https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3117

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KERICHO** **ELC CASE NO. 85 OF 2016** **PAUL KOECH………………….……..…………………...……..PLAINTIFF** **VERSUS** **ROBERT KIPKOECH MUTAI…………........................DEFENDANT** **AND** **SIMON TOO KOECH……………………………………….THIRD PARTY** **JUDGEMENT.** **INTRODUCTION.** 1. The Plaintiff commenced the present proceedings vide the Plaint dated 7th November, 2016. 2. He avers that on 7th February, 2013, he purchased Plot No. 10 Kericho Municipality from **Solomon Kipngetich Bett**. 3. He also avers that the said plot was later registered as land parcel No. **Kericho/Municipality Block 4/634.** 4. He further avers that after purchase, he took possession and constructed houses for occupation by his servants. 5. It is his averment that he is an athlete and he was out of the country most of the time. 6. It is also his averment that he employed the Defendant to take care of his properties. 7. It is further his averment that in September, 2016, without any justifiable cause, the Defendant started grazing his cows on the suit parcel of land and allowed his brother to construct structures on it. 8. He avers that the Defendant’s acts of trespass have deprived him the quiet use of the suit parcel of land and he therefore prays for the following orders; 1. ***An order of permanent injunction to issue against the Defendant from entering, trespassing onto, grazing livestock, interfering with and/or in any manner whatsoever dealing with Kericho/Municipality Block 4/634.*** 2. ***Damages for trespass and mesne profits for the wrongful use to be assessed by the Honourable Court.*** 3. ***Interest in (C) above.*** 4. ***Costs of this suit and interests (sic).*** 9. The Defendant filed a Statement of Defence and Counterclaim dated 4th October, 2017 which was amended on 12th February, 2020. 10. He denies the averments in the Plaint and states that he is the owner of land parcel No. Kericho/Municipality Block 4/634. 11. He also states that he purchased the said parcel of land from **Simon Too Koech**, the Third Party, vide the land sale agreement dated 7th February, 2013 and adds that the Third Party was acting on behalf of **Solomon K. Bett** the original allottee of the suit parcel of land. 12. He further states that he took possession of the suit parcel of land immediately after purchase and constructed structures made of iron sheets. 13. He states that he lived peacefully on the suit parcel of land until 14th October, 2016 when the Plaintiff through his agents demolished his house. 14. He also states that he reported the issue to the Kericho Police Station and adds that he was shocked by the turn of events as the Plaintiff had guaranteed a loan he took from Diamond Trust Bank in order to facilitate the acquisition of the property. 1. He denies that he was the Plaintiff’s employee and/or agent and states that the Plaintiff was aware of his interest in the suit parcel of land. 2. He further states that the Plaintiff allegedly connived with the Third Party to register the suit parcel of land in his name in order to defeat his interest. 3. In the Counterclaim, he states that vide a land sale agreement dated 7th February, 2013, he purchased unsurveyed Plot No. 10 from the Third Party who purported to be acting on behalf of **Solomon K. Bett** the original allottee at a consideration of Kshs 2,800,000/=. 4. He reiterates that the plot he purchased is now registered as land parcel No. Kericho/Municipality Block 4/634. 5. He states that he paid Kshs. 2,000,000/= to the Third Party and was to pay Kshs. 800,000/= upon transfer of the land to his name. 6. He reiterates his averments in the Written Statement of Defence, sets out particulars of fraud against the Third Party and seeks the following prayers; 1. ***A refund of Kshs. 2,000,000/= being part payment of the purchase price paid by the Defendant (now Plaintiff) to the Third Party (now Defendant) towards acquisition of the suit property.*** 2. ***Costs of this suit and interest of (a) and (b) above.*** 7. The Third Party filed a Statement of Defence to the Counterclaim dated 10th March, 2020. 8. He denies the averments in the Defendant’s Statement of Defence and Counterclaim and states that the Plaintiff purchased the suit parcel of land vide the land sale agreement dated 7th February, 2013 from **Solomon K. Bett**. 1. He also states that the purported land sale agreement allegedly executed by him and the Defendant is a forgery. 2. He further states that he has never claimed to be an agent of **Solomon Bett** and neither did he receive any money on his behalf. 3. He states that the allegations of fraud are unsustainable as the only interaction he has had with the parties herein was when he witnessed the land sale agreement dated 7th February, 2013. 4. He denies the other averments in the Defendant’s Statement of Defence and states that the Defendant’s claim is time barred. 5. The Third Party then prays that the Defendant’s Counterclaim be dismissed with costs. **THE PLAINTIFF’S EVIDENCE.** 1. **Paul Koech** testified as **PW1.** He stated that he filed a witness statement dated 7th November, 2016 and prayed that the Court adopts it as part of his evidence-in-chief which prayer the Court acceded to. 2. It was his evidence that he purchased Residential Plot No. 10 Kericho Municipality from **Solomon Bett** vide the land sale agreement dated 7th February, 2013. 3. It was also his evidence that the said plot measures a quarter of an acre and that he purchased it at Kshs. 2,800,000/=. 4. It was further his evidence that he paid Kshs. 2,000,000/= at the time of execution of the agreement and paid Kshs. 800,000/= upon transfer of the land to his name. The copy of the land sale agreement dated 7th February, 2013 was produced as **Exhibit P1**. 5. He testified that the said plot was later registered as **Kericho/Municipality Block 4/634.** 6. He also testified that he has sued the Defendant because he trespassed on the suit parcel of land. 7. He further testified that he was later issued with a Certificate of lease which he used to obtain a loan from the AFC Bank. 8. It was his evidence that he only has in Court a copy of the Certificate of Lease as the original was with the bank. He produced a copy of the Certificate of Lease of land parcel No. **Kericho/Municipality Block 4/634** as **Exhibit P2**. 9. It was also his evidence that he could not remember the exact date he took the loan but stated that it was in the year 2017. 10. It was further his evidence that before he instituted the suit, he conducted a search on 29th September, 2016 which showed that the suit parcel of land was registered in his name. He produced a copy of the certificate of official search as **Exhibit P3.** 11. He testified that that he was paying rates for the suit parcel of land and he produced a copy of a demand notice dated 6th October, 2016 as **Exhibit P4**. 12. He also testified that at the time he was purchasing the suit land he was not aware that there was any other person who was in occupation. 13. He further testified that he visited the suit parcel of land before he purchased it and even after he purchased the land, no one claimed it. 14. It was his evidence that between the time he purchased the suit parcel of land to the time he took possession, he did not interact with the Defendant. 15. It was also his evidence that in September, 2016 the Defendant trespassed onto the suit parcel of land. 16. It was further his evidence that soon after they executed the land sale agreement, he took possession of the suit parcel of land. 17. He testified that after he took possession, he constructed temporary structures on the land which included structures made of timber and iron sheets. 18. He also testified that some of the structures were used as stores while others were used as houses for his workers. 19. He further testified that when the Defendant trespassed onto the suit parcel of land, he informed his workers that he was the owner of the land and that his workers were not supposed to be on it. 20. It was his evidence that when his workers informed him on what the Defendant had stated , he told them to continue staying on the land. 21. It was also his evidence that thereafter, the Defendant took his cows to the suit parcel of land where they grazed for a period of less than three months. 22. It was further his evidence that after two months of grazing, the Court issued orders which restrained the Defendant from grazing his cows on the suit parcel of land. 23. He testified that the Defendant did not show him anything to prove his ownership of the suit parcel of land. 1. He also testified that he seeks that the Court restrains the Defendant from interfering with his property and that the court grants him the prayers ought in the Plaint dated 7th November, 2016. 2. In his witness statement, **PW1** states that in September, 2016, one **Kiprotich Onesmus Mutai** trespassed onto the suit parcel of land and started developing it. 3. He also states that he made inquiries and he was informed that he (**Kiprotich Onesmus Mutai**) was the Defendant’s brother and that he had given him permission to develop the suit parcel of land. 4. He further states that **Kiprotich Onesmus Mutai** confirmed that he (Plaintiff) was the owner of the suit parcel of land and he stopped the developments. 5. Upon cross examination by counsel for the Defendant, he confirmed that he purchased the suit parcel of land from **Solomon Bett**. 6. He also confirmed that at the time of purchase, the suit parcel of land was known as Plot No. 10 and stated that it had just been allocated to **Solomon Bett**. 7. He admitted that he did not produce anything to show that land parcel No. **Kericho/Municipality Block 4/634** was previously known as Block 10 and also admitted that he did not produce the allotment letter. 8. When he was referred to the land sale agreement, he stated that Plot No. 10 measures a quarter an acre and admitted that the size of the said plot was not stated in the land sale agreement. 9. He confirmed that he saw the land sale agreement dated 12th March, 2013 at his advocates office which agreement the Defendant allegedly entered into for the purchase of the suit parcel of land. The agreement dated 12th March, 2013 was marked as **MF1 D1.