https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3696

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELCA NO E031 of 2023** **PETER GITAU KANGETHE - APPELANT** **VS** **KARAGITA [EA] LIMITED - 1ST RESPONDENT** **MARTIN NGARI KINYUA - 2ND RESPONDENT** **[ Being an appeal from the judgment and order of Hon I N Barasa PM issued in Nairobi in CMELC NO E1515 of 2020 (OS) delivered on 2/10/2023]** **JUDGEMENT** **Introduction and Pleadings** 1. Vide an Originating summons filed on 5/10/2020, the Plaintiff/Appellant moved the Court under Order 37 Rule 3 of the Civil Procedure Rules and sought the determination of the following questions; 1. Whether Peter Gitau Kangethe is the registered member of the 1st Defendant, through whom he was allocated land vide Plot No FAQ 289/1682. 2. Whether, pursuant to the said membership, the plaintiff was issued with a share certificate No 1107 by the 1st Defendant, and whether he is therefore the original rightful and legal allottee of the said plot, which was later registered as land reference No Nairobi/Block 115/129 3. Whether the plaintiff ever relinquished, transferred shares or surrendered his shares with the 1st defendant to the 1st and 2nd defendant 4. Whether the 1st defendant had any right and or power to sell or issue land LR No Nbi/Block 115/129 – Society plot No FA 289/1682 to the 2nd defendant 5. Whether the title is used to the 1st defendant in respect of the suit land is valid is valid and a genuine title 6. Whether the 1st and 2nd defendant committed fraud and misrepresentation by colluding to defraud the plaintiff and therefore the title issued from the said fraud is null and void on account t of fraud. 7. Whether the plaintiff should be declared as the rightful owner of the land 8. Whether the title issued to the 2nd defendant should be revoked for fraud and misrepresentation and the title issued to the Plaintiff. 9. Whether the order of inunction should be issued to safeguard the rights and interests of the plaintiff on the land 10. Whether the defendants should pay damages for breach of contract, trespass, and interfering with private property, and also pay the costs of the suit. 2. The Plaintiff stated that he is a bona fide member of the 1st Defendant, as evidenced by allotment and a share certificate, thereby establishing his claim to the suit land. Nevertheless, he avers that the 1st Defendant has registered the 2nd Defendant as a member, and a title has been issued in the 2nd Defendant's name. This position was corroborated by a title search and an on-site inspection of the suit land, during which the Plaintiff observed that the 2nd Defendant had fenced it. A number of documents have been annexed to support this averment. 3. The 1st Defendant opposed the suit on the basis that it fails to establish any cause of action against it, as the records in its possession show that the land is registered in the name of the 2nd Defendant, not the 1st Defendant. Although the plaintiff was initially a member, he failed to pay Kshs 1730/- and Kshs 4000/- to the 1st Defendant for subdivision and water, respectively. As a result, he was not allocated the suit land. The arrears are still owing; hence he was not cleared for plot allocation. 4. He added that the 2nd defendant purchased the suit land from a member of the 1st defendant who had been allocated the land after the plaintiff failed to clear the arrears. The 2nd defendant was given possession of the land. He added that the plaintiff is a stranger to the land and therefore has no locus standi to file suit. 5. The 2nd defended filed grounds of opposition on the grounds that the suit is bad in law; the applicant has no locus to mount the suit, and sought its dismissal. 6. He stated that he acquired the suit land from Regina Wairimu Wainaina, who held a title issued to her on 25/11/2015. He refuted that title No. 115/129 is not plot No. FA 289/1682. He contended that he is a bona fide purchaser and denied the Plaintiff's accusations of fraud. 7. In a further reply affidavit, the Plaintiff averred that he had cleared all payments in respect of the suit land, thereby warranting the issuance of the allotment letter by the 1st Defendant. He further averred that he had acquired shares in the suit land, thereby entitling him to it. He denied any additional charges for the issuance of the allotment letter and contended that, even if such charges existed, the 1st Defendant had made no demand on him to pay. He further averred that his property was transferred to the 2nd Defendant without a resolution of the members at an Annual General Meeting, as required by law, and in an illegal and fraudulent manner. 