REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELCC NO. 118 OF 2018
DR. ANDREW K. MULLEI....... …………………………………PLAINTIFF
-VERSUS-
DANIEL KIOKO KISANGI ………………………………1 ST DEFENDANT
JOHN KIMANTHI RAYMOND......................................... 2 ND DEFENDANT
JUDGMENT
Introduction and Background
1. The subject matter of this suit is plot No. 12 Kikima Market (suit property). The suit property originally belonged to Muellei Kyai, the Plaintiff’s father. The Plaintiff’s father gave the suit property to the Plaintiff. In the early 80’s or thereabouts, the Plaintiff’s step brothers sold the suit property to Raymond Kalovya.
2. In 1982, Raymond Kalovya filed a suit against the present Plaintiff and his three step brothers who had sold the suit property. He was seeking an order of specific performance directing the Defendants to transfer the suit property to him and in the alternative refund of Kshs.9,100/= and damages for breach of contract. The present Plaintiff was named as the 4 th Defendant in the suit filed in 1982.
3. The 1 st and 2 nd Defendants filed statements of admissions. The 3 rd Defendant did not file a defence. The 4 th Defendant who is now the Plaintiff in this suit filed a defence denying the Plaintiff’s claim. The Plaintiff filed an application for judgment on admission.
4. On 11 th August, 1983, the application for entry of judgment came up for hearing. The 1 st to 3 rd Defendants were present as well as the Plaintiff who was the Applicant. The Applicant’s counsel informed the court that there was no reply to the application. He informed the court that the 3 rd Defendant had not entered appearance and prayed that judgment be entered against him. He submitted that his client was not interested in the money. His client wanted the shop. The trial magistrate fixed the matter for mention on 25 th August, 1983.
5. On 25 th August, 1983 the record shows that all the four Defendants were present. The 1 st Defendant informed the court that they had admitted to pay back the money to the Plaintiff. As to the Plaintiff’s insistence that the plot be transferred to him, he left that to the court. The 2 nd Defendant adopted what the 1 st Defendant had said because they had sold the plot. The magistrate then entered judgment as prayed and ordered the Defendants to transfer the plot to the Plaintiff.
6. The 4 th Defendant who is the Plaintiff in this case filed an application seeking to review the exparte order of 25 th March, 1983. In a ruling delivered on 8 th March,1984 the application for review was granted.
7. In 2006 the Plaintiff in this case learnt that the suit property had been transferred to Raymond Kalovya. He wrote a complaint letter to the County Council of Makueni. The County Council of Makueni wrote back to him telling him that they transferred the suit property to Raymond Kalovya based on a court order. They advised him to seek recourse in court. This is what prompted the Plaintiff to file Machakos Chief Magistrate Civil Suit No. 176 of 2007 against the County Council of Makueni and Raymond Kalovya.
8. The Plaintiff in Machakos Senior Resident Magistrate court Civil Court No. 56 of 1982 died ono 4 th December, 2008. There was no substitution made. By law the suit against the 4 th Defendant abated by operation of law on 4 th December, 2009. On 4 th October, 2010 the 4 th Defendant, the Plaintiff in this case filed an application seeking to have the suit declared as having abated. This application was allowed on 1 st November, 2010 and the costs of the application were awarded to the 4 th Defendant.
9. On 12 th June 2012 the Plaintiff’s counsel in Machakos chief Magistrate court civil suit No. 176 of 2007 informed the court that as the suit against Raymond Kalovya had abated, they wished to proceed as against the 1 st Defendant, the County Council of Makueni. The case proceeded on that day and was concluded. On 3 rd July, 2012 judgment was delivered in favour of the Plaintiff against the 1 st Defendant ordering rectification of the registrar to reflect the Plaintiff as owner of the suit property. The judgment has since been executed and the Plaintiff’s name restored as owner of the suit property.
10. In 2016, the 1 st Defendant in this suit trespassed into the suit property on the ground that he had purchased the suit property from the children of Raymond Kalovya. It is on this basis that the Plaintiff filed this suit against the Defendants in which he seeks the following reliefs:
a. An order of injunction restraining the Defendants, their agents, workers, servants or anybody howsoever claiming under them from trespassing remaining on, or in any other manner dealing with plot No. 12 Kikima Market.
b. Eviction of the Defendants from plot No. 12 Kikima Market and the structures erected thereon demolished.
c. Costs and interest.
