https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3060

Gathendu v Mwai & 4 others (Environment and Land Case E080 of 2021) [2026] KEELC 3060 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEELC 3060 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Case E080 of 2021 JA Mogeni, J May 20, 2026 Between Slyvia Wanjiru Gathendu Plaintiff and Lilian Waithera Mwai 1st Defendant Peter Kamau Kabi 2nd Defendant Ruth Wanjiru Kamau 3rd Defendant Francis Mwanura Mungara 4th Defendant Land Registrar Thika 5th Defendant Judgment 1.The dispute in this suit revolves around the question as to who is the legitimate proprietor of a piece of land comprised in Title Number Ruiru East Block 5/229 (herein after “suit property”). 2.The Plaintiff claims to have been legally registered as the absolute owner/proprietor of all that parcel of land identified as LR Ruiru East Block 5/229 on 12/01/1998. Plaintiff’s Case 3.The Plaintiff initiated the suit through a plaint dated 19/07/2021. She sought the following verbatim reliefs against the Defendants.a.A declaration that the Plaintiff is the legal and bona fide owner of all that parcel of land comprised in Title Number LR Ruiru East Block 5/229.b.That the Land Registrar Thika do cancel entries number 4, 5, 6 and 7 of 3/7/07, 3/7/9. 4/12/98 and respectively, against the Title No. LR Ruiru East Block 5/229.c.A permanent injunction do issue restraining the Defendant, their servants, representative, agents and/or anyone claiming under them from alienating, transferring, charging or in any manner whatsoever interfering with the suit land.d.An order for costs and interest thereon of this suit.e.Any other relief this Honorable Court deems fit and just to grant. 4.The case of the Plaintiff is that she is bona fide owner of the suit property but that the 1st Defendant impersonated the Plaintiff and fraudulently transferred the suit property to the 2nd and 3rd Defendants who subsequently transferred sold and illegally transfer it to the 4th Defendant. 5.The 1st Defendant was subsequently arrested and arraigned in Court where he was found guilty of obtaining money by false pretense and making documents without authority. 6.She claims that the 5th Defendant without conducting due diligence oversaw the transaction and effected the fraudulent transfers of the Plaintiff’s title to the 2nd to 4th Defendants. 7.Aggrieved by the actions of the Defendants, the Plaintiff filed this suit. Case for the 1st Defendant 8.The 1st Defendant filed an Amended Defence and Counter-claim dated 21/06/2007. 9.In the Statement of Amended Defence she denied all the contents of the Plaint in toto. She avers that she has been the owner of the suit property since 12/01/1988. She also states that she has neither sold nor transferred the said piece of land to any person. 10.In her Counter-claim she avers that she was given the suit property by her mother who was a share owner of Kiambu Wendani Women Investor Limited. 11.According to her, the land was subdivided on or about 1988 and transferred to the Company members and that is how she was registered on 12/01/1988 as the owner of the suit property measuring 0.0868 Ha. 12.That she was issued with a title on the same day and she has been in possession of the suit property LR No. Ruiru/Ruiru/East Block 5/229 since then and she has never sold it. 13.She alleges that the Plaintiff is a trespasser on the suit property since she has illegally invaded, entered, used and or cultivated the suit property. 14.She avers that the 3rd and 4th Defendants have no right or title to pass to the Plaintiff. She seeks the following prayers in her Counter claim against the Plaintiff.a.An order cancelling and revoking the title LR No. Ruiru/Ruiru/East Block 5/229 held by the Plaintiff.b.An order evicting the Plaintiff either by himself, his agents, servants or employees or any person claiming through him from title LR No. Ruiru/Ruiru/East Block 5/229.c.A prohibition order restraining the Plaintiff either by himself, his agents, servants or employees or any person claiming through him from alienating, transferring, entering and/or transferring Title LR No. Ruiru/Ruiru/East Block 5/229.d.Costs of this suit.e.Interest on (d) above. Case of the 4th Defendant 15.The 4th Defendant filed a Defence and Counter-claim dated 15/02/2022 and avers he is the registered owner of the suit parcel Title No. LR Ruiru East Block 5/229 having purchased from the 2nd and 3rd Defendants for value without notice of any alleged defect in title. 