8. Upon determining the suit, the trial Court in its judgment dated 2/10/23 dismissed the suit on the grounds that; ”I have carefully evaluated the evidence tendered in this suit by the Plaintiff and the 1st and 2nd Defendants. I have also considered the parties’ submissions and the authorities relied on in support of those submissions. The originating summons was brought under the provisions of Order 37 rule 3. This provision provides that a vendor or purchaser of immovable property, or their respective representatives, may at any time take out an originating summons returnable before the Judge sitting in chambers, for the determination of any question that may arise in respect of any requisitions or objections; or any claim for compensation, or any other question arising out of or connected with the contract of sale, not being a question affecting the existence or validity of the contract. In his testimony, the Plaintiff stated that he was allocated the suit property sometime in 1982 by the 1st Defendant, by virtue of being a shareholder of the 1st Defendant. The Plaintiff did not acquire the suit property as a purchaser. I am of the considered view that the Plaintiff did not invoke the jurisdiction of the Court correctly. Secondly, much has been made of the procedure for allocating plots within land-buying companies. The Plaintiff contended that there was no known procedure for the allocation of plots by the 1st Defendant, save for the endorsement of the allocated plot number on the payment receipts. The Plaintiff insisted that the endorsement of the plot number on his payment receipts amounted to the allocation of the plot that forms the basis of the suit. However, in cross-examining Ms. Regina Wairimu, the Plaintiff’s advocate called for the ballot of the plot and the register of balloted plots. In doing so, the Plaintiff’s advocate inadvertently acknowledged that the process for owning a plot within the 1st Defendant, as provided by the 1st Defendant, was the correct process; that before a plot was allocated to an individual (or other body), he was required to be a shareholder holding a share certificate, make payment, ballot for available plots, be allocated a plot, be issued with a plot certificate, thereafter receive an allotment letter, and have the title processed. Though the Plaintiff provided payment receipts, which the 1st Defendant acknowledged, he did not prove that he had gone through the entire process of finally owning the plot the subject of the suit. The Plaintiff did not produce the plot certificate. The Plaintiff stated that he was given an allotment letter for the plot but left it at the 1st Defendant’s offices and never went back to collect it. The Plaintiff did not produce a copy of the said allotment letter. Thirdly, on the evidence before the Court, I am of the considered opinion that the Plaintiff did not prove collusion and fraud between the 1st and 2nd Defendants. As I have stated above, because the Plaintiff failed to invoke the Court’s jurisdiction properly, the Originating Summons fails with costs to the Defendants.” 1. Consequently, the Court dismissed the suit with costs to the defendants. 2. Aggrieved by the said judgment, the Appellant has proffered this appeal on the grounds set out as follows; 3. That the Learned Trial Magistrate erred in Law and fact and completely failed to appropriately appraise the evidence tendered in Court thereby reaching wrong findings and Judgment in the case. 4. That the Learned Trial Magistrate erred in Law and Fact and totally failed to appreciate both written Law and Judge made Law and findings in precedents of the Court appertaining to the case facts and thereby arrived at a wrong decision and Judgment. 5. The Trial Magistrate erred in Law and Fact in failing to appreciate a Cardinal Rule of Law that one without title to property cannot grant title to any other person. 6. That Trial Magistrate erred in Law and Fact in learning unnecessarily upon technicalities without due consideration of substance and basic Principles of right and wrongs and the duty of Court to remedy wrongs committed against innocent Parties. 7. Consequently, the Appellant sought orders as follows; 1. The appeal be allowed, the trial Court's judgment be set aside, and in its place, judgment be entered for the plaintiff as prayed for in the originating summons. 2. Costs of the suit **The written submissions** 1. On whether the learned Trial Court erred in dismissing the suit on the basis that it had no jurisdiction to entertain it, the Appellant submitted that the suit, as filed, was properly before the Court and that the error in dismissing it on this ground is unfounded. The 1st Respondent held the land in trust for its members; as a member of the company, the Appellant was entitled to the land and was a legitimate beneficiary of the 1st Respondent; therefore, the filing of an originating summons was proper. By finding that the Appellant did not come to Court as a purchaser, the learned trial Court erred and failed to consider the substantive facts of the case. 2. Did the learned magistrate misapply the law? The purpose of the suit was to determine who the bona fide purchaser was. The Court has jurisdiction under the Magistrates' Court Act to determine questions of land ownership brought by a vendor or purchaser of land, and, by extension, by one who has paid for shares entitling him to the land. The predominant issue before the Court was therefore the determination of who the bona fide owner of the land was. 3. The Appellant further submitted that the Court erred by relying on technicalities, contrary to the provisions of Art 159 (2) (d) of the Constitution, which frowns on technicalities in determining disputes, especially those surrounding land. 4. In relying on the case of Wachira Karani Vs Bildad Wachira [2016] EKLR, the Appellant submitted that it is a fundamental right of a litigant to be heard on his dispute, and as such, the principles of substantive justice required the Court to determine the matter on its merits. 