Plaintiff’s Case
11. Much of the Plaintiff’s case has been captured in the background above. It is the Plaintiff’s evidence that he is the registered owner of the suit property. The Plaintiff produced proceedings in Machakos Senior Resident Magistrate court No. 56 of 1982. He also produced an order extracted from the above suit confirming that the suit had abated. The Plaintiff called Jackson Daudi from the County Government of Makueni who confirmed that according to their records, the Plaintiff is the registered owner of the suit property.
12. The witness from Makueni County Government stated that the change in ownership from Raymond Kalovya to the Plaintiff was pursuant to the judgment in Machakos Chief Magistrate Civil Suit No. 176 of 2007 which he produced as exhibit. He also produced a court order confirming ownership, receipts for payment of conservancy and rates as well as an official search.
13. The Plaintiff also called PW3 Cyrus Iiya Ndambuki who testified that he was aware that the suit property had been given to the Plaintiff by his father. The Plaintiff also called PW2 Stephen Mutua Mbithi who is his neighbor and owns plot No. 11. He stated that the Defendants are the ones occupying the suit property. He had sold part of his plot to Raymond Kalovya.
Defendant’s Case
14. The 1 st Defendant stated that he is the one in possession of the suit property. He took possession of the suit property on 3 rd August, 2018 after he purchased it. He stated that before he purchased the suit property be conducted a search which showed that Raymond Kalovya was the registered owner of the property. He stated that he purchased the suit property from the family of Raymond Kalovya. He further stated that he subsequently learnt that Raymond Kalovya had litigated over the suit property in civil suit No. 56 of 1982 whereby he was granted the suit property.
15. The Defendants called DW4 Anthony Mule Munyao a former Councilor who stated that he knew the history of the suit property well. He stated that the suit property belonged to Mullei Kyai, the father the Plaintiff. He was pproached by the family of Raymond Kalovya to purchase the property but that he could not do so as he had no money. He later connected the 1 st Defendant to the family of Raymond Kalovya who purchased the property. He claimed that there is a time the Plaintiff approached him that he wanted to pay Raymond Kshs.400,000/- but that did not happen.
16. DW3 Patrick Wambua Kalovya is the elder brother of Raymond Kalovya. He stated that he knew plot 12 belonged to his brother but he did not know from whom he purchased the land.
17. DW2 Joseph Nyamai Raymond stated that he is son of Raymond Kalovya. He stated that he is aware that his father purchased the suit property from Mullei Kyai. He also said that he was aware that there was a case against his father in Machakos court and that there is a pending appeal arising from a decision in that court which is pending before this court. He stated that there was no one claiming ownership of the suit property prior to their family selling it to the 1 st Defendant.
Parties Submissions
18. The parties were directed to file written submissions. The Plaintiff filed his submissions dated 11 th September, 2025. The Defendants filed their submissions dated 3 rd February, 2026.
Plaintiff’s Submissions
19. The Plaintiff submitted that the issue of ownership of the suit property was determined in Machakos CMCC No. 176 of 2007. The judgment in this case directed the records of the County Council to be rectified to read the Plaintiff’s name. This was done and there has never been any appeal against the said judgment. It was submitted that there was a certificate of search produced which confirmed that the Plaintiff is the registered owner.
20. It was further submitted that there is no evidence which was adduced to how that the Plaintiff obtained ownership through fraudulent means. Reliance was placed on the case of Kiplagat Shelisheli Mutarakwa –vs- Joseph Rotich Kones (2018) eKLR where it was held as follows:
“Nothing has been presented by the Defendant to prove that the Plaintiff’s title is unlawful or that it was fraudulently acquired. Thus, from the evidence that has been presented before me, I have no difficulty in holding that the Plaintiff’s title is a good title which deserves protection. As title holder, it is only the Plaintiff who is vested with proprietary rights over the suit property.”
21. The Plaintiff further submitted that upon the Plaintiff herein moving to review judgment in Machakos SRMCC No. 56 of 1982, the court ruled that it is the 1 st , 2 nd and 3 rd Defendants in that suit who were liable to refund Kshs.9,100/= to Raymond Kalovya. The ruling was clear that the 1 st , 2 nd and 3 rd Defendants had nothing to transfer to Raymond Kalovya.
22. The Plaintiff further submitted that had the 1 st Defendant bothered to do a search, he would have noticed that the suit property did not belong to Raymond Kalovya whose family sold it to him. It was submitted that the 1 st Defendant was not an innocent purchaser. Reliance was placed on the case of Samuel Kamere –vs- Land Registrar Kajiado (2015) eKLR.
