JOSEPH MUCHIRI KIMEMIA VS BABUBHAI PATEL ILESHKUMAR AND CHIEF LANDS REGISTRAR

PLAINTIFF’S CASE
Plaintiff’s Pleadings
Joseph Muchiri Kimemia (hereinafter referred to as the plaintiff) has sued Babubhai Patel Ileshkumar   and the Chief Lands Registrar (hereinafter referred to as the defendants). The plaintiff claims to be the registered and legal owner of Nakuru Municipality Block 16/468 measuring approximately Nought Decimal Nought Six Four Four Seven (0.0644) Hectares (hereinafter referred to as the suit land). The plaintiff avers that he purchased the suit land from Ruth Wanjiru Shadrack vide an agreement for sale dated 30th May 2011 and duly amended on the 6th June 2011 for a consideration of 1,200,000. The plaintiff satisfied his obligations under the aforesaid agreement of sale and therefore Ruth Wanjiru Shadrack signed the in instrument of transfer of lease in his favour and handed over all the completion documents to him and he successfully obtained a certificate of lease for the suit land on 21st June 2011. The plaintiff took over possession and poured building materials on the site. He states that in the month of June 2016, the County Government of Nakuru granted a waiver on penalties on land rates and the plaintiff took advantage but was informed that the land belonged to the 1st defendant. The plaintiff conducted an official search and established that the 1st defendant was issued with a certificate of lease on the 7th of October 2015 pursuant to a court order emanating from Nakuru Chief Magistrate Court Number 482 of 2011 between the 1st defendant and Ruth Wanjiru Muraya. According to the plaintiff, the said suit was stage managed with a view of obtaining a court order irregularly and transfer the suit land to the 1st defendant. The plaintiff avers that the 2nd defendant was working in cahoots with the 1st defendant since at the time of registration of the suit land in favor of the 1st defendant the same was registered in the name of the plaintiff prior to registration in the name of the 1st defendant. The plaintiff avers that the suit land was fraudulently registered in the name of the 1st defendant.
The plaintiff prays for judgment against the defendant for a declaration that the plaintiff is the lawful owner of land parcel number Nakuru Municipality Block 16/468 and further, a temporary injunction restraining the defendants by themselves, their agents and or servants from selling, trespassing, developing dealing and or interfering with the plaintiffs quiet possession of land parcel number Nakuru MunicipalityBlock 16/468 and a perpetual Injunction restraining the defendants by themselves, their agents and or servants from selling, trespassing, developing dealing and or interfering with the plaintiffs quiet possession of land parcel number Nakuru MunicipalityBlock 16/468. Lastly, the plaintiff prays for nullification and or cancellation of the certificate of lease for land parcel number Nakuru Municipality Block 16/468 issued to the 1st defendant by the 2nd defendant herein and rectification of the register by the Land Registrar, Nakuru to restore the plaintiff’s name in the register. In the alternative, the plaintiff prays for general damages which is commensurate the current value of the suit land plus costs and interest of the suit.
1st defendant’s Pleadings
The 1st defendant filed his defence dated 7th February 2018 denying the assertions by the plaintiff and asserted that he is the legally registered owner of the suit land having purchased it  from the late Ruth Wanjiru Shadrack a fact confirmed in the judgment in CMCC NO 480 of 2011 having purchased the same on 15th November 2010.  The 1st defendant denies the allegations that the agreement forming the basis of the plaintiffs  claim was made and executed by Ruth Wanjiru Shadrack and contends that the same was a forgery and of no legal consequence. The 1st defendant further contends that even if the agreement was executed by Ruth Wanjiru Shadrack, she had no clean legal title having sold the suit land to the 1st defendant before executing the agreement. The defendant denies the allegation that the plaintiff is in legal occupation of the suit land. The defendant prays that the suit be dismissed with costs.

The plaintiff’s  Evidence
The plaintiff testified that on 30th May, 2011, he entered into an agreement for sale with Ruth Wanjiru Shadrack for the suit land for a consideration of Kes. 1,200,000.00 and that at the time of preparation of the said agreement, the same was erroneously described as land parcel number Nakuru Municipality Block 16/486 and 16/268 but this error was duly rectified vide an agreement dated 6th June, 2011. That upon execution of the said agreement, he paid a sum of Kes. 500,000.00   cash to Ruth Wanjiru Shadrack and she duly acknowledged receipt and he paid the balance of Kes. 700,000.00 to Moses W. Muraya pursuant to clause 3 (b) of the agreement.
That the Vendor handed over all the completion documents to the plaintiff and upon registration of the same at the land's registry, Nakuru, he was issued with a Certificate of Lease in his favour on 21st June, 2011. He immediately took control of the land and has never seen any person there. Indeed, his building materials are on site.
That sometimes in the month of June, 2016, the County Government of Nakuru issued a notice that it had granted a waiver on penalties payable in respect to land rates on all the properties situated with the County of Nakuru. I therefore visited their offices to take advantage of this waiver with a view of establishing the outstanding land rates.
To his utter shock, he was informed that the suit land belonged to the 1st defendant. He proceeded to conduct an official search over the property at the Land's Registry, Nakuru only to verify that indeed the 1st defendant had been issued with a certificate of lease for the suit land on 7th October, 2015. That upon further enquiries at land's office, he  was informed that the transfer of the suit land in favour of the 1st defendant was done pursuant to a court order emanating from Nakuru Cmcc Number 482 of 2011. That he immediately moved to the Civil Registry at Nakuru with a view of perusing and obtaining pleadings relating to the aforesaid suit. That he has now perused the pleadings and believes that the 1st defendant's ownership to the suit land is fraudulent, unlawful, and irregular and void ab initio. The cmcc suit was filed against Ruth Wanjiru Muraya who was not the registered owner of the suit land, the transfer of the suitland in favour of the 1st defendant was effected after the death of Ruth Wanjiru Shadrack who was the original registered owner, at the time of effecting the transfer in favour of the 1st defendant, he was the registered owner of the suit land yet he neither participated in the cmcc suit nor was he contacted by the 2nd defendant when the transfer was being effected. From the foregoing, he believes that the certificate of lease issued to the 1st defendant was done so unlawfully, irregularly and fraudulently. He states that he is in control of the suit land and has even put his building materials and has never seen anyone come to claim ownership.  In view of the foregoing, he believes that he is the lawful owner of the suit land. He therefore prays judgment be entered in his favour as prayed in the plaint.
DEFENDANTS EVIDENCE
Harriidas B. Tank , a resident in Nakuru town and of P.O. BOX 7010 NAKURU, testified as DW1  and stated that he is  an uncle to the 1st Defendant herein. He associates with, and assist the 1st Defendant in his business. He is very well conversant with the facts of this case, and of the facts surrounding the purchase and subsequent proprietorship of the suit land Title No. Nakuru Municipality Block 16/468 by the 1st Defendant. He has the express authority of the 1st Defendant to testify and tender evidence herein on his behalf.
He states that sometimes in the year 2010, one Ruth Wanjiru Muraya alias Ruth Wanjiru Shadrack, and whom he knew well as a then public figure in Nakuru town, informed him that she was selling her plot near where he was then working from. She asked him if he could buy it, or get her a buyer. DW1 opined that it was a good plot and then approached his nephew the 1st Defendant herein to buy it, and he agreed to buy it.
They discussed the purchase price with the said Vendor Ruth Wanjiru, and settled on a price of Ksh. 450,000/=. They all then went to the offices of Kimatta & Co. Advocates, where a Sale Agreement dated 15/11/2010 was executed between the 1st defendant and the said Ruth Wanjiru Muraya (now Deceased). DW1 was present when the said Sale Agreement was signed by both parties, and when the initial payment on the purchase price made.
The initial down payment made at the execution of the Sale agreement was Ksh. 100,000/=. It was paid by the 1st Defendant (Purchaser) to the Vendor (Ruth Wanjiru) in cash. The payment was acknowledged in the Sale Agreement.
1.

