https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4690

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT VOI** **ELC CASE NO. E007 OF 2025** **(FORMERLY MOMBASA ELC CASE NO. 168 OF 2021)** **SASENYI MULTIPURPOSE CO-OPERATIVE SOCIETY LIMITED**………………………………………………………….**PLAINTIFF** **VERSUS** **RUKINGA RANCHING COMPANY LIMITED** **DEFENDANT** **JUDGMENT** 1. By a Plaint dated 24th August 2021 and initially filed at the Environment and Land Court at Mombasa as ELC Case No. 168 of 2021, the Plaintiff, **Sasenyi Multipurpose Co-operative Society Limited,** sued the Defendant, **Rukinga Ranching Company Limited,** in respect of the parcel of land known as L.R. No. 12263/2 measuring approximately 5,000 acres situated within Taita Taveta County (hereinafter referred to as "the suit property"). The suit property is a portion of the Defendant’s larger parcel of land known as L.R. No. 12263 which was held by the Defendant under a Certificate of Title Grant C.R. No. 15284. 2. The gravamen of the Plaintiff’s claim is that pursuant to an Agreement for Sale dated 8th April 1998, the Defendant sold to the Plaintiff a leasehold interest in the suit property at a consideration of Kshs. 4,000,000/= which was paid in full, but that upon completion the Plaintiff was issued with a Certificate of Title C.R. No. 35555 dated 30th November 2001 conferring a freehold tenure which was at variance with the leasehold tenure held by the Defendant and which was the subject of the sale. The said erroneous title has never been rectified to date and the Plaintiff has consequently never obtained a proper title to the suit property notwithstanding having paid the full purchase price over two decades ago. The Plaintiff therefore sought orders compelling the Defendant to procure and avail to it a proper leasehold title to the suit property, compensation in respect of carbon credit income allegedly earned by the Defendant, together with costs of the suit. 3. The suit has had a long and chequered procedural history. It was initially struck out by Justice Matheka vide a Ruling delivered on 7th December 2021 upon a Preliminary Objection raised by the Defendant. It was subsequently reinstated and thereafter transferred to this Court by Justice Y. M. Angima vide orders issued on 3rd April 2025 on account of the suit property being situated within Taita Taveta County. Upon transfer, the matter was referred to Court Annexed Mediation which was unsuccessful. The parties also canvassed and compromised, by way of a consent dated 14th October 2025 which was adopted as an order of this Court on 15th October 2025, two interlocutory applications relating to execution of costs awarded in earlier appellate proceedings. The suit thereafter proceeded to full trial before me on 6th May 2026 when the Plaintiff called one witness and the Defendant called three witnesses. **The Plaintiff’s case** 1. The Plaintiff’s case as pleaded is that the Defendant sold the suit property to it in 1998, that it paid the full purchase price and expected the Defendant to transfer a good and proper title to it. A transfer was undertaken but it turned out that the title procured and issued to the Plaintiff was a freehold title which was at variance with the Defendant’s own title which was a leasehold. The said title was returned for rectification and issuance of a proper leasehold title, which has never been done to date. 2. At the trial, the Plaintiff called **PW1 Richard Fabian Tolle,** its Chairman, who adopted his witness statement dated 24th August 2021 as his evidence in chief and produced the documents in the Plaintiff’s List of Documents dated 24th June 2021 as PExhibit 1 to 10. A further list and bundle of documents filed on 26th May 2025 was expunged from the record at the trial upon objection by the Defendant on grounds of non-service, the same having been abandoned by the Plaintiff’s Counsel. 3. It was PW1’s evidence that the Plaintiff paid Kshs. 4,000,000/= for the purchase of the suit property in two instalments of Kshs. 2,000,000/= each vide banker’s cheques paid directly to the Defendant, and further paid conveyancing fees. The Defendant was to give the Plaintiff a title but the title issued had mistakes in that it was a freehold whereas the parties had transacted over a leasehold. The title was obtained from the Defendant’s Advocates, Messrs Kaplan & Stratton Advocates, and was returned to the said Advocates for rectification but the mistake was never rectified and the Plaintiff has never received a proper title to date. He testified that the Plaintiff has about 500 fully paid up members and that it has been following up on the issue for about 20 years. He referred to a letter authored by Mr. Michael Korchinsky, the Defendant’s Chairman, in which the Defendant admitted that the title issued to the Plaintiff was incorrect and that a process had been initiated to correct the same. 4. PW1 further testified that the Plaintiff has never gotten into the suit property and that the entire block is bushy. No subdivision has been undertaken on the ground and the Plaintiff’s surveyors were unable to undertake the same for want of the title deed, having only undertaken preliminary desk works using a copy of the deed plan. He testified that the Defendant is engaged in carbon credit trade and cattle rearing and that the Plaintiff also sought mesne profits from the sale of carbon at Kshs. 375,000/= per month from October 2019, it being his evidence that when the Plaintiff followed up on the issue it was informed that it required a title before it could be paid for its carbon. 5. On cross-examination by Mr. Okoth, Learned Counsel for the Defendant, PW1 stated that he did not remember whether the Plaintiff was given any documents before completion of the transaction. He was referred to correspondence in the parties’ bundles including letters indicating that Mr. Oddiaga Advocate had agreed to follow up on the rectification of the title. He confirmed that the Plaintiff made an application for a leasehold title and was told it was not possible, and that the Plaintiff had written to the National Land Commission as a follow up action. He acknowledged the existence of proceedings relating to a provisional certificate of title. He confirmed that the Plaintiff does not have any agreement on carbon credit and stated that the land is a forest and that the companies dealing with carbon credit still know that the land belongs to the Defendant. 