“......in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property”.
23. It was further submitted that the 1 st Defendant relied on the letter of 2 nd November, 2018 which was a mere recommendation which was never acted on.
Defendant’s Submissions
24. The Defendants submitted that the judgment in Machakos CMCC No. 176 of 2007 which was the basis of rectification of the register in the records of the County Council of Makueni was a nullity as Raymond Kalovya had died before conclusion of the case. It was submitted that proceeding against the 1 st Defendant in that case without Raymond Kalovya was untenable. Reliance was placed in the case of Kenya Farmers Cooperative Union Limited –vs- Charles Murgor (Deceased) T/A Kaptabei Coffee Estate 2005 where it was held as follows:
“If a suit has abated it has ceased to exist. There is no suit upon which a trial can be conducted and judgment pronounced. Purporting to hear and determine a suit that has abated is really an exercise in futility. It is a grave error on the face of the record”.
25. The Defendants further submitted that the Plaintiff in this case was present when the orders of 25 th August, 1983 were given and that he was given an opportunity to review the orders but he did not. It was therefore submitted that as at the time the Plaintiff filed Machakos CMCC No. 176 of 2007, the orders given on 25 th August, 1983 were subsisting.
26. It was further submitted that Machakos CMCC No. 176 of 2007 was res judicata and that it ought to have been struck out. It was further submitted that the family of Raymond Kalovya had been paying land rates and rent up until 2022 when the register was rectified to reflect the Plaintiff’s name. It was therefore submitted that the County Government of Makueni acknowledged Raymond Kalovya as the owner of the suit property.
27. Finally the Defendants submitted that the letter of 2 nd November, 2018 from the Director of Lands, Mining, Housing, Physical Planning and Urban Development confirmed that the transfer to the 1 st Defendant had been recommended and that despite there being no evidence of payment of purchase price by the 1 st Defendant, the sale agreement had been executed by the family of Raymond Kalovya in the presence of the area chief.
Analysis and Determination
28. I have carefully considered the evidence adduced by the Plaintiff and the Defendants. I have also considered the submissions by the parties. The issues which emerge for determination are firstly who is the lawful owner of the suit property. Secondly, did the children of Raymond Kalovya have any interest in the suit property which was capable of being passed on to the 1 st Defendant. Thirdly, is the Plaintiff entitled to the prayers in the Plaint. Lastly, which order should be made on costs.
Who is the lawful owner of the suit property?
29. The evidence which was adduced is that the suit property originally belonged to Mullei Kyai who is the Plaintiff’s father. During his lifetime, Mullei Kyai gave the suit property to the Plaintiff. This came out even in the proceedings from Machakos SRMCC No. 56 of 1982 that the suit property was an inheritance in favour of the Plaintiff from his father.
30. The Plaintiff’s step brothers sold the suit property illegally to Raymond Kalovya. The Plaintiff’s step brothers were unable to transfer the suit property to Raymond Kalovya forcing Raymond Kalovya to file a suit against the Plaintiff’s three brothers including the Plaintiff.
31. The Plaintiff’s step brothers admitted to selling the suit property to Raymond Kalovya and they agreed to refund him the Kshs.9,100/= which Raymond Kalovya had paid. The proceedings of 25 th August, 1983 erroneously captured the Plaintiff who was the 4 th Defendant in that case as being present. The Plaintiff then moved the court in an application for review. The review was allowed as it was conceded that the Plaintiff was not present. The ruling of 8 th March, 1984 clearly shows that the three step brother of the Plaintiff had nothing to transfer to Raymond Kalovya. What remained in the judgment on admission which was not reviewed is the aspect of refund of Kshs.9,100/= to Raymond Kalovya. The Defendants’ advocate in their submissions stated that the Plaintiff was given an opportunity to review the judgment of 25 th August, 1983 but did not. This is not the correct position as there was a review of the judgment of 25 th August, 1983 and a ruling thereof was delivered on 8 th March, 1984.
32. The late Raymond Kalovya presented the judgment of 25 th August, 1983 to the County Council of Makueni which then made changes in the register to reflect that Raymond Kalovya as the owner of the suit property. When the Plaintiff discovered that ownership records had been changed, he wrote to County Council of Makueni who informed him that the change was pursuant to a court order. He was advised to seek recourse in court. The Plaintiff then moved to court and filed Machakos CMCC No. 176 of 2007. A judgment in his favour was delivered on 3 rd July, 2012. The judgment found that the change in ownership of the suit property was null and void. The court ordered that there be rectivation of the register. This was done by the County Government of Makueni, the successors of County Council of Makueni.