The balance of the purchase price was subsequently paid in cash directly to the said Vendor on diverse dates. Several instalment payments were made at the 1st Defendant's shop. The Vendor would usually call him that she needed some money for her medical treatment (she was ailing and was on a wheel chair). She would ask him to have the 1st Defendant/purchaser organize some payment for her. She would then come to the 1st Defendant's shop, which is nearby the suit property. Her car would park outside the shop, then DW1 and the 1st Defendant would go to her with the money. DW1 would then personally write out the Petty Cash Voucher for her to sign. The 1st Defendant would hand over the money to her, and she would then sign the voucher for the money received. She was paid a total of about Ksh. 200,000/= in this manner. The balance of Ksh 250,000/= was thereafter paid to her in cash in lump-sum, at the offices of Kimatta & Co. Advocates, when she insisted on the said lump-sum payment. DW1 was present when the payment was made.
At the time the Sale Agreement was executed, and when the Vendor was paid the cash at the offices of Kimatta & Co. Advocates, she was in the company of her son one Moses Muraya, who is well known to DW1. The said son was carrying the original Title document in respect of the subject property. When asked to hand over the Title document to the Advocate, he declined. He demanded that he be paid Ksh. 150,000/= before he could hand over the Title document. When both the Vendor and Mr. Kimatta Advocate (now deceased) told him that he could not be paid any money as he was not the Vendor, he stormed out in a huff, and went away with the Title document. DW1 followed him outside to plead with him to release it, but he declined. He insisted that he would have to be paid first. The Vendor promised to follow up and retrieve the Title document from the son and hand it over to the Purchaser, but that never happened.
Sometime in 2011, the 1st Defendant frantically called DW1 on phone and told him that someone had called him and told him that someone had deposited some building materials on the suit plot. The 1st Defendant asked him to rush there and find out what was happening. He went to the plot, and there he found a gentleman who he did not know abd claimed to be the owner of the plot. He said that he had purchased the plot from "kijana mwenyewe" meaning "the young man owner thereof". His protestations to him that the plot belonged to the 1st Defendant fell on deaf years.
Following the foregoing incidence, and the fact that the Vendor had not delivered the Title document to the purchaser, the 1st Defendant filed suit against the Vendor in Nakuru CMCC 482 of 2011- Babubhai Patel Ileshkumar –v- Ruth Wanjiru Muraya. The Plaintiff herein was/is a stranger to the 1st Defendant, and there is no privity of Contract between them
2.
After extensive hearing, in Nakuru CMCC 482 of 2011, the Court rendered its Judgment on 12/09/2014, to wit, the Court decreed that indeed the 1st Defendant was the lawful owner of land  Title No. Nakuru Municipality Block 16/468. Further, the Court ordered the Executive Officer of the Court to sign all relevant documents of Transfer on behalf of Ruth Wanjiru Muraya to ensure the suit land was duly transferred to the 1st Defendant. Subsequently, and in accordance with the express Orders of the Court, the suit land was transferred to the 1st Defendant on 07/10/2015, and a Certificate of Lease issued on 16/03/2015.
The suit land was lawfully transferred to the 1st Defendant's name, and there was no fraud involved as falsely claimed by the Plaintiff herein. Clearly, the 1st Defendant purchased the suit land herein for value, from the previous registered owner, a position that was upheld by the Court in Nakuru CMCC 482 of 2011. In transferring the suit land to the 1st Defendant, the Land Registrar/2nd Defendant merely complied with lawful Court Orders.
Furthermore, the Court's Decree and Orders in Nakuru CMCC 482 of 2011 remain valid to date, and have never been challenged, appealed, vacated or varied. The 1st Defendant hence remains the sole lawful owner of the suit land, by the said lawful Decree of the subordinate court.
The 1st defendant testified as DW2 that he had authorized his relative one Harridas Tank to testify herein on his behalf owing to his ill health. He was however informed by his Advocates on record herein that during the hearing of the suit on 03/03/2025, his absence in court and his failure to testify was impugned by the Plaintiff herein. He has hence taken the decision to testify so that it is clear to everyone that he has nothing to hide. The Witness Statement of Harriidas Tank dated 17/11/2023 has been read over and explained to him, and he confirms that the same is correct and gives a factual account of the matters touching on his acquisition of the suit property. He is  the lawful and registered proprietor of the suit land herein Title No. Nakuru Municipality Block 16/468, which measures approximately 0.0644 Ha. He purchased the same in 2010 from the previous registered owner, the late Ruth Wanjiru Muraya (Deceased) also known as Ruth Wanjiru Shadrack. The Vendor was introduced to the 1st defendant by Harriidas Tank.  The vendor was ailing and was in need of money for her medication. They agreed on a purchase price of Ksh. 450,000/=. They executed a Sale Agreement dated 15/11/2010 at the offices of Kimatta & Co. Advocates.
He paid the purchase price in full, in several instalments and on diverse dates. The Vendor signed his Petty Cash Vouchers for most of these payments, save for the money that he paid at the Advocates' office. Harriidas Tank was present during all the times he made payment to the Vendor, Ruth Shadrack. Indeed, he is the one who would write out the vouchers on his behalf. The 1st defendant would then handover the money to Ruth, who would the sign the vouchers.
1.

The Vendor did not hand over the Title Deed for the said land to the 1st defendant after he completed paying her the purchase price. The son snatched the Title Deed from her and ran off with it, demanding to be paid part of the purchase price.
Sometimes in 2011, someone started to put building materials on the plot. He asked Harriidas Tank to find out who it was.  He called Tank and informed him that someone had deposited some building materials in the suit material and asked him to find out what was happening. They later learnt that the person was the Plaintiff herein.  He later removed his building materials. He claimed to have purchased the plot from Ruth Muraya's son, one Moses Muraya.
Being aggrieved by the aforesaid incidence and also by the unavailability of the Title Deed, he instituted the suit in the lower court being Nakuru CMCC 482 of 2011- Babubhai Patel Ileshkumar -vs-Ruth Wanjiru Muraya.
The suit was heard and determined in his favour. The court found that he was the rightful owner of the land, and ordered that he gets the Transfer of the land. The court's Executive Officer was ordered to sign all requisite Transfer documents to effect the Transfer. That was duly done, and he obtained the Title document for the land. Both the plaintiff and the 1 Defendant in the suit duly participated in the said suit, and they were each represented by a lawyer.
The court Decree and Orders in Nakuru CMCC 482 of 2011 remain valid to date, and have never been appealed or otherwise varied.
He denies the Plaintiff's allegation that he is the owner or that he rightfully purchased the suit land from Ruth Wanjiru Muraya alias Ruth Wanjiru Shadrack.  Ruth testified in the lower court and confirmed that she sold the property to the 1st defendant. She never mentioned having sold the property to anyone else.  Ruth's son Moses Muraya was never the owner of the land and had no capacity to sell the same to the Plaintiff herein or at all. The suit property is currently vacant and none of the parties are using it, after the court herein ordered maintenance of status quo. He prays that the Plaintiff's suit  be dismissed with Costs
DW3 was Emanuel Karissa Kenga a forensic document examiner of 30years experience testified that he examined questioned documents thus the sale agreement and the transfer of lease allegedly  executed by the late Ruth Wanjiru Muraya and the  plaintiff and found that the signatures on the said documents which were questioned did not agree with the known signatures of the late Ruth Wanjiru Muraya  and therefore the signatures were not from the same author. Whereas the documents allegedly signed by the same Ruth Wanjiru Muraya with the 1st defendant indicated that they were signed by the same author.
DW5 was the land registrar Nakuru County who came to produce the parcel file for NM Block 16/468. She availed the copies of all documents in the parcel file. The original lessee was Ruth Wanjiru Shadrack. Joseph Wambugu Kimemia became registered on the 21st of June 2011. The 1st defendant, Babhubai Patel became the lessee on the 7th October 2015. The latter was registered vide a court order. The court ordered the registrar to transfer the land to the 1st defendant. The plaintiff was notified of the court order. The transfer was signed by the executive officer of the court. There was no consent of the Commissioner of Lands. Very important is a statement by the land registrar on cross examination by M/s Magana is that the transfer instrument executed by the plaintiff and allegedly by the late Ruth Wanjiru Shadracc shows her national identity no as 3625383 as opposed to her known id 0330653. The name on the green card is Ruth Wanjiru Muraya and not Ruth Wanjiru Shadracks.

RIVAL SUMISSIONS

The gravamen of the plaintiff’s submissions is that all the reliefs sought in the plaint are tenable due to the fact that the transfer of the suit property to the Plaintiff herein was procedurally and substantively procured. The plaintiff was entitled to the land under the doctrine of innocent purchaser for value and that of indefeasibility of tittle as provided for under into the evidence to that effect. The plaintiff refers to several authorities. In the case of Mwamule Company Limited v Chief Land Registrar & 2 others (Environment and Land Case  105 of 2019)  [2025] KEELC 4684 (KLR)  (12 June 2025)  (Judgment)eKLR, the superior court pronounced itself as follows;

"Section 26 (1) of the Land Registration Act
articulates the principle of indefeasibility of title, asserting that once a proprietor's title is registered, it remains protected unless compelling evidence demonstrates that it was acquired through fraudulent, misrepresented, or corrupt practices involving the proprietor.
This assertion is substantiated by a series of judicial precedents, as effectively cited by the counsel representing the parties, see for example - Rutongot Farm Ltd v Kenya Forest Services & 3 Others [2018] eKLR, Thomas Mose Kenyenya v Arvindhandra Himatlal Mehta & 2 others [2022] eKLR, and Republic v Land Registrar Taita Taveta District & another [2015] eKLR."

"….In Munyu Maina v Hiram Gathiha Maina [2013] eKLR, the Appellate Court ruled that when a title document is challenged, the owner must prove its legality beyond just presenting the document: "We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register."

