[2023] KEELC 16051 (KLR)

Njuguna v Guchu & 3 others (Environment & Land Case 358 of 2016) [2023] KEELC 16051 (KLR) (1 March 2023) (Judgment)

Neutral citation: [2023] KEELC 16051 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Case 358 of 2016

JM Mutungi, J

March 1, 2023

Between

Joseph Muchene Njuguna

Plaintiff

and

Gerald Ngige Guchu

1st Defendant

Naivasha Land Registrar

2nd Defendant

Lilian Muthoni

3rd Defendant

Catherine Wanjiku

4th Defendant

Judgment

1. The plaintiff has brought the instant suit as the Chairman and on behalf of Karie Waithaka Slums Self Help Group and vide the Third Amended plaint dated July 8, 2019 filed in court on October 17, 2019 claims against the defendant for orders:-a.A declaration that the area of land covered under Title Number Gilgil/Gilgil Block 1/13403 (Kikopey) is held in trust by the 1st Defendant in favour of the Plaintiff representing Karie Waithaka Slums Self Help Group.b.A declaration that the 1st Defendant breached the trust created between him and the Plaintiff as representative of Karie Waithaka Slums Self Help Group.c.An order requiring the 1st Defendant to transfer the area of land covered under Title Number Gilgil/Gilgil Block 1/13403 (Kikopey) in favour of the Plaintiff to hold in trust for Karie Waithaka Slums Self Help Group’s members failure to which the Deputy Registrar of the Court signs the documents required to transfer the property to the Plaintiff after the lapse of 14 days.d.A permanent injunction restraining the 2nd Defendant whether by itself or through its agents, servants and/or employees from in any way accepting and registering any of the 1st Defendant’s dealings, sales, transfers and dispositions of land from Title Number Gilgil/Gilgil Block 1/13403 (Kikopey) or its subdivisions particularly Plot Nos. 34020, 34021, 34022 and 34023. e.A declaration that all subdivisions, sales, transfers or any other dealings conducted by the 1st Defendant on Title Number Gilgil/Gilgil Block 1/13403 (Kikopey) particularly on subdivision plot Numbers 34020, 34021, 34022 and 34023 subdivided therefrom or any other resulting subdivisions are null and void for all intents and purposes.f.An order that the 2nd Defendant do bring up to the Court and cancel, revoke and set aside any/all entries registering subdivisions, transfers or all other dealings from Title Number Gilgil/Gilgil Block 1/13403 (Kikopey) conducted by the 1st Defendant subdivided into Title Number Gilgil/Gilgil Block 1/34020, Title Number Gilgil/Gilgil Block 1/34021, Title Number Gilgil/Gilgil Block 1/34022 and Title Number Gilgil/Gilgil Block 1/34023 or any other subsequent subdivisions done in favour of the 3rd Defendant and 4th Defendants and/or their nominees.g.Costs of the suit and interest thereon.h.Any other and/or further relief that this Court may deem fit and just to grant.

2. It is the plaintiff’s case that they, as residents of Karie Waithaka Slums in 2010/2011 came together and formed a self help group with the objective of supporting the group’s members socially and economically. As such group they contributed money aggregating Ksh. 1,040,000/= which they entrusted to the 1st defendant, then Chairman of the group with the objective that he was to identify and purchase land for the group. The plaintiff claims that the 1st defendant identified and purchased land parcel Title Number Gilgil/Gilgil Block 1/304 (Kekopey) measuring approximately 5 acres which he registered in his own name. The plaintiff further stated the 1st defendant purchased the land for Ksh. 300,000/= which left him with a balance of Ksh. 740,000/= out of the funds contributed. The 1st defendant allegedly subdivided land parcel Gilgil/Gilgil Block 1/304 into two portions of 3 acres and 2 acres. The portion of 2 acres was subdivided amongst the members of the Self Help Group while the 1st defendant retained the 3 acres for his own individual use though the entire parcel of land was for the benefit of all the members.

3. The portion of 2 acres subdivided amongst the group members was registered as parcel Gilgil/Gilgil Block 1/13404 while the portion of 3 acres retained by the 1st defendant was registered as parcel number Gilgil/Gilgil Block 1/13403 and was subsequently subdivided to create land parcels Gilgil/Gilgil Block 1/34020 to 34023. The 1st defendant sold the subdivisions to the defendants which the plaintiff claim was unlawful and illegal as the 1st defendant held the land in trust for the members of the Self Help Group.

