The Plaintiffs in ELC CASE NO 140 OF 2018 filed a Plaint dated 11th April, 2018 which was amended on 1st November, 2019 and subsequently amended on 22nd January, 2024. The Plaintiffs sought the following orders:
a. An order of permanent injunction/mandatory injunction do issue restraining the Defendants by themselves, their agents and/or servants from entering, trespassing, continue demolishing, leasing, occupying, transferring, cultivating, evicting the 1st Plaintiff from claiming ownership and/or in any other way from interfering with 1st Plaintiff’s peaceful possession, occupation and use of parcel of land known as NJORO NGATA BLOCK 2/1892&1893 (KIROBON) and a declaration that the 1st Plaintiff is the legal and bonafide owner of the parcel of land known as NJORO NGATA BLOCK 2/1892 &1893 (KIROBON). (sic)
b. A mandatory order directing the land registrar Nakuru to cancel the title deeds for parcel numbers NJORO NGATA BLOCKS 2/1892 & 1893 (KIROBON) issued to the 6th Defendant and to remove all the entries made in the register for which the subject parcel of land was registered in the 6th defendant’s favour, and to make entries into the register for the subject parcels of land to be registered in the 1st plaintiffs favour and to issue the relevant title deeds for the subject parcels of land being NJORO NGATA BLOCK 2/1892 & 1893 (KIROBON) to the 1st Plaintiff forthwith.
c. An order for specific performance directing the 6th Defendant herein to execute transfer forms for the subject parcels of land NJORO NGATA BLOCK 2/1892 &1893 (KIROBON) in the 1st Plaintiffs favour forthwith and in default thereof the deputy registrar and or the executive officer to execute the said transfer forms in the 1st Plaintiff’s favour.
d. An order directing the 1st Defendant being the administrator of the estate of the late TAPLULE CHEPKEMOI to pay to the 1st Plaintiff a total sum of Kshs 218,960/= being compensation for a portion of the Plaintiff’s parcel of land that was hive off to pave way for a road access, which the deceased received in place of the 1st Plaintiff herein. (sic)
e. Costs and interests of the suit.
f. Any other relief this Honourable court deems fit to grant.
The Plaintiff in ELC CASE NO 200 OF 2018 filed a Plaint dated 10th August, 2011 and sought the following orders:
a. A permanent injunction restraining the defendants by themselves, their servants and or authorized agents from selling, disposing off, alienating, transferring to third parties or depositing building materials, constructing on and or interfering with the applicant’s peaceful and quiet possession and use of the applicant’s 52 plots 1844-1895 on Njoro Ngata block 2/850 (Kirobon A) selling the same to third parties and or interfering with the plaintiff’s peaceful and quiet possession and use of the same.
b. An order of set off between the plaintiff and the defendants concerning money owing and due to each other.
c. An order of specific performance compelling the defendants to transfer land parcel Plot No. 1844-1895 on LR No. Njoro Ngata Block 2/850 (Kirobon A) to the plaintiff forthwith.
d. Costs of the suit and interests.
e. Any other and or further relief as the Honourable Court may deem fit and just to grant.
PLAINTIFF’S CASE (PLAINTIFFS IN ELC 200 OF 2018)
Joseph Odhiambo Oswe, a resident of Shabab Nakuru testified as PW1 that he lives at Shabab Nakuru and that he is a land agent who sells property. He entered into agreement with the defendants on the sale of land they gave him to sell. He has a copy of the title deed dated 16th July, 1998. PW1 testified that Joel Kiprotich was the lead person and he had a Power of Attorney. He testified that he was given a consent of the land control board and he subdivided the land. He paid the defendants their money and he has the personal cheques which he produced as PEX 6 – PEX 38. PW1 further testified that Joel Tonui had a debt with Agricultural Finance Co-operation (herein referred to as AFC.) He paid Ksh 1,700,000/= at AFC and he produced PEX 39. PW1 further testified that he paid a debt for Samuel Tonui and they bought 30 acres for Samuel Tonui which cost Ksh 3,000,050/=.
He paid school fees for Joel Tonui which was Kshs 100,000/=. He informed the court that Joel Tonui took money to buy land for Richard Cheptum and it came to Ksh 1,000,000/=. PW1 testified that the whole exercise took about five years from 2004 and he had paid all the money collected. That Samuel Tonui’s land was reduced by seven acres and it was reduced into plots. PW1 states that he had not cleared selling and there are titles from the seven acres. The road was expanded and the government compulsory acquired 0.009 acres. When the land was acquired, the plots were in possession of the buyers. PW1 testified that he was to be paid Ksh 7,200,000/- on 11th August, 2011.