33. The suit which Raymond Kalovya filed against the 4 th Defendant remained unprosecuted until after his demise on 4 th December, 2008. The suit was marked as having abated by order of court on 1 st November, 2010. It is therefore clear that the suit property lawfully belongs to the Plaintiff.
Did the children of Raymond Kalovya have any interest in the suit property which was capable of being passed on to the 1 st Defendant
34. The children of Raymond Kalovya purported to sell the suit property to the 1 st Defendant vide a sale agreement dated 3 rd August, 2018. The children of Raymond Kalovya were of the view that their father had purchased the suit property. This was wrong because those who purported to sell the same had no interest in the suit property. The ruling of 8 th March, 1984 is clear that the step brothers of the Plaintiff had no interest to transfer to Raymond Kalovya. Those who had sold the suit property admitted that the suit property belonged to the Plaintiff through inheritance. They offered to refund what Raymond had paid as part of the agreed amount. This is the judgment which was entered but the magistrate went ahead to order transfer. This was found to be the position after review. The magistrate in his ruling stated as follows:
“Quite clearly the order of 25 th August, 1983 is not in accordance with what the applciation intended to be done. The application which was heard on 25 th August, 1983 intended that judgment be entered against the 1 st , 2 nd and 3 rd Defendants to refund to the Plaintiff the money they had received from the Plaintiff. Instead the order of 25 th August, 1983 allowed the transfer of the plot to the Plaintiff.”
35. The late Raymond Kalovya had agreed to purchase the suit property at Kshs.13,500/=. He had paid Kshs.9,100/= when the Plaintiff’s step brothers refused to transfer the land to him. He sued for specific performance with an alternative prayer for refund of Kshs.9,100/= already paid. When the 1 st and 2 nd Defendants in Machakos SRMCC 56 of 1982 appeared before the Magistrate on 25 th August, 1983, they agreed to refund the amount paid by Raymond Kalovya. They did not say that they had admitted to transfer the land and in any case this would not have been possible as he had not cleared the balance or indicated that he was willing to clear the balance.
36. It is on the basis of the error apparent on the record that a review was allowed. This is why the magistrate stated thus in his ruling:
“In the circumstances there is an error apparent on the face of the record. Moreover, since the 1 st , 2 nd and 3 rd Defendants could not transfer what they did not have the order bound the 4 th Defendant only”.
37. Raymond Kalovya took the judgment of 25 th August, 1983 to the County Council of Makueni who effected the transfer from the Plaintiff’s name to his name. When the Plaintiff learnt of the change, he complained to the County Council of Makueni who advised him to seek redress in court. The Plaintiff filed Machakos CMCC 176 of 2007 and obtained judgment on 3 rd July, 2012 nullifying the change. The record at County Government of Makueni has since been changed to reflect the Plaintiff as owner of the suit property.
38. The children of Raymond Kalovya did not have any interest in the suit property which was capable of being transferred. The children were aware that their father had been sued in Machakos CMCC 176 of 2007. Their father’s advocate was in court when the case proceeded and a judgment date reserved for 3 rd July, 2012 and judgment was delivered as scheduled. The sale took place long after the judgment nullifying Raymond Kalovya’s name had been delivered. It is therefore clear that the children of Raymond Kalovya had no interest in the suit property capable of being transferred to the 1 st Defendant. In fact 1 st Defendant attempted to have his name entered in the register but this was not possible as the suit property did not belong to those who had sold it to him.
Whether the Plaintiff is entitled to the prayers sought?
39. The Plaintiff is the registered owner of the suit property as per the records held by the County Government of Makueni. This was confirmed through letter dated 15 th October, 2018. I have demonstrated hereinabove that the children of Raymond Kalovya who purported to sell the suit property to the 1 st Defendant had no interest to pass to the 1 st Defendant. The Plaintiff is therefore entitled to the prayers in the plaint.
Disposition
40. The Plaintiff has proved his case on a balance of probabilities. I allow the Plaintiff’s claim in terms of prayer (a) (b) and (c) of the plaint dated 18 th December, 2018.
...........................................
HON. E. O. OBAGA, FCIArb
JUDGE
JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 17 TH DAY OF SEPTEMBER, 2016.