5. Who is the bona fide purchaser of the land? The Appellant stated that, based on the evidence on record, the Appellant is the bona fide owner of the land. The 1st Respondent's director stated that the land was allocated to Regina Wairimu Wainaina, who sold it to the 2nd Respondent. The 2nd Respondent, on the other hand, insists that he purchased the land from the said Regina and therefore acquired a clean title. 6. The 1st Respondent submitted that the Plaintiff has no letter of allotment because he failed to clear certain payments that would have entitled him to the allocated land. According to its records, the land belongs to the 2nd Respondent. A share is indicative only of membership, not land ownership. The 2nd Respondent purchased the land from a member of the 1st Respondent who had been allocated the suit land and therefore holds a good title. It was also submitted that the Plaintiff failed to prove that plot No. FA 289/1682 is the same as the suit land. 7. On the question of fraud, the 1st Respondent submitted that the Appellant has not proven fraud. It was further submitted that the Appellant approached the Court through an improper method, being the originating summons; therefore, the Court had no jurisdiction to entertain the matter. 8. The 2nd Respondent, on the other hand, submitted that the originating summons was incompetent in a claim for land, which required allegations to be tested through evidence. 9. Further, that the Appellant failed to prove fraud and that generally the Appellant's case was not proven, and the learned trial magistrate did not err in dismissing the claim. **Analysis and determination** 1. Having considered the grounds of appeal, the entire record of appeal, the written submissions, and all the material placed before the Court, the issues for determination are as follows. 1. Whether the suit was incompetent and or whether the learned magistrate had jurisdiction to entertain the dispute. 2. Whether the current suit land is similar to plot No FA 286/1682 3. Whether the Appellant has proven entitlement to the suit land 4. Whether the 2nd Respondent and by extension Regina Wainaina were bonafide purchasers for value. 5. Whether the Appellant is entitled to the reliefs sought. 6. Costs of the appeal. 2. Conscious of my duty as the first Appellate Court in this matter, I have to reconsider the decision appealed against, assess it and make my own conclusions as was stated by the Court of Appeal in Paramount Bank Limited vs. First National Bank Limited & 2 Others (Civil Appeal 468 of 2018) [2023] KECA 1424 (KLR) where the Court held as follows; “A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. A first Appellate Court is the final Court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. While considering the scope of section 78 of the Civil Procedure Act, a first Appellate Court can appreciate the entire evidence and come to a different conclusion.” **Whether the suit was incompetent and or whether the learned magistrate had jurisdiction to entertain the dispute.** 1. The trial Court and the Respondents have challenged the suits as being improper, as they were initiated through an originating summons. The suit is brought under Order 37 Rule 3 of the Civil Procedure Rules, which states as follows; “A vendor or purchaser of immovable property or their representatives respectively may, at any time or times, take out an originating summons returnable before the judge sitting in chambers, for the determination of any question which may arise in respect of any requisitions or objections, or any claim for compensation; or any other question arising out of or connected with the contract of sale (not being a question affecting the existence or validity of the contract).” 1. The gist of the Appellant's claim was the recovery of land from the 1st Respondent, who held it in trust for him following the process of allotment and pending the issuance of title. 2. It is to be noted that the summons was heard through viva voce evidence. The parties were given the opportunity to lead evidence and to present witnesses, who were cross-examined equally. That being the case, the Court is satisfied that the right to be heard was observed and that the issue, if any, was not raised in the trial Court. I find no fault with the suit in respect of the Court's jurisdiction and/or competence. Nothing, therefore, turns on this issue. **Whether the current suit land is similar to plot No FA 286/1682** 1. It was the 1st Appellant's case that Plot No FA289/1682 is distinct from LR No NBI/BLOCK 115/129. The Appellant stated that he was allocated shares vide share certificate No 1107 by the 1st Respondent. The Court has perused the same, on which Plot No FA 289/1682 is indicated at the top of the said share certificate, as well as the receipts for various payments issued by the 1st Respondent to the Appellant in respect of the said plot. It is unfortunate that the 1st Respondent elected not to adduce the members' register in its custody to show the details of the suit land. That said, the absence of the members' register, which is ordinarily in the custody of the 1st Respondent, cannot be held against the Appellant. In any event, the 1st Respondent has admitted in evidence that the said plot was initially allocated to the Plaintiff before being repossessed and reallocated to one Regina Wairimu Wainaina, who sold it to the 2nd Respondent. It cannot, therefore, be allowed to approbate and reprobate in equal measure. **Whether the Appellant has proven entitlement to the suit land** 1. The burden of proof in civil cases is on a balance of probabilities. The burden of proof is anchored in statute. **Sections 107** **– 109** of the Evidence Act provide; **107. Burden of proof** (1) 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. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. **108. Incidence of burden** 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. **109. Proof of particular fact** 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. 1. In the case of **Daudi Kiptugen Vs Commissioner of Lands & 4 others (2015) EKLR** the Court stated as follows; “.. the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process the title itself cannot be a good title. If this were not the position then all one would need to do is to manufacture a lease or a certificate of title at a backyard or corner of a dingy street and by virtue thereof claim to be the rightful proprietor of the land indicated.” 1. From the above provisions, it is clear that the burden of proof rests with he who claims to prove his case to the standard of a balance of probabilities. 2. This is the crux of the dispute between the parties. It is not in dispute that the suit land traces its roots to the 1st Respondent, a land buying company that acquired inter alia a large parcel of land, namely LR No 289/1682 in the early 1970s -1980s for purposes of facilitating its membership to own land at the outskirts of the city of Nairobi. 3. The acquisition system encompasses the procurement of shares as a company member, payment for shares and additional ancillary services like the provision of water, conduct of balloting for land allocation, issuance of allotment letters, taking possession and the processing of the title. This system is adopted by various land-buying companies, with minor variations in their internal procedures. 4. Considering the aforementioned, I will now examine the relevant provisions of the law, documentary and oral evidence presented by the parties to aid in the determination of this issue. 5. The Appellant, aged about 83 years, then led unchallenged evidence that he had been a member of the 1st Respondent, a land-buying company, since 1976. According to the rules and regulations of the project [land acquisition], the project [purchase of land by members] was open to any shareholder of the 1st Respondent who owned at least 10 fully paid shares at the time of the application. All project costs and legal fees were to be borne by the applicants for the land. The applicant was also to adhere to the county council by-laws, and the building plans were to be approved by the council. There is undisputed evidence in the form of an application form that the Appellant applied for 10 shares, and the form indicates that the plot is No 1682. 6. A share certificate No. 1107 for Plot No. FA 289/1682, for 10 shares, was issued to the Appellant on 2/5/1980 for Kshs 200/-. The certificate is signed by the then directors of the 1st Respondent. A receipt dated 15/6/1981 for payment of survey and water was issued to the Appellant. He also paid for the parcel number or ballot on 9/6/1983 [see receipt No. 289 from the 1st Respondent]. Another payment of Kshs 2600/- for subdivision was received on 9/6/1983. Later, the City County assessed the plot for rating purposes at Kshs 30,500/-. In the said rating demand, it is clear that the plot has been surveyed as Nbi/Block 115/129, further affirming the Court's holding that the plot number and the title number are one and the same. It is not disputed that the Appellant paid for the shares at Kshs 200/- [see the receipt dated 9/6/83 issued by the 1st Respondent]. The 10 shares entitled the Appellant to Plot No. FA289/1682. This plot number appears in all the receipts, including the share certificate issued to the Appellant. 7. The Court is therefore satisfied that the Appellant was a member of the 1st Respondent, paid for the shares, and was issued with a share certificate for 10 shares, which entitled him to plot No FA 289/1286 and, later, upon survey, to title No NBI/BLOCK 115/129 [the suit land herein]. 8. The Appellant presented evidence that he took possession of the land while awaiting the title's issuance. However, during one of his visits, he observed that the 2nd defendant had entered the land and constructed a fence. He promptly went to the land office to conduct a search and was shocked to discover that the 1st defendant had transferred the property to the 2nd defendant without his knowledge or consent. He averred that the defendants engaged in fraud and misrepresentation in the transaction, thereby depriving him of the disputed land. 9. The 1st Respondent has asserted that the Appellant failed to pay subdivision and water charges owed to the 1st Respondent. The Court has seen all the receipts for payment of water, subdivision, and survey, and these documents have not been challenged by the 1st Respondent. In any event, these payments are payable by the landowner for the services to the land in accordance with the rules and regulations of the 1st Respondent. These monies were not owed to the 1st Respondent to warrant repossession of the land. In any event, the principles of natural justice required that, if indeed payments were outstanding, the Appellant should have been heard on the matter before any adverse action was taken on his land. 10. Further, the 1st Respondent has not shown that it had the authority to repossess the land from a member. There were no minutes of the annual general meeting authorising repossession. The Court found no basis for repossession, as the Appellant had made all the requisite payments. In any event, any outstanding payments for services did not entitle the 1st Respondent to the repossession of the land. There is no evidence that the 1st Respondent demanded payment and that the Appellant refused to pay. The 1st Respondent’s purported repossession of land already sold to the Appellant was therefore fraudulent, illegal, and unjustifiable. 