https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1532

Muchanga Investments Limited v Telesource.Com Limited & 9 others (Civil Appeal E483 of 2025) [2026] KECA 1532 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1532 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E483 of 2025 PO Kiage, RB Ngetich & S Radido, JJA July 31, 2026 Between Muchanga Investments Limited Appellant and Telesource.Com Limited 1st Respondent Director of Surveys, Ministry of Lands & Housing 2nd Respondent Ministry of Lands & Housing 3rd Respondent Registrar of Titles, Ministry of Lands &Housing 4th Respondent Chief Lands Registrar, Ministry of Lands &Housing 5th Respondent Joseph Kange'the Wanyoike (For the Estate of Carmelina Ngami Mburu) 6th Respondent Barclays Bank of Kenya Limited 7th Respondent Josphert Milimu Konzolo 8th Respondent Imogen Peppelton 9th Respondent The Public Trustee 10th Respondent (Being an Appeal against the Judgment and Decree of the Environment and Land Court at Nairobi (O. A. Angote, J.) delivered on 27th March 2025 in ELC Civil Suit No. 1180 of 2014) Judgment 1.This appeal arises from the judgment of O. A. Angote, J., of the Environment and Land Court (ELC) at Nairobi, wherein he found that none of the parties laying claim to the suit property, being L.R. No. 3586/3 measuring 54.39 hectares (approximately 135 acres) was the lawful proprietor. The learned Judge found that the last entity to hold legal title to the property was Barclays Bank International Limited, as executor and trustee of the Estate of Arnold Bradley. He also took judicial notice that the London-based Barclays Bank International Limited had since sold off its interest in Barclays Africa, which was now functioning under the name Absa Bank. Consequently, in exercise of the inherent powers of the court pursuant to section 3A of the Civil Procedure Act, the learned Judge found that it was necessary that the Public Trustee takes out letters of administration with respect to the suit property for the purposes of ascertaining the surviving heirs of Arnold Bradley. He thus made the following final determinations;a.A declaration be and is hereby issued that the Plaintiff (Muchanga Investments Limited), the 1st Defendant (Habenga Holdings Limited), the 2nd Defendant (Jina Enterprises Limited), the 3rd defendant (Telesource.com Limited) and John Gohard Mburu, acquired Certificates of Title in respect of Land Reference Number 209/3586/3 situated in Karen area within the County of Nairobi, unlawfully and fraudulently.b.A declaration be and is hereby issued that the Certificates of Title held by the Plaintiff (Muchanga Investments Limited), the 1st Defendant (Habenga Holdings Limited), the 2nd Defendant (Jina Enterprises Limited), the 3rd Defendant (Telesource.com Limited), John Gohard Mburu and/or any person acting under them in respect of Land Reference Number 209/3586/3, situated in Karen area within the County of Nairobi, are null and void.c.A declaration be and is hereby issued that any Deed Plans and Certificates of Title emanating from the sub-division of Land Reference Number 209/3586/3 including but not limited to L.R Numbers 209/3586/202-398, situated in Karen area within the County of Nairobi, are null and void.d.An order be and is hereby issued directing the Chief Land Registrar to cancel and revoke all the Certificates of Title in respect of Land Reference Number 209/3586/3 and any sub- divisions thereof, which include but not limited to L.R Numbers 209/3586/202-398.e.Save for the Public Trustee, a permanent injunction be and is hereby issued restraining all the parties to this suit and the Counterclaim, their agents, employees, servants, and/or anyone acting at their behest or whosoever else from transferring, selling, alienating, charging, trespassing, fencing, subdividing, dealing in or interfering in any manner whatsoever with Land Reference Number 209/3586/3.f.The Public Trustee shall, within 30 days of the delivery of this Judgment, and pursuant to the finding of this court, file an application before the High Court at Nairobi for appointment as Administrator of the Estate of Arnold Bradley, over his residual estate, being Land Reference Number 3586/3, for the purpose of identifying the beneficiaries of the estate, if any, and distribution of Land Reference Number 3586/3 in accordance with the Law of Succession Act.g.Each party shall bear its/his own costs. 2.The foregoing orders were made following a suit instituted by the appellant vide a plaint dated 1st September 2014. The appellant claimed that at all material times it was the registered proprietor of all that parcel of land known as Land Reference Number 3586/3, R. Number 37285 (Original Number 3586/2/3) (suit property) measuring 54.39 hectares or thereabouts pursuant to a Certificate of Title Number I.R. Number 37285 issued on 11th February 1983, registered as Number I.R. Number 37285/1 and situated in Karen, Nairobi. The appellant’s case was that at all material times it had been in possession, care and control of the suit property; it had never sold, transferred or parted with possession of the property or any part thereof; it had paid all the land rent and Nairobi City Council rates with respect to the property; in 1985, it applied for sub-division of the property and obtained approval from the Ministry of Lands and the then Nairobi City Council and as a result, Grant Numbers I.R. Number 74050 and I.R. Number 74051 were issued together with one hundred and ninety (199) Deed Plans; subsequently in the years 2012 to 2013, it cancelled the subdivision and surrendered the two Grant Numbers together with the 199 deed plans restoring the suit property to its original state. 3.The appellant alleged that Habenga Holdings Limited, the 1st defendant at the trial court, had illegally and fraudulently obtained an illegal, null and void Certificate of Title, Number I.R. Number 32276, over the suit property, which Title was purportedly issued on 16th February 1973. Habenga Holdings Limited then illegally and fraudulently transferred the said parcel of land to Jina Enterprises Limited (the 2nd defendant), on 26th April 1983. Subsequently, on 17th March 1994, Jina Enterprises Ltd illegally and fraudulently transferred the suit property to Telesource.com Limited, the 3rd defendant at the trial court and the 1st respondent herein. 4.Particulars of illegality and fraud were enumerated as follows;i.The purported Certificate of Title Number I.R Number 32276 issued to the 1st defendant is indicated as being pursuant to a transfer registered as Number 94/23 in the Original/Parent Title yet Number 23 in the Original/Parent title is an Assent to another entity over a parcel of land known as 3586/2/2 and totally unrelated to L.R. No. 3586/3.i.i.The purported Certificate of Title Number I.R. Number 32276 for L.R. No. 3586/3 which is in the 3rd defendant’s custody does not have the original Land Reference Number quoted on it.i.ii.The purported transfer of title Number 32276 from the 1st defendant to the 2nd defendant was affected on 26th April 1983 which was before the 2nd defendant’s date of incorporation on 5th October 1995.i.v.The purported transfer of the Title Number 32276 from the 2nd defendant to the 3rd defendant was registered on 17th March 1994 which was before the 3rd defendant’s date of incorporation on 14th September 2005.v..The purported Transfer instrument purportedly transferring title number 32276 from the 2nd defendant to the 3rd defendant bears a different Land Survey Plan Number from the Certificate of Title.v.i.The Transfer Instrument between the 2nd and 3rd defendant over the Certificate of Title Number I.R. 32276 is not dated and does not bear any evidence of stamp duty payment.v.ii.The Transfer Instrument between the 2nd and 3rd defendant indicates an Annual Rent that is different from the Annual Rent indicated in the Certificate of Title. 5.On account of the foregoing particulars, the appellant alleged that the Certificate of Title Number I.R. 32276 for the suit property was illegal, fraudulent, invalid and incapable of granting or creating any interest over the land. Further, that the 1st respondent had illegally and fraudulently used the illegal and invalid Certificate of Title to subdivide the suit property and obtain invalid and illegal deep plans with a view of disposing the sub-divided parcels of land and thereby defrauding the appellant of its property. Particulars of illegality and fraud were that the 1st respondent had used forged approval letters purportedly from the 2nd and 3rd respondents, to sub-divide the appellant’s land. 5.In the result the appellant prayed for judgment against the defendants therein as follows;a.A declaration that the Plaintiff, Muchanga Investments Limited, is the lawful owner of all that parcel of land known as Land Reference Number 3586/3 (Original Number 3586/2/3).b.A declaration that Certificate of Title Number I.R 37285 over Land Reference Number 3586/3 issued to the Plaintiff, Muchanga Investments on 11th February 1983 is legally valid.c.A declaration that Certificate of Title Number I.R 32276 over Land Reference Number 3586/3 purportedly issued to the 1st defendant [Habenga Holdings Limited] by the 4th defendant [Director of Surveys, Ministry of Lands & Housing] and subsequently transferred to the 2nd defendant [Jina Enterprises Limited] and 3rd defendant [Telesource.com Limited], is illegal, null and void.d.A declaration that the 4th defendant [Director of Surveys, Ministry of Lands & Housing] and 5th defendant [Director of Physical Planning, Ministry of Lands & Housing] approval of the sub-division of Title Number I.R. 32276 over Land Reference Number 3586/3 together with all deed plans in respect thereof issued to the 3rd defendant [Telesource.com Limited], is illegal, null and void.e.A permanent injunction restraining the 1st, 2nd and 3rd defendants from entering/alienating/sub-dividing or dealing in any other way with the property known as Land Reference Number 3586/3 belonging to the plaintiff.f.A permanent injunction restraining the 3rd defendant from presenting any purported sub-divisions or deed plans from Land Reference Number 3586/3 to the 4th, 5th, 6th and 7th defendants for approval and/or registration.g.Costs of the suit.h.Any other or further relief that this Honourable Court may deem fit and just to grant. 6.In opposition to the suit, the 1st respondent lodged a defence and counter-claim dated 2nd June 2016 in which it denied the claim that the appellant is and/or was registered as proprietor of all that parcel of land under Certificate of Title known as L.R. No. 209/3586/3 (suit property). The 1st respondent asserted that it was the rightfully and legally registered owner of the said property. Further, it denied that the appellant was ever in possession, care and control of the suit property. It was averred that the appellant had illegally and without any colour of right sought to sub-divide the suit property and only abandoned the sub-division when the 1st respondent became privy of it; that the reason the appellant cancelled the sub-division was because it knew it had trespassed and violated the 1st respondent’s absolute rights as recognised by the Constitution of Kenya. The 1st respondent disputed the itemized particulars of illegality and fraud and averred that it had never participated in any illegal or fraudulent transaction. It denied knowledge of the 1st defendant [Habenga Holdings Limited and the 2nd defendant [Jina Enterprises Limited] and contended that it had never had any dealings with them over the suit property. It was the 1st respondent’s case that it has always been the owner of the suit property having lawfully acquired it through a bona fide purchase from the then legally registered owner in 1998, and through a transaction that lasted up to 8 years, which transaction has never been cancelled. Further, that as the legitimate and lawful owner of the suit property, it had a guaranteed right in law to deal with the property as it pleased, including sub-dividing it, which process followed the proper procedure that was approved by the 2nd to 5th respondents. 