16.He denies all other averments of the Plaintiff since according to him he did all due diligence and he acquired the property legitimately. He also states that he sued the Plaintiff in NAIROBI HCC No. 211 of 2000 which was dismissed for want of prosecution but no appeal has been preferred. That in the said suit the Plaintiff had filed a Counter-claim with similar prayers as in instant suit making this suit Res Judicata 17.That therefore this Court lacks jurisdiction and that the suit be dismissed with costs. 18.He seeks in the Counter claim the following prayers.a.A declaration that parcel of land number Title No. LR Ruiru East Block 5/229 belong to the Plaintiff, Francis Mwaura Mungarab.That an order be made directing the 5th Defendant, the Land Registrar, Thika/Ruiru to lift the restriction registered against all that piece of land known as Title No. LR Ruiru East Block 5/229c.A permanent injunction does issue restraining, the Defendants, their servants, agents, nominees and or any person acting under their authority from entering, encroaching, blocking access to, trespassing on to or in any way interfering with the quiet possession of the Plaintiff’s suit property Title No. LR Ruiru East Block 5/229d.Costs of the suit and Counter-claime.Any other relief that this Honorable Court may deem fit to grant Case of the 5th Defendant 19.The 5th Defendant filed a Statement of Defence dated 1/09/2021 and denied all the averments in the plaint putting the Plaintiff to strict proof. 20.The 5th Defendant averred that if at all there were any transactions in relation to the suit parcel, the 5th Defendant was not privy to the transaction and puts the Plaintiff to strict proof. 21.Further that if there was any transfer or registration over the suit property then it was based on documents presented before the 5th Defendant’s offices who exercised due diligence and the said documents being believed to be genuine were registered. 22.The 5th Defendant prays for dismissal of the Plaintiff’s suit with costs. 23.Default Judgment was entered against the 1st and 2nd Defendants. Reply to 5th Defendant’s Statement of Defence 24.The Plaintiff in response to the 5th Defendant’s Statement of Defence joins issue with the 5th Defendant’s Statement of Defence and denies the contents thereof in toto, save for any express admissions, while specifically reiterating their status as the legal and bona fide proprietor of Title Number Ruiru East Block 5/229. 25.The Plaintiff further maintains that the 5th Defendant oversaw the subject transaction with full knowledge and without conducting the requisite due diligence, thereby reaffirming the particulars of fraud and averments set out in the Plaint as clear and unambiguous. 26.Consequently, the Plaintiff repeats and reiterates the prayers for relief, seeking that the Defendants' Defence be struck out and Judgment be entered against the Defendants, jointly and severally, with costs and interest thereon. Plaintiff’s Evidence 27.During trial, Slyvia Wanjiru Gathendu testified as PW1. She adopted her written witness statement dated 19/07/2021 and stated that she relies on her documents produced in support of her case and affidavit dated 9/05/2023. At the same time, she produced the documents in her trial bundle at pages 8-30 marked as PExh 1-7. 28.Her evidence is that she had read the 4th Defendant’s statement but that she has never been evicted from the property. That in 2000 she testified in Court, the criminal case and also stated that she was the registered owner of the land. She told the Court that she fenced the land in 2000. 29.She testified that she was sued by the 4th Defendant in 2000 in a Nairobi case and it was determined in 2002 and this was a criminal case. The civil matter was dismissed for want of prosecution. 30.Upon being re-examined by Mr Tumu, she testified that she is unemployed since she has been working in Germany for the last 20 years. She told the Court that she was gifted the land by her mother although she did not have any gift deed from her mother to support this claim in Court. Further at page 10 of the Plaintiff’s bundle the names on the title and ID all show the same person Sylivia Wanjiru Gathendu which refer to the Plaintiff. However, the Affidavit at page 2 of the trial bundle show different numbers of the ID which show ID No. 335534 36 But the Title shows the ID as No. 1907225/64 meaning the number of the ID numbers are different. 31.She testified having come to know about the fraud in 2000 and she sued the Defendant in 2021. Further that her land is in Kahawa Wendani but in her statement she had stated that it is in Kahawa West but that Wendani is in Kahawa West. 32.She further stated that in the criminal case Lilian Waithera Mwai was charged in CR Case No. 5294/2000 and that the Court stated that she is the owner of the land however the title held by the 4th Defendant was not cancelled. According to her, Lilian forged the title documents and sold the land to a third party and when she learnt about this, she filed a caution on the title. 