4. The 1st defendant in his filed defence amended on April 12, 2017 and November 1, 2019 denied the plaintiff had the legal capacity to institute the present suit on behalf of the Self Help Group. He contended the suit was incompetent and misconceived. The 1st defendant further denied that he held land parcel number Gilgil/Gilgil Block 1/13403 as part of the land for Karie Waithaka Slums Self Help Group as alleged by the plaintiff. He contended that he bought the parcel of land for himself and that he subdivided the same before he had been served with any pleadings and that he had no hand in the removal of any caution registered against the title as claimed by the plaintiff. He averred that he had already sold the parcels of land the subject of the suit.

5. The 3rd and 4th defendants who hitherto had been named as interested parties were vide the Third Amended plaint joined as defendants and filed their joint statement of defence on 19th November 2019. The 3rd and 4th defendants averred that they were unaware that the plaintiff was the chairman of Karie Waithaka Slums Self Help Group or that the Self Help Group was a registered society. They averred the suit was defective and incompetent and hence ought to be struck out. The 3rd defendant denied she owned any of the suit properties though she admitted being a member of Better Mind Self Help Group who owned land parcel Gilgil/Gilgil Block 1/34023 (Kekopey). The 3rd and 4th defendants averred that land parcels Gilgil/Gilgil Block 1/34022 and 34023 were lawfully purchased from the 1st defendant and the appropriate due process was adhered to. The 3rd and 4th defendants denied they were guilty of privy to any wrong doing in the acquisition of the titles and prayed for the dismissal of the plaintiff’s suit.

6. The 2nd defendant, Naivasha Land Registrar did not file any pleadings.

The Plaintiff’s Case 7. The plaintiff, Joseph Muchene Njuguna (PW1) testified as the sole witness in support of the plaintiff’s suit. In his evidence, he adopted and relied on his witness statement and further witness statement. He further relied on the bundle and supplementary bundle of documents filed in support of the plaintiff’s case. He testified that he was a member of Karie Waithaka Slum Self Help Group who he represented in the suit. It was his evidence that the group was formed with the intention of buying a piece of land for the members. He testified that the group was registered with the Ministry of Gender, Sports, Culture & Social Services on February 14, 2005 as per the certificate of registration exhibited in the plaintiff’s bundle of documents filed together with the plaint.

8. The plaintiff testified that members contributed funds under the co-ordination of the 1st defendant who was then their group chairman. He stated that they collectively contributed a total of Ksh. 1,040,000/= which was entrusted with the 1st defendant. He testified that the members identified a parcel of land Gilgil/Gilgil Block 1/304 (Kekopey) measuring approximately 5 acres which the members purchased for Ksh. 300,000/=. He testified that the land was purchased on behalf of the group members but stated that on subdivision, the 1st defendant gave the members only 2 acres and retained the remaining portion of 3 acres for his own benefit. He said the portion of 2 acres was subdivided into 20 plots and each member of the group was given 1 plot but the 1st defendant took 2 plots. He stated only the portion of 2 acres was subdivided while the portion of 3 acres remained intact.

9. The plaintiff stated that when the members observed what the 1st defendant had done, they summoned him for a meeting to discuss the matter but he refused to attend as per the minutes dated 18/10/2015 exhibited in the plaintiff’s bundle of documents (Page 202). The members resolved to report the matter to the local administration but he declined to attend when summoned but sent his wife to represent him.