7.The 1st respondent averred that the suit property ceased to exist when the sub-division was concluded and new Certificates of Title of L.R. No. 3586/202-398 were issued in 2014. It was asserted that the 1st respondent was not in possession of any illegal deed plans. Moreover, that if there was any illegality and/or fraud that had been committed, then the same was instigated and perpetrated at the instance of the appellant as some of the documents that were relied on were suspect. In conclusion, the 1st respondent prayed that the suit be dismissed with costs. 8.The 2nd to 5th respondents responded to the suit through a statement of defence dated 3rd June 2016, wherein they denied the assertions made by the appellant. They claimed that they had no knowledge of occupation of the suit property and that no cause of action could be instituted against the government based on possession. 9.The 6th respondent opposed the suit vide a statement of defence and counterclaim amended on 19th July 2016. He disputed the appellant’s contention that it was the registered owner of the suit property and averred that, he holds a power of attorney in respect of all properties of Carmelina Ngami Mburu, the widow of the late John Godhard Ichahuria Mburu (Mr. Mburu), who was until his death the Provincial Commissioner of Nairobi Province. It was pleaded that the late Mr. Mburu died intestate on 27th October 1981 and was survived by two wives namely, Carmelina Mburu and Mary Nduta now deceased; that the suit property belonged to him. The 6th respondent contended that the appellant was inexplicably issued with two titles for the suit property being certificate of title L.R. No. 37285 and title entry number 315M, both of which were registered on the same day and time, and after the demise of the late Mr. Mburu. In view of the alleged double titling, Ms. Carmelina Mburu reported the matter at the Directorate of Criminal Investigations (CID) for investigations and tendered documentation in support of her claim that M/s Francis Da Gama Rose was at all material times the legal representative of Mr. Mburu. 10.It was the 6th respondent’s case that on 31st January 1978, Mr. Mburu secured a credit facility with Barclays Bank of Kenya for Ksh.675,000, to develop the suit property; on 30th June 1978, M/s Da Gama Rose & Co. Advocates wrote a letter, copied to Mr. Mburu, forwarding a cheque of Ksh.500,000; M/s Da Gama Rose Advocates allegedly unscrupulously manipulated documents by taking advantage of the demise of Mr. Mburu and converted the suit property for their own use; in spite of the fact that upon the demise of the late Mr. Mburu in 1981 and all his property was under the care of and administration by the Public Trustee, M/s Francis Da Gama Rose altered the documentation with the purpose of divesting the Public Trustee of his lawfully acquired responsibility and with the intention of disposing of the property for his own benefit; the Public Trustee purportedly carelessly and recklessly handled and misapplied the property of Mr. Mburu under his administration and even disposed of some of it at less than market rates, which mismanagement provided a platform for fraudsters to intermeddle. 11.The 1st respondent asserted that the suit property belonged to Carmelina Mburu and other beneficiaries of the estate of Mr. Mburu; Carmelina Mburu has never transferred the suit property to the appellant or to any other third party nor has M/s Francis Da Gama Rose ever rendered an account to her in relation to the properties which were under his custody, which was a breach of his fiduciary duties to the estate of the late Mr. Mburu. It was alleged that the appellant obtained its title through fraudulent means and therefore its title was null and void; that the affidavit sworn by Patrick John Kamau, at Sheria House, recognised Carmelina Mburu and Mary Nduta Mburu as widows of Mr. Mburu and the schedule of properties developed by the Public Trustee included the suit property as part of the estate of the late Mr. Mburu. 12.According to the 6th respondent, the conduct of the Public Trustee in the administration of the estate of Mr. Mburu was the genesis of Carmelina Mburu’s woes in relation to the suit property By way of counter-claim, the 6th respondent reiterated that, the suit property belonged to and formed part of the estate of the late Mr. Mburu who died intestate on 27th October 1981; the suit property was registered in the name of the late Mr. Mburu some time on 7th March 1978 and registered at the Registrar of Titles as No. 94 for a term of 999 years from 1st July 1919 to 30th June 2918; prior to his demise, Mr. Mburu had Messrs Shapley Barret & Company Advocates and Messrs Francis Da Gama Rose & Company Advocates as his legal representatives whom he entrusted with the original documents pertaining to his properties and the responsibility to handle his legal issues as and when they would arise. 13.Further, it was averred that following the demise of Mr. Mburu, Carmelina Mburu set out to identify her late husband’s properties; she sought the assistance of the Attorney General to do so because she was aware that most of the original documents to her husband’s properties were in the hands of his lawyers and the list presented to the Public Trustee as the Administrator of the estate was not exhaustive as far as the list of assets that had been filed by the Public Trustee in Succession Cause No. 494 of 1984 was concerned; in particular, the suit property was missing. The 6th respondent asserted that if at all the suit property was transferred or registered in the names of the appellant and the 1st respondent, then the same was procured through fraud, deceit and in collusion with the 2nd,3rd, 4th, 5th and 7th respondents. Particulars of fraud, deceit and collusion were itemized as follows: forgery of the Grant by the Plaintiff, the 1st, 2nd, 3rd and 8th defendants purporting the same to be a genuine Grant to the subject property issued to them; the plaintiff colluding with the interested party to illegally and unprocedurally purport to acquire a title to the subject land; collusion between the respondents in purporting to acquire a genuine title to the suit land and subdividing it to defeat the title of John Mburu. 14The 6th respondent alleged that in an effort to trace the properties of her late husband, Ms. Carmelina stumbled across several correspondences which touched on the suit property and which revealed that indeed her late husband’s legal representatives were Messrs Francis Da Gama Rose and Shapley Barret & Company Advocates. It was claimed that the appellant’s Grant raised suspicion and imported the notion that it was a fake document by virtue of the cancellation at entry 18, since one would query why there was such an entry on 2nd March 1978, in between the uncancelled entry 18, which is an entry of September 1963. Another suspicious entry was on the Plaintiff’s exhibit ‘HDR-3’ at entry 19 and 20 which showed that despite there being a caveat on the property, a subdivision was still done, then at 21 there was a purported withdrawal of the caveat, a sequence that is questionable especially because all the three developments were allegedly effected on the same date, 2nd March 1978. To the 6th respondent, entry 21 could not be regular when there was no indication, on the title or otherwise, of an instrument of surrender. In any case, where there is subdivision, new titles are usually issued and not just an entry such as the one that was effected at entry 21 of the appellant’s Grant. Further, the Probate in favour of Barclays bank was issued on 24th July 1974, and it should have been endorsed on the title either the same year or soon thereafter but not 4 years later on 2nd March 1978. It was claimed that the fact that the appellant’s Directors were from the Da Gama Rose family, where one Francis Da Gama Rose, a lawyer to Mr. Mburu, was a member, raised the possibility that the lawyer might have been an accomplice in depriving the 6th respondent of the subject property. 15.In the end the 6th respondent prayed that the appellant’s suit and the 1st respondent’s counter-claim be dismissed with costs and judgment be entered in his favour as follows;i..That the Honourable Court do declare that the parcel of land known as L.R. No. 209/3586/3 formed part of the estate of the Late John Godhard Ichahuria Mburu and the same should revert to his estate.ii.That the Grants held by any third parties and any subdivisions of L.R. No. 209/3586/3 by the plaintiff or defendants is void ab initio the same having been irregularly and fraudulently procured.iii.That the purported sale of L.R. No. 209/3586/3 by the interested party to the plaintiff is void ab initio.iv.Costs of the suit and interests thereon. 16.The appellant called three (3) witnesses in support of its case the first being H. E. Hon. Arthur Moody Awori (PW1). PW1 adopted his written statement dated 3rd October 2016, and stated that he was a former director of the appellant company, which was incorporated on 18th April 1978. He testified that he was aware that the Company purchased the suit property in the year 1983 and that on 29th April 1983, he attended the appellant’s Board of Directors meeting where it was reported that Barclays Bank of Kenya Ltd, Market Branch (the bank) had agreed to give credit or banking facilities to Da Gama Rose (Investments) Limited and the appellant had agreed to guarantee to the Bank repayment of the loan and execute a legal charge over its property, being the suit property, in support of the guarantee. The appellant’s board of directors passed a resolution allowing the appellant to create a legal charge for Ksh.10,500,000 in favour of the bank over the suit property and, as Chairman, he signed the resolution on behalf of the appellant, on 29th April 1983. The charge over the suit property in favour of the Bank was registered on 30th August 1983, and it was later discharged after the loan was paid. 17.In cross-examination, PW1 indicated that the other directors of the appellant company were his wife and one Hovatius Da Gama Rose. He confirmed that the appellant purchased the suit property in the year 1983 although he could not remember at what cost. Responding to a question on the relationship between Da Gama Rose (Investment) Limited and the appellant, he stated that they had common directors. PW1 testified that he resigned as director of the appellant upon becoming the Vice-President of the Republic of Kenya. He was referred to various correspondences namely, letter dated 30th June 1978 at page 1252 of the record, letter dated 15th August 1978 at page 786, letter dated 7th September 1978 at page 787, letter dated 3rd March 1983 at page 795 and letter dated 7th December 1978 at page 796 of the record. PW1 agreed with the suggestion by the 6th respondent’s counsel that the letters seemed to indicate that the suit property had been sold in 1978. In re- examination, counsel for the appellant referred PW1 to letter dated 18th January 1978 at page 782 of the record, letter dated 6th July 1978 at page 783 and letter dated 20th July 1978 at page 784, which suggested that the sale of the suit property was never completed in 1978. PW1 was referred to the transfer dated 29th December 1982, at page 75 of the record, which shows that Barclays Bank of Kenya sold the suit property to the appellant at a cost of Ksh.1,250,000. 