[2023] KEELC 15887 (KLR)

Njoroge v Wambua & 2 others (Environment & Land Case 195 of 2015) [2023] KEELC 15887 (KLR) (1 March 2023) (Judgment)

Neutral citation: [2023] KEELC 15887 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case 195 of 2015

A Nyukuri, J

March 1, 2023

Between

Dr. George W. Josiah Njoroge

Plaintiff

and

Justus Musau Wambua

1st Defendant

Moses Ndungu Mungai

2nd Defendant

District Land Registrar Machakos

3rd Defendant

Judgment

Introduction 1. By a plaint dated 12th August, 2015, the Plaintiff herein sought judgment against the Defendants jointly and severally for the following orders;a.A declaratory order identifying the Plaintiff as the lawful proprietor of the subject property i.e. Land Title No Mavoko Town Block 3/2194, do and is hereby issued;b.An order of permanent injunction restraining the Defendants either acting by themselves, their directors, officers, servants, agents, employees or workmen or otherwise howsoever from infringing in any way on the subject property do and he hereby issued;c.An order of specific performance against the 1st Defendant, together with the other two joint proprietors, to transfer the suit property to the Plaintiff, and undertake all necessary action thereto including execution of the requisite forms where necessary do and is hereby issued;d.A mandatory order of specific performance directing the 3rd Defendant to lift the caution registered over land title number Mavoko Town Block 3/2194 do and is hereby issued;e.Costs incurred in surveying of the property to re-establish the original boundaries of the Plaintiff’s property;f.Punitive Damages;g.In the alternative, an award of the current market value of the suit property as against the Defendants jointly and/or severally and costs incurred in the sale transaction including legal fees;h.General Damages for the damage occasioned by the conversion, trespass and fraudulent conduct of the Defendants;i.Interest on (e), (f) and (g) above at commercial rates;j.Any other relief that this Honourable Court may deem fit; andk.Costs of the suit.

2. The Plaintiff averred that on 24th October, 2007, vide an Agreement of even date, he entered into an Agreement for the sale of land defined as Mavoko Town Block 3/2194 measuring approximately 16 Hectares (hereinafter the “Suit Property”), which agreement was duly executed by all the registered proprietors thereof; namely Mr. Peter Muasya, Mr. Justus Musau Wambua and Ms Mutio Wambua, at a consideration of Kenya Shillings Two Million Five Hundred Thousand Only (Kshs. 2,500,000/=).

3. Further, that it was agreed as a term of the Agreement that the Purchaser would pay the sum of Kshs. 1,300,000/= as deposit which sum was duly acknowledged under the subject agreement. That the balance of Kshs. 1,200,000/= was agreed to be paid up by 31st of January, 2008 and extended to 26th May, 2008, which sum was duly paid and acknowledged and has never been contested by the proprietors.

4. According to the Plaintiff, upon purchase, he immediately took possession of the suit property and developed it by fencing it, putting up a timber hay shed, a three roomed iron sheet structure and a goat/sheep barn. That he also dug two wells in two different locations of the suit property and placed a truck container thereon; which facts the registered proprietors were fully aware.

5. He also stated that the registration was not completed when a dispute arose between the 1st & 2nd Defendants and that the 2nd Defendant lodged a caution over the suit property claiming ownership. That further an issue arose on the sharing of the purchase price between the vendors, a matter that did not concern the Plaintiff as the 1st Defendant has never contested the proprietorship of his step brother and step mother.

6. The Plaintiff stated that in view of the above, he continues to suffer as a result of being denied usage of his lawful property and the Defendants’ actions. He stated that the defendants had breached their contractual obligations, engaged in conversion and fraudulently purported to sell the suit property to another person and were thus trespassing on the suit property.

7. The 1st Defendant filed a statement of defence dated 5th November, 2015. He denied the Plaintiff’s claim and stated that the Plaintiff’s entry on the suit property amounted to trespass as it was done without the authority and knowledge of the 1st Defendant.

8. He further denied the agreement of 24th October 2007 and stated that the suit property is co-owned by himself, his step brother and step mother and that the same is family land and subject to subdivision into three portions. It was his assertion that the 1st Defendant was misrepresented for believing that his step mother and step brother were selling their portions only, only to realize that the entire land was sold. He denied receiving any money in respect of the said sale. He maintained that if there was sale of the suit property, then the same was null and void for want of consent of the Land Control Board.

9. The 2nd Defendant filed a statement of defence and Counter claim dated 8th March 2016. He stated that he was a stranger to the allegations in the Plaint and maintained that he was the rightful owner of the suit property which according to him was formerly plot No. 325, having purchased the same in 1995 from Justus Musau Wambua, Mutio Wambua Ndolo and Wanza Wambua Ndolo, who were allegedly the administrators of the estate of the late Wambua Ndolo at Kshs. 1,000,000/=. That upon purchase of the suit property, he took possession and lodged a caution on the title so as to protect his interest. He further stated that he lodged a complaint to the police against the 1st Defendant and his brothers for fraudulently selling his land to another person, leading to a criminal case pending at Kangundo law courts. His position being that the Plaintiff was aware that the suit property had already been sold when he purported to purchase the same from the 1st Defendant, which transaction was fraudulent.

10. The 2nd Defendant counterclaimed for the following orders;a.That the second Defendant is the rightful owner of land parcel No. Mavoko Town Block 3/2194 formerly Plot No. 325. b.The registered proprietors that is the administrators of the estate of the late Wambua Ndolo do transfer land parcel No. Mavoko Town Block 3/2194 formerly Plot No. 325 to the 2nd Defendant.c.Any other relief that this Honourable court may deem fit andd.Costs of this suit

11. The Plaintiff filed reply to the 2nd Defendant’s defence and defence to the 2nd Defendant’s counterclaim dated 17th March 2016. He denied the averments in the 2nd Defendant’s defence and maintained that he was the lawful owner of the suit property and was a stranger to the 2nd defendant’s purported purchase. He stated that he undertook due diligence before and after purchase and the searches from the 3rd Defendant demonstrated the joint proprietorship of the suit property by Peter Muasya, Justus Musau Wambua and Mutio Wambua. He stated that he was granted vacant possession and the original title deed upon purchase.