10. The plaintiff testified that the 1st defendant later agreed to refund the money that had not been utilized in the purchase and he signed an agreement dated 11/12/2015 exhibited in the plaintiff’s bundle of documents (Page 205/206). The 1st defendant signed the agreement and he agreed to refund the money within 90 days. The full text of the agreement which no doubt has a bearing on the final outcome of the case is reproduced hereunder for ease of reference.Agreement For Refund of Mis-appropriated FundsThis Agreement is made on the 11th day of December Two Thousand and Fifteen between:1. Gerald Ngige Guchu (hereinafter called “the Debtor” which expression shall include his personal representatives, heirs and assigns) of Kenya National Identity Card Number 6890886 and of Post Office Box ……..….Nairobi in the Republic of Kenya, and2. Karie Selfhelp Group (hereinafter called “the Creditor”) which expression shall include successors in title and assigns) of Registration Number ……………… and of Post Office Box …….………Nairobi in the Republic of Kenya.WhereasA.The debtor is the former chairman of Karie Selfhelp Group.B.The debtor having been in possession of the groups property financially, documentary and physically.C.The debtor has admitted of fraudulently registering the group’s land under his name.D.The debtor and the creditor wish to settle the dispute amicably.It Is Agreed as follows:-1. The total amount received by the debtor as members’ contribution is Ksh. 1,040,000/=. That is to say Ksh. 52,000 X 20 members.2. The debtor bought five acres of land using members’ contribution and registered the same in his name.3. The members have agreed that the debtor retains three acres and gives two acres to the members.4. The amount owed to the Creditor by the debtor is Ksh. 920,000/=. That is to say Ksh. 1,040,000/= less land buying fees for the two acres of land surrendered to the members purchased at Ksh. 120,000/=.5. Add the purported broker’s fee Ksh. 60,000/=.6. The total amount outstanding and owing to the creditor is Ksh. 980,000/=.7. The debtor shall refund the creditors money within a period of Ninety (90) days which he shall deposit directly into the Creditors account.8. If the said amount is not deposited into the creditor’s account within the agreed ninety (90) days, the group be at liberty to attach any of my assets and/or take legal action against me.9. This agreement represents the entire agreement between the Debtor and the Creditor.10. Any amendment to this agreement has to be done in writing by the parties to this agreement in a similar manner and has to be executed by both parties.in witness whereof this agreement has been duly executed.Signed …………...debtorSigned ………… .creditor

11. The plaintiff testified further that they had placed a caution against the title of land parcel Gilgil/Gilgil Block 1/13403 but the caution was fraudulently removed and the land subdivided. He said he discovered the land had been subdivided in 2016. The plaintiff maintained that the 3rd and 4th defendants knew the instant case was pending when they dealt with the 1st defendant and ought not to have dealt with the land that was the subject of the suit as the titles were in dispute.

12. Under cross-examination by Mr. Mutonyi advocate for the 1st defendant, the plaintiff stated he was the current chairman of the Self Help Group though no list of officials and/or minutes of any meetingwhere he was appointed were exhibited. The witness admitted that as per the Agreement dated 11/12/2015 they had agreed that the 1st defendant keeps the 3 acres and that he refunds to them Ksh. 980,000/=.

13. The witness further affirmed that as at December 2015 land parcel 304 had been subdivided into 20 plots and 3 acres and that the 3 acres was land parcel 13403. He further stated that he had no evidence the cautions the had lodged were ever registered.

14. In further cross-examination by Mr. Ngure advocate for 3rd and 4th defendants, the plaintiff stated the two were officials of another Self Help Group and that they had been sued because they had benefited from the subdivision of land parcel Gilgil/Gilgil Block 1/13403. The witness stated as per the search on land parcel 13403 done on 7/8/2014, the 1st defendant was the registered owner. The witness affirmed that as at 18/8/2016 when titles to land parcels Gilgil/Gilgil Block 1/34023 and 34022 were issued to the 3rd and 4th defendants respectively, he had not filed the present suit. He confirmed the two titles were subdivisions from land parcel Gilgil/Gilgil Block 1/13403.

The Defendants Evidence 15. The Land Registrar, Naivasha Mr. Roussos Ritho Mwangi testified as DW1. He produced land Records for land parcels Gilgil/Gilgil Block 1/304, 13403, 13420, 13421, 13422 and 13423. The witness other than producing the records stated that he could not explain the transactions as he was not the one who effected the registration. He stated he was new at the station.

16. Gerald Ngigi Guchu (DW2), the 1st defendant gave evidence and he relied on his filed witness statement. He admitted that he was Chairman of Karie Self Help Group earlier on and that the group purchased 2 acres out of land parcel Gilgil/Gilgil Block 1 /304. He stated parcel 304 was 5 acres but insisted the group was only buying 2 acres and that 3 acres belonged to him. He stated the 2 acres were subdivided into plots and each member got a plot and was issued a title. He clarified that problems arose in 2015 when the members of the group started laying claim to the whole of parcel 304. He stated the portion of 3 acres had become parcel 13304 and the same had been transferred to him in 2015. He said he had subdivided the parcel into 4 portions which he subsequently sold to third parties. He maintained the group was only entitled to the portion of 2 acres which he duly gave to them.

