Naker & 3 others v Thairu (Environment and Land Case 12B of 2023) [2026] KEELC 3708 (KLR) (15 June 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CASE NO. 12B OF 2023** **MAHESHCHANDRA RAMNIKLAL NAKER………..…….………1ST PLAINTIFF** **JAYANT RAMNIKLAL NAKER………………………...….……..2ND PLAINTIFF** **JITENDRA RAMNIKLAL NAKER………………………..……….3RD PLAINTIFF** **NEETA NAKER & PALLAVI MAHESHCHANDRA NAKER** **(**In their capacity as the legal representatives of the estate of KANTABEN RAMNKLAL NAKER as well as RAMNIKLAL MANISHAKER NAKER and/or RAMNIKLAL MANISHAKER NAKER Who operated as Aarem Investments)…………...……………..**4TH PLAINTIFF** **VERSUS** **MICHAEL KIMANI THAIRU……………………………..………..DEFENDANT** **JUDGMENT** 1. In the Kenyan legal landscape, land is not merely an asset; it is a foundational pillar of identity and livelihood, often guarded by the sanctity of title as enshrined under Article 40 of the Constitution. This suit, commenced by a Plaint dated 18/09/2023, underscores the perennial struggle to protect the indefeasibility of title against adverse claims. 2. The Plaintiffs moved this Court to exercise its jurisdiction seeking a definitive Judicial Declaration that they are the sole, true, and lawful proprietors of the suit property. Their prayer is rooted in the principle that a Certificate of Title is prima facie evidence of ownership, a vested right that the law must shield from any colorable claim or unlawful intrusion. 3. By seeking both a declaration of interest and a permanent injunction, the Plaintiffs ask the Court to move beyond a mere recognition of rights and provide an active shield permanently restraining the Defendant from interfering with their quiet possession. The Court is thus called upon to determine whether the Plaintiffs' title remains unassailable or if the Defendant’s adverse actions have successfully shaken the root of title. 4. The Plaintiffs pray for Judgment against the Defendant for: 5. An injunction restraining the Defendant whether by themselves, their servants, agents or employees as well as any and all other person claiming any interest or right in the suit property through them, or otherwise from entering onto or trespassing upon or occupying or using or remaining thereon or continuing to trespass or from taking possession of or damaging, wasting, developing, selling, leasing, alienating, transferring, charging, mortgaging or in any way from dealing howsoever with the Suit property. 6. A declaration that the Plaintiffs T/A Aarem Investments are the true and lawful proprietors of the suit property. 7. An order compelling the Defendants to transfer the suit property to the partners of Aarem Investments and/or its nominees and to execute the transfer instruments and all other documentation and provide documents necessary to effect the transfer of the suit property to the partners of Aarem Investments and/or its nominees failing which the Deputy Registrar of the Environment and Land Court shall execute the same. 8. Without prejudice and strictly in the alternative to prayer (c) above and only in the event that prayer (c) cannot be granted, an order against the Defendant to pay to the Plaintiffs as compensation and/or damages; 9. A sum equivalent to the current market value of the suit property as at the date of Judgment subject to a professional valuation of the Suit Property to be undertaken jointly by the parties herein, and in default by a valuer appointed by the Deputy Registrar and filed in Court within 30 days of the date of the Judgment; and 10. Interest on all the damages in order (d) (1) above at Court rates from the date of Judgment until payment in full. 11. General damages in respect of the Plaintiffs’ loss of the users of the suit property; 12. Costs of and incidental to this suit; 13. Such other or further relief or order which this Honorable Court may deem fit to grant. 14. It is the Plaintiff’s claim that on 12/11/1991 the Defendant and the late Ramniklal Naker executed the Sale Agreement in respect of the suit property. However, at the time title to the suit property had not been issued and pursuant to the special condition of the Sale Agreement the balance of the purchase price was to be paid in full upon title to the suit property being transferred to Aarem Investments. 15. Despite this the full purchase price was paid to the Defendant and Special Condition 13 of the Sale Agreement allowed the vendor to execute a Power of Attorney over the property sold in favour of Ramniklal Manishanker Naker to be held by the Purchaser’s Advocate. 16. That the Grant for the suit property was ultimately issued in 1995 but the transfer to Aarem Investments was further delayed due to delay in obtaining the Commissioner of Lands Consent to the transfer. 17. The late Ramniklal Naker despite this delay still paid the land rents and rates and when he died in 1999 the probate process of his estate caused further delay of transfer for Suit property to Aarem Investments 18. A further delay of transfer was caused by the closure of the Land’s Office in 2002 but the Defendant continued communicating with the children of the deceased about the transfer. However, in November 2005 the Plaintiffs discovered that there was a duplicate title leading to the Defendant’s instituting a suit, which eventually upheld the title. The case was **Micheal Kimani Thairu vs Peter Kinyanjui Gedraph & Another (2015) eKLR**. The Judgment of 2019 upheld the title. 19. That about July to November 2022 meetings between the Plaintiffs and the Defendant happened where the Defendant acknowledged receipt of the purchase price from the late Ramniklal Naker and affirmed the Naker’s family interest in the suit property. That according to the Plaintiffs beneficial interest accrued to Ramniklal and/or Aarem Investment upon payment of the full purchase price under the Sale Agreement. The Plaintiff however fear that the Defendant may dispose of the suit property as a **“for sale”** sign has been erected on the suit property. The Court was urged to grant the prayers sought. 20. On 5/03/2024 the Defendant filed a Statement of Defence and denied all the Plaintiff’s averments in toto. 21. On 26/05/2025, the Plaintiffs’ evidence was presented by Jayant Ramniklal Naker the son of the late Kantan Ramniklal Naker who stated that his father had an Investment Company Aarem and his brother, the 1st Plaintiff, 3rd Plaintiff and Neeta and Manishaker are representing the estate. 