The plaintiff cites the decision of the Court of Appeal in Embakasi Properties Limited & another vs Commissioner of Lands & another [2019] eKLR, cited with approval in the above cited most recent case of Mwamule Company Limited (supra), cited with approval the three principles of the Torrens System as prescribed by the Canadian Court of Appeal in Regal Constellation Hotel Ltd Re 2004 Can LII 2006 Ontario C.A.) Page 13 para 42, with respect to the Torrens System:

"The philosophy of land titles system embodies three principles, namely, the mirror principle, where the register is a perfect mirror of the state of title; the curtain principle, which holds that a purchaser need not investigate the history of past dealings with the land, or search behind the title as depicted on the register; and the insurance principle, where the state guarantees the accuracy of the register and compensates any person who suffers loss as the result of an inaccuracy."

He further cites  the case of Mbuthi v Osman & another (Environment & Land Case E004 of 2022) [2024] KEELC 387 (KLR) (1 February 2024), where Mogeni J. held that;

"Proof of ownership of land is found in documentary evidence which lead to the root of title. There must be shown an unbroken chain of documents showing the true owner. Once proof of ownership is tendered then the holder of the documents is entitled to the protection of the law. There is no doubt that such proof will be on a balance of probabilities, but the court must be left in no doubt that the holder of the documents proved is the one entitled to the property."

The plaintiff relies in the Supreme Court decision in Dina Management Ltd v County Government of Mombasa & 5 Others [2023] SC Petition No. 8 (E010) of 2021)eKLR which emphasized that a bona fide purchaser is one who buys property without notice of any prior claim, either actual or constructive and case of Samuel Kamere v Land Registrar Kajiado (2015) eKLR where the Court of Appeal held that to qualify as a bona fide purchaser, a person must acquire a valid title, conduct due diligence and pay valuable consideration.

The plaintiff further places reliance in the case of Mwangi James Njihia v Janetta Wanjiku Mwangi & Another (2021) eKLR which reaffirmed the principles of bona fide purchase as including good faith, valuable consideration, and absence of notice of fraud, Lawrence P. Mukiri v Attorney General & 4 Others [CA No. 146 of 2014] which adopted the Ugandan case of Katende v Haridar & Co. Ltd (2008) EA 173, where the Court held that a bona fide purchaser must hold a certificate of title, purchase in good faith, pay valuable consideration, have no knowledge of fraud and not be party to fraud. Lastly the plaintiff refers to the  Supreme Court in the case of Sehmi & another v Tarabana Company Limited & 5 others (Petition E033 of 2023) [2025] KESC 21 (KLR) (11 April 2025) (Judgment)eKLR discussed the doctrine of bonafide purchaser for value in the following words which we respectfully invite the Honorable Court to consider in due determination of the matter before it;

"It is a fundamental principle of the law of property in land that a purchase of a legal estate for value without notice is an absolute, unqualified and unanswerable defence against the claims of any prior equitable owner or encumbrancer.
The onus of proof however lies upon the person claiming to be a bona fide purchaser. Three main ingredients must be present for a claimant to mount a successful defence based on the doctrine. These are, innocence, purchase for value, and a legal estate."
"The element of innocence means that the purchaser must act in good faith. His conduct must not raise any doubt as to whether indeed, he did not have any notice or knowledge as to the existence of a rival interest in the suit land.
If for example, it comes to light that during the process of purchase, the claimant engaged in conduct that was unconscionable in the eyes of equity, such conduct would weaken his claim of innocence as to the existence of a rival interest. The element of innocence also connotes the exercise of diligence expected of any reasonable purchaser. The claimant must demonstrate that he acted diligently and conducted a reasonable inquiry into the status of the estate or land that he sought to purchase."

The plaintiff argues that in the instant suit, the Plaintiff has not only availed the certificate of lease issued on the 21st day of June 2011 but has also gone far much beyond to explain the process of acquiring the suit property and the consequent tittle and in all that, he stands out and qualifies to be an innocent purchaser for value.

The evidence adduced by the Plaintiff reveals that he acquired the suit property from one Ruth Wanjiru Shadrack by dint of a sale agreement dated the 30th day of May 2011. The evidence further reveals that the Plaintiff paid a consideration of Kshs. 1,200,000/= to the said vendor. It is also evident that the relevant consents were duly sought, granted and consequent transfer forms fully signed and approved leading to the issuance of the said certificate of lease in the name of the Plaintiff. There is also evidence of payment of the requisite stamp duty. It is also apparent and in the circumstances surrounding this case that the Plaintiff was not and could not be aware of any negotiation for sale that might have been going on between the said vendor and the 1st Defendant as so alleged. This clearly qualifies him to be an innocent purchaser for value and worthy of protection by the Honorable Court.

This can further be demonstrated by the fact that the Plaintiff conducted due diligence by conducting both physical and official search and establishing that in deed as at the time of purchase, the vendor held a good tittle, which is not disputed not even by the 1st Defendant herein who also purports to have bought the suit property from the said Ruth Wanjiru Muraya. However, worthy noting is that as at the time of purchaser and consequent transfer, the suit property was in the name of the vendor and there was no caveat or restriction whatsoever. It is also important to note that the title by the Plaintiff is older than that of the 1st Defendant and therefore, the 1st Defendant, whose legality is in question bears a high burden of proof to demonstrate how that tittle moved from the Plaintiff to him.

The plaintiff submits that the transfer of the suit property to Babubhai Patel Ileshkumar, the 1st Defendant herein was illegally and fraudulently procured and therefore fit for cancellation. The pleadings and consequential evidence tendered by the 1st Defendant in Nakuru CMCC No. 482 of 2011, reveals a non-disclosure of material facts. The pleadings and the evidence thereto, does not disclose the fact there was another sale agreement between the Plaintiff and the then vendor, Ruth Wanjiru Shadrack. It also does not reveal the fact that the Plaintiff in the instant suit had already been transferred the suit property and issued with a certificate of lease.

The plaintiff argues that the evidence on record further demonstrates lack of due diligence by the 1st Defendant not only at the entire process of purchase of the suit property but also at the time of institution of Nakuru CMCC No. 482 of 2011. More precisely, upon discovering that there was another person using the said property and of course claiming ownership thereto, it behoved the 1st Defendant to take a step further and inquire more about the person and the proprietorship of the suit property. That did not need a long process, it was just a matter of visiting the land registry and conducting an official search and clearly, he would have found that the suit property belongs to the Plaintiff. .

The plaintiff argues that the  1st Defendant knew it very well that the Plaintiff was the registered proprietor but due to his fraudulent intention, did not bother and/or chose not to join the Plaintiff as one of the Defendants or otherwise ensure that the former is given an opportunity to defend himself. Clearly, from the time of purchase throughout to the time of institution of the said suit by the 1st Defendant, one would observe that he was indolent if not fraudulent and cannot enjoy the protection of the law of equity. The learned magistrate, since did not have any whereabouts and/or the fact that the said property was already registered in the name of the Plaintiff, was left with no other option but to order specific performance in favour of the 1st Defendant, the then Plaintiff. The pleadings in Nakuru CMCC No. 482 of 2011 together with the decree thereto depict fraud and do not in any way indicate and/or imply specific performance for transfer of the suit property but rather for refund of deposit paid on purchase price, liquidated damages for breach of contract and costs of the sale agreement. Those were the orders sought in the said suit by the 1st Defendant, then the Plaintiff. That parties are bound by their pleadings. The 1st Defendant having not specifically pleaded for a declaration that he is the legal owner and/or for transfer of the said property to his name, he cannot later on come and claim the same through the back door.
The plaintiff cites the dictum of Justice Kizito in the case of Ogando v Watu Credit Limited & another (Civil Suit E098 of 2022) [2024] KEHC 3074 (KLR) (14 March 2024) (Judgment) eKLR addressed the issue in the following style;

"It is imperative at this early time to point out that parties are bound by their pleadings. Evidence that is in the medical records by not pleaded is otiose. It is unusable and does not help parties. Parties must plead their case before proceeding to proof them.In Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A C Mrima stated as doth:

"It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must align with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded.That settled position was re-affirmed by the Court of Appeal in the case of
Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -

"….it is now(settled) principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………
In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation."

The plaintiff argues that the decree emanating therefrom, does not make mention of transfer and/or a declaration that the Plaintiff is the registered owner of the suit property. As a matter of fact, the decree dated the 5th day of December 2014 states that; "judgment is entered for the Plaintiff against the Defendant for specific performance as prayed for in the plaint and costs of the suit". For the avoidance of doubt, the prayers in the plaint were thus; specific performance alternatively Kshs. 199,700/= being deposit paid on purchase price, Kshs. 90,000/= being liquidated damages for breach of contract, Kshs. 10,000/= being costs of the sale agreement and costs of the suit. Even looking at the witness statement thereof, one would clearly see that the Plaintiff was only after said amount and not specific performance for the transfer of the suit property.

The 1st Defendant therefore, proceeding to obtain a certificate of lease by dint of a decree that spoke to something different as opposed to the alleged transfer, is equally fraudulent and the 1st Defendant should not be allowed to benefit from his fraudulent actions under the doctrine of ex-turpi causa non oritur actio.