33.She told the Court that she filed a restriction in 2006 allowing no dealings in the land until Judgment and that she contests the Counter-claim. She stated that she filed an application and obtained orders in 2019 to allow her file the suit out of time. And that until 2021 she had not filed any suit to have the land registered in her name. 34.Upon re-examination she clarified that she obtained leave to file this instant suit in a Miscellaneous Application No. 68/19 and the order was issued on 15/07/2021. She also clarified that the land is in Kahawa Wendani and the larger land is in Kahawa - Wendani compromising of Kahawa West. 35.According to her the 4th Defendant knew the real owner of the suit property despite having bought the suit property for Kesh 550,000 but that documents at page 19 is a decision of the Court which determined that she is the owner of the suit property. Further that the 4th Defendant has not sued her for recovery of any money. 36.On the issue of ID numbers, she stated that the title was issued on 12/01/1988 and her ID was issued on 20/03/2019. Further that the restriction on the land is yet to be removed since 2006. 37.She highlighted the information that page 22 of the 4th Defendant’s Trial Bundle bears a Verifying Affidavit which was sworn in 2007 but that she was not in the country in 2007 but that she visited Kenya in 2006 and that a copy of her passport on page 62 show that she later came back to Kenya in 2013 and so she stated she does not know the Lawyer who witnessed the Affidavit in 2007. 38.She asked the Court to direct that the Environment and Land Court Deputy Registrar avails the Court file No. HCCC No. 2111 of 2000 Francis Mwaura Mungara vs Silvia Wanjiru Gathendu & 3 Others for purposes of the identification of the Amended Defence on the part of the 1st Defendant. 39.Although this prayer was strenuously opposed by Counsels for the Defendants, the Court stated that to serve the interest of justice in the instant case she granted the application. 40.When the hearing resumed on 12/03/2025 PW2 Fidelis Simiyu who introduced himself as the Officer in Charge of the Milimani Registry. He told the Court that he has come to produce HCCC 2111 of 2000 and that indeed there was a Defence and Counter-claim filed on 21/06/2007 by Gichigi Murugu & Co. Advocates for the 1st Defendant who in the case is named as Slyvia Wanjiru Gathendu and in the instant matter she is the Plaintiff. That Francis Mwaura Mung’ara is the Plaintiff in the matter. 41.He testified that on page 18 of the 4th Defendant’s bundle and page 68 of the Plaintiff’s bundle the documents are similar. However, at page 19 of the 4th Defendant’s document it reads Counter-claim against the Plaintiff, 2nd, 3rd and 4th Defendants. That at page 69 it only reads Counterclaim against the Plaintiff. The document at that page 69 tallies with what is in HCCC 2111 OF 2000. 42.PW-2 also told the Court that paragraph 10-18 of the 4th Defendant’s document has a paragraph 10 content that is different whereas in the 4th Defendant’s document it says that the 1st Defendant was a member but in the Court documents at page 69 it says she was given a different suit property. 43.Furthermore, the documents at page 20 in the 4th Defendant’s bundle bears prayers that are different from those at page 70 in the Plaintiff’s bundle. Meaning the prayers that the 4th Defendant purports to be the prayers he asked in HCCC 2111 of 2000 are not the same as the ones listed at page 20 of the 4th Defendant’s bundle. 44.However, the prayers in the Court record at page 70 of the Plaintiff’s list are similar to those in HCCC 2111 of 2000. Therefore, the document that tally with what is listed by the Plaintiff. With this he produced the Court file and it was marked as “PWExh No. 8”. 45.Upon cross-examination by Counsel Tumu, he told the Court that Francis Mwaura in HCCC 2111 of 2000 and 1st Defendant is Sylvia Gathendu. It was his contention that the prayers by the 4th Defendant as at page 20 of the 4th Defendant’s bundle and those at page 70 of the Plaintiff’s bundle all carry the title Ruiru/Ruiru East Block 5/229 and those of the 4th Defendant are signed by Gichigi Burugu & Co Advocates and he also served the pleadings. 46.He also pointed out that paragraph 16 speaks of charging and specifications of the Court case but the 4th Defendant bundle at page 19 as details which are not in the Plaintiff’s bundle. 