IN THE PRESENCE OF:
Mr. Mutinda for Plaintiff
Mr. Wabende for the Defendants
Court assistants – Kilonzo & Musyoki
ELC NO. 118 OF 2018 11 | Page
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELCC NO. 118 OF 2018
DR. ANDREW K. MULLEI....... …………………………………PLAINTIFF
-VERSUS-
DANIEL KIOKO KISANGI ………………………………1 ST DEFENDANT
JOHN KIMANTHI RAYMOND......................................... 2 ND DEFENDANT
JUDGMENT
Introduction and Background
1. The subject matter of this suit is plot No. 12 Kikima Market (suit property). The suit property originally belonged to Muellei Kyai, the Plaintiff’s father. The Plaintiff’s father gave the suit property to the Plaintiff. In the early 80’s or thereabouts, the Plaintiff’s step brothers sold the suit property to Raymond Kalovya.
2. In 1982, Raymond Kalovya filed a suit against the present Plaintiff and his three step brothers who had sold the suit property. He was seeking an order of specific performance directing the Defendants to transfer the suit property to him and in the alternative refund of Kshs.9,100/= and damages for breach of contract. The present Plaintiff was named as the 4 th Defendant in the suit filed in 1982.
3. The 1 st and 2 nd Defendants filed statements of admissions. The 3 rd Defendant did not file a defence. The 4 th Defendant who is now the Plaintiff in this suit filed a defence denying the Plaintiff’s claim. The Plaintiff filed an application for judgment on admission.
4. On 11 th August, 1983, the application for entry of judgment came up for hearing. The 1 st to 3 rd Defendants were present as well as the Plaintiff who was the Applicant. The Applicant’s counsel informed the court that there was no reply to the application. He informed the court that the 3 rd Defendant had not entered appearance and prayed that judgment be entered against him. He submitted that his client was not interested in the money. His client wanted the shop. The trial magistrate fixed the matter for mention on 25 th August, 1983.
5. On 25 th August, 1983 the record shows that all the four Defendants were present. The 1 st Defendant informed the court that they had admitted to pay back the money to the Plaintiff. As to the Plaintiff’s insistence that the plot be transferred to him, he left that to the court. The 2 nd Defendant adopted what the 1 st Defendant had said because they had sold the plot. The magistrate then entered judgment as prayed and ordered the Defendants to transfer the plot to the Plaintiff.
6. The 4 th Defendant who is the Plaintiff in this case filed an application seeking to review the exparte order of 25 th March, 1983. In a ruling delivered on 8 th March,1984 the application for review was granted.
7. In 2006 the Plaintiff in this case learnt that the suit property had been transferred to Raymond Kalovya. He wrote a complaint letter to the County Council of Makueni. The County Council of Makueni wrote back to him telling him that they transferred the suit property to Raymond Kalovya based on a court order. They advised him to seek recourse in court. This is what prompted the Plaintiff to file Machakos Chief Magistrate Civil Suit No. 176 of 2007 against the County Council of Makueni and Raymond Kalovya.
8. The Plaintiff in Machakos Senior Resident Magistrate court Civil Court No. 56 of 1982 died ono 4 th December, 2008. There was no substitution made. By law the suit against the 4 th Defendant abated by operation of law on 4 th December, 2009. On 4 th October, 2010 the 4 th Defendant, the Plaintiff in this case filed an application seeking to have the suit declared as having abated. This application was allowed on 1 st November, 2010 and the costs of the application were awarded to the 4 th Defendant.
9. On 12 th June 2012 the Plaintiff’s counsel in Machakos chief Magistrate court civil suit No. 176 of 2007 informed the court that as the suit against Raymond Kalovya had abated, they wished to proceed as against the 1 st Defendant, the County Council of Makueni. The case proceeded on that day and was concluded. On 3 rd July, 2012 judgment was delivered in favour of the Plaintiff against the 1 st Defendant ordering rectification of the registrar to reflect the Plaintiff as owner of the suit property. The judgment has since been executed and the Plaintiff’s name restored as owner of the suit property.
10. In 2016, the 1 st Defendant in this suit trespassed into the suit property on the ground that he had purchased the suit property from the children of Raymond Kalovya. It is on this basis that the Plaintiff filed this suit against the Defendants in which he seeks the following reliefs:
a. An order of injunction restraining the Defendants, their agents, workers, servants or anybody howsoever claiming under them from trespassing remaining on, or in any other manner dealing with plot No. 12 Kikima Market.
b. Eviction of the Defendants from plot No. 12 Kikima Market and the structures erected thereon demolished.
c. Costs and interest.