12. No defence was filed by the 3rd Defendant despite service.

Plaintiff’s Case 13. PW1, Dr. George W. Josiah Njoroge, relied on his witness statement filed in court on 12th August, 2015 and adopted it as his evidence in chief. He testified that he knows the Defendants, that the 1st Defendant was one of the registered proprietors of the suit property, and was one of the people who signed his sale agreement and that he paid him. He stated that on 24th October 2007, he entered into a sale of land agreement with Mr. Peter Muasya, Mr. Justus Musau Wambua and Ms Mutio Wambua in respect of the suit property at a consideration of Kshs. 2, 500, 000/= which was paid in instalments and paid in full. Further that the agreement was done before an advocate one Mr. Andrew Makundi and in the presence of several witnesses.

14. It was his testimony that upon execution of the agreement, the vendors handed to him the original title deed, whereof he took possession awaiting transfer of the same to him. He stated that he cleared the bushes on the land, fenced it, put up a steel-framed iron sheet gate, a timber hay shed, three roomed iron sheet structure, goat/sheep barn, dug two 90 feet wells, and placed a truck -container on the property. That all this was done with the knowledge of the registered proprietors who did not raise any objections.

15. The witness further stated that he needed to take up doctoral studies and therefore sought the help of Andrew Makundi advocate to continue with the completion of the transaction. That he did obtain searches in respect of the suit property. He further stated that on 5th September 2008 he was summoned by the chief Lukenya Location to address a complaint raised in respect of the suit property, and that as the dispute was about sharing the purchase price between the registered proprietors, the vendors were advised to resolve the matter within their family structures as the Plaintiff was not part of the dispute having paid all the purchase price.

16. He also informed the court that vide KBC Police Station summons dated 17th July 2015, he learnt that the 2nd defendant had reported at KBC Police Station that someone had fenced his property. This was notwithstanding the fact that the Plaintiff had developed the property since 2007 and the 2nd Defendant had lodged a caution on the property in 2012. He also stated that the 2nd Defendant had entered his property without authority, caused an unauthorized survey thereof thereby interfering with the beacons and boundaries of the property. That he had been prevented from peaceful and quiet possession of the suit property which he has heavily invested in by putting up a perimeter wall and other structures.

17. The witness produced Certificate of official search dated 23rd October 2007 as P-Exhibit 1, Certificate of official search dated 17th July 2015 as P-Exhibit 2, Title deed of Mavoko Town Block 3/2194 as P-Exhibit3 Certificate of official search dated 12th May 2009 as P-Exhibit 4, and letter of allotment as P-Exhibit 6.

18. On Cross-examination, PW1 stated that he had never appeared before the Land Control Board as he was abroad and that he only sued the 1st Defendant as the other persons who sold him the land had no dispute with him and were willing to appear before the board. He stated that all the three families were to share the purchase price and the agreement was signed before his advocate. He stated that all the parties received the money in cash as per the families’ request and acknowledged the same. That they were to share amongst themselves but he did not know how much money was received by the 1st Defendant. He stated he was not aware of the succession case in respect of Peter Wambua. He stated that he was not aware of the 2nd defendant’s purchase of the land and had been in occupation since 2007. The witness further stated that he went abroad in August 2008. Further that he found beacons on the land, which had been placed on the land by Lukenya Company at the time of sharing the land. He stated that he only met the 2nd Defendant when he was summoned to KBC Police Station where he had complained that he had fenced his land.

19. On Re-examination, he stated that Peter Muasya and Mutio Wambua were not disputing his sale agreement and were his witnesses in this matter. Further that he paid the three proprietors the purchase price which they were to share with the rest of the family members and acknowledged payment of the full purchase price.

20. PW2, Simon Mucemi Ngotho, a retired journalist adopted his witness statement dated 12th August, 2015 as his evidence in chief. He testified that in 2007, the Plaintiff asked him to be a witness in an agreement he intended to enter into with the registered proprietors of the suit property. That he witnessed the agreement dated 27th October 2007, when the Plaintiff paid part of the purchase price and that on 26th May 2008 he witnessed the payment of the balance when that fact was endorsed on the agreement of 27th October 2008.

21. On cross-examination, he stated that he witnessed the Plaintiff sign the agreement in the presence of the vendors and the advocate and that in both instances, payment was done in cash and the money received by the vendors. He further stated that he is the one who took the Plaintiff to the broker. He stated that he was not present during the second transaction and that he was old, it had taken many years since the agreement was done and that he may have forgotten the dates; but upon being shown the handwritten note of 26th May 2008, on the agreement, he confirmed his signature on the agreement when the second payment was done.

22. On re-examination, he confirmed that the two signatures on the agreement were his and stated that he also signed the agreement on 26th May 2008 before an advocate.

23. PW3, Peter Mulwa, adopted his witness statement dated 21st March, 2019 as his evidence in chief. He testified that he was the son of Mutio Wambua one of the joint proprietors of the suit property. He stated that in 2007, the family agreed to sell the suit property and when the Plaintiff approached the family and sought to purchase the suit property, the family agreed to sell it to him. He confirmed that the agreement produced by the Plaintiff was executed in his presence and other witnesses. He confirmed that the Plaintiff paid their family Kshs. 2,500,000/= in two instalments the final one being on 26th May 2018. Further that upon payment the plaintiff was given the original title deed and took possession of the suit property.

