https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4065

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC APPEAL CASE NO. E019 OF 2024** **LILIAN NDUKU:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT** **VERSUS** **PATRICK KYALO MULINGE::::::::::::::::::::::::::::::::::::::RESPONDENT** **JUDGEMENT** The Appellant being dissatisfied by the Judgement of Hon. Daffline Nyaboke Sure (Principal Magistrate) in Kangundo MELC NO.98 OF 2020 delivered on 15th April 2024 appeals to this honourable court on the grounds that: - 1. That he learned Magistrate erred in both law and when she failed to find that parties are bound by these pleadings. 2. That the learned Magistrate erred in both law and fact by holding the appellant responsible for the mistakes of a person who was not a party to the suit. 3. That the learned Magistrate erred in both law and fact when she shifted the burden of providing fraud to the appellant. 4. That the learned Magistrate erred in both law and fact by determining the suit by relying on extraneous matters which were not part of the pleadings. 5. That the learned Magistrate erred in law and fact when she found that the appellant was not the sole proprietor of Land known as Matungulu/Katine/2421 measuring 0.44ha. 6. That the learned Magistrate erred in law and fact when she found that the respondent is entitled to land measuring 0.1 Ha out of land known as Matungulu/Katine/2421. 7. That the learned Magistrate erred in both fact and law by failing to find that the respondent was a trespasser on Land Registration Number Matungulu/Katine/2421 The appellant prays that: - 1. The judgement of Hon. Daffline Nyaboke Sure delivered on 15th April 2024 be set aside. 1. Judgement be entered for the appellant as prayed in the plaint. 2. Costs of this appeal and court below be awarded to the appellant. This is the first appeal, the primary role of the court is to re-evaluate, re-assess and re-analyze the evidence on record and decide as to whether the conclusion reached by the learned magistrate was sound, and give reasons either way. This duty was emphasized by the Court of Appeal in Mbogo and another vs Shah (1968) EA 93 where it was held that; *“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matter on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. It is for the company to satisfy this court that the judge was wrong and this, in my view it has failed to do.”* The court has considered the pleadings, evidence presented before it, submissions made as well as the authorities relied upon by the parties. The issues for determination are: 1. *Who is the lawful proprietor of the* *land parcel No. Matungulu/Katine/2421?* 2. *What orders should this court issue?* I have carefully perused the documents produced as exhibits and find that the Plaintiff/Appellant is the registered owner of the said suit land the title deed having been issued on the 19th July 2019. 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.”* DW1, the Defendant/Respondent has led evidence that on or about the 24th January 2015 he bought a portion of the suit land on Land Registration Number Matungulu/Katine/2421from Peter Kiambi ID No. 2286766 who were the legal owner for kshs.100,000/=. He produced the sale agreement as an exhibit. DW2, Faith Lavi testified that her husband Peter Kyambi now deceased sold a portion of the suit land on Land Registration Number Matungulu/Katine/2421 to the Defendant in the year 2015. The Defendant took possession and subsequently paid the full purchase price. In 2019 she sold the matrimonial home to the Plaintiff and was shown the beacons. The transaction was done through the Plaintiff’s mother who worked at the Machakos survey office. That the Plaintiff illegally registered herself as the sole owner of the suit land. DW3 Daniel Kivindyo was a witness to the Defendant’s said agreement and corroborated his evidence. The Plaintiff testified that she is the owner of Land Registration Number Matungulu/Katine/2421 measuring 0.44 Ha which she purchased and transferred to her name. Later the Defendant encroached onto her land and this was confirmed by the surveyor. She stated that the transaction had been facilitated through her mother who was never called to testify. In other words, the Appellant claims to be a bonafide purchaser. The definition of bona fide purchaser for value without notice is *“that buyer who has paid a stated price for the property without knowledge of existing or prior claims or prior equitable interest”.* Bona fide is a Latin word meaning good faith, without fraud, sincere, genuine. See (Black’s Law Dictionary 9th Edn Page 199) A bona fide purchaser is a buyer who buys without constructive or actual notice of any defects or infirmities against the seller’s title. See (page 1355) Black’s Law Dictionary 9th Edn. It is trite law that a person who relies on the defence of bona fide purchaser for value without notice has the burden to prove that he or she acted in good faith. The purchaser must have given due consideration and purchased the land without notice of the fraud. Such notice covers both actual and constructive notice of fraud. In the case of Jones vs Smith (1841) I Hare 43, the Chancery Court held; *“a purchaser has constructive notice of fraud if he had actual notice, that there was some encumbrance and a proper inquiry would have revealed what it was (but if) it abstained either deliberately, carelessly from making those inquiries which a prudent purchaser would have made...then the defence cannot be available to him or her”* In Yakobo M. N Senkungu & Others vs Cresencio Mukasa Civil Appeal No 17 of 2014. The court reaffirmed the law regarding the importance of due diligence in land transactions holding that; *“…Lands are not vegetables which are bought from unknown sellers. Lands are very valuable properties and buyers are expected to make thorough investigations not only on land but also of the owner before the purchase.”* 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 Plaintiff /Appellant testified that she had purchased the entire land parcel No. Matungulu/Katine/2421 measuring approximately 0.44 Ha form the deceased the original owner Peter Kyambi and his wife Faith Lavi in 2019. She did not produce the sale agreement nor any witnesses of the said agreement. This is clear evidence that a portion of the suit land measuring 0.1 Ha was first sold to the Defendant in 2015 who took possession and the Plaintiff only came in in 2019 to purchase the balance. As in the Supreme Court decision in Dina Management Limited vs County Government of Mombasa (2023) eKLR, the Court went on to hold that, once the root of the title has been challenged, a party cannot derive benefit from the doctrine of bona fide purchaser. I find that a portion of the suit land had already been sold to the Defendant in 2015 and that portion was not available for sale to the Plaintiff in 2019. Indeed, the Plaintiff stated in evidence that she had offered the Defendant Kshs 200,000/= as compensation for the same. I find that the Plaintiff was being fraudulent knowing very well the said portion of land was not available for sale and registering the same in her name. I find that the defence of bonafide purchaser is not available to the Appellant. I agree with the trial court that the Plaintiff failed to prove case her case on a balance of probabilities. I find this appeal is not merited and I dismiss it with costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 1ST DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**