** 10. He stated that he learnt that someone else was laying claim to the land after there was a commotion on the suit parcel of land. 11. He admitted that the Defendant is his friend and stated that he had agreed to guarantee him a loan which he was given by Diamond Trust Bank on 26th February, 2013. 12. He also admitted that he executed a document which showed consent to have the loan executed in favour of the Defendant. 13. A letter dated 26th February, 2013 which addressed to the Defendant from Diamond Trust Bank was marked as **MFID2** and shown to **PW1**. He admitted that he signed the said letter and stated that the purpose of the loan facility was stated at paragraph 2. 14. He confirmed that the loan was to be utilized to finance the purchase of Block No. 10 Kericho Municipality. 15. He denied that he was aware that the said loan was to be used to purchase the suit parcel of land in the year 2013. 16. He confirmed that he knew the Third Party and stated that he was one of the persons who witnessed the land sale agreement he entered into with **Solomon**. 17. He stated that he was present during the execution of the land sale agreement dated 7th February, 2013 and the other persons who witnessed the agreement were **Weldon Koskei, Hillary Korir** and **Harrison**. 18. He stated that he did not know the person who sold the suit parcel of land to the Defendant. 19. He confirmed that the suit parcel of land was registered in his name in the year 2016 and added that the land was transferred to his name after he followed the due process. 20. He also confirmed that he presented his Identity Card, the agreement for sale, the Certificate of Lease issued in Nairobi which was in the name of **Solomon Bett** to the Land Registry before the land was transferred to his name. 21. He further confirmed that he did not produce the initial Certificate of Lease as it was surrendered to the Lands Office. 22. He admitted that he executed the transfer form and confirmed that he did not produce it in Court. 23. He also admitted that he did not produce anything before the Court to connect the suit parcel of land to Plot No. 10. 24. He confirmed that he took possession of the suit parcel of land immediately he purchased it and begun to develop it. 25. He admitted that he did not produce before Court any evidence of the developments made on the suit parcel of land. 26. He stated that the Defendant asked his (Plaintiff) workers to vacate the suit parcel of land, grazed his (Defendant) cows and constructed structures on the land through his (Defendant) brother. 27. He confirmed that the Defendant engaged in the said acts of trespass when he (the Plaintiff) was away in Europe. 28. He also confirmed that he had been away for a period of about six months during which period the structures were constructed on the suit parcel of land. 29. He further confirmed that the said structures are still on the suit parcel of land. 30. When he was referred to the photographs filed by the Defendant, he confirmed that they showed the situation on the ground as at the year 2016. 31. He stated that he had given the Defendant money to buy wood and build the said structures. 32. He also stated that the Defendant later claimed that the suit parcel of land belonged to him and he (Plaintiff) demolished the said structures. 33. He confirmed that the Court did not issue any orders to allow him to demolish the structures that were constructed on the suit parcel of land. 34. He also confirmed that on 11th October, 2016, the Defendant made a report of malicious damage to the Police. 35. A copy of an extract of a police report filed by the Defendant was marked as **MFI D3.** 36. He confirmed that one **Weldon Koskei** informed him that the suit parcel of land was up for sale and they went to see it. 37. He also confirmed that on the ground the land was not fenced and neither was anyone occupying it. 38. He further confirmed that he conducted due diligence before he purchased the suit parcel of land and stated that he was the first to purchase the land. 39. He admitted that he did not inquire from the owners of the adjoining properties whether there was someone else laying claim to the suit parcel of land. 40. He confirmed that he requested for documents of the suit parcel of land and he was shown the allotment letter. 41. He also confirmed that he did not take any other step after he saw the allotment letter. 42. Upon further cross examination by Counsel for the Third Party, PW1 admitted that he knew **Simon Too** the Third Party. 43. He admitted that he had known him for a long time and between the years 2010 and 2012 they jointly purchased a property in town. 44. He confirmed that the Third Party was one of the persons who witnessed the land sale agreement in respect of purchase of the suit parcel of land. 45. He confirmed that the Third Party did not inform him that the suit parcel of land belonged to him (Third Party). 46. He also confirmed that the Third Party had never claimed ownership of the suit parcel of land. 47. Upon re-examination, he was referred to the land sale agreement dated 7th February, 2013 (**Exhibit P1**) and he stated that the purchase price was Kshs. 2,800,000/=. 48. When he was referred to the land sale agreement dated 26th February, 2013 which was marked as **MFI D2**, he stated that the purchase price was stated, at Paragraph 2, as Kshs. 2,500,000/=. 49. He stated that he signed the document guaranteeing the Defendant a loan on 14th March, 2013 and he (Defendant) allegedly purchased the suit parcel of land on 26th February, 2013. 50. He reiterated that he executed the land sale agreement for the purchase of the suit parcel of land on 7th February, 2013. 51. He also reiterated that he went to the Lands Office with a copy of his Identity Card, Pin Certificate, a copy of the allotment letter and his passport size photographs. 52. He stated that the vendor also availed his Identity Card, Pin Certificate and passport size photographs. 53. He also stated that at the time he was giving evidence, he had fenced off the suit parcel of land and the structures thereon belonged to him. 54. When he was referred to the report marked as **MFI D3,** he reiterated that that report was on malicious damage and stated that the report contained no details of the property and/or the complainant. 55. He also stated that he had never been charged with the offence of malicious damage to property. 56. **Solomon Kipngeno Bett** testified as **PW2.** He stated that he filed a witness statement and prayed that it be adopted by the Court as part of his evidence-in-Chief which prayer the Court acceded to. 57. He testified that he knew the Plaintiff and the Third Party and added that he did not know the Defendant. 58. He also testified that he first came to know the Plaintiff at the time he wanted to sell his property then referred to as Plot No. 10. 59. He further testified that they entered into a land sale agreement dated 7th February, 2013 which agreement was produced as **Exhibit P1**. 60. It was his evidence that he signed the said land sale agreement which agreement was executed by Orina and Company Advocates. 61. It was also his evidence that after he sold the said plot to the Plaintiff, he did not give anyone permission to sell it. 62. It was further his evidence that he gave the Plaintiff immediate possession of the suit parcel of land together with his allotment letter. 63. In his witness statement he states that on 18th June, 2012, he was allotted unsurveyed Residential Plot No. 10 Kericho Municipality. 64. He also states that he sold the said Plot to the Plaintiff and the Plaintiff was registered as the owner in September, 2016. 65. He further states that the Third Party witnessed the said sale agreement and was not a co-owner of the suit parcel of land. 66. He states that he has never given the Third Party any authority to act on his behalf. 67. Upon cross examination by Counsel for the Defendant, he confirmed that at the time he was selling the said plot it was not fenced. 68. He also confirmed that he was allotted the said plot on 18th June, 2012. 69. He admitted that he handed over possession of the suit parcel of land to the Plaintiff at the time of transfer of the land in the year 2016. 70. He clarified that the Plaintiff took possession of the suit parcel of land in the year 2013 after they entered into the land sale agreement. 71. He confirmed that apart from handing over the allotment letter to the Plaintiff, he did not execute any other document. 72. He reiterated that after signing the land sale agreement, he only gave the Plaintiff the letter of allotment. 73. He stated that around the year 2015, he obtained title to the suit parcel of land and confirmed that at the time they were concluding the transfer, he already had title to the land. 74. He also stated that at the time of transfer, he had been in possession for around two years. 75. When he was referred to the Certificate of Lease issued on 29th September, 2016 which was produced as **Exhibit P2,** he confirmed that according to the said lease, he only had title to the suit parcel of land for a day. 76. He admitted that the register of the suit parcel of land was opened on 28th September, 2016 and the transfer effected to the Plaintiff on 29th September, 2016. 77. He confirmed that he was not aware that Plot No. 10 was sold to the Defendant. 78. He also confirmed that at the time the suit parcel of land was transferred to the Plaintiff, it was registered as Land parcel No. Kericho Municipality Block 4/634. 79. Upon further cross examination by counsel for the Third Party, he confirmed that land parcel No. **Kericho/Municipality Block 4/634** was initially known as Plot No. 10. 80. He also confirmed that he did not sell the suit parcel of land to the Third Party. 81. He further admitted that he did not give the Third-Party permission to sell the suit parcel of land. 82. He explained that the Third-Party witnessed the sale of the suit parcel of land to the Plaintiff. 83. Upon re-examination, he stated that he gave the Plaintiff possession of the suit parcel of land six months after they entered into the land sale agreement. 84. He also stated that during execution of the transfer documents, he was asked to provide the allotment letter and confirmed that he could not remember if he was asked for any other document. 