17. On cross-examination by Mr. Sagine advocate for the plaintiff, the 1st defendant stated he had no agreement with the group on how land parcel 304 was to be shared. He stated the agreement fro refund made with the group provided for the refund to be made by him within 90 days which he did not do.

18. Catherine Wanjiku Gichava (DW3) testified on behalf of the 3rd and 4th defendants. She adopted and relied on her witness statement filed in Court and further relied on the bundle of documents filed for and on behalf of the 3rd and 4th defendants which were admitted as a bundle in evidence. The witness was not cross-examined by any of the parties and consequently her evidence as per the witness statement was not challenged.

19. Following closure of the trial, the parties filed their final closing submissions. Having reviewed the pleadings, the evidence adduced by the parties, and having considered the submissions filed on behalf of the parties, the following are the issues for determination:-i.Whether the plaintiff had the locus standi to institute the suit and whether the suit is incompetent?ii.Whether the 1st defendant held land parcel Gilgil/Gilgil Block 1/13403 in trust for Karie Slums Self Help Group after it was registered in his name?iii.Whether a claim of trust could lie in favour of Karie Slums Self Help Group after they accepted the 1st defendant to refund to them the sum of money he had misappropriated belonging to the group?iv.Whether the 3rd and 4th defendants were innocent purchasers for value without notice of any defect in the titles they acquired?v.What reliefs or orders should the Court make?

Whether the Plaintiff had locus standi to institute the suit 20. The 1st defendant has submitted that the plaintiff lacked the locus standi to institute the suit on behalf of the Self Help Group. The 1st defendant contended that no evidence was adduced to prove that the plaintiff was indeed the chairman of the Self Help Group. There is proofthat indeed “Karie Waithaka Slums Self Help Group” was registered with the Ministry of Gender, Culture and Sports and a certificate of registration was duly exhibited. Order 1 Rule 8(1) of the Civil Procedure Rules allows one person to sue or defend on behalf of all with the same interest. It provides as follows:-“8(1) Where numerous persons have the same interests in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued by or against any one or more of them as representing all or as representing all except one or more of them”.

21. Organizations registered under the Ministry of Gender, Sports, Culture & Social Services are usually Community Based organizations (CBO’s) and have rudimentary structures. In the instant suit, the 1st defendant in his evidence agreed he was a past chairman of the group. The existence of the group is not disputed at all. The agreement that was signed between the 1st defendant and Karie Self Help Group on 11/12/2015 for refund and which was signed by the 1st defendant, indicated that Joseph Muchene Njuguna signed as Chairman on the group together with the secretary and the other members. The 1st defendant clearly acknowledged the plaintiff as the chairman of the group. The secretary and Treasurer of the group signed the authority for the plaintiff to represent the Self Help Group in the suit. I am satisfied that the plaintiff had locus to commence and represent the Self Help Group in the suit.

Whether the 1st Defendant held land parcel Gilgil/Gilgil Block 5/13403 in trust for the plaintiffs 22. The plaintiff claims and has submitted that the 1st defendant held land parcel 13403 in trust for the group and that his subdivision of the same and consequent sale to the 3rd and 4th defendants was fraudulent. He seeks the cancellation and nullification of all the resultant titles. The plaintiff’s claim is premised on the assertion that the members of Karie Waithaka Slums Self Help Group came together with the intention of pooling resources to buy land. In pursuit of that objective, it is the plaintiff’s assertion that they together contributed a total sum of Ksh. 1,040,000/= which was entrusted to the 1st defendant who was their chairman. The members apparently identified a parcel of land Gilgil/Gilgil Block 5/304 measuring 5 acres which was bought for Ksh. 300,000/= but the 1st defendant only subdivided 2 acres to the members and retained the 3 acres for himself. After subdivision, the portion of 3 acres was renumbered as Title No. Gilgil/Gilgil Block 5/13403 (Kikopey) and was registered in the 1st defendant’s name though he subsequently subdivided and sold portions to third parties.

23. The plaintiff in his submissions argued that the 1st defendant acquired title to the land in his name illegally and unprocedurally since the land was intended for the benefit of the members of the group. It was the plaintiff’s position that under section 26(1)(b) of the Land Registration Act, 2012, the 1st defendant’s title would not be entitled to protection of the law. The plaintiff in support of his submission relied on the cases of Elijah Makeri Nyangwira Vs Stephen Mungai Njuguna & another (2013) eKLR and Alice Chemutai Toovs Nickson Kipkumu Korir & 2 others(2015) eKLR. The plaintiff in consequence submitted that the subdivision/titles resulting from the suit property should be cancelled and the land reverted to the plaintiff.

