The Plaintiff filed a Plaint dated 27th September, 2016 which was amended on 10th May 2018 and further amended on 11th October, 2023. The Plaintiff sought the following orders:
a. A declaration that the Plaintiffs are the rightful and legal owners of all those parcels of land known as GILGIL/GILGIL BLOCK 1/16109, 16110, 16111, 16112, 16113, 16114, 16115, 16116, 16117, 16118, 16119, 16120, 16121, 16122, 16123, 16124, 16125, 16126, 16127, 16128, 16129, 16130, 16131, 16132, 16133, 16134,16135,16136, 16137, 16138, 16139, 16140, 16141, 16142, 16143, 16144, 16145, 16146 and 16147 each measuring approximately 2.151 hectares and cancellation of the title deeds issued to the Defendants herein.
b. A permanent injunction restraining the Defendants by themselves, their agents and or servants from trespassing, selling, advertising for sale, leasing, interfering, blocking, and or dealing, interfering in any way with the parcel of land known as GILGIL/GILGIL BLOCK 1/16109, 16110, 16111, 16112, 16113, 16114, 16115, 16116, 16117, 16118, 16119, 16120, 16121, 16122, 16123, 16124, 16125, 16126, 16127, 16128, 16129, 16130, 16131, 16132, 16133, 16134,16135,16136, 16137, 16138, 16139, 16140, 16141, 16142, 16143, 16144, 16145, 16146 and 16147.
c. Cost and interest at court rates.
d. Any such other or further relief as this Honourable Court would deem fit to grant.
PLAINTIFF’S CASE
David Gathii Mugweru testified as PW1. The court adopted his statement as part of his evidence in chief. He produced a list of documents at pages 101 to page 102 as PEX 1 to PEX25. He produced a further list of documents dated 10th May, 2018 which has two documents. The documents were marked as PEX No.26 and PEX No.27. He lives at Gilgil and that he is a member of Wazee Pamoja Self-help group. According to PW1, they were evicted from the land and their structures were destroyed despite court orders. PW1 prayed for judgment and issuance of titles. He testified that when they bought the land, it was not subdivided. He testified that they had bought 80 acres. PW1 testified that the suit revolves on land measuring three hundred acres.
Upon cross-examination by Mr. Kimotho, PW1 stated that he is the chairman of Wazee Pamoja self-help Group. He entered into agreement when the land was three-hundred acres and they bought eighty acres. PW1 stated that he was dealing with the officials of Mukenia Farmers Cooperative Society Ltd and he has the agreement at page 106 of the bundle. He stated that they were paying slowly however, that the agreement has no stamp. PW1 was shown page 108 of the bundle and stated that there is no name Mukenia Farmers Corporative Society. PW1 stated that they intended to buy one-hundred acres. PW1 was shown page 141 of the bundle and stated that there is no stamp of the cooperative society. PW1 stated that the money was paid to an employee of the chairlady of the defendant. PW1 was shown page 138 and stated that he paid Pauline Wambui Waitiki Kshs80,000/= and they had an agreement with Mukenia Farmers Co-operative Society Ltd. PW1 stated that he paid Salome, Ruth and Waitiki and they sent a letter to the corporate society.
PW1 was shown page 105 and stated that they were allowed to buy the land and that the officials agreed to sell and they were promised titles. They paid 4.2 million for 90 acres. PW1 further stated that they paid the money to Ruth Wanjiru. PW1 was shown page 157 of the bundle and stated that they paid Paul Chege Gitahi. PW1 stated that they were the owners of the land as they paid the debt. They paid Paul Chege Gitahi because the Sacco had not cleared with Chege Gitahi. PW1 confirmed that they do not have an agreement. They found the place was a forest and it was vacant. They were evicted by those who claimed to be owners of the land. On being questioned on the number of members, he stated that they were two-hundred members but he did not have the record in court. PW1 stated that they have a list of members and they were evicted in 2014.
PW1 further stated that he has title deeds at page 174 and they came out in the name of Mukenia Cooperative Society. PW1 stated that they have documents and that they gave the Ksh 400,000 for titles. PW1 stated that Mukenia Cooperative was registered on 12th July, 2023 and that the title was procured on 12th July, 2013. PW1 informed the court that their people were evicted in 2014. PW1 stated that there is no consent of the Land Control Board.
Upon re-examination by Mr. Waiganjo, PW1 testified that the land was being sold by Mukenia Corporative Society and they were buying 90 acres. They got 80 acres which they paid in full. PW1 stated that they were given possession and they took possession. PW1 stated that they were evicted in 2014 and they paid for the title. PW1 testified that they paid Mukenia Farmers Cooperative Society Ltd and had evidence. Mukenia Farmers Cooperative Society was to obtain consent of the Land Control Board. Chege Gitai was the original owner of the land. He was shown the documents and confirmed that Mukenia Farmers Cooperative Society was unable to pay the balance. They paid part of purchase price to Chege Gitai. They were instructed by Mukenia Farmers Cooperative Society Ltd to pay chege Gitai.
1st Defendant’s Case
Evans Muchai Kamau relied on his statement dated 29th September, 2023. He produced his documents as 1st DEX (1) – DEX 14. He testified that he is a businessman in Naivasha. He testified that he is the chairman Mukenia Farmers Cooperative Society Ltd that was registered in 1991 under the Co-operative Societies Act and as the chairperson he is aware that the society is regulated by the law. He stated that on 11th October, 2013, he was elected the Vice Chairperson of the society while Ruth Shadrack (deceased) was elected the Chairperson besides other officials.
He stated that he was elected to the position on 4th February, 2015 and he has been a member of the society since 1994. He stated that some renegade members and people who are none members have been colluding to paralyze the functions of the society. He stated that they have experienced break in’s in their offices and some stolen documents are in possession of the Plaintiff.
DW1 stated that the parcels of land mentioned in the plaint belong to the Defendant and are registered in the names of the Defendants except parcel numbers 16113,16114, 16117,16118,16119,16120,16121,16122 up to 16133 which belong to third parties who hold title documents over the same.
DW1 stated that he has seen several purported sale agreements and purported payment receipts allegedly issued by the Defendant and he stated that all those documents are forged and/or stolen from the Defendant. He stated that some of the produced agreements have been signed by people who are not officials of the society and have not been sealed by the seal of the society. DW1 stated that the society is not liable for transfer of any parcel of land to the Plaintiff. DW1 prayed that the Wazee Pamoja Self-Help group be evicted. DW1 testified that they have paid members on the land. He asked the court to dismiss the suit.
Upon cross-examination by Mr. Cheruiyot, DW1 stated that the 2nd – 14th defendants are members and have titles. DW1 stated that they were given the transfer and the land belongs to the 2nd – 14 defendants. DW1 stated that the 2nd – 14 defendants are in possession and some of the plaintiffs are in possession of the land.
Upon cross-examination by Mr. Waiganjo, DW1 stated that some plaintiffs are on the land and the land is approximately three-hundred acres. DW1 stated that he has never measured the land. DW1 stated that Ruth Shadrack was their chairlady and she was also known as Ruth Wanjiru Muraya. DW1 stated that he was the deputy from 2013 to 2015 but he did not know that the chairlady was selling land. DW1 stated that he knew that the company was selling land to the plaintiffs when they came to court. DW1 stated that he asked for documents of purchase but he was not given the same.
DW1 stated that he was called by the county committee on security. He stated that he went to the meeting and they met the District Commissioner on 26th April, 2016 and they agreed to go to the suit land on 4th May, 2016. He stated that the letter dated 26th April, 2016 refers to forty-five acres. DW1 stated further that they did not give the title as agreed. DW1 stated that the resolution of 26th February 2016 were made in his presence. DW1 stated that he is the one who reported theft at their office.
DW1 informed the court that they use the bank account and not petty cash vouchers. He stated that the receipts were done on 29th October, 2015 and the receipts were stolen in March 2013. DW1 stated that he can see some receipts issued on 25th May, 2012 and 14th May, 2012. He stated that at page 22 of the bundle are the receipts that were issued before 2013.
DW1 stated that in 2012, the chairlady was Ruth Washadrack. DW1 stated that he has seen the receipts in court. He stated that the former chairlady had the receipts and the receipts are genuine but were stolen from the company. DW1 stated that at page 169 of the bundle is the agreement which has his signature. DW1 stated that the signature is not his.
