https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3882

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. 012 OF 2022** **MARTIN MUTHII KANGARA::::::::::::::::::::::::::::::::::::::::::PLAINTIFF** **VERSUS** **THOMAS MAINGI WAMBUA::::::::::::::::::::::::::::::::::::1STDEFENDANT** **MWANZO DEVELOPMENT COMPANY LTD::::::::::::::2ND DEFENDANT** **DIRECTORATE OF CRIMINAL INVESTIGATIONS:::::3RD DEFENDANT** **THE LAND REGISTRAR MACHAKOS COUNTY:::::::::4TH DEFENDANT** **JUDGEMENT** The Plaintiff avers that he is the beneficial owner and/or owner in possession of all that land registered as Mavoko Town Block12/46 measuring 2.00 Ha. That vide a written sale agreement dated 24th January 2022 he bought the suit property from the 1st Defendant and immediately took active and exclusive occupation of the same. The 1st Defendant on the other hand had bought the said land from the 2nd Defendant vide a written sale agreement dated 9th January 2003 and was issued with a title deed on the 3rd January 2022. The 1st Defendant after purchasing the said parcel of land initiated the process of subdivision of the suit land herein and the same was subdivided into ten plots being plot number 12175 to 12184. The Plaintiff and the 1st Defendant went to the land office Machakos to have the subdivision registered only to be informed by the 4th Defendant herein that the 3rd Defendant has directed that the suit land should not be transferred as a complaint had been raised by the 2nd Defendant which was being investigated. The Plaintiff has already sold some of the plots to third parties who are demanding to be issued with titles failure of which they will rescind the agreements and sue for breach of contract. The 3rd Defendant/Respondent has refused, ignored and/or refused to instruct the 4th Defendant to transfer the suit land herein to the Plaintiff despite numerous and adamant demand from the Plaintiff. The Plaintiff prays for judgment against the Defendant for; 1. A permanent injunction issued against the 3rd Defendant restraining them from investigating and/or interfering with the ownership of all that land registered as Mavoko Town Block 12/46. 2. An order to issue directing the 4th Defendant to issue the Plaintiff with a title deed for all that land registered as Mavoko Town Block 12/46. 3. Costs of the suit. The 1st Defendant stated that on 9th January 2003, the Director of the said 2nd Defendant; Willie Mutie, approached the 1st Defendant/ Cross claimant for a soft loan of Kshs. 50,000/=. That as security, the said Director deposited original title of the suit property Mavoko Town Block 12/46. The 1st Defendant and the 2nd Defendant were later on the same day, 9th January 2003, in agreement that parties enter into an Agreement for Sale of the suit property Mavoko Town Block 12/46 at a consideration of Kshs. 450,000/=. The Agreement for Sale was between Mbukoni Holdings Limited in which the 1st Defendant was a Director and beneficial owner together with the 2nd Defendant herein whose Director was Willie Mutie. The 1st Defendant/ Cross claimant being a Director and beneficial owner of the said Mbukoni Holdings Limited executed the agreement for sale and payment vouchers in favour of Willie Mutie. It was by agreement that the consideration be paid in instalments The said Director of the 2nd Defendant further to acknowledging receipt of the sum total consideration, he was under obligation to execute the transfer instrument which he did in favour of the 1st Defendant and not in favour of his company Mbukoni Holdings Limited. The 2nd Defendant despite selling for value the suit property continued to falsely and forcefully lay claim to the suit denying the 1st Defendant/ Cross Claimant quiet possession of the suit property. The 1st Defendant/ Cross Claimant on the further strength of a resolution by Mbukoni Holdings Limited of 20th November 2021, proceeded to lodge the application for transfer in his favour. That in January 2022, the 1st Defendant/Cross Claimant while seeking to transfer the property to the Plaintiff herein, realized that the 2nd, 3rd and 4th Defendants had jointly and severally connived to illegally and fraudulently place a restriction against the suit property. The 1st Defendant prays that judgment be entered against the 2nd, 3rd and 4th Defendants jointly and severally for: 1. A declaration that the Plaintiff is the solemn, lawful, absolute and indefeasible title holder of the parcel of land known as Mavoko Town Block 12/46. 2. A permanent injunction restraining the 2nd, 3rd and 4th Defendants from sustaining any restriction or laying claim to the suit property Mavoko Town Block 12/46. 