85. When he was referred to the Certificate of Lease dated 29th September, 2016 which was produced as **Exhibit P2**, he stated that he was also given a Certificate of Lease in his name. 86. He reiterated that it was issued in September, 2016 and stated that he learnt that there was someone else claiming the suit parcel after the Plaintiff informed him. 87. The Plaintiff’s Case was then closed. **THE DEFENDANT’S EVIDENCE.** 1. **Robert Kipkoech Mutai** testified as **DW1**. He introduced himself and said that he is a Corporal working with the Department of Defence. 2. It was his evidence that the Plaintiff has been his friend since the year 2006 and the Third Party sold to him the suit parcel of land on 12th March, 2013. 3. It was also his evidence that at the time he was purchasing the suit parcel of land, it was known as unsurveyed Plot No. 10 Kericho Municipality. 4. It was further his evidence that the land sale agreement that he entered into with the Third Party was drafted by E.M Orina & Co. Advocates on 12th March, 2013. 5. He testified that they agreed that he would purchase the suit parcel of land for Kshs. 2,800,000/=. 6. He also testified that he paid Kshs. 2,000,000/= upfront and he was to pay Kshs. 800,000/= upon transfer. 7. He further testified that he paid Kshs. 2,000,000/= on 12th March, 2013 and the agreement dated 12th March, 2013 was marked as **MFI D1**. 8. It was his evidence that upon execution of the agreement, he took possession of the suit parcel of land and built four temporary houses which included single rooms and a house for his poultry and added that he also kept his cattle on the land. 9. It was also his evidence that the temporary houses were built with timber and iron sheets. 10. It was further his evidence that in October, 2016 he was evicted from the suit parcel of land by the Plaintiff. 11. He testified that the land measures a quarter of an acre which is 0.1 Ha. 12. He also testified that he purchased the entire parcel of land. 13. He further testified that he was called and informed that some goons who were armed with crude weapons had invaded the suit parcel of land and had demolished the houses and removed the cattle. 14. It was his evidence that he took leave from work and made a report to the police station on 15th October, 2016. 15. It was also his evidence that he was given OB No. 26/15/10/2016 and a produced a copy of the said OB as **Exhibit D2**. 16. It was further his evidence that he had photographs of the houses and structures that were demolished which he produced as **Exhibit D 3(a), (b), (c)** and **(d).** 17. He testified that the Plaintiff did not issue him with any notice to vacate the land. 18. He also testified that the Plaintiff was aware of his interest in the land as he guaranteed him a loan of Kshs. 1,000,000/= that he took from Diamond Trust Bank. 19. He further testified that he had a letter of offer dated 26th February, 2013 that was signed by the Plaintiff on 4th March, 2013. It was his evidence that the purpose of the loan was indicated in the said letter and he produced it as **Exhibit D4**. 20. It was also his evidence that before he purchased the suit parcel of land he was given the original allotment letter by the Third Party. 21. It was further his evidence that the allotment letter was in the name of **Solomon Bett**. 22. He testified that the Third Party gave him (Defendant) a copy of the Identity Card of **Solomon Bett** and told him (Defendant) that he had his (**Solomon Bett**) authority to sell the land. 23. He also testified that he tried to get in touch with **Solomon Bett** but he was not able to. 24. He further testified that the Third Party informed him that the land had been initially allocated to him (Third Party) but he used the Identity Card of **Solomon Bett** to get the allotment letter. 25. It was his evidence that he had the original allotment letter with him in Court and testified that it was dated 19th June, 2012. He produced it as **Exhibit D5**. 26. It was also his evidence that in January, 2016, he tried paying stamp duty for purposes of transferring the suit parcel of land to his name but he was not able to because he was unable to reach **Solomon Bett**. He produced the Assessment Slip Serial No. 2639866 as **Exhibit D6** and added that he then became suspicious. 27. He testified that he was with the Third Party at the Land Registry and after he failed to transfer the suit parcel of land to his name, the Land Registrar asked the Third Party to call **Solomon Bett.** 28. He also testified that the Third Party excused himself, went outside to call **Solomon Bett** and he later disappeared. 29. He further testified that eight months later, **Solomon Bett** transferred the suit parcel of land to the Plaintiff. 30. It was his evidence that upon registration, Plot No. 10 became land parcel No. Kericho Municipality Block 4/634. 31. It was also his evidence that he did not take any steps because as soon as he was evicted, the present suit was filed against him alleging that he is a trespasser. 32. It was further his evidence that he instituted the Counterclaim against the Third Party where he seeks that he be ordered to return his money with interest as well as costs of the suit. 33. He testified that had it not been for the Third Party, he would not have been in Court and added that he is not a trespasser because he had the documents at the time he was purchasing Plot No. 10. 34. He further testified that the Plaintiff purchased Plot No. 9 which is next to the suit parcel of land and added that they lived together as neighbors. 35. Upon cross examination by Counsel for the Plaintiff, he was referred to the Letter of Offer dated 14th March, 2013 which was produced as **Exhibit D4** and he confirmed that the Plaintiff signed it on 14th March, 2012. 36. He also confirmed that he signed the land sale agreement on 12th March, 2012. 37. He stated that after signing the land sale agreement, together with the Plaintiff and Third Party, they went to Diamond Trust Bank where he withdrew Kshs. 2,000,000/= and paid it to the Third Party. 38. He admitted that thereafter they went to Orina & Company Advocates where the Third Party confirmed to have received the money. 39. He reiterated that he withdrew Kshs. 2,000,000/= from his bank account and stated that he had bank statements that showed that he withdrew the said sum of money. 40. He confirmed that the money he withdrew was part of the loan that he had applied for using the Letter of Offer that was produced as **Exhibit D4**. 41. He also confirmed that he was given a loan of Kshs. 1,000,000/= and stated that the property that he gave as security for the loan was land parcel No. **Kericho/Municipality Block 1/267.** 42. He further confirmed that a charge was registered on the said parcel of land and stated that the Plaintiff signed the charge but he could not remember the date and added that the charge was registered after 14th March, 2013. 43. He reiterated that the Plaintiff signed the letter of offer on 14th March, 2013 and confirmed that the Bank could only release the money after all relevant documents had been signed and after a charge has been registered on the title. 44. When referred to the agreement of sale of land dated 12th March, 2013 that was marked as **MFI D1**, he confirmed that he signed it on the same date he made the payments. 45. He confirmed that the Letter of Offer was signed on 14th March, 2013 which was a day after the agreement dated 12th March, 2013 was executed and admitted that it was therefore inaccurate to state that the proceeds of the loan were used pay the purchase price. 46. He confirmed that he purchased the suit parcel of land for Kshs. 2,500,000 and he also confirmed that at the back of the Letter of Offer that was produced as **Exhibit D4**, he indicated that he was purchasing land that was registered in the name of **Simon Too Koech.** 47. He admitted that he presented the Allotment Letter to the bank which showed that **Solomon K. Bett** was allotted Plot No. 10. 48. He also admitted that there was no allotment letter in the name of the Third Party. 49. He confirmed that the details on the sale agreement dated 7th February 2013 (**Exhibit P1**) and the agreement dated 12th March, 2013 (**MFI D1**) were the same except for the details of the purchaser and vendor. 50. He admitted that the agreement dated 12th March, 2013 (**MFI D1**) was not witnessed while the sale agreement dated 7th February 2013 (**Exhibit P1**) was witnessed by four witnesses one of whom was the Third Party. 51. He also admitted that one of the said agreements is an edited version of the other. 52. He further admitted that the sale agreement dated 7th February 2013 (**Exhibit P1**) was executed on the same date which was earlier than the agreement dated 12th March, 2013 (**MFI D1**). 53. He confirmed that the Letter of Allotment (**Exhibit D5**) was availed to him and it has the name of **Solomon K. Bett**. 54. He explained that the Third Party informed him verbally that he was selling the suit parcel of land on behalf of **Solomon K. Bett** and that he will avail him during the time of transfer. 55. He confirmed that the copy of **Solomon K. Bett**’s Identity Card came with the Allotment letter and admitted that the Third Party did not have any power of attorney. 56. He also admitted that he had no claim against the Plaintiff. 57. Upon further cross examination by Counsel for the Third Party, **DW1** confirmed that in his Counterclaim, he is seeking that the Third Party be ordered to refund the money he paid to him as he sold land that did not belong to him. 58. He also confirmed that he was seeking an order that he gets a refund of the said amount of money together with interest from the year 2013. 59. He admitted that on 7th January,2016 he tried to transfer the land to his name but he failed. 60. He also admitted that he was evicted from the suit parcel of land on 14th October, 2016 and made a report to the Police that the Plaintiff had maliciously damaged his property. 61. He stated that he contacted the Third Party who was called to the Police Station. 62. He confirmed that at the Police Station, the Third Party stated that he (Defendant) had forged his (Third Party) signature and confirmed that he (Third Party) did not filed any claim against him. 63. He also confirmed that all this took place on 15th October, 2016. 64. He admitted that he did not take any action against the Third Party as he was told that the matter was already in Court. 