and 13 others – Versus - Koinange [1986] KLR 23” where the court restated the cardinal precept of the law of evidence that he who alleges must prove it. In the cases of:- “Ratilal Gordhanbhai Patel – Versus - Lalji Makanji [1957] EA 314” and “Ulmila Mahindra Shah – Versus - Barclays Bank International and Anor [1979] KLR” the courts have stated that Fraud has everything to do with one’s state of mind and intentions, and not the outcome of actions and that the standard of proof for fraud is very high beyond the usual standard of balance of probabilities in civil cases approaching but below proof beyond reasonable doubt. 190.The Plaintiff alleged that the Defendants deliberately withdrew their suit against the 16th Defendant to deprive him of his rights. While this conduct was unconscionable, the Plaintiff did not produce direct evidence of fraudulent misrepresentation, forgery, or deceit. If some Defendants were mere beneficiaries without authority under the provision of Section 45 of the Law of Succession Act, Cap. 160 their participation in the sale could amount to illegality. However, administrators were involved, and the Defendants themselves recognized the Plaintiff’s interest by suing the 16th Defendant. Thus, outright illegality was not conclusively proved.The strongest ground is breach of trust. The Defendants accepted substantial sums, acknowledged receipt, and then failed to transfer the properties. Their withdrawal of ELC Case No. 183 of 2019 without remedying the Plaintiff’s interest was a breach of their fiduciary duty to act in good faith. 191.The Court finds that the Plaintiff has not proved fraud to the required higher standard, nor has he conclusively established illegality under succession law. However, he has proved breach of trust and breach of contract. The Defendants’ conduct — accepting payment, acknowledging sale, failing to transfer, and withdrawing their suit against the 16th Defendant — was unconscionable and inequitable. Equity demands that the Defendants be compelled to perform their obligations or, in default, that the Court enforce the Plaintiff’s proprietary rights through specific performance, injunctions, and damages. ISSUE No. e). Whether the doctrines of proprietary estoppel and constructive trust apply in the circumstances. 192.Under this sub – heading, the Court shall examinewhether the doctrines of proprietary estoppel and constructive trust apply in the circumstances. The Plaintiff contends that after paying the full purchase price for the undivided shares of the 1st –15th and 17th Defendants, he was denied vacant possession and transfer of title. He argues that equity should intervene through the doctrines of proprietary estoppel and constructive trust to protect his proprietary rights. The Court must determine whether these doctrines apply in the circumstances. 193.A constructive trust was defined by the Court of Appeal in the case of “Macharia Mwangi Maina & 87 Others (Supra)” as follows:“a Constructive trust is based on “common intention” which is an agreement, arrangement or understanding actually reached between the parties and relied on and acted on by the claimant. In the instant case, there was a common intention between the appellants and the respondent in relation to the suit property. Nothing in the Land Control Act prevents the claimants from relying upon the doctrine of constructive trust created by the facts of the case. The respondent all along acted on the basis and represented that the appellants were to obtain proprietary interest in the suit property. Constructive trust is an equitable concept which acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention.” 194.In the case of:- “William Kipsoi Sigei – Versus - Kipkoech Arusei & Another [2019] eKLR” the Court of Appeal stated as follows:-“We agree with the English decision Yaxley – Versus - Gotts & Another, (2000) Ch 162, where it was held that an oral agreement for sale of property, created an interest in the property even though void and unenforceable as a contract; but the oral agreement was still enforceable on the basis of a constructive trust or proprietary estoppel. This was also the approach taken in Macharia Mwangi Maina decision where the court observed that the appellant had put the respondent into possession of the suit property with the intention that he was to transfer the properties purchased to them and as such, a constructive trust had been created and the appellant could not renege.” 195.The Defendants accepted substantial sums and acknowledged sale. Their failure to transfer, coupled with withdrawal of ELC Case No. 183 of 2019, demonstrates unconscionable conduct. Equity imposes a constructive trust to prevent them from unjustly retaining both the purchase price and the property. 196.In the case of:- “Willy Kimutai Kitilit (Supra)” the Court of Appeal authoritatively opined that the doctrine of proprietary estoppel overlaps with that of constructive trust, and both are concerned with equity’s intervention to provide relief against unconscionable conduct. 