47.Further that whereas there was Reply to Defence and Defence to Counter-claim, it is not in the HCCC 2111 of 2000 file. 48.On re-examination he stated that he was not a maker of any of the documents he was just called to produce the file. He clarified further that the document that the 4th Defendant produced having been the one in HCCC 2111 of 2000 at paragraph (b) seeks eviction but the one in the instant case at page 20 seeks cancellation. 49.With this the Plaintiff closed her case. Evidence of the 4th Defendant 50.The 1st Defendant testified as DW1 and stated that he is a businessman. He adopted his witness statement dated 3/04/2023 as his evidence in chief. He also produced a list of documents as exhibits to support his case which are marked as “DW1Exh 1-7”. He stated that the suit property is his since the title deed is in his name. 51.Ms Gitau Counsel for the Plaintiff on cross-examining him he stated that the suit property has only temporary structures which were constructed by business people. He denied the averment that the Plaintiff has been in active possession. He stated that they purchased the property in 1998. 52.On the issue of approval plan he told the Court that he had not produced any approval plan. He denied holding the position he had stated at page 017 of the Plaintiff’s bundle. 53.It was his testimony that when he bought the suit property in 1998, he bought from people known to him although he had not invited them to the Court as witnesses although he said they were sued. 54.He stated that in the criminal case Lilian Waithera was found guilty and the complainant was advised to sue her to recover his money but he never sued her instead he chose to sue Slyvia (Plaintiff herein) even though he had no contract with her. 55.That the Counter-claim as filed show that the 4th Defendant made different prayers during the hearing in HCCC 2111 of 2000 and in the instant suit yet the documents filed at page 20 of the 4th Defendant’s bundle and page 70 of the Plaintiff’s bundle are supposed to be the same document yet the prayers made by the 4th Defendant in the Counter-claim are different. 56.According to the witness he is aware leave was granted for the instant suit to be filed out of time. It is his testimony that in the criminal case, the one Lilian Waithera was found to have transferred the suit property fraudulently but he claims that his contract was between one Peter Kamau Kabi 2nd Defendant and himself. That the document at page 13 which is a Search show that there is an inhibition on the suit property following the Criminal Case 5294/2000 barring dealings until Judgment is implemented. 57.It is his case that he holds a valid title, duly registered in the Ministry of Lands, and it was transferred without fraud. Upon re-examination, he stated that the Search at page 13 show the proprietor as Francis Mwaura from 4/12/1998 and the Search was done on 3/07/2019. A restriction was registered on 28/11/2006 but for all this time the title was in his name. 58.Despite knowing that leave was granted for the suit to be filed out of time the 4th Defendant testified to having challenged the filing of the suit claiming it was Res Judicata (see page 5). According to the 4th Defendant he testified not knowing where the Plaintiff got the Defence and Counter-claim despite having been shown the two sets of Defence and Counter claim. He stated that he stands by his prayers in the Counter-claim. 59.With that the 4th Defendant closed his case. 5th Defendant’s Case 60.The 5th Defendant testified as DW-5 Robert Mugendi Mbuba the Land Registrar currently stationed at Ruiru Registry. He adopted his witness statement as his evidence and a list of documents as his exhibits which were marked as “DW5Exh 1-7”. 61.On cross-examination he told the Court that back then it was necessary to annex photographs when a first transfer was registered in 1977 and the 2nd transfer in 1998. Further that the Registrar would only be guided by signature. He told the Court that a title can be cancelled if title was procured by misrepresentation or fraud. 62.That the last entry on a copy of the Green Card is the one dated 28/11/2006 and it is a restriction and the criminal case is noted on the Green Card. 63.On cross-examination by Counsel for the 4th Defendant he stated that from entry No. 1-6 there is no inhibition registered and that if the person at No. 6 did a Search it would show Peter Kamau Kabi and Ruth Wanjiku Kamau as registered owners without restriction. 64.According to him, the transfer from Sylvia to Peter Kamau and to Ruth Wanjiku Mwaura were regular and in the 5th Defendant’s record at the time of registration they were registered as proper. 