18.Suleiman Abdul Shakur Harunani, a licensed surveyor, testified in favour of the appellant as PW2. He stated that he worked with the Ministry of Lands and Settlement, Department of Survey, between 1971 and 1977. Between 1975 to 1977 he was the one who was in charge of deed plans and he happened to deal with the suit property. He confirmed that the deed plan at page 77 of the record was part of the Transfer of the suit property and that he had signed it on 16th February 1977. Around 15th February 1978, Mr. Hovatius Da Gama Rose commissioned him in his private capacity to subdivide into half acre plots a property that was part of the estate of Arnold Bradley. He carried out the subdivisions and presented the subdivision scheme to the Nairobi City Council. The City Council, however, responded stating that the property was under a zone where the minimum size of land was 5 acres and not two and half acres. PW2 explained that he informed Mr. Da Gama Rose about the same and advised him to wait for change of zoning. The matter went quiet until 1985 when Mr. Da Gama Rose asked him to subdivide the property into half acre each. He got approval from Nairobi City Council through a firm called Design Team, which was allowed to submit the subdivision scheme. When they obtained provisional approval, PW2 moved to the site and created 199 plots out of the 134.4-acre land. All the documents were then submitted to the Director of Surveys to give out new L. R. numbers and deed plans. 19.PW2 testified that Mr. Da Gama Rose later asked him to instruct the Survey Department to cancel the 199 deed plans so that the land could revert to the original 134.4 acres and the original deed plan. Further, there was a boundary dispute between the appellant and Hillcrest International Schools and he was asked to look at the beacons. A survey was done by his office and a reported dated 4th December 2012 prepared. PW2 gave testimony that he was shown a purported survey by L. K. Gitau, which was a mirror of what he had done before. To him the survey was a forgery since, there was no way that a survey carried out in 1986 would be the same as one done in 2014; all the beacons and distances were the same in the two; and the survey duplicated the mistakes that he had done and the coordinates. 20.In cross-examination PW2 stated that, as at 15th February 1978, he was still in government employment but he was still doing private work as the law allows a surveyor who is not registered as a private surveyor to carry out planning over property as long as he does not touch the beacons. Mr. Da Gama Rose told him that he had purchased the suit property but did not inform him from whom he had purchased, and his assignment with respect to the property ended when he produced a deed plan. PW2 also confirmed that he was engaged in cancellation of the subdivisions of the suit property and the deed plans were cancelled in August 2013. Upon being referred to a letter dated 14th May 1985 at page 122 of the record and a letter dated 12th July 1994 at page 143 of the record, PW2 indicated that it was not possible for the 1st respondent to have been given approval to subdivide the suit property in 1994, when the plot had already been subdivided by the appellant and those subdivisions had not been cancelled. Further, it was not possible that the two letters bore the same reference number. PW2 explained that the survey field had an unwritten practice that when a new surveyor wishes to use the works of a previous surveyor, which had been cancelled, the first surveyor is asked for his comments. He denied being asked by Mr. Gitau to use his prior work. While confirming that he was never shown a copy of the certificate of title of the suit property, PW2 stated that it was not within his jurisdiction to ascertain who the owner of the property was. 21.In re-examination, PW2 reiterated that, while working with the government he used to do private jobs; that as a general surveyor, one is allowed to do all work except that which concerns boundaries; however, a government surveyor and a licensed surveyor can do any work including that relating to boundaries. He indicated that he was qualified to handle the work that he was commissioned to do, and which did not extend to boundaries. 22.Dimitri Dagama Rose (PW3), a Director and General Manager of the appellant company was the third witness to testify. He testified that he became general manager in September 2013, and was the one in charge of the day-to-day operations of the company. His late father was the chairman of the company but before he died he handed over to him documents relating to the company. PW3 adopted his written statement dated 23rd October 2016 and statements that his father had given. He testified that Francis Da Gama Rose was his grandfather and the founder of Francis Da Gama Rose & Co. Advocates. His grandfather had two children namely, Rowel Da Gama Rose and Horatius Dagama Rose, his father, both whom were lawyers. PW3 explained that the appellant company was incorporated on 18th April 1978. It was issued with the certificate of title of the suit property on 11th February 1983. The second entry on the title is a charge to Barclays Bank on 30th August 1983; the third entry is a discharge of charge done on 7th May 1989; the fourth entry is a memo of charge whereas the fifth entry is a discharge of charge for entry number 4. PW3 was referred to page 29 of the record where the mother title from which the suit property was derived is found. He identified that entry number 20 of the title was a subdivision certification by Nairobi City Council dividing plot L.R. No. 3586/2; entry number 22 was a probate of will of Arnold Bradley to Barclays Bank International; entry number 23 a transfer to Annette Therese Benson on 2nd March 1978; entry number 24 was a transfer to Muchanga Investments Limited the appellant on 11th February 1983, and that was the last entry on the mother title. 23.A new title was issued to Muchanga Investments Limited, the I.R No. being 37285 and the new title was registered on 11th February 1983, which is the same date in entry number 24 on the mother title. PW3 was referred to various documents where the appellant was addressed with respect to the suit property, or payment concerning the property was paid to it. The documents included, letter dated 24th February 2002 from the Kenya Revenue Authority found at page 838 of the record, which mentions two tenancies that were existing on the property at the time; a service contract between BABS security services Ltd and the appellant to provide security services on the suit property found at page 839 of the record; letters dated 11th August 2011, 9th November 2012 and 25th April 2013, at pages 842, 843 and 845 respectively, of the record, regarding a boundary dispute between the suit property and Hillcrest International School; land rent and rates receipts and demands from the lands office, with respect to the suit property, and payment of the same, at pages 847 to 905 of the record; Judgment in Civil Appeal No. 25 of 2002, at pages 907 to 919, where Safaris Unlimited (Africa) Ltd was claiming adverse possession over the property and the Court found as a matter of fact that the suit property belonged to the Appellant; a tenancy agreement between the appellant and Safaris Unlimited Africa Ltd dated 10th May 2010 for occupation of part of the suit property, found at pages 920 to 927; and, cheques for rent payment by the tenant on the suit property, addressed to the appellant, at pages 929 to 936. 24.PW3 was referred to the transfer at pages 718 to 720 of the record where the suit property, allegedly measuring about 54.39 hectares, was transferred by Arnold Bradley to one John Mugo Kamau, on 23rd August 1978. PW3 was further referred to page 68 of the record which shows that Arnold Bradley died on 22nd October 1973. He testified that in view of the said date of death, it was not possible that the transfer of the suit property was done 5 years later to Mr. Mugo. Further, that the I.R. No. given in the purported transfer is I.R. No. 94/24, which does not correspond with the entry on the mother title; the I.R. number in the certificate of title in the name of John Mugo Kamau, at page 721, does not correspond with the mother title; the title also does not contain an original number as should be the case in a land which has been subdivided, besides being issued on 2nd March 1978, five months before the transfer was registered. PW3 was referred to page 961 of the record where there is a transfer dated 17th October 2005 between John Mugo Kamau and Telesource.Com, with respect to the suit property. He was also referred to page 960 where there is a Certificate of Death for John Mugo Kamau, indicating that he passed away on 27th April 2002. PW3 noted that the transfer was purportedly made 3 years after the death of the said Mr. Mugo. In cross-examination, PW3 stated that he became general manager of the appellant company in September 2013 and it is at that time that he started interacting with the Company. 25.In opposition to the suit, Josphat Milimu Shiasubila Ingosi Kinya Konzolo (DW1), co-founder of the 1st respondent company, testified on his own behalf and that of the company. He adopted his written statement dated 2nd June 2016. DW1 asserted that the suit property is registered in the name of the 1st respondent and the title had been surrendered to the government for subdivision; that he acquired the property between 1998 and 2001 together with his wife, Noel Imbanga Konzolo, who had since passed on; they acquired the property from one John Mugo Kamau who they paid Ksh.96,000,000 in installments; and, they signed an agreement for sale dated 13th March 1998. DW1 averred that, upon paying the final instalment of the purchase price, his wife, Mrs. Konzolo collected the relevant completion documents from Mr. Mutinda, their advocate; he agreed with his wife that they should transfer the property to a company; they got their advocate to have the vendor sign two sets of transfers over a number of years; one set had the transferees named as him and his wife and the other had the 1st respondent’s name, Telesource.com; the transfer to the 1st respondent was lodged on 21st October 2005 and a Certificate of Title L. R. No. 209/3586/3 was issued. DW1 gave testimony that in 2009, they made an inquiry to the Nairobi City Council as to why no invoice for rates was being sent to them and it is at that time when they were informed that someone else was paying rates over the property. They complained to the City Council and the Ministry of Lands about the issue but it was not until the year 2011 that their complaint was addressed and they were subsequently issued with an invoice for the rates, which invoice they gave their lawyer with instructions to promptly ensure it was settled. In the process they learned that someone had prepared and presented a scheme to subdivide the property using a forged Certificate of Title Number 37285 under the name Muchanga Investment Limited. DW1 stated that they wrote a complaint to Lands Office on 18th May 2011 about the issue and decided to go ahead with the subdivision of the land for fear that if they did not do so, they would lose the land or any portion thereof. They learned that if they made the requisite payments they would be furnished with certified copies of the approved deed plans that had been issued to the appellant, who had allegedly illegally applied to subdivide the land. They made the requisite payments and were issued with certified copies of the deed plans that had been issued to the appellant. They engaged a registered surveyor to prepare the required documentation and submit their subdivision scheme to the government. The Ministry of Lands and Housing approved the documents and they were issued with original deed plans numbers L. R. 3586/202-398 and new Certificates of Titles for the various parcels of land from the subdivision. They were also issued with 196 Certificates of Title and they transferred titles numbers L.R. 209/3586/380,381,382,388 and 390 to Wanainchi Supplies Limited. 