197.The doctrine of proprietary estoppel and constructive trust applies where a voidable contract subsists between two parties, to prevent a proprietor from acting to the detriment of the party that has relied on the said agreement.In the case of:- “Gichinga Kibutha – Versus - Caroline Nduku [2018] KEELC 3981”, the Court held that proprietary estoppel arises where a party makes assurances about property rights, and another relies on them to their detriment. The Defendants executed written agreements in October, 2018, representing that they were selling their undivided shares in the suit properties. The Plaintiff relied on these assurances, paid a sum of Kenya Shillings Nineteen Million and Ninety Three Thousand (Kshs. 19,093,000/=), and expected vacant possession and transfer. Denying him ownership after such reliance would unjustly enrich the Defendants. Thus, proprietary estoppel applies to prevent the Defendants from reneging on their assurances. 198.In this instant case, the doctrines of proprietary estoppel and constructive trust squarely apply. The Plaintiff relied on the Defendants’ assurances, paid the full purchase price, and suffered detriment when denied transfer. Equity will not permit the Defendants to resile from their obligations or profit from their own wrong. The Plaintiff’s proprietary rights are therefore enforceable under these doctrines, entitling him to equitable remedies including specific performance, injunctions, and damages. ISSUE No. f). Whether the Plaintiff is entitled to the reliefs sought in the Amended Plaint 199.Under this sub–heading the Court is called upon to examine whether, in light of the findings the Plaintiff is entitled to the reliefs sought.The Plaintiff prayed for above stated reliefs from the filed Amended Plaint. 200.The Under the provision of Sections 24 and 25 of the Land Registration Act, No. 3 of 2012, the effect and efficacy of registration is that it vests absolute ownership in a proprietor together with all rights and privileges appurtenant thereto. The registered owner of land is conferred indefeasible rights, interest and title over the land. The Plaintiff demonstrated that he entered into written agreements with the Defendants, paid the full purchase price, and received acknowledgements of payment. The Defendants’ failure to transfer their shares constituted breach. Declaratory relief affirming this breach is therefore justified. 201.The Plaintiff sought to restrain the Defendants from selling, disposing of, transferring, or interfering with his quiet possession. The principles in the Classicus locus case of “Giella – Versus - Cassman Brown [1973] EA 358” require a prima facie case, irreparable harm, and balance of convenience. The Plaintiff established a prima facie case by showing proprietary rights threatened by the Defendants’ conduct. As emphasized in the case of:- “Mrao Ltd – Versus - First American Bank of Kenya Ltd [2003] KLR 125”, proprietary rights under threat constitute a prima facie case. The balance of convenience tilts in his favour, as the Defendants stand to suffer no prejudice if restrained from interfering with land they no longer own. A permanent injunction is therefore warranted. 202.The Plaintiff sought an order compelling the 16th Defendant to surrender the original certificates of title. Equity compels performance where one party has fulfilled obligations and the other unjustly withholds completion. In the case of:- “Singh – Versus - Africa International University [2022] KEELC 2444”, the Court held that equity will not permit a vendor to rely on technicalities to defeat a purchaser who has paid and acted to his detriment. A mandatory injunction is therefore justified to compel surrender of titles. 203.Having said as much my next question is whether the Plaintiff is entitled to specific performance. Before this court determines whether it should award the order of specific performance, it must first satisfy itself that the sale agreement that the Plaintiff seeks to rely on meets the requirements of a contract of sale of land. The Court has already held and found that there was a valid sale agreement as per the provision of Sections 3 (3) of the Law of Contract Act, Cap. 23 and 38 ( 1 ) of the Land Act, No. 6 of 2012.The Granting of the equitable remedy of specific Performance is discretionary and as such the Court should in deciding whether or not to grant the orders look at the merits of the case based on a case to case basis and whether there is an adequate alternative. 204.I wish to cite the case of:- “Gurder Singh Birdi & Marinder Singh Ghatora – Versus - Abubakar Madhubuti, where the Court of Appeal in Civil Appeal No. 165 of 1996”, held that the underlying principle in granting the equitable relief of specific performance is that:-“the Plaintiff must show that he has performed all the terms of the contract which he has undertaken to perform, whether expressly or by implication, and which he ought to have performed at the date of the writ in the action’. 