https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4550

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ISIOLO** **APPEAL E028 OF 2025** ESTHER MICHUKI KANGURU…………………APPELLANT/APPLICANT VERSUS NANCY NKUENE ………………………………..………..1ST RESPONDENT MARTIN LUBEKE………………………………..……….2ND RESPONDENT ***[Being an appeal from the judgment of the Chief Magistrate’s Court at Isiolo – Hon. L K Mutia – C M delivered on 07.10.2025 in Isiolo CMELC Case NO. 17 of 2020]*** **JUDGMENT** 1. The subject appeal brings to fore the question as pertains to the legal import and implications of [sic] an illegality that colours a transaction/contract entered into between parties, one of whom, was devoid of the requisite legal capacity to transact. The question that does and often arise, is whether such kind of a transaction can birth a legitimate cause; legal right; or interests [if any] capable of being vindicated by a court of law. 2. It is imperative to underscore that the Court of Appeal in the case of **Kenya Airways Limited v Flora [2013] KECA 545 (KLR),** highlighted the obtaining position of the law. The court stated as hereunder: **“38. Ex turpi causa non oritur actio. This old and well known legal maxim is founded in good sense, and expresses a clear and well recognized legal principle, which is not confined to indictable offences. No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality the court ought not to assist him.” See also the case of Mapis Investment [K] LTD v Kenya Railways Corporation, [2006] eKLR.** **39. Noormohamed, [1984] KLR page 58 where the Court held:“No court ought to enforce an illegal contract where the illegality is brought to its notice and if the person invoking the aid of the court is himself implicated in the illegality.”** 1. Before venturing to interrogate and unravel the factual controversy and by extension, the issues in dispute, it is important to provide the background facts underpinning the dispute. Suffice it to state that the 1st respondent [who was the plaintiff in the lower court] approached the court *vide* Plaint dated the 16.04.2016 claiming that same [First Respondent] is the lawful and registered owner of plot number 190 Kula Mawe – Isiolo [hereinafter referred to as the suit property]. 2. Additionally, the 1st respondent posited that same entered into a sale agreement with Stephen Murithi Ngaruthi [vendor] over and in respect of the suit property, which at the material point in time was indicated to belong to one John Kithinji [deceased]. Besides, it was posited that the vendor thereafter made an application to the County Council of Isiolo to facilitate the transfer of the suit property to the 1st respondent. 3. It was the further contention by the 1st respondent that following the entry into and execution of the sale agreement entered into on the 27.07.2007, same was granted permission to enter upon and take possession of the suit property. Nevertheless, the 1st respondent posited that her possession was interfered with by the 2nd respondent and thus same [1st respondent] was constrained to and lodged a complaint with the police. However, the 1st respondent averred that the police failed to take action and as a result, the 1st respondent was obliged to and filed the suit in the lower court, namely Isiolo CMCELC No. 17 of 2016. 4. The 2nd respondent [who was the defendant in the lower court] neither entered appearance nor filed any statement of defence. In addition, the 2nd respondent did not participate in the proceedings before the lower court. 5. Other than the foregoing, the appellant herein sought and obtained leave to be joined as an interested party in the lower court. Following the grant of leave by the lower court, the appellant filed a statement of defence dated the 13.07.2020. Furthermore, the appellant also mounted a counter claim and wherein the appellant sought inter alia; an order of permanent injunction restraining the 1st respondent from interfering with her rights to and in respect of the suit property. 6. The suit in the lower court was heard disposed of *vide* Judgment rendered on the 07.10.2025 and wherein the trial court [Hon. L Mutai – Chief Magistrate] found and held that the 1st respondent [plaintiff] had established/proved her claim to the suit property. On the contrary the trial court held that the appellant [interested party] had not proven her rights to the suit property. Moreover, the trial court posited that the documentation that were relied upon by the appellant were doubtful and devoid of legal basis to warrant a finding in her favour. In addition, the trail court also found that the appellant was untruthful. 7. Premised on the foregoing findings, the learned trial magistrate dismissed the appellant’s counter claim, while on the other hand, the trial court entered Judgment in favour of the 1st respondent. For clarity, the trial court declared that the 1st respondent is entitled to the suit property. 