https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4060

**REPUBLIC OF KENYA** **THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. 147 OF 2014** **KALUNDU MULWA NDAVI:::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF** **VERSUS** **SIMON MUTUA KIMANTHI::::::::::::::::::::::::::::::::::::::::::DEFENDANT** **JUDGEMENT** The Plaintiff avers that she is the absolute proprietor and registered owner of the parcel of land known as Syokisinga/Kyua Plot No. 688 situate within Machakos County. The Plaintiff borrowed some money from the Defendant, and following a vigorous demand for the repayment of the same, the Defendant opted to occupy a portion of the Plaintiff’s land without any permission from the family members, the said occupation is unlawful. Despite several pleas to vacate the premises, the Defendant has refused or and already he has started developing the same with a view to settle there by force. That the Defendant is taking advantage of the elderly Plaintiff and making all sorts of illegal tricks with a view to alienate or dispossess the Plaintiff her land. The Plaintiff is settled on the parcel of land with her sons and grandchildren. That the Plaintiff has a good case against the Defendant. The Plaintiff's praying for restraining orders and order to evict the Defendant from the parcel of land known as Syokisinga/Kyua/No. 688 and measuring 11.2Hectares. The Defendant entered the parcel of land fraudulently. The Plaintiff prays for Judgment against the Defendant for; 1. An order of eviction against the Defendant his servants or agents from the Plaintiffs piece of land Syokisinga/Kyua Plot No. 688. 2. A permanent injunction restraining the Defendant, his servants or agents from trespassing, dealing or otherwise interfering with the Plaintiff's possession and use of his land parcel Syokisinga/Kyua Plot No. 688 3. Mesne profits that have accrued. 4. Costs of the suit and interest thereof. The Defendant states that the parcel of land is also described as parcel No. Machakos/Syokisinga/688 a.k.a Kinyatta/Syokisinga /688 and a.k.a Yatta/Syokisinga/688 and he bought two portions of land to be excised therefrom from the Plaintiff personally vide written and duly executed sale agreements one measuring 1025ft by 135ft by 972ft by 600ft and the other measuring 186ft by 139ft by 166ft by 91ft, and he has occupied and utilized the same to date with his permanent home therein. The Defendant states that he only occupies the portions of land wherein he purchased with the Plaintiff occupying the rest of the land. The Defendant avers that no demand to vacate or notice of intention to sue was ever served upon him. The Defendant states that he is entitled to two portions of the subject suit land title number Machakos/Syokisinga/688 also described as parcel no. Syokisinga/Kyua Plot No. 688 a.k.a Kinyatta/Syokisinga/688 and a.k.a Yatta/Syokisinga/688 measuring one measuring 1025ft by 135ft by 972ft by 600ft and the other measuring 186ft by 139ft by 166ft by 91ft which the Plaintiff sold to him on diverse dates comprising 5/10/2008, 10/05/2012 and 7/2/2013. The Defendant avers that the agreed purchase price for the two portions was Kshs. 305,000/= and he fully paid it to the Plaintiff who acknowledged the same and executed a written sale agreement. The Defendant avers that he took immediate possession of the two portions and has to date permanently and massively developed the land to include his home wherein he resides and that he cultivates therein. The Defendant avers that he has been in peaceful and quiet possession of his portion of land until on or about the year 2014 when the plaintiff started making demands that the Defendant was a trespasser therein despite the admitted sale culminating in the present suit. The Defendant avers that he is entitled to the two portions of land he purchased from the Plaintiff having followed due legal procedure in acquisition of the same and the Plaintiff and her agents ought to be barred from trespassing on or selling the Defendant's purchased land. The Defendant further prays for a declaratory order that he is entitled to the two portions of the subject suit land title number Machakos/Syokisinga/688 also described as parcel Syokisinga/Kyua Plot No. 688 a.k.a Kinyatta/Syokisinga /688 and a.k.a Yatta/Syokisinga/688 measuring one measuring 1025ft by 135ft by 972ft by 600ft and the other measuring 186ft by 139ft by 166ft by 91ft. The Defendant prays that the Plaintiff’s suit against him be dismissed with costs and judgement be entered as per the counterclaim: - 1. A declaration that the Defendant is entitled to the purchased two portions of land measuring 1025ft by 135ft by 972ft by 600ft and the other measuring 186ft by 139ft by 166ft by 91ft to be excised from the main title Machakos/Syokisinga/688 also described as parcel no. Syokisinga/Kyua Plot No. 688 a.k.a/Syokisinga Kinyatta and Yatta/Syokisinga/688. 