https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4045

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO 17 OF 2020** **SIMGLAD LTD::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF** **VERSUS-** **MALILI RANCH LTD:::::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANT** **JUDGEMENT** The Plaintiff avers that at all material times the Defendants were the registered owners of Plot No. 2557 which forms part of Malili Ranch which has been sub-divided into several sub-plots which were sold and or allotted to several people who were issued with Letters of Allotment as proof of ownership. On or about 21st November, 2011, the Plaintiff purchased Plot No. 2557 from one Gabbie Holdings Limited who were the then allotted owners. Pursuant to the said sale, the Defendant transferred the above said plot to the Plaintiff in their records upon payment of their fee and accordingly amended the Letter of Allotment to indicate that the Plaintiff was henceforth the owner of the said Plot. It was agreed that the Defendants would issue the Title to the plot to the Plaintiff directly. On or about 27th April, 2018, the Plaintiff's Director went to collect the Title, upon being informed by the Defendants that titles were ready only to be told that the Title was not in the Plaintiff's name although all the records in the company showed that it belonged to the Plaintiff. That by the Defendants letter dated 21st June, 2018 the Defendants offered to transfer Title Number Konza North Block 2 (Malili 73 Plot No. 2150 in place of the Plaintiff's own Plot No. 2557). The Defendant's then declined and/or refused to disclose the person to whom the Plaintiff's Title was issued and the reasons why it was issued to another person other than the Plaintiff. The Plaintiff has subsequently established that its plot No. 2557 has since been registered as Title Land Parcel No. Konza North Block 2 (Malili) 6 in the name of Malili Ranch Ltd the Defendant herein. The Plaintiff avers that there can be is no lawful reason why the Defendant refuses to transfer the Title Land Parcel No. Konza North Block 2 (Malili) to the Plaintiff. The Plaintiff prays for judgement against the Defendant for; 1. An order directing the Defendant to transfer Title No. Konza North Block 2(Malili) 6- formerly numbered as Plot No. 2557 to the Plaintiff. 2. An order of permanent injunction restraining the Defendant whether by itself, its servants, employees and agents from disposing by way of sale or in any other manner transferring and/or interfering with Title No. Konza North Block 2 (Malili) 6 3. That the Land Registrar Machakos be directed to cancel Title No. Konza North Block 2 (Malili) 6 issued in the name of Malili Ranch Ltd and issue the same in the name of Simglad Ltd the plaintiff herein. 4. General damages 5. Cost of the suit The Defendant stated that Parcel of land known as Plot No. 2557 was originally registered in the name or favour of Agnes Nduku Peter whose membership number was 1660. Following the sale of 5000 acres of the Defendant's property to the Government (Konza ICT City), the said property was erroneously demarcated as having been within the said 5000 acres. Consequently, the said Agnes Nduku Peter was erroneously compensated through herself, her agent and or purchaser. Upon discovery of the error, and in order to recoup the sums paid to the said Agnes Nduku Peter, on or about 13th May 2011, the property was sold by the Defendant to M/s Gabbie Holdings Limited. In the course of further subdivision of the Defendant's properties the suit property was reflected as being registered in favour of one Joseph Musyoki. The Defendant avers that at one time its records reflected that there were two parcels of land which were allocated number 2557. One is registered in favour of Joseph Musyoki and the other in favour of M/s Gabbie Holdings Ltd. Owing to the above said error in the Defendant's record, the Plaintiff was offered a different parcel of land which offer it declined. The Defendant avers that the Plaintiff's suit is incompetent and bad in law. The court has considered the pleadings, evidence presented before it, submissions made as well as the authorities relied upon by the parties. The issues for determination in this matter are as follows; 1. *Whether or not the Plaintiff is the lawful proprietor of Title No. Konza North Block 2 (Malili) formerly Plot No. 2557?* 2. *What orders should the court issue?* The Land Registration Act is very clear on issues of ownership of land and Section 24(a) of the Land Registration Act provides as follows; *“Subject to this Act, 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*.” Section 26 (1) of the Land Registration Act states as follows; *“The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and the title of that proprietor shall not be subject to challenge except –* a. *On the ground of fraud or misrepresentation to which the person is proved to be a party; or* b. *Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”* PW1, the 1st Plaintiff testified that on 21st November, 2011, they purchased Plot No. 2557 from one Gabbie Holdings Limited who were the then allotted owners (copies of the sale agreement is in page 22 to 29 of the Plaintiff’s bundle of documents and the receipts of the transfer fees on page 30). Pursuant to the said sale, the Defendant transferred the above said plot to the Plaintiff in their records upon payment of their fee and accordingly amended the Letter of Allotment to indicate that the Plaintiff was henceforth the owner of the said Plot. It was agreed that the Defendants would issue the Title to the plot to the Plaintiff directly. The same was never transferred to the Plaintiff. The Court of Appeal in Munyu Maina vs Hiram Gathiha Maina (2013) eKLR held that; *“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”* Section 26 of the Land Registration Act which guarantees the concept of indefeasibility of title does not extend to any property that has been found to have been unlawfully acquired. The Court of Appeal in Attorney General vs Torino Enterprises Limited (Civil Application 84 of 2012) (2022) KECA 78 (KLR) (4 February 2022) (Judgment) held that; *“We have considered the provisions of section 26 of the Land Registration Act (repealed) in light of the provisions of Article 40 of the Constitution which guarantees protection of right to property and it is our considered view that the concept of indefeasibility of title is subject to Article 40 (6) of the Constitution which states that: “The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.” Guided by the provisions of Article 40 (6) of the Constitution, we hold that the concept of indefeasibility or conclusive nature of title is inapplicable to the extent that title to the suit land was unlawfully acquired. See Denis Noel Mukhulo & Another v. Elizabeth Murungari & Another [2018] eKLR.”