26.In cross-examination, DW1 was referred to the schedule of payments at pages 735 to 736 which is stamped by Mutiso Mutinda, Advocate, but not signed. DW1 confirmed that during his tenure as Managing Trustee of NSSF, he was charged with abuse of office in Criminal Case No. 6 of 2006. He was charged with an attempt to steal 100 Million from Barclays Bank; that he was also charged together with his lawyer in a criminal case in relation to the civil proceedings herein, and he went to court in Petition No. 230 of 2015 seeking to stop his prosecution. DW1 stated that he started purchasing the suit property in 1998 and completed the sale in 2001. He denied the averment that by the time he completed the transaction with Mr. Mugo, Mr. Mugo was deceased. DW1 confirmed that when they took possession of the suit property, there were some white people who were staying on the property and they were told that the white people were tenants of Mr. Mugo. DW1’s attention was drawn to the tenancy agreement dated 10th May 2010, between the appellant and Safaris Unlimited Africa Limited but he maintained that he was in possession when the transaction took place. In re-examination, DW1 stated that, he paid the purchase price in cash through installments because the vendor requested to be paid in cash; that although he had been charged with criminal offences over the suit property, he had not been convicted since the Court of Appeal halted the case. 27.The second witness to testify in support of the 1st respondent’s case was Macmillan Mutinda Mutiso (DW2), an Advocate of the High Court of Kenya, practicing in the name and style of M. Mutinda & Co. Advocates. He adopted his written statement dated 2nd June 2016 as his evidence in chief. His evidence was that in the year 1997, he met a client by the name of Mrs. Konzolo who had been introduced to him by a friend; in 1998, she went to his office and informed him that she was negotiating with an owner of a property in Karen with a view of purchasing it and that once they reached consensus, they would come back to him so that he could prepare the sale agreement; in the month of March the same year, Mrs. Konzolo went back to his office with a gentleman by the name John Mugo Kamau whom DW2 was informed was the owner of the Karen property; the two wanted him to prepare a sale agreement; Mrs. Konzolo had done a search on the property confirming that Mr. Mugo was the registered owner; Mr. Mugo was carrying the original title deed of the property and a copy of it and upon cross-checking the names on the title and those on his Identification Card, DW2 found that they were the same. 28.DW2 averred that, Mrs. Konzolo informed him that they had agreed on a purchase price of Ksh.96,000,000 and the modalities of payment. They also had a written schedule of payment which showed that the money was to be paid in eight installments from 1998 to 2001. DW2 inquired from Mr. Mugo whether he had his own advocates for purposes of the conveyance and he said that they agreed to use one advocate. DW2 explained that, he prepared the agreement and the parties executed it except Mr. Konzolo (DW1) who was to sign later; the original title was handed over to DW2 after Mrs. Konzolo paid the ten percent deposit; Mrs. Konzolo and Mr. Mugo would go to his office from time to time for him to witness subsequent payments; Mr. Konzolo later went to DW2’s office to append his signature to the agreement. 29.DW2 averred that in the year 2001, Mr. Mugo and Mrs. Konzolo went to his office and informed him that they wanted to conclude the transaction and thus they instructed him to carry out a search to confirm whether the land still belonged to Mr. Mugo. He carried out a search and found that the status was still the same. DW2 was then instructed to prepare the transfer documents and after some time, the parties returned to his office with Mrs. Konzolo carrying the final installment of Ksh. 400,000. They signed the schedule of payment and informed DW2 that they were contemplating registering a company to transfer the property to. It was agreed that since they had not yet registered the company and yet the vendor had already been the full amount, they would execute two sets of transfer documents, one in their individual names and the other in the name of the company that they were hoping to register. The purchasers also informed DW2 that they did not have money for stamp duty at the time. They agreed that the transfer documents would be post-dated up to 2005 and Mr. Mugo would sign all the documents so that the purchasers would not have to look for him in future. 30.DW2 testified that Mr. and Mrs. Konzolo took the original title and informed him that they would collect the transfer documents once they had raised the stamp duty and the company was registered. In 2005, Mr. and Mrs. Konzolo informed DW2 that the company was now registered and hence they wanted him to execute the documents of transfer to the company. He stamped and signed the documents and they carried them away to effect the transfer. 31.In cross-examination, he confirmed that the criminal case against him in relation to this case was still open and that he prepared the registration documents for the suit property but it was Mrs. Konzolo who registered them. DW2 confirmed that while the transfer of the suit property was registered on 25th October 2005, the application for the Land Control Board Consent was made on 2nd February 2005 and the 1st respondent Company was incorporated on 14th September 2005. He was not aware that at the time he made an application for consent, Mr. Mugo had died on 27th April 2002. DW2 agreed that on the face of the documents, the procedure followed was not proper, and if at the time of application for consent Mr. Mugo was dead, then the consent obtained subsequently was null and void. In re-examination, DW2 stated that, he was not sure whether the Mr. Mugo who died in 2001 was the same one that he dealt with; delay in granting consent does not invalidate the transfer and that the criminal case against him was withdrawn because the Court of Appeal found that the EACC was not properly constituted when they were charged. 32.No. 235014, Chief Inspector Patrick Waloba, from the Directorate of Criminal Investigations (DCI), testified as DW3 but was stood down because he had not filed his witness statement. Next to testify was Moses Mugendi (DW4), Assistant Director, Physical Planning, Ministry of Lands and Physical Planning. He adopted his statement dated 20th July 2016 as his evidence in chief. DW4 averred that, he had checked the records held in the lands office and had not come across any information or documents pertaining to existence of any part development plan or approved development application. Under the Physical Planning Act Cap 286 of the Laws of Kenya, all developments on any piece of land within the jurisdiction of any county government ought to be submitted to the respective county government or authority for approval. In the case of development applications relating to subdivision or amalgamation of land, such application should be accompanied with subdivision plans and other drawings prepared and signed by a registered physical planner, form PPAI filled by the land owner or appointed agent plus documents showing registration with the Land Control Board in case of agricultural land or registration with the National Land Commission in case of leasehold land. In case of approval or disapproval of the development application by the county government, communication of such decision is done on form PPA2 filled by the respective county government. DW4 explained that the purported subdivision of L.R 3586/3 ought to have gone through the process of approval by the county government of Nairobi with the Director of Physical Planning playing his statutory role as per section 32 of the Physical Planning Act before survey, registration and issuance of the resultant deed plans and certificates of lease. DW4 stated that he did not know whether the alleged developments on the suit property were in compliance with the relevant provisions of the law and the attendant regulations. 33.Peter Kang’ethe Kahuho (DW5), the Secretary at the Ministry of Lands and Physical Planning, at the material time, adopted his written statement as his evidence in chief. Regarding the suit property, he stated that he obtained a copy of the transfer document in respect of it from the Office of the Chief Land Registrar on 24th October 2014. Before he could confirm the authenticity of the transfer, he verified whether payment of stamp duty and valuation of the land had been done and whether the consent to transfer was issued by the Land Administration Division. He stated that the transfer that he obtained from the Chief Land Registrar related to John Mugo Kamau as the seller and M/s Telesource.Com Ltd as the buyer and the said transfer was allegedly done by the late G. S. Birundu on 25th October, 2005. The certificates of lease in respect of the subdivision were signed by W. M. Muigai, the Land Registrar, on 16th July 2014 and the date of the transfer from Mr. Mugo to Telesource.Com Ltd was indicated as 25th October 2015, which was materially different from the date entered on the Certificate of Title, which was 21st October, 2005. DW5 explained that the stamping of the transfer document covered the entire front page of the transfer document which was a major deviation from the norm as ordinarily the stamping should be done on the blank margin of the document or an additional page can be appended for stamping. DW5 averred that some time back Ms. Muchanga Investments Limited surrendered two titles and cancelled the subdivision of the entire parcel of land for which the subdivision had previously been done and deed plans issued. 34.Wilfred Muchae (DW6), a Principal Land Surveyor with the Ministry of Lands adopted the statement of his colleague who had since retired, John Mwangi Mwaniki, a Senior Surveys Officer, as his evidence in chief. Mr. Mwaniki had outlined the process of subdivision at the Office of the Director of Surveys. He explained that according to the records at Survey of Kenya, a letter under Ref. No.CR233/Vol.11/1100, dated 29th May 1990, was written to S. Ä. Harunani, a licensed Surveyor, informing him that the Survey work he had submitted on the subdivision of the suit property had been authenticated. The appellant had surrendered back to the Director of Surveys, the deed plans that S. A. Harunani had prepared for cancelling and had requested that the parcel to revert back to its former status. By a letter dated 1st August 2013, they wrote to the Surveyor informing him of the intended cancellation so that in case he had any issues with the client he would object to the cancellation; the surveyor had no objection and therefore the documents were cancelled. 35.On 28th February 2014, another licensed surveyor, L. K. Gitau, submitted a subdivision of the same parcel for processing and later submitted the Deed plans. During the preliminary and final stage of checking, it was noted that the survey work submitted by L. K. Gitau was similar to the one that belonged to S. A. Harunani and which had previously been cancelled, the only difference being the parcel numbering. Mr. Mwaniki stated that he did not know the client who hired Mr. L. K. Gitau but he presumed it was Muchanga Investments Limited because it is the one that had previously surrendered the earlier deed plans for cancellation. The deed plans in relation to the subdivision of the suit property were processed at Surveys Record Office and the Deed Plan drawing office before they were taken for signature and sealing. After sealing, an issue note was prepared for L. K. Gitau indicating the number of deed plans that had been signed. The note and the sealed deed plans were forwarded to the issuing officer for onward transmission to the Surveyor. Mr. Mwaniki averred that once survey records are cancelled, they cannot be used for any further land registration but a record of the same is maintained. In cross-examination DW6 indicated that he was not involved in the processing of the deed plans. 