6. On re-examination, PW1 clarified that the Plaintiff did not have Counsel during the purchase and that Mr. Oddiaga only came in later to witness the agreement and thereafter when the title had a problem. It was his evidence that the Defendant had the obligation to give the Plaintiff the title and to rectify any errors thereon, that no conversion of tenure was ever done and that the Plaintiff needed the title before settling its members. **The Defendant’s case** 1. The Defendant’s case as pleaded and as presented at the trial is that whereas it is admitted that there was an Agreement for Sale between the parties in respect of the suit property and that the Plaintiff paid the purchase price in full, the Defendant discharged its obligations as a vendor by executing and issuing all the requisite completion documents, and that it was the duty of the Plaintiff, by itself or through its Advocates, to procure registration and issuance of the title. The Defendant maintained that the erroneous freehold title was procured through a registration process undertaken by the Plaintiff’s own Advocate and that the Defendant bears no responsibility for the error, having at all times been open and willing to assist the Plaintiff in rectifying the same. 2. **DW1 Wabosha Kamattah,** the Secretary to the Defendant’s Board of Directors, adopted her witness statement dated 19th February 2026 as her evidence in chief and produced the documents in the Defendant’s bundle dated 19th February 2026 as DExhibit 1 to 36. It was her evidence that the Plaintiff was given the complete documents together with the title, that the Defendant does not issue titles and that it was not its duty to rectify the error, the Plaintiff having been at liberty to pursue the Lands Office. She also testified that the Plaintiff had at one point procured a provisional certificate of title which the Defendant successfully moved the Court to cancel. 3. On cross-examination by Mr. Oddiaga, Learned Counsel for the Plaintiff, DW1 made a number of notable concessions. She confirmed that the Defendant’s tenure is leasehold; that from the Certificate of Title the initial term was 20 years while the transfer document indicated a term of 45 years from 1971; that the Sale Agreement was drafted by Messrs Kaplan & Stratton Advocates and does not bear the name of Messrs Stephen Oddiaga & Company Advocates; that whereas the completion documents could have been forwarded, she had not brought any evidence to confirm that they were forwarded; and that there was no evidence that the lease had been extended as at the time of the Sale Agreement. She further confirmed that the Defendant procured a new lease of 65 years from 2019 which was issued in 2020 in respect of the Defendant’s retained portion alone, and that the said new lease had not been availed to the Court, which she attributed to an oversight. Significantly, she stated that the Defendant’s Advocate signed the transfer and that "it was our responsibility to ensure good title is obtained." She confirmed her awareness that the Defendant’s Chairman, Mr. Michael Korchinsky, had stated that the title issued to the Plaintiff was bad. She also confirmed that there was no separate lease in the name of the Defendant in respect of the 5,000 acres that was being sold to the Plaintiff, and that there is no clause in the Agreement protecting the Plaintiff. On the issue of carbon, she testified that the Defendant has conservancies with wildlife and sells carbon credit, that the idea of carbon credit was not there at the time of the sale and that the same was never discussed with the Plaintiff. 4. On re-examination, DW1 referred to the completion documents in the Defendant’s bundle and to the transfer at page 10 thereof which indicated a lease term of 45 years from 1st January 1971. She maintained that the purchaser was to undertake due diligence, that the Defendant provided all the required documents and that Mr. Oddiaga Advocate stayed with the original title for 10 months and returned the same without giving any update. She stated that the Defendant is not using the Plaintiff’s land and is not collecting any money therefrom. 5. **DW2 Cara Louise May Braund,** a Conservation Manager with Wildlife Works, adopted her statement dated 19th February 2026 as her evidence in chief. It was her evidence that Wildlife Works is a project developer for reducing emissions, that it is not using the Plaintiff’s land and is not earning from the Plaintiff’s plot, the project being on the Defendant’s retained parcel and not on L.R. No. 12263/2 which is the Plaintiff’s portion. On cross-examination she confirmed that Wildlife Works is not a party to this case, that its agreement with the Defendant was signed in 2009 and has not been produced in Court, that payments are made to the Defendant and commenced in 2011 with the last payment having been made in February 2026, and that she did not have the exact figures of the payments made to the Defendant since the commencement of the project. On re-examination she reiterated that the project is on L.R. No. 12263 and not on L.R. No. 12263/2 and referred to a letter dated 4th May 2025 at page 47 of the Defendant’s bundle in confirmation that Wildlife Works is not on the Plaintiff’s land. 6. **DW3 Robert Bogonko,** a Conservancy Administrative Manager of the Defendant, adopted his statement dated 19th February 2026 as his evidence in chief. He testified that the Plaintiff paid Kshs. 4,000,000/= to purchase the lease and Kshs. 85,000/= for the transfer which was paid to the Defendant’s Advocates, Messrs Kaplan & Stratton, that Mr. Oddiaga witnessed the Sale Agreement and that the Defendant’s role was limited to providing the necessary documents to the Plaintiff to enable the buyer process the title. He confirmed that the title issued did not match the mother title and was erroneous, but maintained that the Defendant has always been willing to assist the Plaintiff to get a title and even released its original title for the process, which title Mr. Oddiaga Advocate held for 10 months. On cross-examination he conceded that the Defendant did not provide a lease for the 5,000 acres and that there has never been a lease for 5,000 acres. On re-examination he stated that the subdivided portion was to go to the purchaser, that the transfer of lease at page 10 of the Defendant’s bundle was to facilitate the Plaintiff to get its lease, that the firm of Messrs Stephen Oddiaga & Company Advocates took up the matter for the Plaintiff and the documents were forwarded to them, and that the Plaintiff had a duty to rectify the mother title. **The Plaintiff’s submissions** 1. At the close of the hearing, the Court directed the parties to file written submissions. The Plaintiff filed its written submissions dated 5th June 2026 through Messrs Stephen Oddiaga & Company Advocates. It was submitted that it is not in dispute that there was a sale and that the Plaintiff paid the full purchase price, and that the tenure held by the Defendant was and remains leasehold. It was submitted that the Defendant could only transfer a leasehold title to the Plaintiff and that this could only happen after subdividing the land to create two leasehold titles followed by a transfer of the lease to the Plaintiff, and that without a leasehold title for the portion it was not possible for the Defendant to purport to transfer land to the Plaintiff. Counsel invoked the maxim ***nemo dat quod non habet*** and submitted that the Defendant, having failed to create and procure a legitimate title of what it was selling, could not transfer the same. Reliance was placed on the letter authored by the Defendant’s Chairman, Mr. Michael Korchinsky, in which the Defendant’s Chairman admitted that the title issued was incorrect because it granted freehold, and that a process was initiated to correct the Sasenyi title. 