8. Dissatisfied with the Judgment and the consequential decree, the appellant has now approached this court *vide* memorandum of appeal dated the 13.10.2025 and wherein the appellant has raised various grounds. The grounds underpinning the appeal are: 9. ***That the hon. Trial Magistrate erred in law and in fact by reaching to a conclusion that the 1st Respondent was a bona fide purchased despite evidence of glaring legal issues pertaining to the suit property.*** 10. ***That the hon. Trial Magistrate erred in law and in fact by upholding an agreement adduced in the 1st respondent where parties had no legal capacity to enter into the same ab initio.*** 11. ***That the hon. Trial magistrate erred in law and fact by upholding an agreement that was void ab initio.*** 12. ***That the hon. Trial magistrate erred in law and fact by discrediting both oral and documentary evidence adduced by the appellant.*** 13. ***That the honorable trial magistrate erred in law and fact by failing to appreciate that the appellant right to claim to the suit land was affirmed by the then Defunct County Council of Isiolo trough County council meeting held on or about the year 1997.*** 14. ***That the Honourable trial magistrate erred in law and in fact apportioning blame upon the appellant regarding a rent payment reciept dated 20.10.1999 which bore the name John Kithinji [now deceased].*** 15. ***That the judgment/decree of the honorable trial magistrate is bad in law and fact.*** 16. The appeal came up for directions on the 25.05.2026, whereupon learned counsel for the appellant intimated to the court that same had filed and served the record of appeal. In addition, counsel posited that the record of appeal was complete. To this end, learned counsel for the appellant invited the court to issue directions pertaining to and concerning the disposal of the appeal. Moreover, learned counsel proposed to canvass the appeal by way of written submissions. 17. With the concurrence of learned counsel for the 1st respondent, albeit in the absence of the 2nd respondent, the court proceeded to and issued directions. The directions were: The record of appeal is complete; the appeal shall be canvassed by way of written submissions to be filed and exchanged by the parties; the appellant shall file and serve written submissions within 14 days from the date of the directions; the respondents shall file and serve written submissions within 14 days from the date of service; and the appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 18. The Appellant filed two [2] sets of written submissions and wherein the appellant has raised four [4] key issues. The issues are: The learned trial Magistrate disregarded the legal import and tenor of **Sections 45 and 82 of the Law of Succession Act, Chapter 160 Laws of Kenya**; the learned trial magistrate declared the 1st respondent as the owner of the suit property on the basis of illegal contract; the learned trial magistrate, misapprehended the legal import and tenor of the doctrine of the bona fide purchaser for value; and the learned trial magistrate failed to consider and take into account the totality of the evidence tendered by the appellant. 19. Learned counsel for the appellant, has primarily contended that the Judgment of the learned trial magistrate is anchored on the basis of the sale agreement that was entered into between the 1st respondent and one Stephen Murithii Ngaruthi in respect of the suit property, which admittedly belonged to John Kithinji [deceased]. Moreover, it was posited that by the time the vendor was entering into and executing the said sale agreement, the estate of John Kithinji [deceased] had not been succeeded. To this end, it was posited that the impugned sale agreement was incapable of the birthing any legal rights to and in favour of the 1st respondent. 20. Additionally, it was submitted that the sale agreement between the 1st respondent and Stephen Murithi Ngaruthi, in respect of the suit property, could not anchor the plea of bona fide purchaser for value. In this regard, it was submitted that the judgment of the lower court was vitiated by fundamental errors of law and thus same ought to be set aside. 21. Learned counsel for the appellant thereafter, proceeded to and cited various decisions. The decisions are: **Trouistik Union International & another v Jane Mbeyu & another [1993] KECA 89 (KLR);** **Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & another [1987] KEHC 1 (KLR) ;** **Re Estate of Mboroki M’Maranya [deceased**]; **Arthi Highway Developers Limited versus West End Butchery Limited and others [2015] eKLR and Daudi Kiptugen versus Commissioner of Lands and 4 others [2015] eKLR**, respectively. 22. Flowing from the foregoing, learned counsel invited the court to find and hold that that appeal is meritorious. The court was implored to allow the appeal; set aside the Judgment of the learned trial magistrate; dismiss the 1st respondent’s suit; and in lieu thereof, enter Judgment in terms of the counter claim. 