Plaintiff’s Case
11. Much of the Plaintiff’s case has been captured in the background above. It is the Plaintiff’s evidence that he is the registered owner of the suit property. The Plaintiff produced proceedings in Machakos Senior Resident Magistrate court No. 56 of 1982. He also produced an order extracted from the above suit confirming that the suit had abated. The Plaintiff called Jackson Daudi from the County Government of Makueni who confirmed that according to their records, the Plaintiff is the registered owner of the suit property.
12. The witness from Makueni County Government stated that the change in ownership from Raymond Kalovya to the Plaintiff was pursuant to the judgment in Machakos Chief Magistrate Civil Suit No. 176 of 2007 which he produced as exhibit. He also produced a court order confirming ownership, receipts for payment of conservancy and rates as well as an official search.
13. The Plaintiff also called PW3 Cyrus Iiya Ndambuki who testified that he was aware that the suit property had been given to the Plaintiff by his father. The Plaintiff also called PW2 Stephen Mutua Mbithi who is his neighbor and owns plot No. 11. He stated that the Defendants are the ones occupying the suit property. He had sold part of his plot to Raymond Kalovya.
Defendant’s Case
14. The 1 st Defendant stated that he is the one in possession of the suit property. He took possession of the suit property on 3 rd August, 2018 after he purchased it. He stated that before he purchased the suit property be conducted a search which showed that Raymond Kalovya was the registered owner of the property. He stated that he purchased the suit property from the family of Raymond Kalovya. He further stated that he subsequently learnt that Raymond Kalovya had litigated over the suit property in civil suit No. 56 of 1982 whereby he was granted the suit property.
15. The Defendants called DW4 Anthony Mule Munyao a former Councilor who stated that he knew the history of the suit property well. He stated that the suit property belonged to Mullei Kyai, the father the Plaintiff. He was pproached by the family of Raymond Kalovya to purchase the property but that he could not do so as he had no money. He later connected the 1 st Defendant to the family of Raymond Kalovya who purchased the property. He claimed that there is a time the Plaintiff approached him that he wanted to pay Raymond Kshs.400,000/- but that did not happen.
16. DW3 Patrick Wambua Kalovya is the elder brother of Raymond Kalovya. He stated that he knew plot 12 belonged to his brother but he did not know from whom he purchased the land.
17. DW2 Joseph Nyamai Raymond stated that he is son of Raymond Kalovya. He stated that he is aware that his father purchased the suit property from Mullei Kyai. He also said that he was aware that there was a case against his father in Machakos court and that there is a pending appeal arising from a decision in that court which is pending before this court. He stated that there was no one claiming ownership of the suit property prior to their family selling it to the 1 st Defendant.
Parties Submissions
18. The parties were directed to file written submissions. The Plaintiff filed his submissions dated 11 th September, 2025. The Defendants filed their submissions dated 3 rd February, 2026.
Plaintiff’s Submissions
19. The Plaintiff submitted that the issue of ownership of the suit property was determined in Machakos CMCC No. 176 of 2007. The judgment in this case directed the records of the County Council to be rectified to read the Plaintiff’s name. This was done and there has never been any appeal against the said judgment. It was submitted that there was a certificate of search produced which confirmed that the Plaintiff is the registered owner.
20. It was further submitted that there is no evidence which was adduced to how that the Plaintiff obtained ownership through fraudulent means. Reliance was placed on the case of Kiplagat Shelisheli Mutarakwa –vs- Joseph Rotich Kones (2018) eKLR where it was held as follows:
“Nothing has been presented by the Defendant to prove that the Plaintiff’s title is unlawful or that it was fraudulently acquired. Thus, from the evidence that has been presented before me, I have no difficulty in holding that the Plaintiff’s title is a good title which deserves protection. As title holder, it is only the Plaintiff who is vested with proprietary rights over the suit property.”
21. The Plaintiff further submitted that upon the Plaintiff herein moving to review judgment in Machakos SRMCC No. 56 of 1982, the court ruled that it is the 1 st , 2 nd and 3 rd Defendants in that suit who were liable to refund Kshs.9,100/= to Raymond Kalovya. The ruling was clear that the 1 st , 2 nd and 3 rd Defendants had nothing to transfer to Raymond Kalovya.
22. The Plaintiff further submitted that had the 1 st Defendant bothered to do a search, he would have noticed that the suit property did not belong to Raymond Kalovya whose family sold it to him. It was submitted that the 1 st Defendant was not an innocent purchaser. Reliance was placed on the case of Samuel Kamere –vs- Land Registrar Kajiado (2015) eKLR.