2. Counsel further submitted that the consents and approvals produced in Court were all for purposes of subdivision and not transfer, that the subdivision was only done on paper and there was no evidence that the same was ever registered, and that the obligation to give a good title never shifted from the Defendant. On the issue of representation, it was submitted that the conveyancing was undertaken by the Defendant’s Advocates who were paid by the Plaintiff for the work, and that the involvement of Messrs Stephen Oddiaga & Company Advocates was limited to witnessing the execution of the Agreement and to subsequent efforts at rectification. Counsel relied on **National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR** for the proposition that a court of law cannot rewrite a contract between the parties and that parties are bound by the terms of their contract, and on **Dakianga Distributors (K) Ltd v Kenya Seed Company Limited [2015] eKLR** for the proposition that parties are bound by their pleadings and cannot be allowed to depart therefrom. 3. On the carbon credit claim, it was submitted that it is not in dispute that the Defendant is making money by way of carbon credit, that the Plaintiff’s land is part of the Defendant’s larger parcel, that the Plaintiff has not been able to use its land after buying the same in 1998, that the Defendant did nothing to rectify the situation after noting the error and that the Plaintiff needs to be compensated so as to be brought at par with the Defendant, which can only be done by making the Plaintiff share in the proceeds received over the years from the carbon trade. The Plaintiff urged the Court to allow the suit as prayed with costs. **The Defendant’s submissions** 1. The Defendant filed its written submissions dated 29th June 2026 through Messrs Ogo-Law Advocates and identified five issues for determination namely: whether the Defendant had a legitimate title to lease to the Plaintiff; whether the Defendant carried out its obligations as a seller; whether the Plaintiff has approached the Court with clean hands thus deserving the orders sought; whether the Plaintiff is entitled to any monetary benefits arising from the Defendant’s carbon project; and who should bear the costs of the suit. 2. On the first issue, Counsel submitted that at the time of the Agreement for Sale dated 8th April 1998 the Defendant held a valid and subsisting leasehold title under Grant C.R. No. 15284, the transfer document itself having recited that the vendor was the registered lessee from the Government for a period of 45 years from 1st January 1971, and that the interest sold was at all times a leasehold. On the second issue, Counsel submitted that the Defendant provided all the necessary completion documents in accordance with the Agreement and the Law Society of Kenya Conditions of Sale, that under Condition 8.5.1 thereof registration of the transfer is the duty of the purchaser and its Advocate, that the correspondence on record demonstrates that the Plaintiff’s Advocate undertook and concluded the registration which resulted in the erroneous freehold title, and that the Plaintiff’s Advocate thereafter took charge of the rectification process including holding the Defendant’s original Grant for 10 months without procuring rectification. 3. On the third issue, Counsel relied on **Mukuna v Mutahi [2023] KEELC 16868 (KLR)** and **Francis Munyoki Kilonzi & Another v Vincent Mutua Mutiso [2013] eKLR** and submitted that the Plaintiff has exhibited bad faith by writing to the National Land Commission seeking a freehold title, by procuring a provisional certificate of title over the Defendant’s entire parcel which had to be cancelled through Court proceedings, and by subdividing the suit property into approximately 500 plots while simultaneously pleading want of a valid title. 4. On the fourth issue, Counsel relied on **Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & Another [2015] KECA 784 (KLR)** and **Agricultural Finance Corporation v Lengetia Ltd [1985] KLR 765** on the doctrine of privity of contract and submitted that the carbon project is a contract between the Defendant and Wildlife Works Carbon LLC in respect of the Defendant’s retained land, that the Plaintiff is a stranger to the said contract and that no rights under the said carbon agreement accrue to the Plaintiff. Counsel further submitted that nature-based assets and credits are a fairly new concept introduced in approximately the last 10 years, that Kenya is in the process of creating proper laws and regulations to govern the sector, that at the time of the transaction over the suit property there was no mention of or reference to carbon credits and that the claim is an afterthought. It was additionally submitted that the Kasigau Corridor REDD+ Project is an avoided deforestation project and that the suit property, having been cleared and settled, could not form part of the project and could not accrue any credits or income. On costs, Counsel relied on Section 27 of the Civil Procedure Act, **Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd, Judicial Review Application No. 6 of 2014** and **Jane Wanjiku Wambu v Anthony Kigamba Hato & 3 Others [2018] eKLR** and urged the Court to dismiss the suit with costs and interest thereon. **Analysis and Determination** 1. I have carefully considered the pleadings, the evidence tendered at the trial, the exhibits produced, the rival written submissions and the authorities cited by the parties. In my considered view, the following four issues commend themselves for determination:- 2. **Whether the Defendant discharged its obligations as a vendor under the Agreement for Sale dated 8th April 1998;** 3. **Whether the Plaintiff is entitled to the orders sought in respect of the title to the suit property;** 4. **Whether the Plaintiff is entitled to compensation arising from the Defendant’s carbon credit project; and** 5. **Who should bear the costs of the suit?