It was PW1’s testimony that Ms. Taplule Chumo gave those documents necessary for the transfers but the defendants refused to proceed with the transfer of land and registration proceed that would yield titles title
PW1 testified that when compensation came, they took the money and never gave them the same and yet they had sold them the land. PW1 testified further that the total compensation paid for the plots was Ksh950,000 for nine plots. PW1 had paid the defendants their consideration money. When he wrote a demand letter, they continued receiving compensation. PW1 testified that he approached Joel Tonui and they went to the chief with him. PW1 testified that they were given the valuation report.
The titles were still in the name of Taplule Chepkemoi Chumo and those who bought were supposed to be issued wit titles. PW1 produced PEX 43 and 44 and testified that he has a list of the buyers. PW1 testified that he has agreements which he produced as PEX 45(a) 45(b) and 45 (c). PW1 testified that he has a supplementary list of documents dated 3rd April, 2025 and it has several documents which he produced as PEX 46- PEX 52.
PW1 produced a sale agreement dated 13th February, 2007 as PEX 46 for plot number 1895. PW1 produced PEX 47 a sale agreement dated 6th September, 2005. PW1 produced a list of payment indicating that he paid Kshs 2,405,000. PW1 testified that he paid through cheque and he paid to AFC loan.
In a nut shell, the plaintiff states that they agreed that he pays them Ksh 7,246,000/= and he has paid Kshs6,115,000/=. PW1 testified that they have received the money and the balance is Ksh 1,131,000/=. PW1 testified that he has not paid the balance as they agreed to receive compensation. PW1 testified that Ksh 950,000/= was paid to defendants and the balance for him to pay is Kshs180,000/=. PW1 testified that the defendant should sign transfer forms. PW1 prayed for costs.
Upon cross-examination by Mr. Mutai, PW1 stated that Coswe investment company is a business name and he was a registered agent. He stated that he sold the parcel of land to third parties and therefore the plots should not be transferred to him but the people he sold the plots to.
PW1 stated that Joan Chelagat paid Kshs1, 200,000/= for her plot. Joan Chelangat bought land through her company and the agreement was between Him and Joan. Plot No. 1891 was for one Adika but she declined because there was a case. PW1 further stated that he sold all the land to buyers and further that part of the land was compulsorily acquired measuring 0.09 Ha and reduced to 0.07Ha. He was told that the compensation money was paid to the defendants.
Upon cross-examination by M/s. Esang, PW1 stated that Coswe Investment Company is a business name and he is the proprietor. PW1 stated that he was selling land on behalf of the defendants and he received a letter from the defendant. PW1 stated that he received the letter of termination in 2008 after he had sold the land. He stated that the termination was to be as per the agreement and he took Ksh 250,000/= in 2008 after the letter of termination. PW1 stated that he paid him on 2nd September, 2008 and the termination was on 14th April, 2008. PW1 stated that the agreement was not terminated.
PW1 stated that he showed Professor Kitetu the land when it had been subdivided. He further showed him the title and Professor Kitetu paid everything. The Defendants were to provide the transfer forms. PW1 stated that other people were given title. He prays for specific performance. The land belongs to the Professor and the Defendants should ensure that the titles are issued.
Upon re-examination, PW1 testified that the nine portions have title in the names of Richard Cheptum and they should be transferred to the buyers. PW1 testified that the defendants should sign transfer forms.
Scholastica Kosgei testified as PW2. She knows Joseph Oswe as she bought land from him. She has a statement dated 24th October, 2025 which the court adopted as part of her evidence in chief. She is claiming parcel number 1895. She has an agreement which was produced as PEX 46. She testified that it was between him and Jackson Kosgei. PW2 prayed for title. She has been in possession for fifteen years and has pursued Joel Tonui but he has declined.
Upon cross-examination by Mr. Mutai, PW2 stated that the agreement was signed by Jackson Kiplimo Kosgei and her husband paid the money through her. PW2 stated that the land is one quarter of an acre and she has not measured the size. PW2 stated that she has no agreement with Joel.
Upon cross-examination by Mr. Esang, PW2 stated that she has not been issued with the title and they should be issued with the title.