23. The 1st respondent filed written submissions dated the 23.06.2026; and wherein same has highlighted three [3] key issues. The issues are: The appellant did not establish and or prove the legality of her claim to the suit property; the sale agreement entered into between the appellant and John Kithinji [if at all] was entered into before John Kithinji acquired any rights to the suit property; and the said vendor [now deceased] could not pass any title to the appellant; and the 1st respondent duly established/proved her entitlement to the suit property on the basis of the doctrine of bona fide purchaser for value. 24. Regarding the first issue, learned counsel for the 1st respondent submitted that even though the appellant had laid a claim to and in respect of the suit property, the appellant did not tender or produce any credible document to underpin her claim to the suit property. In particular, it was contended that the sale agreement; the minutes of the county council of Isiolo [now defunct] and the purported application for transfer made to the county council in the year 1997 and which were being relied upon, relate to the period before the deceased [vendor] had acquired rights to and in respect of the suit property. 25. In the premises, it was contended that the vendor could not have passed on to and in favour of the appellant title or rights to the property which rights, had not accrued to the deceased. To this end, learned counsel for the 1st respondent invoked and relied upon the doctrine of *Nemo dat quod non habet.* 26. The next issue that has been submitted upon relates to the fact that if the deceased had sold to and in favour of the appellant the suit property, which is denied, it was contended that the letter of allotment could not thereafter have been issued long after the death of the deceased. Be that as it may, it has been contended that the documentation relied upon by the appellant are devoid of probative value. 27. Next is the issue as to whether the 1st respondent proved/established her rights to and in respect of the suit property. It was contended that the 1st respondent entered into and executed a lawful sale agreement with Stephen Murithi Ng’aruthi on behalf of the John Kithinji [deceased]. In addition, it was submitted that after the execution of the sale agreement, the vendor signed the application for the transfer of the suit property and which application was submitted to the county council of Isiolo [now defunct]. 28. On the basis of the sale agreement; the application for transfer to the county council of Isiolo; the rate payment receipts; and the corroborative evidence of PW2 and PW3, it was contended that the 1st respondent had proved her entitlement to the suit property. 29. Finally, learned counsel for the 1st respondent has submitted that the 1st respondent entered into a lawful sale agreement and thereafter acquired lawful rights to the suit property. Moreover, it was submitted that the 1st respondent is a bona fide purchaser for value and therefore, same is entitled to the suit property. 30. To buttress the submissions touching on and concerning the doctrine of bona fide purchaser for value, learned counsel for the 1st respondent has cited and referenced the holding in the case of **Katende versus Haridar and Company Limited [2008] 2 EA 174.** 31. Flowing from the foregoing, learned counsel for the 1st respondent posited that the appeal beforehand is devoid of merits. To this end, the court was invited to dismiss the appeal; reaffirm the Judgment of the trial court; and to award costs of the appeal to the 1st respondent. 32. Having reviewed the record of appeal; the memorandum of appeal; the evidence that was tendered before the trial court [both oral and documentary]; and upon taking into consideration the impugned Judgment; and bearing in mind the written submissions filed by/on behalf of the respective parties, three [3] key issues crystalize for consideration and determination. The issues are: Whether the 1st respondent proved and established her case on a balance of probabilities or otherwise; whether the appellant proved her entitlement to and in respect of the suit property or otherwise; and whether the learned trial magistrate correctly appreciated and correctly applied the law as pertains to burden and standard of proof. 33. Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding[s] and conclusion[s] arrived at by the trial magistrate accord with the evidence on record and the applicable legal principles. 34. The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding and conclusion of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 35. Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. The jurisdiction does not avail for the mere asking. It cannot be exercised at will. 36. The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of **Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR).** The Court of Appeal expounded on the scope of the jurisdiction. 37. The court stated thus: *“46. We also wish to be guided by the reasoning of this court in the case of* ***Mwana Sokoni versus Kenya Business Limited (1985) KLR*** *931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.”