24. It was his evidence that after the family had been paid by the Plaintiff, they had difficulty sharing the money and therefore they had a dispute resolution at the Chief’s office where the plaintiff was present. He stated that he learnt later that Justus Wambua had entered into another agreement with another person. According to him the suit property belonged to the Plaintiff.

25. On Cross-examination, he stated that his mother Mutio Wambua was one of the proprietors of the suit property and that she was still alive. He stated that he was an adult in 1995, having been born in 1963 and that he was not aware of the sale of the land to the 2nd Defendant. Further, he stated that he was present when the Plaintiff bought the land and he learnt of the subsequent sale upon his mother’s arrest. That the family agreed to sell and that they were paid the money at Equity Bank. He stated that his mother never sold the land to the second defendant and further that the family gave the Plaintiff the original Title Deed and did not transfer the land because the Plaintiff left the country. On re-examination he stated that his mother could neither walk nor talk and that he came to know of the 2nd Defendant at the Police station.

26. PW4, Andrew Makundi, an Advocate of the High Court of Kenya, stated that he was admitted to the bar in December 1988 and that he practised law in Machakos. He adopted his witness statement dated 12th August 2015 as his evidence in chief. He testified that in 2007 he met the Plaintiff who informed him that he intended to purchase the suit property and asked him to prepare a sale agreement. That he advised him to obtain an official search to confirm ownership, which the Plaintiff did. That when the parties came to his chambers he sought to know the history of the land and they told him it was their father’s share in Lukenya Society. That they gave him a copy of the letter of allotment which translated to a title deed in respect of the suit property. That they showed him the original letter of allotment. He stated that he prepared the agreement dated 24th October 2007 and oversaw its execution. That the agreement was signed by the three registered proprietors of the suit property, the Plaintiff and five witnesses. He confirmed witnessing the payment of Kshs. 1,300,000/= on 24th October 2007 and Kshs 1,200,000/= on 26th May 2008. That there was a handwritten acknowledgment made on the payment of the last instalment where all the parties and the witnesses signed.

27. The witness further stated that as the Plaintiff had embarked on his doctoral studies, he asked him to handle the transfer of the property to his name. That he began the process but the same was not complete as he learnt that the 2nd Defendant had cautioned the title of the suit property. His position was that the Plaintiff purchased the suit property lawfully and procedurally and should have his claim allowed. He produced the agreement and the letter of allotment as exhibits.

28. On cross-examination, he stated that the parties acknowledged payment of the purchase price before him upon receipt and that the balance paid on 26th May 2008 was not paid in his office but the parties came before him and made the acknowledgment. He confirmed that the 1st Defendant signed the agreement. He stated that he could not recall the faces of the persons who appeared before him but that all the parties signed the agreement on both occasions. He stated that he did not know how the vendors shared the money. He stated that he could not complete the transfer due to a third party and that the vendors acknowledged payment of the purchase price.

29. PW5, Ndolo Wambua, adopted the contents of his witness statement dated 21st March, 2019 as his evidence in chief. He testified that he was the brother of Peter Muasya Wambua who was one of the joint proprietors of the suit property. He stated that the suit property was sold by the three joint proprietors to the Plaintiff and the entire consideration paid. That the Plaintiff was given the title deed and that as a family they did not agree on how to share the purchase price. Further that he later learnt that the 1st Defendant had sold the suit property to another person.

30. On Cross-examination he stated that he was present when the agreement was prepared and that the money was paid to them at Equity Bank. He also confirmed that the vendors never went to the land control Board and stated that the land has never been sold to the 2nd Defendant by his mother. That marked the close of the Plaintiff’s case.

1st Defendant’s Case 31. DW1, Justus Musau Wambua the 1st Defendant, adopted his witness statement filed on 9th November, 2015 as his evidence in chief. He testified that the suit land was family land which was inherited from his late father. It was his testimony that his father had three wives and two of them were deceased. He stated that the suit property was registered in his name jointly with his step mother and step brother.

32. According to the witness, the suit property was to be divided into three portions. He stated that on 24th October 2007, Mutio Wambua and Peter Muasya Wambua his co-owners of the suit property called him and told him that they intended to sell their portions of land. That they asked him to allow them to sell their portions and that he signed the agreement to allow them sell their portions as the purchaser could not purchase without his signature on the agreement. He stated that he signed in good faith to allow the two sell their respective portions only for him to learn later that they entered into an agreement for the entire land.

33. He insisted that he has never met the purchaser and that he never received money being consideration in respect of the sale of the suit property and that he was not aware if his two co-owners of the suit property were paid. He disputed the second signature on the agreement endorsed on 26th May 2008. His position was that the land was sold way back in 1995 to somebody else and that it was not available for sale. That the title deed was handed over to the purchaser by his step mother and step brother. He stated that they never agreed to sell the land to the Plaintiff but if he bought from the two other homes he had no issue because the land was shared and each household got its share but the title remained under three names. He stated that in 1995 they agreed as a family of three homes with one Moses Ndungu Mungai who is the 2nd Defendant. His further testimony was that he was not present when the agreement was done and particularly their home did not agree with the Plaintiff and it is not true the Plaintiff paid them Kshs. 2,500,000/=. He stated that he never participated in the Land Control Board process and was sued out of malice; He stated that he had no objection to the two houses transferring the land to the Plaintiff but as regards their portion, they were not willing to transfer it to the Plaintiff.

34. He produced the documents attached on his list of documents dated 5th November 2015. He produced a copy of the title deed for the suit property as D-Exhibit 1 and a sale agreement dated 7th March 1995 as D-Exhibit2.