22. It is his averment that Aarem Investment was to be used as a vehicle for Investment of their father’s land. He acknowledged knowing the Defendant who he said was his father’s friend and that he is the one who sold the land to his father. He adopted his witness statement dated 18/09/2021 as his primary evidence and submitted a list of documents dated 18/09/2023 to be adopted as his exhibits. 23. At this point the witness was stood down to allow for physical hearing in open Court but on the date of the hearing he was said to be in Court and so the Court had to take the evidence of PW3. 24. Mr. Jitendra Ramniklal Naker testified as PW3 and he adopted his witness statement dated 03/09/2024 and a further list of documents and the transcript of his phone conversation with Major Thairu the Defendant – No. 20 at pages 64 - 67 of the Plaintiff’s bundle as his exhibits. 25. When he was cross-examined, he testified that he had not produced the partnership he refers to at paragraph 2 of his witness statement and neither the fake title that he talks about at paragraph 5. That the only assurance he could attest to is the recording that he produced at pages 64-67 which he has stated at paragraph 8. 26. When his Counsel re-examined him, he testified to knowing the Defendant through his late father. Major Thairu he stated sold the land to his late father in the 1990’s and that in 2010 according to him a fake title surfaced before the land had been transferred to his late father. That when this happened, Major Thairu went to Court to have his title affirmed and this was done by the Court. 27. He testified that the conversation at pages 64 to 67 took place on 7/12/2022 and the conversation was about transfer. The essence of the call is that the parties were trying to find a way to transfer the suit property to Aarem Investments but Major Thairu was also thinking about compensating the family. 28. It was his testimony that even before 2019 the Defendant and 1st Plaintiff were having conversation on transfer of title. That in all their conversations Major Thairu gave the family assurance that he will finalize and transfer but later he turned and said that he had an issue about consent with the family and therefore he wanted to compensate the Plaintiffs but according to Plaintiffs this was unfair. 29. Willingstone Makobe Kuya testified as PW4 and he adopted his witness statement dated 3/09/2024 as his evidence in chief. He testified that he is the care-taker on Plot 1979 where he is based on a daily basis and that he has been on the suit property since 1998. He told the Court that he found the wall constructed but that there was no gate but now there is a gate constructed by Jayant Ramnkilal Naker. It was his testimony that the Plaintiffs never came to the plot but that he used to hear them say that the plot belongs to them. 30. On re-examination he told the Court that he was taken to the suit property by Ramnkilal Naker in 1998. He told the Court that he used to work for him in Munene Industries. The owner of the suit property was Ramnkilal Naker and the other person who owned the land was Major Thairu. He however told the Court that since he started working on the suit property, he had seen Major Thairu only once. Further that Naker’s family placed a gate on the suit property and also repairs are done by Naker family. 31. PW2 Philip Njoroge Ng’ang’a adopted his witness statement dated 18/09/2023 as his evidence in chief, he told the Court that in 2005 it was noticed that the suit property was being fenced off by unknown people. Jayant reported the matter. 32. He testified having worked for the deceased but having left in 1999. Major Thairu according to him was to file a suit to confirm the title. That the father of PW3 and PW1 is the one who bought the suit property and Major Thairu upheld the title and in so doing, it means that he was not in doubt as to who owns the land because he knew it was Naker family and so it was him to confirm and affirm the title. 33. At the next hearing PW1 Jayant Ramniklal concluded his evidence in chief and was cross-examined. He told the Court that at page 1 of the Plaintiff’s documents there is a Certificate of Registration which refers to a Business Name and not a partnership. That the Agreement for Sale shows Major Thairu as the vendor and Aarem Investments as the purchaser. 34. He testified that his father died in 1999 and the Agreement was done in 1991 and that he got involved in the land after his father died following filing of a Limited Grant Ad Litem as shown at page 5. That he was aware that the full purchase price was paid totaling Kesh 600,000 and this payment is shown vide the supplementary documents list filed. That whereas the acknowledgment shows payment of Kesh 300,000 he contends that the full purchase price was paid. 35. According to him, he has never met Vincent Kang’ethe. That he was threatened and so he kept off as he has testified at paragraph 11 of the witness statement. He told the Court that when he discovered the suit land was owned by two people, he hired a private investigator to unravel what was happening. The vendor he told Court always assured him that the suit property belonged to him. That he then asked the Defendant as stated at paragraph 19 to file a suit against the competing claimants and he was told in 2019 that the Defendant won the case. 36. PW1 told the Court that he made contributions to the litigation of the suit since he used to pay for all the Defendant’s expenses whenever he traveled to Nairobi. At the same time, they verbally agreed that he would refund other expenses but that he did not have any documents to support the claim. 37. That when the title was released and it was given to PW1’s father who gave it to Lawyer **Ngaruiya** and the Defendant collected it from the father’s Advocate and PW1 knew about it. That he was present when the title was released and also the 1st Defendant was present. That he has followed up about his land for 14 years. 38. On re-examination he stated that over the years he gave Major Thairu Kesh 40,000 when he attended Court. He told the Court that he was told by DCI to stay away from Vincent Kang’ethe who was giving a death threat. 39. That from 1999 Major Thairu was not staying on the suit property. He testified that in 2005 he wrote a letter to the Town Clerk see page 60 about the act of trespass. Further he stated that the Plaintiffs having been paying rates and rent but they later stopped since there were two titles. Also, at any time they went to pay the Council always inquired whether they were paying rates for Vincent Kang’ethe or Major Thairu. 