DEFENDANT’S CASE (DEFENDANTS & INTERESTED PARTIES IN ELC 200 OF 2018)
Joel Kiprotich Tonui testified as DW1. He testified that he lives at Londiani and he is a farmer. DW1 testified that he has a witness statement dated 2nd March, 2019 which was adopted by the court as part of his evidence in chief.
He has nine documents which he produced as DEX 1-DEX 9. DW1 He has the green card which he produced as DEX 10. DW1 testified that they had an agreement with Joseph Odhiambo Oswe. They were selling land number Njoro Ngata Block 2/850 and the land had forty acres. DW1 testified that the land was to be subdivided and distributed. DW1 testified that his mother Taplule Chepkemoi Chumo wanted them to share the land and it was to be subdivided into four.
That each person gave out four acres from his share to create plots. He testified that twelve acres out of forty acres was to become plots. He stated that the twelve acres was to be subdivided into quarter acres and this was to make forty-eight plots. DW1 testified that the land was subdivided on 11th November, 2005. He testified that he knows PW2 and that she could not know the parcel number before mutation. DW1 testified that the purchase price was Kshs165,000/= per plot.
DW1 was shown DEX 3 and stated that he was informed by Oswe that they needed the money urgently. DW1 stated that their land had appreciated in value and he informed them of the position. DW 1 stated that they could not sell as agreed and they asked him to stop which he did and he had not sold ten plots. DW1 stated that they called him to show them the plots and there were nine plots. He stated that the nine plots are the ones in dispute which are: Njoro Ngata Block 2/1887, Njoro Ngata Block 2/1888, Njoro Ngata block2/1889, Njoro Ngata block2/1889, Njoro Ngata block2/1890, Njoro Ngata block2/1891, Njoro Ngata block2/1892, Njoro Ngata block2/1893, Njoro Ngata block2/1894 and Njoro Ngata block2/1895.
DW1 testified that if all money is paid they will transfer. DW1 testified that the government never acquired the property compulsorily. He stated that DEX 5 and 6 show title documents and the land was not acquired. DW1 testified that the surveys report does not show compulsory acquisition. He testified that he did not receive any money for compulsory acquisition.
Upon cross-examination by Mr. Gai, counsel for the 1st plaintiff, DW1 stated that he is a farmer and he was an employee of a tea factory. DW1 stated that he reached form four in his secondary education. DW1 stated that they have tried to resolve the dispute as he was very close to Oswe. DW1 stated that he was claiming some money from him and the problem is that Mr. Oswe did not act as agreed. DW1 stated that he did not sell all the land.
DW1 stated that he sold the rest and the total number of plots was forty-eight. DW1 stated that the plots in dispute are 1887 to 1894. He stated that the plots are connected to an existing road. DW1 stated that the plot was number 850 and they were four beneficiaries where each person acquired ten acres. DW1 testified that they contributed three acres each to make twelve acres.
DW1 stated that the twelve acres were subdivided into quarters and they agreed to receive Kshs 7, 200, 460/= and his fees as agent was Khs 630,000/= and he was to sell the plots. He testified that the commission was to come from sales and Ksh 204,000/= was to be paid to the surveyor. DW1 stated that any money owned and above the selling price was his. DW1 stated that any person withdrawing from the agreement was to pay ten percent of the selling price.
DW1 stated that the agreement did not name a time limit and he was not forced to sign the agreement. DW1 stated that there was a process of withdrawal and he is ready to pay the ten percent. DW1 stated that Coswe was selling plots and he did not agree with Coswe. DW1 stated that the plots are fifty-two and the plots are supposed to be forty-eight. DW1 stated that there are people on the ground. DW1 stated that they agreed with Coswe and he has never signed titles. DW1 stated that his mother signed titles and fifty people have titles. DW1 stated that fifty titles were issued and the plots are in the name of his mother. He stated that the disputed seven plots are in the names of Richard Cheptum. DW 1 stated that the plots have not been sold. DW1 stated that parcel 1894 was half sold and he does not know who bought it. DW1 stated that he knows the nine people and Oswe showed him the plot. DW1 stated that Oswe did a good job and Oswe never paid school fees for his son. DW1 stated that Oswe has never paid a loan for him. He stated that Oswe did not know that he had a loan. DW1 stated that his instructions were that Oswe paid his share to AFC.
DW1 stated that he showed Oswe how to pay and he did not tell Oswe to pay fees. DW1 stated that they disagreed with Oswe because of the delayed money and they did not disagree due to the compulsory acquisition. DW1 stated that the plots were not acquired and there is a road that was created on the land. DW1 stated that the road did not touch the land and Taplule was paid for compulsory acquisition on plots number 1887 to 1895.