205.See the case of:- “Reliable Electrical Engineers Limited – Versus - Mantrac Kenya Limited (2006) eKLR”, wherein Justice Maraga (as he then was) stated that:-“Specific performance like any other equitable remedy is discretionary and the Court will only grant it on well laid principles”.“The Jurisdiction of specific performance is based on the existence of a valid enforceable contract. It will not be ordered if the contract suffers from some defect, such as failure to comply with the formal requirements or mistake or illegality, which makes the contract invalid or enforceable. Even when a contract is valid and enforceable, specific performance will however not be ordered where there is an adequate alternative remedy. In this respect damages are considered to be an adequate alternative remedy where the claimant can readily get the equivalent of what he contracted for from another source. Even when damages are adequate remedy specific performance may still be refused on the ground of undue influenced or where it will cause severe hardship to the Defendant.” 206.Further, in the case of:- “Thrift Homes Limited (Supra)”, the court stated that:-“specific performance like any other equitable remedy is discretionary and will be granted on well settled principles. The jurisdiction of specific performance is based on the existence of a valid enforceable contract and will not be ordered if the contract suffers from some defects or mistake or illegality. Even where a contract is valid and enforceable, specific performance will not be ordered where there is an adequate alternative remedy. The court then posed the question as to whether the Plaintiff who was seeking specific performance in that case had shown that he was ready and able to complete the transaction.” 207.It should be noted that specific performance is an equitable remedy and as a rule of equitable remedies is available at the court’s discretion. The order of specific performance is however rarely granted unless the plaintiff is able to show that damages would not be an adequate remedy. In this current case the plaintiff has established by his evidence that he performed his part of the bargain and therefore he is entitled to an order of specific performance. 208.As already found and held by this Court, there was a valid sale agreement by the parties that was duly signed. Further the said agreement has not been vitiated by any factors nor has there been any allegations or form of illegality that has been alluded to.However in deciding whether or not to grant the order of specific performance the Court should be careful not to order the grant of specific performance where it will cause severe hardship to the Defendants. In the sale agreement presented before this Honourable Court, the Defendants has been indicated as the owners of the suit property and the beneficiaries and administrators of the estate of Atiyati Akasha Abdalla, Karima Akasha Abdalla and Kamaldin Akasha Abdalla respectfully. 209.Specific performance is an equitable remedy granted where damages are inadequate. In the case of:- “Macharia Mwangi Maina & 87 Others (Supra)”, the Court of Appeal held that constructive trust arises where purchasers pay consideration and vendors fail to transfer, warranting specific performance.The Plaintiff paid the full purchase price, and damages alone would not suffice. Specific performance directing execution of transfer forms is therefore appropriate. 210.In default of compliance, the Plaintiff sought partition and execution by the Court Registrar. This relief is consistent with Section 80 of the Land Registration Act, No. 3 of 2012. Pursuant to the provision of Section 80 of the Act provides that: -“(1)Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.(2)The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.” 211.In the case of:- “Kenya Anti-Corruption Commission – Versus - Online Enterprise Limited Kisumu ELC number 708 of 2015” as cited in the case of:- “Baishe – Versus - Bwana (Environment & Land Case 229 of 2021) [2023] KEELC 19129 (KLR) (27 July 2023) (Judgment)” the court stated that:-“The Court is also empowered under Section 80 (1) of the Land Registration Act, to order the rectification of the register by directing that any registration be cancelled or amended if its satisfied that any registration was obtained, made or omitted by fraud or mistake. I find that the defendants irregularly, fraudulently and un-procedurally registered the suit land in their names and the same should not be allowed to stand.” Emphasis mine. 212.From the above it ensures that the Plaintiff’s rights are not defeated by continued obstruction. 