https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4051

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC APPEAL CASE NO.E056 0F 2024** **NELLY GATAKAA MURUNGI:::::::::::::::::::::::::::::::::::1ST APPELLANT** **SAWASAWA HOUSING ESTATE CO. LTD::::::::::::::::::2ND APPELLANT** **CHAIRMAN:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::3RD APPELLANT** **DIRECTOR::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::4TH APPELLANT** **SECRETARY::::::::::::::::::::::::::::::::::::::::::::::::::::::::::5TH APPELLANT** **PAUL KAGIRI::::::::::::::::::::::::::::::::::::::::::::::::::::::::6TH APPELLANT** **VERSUS** **BENSON NYANYUKI MOMANYI:::::::::::::::::::::::::::::::::RESPONDENT** **JUDGEMENT** The Appellants herein being dissatisfied with the Judgement of Hon. Hon. Daffline Nyaboke Sure (Principal Magistrate) delivered and dated 30th September, 2024 in Kangundo Environment and Land Case Number E046 of 2022 appeal against the whole judgement on the following grounds that; 1. The learned trial Magistrate erred in law and in fact in failing to find that the Defendants counter claim was not defended despite the Plaintiff having not filed defence to counter claim 2. The learned trial Magistrate erred in law and in fact in disregarding the Defendant's counter claim, evidence, exhibits and submissions. 3. The learned trial Magistrate erred in law and in fact in shifting the burden of prove to the Defendants and occasioned prejudice on the part of the Appellants by requiring so much evidence from the Appellants while not requiring the same from the Plaintiff. 4. The learned trial Magistrate erred in law and in fact in applying the principles of equity and fairness to defeats the rights of a registered proprietor and indefeasibility of title when the registered proprietor was not subject to as a trustee and the law was expressly clear. 5. The learned trial Magistrate erred in law and in fact in admitting electronic records which did not meet the conditions stipulated under section 106B of the Evidence Act. 6. The learned trial Magistrate erred in law and in fact in holding that the Plaintiff had proved his case on balance of probability. 7. The learned trial Magistrate gravely erred in law and in fact in holding that the Plaintiff had locus standi to succeed in the claim based on certificate of ownership in the name of a third party when the Plaintiff was not suing in a representative capacity. 8. The learned trial Magistrate erred in law and in fact in interpretation and application of Article 40 of the Constitution and sections 24,25 and 26 of the Land Registration Act in failing to recognize the interest and the rights of the registered proprietor of land and uphold the sanctity of title 9. The learned trial Magistrate gravely erred in law and in fact in awarding Plaintiff prayers which were not pleaded in the plaint. 10. The learned trial Magistrate erred in law and in fact in awarding damages which were not proved and which were inordinate excessive, all circumstances considered The Appellants prays for orders that; 1. This appeal be allowed 2. The judgement of the learned trial Magistrate dated 30th September, 2024 and consequential decree and all orders thereto be set aside/varied 3. The cost of this appeal be borne by the Respondent 4. Any such or further orders as this Honorable Court may deem just and expedient This is the first appeal, the primary role of the court is to re-evaluate, re-assess and re-analyze the evidence on record and decide as to whether the conclusion reached by the learned magistrate was sound, and give reasons either way. This duty was emphasized by the Court of Appeal in Mbogo and another vs Shah (1968) EA 93 where it was held that; *“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matter on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. It is for the company to satisfy this court that the judge was wrong and this, in my view it has failed to do.”* The court has considered the pleadings, evidence presented before it, submissions made as well as the authorities relied upon by the parties. The issues for determination are: 1. *Who is the lawful purchaser the plot 415 Morris Land?* 2. *What orders should this court issue?* It is not in dispute that the 2nd Defendant is the registered owner of the said suit land parcel No. Donyo Sabuk/Komarock Block 1/1990 which Plot 415 Morris Land is part of. It is not in dispute that both the Plaintiff and the 1st Defendant hold certificates of the suit plot. The Court of Appeal in Munyu Maina vs Hiram Gathiha Maina (2013) eKLR held that; *“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”* PW1, the Plaintiff/Respondent has led evidence that on or about the 28th January 2014 he purchased the suit land plot 415 Morris Land from Peter Mengo Mbugua who was a member of Sawasawa Housing and the owner for kshs. 800,000/=. He produced the sale agreement as PEx1. He produced the certificate in the name of Peter Mbugus to prove ownership PEx2, Receipts of payment PEx3&4 and photos of his developments PEx5. PW2 confirms being there when the transaction was done and that he was the one who introduced the parties. PW3 the Plaintiff’s wife corroborated the Plaintiff’s evidence. PW4 and 5 further corroborated the Plaintiff’s case. The 1st Defendant testified that she is the