Muhindi & another (Both suing in their capacity as the administrators of the Estate of Elizabeth Mumbi) v Kimani (Sued in her capacity as the administrator of the Estate of Timothy Kimani Mungai) & another (Environment and Land Case 87 of 2017) [2026] KEELC 3537 (KLR) (5 June 2026) (Judgment)

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND AT THIKA** **ELC NO. 87 OF 2017** **ANTHONY JUSTUS MUHINDI & - 1ST PLAINTIFF** **ALICE JOYLINE THUGURI** **(both suing in their capacity as** **The administrators of the estate** **Of ELIZABETH MUMBI)** **VS** **VIRGINIA WANJIKU KIMANI** **(sued in her capacity as the administrator** **Of the estate of TIMOTHY KIMANI MUNGAI - 1ST DEFENDANT** **AWENDO COMPANY LIMITED - 2ND DEFENDANT** **JUDGMENT** 1. This case commenced in Nairobi in 2009 and was subsequently transferred to Thika after the establishment of the Environment and Land Court (ELC) in Kiambu County in 2017. It is regrettable that the case has experienced such delays in its resolution, remaining within the justice system longer than it should. 2. Vide an amended Plaint dated 7/2/2019, the Plaintiff sued the Defendants for orders THAT; 1. The 1st Defendant be compelled to sign all the necessary transfer documents to the Plaintiff to enable the Plaintiff to obtain her title for the three acres that she is in possession of on land parcel No LR No 61/37 Ruiru Mwihoko, that in default, this Hon Court be pleased to sign the transfer documents on behalf of the Defendants. 2. The 2nd Defendant be compelled to issue the title for the remaining one acre to the Plaintiff, he unlawfully and illegally subdivided and transferred to three other persons, and in default be compelled to pay the Plaintiff the one acre at the current market price/value. 3. The 2nd Defendant is ordered to compensate the Plaintiff for the breach of the agreement. 4. The 2nd Defendant be compelled to compensate the Plaintiff for the one acre sold to the 3 parties at the current market value/price. 5. The 2nd Defendant be compelled to allocate the remaining one acre to the Plaintiff. 6. The Defendants be ordered to pay the costs of the suit 3. In brief, the Plaintiff's assertion is that in 2006, their deceased mother, Ms. Elizabeth Mumbi, acquired three acres of land from the 1st Defendant, to be carved out of LR No. 61/37, which comprised a total of 31.5 acres. Subsequently, she purchased an additional one-acre parcel. The consideration was paid in full, and she awaited the formal transfer of title to her name. 4. Two years later, the 1st Defendant transferred the entire parcel of land to the 2nd Defendant pursuant to an agreement between the parties under which the 2nd Defendant held the four acres in trust for the Plaintiff and was to subsequently transfer them to the Plaintiff. In accordance with the terms of the agreement, the four acres were surveyed and beaconed, and the Plaintiff took possession of the land and began development, including the construction of her permanent residence. 5. In total disregard of the aforementioned agreement, the 2nd Defendant and its agents encroached upon the four acres in November 2009, subdivided the land, and erected structures thereon. Despite demand, the Defendants have failed to transfer the 4 acres to the Plaintiff, hence the instant suit. 6. The 1st Defendant, in her statement of defence, acknowledged the sale of 4 acres to the Plaintiff. The total consideration of Kshs 1.0 million was duly acknowledged. Furthermore, it is admitted that the Plaintiff took possession of the land. 7. It was further conceded that the 1st Defendant and her deceased husband sold a portion of 24 acres to the 2nd Defendant and transferred the entire land to the 2nd Defendant on the understanding that the 2nd Defendant would execute all necessary documents to transfer the 4 acres to the Plaintiff. Moreover, the 1st Defendant's family was to remain in possession of 3.5 acres. The 1st Defendant urged the Court to allow the Plaintiff's suit to the extent of the admission. 