* 1. Recently, the Court of Appeal revisited the jurisdictional remit in the case of **Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR).** The Court highlighted the principle in the following manner: *“We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the*[*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3)*, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of* **County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) *and*****County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) –** [paragraphs 56 and 57 thereof]” 1. Bearing in mind the principles enunciated in the decisions [supra], I am now well poised to revert to the subject matter and to address the thematic issues highlighted elsewhere hereinbefore. I beg to start with the first issue, namely; Whether the 1st respondent proved and established her case on a balance of probabilities or otherwise. 2. It is common ground that the 1st respondent was the plaintiff in the lower court and same contended that plot number 190 Kula Mawe – Isiolo was lawfully sold to and in her favour by one Stephen Murithi Ngaruthi. In addition, it was contended that the sale agreement was reduced into writing and same was thereafter executed by both parties, namely; the vendor and the purchaser, respectively. 3. It was the further contention by the 1st respondent that the suit property, belonged to and was registered in the name of one, John Kithinji. Moreover, it was posited that John Kithinji had passed on, but Stephen Murithi Ngaruthi [the vendor] was a beneficiary of the estate of John Kithinji. To this end, the 1st respondent contended that Stephen Murithi Ngaruthi was therefore seized of the capacity to sell the suit property. 4. Additionally, the 1st respondent contended that same followed the due process *vide* sale agreement dated the 27.07.2007; application for transfer of the suit property dated the 30.01.2009; and an approval/recommendation of a committee of the county council of Isiolo, which determined that same [1st respondent] was the lawful owner of the suit property. 5. Be that as it my, the 1st respondent averred that on or about the year 2013, someone proceeded to and destroyed her fence, which she had erected round the suit property. In addition, the 1st respondent posited that she mounted a complaint with the police and thereafter filed the suit in the lower court. 6. From the foregoing factual matrix, it is evident that the 1st respondent’s claim to the suit property stems from the sale agreement entered into and executed on the 27.07.2007. Suffice it to state that the 1st respondent concedes that the suit property belonged to one John Kithinji [deceased]. To the extent that the suit property belonged to or is said to have been registered in the name of the deceased, there is no gainsaying that the suit property could therefore, not be dealt with or disposed of prior to or before the issuance of the certificate of confirmation of grant in terms of **Section 82 of the Law of Succession Act, Chapter 160 Laws of Kenya.** 7. **Section 82 of the Law of Succession Act** [supra] states thus: **82. Powers of personal representatives** ***Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers—*** ***(a)to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;*** ***(b)to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:*** ***Provided that—*** ***(i)any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and*** ***(ii)no immovable property shall be sold before confirmation of the grant;*** ***(c)to assent, at any time after confirmation of the grant, to the vesting of a specific legacy in the legatee thereof;*** ***(d)to appropriate, at any time after confirmation of the grant, any of the assets vested in them in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased or any other interest or share in his estate, whether or not the subject of a continuing trust, as to them may seem just and reasonable to them according to the respective rights of the persons interested in the estate of the deceased, and for that purpose to ascertain and fix (with the assistance of a duly qualified valuer, where necessary) the value of the respective assets and liabilities of such estate, and to make any transfer which may be requisite for giving effect to such appropriation:*** 1. Moreover, it is important to highlight that where any transaction, dealing or alienation of the property of the deceased, is dealt with before the issuance of grant of letters of administration, such a dealing would constitute intermeddling with the estate of the deceased. Furthermore, any such dealing would not only be illegal and unlawful, but shall also constitute a criminal offence. 2. Intermeddling with the estate of a deceased, is captured and addressed *vide* the provisions of **Section 45 of the Law of Succession Act** [*supra*]. For brevity, it suffices to reproduce the said section. 3. It states thus: ### *45. No intermeddling with property of deceased person* ***(1) 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, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.