** ***Issue No. (i): Whether the Defendant discharged its obligations as a vendor under the Agreement for Sale dated 8th April 1998*** 1. It is prudent to begin by delineating the matters which are common ground between the parties. It is not in dispute that vide the Agreement for Sale dated 8th April 1998, the Defendant sold to the Plaintiff the suit property being L.R. No. 12263/2, a portion of the Defendant’s larger parcel L.R. No. 12263 held under Grant C.R. No. 15284. It is equally not in dispute that the interest sold was a leasehold interest, that the Plaintiff paid the full purchase price of Kshs. 4,000,000/= together with the requisite conveyancing fees, and that the title ultimately issued to the Plaintiff on 30th November 2001, being Certificate of Title C.R. No. 35555, conferred a freehold tenure which was at variance with both the interest sold and the tenure held by the Defendant. It is further common ground that the said erroneous title has never been rectified and that the Plaintiff holds no proper title to the suit property to date, some 28 years after the Agreement for Sale and after payment of the full purchase price. Indeed, the Defendant’s own Chairman, Mr. Michael Korchinsky, in correspondence produced before this Court, candidly acknowledged the position in the following terms:- ***"…It (the title) was incorrect because it granted freehold, which Paul Ndungu caught and Oddiaga and Larby both acknowledged and a process was initiated to correct the Sasenyi title."*** 1. What is contested is where the responsibility for this state of affairs lies. The Plaintiff contends that the obligation to convey a good title reposed on the Defendant as vendor and was never discharged. The Defendant contends that it discharged its obligations by availing the completion documents and that the erroneous registration and the failed rectification are attributable to the Plaintiff’s own Advocate. 2. The legal burden of proof lies on the Plaintiff pursuant to Sections 107 and 108 of the Evidence Act, Cap 80 to establish its claim on a balance of probabilities. The Court is also alive to the principle that parties are bound by the terms of their contract and by their pleadings as was held in **National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another (supra)** where the Court of Appeal stated that:- ***"A court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved."*** 1. The starting point is the nature of the interest that the Defendant held and purported to convey. The Defendant’s tenure over L.R. No. 12263 was a leasehold under Grant C.R. No. 15284. On the material placed before this Court, and going by the recitals in the registered transfer produced at page 10 of the Defendant’s bundle, the Defendant was the registered lessee from the Government for a term of 45 years from 1st January 1971. I am prepared to accept, as urged by the Defendant, that as at 8th April 1998 the Defendant held a valid and subsisting leasehold interest over the larger parcel L.R. No. 12263. To that limited extent, the Plaintiff’s contention that the Defendant had no title whatsoever at the time of sale is not borne out by the evidence. 2. However, that finding does not conclude the matter; indeed, it merely frames the real question. The interest sold to the Plaintiff was a leasehold interest in a portion of the Defendant’s land. As correctly submitted by the Plaintiff, the conveyance of a leasehold interest in a portion of a larger leasehold parcel necessarily required the subdivision of the mother title and the creation of a separate leasehold title for the portion sold, which title would then be transferred to the Plaintiff. It is only the Defendant, as the registered lessee of the mother title, that could procure that subdivision and the resultant separate title. On this, the Defendant’s own witnesses were candid. DW1 conceded on cross-examination that there was no lease in the name of the Defendant in respect of the 5,000 acres that was being sold to the Plaintiff. DW3 was even more emphatic and conceded that the Defendant did not provide a lease for the 5,000 acres and that there has never been a lease for 5,000 acres. The Plaintiff further submitted, without effective rebuttal, that the consents and approvals produced in Court were for purposes of subdivision and not transfer, and that there was no evidence that the subdivision was ever registered. 3. The consequence of the foregoing is inescapable. As at completion, there existed no registrable leasehold title for the suit property capable of being transferred to the Plaintiff. The venerable maxim ***nemo dat quod non habet***, which the Defendant itself invoked in its submissions, in the circumstances of this case cuts against the Defendant rather than in its favour. The Defendant could not confer upon the Plaintiff a freehold interest that it did not itself possess, and it equally could not confer a separate leasehold title over the portion sold when no such title had been brought into existence. The freehold Certificate of Title C.R. No. 35555 that emerged from the registration process was therefore not a mere clerical slip at the registry divorced from the parties’ contractual obligations. It was the direct product of an incomplete completion process in which the vendor had not placed itself in a position to pass the very interest it had sold. 4. The Defendant sought to deflect responsibility by invoking Condition 8.5.1 of the Law Society of Kenya Conditions of Sale, contending that registration of the transfer is the duty of the purchaser and its Advocate. That submission, with respect, conflates two distinct obligations. The purchaser’s duty to attend to registration presupposes that the vendor has furnished completion documents capable in law of passing the interest sold. Where, as here, the vendor’s title had not been subdivided and no separate leasehold title for the portion sold existed, no amount of diligence at the registration stage by the purchaser or its Advocate could have produced a proper leasehold title. The vendor’s fundamental obligation to deduce and convey a good title to the interest sold is antecedent to, and cannot be displaced by, the purchaser’s administrative duty to present documents for registration. 5. This conclusion is fortified by the Defendant’s own admissions at the trial. DW1, the Secretary to the Defendant’s Board, conceded on cross-examination that the Defendant’s Advocate signed the transfer and, significantly, that "it was our responsibility to ensure good title is obtained." She further confirmed her awareness that the Defendant’s Chairman had acknowledged that the title issued to the Plaintiff was bad. These admissions, emanating as they do from the Defendant’s own principal witness, are consistent with the correspondence of the Defendant’s Chairman and with the objective realities of the transaction, and I find them weighty. 