24. Further the plaintiff submitted that as the 1st defendant had been entrusted with the funds to purchase the land, the Court ought to apply equity and hold that the suit property was held by the 1st defendant in trust for the members of the group. The plaintiff urged the court to be guided by the provisions of article 10(2)(b) of the Constitution that inter alia provides that equity was a national value and principle of governance that all state officers and state organs such as the court were bound by in the execution of their functions. The plaintiff in support of this submission placed reliance on the case of Willy Kimutai KitilitvsMichael Kibet (2018) eKLR where the Court of Appeal held as follows:-“24. There is another stronger reason for applying the doctrine 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 plaintiff finally submitted that the 3rd and 4th defendants were not innocent purchasers for value without notice. He submitted that the 3rd and 4th defendants needed not to have participated in any fraud perpetrated by the 1st defendant for their titles to be impeached and in that regard relied on sections 26(1)(b) of the Land Registration Act, 2012 that did not specifically require participation or knowledge of fraud by such parties.

26. The 1st defendant in his submissions denied there was any trust created in favour of the group arguing there was no intention to create a trust and the circumstances did not warrant the imposition of a trust. In support of his submission, the 1st defendant relied on the cases of Gichuki Vs Gichuki (1982) KLR 285 where the Court held that a party relying on the existence of a trust must prove through evidence the existence and creation of such a trust. In the case of Mbothu & 8 others Vs Waitimu & 11 others (1986) KLR 171, also relied on by the 1st defendant, the Court of Appeal held thus:-“The law never implies, the Court never presumes, a trust, but in case of absolute necessity. The Courts will not imply a trust save in order to give effect to the intentions of the parties. The intention of the parties to create a trust must be clearly determined before a trust will be implied”.

27. In the case of Twalib Hatayan & 2another Vs Said Saggar Ahmed Il-Heidy & 5others (2015) eKLR, the Court of Appeal considered what constitutes a constructive trust or how it could arise. The Court stated thus:-“A constructive trust is an equitable remedy imposed by the Court against one who has acquired property by wrong doing. (See Black’s Law Dictionary). It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (see Halsbury’ s Laws of England Supra at paragraph 1453). As earlier stated, with constructive trust, proof of parties intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment”.

28. In regard to resulting trust, the Court of Appeal in the same case stated thus:-“A resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a beneficial interest upon the transferee (see Black’s Law Dictionary) supra (supra) …. Therefore, unlike constructive trusts where unknown intentions may be left unexplored, with resulting trusts, Courts will readily look at the circumstances of the case and presume or infer the transferor’s intention”.

29. In the instant case, the 1st defendant stated he utilized the money from the group to buy for them 2 acres from land parcel Gilgil/Gilgil Block 1/304 (Kekopey) and maintained he bought the remainder of 3 acres for himself. The sale agreement dated 15/9/2010 entered into between the 1st defendant and Mary Nyambura Muchiri who was the Vendor did not at all indicate the 1st defendant was entering into the agreement on behalf of the Self Help Group. On the basis of the agreement for sale, title was processed and registered in the name of the 1st defendant on 10/11/2010. The 1st defendant stated in evidence that he went and showed the members the portion of 2 acres that he had bought for them and he consequently had the 2 acres subdivided and each member issued their own individual titles for their respective parcels of land. From a perusal of the copy of Title deeds exhibited in the plaintiff’s bundle of documents, it is evident the members obtained their individual titles in 2012, 2013 and 2014. Before each of the members got their titles, they must have attended before the Land Control Board and executed transfers to enable their respective titlesto be processed. How is it that they went through this process without inquiring about the 3 acres? It beats logic that the Self Help Group members would accept to receive titles to smaller plots when they would have gotten bigger ones if the whole of the 5 acres was subdivided amongst them. In those circumstances, my view is that the 1st defendant’s claim that he was buying 3 acres of the land for himself and 2 acres for the group is not farfetched. It is equally instructive that none of the group members claimed to have participated in the sale negotiations with the seller.