DW1 stated that he knows Pauline Wamboi Waitiki as the treasurer. DW1 stated that Salome is the vice chair and they are officials of the company but not as designated in the agreement. DW1 stated that Pauline Wambui Waitiki was the treasurer but she is referred to as the secretary. He signed the letter dated 9th December, 2014. DW1 stated that they received the money being Kshs200,000 to get titles for Wazee Pamoja Self Help Group. The document is deponed before Aggrey Simiyu, an Advocate. DW1 stated that Olonyi & Co. Advocates was Mukenia Farmers Co-operative Society’s Ltd legal counsel. DW1 stated that Wazee Pamoja Self Help Group paid Olonyi & Co Advocates and it was for the acknowledgment. DW1 stated that the letter dated 30th December, 2013 has a stamp that does not belong to the company. He stated that the signature does not belong to him and the letter was sent to Wazee Pamoja Self Help Group. DW1 stated that page 1 and 2 is a letter dated 14th January, 2014 and the same is not signed by Ruth. DW1 stated that he does not remember a meeting on 10th July, 2015 and he is not aware of a meeting on 26th February, 2016. DW1 stated that he does not remember an agreement with a buyer. DW1 stated that the 2nd – 14th defendants were sold land by Mukenia Farmers Co-operative Society Ltd but he does not have an agreement. DW1 stated that he has the registration for members which he has not adduced in court. DW1 stated that the 2nd – 14th defendants are in the register for members and the same is in Nairobi. DW1 stated that the parcel belongs to members. DW1 stated that the company went under liquidation in November 2019.
Upon re-examination, DW1 testified that the documents produced were accessible to the chairlady. He testified that the claimants are strangers.
Philip Uluma Ukhevi relied on two statements dated 15th February, 2024 which was adopted by the court as part of his evidence in chief. He testified that he is a senior DC corporation and he works with the Ministry of Co-operative developments, Ministry of corporative and SMEs. DW2 stated on oath that in this matter, he is the liquidator of Mukenia Farmers Co-operative Society. DW2 went on to produce the documents dated 15th February, 2024 which were marked as DEX15,16,17. DW2 stated that he is familiar with this matter and there is no document handed to him to show that the corporation sold the property to Wazee Pamoja Self Help Group. DW2 stated that he is not aware of the letter dated 1st February, 2002 and it is addressed to the chairlady. DW2 stated that Ruth Wanjiru Shadrack was in charge of the cooperative. DW2 stated that the sale agreement of 17th April, 2012 between Wazee Pamoja Self Help Group and Ruth Wanjiru Muraya. DW2 stated that Ruth Wanjiru was selling the land to Wazee Pamoja Self Help Group. DW2 stated that the land was being sold by an individual and not the society. DW2 stated that there is a bank cheque received on 5th April, 2012 and the beneficiary was Ruth Wanjiru Muraya.
DW2 stated that such transactions are to be signed by the authorized officials being the chair person, treasurer and secretary. DW2 stated that they execute what has been passed by the board. DW2 referred to clause 44 of the bylaws and stated that the letter dated 19th September, 2013 is from the District Company officers to the Deputy County Commissioner giving a brief of the society. DW2 stated that the officials of the society had not sold any land.
DW2 stated that there is no evidence that the 1st defendant received any money. DW2 stated that there is no agreement between Wazee Pamoja Self Help Group and Mukenia Self-help group society. DW2 stated that Mukenia Farmer co-operative society have a right to the land. DW2 prayed that the case be dismissed with costs.
In his witness statement dated 15th February, 2024, DW2 stated that he was appointed as the official liquidator of the 1st Defendant on 8th November, 2019 a position he holds to date. He stated that at no single time is any official or committee member allowed to transact in their own personal capacity and purport to be acting or transacting on behalf of the society.
DW2 stated that the Plaintiffs purport to have purchased the suit parcels of land from the Society when in fact the documents that they have availed confirm that they transacted with the then chairlady of the society one Ruth Wanjiru Shadrack in her personal capacity and not the society. He stated that the Plaintiffs are not members of the Society and were not eligible to buy any alleged shares and therefore could not have been issued with any receipts.
DW2 stated that the management committee is entitled to sell land only after a resolution has been passed. He stated that the Plaintiffs do not have any legitimate claim against the 1st Defendant and if they entered into agreements with the former chairlady, they ought to have directed their claim against the said individual.
Upon cross-examination by Mr. Cheruiyot, DW2 stated that there was no sale between the plaintiff and 1st defendant. He stated that he has no case against the 2nd defendant and he is aware that there are people with title deeds.
Upon cross-examination by Mr. Waiganjo, DW2 stated that Mukenia Farmers’ Co-operative was put under liquidation on 8th November, 2018 and normally liquidation is gazetted. DW2 stated that he has not produced the gazette notice placing Mukenia Farmers Co-operative Society under liquidation. DW2 stated that liquidation takes one year in office. DW2 stated that he has the gazette notice no 1240. He stated that this notice was an extension for six months from 5th December 2023. DW2 stated that he has not produced any gazette notice after the expiry of six months. DW2 was shown the by-laws and stated that the document is not certified as a true copy. DW2 stated that the document is not signed and the last page is not there but he can avail it.DW2 stated that he has the register of members in his office and he has not produced the register. DW2 stated that they do not keep records of the society and they are filed at the commissioner.
DW2 stated that he is in charge of liquidation and Wazee Pamoja Self Help Group are alleging paying some money to Mukenia Farmers Corporation. DW2 stated that it was against the law not to do an audit. DW2 stated that there are no annual returns. DW2 stated that no action was taken against any officer. DW2 further stated that the Wazee Pamoja Self Help Group had a claim and brought some documents to his office. DW2 stated that he put a notice in a local newspaper and they investigated their claim in a liquidation committee comprising of Evans Machage and eight others. DW2 stated that he was the chair of the committee and there was a secretary. DW2 stated that the chair of Wazee Pamoja Self Help Group was placed before him. He stated that the chairman of Mukenia Farmers Corporative Society Ltd was a member of the committee.
DW2 further stated that they had Evans Ndungu and Evans Muchai Kamau. He stated that he collected information and they came up with a list of claimants. DW2 stated that they have not completed their work. He stated that Wazee Pamoja submitted a claim and that Mukenia did not sell land to Wazee Pamoja and the claim in their office for consideration.
DW2 stated that he has seen the certificate of regulations of Wazee Pamoja self-help group and he can see an allotment letter from GEMA to Mukenia at page 104 of the bundle. DW2 stated that he knows Mukenia Farmers Cooperative Society Ltd bought that land from GEMA and the original L.R mutation is not known to him. DW2 stated that the titles are in plots of five acres each. DW2 stated that they were fifty-four plots in total and it was a five-acre parcel located at Taita farm.
DW2 was shown receipts at page116 of the bundle and stated that by the time he was taking over, they had no office. DW2 stated that he is not aware of any office and the corporative was issuing receipts. DW2 stated that he has seen receipts purported to be issued by Mukenia Farmers Corporative Ltd. DW2 stated that he can see a rubber stamp for Mukenia. DW2 stated that he became the official liquidator in 2019. DW2 further stated that he has investigated the receipts and he has no written report about the receipts. DW2 stated that the receipts dated 2nd August, 2012 is for Ksh 400,000/=.
DW2 further stated that he does not have a financial report in court and that the plaintiffs were dealing with the chairlady. He stated that the money was being paid at an individual account and he has not produced the details of Mukenia Bank account. DW2 was shown a sale agreement dated 29th October, 2013 and stated that it is dated 29th October, 2013. He stated that the chairperson is Evans M Kamau and there is Pauline Waithera and Salome Njeri.
DW2 stated that every Co-operative Society has a minute book and officials keep resolution and minutes. DW2 stated that he does not have the minute book and resolution book and that the agreement is for sale of land and the signatories were officials of the group.
DW2 stated that they do not have a resolution for sale of land to the defendants. DW2 stated that the claim for Wazee Pamoja Self Help Group is pending on his desk. DW2 stated that he has a list of over five hundred members who did not have land. DW2 stated that the total list is about that number and members submitted their claims. DW2 stated that he does not have a list before the court.