36.Emmanuel Arunga (DW7), the head of operations at EACC and an Investigator, relied on his statement filed on 5th September 2016 and the covering report that he prepared after carrying out investigations into the dispute herein. He averred that he led the investigation team that collected evidence and compiled the investigation report in respect of the suit property. The investigations made several findings among them being that several public officers connived with other individuals to fraudulently process ownership documents in favour of the 1st respondent. DW7 enumerated the government offices that they visited and the documents that they consulted in their investigations. He averred that he analyzed all the documents collected, interviewed and recorded statements of all people who interacted with the suit property, and made several observations including that; the property was a private property that was given as a grant to Gratton Bidulph Norman by the colonial government in the year 1919; as per the title obtained from the lands office which was in the custody of the Chief Land Registrar, there was no indication of who transferred the land to John Mugo Kamau; the IR No. on the Certificate of Title issued to Mr. Mugo was 31187, given on 24th August 1978; when they randomly compared that IR No. with an IR No. 32487 given to one Othniel Gakaho Njungwa on 14th August 1978, they observed that this number comes after the one issued to Mr. Mugo, which is not logical because the numbers should flow numerically; the Rent Clearance Certificate No. 308335 dated 10th January 2005, issued to Mr. Mugo and kept in the records of the Chief Land Registrar and, also presented to EACC by Josphert Konzolo, was a forgery because the booklet that housed the certificate was picked from stores on 19th December 2012 and the book was given to Mr. Muinde on 10th January 2013, who then issued the certificate to L.R. No. 12215. It was further observed that the Certificate of Stamp Duty number 46189, purportedly issued from the Department of Lands, did not appear in any of the records maintained at the Lands Office, instead, the booklet for Certificate of Stamp Duty No. 0046151 to 0046200 had not been issued for use. 37.DW7 and his team further noted that, the transfer from Mr. Mugo to the 1st respondent, as entered in the certificate of title, showed the date of transfer as 21st October 2005, but did not indicate the area of land transferred, nor the IR number and the LR number given; the transfer document between Arnold Bradley and Mr. Mugo as provided by Josphert Konzolo showed that the transfer was effected on 24th August 1978, which is not true because it was way after Arnold Bradley had passed on in 1973; the fact that Barclays Bank International Limited registered a probate of the Will of Arnold Bradley against the remainder of his title known as L.R. No. 3586/2 on 2nd March 1978, proved that Arnold Bradley was already out Of the scene and therefore he could not have possibly transacted on the property on 24th August 1978; the letter of consent presented by Josphert Konzolo showed that the suit property was sold by Mr. Mugo to Telesource.Com Limited and the length of term was 99 years; a contradiction of the mother title which showed that the term of grant was for 999 years. Further, it was averred that the Director of Survey usually charged checking fees of Ksh.1000 per plot for one hectare and below, and since Surveyor Gitau had redrawn one hundred and ninety-six (196) plots, that would have attracted a payment of Ksh.196,000. However, the fee that was paid was Ksh.199,000 which was an assumption that the parcels were one hundred and ninety-nine (199) as had been drawn by Surveyor Harunani. In the end, DW7 concluded that the suit property belonged to Muchanga Investment Limited and recommended charging in a court of law of all persons involved in the attempts to fraudulently transfer the property to the 1st respondent. 38.Mr. Edwin Wafula (DW8), the Land Registrar at the Chuka Land Registry at the time, and a representative of the chief Land Registrar, adopted his statement as his evidence in Chief. He generally described the registration process and in particular that the I.R No. on the Certificate of Title issued to Mr. Mugo was 31187, given on 24th August 1978. When the same was randomly compared with an I.R No 32487 given to one Othniel Gakaho Njuguna on 14th August 1978, it was revealed that the number came after one issued to Mr. Mugo which is not logical because the numbers should flow numerically. 39.Joseph Kangethe Wanyoike (DW8) adopted the statement by Catherine Njeri although during cross-examination he indicated that he did not know the said Catherine Njeri. According to the statement, the said Catherine was the legal representative of the Estate of the Late Carmelina Ngami Mburu who died in 2017 and who was the widow of the late John Godhard Ichahuria Mburu. It was averred that the suit property formed part of the estate of Mr. Mburu and subsequently the estate of the late Ms. Carmelina Mburu. Further averments by Ms. Catherine were as contained in the 6th respondent’s statement of claim and counter-claim as already narrated herein. 40.Nicholas Etyang (DW9) who had since retired at the time he gave testimony, testified that in 2015 he was at the DCI in charge of the Land Fraud Unit when in the course of service he interacted with the suit property. On 15th May 2015, Ms. Carmelina made a report on the issue of ownership of the suit property; they began investigations into the matter but before they could complete they were directed to hand over the investigations to the EACC. 41.At the end of the trial and upon parties filing written submissions, the learned Judge rendered himself as aforestated, holding that none of the parties who claimed the suit property was the lawful proprietor. 42.Aggrieved by that decision, the appellant lodged this appeal based on 20 grounds which, in summary, are that the learned Judge erred by;1.Disregarding evidence that confirmed that Barclays Bank International Limited, as Executor and Trustee of the Estate of the late Arnold Bradley, had sold the suit property to the appellant.2.Disregarding the evidence tendered by the appellant that it had lawfully acquired the suit property and had been in continuous possession for more than 43 years.3.Disregarding evidence on record from Barclays Bank Kenya Limited confirming that the administration of the Estate of the late Arnold Bradley had been concluded in January 1983 and the funds distributed to the beneficiaries of the Estate.4.Disregarding evidence tendered confirming that Barclays Bank Kenya Limited had signed the transfer of the suit property to the appellant.5.Framing and determining unpleaded issues of alleged fraud against the appellant and Barclays Bank in the sale and transfer of the suit property.6.Finding that the appellant had not paid the full purchase price when Barclays Bank had raised no complaint on the transfer of the property as the Executor and Trustee of the Estate of the late Arnold Bradley.7.Disregarding the evidence tendered by the appellant of the correspondence between the advocates in the transaction confirming receipt of payment.8.Holding that Barclays Bank had not demonstrated that it had applied the funds from the sale of the suit property as set out in the Will of the late Arnold Bradley.9.Raising and determining issues on the conduct of Barclays Bank, as the Executor of the Estate of the Late Arnold Bradley, a matter reserved for the High Court.10.Disregarding the evidence on record that the deceased's daughter, Imogen Lindsay Poppleton, had withdrawn the caveat registered against the suit premises on 2nd March 1978, and a portion of the property, after subdivision, was transferred to Arnette Therese Benson by Assent under the Will of the late Arnold Bradley.11.Disregarding evidence tendered by Barclays Bank that a charge was created over the property by the appellant in favour of Barclays Bank in 1983 to secure a facility of Ksh.10,500,000 advanced to Da Gama Rose Investments Limited.12.Assuming, contrary to the evidence on record that the firm of Da Gama Rose & Company Advocates had represented the late John Godhard Ichahuria Mburu during his lifetime.13.Making adverse findings against Francis Da Gama Rose and Horatius Da Gama Rose, despite them not being parties to the suit.14.Considering the allegations and assertions made in the Statement of Defence and Counterclaim, the submissions and statements of the 6th respondent, when he had struck out their pleadings and documents.15.Disregarding the judgment of the Court of Appeal in Civil Appeal No. 25 of 2002, Muchanga Invetments Limited vs. Safari Unlimited (Africa) Limited & Qthers [2009] eKLR, which had upheld the appellant's proprietary rights as the registered owner of the suit property.16.Granting a remedy not sought by any party in cancelling the Appellant's title and making orders in favour of the Estate of the late Arnold Bradley and directing the Public Trustee to apply for letters Of administration.17.Disregarding the limits of his jurisdiction, the evidence on record, the applicable principles of law, and the authorities cited, thereby making a perverse decision in law. 43.In the end the appellant urged that we should set aside the impugned decision and substitute it with an order allowing the suit with costs. Further, that the 1st respondent’s counter-claim dated 2nd June 2016 and the 6th respondent’s undated counterclaim be dismissed with costs to the appellant. 44.The 6th respondent filed a cross-appeal on six (6) grounds complaining that the learned erred by;1.Dismissing the 6th respondent’s Defence and Counterclaim.2.Making a finding that the 6th respondent lacked locus standi for the reason that he was not the personal representative of the Estate of the late John Godhard Mburu.3.Failing to consider the totality of the evidence placed before him to the effect that there was an enforceable and duly performed sale agreement between the late John Godhard Mburu and Barclays Bank International.4.Returning a finding that the registration of title over the suit property in favour of the late John Godhard Mburu was fraudulent.5.Failing to apply the appropriate standard of proof for civil disputes which ought to be determined on a balance of probability.6.Failing to appreciate that the late Arnold Bradley died testate and that his Estate, including the suit property, was fully dealt with and distributed by the duly appointed Executor of the Will.7.Failing to appreciate that the suit property ceased to be part of the estate of the late Arnold Bradley and cannot be administered by the Public Trustee.8.Directing that the suit property ought to revert to the Estate of the late Arnold Bradley and re-administered as part thereof despite the same having been lawfully transferred in favour of the late John Godhard Mburu. 45.The 6th respondent prayed that the cross-appeal be allowed, the impugned decision be partially overturned and his defence and counterclaim be allowed with costs. 46.When the matter came up for hearing before us, learned counsel, Mr. Issa Mansur appeared for the appellant, Mr. Kago and Mr. Kimutai appeared for the 1st and 8th respondents, Mr. Odongo appeared for the 2nd to 5th respondents, Mr. Nyerere holding brief for Mr. Awuor for the 6th respondent, Mr. Odhiambo holding brief for Ms. Jalega for the 7th respondent, Mr. Githu Muigai, SC, alongside Mr. David Angwenyi, Ms. Wambui Muigai and Ms. Brenda Nyabingi, appeared for the 9th respondent, while Mr. Mutuku appeared for the Public Trustee. Counsel elected to orally highlight their respective submissions which they had filed earlier. However, counsel for the 1st respondent chose to make oral submissions having not filed written submissions, while the 7th and 10th respondents elected to be neutral and not make any submissions. 47.Addressing us for the appellant, Mr. Mansur submitted that the appellant was registered as owner of the suit property by way of a transfer from Barclays Bank of Kenya Limited (the Bank), which was Executor of the estate of the late Arnold Bradley. He referred us to a copy of the transfer dated 29th December 1982, found at page 75 of the record. Counsel drew our attention to the fact that the transfer shows that a consideration of Ksh.1,250,000 was paid to the Bank by the appellant. He referred us to a copy of the application to transfer, at page 78, as well as the rent clearance certificate and other certificates that were procured by the Bank to enable the transfer. On reliance of section 97 of the Evidence Act, counsel argued that the issue of consideration payable to the Bank was answered by the transfer. To further demonstrate that the full purchase price was paid, he referred us to correspondence on pages 789 to 796 of the record. 