“......in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property”.
23. It was further submitted that the 1 st Defendant relied on the letter of 2 nd November, 2018 which was a mere recommendation which was never acted on.
Defendant’s Submissions
24. The Defendants submitted that the judgment in Machakos CMCC No. 176 of 2007 which was the basis of rectification of the register in the records of the County Council of Makueni was a nullity as Raymond Kalovya had died before conclusion of the case. It was submitted that proceeding against the 1 st Defendant in that case without Raymond Kalovya was untenable. Reliance was placed in the case of Kenya Farmers Cooperative Union Limited –vs- Charles Murgor (Deceased) T/A Kaptabei Coffee Estate 2005 where it was held as follows:
“If a suit has abated it has ceased to exist. There is no suit upon which a trial can be conducted and judgment pronounced. Purporting to hear and determine a suit that has abated is really an exercise in futility. It is a grave error on the face of the record”.
25. The Defendants further submitted that the Plaintiff in this case was present when the orders of 25 th August, 1983 were given and that he was given an opportunity to review the orders but he did not. It was therefore submitted that as at the time the Plaintiff filed Machakos CMCC No. 176 of 2007, the orders given on 25 th August, 1983 were subsisting.
26. It was further submitted that Machakos CMCC No. 176 of 2007 was res judicata and that it ought to have been struck out. It was further submitted that the family of Raymond Kalovya had been paying land rates and rent up until 2022 when the register was rectified to reflect the Plaintiff’s name. It was therefore submitted that the County Government of Makueni acknowledged Raymond Kalovya as the owner of the suit property.
27. Finally the Defendants submitted that the letter of 2 nd November, 2018 from the Director of Lands, Mining, Housing, Physical Planning and Urban Development confirmed that the transfer to the 1 st Defendant had been recommended and that despite there being no evidence of payment of purchase price by the 1 st Defendant, the sale agreement had been executed by the family of Raymond Kalovya in the presence of the area chief.
Analysis and Determination
28. I have carefully considered the evidence adduced by the Plaintiff and the Defendants. I have also considered the submissions by the parties. The issues which emerge for determination are firstly who is the lawful owner of the suit property. Secondly, did the children of Raymond Kalovya have any interest in the suit property which was capable of being passed on to the 1 st Defendant. Thirdly, is the Plaintiff entitled to the prayers in the Plaint. Lastly, which order should be made on costs.
Who is the lawful owner of the suit property?
29. The evidence which was adduced is that the suit property originally belonged to Mullei Kyai who is the Plaintiff’s father. During his lifetime, Mullei Kyai gave the suit property to the Plaintiff. This came out even in the proceedings from Machakos SRMCC No. 56 of 1982 that the suit property was an inheritance in favour of the Plaintiff from his father.
30. The Plaintiff’s step brothers sold the suit property illegally to Raymond Kalovya. The Plaintiff’s step brothers were unable to transfer the suit property to Raymond Kalovya forcing Raymond Kalovya to file a suit against the Plaintiff’s three brothers including the Plaintiff.
31. The Plaintiff’s step brothers admitted to selling the suit property to Raymond Kalovya and they agreed to refund him the Kshs.9,100/= which Raymond Kalovya had paid. The proceedings of 25 th August, 1983 erroneously captured the Plaintiff who was the 4 th Defendant in that case as being present. The Plaintiff then moved the court in an application for review. The review was allowed as it was conceded that the Plaintiff was not present. The ruling of 8 th March, 1984 clearly shows that the three step brother of the Plaintiff had nothing to transfer to Raymond Kalovya. What remained in the judgment on admission which was not reviewed is the aspect of refund of Kshs.9,100/= to Raymond Kalovya. The Defendants’ advocate in their submissions stated that the Plaintiff was given an opportunity to review the judgment of 25 th August, 1983 but did not. This is not the correct position as there was a review of the judgment of 25 th August, 1983 and a ruling thereof was delivered on 8 th March, 1984.
32. The late Raymond Kalovya presented the judgment of 25 th August, 1983 to the County Council of Makueni which then made changes in the register to reflect that Raymond Kalovya as the owner of the suit property. When the Plaintiff discovered that ownership records had been changed, he wrote to County Council of Makueni who informed him that the change was pursuant to a court order. He was advised to seek recourse in court. The Plaintiff then moved to court and filed Machakos CMCC No. 176 of 2007. A judgment in his favour was delivered on 3 rd July, 2012. The judgment found that the change in ownership of the suit property was null and void. The court ordered that there be rectivation of the register. This was done by the County Government of Makueni, the successors of County Council of Makueni.