65. He also admitted that he made payment for the land before he signed the agreement. 66. He confirmed that he gave the bank the allotment letter and he was given a loan of kshs. 1,000,000/=. 67. He also confirmed that he paid the Third Party the purchase price while they were in the bank and admitted that he did not show the bank the land sale agreement. 68. He further confirmed that he knew the Third Party way before he sold the suit parcel of land to him. 69. He admitted that he does not know **Solomon** and has he ever seen him. 70. He also admitted that at the time he was purchasing the suit parcel of land, the Third Party was not in possession and neither was the land fenced. 71. He confirmed that he knew the Third Party well enough and that is why he purchased the suit parcel of land from him. 72. He stated that the allocating committee confirmed that the suit parcel of land was allocated to the Third Party and clarified that he did not find out why the allotment letter was not in the name of the Third Party. 73. He reiterated that the Third Party had the original allotment letter and stated that the Third Party refused to connect him to **Solomon Bett.** 74. He confirmed that he was friends with both the Plaintiff and the Third Party and the three of them were Trading Partners and explained that he used to be the Plaintiff’s agent when he was building his property which property he at some point managed. 75. He also stated that he was sure that the Plaintiff did not buy the suit parcel of land in the year 2010. 76. Upon re-examination he stated that the Letter of Offer was indicated to have been signed on 14th March, 2013 but it was actually signed on 4th March, 2013. 77. He also stated that the advocates stamp was dated 4th March, 2013 and further stated that he did not know who dated it 14th March, 2013. 78. He stated that he appeared with the Third Party before Advocate Orina on 4th March, 2013 and they signed the agreement in his presence. 79. He also stated that the date of 14th March, 2013 was an error. 80. He further stated that he trusted the Third Party and also confirmed the fact of allotment with the allocation committee. 81. He stated that the Plaintiff’s property had been allocated to somebody else which was normal and reiterated that the Third Party gave him the original allotment letter which gave him confidence to purchase the land. 82. He also reiterated that the Third Party was not using the suit parcel of land at the time he purchased it and stated that a total number of 42 plots were allocated around the year 2013. 83. Upon clarification by the Court, **DW1** stated that he had known the Plaintiff since the year 2006 and also stated that by the time he was being evicted, the Plaintiff knew that he was the one in possession of the land. 84. **Erastus Orina** testified as **DW2.** He introduced himself as an Advocate of the High Court of Kenya and stated that he previously practiced as E.M Orina & Co. Advocates. 85. It was his evidence that he was now the County Attorney of Nyamira County. 86. He was referred to the land sale agreement dated 12th March, 2013, and he testified that it was an agreement between **Samuel Too Koech** and **Kipkoech Mutai.** 87. He also testified that the stamp at page 2 of the said agreement resembled his stamp and the date indicated thereon was 12th March, 2013. 88. He further testified that the said agreement stated that it was drawn by E.M Orina & Co. Advocates. 89. It was his evidence that from the font and the format of the said agreement, it appeared that it was prepared in his office and he therefore produced it as **Exhibit D1**. 90. It was also his evidence that he did not sign the said agreement and reiterated that the font and format appeared similar to the documents prepared in his office. 91. He was referred to the land sale agreement dated 7th February, 2013 (**Exhibit P1**) and he testified that the agreement was between **Solomon Kipngeno Kibett** and **Paul Koech**. 92. He also testified that the following persons witnessed the said agreement; 1. ***Weldon Kiprono Koske*** 2. ***Simon Too Koech*** 3. ***Angix Kiprono Langat*** 4. ***Hillary Kipruto Korir*** 93. He further testified that **Simon Too** who was a witness in the agreement dated 7th February, 2013 (**Exhibit P1**) was the vendor in the agreement dated 12th March, 2013 (**Exhibit D1**) because the Identity Card number was the same. 94. It was his evidence that the property in the agreement dated 7th February, 2013 (**Exhibit P1**) was residential plot No. 10 Kericho Municipality. 95. It was also his evidence that in the agreement dated 12th March, 2013 (**Exhibit D1**), the land being sold was described as Uns. Residential Plot No. 10 Kericho Municipality which is the same parcel of land in **Exhibit P1**. 96. It was further his evidence that the purchase price on both agreements was Kshs. 2,800,000/=. 97. Upon cross examination by Counsel for the Plaintiff, he admitted that the agreement dated 7th February, 2013 (**Exhibit P1**) was prepared in his office. 98. He confirmed that the date was written by hand and he attested the first page of the said agreement by signing and stamping it. 99. He stated that his signature and stamp confirmed the contents of the said page and he further stated that he also signed and stamped the second page. 100. He reiterated that the vendor was **Solomon Kipngeno Bett** and the purchaser was **Paul Koech** and stated that they both signed the land sale agreement. 101. When he was referred to the agreement dated 12th March, 2013 (**Exhibit D1)**, he confirmed that the first page was not authenticated by the parties and neither did he attest it. 102. He stated that there was a disparity on the stamps on **Exhibit P1** and **Exhibit D1.** 103. He confirmed that the stamp on **Exhibit P1** did not have a date while the stamp on **Exhibit D1** had a date. He explained that it had been a long time and stated that the stamp was similar to his stamp. 104. He admitted that he always dated agreements by hand and reiterated that **Exhibit D1** did not have a date on the front page but the stamp was dated 12th March, 2013. 105. He confirmed that his signature appeared on the agreement dated 7th February, 2013 (**Exhibit P1**) while the signature on the agreement dated 12th March, 2013 (**Exhibit D1)** did not belong to him. 106. He also confirmed that the names of the parties did not appear on the signature part of **Exhibit D1.** 107. Upon further cross examination by Counsel for the Third Party, he confirmed that he did not know whose signature was on the agreement dated 12th March, 2013 (**Exhibit D1).** 108. Upon re-examination, he reiterated that the signature on the agreement dated 12th March, 2013 (**Exhibit D1)** was not his signature. 109. He stated that he has other associates in his office and as at the year 2013, his associate was one **Stella Koech**. 110. He also stated that the agreement appeared to have been prepared in his office. 111. He further stated that he could not confirm whether the said signature was **Stella Koech’s** signature but it could be her signature. 112. **Stella Chepkorir Koech** testified as **DW3.** She introduced herself as an Advocate of the High Court of Kenya practicing in the name and style of Koech, Chepkirui & Associates. 113. It was her evidence that her number is P.105/8999/11 and that she was summoned to Court to produce the agreement dated 12th March, 2013. 114. It was also her evidence that the agreement dated 12th March, 2013 was between **Simon Too Koech** (the Third Party) and **Kipkoech Mutai** (The Defendant). 115. It was further her evidence that at the time of the signing of the said sale agreement, she was an associate at Orina & Company Advocates. 116. She testified that she attested the said agreement. 117. She also testified that the parties to the agreement had a discussion with **Mr. Orina** and **Mr. Orina** asked her to sign the agreement on his behalf. 118. Upon cross examination by the Counsel for the Plaintiff, she confirmed that the agreement was drawn by the firm of E.M Orina & Company Advocates where she used to work as an associate. 119. She reiterated that the parties to the agreement had discussions with Mr. Orina and her only duty was to take them through the agreement and for them to confirm the contents. 120. She stated that she needed to be sure that what was documented is what was agreed by the parties. 121. She admitted that the agreement dated 12th March, 2013 had the stamp of Orina & Company Advocates and that she signed it. 122. She confirmed that only the vendor and the purchaser were present and they did not have witnesses. 123. She admitted that she did not conduct a search and reiterated that the vendor and purchaser gave Mr. Orina instructions. 124. She stated that she only stepped in because Mr. Orina was going to Court and she was to only ensure that there was attestation and nothing more. 125. She admitted that she did not know the registered owner of the suit property and stated that it was Mr. Orina who could answer that question. 126. The Defendant’s case was then closed. **THE THIRD PARTY’S EVIDENCE.** 1. **Samuel Koech Too** testified as **TP1**. He stated that he filed a witness statement dated 6th March, 2020 and prayed that the Court adopts it as part of his evidence-in-chief which prayer the Court acceded to. 2. When he was referred to the land sale agreement dated 12th March, 2013 (**Exhibit D1)**, he testified that he did not know the said agreement. 3. He also testified that the said agreement had his name but the signature did not belong to him. 4. He further testified that he had never owned a parcel of land in Kericho and neither did he sell any parcel of land to the Defendant. 5. It was his evidence that **Solomon Bett** is his Cousin and stated that there were allegations that he sold land on his behalf. 6. It was also his evidence that he has never sold land on behalf of **Solomon Bett** and denied ever being authorized by him to sell any parcel of land. 7. It was further his evidence that he has never received any money from the Defendant and denied that he received Kshs. 2,000,000/= in cash. 8. He testified that he could not receive such an amount of money in cash. 9. He also testified that **Solomon Bett** lives in Kapsuser and is a farmer. 10. He further testified that **Solomon Bett** has always been in the Country. 