1. This Honourable court be pleased to compel the Plaintiff to excise and transfer to the Defendant the two portions of land 1025ft by 135ft by 972ft by 600ft and the other measuring 186ft by 139ft by 166ft by 91ft and to ensure the same is registered in the Defendant's name. 2. In the Alternative and without prejudice to the foregoing prayers should for any reason the same not be enforced, the plaintiff be ordered to refund a sum of Kshs. 5,085,000/= plus interest thereon till payment in full being the market value of the purchased land plus improvements thereon. 3. Costs of this suit and counter claim. This court has carefully considered the evidence and the submissions therein. The issues for determination in this matter are as follows; 1. *Whether or not the Defendant is the legal owner of a portion of the suit land?* 2. *What orders should the court issue?* The Land Registration Act is very clear on issues of ownership of land and Section 24(a) of the Land Registration Act provides as follows; *“Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto*.” Section 26 (1) of the Land Registration Act states as follows; *“The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and 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; or* b. *Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”* PW1 Kalondu Mulwa Ndavi testified that she sold the suit land to the Defendant but she is not sure if the full purchase price was paid. PW2 Felistus Mutono Ngei the Plaintiff’s granddaughter, she adopted the Plaintiff’s statement and stated that she was not aware of the sale agreement. She admits that there is an agreement between her mother, grandmother, the Defendant and his wife but she does not know if there was any exchange of money. She states that her mother took a loan in 2008 from Kenya Women Finance Trust and the Defendant repaid for her. That her mother gave a portion of the land as a repayment for the Kshs 30,000/= but never told her grandmother. The Defendant testified that he bought the said land from the Plaintiff vide written sale agreements dated 5th October 2008,10th May 2012 and 7th February 2013 for a sum of Kshs. 305,000/= which he paid in full and which he occupied and utilized the same to date. The same have the Plaintiff’s thumb print and is signed by Defendant, Kambua Ngei the Plaintiff’s daughter in law and Muthini Mutua the Defendant’s wife. The Assistant Chief signed and stamped the agreement dated 5th October 2008. DW3 Elizabeth Ngina Mbithi a valuer testified that she did a valuation of the suit land and produced her report DEx5 dated 3rd May 2018. The report shows the land purchased by the Defendant with the developments therein and valued it at Kshs 5,085,000/=. DW4 testified that he was the Assistant Chief of the said area at the material time and witnessed the agreement dated 5th October 2008. The Court of Appeal in Munyu Maina vs Hiram Gathiha Maina (2013) eKLR held that; *“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”* Section 26 of the Land Registration Act which guarantees the concept of indefeasibility of title does not extend to any property that has been found to have been unlawfully acquired. The Court of Appeal in Attorney General vs Torino Enterprises Limited (Civil Application 84 of 2012) (2022) KECA 78 (KLR) (4 February 2022) (Judgment) held that; *“We have considered the provisions of section 26 of the Land Registration Act (repealed) in light of the provisions of Article 40 of the Constitution which guarantees protection of right to property and it is our considered view that the concept of indefeasibility of title is subject to Article 40 (6) of the Constitution which states that: “The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.” Guided by the provisions of Article 40 (6) of the Constitution, we hold that the concept of indefeasibility or conclusive nature of title is inapplicable to the extent that title to the suit land was unlawfully acquired. See Denis Noel Mukhulo & Another v. Elizabeth Murungari & Another [2018] eKLR.”* I have perused the documents adduced as evidence by all parties. PEx1 produced by the Plaintiff is an official search confirms that the Plaintiff is the proprietor of the suit land Yatta/Syokisinga/688 measuring 11.26 HA. The Law of Contract Act clearly stipulates the requirements for a valid instrument to convey an interest in land. Section 3 (3) of the Law of Contract Act (Cap 23 of the Laws of Kenya) stipulates that; *No suit shall be brought upon a contract for the disposition of an interest in land unless—* 1. *the contract upon which the suit is founded—* 2. *is in writing;* 3. *is signed by all the parties thereto; and* 4. *the signature of each party signing has been attested by a witness who is present when the contract was signed by such party:* While Section 38 (1) of the Land Act states; *Other than as provided by this Act or by any other written law, no suit shall be brought 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; and* *(b) the signature of each party signing has been attested to by a witness who was present when the contract was signed by such party.