* The Defendants state that it sold the suit land initially known as number 2557 and there were two plots bearing the same number one in the name of Gabbie Holdings and the other in the name of Joseph Musyoki. As a result of the error the Defendant offered the Plaintiff a different parcel which he declined. DW1 Leonard Kyamia Kitua a Director with the Defendant Company testified and confirmed that the title is now in the name of the Defendant. That they had sold the same to Gabbie Holdings and are now waiting for the decision of the court. I have perused the sale agreements, share certificate and I find that on 21st November, 2011, the Plaintiff purchased Plot No. 2557 from one Gabbie Holdings Limited who were the then allotted owners and this is not disputed. Pursuant to the said sale and according to a letter dated 14th December 2011 from the Defendant’s Advocates the Plaintiff was to pay kshs. 20,000/as cost of transfer which he did for Defendant was to transfer the above said plot to the Plaintiff in their records and accordingly amended the Letter of Allotment to indicate that the Plaintiff was henceforth the owner of the said Plot. The receipt was produced in court. I find that there is no misjoinder of parties as the Plaintiff had paid the transfer fees and this is not disputed and it was upto the Defendant to transfer the suit property directly to the Defendant. It is in evidence that by a letter dated 24th August 2021 the Defendant’s lawyers stated that the Defendants were willing to transfer the property to the Plaintiff provided each party bore its own costs. It is on record that the Defendant’s were granted leave to institute third party proceedings against one Julius Maweu Kilonzo but never pursued the same. I find that the Plaintiff is a bona fide purchaser for value and the sale agreement is valid and enforceable. The definition of bona fide purchaser for value without notice is *“that buyer who has paid a stated price for the property without knowledge of existing or prior claims or prior equitable interest”.* Bona fide is a Latin word meaning good faith, without fraud, sincere, genuine. See (Black’s Law Dictionary 9th Edn Page 199) A bona fide purchaser is a buyer who buys without constructive or actual notice of any defects or infirmities against the seller’s title. See (page 1355) Black’s Law Dictionary 9th Edn. It is trite law that a person who relies on the defence of bona fide purchaser for value without notice has the burden to prove that he or she acted in good faith. The purchaser must have given due consideration and purchased the land without notice of the fraud. Such notice covers both actual and constructive notice of fraud. In the case of Jones vs Smith (1841) I Hare 43, the Chancery Court held; *“a purchaser has constructive notice of fraud if he had actual notice, that there was some encumbrance and a proper inquiry would have revealed what it was (but if) it abstained either deliberately, carelessly from making those inquiries which a prudent purchaser would have made...then the defence cannot be available to him or her”* In Yakobo M. N Senkungu & Others vs Cresencio Mukasa Civil Appeal No 17 of 2014. The court reaffirmed the law regarding the importance of due diligence in land transactions holding that; *“…Lands are not vegetables which are bought from unknown sellers. Lands are very valuable properties and buyers are expected to make thorough investigations not only on land but also of the owner before the purchase.”* On the issue of damages for breach of contract, Black's Law Dictionary 9th Edition, Page 213 defines a breach of Contract as: *“a violation of a contractual obligation by failing to perform one's own promise, by repudiating it, or by interfering with another party's performance. A breach may be one by non-performance or by repudiation or by both. Every breach gives rise to a claim for damages and may give rise to other remedies. Even if the injured party sustains no pecuniary loss, or is unable to show such loss, with sufficient certainty, he has at least a claim for nominal damages."* It is in evidence that the Plaintiff purchased the suit property from the original allottee and paid the full purchase price. He further paid the cost of transfer to the Defendants for the same to be in his name. The said sale agreement is not disputed by the Defendant. The breach that the Plaintiff claims is that the Defendant failed to transfer the suit property to him and as a result he had to compensate potential buyer to the tune of Kshs.5,000,000/=. That relying on the veracity of the title he went ahead and sold a portion of the suit land to a third party and was sued in Machakos CMCC 375 of 2021. I find that specific damages need to be specifically pleaded and proved. Secondly, I find that the Plaintiff took a risk and resold land which did not belong to him at the material time and cannot expect full compensation from the Defendant. However, I find that the Plaintiff is entitled to nominal damages for the breach of contract as the Defendants failed to transfer the suit property to him within a reasonable time and find that an award of Kshs. 500,000/ adequate in the circumstances. For those reasons, I find that the Plaintiff has proved his case on a balance of probabilities and I grant the following orders; 1. An order directing the Defendant to transfer Title No. Konza North Block 2(Malili) 6- formerly numbered as Plot No. 2557 to the Plaintiff. 2. An order of permanent injunction restraining the Defendant whether by itself, its servants, employees and agents from disposing by way of sale or in any other manner transferring and/or interfering with Title No. Konza North Block 2 (Malili) 6 3. The Land Registrar Machakos is directed to cancel Title No. Konza North Block 2 (Malili) 6 issued in the name of Malili Ranch Ltd and issue the same in the name of Simglad Ltd the plaintiff herein. 4. Kshs 500,000/= general damages 5. Cost of the suit to be borne by the Defendant. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 2ND DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**