Upon re-examination by Mr. Were, DW2 testified that he did not file the original gazettement. He testified that the notice was in force and it expired in May 2024. DW2 testified that he did an application for extension and they have not gazetted. DW2 testified that he is holding office but there is no extension. DW2 testified that normally there are delays. DW2 testified that the by- laws were signed by the commissioner of cooperatives.
DW2 further testified that he did not file the register of members. He testified that they have about five hundred and twenty members. He testified that the plaintiffs brought receipts and he is yet to confirm their membership. DW2 testified that he has not seen any dispute between them. DW2 testified that the 1st defendant bought the land from GEMA. He testified that the titles were for fifty-four plots of five acres each. DW2 testified that they are claiming thirty-nine plots. DW2 testified that the balance are thirteen plots. He testified that there are fifty-one plots in number and they paid Ksh 50,000 and also Ksh 350,600.
DW2 testified that a member was paying a share at Ksh 12000/=. DW2 was shown a share receipt dated 16th April, 1994 and stated that the amount was Ksh12, 500/=. DW2 stated that the sale agreement at page 170 shows that the chair was not Evans but Shadrack. 2-14TH DEFENDANTS CASE
Isaiah Makori Orori relied on his statement dated 30th May, 2019 which was adopted by the court as part of his evidence in chief. He testified as DW3 that he lives in Molo and that he is a farmer. He produced a letter of authority allowing him to give evidence as 14DEX 1. DW3 testified that they bought the land from members. That there was no person on the land. That he bought parcels 16/130,16/131, 16/132. That there was only one member on the land. They bought the parcel in 2016 and it is now ten years. That nobody has claimed the parcels of land and that they have never colluded with the 1st Defendant Company. They bought land from general members. There was only one member on the land. They bought land from genuine members. They did due diligence and saw the beacons. He testified that they went to the advocate for the agreement. DW3 testified that he does not know Wazee Pamoja Self Help Group. DW3 testified that he has documents dated 30th May, 2019 and filed on 7th June, 2019. DW2 produced the bundles of sale agreement as 14DEX2. He also produced the certificate of official search as 14DEX 3 (a) (b) (c). DW3 produced the Land Control Board consent as 14 DEX4. DW3 produced a bundle of title deed as 14DEX5 and a bundle of Registration as 14 DEX5. DW3 testified that he has a bundle of Register which he produced as 14 DEX 6 and he prayed that the suit be dismissed.
In his witness statement dated 30th May, 2019, DW3 stated that the suit parcels are duly registered to the 2nd-14th Defendants as the legal and absolute owners. He stated that they acquired the suit parcel of land for value and entered into sale agreements with the Defendants. DW3 stated that the parcels of land were initially registered to the 1st Defendant who later sold to the 2nd-14th Defendants and subsequently registered to the 2nd-14th Defendants. He stated that the 2nd-14th Defendants occupy their respective parcels of land and have extensively developed the same.
DW3 stated that due diligence was undertaken as expected of any prudent purchaser by conducting official searches, obtaining the relevant consents and had the properties transferred to their respective Defendants. DW3 stated that they are innocent purchasers for value and without notice, duly entitled to their respective parcels of land.
Upon cross-examination by Mr. Waiganjo, DW3 stated that he is not a member of Mukenia Co-operative Society. He stated that they bought land from members of Mukenia Co-operative society. DW3 stated that he does not have the register of members and he has never seen the register. DW3 stated that Mukenia Farmers Co-operative Society sold to the 2nd -14 defendants and the land was sold to them by members of Mukenia Co-operative not the society.
DW3 stated that when the land was sold, it was in the names of Mukenia Farmers Co-operative society. DW3 stated that members were selling land under Mukenia Farmers co-operative society and they bought through the officials. DW3 stated that he made his statement on 30th May, 2019 and there is no statement of the seller. DW3 stated that Wamuchai Salome Njeri received money and the money was a payment of the balance. He stated that Salome Njeri Kariuki in the two agreement is the same person. DW3 stated that Salome Njeri Kariuki is an official of Mukenia Farmers Co-operative Society Ltd. He stated that Loice Wamucii Wailuci was also a member of Mukenia Farmers Co-operative Society Ltd. DW3 stated that the plot number is block 1/16127. He stated that there is a typing error. DW3 stated that the agreement has never been amended and at this time there were titles. He stated that the third agreement has a witness of Benigha Njoki. DW3 stated that he never saw any agreement between Pauline and Waithiki.
DW3 stated that Pauline was the treasurer and the agreement was on behalf of the members. He stated that it was not on behalf of Mukenia Farmers Co-operative Society Ltd. DW3 stated that all titles were in the name of Mukenia Farmers Co-operative Society Ltd. He stated that Block 1/16129 belonged to Mukenia Farmers Co-operative Society Ltd. DW3 stated that he is not aware that on 11th May, 2017, the court had issued an injunction. DW3 stated that Pauline was an official.
DW3 was shown the agreement dated 12th January, 2016 and stated that Block 1/6117 is not the current number.
DW3 stated that he has not seen any minute showing that Mukenia Farmers Co-operative Society Ltd sent an agreement to sell land. DW3 stated that there are no corrections on the agreement and the agreement does not have the second page. DW3 stated that Salome Njeri Kariuki was an official of Mukenia Farmers Co-operative Society Ltd and she was selling her share of the land. DW3 stated that she was a shareholder. DW3 stated that she was not given any document to show that Salome was the owner of the land.
DW3 stated that Loice was selling as a member and he was not given any document.
DW3 stated that he knows Mary Mukami Mwangi as a member and he does not know the signature of Mary Mukami Mwangi. DW3 was shown DEX14 and stated that he has two searches for parcels 161126 and 16127. DW3 stated that the other searches were not brought to court. DW3 stated that he has a sale agreement for members but not form the society.
Upon re-examination, DW3 testified that the agreement was for parcels 16126- 16137, 16125 and 16127. He testified that there is some typing error. He testified that he was not aware of the court order stopping the sale and he came to know about this case in 2018. DW3 testified that he knows Salome as a member. DW3 testified that they were selling as members and he has no agreement with Mukenia Farmers Co-operative Society Ltd because he bought from the members. He testified that the officials and liquidator gave evidence. He testified that he bought from the members
Plaintiff’s Submissions
Counsel for the Plaintiff filed submissions dated 30th January 2026. Counsel submitted that the 1st Defendant entered into several agreements with the Plaintiff and took money in the form of a purchase price and allowed the Plaintiff members to take possession of the land. Counsel submitted that it would be unfair and unjust not to complete the process by allocating the Plaintiff’s the parcels of land which are in dispute before the court.
Counsel submitted that the failure if any to have the sale agreements executed by all three officers of the society is a mere technicality and cannot be used to prevent this court from administering substantive justice. Counsel submitted that the 2nd-14th Defendants obtained the suit parcels of land unlawfully and illegally. Counsel submitted that the Plaintiff has proved the case on a balance of probabilities and is entitled to the reliefs sought in the amended Plaint. Reliance was placed on Articles 10 (1), 40, and 159 of the Constitution of Kenya, Section 26 of the Land Registration Act and the following cases: Violet Wanjiru Kihika vs Anthony Kanyiri Nakuru ELCA 005 of 2023, Ruth Ndume Mwangangi vs Joseph Mbithi Nthenge & another [2022] eKLR, Virginia Ciamati Murage & another vs Stanley Advane Kirimi [2021] eKLR and Willy Kimutai Kitilit vs Michael Kibet [2018] eKLR.
1st Defendant’s Submissions
Counsel for the 1st Defendant filed submissions dated 26th January, 2026. Counsel submitted that the Plaintiffs wrongly sued the 1st Defendant for there is no nexus between the personal actions done by the former chairlady and the Plaintiffs. Counsel submitted that there has been overwhelming evidence to show that the Plaintiffs did not transact with the 1st Defendant but dealt directly with Ruth Wanjiru Muraya Shadrack (deceased). Counsel prayed that the suit against the 1st Defendant be dismissed with costs. Counsel relied on the following cases: Bugerere Coffee Growers Ltd vs Sebaduka & another (1970) EA 147, Kunyobo vs Olubwa & another (Environment & Land Case 216 of 2014) [2023], Kuria Kiarie & 2 others vs Sammy Magera [2018] eKLR, Bahati Murwa vs Faulu Kenya Ltd (2021) and Cherutich vs Mburu & 4 others (2022).