48.On whether the appellant was the purchaser of the suit property, Mr. Mansur drew our attention to a letter dated 7th December 1978, at page 796 of the record where the Bank wrote to one of the tenants of the suit property stating, ‘We write to advise you that the above-mentioned property has recently been sold and with effect from 1st January 1979 we should be grateful if you would make your monthly rental payment in advance direct to Messrs. Muchanga Investments Ltd, P.O Box 20632, Nairobi’. The learned Judge was castigated for failing to take into account this letter. Further reference was made to the letter dated 7th September 1978, at page 787 of the record where the law firm of Kaplan & Stratton Advocates wrote to Messrs Francis Da Gama Rose & Co. Advocates forwarding the Title deeds of the suit property as listed in a schedule that was attached thereto. The documents included, grant No. IR.94; Probate of Arnold Bradley to the Bank; a letter of consent on the subdivision of the property, from Nairobi City Council; deed plan No. 100122 and deed plan number 10012 for surrender and, a withdrawal of caveat by the 9th respondent. According to counsel, the fact that the foregoing documents were released to Mr. Da Gama Rose, who was acting for the appellant, to enable him register the transfer, was demonstration that the full purchase had been received by the Bank. 49.Counsel cited the letter dated 1st October 1982, found at page 794 of the record, where Kaplan and Stratton Advocates, writing on behalf of the Bank, forwarded the executed transfer and title deed of the suit properly to Francis Da Gama Rose & Company Advocates. The letter further states that the grant of probate had already been registered against the title. Mr. Mansur submitted that the transfer was thereafter registered in favour of the appellant on 11th February 1983, and the appellant had been in possession until the suit herein was filed. Our attention was drawn to this Court’s decision in Civil Appeal No. 25 of 2002, delivered on 5th June 2009, found at page 278 of the record, where the Court found that the registered owner of the suit property was the appellant. Counsel pointed out that it is also evident from that decision that the respondent, who had sued the appellant for adverse possession, had been on the suit property as a tenant since 1969 before the appellant bought it in 1978. Mr. Mansur asserted that the judgment in Civil Appeal No. 25 of 2002 affirmed the appellant’s interest in the suit property and answered all the other questions that the learned Judge raised in the impugned decision regarding ownership of the property. The learned Judge was faulted for failing to consider that decision even though it was brought to his attention. Counsel highlighted that there was correspondence on record where Safaris Unlimited Africa Limited, the respondent in Civil Appeal No. 25 of 2002, was paying rent to the appellant as a tenant. 50.Our attention was further drawn to the letter at page 838, dated 24th February 2000, where the Kenya Revenue Authority demanded income tax from the appellant with respect to two tenancies that were existing on the suit property in years 1997 and 1998. Counsel challenged the claim by the 1st respondent that they had title to the suit property which they procured from one Joseph Mugo. He contended that Mr. Mugo presented documents to the 1st respondent which purported that he acquired title to the property from the late Arnold Bradley in 1978 when the said Mr. Bradley had died in 1974. Mr. Mansur contended that for that reason the title by the 1st respondent was a forgery, and thus invalid. Moreover, the date of the 1st respondent’s Certificate of Title predated the date of the transfer. Counsel urged that despite the learned Judge making a finding that the 1st respondent never had a valid title, and the purported subdivisions were invalid, the 1st respondent had not filed an appeal or cross-appeal against those findings. Concerning the 6th respondent’s claim, counsel highlighted that the learned Judge had struck out his proceedings because he could not, without getting authority from the High Court, represent the estate of John Mburu. Further, while it was pleaded that the suit property was registered in the name of Mr. Mburu on 7th March 1978, there is no transfer on record and a copy of the grant confirmed that there was no such transfer. 51.Counsel contended that the learned Judge acted without jurisdiction in attempting to review how the estate of the late Arnold Bradley was managed by the Bank, at paragraphs 203 to 215 of the judgment. He submitted that whether the estate was properly administered was a probate matter that fell within the jurisdiction of the High Court pursuant to the Law of Succession Act. To anchor that argument he cited REINHARD Vs. HEFTI & 4 OTHERS [2023] KECA 939 (KLR) and WANGAMATI & 3 OTHERS Vs. KHISA & 2 OTHERS [2025] KEELC 5664 (KLR). On the strength of the decision in DAVID SIRONGA OLE TUKAI Vs. FRANCIS ARAP MUGE & 2 OTHERS, [2014] KECA 155 (KLR), counsel urged that parties are bound by their pleadings, and the court is confined to determining issues as pleaded by the parties. Further, that the court cannot purport to frame its own issues for determination outside those framed by the parties. 52.Responding to a question from the Court on the date of the agreement for sale between the Bank and the appellant, Mr. Mansur submitted that the agreement was not part of the record and, the affidavit of Waweru Mathenge of Barclays Bank had confirmed that they used to have trustee services but they stopped providing those services way back in the year 2000 and most of the documents were no longer in their custody. Counsel directed us to correspondence which, to him, confirmed that there was an agreement, namely, letter dated 6th July 1978 at page 783 of the record, where Kaplan & Stratton Advocates forward a copy of the sale agreement duly stamped to Francis Da Gama Rose & Company Advocates. Further, it was urged that from 1978 upto 1983, the Law of Contract did not make it mandatory for an agreement of sale for purchase of property to be in writing. 53.In opposition to the appeal Mr. Kago contended that the appellants did not call any of the officers of the Bank to prove their case, instead, it is the 1st respondent who summoned one of the officers, one Mr. Waweru Mathenge, for cross-examination pursuant to an affidavit which he had sworn on 9th December 2014, and from that cross-examination, it allegedly became apparent that there was a disparity as to the manner of administration of the estate of Arnold Bradley and thus, the issue of administration became germane to the determination of the matter as the court endeavored to trace the root of the title that was being urged by the appellant. Counsel urged that the learned Judge made a finding that there was no sale agreement as between the Bank and the appellant. He contended that when they cross-examined the witnesses of the Bank and the appellant, it was apparent that there was no transfer that had ever been effected properly so, and, therefore the title of the appellant fell by the wayside. 54.Mr. Kago contended that nothing turned on the question of adverse possession as cited in Civil Appeal No. 25 of 2002 since the 1st respondent was not privy to the facts therein and the party who had raised the issue was never summoned to testify; that the court did not declare the appellant and could not have declared it, in a matter of adverse possession, as properly so-called owners of the suit property. Counsel submitted that the 1st respondent demonstrated in the court below that it purchased the property, and properly so; it produced a sale agreement dated 13th March 1998 showing that it purchased the suit property from John Mugo Kamau; it indicated the challenges it underwent in paying the Ksh.96 million, and how completion was done in 2001, but because of supervening circumstances, they only managed to transfer the property in 2005, and they paid a penalty and stamp duty. Counsel submitted that the 1st respondent was thereafter given title to the property and it proceeded to subdivide it in the year 2014. He acknowledged the contention that was raised against the 1st respondent that, while Arnold Bradley had passed on in 1973, the transfer to Mr. Mugo purportedly took place in 1978. Mr. Kago contended that the 1st respondent did indicate that when it purchased the property it was not aware of that state of affairs, since Mr. Mugo is the one who delivered vacant possession and they took possession upon purchasing. It was submitted that it is when the 1st respondent started the process of subdivision, that the appellant moved in and tried to secure orders to dispossess and to remove the 1st respondent from the property. At that point, the 1st respondent was supposedly in possession. 55.Referring to section 23(1) of the defunct Registration of Titles Act, the applicable statute at the time, counsel submitted that the only way a title can be defeated is on account of fraud, which the title owner is proved to have been part of. He urged that no court had found the 1st respondent to have been party to any fraud. It was urged that the estate of Arnold Bradley neither challenged the sale to Mr. Mugo nor did they challenge the title to the 1st respondent and they had only come to this Court after the learned Judge had made a determination that the property should trace back to Arnold Bradley. Counsel contended that the 1st respondent was prejudiced because it had not been given an opportunity to interrogate any claims, if at all, by Arnold Bradley, and that the same cannot now be tendered in this Court. In conclusion Mr. Kago urged that the appeal was without merit and it should be dismissed with costs. 56.We inquired from Mr. Kago whether the learned Judge had the jurisdiction to inquire into the administration and executorship of the estate of Arnold Bradley, especially where the issue was not pleaded. Counsel’s reply was that the court had jurisdiction because it was pleaded that the appellant purchased the suit property from the Bank and, therefore, the court had to trace the root of the title. 57.We inquired from counsel whether as a matter of fact a complaint was ever raised by the beneficiaries of the estate of the late Arnold Bradley regarding administration and executorship. Counsel’s answer was that there had been no such complaint. 58.We sought Mr. Kago’s view on the legal import of the then final Court’s findings in Civil Appeal No. 25 of 2002, that the appellant was the registered owner of the suit property and had been in possession. In response counsel argued that the issue of ownership could not have been brought to bear in an adverse possession case since all parties to the suit herein were not parties there. We inquired from counsel whether the learned Judge directed himself at all on that decision. Counsel agreed that the learned Judge did not make any comment on the import of that decision. Referring to the submission that Arnold Bradley allegedly transferred the suit property to Mr. Mugo in 1978, when he had died in 1974, we probed Mr. Kago on whether that position had an impact on the tracing of the root of the title. He reluctantly agreed that there would be a consequence. 9.Addressing us on behalf of the 2nd to 5th respondents, Mr. Odongo urged that we be guided by this Court’s decision in Munyu Maina Vs. Hiram Gathiha Maina [2013] eKLR on the question of the root of the title. He argued that while the appellant had argued that they purchased the land from Barclays Bank, they had not produced any agreement of sale. Counsel contended that while the correspondence on record namely, letter dated 18th January 1978, letter dated 30th June 1978 and letter dated 15th August 1978, referred to an agreement for sale dated 16th December 1977, the appellant was only incorporated on 18th April 1978. He questioned whether the agreement for sale was between the Bank and the appellant, or with another entity. Counsel affirmed the learned Judge’s conclusions, arguing that there was no nexus between the appellant who was incorporated in 1978 and the Bank, in terms of the agreement of 16th December 1977. Mr. Odongo contended that the 6th respondent’s cross-appeal had no merit considering the trial court’s finding that he had no locus to institute the proceedings on behalf of the estate of Mr. Mburu. In conclusion counsel urged us to uphold the impugned judgment. 