35. On Cross-examination, he stated that it is true that they sold the land to the 2nd Defendant who paid a total of Kshs.550,000/=and not Kshs. 800,000/= by cheque as alleged. He stated that the cost of the plot was Kshs. 1,000,000/= but the 2nd Defendant did not finish paying the consideration and therefore the transaction was not completed. He denied signing the agreement produced by the Plaintiff or ever knowing Mr. Andrew Makundi Advocate or attending the said advocate’s office. He stated that when he signed the agreement with the second defendant, they had not filed succession for their late father. He stated that the allotment letter was in the name of their father who was the shareholder. He denied being aware that his father had two plots in Lukenya being Nos. 323 and 325. He conceded that he had no evidence to show that plot No. 325 was the suit property. He stated that his portion of the land should not be sold. That marked the close of the 1st Defendant’s case.

2ndDefendant’s Case 36. DW2, Moses Ndungu Mungai, stated that he normally buys and sells land. He adopted his statement dated 8th March, 2016 as his evidence in chief. His testimony was that in 1995 he entered into a sale of land agreement with Justus Musau Wambua, Mutio Wambua Ndolo and Wanza Wambua Ndolo who were the administrators of the estate of the late Wambua Ndolo in respect of plot No. 325 measuring 40 acres at a consideration of Kshs. One Million. That he paid Kshs. 800,000/= by cheque in the names of Justus Musau Wambua who shared the money with his brothers. Further that he paid Kshs. 200,000/= in cash. According to him plot No. 325 is the same as Plot No. Mavoko Town Block 3/2194.

37. DW2 further testified that upon purchase he engaged a surveyor who placed beacons on the suit property. He stated that in 2012 he noticed that a title had been issued in the names of the vendors being LR No. Mavoko Town Block 3/2194 which prompted him to inquire from Lukenya Ranching Society whether plot No. 325 was the same as Mavoko Town Block 3/2194. Further that he cautioned the land to protect his interest.

38. He further testified that he lodged a complaint against the vendors for selling his land to another person. According to DW-2, the Plaintiff and the 1st Defendant colluded to trespass on his land. He stated that he did not run away but only changed office to another place and still does his business. That the vendors have never demanded for the balance.

39. He stated that he sued the vendors and the court found them guilty of selling one piece of land to two people. He stated that the 1st Defendant alleged that he was still owing the balance of the consideration. That he later learnt that there was someone on the land and that beacons had been removed. He stated that he bought the land in 1995 while the Plaintiff bought the same land in 2007 and upon realizing it, he reported at the police station and filed a criminal case leading to the arrest of the vendors. That the court found them guilty of selling land to two different people having verified the signatures and confirming they signed the two agreements. He stated that he had a counter-claim and prayed that it be allowed.

40. He produced documents attached to his list of documents dated 8th March 2016. He produced the agreement dated 7th March 1995 as D2-Exhibit 1, Bundle of cheques in favour of Justus Musau Wambua as D2-Exhibit 2, Application for official search and certificate of official search as D2-Exhibit 3, copy of a letter from Njiru Advocates as D2-Exhibit 4 and Judgment in Kangundo Criminal case No. 579 of 2015 as D2-Exhibit 6.

41. On cross examination, he stated that he only placed beacons on the land and did not do anything else on the land. He stated further that the allotment letter was in the name of Wambua Ndolo and also that the same was in three names, but he did not have the allotment letter. He stated that his agreement was dated 7th March 1995 but that it was registered and franked on 24th August 2016. He stated that he found a house on the land and that is why he went to report to the chief. He stated that he was not aware if the judgment in Kangundo was set aside in the High Court. He stated that the cheques were paid to the 1st Defendant and there was no agreement that he pays the 1st defendant on behalf of the family. He stated that although his advocate; Njiru advocate wrote to Lukenya Ranching Society, he did not get a response. He stated that he did not know the person who was in possession of the suit property and that he was aware that transfer of land of a deceased cannot happen without grant of letters of administration and in his case, he did not need a grant. He stated that he did not have a surveyor’s beacon certificate or mutations. On re-examination he stated that he could not get the evidence to show cash payments he made. That marked the close of the 2nd Defendant’s case.

42. Parties were directed to file written submissions. On record are the Plaintiff’s submissions dated 12th July 2022 and supplementary submissions dated 10th November 2022; the 1st Defendant’s submissions dated 5th September 2022 and the 2nd Defendant’s submissions dated 26th September 2022.

Plaintiff’s Submissions 43. Counsel for the Plaintiff disputed the capacity of the the 1st Defendant and the co-vendors to sell the land in 1995. He argued that the land herein having been registered when the Registered Land Act, Cap 300 was operative sections 101 (1) and 102 (1) apply in that in every situation where the proprietors are more than one, the register will reflect whether their registration is joint or in common; He was of the view that the current law as contained in the Land Registration Act No. 3 of 2012 frowns deeply on joint proprietorship, effectively banning them unless the proprietors are spouses or unless by court order.

44. Counsel submitted that the 1st Defendant produced no evidence before this court to show that he had the authority to act on behalf of the family or Letters of Administration for the estate of the deceased; He stated that the Defendants at the time of the hearing admitted that there were no letters of administration in 1995 and the title to Mavoko Town Block 3/2194 was only obtained on 16th August, 2005; Counsel took the position that the 1st and 2nd Defendants having confirmed that the sale took place before confirmation of grant it follows that the sale of Plot No. 325 in 1995 was illegal and cannot confer good title to the 2nd Defendant.

45. It was submitted for the Plaintiff that the 2nd Defendant made payment to the 1st Defendant but failed to produce before court any authority authorizing him to receive the purchase price on behalf of the other parties, the 1st Defendant therefore lacked authority to receive monies on behalf of the other two co-owners.

46. On whether the Sale Agreement dated 7th March, 1995 was valid and enforceable, counsel submitted that the 2nd Defendant produced a sale agreement dated 7th March, 1995 however, he did not produce the certificate of a thumb print or have the advocate who witnessed execution of the agreement as a witness. Therefore, that this scenario raise doubt on whether the alleged vendors signed the Agreement and on the date of signing. In that regard, reliance was placed on the decision in Peter Kamau vs Mary Mwihaki Kamau [2017] eKLR.