2nd -14th Defendants Submissions
Counsel for the 2nd-14th Defendants filed submissions dated 2nd February, 2026. Counsel submitted that the Plaintiffs have failed to prove any fraud, illegality or misrepresentation on the part of the 2nd’14th Defendants. Counsel submitted that no evidence was tendered to demonstrate any fault, impropriety or unlawful conduct on the part of the 1st Defendant capable of tainting the titles held by the 2nd- 14th Defendants.
Counsel submitted that the 2nd-14th Defendants are innocent purchasers for value of the suit parcels of land and the Plaintiffs have not discharged the burden of proof required in law to sustain the allegations of fraud, illegality or collusion against them. Counsel urged the court to dismiss the Plaintiff’s suit with costs to the 2nd-14th Defendants. Counsel relied on Article 159 of the Constitution of Kenya, Section 26 (1) of the Land Registration Act, Section 107 of the Evidence Act and the following cases: Tarabana Company Limited vs Sehmi & 7 others [2021] KECA 76 (KLR), Elizabeth Wambui Githinji & 29 others vs Kenya Urban Roads Authority & 4 others [2019] KECA 706 (KLR) and Kunyobo vs Olubwa & another (Environment & Land Case No 216 of 2014) [2023].
Analysis And Determination
The issues for determination are:
a. Whether the 1st Defendant sold the suit parcels to the Plaintiff?
b. Whether the Plaintiff is entitled to the orders sought in the further amended Plaint dated 11th October, 2023.
It is the Plaintiffs case that on or about February 2012, they entered into an agreement with the 1st Defendant through their then chair lady Ruth Wanjiru Muraya (now deceased) for the purchase of 100 acres of L.R No 11106 in Gilgil. They aver that they bought 90 acres from the 1st Defendants, made all relevant payments and the Plaintiffs and their members took possession of their various parcels of land. It is the Plaintiffs case that in May 2012, the 1st Defendant directed the Plaintiff to pay Ksh 500,000/= which the Plaintiff proceeded to pay to Paul Chege Gitahi on account of the purchase price between the Defendant and Paul Chege Gitahi for the suit land.
The Plaintiffs averred that sometime in December 2013, the 1st Defendant herein through a letter alleged that the Plaintiff had a balance of Ksh 2,638,500/= for the parcel of land but the then Chairlady of the 1st Defendant company in a letter dated January 2014 advised the Plaintiff not to make further payments.
The Plaintiffs averred that it has paid to the 1st Defendant a sum of Ksh 4,256,000/= between February 2012 and September 2013 for the purchase of the said parcels of land and receipts issued to that effect. It is the Plaintiff’s case that despite making all the payments, the 1st Defendant has refused to surrender the title deeds to the Plaintiff and its members. The Plaintiff averred that the 1st Defendant has threatened and started advertising the suit properties for sale to third parties. The Plaintiffs averred that they have discovered the 1st Defendant has since sold and transferred various portions of the subdivisions to the 2nd-14th Defendants. The Plaintiff lists the particulars of fraud and misrepresentation as against the 1st Defendant and the particulars of negligence and fraud a s against the 2nd-14th Defendants.
The Plaintiff averred that the 1st Defendant is acting contrary to their agreement and is attempting to interfere with the Plaintiffs rights to property without any justification and or consideration to the Plaintiffs.
It is the 1st Defendant’s case that if the Plaintiffs purchased the suit properties from Ruth Wanjiru Shadrack, the same was done without the authority of the 1st Defendant as no resolution was made by neither the 1st Defendant’s Board of Directors nor its members and thus the said sale was null and void. It is the 1st Defendant’ case that the sale agreement if any between the Plaintiff and Ruth Wanjiru Shadrack (now deceased) was void for want of consent from the Land Control Board as per the Land Control Act Cap 302 Laws of Kenya which is necessary before any transfer hence the agreement was not binding.
In the case of Anne Wambui Nderitu vs Joseph Kiprono Rapkoi & Another [2005] IEA 334, the Court of Appeal held as follows:
“As a general proposition under Section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act”.
The Plaintiff has adduced a copy of the sale agreement dated 13th February, 2012 and a copy of the sale agreement dated 17th April, 2012. The sale agreement dated 13th February, 2012 states that it is made between the officials of Mukenia Farmers Co-operative Society. The same is signed on behalf of Mukenia Co-operative society by Ruth Wanjiru Muraya.
The agreement dated 17th April, 2012 states as follows: “This agreement is between Wazee Pamoja Self Help Group and Ruth Wanjiru Muraya. I Ruth Wanjiru Muraya have agreed to sell to Wazee Pamoja Self Help Group a piece of land rating one hundred acres (100 acres) at a price of Fifty Thousand Kenya Shillings (Kshs 50,000) per acre.”
In the case of Daniel Kiprugut Maiywa v Rebecca Chepkurgat Maina [2019] KEELC 842 (KLR) the Court held that:
“The nemo dat principle means one cannot give what one does not have. This principle is intended to protect the title of the true owner. The rationale behind this principle is that whoever owns the legal title to property holds the title thereto until he or she decides to transfer it to someone else.”
The Court of Appeal in Mwangi James Njehia vs Janetta Wanjiku Mwangi & Another [2021]KECA 768 observed that the formulation in Katende vs Haridar & Company Ltd (2008) 2 EA 173 particularly the requirement that the vendor need only have an “apparent” valid title, was no longer sound. The Court held that the notion of “apparent” title should be omitted altogether. Accordingly, only a purchaser who acquires title from a person with a valid and lawful interest can invoke the doctrine of bona fide purchaser.
It is clear that the sale agreement dated 17th April, 2012 was made between Wazee Pamoja Self Help Group and Ruth Wanjiru Muraya. The 1st Defendant was not involved. In respect of the agreement dated 13th February, 2012, it states that Ruth Wanjiru Muraya is signing the agreement on behalf of Mukenia Co-operative Society. The same agreement states as follows: ‘At the time of signing this agreement, title deed is being held by the owner of the land pending transfer to the society after outstanding debt paid to the owner,”
According to the nemo dat principle, one cannot give what one does not have. The Plaintiffs transacted with Ruth Wanjiru Muraya in Salomon v A Salomon & Co Ltd [1896] is a landmark House of Lords case that established separate legal personality and limited liability. It confirmed that a legally incorporated company is a distinct entity separate from its shareholders, meaning personal assets cannot typically be seized to pay corporate debts.
March, 2012 showing that Ruth Wanjiru Muraya was the beneficiary of Ksh 500,000/=. The Plaintiffs have also adduced a sale agreement dated 2nd August 2012 showing that Ruth Wajiru Muraya received Ksh 400,000/= from Wazee Pamoja Self Help Group officials.
In Kolaba Enterprises Ltd Vs Shamsudin Hussein Varvani & ANO (2014) eKLR the court held that: -
“it should be appreciated that the separate corporate personality is the best legal innovation ever in company law. See the famous case of Salomon & Co. Ltd v Salomon [1897] AC 22 H.L that a company is different person altogether from its subscribers and directors. Although it is a fiction of the law, it still is as important for all purposes and intents in nay proceedings where a company is involved. Needless to say, that separate legal personality of a company can never be departed from except in instances where the statute or the law provides for the lifting or piercing of the corporate veil, say when the directors or members of the company are using the company as a vehicle to commit fraud or other criminal activities.”
In Riccatti Business College of East Africa Limited V Kyanzavi Farmers Company Limited [ 2016] eKLR cited with authority the case of Victor Mabachi & Anor & Nurtun Bates Limited [2013] eKLR where Court while dealing with the issue of the distinct legal entity of corporate bodies held that:-“[ A company] as a body corporate, is persona juristic, with a separate independent identity in law, distinct from its shareholders, directors and agents unless there are factors warranting a lifting of the veil.” This court finds that the 1st Defendant Company did not sell the suit properties to the Plaintiff. The Court finds that the Plaintiffs suit lacks merit and is hereby dismissed with costs.