30. It is against that background that I view the agreement dated 11/12/2015 entered into between the 1st defendant and the Self Help Group members. By this agreement, the 1st defendant acknowledged he utilized the members’ funds to purchase the 5 acres land. The parties reached an agreement where the 1st defendant was to retain the 3 acres of land on the basis that he would refund to the group the agreed amount of Ksh. 980,000/=. The agreement constituted the 1st defendant a debtor and he was supposed to pay the agreed debt amount within 90 days, failing which the group was to be at liberty to take any appropriate action against the 1st defendant. In the face of the said agreement, it is my view that the plaintiff cannot properly claim that the 1st defendant held the suit property in trust for the group. The agreement entered into was explicit and does not allow for any other construction. The recourse open to the plaintiff was recovery of the amount the 1st defendant misapplied to his own purposes. The 1st defendant has submitted that he was not the legal owner of the suit property as it was subdivided and sold and transferred to third parties and there could not be deemed to hold the land in trust. In the premise, I am in agreement with the 1st defendant that on the basis of the agreement of 11th December 2015, the 1st defendant cannot be deemed to have held the suit property in trust for the plaintiff.

Whether the 3rd and 4th Defendants were innocent Purchasers 31. Having concluded that the 1st defendant did not hold the land the subject of the suit in trust for the plaintiff, it follows that any dealings the 1st defendant may have had with the 3rd and 4th defendants affectingthe title of the land cannot be impeached. The 1st defendant as the registered proprietor of land parcel Gilgil/Gilgil Block 1/13403 was entitled to deal with the property in the manner he did. Taking into account the attendant circumstances in this matter, I am persuaded the 3rd and 4th defendants in dealing with the 1st defendant acted in goodfaith and were therefore purchasers for value without any notice. It is noteworthy that, even if the 1st defendant had acted fraudulently in appropriating 3 acres out of land parcel Gilgil/Gilgil Block 1/304 when he registered subdivision Title No. Gigil/Gilgil Block 1/13403 in his name, the agreement dated 11th December 2015 with the group members absolved him of any wrongdoing and henceforth the terms of the agreement bound the 1st defendant and the plaintiffs. A party is notfree to enter into an agreement and walk out of an agreement when he chooses and/or when it is convenient to do so. The Court cannot ignore the agreement as the terms of the agreement bind the parties who voluntarily and freely enter into the agreement. I therefore find no basis upon which I can impeach the titles held by the 3rd and 4th defendants.

32. From my above analysis and discussions, it must have become evident that the plaintiff’s suit is destined for failure. I am not satisfied that the plaintiff has proved his case on a balance of probabilities. However, there is an aspect of the matter that I feel constrained to deal with. I have elsewhere in this judgment highlighted that the Courts are enjoined under article 10(2)(b) and 159(2) (e) of the Constitution to have regard to the dictates of equity, which is classified as a National Value and a principle of governance, and to promote and protect the purpose and principles of the Constitution while executing their mandate. In the instant case, the 1st defendant acknowledged and even undertook to refund the sum of Ksh. 980,000/= to the plaintiffs, which he agreed to have mis-appropriated. The sum of Ksh. 1,040,000/= was paid to him by the plaintiffs. He only used Ksh. 300,000/= to buy a 5 acre portion of land and even then, he only gave the plaintiffs 2 acres out of the 5 acres and retained 3 acres for himself. I consider that the Court would be being insensitive, if it let the 1st defendant to get away with what would constitute wanton and unwarranted unjust enrichment. I am conscious that there was no prayer for refund in the alternative pleaded by the plaintiff but the Court will not stand by or sanitize unwarranted unjust enrichment. I believe this would be a proper case to invoke the doctrine of equity as envisaged under article 10(2)(b) of the Constitution and make an order for restitution to meet the ends of justice.

33. The Court therefore orders that the 1st defendant shall pay to the plaintiff the sum of Ksh. 980,000/= together with interest at 12% with effect from 15th March 2015 until payment is made in full. The 1st defendant to make payment within 90 days from the date of this judgment, failing which the plaintiff shall be at liberty to execute against the 1st defendant for the recovery of the sum of Ksh. 980,000/= together with interest.

34. Save for the order of restitution that I have made in favour of the plaintiff, the plaintiff’s suit is dismissed. Each party shall bear their own costs of the suit.

Orders accordingly.

JUDGMENT DATED, SIGNED AND DELIVERED THIS 1ST DAY OF MARCH, 2023. J.M. MUTUNGIELC JUDGE