[2025] KEELC 1428 (KLR)

Mukoma & another v Ngunu & another (Environment and Land Appeal E034 of 2022) [2025] KEELC 1428 (KLR) (20 March 2025) (Judgment)

Neutral citation: [2025] KEELC 1428 (KLR)

Republic of Kenya

In the Environment and Land Court at Kerugoya

Environment and Land Appeal E034 of 2022

JM Mutungi, J

March 20, 2025

Between

Jane Muthoni Mukoma

1st Appellant

David Muriithi Githuci

2nd Appellant

and

Sabina Waruguru Ngunu

1st Respondent

National Irrigation Board

2nd Respondent

(Being an appeal from the Judgment and subsequent decree of Hon. A. Lorot Chief Magistrate in Wang’uru MELC No. 53 of 2017 delivered and dated 15th November 2022)

Judgment

1. This Judgment is in respect of the two consolidated Appeals Kerugoya ELC Appeal No. 34 of 2022 (Jane Muthoni Mukoma –vs- Sabina Waruguru Ngunu & 3 Others) and Kerugoya ELC Appeal No. 30 of 2022 (David Muriithi Githuci –vs- Sabina Waruguru Ngunu & 3 Others) arising from the Judgment by A. Lorot, Chief Magistrate in Wang’uru CM ELC No. 53 of 2017 delivered on 15th November, 2022. The Appeals were consolidated and were heard together. The 3rd Respondent Beth Wamuyu Mukinyukia did not participate and was not represented at the hearing of the Appeal.

2. This Appeal is against the Judgment delivered by Hon. A. Lorot (C.M.) on 15th May 2023, in Wang’uru MELC No. 53 of 2017. In his Judgment, the Learned Magistrate entered Judgment in favor of the 1st Respondent against the 1st and 2nd Appellants (the 1st and 2nd Defendants before the Lower Court). The Learned Magistrate declared that the 1st Respondent was the rightful and legal owner of Plot No. 5 Red Soil (the suit plot), including all developments thereon. He ordered the 2nd Appellant to surrender vacant possession of the suit plot and issued a permanent injunction against both the 1st and 2nd Appellants, restraining them, their servants, agents, or anyone acting on their behalf from trespassing, utilizing, selling, disposing, charging, transferring, or otherwise interfering with the 1st Respondent’s quiet possession, use, and enjoyment of the suit plot. The Learned Magistrate further ordered the 1st and 2nd Appellants to bear the costs of the 1st Respondent and those of the 2nd Respondent, who the Magistrate determined was wrongly joined in the suit.

3. The Appellants, being dissatisfied with the Learned Magistrate’s decision have appealed against the Judgment. The 2nd Appellant filed his Memorandum of Appeal dated 16th November 2022 and has set out Seven grounds of Appeal as follows: -1. That the Learned Trial Chief Magistrate erred in law and fact by failing to address all the issues in controversy in determining the dispute before the Court.2. That the Learned Trial Chief Magistrate erred in law and fact in determining only two issues and leaving out all other issues undetermined.3. That the Learned Trial Chief Magistrate erred in law and fact in failing to make any determination of the Appellant’s Counterclaim.4. That the Learned Trial Chief Magistrate erred in law and fact in failing to consider the weighty evidence adduced by the Appellant.5. That the Learned Trial Chief Magistrate erred in law and in fact for not considering that the Appellant had substantially developed the plot in dispute.6. That the Learned Trial Chief Magistrate erred in law and fact in failing to consider and adopt the consent filed in Court between the Appellant and the 2nd and 3rd Respondents in the Counterclaim.7. That the Learned Trial Chief Magistrate erred in law and fact in failing to make a finding that the 1st Respondent had received a refund of the purchase price hence could not be entitled to the reliefs sought.