DATED, SIGNED AND DELIVERED ELECTRONICALLY ON THE 29TH MAY, 2026.
a. A declaration that the Plaintiffs are the rightful and legal owners of all those parcels of land known as GILGIL/GILGIL BLOCK 1/16109, 16110, 16111, 16112, 16113, 16114, 16115, 16116, 16117, 16118, 16119, 16120, 16121, 16122, 16123, 16124, 16125, 16126, 16127, 16128, 16129, 16130, 16131, 16132, 16133, 16134,16135,16136, 16137, 16138, 16139, 16140, 16141, 16142, 16143, 16144, 16145, 16146 and 16147 each measuring approximately 2.151 hectares and cancellation of the title deeds issued to the Defendants herein.
b. A permanent injunction restraining the Defendants by themselves, their agents and or servants from trespassing, selling, advertising for sale, leasing, interfering, blocking, and or dealing, interfering in any way with the parcel of land known as GILGIL/GILGIL BLOCK 1/16109, 16110, 16111, 16112, 16113, 16114, 16115, 16116, 16117, 16118, 16119, 16120, 16121, 16122, 16123, 16124, 16125, 16126, 16127, 16128, 16129, 16130, 16131, 16132, 16133, 16134,16135,16136, 16137, 16138, 16139, 16140, 16141, 16142, 16143, 16144, 16145, 16146 and 16147.
c. Cost and interest at court rates.
d. Any such other or further relief as this Honourable Court would deem fit to grant.
PLAINTIFF’S CASE
David Gathii Mugweru testified as PW1. The court adopted his statement as part of his evidence in chief. He produced a list of documents at pages 101 to page 102 as PEX 1 to PEX25. He produced a further list of documents dated 10th May, 2018 which has two documents. The documents were marked as PEX No.26 and PEX No.27. He lives at Gilgil and that he is a member of Wazee Pamoja Self-help group. According to PW1, they were evicted from the land and their structures were destroyed despite court orders. PW1 prayed for judgment and issuance of titles. He testified that when they bought the land, it was not subdivided. He testified that they had bought 80 acres. PW1 testified that the suit revolves on land measuring three hundred acres.
Upon cross-examination by Mr. Kimotho, PW1 stated that he is the chairman of Wazee Pamoja self-help Group. He entered into agreement when the land was three-hundred acres and they bought eighty acres. PW1 stated that he was dealing with the officials of Mukenia Farmers Cooperative Society Ltd and he has the agreement at page 106 of the bundle. He stated that they were paying slowly however, that the agreement has no stamp. PW1 was shown page 108 of the bundle and stated that there is no name Mukenia Farmers Corporative Society. PW1 stated that they intended to buy one-hundred acres. PW1 was shown page 141 of the bundle and stated that there is no stamp of the cooperative society. PW1 stated that the money was paid to an employee of the chairlady of the defendant. PW1 was shown page 138 and stated that he paid Pauline Wambui Waitiki Kshs80,000/= and they had an agreement with Mukenia Farmers Co-operative Society Ltd. PW1 stated that he paid Salome, Ruth and Waitiki and they sent a letter to the corporate society.
PW1 was shown page 105 and stated that they were allowed to buy the land and that the officials agreed to sell and they were promised titles. They paid 4.2 million for 90 acres. PW1 further stated that they paid the money to Ruth Wanjiru. PW1 was shown page 157 of the bundle and stated that they paid Paul Chege Gitahi. PW1 stated that they were the owners of the land as they paid the debt. They paid Paul Chege Gitahi because the Sacco had not cleared with Chege Gitahi. PW1 confirmed that they do not have an agreement. They found the place was a forest and it was vacant. They were evicted by those who claimed to be owners of the land. On being questioned on the number of members, he stated that they were two-hundred members but he did not have the record in court. PW1 stated that they have a list of members and they were evicted in 2014.
PW1 further stated that he has title deeds at page 174 and they came out in the name of Mukenia Cooperative Society. PW1 stated that they have documents and that they gave the Ksh 400,000 for titles. PW1 stated that Mukenia Cooperative was registered on 12th July, 2023 and that the title was procured on 12th July, 2013. PW1 informed the court that their people were evicted in 2014. PW1 stated that there is no consent of the Land Control Board.
Upon re-examination by Mr. Waiganjo, PW1 testified that the land was being sold by Mukenia Corporative Society and they were buying 90 acres. They got 80 acres which they paid in full. PW1 stated that they were given possession and they took possession. PW1 stated that they were evicted in 2014 and they paid for the title. PW1 testified that they paid Mukenia Farmers Cooperative Society Ltd and had evidence. Mukenia Farmers Cooperative Society was to obtain consent of the Land Control Board. Chege Gitai was the original owner of the land. He was shown the documents and confirmed that Mukenia Farmers Cooperative Society was unable to pay the balance. They paid part of purchase price to Chege Gitai. They were instructed by Mukenia Farmers Cooperative Society Ltd to pay chege Gitai.
1st Defendant’s Case
Evans Muchai Kamau relied on his statement dated 29th September, 2023. He produced his documents as 1st DEX (1) – DEX 14. He testified that he is a businessman in Naivasha. He testified that he is the chairman Mukenia Farmers Cooperative Society Ltd that was registered in 1991 under the Co-operative Societies Act and as the chairperson he is aware that the society is regulated by the law. He stated that on 11th October, 2013, he was elected the Vice Chairperson of the society while Ruth Shadrack (deceased) was elected the Chairperson besides other officials.
He stated that he was elected to the position on 4th February, 2015 and he has been a member of the society since 1994. He stated that some renegade members and people who are none members have been colluding to paralyze the functions of the society. He stated that they have experienced break in’s in their offices and some stolen documents are in possession of the Plaintiff.
DW1 stated that the parcels of land mentioned in the plaint belong to the Defendant and are registered in the names of the Defendants except parcel numbers 16113,16114, 16117,16118,16119,16120,16121,16122 up to 16133 which belong to third parties who hold title documents over the same.
DW1 stated that he has seen several purported sale agreements and purported payment receipts allegedly issued by the Defendant and he stated that all those documents are forged and/or stolen from the Defendant. He stated that some of the produced agreements have been signed by people who are not officials of the society and have not been sealed by the seal of the society. DW1 stated that the society is not liable for transfer of any parcel of land to the Plaintiff. DW1 prayed that the Wazee Pamoja Self-Help group be evicted. DW1 testified that they have paid members on the land. He asked the court to dismiss the suit.
Upon cross-examination by Mr. Cheruiyot, DW1 stated that the 2nd – 14th defendants are members and have titles. DW1 stated that they were given the transfer and the land belongs to the 2nd – 14 defendants. DW1 stated that the 2nd – 14 defendants are in possession and some of the plaintiffs are in possession of the land.
Upon cross-examination by Mr. Waiganjo, DW1 stated that some plaintiffs are on the land and the land is approximately three-hundred acres. DW1 stated that he has never measured the land. DW1 stated that Ruth Shadrack was their chairlady and she was also known as Ruth Wanjiru Muraya. DW1 stated that he was the deputy from 2013 to 2015 but he did not know that the chairlady was selling land. DW1 stated that he knew that the company was selling land to the plaintiffs when they came to court. DW1 stated that he asked for documents of purchase but he was not given the same.
DW1 stated that he was called by the county committee on security. He stated that he went to the meeting and they met the District Commissioner on 26th April, 2016 and they agreed to go to the suit land on 4th May, 2016. He stated that the letter dated 26th April, 2016 refers to forty-five acres. DW1 stated further that they did not give the title as agreed. DW1 stated that the resolution of 26th February 2016 were made in his presence. DW1 stated that he is the one who reported theft at their office.
DW1 informed the court that they use the bank account and not petty cash vouchers. He stated that the receipts were done on 29th October, 2015 and the receipts were stolen in March 2013. DW1 stated that he can see some receipts issued on 25th May, 2012 and 14th May, 2012. He stated that at page 22 of the bundle are the receipts that were issued before 2013.
DW1 stated that in 2012, the chairlady was Ruth Washadrack. DW1 stated that he has seen the receipts in court. He stated that the former chairlady had the receipts and the receipts are genuine but were stolen from the company. DW1 stated that at page 169 of the bundle is the agreement which has his signature. DW1 stated that the signature is not his.