213.The Plaintiffs prayed to awarded damages for breach of contract. The Court has already found that the 1st – 15th and 17th Defendants failed to perform their part of the contract as required and therefore they were in breach of the said contract. In the case of “Peter Umbuku Muyaka – Versus – Henry Sitati Mmbasu (2018) eKLR”, the Court stated that:-“A claimant for general damages for breach of contract who does not prove that he suffered loss is all the same entitled to damages, though nominal. In the Anson’s Law of Contract, 28th Edition at Pg.589 and 590 the law is stated to be that:-“Every breach of a contract entitles the injured party to damages for the loss he or she has suffered. Damages for breach of contract are designed to compensate for the damage, loss or injury the claimant has suffered through that breach. A claimant who has not, in fact, suffered any loss by reason of that breach, is nevertheless entitled to a verdict but the damages recoverable will be purely nominal”. 30.The Halsbury’s Laws of England, Third Edition Vol. II, defines nominal damages as follows: “ 388. Where a plaintiff whose rights have been infringed has not in fact sustained any actual damage therefrom , or fails to prove that he has; or although the plaintiff has sustained actual damage, the damage arises not from the defendant’s wrongful act, but from the conduct of the plaintiff himself; or the plaintiff is not concerned to raise the question of actual loss , but brings his action simply with the view of establishing his right, the damages which he is entitled to receive are called nominal­­­… Thus in actions for breach of contract nominal damages are recoverable although no actual damage can be proved” 214.In the case of “James Maranya – Versus - South Nyanza Sugar Co. Limited (2017) eKLR” the Court dealt with the issue of the remedies in breach of contracts and stated that:-“16..... It is well settled in law that general damages cannot be awarded on a claim anchored on a breach of contract. In affirming that position, the Court of Appeal in the case of Joseph Urigadi Kedeva – Versus - Ebby Kangishal Kavai Kisumu Civil Appeal No 239 of 1997 (UR) emphatically expressed itself thus:......As to the award of Kshs 250,000/= as general damages, Mr. Adere submitted that there can be no award of general damages for breach of contract......We respectfully agree. There can be no general damages for breach of contract......17.The reason as to why general damages cannot be awarded in cases of breach of a contract was explained in the case of Consolata Anyango Ouma – Versus - South Nyanza Sugar Co. Limited (2015) eKLR as follows:The next question is whether the appellant was entitled to damages as a result of the breach. As a general principle, the purpose of damages for breach of contract is, subject to mitigation of loss, the claimant is to be put as far as possible in the same position he would have been if the breach complained of had not occurred. This is principle is encapsulated in the Latin phrase restitution in integrum (see Kenya Industrial Estates Limited – Versus - Lee Enterprises Ltd NRB CA Civil Appeal No 54 of 2004 [2009] eKLR, Kenya Breweries Limited – Versus - Natex Distributors Limited Milimani HCCC No 704 of 2000 [2004] eKLR). The measure of damages is in accordance with the rule established in the case of Hadley – Versus - Baxendale (1854) 9. Exch. 341 that the measure of damages is such as may be fairly and reasonably be considered arising naturally from the breach itself or such as may be reasonably contemplated by the parties at the time the contract was made and a probable result of such breach (see Standard Chartered Bank Limited – Versus - Intercom Services Limited & Others NRB CA Civil Appeal No 37 of 2003 [2004] eKLR). Such damages are not damages at large or general damages but are in the nature of special damages and they must be pleaded and proved (see Coast Bus Service Limited – Versus - Sisco Murunga Ndanyi & 2 others, NRB CA Civil Appeal No 192 of 92 (UR) and Charles C. Sande – Versus - Kenya Co - operative Creameries Limited, NRB CA Civil Appeal No 154 of 1992 (UR).” 215.The remedy arising from breach of contract is therefore in the nature of special damages. It is settled that a claim on special damages must be specifically pleaded and proved. (See the Court of Appeal in the case:- “Coast Bus Service Limited – Versus - Sisco Murunga Ndanyi & 2 others, NRB CA Civil Appeal No 192 of 92 (UR)” and “Charles C. Sande – Versus -Kenya Co - operative Creameries Limited, NRB CA Civil Appeal No 154 of 1992 (UR)”. In this case the Applicants prayed for damages for breach of contract these were not specifically pleaded nor were they proved and the same cannot be awarded. 