6. I have also considered the Defendant’s contention that the Plaintiff’s Advocate took charge of the registration and subsequent rectification efforts, including holding the Defendant’s original Grant for a period of about 10 months without procuring rectification. The evidence on record, including the correspondence in the Defendant’s bundle, does indicate that the firm of Messrs Stephen Oddiaga & Company Advocates was involved in follow-up efforts towards rectification of the erroneous title. PW1 however clarified, and I accept, that the conveyancing itself was undertaken by Messrs Kaplan & Stratton Advocates who drafted the Agreement for Sale and to whom the Plaintiff paid the conveyancing and transfer fees, a fact confirmed by DW3 who testified that the Kshs. 85,000/= paid for the transfer was paid to Messrs Kaplan & Stratton. DW1 likewise confirmed that the Agreement was drafted by Messrs Kaplan & Stratton and does not bear the name of Messrs Stephen Oddiaga & Company Advocates. Whatever the extent of the subsequent involvement of the Plaintiff’s Advocate in the rectification efforts, such involvement could not, and did not, transfer to the Plaintiff the vendor’s primary contractual obligation to convey a good title. Rectification of the register could only yield a proper leasehold title if the underlying defect, namely the absence of a registered subdivision and a separate leasehold title in the Defendant’s name capable of transfer, was first cured; and the cure lay solely within the Defendant’s power as the registered proprietor of the mother title. 7. There is a further dimension that emerged at the trial which, in my view, is telling. DW1 confirmed that the Defendant procured a new lease for a term of 65 years from 2019, issued in 2020, in respect of the Defendant’s retained portion alone. The Defendant therefore attended to the regularization and renewal of its own residual interest while the Plaintiff’s portion, fully paid for since 1998, was left in abeyance. The said new lease was, by DW1’s own admission, not even availed to the Court. A vendor who has received the full purchase price and who proceeds to secure and renew its own title while the purchaser’s corresponding title remains unprocured for over two decades cannot be heard to say that it has discharged its obligations. 8. The upshot is that I find and hold that the Defendant did not discharge its obligations as a vendor under the Agreement for Sale dated 8th April 1998. The obligation to convey to the Plaintiff a good leasehold title to the suit property was fundamental to the Agreement, it remained undischarged, and it never shifted to the Plaintiff. ***Issue No. (ii): Whether the Plaintiff is entitled to the orders sought in respect of the title to the suit property*** 1. Having found that the Defendant breached its fundamental obligation as vendor, the question that follows is the appropriate relief. The Plaintiff’s primary prayer is for orders compelling the Defendant to procure and avail to it a proper leasehold title to the suit property. The Plaintiff paid the full purchase price 28 years ago. Its members, said to number about 500, have waited for a title for a generation. Equity looks on that as done which ought to be done, and this Court, in exercise of its jurisdiction under Section 13(7) of the Environment and Land Court Act, is enjoined to grant such reliefs as are appropriate to remedy the breach established. 2. Before doing so, I must address the Defendant’s contention that the Plaintiff approached this Court with unclean hands and is thereby disentitled from equitable relief. Three instances of alleged bad faith were cited: the Plaintiff’s letter to the National Land Commission seeking a freehold title; the Plaintiff’s procurement of a provisional certificate of title over the Defendant’s entire parcel L.R. No. 12263 which was cancelled through Court proceedings; and the alleged subdivision of the suit property into approximately 500 plots. 3. I have carefully considered these matters. The clean hands doctrine, as restated in **Mukuna v Mutahi (supra)**, denies equitable aid to a party whose predicament is of his own making. That is not this case. The Plaintiff’s predicament, namely being without a proper title 28 years after paying in full, is of the Defendant’s making, as found under Issue No. (i). The impugned conduct of the Plaintiff, viewed in context, comprises the flailing efforts of a frustrated purchaser attempting, over two decades, to extract from the system a title that its vendor had failed to deliver. The letter to the National Land Commission and the provisional certificate episode, while misconceived in their approach, occurred against the backdrop of the Defendant’s prolonged default and were in any event resolved; the proceedings show that the provisional certificate was cancelled. As for the alleged subdivision into 500 plots, the evidence was contradictory. PW1 testified that no subdivision has been done on the ground, that the entire block remains bushy and that the Plaintiff’s surveyors only undertook preliminary desk works; the Defendant on the other hand asserted that the suit property has been cleared and settled. No survey report, registry material or other cogent evidence was placed before the Court to establish an on-ground subdivision by the Plaintiff. In the circumstances, I am not persuaded that the Plaintiff’s conduct rises to the level that would disentitle it from the primary relief of receiving the very thing it contracted and paid for. To hold otherwise would be to permit the Defendant to profit from its own breach, which equity does not countenance. 4. I have also borne in mind the Defendant’s submission that the Plaintiff has remained in possession of the suit property. Whether or not that is so, and the evidence on possession was, as noted, conflicting, possession without title was not what the Plaintiff bargained for. The Agreement was for the conveyance of a leasehold title, and the Plaintiff is entitled to have the parties’ bargain enforced in accordance with its terms as held in **National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another (supra)**. 