65.He told the Court that the Land Administration Officer sits at the Land Control Board and not the Land Registrar’s office and so information from Land Control Board is presumed to be genuine. In this particular case the consent is on record in the parcel file. 66.It was his testimony that there is a restriction registered in 2006 but the office of the Registrar has never been alerted about the Criminal Case No. 5294/2000 for implementation. For the last 15 years no one served them with the Judgment for implementation. 67.He stated that titles can be cancelled on the strength of a Court order or under Section 79 upon issuance of a Notice if it was obtained via fraud after Summons Hearing after being moved by someone. In this case there is no claimant who has sought such a cancellation. If an order is served, he stated that they would make an entry in this case it would be entry No. 9. 68.With that the 5th Defendant closed their case. 69.Parties were directed to file and serve their written submissions. Plaintiff’s Submissions 70.The Plaintiff, Sylvia Wanjiru Gathendu, submits that she is the legal and bonafide owner of Title No. Ruiru/Ruiru East Block 5/229, which was fraudulently transferred by the 1st Defendant to the 2nd and 3rd Defendants and subsequently to the 4th Defendant. The Plaintiff's case rests on the evidence of PW-1 and PW-2, Fidelis Simiyu, an Officer of the Milimani Civil Registry, who confirmed that the prayers in the Amended Defence and Counter-claim in the 4th Defendant's trial bundle at page 18-20 do not tally with those in the Court file, whereas the Plaintiff's documents at page 068-070 do. 71.The Plaintiff further demonstrated through her passport pages that she was not in the country at the time the said Amended Defence and Counter-claim was purportedly signed, a fact that remained unchallenged. The 5th Defendant, the Land Registrar, confirmed in cross-examination that a title can be cancelled upon presentation of a Court Order under Section 79 of the Land Registration Act, or where it is found to have been obtained by fraud or misrepresentation. 72.On the contested issues of Res Judicata, limitation of time and laches, the Plaintiff urges the Court to find in her favour on all three limbs. On Res Judicata, the Plaintiff submits that the doctrine as anchored under Section 7 of the Civil Procedure Act does not apply, since HCCC No. 2111 of 2000 was dismissed for want of prosecution and was never heard and determined on merits, and the cause of action in the former suit was trespass whereas the cause of action in the instant suit is fraud. Reliance is placed on the Supreme Court's restatement of the elements of Res Judicata in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR, and on the decision of Oguttu Mboya J in Adan Kullow Kassim v Jennifer Kiende & 2 Others (ELC E004 of 2022) [2025] KEELC 803 (KLR), where it was held that for the doctrine to be applicable the previous suit must have been heard and determined on merits. 73.Further reliance is placed on the decision of Eboso J in Njoroge & 2 Others v Mugo & 2 Others (ELC No. 134 of 2019) [2023] KEELC 18206 (KLR), where a subsequent suit premised on fraud was found not to share the same cause of action with a prior suit for eviction and cancellation of title. On limitation, the Plaintiff submits that the provisions of Sections 7 and 26 of the Limitations of Actions Act extend time to bring an action to recover land where fraud is discovered, and that the Court in Miscellaneous Application No. 68 of 2019 already granted leave to file the suit out of time, having appreciated that the Plaintiff, a German resident, lost communication with her Advocates and only discovered the fate of HCCC No. 2111 of 2000 upon her return to Kenya in 2019. 74.Finally, the Plaintiff submits that the 4th Defendant purchased the suit property from the 2nd and 3rd Defendants with the knowledge, as found by the Magistrate in Criminal Case No. 5294 of 2000, that the plot belonged to the Plaintiff and that he could pursue the accused persons in a civil suit to recover his money. 75.In her submission the Plaintiff urges the Court to apply the principle of caveat emptor and the maxim nemo dat quod non habet, as affirmed by the Supreme Court in Dina Management Limited v The County Government of Mombasa & 5 Others, Petition 8 (E010) of 2021 [2023] KESC 30 (KLR), which placed the burden on a purchaser to undertake due diligence and to ensure that the original proprietor did not acquire title illegally. The Plaintiff accordingly prays that the Court finds her case meritorious, issues the declaratory orders sought to enable the Land Registrar to make the appropriate cancellations of entries on the register pursuant to Section 79 of the Land Registration Act, and dismiss the 4th Defendant's Defence and Counter-claim with costs. 