https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1668

Kaburungo (Suing as the Administrator of the Estate of Dedan Kageni Kaburungo) v Karatu & 2 others (Civil Appeal E310 of 2023) [2026] KECA 1668 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1668 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E310 of 2023 DK Musinga, P Lilan & JO Okello, JJA July 31, 2026 Between Jane Kaburungo (Suing as the Administrator of the Estate of Dedan Kageni Kaburungo) Appellant and Rose Wanjiru Karatu 1st Respondent Gulf Energy Limited 2nd Respondent Commissioner of Lands 3rd Respondent (Being an appeal from the judgment and decree of the Environment and Land Court of Kenya at Nairobi (L. Komingoi, J.) delivered on 25th November, 2021inELC Case No. 282 of 2016) Judgment 1.The dispute giving rise to this appeal stems from competing claims of ownership of property known as Nairobi Block xxx/33 (the suit property). The disputants are two rival claimants; on the one hand is the appellant, JNK who is the administratrix of the estate of her late husband, DKK. She anchors her claims on her late husband’s alleged entitlement to the suit property, having purchased the same from Kamiti Farmers Sacco. On the other hand, the 2nd respondent contends that it was an innocent purchaser for value without notice, having purchased the suit property for Kshs. 22 million in 2015 from the guardians of MWM. 2.In the plaint dated March 23, 2015, the appellant pleaded that in 1982, her late husband purchased a plot of land from Kamiti Farmers Sacco - she must have meant Kamiti Farmers Company Limited. On April 4, 2000, plot number xxx/33 was allocated to her late husband by the directors of Kamiti Farmers Sacco, and received a share certificate, No.xxxx 3.The appellant’s case before the trial court was to the effect that sometime in 2010, her daughter, JNK, who was developing the suit property, was informed by the 3rd respondent herein that a title for the property could not be issued in favour of her late father as MWM was already processing a title for the suit property. 4.In its statement of defence dated 16th June 2016, the 2nd respondent denied all the allegations contained in the plaint and averred that it held a registered lease in respect of the suit property, having purchased it from the previously registered lessee, MWM, but since she was suffering from mental illness, MMM and MWM (same initials as her mother) had been appointed as Guardians and managers of her estate pursuant to the provisions of the Mental Health Act, Chapter 248, Laws of Kenya. 5.During the hearing, each claimant called witnesses who gave viva voce evidence. 6.PW1, JNK, testified that her husband purchased the suit property and produced the share certificate and ballot as evidence. She stated that her family had constructed a house on the suit property, but the same was demolished by the 1st respondent, a matter she reported to the area chief, who did not assist saying that the matter was in court. She reported the matter to the Criminal Investigation Department, and MWM recorded a statement stating that the suit property was not hers. 7.In cross-examination, PW1 stated that the 2nd respondent took possession of the suit property and demolished her house. 8.PW2, Simon Njuguna Njoroge, adopted his witness statements dated 10th November 2020 and 11th January 2011 and told the court that he had been the Chairman of Kamiti Farmers Company Limited since 2004. He testified that DK bought one plot for which he received a share certificate from the company. He testified that the appellant was not issued with a title to the suit property as someone else had already been registered as the owner of the suit property. He, however, maintained that MWM never owned it. 9.Under cross-examination, the witness testified that shareholders would get four plots each, but DK bought one plot as he was not a shareholder. He further stated that while the company’s register would confirm allocation, he did not have the same in court. The witness acknowledged existence of leadership wrangles within the company during that period. 10.PW3, Daniel Nderitu Githinji, adopted his witness statement dated 21st January 2011. The witness testified that he was a director at Kamiti Farmers Company Limited at the time the suit property was sold to DK. He knew MWM as she was a shareholder at Kamiti Farmers Company Limited, but he could not speak on the specific parcels she was allocated. The witness also testified that MWM denied ownership of the suit property when she was summoned by the local chief while she was still of sound mind. 11.On re-examination, the witness stated that Kamiti Farmers Company Limited wrote to the Commissioner of Lands requesting him to issue the title in respect of the suit property to the appellant. 