3. General and exemplary damages. The 2nd Defendant submits that the sale agreement between Mbukoni Holdings ltd and the 2nd Defendant was to be completed within 6 months that is by 9th July, 2003 as per paragraph 2 of the special conditions. The 2nd Defendant further avers that after the above 6 months under clause 2 of the special conditions, the agreement for sale was cancelled vide a letter dated 22nd July 2003. The 3rd and 4th Defendants did not call any witnesses but confirm in their statement of defence that the suit property land parcel number Mavoko Town Block 12/46 was registered in the name of Mwanzo Development Company Limited on 10th September 1997. That on 26th May 2005, a caution was registered in favour of Mbukoni Holdings Limited and the same was withdrawn on 23rd December 2021. The suit property was transferred to Thomas Maingi Wambua on 3rd January 2022 and a title deed was issued. That on 10th February 2022 Mutie Willy lodged complaint with the 3rd Defendant in Nairobi regarding the suit property. He disclosed that his company attempted to sell the suit property to Mbukoni Holdings Limited but the agreement was revoked due to failure on the part of the purchaser to pay the consideration as agreed. He further reported that the original title deed to the suit property disappeared from the office of Mbulo & Co. Advocates mysteriously and that it was not clear how the suit property had been transferred to Thomas Maingi Wambua. The 3rd Defendant confirms that investigation in to the matter began immediately and a restriction was registered on 16th February 2022 against the property to avoid further dealing pending the investigation. The 3rd and 4th Defendants state that the said restriction is necessary to avoid further transfers or dealings that might bring complication to the ownership status of the suit property as well as the pending investigations. 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 Plaintiff is the illegal owner 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 Martin Muthii Kangara a developer, testified that vide a written sale agreement dated 24th January 2022 he bought the suit property land registered as Mavoko Town Block12/46 measuring 2.00 Ha. from the 1st Defendant and immediately took active and exclusive occupation of the same (PEX1 and 2 are copies of the sale agreements). He produced the title deed of the suit land in the name of the 1st Defendant issued on the issued on the 3rd January 2022 (PEx3 is a copy of the same). He states that 1st Defendant after purchasing the said parcel of land initiated the process of subdivision of the suit land herein and the same was subdivided into ten plots being plot number 12175 to 12184. The Plaintiff and the 1st Defendant went to the land office Machakos to have the subdivision registered only to be informed by the 4th Defendant herein that the 3rd Defendant has directed that the suit land should not be transferred as a complaint had been raised by the 2nd Defendant which was being investigated. The Plaintiff has already sold some of the plots to third parties who are demanding to be issued with titles failure of which they will rescind the agreements and sue for breach of contract. In cross examination the Plaintiff states that the full purchase price was paid to Advocates but the process was not completed. He is not aware that the 1st Defendant had been charged with a criminal offence. The 1st Defendant testified that he bought the said land from the 2nd Defendant through its Director Willy Mutie vide a written sale agreement dated 9th January 2003 and was issued with a title deed on the 3rd January 2022. He was to pay the full purchase price in six months but this was delayed as the 2nd Defendant used to travel abroad a lot. He then sold the suit land to the Plaintiff but did not receive the full purchase price because the 1st Defendant brought problems and said he had not been paid. He admits that he has been charge together with his wife in Mavoko Law courts in a criminal case and the matter is ongoing. He maintains that he did not forge the documents and that there was a letter in 2003 rescinding the sale agreement. DW2 an employee of the 1st Defendant at his office testified that the land belonged to the 1st Defendant and there was a dispute on the land and the seller removed the beacons. That he was last at the site in 2004/2005 and does not know if the 1st Defendant took possession. DW3 a document examiner confirms that the signatures in the sale agreement and the payment vouchers were made by one and the same person. He received sample signatures from the 1st Defendant but does not know the 2nd Defendant. DW4 Willy Mutie the Director of the 2nd Defendant Company admits entering into the sale agreement with the 1st Defendant and received a deposit of Kshs. 50,000/=. He rescinded the agreement by a letter dated 22nd July 2003 but later in 2022 a stranger came to the property. He reported the matter to the police and there are criminal proceedings ongoing. 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. It is not in dispute that the land is registered in the name of the 1st Defendant, Thomas Maingi Wambua. The 2nd Defendant confirms signing the same but states that he rescinded the sale agreement when the full purchase price was not paid in six months as per the contract. The 1st Defendant submitted that he was a bona fide purchaser for value having acquired the property for full consideration from the 2nd Defendant. 