4th Defendant’s Submissions 76.The 4th Defendant, Francis Mwaura Mungara, submits that the entire suit is time barred and ought to be dismissed for want of jurisdiction. The 4th Defendant grounds this submission on Sections 4, 7 and 26 of the Limitation of Actions Act Cap 22 Laws of Kenya, urging the Court that the Plaintiff, by her own admission, became aware of the fraud against her land as early as the year 2000, yet she took no steps to rectify the register following the determination of Criminal Case No. 5294 of 2000 in 2002. 77.He relies on the Court of Appeal decision in Gathoni v Kenya Cooperative Creameries Limited (Civil Application No. 122 of 1981), which affirmed that the law on limitation is intended to protect Defendants against unreasonable delay and that the period of limitation cannot be extended, a position further reinforced in Divecon v Jamani (1995-1998) EA 48 where the Court of Appeal held that no Court has the right or power to entertain an action brought outside the prescribed limitation period. Further reliance is placed on Josylin Werunga Ototl v Joseph Wafula Mbavi (2018) eKLR, where a suit was struck out for being statute barred, and on Mary Osundwa v Nzoia Sugar Company Limited [2002] eKLR, where the Court of Appeal held emphatically that Section 27 of the Limitation of Actions Act only confers jurisdiction on the Court to extend time in actions founded on tort involving negligence, nuisance or breach of duty resulting in personal injuries, and does not extend to any other cause of action. 78.The 4th Defendant further submits that the Plaintiff cannot take refuge under Section 26 of the Limitation of Actions Act since she had actual knowledge of the fraud, had a pending suit in the High Court since the year 2000, and it is inconceivable that she remained unaware of the fate of HCCC No. 2111 of 2000 from its dismissal in 2012 until 2019. 79.On the question of Res Judicata, the 4th Defendant submits that the instant suit is an abuse of Court process and is barred under Section 7 of the Civil Procedure Act. The 4th Defendant urges the Court that the Counterclaim filed by the Plaintiff in HCCC No. 2111 of 2000 sought orders identical in substance to the prayers in the present Plaint, namely cancellation and revocation of the title LR No. Ruiru/Ruiru East Block 5/229, eviction of the 4th Defendant, and a prohibition order restraining him from alienating or transferring the suit property. 80.The 4th Defendant places heavy reliance on the Court of Appeal decision in Co-operative Bank of Kenya Limited v Cosmas Mrombo Moka & Legacy Auctioneering Services [2019] eKLR, where the Court of Appeal held categorically that a matter dismissed for want of prosecution cannot be resuscitated through a fresh suit as doing so would offend the doctrine of Res Judicata, and that the best recourse available to such a party is to invoke the appellate process and not to file a fresh suit. He thus accordingly submits that the entire suit, including the Counterclaim that was dismissed in HCCC No. 2111 of 2000, cannot form the subject of fresh proceedings before this Court. 81.On the merits and in support of his Counterclaim, the 4th Defendant submits that he acquired the suit property as a bonafide purchaser for value without notice of any defect in title, and that his title ought to be protected under Section 80 of the Land Registration Act, which provides that the register shall not be rectified to affect the title of a proprietor who is in possession and acquired the land for valuable consideration unless the proprietor had knowledge of the fraud, mistake or omission or substantially contributed to it. 82.Reliance is placed on the East African Court of Appeal decision in Katende v Haridar & Company Limited [2008] 2 EA 173, cited with approval by the Court of Appeal in Kenya in Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v Attorney General & 4 Others [2017] eKLR where the Court held that a bonafide purchaser must prove that he holds a Certificate of Title, purchased in good faith, had no knowledge of the fraud, paid valuable consideration, the vendors had apparent valid title, he purchased without notice of any fraud, and was not a party to any fraud. The 4th Defendant further urges the Court, guided by Rawal v Rawal (1990) KLR 275, to take cognisance of the dangers of stale claims and the prejudice occasioned to a Defendant who has lost evidence for his defence through the lapse of time, and prays that the Plaintiff's suit be dismissed with costs and the Counterclaim be allowed as prayed. 