The plaintiff contends that orders should not and cannot be issued against parties who are not in court and/or were not given an opportunity to defend themselves. Under this head, the plaintiff relies on  the case Kiai Mbaki & 2 others v Gichuhi Macharia & another [2005] eKLR cited the court stated as follows;

"The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard."
It follows that the court cannot issue orders against a person that is not a party to the suit.
Further to the foregoing, the main purpose why a party may be joined to a suit is to claim some relief from such a party. The fact that the 2nd and 3rd respondents purchased the assets of the judgment debtors does not make them shareholders or parties to the suit, neither attract any liability

In the case of Githinga Kibutha vs Caroline Nduku ELCA No 16 of 2007 cited with approval in the case of Ndua & 2 others v Kamau (Environment & Land Case 157 of 2019)[2023] KEELC 22658 (KLR) (29 June 2023) (Judgment)eKLR the court stated thus:-

"The Land Registration Act does not define fraud. Recourse must therefore be had to other sources of law. The Black's Law Dictionary defines fraud thus:-

"Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury.
Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another'. Fraud would, therefore consist of deceitful actions which may be made through either positive assertions or concealment of facts.
It is settled law that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt."

In the case of Ndua & 2 others (supra), the court unequivocally stated thus; "I agree with the plaintiffs that a judgment obtained fraudulently can be set aside through a separate suit. The Court of Appeal of Kenya has held that a judgment fraudulently obtained can be challenged through a new suit."

In light of this therefore, in the unlikely event the said judgment spoke as to the specific performance for transfer of suit to 1st Defendant and/or a declaration that the 1st Defendant was the legal owner, then the same should be fit for setting aside and replacing with a fair judgment which has taken into account all the sentiments of the affected parties. Having observed that in deed the 1st Defendant was well aware of the third party's interest but failed to disclose the same to court and ensure that he is equally given an opportunity to defend himself, which action is fraudulent, then the judgment obtained therefrom is illegal and fit for setting aside.
The plaintiff relies on the Court of Appeal decision in  Richard K. Bunei & 8 others t/a Geo-Estate Development Services v Lorien Ranching Company Limited & 799 others (being sued on behalf of themselves and on behalf of alleged 795 Members) [2017] eKLR also referred to and accepted the earlier decision of the Queen's Bench Division in Cole vs. Langford [1898] 2 QB 36 which, after considering the decisions of Jessel M. R. in Flower vs. Lloyd 6 Ch. D 297 and Lord Justice Baggallay in Baker vs. Wadsworth [1898] 67 L.J. Q.B 301 held that;

"Where a judgment has been obtained by fraud, the court has jurisdiction, in a subsequent action brought for that purpose, to set the judgment aside.

The authority for rectification of title was addressed by (Gacheru J.) in the case of Ngugi v Kamau & another (Environment & Land Case 36 of 2020) [2022] KEELC 2261 (KLR), in which she stated the following:
"Rectification by Court concerns one that goes to the cancellation or amendments of title, circumstances of which are provided above. This Court agrees with the sentiments of the Court in Kisumu Misc No. 80 of 2008, Republic v Kisumu District Lands Officer & another [2010] eKLR, where the Court held: "it is clear that it is only the Court that can cancel or amend if where the Court is of the view that registration has been obtained, made or omitted through fraud or mistake and only where it is not a first registration".

Having found that the 1st Defendant obtained the registration of the suit property fraudulently, it follows automatically that the same is fit for cancellation and rectification and the Plaintiff's certificate of lease be upheld and the position be duly regularized by the land registrar, the 2nd Defendant herein and/or restore the Plaintiff's name in the register.
Under this head, the plaintiff submits that the Plaintiff is entitled to the relief for permanent injunction, having fully demonstrated ownership to the suit property. The plaintiff relies on King'ori v Kimani (Environment and Land Case E012 of 2023) [2026] KEELC 352 (KLR) (28 January 2026) (Judgment) eKLR where the Honorable Court proceeded in the following manner and held as follows;

"What constitutes a permanent, or perpetual, injunction was aptly articulated in Kenya Power & Lighting Co. Ltd v Sheriff Molana Habib [2018] eKLR, in which the Court stated as follows: "A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the Court and is thus a decree of the Court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered.
A permanent injunction perpetually restrains the commission of an act by the Defendant in order for the rights of the Plaintiff to be protected."

In the present case, the conditions for the grant of a permanent injunction are clearly met. The Plaintiff has demonstrated lawful ownership of the suit property, and the Defendant has no legal basis to occupy or interfere with that property.

The evidence adduced fully supports the Plaintiff's claim, while the Defendant offers no lawful justification for continued occupation.
In these circumstances, a permanent injunction is not only appropriate but necessary to protect the Plaintiff's rights and to prevent ongoing or future infringement. The relief serves the dual purpose of vindicating ownership and ensuring that the Plaintiff's entitlement to exclusive possession is respected in law."

The plaintiff prays that this Honorable Court considers allowing the Plaintiff's suit as pleaded for in the Plaint and saddles the Defendants to pay the costs thereto.
THE 1ST DEFENDANT’S CASE
The defendant’s case is that he is the lawfully registered proprietor of the suit property land Title No. Nakuru Municipality/Block 16/468. He was so registered by lawful, valid and to date never-challenged Decree and Orders of Court dating back to year 2014 and 2015 in Nakuru CMCC No. 482 of 2011.
The defendant argues that the Plaintiff’s suit herein is an attempt to impeach a valid and subsisting Judgment, Decree and consequential Orders of a different court of competent jurisdiction, through filing this fresh suit, rather than him going through the regular and legally recognised channels of either Appeal or Judicial Review to this court, or an application for review or setting aside in the original lower court suit. The Plaintiff now seeks to invalidate a land title issued to the 1st Defendant pursuant to a lawful judicial process and in lawful execution of lawful court Orders; as was indeed confirmed herein by the Plaintiff’s own witness PW 2” - the Land Registrar.
The defendant has enunciated issues for determination as follows;
i.    Jurisdiction of this Court, in view of the earlier suit and determination.
ii.    Plaintiff’s collateral attack of earlier suit Decree/Orders; abuse of court process
iii.    Can prior Decree/Orders of a court of competent jurisdiction be impugned without due legal process, to wit, appeal, judicial review, review, setting aside.
iv.    Role of Land Registrar in execution of court Orders/Decree
v.    Can Execution of a Decree in one suit be impugned by filing a separate suit?
vi.    Validity of 1st Defendant’s title.
vii.    Alleged fraud, and Plaintiff’s evidential burden thereof.
viii.    Effect of non-joinder of the Vendor or her Estate herein.
ix.    Lis Pendens
x.    Root of Plaintiff’s alleged Title; validity of Plaintiff’s title, and the evidential gaps/inconsistencies thereon.
xi.    Was there breach of Natural Justice against the Plaintiff?
xii.    Competence of suit against Chief Land Registrar without joinder of Attorney General, and without Notice under section 13 A of the Government Proceedings Act.
On Jurisdiction the defendant submits that the Plaintiff herein is seeking this court’s appellate or judicial review relief, without plainly saying so, but instead disguising it as a fresh suit. He then suggests that this court should set aside, vary, and replace that Judgment. This court has no jurisdiction to do such a thing, seeing as the court has not been competently moved by way of either Appeal, Judicial Review, or Declaratory suit.
The defendant refers to the celebrated case of Owners of Motor Vessel “Lillian S” v Caltex Oil [1989] KLR 1 – jurisdiction is everything, and without it, the court can only and should down its tools on the Plaintiff’s plea.
So too in the case of Speaker of National Assembly v Karume [1992] KLR 21 (CA), the Court of Appeal was categorical in holding that - “Where there was a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed”.
The Plaintiff cannot competently circumvent the laid down legal process and purport to lodge a back-door or review of a valid decree of the lower court.
Collateral attack of lower court decree/orders; abuse of court process: The Court of Appeal in the case of Muchanga Investments Ltd v Safaris Unlimited [2009] eKLR (CA), cited with approval the Nigerian case of SARAK v KOTOYE (1992) 9 NWLR 9pt 264) 156 at 188-189 (e), and reiterated that the concept of abuse of court process includes re-litigation of the same or similar subject matter. The appellate court restated that examples of abuse of court process include;
(a) “Instituting multiplicity of actions on the same subject matter against the same opponent on the same issues or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action.
(b) Instituting different actions between the same parties simultaneously in different courts even though on different grounds.
The defendant argues that the instant suit by the Plaintiff is clearly one of such abuse of judicial process. The only way to move this court in a challenge of the decision of the lower court is by way of Appeal or Judicial Review. Section 65 (b) of the civil Procedure Act provides for Appeal from an original decree of the subordinate court. Section 13 (4) of the Environment and Land Court Act provides for Appeals to this Court. The option for Judicial Review was also available. It is provided for under Article 47 of the Constitution of Kenya 2010,  section 8 of the Law Reform Act, section 9 of the Fair Administrative Actions Act, and Order 53 of the Civil Procedure Rules.
In the case of Catherine C Kittony v Jonathan Muindi Dome & 2 others[2019/]Eklr, Court of Appeal held that where a party is challenging the Jurisdiction of the Land Disputes tribunal (or of the subordinate court), filing a declaratory suit is not the proper forum to ventilate their grievances. The Court held that:

“The award by the 2nd respondent ceased to exist upon adoption by the court as its judgment and a decree. The award cannot be challenged by filing a fresh suit as it is trite law that where a statute establishes a dispute resolution mechanism that mechanism must be followed and exhausted, where a party fails to do so he cannot be heard to say that his rights were denied. However,……………………………. the appellant opted to file a fresh suit, before the ELC which was not in order.
In Emily Jepkemei Ngeyoni & Ano. vs Nicholas Kipchumba Kogo & Oth. 2006 eKLR , where there was a subsisting Decree of the lower court, Hon. Justce Dulu held;
“……………………………..on whether a decision can be challenged in this court by way of suit. In my view, that is not legally possible…………………………………….. Therefore it is my finding that the decision of the Land Disputes Tribunal cannot be challenged through a suit. As the decision of the Tribunal was registered in the subordinate court, filing suit would, in any event, be fresh proceedings, in a matter in which a decree of the subordinate court has already been issued. Filing multiplicity of cases in court on the same matter is not acceptable in law.”
Validity of prior Decree and of 1st Defendant’s Title: So long as the earlier Decree and Orders have not been set aside, the same remain in force, and the 1st Defendant’s Title issued pursuant thereto remains valid. The Courts have variously pronounced themselves in this respect.
The defendant refers to the case of Benjoh Amalgamated Ltd v KCB [2014] eKLR (CA), the Court of Appeal reiterated that – “A Court’s Judgment and/or Ruling, in the perception of the Constitution and the law, is an edict that resolves a live issue of controversy, and is by no means an abstract pronouncement”.
In the case of  Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others, Civil Appeal 184 of 2011, the learned Judge stated as follows;
“……….  It is trite law that a valid judgment of a court unless overturned by an appellate court remains a judgment of court and is enforceable, the issue of jurisdiction notwithstanding. The plaintiff had all avenues to impugn the award as well as the judgment. He did nothing………………………….. In the meantime, the 1st defendant’s rights to the suit premises crystallized. Equity assists the vigilant and not the indolent………… I doubt that even the remedy of the declaration is available to the plaintiff to impugn a valid court judgment and decree.”.

Court has no powers to cancel a title issued under a valid/ subsisting Decree:
This court cannot cancel title issued by order of another court, unless and until such earlier orders have been set aside or otherwise vacated. Doing otherwise would result in an absurd situation, of there being two different and divergent court decrees, from two different courts, over the same subject matter.
In Florence Cherugut v Cheptum Murei Annah [2022] eKLR, it was held as follows;
“Again, the Applicant invited this court to cancel the title deed registered in the name of the Plaintiff and order it to revert back to her (the defendant’s) name. I have found that the further steps the Plaintiff already took in the execution of the decree were as a result of valid Court orders. It would be an absurdity to find the decree valid and at the same time order that the execution that took place as a result of it be reversed by way of cancellation of the title. For that reason the Court refuses to be persuaded and moved by the Applicant’s prayer and the entire application.”
The defendant argues that Section 34 of the Civil Procedure Act is relevant. The Plaintiff herein is in effect challenging Execution of the Decree of the lower court in Nakuru CMCC No. 482 of 2011. He is challenging the Title to the suit land, which Title was decreed and issued to the 1st Defendant vide that suit.
Section 34, Civil Procedure Act Cap. 21 provides as follows;
34. Questions to be determined by court executing decree
(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.
(2) The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit, or a suit as a proceeding, and may, if necessary, order payment of any additional court fees.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court.”
The defendant argues that this provision binds the Plaintiff herein even though he was not a direct party to the said lower court case, because as submitted earlier herein, he claims through or under Ruth Wanjiru Muraya, who was the Defendant therein. As was rightly held by the Court in the aforesaid case of Emily Jepkemei Ngeyoni & Ano. vs Nicholas Kipchumba Kogo & Oth. 2006 eKLR –

“challenges to execution of that decree can only be done in the file in that court. That is the import of section 34 of the Civil Procedure Act. ……………………..,, challenge to the decree of the Kapsabet Magistrate’s court can only be done in Kapsabet court”.
“The award of the Land Disputes Tribunal could be irregular, or even a nullity.  However, it can only be challenged through the existing legal regime. The plaintiffs are following the wrong procedure by filing the amended plaint before this court, to challenge the decision………………..  They should have followed the right legal machinery……….…………..  For the above reasons I uphold the preliminary objection, and strike out the amended plaint with costs to the defendants”.
Land Registrar and Execution of court Orders: The Plaintiff herein has accused the Land Registrar and the 1st Defendant of impropriety and fraud, merely for registering the 1st Defendant as proprietor of the suit land, in compliance with valid court orders. All persons, and more so public servants, are duty bound to obey all valid Orders of court. As has been said before, court Orders are not mere suggestions or requests; they are commands that must be obeyed by all. A citizen or a public servant cannot be guilty of impropriety, let alone fraud, merely for implementing court orders.
The defendant argues that the Plaintiff has alleged/pleaded fraud in his Plaint herein. However, a reading of the alleged particulars of fraud show that no specifics of fraud have been pleaded against any of the Defendants. The supposed particulars of fraud are actually merely the Plaintiff’s disaffection with the Defendants’ implementation of court orders/decree as aforesaid.
That during the trial, no allegation or evidence or mention of fraud whatsoever was made in court, either the Plaintiff himself or by any witness.
The only other mention of fraud made by the Plaintiff, is in the Plaintiff’s Submissions herein dated 16/03/2026 wherein the Plaintiff’s counsel therein calls upon the court to “infer” fraud from the Defendants’ action of implementing the aforesaid court orders and registering the suit property in the name of the 1st Defendant. That proposition of fraud is to say the least, ludicrous.
The defendant submits that there are a plethora of judicial precedents on this, that fraud must be specifically pleaded, and specifically proved, and cannot be inferred. He starts with the cases of R.G. Patel v Lalji Makanji [1957] EA 314, Vijay Morjaria v Nansingh Madhusingh Darbar [2000] eKLR (CA), as in many other decisions after them, the Court of Appeal has reiterated that fraud must be strictly pleaded and proved beyond the standard of balance of probabilities, and that fraud cannot be inferred. He urges the court to find that no fraud has been established herein.
The plaintiff submits that the Suit is bad in law for failure to comply with Section 13A of Government Proceedings Act which provides -
13A. Notice of intention to institute proceedings
(3) No proceedings against the Government shall lie or be instituted until after the expiry of a period of thirty days after a notice in writing in the prescribed form have been served on the Government in relation to those proceedings.
No such Notice has been filed in court herein; none was issued.
Validity of Plaintiff’s Title / Root of Title: The Plaintiff himself has cited in his Submissions herein the celebrated Court of Appeal case of Munyu Maina vs Hiram Gathiha Maina (2013) eKLR, and the ELC case of Mbuthi v Osman& Anor.(2024) KEELC387 (KLR) 1 (1 Feb.2024, MogeniJ, for the proposition that –
it is not enough for a registered proprietor whose Title is in question to dangle the same said questioned Title document as proof of ownership. He must go beyond the instrument prove root of that Title, the legality of how he acquired the Title, show that the acquisition was legal, and show an unbroken chain of documents showing the true owner; and the court must be left in no doubt that the holder of the proved documents is the one entitled to the property.
The defendant submits that these parameters apply to the Plaintiff’s alleged Title, as much as they apply to the 1st Defendant’s Title.
The 1st Defendants submits that  the 1st Defendant’s Title, having been acquired through a clear and unchallenged judicial process, where the court received and analysed his purchase documents and testimony before granting him Title, the 1st Defendant’s Title has met all those parameters. But not so for the Plaintiff’s alleged Title. The Plaintiff’s title lacked authenticity, for the following Reasons:
i.    His alleged Sale Agreement and Transfer documents are not executed by the purported vendor Ruth Wanjiru Muraya. The Document Examiner Emmanuel Kenga (DW 2), examined the signatures thereon and compared them with the known signatures of Ruth Wanjiru Muraya, including the signature on her ID card, which ID card was the same one used by the Plaintiff to effect his own Transfer. DW2 asserted that the signatures on the Plaintiff’s documents were not signed by Ruth Wanjiru Muraya.
No contrary expert evidence was adduced by the Plaintiff to dislodge DW2’s evidence. DW2’s evidence remains uncontroverted, and is immensely credible and helpful.
ii.    DW2 confirmed that all the documents produced by the 1st Defendant, and which form part of the lower court record/file produced as Defence exhibit 1, they were all signed by Ruth Wanjiru Muraya.