11. Alphonse Mukwengu Musyimi testified that, due to the Appellant's non-payment for services, he was not allocated a plot. In my view, this is a fallacy, as Plot No FA 129/1862 was attributed to the Appellant in all the documents from the 1st Respondent as early as the 1980s. See the application form on record. 12. The witness stated that he became a director of the 1st Respondent in 2011, and therefore his testimony amounted to hearsay since he was not in the company at the time the repossession took place. Although he stated that the land was sold to Regina, he did not present any supporting documents. 13. Furthermore, Regina Wainaina testified that she was informed that the land belonged to a defaulting member of the 1st Respondent. She admitted that she was unaware of the defaulting member's identity and had not been shown the members' register. She stated that she purchased the land for Kshs 4 million and that the purchase price was deposited into the account of one of the 1st Respondent's directors, namely Kenio. Nevertheless, she failed to provide any documentary evidence supporting her testimony, such as a sale agreement, proof of payment for shares, or payment for the land. In my humble view, her superficial evidence does not substantiate her claim as a bona fide purchaser for value. She acknowledged that she did not conduct any due diligence and did not make any payment to the 1st Respondent for the land. It would appear, from her own evidence, that, she fell prey to the tricks of a supposed director of the 1st Respondent, namely Kenio, and as a result of which she acquired no interest, title, or beneficial stake in the subject land. 14. The Court has made a finding that the Appellant acquired shares in 1983 and therefore by 2015 or thereabouts, when the 1st Respondent purported to sell the land to a stranger by the name of Regina Wairimu Wainaina, the 1st Respondent had no interest, title and or beneficial ownership in the suit land having conveyed the same to the Appellant, about 3 decades earlier. 15. Martin Ngari Kinyua testified that he purchased the land from Regina under a sale agreement dated 1/3/2018 for Kshs 6.6 Million, after a search disclosed that the land was registered in Regina’s name. He claimed that he checked the records at the 1st Respondent’s office and confirmed the land was in Regina’s name. However, he failed to produce the members’ register showing that Regina was a member, and, in my view, there was no record in Regina’s name; he fell completely into the trap set by Regina and the 1st Respondent, aided by a Mr Kenio. 16. The Court is satisfied based on the evidence analyzed that the appellant has proven title to the suit land. **Whether the 2nd Respondent and by extension Regina Wainaina were bonafide purchasers for value?** 1. Were Regina and the 2nd Respondent bona fide purchasers for value without notice?I rely on the case of Eunice Grace Njambi Kamall & Another v. The Hon. Attorney General and 5 others, Civil Suit No. 976 of 2012, where the Court cited the case of Fletcher v. Peck 10 U.S 87 (1810) to illustrate how other jurisdictions have handled the issue of sanctity of title and the plight of innocent third parties. In the said Fletcher Vs. Peck case (Supra) Marshall J had this to say:- "If a suit be brought to set aside a conveyance obtained by fraud and the fraud be clearly proved, the conveyance will be set aside, as between the parties; but the rights of third persons who are purchasers without notice, for a valuable consideration cannot be disregarded. Titles, which according to every legal test, are perfect, are acquired with that confidence which is inspired by the opinion that the purchaser is safe. If there be, any concealed defect arising from the conduct of those who had held the property long before he acquired it of which he had no notice that concealed defect cannot be set up against him. 1. The definition of a bonafide purchaser for value without notice was given in the case of Lawrence Mukiri v. Attorney General & 4 Others [2013] eKLR thus: “... a bona fide purchaser for value is 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 the following: 1. He holds a certificate of Title. 2. He purchased the Property in good faith; 3. He had no knowledge of the fraud; 4. The vendors had apparent valid title; 5. He purchased without notice of any fraud; 6. He was not party to any fraud. A bona fide purchaser of a legal estate, without notice, has an absolute, unqualified, and answerable defence against the claim of any prior equitable owner.” 1. Based on the principles set out in the above case, it is clear that neither Regina nor the 2nd Respondent was a bona fide purchaser without notice, for the reasons that they exhibited no documents to support their acquisition, including agreements and proof of payment for the land/shares; they carried out no due diligence; they acquired no apparent title; and the 1st Respondent held no title and/or interest to convey to the duo, and consequently acquired nothing from the 1st Respondent. 