8. In her counterclaim, she reiterated the contents of her defence and added that it was agreed in good faith between her and her deceased husband that the entire land be transferred to the 2nd Defendant on the understanding that, after subdivision of the entire property, the 2nd Defendant would distribute the suit land as follows; 1. A portion of 24 acres to be retained by the 2nd Defendant 2. A portion of 4 acres to be transferred to the Plaintiff 3. A portion of 3.5 acres be transferred to the 1st Defendant. 9. That the 2nd Defendant reneged on the agreement regarding the distribution of the suit property and unlawfully retained the 7.5 acres without any consideration. Consequently, the 1st Defendant sought the following orders; 1. A declaration that the Defendant [sic] is only entitled to 24 acres from the suit property. 2. An order directing the Defendant to transfer the suit property, LR No. 61/37, to the Plaintiff in the main suit and the Plaintiff in the counterclaim as follows: 10. a portion of 4 acres to the Plaintiffs in the main suit; 11. a portion of 3.5 acres to the Plaintiff in the counterclaim, together with the costs of the counterclaim. 12. Alice Joyline Thuguri testified as PW1. She stated that she is the administrator of the estate of Elizabeth Mumbi, deceased. She relied on her witness statement dated 30/11/2021 and adduced documents in support of her case marked PEX No 1-9. 13. She reiterated the contents of the amended plaint and added that her mother, Elizabeth Mumbi, had bought 4 acres from the 1st Defendant and had died before the title was transferred into her name. Subsequently, she paid Kshs 227,000/- to process the deed plan and subdivide the land, in accordance with the agreement between the parties. Instead, the 2nd Defendant has refused to transfer the land to the Plaintiff. 14. She stated that the 4 acres were to be excised from the main land, LR No 61/37. She further mentioned that her mother had paid the 1st Defendant and her late husband for the land. She clarified that she was not involved in the transaction and therefore would not be aware of whether the land control board had given its consent. Additionally, she is unaware of the main land being divided into 270 plots. Regarding whether a trust was established in her mother's favour, she stated that the minutes of 23/10/2008 indicate that the parties agreed that the 2nd Defendant would hold the Plaintiff's portion in trust for her mother. 15. Virginia Wanjiku Kimani testified as DW1. Relying on her witness statement dated 2/8/2008 and documents marked as DEX No 1-3, she stated that the Plaintiff purchased 4 acres from her and her late husband. They later sold 24 acres to the 2nd Defendant [see the sale agreement dated 18/6/2008] and transferred the entire land to the 2nd Defendant. 16. Referring to the minutes of 23/10/2008, she stated that it was the 2nd Defendant's responsibility to subdivide the land, issue titles for 4 acres to the Plaintiff and 3.5 acres to her family, and retain the balance of 24 acres. She added that the 2nd Defendant has refused to cooperate. 17. In addition, she stated that the Plaintiff paid for the 4 acres of land, took possession of it, and constructed a family home where she resides with her family. Therefore, she is not a trespasser. She stated that she has no claim to the 24 acres that were sold to the 2nd Defendant. 18. Paul Njenga testified as DW2 on behalf of the 2nd Defendant. He stated that he is the director of the 2nd Defendant. He relied on his witness statement dated 10/2/2022 and adduced and marked DEX NO 4-5. 19. He stated that the 2nd Defendant owns LR No 61/37, which was purchased from Timothy Kimani Muigai, the deceased husband of the Plaintiff. The Plaintiff is therefore a stranger, as the 2nd Defendant did not transact with the Plaintiff. He denied that 4 acres were apportioned or surveyed for the Plaintiff. Upon acquiring the land, the 2nd Defendant was at liberty to sell to third parties. 20. He stated that the 2nd Defendant is a land-buying company. The 2nd Defendant acquired the land between 2007 and 2008. As at 17/9/2008, the land was registered in the name of the 2nd Defendant. He further added that they had purchased 24 acres of the entire parcel of land and that he possesses the sale agreement and the transfer documents for the additional land, although he did not present them in Court. 