47. Counsel submitted that the 2nd Defendant claimed that he paid full purchase price for the property subject of the agreement however, he could not prove payment of the purchase price of Kshs.1,000,000/=; He stated that the 2nd Defendant neither has the Title nor possession of the suit property and has admitted before this court that the Plaintiff has possession of the same, and referred to the case of William Muthee Muthami vs Bank of Baroda [2014] eKLR.

48. On whether Plot No. 325 is now Mavoko Town Block 3/2194, counsel stated that the 2nd Defendant produced a letter dated 5th September, 2012 which showed he was not certain whether Plot No. 325 was now Mavoko Town Block 3/2194; He also failed to produce evidence to prove that Plot No. 325 was Mavoko Town Block 3/2194 which the Plaintiff lays claim to. He relied on Section 107 of the Evidence Act and the Court of Appeal decision of Mbuthia Macharia v Annah Mutua & Another [2017] eKLR for the proposition that the Defendant failed in discharging the burden of proof that the property he allegedly purchased was the suit property.

49. Counsel submitted that there was no encumbrance on the suit property in 2007 when the Plaintiff purchased the same and the 2nd Defendant admitted that the caution was placed on 29th May, 2012 after the Plaintiff had entered into an Agreement for Sale on 24th October, 2007 and taken title and possession of the property. Counsel submitted further that the Plaintiff is a bonafide purchaser for value by the parameters set in the Ugandan case of Katende vs Haridar & Company Limited [2008] 2 E.A. 173.

50. Counsel submitted that the Defendants herein did not lead any evidence to show that the property is within the purview of the Land Control Act or is a controlled transaction within the meaning of section 6 of the Land Control Act and should be put to strict proof thereof.

51. Counsel observed that the 1st Defendant herein by virtue of receiving part of the purchase price and the balance having been shared among the other family members, and having put the Plaintiff in possession creating a constructive trust and the provisions of the Land Control Act should be interpreted in light of the Constitution of Kenya to ensure that the purchaser receives substantive justice.

1st Defendant’s Submissions 52. Counsel for the 1st Defendant submitted that the sale agreement dated 24th October, 2007 is null and void for want of consent of the Land Control Board as the consent of the Land Control Board was never applied for or obtained within Six Months from the date of the alleged sale of the land as required by law. Counsel relied on the case of Josephine Moraa Nyamweya & Charles Gekonge Otara vs Haron Kingóina Bogita [2017] eKLR.

53. Counsel submitted that where a transaction is null and void, the said transaction cannot form the basis of claim for General Damages and the only available remedy in law is refund of the purchase price by the vendor to the purchaser which is recoverable as a debt through a civil suit filed by the Purchaser against the vendor as per Section 7 of the Land Control Act as stated in Phillip Kibet Kemei & Another vs Josiah Kipkoskei Kirui [2018] eKLR.

54. It was also contended on behalf of the 1st Defendant that the Plaintiff only sued the 1st Defendant and left out the 2 other proprietors therefore prayer number (g) sought in the Plaint cannot be issued by the court as against the 1st Defendant as he cannot be directed to refund the purchase price alone. Counsel submitted that the Plaintiff had failed to prove his claim on a balance of probabilities as required by law and the Plaint should be dismissed with costs.

2nd Defendant’s Submissions 55. Counsel for the 2nd Defendant submitted that the Plaintiff was aware that the suit property was sold to the 2nd Defendant but did not exercise due diligence since they were not able to establish who put the beacons on the suit property during cross examination. Counsel argued that the second sale was done twelve years later and that this could have been motivated by the fact that the land had appreciated. Counsel submitted that the Plaintiff’s suit be dismissed with costs.

Analysis and Determination 56. I have carefully considered the pleadings, the evidence on record and the submissions filed. In my considered view, the issues that arise for determination are;a.Who between the Plaintiff and the 2nd Defendant is the lawful owner of the suit property.b.Whether the Plaintiff is entitled to the orders sought in the plaint.c.Whether the 2nd Defendant is entitled to the orders sought in the counterclaim.

57. The Plaintiff stated that he purchased LR. No. Mavoko Town Block 3/2194 on 24th October 2007 vide a sale agreement dated even date. The agreement is alleged to be between the Plaintiff and Peter Muasya Wambua, Justus Musau Wambua and Mutio Wambua. It is not disputed that at the time of the said agreement, the three vendors were the registered proprietors of the suit property as the certificate of official search produced by the Plaintiff and dated 23rd October 2007 confirms that the vendors were registered as proprietors thereof on 11th August 2005.

58. The Plaintiff’s evidence was that he obtained a search before transacting with the registered proprietors. Indeed, the search dated 23rd October 2007 which was done a day before the agreement of 24th October 2007, indicates that the title had no inhibitions, cautions, restrictions or encumbrances. It is therefore clear that the vendors had capacity to sell the suit property at the time of transacting with the Plaintiff and there was nothing against their title to stop such transaction.

59. The Plaintiff, his witnesses and the 1st Defendant confirmed that the Plaintiff was in possession of the original title deed. It was also not in contention that the Plaintiff was in possession of the land.

60. The 1st Defendant’s core challenge on the Plaintiff’s claim is that he signed the agreement knowing that he was signing the same to allow his co-owners to sell their portion only to realize that he had signed for the sale of the entire land. According to him, he did not sell his portion, he was only signing the agreement of the Plaintiff to enable his step brother and step mother sell their portions of the suit land. He also faulted the transaction done with the Plaintiff on the ground that the same was not blessed with a consent from the Land Control Board.