40. With that the Plaintiffs closed their case. **Defendant’s Case** 1. Major Micheal Kimani Thairu testified as DW1. He told the Court that he lives in Nyandarua. He adopted his witness statement as evidence in chief and also asked the Court to adopt his list of documents dated 22/08/2024 with thirteen (13) documents marked as **“DW1Exh 1-13”**. He stated that he released the title to Mr. Naker in 1995 but later to find out that they had not paid the balance. 2. He told the Court that the Plaintiff has filed a list of documents dated 04/09/2024 where it shows payment to the Defendant and that indeed in various months, he received money but that it was not full purchase price and that at page 65 and the Special Conditions shown at paragraph 10 and 12 the monies paid would be included in the purchase price. 3. According to DW1, he was of the view that the purchase price for the parcel was Kesh 1.2 million which was between himself and Mr Naker but that the said Agreement was not produced in Court. That Mr Naker had asked him to state a lower figure so that the stamp duty is not high. 4. That the letter at page 53 show that he released title to Naker family although they had not paid the full purchase price since that was the agreement. According to his testimony, the content at paragraph 10 of his statement, he wrote it because the police called him and he was told to prove positively that the plot was his and so he needed a search that shows the plot belonged to him. 5. At paragraph 7 he stated that he asked for Kesh 300,000 because he had talked to the Naker family and they had paid rent of Kesh 300,000 and so he could not tell them to pay Kesh 600,000 but he had no document to support the claim. He confessed not being aware that the Naker family hired a private investigator to trace him. 6. He testified having been in occupation of the suit property and even paying rates as depicted by the receipt produced at page 25 of his bundle. Although the documents at page 34-52 of the Plaintiff’s bundle there are receipts for payment of rates by the Plaintiffs. He however states that as for him he paid rates in 2011 because there was an accrued balance since previously the file was missing. 7. He stated that although there is a transcript of the conversation captured at pages 64-66, he could not remember what the discussion was all about. According to DW1 he spent Kesh 3 million in pursuing the case and he was awarded costs by the Court and the Naker family offered to compensate him for Kesh 5 million but he refused because he was not asked how much he had spent. That he continued to talk to the Naker family despite having sold the plot to them so essentially the plot was still his. 8. The litigation initiated in 2018 was in Court for nearly 10 years and the Court ruled in his favour. He told the Court that the Agreement he presented in Court was for Kesh 600,000 on the face of it and that he saw the receipts and they show a payment of Kesh 300,000 not Kehs 600,000 and that he never told the Naker family whether verbally or through the phone that the plot was theirs. 9. He told the Court that the title is in his name as shown at page 18-19 of the Defendant’s bundle. It was his testimony that he never stayed in a hotel for the Plaintiffs to pay and that they never told him they were recording his conversation with them. He denied telling the Naker family to relax because the plot was theirs. 10. Initially he testified that they had agreed with the Snr Naker to pay the rent and rates but when he went to visit and search the land, he found arrears and so he paid rates as per 2011 outstanding rates. 11. He concluded his testimony by stating that he was not willing to transfer the suit property to the Naker family since he only received Kesh 300,000 and that he incurred many expenses. 12. With that the Defendant closed his case. 13. The parties filed their written submissions dated 6/02/2026 and the Defendant filed written submissions dated 23/02/2026. **Plaintiffs’ Submissions** 1. The Plaintiffs submit that a valid and binding Sale Agreement exists in respect of Land Reference Number 4953/977 (the **"Suit Property"**), entered into between the late Ramniklal Manishanker Naker on behalf of Aarem Investments and the Defendant, Major Michael Kimani Thairu, in or around 1991. The existence of the agreement is uncontested, as both parties annexed the same instrument in their respective trial bundles, duly signed in the presence of an Advocate. 2. They further submit that the agreement sufficiently identifies the Suit Property by reference to the allotment plan number, being Thika Municipality Plot No. 103181/11b, and that there is no legal requirement mandating that a Sale Agreement specify a title number, particularly where, as in the present case, title had not yet been issued at the time of contracting. The Plaintiffs rely on **Maritim v Ngeno Civil Appeal 16 of 2022 and Cherutich v Kebut (ELC Appeal 10 of 2023)** in support of the proposition that a signed written agreement reflecting mutual intention to contract is enforceable, and that alleged gaps or inconsistencies therein cannot avail a party reliefs where the subject matter is not in dispute and the purchaser has been in long and undisturbed possession. 3. Additionally, they further submit that the full purchase price of KES 600,000 was duly paid to the Defendant, as evidenced by banking receipts, signed acknowledgements by the Defendant's own hand referencing specific cheque numbers, and payments made on the Defendant's behalf directly to the Commissioner of Lands and the Surveyor pursuant to the special conditions of sale, bringing the total consideration paid to KES 691,300. The Defendant has failed to produce any demand letter, bounced cheque notification, or contemporaneous correspondence disputing receipt of the purchase price, and his belated oral assertion during trial that the agreed purchase price was KES 1,200,000 was wholly unsupported by documentary evidence. 4. The Plaintiffs rely on **Christine Mwigina Akonya v Samuel Kairu Chege (2017)eKLR** for the proposition that receipts constitute sufficient proof of payment, and further submit that the Defendant's conduct including his engagement with the Plaintiffs regarding the transfer as recently as 2022 and his own confirmation that the Suit Property belonged to the Naker family is wholly inconsistent with the conduct of a vendor who remains unpaid. 