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 1st Defendant in his statement of defence states that, in the year 2003, the 2nd Defendant’s Director Michael Njuguna was arrested and Willie Mutie approached him requesting for Kshs. 50,000/= to deposit as cash bail to secure his release. He agreed to assist but on condition he deposits security to enable him pay the money. On 9th January 2003, the 2nd Defendant brought the original title deed for the property Mavoko Town Block 12/46 and intimated that his co-director and him had resolved to dispose off the property in order to raise cash bail. They entered into an agreement for sale. The agreement was between their two companies in which they were Directors and beneficial owners. On the 10th January 2003, he paid Kshs. 51,000/= in two installments of Kshs. 1000/= which he intimated was to take care of expenses and Kshs. 50,000/= by cheque to deposit as cash bail. The balance was paid as follows: 14th August 2003 -Kshs. 200,000/=; 7th April 2005- Kshs. 99,000/= and 14th July 2005 -Kshs. 100,000/= Upon receipt of the total consideration, 2nd Defendant executed the instrument of transfer. During the pendency of completion, Willie Mutie travelled to the United Kingdom where he had a business. After payment of the full consideration he however denied him access to the property. A confrontation ensued in and around 2006 when he brought a person to cultivate on the property to which both of them were arrested and taken to Kayole Police station. The dispute was never resolved. In the year 2021, he decided to proceed with the transfer albeit without vacant possession of the property. At the time of transfer, the Title Deed was in the possession of Nyamberi Advocate who was agreeable to release it to him on the strength that he had already paid the total consideration. With the help of a surveyor, he procured a special consent to transfer the property to his name. By virtue of being a bona fide purchaser for value, all the attendant proprietary rights accrued in his favour and he later disposed off the property to the Plaintiff. On the other hand, the 2nd Defendant states that it never sold Mavoko Block 12/46 and never received the balance of Ksh400,000/= (the balance of the purchase within 6 months) or even after. The 2nd Defendant further denies that it never received any monies indicated in the voucher of Mbukoni Holdings Company and the signatures thereof purport to be signed by Mutie Willy are forgeries which are now the subject investigations by the 3rd Defendant (DCI). The 2nd Defendant avers that the Plaintiff has connived with the 1st Defendant, through forgeries of document to defraud the 2nd Defendant of its land LR NO. Mavoko Block 12/46 for which there is no payment of the purchase price at all. The Defendant avers that the sum of Ksh. 50,000/= was borrowed as a matter of fact and agreement entered before an Advocate, who was left with the title which title was never authorized to be released to the 1st Defendant as the Company called Mbukoni Holdings never paid the balance of the purchase within 6 months stipulated before revocation. I find that the process of the transfer of the suit property to the 1st Defendant raises a lot of doubt in my mind. Why would he proceed to sell property to a third party that is, the Plaintiff when he did not have vacant possession. The 1st Defendant in his testimony in court states that he is not sure that the Plaintiff has paid the purchase price for the same and yet he wants the Plaintiff declared the absolute owner in this counter claim. The Plaintiff’s sale agreement states that the cost of the property is Kshs 20,000,000/= which amounts shall pass hands to the 1st Defendant after completion date meaning the Plaintiff has not paid anything for the same and there is no consideration at all! Again how did the Plaintiff buy land which the 1st Defendant had no physical possession? Did he conduct due diligence? Why would the Plaintiff sell to third parties when he had no title or possession? The 2nd Defendant denies ever receiving the cash through Mutie Willy and that Mutie Willy had personally cancelled the sale vide a letter dated 22nd July 2003 and that the receipts for payment are all forged and are the subject of investigations by the 3rd Defendant. The 2nd Defendant states that the signature in all vouchers dated 10th January 2003, for Kshs. 1000, 14th August 2003 for Ksh. 200,000, 7th April 2005 for Ksh. 99,000 and 14th July 2005 for Kshs. 100,000 are all forgeries and are being investigated by the 3rd Defendant. The 2nd Defendant maintains he is still in possession and asks for the Plaintiff’s claim and the 1st Defendant’s counterclaim be dismissed. It is not in dispute that the 2nd Defendant never gave any specimen signatures to the document examiner who compared known and unkown signatures of Mutie Willy, the 2nd Defendant. It is not disputed that 1st Defendant and his wife Ruth Nzula Maingi Alias Ruth Nzula Kamba have since been charged with criminal offences including forgery over the matter and the trial is ongoing. The Plaintiff appears to have jumped the gun and rushed to court to lift the restriction knowing well there is a dispute on the land. I find that both the Plaintiff and the 1st Defendant have not established that they are bona fide purchasers for value. I find that the Plaintiff has failed to prove his case on a balance of probabilities and I dismiss it. I find that the 1st Defendant has also failed to prove their cross/counter claim on a balance of probabilities and I dismiss the same. The Plaintiff and the 1st Defendant to bear the cost of this suit. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 24TH DAY OF JUNE 2026.** **N.A. MATHEKA** **JUDGE**