11. It was his evidence that **Solomon Bett** had a parcel of land behind Tea Hotel which he sold to the Plaintiff. 12. It was also his evidence that he witnessed the said sale. 13. When he was referred to the land sale agreement dated 7th February, 2013 (**Exhibit P1**) he confirmed that that was the sale that he witnessed. 14. It was further his evidence that in the said land sale agreement, **Solomon Bett** sold to the Plaintiff Plot No. 10 Kericho Municipality. 15. He testified that he had never owned the said plot, neither had it ever been registered in his name nor did he have any dealings with it. 16. In his witness statement, he states that he did not appear before Orina & Company Advocates twice over the sale of the suit parcel of land. 17. He also states that the averments in the Counterclaim are farfetched and unsustainable as he has never executed any contract with the Defendant. 18. Upon cross examination by counsel for the Defendant, he admitted that he had seen the land sale agreement dated 7th February, 2013 (**Exhibit P1**). 19. He confirmed that he was one of the witnesses to the said land sale agreement and added that the purchase price was Kshs. 2,800,000/=. 20. He also confirmed that the purchase price was paid in installments and admitted that he could not remember how much money was paid as the first installment. 21. He also admitted that the purchase price was transferred to Solomon Bett’s bank account. 22. He confirmed that Clause (b)(i) of the land sale agreement stated that kshs. 2,000,000/= was paid in cash to the vendor. 23. He stated that **Solomon Bett** was in a better position to explain how the purchase price was paid and reiterated that all he knew was that **Solomon Bett** was paid. 1. He also reiterated that **Solomon Bett** is his relative while the Plaintiff is his friend. 2. He stated that he got to know the Plaintiff in the year 2010 which was three years before he entered into the land sale agreement. 3. He confirmed that he used to meet the Plaintiff and the Defendant as they spent most of their time together. 4. He also confirmed that they knew each other and stated that the friendship was not close. 5. He admitted that he knew that Residential Plot No. 10 Kericho Municipality belonged to his Cousin **Solomon Bett.** 6. He also admitted that he was not aware if the Defendant had ever been in occupation of the suit parcel of land and stated that what he was aware of was that **Solomon Bett** had sold it. 1. When he was referred to the land sale agreement dated 12th March, 2013 which had been produced as **Exhibit D1**, he stated that he had disowned the said agreement. 2. He also stated that he learnt about the said sale agreement in the year 2016 when the Plaintiff mentioned it to him. 3. He confirmed that the said agreement alleged that he was the owner of Plot No. 10 and that he sold it to the Defendant. 4. He stated that his signature as appeared in the agreement dated 12th March, 2013 (**Exhibit D1**) was forged and added that he did not take any action on the forgery since this suit was pending in Court. 5. He also stated that he asked the Defendant about it and they even went to the Police Station. 6. He admitted that he did not have the OB number and confirmed that he was not aware of any understanding between the Plaintiff and the Defendant over Residential Plot No. 10. 7. He confirmed that he was not present in Court when the Plaintiff testified but he was present when **Solomon Bett** testified. 8. He stated that his advocates informed him that an advocate testified and stated that the agreement dated 12th March, 2013 (**Exhibit D1**) was executed by all of them in their office. 9. He confirmed that he knew where the suit parcel of land was located and admitted that he did not know who was using the land. 10. He stated that his Identity Card number is 10886704 and his address is P.O Box 1318 Kericho. 11. He admitted that the particulars he gave were the same as the particulars in the agreement dated 12th March, 2013 (**Exhibit D1**) which were particulars that were copied from the land sale agreement dated 7th February, 2013 (**Exhibit P1**). 12. He also admitted that there was no report by a document examiner to confirm that **Exhibit D1** is a copy of **Exhibit P1**. 1. Upon further cross examination by Counsel for the Plaintiff, he reiterated that he witnessed the agreement dated 7th February, 2013 (**Exhibit P1)**. 2. He confirmed that Clause B(i) of **Exhibit P1** provided for the terms of the payment of the purchase price and he further confirmed that Mr. Orina advocate presided over the sale of the suit parcel of land. 3. He also confirmed that as per Clause B(i) of **Exhibit P1**, the purchase price was Kshs. 2,000,000 and it was paid in cash. 1. He further confirmed that the said sum of money was paid in the presence of the following witnesses; 1. ***Weldon Kiprono Kosgey of ID No. 24150434*** 2. ***Simon Too Koech of ID No. 10886704*** 3. ***Angix Kiprono Langat of ID No. 13720590*** 4. ***Hillary Kiprono Korir of ID No. 22110034*** 2. He confirmed that the land sale agreement was dated 7th February, 2013 (**Exhibit P1**). 3. **TPI** admitted that he was aware that **Stella Koech** who is an Advocate testified as **DW3**. 1. He reiterated that he did not know the land sale agreement that was produced as **Exhibit D1** and stated that the difference between **Exhibit P1** and **Exhibit D1** is the parties who entered into the land sale agreement. 2. He also stated that one of the agreements was dated while the other one was not. 3. He admitted that on page 2 of **Exhibit P1**, he signed as a witness while on **Exhibit D1**, it is alleged that he signed as a vendor. 4. He reiterated that the signature on **Exhibit D1** did not belong to him and confirmed that there were no witnesses on the said agreement. 5. He confirmed that the date that appeared on page 2 of **Exhibit D1** is 12th March, 2013 while the date on **Exhibit P1** is 7th February, 2013. 6. He also confirmed that the agreement dated 7th February, 2013 came first. 7. He further confirmed that the Defendant alleged that he was acting on behalf of **Solomon Bett** and added that he had no appointment to transact on his behalf. 8. Upon re-examination, he was referred to **Exhibit D1** and he stated that the advocate who testified in Court was **Stella Koech**. 9. He also stated that the stamp on **Exhibit D1** belonged to **Erastus Menge** Advocate and not **Stella**. 10. He further stated that he had never appeared before Madam Stella Advocate. 11. He stated that he was not relying on **Exhibit D1** and therefore it was not up to him to get a document examiner. 12. He also stated that he was present on 7th April, 2013 but he could not remember all that happened on that day. 13. The Third Party’s case was then closed. **ISSUES FOR DETERMINATION.** 1. The Plaintiff filed his submissions on 23rd September, 2025, the Defendant filed his submissions on 15th January, 2026 while the Third Party filed his submissions on 2nd February, 2026. **The Plaintiff’s Submissions.** 1. The Plaintiff sets out a summary of the evidence adduced by the parties and submits on the following issues; 1. ***Is the Plaintiff entitled to the prayers sought in the Plaint dated 7th November, 2016?*** 2. ***Did the Third Party fraudulently sell the suit property to the Defendant herein?*** 3. ***Was the Plaintiff party to the fraud if any?*** 4. ***Is the Defendant entitled to the prayers sought in the Amended Statement of Defence and Counterclaim?*** 5. ***Which party bears the costs of litigation in this suit?*** 2. On the first issue, the Plaintiff submits that the Defendant did not seek any orders against him in the Counterclaim and therefore the fact of his ownership of the suit parcel of land is not contested. 3. The Plaintiff relies on **Sections 24(a)** and **26(1)** of the Land Registration Act in support of his submissions. 4. The Plaintiff also submits that since he holds a valid title to the suit parcel of land, he is entitled to both ownership and possession of the suit parcel of land. 5. The Plaintiff further submits that the Defendant admits to trespassing onto the suit parcel of land under the guise that he purchased the land from the Third Party. 6. It is the Plaintiff’s submissions that this is unjustified as the Defendant has not been able to prove that he has a superior title. 7. It is also the Plaintiff’s submissions that the Court should therefore award him general damages for trespass and mesne profits. The Plaintiff relies on the judicial decision of **Wanyeki v Bhudiya & another [2023] KECA 87 (KLR)** in support of his submissions. 8. On the second issue, the Plaintiff submits that the standard of proof in civil cases is on a balance of probability. 9. The Plaintiff also submits that the Defendant has not proved his case on a balance of probability as he has relied on a questionable land sale agreement. 10. The Plaintiff further submits that the sale agreement relied on by the Defendant contains the same details as the land sale agreement he entered into with **Solomon Bett.** 11. It is the Plaintiff’s submissions that it is questionable how a person would purchase land from a person who had no single document of ownership and/or form of authority from the registered owner. 12. It is also the Plaintiff’s submissions that the advocates who allegedly oversaw the execution of the land sale agreement that the Defendant is relying on testified as **DW2** and **DW3.** 13. It is further the Plaintiff’s submissions that it is not clear why **DW3** did not stamp the said agreement with her own stamp. 14. The Plaintiff submits that it is also not clear why the Defendant has never reported the issue for investigation or seek forensic analysis of the signature that was purported to belong to the Third Party. 15. The Plaintiff relies on the judicial decision of **Moses Parantai & Peris Wanjiku Mukuru (Suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (Deceased) vs Stephen Njoroge Macharia [2020] KECA 232 (KLR)** and submits that the Defendant did not prove his allegations of fraud. 16. On the third issue, the Plaintiff reiterates that the Defendant did not prove his allegations of fraud and on the fourth issue, submits that the Defendant’s Counterclaim should be dismissed with costs. 17. The Plaintiff concludes his submissions by urging the Court to allow the prayers sought in the Plaint. **The Defendant’s Submissions.