21. He stated that he was not acquainted with Elizabeth Mumbi and was unaware of her and her family's ownership of 4 acres of land. He mentioned possessing a Court order for her eviction but elected not to enforce it. Additionally, approval from the land control board was obtained for the transaction; however, he did not present it in Court. Upon examining the title, the witness indicated that there are no registered subdivisions on the title, nor are there any entries supporting any subdivision. Furthermore, the 2nd Defendant subsequently acquired the remaining 7.5 acres; however, he did not submit the sale agreement or a transfer document in support. 22. He stated that the Plaintiff and her family are in possession of the land and that he paid Kshs 702,000/- to the Plaintiff, although he did not present any evidence before the Court. That Kimani transferred 5 acres, which were subsequently sold to the 2nd Defendant. Currently, the Plaintiff occupies 2 acres, while the 1st Defendant occupies 1 acre. **The written submissions** 1. Regarding whether the 2nd Defendant should be compelled to execute the transfer documents to facilitate the Plaintiff's acquisition of title, the Plaintiff submitted that the Plaintiff, the 1st Defendant and her late husband, and the 2nd Defendant entered into an agreement for the sale of L R No 61/37, dated 18/6/2008. Clause 7 of the agreement provided that, in the event of failure to complete the sale, the Plaintiff would be entitled to a refund of the amount paid under the agreement, together with all liabilities incurred by the Plaintiff as a result of the vendor's breach. The Plaintiff further submitted that the 1st Defendant supports her claim, while the 2nd Defendant has not provided any justifiable reason for failing to transfer the 4 acres to the Plaintiff in accordance with the agreement. The Court was urged to order the 2nd Defendant to execute the transfer documents to enable the Plaintiff to acquire title to the land. 2. Regarding whether the 2nd Defendant should be compelled to transfer the title of the remaining parcel of land to the Plaintiff, and, in the absence thereof, to compensate the Plaintiff for breach at the current market value, the Plaintiff submitted that, having presented evidence before the Court supporting the purchase of 24 acres, the 2nd Defendant has no interest or claim in the 4 acres previously acquired by the Plaintiff, which should be transferred to the Plaintiff. The 2nd Defendant, having adduced evidence that it sold 2 acres out of the 4 acres purchased by the Plaintiff to third parties, argued that the appropriate remedy is to order the 2nd Defendant to compensate the Plaintiff for those two acres at market value. 3. Further, it was submitted that the 2nd Defendant breached the agreement of 23/10/2008, in which the 2nd Defendant was to transfer 4 acres to the Plaintiff. quoting the decision of the Court in **Millicent Perpetua Atieno Vs Louis Onyango Otieno [2013] EKLR**, where the Court stated that where the vendor refuses to complete the measure of damages is similarly the loss incurred by the purchaser as the natural and direct result of the repudiation of the contract by the vendor. The damages include the return of any deposit paid by the purchaser with interest together with expenses which he has incurred in investigating title and other expenses within the contemplation of the parties, and also where there is evidence that the value of the property as of the date of the repudiation was greater than the agreed purchase price, damages for loss of bargain… 4. In conclusion, the Plaintiff submitted that she is entitled either to title to the portion she occupies or to compensation at the current market value for 2 acres sold by the 2nd Defendant to third parties in breach of the terms of the agreement dated 23/10/2008 5. The 1st Defendant filed submissions dated 1/11/2022. That the Plaintiff submitted that although the 2nd Defendant led evidence that it acquired the entire land, it failed to substantiate the same. In his affidavits sworn on 2/6/2010 and 20/11/2009, DW2 was categorical that the 2nd Defendant purchased only 24 acres. By way of a map, DW2 showed the Court the subdivisions on the suit land, marking out the portions for the parties, including the Plaintiff and the 1st Defendant. It was submitted that the 2nd Defendant cannot be allowed to retain the remaining 7.5 acres for which it did not pay. 6. It was further submitted that the 1st Defendant and her husband entrusted the 2nd Defendant with registering the entire land in the 2nd Defendant’s name, in consideration of a retransfer of 4 acres to the Plaintiff, three and a half acres to the 1st Defendant’s family, and the retention of the remaining 24 acres previously acquired. It was therefore submitted that the 2nd Defendant holds the title in trust for itself, the 1st Defendant and the Plaintiff. 