iii.    Plaintiff’s alleged Sale agreement (P. ex 1), at clause No. 1, it bears a different vendor’s ID number, being ID No. 3625383. No such ID card was ever availed in court. Indeed, the only ID card of Ruth Muraya which was availed in court, both in the lower court record and by PW2 the Land Registrar, it was ID. card No. 0330653. That was the same ID card that even the Plaintiff herein used for his own impugned Transfer. It is not possible, and it is indeed criminal, for a person to have two different ID cards.
iv.    The Plaintiff did not avail any evidence of payment of any purchase price to Ruth Wanjiru Muraya; no cash vouchers signed by her, nor any bank payment slips to her bank account. He instead alleged that he made payment to the Vendor’s son, one Moses Muraya. Why would the purchase price be paid to Moses Muraya yet he was not the vendor, nor the registered owner of the property. And why did the Plaintiff not find it necessary to call this Moses Muraya as a Witness in court to shed light on the matter?
v.    It will be recalled that this is the same Moses Muraya who the 1st Defendant in his and his Witness DW2’s Witness Statements, and oral testimony in court, they testified that he (Moses Muraya) snatched and ran off with the original Title Document during the signing of the 1st Defendant’s Sale agreement, demanding that he must be paid part of the purchase price, for him to release the title document.
vi.    It would appear that this is the same title document the said Moses Muraya used to later “sell” the suit property to the Plaintiff. It does appear more credible that the Plaintiff’s purported Sale Agreements and Transfer documents were in fact signed by the said Moses Muraya, never by Ruth Wanjiru Muraya.
vii.    Ruth Wanjiru Muraya the vendor, participated in and swore an Affidavit in the lower court case, and never once did she indicate that she had sold the suit land to the Plaintiff, or to anyone else except the 1st Defendant.
viii.    The “Consent to Transfer” exhibited by Ruth Muraya in her aforesaid Affidavit, as the one she obtained in respect of the sale and Transfer to the 1st Defendant, is indeed the same one that the Plaintiff now purports to have been issued with, in respect of his own alleged sale and Transfer of the suit property in his favour. Note that that cannot be correct, because that Consent was obtained long before the Plaintiff purportedly purchased the suit land.
ix.    The Plaintiff had registered Transfer of the land to himself on 21/6/2011, while the lower court suit was already pending in court, having been filed on 09/06/2011. Did the Plaintiff rush the Transfer because he knew that the lower court suit had been filed the previous week? That transfer, even were it genuine, which it wasn’t, would be caught up and invalidated by the legal doctrine of lis pendens. (The Transfer was registered and Certificate of Lease issued on the same day – strangely efficient!).
x.    The Plaintiff’s Title was cancelled by the Land Registrar after due Notice to him, following the Decree/Orders of the lower court suit, and after the Plaintiff refused to return the Certificate of Lease to the Registrar for cancellation, and after the lower court ordered the Land Registrar to dispense with the production of the original Certificate of Lease, and after Notice of Cancellation of his Title was duly published in the Kenya Gazette as required under the relevant regulations and administrative processes at the land registry.
Clearly, the Plaintiff’s root of title has too many factual and evidential gaps, as to render it totally inauthentic. And the 1st defendant urges the court to so find.
On The doctrine of Lis Pendens, the 1st defendant argues that Transfer of immoveable property during litigation is subject to the outcome in the pending suit - the Bellamy v Sabine principle . This principle is to the effect that during the pendency of a legal dispute concerning immovable property, any attempt to transfer such property could adversely affect the administration of justice and the ultimate rights of the parties involved, and that any such transfer while the suit was still pending and before any final judgment was rendered, would be amenable to nullification and to the transfer being rendered legally ineffective, and would pass no good title to the transferee, and the transferee could not claim any legitimate right or title over such property.
That is exactly the position that the Plaintiff found himself in. His clandestine transfer of the suit property pendente lite, could not affect the outcome or effect of the Decree in the then pending lower court suit, and nor would it accord him any legitimate right or title over the suit property.
In Naftali Ruthi Kinyua v Patrick Thuita Gachure (2015) eKLR, the Court of Appeal upheld the principle of lis pendens, and held that land disputes affecting title must be determined carefully, and that subsequent dealings cannot defeat pending claims.
The 1st defendant submits that  there was no denial of Natural Justice to the Plaintiff: It is apparent that the Plaintiff was always aware of the suit at the lower court, yet he chose to do nothing about it. He only went and hurriedly registered his transfer of the suit property, while the suit was pending, all in a bid to “beat” the suit. He was no doubt informed of the suit by his collaborator Moses Muraya, who is the one who actually purported to sell him the suit land
The Land Registrar testified that the Plaintiff was duly given Notice of the intended cancellation of his Title, and he was required to surrender back his Certificate of Title to the Registrar, but he declined. The Registrar thereupon published the said Notice in the Kenya Gazette. The Gazette Notice produced in court herein speaks to the said Notice. The Plaintiff ignored it.
It is noteworthy that up to now, the Plaintiff has never moved to challenge the said Gazette Notice, a legal instrument; just as he chose not to challenge the Judgment, Decree and Orders of the lower court. Even in the instant suit, he has not impugned the said Gazette Notice. Notice and Natural Justice is not just about the physical presence of the person seeking to be heard. It is about whether such person had a reasonable opportunity to participate in and to challenge the processes leading to cancellation of his title. He had the opportunity, but he chose not to act on it.
The defendant cites the case of  KRA v Menginya Salim Murgani [2009] eKLR (CA) – the Court of Appeal held that natural justice is context-specific, and that opportunity to participate and be heard, suffices. The Plaintiff herein always had that opportunity. He simply chose not to participate. His rights were hence not violated. And even if they had been, which is denied, his recourse lay in moving the court in the suit in which the Orders he impugns were made, but not in filing a fresh suit.
Non-joinder of Attorney General and non-compliance with requirement for Notice under section 13 A of the Government Proceedings Act:
The Plaintiff herein seeks drastic and far-reaching reliefs against the Chief Land Registrar (2nd Defendant), including nullification of title, cancellation of registration, rectification of the land register, declarations of unlawfulness against the Land Registrar, and injunctive orders against the Registrar. These prayers arise from and directly impugn official statutory acts performed by the Registrar in exercise of public authority, under the land registration system. However, the Attorney General was never enjoined as a party to this suit, contrary to explicit and mandatory constitutional and statutory requirements. This makes the entire suit against the 2nd Defendant incompetent.
Article 156(4)(b) of the Constitution provides in mandatory terms that –
“The Attorney-General shall represent the national government in court or in any other legal proceedings to which the national government is a party.”
The Chief Land Registrar and other Land Registrars are statutory officers established under the Land Registration Act, 2012, performing public functions on behalf of the National Government in relation to land registration, rectification and maintenance of the register. Accordingly, where relief is sought in a suit declaring registry acts unlawful, cancelling titles issued under statutory authority, or rectifying the official land register, the real party affected is the National Government, whose constitutional representative is the Attorney General. Failure to enjoin the Attorney General as a substantive party (not just appearing as defence counsel), renders the suit incompetent. The Government is thus condemned unheard, without being accorded an opportunity to defend the suit. It renders the Government
The Court of Appeal in case of Speaker of the National Assembly v Karume [1992] KLR restated the binding principle that - “Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
It is worth of note that the County Land Registrar did participate at the hearing of this suit, appearing only as a Plaintiff’s Witness (PW 2), after being summoned by the court as a Witness, not as a defending party. She appeared unrepresented by counsel. Her participation as a Witness does not amount to proper representation of the National Government as contemplated under Article 156(4)(b), especially seeing as the court herein is being invited to issue adverse, coercive, and far-reaching Orders against the office of the Chief Land Registrar.
The Plaintiff herein disregarded both constitutional and statutory procedure governing proceedings against Government offices. He prosecuted this suit against the Government without joinder or hearing of the only constitutional and statutory recognised legal representative and advisor of the Government. This suit is hence unsustainable as against the 2nd Defendant, and the prayers sought against the 2nd Defendant are incapable of being granted.
Statutory requirement for Notice under Section 13A Government Proceedings Act: This requirement was not complied with herein, hence the suit as against the 2nd defendant is legally infirm. Section 13A(1) of the Government Proceedings Act provides that –
“No proceedings against the Government shall lie or be instituted until after the expiry of a period of thirty days after a notice in writing in the prescribed form have been served on the Government…”
The wording is mandatory, and preconditions the institution of proceedings against Government. The Plaintiff has not demonstrated compliance with this statutory requirement prior to instituting this suit, which suit seeks coercive relief against a government department or office.
In the case of Andrew Nganga Mukuria v Attorney General [2019] eKLR, the High Court held that failure to comply with section 13A rendered the suit fatally defective. The Court treated statutory notice as a mandatory precondition where proceedings are instituted against Government.
Further, the Court of Appeal in the case of Ngugi v Attorney General [2016] eKIR recognized the continued application of statutory procedural requirements governing suits against Government, but went on to qualify that the requirement for Notice is “directory rather than strictly mandatory”. The appellate court however did not outlaw the said section 13 A of the GPA, and to date the section remains in our statute books and has never been repealed.