** 1. The Defendant sets out a summary of the evidence adduced during the hearing together with the documents produced and then submits on the following issues; 1. ***Whether the Plaintiff’s claim of trespass against the Defendant is tenable.*** 2. ***Whether the Defendant’s claim against the Third Party should be allowed.*** 2. The Defendant submits that from the evidence, it is clear that he occupied the suit parcel of land before he was evicted on 15th October, 2016. 3. The Defendant also submits that the Plaintiff demolished his structures and admitted during the hearing, that he had no Court order that allowed him to demolish them. 4. The Defendant further submits that the Plaintiff also testified that he was in possession of the suit parcel of land which parcel of land he has since developed. 5. It is the Defendant’s submissions that the present suit was filed on 16th November, 2016 which was after he was evicted from the suit parcel of land. 6. It is also the Defendant’s submissions that given the Plaintiff’s evidence that he has always been in possession of the suit parcel of land, his claim for trespass cannot lie. 7. It is further the Defendant’s submissions that the Plaintiff did not lead any evidence in support of his allegations of trespass. 8. The Defendant submits that the Court should consider the fact that his occupation of the suit parcel of land was courtesy of the land sale agreement that he entered into with the Third Party. 9. The Defendant also submits that the Plaintiff guaranteed a loan which loan was to assist him to acquire the suit parcel of land. 10. The Defendant further submits that there is no basis for him to be adjudged as a trespasser and that he should be considered to be an occupant in good faith. 11. The Defendant relies on **Article 40(4)** of the Constitution of Kenya, the judicial decision of **Clement Kipchirchir & 38 Others vs Principal Secretary Ministry of Lands, Housing and Urban Development & 3 Others [2015] eKLR** in support of his submissions. 12. It is the Defendant’s submissions that no evidence was tendered to the effect that he tried to re-enter the suit parcel of land after he was evicted on 15th October, 2016. 13. On the second issue, the Defendant submits that he paid the Third Party Kshs. 2,000,000/= after they entered into a land sale agreement dated 7th February, 2013 (sic). 14. The Defendant also submits that he was evicted from the suit parcel of land and he reported the said issue to the Kericho Police Station and was given OB No. 23/15/10/2016 which he produced as **Exhibit D2**. 15. The Defendant further submits that the Third Party disowned the said agreement in a bid to avoid liability. 16. It is the Defendant’s submissions that the said land sale agreement meets the essentials of a valid contract. 17. The Defendant relies on **Section 3(3)** of the Contract Act and **Section 38** of the Land Act in support of his submissions. 1. It is also the Defendant’s submissions that the said contract was vouched for by **DW3** who attested it. 2. It is further the Defendant’s submissions that the Third Party admitted that his particulars were in the said land sale agreement. 3. The Defendant submits that even though the Third Party contested the validity of the land sale agreement (**Exhibit D1**), he did not report his allegations of forgery to the relevant authorities. 4. The Defendant also submits that the Third Party admitted that he had no interest in the suit parcel of land and yet he lured him, to purchase the land on the pretext that he had secured **Solomon Bett**’s Identity Card and the original letter of allotment. 5. The Defendant further submits that the Third Party is in violation of the land sale agreement that was produced as **Exhibit D1** and he now invokes clauses E and H of the said land sale agreement. 6. It is his submissions that the said clauses provide that the vendor would indemnify the purchaser for any loss arising from want of good title and any party in breach of the land sale agreement would pay liquidated damages of Kshs. 280,000/= 7. It is also the Defendant’s submissions that under clause B of the agreement (**Exhibit D1**), the Third Party acknowledged receipt of Kshs. 2,000,000/= which he now seeks to be refunded with interest from the date of completion which was 7th May, 2013 or 4th March, 2013 when the agreement was executed. 8. The Defendant relies on Malindi Civil Appeal No E013 of 2022 (sic) and urges the Court to allow the Counterclaim as prayed. **The Third Party’s Submissions** 1. The Third Party submits on the following issues; 1. ***Whether the Third Party did sell or purport to sell land to the Defendant. (sic)*** 2. ***Whether the alleged sale agreement dated 7th May, 2013 is valid under Section 3(3) of the Law of Contract Act.*** 3. ***Whether the Third Party is a proper party to the suit.*** 2. On the first issue, the Third Party submits that he has never been in possession of the suit parcel of land and neither has he ever acted as an agent of the original allotee of the land. 3. The Third Party also submits that the Defendant’s claim that he acted on behalf of the allottee is unfounded and not supported by any documentary evidence. 4. The Third Party further submits that agency cannot be presumed and in the present suit, agency was not proved. 5. It is the Third Party’s submissions that he did not receive any consideration and he relies on the judicial decisions of **Kariuki vs Kariuki & another [2022]eKLR** and **Lasoi v Cheruiyot [2024]eKLR** in support of his submissions. 6. It is also the Third Party’s submissions that the agreement produced by the Defendant created more doubt and he will suffer injustice, if the Court relies on it and make a finding that he received the purchase price. 7. It is further the Third Party’s submissions that a number of questions remain unanswered; First one is whether an ordinary person would seek the services of a lawyer and purchase land from a person representing himself as an agent of the vendor without the agency agreement. 8. Second one is whether there was a coincidence that the terms of the agreement produced as **Exhibit P1** were the same as the terms of the agreement produced as **Exhibit D1**. 9. Third question is why there were attestation issues on the agreement produced as **Exhibit D1** and whether **DW3** was a reliable witness. 10. The Third party submits that there are queries on whether he signed the land sale agreement dated 12th March, 2013 (**Exhibit D1**) and why the Defendant did not seek to transfer the suit parcel of land to his name and/or seek cancellation of the Plaintiff’s title. 11. On the second issue, the Third Party relies on **Section 3** of the Law of Contract Act, **Sections 70, 107, 108** and **109** of the Evidence Act and submits that since he denied signing the land sale agreement, the Defendant ought to have produced cogent evidence as proof that he executed the said land sale agreement. 12. It is the Third Party’s submissions that the Defendant did not produce evidence from Forensic Document Examination Experts to prove that he indeed signed the land sale agreement. 1. It is also the Third Party’s submissions that the said land sale agreement (**Exhibit D1**) cannot be relied on as the Defendant averred in his Amended Statement of Defence and Counterclaim that the agreement was dated 7th February, 2013 but during the hearing, it was discovered that it was undated and it had a contested advocate’s stamp bearing the date 12th March, 2013. 1. The Third Party relies on the judicial decision of **Jane Awuor Ondiege vs Malumbo & Others [2020]eKLR** and submits that the agreement dated 7th May, 2013 is a forgery and cannot be relied upon. 2. On the third issue, the Third Party relies on the judicial decision of **Mohammed & Sons vs United Millers [2020] eKLR** and submits that there is no privity of contract between him and the Defendant and that he played no role in the conclusion of the agreement between the parties. 3. The Third Party concludes his submissions by urging the Court to dismiss the Counterclaim with costs. **ANALYSIS AND DETERMINATION.** 1. After considering the pleadings, the evidence adduced by the Plaintiff, Defendant, Third Party, their respective witnesses and submissions, it is my view that the following issues arise for determination; 1. ***Whether the Defendant trespassed onto land parcel No. Kericho/Municipality Block 4/634.*** 2. ***Whether the Third Party fraudulently sold land parcel No. Kericho/Municipality Block 4/634 to the Defendant.*** 3. ***Whether the Defendant paid the Third Party Kshs. 2,000,000/=.*** 4. ***Whether the prayers sought in the Plaint should be granted.*** 5. ***Whether the prayers sought in the Amended Statement of Defence and Counterclaim should be granted.*** 6. ***Who should bear the costs of the suit.*** **Summary of Evidence and Documents.** 1. I shall start by briefly summarizing the evidence of the parties herein and the documents produced either is support of the claim or in opposition to it. 2. It is the Plaintiff’s case that on 7th February, 2013, he purchased Plot No. 10 Kericho Municipality from **Solomon Kipngetich Bett**. 3. It is also the Plaintiff’s case that Plot No. 10 Kericho Municipality was later registered as **Kericho/Municipality Block 4/634.** 4. It is further the Plaintiff’s case that sometime in September, 2016, the Defendant trespassed onto the suit parcel of land and started grazing his livestock. 5. It is the Plaintiff’s case that the Defendant caused his brother to construct structures on the suit parcel of land. 6. It is also the Plaintiff’s case that the Defendant’s acts of trespass deprived him off the use and possession of the suit parcel of land. 7. In support of his case, the Plaintiff produced a land sale agreement dated 7th February, 2013 as **Exhibit P1**. He set out the contents of the said land sale agreement in great detail when he gave evidence. 8. A copy of a Certificate of Lease of land parcel No. **Kericho/Municipality Block 4/634** was produced as **Exhibit P2**. The Certificate of Lease was issued on 29th September, 2016 to **Paul Koech**. It shows that the land measures 0.0800 Ha. The lease is for a term of 99 years from 1st June, 2012. 9. A copy of a Certificate of Search dated 29th September, 2016 was produced as **Exhibit P3.