4. The 1st Appellant also filed her Memorandum of Appeal dated 5th December 2022 and set out 6 grounds.1. That the Learned Trial Chief Magistrate erred in law and fact by failing to address all the issues in controversy in determining the dispute before the Court.2. That the Learned Trial Chief Magistrate erred in law and in fact in determining only two issues and leaving out all other issues undetermined.3. That the Learned Trial Chief Magistrate in law and fact by failing to consider that the Appellant and 3rd Respondent had admitted the 2nd Respondent’s Counterclaim.4. That the Learned Trial Chief Magistrate erred in law and fact in failing to consider the weighty evidence adduced by the Appellant.5. That the Learned Trial Chief Magistrate erred in law and fact by failing to consider and adopt the consent filed in Court between the Appellant and the 2nd and 3rd Respondents in the Counterclaim.6. That the Learned Trial Chief Magistrate erred in law and fact in failing to make a finding that the 1st Respondent had received a refund of the purchase price hence could not be entitled to the reliefs sought.

5. Both the Appellants pray that the appeal be allowed, and that the Judgment dated 15th November 2022 be set aside and substituted with a Judgment in their favour, with costs to be paid by the Respondents.

6. The case before the Lower Court involved a legal dispute between the 2nd Appellant and the 1st Respondent regarding the suit plot sold to them by the 1st Appellant. To have the matter determined by the Lower Court, the 1st Respondent, filed an amended Plaint on 14th September 2017. In the Amended Plaint, she claimed to be the rightful owner of the suit plot, asserting that she purchased it from the 1st Appellant vide the sale agreement dated 30th January 2017 for the consideration of Kenyan Shillings One Million (Kshs. 1,000,000). She stated that after fully paying the purchase price, the suit plot was transferred to her by the allocating authority, and she received the relevant ownership documents after which, she took vacant possession of the plot.

7. The 1st Respondent stated that the suit plot contained residential units, which she continued to lease out and collect rent from until on or about 13th March 2017 when the 2nd Appellant unlawfully and forcefully entered the suit plot and commenced constructing unlawful and illegal extensions, and prevented her from accessing her property. She contended that if the 2nd Appellant’s laid claim of ownership of the suit plot and he possessed ownership documents, such documents must have been acquired fraudulently. The 1st Respondent maintained that due to the unlawful and fraudulent actions of the 2nd Appellant, she was denied the possession and enjoyment of her property rights over the suit plot. She sought the following remedies:1. A declaration that the Plaintiff is the rightful and legal owner of the plot No. 5 Red soil of the National Irrigation Board and the 1st Defendant do offer vacant possession to the Plaintiff and in default he be forcibly evicted from the same.2. A declaration that the 1st Defendant forcible entry and continued occupation of Plot No. 5 Red soil of the National Irrigation Board is illegal and in breach of the proprietary rights of the Plaintiff and the 1st Defendant be ordered to pay mense profits of Kshs. 10,000 per month with effect from month of March 2017 until he offers vacant possession and also be condemned to pay general damages for trespass to be assessed by the Honourable Court.3. In Alternative and without prejudice to prayers A & B above, the 2nd Defendant be ordered to refund to the plaintiff the amount of consideration of Ksh. 1,000,000 paid to her plus interest of 30% per month with effect from 30/1/2017 until payment in full plus costs of the suit.4. An order of permanent injunction do issue against the Defendants from entering, selling, disposing, charging, blocking access to or in any other way unlawfully, interfering with the Plaintiff’s quite possession and enjoyment of the Plaintiff’s proprietary rights over Plot No. Red Soil.5. Costs of the suit

8. On 3rd October 2017, the 2nd Appellant filed his amended Defence and Counterclaim. He denied all the claims made in the amended plaint and raised a Counterclaim, stating that he had entered into a sale agreement with the 1st Appellant on 10th March 2017 for the purchase of the suit plot for a consideration of Kenya Shillings One Million Two Hundred Thousand (Kshs 1,200,000/-). The 2nd Appellant further stated that on 18th March 2017, he, along with the 1st Appellant and Beth Wamuyu Mukinyukia, entered into a further agreement for the transfer of the suit plot, as the beacon certificate had been issued to Beth Wamuyu Mukinyukia. The 2nd Appellant averred that on 24th March 2017, Beth Wamuyu wrote to the 2nd Respondent requesting that the transfer of the suit plot be effected to him (the 2nd Appellant) which the 2nd Respondent did on 27th March 2017.