DW1 stated that the money was being paid in January 2008 and this was an award for compulsory acquisition. DW1 stated that the money was paid because the plot was in her name and at the time of the award, they had not sold the land. DW1 stated that the agreement was in 2004 and they received money from Coswe on 2nd September, 2008. He stated that he received Ksh 250,000/= and he received the last payment on 27th September, 2006 and this was Kshs180,000/=. He stated that the last payment was on 2nd September, 2008 and he did not receive any money.
DW1 stated that the award was made on 4th December, 2008 and the balance was Ksh 1,131,000/=. DW1 stated that they were to receive Ksh 7,246,000/= and the government paid her mother Ksh 950,000/= for the land acquired. DW1 stated that he does not have the letter for Coswe and they did title deeds in 2010. DW1 stated that he was not stopping him from selling the land and he has never given Coswe any money as it was part of the commission.
Upon cross-examination by Mr. Esang, DW1 stated that they did the agreement with Mr. Coswe and he was given permission by Taplule. DW1 stated that Taplule is his mother and they agreed that Coswe Investment Company sells the land. DW1 stated that the agreement did not have time lines and he said that it would not take long. DW1 stated that the land was for subdivision and he was showed the parcels of land. DW1 stated that he could not know when land was sold and which was not sold. DW1 stated that he does not know Professor Kitetu and he has not looked at the documents.
DW1 stated that he does not live on the land and the land had not been sold before. He stated that the plot appreciated in value and that he signed the agreement. DW1 stated that he read the agreement and the agreement was oppressive because the value had gone up. DW1 stated that the agreement is dated 4th October, 2004 and Coswe Investment Company, paid the whole amount on 2nd September, 2008 and the money was being paid depending on the sale of the land.
DW1 stated that Coswe was given the authority to sell the land and those who signed the agreement were given titles. DW1 stated that they gave titles to those who paid and Coswe did not bring his titles. DW1 stated that Coswe was the one paying them the money and he could not know whether the Professor paid all the money. DW1 stated that Mr. Taplule was paid compensation and they were ploughing the land in the year 2011. DW1 stated that they had not terminated the agreement.DW1 stated that they wrote on 4th April, 2008 invalidating the agreement. DW1 stated that they transferred the property to Richard and the road is not going through the land. DW1 stated that he does not know who was to be paid compensation.
Upon cross-examination by Joan Rono, DW1 stated that he was not given a banker’s cheque by Joan. He stated that he did not sign any bankers cheque and he does not know that one had a banker’s cheque. He stated that he knows Coswe and not Joan Rono.
Upon re-examination by Mr. Mutai, DW1 testified that he was shown the cheque for kshs600,000/= and it does not show that Joan was paying the money. He testified that it did not have the parcel number and he was given an agreement by Joan. DW1 stated that the road did not affect the parcel of land. DW1 testified that they surveyed the land and the beacons were not affected.
DW1 stated that the money was paid to Taplule and he did not know why. DW1 stated that the plots were to be forty-eight and they were supposed to be a quarter. DW1 testified that it was in the agreement between him and Coswe. DW1 testified that the land was to be subdivided and the forty-eight plots are for twelve acres. DW1 further testified that the twelve acres were to be subdivided into quarters.
DW1 testified that the fifty-two plots in question cannot be hived from twelve acres. DW1 testified that the agreement was valid as long as the plot had not been sold. DW1 testified that the plaintiff had captured the sale of plot and he has not asked for ten percent damages. DW1 testified that he did not receive any transfer forms.
Richard Kipkurui Cheptum testified as DW 2. He testified that he is a farmer and the court adopted his statement dated 2nd March 2019. DW2 testified that the parcel of land is Njoro Ngata Block 2/1887, Njoro Ngata Block 2/1888, Njoro Ngata block 2/1889, Njoro Ngata block 2/1889, Njoro Ngata block2/1890, Njoro Ngata block2/1891, Njoro Ngata block2/1892 and Njoro Ngata block2/1893. DW2 testified that they are 0.09 Ha each. DW2 testified that the parcels were not bought by Joan Chelangat Rono. DW2 testified that according to the agreement, they received Ksh1,650,000/= and they have the names of those who paid money. DW2 testified that they did not receive any money from Prof Jackson Kitetu and they asked Coswe to give them a list of purchasers.