** It shows that land parcel No. **Kericho/Municipality Block 4/634** was registered in the name of Paul Koech on 29th September, 2016 and he was issued with a Certificate of lease on the same day. 10. A copy of a Demand Notice issued by the County Government of Kericho was produced as **Exhibit P4**. It demands for the payment of annual rates of Kshs. 5,137/= together with an accumulated penalty of Kshs. 1,027/= making the total sum due to be Kshs. 6,164/=. 11. The Defendant’s case on the other hand is that he purchased land parcel No. Kericho/Municipality Block 4/634 from the Third Party who was selling it on behalf of **Solomon K. Bett.** 12. It is also the Defendant’s case that after purchase, he took possession of the suit parcel of land and constructed temporary structures on it. 13. It is further the Defendant’s case that he was in peaceful possession of the suit parcel of land until 14th October, 2016 when the Plaintiff through his agents evicted him from the land. 14. It is the Defendant’s case that he paid the Third Party Kshs. 2,000,000/= as part of the purchase price for the suit parcel of land. 15. It is also the Defendant’s case that the Third Party misrepresented himself as an agent of **Solomon K. Bett** and he seeks in his counterclaim that he be refunded Kshs. 2,000,000/= that he paid to the Third Party. 16. The Defendant produced a copy of an undated land sale agreement as **Exhibit D1**. The agreement is between **Simon Too Koech** (Vendor) and **Kipkoech Mutai** (Purchaser). The agreement is for the purchase of Uns. Residential Plot No. 10 Kericho Municipality at a consideration of Kshs. 2,800,000/=. The terms of the said agreement are that the completion date was to be on 7th May, 2013 and the purchaser was to initially pay Kshs. 2,000,000/=. The balance of the purchase price was to be paid upon transfer. The agreement is signed by the vendor and purchaser and bears the stamp of Orina Erastus Menge Advocate. The stamp is dated 12th May, 2013. 17. OB No. 28/15/10/2016 issued on 15th October, 2016 was produced as **Exhibit D2**. The OB was issued after a report of malicious damage was made at 13:55 hrs. 18. A bundle of colored photographs were produced as **Exhibit D3 (a), (b), (c)** and **(d).** They arephotographs of what appears to be demolished structures that are made of timber and iron sheets. **Exhibit D3 (c)** is a photograph of a timber structure, an iron sheets structure and a mixture of iron sheets and timber sprawling across a yard. 19. A letter of offer dated 26th February, 2013 from Diamond Trust Bank to **Kipkoech** **Robert Mutai** was produced as **Exhibit D4**. The reference of the letter is “*Term Loan of Kshs.1,000,000/=* *(Kenya Shillings One Million Only)”.* The Letter of Offer states that a loan of Kshs. 1,000,000/= was to be advanced to **Kipkoech Robert Mutai** to finance the purchase of Uns. Residential Plot No. 10 Kericho Municipality from **Simon Too Koech**. The security of the loan facility is provided for under Clause 6 of the Letter of Offer which states that a charge was to be registered on land parcel No. **Kericho/Municipality Block 1/267** Kericho registered in the name of **Paul Koech** together with a personal guarantee of **Paul Koech**. 20. The Letter of Offer is signed by **Kennedy O. Nyakomitta** General manager, **M.G Jayaraman**, Asst. General Manager, **Kipkoech R. Mutai**, **Paul Koech** and **Irene Koech**. 21. A letter of allotment dated 18th June, 2025 was produced as **Exhibit D5.** The subject of the letter is “*UNS. Residential Plot No. 10- Kericho Municipality”.* The letter of allotment is issued by **P.K Kahuho**, for the Commissioner of Lands to **Solomon K. Bett**. The letter of allotment states that the said plot measures 0.1 ha and is for a term of 99 years from 1st June, 2012. He was required to pay Kshs. 1,800/= within a period of thirty days failure to which the offer would lapsed. 22. The letter of allotment is copied to; 1. ***P/S Ministry of Lands, Nairobi*** 2. ***The Director of Surveys, Nairobi.*** 3. ***The Town Clerk – Kericho*** 4. ***The Clerk to the Council, County Council of (sic)*** 5. ***The District Commissioner, Kericho*** 6. ***The Director Physical Planning Nairobi*** 7. ***District Land Officer, Kericho*** 8. ***O/C Land Rents*** 9. ***Rates Assistant*** 10. ***The Accountant*** 11. ***O/C Records*** 12. ***Senior Plan Records Officer*** 13. ***Plot File*** 23. Attached to the Letter of Allotment is a Part Development Plan Departmental Reference No. R22/2011/03 prepared by **F.O Owino,** certified by **Augustine K. Masinde** and approved by **James A. Orengo** on 24th May, 2012. 24. A copy of **Solomon Kipngeno Bett’s** Identity Card is also attached to the Letter of Offer. It is Identity Card No. 22361375 and it shows that he was born in Kericho and was issued with the Identity Card on 19th July, 2000 in Ainamoi. 25. A Kenya Revenue Authority Stamp Duty Declaration, Assessment & Pay-In-Slip dated 7th January, 2016 was produced as **Exhibit D6**. Stamp duty was accessed at Kshs. 240 and it has the stamp of C.M Ayienda\*266. 26. It is the Third Party’s case that he was one of the persons who witnessed **Solomon Bett** selling the suit parcel of land to the Plaintiff. 27. The Third Party denies that he sold the suit parcel of land to the Defendant and also denied that he signed the land sale agreement produced as **Exhibit D1**. 28. The Third Party did not produce any documents in his defence. **A. Whether the Defendant trespassed onto land parcel No. Kericho/Municipality Block 4/634.** 1. It is not in dispute that the Plaintiff is the registered owner of land parcel No. **Kericho/Municipality Block 4/634.** 2. It is also not in dispute that sometime in 2016, the Defendant took possession of the suit parcel of land. 3. What is in dispute is whether the Defendant trespassed onto the suit parcel of land. 4. The Plaintiff testified that the Defendant trespassed onto the suit parcel of land in September, 2016 and asked his (Plaintiff’s) employees to vacate it. 5. The Plaintiff also testified that the Defendant grazed his cattle and put up structures on the land through his brother. 6. The Plaintiff further testified that the Defendant grazed his cows for a period of two months and upon cross examination confirmed, that he demolished the structures that were constructed on the suit parcel of land. 7. It was the Defendant’s evidence that he purchased the suit parcel of land from the Third Party who was acting as an agent of the allottee of the land one **Solomon Koech**. 8. It was also his evidence that after he paid Kshs,2,000,000/= to the Third Party, which was part of the purchase price he took possession of the suit parcel of land. 9. It was further his evidence that he moved his cattle to the land and constructed temporary structures. 10. He testified that in October, 2016, he was evicted from the land and his structures demolished. 11. The Plaintiff produced a copy of the Certificate of Lease for land parcel No. **Kericho Municipality Block 4/634** (**Exhibit P4**) which shows that he was registered as the owner of the said parcel of land on 29th September, 2016. 12. **Section 24** of the Land Registration Act provides as follows; ***“Subject to this Act—*** 1. ***the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and*** 2. ***the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.”*** 3. **Section 25** of the Land Registration Act provides as follows; ***“(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of Court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—*** 1. ***to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and*** 2. ***to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.*** ***(2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.*** 1. Halsbury’s law of England 5th edition, Volume 97 at page 465 paragraph 563 defines trespass as follows: ***“A person trespasses upon land if he wrongfully sets foot on it, rides or drives over it, or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or it, or if he erects or suffers to continue on his own land anything which invades the air space of another. He also commits a trespass to land if , having entered lawfully, he unlawfully remains after his authority to be there expires.*** (Emphasis mine) 1. **Section 3 (1)** of the Trespass Act, Cap 294 provides that: ***“Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.”*** (Emphasis mine) 1. Regardless of the circumstances under which the Defendant alleged to have taken possession of the suit parcel of land, it is evident that he set foot onto the suit parcel without the consent of the Plaintiff, evicted the Plaintiff’s workers, erected temporary structures and grazed his animals in it. All these happened before the Plaintiff evicted him in October of the year 2016. 2. These acts complained of by the Plaintiff and attributed to the Defendant are acts of trespass and I find that the Defendant trespassed onto land parcel No.**Kericho/Municipality Block 4/634.** **B. Whether the Third Party fraudulently sold land parcel No. Kericho/Municipality Block 4/634 to the Defendant.** 1. It is the Defendant’s case that he purchased unsurveyed Plot No. 10 Kericho Municipality from **Simon Too Koech,** the Third Party on 12th March, 2013. 2. It is also the Defendant’s case that the Third Party told him that he had authority of **Solomon Bett**, the allotee of the said plot to sell it. 3. It is further the Defendant’s case that they agreed that he would purchase the suit parcel of land for Kshs. 2,800,000/=. 4. It is the Defendant’s case that he paid the Third Party Kshs.2,000,000/= on 12th March, 2013. 5. It is also the Defendant’s case that he thereafter took possession of the suit parcel of land before he was evicted by the Plaintiff in October, 2016. 6. It is further the Defendant’s case that Plot No. 10 Kericho Municipality was registered as Kericho Municipality Block 4/634. 7. It is the Defendant’s case that when he tried to get in touch with **Solomon Bett** he was not able to. 8. It is also the Defendant’s case that the land was later registered in the name of the Plaintiff and he now seeks that the Third Party refunds the Kshs. 2,000,000/= that he (the Third Party) received on account of the fraudulent sale. 9. The Third Party on the other hand denies that he ever sold the suit parcel of land and/or signed the land sale agreement produced as **Exhibit D1**. 