5. The practical shape of the relief requires care. The original term under Grant C.R. No. 15284, being 45 years from 1st January 1971, has since lapsed by effluxion of time, and the Defendant has procured a fresh lease of 65 years from 2019 over its retained portion alone. The rectification of the Plaintiff’s erroneous freehold title must therefore proceed hand in hand with the regularization of the leasehold interest over the suit property. The Land Registrar and the relevant Government agencies are not parties to this suit and this Court will not purport to issue orders directly compelling them. What the Court can and will do is to declare the parties’ rights and to compel the Defendant to do all that lies within its power, as it always was obliged to do, to procure the issuance to the Plaintiff of a proper leasehold title to the suit property, including executing all requisite documents, granting all requisite consents, and supporting all applications necessary to that end, with the usual default mechanism of execution by the Deputy Registrar. Given that the Defendant secured for itself a term of 65 years from 2019, equity and the parties’ parity of treatment demand that the Defendant’s facilitative obligations extend to procuring for the Plaintiff a leasehold term corresponding to that which the Defendant secured for its retained portion, or such other term as the relevant Government agencies may lawfully grant. ***Issue No. (iii): Whether the Plaintiff is entitled to compensation arising from the Defendant’s carbon credit project*** 1. The Plaintiff sought compensation by way of a share of the carbon credit income earned by the Defendant, which PW1 quantified at Kshs. 375,000/= per month from October 2019. The claim was anchored on the contention that the Plaintiff’s land is part of the Defendant’s larger parcel from which the Defendant has been earning carbon income while the Plaintiff, for want of a title, has been locked out of the trade. 2. Before delving into the merits of this head of claim, a preliminary observation is apposite. This claim invites the Court to determine whether, and in what circumstances, a party may recover a share of income generated from the trade in carbon credits. Counsel on both sides did not cite, and this Court is not aware of, any prior decision of the superior courts in Kenya that has determined a private monetary claim to a share of carbon credit income as between contracting parties. The Environment and Land Court sitting at Isiolo in **Osman & 164 Others (Suing on their own behalf and on behalf of the residents of Merti Sub-County, Chari and Cherab Wards in Isiolo County) v Northern Rangelands Trust & 8 Others, ELC Petition No. E006 of 2021; [2025] KEELC 99 (KLR)** recently had occasion to consider a carbon project, but it did so in the distinct context of community land rights, public participation and the constitutional validity of conservancies underlying such a project. The question presently before this Court, being a claim in private law to share in the proceeds of carbon trading, is of a different character and appears to be presented for judicial determination for the first time. Given the nascency and rapid growth of carbon markets in Kenya, the substantial monetary flows they now generate, and the near certainty that disputes of this nature will increasingly find their way before this Court, it is both necessary and opportune to set out, at some length, the conceptual, legal and institutional framework governing carbon credits in Kenya and the principles that ought to guide courts in adjudicating disputes arising therefrom. ***(a) The nature of a carbon credit*** 1. A carbon credit is, in essence, a tradeable instrument or unit representing the reduction, avoidance or removal or sequestration of one metric tonne of carbon dioxide, or its equivalent in other greenhouse gases, from the atmosphere. Carbon credits are generated through carbon projects, being deliberate initiatives, whether nature-based or technology-based, that either remove greenhouse gases from the atmosphere for instance through afforestation, reforestation or soil carbon sequestration or avoid emissions that would otherwise have occurred for instance through renewable energy, clean cooking or avoided deforestation initiatives. The emission reductions or removals achieved by a project are measured, reported and verified against recognized methodologies administered by carbon standards bodies. The credits so issued may then be sold, principally to entities seeking to offset their own emissions, either in compliance markets established pursuant to binding emission caps, or in voluntary carbon markets where purchasers acquire credits by choice in pursuit of voluntary climate commitments. 2. Of particular relevance to this case is the category of projects known as REDD+ (Reducing Emissions from Deforestation and forest Degradation), an international mechanism developed under the auspices of the United Nations Framework Convention on Climate Change, under which credits are generated by conserving standing forests that would otherwise have been cleared or degraded. The project featured in the evidence before this Court, the Kasigau Corridor REDD+ Project undertaken on the Defendant’s land in partnership with Wildlife Works, is an avoided deforestation project of this genre and is, as a matter of historical record, among the pioneer REDD+ projects in the world to issue credits in the voluntary market. As the Defendant correctly submitted, the benefit realized from an avoided deforestation project derives from preserving vegetation on land that would otherwise have been cleared; land that is already cleared or settled cannot, by definition, generate avoided deforestation credits. 3. As to the juridical nature of a carbon credit, I would hold that a carbon credit is a ***sui generis*** form of intangible property, in the nature of a chose in action, which arises from activities undertaken on or in relation to land but is distinct from the land itself. Two consequences flow from this characterization. First, the right to establish a carbon project upon land, and to appropriate the credits and income generated therefrom, is an incident of lawful ownership of, or lawful rights over, the land or resource in question. A person cannot validly generate or trade carbon credits from land over which he holds no lawful rights; the maxim ***nemo dat quod non habet*** resonates in the carbon market just as it does in conveyancing. Secondly, because the entitlement to carbon credits is rooted in the use of land, disputes concerning the generation of and entitlement to carbon credits from land fall within the jurisdiction of this Court under **Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act** as disputes relating to the environment and the use and occupation of, and title to, land. ***(b) Legal and Institutional framework*** 1. Carbon markets are a creature of international climate law. The foundational instrument is the United Nations Framework Convention on Climate Change, 1992, which Kenya ratified in 1994; the Kyoto Protocol, 1997 thereafter introduced market-based mechanisms, notably