DW2 was shown PEX 44 and testified that Jackson Kitetu did not come. DW2 testified that Jackson Kitetu claims to have purchased parcels 1892 and 1893. DW2 testified that Taplule could not transfer the land and Scholastica Kosgei came several times. DW2 stated that she was asked for the agreement but refused and it appears she did not pay all the money. DW2 testified that the land has no road acquired by the government. DW2 testified that his land is parcel 1842 and it has beacons made of concrete. DW2 testified that the road did not touch the plots. DW2 testified that telecom cables had been placed and the road affected the telecom cables.
Upon cross-examination by Mr. Gai, DW2 stated that his problem is that he did not receive all the money. DW2 stated that he took back all plots and that the road does not reach the plots. He stated that Taplule received the money because the road had been excised earlier. DW2 stated that their agreement was dated 4th October, 2004 and the plots to be sold by Coswe were forty-eight acres. DW2 stated that Coswe subdivided the land and there are people settled in the forty-eight plots. DW2 stated that some have titles deeds and others do not have titles. DW2 stated that their job was to assist his mother to sign the transfer. DW2 stated that he was not the one selling the plots. DW2 stated he does not know all the buyers and Coswe knows them. DW2 stated that the list has thirty-eight people. DW2 stated that they reached Ksh 1,650,000/=. DW2 stated that they received a total of Ksh 6,115,000/= and he cannot know where the money came from.
Upon cross-examination by Mr. Esang, DW2 stated that he is the last born of Taplule. He stated that he has a letter of termination and there is no agreement of termination. DW2 stated that they took the letter to the office and he does not know whether Coswe signed. DW2 stated that there was no money paid and land parcels 1887 to 1893 were transferred to him. DW2 stated that he did not know the buyer and Coswe showed them the plots not sold. DW2 stated that Coswe showed the land not sold and he received Ksh 760,000/=. DW2 stated that he received less money and Joel was to receive the money. DW2 stated that Taplule did not receive the money and Joel received all the money. DW2 stated that he relied on Coswe and the plots he took were seven.
DW2 stated that when he failed to receive the money, he took the plots. DW2 stated that the fence was his and the stock were his. DW2 stated that he had put up an original fence and he received the title in 2010. DW2 stated that he put the stores in July 2011 and he did not have a transfer. DW2 stated that there was a transfer. He stated that parcels 1894 and 1995 was not transferred because of contradictions. DW2 stated that Coswe was to explain any contradiction and they did not transfer the pro-forma because of the agreement. DW2 stated that Coswe did not bring the transfer and the plots were to be transferred to the buyers. DW2 stated that he could not know whether Coswe was paid or not. DW2 stated that he could not have known the agreement between the agent and buyers. DW2 stated that he took the land because he was not paid any money.
DW2 stated that Mr. Coswe did not pay and Coswe was to pay Kshs7,246,000/=. DW2 stated that Coswe paid Ksh 6,115,000 and the balance was Ksh 1,131,000. DW2 stated that Martin was paid Ksh 950,000/= and this was for land parcels 1842, 1845, 1887, 1888,1889, 1890, 1891, 1812, 1893, 1894 and 1895.
Upon cross-examination by Joan Rono, DW2 stated that the plots cleared by Joan were purchased by Mbuji transports services. DW2 stated that parcel 1894 was purchased by Coswe and Coswe Investment companies owned the other plots. DW2 stated that Mbuji travelers is not in the list and the name of Joan is not in the list. DW2 stated that he brought down the house and fence. DW2 stated that he demolished Joan’s house because she entered his land without permission. DW2 stated that he cannot pay because she broke down his stones. DW2 stated that Coswe was selling the plots and he did not know that Joan bought the plots from Coswe. DW2 stated that he knew that Joel had a loan and everybody had his share. DW2 stated that Joel was to resolve his own problem. DW2 stated that they found Coswe in the land and he does not know that it was Joan who had constructed.
Upon re-examination, DW2 testified that Mbuji bought some land parcels.
Jackson John Kitetu testified as DW3. He testified that he has an undated statement filed on 30th October, 2017 which was adopted by the court as part of his evidence in chief. DW3 testified that he has two lists of documents dated 22nd January, 2023 and 7th April, 2025. He testified that he has a sale agreement which was produced as 6DEX 1.
DW3 also produced the Gazette notice dated 11th January, 2008 as 6DEX2. He also produced searches as 6DEX3 and 6th DEX4. He also produced an award as 6DEX5, a certificate of search as 6DEX 5a) and the amended one as 6th DEX 6, a Kenya Revenue Authority Personal Identification Number as 6th DEX7 and an identity card as 6DEX 8.DW3 went on to produce a map as 6DEX9, statements as 6DEX 10 (a) (b) (c ) (d) and e and the receipts as 6DEX11 a,b,c,d,e,f and g.