12.PW4, Margaret Muthoni Kanake, a former Assistant Commissioner of Lands, adopted her witness statement dated 17th March 2011. The witness testified that she received a letter dated 10th August 2010 from Kamiti Farmers Company Limited indicating that DK was the owner of the suit property, but found out that the same had been allocated to MWM. She further testified that the lease to the suit property had been collected by an individual called Rose Wanjiku. She then reported the matter to the DCI and recorded a statement, following which the DCI eventually placed a restriction on the suit property. 13.DW1, Dinah Katema, an advocate of the High Court of Kenya who represented the 2nd respondent, adopted her witness statement dated 16th June 2016, and testified that the company (the 2nd respondent) expressed interest in the suit property in 2015; that due diligence conducted at the time revealed a restriction on the register of title which had been placed by the DCI. 14.She testified that there was no relationship between the appellant and the 2nd respondent; that MWM was the registered owner of the suit property. She added that the 2nd respondent approached MWM’s daughters, who were her guardians, and through their lawyers, H. Kago advocates, the 2nd respondent was informed that the restriction had been lifted, which was confirmed through a second search. It was her testimony that a transfer was later effected in favour of the 2nd respondent after confirmation was obtained from the court that the guardians could sell the property. 15.Under cross-examination, the witness admitted that at the time the sale agreement was signed, the guardians only had a general guardianship order from December 2014, and the specific court order to sell the property was not obtained until December 9, 2015. 16.After evaluating the evidence, the trial court (Komingoi, J.) found that the appellant had failed to prove her case on a balance of probabilities and proceeded to dismiss her suit. In particular, the learned judge found that in the absence of a complete members' register, the appellant failed to establish her husband’s ownership. Further, the court found that 2nd respondent was an innocent purchaser for value without notice of the appellant’s claim, holding that the lifting of the restriction placed against the title was lawfully done. In the end, the trial court concluded that the title held by the 2nd respondent was issued following a due process without any taint of illegality. 17.Dissatisfied with the decision of the trial court, the appellant preferred this appeal on grounds that the learned judge erred in law and in fact by, inter alia: (a) failing to find that DK had been allocated Plot No. 177/33 in view of the uncontroverted evidence provided by the appellant and her witnesses, who testified as to the share certificate, the ballot and letter dated 9th June 2010 from Kamiti Farmers Company Limited confirming that he had been allocated the suit property; (b) finding that DK had not been allocated the suit property for lack of a members’ register but finding that Mary Watiri Mirii was a shareholder entitled to four (4) plots including the suit property, in the absence of the same register; (c) failing to find that MWM lacked legal capacity to pass a valid title as she had purportedly initially transferred the suit property to the 1st respondent before eventually selling it to the 2nd respondent; (d) finding that there were leadership wrangles at Kamiti Farmers Company Limited invalidating the appellant’s late husband’s allocation of the suit property but failing to invalidate processing of MWM’s title during the same period of unrest; (e) finding that the 2nd respondent was an innocent purchaser for value despite there being a DCI restriction placed on the title due to complaints from the appellant; (f) failing to find that the appellant did not challenge the title issued to the 2nd respondent while ignoring the fact that the 2nd respondent itself was a key participant in the removal of the DCI restriction; (g) failing to consider the statement made by MWM in a related criminal case where she admitted not being the owner of the suit property and had no interest in it; (h) failing to properly evaluate the pleadings, evidence and submissions which, taken together, demonstrated that DK was the lawful owner of the suit property. 18.When this appeal came up for hearing before this Court, Mr. Philip Omoiti, assisted by Ms. Lauren Chebet were present for the appellant, while Mr. Andrew Mwango represented the 2nd respondent. There was no representation for the 1st and 3rd respondents. Mr. Omoiti and Mr. Mwango made oral highlights of their respective clients’ written submissions. 