DW1 stated that he knows Pauline Wamboi Waitiki as the treasurer. DW1 stated that Salome is the vice chair and they are officials of the company but not as designated in the agreement. DW1 stated that Pauline Wambui Waitiki was the treasurer but she is referred to as the secretary. He signed the letter dated 9th December, 2014. DW1 stated that they received the money being Kshs200,000 to get titles for Wazee Pamoja Self Help Group. The document is deponed before Aggrey Simiyu, an Advocate. DW1 stated that Olonyi & Co. Advocates was Mukenia Farmers Co-operative Society’s Ltd legal counsel. DW1 stated that Wazee Pamoja Self Help Group paid Olonyi & Co Advocates and it was for the acknowledgment. DW1 stated that the letter dated 30th December, 2013 has a stamp that does not belong to the company. He stated that the signature does not belong to him and the letter was sent to Wazee Pamoja Self Help Group. DW1 stated that page 1 and 2 is a letter dated 14th January, 2014 and the same is not signed by Ruth. DW1 stated that he does not remember a meeting on 10th July, 2015 and he is not aware of a meeting on 26th February, 2016. DW1 stated that he does not remember an agreement with a buyer. DW1 stated that the 2nd – 14th defendants were sold land by Mukenia Farmers Co-operative Society Ltd but he does not have an agreement. DW1 stated that he has the registration for members which he has not adduced in court. DW1 stated that the 2nd – 14th defendants are in the register for members and the same is in Nairobi. DW1 stated that the parcel belongs to members. DW1 stated that the company went under liquidation in November 2019.
Upon re-examination, DW1 testified that the documents produced were accessible to the chairlady. He testified that the claimants are strangers.
Philip Uluma Ukhevi relied on two statements dated 15th February, 2024 which was adopted by the court as part of his evidence in chief. He testified that he is a senior DC corporation and he works with the Ministry of Co-operative developments, Ministry of corporative and SMEs. DW2 stated on oath that in this matter, he is the liquidator of Mukenia Farmers Co-operative Society. DW2 went on to produce the documents dated 15th February, 2024 which were marked as DEX15,16,17. DW2 stated that he is familiar with this matter and there is no document handed to him to show that the corporation sold the property to Wazee Pamoja Self Help Group. DW2 stated that he is not aware of the letter dated 1st February, 2002 and it is addressed to the chairlady. DW2 stated that Ruth Wanjiru Shadrack was in charge of the cooperative. DW2 stated that the sale agreement of 17th April, 2012 between Wazee Pamoja Self Help Group and Ruth Wanjiru Muraya. DW2 stated that Ruth Wanjiru was selling the land to Wazee Pamoja Self Help Group. DW2 stated that the land was being sold by an individual and not the society. DW2 stated that there is a bank cheque received on 5th April, 2012 and the beneficiary was Ruth Wanjiru Muraya.
DW2 stated that such transactions are to be signed by the authorized officials being the chair person, treasurer and secretary. DW2 stated that they execute what has been passed by the board. DW2 referred to clause 44 of the bylaws and stated that the letter dated 19th September, 2013 is from the District Company officers to the Deputy County Commissioner giving a brief of the society. DW2 stated that the officials of the society had not sold any land.
DW2 stated that there is no evidence that the 1st defendant received any money. DW2 stated that there is no agreement between Wazee Pamoja Self Help Group and Mukenia Self-help group society. DW2 stated that Mukenia Farmer co-operative society have a right to the land. DW2 prayed that the case be dismissed with costs.
In his witness statement dated 15th February, 2024, DW2 stated that he was appointed as the official liquidator of the 1st Defendant on 8th November, 2019 a position he holds to date. He stated that at no single time is any official or committee member allowed to transact in their own personal capacity and purport to be acting or transacting on behalf of the society.
DW2 stated that the Plaintiffs purport to have purchased the suit parcels of land from the Society when in fact the documents that they have availed confirm that they transacted with the then chairlady of the society one Ruth Wanjiru Shadrack in her personal capacity and not the society. He stated that the Plaintiffs are not members of the Society and were not eligible to buy any alleged shares and therefore could not have been issued with any receipts.
DW2 stated that the management committee is entitled to sell land only after a resolution has been passed. He stated that the Plaintiffs do not have any legitimate claim against the 1st Defendant and if they entered into agreements with the former chairlady, they ought to have directed their claim against the said individual.
Upon cross-examination by Mr. Cheruiyot, DW2 stated that there was no sale between the plaintiff and 1st defendant. He stated that he has no case against the 2nd defendant and he is aware that there are people with title deeds.
Upon cross-examination by Mr. Waiganjo, DW2 stated that Mukenia Farmers’ Co-operative was put under liquidation on 8th November, 2018 and normally liquidation is gazetted. DW2 stated that he has not produced the gazette notice placing Mukenia Farmers Co-operative Society under liquidation. DW2 stated that liquidation takes one year in office. DW2 stated that he has the gazette notice no 1240. He stated that this notice was an extension for six months from 5th December 2023. DW2 stated that he has not produced any gazette notice after the expiry of six months. DW2 was shown the by-laws and stated that the document is not certified as a true copy. DW2 stated that the document is not signed and the last page is not there but he can avail it.DW2 stated that he has the register of members in his office and he has not produced the register. DW2 stated that they do not keep records of the society and they are filed at the commissioner.
DW2 stated that he is in charge of liquidation and Wazee Pamoja Self Help Group are alleging paying some money to Mukenia Farmers Corporation. DW2 stated that it was against the law not to do an audit. DW2 stated that there are no annual returns. DW2 stated that no action was taken against any officer. DW2 further stated that the Wazee Pamoja Self Help Group had a claim and brought some documents to his office. DW2 stated that he put a notice in a local newspaper and they investigated their claim in a liquidation committee comprising of Evans Machage and eight others. DW2 stated that he was the chair of the committee and there was a secretary. DW2 stated that the chair of Wazee Pamoja Self Help Group was placed before him. He stated that the chairman of Mukenia Farmers Corporative Society Ltd was a member of the committee.
DW2 further stated that they had Evans Ndungu and Evans Muchai Kamau. He stated that he collected information and they came up with a list of claimants. DW2 stated that they have not completed their work. He stated that Wazee Pamoja submitted a claim and that Mukenia did not sell land to Wazee Pamoja and the claim in their office for consideration.
DW2 stated that he has seen the certificate of regulations of Wazee Pamoja self-help group and he can see an allotment letter from GEMA to Mukenia at page 104 of the bundle. DW2 stated that he knows Mukenia Farmers Cooperative Society Ltd bought that land from GEMA and the original L.R mutation is not known to him. DW2 stated that the titles are in plots of five acres each. DW2 stated that they were fifty-four plots in total and it was a five-acre parcel located at Taita farm.
DW2 was shown receipts at page116 of the bundle and stated that by the time he was taking over, they had no office. DW2 stated that he is not aware of any office and the corporative was issuing receipts. DW2 stated that he has seen receipts purported to be issued by Mukenia Farmers Corporative Ltd. DW2 stated that he can see a rubber stamp for Mukenia. DW2 stated that he became the official liquidator in 2019. DW2 further stated that he has investigated the receipts and he has no written report about the receipts. DW2 stated that the receipts dated 2nd August, 2012 is for Ksh 400,000/=.
DW2 further stated that he does not have a financial report in court and that the plaintiffs were dealing with the chairlady. He stated that the money was being paid at an individual account and he has not produced the details of Mukenia Bank account. DW2 was shown a sale agreement dated 29th October, 2013 and stated that it is dated 29th October, 2013. He stated that the chairperson is Evans M Kamau and there is Pauline Waithera and Salome Njeri.
DW2 stated that every Co-operative Society has a minute book and officials keep resolution and minutes. DW2 stated that he does not have the minute book and resolution book and that the agreement is for sale of land and the signatories were officials of the group.
DW2 stated that they do not have a resolution for sale of land to the defendants. DW2 stated that the claim for Wazee Pamoja Self Help Group is pending on his desk. DW2 stated that he has a list of over five hundred members who did not have land. DW2 stated that the total list is about that number and members submitted their claims. DW2 stated that he does not have a list before the court.