5. According to the Plaintiffs, they submit that by reason of full payment of the purchase price, continuous physical occupation and control of the Suit Property since 1998 through a caretaker at their expense, and the payment of land rents and rates over the same period, a constructive trust has been created in their favour and their possession constitutes an overriding interest within the meaning of Section 28 of the Land Registration Act, Cap 300. 6. The Plaintiffs rely on the Court of Appeal decisions in **Obiero v Otwenya (Civil Appeal 145 of 2019)** and **Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR** in support of this position. Invoking the equitable maxims that equity suffers no wrong without a remedy and that no man ought to benefit from his own wrongdoing, the Plaintiffs urge this Honourable Court to grant the declaratory relief, injunction and order for transfer sought, or in the alternative an award reflecting the current market value of the Suit Property, which stands at KES 75,000,000, on the grounds that it would be manifestly inequitable and unjust to confine the Plaintiffs to a refund of the original consideration after over thirty years of occupation, expenditure, and stewardship of the Suit Property. **Defendant’s Submissions** 1. The Defendant submits that ownership of the Suit Property, being Land Reference Number 4953/1977, Grant No. I.R 67233, is not and cannot be in dispute, as all parties are in consensus that title thereto was lawfully issued to and remains registered in the name of the Defendant. The Defendant relies on Section 26(1)(a) and (b) of the Land Registration Act, which clothes a registered proprietor with an absolute and indefeasible title challengeable only on grounds of fraud, misrepresentation, illegality, or unprocedural acquisition none of which the Plaintiffs have pleaded or proved. 2. The proprietorship position is further buttresses by the Defendant by producing the Judgment and Decree of this Honourable Court in **Thika ELC No. 23 of 2018**, **Michael Kimani Thairu v Peter Kinyanjui Gedraph & 2 Others,** wherein this Court declared that the Suit Property lawfully belongs to the Defendant. The Defendant accordingly submits that this Court is bound by its own prior pronouncement on ownership of the Suit Property, and that the Plaintiffs' claim is Res Judicata, thereby ousting the jurisdiction of this Court to entertain the matter afresh. 3. In addition, the Defendant further submits that the Plaintiffs' claim, being founded entirely upon a contract entered into in 1991, is irreparably statute-barred by dint of Section 4(1)(a) of the Limitation of Actions Act, Cap 22, Laws of Kenya, which prescribes a limitation period of six years for actions founded on contract running from the date the cause of action accrued. The Defendant contends that the contract never matured into a transfer, that the late Ramniklal Naker was in possession of the title document for purposes of effecting transfer yet failed to do so for the entirety of the eight years preceding his death in 1999, and that by the time the Plaintiffs instituted the present suit in 2023, a period of thirty-two years had elapsed from the date of contracting. Relying on the Court of Appeal's dicta in **Civil Application No. NAI 100 of 2015** to the effect that whenever a cause of action is statute-barred a Court lacks jurisdiction to entertain the matter, the Defendant submits that this suit is fatally time-barred and ought to be dismissed on that ground alone. 4. In summing up his submissions the Defendant submits that the Plaintiffs have failed to adduce credible or sufficient evidence to establish that the full purchase price was paid, the documentary evidence on record amounting to no more than KES 300,000 against the agreed consideration. The Defendant further avers that the title document was surrendered to him by the Plaintiffs' own deceased mother, Kantaben Ramniklal Naker, and Advocate Ngaruiya, in circumstances where the Plaintiffs' family indicated they were no longer interested in the Suit Property, and that it was the Defendant acting independently and at his own initiative who discovered the trespass upon the Suit Property and instituted proceedings to vindicate its validity, without any meaningful participation by the Plaintiffs. The Defendant submits that the Plaintiffs' failure to assert or defend their alleged interest when the question of ownership was squarely before this Court constitutes fatal negligence and estops them from now seeking to revive a stale and abandoned claim. The Defendant accordingly urges this Honourable Court to dismiss the Plaintiffs' suit with costs. **Analysis and Determination** 1. Having carefully considered the pleadings, the evidence adduced at trial, the written submissions of both parties, and the applicable law, this Court is of the view that the following are the issues that fall for determination in this matter: 2. *Whether the suit is Res Judicata by reason of the prior Judgment of this Court in Thika ELC No. 23 of 2018.* 3. *Whether the Plaintiffs' claim is statute-barred under Section 4(1)(a) of the Limitation of Actions Act, Cap 22 Laws of Kenya.* 4. *Whether a valid and enforceable Sale Agreement exists between the parties in respect of the Suit Property.* 5. *Whether the full purchase price for the Suit Property was paid to the Defendant.* 6. *Whether a constructive trust was created in favour of the Plaintiffs and whether their possession of the Suit Property constitutes an overriding interest.* 7. *What relief, if any, the Plaintiffs are entitled to.* 8. On the first issue, the Defendant has strenuously urged this Court to find that the present suit is Res Judicata, relying on the earlier Judgment of this Court in **Thika ELC No. 23 of 2018, Michael Kimani Thairu v Peter Kinyanjui Gedraph & 2 Others**, wherein this Court declared the Suit Property to lawfully belong to the Defendant. With respect to learned Counsel for the Defendant, this argument, though attractive on its face, does not withstand scrutiny upon closer examination. 9. The doctrine of *Res Judicata* is codified under Section 7 of the Civil Procedure Act, Cap 21 Laws of Kenya, which provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The ingredients of *Res Judicata* are therefore well settled: there must be a former suit, the matter in issue must be directly and substantially the same, the parties must be the same or claiming under the same title, and the matter must have been finally decided. 