61. While the 1st Defendant disputed signing the sale agreement, in my view, he was not a credible witness as he stated in his evidence in chief that he signed the agreement while believing that he was not selling his portion, but on cross-examination he denied signing the agreement between the three registered proprietors and the Plaintiff. Mr. Andrew Makundi, the Advocate who drew the said agreement confirmed that the agreement was on 24th October 2007 signed by the three proprietors upon acknowledgment of payment and that the vendors acknowledged payment of the balance on 26th May 2008.

62. The Plaintiff’s occupation of the entire suit property did not result in objection or suit from the 1st Defendant if at all he did not sell his share as alleged as he never sued the Plaintiff for taking possession of his share of the suit property. The other two proprietors of the suit property namely Mutio Wambua and Peter Muasya Wambua on 14th August 2015 filed witness statements in favour of the Plaintiff herein confirming to have sold the suit property to the Plaintiff at Kshs. 2,500,000/- which was paid in full to all the three registered proprietors, including the 1st Defendant. The two however died before the suit was heard. Peter Mulwa PW3 and Ndolo Wambua PW5 who were son of Mutio Wambua and brother of Peter Muasya Wambua respectively confirmed the sale.

63. From my analysis of the evidence, it is my view therefore that the 1st Defendant was not truthful in denying selling the suit property to the Plaintiff jointly with his step brother and step mother. In the premises, I am satisfied that the three registered proprietors signed the sale agreement dated 24th October 2007, had intention to sell the entire suit property and which they sold to the Plaintiff and were duly paid the entire consideration thereof. Therefore, I find that the agreement dated 24th October 2007 was valid and enforceable.

64. On the question of want of consent of the Land Control Board, no evidence was presented by the Plaintiff to demonstrate that the transaction on the suit property was subject to the consent of the Land Control Board. In any event, the vendors had put the Plaintiff in possession of the suit property since 2007 and therefore equity which is one of the national values and principles of governance binding this court in the interpretation of the Constitution any statutes; would require that where there is payment of purchase price in full and possession on the part of the purchaser, lack of Land Control Board consent cannot be a bar for enforcing the purchaser’s proprietary rights. In the case of Willy Kimutai Kitilit vs. Michael Kibet [2018] eKLR, the court held as follows;“(24)There is another stronger reason for applying the doctrines of constructive trust and proprietary estoppel to the Land Control Act. By Article 10(2) (b) of the Constitution of Kenya, equity is one of the national values (emphasis supplied) which binds the courts in interpreting any law (Article 10(1) (b)). Further, by Article 159(2) (e), the courts in exercising judicial authority are required to protect and promote the purpose and principles of the Constitution. Moreover, as stated before, by virtue of clause 7 of the Transitional and Consequential Provisions in the Sixth Schedule to the Constitution, the Land Control Act should be construed with the alterations, adaptations, and exceptions necessary to bring it into conformity with the Constitution.(25)The word equity broadly means a branch of law denoting fundamental principles of justice. It has various meanings according to the context but three definitions from Black’s Law Dictionary, Ninth Edition will suffice for our purpose:“1. ---2. The body of principles constituting what is fair and right.3. The recourse to principles of justice to correct or supplement the law as applied to particular circumstances ---4. The system of law or body of principles originating in the English Court of Chancery and superseding the common and statute law (together called “Law” in the narrower sense) when the two conflict”Thus, since the current Constitution has by virtue of Article 10(2) (b) elevated equity as a principle of justice to a constitutional principle and requires the courts in exercising judicial authority to protect and promote that principle, amongst others, it follows that the equitable doctrines of constructive trust and proprietary estoppel are applicable to and supersede the Land Control Act where a transaction relating to an interest in land is void and enforceable for lack of consent of the Land Control Board.(26)For the reasons in paragraphs 20, 21, 22, 23, 24 and 25 above, we are in agreement with the Macharia Mwangi Maina decision that the equitable doctrines of constructive trust and proprietary estoppel are applicable and enforceable to land subject to the Land Control Act, though this is subject to the circumstances of the particular case. Upon the application of the equitable doctrines, the court in its discretion may award damages and where damages are an inadequate remedy grant the equitable remedy of specific performance.(27)Turning to the present appeal, the learned Judge made the findings of fact in terms of paragraph 3 above and also made a finding of law that the appellant created a constructive trust in favour of the respondent. It was not in dispute that the appellant sold a 2 acre portion of his land comprising of 2. 440 Hectares to the respondent in 2008. He gave possession of the land to the respondent who fenced the land and developed a portion of half an acre by planting trees. The respondent paid the last instalment of the purchase price in 2010. However, the appellant did not transfer the 2 acres to the respondent and instead caused the whole land to be registered in his name on 4th December, 2012, and filed a suit for the eviction of the respondent thereafter. By the time the appellant caused himself to be registered as the proprietor of the whole piece of land he was a constructive trustee for the respondent and it would be unjust and inequitable to allow the appellant to retain the 2 acres that he had sold to the respondent in the circumstances of the case.As we have held in essence that, the lack of the consent of Land Control Board does not preclude the court from giving effect to equitable principles, in particular the doctrine of constructive trust, we find that the trial court reached the correct decision and therefore the appeal has no merit.”In the premises therefore not withstanding lack of Land Control Board consent, the agreement dated 24th October 2007 is valid and enforceable.

65. On the other hand, the 2nd Defendant produced the agreement dated 7th March 1995. The same is in relation to Plot No. 325. According to the agreement, the vendors are Justus Musau Wambua, Mutio Wambua Ndolo and Wanza Wambua Ndolo. The agreement also stated that the vendors were personal representatives of the estate of the late Wambua Ndolo. The consideration was Kshs. 1,000,000/-.