19.While highlighting the appellant’s written submissions, Mr. Omoiti contended that the 2nd respondent’s title was impeachable because the root was fraudulent. Counsel submitted that the guardians of MWM lacked the capacity to sign a sale agreement on 3rd June, 2015, based on the general order of 2014 that did not authorize the sale of property. Counsel argued that under section 27 of the Mental Health Act, managers cannot transfer property without special permission from the court. The appellant cited the cases of Kenya Airways Limited v Satwant Singh Flora [2013] eKLR and Alice Chemutai Too v Nickson Kipkurui & 2 Others [2015] eKLR for the submission that the sale agreement and the transfer of lease were void based on illegality, therefore the 2nd respondent could not be regarded as an innocent purchaser for value. 20.According to counsel, the trial Judge erred by relying on a purported court order dated 9th February 2015 to validate the sale. Mr. Omoiti asserted that no such order exists, as the actual order authorizing the sale was issued on 9th December 2015, six months after the sale agreement was executed. He maintained that the agreement was, therefore, a nullity for lack of capacity 21.Counsel discounted the finding that the 2nd respondent was a bona fide purchaser because they had notice of a DCI restriction on the title. Counsel submitted that MWM herself and her son had recorded statements before the DCI denying ownership of the suit property, stating she only owned four other plots. Counsel further cited the testimony of the Assistant Land Commissioner (PW4), who described the title as "fraudulently obtained" through manipulation. The appellant cited the decisions of this court in Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR and Alberta Mae Gacie v Attorney General & 4 Others [2006] eKLR for the submission that the 2nd respondent obtained a transfer from a fraudulent person who had no claim, legal or equitable interests in the suit property and could therefore not pass a good title. 22.Mr. Omoiti argued that the appellant produced a share certificate (No. xxx) and a ballot, whereas the respondents produced neither share certificate nor ballot linking MWM to the suit property, and cited the case of Munyu Maina vs Hiram Gathina Maina [2013] eKLR. 23.On his part, learned counsel Mr. Mwango argued that the appellant failed to discharge the burden of proof as there was no sale agreement for the original 1982 purchase. He challenged the credibility of the appellant’s witnesses, noting that other courts had found that Simon Njuguna (PW2) was not the legitimate chairman of Kamiti Farmers Company Limited. The 2nd respondent relied on decisions from the High Court in Gatei wa Nganda vs Kamiti Farmers Company Limited & 4 others [2013] eKLR and Gitukui vs Njuguna & 3 Others: Njoroge & 5 Others (interested parties) [2022] KEELC 14743 (KLR), which found that PW2 was neither the chairman nor a director of Kamiti Farmers Company Limited. 24.Counsel submitted that the 2nd respondent acted in good faith, paying Kshs 22 million only after the DCI investigations were concluded and the restriction lifted. 25.On procedural rectification, counsel submitted that the Land Registrar initially refused to register the transfer in favour of the 2nd respondent due to lack of specific authority. However, counsel argued that this was a procedural issue that was rectified when the vendor obtained the specific court order on 9th December 2015, after which the transfer was lawfully registered. 26.Mr. Mwango refuted the claim that the 2nd respondent evicted the appellant in 2010, submitting that the 2nd respondent company only purchased the suit property in 2015. He also argued that the police statements from MWM and her son were hearsay, as those individuals were never called as witnesses to be cross-examined. 27.In his rejoinder, Mr. Omoiti clarified that the purchase occurred in 1982, not 1978. Counsel reiterated that while the 2nd respondent claimed to have performed due diligence, a simple search in 2015 would have shown a DCI restriction, which should have prompted them to investigate the root of the title and the fraud allegations justifying that restriction. Counsel concluded by arguing that since the sale agreement was entered into without capacity, every subsequent act, including the transfer, was a nullity 28.We have carefully considered the record of appeal, the written submissions filed by the parties, the oral highlights by counsel, and the law. This being a first appeal from a decision of the trial court, the mandate of this Court is as explicitly set out in rule 31(1) of the Rules of this Court. It provides:“1)On any appeal from a decision of a superior court, acting in exercise of its original jurisdiction, the Court shall have power –a.To reappraise the evidence and to draw inferences of fact; andb.In its discretion and for sufficient reason, to take additional evidence or direct that additional evidence be taken by the trial court." 