7. With respect to the 2nd Defendant's assertion that it sold the land to third parties, it was submitted that no evidence was adduced before the Court in support of that assertion, and in any event the affidavit of 20/6/2010 was categorical that it had acquired only 24 acres. It was further submitted that the doctrine of lis pendens barred any transactions while litigation was actively ongoing. The Court was urged to revert the land as prayed. 8. The 1st Defendant contended that the Plaintiff is entitled to the relief sought in the litigation because the 1st Defendant was aware of the Plaintiff's acquisition, accepted survey fees from her, yet failed to provide the title to the 4 acres. 9. It was further submitted that the title in the name of the 2nd Defendant is not absolute and that the Court has been clothed with the power to rectify it under Section 80 of the Land Registration Act. 10. The 2nd Defendants submissions are dated 5/2/26. The 2nd Defendant framed 4 issues: whether the Plaintiff has established any enforceable legal interests in 4 acres; whether the alleged meeting minutes create a binding registrable interest; whether the Plaintiff and the 1st Defendant can challenge a completed transfer and registered title; and whether the counterclaim for 3.5 acres and the orders sought in the counterclaim are sustainable in law. 11. It was submitted that the 2nd Defendant purchased the parcel LR No 61/37 from Timothy Kimani Mungai, paid the entire purchase price, and Mungai registered the land in its name on 17/9/2008. Vide an acknowledgement, dated 10/2/2014, the said Kimani acknowledged that he had sold his entire LR No 61/37 to the 2nd Defendant and that the 2nd Defendant had paid the entire purchase price to him. 12. That the 2nd Defendant, being the registered owner of the suit land, has since subdivided the land into several portions and sold them to third parties. No illegality, fraud, or wrongdoing has been demonstrated on the part of the 2nd Defendant to warrant the cancellation of its title. 13. Consequently, it was submitted that the 2nd Defendant's title is absolute and indefeasible and above reproach. 14. Concerning the Plaintiff's claim for 4 acres, the 2nd Defendant submitted that there is no contractual relationship between the 2nd Defendant and the Plaintiff regarding these 4 acres. The Plaintiff has not provided any sale agreement or transfer documentation for the 4 acres, and the alleged minutes do not meet the requirements to constitute a valid land transfer or to create any proprietary rights. 15. It was submitted that any disposition of land must strictly comply with section 3(3) of the Law of Contract. See the decision in Gladys Wanjiru Kamau Vs Edwin Njeru Gichovi (2019) KEELC 292. 16. It was further submitted that the 2nd Defendant paid the full purchase price to Kimani, including the alleged sum of Kshs 702,000/-, and that the 1st Defendant is therefore estopped from raising any claim. 17. That the 2nd Defendant relied on Mr Kimani’s acknowledgement of completion of title and issuance of title, and the Court was urged to dismiss the 1st Defendant's counterclaim. **Analysis and determination** 1. Having considered the pleadings, the evidence adduced at the hearing and the written submissions, the key issues for determination are; 1. Whether the Plaintiff is entitled to 4 acres out of LR No 61/37, and/or in the alternative compensation for 2 acres at market rates. 2. Whether the 1st Defendant is entitled to 3.5 acres out of LR No 61/37. 3. Whether the 2nd Defendant should be ordered to retransfer 4 acres to the Plaintiff and 3.5 acres to the 1st Defendant. 