83.I have read and considered the well-researched submissions by both Counsel for the Plaintiff and the 4th Defendant. The 5th Defendant did not file any submissions, by the time of writing this Judgment there were none on record. Analysis and Determination 84.The dispute before this Court centers on the legitimate proprietorship of Title Number Ruiru East Block 5/229. The Plaintiff, Sylvia Wanjiru Gathendu, asserts that her absolute ownership, registered on 12/01/1988, was subverted through a fraudulent scheme orchestrated by the 1st Defendant and subsequent purchasers. Conversely, the 4th Defendant, Francis Mwaura Mungara, raises a shield of indefeasibility, claiming status as a bona fide purchaser for value, while further contending that the suit is a stale claim barred by the doctrine of Res Judicata and the Limitation of Actions Act. 85.Having considered the pleadings filed the submissions and relevant authorities cited, I find that the key issues falling for determination before this Honourable Court are four in number, namely:i.Whether the suit is Res Judicata in light of the dismissal of HCCC No. 2111 of 2000.ii.Whether the suit is statute-barred by the operation of the Limitation of Actions Act.iii.Whether the 4th Defendant is a bona fide purchaser for value without notice.iv.Who holds the superior title to the suit property? 86.These issues do not stand in isolation from one another and their resolution must be approached holistically, having regard to the peculiar circumstances of this case, chiefly that the fraud forming the substratum of the Plaintiff's claim was visited upon her while she was resident abroad and that the title presently held by the 4th Defendant traces its root directly to a criminal case for which the 1st Defendant was convicted and sentenced. 87.On the issue of Res Judicata, the threshold requirement that the former suit must have been heard and finally determined on its merits is not met. This plea fails to meet the threshold established under Section 7 of the Civil Procedure Act. For a matter to be Res Judicata, it must have been heard and finally determined on its merits. HCCC No. 2111 of 2000 was dismissed for want of prosecution and no substantive determination was ever rendered on the competing proprietary claims of the parties. 88.The Court of Appeal in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR affirmed that a dismissal for want of prosecution does not constitute a decision on the merits capable of founding a plea of Res Judicata. This position was similarly adopted by the Environment and Land Court in Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR, where the Court held that for Res Judicata to operate as a bar, the matter in the former suit must have been directly and substantially in issue and decided upon by a Court of competent jurisdiction, conditions that are manifestly absent where a suit is dismissed for procedural default. Furthermore, and critically, the cause of action in HCCC No. 2111 of 2000 was trespass whereas the cause of action in the instant suit is fraud, and these are not the same. 89.This issue was also articulated by the Supreme Court in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR:“The doctrine of Res Judicata is intended to serve as a bar to a party from re-litigating a claim or an issue which has already been decided by a Court of competent jurisdiction... A dismissal for want of prosecution does not determine the rights of the parties and cannot, therefore, operate as Res Judicata to bar a subsequent suit founded on the same cause of action." 90.On the second issue of limitation; the Court notes that the Plaintiff obtained leave in Misc. App No. 68 of 2019 to file this suit out of time. This Court takes judicial notice of the provisions of Section 26 of the Limitation of Actions Act which suspends the running of time until the Plaintiff has discovered the fraud or could with reasonable diligence have discovered it. The Plaintiff's evidence that she was a German resident who lost communication with her Advocates, that matters pertaining to the suit property were alive in Court until 2012, and that she only discovered the fate of HCCC No. 2111 of 2000 upon her return in 2019, was neither effectively challenged nor dislodged in cross-examination. 