29.In exercising that mandate, there is a plethora of case law spelling out the parameters that guide the court. For instance, the often-cited case of Selle vs Associated Motor Boat Co. [1968] E.A 123, the Court of Appeal for Eastern Africa set out the principles to be considered when determining an appeal from the High Court as:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...” 30.With the foregoing principles in mind, we settle on the following as the main issues for determination, namely;i.Whether the appellant proved ownership of property known as Title number Nairobi /Block xxx/33, andii.Whether the 2nd respondent was a bona fide purchaser without notice. 31.On the first issue, it is not in dispute that the appellant’s and the respondent’s conflicting claims relate to the same property, namely, title number Nairobi/Block xxx/33 which was originally owned by Kamiti Farmers Company Limited. In summary, the appellant’s position which we have gleaned from the record is that her late husband, DKK, purchased the suit property from Kamiti Farmers Company Limited in 1982. She relied on Share Certificate No. xxx (issued in 2000) and Ballot No. xxx from Kamiti Farmers Company Limited. On the other hand, the 2nd respondent maintains that it purchased the suit property from the guardians of MWM, and a transfer was subsequently registered in its favour. 32.PW1, PW2, and PW3 tendered evidence to the effect that the suit property was allocated to DK, and PW3 went further in his testimony to state that he accompanied MWM to the local chief, where she refuted laying claim to the same property. PW4’s evidence before the trial court, however, perhaps gives clarity to some of the questions that had remained unanswered by both parties. That testimony offers a glimpse of how the parcel of land in question was seemingly allocated to two different parties by Kamiti Farmers Company Limited. 33.PW4’s testimony in the trial court in that regard was to the effect that;“The same plot had been allocated to Mary Watiri Mirii. At the time, there were issues between the directors and ex-directors of the company. Other people were given land other than the true owners…I got hold of the file and realized somebody, Rose Wanjiru Karanja, had collected the lease. I asked the company to explain who Rose Wanjiku was. I am not sure whether I registered an inhibition, but I kept the files under lock and key.” 34.The ELC Court‘s view on the question of ownership of land through a land buying company was expressed in the case of Lucia Wambui Kariuki & another v Grace Wanjiru & another [2022] KEELC 1533 (KLR) as follows:“…The instruments required to process the title therefore, would be the share certificate, the ballot, the payment receipts, and the clearance certificate by the company informing the Land Registrar that the holder of these documents is the rightful proprietor of the land. The ballot number must agree or correspond with the land reference number as shown on the Registry Index map, which denotes the land on the ground…” 35.We have considered the first issue based on the evidence on record. In our view, the appellant ought to have produced the aforementioned instruments in the name of DK required to process the title. Other than the share certificate and ballot, the other critical documents were never tendered by the appellant. 36.Additionally, we observe that the apparent double allocation and the rival claims of ownership is inescapably the fault of Kamiti Farmers Company Limited for allocating the same plot to DK and also to MWM. Since the said Kamiti Farmers Company Limited was not made a party to the trial court and the appellant did not seek any relief against them, we say no more on that aspect. We are mindful that parties are bound by their pleadings, and, therefore, this Court shall restrict itself to what is properly before us. 37.It suffices for us to accept that the investigations by DCI which exonerated MWM from culpability, hence the lifting of restriction, points towards a finding of absence of any taint to the root of the title that was held by MWM. This leaves us with the inevitable conclusion that the appellant did not succeed in faulting the root of MWM’s title. 