Consequently, it is part of our laws, and must be complied with, unless good cause or circumstances be shown to the court in each individual case, as to why the court should excuse non-compliance therewith and deem it as “directory”. Each case ought to be looked at on its own merit.
There has since been divergent positions taken by different superior courts over the import of the said section 13 A of the GPA, with some courts declaring it unconstitutional and a colonial relic, and others affirming it as a mandatory requirement before instituting any valid suit against the Government. These superior court decisions are not binding but only persuasive upon this court. The 1st defendant urges this court to be persuaded that unless and until the said section is repealed from our statute books, it forms part of our laws and imposes a mandatory requirement for Notice, and that consequently, any suit lodged against the Government without such prior Notice is bad in law and null and void ab initio.
Ultimately the 1st defendant submits that the combined effect of non-joinder of the Attorney General herein, and non-issuance of Notice under section 13 A of GPA, is to render this suit procedurally incompetent and unsustainable, as against the 2nd Defendant. The  prayers sought are against the 2nd Defendant herein, to wit, cancellation of Title and rectification of Register, can by their very nature only be granted against or done by the 2nd Defendant, it follows that if there is no competent case against the 2nd Defendant, the case against the 1st Defendant too fails, for being unsustainable.
The 1st defendant urges the court to find that the entire Plaintiff’s case herein has no merit, has not been proved to the required standard or at all, is bad in law, incompetent, an abuse of court process, and is null and void ab initio.
He prays that this entire suit be dismissed, with costs to the 1st Defendant.
The Plaintiff’s claim herein is as contained in his Plaint dated 18th July 2016. The Plaintiff is by law bound to confine his prayers specifically to the prayers sought in the Plaint. He cannot by his final Submissions purport to make different or additional prayers not sought in the Plaint. That is what the Plaintiff has purported to do vide his final Submissions dated 16/03/2026 (see page 7, 2nd last parag. thereof). He purports to make different or additional prayers not sought in the Plaint, to wit, “for setting aside and replacing with a fair judgment….” the Judgment and Decree of the lower court in Nakuru CMCC No. 482 of 2011. That is not tenable in law.
This court would have no jurisdiction to grant any such un-pleaded prayers, since this instant suit is neither an Appeal, nor a Judicial Review, nor even a Declaratory suit against the Judgment, Decree or Orders in the said lower court suit.
Analyisis and Determination
I have considered the evidence on record and rival submissions and do find that in summary the following issues are ripe for determination namely:-
1-Does this court have jurisdiction to entertain this dispute
2-Between the two rival titles which was legally procured
3-What is the effect of non-joinder of the vendor Ruth Wanjiru Shadrack.
4-What is the effect of non –joinder of the Attorney General
5-What is the competence of the suit against the Chief Land Registar.
On Jurisdiction, the defendant argues that the plaintiff is seeking this court to exercise its appellate power and or judicial review powers in a fresh suit without plainly saying so. That the appellant seeks to set aside vary or replace the judgment. According to the defendant this court cannot vary the decision of the Magistrates court unless it is moved appropriately. This court finds that there is an existing judgment on record to the effect that the suit property be registered in the names of the 1st defendant which judgment has not been set aside. There is neither an appeal nor a judicial review against the judgment of the lower court.
I do find that what is before me for determination is neither an appeal nor a judicial review it is a substantive suit for substantive orders. The plaintiff has prayed for  judgment against the defendant for a declaration that the plaintiff is the lawful owner of land parcel number Nakuru Municipality Block 16/468 and further, a temporary injunction restraining the defendants by themselves, their agents and or servants from selling, trespassing, developing dealing and or interfering with the plaintiffs quiet possession of land parcel number Nakuru MunicipalityBlock 16/468 and a perpetual Injunction restraining the defendants by themselves, their agents and or servants from selling, trespassing, developing dealing and or interfering with the plaintiffs quiet possession of land parcel number Nakuru MunicipalityBlock 16/468. Lastly, the plaintiff prays for nullification and or cancellation of the certificate of lease for land parcel number Nakuru Municipality Block 16/468 issued to the 1st defendant by the 2nd defendant herein and rectification of the register by the Land Registrar, Nakuru to restore the plaintiff’s name in the register. In the alternative, the plaintiff prays for general damages which is commensurate the current value of the suit land plus costs and interest of the suit. These prayers do not in any way envisage the setting aside of the decision of the lower court and therefore it is not an appeal camouflaged as a fresh suit. The prayers being sought by the plaintiff are within the ambit of the legal authority of this court. The jurisdiction of this court is well spelt in Section 13 of the Environment and Land Court Act.
The primary source of the jurisdiction of the courts is the Constitution. With respect to matters touching on title to and, and occupation of land, the relevant provisions are in Article 162(2) and 165(5). Article 162 of the Constitution essentially establishes the superior courts in Kenya. It identifies them as the Supreme Court, the Court of Appeal and the High Court and the courts established under Article 162(2). Article 162(2) envisages the establishment of courts to be of equal status with the High Court, to exercise jurisdiction over, among others, occupation of and title to land. The relevant provisions says:
“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to –
(a) …   
(b) the environment and the use and occupation of, and title to, land.”
Article 165 of the Constitution sets out the jurisdiction of the High Court. Article 165(5) is emphatic that that jurisdiction does not cover the matters that have been isolated for the courts envisaged in Article 162(2). Article 165(5) states as follows:
“‘The High Court shall not have jurisdiction in respect of matters-
(a) …
(b) falling within the jurisdiction of the courts contemplated in Article 162(2).”
25. Parliament has complied with Article 162(2)(3) of the Constitution, by passing the Environment and Land Court Act, No. 19 of 2011, to establish the Environment and Land Court, the jurisdiction of which is set out in section 13 of the Act. The court has exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution, relating to environment and land. Section 13 states as follows:
“13. Jurisdiction of the Court
(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to the environment and land.
(2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes –
(a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(b) relating to compulsory acquisition of land;
(c) relating to land administration and management;
(d) relating to public, private, and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
(e) any other dispute relating to environment and land.”
This court finds that it has the prerequisite Jurisdiction to hear this matter as it touches on title to land and use of the same.
The second issue is the effect of non- Joinder of the estate of Ruth Wanjiru Shadrack. It is clear from the pleadings that the suit parcel of land was initially registered in the name of Ruth Wanjiru Shadrack as the 1st registered owner before alleged transfer to the plaintiff. It is on record that the suit property was transferred to the 1st defendant vide a court order.  The court order emanated from Nakuru cmcc no 482 of 2011 between the 1st defendant and Ruth Wanjiru Muraya where the said Ruth Wanjiru Muraya Never testified in court and judgment was entered against her. This court finds that the estate of Ruth Wanjiru Muraya was not a necessary party as there was no order sought against the estate and that no order could be sought against her because she ceased being a registered owner in 2011. The deceaseds representative could only participate as a witness neither the plaintiff nor the defendants were seeking any relief from the estate of Ruth Wanjiru Shadrack.
Order 1 Rule 3 of the Civil Procedure Rules provides that a person may be joined in a suit as a Defendant against whom any right to relief arising out of an act or transaction is alleged to exist and states as follows:-“All persons may be joined as Defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.”
Order 1 Rule 10(2) further provides that a court may, either on application made by a party or without, allow joinder of a party whose presence it considers to be necessary in a suit. The Rule provides as follows: -“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”
The Court of Appeal in discussing the discretionary power of the court to order joinder of a party as set out in Order 1 Rule 10(2) in the case of Civicon Limited v. Kivuwatt Limited and 2 Others [2015] eKLR held as follows:“Again the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.”
The guiding principles in considering whether or not to allow joinder of an intending party were laid out in the case of Joseph Njau Kingori v Robert Maina Chege & 3 Others [2002] eKLR where the court held as follows:-“1.He must be a necessary party.2.He must be a proper party.3.In the case of the defendant there must be a relief flowing from that defendant to the plaintiff.4.The ultimate order or decree cannot be enforced without his presence in the matter.5.His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit.”
Moreover, non joinder of parties is not fatal. I’m persuaded by the  decision of Gikonyo J. in Zephir Holdings Ltd v Mimosa Plantations Ltd, Jeremiah Matagaro And Ezekiel Misango Mutisya (2014) eKLR where, in dicta demonstrative of the fact that non-joinder is not a fatal flaw, he held that:“A proper party is one who is impleaded in the suit and qualifies the thresholds of a plaintiff or defendant under Order 1 rule 1 and 2 respectively, or as a third party or as an interested party and whose presence is necessary or relevant for the determination of the real matter in dispute or to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. And the court has a wide discretion to even order suo moto for a party to be impleaded whose presence may be necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. Accordingly, a suit cannot be defeated for mis-joinder or non-joinder of parties.”
The Court of Appeal in William Kiprono Towett & 1597 Others v Farmland Aviation Ltd & 2 Others (2016) eKLR held that:“…Most critically Order 1 Rule 9 of the Civil Procedure Rules (2010) makes it abundantly clear that misjoinder or non-joinder of parties cannot be a ground to defeat a suit. We reproduce the same hereunder: No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”