10. The critical distinction that this Court draws is this: the prior suit in **Thika ELC No. 23 of 2018** was a suit between the Defendant herein and third-party trespassers, namely Peter Kinyanjui Gedraph and others, who had fraudulently obtained a duplicate title to the Suit Property. The Plaintiffs in the present suit were neither parties to that litigation nor were they privy to the trespassers against whom that suit was brought. The question before this Court in the present suit whether the Plaintiffs acquired a beneficial interest in the Suit Property by reason of a Sale Agreement and full payment of the purchase price was never directly and substantially in issue before this Court in the earlier suit. The Court of Appeal in **Tana and Athi Rivers Development Authority v Jeremiah Kimani Njeru & Another [1988] eKLR** expressed itself on this point with commendable clarity when it held that *Res Judicata* operates only where the same matter between the same parties has been conclusively determined, and that the doctrine cannot be stretched to bar a claim that was never before the Court in the earlier proceedings. 11. This Court therefore finds and holds that the present suit is not *Res Judicata*. The parties are different, the cause of action is different, and the subject matter of the earlier litigation being the validity of the registered title as against fraudulent third-party claimants is entirely distinct from the present suit, which concerns the equitable rights of the Plaintiffs arising from an alleged Sale Agreement and payment of purchase price. The Defendant's Preliminary Objection on this ground therefore fails and is dismissed. 12. On the second issue whether the suit is time-barred, the Defendant submits that the Plaintiffs' claim, being founded upon a contract entered into in 1991, is irreparably time-barred under Section 4(1)(a) of the Limitation of Actions Act, Cap 22 Laws of Kenya, which provides that actions founded on contract may not be brought after the end of six years from the date on which the cause of action accrued. By the time the present suit was filed in 2023, the Defendant argues, thirty-two years had elapsed since the date of contracting, rendering the claim hopelessly out of time. 13. This Court is alive to the importance of the Law of Limitation. As Potter J observed with characteristic succinctness in **Gathoni v Kenya Co-operative Creameries Ltd, Civil Application No. 122 of 1981**, that ***"The law on limitation is intended to protect Defendants against unreasonable delay in bringing of suits against them. The statute expects the intending Plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest."*** 1. However, the question of when time begins to run is not as straightforward as the Defendant suggests. A cause of action founded on contract for the sale of land does not necessarily accrue on the date of execution of the agreement. It accrues when there is a breach, or when the right to sue first arises. In the present case, the evidence before this Court discloses a continuous course of conduct between the parties stretching from 1991 to as recently as 2022. 2. The Defendant was in active communication with the Plaintiffs regarding the transfer of the Suit Property, acknowledged receipt of the purchase price, and as recently as July and November 2022 met with the Plaintiffs and affirmed the Naker family's entitlement to the Suit Property. The Plaintiffs' own evidence, which this Court accepts, is that it was not until 2023, when a **“for sale**” sign appeared on the Suit Property, that the Defendant's intention to repudiate the transaction became unequivocally apparent. 3. Further, Section 23 of the Limitation of Actions Act expressly provides that where there has been an acknowledgment of a claim in writing signed by the person liable, a fresh period of limitation begins to run from the date of such acknowledgment. The transcripts of the telephone conversations produced by the Plaintiffs at pages 64 to 67 of their bundle, which the Defendant did not deny making, constitute in this Court's view an acknowledgment within the meaning of Section 23 of the Act. The Defendant in those conversations acknowledged that the Suit Property belonged to the Naker family and engaged in substantive discussion about the modalities of transfer. 4. This Court therefore finds and holds that the Plaintiffs' claim is not statute-barred. The cause of action did not crystallise until the Defendant evinced a clear and unequivocal intention to resile from the transaction, which on the evidence did not occur until 2023. The Defendant's objection on limitation therefore fails and is dismissed. 5. On the third issue whether a valid and enforceable Sale Agreement exists. Both parties annexed the same Sale Agreement to their respective trial bundles. The Defendant's own trial bundle contains the agreement at item number 13, and the Plaintiffs' list of documents contains the same at document number 10. The agreement is duly signed by both parties in the presence of Advocate Ngaruiya. In those circumstances, it is not open to the Defendant to deny the existence of the agreement, and indeed he has not done so in any direct or credible manner. What the Defendant contests is whether the agreement was fully performed and whether it was valid for purposes of conferring an enforceable interest. 6. Section 3(3) of the Law of Contract Act, Cap 23 Laws of Kenya provides that no suit shall be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by all parties thereto, and the signature of each party has been attested by a witness present at the time of signing. This Court is satisfied that the agreement between the parties meets all these requirements. It is in writing, it is signed by both the Defendant and the late Ramniklal Naker on behalf of Aarem Investments, and it was attested by Advocate Ngaruiya. 7. The Defendant's further contention that the agreement is deficient because it does not specify the title number of the Suit Property is without merit. Courts frequently find land Sale Agreements valid even if they omit a formal Land Reference (L.R.) number or title number at the time of drafting. The primary legal justification is that as long as the property can be clearly identified by alternative means and the parties are in mutual agreement (*consensus ad idem*), the technical omission of a registration number will not defeat the contract. 