9. The 2nd Appellant stated that he was subsequently put into possession of the suit plot and had made substantial developments worth millions of shillings. He denied the 1st Respondent’s claim of ownership, asserting that her assertion was false since she had been refunded her money by the 1st Appellant and was merely awaiting her remaining balance. The 2nd Appellant claimed that if the 1st Respondent possessed any documents related to the suit plot, they had been obtained fraudulently during the pendency of the case. The 2nd Appellant sought the following orders:1. A declaration that he was the rightful and legal owner of plot No. 5 Red Soil.2. A permanent injunction restraining the 1st Defendant her agents, heirs, legal representatives, any person claiming under her from entering or in anyway whatsoever from interfering with the Plaintiff’s quiet possession, use and enjoyment of Plot No. 5 Red Soil.3. costs of the suit.

10. On 10th October 2017, the 1st Appellant filed her Statement of Defence. She denied the allegations in the amended plaint and reiterated that, although she had sold the suit land to the 1st Respondent, the 1st Respondent did not fulfill the contract terms and demanded a refund. She asserted that she refunded the 1st Respondent a total of Kenya Shillings Five Hundred and Fifty Thousand (Kshs 550,000/-) and was left with a balance of Kenya Shillings Four Hundred and Fifty Thousand, (Kshs 450,000/-) which they had agreed would be paid before January 2018. The 1st Appellant claimed that she resold the land after the 1st Respondent repudiated the contract. She contended that if the suit plot had been transferred to the 1st Respondent, it was done unlawfully.

11. Beth Wamuyu (3rd Defendant) filed her statement of defense on 18th October 2017. She denied the allegations made in the Counterclaim. She asserted that she originally purchased the suit plot from the 1st Appellant, who later breached the contract and fully refunded her money. She stated that she was further requested by the 1st Appellant to transfer the suit plot to the 2nd Appellant, which she did. Beth claimed that if the suit plot was transferred to the 1st Respondent, it was done unlawfully. She denied the allegations of fraud made by the 1st Respondent and stated that she did not even know the 1st Respondent.

12. The 2nd Respondent filed its statement of defence on 8th February 2018 and denied the claims made in the amended plaint and stated that the 1st Appellant was the original owner of the suit property. According to the 2nd Respondent, the 1st Appellant entered into two separate agreements with different parties: one with Beth Wamuyu on 14th December 2016 and another with the 1st Respondent on 30th January 2017. The 2nd Respondent stated that, the matter was referred to the Director of Criminal Investigations for further inquiry. However, on 21st June 2017, Beth Wamuyu informed the 2nd Respondent that she had no interest in the suit property and advised them to process the ownership documents for the new owner. Consequently, the 2nd Respondent issued a beacon certificate to the 1st Respondent on the 1st Appellant’s request and on the basis that Beth had withdrawn her interest in the suit plot.

13. On 13th October 2017, the 1st Respondent filed her response to the 2nd Appellant’s statement of Defence and Counterclaim. She reiterated the contents of her Amended Plaint and denied the allegations made in the amended defence. The 1st Respondent asserted that she had a reasonable cause of action against the 2nd Appellant and dismissed the latter’s defence as a mere sham, and lacking in substance.