91.The Court of Appeal in Kenya Posts and Telecommunications Corporation v Uhuru Highway Development Ltd & 3 Others [1999] eKLR recognised that time does not begin to run against a party who, through no fault of their own, was unable to discover the relevant facts underpinning their claim. Leave having been properly granted by this Court in Miscellaneous Application No. 68 of 2019, the suit is properly before the Court and the pleas of limitation and Res Judicata must both fail. 92.On the merits, the Plaintiff’s case is fortified by the maxim nemo dat quod non habet. The 1st Defendant was convicted in Criminal Case No. 5294 of 2000 of obtaining money by false pretence and making documents without authority, with the Court finding expressly that the Plaintiff is the original and legitimate registered proprietor of the suit property, having been registered as owner on 12/01/1988 that the suit property belonged to the Plaintiff. 93.The 4th Defendant, who testified that he was aware of the criminal proceedings and their outcome, cannot in those circumstances hide behind the shield of a bona fide purchaser. The Supreme Court in Petition No. 8 of 2021, Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR) laid down authoritatively that indefeasibility of title is not an absolute principle and that a title obtained through or traceable to fraud cannot be sustained regardless of the number of transactions through which it has passed. The Supreme Court’s decision was clear that:“The root of the title must be beyond reproach ... The principle of indefeasibility of title is not a cloak for the protection of titles acquired through fraud ... A person who acquires a title that is tainted by fraud cannot pass a clean title to a third party, for the simple reason that nemo dat quod non habet - no one can give what they do not have." 94.The Green Card for the suit property bears a restriction registered on 28/11/2006 forbidding any dealings until implementation of the Judgment in Criminal Case No. 5294 of 2000, a restriction which was extant at the time of the 4th Defendant's purported purchase and which ought to have placed him on notice. The High Court in Munyu Maina v Hiram Gathiha Maina [2013] eKLR held that a purchaser who proceeds with a transaction in the face of a restriction or caution registered against a title does so at his own peril and cannot thereafter lay claim to the protection afforded to a bonafide purchaser. The 4th Defendant’s plea of being a bona fide purchaser cannot stand where the root of the title is "sick”. As the Court stated in Munyu Maina v Hiram Gathiha Maina (supra):“We state that the registration of a person as a proprietor of land is not enough to confer an absolute and indefeasible title... where a title is challenged on the ground that it was obtained by fraud, the burden shifts to the person claiming the title to prove that the root of the title is not 'sick'. If the root is sick, the entire tree of the title, no matter how many branches it may have, must fall." 95.The evidence of PW-2, the Officer in Charge of Milimani Registry, demonstrated conclusively that the prayers produced by the 4th Defendant as having been made in HCCC No. 2111 of 2000 do not correspond with the actual Court record, a matter that gravely undermines the credibility of the 4th Defendant's case and the integrity of the documents upon which he relies. Disposal Orders 96.Having considered the pleadings, the evidence on record, and the submissions filed by the parties, this Court makes the following findings and Orders.i.The suit is neither Res Judicata nor time barred, and this Court was properly seized of jurisdiction to hear and determine the same.ii.A declaration is hereby issued that the Plaintiff is the legal and bonafide owner of all that parcel of land comprised in Title No. Ruiru/Ruiru East Block 5/229 having established her case on a balance of probabilities, to the required standard.iii.The title held by the 4th Defendant is tainted by fraud at its root and cannot be sustained; accordingly, the Land Registrar, Ruiru Registry, is hereby directed to cancel entries Numbers 4, 5, 6 and 7 in the register of Title No. Ruiru/Ruiru East Block 5/229 and to restore the Plaintiff as the registered proprietor thereof, pursuant to Section 79 of the Land Registration Act No. 3 of 2012.iv.A permanent injunction is hereby issued restraining the 4th Defendant, his servants, agents, employees and all persons claiming through him from alienating, charging, transferring or in any manner interfering with the suit property.v.The Counterclaim of the 4th Defendant is hereby dismissed with costs.vi.The costs of this suit and the Counter-claim are awarded to the Plaintiff and to be borne by the 4th Defendant.Orders accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 20TH DAY OF MAY, 2026.………………………MOGENI JJUDGEIn the presence of:Ms. Gitau for the Plaintiff1st and 2nd Defendants – AbsentMr. Murage holding brief for Tumu for the 3rd DefendantMr. Melita - Court Assistant