10. The Third Party also alleged that the signature as appears on **Exhibit D1** is forged. 1. Fraud has been defined in Black’s Law Dictionary 11th Edition as; ***“A knowing misrepresentation or knowing concealment of material facts made to induce another to act to his or her detriment.”*** 1. The Court of Appeal in **Vijay Morjaria vs Nansingh, Madhusingh Darbar & another [2000] eKLR** held that: ***“It is well established that fraud must be specifically pleaded and the particulars of fraud alleged must be stated on the face of the pleading. The act alleged to be fraudulent must of course be set out and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved and it is not allowable to leave fraud to be inferred from the facts.”*** (Emphasis mine) 1. In his counterclaim, the Defendant set out particulars of fraud against the Third Party. They are as follows: ***“The Third Party (now Defendant) was fraudulent in that:*** 1. ***He sold land already purchased by the Defendant (now Plaintiff) to the Plaintiff despite having received consideration from the Defendant.*** 2. ***Failed to disclose to the original allotee of the land that the suit property had already been purchased by the Defendant (now Plaintiff).*** 3. ***Purported to execute a further sale agreement conveying the suit property to the Plaintiff (now Defendant) when he knew very well that the Plaintiff had already purchased it and had been put into its possession.*** 4. The first particular of fraud against the Third Party is that he (Third Party) sold to the Plaintiff land that the Defendant had purchased. 5. A copy of a land sale agreement dated 7th February, 2013 was produced as **Exhibit P1**. The agreement is between **Solomon Kipngeno Bett** (vendor) and **Paul Koech** (Purchaser). The agreement is for the sale of uns. Residential plot No. 10 Kericho Municipality at a consideration of Kshs. 2,800,000/=. The Third Party signed the agreement as a witness. 6. From the land sale agreement, it is evident that the Plaintiff purchased the suit parcel of land from **Solomon Kipngeno Bett** who had been allotted the said plot as per the allotment letter produced as **Exhibit D5**. 7. From the evidence tendered, it is evident that the Plaintiff purchased the suit parcel of land from **Solomon Kipngeno Bett** the allottee of the suit parcel of land. 8. No evidence was adduced to show that the Third Party sold the suit parcel of land to the Plaintiff. 9. The second particular of fraud against the Third Party is that he failed to disclose to the original allottee of the land that he (Defendant) had already purchased the suit parcel of land. 10. The third particular of fraud against the Third Party is that he executed a further sale agreement conveying the suit parcel of land to the Plaintiff and yet he (Defendant) had purchased the land and taken possession. 11. As stated, the Plaintiff purchased the suit parcel of land from **Solomon Kipngeno Bett** and the Third Party was a witness. 12. From the land sale agreement produced as **Exhibit P1**, it is evident that the Plaintiff purchased the suit parcel of land on 7th February, 2013 while the Defendant’s alleged purchase was on 12th March, 2013. It is apparent, therefore, that the Plaintiff purchased the suit parcel of land before the Defendant and the assertion by the Defendant that the Third Party should have disclosed to the original allottee of the land that he (Defendant) had already purchased the suit parcel of land was practically impossible not forgetting to mention that the Third Party has denied that he entered into any agreement with the Defendant and has also denied that the signature on the agreement that he purportedly entered with the Defendant belongs to him. 13. The evidence of a forensic handwriting examiner would have been useful in establishing if indeed the signature that appears on **Exhibit D1** (Land sale agreement) belongs to the Third Party or not. Regrettably this evidence of a handwriting expert was not made available to the court. 14. Consequently, I find that the Defendant has failed to prove the particulars of fraud against the Third Party. **C. Whether the Defendant paid the Third Party Kshs. 2,000,000/=.** 1. The Defendant seeks that he be refunded Kshs. 2,000,000/= that he allegedly paid the Third Party. 2. In his evidence, the Defendant testified that on 12th March, 2013 he paid the Third Party Kshs. 2,000,000/= while they were at Diamond Trust Bank and that this payment happened in the presence of the Plaintiff. 3. The Third Party denied receiving the said sum of money and no evidence was adduced in support of the said allegation. 1. Section 107 of the Evidence Act provides as follows; ***“(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.*** ***(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”*** 1. **Section 108** of the Evidence Act provides as follows; ***“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”*** 1. **Section 109** of the Evidence Act provides as follows; ***“The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”*** 1. The Court of Appeal in **Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] eKLR** held as follows; ***“We have carefully considered the judgement of the superior Court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail. It also follows that a Court should not make any findings on unpleaded matters or grant any relief which is not sought by a party in the pleadings.”*** (Emphasis mine) 1. From the totality of the evidence adduced in the present suit, I find that the Defendant failed to prove that he paid the Kshs. 2,000,000/= to the Third Party. **D. Whether the prayers sought in the Plaint should be granted.** 1. The prayers sought in the Plaint have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder; 2. ***An order of permanent injunction to issue against the Defendant from entering, trespassing onto, grazing livestock, interfering with and/or in any manner whatsoever dealing with Kericho/Municipality Block 4/634.*** 3. ***Damages for trespass and mesne profits for the wrongful use to be assessed by the Honourable Court.*** 4. ***Interest in (C) above.*** 5. ***Costs of this suit and interests (sic).*** 6. Given my finding on issue (**A**) above, nothing is easier than to grant orders of permanent injunction against the Defendant as sought under prayer (**a**) of the plaint. 1. In prayer (**b**) of the plaint, the Plaintiff seeks damages for trespass and mesne profits. I will first address the issue whether the Plaintiff should be awarded damages for trespass. 2. The Court of Appeal in **Kenya Power & Lighting Company Limited v Fleetwood Enterprises Limited [2017] KECA 358 (KLR)** held as follows; ***“It is trite law and as correctly submitted by counsel for the respondent that trespass to land is an actionable tort per se and proof of damage is not necessary or required. In other words, where trespass is proved as in this case, the affected party such as the respondent need not prove that it suffered any damage or loss as a result so as to be awarded damages. The Court is under the circumstances bound to award damages, of course depending on the facts of each case. See Simiyu v Sinino [1985] eKLR and Obadiah K. Macharia v Kenya Power and Lighting Company Limited.”*** (Emphasis mine) 1. In the above cited judicial decision, the Court of Appeal held that once trespass is proved, the Court is bound to award damages. 2. In **Prishar Wambui Kaguura v Peter Waithaka Kaguura & 2 others [2018] eKLR,** the Court awarded the Plaintiff therein general damages of Kshs. 500,000/= for trespass. This was after the Defendant trespassed and remained in occupation of the Plaintiff’s parcel of land for a period of about two to three years. 1. Taking into consideration the circumstances of this suit and the fact that the Defendant trespassed onto the Plaintiff’s land for two months before the Plaintiff evicted him, I find that a sum of Kshs. 100,000/= (One hundred Thousand) as general damages for trespass is adequate. 2. In **Mkalla v Kikopi & another (Environment & Land Case 83 of 2016) [2022] KEELC 3109 (KLR) (28 June 2022) (Judgment)** the Court held as follows; ***“On the issue whether the plaintiff is entitled to mesne profits, mesne profits are special damages which must be specifically pleaded and proved. The plaintiff did not specifically lead any evidence to prove mesne profits, therefore this limb of his claim fails.”*** 1. In the above cited judicial decision, the Court held that mesne profits are special damages which must be specifically pleaded and proved. 2. In the present suit, the Plaintiff neither pleaded nor proved mesne profits and the said prayer therefore fails. **E. Whether the prayers sought in the Amended Statement of Defence and Counterclaim should be granted.** 1. The prayers sought in the Amended Statement of Defence and Counterclaim have been set down in the preceding paragraphs but I will nonetheless replicate them as hereunder; 1. ***A refund of Kshs. 2,000,000/= being part payment of the purchase price paid by the Defendant (now Plaintiff) to the Third Party (now Defendant) towards acquisition of the suit property.*** 2. ***Costs of this suit and interest of (a) and (b) above.*** 2. Given my finding on issues (**B**) and (**C**) above, the prayers sought in the Counterclaim cannot be granted. **F. Who should bear the costs of the suit.** 1. The general rule is that costs shall follow the event. This in accordance with the provisions of **Section 27** of the **Civil Procedure Act (Cap. 21).** 2. A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. **DISPOSITION.** 1. In the result, I find and order as follows; 1. ***A permanent injunction is hereby issued restraining the Defendant from entering, trespassing, grazing livestock or dealing in any manner with land parcel No. Kericho/Municipality Block 4/634.*** 2. ***The Defendant shall pay to the Plaintiff a sum of Kshs. 100,000 ( hundred thousand) as General damages for trespass.*** 3. ***The Defendant’s counterclaim is hereby dismissed.*** 4. ***The Plaintiff and the Third Party shall have costs of the suit.*** 2. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 21ST DAY OF MAY, 2026.** **L. A. OMOLLO** **JUDGE.** ***In the presence of:* -** **Mr. Kirui Evanson for J.K. Mitei for the Plaintiff.** **Mr. Caleb Koech for the Defendant.** **Mr. Mutai for the 3rd Party** **Court Assistant; Mr. Joseph Makori.**