Upon re-examination by Mr. Were, DW2 testified that he did not file the original gazettement. He testified that the notice was in force and it expired in May 2024. DW2 testified that he did an application for extension and they have not gazetted. DW2 testified that he is holding office but there is no extension. DW2 testified that normally there are delays. DW2 testified that the by- laws were signed by the commissioner of cooperatives.
DW2 further testified that he did not file the register of members. He testified that they have about five hundred and twenty members. He testified that the plaintiffs brought receipts and he is yet to confirm their membership. DW2 testified that he has not seen any dispute between them. DW2 testified that the 1st defendant bought the land from GEMA. He testified that the titles were for fifty-four plots of five acres each. DW2 testified that they are claiming thirty-nine plots. DW2 testified that the balance are thirteen plots. He testified that there are fifty-one plots in number and they paid Ksh 50,000 and also Ksh 350,600.
DW2 testified that a member was paying a share at Ksh 12000/=. DW2 was shown a share receipt dated 16th April, 1994 and stated that the amount was Ksh12, 500/=. DW2 stated that the sale agreement at page 170 shows that the chair was not Evans but Shadrack. 2-14TH DEFENDANTS CASE
Isaiah Makori Orori relied on his statement dated 30th May, 2019 which was adopted by the court as part of his evidence in chief. He testified as DW3 that he lives in Molo and that he is a farmer. He produced a letter of authority allowing him to give evidence as 14DEX 1. DW3 testified that they bought the land from members. That there was no person on the land. That he bought parcels 16/130,16/131, 16/132. That there was only one member on the land. They bought the parcel in 2016 and it is now ten years. That nobody has claimed the parcels of land and that they have never colluded with the 1st Defendant Company. They bought land from general members. There was only one member on the land. They bought land from genuine members. They did due diligence and saw the beacons. He testified that they went to the advocate for the agreement. DW3 testified that he does not know Wazee Pamoja Self Help Group. DW3 testified that he has documents dated 30th May, 2019 and filed on 7th June, 2019. DW2 produced the bundles of sale agreement as 14DEX2. He also produced the certificate of official search as 14DEX 3 (a) (b) (c). DW3 produced the Land Control Board consent as 14 DEX4. DW3 produced a bundle of title deed as 14DEX5 and a bundle of Registration as 14 DEX5. DW3 testified that he has a bundle of Register which he produced as 14 DEX 6 and he prayed that the suit be dismissed.
In his witness statement dated 30th May, 2019, DW3 stated that the suit parcels are duly registered to the 2nd-14th Defendants as the legal and absolute owners. He stated that they acquired the suit parcel of land for value and entered into sale agreements with the Defendants. DW3 stated that the parcels of land were initially registered to the 1st Defendant who later sold to the 2nd-14th Defendants and subsequently registered to the 2nd-14th Defendants. He stated that the 2nd-14th Defendants occupy their respective parcels of land and have extensively developed the same.
DW3 stated that due diligence was undertaken as expected of any prudent purchaser by conducting official searches, obtaining the relevant consents and had the properties transferred to their respective Defendants. DW3 stated that they are innocent purchasers for value and without notice, duly entitled to their respective parcels of land.
Upon cross-examination by Mr. Waiganjo, DW3 stated that he is not a member of Mukenia Co-operative Society. He stated that they bought land from members of Mukenia Co-operative society. DW3 stated that he does not have the register of members and he has never seen the register. DW3 stated that Mukenia Farmers Co-operative Society sold to the 2nd -14 defendants and the land was sold to them by members of Mukenia Co-operative not the society.
DW3 stated that when the land was sold, it was in the names of Mukenia Farmers Co-operative society. DW3 stated that members were selling land under Mukenia Farmers co-operative society and they bought through the officials. DW3 stated that he made his statement on 30th May, 2019 and there is no statement of the seller. DW3 stated that Wamuchai Salome Njeri received money and the money was a payment of the balance. He stated that Salome Njeri Kariuki in the two agreement is the same person. DW3 stated that Salome Njeri Kariuki is an official of Mukenia Farmers Co-operative Society Ltd. He stated that Loice Wamucii Wailuci was also a member of Mukenia Farmers Co-operative Society Ltd. DW3 stated that the plot number is block 1/16127. He stated that there is a typing error. DW3 stated that the agreement has never been amended and at this time there were titles. He stated that the third agreement has a witness of Benigha Njoki. DW3 stated that he never saw any agreement between Pauline and Waithiki.
DW3 stated that Pauline was the treasurer and the agreement was on behalf of the members. He stated that it was not on behalf of Mukenia Farmers Co-operative Society Ltd. DW3 stated that all titles were in the name of Mukenia Farmers Co-operative Society Ltd. He stated that Block 1/16129 belonged to Mukenia Farmers Co-operative Society Ltd. DW3 stated that he is not aware that on 11th May, 2017, the court had issued an injunction. DW3 stated that Pauline was an official.
DW3 was shown the agreement dated 12th January, 2016 and stated that Block 1/6117 is not the current number.
DW3 stated that he has not seen any minute showing that Mukenia Farmers Co-operative Society Ltd sent an agreement to sell land. DW3 stated that there are no corrections on the agreement and the agreement does not have the second page. DW3 stated that Salome Njeri Kariuki was an official of Mukenia Farmers Co-operative Society Ltd and she was selling her share of the land. DW3 stated that she was a shareholder. DW3 stated that she was not given any document to show that Salome was the owner of the land.
DW3 stated that Loice was selling as a member and he was not given any document.
DW3 stated that he knows Mary Mukami Mwangi as a member and he does not know the signature of Mary Mukami Mwangi. DW3 was shown DEX14 and stated that he has two searches for parcels 161126 and 16127. DW3 stated that the other searches were not brought to court. DW3 stated that he has a sale agreement for members but not form the society.
Upon re-examination, DW3 testified that the agreement was for parcels 16126- 16137, 16125 and 16127. He testified that there is some typing error. He testified that he was not aware of the court order stopping the sale and he came to know about this case in 2018. DW3 testified that he knows Salome as a member. DW3 testified that they were selling as members and he has no agreement with Mukenia Farmers Co-operative Society Ltd because he bought from the members. He testified that the officials and liquidator gave evidence. He testified that he bought from the members
Plaintiff’s Submissions
Counsel for the Plaintiff filed submissions dated 30th January 2026. Counsel submitted that the 1st Defendant entered into several agreements with the Plaintiff and took money in the form of a purchase price and allowed the Plaintiff members to take possession of the land. Counsel submitted that it would be unfair and unjust not to complete the process by allocating the Plaintiff’s the parcels of land which are in dispute before the court.
Counsel submitted that the failure if any to have the sale agreements executed by all three officers of the society is a mere technicality and cannot be used to prevent this court from administering substantive justice. Counsel submitted that the 2nd-14th Defendants obtained the suit parcels of land unlawfully and illegally. Counsel submitted that the Plaintiff has proved the case on a balance of probabilities and is entitled to the reliefs sought in the amended Plaint. Reliance was placed on Articles 10 (1), 40, and 159 of the Constitution of Kenya, Section 26 of the Land Registration Act and the following cases: Violet Wanjiru Kihika vs Anthony Kanyiri Nakuru ELCA 005 of 2023, Ruth Ndume Mwangangi vs Joseph Mbithi Nthenge & another [2022] eKLR, Virginia Ciamati Murage & another vs Stanley Advane Kirimi [2021] eKLR and Willy Kimutai Kitilit vs Michael Kibet [2018] eKLR.
1st Defendant’s Submissions
Counsel for the 1st Defendant filed submissions dated 26th January, 2026. Counsel submitted that the Plaintiffs wrongly sued the 1st Defendant for there is no nexus between the personal actions done by the former chairlady and the Plaintiffs. Counsel submitted that there has been overwhelming evidence to show that the Plaintiffs did not transact with the 1st Defendant but dealt directly with Ruth Wanjiru Muraya Shadrack (deceased). Counsel prayed that the suit against the 1st Defendant be dismissed with costs. Counsel relied on the following cases: Bugerere Coffee Growers Ltd vs Sebaduka & another (1970) EA 147, Kunyobo vs Olubwa & another (Environment & Land Case 216 of 2014) [2023], Kuria Kiarie & 2 others vs Sammy Magera [2018] eKLR, Bahati Murwa vs Faulu Kenya Ltd (2021) and Cherutich vs Mburu & 4 others (2022).