This is further supported by Article 159(2)(d) of the Constitution which abhors procedural technicalities at the expense of substantive justice. The said article stipulates that:“In exercising judicial authority, the courts and tribunals shall be guided by the following principles(a)……..(b)……..(c)…….(d)justice shall be administered without undue regard to procedural technicalities.”
The upshot of the above is that non joinder of Ruth Wanjiru Shadrack does not render the suit fatally flawed.
On the 3rd issue as to whether failure to comply with Section 13A of the Government Proceedings Act Cap 40  Laws of Kenya renders the suit fatal, I do not agree with the 1st defendant that failure to make the Attorney General a party and issue a notice as required by section 13A renders the suit fatally defective.
The court of appeal in the case of Ngugi v Attorney General dealt with this issue as follows:-
“The learned Judge of the High Court in striking out the suit went into error. Procedural rules and directory provisions of the law even where their peremptoriness is clear and unambiguous cannot vitiate a cause action and the right to sue. In the instant case, the use of the word “shall” in Section 13A of the Government proceedings Act Cap 40 laws of Kenya does not import “mandatoriness”. It is directory and procedural. The appeal depicts the period prior to the 2010 Constitution. The 2010 Constitution now binds courts by dint of Article 159 (2) (d) in exercising judicial authority to administer justice without undue regard to procedural technicalities.”
This court finds that the chief land registrar an officer of government was sued, served and nothing stopped the Attorney General from representing him in court.
Coming back to the substantive issues, thus between the plaintiff and the defendant, who obtained his title legally. Section 26 (1) of the Land Registration act provides  that  once a proprietor's title is registered, it remains protected unless compelling evidence demonstrates that it was acquired through fraudulent, misrepresented, or corrupt practices involving the proprietor.
Dina Management Limited v County Government of Mombasa (2023)SC Petition no 8(E010) OF 2021) eKLR is a landmark Supreme Court of Kenya ruling that established irregular or illegal land titles are not protected, even for innocent purchasers.  The case involved Dina Management Limited, which acquired a beachfront property in Nyali, Mombasa, only for the County Government to demolish its structures, claiming the land was public space allocated illegally to the first registered owner.
The Key Legal Principles and Holdings are as follows:-
1.    The Court held that the doctrine of bona fide purchaser for value without notice does not apply where the root title is tainted by illegality or irregularity.  A registered title is not absolute proof of ownership if the initial allocation process was unlawful.
2.    Under Article 40(6) of the Constitution, the right to property does not extend to property found to have been unlawfully acquired.  Consequently, the land automatically vested in the County Government as public land.
3.    Buyers must now conduct comprehensive due diligence beyond checking the current register.  This includes verifying the legality of the original allocation, ensuring the existence of required documents like the Part Development Plan (PDP) and letter of allotment, and confirming the land was not reserved for public use.
It is not disputed that the lease in respect of the property was registered on 26th July 2005 in the names of  Ruth Wanjiru Shadrack who appeared before the land registrar and was identified vide her id no 3625383. The certificate of lease was issued to the vendor on the said date. On the 21st June 2011 the land was transferred to the plaintiff and a certificate of lease issue on the same date. Starting with the plaintiff, his title was obtained through a transfer.  12 days before a certificate of lease being issued to the plaintiff, the 1st defendant had already rushed to court to protect his rights as a purchaser In Nakuru CMCC NO 482 of 2011 Babubhai Patel Ilesh Kumar -V-Ruth Wanjiru Muraya.
The transfer instrument appear to have been executed by a person other than Ruth Wanjiru Shadracks because the document examiner Emmanuel Kenga was called to testify as an expert witness and was able to demonstrate that the sale agreement and the transfer instrument were not executed by the late Ruth Wanjiru Shadracks. The plaintiff did not call another document examiner to counter the evidence of the document examiner. The known signatures of Ruth Wanjiru Shadracks did not correspond with the signatures on the sale agreement and the transfer of lease. This court perused the two documents and agrees with the document examiner as the signatures did not match. Further, the plaintiff did not demonstrated that he paid Ruth Wanjiru the purchase price. He stated that he paid Moses W Muraya ksh 700,000. Moses W Muraya was not the owner of the land. It appears the plaintiff colluded with Moses MW Muraya to put the parcel of land out of reach of the 1st defendant when he filed the suit to recover the land and caused it to be registered in the names of the plaintiff. This court further finds that the plaintiff’s title is defeated by the doctrine of  lis pendens. The plaintiff should have strived to be enjoined in the suit rather than attempting to steal a match by being registered as the owner of the land. The plaintiff cannot be assisted by the equitable principle that if the equities are equal, the first in time prevails because his title is tainted by the fact that he obtained the same when the suit was pending going back to the doctrine of lis pendens.
Black’s Law Dictionary 9th edition, defines lis pendens as the jurisdictional, power or control acquired by a court over property while a legal action is pending.
Lis pendens is a common law principle that was enacted into statute by section 52 Indian Transfer of Property Act (ITPA)-now repealed. While addressing the purpose of the principle of lis pendens, Turner L. J, in Bellamy vs Sabine [1857] 1 De J 566 held as follows:-
“It is a doctrine common to the courts both of law and equity, and rests, as I apprehend, upon this jurisdiction, that it would plainly be impossible that any action or suit could be brought to a successful determination, if alienation pendent lite were permitted to prevail. The Plaintiff would be liable in every case to be defeated by the Defendants alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to defeat by the same course of proceedings.”
In the case of Mawji vs US International University & another [1976] KLR 185, Madan, J.A. stated thus:-
“The doctrine of lis pendens under section 52 of TPA is a substantive law of general application. Apart from being in the statute, it is a doctrine equally recognized by common law. It is based on expedience of the court. The doctrine of lis pendens is necessary for final adjudication of the matters before the court and in the general interests of public policy and good effective administration of justice. It therefore overrides, section 23 of the RTA and prohibits a party from giving to others pending the litigation rights to the property in dispute so as to prejudice the other…”
In the same case at page it was observed inter alia that:-
“Every man is presumed to be attentive to what passes in the courts of justice of the State or sovereignty where he resides. Therefore purchase made of a property actually in litigation pendete lite for a valuable consideration and without any express or implied notice in point of fact affects the purchaser in the same manner as if he had notice and will accordingly be bound by the judgment or decree in the suit.”
See  also  the  considered  views  of  Nambuye  J,  (as  she  then  was)  in
Bernadette Wangare Muriu vs National Social Security Fund Board of Trustees
& 2 Others [2012] eKLR.
The necessity of the doctrine of lis pendens in the adjudication of land matters pending before the court cannot be gainsaid, particularly for its expediency, as well as the orderly and efficacious disposal of justice. Having said that, with the repeal of section 52 of the ITPA by the Land Registration Act (LRA) Number 3 of 2013, the question arises as to whether the doctrine remains applicable to the circumstances of the present case. We consider that its applicability must be considered in the light of Section 107 (1) of the LRA which provides the saving and transitional provisions of this Act, and which stipulates,
“Unless the contrary is specifically provided for in this Act, any right, interest, title, power, or obligation acquired, accrued, established, coming into force or exercisable before the commencement of this Act shall continue to be governed by the law applicable to it immediately prior to the commencement of this Act.”
The effect of this provision is to allow for the continued applicability of the rights and interests ensuing from legislation that governed titles of properties established prior to the repeal of such legislation. Given that the concerned property involved land eligible for registration under the Registration of Titles Act (now repealed), having regard to section 107 (1) of the LRA, it is evident the rights flowing from section 52 of the ITPA including those under doctrine of lis pendens would remain applicable to the circumstances of this case.
Furthermore, lis pendens is a common law principle, and in addressing the relevance of common law principles within the Kenyan context, section 3 (1) of the Judicature Act Cap 8 stipulates that,
“The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with-
a.    the Constitution;
b.    subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule;
c.    subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date:
Provided that the said common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.”
Similarly, in the light of this provision, the doctrine of lis pendens would remain applicable to this case.
As to whether the requirements of the principles of lis pendens were met, there is no doubt that the instant case concerns a contested property dispute, where the rights to the suit property are in serious contention.
I have said enough, I conclude that the plaintiff title cannot be protected under article 40 of the constitution and section 26 (1) of the Land Registration Act. 
On whether the 1st defendant obtained good title, I do find that his registration was through a court order that has not been set aside. The court made an order for specific performance of the agreement. I do find that this court has no power to cancel a title issued under a valid decree unless it is demonstrated that the decree was issued fraudulently which has not been demonstrated in this case as it was done in Richard K Bunei and 8 others v Lorien Ranching Company ltd where it was held that a judgment obtained through fraud can be set aside though a separate suit. The plaintiff has not demonstrated that the judgment herein was obtained through fraud. The 1stdefendants title was obtained lawfully. Ultimately, I do find that the 1st defendant title prevails. The suit is ultimately dismissed with costs.