60.We interrogated Mr. Odongo on why his clients, the 2nd to 5th respondents seemed to have issued multiple titles for the same piece of land. Counsel submitted that the records at the Ministry of Lands showed that the titles of the 1st and 6th respondents were not issued properly; that a report by an Investigator from EACC confirmed that those titles had several irregularities. The appellant’s title was however recognized as having been issued by the Lands Office. We inquired from counsel what we were to make of his submission that, the appellant’s title originated from the Ministry of Lands, but at the same time, his questioning the root of that title. Further, what was the implication of the transfer that was on record. While agreeing that the transfer was an accurate representation of the position at the Lands Office, counsel questioned the foundation of the transfer. We drew counsel’s attention to the fact that the amendment to section 3(3) of the Law of Contract Act, requiring agreements for sale of land to be in writing was enacted in 2003, a requirement that was not there when the transaction in issue was conducted. While agreeing with that guidance, counsel maintained that what the trial court was trying to do is trace the root of the title. 61.Submitting on behalf of the 9th respondent, Mr. Githu Muigai, SC, asserted that one question that was uncontested was that the land in question was owned by the late Arnold Bradley. Counsel contended that from all the evidence before the court, it was evident that there has never been a legitimate and lawful transfer to any person whatsoever; that either the suit property still belonged to the late Arnold Bradley or the appellant has to demonstrate to the required evidential standard how, if at all, it could have acquired the title in the estate. Counsel contended that the Bank could only sell the suit property on behalf of the estate of Arnold Bradley, if they could establish that the same was consistent with the Will and with the Law of Succession in force at the time of the sale. 62.Mr. Muigai, SC endorsed the impugned decision terming the analysis of the learned Judge “meticulous” and as one that “went beyond the call of duty” in finding that the appellant had failed to establish the root of the title because the Bank did not indicate when the suit property was sold, to whom it was sold, if any money was received for the sale, and if any money was accounted to the beneficiaries. Our attention was drawn to paragraphs 204 to 206 of the impugned judgment where the learned Judge made those findings. Further, we were referred to the learned Judge’s findings at paragraphs 207 to 233 where he castigated the conduct of Francis Da Gama Rose & Company Advocates. 63.Contrary to the appellant’s position that the learned Judge acted without jurisdiction, Senior counsel contended that the Judge acted within his jurisdiction, applied settled law, conducted a proper root of title inquiry, and reached an unimpeachable conclusion that none of the parties could establish the root of their title to the property of the 9th respondent’s late grandfather, Arnold Bradley. Mr. Muigai, SC contended that the present appeal is both jurisdictionally misconceived and evidentially without basis. In this respect he set out two (2) questions for determination namely, whether the learned Judge lacked jurisdiction under Article 162 of the Constitution and section 13 of the Environment and Land Act, and whether the appellant proved that the 7th respondent had lawful authority to sell the suit property. Counsel answered those two questions in the negative. He cited Kagau & Another Vs. Kagau & Another [2025] KECA 696 (KLR), where this Court while relying on Selle & Another Vs. Associated Motor Boat Co. Ltd & Others 119681 EA 123, held that the appellate court must re-examine the evidence, evaluate it independently and form its own conclusions, while recognising that it has not seen or heard the witnesses. 64.Addressing the question of jurisdiction, Mr. Muigai, SC submitted that there is no doubt that the learned Judge being a Judge of the Environment and Land Court was within jurisdiction in determining ownership of the suit land. It was submitted that the learned Judge was duty-bound to apply the established jurisprudential standards regarding the scrutiny of root of title, as articulated by the Supreme Court in Dina Management Ltd Vs. County Government Of Mombasa & 5 Others [2023] KESC 30 (KLR). In that decision, the Court reaffirmed the principle, first expounded in Munyu Maina Vs. Hiram Gathiha Maina, [2013] eKLR, that where a registered proprietor’s root of title is challenged, it is not sufficient to merely produce a certificate of title; the instrument of title itself becomes the subject of scrutiny, and the registered proprietor bears the burden of going beyond the title to demonstrate the legality, propriety, and regularity of its acquisition. On reliance of the Court’s decision in Sehmi & Another Vs Tarabana Company Limited & 5 Others [2025] KESC 21 (KLR), it was submitted that where the foundation of a registered proprietor’ s title is called into question, reliance on the certificate of title alone is inadequate; that in such circumstances, the title instrument is opened to judicial scrutiny, and the proprietor bears the evidentiary burden of demonstrating, through credible and persuasive proof, that the title was obtained procedurally, lawfully, and without any irregularities. 65.Counsel submitted that land under trusteeship is in a special category of land and one must inquire into the lawfulness of the title and the administration of trusteeship, which the learned Judge did. He termed the contention that the learned Judge could have arrived at a decision without inquiring into the question of administration of trusteeship as being without basis. On reliance of the decision in Ann Wairimu Wanjohi Vs James Wambiru Mukabi [2021] KECA 476 (KLR) where this Court cited with approval the case of G. K. Macharia & Anor. Vs. Lucy N. Mungai [1995] eKLR, it was asserted that this Court retains broad and inherent discretion to frame and consider issues that are closely connected to, and essential for, the just and final determination of a dispute, irrespective of whether such issues were expressly pleaded. Counsel contended that the heart of this matter was whether the Trustee had the power to sell the suit property. The decision in Jennifer Nyambura Kamau Vs. Humphrey Mbaka Nandi [2013] eKLR as cited with approval in Evans Otieno Nyakwana Vs. Cleophas Bwana Ongaro [2015] KEHC 8440 (KLR), was referred to for the principle that he who alleges must prove. Counsel challenged the appellant’s averments that, there was a lawful sale; there was authority of the trustees and there was compliance with the fiduciary duty. He contended that the appellant made no reference to the Deed of Family Arrangement, 1976, Further Deed of Arrangement and section 83 of the Law of Succession Act, Cap. 60, Laws of Kenya which requires a personal representative to distribute to the beneficiaries assets of the deceased and complete the administration lawfully. It was urged that a look at the above stated documents and the will itself revealed that one half of the residue of the estate was distributed to Annette Benson, and another to Imogen Lindsay Poppleton. In conclusion, counsel asserted that the Bank had no authority to sell; no consent of the beneficiaries; no compliance with section 83 of the Law of Succession Act; no proof of purchase and it did not do a valid completion. In the end Mr. Muigai, SC urged us to dismiss the appeal in its entirety, affirm the impugned judgment and award costs to the respondents. 66.We sought to know from counsel whether the 9th respondent ever file proceedings challenging the Executors, and what they did to the estate to which in the end she became a beneficiary. Mr. Muigai, SC responded that his client had only become aware of the existence of the dispute when the impugned judgment was published in the Kenyan newspapers. Upon further nudging, counsel admitted, at last, that no such proceedings had been instituted. 67.Addressing us on behalf of the 6th respondent, Mr. Nyerere contended that on the face of the letter at page 1252 of the record, the person to whom the sale of the suit property was made is John Gothard Mburu, who was copied therein. He submitted that it was the 6th respondent’s case that upon the demise of the late John Mburu, there was an elaborate scheme of fraud to disposes his estate of the suit parcel. Counsel contended that while the trial Judge fell short of finding that the property was duly acquired by the late John Gothard Mburu, for the reason that there was no sale agreement, correspondence on record including the letters at pages 264, 1252, 267 and 268 pointed towards communication over an acceptance of offer and payment of consideration as between the Bank and the late Mr. Mburu. 68.Counsel urged that there had not been any challenge whatsoever against the actions of the Bank, the Executor of the will of Arnold Bradley, and there had also been no challenge to the validity of the records at pages 303 to 343 which are annexes to the affidavit by Barclays. It was submitted that the said records demonstrate how the proceeds of the estate were dealt with. Mr. Nyerere asserted that the Bank had the capacity to deal with the suit property, and it did so in favour of Mr. Mburu. On the question of locus, counsel contended that Ms. Carmelina had demonstrated before the trial court her interest in the suit property and upon her demise, the 6th respondent who was the Administrator of her estate took over the proceedings to its conclusion. Counsel argued that the 6th respondent believed that the question of locus was settled by the trial court early in the proceedings, and that since that it was demonstrable that there was a high probability that Mr. Mburu had acquired the suit parcel, the cross appeal ought to be allowed. We inquired from counsel whether apart from the correspondence he had referred to, there was any other way of proving that Mr. Mburu paid the purchase price. His reply was that there was none apart from the letter found at page 1252 of the record. 69.In reply to the submissions by the respondents, Mr. Mansur began by responding to the 6th respondent. He submitted that the issue of locus turns on whether Ms. Carmelina Mburu could represent the estate of the late John Mburu when she was not the administrator; the administrator of the estate of the late John Mburu was the Public Trustee and there was no application that was made to substitute the Public Trustee in the High Court for them to have the locus and the standing to appear before the Environment and Land Court. Counsel contended that the Grant of Letters of Administration to the Public Trustee remained valid and he was the only one authorized in law to lodge any claim on behalf of the estate of the late John Mburu. To buttress this argument counsel cited the decision in Public Trustee Vs. Githinji Mararo & 4 Others [2014] KECA 776 (KLR) and Rugiri Vs. Kinuthia & 3 Others [2024] KECA 1601 (KLR). Mr. Mansur affirmed the striking out of their claim by the learned Judge and urged that even if the claim was to be evaluated on its merits, the 6th respondent could not produce any transfer to support his argument that Mr. Mburu was registered on the property on 7th March 1978. He contended that contrary to Mr. Odongo’s submissions herein, the Attorney General had supported the appellant’s claim in the court below. 