8. As my brother Justice Mwangi noted in **Njinu v Orkesi & 5 Others; Tumpes (Interested Party) [2024] KEELC 3765 (KLR)** the parties entered into an agreement to excise and purchase a 3-acre portion of a larger block. Because the land had not yet been formally subdivided, a unique sub-title land reference number for the specific parcel did not exist at the time of signing. Justice Mwangi upheld that when an agreement clearly identifies land by its known physical parameters, a sketch plan, or boundary markers, the absence of a final title registration number is a procedural technicality that can be resolved subsequently through subdivision. 9. In **Phineas Isaiah Nyaga v Charles Njagi Ireri [2017] eKLR** the vendor attempted to back out of a land transaction, claiming the contract was void because the precise parcel reference numbers were missing from the handwritten Sale Agreement. The Court ruled that the contract was legally binding under Section 3(3) of the Law of Contract Act. 10. The Court noted that because the agreement detailed the physical attributes of the land (the coffee trees, surrounding neighbors, and location), and because the buyer had already taken physical possession with the vendor's consent, the contract met the threshold for certainty of subject matter. 11. In the instant suit, it was not in dispute that the suit property was the subject matter of the Sale Agreement, and secondly, the purchaser had taken possession. The property in the present case is sufficiently identified by reference to Thika Municipality Plot No. 103181/11b, being the allotment plan number reflected in the Allotment Letter, and the Defendant himself acknowledges that this refers to the Suit Property. There is no ambiguity as to what property was the subject of the transaction. 12. As to the Defendant's claim that the actual agreed purchase price was KES 1,200,000 rather than the KES 600,000 reflected in the agreement, and that the late Ramniklal Naker had requested that a lower figure be stated to reduce stamp duty liability, this Court treats this assertion with the contempt it deserves. The Defendant made this assertion for the first time in oral testimony before this Court, without any supporting documentation whatsoever, and when this Court specifically invited him to produce a written agreement evidencing the alleged higher price, he was unable to do so. A party who seeks to contradict a written and signed contractual instrument on the basis of an unsubstantiated oral agreement bears a heavy burden. The Defendant has discharged no such burden. 13. Under Section 91 and 92 of the Evidence Act, Cap 80, oral evidence cannot be admitted to contradict, vary, add to, or subtract from the terms of a written contract. The Defendant cannot plead his own alleged unlawful scheme to escape his contractual obligations. 14. The Plaintiffs produced banking slips, receipts, and signed acknowledgments demonstrating that KES 300,000 was paid directly to the Defendant. They also proved that they paid land rates, survey fees, and standard costs directly to the Commissioner of Lands and the Surveyor, as required by the special conditions of the agreement, bringing their total expenditure to KES 691,300. The Defendant did not produce any letter from that era demanding payment or claiming a default. I find as a fact that the agreed purchase price was fully settled. 15. The Supreme Court of the United Kingdom in **RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG (UK Production) [2010] UKSC 14** stated authoritatively, as cited with approval by the High Court in **Maritim v Ngeno Civil Appeal No. 16 of 2022 [2024] KEHC 13169 KLR**, that: ***"Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations."*** 1. The written agreement signed by both parties is the objective manifestation of their contractual intention, and this Court so holds. This Court finds and holds that a valid, binding, and enforceable Sale Agreement exists between the parties in respect of the Suit Property at the purchase price of KES 600,000. 1. On the fourth issue whether the full purchase price was paid, this issue is at the very heart of the Defendant's resistance to the Plaintiffs' claim, and it is therefore necessary for this Court to examine the evidence carefully and dispassionately. 2. The Plaintiffs produced through their Supplementary List of Documents dated 4/09/2024 the following evidence of payment: a Barclays Bank receipt dated 19/09/1994 for KES 90,000; a Barclays Bank receipt dated 7/06/1997 for KES 111,770; a Barclays Bank receipt dated 23/04/1997 for KES 100,150; an acknowledgement dated 30/12/1991 signed by the Defendant acknowledging receipt of cheque number 591050 for KES 100,000; an acknowledgement dated 10/08/ 1994 signed by the Defendant acknowledging receipt of cheque number 039289 for KES 90,000; and an acknowledgement dated 3/03/1992 signed by the Defendant acknowledging receipt of cheque number 357834 for KES 100,000. These amounts total KES 591,920. In addition, the Plaintiffs demonstrated that pursuant to the special conditions of sale, KES 89,380 was paid on behalf of the Defendant to the Commissioner of Lands, as evidenced by the Defendant's own document at item number 21 of his trial bundle being a receipt for land rent for precisely that amount, and a further KES 10,000 was paid to the surveyor on behalf of the Defendant, bringing the total consideration paid to KES 691,300. 3. The legal importance of receipts as evidence of payment in land transactions is well settled. In **Christine Mwigina Akonya v Samuel Kairu Chege [2017] eKLR,** the Court held in unambiguous terms that only a receipt meets the test of proof of payment, recognising the legal importance of receipts in substantiating that payment was actually made. The Plaintiffs have produced both receipts and signed acknowledgements bearing the Defendant's own signature. 4. To the contrary, the Defendant has produced nothing not a demand letter, not a letter disputing receipt, not evidence of a bounced cheque, nothing to controvert the evidence of payment. His bare oral assertion that only KES 300,000 was paid is wholly insufficient to displace documentary evidence of this quality and weight. 