66. Although the agreement states that the vendors were the personal representatives of the late Wambua Ndolo, as pointed out by the Plaintiff, there was no evidence to prove that they were indeed the personal representatives of the estate. The Plaintiff argued that immovable property of a deceased person cannot be sold before confirmation of the grant. Section 82 (b) (ii) of the Law of Succession Act, provides that no immovable property of a deceased person shall be sold before confirmation of a grant. As there is no evidence of a grant and or a confirmed grant in favour of the three vendors, in the agreement dated 7th March 1995, it is my finding that the three vendors did not have capacity to sell the said parcel.

67. The Plaintiff also contended that there was no evidence that the parcel of land referred to in the agreement dated 7th March 1995 being No. 325 is one and the same as Plot No. Mavoko Town Block 3/2194. This was premised on the fact that the 2nd Defendant’s advocate one Njiru Bonface wrote a letter dated 5th September 2012 to the Chairman Lukenya Ranching & Farming Cooperative Society Ltd, asking him to confirm from their records whether Plot No. 325 was the same as Mavoko Town Block 3/2194. There was no response from the Chairman Lukenya Ranching & Farming Cooperative Society confirming that indeed Plot No. 325 was the same as L.R. No. Mavoko Town Block 3/2194, produced by the 1st Defendant. In the course of hearing, it appeared the late Wambua Ndolo had more than one Plot as there was mention of Plot 325 and 323. Although the 1st Defendant alleges to have seen an allotment letter at the time of the agreement, no such allotment for Plot 325 was produced.

68. I have considered the allotment letter produced by the Plaintiff which the vendors of the suit property presented as the basis of their title. That allotment letter was in the name of Wambua Ndolo and was issued on 21st February 1991. The same is in respect of Plot Number 323. It is therefore clear and I find and hold that the 1st Defendant did not provide evidence to show that the plot he purchased was LR No. Mavoko Town Block 3/2194. On whether the 1st Defendant bought land from three vendors, his agreement although signed by three vendors, was not done in the presence of any witness contrary to Section 3(3) of the Law of Contract Act.

69. Besides, all the four cheques for the cumulative sum of Kshs. 800,000/- were in favour of the 1st Defendant. There was no cheque done in favour of the other two vendors. And there was nothing to show that the said amount was paid to the other vendors. For the above reasons, it is my finding that the agreement dated 3rd March 1995 does not constitute a valid and enforceable agreement. I also find that there was no evidence that the land allegedly purchased by the 2nd Defendant was LR. No. Mavoko Town Block 3/2194. Therefore, I find that the 2nd Defendant has no claim over the suit property.

70. As the Plaintiff proved purchase of the suit property from the registered proprietors thereof and paid the entire consideration, I find and hold that his contract was valid and enforceable, and therefore the Plaintiff is the lawful owner of the suit property. The fact that the Plaintiff has been in occupation of the suit property from the time of purchase is not in dispute, the vendors sold the suit property to the Plaintiff and put him in possession. The other two registered proprietors namely Peter Muasya and Mutio Wambua were ready and willing to have the suit property transferred to the Plaintiff and had been lined up as his witnesses in this suit, but died before they were heard. Therefore, it is only the 1st Defendant who frustrated the transaction. Therefore, I am satisfied that the Plaintiff has proved that he is the lawful owner of the suit property and the prayer to be declared as such is allowed.

71. The Plaintiff sought for an order of specific performance as against the 1st Defendant and the other vendors. It is on record that the other two co-owners of the suit property have been willing and ready to perform their part of the bargain save that they passed on before testifying in this matter in favour of the Plaintiff. The 1st Defendant is the one who has been unwilling to transfer the suit property to the Plaintiff. An order for specific performance is discretionary and an equitable remedy. Therefore, in deciding whether or not to grant that order, the court should look at the merits of the case based on a case to case basis.

72. In the case of Reliable Electrical Engineers Ltd vs. Mantrac Kenya Limited [2006] eKLR, the court stated as follows;Specific performance like any other equitable remedy is discretionary and the court will only grant it on well laid principles.The jurisdiction of specific performance is based on the existence of a valid enforceable contract. It will not be ordered if the contract suffers from some defect such as failure to comply with the formal requirements or mistake or illegality, which makes the contract invalid or unenforceable. Even when a contract is valid and enforceable, specific performance will however not be ordered where there is an adequate alternative remedy….

73. Having considered the evidence on record and having held that there is a valid contract between the Plaintiff and the registered proprietors of the suit property, and noting that the Plaintiff was put in possession of the suit property since 2007, it is only just and fair that the transaction is completed and specific performance done as it is only the 1st Defendant standing in the way of the Plaintiff obtaining title to the suit property. It is therefore my finding that the Plaintiff is entitled to specific performance as against the 1st Defendant.

74. On the issue of the caution, I note that the 2nd Defendant cautioned the title on 29th May 2012, and therefore any disposition cannot be registered in relation to the said title. Section 71 of the Land Registration Act provides instances when a person can lodge a caution on another’s parcel as follows;A person whoa.Claims the right, whether contractual or otherwise, to obtain an interest in any land, lease or charge, capable of creation by an instrument registrable under this Act;b.is entitled to a licence; orc.has made an application for a bankruptcy order against the proprietor of any registered land, lease or charge.(2)A caution may either –a.forbid the registration of disposition and the making of entries; orb.forbid the registration of disposition and the making of entries to the extent expressed in the caution .

75. It therefore follows that for a person to sustain a caution on another’s land, the cautioner must demonstrate that they have a right to obtain an interest in the land capable of creation by any registrable instrument.

76. Registration of land creates indefeasible and absolute ownership rights in favour of the owner of the land and therefore for a person to restrain a registered proprietor from disposing of their title, they must show that they have an interest in the land created by a registrable instrument.

77. In the case of Maria Nganga Gwako vs. Charles Mwanzi Nganga [2014] eKLR, the court held as follows;When a caution is objected to by a proprietor of land affected thereby the onus is upon the cautioner to justify the lodging of the said caution and the need for it to remain in place……In the absence of any reasonable cause shown by the Respondent as to why the said caution should not be removed, the application for removal of the same must succeed.Therefore, having found that the 2nd Defendant has no claim over LR No. Mavoko Town Block 3/2194, it is my finding that the caution lodged on the title of the suit property, is without basis, unjustified and ought to be removed.