216.The Plaintiff pleaded loss of user and business opportunity. Trespass to land is actionable per se, as held in the case of:- “Wambugu – Versus - Njuguna [1983] KLR” and reaffirmed in “Philip Ayaya Aluchio – Versus - Crispinus Ngayo [2014] eKLR”. The Defendants’ conduct deprived the Plaintiff of peaceful occupation and potential development. Guided by “Kenya Hotel Properties Limited – Versus - Willesden Investments Ltd [2009] eKLR”, damages for trespass may include mesne profits where unlawful occupation deprives the owner of use. While no evidence of rental income was tendered, general damages are merited to vindicate proprietary rights and deter similar conduct. ISSUE No. g). Who should bear the costs of the suit 217.It is now well established that the issue of Costs is at the discretion of the Court. Costs mean the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Act Cap. 21 holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 218.In the case of:- “Machakos ELC Pet No. 6 of 2013 Party of Independent Candidate of Kenya & another – Versus - Mutula Kilonzo & 2 others [2013] eKLR” quoted the case of “Levben Products – Versus -Alexander Films (SA) (PTY) Limited 1957 (4) SA 225 (SR) at 227” the Court held;“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion (Fripp vs Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at….In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.” 219.In the present case, the Plaintiff has successfully proved his case on a balance of probabilities.He entered into valid and enforceable sale agreements with the Defendants.He paid the full purchase price, which the Defendants acknowledged.The Defendants failed to transfer their shares, withdrew ELC Case No. 183 of 2019 without remedying his interest, and attempted to resile from their obligations. The Defendants’ conduct necessitated litigation. They occasioned the suit by their breach and obstruction. No special circumstances exist to justify departure from the general rule. 220.Hence, the Court finds that costs of the suit shall be borne by the Defendants jointly and severally. This ensures that the Plaintiff is indemnified for expenses incurred in vindicating his proprietary rights and deters parties from engaging in fraudulent or obstructive conduct in land transactions. VI. Conclusion and Disposition 221.Ultimately, having undertaken a comprehensive analysis of the pleadings, testimonies, submissions, and documentary evidence, and guided by the applicable statutory provisions and case law, this Honourable Court finds that the Plaintiff has established his case against the Defendants on the preponderance of probabilities. The balance of convenience also tilts in favour of the Plaintiff, who has demonstrated valid contractual rights, payment of consideration, and equitable entitlement to the suit properties. Accordingly, the Court proceeds to make the following specific orders:a.That Judgment is hereby entered in favour of the Plaintiff against the 1st –15th and 17th Defendants in respect of the Amended Plaint dated 11th June 2024, the Plaintiff’s claim having been proved on a balance of probabilities.b.That for avoidance of doubt, accordingly, having considered the pleadings, evidence, submissions, and applicable law, the Court makes the following orders:i.That a declaration be and is hereby issued that the 1st – 15th and 17th Defendants are in breach of their respective agreements for sale of their undivided shares in LR Nos. CR. 6289 (Original No. 6037/22) and CR. 6290 (Original No. 6037/23) .ii.That a permanent injunction be and is hereby issued restraining the Defendants, whether by themselves, their agents, servants, or assigns, from selling, disposing of, transferring, leasing, charging, occupying, or in any manner interfering with the Plaintiff’s quiet possession and enjoyment of the suit properties.iii.That a mandatory injunction be and is hereby issued compelling the 16th Defendant to surrender to the Plaintiff the original certificates of title in respect of LR Nos. CR. 6289 and CR. 6290 to facilitate transfer.c.That the 1st – 15th and 17th Defendants are hereby directed to execute transfer instruments in favour of the Plaintiff. In default, the Registrar of the Environment and Land Court, Mombasa, shall execute the transfers on their behalf.d.That in the event of continued non‑compliance, the Court orders partition of LR Nos. CR. 6289 and CR. 6290, with the Registrar mandated to effect transfer of the Plaintiff’s purchased shares.e.That the Plaintiffs is awarded general damages for breach of contract and trespass, assessed at Kenya Shillings Five Million (Kshs. 5,000,000/-), to vindicate his proprietary rights and deter similar conduct.f.That the Plaintiff shall have the costs of the suit, together with interest at court rates. The 1st – 15th and 17th Defendants shall bear the same jointly and severally. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT MOMBASA THIS 19TH DAY OF JUNE 2026.…..….……………………..HON. MR. JUSTICE L.L. NAIKUNIENVIRONMENT AND LAND COURTAT MOMBASAJudgement delivered in the presence of: -a. M/s. Firdaus Mbula – the Court Assistant.b. Mr. Kipkorir Advocate holding brief for Mr. Lorot Advocate for the Plaintiff.c. M/s. Ndegwa Advocate for the 8th, 9th, 10th, 11th, 12th, 16th & 17th Defendants.d. No appearance for the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 13th 14th & 15th Defendants.JUDGMENT: ELC CASE NO. 210 OF 2021 Page 23 of 23 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)