5. This Court is particularly struck by the Defendant's own conduct. He released the original title document to the late Ramniklal Naker, who by his letter of 25/03/1999 forwarded it to his Advocate Ngaruiya for purposes of registration of the transfer. A vendor who has not been paid does not release his title document. The Defendant's explanation that he released the title despite non-payment because that was the agreement fails the credibility test. Further, the Defendant in his oral testimony admitted that he continued to engage with the Naker family about the transfer even after 1999, acknowledged in the telephone conversations of 7/12/2022 that the property belonged to the Naker family, and proposed a joint venture arrangement with them in respect of the Suit Property. These are not the words or actions of a man who has not been paid. As the distinguished academic Professor Otieno Odek, in his seminal work *Land Law and Conveyancing in Kenya* observed, the conduct of parties subsequent to a transaction is often the most reliable guide to what was actually agreed and performed between them, because human beings rarely act generously towards those who owe them money. 6. Furthermore, the Defendant's claim that he made a written demand for KES 300,000 in 2005 which went unanswered is entirely unsubstantiated. No such demand letter was produced in Court, despite it being an elementary matter that a party who makes a written demand would ordinarily retain a copy of it. The inference that this Court draws from the Defendant's failure to produce this alleged document is that it does not exist and never did. 7. Thus, this Court finds and holds that the full purchase price for the Suit Property was paid to the Defendant by the late Ramniklal Naker on behalf of Aarem Investments. 8. On whether a Constructive Trust was created and whether the Plaintiffs' possession constitutes an overriding interest; having found that the full purchase price was paid and a valid Sale Agreement exists, this Court must now consider the equitable consequences that flow from these findings. The suit property remains registered in the name of the Defendant, and the transfer to Aarem Investments was never completed, for reasons that this Court has already noted were largely outside the control of the Plaintiffs. 9. The Plaintiffs claim that having paid the full purchase price and taken physical possession of the land through a caretaker since 1998, they have developed a beneficial interest under a constructive trust. 10. The Defendant on his part argues that under Section 26 of the Land Registration Act, his Certificate of Title is absolute and conclusive evidence of his ownership. While Section 26 protects the integrity of the land register, that protection is not a refuge for bad faith. Registered title cannot be used to defeat genuine equitable interests created by the owner himself. 11. When a purchaser pays the full purchase price for land and the vendor hands over possession but delays or fails to execute a formal transfer, the vendor ceases to be the absolute owner in equity. He becomes a trustee for the purchaser. This legal principle was explained by Justice Madan in the classic case of **Striations v. Oilfield (1975) KLR**, and reinforced by the Court of Appeal in **Macharia Mwangi Maina & 87 Others v. Davidson Mwangi Kagiri [2014] eKLR**, where the Court held: ***"The concept of a constructive trust applies where a person holds title to property in circumstances where it would be inequitable and contrary to good conscience for him to assert his sole beneficial interest. Where a purchaser pays the purchase price and takes possession with the consent of the vendor, a constructive trust arises by operation of law. The vendor holds the legal title simply as a trustee for the purchaser, and cannot turn around to dispossess the person who bought the property."*** 1. The Plaintiffs’ possession is further verified by PW4, Willingstone Makobe Kuya, who testified that he has lived on the land as a caretaker for the Naker family since 1998. He described the wall and the gate erected and repaired by the family. This actual, open, and continuous possession constitutes an overriding interest under Section 28 of the Land Registration Act, which binds the registered owner without needing a caution on the register. 2. The doctrine of constructive trust in the context of land Sale Agreements is well established in Kenyan jurisprudence. The Court of Appeal stated the position with clarity in **Obiero v Otwenya, Civil Appeal No. 145 of 2019 [2025] KECA 541 (KLR) (21 March 2025)**, where the Court affirmed the trial Judge's finding by holding that: ***"Since the Respondent honoured his part of the Sale Agreement by paying the purchase price in full, taking possession and utilizing his portion of land, the deceased held the suit land in trust for the Respondent; that despite the deceased selling the same land to the appellant behind the Respondent's back, a constructive trust was created in favour of the Respondent, and his possession was an overriding interest over the land that required no noting in the land register."*** The Court went further to state that: ***“there is another stronger reason for applying the doctrines of constructive trust and proprietary estoppel ... By Article 10(2)(b) of the Constitution of Kenya, equity is one of the national values which binds the Courts in interpreting any law."*** 1. The Court of Appeal in **Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [supra]** further expressed itself on the same question, holding that: ***"The totality of our re-evaluation of the facts and applicable law in this case leads us to conclude that the Honourable Judge erred in failing to consider that the Appellants were in possession of the suit property; that the Respondent had created a constructive trust in favour of all individuals who had paid the purchase price for respective plots... We do find that the possession and occupation by the Appellants of the suit property is an overriding interest attached to the said property."*** 1. The position in equity is equally well settled. In **Yaxley v Gotts & Another [2000] Ch 162,** cited with approval in the Kenyan Court of Appeal. The Court of Appeal held that an oral agreement to acquire an interest in land can be enforced through a common intention of constructive trust. This ensures fairness without violating strict statutory writing requirements. In the above-referenced case it was held that an agreement for the sale of property, even if void and unenforceable as a contract, can still be enforced on the basis of a constructive trust or proprietary estoppel where the party seeking enforcement has acted to his detriment in reliance on the agreement. 2. In the present case, the Plaintiffs have not merely acted to their detriment; they have paid the full purchase price, maintained and occupied the Suit Property through a caretaker for over twenty-five years, paid land rents and rates, and funded the Defendant's litigation against the fraudulent third-party claimants to protect the title to a property that was rightfully theirs. 