14. In response to the Counterclaim, the 1st Respondent denied its validity and stated that if it were true that the 2nd Appellant had entered into a sale agreement with the 1st Appellant regarding the suit plot, then that agreement was null and void ab initio and constituted acts of fraud, as the 1st Respondent had already purchased the suit plot. The 1st Respondent reiterated that her transaction with the 1st Appellant had been sanctioned by the allocating authority, and as a result, she was issued all relevant ownership documents, which have not been revoked or canceled in accordance with the Irrigation Act Cap 347 of the Laws of Kenya. She further emphasized that she had never expressed an intention to resell the suit plot. She denied she had received any refund.

15. The 2nd Appellant filed a response to the 1st Respondent’s defence reiterating that the sale agreement between the 1st Appellant and the 1st Respondent had been terminated, and the 1st Appellant refunded part of the purchase price to the 1st Respondent, which the 1st Respondent acknowledged receipt of. He further contended that if any documents were issued to the 1st Respondent, they were doctored, fabricated, forged, and/or obtained fraudulently. The 2nd Appellant maintained that the 1st Respondent’s response to the Counterclaim did not raise any triable issues.

16. The Learned Trial Magistrate heard the suit on 27th June 2022. The 1st Respondent testified that the 1st Appellant sold her the suit plot through a sale agreement dated 30th January 2017 for the consideration of Kshs 1,000,000/- which she paid in full. She stated the property was transferred to her name and she was issued a beacon certificate dated 27th June 2017.

17. During Cross-examination, the 1st Respondent confirmed that she purchased the suit plot from the 1st Appellant and maintained the plot was procedurally and validly transferred to her. The 1st Respondent clarified that the sum of Kshs 550,000/- the 1st Appellant had deposited into her (1st Respondent) Equity Bank Account was not for refund but deposit to bail her out in case she was arrested as she was under investigation following a complaint by the 2nd Appellant. The 1st Respondent stated that she refunded the 1st Appellant the deposit she had made in her Bank Account.

18. The 2nd Appellant testified that he purchased the suit plot for Kshs. 1,200,000/- from the 1st Appellant. He stated that before he bought the plot he carried out a search at the National Irrigation Board (NIB) and he verified that the plot belonged to the 1st Appellant and one Beth Wamuyu Mukinyukia with whom they co-owned the plot. He testified that he paid the full purchase price and that the 1st Appellant and the said Beth Wamuyu facilitated the transfer of the suit plot to his name.

19. During cross-examination, the 2nd Appellant stated that he paid Kshs. 1,200,000/- to the 1st Appellant, despite the search he conducted at NIB indicating she was not the sole owner of the suit plot. He confirmed that the 1st Appellant did not have authorization from Beth Wamuyu to sell the plot. He admitted that there was no sale agreement between him and Beth. He further stated that he had not seen any documents indicating that the suit plot had been sold to the 1st Respondent. He claimed that the 1st Respondent forcibly entered the suit plot in July 2017 and collected rent. He explained that the application for transfer was made between him and Beth Wamuyu because she was the registered owner at the time. He conceded the beacon certificate he was given did not have all the signatures of the NIB Officers as required. He stated he had been on the plot since 6th July 2017. The 2nd Appellant further stated that he was not aware that the 1st Appellant had sold the suit plot to the 1st Respondent at the time he purchased the same.

20. Leah Nyaguthii Mukoma, who is the daughter of the 1st Appellant testified that the 1st Respondent was a friend of her mother but it was the 2nd Appellant who she was aware was buying the suit land from her mother as she witnessed the sale agreement between her mother and the 2nd Appellant.

21. The 1st Appellant testified that Beth Wamuyu had paid her Kshs. 1,000,000/- as the purchase price for the suit property. She added that she entered into another sale agreement with the 1st Respondent, who also paid her Kshs 1,000,000/-. She stated that she further sold the suit plot to the 2nd Appellant, which angered the 1st Respondent when she discovered. She stated her daughter had placed a caution to prevent any transaction of the plot but she later agreed to have the same removed to facilitate the sale of the plot. The 1st Appellant affirmed that she made an application dated 14th March, 2017, to the 2nd Respondent requesting the suit land be transferred to the 1st Respondent and conceded that she did not do a similar request to the 2nd Respondent in favour of the 2nd Appellant in December 2016.