4. Costs of the suit 2. Prior to addressing the issues previously outlined, it is essential to consider the claim of the 1st Defendant. The 1st Defendant has lodged a counterclaim against the 2nd Defendant, raising an intriguing procedural question. According to Order 7 of the Civil Procedure Rules, a counterclaim constitutes a substantive claim initiated by the Defendant against the Plaintiff within the same suit/proceedings. It represents an independent cause of action that the Defendant asserts in response to the Plaintiff's claim. Consequently, the counterclaim is treated as a cross-suit within the original proceedings, thereby allowing it to continue independently if the Plaintiff's suit is dismissed or discontinued. 3. The rationale for filing a counterclaim is to consolidate related disputes into a single proceeding, aligning with the overarching objectives of the Civil Procedure Act and the applicable rules designed to facilitate a just, expeditious, proportionate, and affordable resolution of civil disputes governed by the Act. Conducting related hearings collectively conserves Court time and resources, reduces legal costs for the parties, and mitigates the risk of conflicting decisions from parallel proceedings. Broadly, this approach serves the interests of efficient administration of justice, maintains fairness and procedural equity between the parties, enables simultaneous handling of multiple claims, and helps prevent the abuse of Court processes. 4. The utilisation of a counterclaim in legal proceedings is primarily grounded in the stipulations of Article 159(2)(d) of the Constitution of Kenya. This provision mandates that Courts deliver justice without undue regard to procedural technicalities and emphasises the importance of substantive justice. Furthermore, Article 48 of the Constitution affirms the right of every individual to access justice, while Article 50(1) guarantees the right to have disputes resolved through a fair and public hearing. 5. In this case, the 1st Defendant filed a defence against the Plaintiffs' claim and in the same pleading adverted a counterclaim against her co-Defendant, the 2nd Defendant, claiming 3.5 acres of land out of LR No 61/37 registered in its name. 6. The Court finds that the Civil Procedure Act does not provide for a direct claim by one Defendant against another co-Defendant within the same proceedings. However, Order 1, Rule 15 of Civil Procedure Rules comes closer, as it permits a Defendant to claim against a Third party for contribution or indemnity, any relief or remedy in respect of the original subject matter of the suit, or any question of fact or law related to that subject matter. Third-party Notices are issued for lateral claims between Defendants in the same proceedings. 7. It is important to note that alternative mechanisms available to such a Defendant include the filing of a separate suit and the application for consolidation of these suits. 8. Order 1 Rule 10 of the Civil Procedure Rules, together with the Court's inherent jurisdiction, empowers the Court to determine the claim of the 1st Defendant in the manner it has been filed, while observing the constitutional requirement to provide a hearing. The 2nd Defendant has not objected to the manner in which the 1st Defendant has commenced the claim. Furthermore, the 2nd Defendant had the opportunity to respond to the claim, as demonstrated in their evidence and submissions before the Court. Consequently, I conclude that the interests of justice will be better served if the suits are adjudicated as currently framed. **Whether the Plaintiff is entitled to 4 acres out of LR No 61/37, and/or in the alternative 2 acres and compensation for two acres at market rates**. 1. Land Reference No. 61/37 was registered in the name of Timothy Kimani Muigai on 31/10/2007. The land measured 12.69 hectares or 31.5 acres. 2. On **5/1/2006**, the 1st Defendant entered into an agreement for sale with the Plaintiff for the sale of 4 acres measuring 1.21 and 0.45 ha [the plots were shown on a map annexed] out of LR No 61/37 for the sum of Kshs 1 Million, which was paid in full. The Plaintiff was given possession of the parcels of land immediately upon making the payment. 