3. The evidence of Willingstone Makobe Kuya as PW4, which this Court accepts, establishes beyond any reasonable doubt that the Plaintiffs have been in continuous physical occupation and control of the Suit Property since 1998. The Defendant himself, by his own admission, has seen the Suit Property on only one occasion since the late 1990s. He has not adduced any credible evidence of occupation or control on his part save for two receipts one of which was paid using the Plaintiffs' own money pursuant to the terms of the Sale Agreement, and the other of which was paid in 2011 in the context of the litigation he was pursuing at the Plaintiffs' instigation. 4. Section 28 of the Land Registration Act, Cap 300 Laws of Kenya provides that the rights of a person in actual occupation of land shall constitute overriding interests which shall not be defeated by a subsequent registered disposition. The Plaintiffs' continuous occupation of the Suit Property for over two decades constitutes an overriding interest of precisely this character, requiring no noting in the register. 5. This Court is further guided by the principle articulated by Madan JA, as he then was, in **Chase International Investment Corporation and Another v Laxman Keshra and Others [1978] KLR 143; [1976-80] 1 KLR 891**, where His Lordship stated with characteristic elegance that; ***"If the circumstances are such as to raise equity in favour of the Plaintiff and the extent of the equity is known, and in what way it should be satisfied, the Plaintiff is entitled to succeed."*** 1. The equity in favour of the Plaintiffs in the present case is as clear and as well established as any this Court has encountered. They paid for this land. They have occupied it and maintained it. They have protected it. They have waited patiently for over three decades. The Defendant has had the benefit of their money, their labour, their patience, and even their financial support in defending the title, and now seeks to retain the land as well. Equity will not countenance such an outcome. 2. Article 159(2)(b) of the Constitution of Kenya commands this Court to promote alternative forms of dispute resolution and to advance substantive justice. Article 159(2)(e) further requires that the purpose and principles of the Constitution be promoted and protected. The equitable maxims that equity suffers no wrong without a remedy, and that no man shall benefit from his own wrongdoing, are not merely rhetorical flourishes; they are, by virtue of Article 10(2)(b) of the Constitution, national values binding upon this Court in the exercise of its jurisdiction. 3. This Court finds and holds that upon payment of the full purchase price and delivery of possession, a constructive trust was created in favour of the Plaintiffs over the Suit Property, and the Defendant has since that time held the legal title to the Suit Property as trustee for the benefit of the Plaintiffs and the partners of Aarem Investments. The Plaintiffs' continuous occupation of the Suit Property constitutes an overriding interest within the meaning of Section 28 of the Land Registration Act as stated above. 4. Having found in favour of the Plaintiffs on all the substantive issues, this Court must now consider the appropriate relief. The Plaintiffs seek an order compelling the transfer of the Suit Property to the partners of Aarem Investments, a declaration of ownership, and a permanent injunction. In the alternative, they seek the market value of the Suit Property, currently assessed at KES 75,000,000. 5. This Court is of the firm view that the justice of this case demands the grant of the primary relief rather than the alternative. To confine the Plaintiffs to a refund of money even money representing the current market value of the property would be to permit the Defendant to benefit from his own prolonged breach of obligation at the expense of a family that has waited over thirty years for what is rightfully theirs. The observation of the Court of Appeal in **Obiero v Otwenya (supra)** that possession and payment of the full purchase price creates a constructive trust that is an overriding interest requiring no noting in the register applies with full force here. The Plaintiffs are entitled to the land itself. **Final Determination** 1. The Plaintiffs have fully established their case on a balance of probabilities. The Defendant’s resistance is unsupported by the facts, the documents, or the law. The primary prayer for specific performance and the transfer of the land is the most appropriate remedy to satisfy the demands of justice. 2. Accordingly, this Court enters Judgment for the Plaintiffs against the Defendant and issues the following final Orders: 3. ***A declaration is hereby issued that the Plaintiffs, trading as Aarem Investments, are the true and lawful beneficial owners of Land Reference Number 4953/1977, Grant No. I.R 67233, Thika and that the Defendant holds the registered title to the Suit Property as constructive trustee for the benefit of the partners of Aarem Investments.*** 4. ***An Order is hereby issued compelling the Defendant, Major Michael Kimani Thairu, to execute all necessary transfer instruments, consents, and documentation required to formally transfer the registration of the Suit Property into the names of the partners of Aarem Investments and/or their lawful nominees within thirty (30) days from the date of this Judgment.*** 5. ***In Default of the Defendant’s compliance with the order of transfer above, the Deputy Registrar of this Court is hereby authorized and directed to execute the said transfer instruments and all related documents on behalf of the Defendant to facilitate the registration of the land in the Plaintiffs' names.*** 6. ***A Permanent Injunction is hereby issued restraining the Defendant, whether by himself, his servants, agents, employees, or anyone claiming through him, from entering, trespassing upon, occupying, selling, alienating, or in any manner dealing with Land Reference Number 4953/1977.*** 7. ***The costs of this suit are awarded to the Plaintiffs.*** It is so ordered. **DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 15TH DAY OF JUNE, 2026.** **………………………** **MOGENI J** **JUDGE** **In the presence of:** Ms. Ongak for 1st, 2nd, 3rd and 4th Plaintiffs Ms. Mungai for the Defendant Ms. Lillian - Court Assistant **………………………** **MOGENI J** **JUDGE**