22. Gordon Omondi Mbudah (DW4), the Scheme Surveyor of the National Irrigation Authority, testified on behalf of the 2nd Respondent. He adopted his witness statement and the accompanying documents as his evidence. He affirmed that the suit plot was initially owned by the 1st Appellant, before she transferred the same to the 1st Respondent. He stated that their records did not have the 2nd Appellant, except for a letter dated 24th March 2017, written by Ms. Beth Wamuyu, requesting the transfer of the beacon certificate to the 2nd Appellant. He indicated that this request was not acted upon since the beacon produced was not genuine.

23. In his evidence the Surveyor explained that the beacon certificate produced by the 2nd Appellant was not genuine as it indicated it was dated 21st December, 2016 yet the application by Ms. Beth Wamuyu was dated 24th March 2017. He stated that for the beacon certificate to be valid it should have contained three signatures: those of the Scheme Surveyor, the Scheme Engineer, and the Scheme Manager, which the said beacon did not have.

24. The Surveyor further testified that the 1st Appellant had made a request to the 2nd Respondent’s office to transfer the suit plot to the 1st Respondent, and the transfer was effected as Beth Wamuyu had consented to the transfer. The witness stated that Beth Wamuyu gave consent vide the letter dated 21st June 2017 in which she indicated she had no further interest in the suit plot as the 1st Appellant had returned to her all her money. She authorized the 2nd Respondent to process the transfer to the new buyer who she did not name.

25. The Learned Trial Magistrate after reviewing the pleadings, evidence and parties’ submissions came to the conclusion that the 1st Respondent had proved her case against the Appellants. It was his view that the 1st Respondent was the rightful owner of Plot No. 5 Red Soil. The Learned Magistrate on that basis issued a declaration that the 1st Respondent was the rightful owner and as a consequence issued a permanent injunction restraining the Appellants either by themselves, their servants, agents or anyone acting on their behalf or at the behest from trespassing into, utilizing, selling, disposing, charging, transferring or in any other way interfering with the 1st Respondent’s quiet possession, use and enjoyment of the Plot No. 5 Red Soil which provoked the present Appeal.

26. The Appeal was argued by the parties by way of written submissions. The Appellants submitted the Trial Magistrate failed to address all the issues in controversy, focusing only on two specific points. Regarding the first issue of rightful ownership, the Appellants argued the Trial Magistrate did not adequately consider the evidence presented by the Appellants. The Appellants submitted that the 1st Appellant provided evidence indicating that the agreement between her and the 1st Respondent had been revoked and that part of the purchase price had been refunded to the 1st Respondent. The Appellants argued that since the sale agreement between the 1st Appellant and the 1st Respondent was revoked, the 1st Appellant was free to seek out a willing buyer, and the 1st Respondent was only entitled to a refund of the purchase price.

27. The 2nd Appellant submitted that he had adduced evidence to prove he did not acquire the suit plot through fraudulent means by presenting a beacon certificate issued to him by the 2nd Respondent at the time of purchase. He contended that the survey report produced by the 1st Respondent did not conclusively show that the 2nd Appellant obtained a fake beacon certificate. He placed reliance on the case of Julius Njogu Kimani v. Stephen Maina (2015) eKLR.

28. The 1st Respondent filed her written submissions dated 26th February 2024, asserting that the evidence presented by the 2nd Appellant clearly indicated that the 2nd Appellant purchased the suit plot as the second buyer. She claimed that the root of the issues they were facing was the 1st Appellant. The 1st Respondent submitted that the evidence of the 2nd Respondent’s witness was crucial as the 2nd Respondent was the allocating authority and the custodian of the records and documents related to the plots, including the suit plot. Additionally, she submitted that the evidence provided by the 2nd Respondent’s surveyor demonstrated that the beacon certificate issued to her on 27th June 2017, was legitimate, while the certificate issued to the 2nd Appellant was fake, as the individual who issued the same had been transferred from the Survey Department. The 1st Respondent contended her agreement with the 1st Appellant had never been rescinded and/or revoked and had been performed and completed. She urged for the dismissal of the Appeal with costs.