3. By 5/1/2006, the title remained registered in the name of Timothy Kimani Muigai. However, the 1st Defendant led evidence and produced an unregistered but duly executed general power of attorney dated 17/5/2007**,** under which Mr Muigai authorised his wife, the 1st Defendant, to sell 4 acres to the Plaintiff. 4. In accordance with the sale agreement dated 18/1/2006**,** Timothy Kimani Muigai entered into an agreement with the shareholders of the 2nd Defendant. Under this agreement, Kimani sold 24 acres of LR No. 63/37 for Kshs 7.5 million, paying a deposit of Kshs 6,648,000, leaving an outstanding balance of Kshs 702,000. It appears that, pursuant to the terms of the agreement, the 2nd Defendant was granted possession of the sold portion, and the remaining purchase price was to be paid upon issuance of the title to the purchaser or the 2nd Defendant. Furthermore, the 2nd Defendant was responsible for all expenses associated with subdividing the land. 5. According to the copy of the title adduced in Court, the 2nd Defendant was registered as proprietor of the entire 31.5 acres – LR No 61/37 – on 17/9/2008. So far none of the parties have adduced any transfer of title in the name of the 2nd Defendant for 24 acres. 6. Evidence was led by the 1st Defendant that she and her husband sold 24 acres of the land to the 2nd Defendant and entrusted him with the processing of the title for the 24 acres and the Plaintiff, who acquired 4 acres in 2006. 7. The meeting was held on 23/10/2008between Mr Kimani, the Plaintiff, DW2 and the directors of the 2nd Defendant in its offices. The minutes are reproduced below for effect; “purpose of the meeting. The meeting was called by Timothy Kimani Mungai, who introduced the directors of the land selling and buying company to Mrs Elizabeth Mumbi and George Mumbi Chege. * 1. Mr Timothy Kimani Mungai was the registered owner of LR No 61/63 area – 31 acres. Until May 2008 when he transferred the said land to Awendo Co Ltd. 2. Mrs Elizabeth Mumbi had bought 4 acres of land from the wife of Mr Timothy Kimani Mungai in January 2006 and the purchase price was Kshs 1,0 Million. 3. The wife of Timothy Kimani Muigai, who received the money from Elizabeth Mumbi, is called Virginia Wanjiku Kimani. 4. Mr Timothy agreed that the Awendo Company will have to surrender 4 acres of land to Elizabeth Mumbi of ID No 0453371 5. Elizabeth Mumbi will pay the surveyor of her own choice to excise [remove] 4 acres of land from the whole 31 acres [subdivision]. 6. Any money spent on the whole transaction will be shared on ratio basis among the two parties, Awendo Co Limited and Elizabeth Mumbi 7. The amount to be paid to Awendo Co Limited is calculated at Kshs 227740/- 8. Transfer will start after paying the said money. **Final conclusion** I, Timothy Kimani Muigai, P.O. Box 416, Kalimoni, in the Republic of Kenya, do hereby order M/s Awendo Co Ltd, which holds my land, LR No. 61/37, in trust, to surrender 4 acres of land to Ms Elizabeth Mumbi. My wife, Virginia Wanjiku Kimani, holds a general power of attorney from me. That is why she sold 4 acres to Ms Elizabeth Mumbi. My order to Awendo is irrevocable and without prejudice.” 1. The above minutes were executed by Mr Muigai and the DW2 and have not been controverted, except that DW2 has stated that they were misinterpreted. No evidence was led to prove the misinterpretation and its extent. 2. The minutes above, together with the sale agreement dated 5/1/2006 and the power of attorney dated 17/5/2007, clearly show that the 1st Defendant sold the 4 acres to the Plaintiff with the consent of Mr Muigai, as shown in the power of attorney, which, though not registered, has been acknowledged in the minutes above. 3. Moreover, in his affidavit sworn on 17/6/2010, Mr Muigai admitted that he sold 24 acres from the main title. He further averred that the 2nd Defendant had failed to pay the balance of Kshs 702,000/-. He also averred that the Plaintiff bought 4 acres of land to be carved from the 31-acre title held by the 2nd Defendant, strictly in accordance with the two deed plans given to the Plaintiff by the 2nd Defendant. In his own words, he further averred that it would be very unfair to deny the Plaintiff her property rights comprised in the 4 acres. He further averred that the sale of 24 acres should be rescinded if the 2nd Defendant denies the Plaintiff her right, and that the 2nd Defendant's intention is to give the Plaintiff 4 acres but to push her into a swampy area. The contents of this affidavit capture the apprehension of the original owner of the land. 4. The letter dated 11/5/2009 acknowledges receipt by Mr Muigai, the Plaintiff, of Kshs 227,000/-, being the costs of survey expenses for the subdivision of the excision of 4 acres of land in favour of the Plaintiff. This amount was agreed at the parties' meeting and incorporated into the agreement dated 23/10/2008. This shows that the Plaintiff performed her part of the bargain in respect of the excision costs. The Plaintiff led evidence that, in accordance with the agreement, the land was subdivided and two deed plans were issued to the Plaintiff. The deed plans are dated 7/1/2009, with Deed Plan Nos. 292342 – 0.390 ha [approx. 1.0 acre] for LR No 61/162 and 292343 for 1.359 ha [approx. 3.3 acres] for LR No 61/163. Mr Muigai, in his sworn affidavit of 11/6/2010, also acknowledged that the above deed plans were for the Plaintiff and comprised the land sold to the Plaintiff. The Surveyor's report of 11/5/2010 attests to the said subdivisions. The remainder of the land was LR No 61/161, measuring 27.5 acres, as shown on FR No 48/179. 5. The 1st Defendant admitted the claim of the Plaintiff in her defence. The claim of the Plaintiff, therefore, is not controverted. 6. The 2nd Defendant has denied the Plaintiff's claim, and DW2 contends that he does not know the Plaintiff now, although he was aware that the Plaintiff had purchased the 4 acres. In other words, his case is that there was no privity of contract between the Plaintiff and the 2nd Defendant. 7. It is the 2nd Defendant's case that it acquired the entire land measuring 31.5 acres. However, DW2 led no evidence that he did so, nor did he adduce any evidence of a sale agreement, a transfer of the land, or consent from the land control board. He also failed to prove any payment for the entire land. Section 3 (3) of the Law of Contract Act states as follows; “(3) No suit shall be brought upon a contract for the disposition of an interest in land unless— 1. the contract upon which the suit is founded— 2. is in writing; 3. is signed by all the parties thereto; and (b) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party: Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it affect the creation of a resulting, implied or constructive trust.” 1. Guided by the above provision of the law, the Court, in the absence of any evidentiary documentation, finds that the 2nd Defendant did not acquire 31.5 acres as alleged. So far, the evidence placed before the Court only points to the acquisition of 24 acres. 2. The 2nd Defendant has asserted an absolute and indefeasible interest in the title that it holds. It has also been alluded to that the same was subdivided and sold to third parties, a fact the 2nd Defendant did not adduce evidence of. 3. Section 25 of the Land Registration Act states as follows; “(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of Court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject— (a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and (b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. (2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee” 1. The Court has found that the 2nd Defendant purchased 24 acres, and the title for the entire 31.5 acres was registered in its name to hold trust for itself in regards to 24 acres, to the Plaintiff in regards to 4 acres and the remaining 3.5 acres to the 1st Defendant and her family. 2. Having failed to produce evidence to support an acquisition of the full acreage of the land, the Court finds that the 2nd Defendant did not own an absolute and indefeasible title. It held a title that was encumbered by a trust in favour of the Plaintiff and, by extension, the 1st Defendant. 3. The Court finds that the 2nd Defendant was aware of the Plaintiffs' entitlement right from the time it acquired its 24 acres, and it cannot feign ignorance in the face of the minutes dated 2008. In any event, the subdivision was carried out by the 2nd Defendant and is therefore estopped from denying the Plaintiff her share of the land, measuring 4 acres, which it acquired for valuable consideration. 