* In Harris JA in Garvey vs Richards (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 binding as a contract unless it shows an intention by the parties to create a legal relationship. Generally, three 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.”* It is not in dispute that the land belongs to Plaintiff.The Defendant produced sale agreements thump printed and/or signed by all parties transferring portions of the suit plot on various dates. The Defendant produced documentary evidence that he took immediate possession of the two portions and has to date permanently and massively developed the land to include his home wherein he resides and cultivates the land. The Defendant avers that he has been in peaceful and quiet possession of his portion of land until on or about the year 2014 when the Plaintiff started making demands that the Defendant was a trespasser therein despite the admitted sale culminating in the present suit. PW2 Feistus Mutono Ngei the Plaintiff’s granddaughter in Machakos High Court Petition No. E009 of 2024 obtained guardian ad Litem of the Plaintiff about one year after the Plaintiff had testified. She testified that her mother took a loan and the Defendant paid for the same in exchange for the land. That her mother did so without the knowledge of other family members. The Plaintiff submitted that she was illiterate and could not comprehend the documents and her daughter in law had no legal, equitable or beneficial interest in the suit land. I find that the Plaintiff willingly sold the said suit land as per her testimony and evidence shows she was paid in full. There is no evidence that at the time of the sale her illiteracy and/ or mental capacity clouded her judgement. She affixed her thumb print on the agreements and this has not been controverted. I find that the Defendant took possession and developed the place by constructing permanent buildings. I find that the Defendant has been in peaceful and quiet possession of his portion of land from 2008 until on or about the year 2014. I find that the Plaintiff entered into the sale agreements willingly and the same a valid and enforceable. No evidence has been adduced by the Plaintiff to prove otherwise. Section 109 of the Evidence Act Cap 80 is clear that; *''The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.''* The well-known mantra *“he who asserts must prove.”* Was well pointed out by the Court of Appeal in Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi (2013) eKLR as follows; *“We have considered the rival submissions on this point and state that Section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the respondent. Section 107 of the Evidence Act provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.”* In James Muigai Thungu vs County Government of Trans-Nzoia & 2 others (2022) eKLR it was held that; *“It is now settled law that whosoever asserts the existence of a legal right or liability is vested with the burden to prove it except in so far as the law may expressly exempt him or her. Section 107 of the Evidence Act Chapter 80 Laws of Kenya succinctly states:* *Whosever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.* *Also, further, Section 108 of the Act states thus:* *The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.* *Again Section 109 of Act refers to the burden of proof of a particular fact. It states that:* *The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.* The valuation report produced by DW3 was not challenged and puts the value of the suit land and the developments at Kshs. 5,085,000/=. I find that the Plaintiff had failed to prove her case on a balance of probabilities and I dismiss it with costs. I find that the Defendant has proved his counter claim on a balance of probabilities and I grant the following orders; 1. A declaration that the Defendant is entitled to the purchased two portions of land measuring 1025ft by 135ft by 972ft by 600ft and the other measuring 186ft by 139ft by 166ft by 91ft to be excised from the main title Machakos/Syokisinga/688 also described as parcel no. Syokisinga/Kyua Plot No. 688 a.k.a Kinyatta/Syokisinga/688 and Yatta/Syokisinga/688. 2. The Plaintiff is to excise and transfer to the Defendant the two portions of land 1025ft by 135ft by 972ft by 600ft and the other measuring 186ft by 139ft by 166ft by 91ft and to ensure the same is registered in the Defendant's name within the next 90 days from the date of service of this order. 3. In default, the Plaintiff is ordered to refund a sum of Kshs. 5,085,000/= plus interest thereon till payment in full being the market value of the purchased land plus improvements thereon. 4. Costs of this suit and counter claim to be borne by the Plaintiff It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 1ST DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**