owner of Plot 415 Morris Land which she purchased from Simon Gakure Gakungi for kshs. 700,000/= who was the owner. She produced a copy of the certificate of ownership and the sale agreement as DEx1 &2. The transfer was done and she was given a certificate DEx3. That when she bought the land it was vacant. She admits that her certificate was signed by Richard N. Munene the Chairman of the 2nd Defendant and is dated 10th December 2021. She also admits that the Chairman is deceased but does not know when he died and that she was attended to by his son Anthony. The Appellant states that she is a bona fide owner having produced a letter from the registered owner that she bought the same from Simon Gakure Gakungi. That the Plaintiff cannot be a bona fide purchaser as the certificate is not in his name but that of a third party. The definition of bona fide purchaser for value without notice is; *“that buyer who has paid a stated price for the property without knowledge of existing or prior claims or prior equitable interest”.* Bona fide is a Latin word meaning good faith, without fraud, sincere, genuine. See (Black’s Law Dictionary 9th Edn Page 199) A bona fide purchaser is a buyer who buys without constructive or actual notice of any defects or infirmities against the seller’s title. See (page 1355) Black’s Law Dictionary 9th Edn. It is trite law that a person who relies on the defence of bona fide purchaser for value without notice has the burden to prove that he or she acted in good faith. The purchaser must have given due consideration and purchased the land without notice of the fraud. Such notice covers both actual and constructive notice of fraud. In the case of Jones vs Smith (1841) I Hare 43, the Chancery Court held; *“a purchaser has constructive notice of fraud if he had actual notice, that there was some encumbrance and a proper inquiry would have revealed what it was (but if) it abstained either deliberately, carelessly from making those inquiries which a prudent purchaser would have made...then the defence cannot be available to him or her”* In Yakobo M. N Senkungu & Others vs Cresencio Mukasa Civil Appeal No 17 of 2014. The court reaffirmed the law regarding the importance of due diligence in land transactions holding that; *“…Lands are not vegetables which are bought from unknown sellers. Lands are very valuable properties and buyers are expected to make thorough investigations not only on land but also of the owner before the purchase.”* I have carefully perused the documents adduced as evidence in this matter Peter Mengo Mbugua was issued with a certificate on the 8th June 1999, Simon Gakure Gakungi was issued a certificate on 6th December 2017 and the 1st Defendant Nelly Gatakaa Murungi was issued a certificate on the 10th December 2021. The Plaintiff’s sale agreement is dated 28th January 2014 while the 1st Defendant’s agreement is dated 10th December 2021.I find that the suit plot was allocated to Peter Mengo Mbugua way back in 1999 and was not available for reallocation in 2017. Indeed, I find that by the time the Simon Gakure Gakungi and 1st Defendant were issued with their certificates the Chairman of the 2nd Defendant was deceased, having died in 2013 and could not have signed the same. I find that the 1st Defendant’s certificate is a forgery to say the least. The 1st Defendant is also not being truthful when she stated that the plot was vacant when she purchased it when it is in evidence that the Plaintiff had taken possession after he purchased it and constructed a church. As in the Supreme Court decision in Dina Management Limited vs County Government of Mombasa (2023) eKLR, the Court went on to hold that, once the root of the title has been challenged, a party cannot derive benefit from the doctrine of bona fide purchaser. I find that the said plot had already been sold to the Plaintiff in 2014 and same was not available for sale to the 1st Defendant in 2021. Indeed, the 1st Defendant stated in evidence that she dealt with the son of the 2nd Defendant and not the Chairman himself. That the Chairman had died though she did not know when. The Appellant submitted that the Plaintiff had no locus standi to bring the suit as the suit as the certificate was in the name of a third party Peter Mengo. I find that at the time of thee Plaintiff’s sale agreement the said Peter Mengo was alive. He took possession of the said plot and the same could not be transferred to him as the Director of the 2nd Defendant passed on. Peter Mengo also died before they could complete the transfer. I find that he has beneficial interest on the suit plot and is properly before this court. It is also in evidence that the Appellant’s invaded the Plaintiff’s property and destroyed it in attempt to evict him hence the Plaintiff is entitled to damages for trespassed. I find that the 1st Defendant was being fraudulent knowing very well the said plot of land was not available for sale and was occupied. I find that the defence of bona fide purchaser is not available to the Appellants. I agree with the trial court that the 1st Defendant failed to prove case her case on a balance of probabilities. I find this appeal is not merited and I dismiss it with costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 2ND DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**