29. I have reviewed the record of Appeal and have considered and reevaluated the evidence adduced before the Lower Court taking cognizance that this is an Appellate Court of first instance, and as such I am obligated to consider and re-evaluate the evidence and material that was before the Learned Trial Magistrate at the time he made the Judgment to satisfy myself that the decision that the Magistrate reached was justified. This was in keeping with the principle established by the Court of Appeal in the Case of Selle & Another –vs- East African Motor Boat & Others (1968) EA 123.

30. In the instant Appeal the singular issue for determination and upon which the Appeal turns is who between the 2nd Appellant and the 1st Respondent was the rightful owner of plot No.5 Red Soil within the Mwea Irrigation Scheme as each one of them claimed to have purchased the said plot from the 1st Appellant and transfers facilitated through the Offices of the 2nd Respondent. Thus in determining the issue the Court will require to consider and re evaluate the evidence to determine, whether the Learned Trial Magistrate in determining as he did that the 1st Respondent was the rightful owner of the suit plot, was justified in reaching such conclusion.

31. It is not in dispute that the 1st Appellant was the initial owner of Plot No. 5 Red Soil Mwea. The evidence adduced before the Lower Court showed she apparently sold the plot multiple times and was collecting money from the buyers. The 1st Appellant had sold the plot to Beth Wamuyu Mukinyukia for Kshs 540,000/- although in her evidence she stated she did not have any documents evidencing that transaction as she claimed the same had been stolen by thugs. The 1st Appellant had to refund Beth Wamuyu her money for her to withdraw her interest in the suit plot to enable the 1st Appellant to sell the plot to the 1st Respondent. On 21st June 2017 Beth Wamuyu wrote a statement at the CID Office Mwea East and stated thus:-“I wish to state today 21st June 2017 I have no interest in Plot No. 5 in Red Soil which I was claiming ownership through sale by one Jane Mukoma. I have withdrawn from the said plot since Jane Mukoma has fully returned all my money. Therefore the new owner can be facilitated to acquire full ownership.”

32. On the same date 21st June 2017 the said Beth Wamuyu wrote to the Manager NIB Mwea respecting the said plot No. 5 Red Soil informing him she had no interest in the said plot and that the new owner could be accorded assistance without any further reference to her.

33. On 14th March 2017 after the 1st Appellant had been paid by the 1st Respondent the full purchase price as per the acknowledgments, the 1st Appellant wrote to the Scheme Manager, Mwea Irrigation Scheme thus:-“I, Jane Muthoni Mukoma, the legal owner of plot No. 5 Red Soil, I have come into an agreement with my family and hereby wish to transfer the same to one Sabina Waruguru Ngunu.I am hereby requesting your office to change your record and issue to Sabina Waruguru Ngunu with a Beacon Certificate.”

34. Following the withdrawal of interest in the plot by Beth Wamuyu and removal of a caution lodged by the 1st Appellant’s daughter, a beacon certificate in regard to plot No. 5 Red Soil was processed on 27th June 2017 in favour of the 1st Respondent.

35. The issue of the Beacon Certificate in favour of the 1st Respondent essentially conferred ownership of the suit plot to the 1st Respondent. The Scheme Surveyor, Gordon Mbudah who testified on behalf of 2nd Respondent stated that for a Beacon Certificate to be valid, the same had to be signed by the Scheme Engineer and had to be approved by the Scheme Manager. He was emphatic that as per the Scheme’s records, the 1st Respondent was the validly registered owner of Plot No. 5 Red Soil in the Scheme.