*** ***(2) 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; and*** ***(b)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.*** 1. Bearing in mind the provisions of **Sections 45 and 82 of the Law of Succession Ac**t [supra], the question that does arise is whether Stephen Murithi Ngaruthi [vendor] was seized of the legal capacity to alienate [if at all] the property of the deceased. I beg to state that though the 1st respondent had posited that the vendor was a beneficiary of the estate, no evidence was placed before the trial court to affirm the said position. 2. Additionally, it is common ground that even where it is proved/shown that a person is a beneficiary of the estate of the deceased, the vendor not excepted, the mere fact that one is a beneficiary does not bestow upon such a person the capacity to transact over the estate of a deceased, without obtaining the requisite grant of letters of administration. [See the holding of the court of appeal in the case of **Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & another ( [1987] KECA 1 (KLR).** 3. I am afraid that Stephen Ngaruthi [vendor], did not have the capacity to enter into and or execute the sale agreement, which underpins the claim by or on behalf of the 1st respondent. In any event, it is not lost on me that the 1st respondent did not tender or produce a copy of the grant of letters of administration [if any] that had been issued to the vendor. 1. In the absence of the grant of letters of administration and bearing in mind that the 1st respondent conceded that the suit property belonged to the deceased, then the sale agreement relied upon is rendered void and invalid. In this regard, the sale agreement, which anchored the Judgment of the lower court, is vitiated and cannot bestow any lawful rights or interest in favour of the 1st respondent. 2. The 1st respondent has also invoked the doctrine of bona fide purchaser for value. However, I wish to state that the doctrine of bona fide purchaser for value cannot be relied upon or hold sway, where the root of the title or the transaction underpinning the title, is vitiated by an illegality. To my mind, the illegality attendant to the impugned sale agreement negates and destroys the foundation upon which the doctrine rests. 3. The elements that underpin the plea of the doctrine of bona fide purchaser for value were highlighted in the case of **Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR).** The apex court stated as hereunder: ***The***[***Black’s Law Dictionary***](https://www.amazon.com/Blacks-Law-Dictionary-Standard-Ninth/dp/0314199497)***9th Edition defines a 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.”*** ***91.The Court of Appeal in Uganda in Katende v Haridar & Company Ltd [2008] 2 EA 173, defined a bona fide purchaser for value as follows: “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:*** ***1. he holds a certificate of title;*** ***2. he purchased the property in good faith;*** ***3. he had no knowledge of the fraud;*** ***4. he purchased for valuable consideration;*** ***5. The vendors had apparent valid title;*** ***6. he purchased without notice of any fraud; and*** ***7. he was not party to the fraud.”*** ***92.On the same issue, the Court of Appeal in***[***Samuel Kamere v Lands Registrar***](https://kenyalaw.org/akn/ke/judgment/keca/2015/644)***, Kajiado Civil Appeal No 28 of 2005 [2015] eKLR stated as follows:“…in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property...”*** 1. I wish to point out that the 1st respondent bore the burden of proving her case. Such proof could only be discharged on the basis of plausible and cogent evidence. Moreover, the evidence tendered must accord with the law and not otherwise. 2. In the case of **James Muniu Mucheru v National Bank of Kenya Limited [2019] KECA 1058 (KLR),** the Court of Appeal highlighted the obligation of the claimant to prove own case. Furthermore, the court posited that the obligation to prove the case is not lessened even where the defendant does not enter appearance. 3. The court stated thus: 19***. In*Karugi & Another v Kabiya & 3 Others[1987] KLR 347*, this Court held that the burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof.*** ***20. In that regard, before a trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities, the court must be satisfied that the plaintiff has adduced some credible and believable evidence which can stand in the absence of rebuttal evidence by the defendant. The plaintiff must adduce evidence, which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities proves the claim.