2nd -14th Defendants Submissions
Counsel for the 2nd-14th Defendants filed submissions dated 2nd February, 2026. Counsel submitted that the Plaintiffs have failed to prove any fraud, illegality or misrepresentation on the part of the 2nd’14th Defendants. Counsel submitted that no evidence was tendered to demonstrate any fault, impropriety or unlawful conduct on the part of the 1st Defendant capable of tainting the titles held by the 2nd- 14th Defendants.
Counsel submitted that the 2nd-14th Defendants are innocent purchasers for value of the suit parcels of land and the Plaintiffs have not discharged the burden of proof required in law to sustain the allegations of fraud, illegality or collusion against them. Counsel urged the court to dismiss the Plaintiff’s suit with costs to the 2nd-14th Defendants. Counsel relied on Article 159 of the Constitution of Kenya, Section 26 (1) of the Land Registration Act, Section 107 of the Evidence Act and the following cases: Tarabana Company Limited vs Sehmi & 7 others [2021] KECA 76 (KLR), Elizabeth Wambui Githinji & 29 others vs Kenya Urban Roads Authority & 4 others [2019] KECA 706 (KLR) and Kunyobo vs Olubwa & another (Environment & Land Case No 216 of 2014) [2023].
Analysis And Determination
The issues for determination are:
a. Whether the 1st Defendant sold the suit parcels to the Plaintiff?
b. Whether the Plaintiff is entitled to the orders sought in the further amended Plaint dated 11th October, 2023.
It is the Plaintiffs case that on or about February 2012, they entered into an agreement with the 1st Defendant through their then chair lady Ruth Wanjiru Muraya (now deceased) for the purchase of 100 acres of L.R No 11106 in Gilgil. They aver that they bought 90 acres from the 1st Defendants, made all relevant payments and the Plaintiffs and their members took possession of their various parcels of land. It is the Plaintiffs case that in May 2012, the 1st Defendant directed the Plaintiff to pay Ksh 500,000/= which the Plaintiff proceeded to pay to Paul Chege Gitahi on account of the purchase price between the Defendant and Paul Chege Gitahi for the suit land.
The Plaintiffs averred that sometime in December 2013, the 1st Defendant herein through a letter alleged that the Plaintiff had a balance of Ksh 2,638,500/= for the parcel of land but the then Chairlady of the 1st Defendant company in a letter dated January 2014 advised the Plaintiff not to make further payments.
The Plaintiffs averred that it has paid to the 1st Defendant a sum of Ksh 4,256,000/= between February 2012 and September 2013 for the purchase of the said parcels of land and receipts issued to that effect. It is the Plaintiff’s case that despite making all the payments, the 1st Defendant has refused to surrender the title deeds to the Plaintiff and its members. The Plaintiff averred that the 1st Defendant has threatened and started advertising the suit properties for sale to third parties. The Plaintiffs averred that they have discovered the 1st Defendant has since sold and transferred various portions of the subdivisions to the 2nd-14th Defendants. The Plaintiff lists the particulars of fraud and misrepresentation as against the 1st Defendant and the particulars of negligence and fraud a s against the 2nd-14th Defendants.
The Plaintiff averred that the 1st Defendant is acting contrary to their agreement and is attempting to interfere with the Plaintiffs rights to property without any justification and or consideration to the Plaintiffs.
It is the 1st Defendant’s case that if the Plaintiffs purchased the suit properties from Ruth Wanjiru Shadrack, the same was done without the authority of the 1st Defendant as no resolution was made by neither the 1st Defendant’s Board of Directors nor its members and thus the said sale was null and void. It is the 1st Defendant’ case that the sale agreement if any between the Plaintiff and Ruth Wanjiru Shadrack (now deceased) was void for want of consent from the Land Control Board as per the Land Control Act Cap 302 Laws of Kenya which is necessary before any transfer hence the agreement was not binding.
In the case of Anne Wambui Nderitu vs Joseph Kiprono Rapkoi & Another [2005] IEA 334, the Court of Appeal held as follows:
“As a general proposition under Section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act”.
The Plaintiff has adduced a copy of the sale agreement dated 13th February, 2012 and a copy of the sale agreement dated 17th April, 2012. The sale agreement dated 13th February, 2012 states that it is made between the officials of Mukenia Farmers Co-operative Society. The same is signed on behalf of Mukenia Co-operative society by Ruth Wanjiru Muraya.
The agreement dated 17th April, 2012 states as follows: “This agreement is between Wazee Pamoja Self Help Group and Ruth Wanjiru Muraya. I Ruth Wanjiru Muraya have agreed to sell to Wazee Pamoja Self Help Group a piece of land rating one hundred acres (100 acres) at a price of Fifty Thousand Kenya Shillings (Kshs 50,000) per acre.”
In the case of Daniel Kiprugut Maiywa v Rebecca Chepkurgat Maina [2019] KEELC 842 (KLR) the Court held that:
“The nemo dat principle means one cannot give what one does not have. This principle is intended to protect the title of the true owner. The rationale behind this principle is that whoever owns the legal title to property holds the title thereto until he or she decides to transfer it to someone else.”
The Court of Appeal in Mwangi James Njehia vs Janetta Wanjiku Mwangi & Another [2021]KECA 768 observed that the formulation in Katende vs Haridar & Company Ltd (2008) 2 EA 173 particularly the requirement that the vendor need only have an “apparent” valid title, was no longer sound. The Court held that the notion of “apparent” title should be omitted altogether. Accordingly, only a purchaser who acquires title from a person with a valid and lawful interest can invoke the doctrine of bona fide purchaser.
It is clear that the sale agreement dated 17th April, 2012 was made between Wazee Pamoja Self Help Group and Ruth Wanjiru Muraya. The 1st Defendant was not involved. In respect of the agreement dated 13th February, 2012, it states that Ruth Wanjiru Muraya is signing the agreement on behalf of Mukenia Co-operative Society. The same agreement states as follows: ‘At the time of signing this agreement, title deed is being held by the owner of the land pending transfer to the society after outstanding debt paid to the owner,”
According to the nemo dat principle, one cannot give what one does not have. The Plaintiffs transacted with Ruth Wanjiru Muraya in Salomon v A Salomon & Co Ltd [1896] is a landmark House of Lords case that established separate legal personality and limited liability. It confirmed that a legally incorporated company is a distinct entity separate from its shareholders, meaning personal assets cannot typically be seized to pay corporate debts.
March, 2012 showing that Ruth Wanjiru Muraya was the beneficiary of Ksh 500,000/=. The Plaintiffs have also adduced a sale agreement dated 2nd August 2012 showing that Ruth Wajiru Muraya received Ksh 400,000/= from Wazee Pamoja Self Help Group officials.
In Kolaba Enterprises Ltd Vs Shamsudin Hussein Varvani & ANO (2014) eKLR the court held that: -
“it should be appreciated that the separate corporate personality is the best legal innovation ever in company law. See the famous case of Salomon & Co. Ltd v Salomon [1897] AC 22 H.L that a company is different person altogether from its subscribers and directors. Although it is a fiction of the law, it still is as important for all purposes and intents in nay proceedings where a company is involved. Needless to say, that separate legal personality of a company can never be departed from except in instances where the statute or the law provides for the lifting or piercing of the corporate veil, say when the directors or members of the company are using the company as a vehicle to commit fraud or other criminal activities.”
In Riccatti Business College of East Africa Limited V Kyanzavi Farmers Company Limited [ 2016] eKLR cited with authority the case of Victor Mabachi & Anor & Nurtun Bates Limited [2013] eKLR where Court while dealing with the issue of the distinct legal entity of corporate bodies held that:-“[ A company] as a body corporate, is persona juristic, with a separate independent identity in law, distinct from its shareholders, directors and agents unless there are factors warranting a lifting of the veil.” This court finds that the 1st Defendant Company did not sell the suit properties to the Plaintiff. The Court finds that the Plaintiffs suit lacks merit and is hereby dismissed with costs.
DATED, SIGNED AND DELIVERED ELECTRONICALLY ON THE 29TH MAY, 2026.