36. Gordon Mbudah in his evidence was categorical that the Beacon certificate exhibited by the 2nd Appellant was not genuine and they did not have the same on the Scheme records. He faulted the beacon certificate for carrying a reference of December 2016 yet the application for transfer was made on 24th March 2017 which he indicated was not practicable. Further he explained the alleged beacon certificate was not authenticated as it did not have the mandatory three signatures of the 2nd respondent as required. He affirmed that due process was followed to have the 1st Respondent registered as the owner of the suit plot.

37. On evaluation of the evidence it is evident that the agreement for the sale of the suit plot to the 1st Respondent entered into on 30th January 2017 was completed and the 1st Respondent was duly issued a Beacon certificate on 27th June 2017. Though the 1st Appellant claimed that the agreement to the 1st Respondent was rescinded and/or revoked and the 1st Respondent refunded part of the money that was not borne out by the evidence. The 1st Appellant personally wrote to the 2nd Respondent the letter dated 14th March 2017 authorising the transfer to the 1st Respondent. Beth Wamuyu who also had interest in the plot following a sale agreement wrote to the 2nd Respondent confirming she no longer had any interest in the plot since she had been refunded her money by the 1st Appellant. That paved the way for the 2nd Respondent to complete the transfer in favour of the 1st Respondent.

38. The 2nd Appellant David Muriithi Kithuci entered into a sale agreement with the 1st Appellant on 10th March 2017 to purchase the suit plot for Kshs 1,200,000/-. Though he paid the money to the 1st Appellant he stated she did not have any ownership documents and that it was Beth Wamuyu who held the documents and that it was her (Beth) who effected the transfer to him. Apparently Beth Wamuyu gave the 2nd Appellant the beacon certificate that the 2nd Respondent said was fake. According to the 2nd Appellant, the 1st Respondent’s agreement with 1st Appellant was rescinded/revoked and she was refunded part of the money. The 1st Appellant while at the CID Offices stated she had given the 1st Respondent the money so that she could withdraw from the sale but the money was given back to her. The evidence of the 1st Appellant was improbable as she was the same person who made an application to the 2nd Respondent to have the suit plot transferred to the 1st Respondent. It does appear the 1st Appellant was playing with people as pawns using the suit plot as one cannot explain why within a short span of time she sold the same plot to three different people and collected money from each of them.

39. The sale to the 1st Respondent was completed and for Beth Wamuyu she confirmed she was refunded her money by the 1st Appellant. As for the 2nd Appellant he was successfully played by the 1st Appellant as the documents he was handed over by Beth Wamuyu for the plot were not genuine. At any rate the transaction with the 1st Respondent was earlier in time, the agreement with her having been entered into on 30th January 2017 while the 2nd Appellant’s agreement was on 10th March 2017. The 1st Respondent’s agreement had not been rescinded and/or cancelled as at 10th March 2017 when the 2nd Appellant entered his agreement with the 1st Appellant. The 1st Appellant could not enter into a valid agreement in respect of the suit plot when she already had a subsisting agreement of sale with the 1st Respondent and had been paid the purchase price. On the basis of the evidence therefore, the 1st Respondent validly purchased the suit plot and she was the rightful owner.

40. The Learned Trial Magistrate, having myself carried out my own evaluation and analysis of the evidence, came to the correct finding that indeed the 1st Respondent had validly purchased the suit plot and that the same was regularly and procedurally transferred to her. I see no basis upon which I can interfere with the decision of the Learned Trial Magistrate. I affirm the decision.

41. Both Appeals by the 1st Appellant, and the 2nd Appellant, filed separately as Kerugoya ECL Appeal No. 34 of 2022 and 30 of 2022 respectively, and were consolidated for purposes of hearing are without any merit and the same are dismissed with costs to the 1st and 2nd Respondents.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KERUGOYA THIS 20TH DAY OF MARCH 2025. J. M. MUTUNGIELC JUDGE