*** ***21. The Supreme Court of Uganda in*DepartedAsiansProperty Custodian Board v Issa Bukenya t/a New Mars Ware House, CA No 26 of 1992 *stated as follows:*** **“…It must be understood that the evidence led is such, that without contradiction by the Defendant, it is sufficient to prove the claim. It is not necessary that the facts alleged should be queried, but the facts alleged must be full and accurate enough to support the plaint…”** 1. The next issue that falls for determination is whether the appellant herein established her right to or entitlement over the suit property or otherwise. It was the appellants contention that the suit property belonged to John Kithinji [now deceased]. The appellant further posited that the said John Kithinji offered to sell to and in her favour the suit property. Moreover, the appellant averred that thereafter John Kithinji and herself entered into a sale agreement on the 01.11.1995. Furthermore, it was posited that the sale agreement was reduced into writing. 2. In addition, the appellant averred that upon entry into and execution of the sale agreement, John Kithinji [now deceased] made an application to the county Council of Isiolo to transfer the suit property unto her. The appellant further added that the application by the vendor was dully allowed/approved. To this end, the appellant tendered and produced a copy of the minutes of the Works, Town Planning and Markets Committee – County Council of Isiolo [now defunct]. 3. It is also important to state that the appellant tendered and produced various correspondence, including the transfer letter dated the 11.09.2008, and wherein the county council of Isiolo was confirming that the suit property was duly transferred to the appellant vide minutes number 13/1997 [arising from the meeting held on the 13.08.1997]. 4. I wish to point out that the production of the minutes of the works, town planning and markets committee; and the letter of transfer dated the 11.09.2008, were initially opposed by learned counsel for the 1st respondent. However, the said counsel for the 1st respondent thereafter conceded to the production of the documents as exhibits before the court. [See page 76 of the record of appeal]. 5. It is imperative to highlight that the contents of the documents, which were tendered by and on behalf of the appellant, were neither challenged nor controverted. Furthermore, there is no gainsaying that the 1st respondent did not procure any document, either from the county council of Isiolo [now defunct] or the county government of Isiolo, to rebut the assertions by the appellant. 6. I also wish to point out that even though the 1st respondent had contended that the suit property was sold unto her and thereafter an application for transfer was mounted with the county council of Isiolo, the 1st respondent did not tender or produce any minutes of the council [sic] authorizing the transfer. 7. I am alive to the fact the learned trial magistrate contended that the appellant was not issued with a letter of allotment. In addition, the learned trial magistrate also posited that because the appellant contended that she was issued with the transfer documents weeks after the sale, yet what was tendered was a copy of the transfer letter dated 11.09.2008, the appellant’s testimony was therefore untruthful. 8. It is noteworthy that the findings and conclusion of the learned trial magistrate are founded on credibility and impression of the witness. The learned trial magistrate held that the appellant was untruthful. However, upon reviewing the totality of the appellants evidence, there is no basis upon which the charge of untruthfulness can stand. The finding of the learned trial magistrate, was clearly made in error. 9. On the contrary, and taking into account the totality of the evidence tendered by the appellant, it is my finding and holding that the suit property previously belonged to John Kithinji. In addition, the said John Kithinji [now deceased] entered into a sale agreement and which agreement was not disputed/impugned by the 1st respondent. Thereafter, John Kithinji mounted an application for transfer of the plot with the county council of Isiolo. The county Council of Isiolo [now defunct] proceeded to and approved the application for transfer. 10. Even though the learned trial magistrate held that John Kithinji only acquired the letter of allotment on the 19.02.1999; and hence could not have sold the plot to the appellant, there is no gain saying that the county council could not have approved the transfer, if at all, John Kithinji did not own the property. 11. In my humble albeit considered view, the appellant herein tendered documents, whose import and tenor, were sufficient to vindicate the appellant’s root of title to; or entitlement over the suit property. 12. In the case of **Presbyterian Foundation v Kibera Siranga Self Help Group Nursery School [2023] KECA 371 (KLR),** the court of appeal underscored the need to prove the root of the title. In addition, the court highlighted that in an endeavor to prove the root of the title, one must place before the court credible evidence speaking to the process leading to the claim of entitlement. 