70.This being a first appeal, our duty as enshrined under rule 31(1)(a) of the Court of Appeal Rules, 2022 was articulated in the case of Abok James Odera T/a A.j Odera & Associates Vs. John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re- evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 71.It is in cognizance and execution of our duty that we have gone to great lengths to set out the evidence that was presented before the trial court and the contending interpretations thereof by the parties. We have also pointed out the germane questions we posed to counsel during their addresses to us. It is for that reason that we do not propose to go into extended rehash of that evidence thereafter having given the same due, exhaustive and independent treatment. 72.Upon reviewing the record of appeal and the submissions by counsel, we think the substantive question herein is who was the lawful registered owner of the suit property and this question is one fully answerable by the evidence on record the relevant law being itself quite settled. 73.The appellant contests the learned Judge’s finding that it did not establish that it lawfully acquired the suit property, arguing that it was the registered owner of the property by way of a transfer from Barclays Bank which was the Executor of the estate of the late Arnold Bradley. At page 75 of the record is found the transfer itself indicating that Barclays Bank of Kenya Limited (formerly Barclays Bank International Limited) in consideration of the sum of Ksh.1,250,000 paid to the Bank by the appellant, Muchanga Investments Limited, transferred Land Reference Number 3586/3 (Original Number 3586/2/3) measuring 54.39 hectares or thereabouts, being a portion of the Grant registered as Number I.R. 94/1. The transfer is shown to have been registered on 29th December 1982. On reliance of section 97(1) of the Evidence Act, the appellant contends that the question whether consideration for the purchase of the property was paid to the Bank is answered by the transfer itself. Section 97(1) provides that,“When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act.” 74.To further fortify the argument that the appellant was the purchaser of the suit property, counsel referred us to various correspondence on the record including letter dated 7th December 1978 at page 796, where the Bank wrote to one of the tenants of the suit property informing them that the property had been purchased. The letter is captured as follows;N.A. Dundas, Esq.,Box 24854 NAIROBI.Dear Mr. Dundas,L.R. No. 3586/3 LangataWe write to advise you that the above-mentioned property has recently been sold and with effect from 1st January 1979 we should be grateful if you would make your monthly rental payments in advance direct to Messrs Muchanga Investments Ltd, P.O Box 20632, Nairobi.Yours faithfully,C. Graham Assistant Manager 75.Also cited by counsel is letter dated 7th September 1978, at page 787 of the record where the law firm of Kaplan & Stratton Advocates, acting for the Bank, wrote to Messrs Francis Da Gama Rose & Co. Advocates, forwarding the Title deeds of the suit property as listed in a schedule that was attached thereto. The letter reads;Dear Sirs,Ref: L.R. No. 3586/3 – LangataThank you for your letter of the 23rd August, 1978.We now forward herewith the Title Deeds of the above property as listed in the schedule hereto. Please acknowledge receipt by signing and returning to us the first and second copies of the schedule.Yours faithfully,Kaplan & Stratton. 76.The appellant further relies on a letter dated 1st October 1982, found at page 794 of the record, where Kaplan and Stratton Advocates forwarded the executed transfer and title deed of the suit property to Francis Da Gama Rose & Company Advocates. The letter is captured as below;Dear Sirs,RE: L.R. Number: 3586/3 – Lang’ataWe thank you for your letter of 3rd September, 1982 and now return to you herewith the executed Transfer and Title Deed as listed in the Schedule. Please acknowledge receipt by signing the original and duplicate of the Schedule and returning to us. You will note that the Grant of Probate has already been registered against the Title.Because of the considerable delay on the part of your client in completing its purchase, our client has incurred unnecessary costs. On the other hand, certain rent monies were received by our client and our client proposes to offset its costs against these rent monies and reserves its rights in this respect. Doing so, there will be no necessity for payment of any monies by either party to another. Please confirm the acceptance of your client of this position.Yours faithfullyKAPLAN AND STRATTON. 77.According to the appellant, the fact that title documents were released to Mr. Da Gama Rose, who was acting for them, was demonstration that the full purchase price had been received by the Bank. It is urged that after registration of the transfer on 11th February 1983, the appellant was in possession till when the suit herein was filed. We note that during trial PW3, a Director and General Manager of the appellant company, was referred to multiple documents where the appellant was addressed, with respect to the suit property, or payment concerning the property was paid to it. The documents include, letter dated 24th February 2002 from the Kenya Revenue Authority found at page 838 of the record, which mentions two tenancies that were existing on the property at the time; a service contract between BABS security services Ltd and the appellant to provide security services on the suit property found at page 839 of the record; letters dated 11th August 2011, 9th November 2012 and 25th April 2013, at pages 842, 843 and 845 of the record, regarding a boundary dispute between the suit property and Hillcrest International School; land rent and rates receipts and demands from the lands office concerning the suit property, and payment of the same, at pages 847 to 905 of the record. 78.Our attention was drawn to this Court’s decision in Civil Appeal No. 25 of 2002, Muchanga Investments Ltd vs. Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR, at pages 907 to 919 of the record, where the Court held that the appellant was the registered owner of the suit property. In the matter, Safaris Unlimited (Africa) Ltd who were the appellant’s tenants on the suit property since, reportedly, the year 1969, had sued in the High Court claiming adverse possessor’s interest in the property. The High Court found in their favour but on appeal that decision was overturned, the Court holding that a mere contractual right in the land was not sufficient to give rise to a registrable interest. 79.Our consideration of the above stated correspondence and this Court’s decision, lead us to no other conclusion than the inescapable one that the appellant satisfactorily demonstrated that it was the legally registered owner of the suit property and had continually been in possession. We find so bearing in mind the evidence of DW7, an Investigator from the EACC, who testified during trial that they carried out investigations into the dispute herein and found that the appellant was the legal proprietor of the suit property. Indeed, during trial, counsel for the 2nd and 5th respondents did not deny the legality of the transfer in favour of the appellant. He however questioned the root of the title on the premise that the appellant did not produce the sale agreement by which the property was sold to it. We observe that the absence of an executed sale agreement was also an issue identified by the learned Judge. 80.The appellant, however, contends that the amendment to section 3(3) of the Law of Contract Act, requiring agreements for the sale of land to be in writing, was enacted in 2003, long after the property was transferred to it. The position taken by the appellant was aptly captured by this Court in Peter Mbiri Michuki Vs. Samuel Mugo Michuki [2014] KECA 342 (KLR) as follows;24.Section 3(3) of the Law of Contract Act provides that no suit based on a contract of disposition of interest in land can be entertained unless the contract is writing, executed by the parties and attested. Section 3(7) of the Law of Contract Act excludes the application of Section 3(3) of the said Act to contracts made before the commencement of the subsection. Section 3(3) of the Law of Contract Act, came into effect on 1st June, 2003. The trial court found that the sale agreement between the parties was an oral agreement made in 1964 between the appellant and the plaintiff. Prior to the amendment of Section 3(3) of the Law of Contract Act in 2003, the subsection read as follows:“(3)No suit shall be brought upon a contract for disposition of an interest in land unless the agreement upon which, the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorized by him to sign it;Provided that such a suit shall not be prevented by reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to perform his part of a contract-1.Has in part performance of the contract taken possession of the property or any part thereof;Or2.Being already in possession, continues in possession in part performance of the contract and has done some other act in furtherance of the contract.’” 81.The appellant having demonstrated that it was continually in possession of the suit property until when the suit herein was filed, we respectfully find that the learned Judge erred when he impeached the appellant’s title on the basis that it had not furnished an executed sale agreement. We think the total sum of the evidence in this matter significantly and unerringly shows that the appellant is the legally registered owner of the suit property and we so find. 82.In contrast to the solid evidentiary and unimpeached oral evidence rendered on behalf of the appellant, we have the sketchy and contradictory evidence of the respondents laying claim to the suit properly through the late Mr. Mburu. The contradictions, improbabilities and impossibilities of that evidence has already been adverted to including the absence of consideration, and, startlingly, the presentation of documents purported to have been executed by the Arnold Bradley years after his demise and the purported transfer by the late Mr. Mburu himself years after his own death. Such transfers by men long dead cannot be the foundation of valid title and can only be demonstrative of fraud and mischief as was found by the Anti-Corruption body as its officer testified. As we stated earlier, we need not rehash those evidentiary infirmities in further detail than already captured earlier in this judgment save to say there was enough material on which the learned Judge should have made appropriate and compelling inferences as to the credibility deficit of those parties’ cases. 83.We also are of the firm view that given the case as presented by the parties before the trial court, the issue was ownership of the suit property and the DINA Management Ltd case (supra) was no justification for the learned Judge to venture into questions of the administration, or alleged mal-administration, of the estate of the late Arnold Bradley, over which he clearly was bereft of jurisdiction. At any rate, it is quite plain from the record that the 9th respondent never challenged or cast aspersions against Barclays Bank over the administration, or executorship of the estate. The belated entry of the 9th respondent into the fray, many years later, is an afterthought and does not defeat the appellant’s validly established root title. 84.In the upshot, we find the appeal to have merit and allow it, and the cross appeal must perforce trial. We set aside the judgment and decree of the Environment and Land Court at Nairobi, issued on 27th March 2025, and substitute therefor an order that judgment be entered for the appellant against the respondents in terms of prayers (a) to (f) of the Plaint dated 1st September 2014. 85.The appellant shall have the costs of the appeal and of the proceedings below.Order accordingly. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.O. KIAGE…………………….………… JUDGE OF APPEALR. NGETICH……………………………… JUDGE OF APPEALRADIDO S. OKIYO………………..…………… JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR