HANNAH WAIRIMU NJUGUNA VS JOASH MASESE OKWORO

2.    The Defendant filed a Statement of Defence dated 2nd September 2009, where he denied the allegations in the Plaint.

3.    PW1, Hannah Wairimu Njuguna,  adopted her  witness  statement dated 1st December, 2017, as her  evidence in chief and  produced documents from her list of documents  as PExh.1  to 10. She testified that a building was erected on her land, and she wrote a letter to the Town Clerk dated 18th June, 2009, and received a response.

4.    It was her testimony that she went to the Chief, who wrote a letter dated 28th April, 2009, which was to identify the person who was constructing on her land. PW1 further told the court that  Mungai Kariuki  Advocates  wrote a  letter dated 22nd July 2009  to the Defendant, which notified them that they had trespassed onto her land.

5.    PW1 testified that she used to pay rates for the suit land and produced payment receipts. She also stated that her advocate wrote a letter dated 18th January, 2013, to Kenya Power & Lighting   Company informing them that they had trespassed onto her land.

6.     PW1 stated that Wambui Ndungu was her advocate, whom she had tasked to sell some of her parcels of land and produced copies of sample agreements that she had drawn for purchasers and that   she had not tasked  Simon Mukunga Kariuki to sell her property. He was only to look for a buyer and forward the transaction to her advocate, Wambui Ndungu.

7.    It was PW1’s testimony that Simon got a buyer and took him to the advocate who did the sale agreements, and that she had not signed any of the agreements in respect of the suit parcel. She  further stated that  she did not know Michael Gikonyo Mburu and that  Simon never brought a buyer called Michael to her shop.

8.    PW1 was referred to the sale agreement dated 19th October, 2007, the subdivision approval dated 8th July, 1993,   and stated that she had never seen them. She testified that neither her ID nor her name was in the sale agreement, and when referred to a letter dated 5th June, 2009,  in Defendant’s bundle, she testified that she  had neither seen the letter nor  received  Kshs.912,580/=.

9.     It was PW1’s evidence that she was not aware of a Petty cash voucher of 2nd January 2006 and a mutation sketch in the Defendant’s bundle. She further stated that she never authorized the construction of any building on the suit property, reported the matter to the Assistant Chief, and refused to sell the land to the Defendant.

10.    Upon cross-examination by Mr. Ikua,  PW1  denied that Simon Mukunga was her agent in the sale of land, but admitted that he was her broker   who brought her purchasers in some properties. She also denied that she had authorized the subdivision of the land. It was her testimony that they never wrote any agreement with  Simon,  but  did not withdraw  instructions from  him. Further, she had given Simon a copy of the letter of allotment but not her ID.

11.     According to PW1, she took the allotment letter to Nairobi to follow up on the issuance of a title, but found that an unknown person, whom she had not authorized, had paid for the title.

12.    Upon e-examination by Mr. Waiganjo,  PW1  stated that she never allowed Mukunga and Gikonyo to subdivide the land into 3 portions. Further, Mukunga had no authority to  sign any mutation on her behalf.    PW1 also testified that she had the documents of the suit property, but did not give them to Mukunga or Gikonyo.

13.    DW1, Kodeck Okworo, testified that  he had  been given a Power of Attorney dated 21st November 2017, in respect of the suit land,  by the Defendant, who is his younger brother and resides in America, and produced it as  Dex No.1.

14.     DW1 adopted the witness statement by the Defendant dated  8th June, 2025,  as part of his evidence, and produced a list of documents dated 8th June, 2015,  as Dex No. 2 to 12.  He testified that he participated in the search and the purchase of the plot in 2007 with his brother, who left for America thereafter.

15.    It was DW1’s   testimony that he continued with the transaction and development of the plot and that the purchase price was paid through Herald Commercial Agencies, which was owned by Michael Gikonyo.  DW! Also stated that they developed the suit property, where they built apartment blocks of eight units. It was his evidence that they did not encounter any interference since 2007, when they started the construction, but in 2009,  his sister called him and informed him that she had been summoned by the Area Chief that they were building on land where the owner had not authorized the sale. He stated that they went to Chief Lelei, and the Plaintiff agreed that she had given the agents authority to sell the land.

16.    DW1 testified that the Plaintiff stated that the agents had sold the land at a lower price, of Kshs 370,000/  per plot instead of Kshs 500,000/, each. It was his evidence that the Plaintiff went to Nairobi to follow  her documents, but  instead filed this suit.  DW1 stated   they bought the suit plot through the Plaintiff’s authorized agents.

17.    Upon cross-examination by Waiganjo, DW1 stated that they had done due diligence before purchase, but  admitted that he had not produced a copy of the search. He stated that the sale agreement was between Herald Commercial Agencies and the Defendant.