33. The suit which Raymond Kalovya filed against the 4 th Defendant remained unprosecuted until after his demise on 4 th December, 2008. The suit was marked as having abated by order of court on 1 st November, 2010. It is therefore clear that the suit property lawfully belongs to the Plaintiff.
Did the children of Raymond Kalovya have any interest in the suit property which was capable of being passed on to the 1 st Defendant
34. The children of Raymond Kalovya purported to sell the suit property to the 1 st Defendant vide a sale agreement dated 3 rd August, 2018. The children of Raymond Kalovya were of the view that their father had purchased the suit property. This was wrong because those who purported to sell the same had no interest in the suit property. The ruling of 8 th March, 1984 is clear that the step brothers of the Plaintiff had no interest to transfer to Raymond Kalovya. Those who had sold the suit property admitted that the suit property belonged to the Plaintiff through inheritance. They offered to refund what Raymond had paid as part of the agreed amount. This is the judgment which was entered but the magistrate went ahead to order transfer. This was found to be the position after review. The magistrate in his ruling stated as follows:
“Quite clearly the order of 25 th August, 1983 is not in accordance with what the applciation intended to be done. The application which was heard on 25 th August, 1983 intended that judgment be entered against the 1 st , 2 nd and 3 rd Defendants to refund to the Plaintiff the money they had received from the Plaintiff. Instead the order of 25 th August, 1983 allowed the transfer of the plot to the Plaintiff.”
35. The late Raymond Kalovya had agreed to purchase the suit property at Kshs.13,500/=. He had paid Kshs.9,100/= when the Plaintiff’s step brothers refused to transfer the land to him. He sued for specific performance with an alternative prayer for refund of Kshs.9,100/= already paid. When the 1 st and 2 nd Defendants in Machakos SRMCC 56 of 1982 appeared before the Magistrate on 25 th August, 1983, they agreed to refund the amount paid by Raymond Kalovya. They did not say that they had admitted to transfer the land and in any case this would not have been possible as he had not cleared the balance or indicated that he was willing to clear the balance.
36. It is on the basis of the error apparent on the record that a review was allowed. This is why the magistrate stated thus in his ruling:
“In the circumstances there is an error apparent on the face of the record. Moreover, since the 1 st , 2 nd and 3 rd Defendants could not transfer what they did not have the order bound the 4 th Defendant only”.
37. Raymond Kalovya took the judgment of 25 th August, 1983 to the County Council of Makueni who effected the transfer from the Plaintiff’s name to his name. When the Plaintiff learnt of the change, he complained to the County Council of Makueni who advised him to seek redress in court. The Plaintiff filed Machakos CMCC 176 of 2007 and obtained judgment on 3 rd July, 2012 nullifying the change. The record at County Government of Makueni has since been changed to reflect the Plaintiff as owner of the suit property.
38. The children of Raymond Kalovya did not have any interest in the suit property which was capable of being transferred. The children were aware that their father had been sued in Machakos CMCC 176 of 2007. Their father’s advocate was in court when the case proceeded and a judgment date reserved for 3 rd July, 2012 and judgment was delivered as scheduled. The sale took place long after the judgment nullifying Raymond Kalovya’s name had been delivered. It is therefore clear that the children of Raymond Kalovya had no interest in the suit property capable of being transferred to the 1 st Defendant. In fact 1 st Defendant attempted to have his name entered in the register but this was not possible as the suit property did not belong to those who had sold it to him.
Whether the Plaintiff is entitled to the prayers sought?
39. The Plaintiff is the registered owner of the suit property as per the records held by the County Government of Makueni. This was confirmed through letter dated 15 th October, 2018. I have demonstrated hereinabove that the children of Raymond Kalovya who purported to sell the suit property to the 1 st Defendant had no interest to pass to the 1 st Defendant. The Plaintiff is therefore entitled to the prayers in the plaint.
Disposition
40. The Plaintiff has proved his case on a balance of probabilities. I allow the Plaintiff’s claim in terms of prayer (a) (b) and (c) of the plaint dated 18 th December, 2018.
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HON. E. O. OBAGA, FCIArb
JUDGE
JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 17 TH DAY OF SEPTEMBER, 2016.
IN THE PRESENCE OF:
Mr. Mutinda for Plaintiff
Mr. Wabende for the Defendants
Court assistants – Kilonzo & Musyoki
ELC NO. 118 OF 2018 11 | Page