the Clean Development Mechanism under Article 12 thereof; and the contemporary framework is the Paris Agreement, 2015, which Kenya ratified in 2016, and whose Article 6 provides the architecture for international carbon markets. By dint of **Article 2(5) and 2(6) of the Constitution,** the said instruments form part of the law of Kenya and inform the interpretation and application of our domestic framework, which is itself anchored in the Constitution. Article 10 enshrines sustainable development as a national value and principle of governance; Article 42 guarantees to every person the right to a clean and healthy environment; Article 60(1) requires land in Kenya to be held, used and managed in a manner that is equitable, efficient, productive and sustainable; while Article 69(1) obligates the State, ***inter alia***, to ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, to ensure the equitable sharing of the accruing benefits, and to work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya. Carbon projects, properly conceived and implemented, are instruments in the service of these international and constitutional objectives. 2. The principal statute is the **Climate Change Act, No. 11 of 2016,** which established the institutional framework for climate change governance in Kenya, including the National Climate Change Council and the requirement for National Climate Change Action Plans. The Climate Change Act was later amended vide the **Climate Change (Amendment) Act, No. 9 of 2023,** which came into force on 15th September 2023 and introduced aspects on the regulation of carbon markets. 3. The statutory regime has since been operationalized by the **Climate Change (Carbon Markets) Regulations, 2024,** which came into force on 17th May 2024. The Regulations elaborate the mandate of the Designated National Authority as the overseer of carbon market activities, establish sectoral registries under the National Carbon Registry covering the energy, transport, agriculture, forestry and land use, industrial processes and waste sectors, prescribe the eligibility criteria and approval processes for carbon projects, require project proponents to undertake environmental impact assessment under the **Environmental Management and Co-ordination Act, 1999,** and give further content to the benefit-sharing obligations introduced by the 2023 amendment. Significantly, the Regulations contain transitional provisions requiring proponents of carbon projects that predate the Regulations to bring themselves into compliance within two years of commencement, thereby drawing pre-existing projects, of which the Kasigau Corridor REDD+ Project is one, into the regulatory net. The carbon markets framework operates alongside, and must be read together with, the wider environmental and land law architecture, including the **Environmental Management and Co-ordination Act, 1999, the Forest Conservation and Management Act, 2016, the Community Land Act, 2016** and the land statutes. ***(c) The principles that should guide courts in carbon credit disputes*** 1. From the foregoing framework, and in the exercise of this Court’s mandate to develop the jurisprudence in this nascent field, I would distill the following principles to guide the adjudication of disputes touching on carbon credits: - (i) Entitlement follows the land: the right to establish a carbon project and to the credits and income it generates is an incident of lawful ownership of, or lawful rights over, the land or resource generating the reduction, avoidance or sequestration. A claimant to carbon income must therefore trace his claim to a recognized proprietary interest in the project land, or to a contractual or statutory entitlement; a court should be astute to ensure that carbon credits are not generated or traded from land over which the proponent holds no lawful rights. (ii) Contract is the vehicle of the carbon trade: carbon transactions are contractual in nature and are governed by the ordinary principles of the law of contract, including sanctity of contract and privity, subject only to the statutory safeguards now enacted. Courts will enforce carbon agreements according to their terms and will not rewrite the parties’ bargains to import carbon benefits that were never negotiated. (iii) The statutory benefit-sharing regime is channelled, not free-floating: the community entitlements created by the 2023 amendment, namely the Community Development Agreement and the prescribed annual social contributions, are statutory safeguards attaching to projects impacting communities, and claims thereunder must be pursued through the statutory channels, beginning with the dispute resolution mechanisms in the Community Development Agreement itself. The statutory regime does not create a roving equitable entitlement in favour of any neighbour or stranger to a project to share in its proceeds. (iv) The regime is prospective: the carbon markets framework introduced in 2023 and 2024 does not operate retrospectively, and conduct and transactions predating it fall to be determined under the general law, although pre-existing projects are required to migrate into compliance within the transitional period. (v) Monetary claims to carbon income are commercial claims subject to the ordinary rules of pleading and proof: a claimant must specifically plead and strictly prove the income said to have been earned and the basis of his share therein, and the transparency tools now available, including the National Carbon Registry, verification reports and issuance records, furnish the means of such proof. (vi) In interpreting and applying this framework, courts should be guided by the constitutional values of sustainable development, intergenerational equity, public participation and the equitable sharing of accruing benefits under **Articles 10, 42, 60, 69 and 70 of the Constitution,** so as to promote the integrity of Kenya’s carbon markets while safeguarding land rights and the interests of impacted communities. ***(d) Application to the present claim*** 1. Measured against the foregoing framework and principles, the Plaintiff’s claim to a share of the Defendant’s carbon income cannot succeed, for the following reasons. First, the doctrine of privity of contract. The carbon project in issue is founded on an agreement executed in 2009 between the Defendant and Wildlife Works, to which the Plaintiff is a stranger. As was held by the Court of Appeal in **Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & Another (supra)** and in **Agricultural Finance Corporation v Lengetia Ltd (supra)**, a contract cannot confer rights or impose obligations on any person other than the parties to it, and it cannot be enforced by or against a third party even if made for his benefit. The Plaintiff, not being privy to the carbon agreement, can found no entitlement upon it. PW1 himself candidly conceded on cross-examination that the Plaintiff does not have any agreement on carbon credit. 