2. The Court cannot agree more with the decision of the Court of Appeal in Arthi Highway Developers Limited vs West End Butchery Limited & others (2013) where the Court stated as follows; “For a purchaser who claims that due diligence was carried out at all stages, we find it difficult to believe that there was no explanation sought from the Registrar of Titles about the mysterious disappearance of the original Deed file from the strongroom of the land registry. It was common knowledge, and well documented at the time, that the land market in Kenya was a minefield and only a foolhardy investor would purchase land with the alacrity of a potato dealer in Wakulima market. Perhaps the provisions of the new Constitution 2010 and the Land Registration Act, 2012, will have a positive impact on land investors in future. In this matter, Arthi was prepared to seek and accept a Deed of indemnity from the two fraudsters to have the transfer registered urgently. **[emphasis is mine].”** 1. For the reasons given above, the Court is not satisfied that neither the 2nd Respondent nor Regina Wainaina were bonafide purchasers. 2. Before I conclude, I would like to discuss the concept of constructive trust and its applicability to the facts of this case. 3. A constructive trust can be either express or implied. A constructive trust is an equitable doctrine imposed by the Courts to benefit a person who has been wrongfully deprived, requiring a person who would be unjustly enriched to transfer the property to the intended party. The concept of a remedial constructive trust grants the Courts discretion to do justice tailored to the facts of the case where the rules are strict. 4. Specific performance, on the other hand, is an equitable remedy grounded in the maxim that equity regards as done that which ought to be done. It is granted at the Court's discretion, and the basic rule is that specific performance will not be granted where the common-law remedy, such as damages, would be adequate to put the Plaintiff in the position he would have occupied but for the breach. The jurisdiction to grant specific performance is based on the existence of a valid, enforceable contract. It will not be ordered if the contract is defective, mistaken, or illegal, rendering it invalid or unenforceable. Even when a contract is valid and enforceable, specific performance will not be ordered where an adequate alternative remedy exists. Specific performance may still be refused on the ground of undue influence or where it would cause severe hardship to the opposite party. 5. In the **Kitilit v Kibet (Civil Appeal 51 of 2015) [2018] KECA 573** the Appellate Court stated that the Constitution under Article 10 (2) (b) has elevated equity as a principle of justice to a constitutional principle. Under Art 10(2) equity is now a national value enshrined in the constitution. 6. Courts of equity protect agreements to purchase land or interests in land by ordering specific performance when the common law remedy of damages is inadequate. Hence, equity treats the agreement for all purposes as if it were done. This is embodied in the equitable maxim that "equity regards as done what should have been done". This maxim means that when individuals are required, by their agreements or by law, to perform some act of legal significance, equity will regard that act as having been done as it ought to have been done, even before it has actually happened. This makes possible the legal phenomenon of equitable conversion and paves the way for the equitable remedy of specific performance. 7. In this case, the Court finds that, having accepted the consideration for the land, the 1st Respondent had no interest left to purport to sell to Regina and/or the 2nd Respondent. Equity frowns on unjust enrichment. The 1st Respondent cannot have both the money and the land, as this would constitute unjust enrichment. On this basis, inter alia, the Court will make suitable orders to restore the land to the Appellant. **Whether the Appellant is entitled to the reliefs sought.** 1. Section 26 of the Land Registration Act states as follows; “26. (1) 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; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 1. The Court has found the Respondents were active participants of the fraud and corrupt scheme in depriving the Appellant of his land and therefore mandated by the provisions of Section 80 of the Land Registration Act which state as follows; “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.” The title of the 2nd Respondent cannot, in the circumstances of this case, remain intact. The Court will make the appropriate orders in the end. 1. In conclusion, the Court finds that the Appellant acquired a good title in the suit land contrary to the unproven contestations of the Respondents. 2. **Final orders for disposal** 3. In the end, I allow the appeal in its entirety. 4. The appeal is hereby allowed, and the trial Court's judgment is hereby set aside, and in its place, judgment is entered for the plaintiff as prayed for in the originating summons. 5. The costs shall be in favor of the Appellant 6. Orders accordingly **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered Online in the presence of:** 1. Mr Wanyangu HB for Mr Namada for the Appellant 2. N/A for the Respondents 3. C/A – Ms Kendi/Ms Yvette Njoroge