13. The court stated thus: “***We will next address the pertinent issue regarding the existence of two titles in respect of the same parcel land. The best evidence of ownership of immovable property is the title deed to it and that is why the question of the root of title is important. Root of title is the deed to which title to a property is ultimately traced to prove that the owner has good title. Accordingly, when there are competing interests as in this case, the parties are required to give evidence of title starting with a "good root of title." A good root of title and an unbroken chain of ownership is required. To be a good root of title, a document must satisfy each of the following requirements:*** ***(a) it must deal with or show the origin of the ownership of the whole legal and equitable interest in the land in question;*** ***(b) it must contain a recognizable description of the property;*** ***(c) it must not contain anything that casts any doubt on the title.*** 1. I now wish to turn to the last issue. It is established that the burden of proof lies on the shoulders of the claimant. In addition, the claimant is enjoined to tender and place before the court, plausible and cogent evidence, to prove his/her claim. Moreover, it suffices to observe that it is only after the claimant has discharged the evidential burden of proof, that the adverse party is called upon to offer evidence in rebuttal. 2. In respect of the subject matter, the learned trial magistrate correctly apprehended the burden of proof. However, when it came to applying the legal principle, the learned trial magistrate mis-applied same. For good measure, the learned trial magistrate failed to appreciate that it was the plaintiff who had moved the court seeking to be declared as the owner of the suit property. The learned trial magistrate thereafter, adorned the judicial duty of discerning whether the evidence that had been tendered met the threshold. 3. Other than the foregoing, it is worthy to note that the learned trial magistrate also assumed that the mere fact that the 2nd respondent [who was the defendant in the lower court] had not entered appearance nor filed a statement of defence, then the 1st respondent’s evidence remained unchallenged. 1. It is important to underscore that whether or not the adverse party, files a statement of defence, the claimant is still chargeable with proving the claims before the court. The burden upon the claimant is not lessened by the failure to file a statement of defence; or to offer evidence in rebuttal. 2. In the case of **Moi v Muriithi & another [2014] KECA 642 (KLR),** the court of appeal underscored the necessity to interrogate the evidence tendered and to ascertain whether such evidence meet the evidential threshold. 3. The court stated thus: **“It is a firmly settled procedure that even where a defendant has not denied the claim by filing of defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.”** 1. Had the learned trial magistrate reviewed the documents and the evidence by the 1st respondent, in light of **Sections 108 and 109 of the Evidence Act, Chapter 80 Laws of Kenya,** no doubt the court would have come to a contrary position. Quite clearly, the documentation that were relied upon by the 1st respondent, were *devoid* of probative value in the eyes of the law. **Conclusion:** 1. The first appellate court is enjoined to defer to the factual findings and conclusions of the trial court. However, where the trial court misapprehended the evidence on record; or took into account erroneous matters; or proceeded on the basis of erroneous impression of the credibility of a Witness; then the appellate court is entitled to interfere. 2. In respect of the instant matter, and having reviewed the totality of the evidence on record, I find and hold that the impugned Judgment is colored with several errors of principles. The Judgment, certainly, does invite the intervention of this court. 3. *In a nutshell*, I find and hold that appeal is merited. **Final orders:** 1. Flowing from the foregoing discourse, the final orders that do commend themselves to the court are: 2. ***The Appeal be and is hereby Allowed.*** 3. ***The Judgment of the learned trial magistrate dated the 07.10.2025 be and is hereby set aside.*** 4. ***In lieu thereof, an order be and is hereby issued dismissing the 1st Respondent’s suit vide Plaint dated 16.03.2016.*** 5. ***Judgment be and is hereby entered in terms of the counter claim dated the 13.07.2020. In particular, it is ordered thus:*** 6. ***An order of permanent injunction be and is hereby issued to restrain the 1st respondent either by herself, agents, servants and or employees from entering upon or interfering with the appellant’s right to and in respect of plot number 190 Kula Mawe- Isiolo.*** 7. ***Costs of the appeal be and are hereby awarded to the appellant.*** 8. ***The Appellant shall also have the costs of the suit in the lower court.*** 9. ***The costs in terms of clause [v] and [vi] shall be agreed upon and in default be taxed in the conventional way.*** 10. It is so ordered. **DATED, SIGNED AND DELIVERED AT ISIOLO THIS 09TH DAY OF JULY, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** In the presence of**:** Court Assistant: Zakayo/Mukami Mr. Muchiri for the Appellant Ms. Abubakar for the 1st Respondent N/a for the 2nd Respondent