2. Secondly, entitlement follows the land, and on the evidence the Plaintiff failed to establish that any carbon income has been derived from the suit property itself. DW2, the Conservation Manager of Wildlife Works, gave direct and largely unshaken evidence that the project is situated on the Defendant’s retained parcel and not on L.R. No. 12263/2, and she referred to the letter dated 4th May 2025 at page 47 of the Defendant’s bundle in confirmation. The Plaintiff tendered no evidence, documentary or otherwise, demonstrating that the suit property forms part of the certified project area or that any quantifiable income is attributable to it. The point is fortified by the very nature of an avoided deforestation project: credits accrue from preserving standing vegetation, and it was nobody’s case that credits have been issued in respect of the suit property. The Plaintiff’s claim, resting as it does on the mere physical contiguity of the suit property to the project land, does not trace to any proprietary, contractual or statutory entitlement to the project’s proceeds. 3. Thirdly, the statutory benefit-sharing regime does not avail the Plaintiff. The Community Development Agreement and annual social contribution provisions introduced by the **Climate Change (Amendment) Act, 2023** are safeguards enacted for impacted communities in respect of carbon projects, pursued through defined statutory channels; they were not pleaded, they post-date the material transactions, and they do not in any event create a free-standing cause of action entitling an adjoining landowner to a share of a project’s earnings in a private suit of this nature. It bears repeating that both the Agreement for Sale of 1998 and the carbon agreement of 2009 predate the entire carbon markets regulatory framework, and the parties’ rights ***inter se*** fall to be determined under the general law of contract. 4. Fourthly, the claim as framed is in the nature of special damages or mesne profits. It is trite that such a claim must be specifically pleaded and strictly proved. The figure of Kshs. 375,000/= per month from October 2019 was not anchored in any document, computation, valuation or expert evidence whatsoever. A claim of that character cannot be sustained on the ***ipse dixit*** of a witness. It must also be observed that at the time of the Agreement for Sale in 1998, the concept of carbon credits was, as both sides acknowledged, unknown to the parties and formed no part of their bargain, and this Court cannot, consistent with **National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another (supra)**, rewrite the parties’ contract to import into it a benefit they never negotiated. 5. For those reasons, the claim for compensation arising from the Defendant’s carbon credit project fails and is hereby dismissed. I would only add two observations. First, nothing in this finding forecloses the Plaintiff, once seized of its proper leasehold title as ordered hereunder, from establishing its own carbon or conservation project upon the suit property in accordance with the **Climate Change Act and the Climate Change (Carbon Markets) Regulations, 2024,** or from negotiating its participation in any existing programme, a prospect to which PW1 alluded in his evidence. Secondly, the outcome of this claim on its own facts should not be understood as diminishing the entitlements which the law now confers on communities impacted by carbon projects; those entitlements are real, they are statutory, and they will be enforced through the channels the law has provided. ***Issue No. (iv): Who should bear the costs of the suit?*** 1. Costs are in the discretion of the Court pursuant to **Section 27 of the Civil Procedure Act, Cap 21**, and the general principle is that costs follow the event unless for good reason the Court directs otherwise. The event herein has substantially been determined in favour of the Plaintiff, which has succeeded on the primary and dominant claim relating to the title to the suit property, the carbon credit claim notwithstanding. The Plaintiff was driven to litigation by the Defendant’s prolonged default spanning over two decades. In the circumstances, I award the costs of the suit to the Plaintiff. **Final orders** 1. Before rendering the final orders, I wish to record the Court's appreciation to Learned Counsel for both parties, Mr. Oddiaga for the Plaintiff and Mr. Okoth for the Defendant, for their industry, well-researched written submissions and the able manner in which they presented and prosecuted their respective clients' cases, which was of great assistance to the Court in the determination of this matter. 2. In conclusion, and flowing from the findings hereinabove, judgment is hereby entered for the Plaintiff against the Defendant in the following terms:- 3. **A declaration be and is hereby issued that the Plaintiff, having paid the full purchase price under the Agreement for Sale dated 8th April 1998, is entitled to a good and proper leasehold title in respect of the suit property known as L.R. No. 12263/2.** 4. **A declaration be and is hereby issued that the Certificate of Title C.R. No. 35555 issued on 30th November 2001 in respect of the suit property conferring a freehold tenure was issued in error and the same shall be surrendered to the Land Registrar for cancellation and rectification of the register to reflect the correct leasehold tenure.** 5. **The Defendant shall, within ninety (90) days from the date of this judgment and at its own cost, take all steps and execute all documents, consents, applications and instruments necessary to procure the registration of the subdivision of the relevant parcel and the issuance to the Plaintiff of a leasehold title in respect of L.R. No. 12263/2 for a term corresponding to the term secured by the Defendant over its retained portion or such other term as the relevant Government agencies may lawfully grant.** 6. **In default of compliance with order (iii) above, the Deputy Registrar of this Court be and is hereby authorized to execute all such documents, consents, applications and instruments on behalf of the Defendant.** 7. **The Plaintiff’s claim for compensation arising from the Defendant’s carbon credit project be and is hereby dismissed.** 8. **The Plaintiff shall have the costs of the suit.** **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF JULY 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:-** **N/A for the Plaintiff.** **Mr. Okoth for the Defendant.** **Court Assistant: Joanne Omondi.**