18.     DW1 confirmed that  he  neither had  any written instructions between the Plaintiff and Herald Commercial Agencies, nor  Herald’s certificate that showed they were authorized to sell  the land.  He also told the court that he had not seen the Plaintiff’s instructions to Mr. Mkunga to sell the land and that his brother, the Defendant, paid Kshs.740,000/= to Herald Commercial Agency.

19.     It was DW1’s testimony that the sale   agreement was dated 19th October, 2007, and he was not sure whether the purchase price was paid on 15th December, 2007, but got the building permits in 2008, which he did not produce in court. DW1 further stated that the building was completed before the Plaintiff filed this case, but he did not have a title to the suit land. He also stated that he has not filed a counterclaim for the issuance of the title.

20.     According to DW1,  the Plaintiff had the title for the whole portion,  and the agreement between her brother and the Agency was valid as it was on behalf of the Plaintiff, who gave out her PIN   No. and title, but admitted that the  documents did not have the Plaintiff’s signature.

21.    DW2, Michael Gikonyo Mburu, adopted his witness statements dated 4th June, 2015, and 14th March, 2018, as his evidence in chief.

22.    Upon cross-examination, he stated that he had a certificate of Registration for Herald Insurance and Commercial Agencies, which he did not produce in court. DW2 admitted that  he was not a registered Estate Agent and that the authority to sell the suit land was verbal, further that  Simon Mukunga informed him of the transaction. DW2 also stated that  Mr. Mukunga had not shown him any written document giving him instructions to sell the land. DW2 confirmed that he received Kshs.740,000/= from the Defendant, but had not released the  money to the  Plaintiff to date. He further stated that he had engaged  someone to prepare the mutation forms.

23.    Upon re-examination,  DW2 stated that they were given verbal instructions by the Plaintiff, and that Mr. Mukunga  had approached him in 2007, informing him that the Plaintiff had instructed  him to sell the land. He confirmed that he had not paid the purchase price to the Plaintiff.

24.    DW3, Henry Chege Kamau, the Chief  Menengai location adopted his witness statement dated  4th June, 2015, as his evidence in chief and   produced minutes of a meeting held in his office on  15th May, 2009, as  Dex No. 10.

25.    Upon cross-examination, he stated that in 2015, he was the Chief of Free Area and that he had received a complaint from the Plaintiff that  some  people had constructed on her land. He stated that the Plaintiff  had denied selling the land to anybody, but  Mr. Mukunga claimed that he had been authorized to sell the Plaintiff’s land. DW3 confirmed that Mr. Simon Mukunga and Mr. Michael Gikonyo did not have any written authority, and that during the meeting, Mr. Gikonyo had promised to give the Plaintiff the money.

26.    Upon re-examination, DW3 stated that they never reached an agreement since the Plaintiff never attended the meeting.

27.    Counsel for the Plaintiff filed submissions dated 21st October, 2025, and identified the following issues for determination:

28.    On the first issue, whether the Plaintiff sold the suit property or part thereof to the Defendant, counsel submitted that the Plaintiff produced a title to the suit land  which was issued on 30th April 2008, and denied giving Simon Mukunga authority to sell the property in 2007. Counsel further submitted that the Defendant produced a sale  agreement  dated 19th October 2007 between  Joash Masese Okworo  (Defendant) and  M/S Herald Insurance & Commercial Agencies, which indicated that the Vendor was the registered owner of the piece of land known as and marked as plot  No. “B’ and “ C” on the sketch attached  as subdivision of L. R. No. 12783/51 Kiratina Farm, Nakuru, and that had agreed to sell at Kshs. 740,000/ and that the agreement was signed by  Herald  Insurance  & Commercial Agencies and Joash Masese Okworo.

29.    Mr Waiganjo   submitted that DW2, the proprietor of Herald  Insurance  & Commercial Agencies, stated that the initial instructions to sell the land were given verbally to Simon Mukunga, who is not mentioned in the  sale agreement, and that he confirmed that he did not have any written instructions to sell the land. Further, he is not a registered Estate Agent, and he also did not release the money to the Plaintiff.

30.     Counsel relied on  Sections 18 and 19 of the Estates Agents Act and submitted that the said provision required persons practicing as estate agents to provide an indemnity policy to cover any loss to people that might have lost money in the course of the agent’s practice.

31.     Mr. Waiganjo  relied on the case of Ocra Realtors Ltd V Abdulghani Kipkemboi Komen [2019] – Nakuru ELC No. 111 of 2016, and  urged the court to find that the sale agreement dated 9th October, 2007, between Herald Insurance & Commercial Agencies and the Defendant was null and void.

32.    On the second issue, as to whether the Plaintiff is entitled to the orders sought, counsel  submitted that DW2 failed to produce evidence to confirm his appointment as  the Plaintiff’s agent authorized to sell the suit land, hence there  was no valid contract for sale that existed between the Plaintiff and Defendant.

33.    Counsel submitted that the Defendant was a trespasser on the Plaintiff’s property and urged the court to order the Defendant to vacate the suit property and in default be evicted by an auctioneer.