4. Mandated by the provisions of section 80 of the Land Registration Act, the Court will give the appropriate orders to avoid an illegality and unjust enrichment on the part of the 2nd Defendant, given the admitted fact that it did not pay for the 4 acres of land. 5. The Court answers the first issue in the affirmative. **Whether the 1st Defendant is entitled to 3.5 acres out of LR No 61/37.** 1. The 1st Defendant's case is that she and her husband sold 4 and 24 acres to the Plaintiff and the 2nd Defendant, respectively, and left the remaining 3.5 acres for them. They entrusted the 2nd Defendant with title to the entire land and agreed to the registration of the 2nd Defendant's name. Thereafter, the land was to be divided into portions of 4, 24, and 3.5 acres, respectively, but the 2nd Defendant has refused to retransfer the remainder to themselves. 2. In its counterclaim, the 1st Defendant has sought orders inter alia that the Court declare that the portion acquired by the 2nd Defendant is 24 acres and that the Court orders the retransfer of 4 acres to the Plaintiff and 3.5 acres to the 1st Defendant. 3. The record shows that the case of the 1st Defendant was not controverted, hence the counterclaim has not been defended and is therefore admitted. Consequently, as the cause of action has not been controverted, the Court allows the prayers as sought. **Whether the 2nd Defendant should be ordered to retransfer 4 acres to the Plaintiff and 3.5 acres to the 1st Defendant.** 1. Having found that the 2nd Defendant only acquired 24 acres it would amount to an illegality and an unjust enrichment to allow the 2nd Defendant to hold the entire land measuring 31.5 acres. 2. Section 80 of the Land Registration Act provides as follows; “80. (1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. (2) The register shall not be rectified to affect the title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default“ 1. The Court will be guided by the above provision in making its final orders. 2. Although the costs of an action or proceeding are at the Court's discretion, the general principle is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap.21). Accordingly, the successful litigant should ordinarily be awarded costs unless, for good reason, the Court directs otherwise. The Court has noted that the Plaintiff and the 1st Defendant have succeeded in their claims, and in the circumstances, the Court is of the view that the appropriate order is that costs shall be in their favour. 3. **Final orders for disposal** 1. A declaration that the 2nd Defendant is only entitled to 24 acres from the suit property. 2. An order be and is hereby issued ordering the 2nd Defendant to retransfer the suit property, LR No. 61/37, to; 4. A portion of 4 acres to the Plaintiff, comprised in LR No 61/162 and 162, being Deed Plan Nos 292342 and 292343. 5. the remainder of the portion measuring 3.5 acres to the 1st Defendant 6. retain a portion of 24 acres Within a period of 45 days from the date of this judgment. * 1. In default, the Deputy Registrar of this Court is ordered to execute all the documents necessary to effectuate the orders above. 2. In the alternative, noting that the Plaintiff is currently occupying 2 acres of the 4-acre land acquired, the 2nd Defendant shall compensate the Plaintiff and the 1st Defendant for 2 acres and 3.5 acres, respectively, at current market rates. The valuation shall be carried out by a joint valuer, to be agreed by the parties within 45 days. In default, the Chairman of the Institute of Surveyors of Kenya [ISK-]Valuation chapter, shall appoint a valuer whose decision will be final. 3. The compensation under d) above shall be paid within 45 days of the valuation report, either by the agreed valuer or by the valuer appointed by the Chairman of Law Society of Kenya. 4. The cost of the suit and the counterclaim shall be payable by the 2nd Defendant in favour of the Plaintiff and the 1st Defendant. 1. It is so ordered. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 5TH DAY OF JUNE 2026 THROUGH MICROSOFT TEAMS.** **J G KEMEI** **JUDGE** **Delivered online in the presence of;** 1. Mr. Kimani for the Plaintiff 2. Mr. Tumu for the 1st Defendant 3. Mr. Githinji for 2nd Defendant 4. N/A for the Interested party 5. C/A – Ms Yvette Njoroge