38.On the second issue, whether the 2nd respondent was a bona fide purchaser without notice, it was pleaded for the 2nd respondent at paragraph 7 of its statement of defence that it procured the title to the suit property in good faith by following a legally sound process and had no notice of any fraudulent activities involving the suit property. 39.Black’s Law Dictionary, 8th Edition, defines “bona fide purchaser” as:“One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.” xxx.The onus is on the person who wishes to rely on such a defence to prove it, and the defence against the claims of any prior equitable owner, see (Weston Gitonga & 10 others v Peter Rugu Gikanga & another [2017] KECA 24 (KLR). 41.In the Ugandan case of Katende v. Haridar & Company Limited [2008] 2 E.A. 173 it was held:“For the purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, (he) must prove that:a.he holds a certificate of title;b.he purchased the property in good faith;c.he had no knowledge of the fraud;d.he purchased for valuable consideration;e.the vendors had apparent valid title;f.he purchased without notice of any fraud;g.he was not party to any fraud. 41.Section 26(1) of the Land Registration Act, 2012 provides that the sanctity and the indefeasibility of title to immovable property pertain only in the absence of fraud, misrepresentation, or other unlawful conduct in its acquisition. The provision specifies:“The certificate of title issued by the registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except;a.On the ground of fraud or misrepresentation to which the person is proved to be a party;b.Where the certificate of title has been acquired illegally, unprocedurally, or through a corrupt scheme.” 41.In Samuel Kamere v Lands Registrar, Kajiado [2015] KECA 644 (KLR), this Court established that to be recognized as a bona fide purchaser for value, a person must demonstrate three key elements: first, that they obtained a valid and legally recognized title; second, that they conducted adequate due diligence to verify the rightful owner from whom they acquired legitimate title; and third, that they paid genuine consideration for the property in question. 42.Similarly, in Dina Management Ltd v County Government of Mombasa & 5 Others, [2023] KESC 30 (KLR), the Supreme Court affirmed this Court’s decision in Munyu Maina vs Hiram Gathina Maina [2013] eKLR, where this Court stated:“…when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument that is under challenge, and the registered proprietor must go beyond the instrument and prove legality of how he acquired the title and show that the acquisition was legal, formal, and free from any encumbrances, including any and all interests which need not be noted on the register.” 41.The 2nd respondent maintains it is a bona fide purchaser for value who paid Kshs.22 million in good faith. The 2nd respondent asserts that it followed legal process and procedures by waiting until the DCI concluded its investigation culminating in the lifting of the restriction by the Land Registrar before finalizing the sale transaction with the guardians of MWM. 42.A central part of the appellant's case is that the guardians of MWM lacked the legal capacity to enter into a sale agreement with the 2nd respondent on June 3, 2015. The appellant argued that under the Mental Health Act, the guardians could not sell property without express permission from the court, which was not granted until December 9, 2015, six months after the sale agreement was signed. The 2nd respondent argued that this was a procedural irregularity that was rectified when the order was obtained in December 2015. 43.Counsel for the appellant correctly pointed out that the trial court erroneously held that the 2nd respondent obtained the express permission for the guardian to sell the property on 9th February 2015 instead of 9th December 2015. We, however, find that although there was an error in the date cited by the court, a court order was indeed granted to the guardians, paving way for the registration of the transfer which was effected after the lifting of the aforesaid restriction. 44.We therefore find, like the trial court did, that the Certificate of Title held by the 2nd respondent was issued lawfully and is valid. 45.In the result, we find and hold that this appeal lacks merit. The decision of the trial court is affirmed. The 2nd respondent shall have the costs of this appeal. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026D. K. MUSINGAUDGE OF APPEAL................................PAUL LILANJUDGE OF APPEALI certify that this is a true copy of the original SignedDEPUTY REGISTRARDR. J.O. OKELLOJUDGE OF APPEAL