78. Indeed, as the Plaintiff has proved lawful ownership of the suit property, that right of property ownership is protected under the law.

79. On whether a permanent injunction should be issued, I note that a permanent injunction can only issue to protect the rights of a party who has lawful right or claim over the suit land. In the case of Kenya Power & Lighting Co. Limited vs. Sherriff Molana Habib [2018] eKLR, the court held that;A permanent injunction fully determines the rights of the party before the court and is this a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction permanent injunction perpetually restrains the commission of an act by the Defendant in order for the rights of the Plaintiff to be protected.

80. It was the Plaintiff’s testimony that the 2nd Defendant entered on the suit property without his permission and caused an unauthorized survey thereon, thereby interfering with the beacons and boundaries on the property. As earlier found, the Plaintiff is the rightful owner of the suit property and therefore entry thereon can only be lawful with his consent. The 2nd Defendant did not dispute interfering with the suit property. His position was that he is the owner of the suit property on account of having purchased it from the administrators of the estate of the owner thereof.

81. Article 40 for the Constitution protects the right of acquisition and ownership of property and from arbitrary, deprivation of a person’s property by another.

82. As the Plaintiff has demonstrated lawful acquisition and ownership of the suit property, that ownership ought to be protected by preventing others from interfering with his enjoyment of the property. Therefore, the prayer for permanent injunction is merited and is allowed.

83. The Plaintiff also sought for damages for trespass. Trespass has been defined in the Black’s Law Dictionary, 11th Edition, as the unlawful entry into another’s land. The unlawful or unjustified intrusion into another’s land may be punished by an award of damages. In the case of Philip Aluchio vs. Crispinus Ngayo [2014] eKLR, the court held as follows;The Plaintiff is entitled to general damages for trespass. The issue which arises is as to what is the measure of such damage. It has been held that the measure of damages for trespass is the difference in value of the Plaintiff’s property immediately after the trespass or the costs of restoration whichever is less.

84. In the instant case, while the Plaintiff testified that the 2nd Defendant entered on his land and conducted an unlawful survey thereon, no evidence was led on the state of the property before and after the trespass. This court cannot pick on a random figure as damages because it is trite that damages ought not only be pleaded, they must also be proved. In the circumstances, it is my finding that the Plaintiff did not prove damages suffered due to the 2nd Defendant’s trespass.

85. On the question of punitive damages, a party seeking punitive damages ought to demonstrate that they are deserving of damages meant to serve penal and deterrent functions. In the case of Peter Ndegwa Kia t/a Pema Wines & Spirits vs. Attorney General & 2 Others (Civil Appeal 243 of 2017 [2021] KECA 328 (KLR) 17 December 2021) (Judgment) at paragraph 19, the Court of Appeal stated as follows;Punitive damages are awarded in addition to compensatory or nominal damages, and proof of a highly culpable state of mind is necessary to support an award of punitive damages. Punitive damages primarily serve penal and deterrent functions. In cases of gross constitutional violations as well as vindicatory functions.

86. Having considered the evidence on record, there is nothing to show the acts done by the 2nd Defendant were done with culpable state of mind requiring damages to serve penal functions. The 2nd Defendant’s entry on the suit property although unlawful was based on his belief that the suit property was the land he allegedly purchased. I therefore decline to grant any award under punitive damages.

87. As regards the prayer for cost of survey, that would be a claim for special damages as the cost of survey would be specific to what was incurred. Special damages ought to be specifically pleaded and proved. I find no pleadings on record in regard to that claim and certainly no evidence was adduced to prove the same and therefore the same is declined.

88. On the alternative prayer of the market value of the suit property, no valuation report was filed and no pleadings were filed on the market value of the suit property and therefore, the court cannot just grant any figure for the same. That alternative prayer is therefore declined.

89. In the end, the 2nd Defendant having failed to prove his counterclaim by failing to prove that he lawfully acquired the suit property, his counterclaim is dismissed with costs for being unmeritorious. As regards the Plaintiff’s claim, I am satisfied that the Plaintiff has proved his claim against the Defendants on the required standard and I make the following orders;a.A declaration be and is hereby made that the Plaintiff is the lawful owner of land Title No. Mavoko Town Block 3/2194. b.A permanent injunction be and is hereby issued restraining the Defendants either by themselves, their directors, officers, servants, agents, employees or workmen or otherwise howsoever from infringing in any way on Land Parcel Mavoko Town Block 3/2194. c.An order of specific performance is hereby issued against the 1st Defendant to transfer Land Parcel Mavoko Town Block 3/2194 to the Plaintiff and undertake all necessary action thereto including execution of the requisite forms where necessary. In default, the Deputy Registrar of this court to sign all relevant forms to effect transfer of the suit property to the Plaintiff.d.As the other two registered proprietors namely; Peter Muasya Wambua and Mutio Wambua were not only in support of the Plaintiff’s case that the agreement dated 24th October 2007 should be compelled and the suit land transferred to the Plaintiff, but were also witnesses for the Plaintiff herein, but have since passed on, I direct that the Deputy Registrar of this court shall sign all the necessary documents in their place to effect transfer of Land Title Mavoko Town Block 3/2194 to the Plaintiff.e.The Land Registrar Machakos is ordered to remove the caution on Title Number Mavoko Town Block 3/2194. f.The costs of the suit shall be borne by the 1st and 2nd Defendants.

90. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 1ST DAY OF MARCH, 2023 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the Presence of;Mr. Kariuki for PlaintiffMr. Omwega for 2nd DefendantNo appearance for 1st and 3rd Defendants