34.    Counsel for the Defendant filed his submissions dated 3rd December, 2025, and  identified one issue for determination, as to whether the Plaintiff was aware of the sale of her property by M/S Herald Insurance & Commercial Agencies through her express instructions  to Mr. Gikonyo and Mr. Simon Mukunga Kariuki.

35.    Counsel submitted that the Plaintiff admitted that she had instructed Simon to sell her property, and had  given her documents to  DW2,  including the allotment letter and ID card to enable him to pay the requisite fees for the title to be processed, only for the Plaintiff to refuse to transfer the title. Mr Ikua stated that the Plaintiff’s only complaint was that the suit parcel had been sold at a lower price than she anticipated.

36.     Counsel further submitted that the Defendant  constructed on the suit land openly over a long period of time  with no order stopping him, hence the Plaintiff was aware and took no action.  Counsel stated that the Defendant  has spent  a lot of money in developing the suit parcel, and in the interest of justice and given the Plaintiff’s conduct,  no damages for trespass should be awarded to her.

37.    It was counsel’s submission that should the court find in favour of the Plaintiff on the issue of authority between the Plaintiff and her agents, the  Defendant should not be punished with costs and damages, and urged the court to dismiss the Plaintiff’s suit with costs.

38.    The issues for determination that arise from the pleadings are whether the Plaintiff sold the suit property to the Defendant and whether the Plaintiff is entitled to, the orders sought in the Plaint.

39.    This is a very unfortunate case where a purchaser ( the Defendant) entered into an agreement  with an agent who purportedly had instructions or authority to sell land on behalf of the Plaintiff.

40.    Currently in Kenya, buying land is a very risky process, whereby,  apart from carrying out due diligence in the normal way through a search at the land’s registry, a purchaser is forced to engage extra ordinary methods to confirm that the land really belongs to the purported title  holder.  The use of the word “purported” is  deliberate  due to the fact that the person might not also be sure of the root of the title or might be part of the problem tainting the root of the title.

41.    When dealing with a third party who is not the title holder and presents himself/ herself as having authority to sell on behalf of the owner, a purchaser must be extra vigilant to tick all the check lists to ensure that such a person legally has the authority to sell the land.

42.    From the onset, the Defendant did not tender   any evidence to show the  DW2 had the authority to sell the land on behalf of the Plaintiff.  DW1 stated that he was informed by one Simon Mukunga that he had been given verbal authority to sell the land.  DW2 therefore went ahead and entered into a sale agreement with the Defendant as the Vendor, as the owner of the suit property, which was a misrepresentation. He also admitted that he engaged someone to do the subdivision and the mutation without involving the Plaintiff who was the owner of the suit.

43.     DW2 further gave evidence and confirmed that he received the purchase price of Kshs 740,000/ but never remitted it to the plaintiff to date. DW2 was also not a registered Real Estate Agent as required under Sections 18 and 19 of the Estate Agents Act Cap 533 of the laws of Kenya.

44.    In the case of  Mapis Investment (K) Limited v Kenya Railways Corporation [2006] eKLR, the Court of Appeal  held  that an estate agency contract was illegal and unenforceable because the agent was not registered under the Estate Agents Act (Cap 533). The Court deemed the agreement, which involved a Sh95 million claim for selling land to the Embassy of Japan, contrary to public policy and in violation of the Act.

45.    The court cannot sanitize a transaction that arose from an illegal transaction, as was held in the Mapis case (supra) that courts ought not to pronounce themselves on obligations that are founded on illegal business or allow themselves to be made  the instrument of enforcing obligations arising from   illegal business.

46.    Similarly,  in the case of  Mike Munga Mbuvi v Kenya Airways Limited [2017] eKLR, the court  struck out a claim for commission by the plaintiff because he was not a registered estate agent as required by the Estate Agents Act (Cap 533). The court held that the claim was based on an illegal contract, applying the principle of ex turpi causa non oritur actio (no action can arise from a dishonorable cause), and awarded costs to the defendant.

47.    In the case of  Scott vs Brown Doering, Mcnab & Co. (3) [1992] 2 QB 724 at page 728 the court held that:

48.    The above cases emphasize the requirement for the registration of estate agents as per the Act to enable them carry out their mandate. The lack of authority to sell the land on behalf of the Plaintiff made the sale invalid, and any resultant transaction was null and void.  The Defendant cannot benefit in an illegal transaction.

49.    I have considered the pleadings, the evidence on record, and the relevant judicial authorities and find that the Plaintiff has proved her case on a balance of probabilities and issue the following specific orders;

a)    A perpetual injunction is hereby issued  restraining the Defendant, his agents, servants, workmen, relatives, assigns or those claiming under or through him from entering, using, occupying, developing or in any manner howsoever interfering with parcel of land known as TITLE NO 12783/51 KIRATINA FARM NAKURU.