DW3 also produced a letter as 6DEX12, a banker’s cheque as 6DEX13, a cheque as 6DEX 14, a letter dated 15th March, 2006 as 6DEX15 and the notice to vacate as 6DEX16. DW3 testified that he entered into an agreement with Coswe and after buying the two plots, he was given possession. DW3 testified that a portion of his plot had been affected. DW3 testified that the size of land excised out of 1892 was 0.0234 Ha. He testified that on parcel 1893, 0.0242 was excised. DW3 testified that he was not paid and he had already bought the land. DW3 stated that he bought the land in 2004 and somebody else received the money. DW3 prayed for the reliefs in the plaint as well as costs.DW3 also prayed for damages for loss of investment.
Upon cross-examination by Mr. Ghai, DW3 stated that he bought plots Njoro/Ngata/Block 2/1892 and 1893. DW3 stated that the search was done by the seller and the parcels were registered in the name of Taplule Chumo whom he does not know. DW3 stated that he did not know anybody apart from Joseph Odhiambo Oswe. He stated that he has come to know of the family and he has seen them in court. DW3 stated that he has never talked to them and he made full payment. DW3 stated that he took possession and he has been ploughing and planting crops. DW3 stated that the registered owner as at now is Richard Cheptum. DW3 stated that he purchased the land between in 2014. He stated that they were registered in the names of Richard Cheptum on 27th July, 2011.
Upon cross-examination by Mr. Mutai, DW3 stated that he has looked at the documents and the registered owner did not sell him the land. DW3 stated that he had entered an agreement with Mr. Oswe who did not having any title deed. DW3 stated that the mutation form was prepared on 11th November, 2003 and his agreement was on 30th October, 2004. DW3 was shown 3rd DEX 1.
DW3 stated that he took possession in 2004 and as soon as he completed, he entered either in 2003 or 2006 and he is not sure. He stated that the measurement of 0.091 ha was for each parcel. DW3 stated that the land has never shrunk in size. DW3 stated that it has not reduced except in government documents. He stated that the gazette notice was issued on 11th January, 2008. DW3 stated that the acreage is 0.091 ha. DW3 stated that the size should have decreased. DW3 stated that the sizes of the plot were going to be affected.
DW3 stated that the land has not been compulsorily acquired. DW3 stated that he wishes to be refunded the money and the money was paid to the Defendants. DW3 stated that he has never claimed the money. DW3 stated that he was made aware through the person who sold. DW3 stated that he only dealt with Mr. Oswe.
Upon re-examination, DW3 testified that he entered into the agreement with Mr. Oswe because he advertised the land for sale and it was Ksh 200,000/- per plot. DW3 testified that each plot was to be sold for Ksh 100,000/=. DW3 stated that when they went to the site, the plot had already been marketed. DW3 testified that the purchaser was to take vacant possession immediately. DW3 testified that the size of the plots indicated on the document to be 0.091.
Joan Chelangat Rono testified as DW4. She testified that she has a statement filed in this case which was adopted by the court as part of her evidence in chief. DW4 produced a sale agreement as 7th DEX 1, a bankers cheque as 7th DEX 2, a Kenya Gazette Notice as 7th DEX 3, 7th DEX 4 a-e and a letter dated 5th January, 2006 as 7th DEX 5.
DW4 testified that she bought the land from Coswe and she looked at the poster for sale and there was a sign post. DW4 testified that she was shown the land and he was selling the land on behalf of Taplule. DW4 testified that she was not shown the authority to sell. DW4 testified that she paid her money to Joel Kiprotich Tonui who is the son of Taplule.
DW4 testified that she was shown the plot. DW4 testified that the plot was given a registration number and she was given N/N/BLOCK/1887,1888,1889,1890, 1891 and 1894. DW4 testified that she bought the land on 10th November, 2004. She testified that she did not enter the land immediately and she entered after payment of the purchase price which was in December 2004. She stated that she constructed, fenced and ploughed. She testified that she is still in occupation.
DW4 testified that the house was removed and the fence destroyed by Joel Tonui thereafter and she does not live in the land. DW4 testified that she was not compensated for the road expansion. She testified that Taplule was paid for the road expansion and the plots are in the name of Richard Cheptum. DW4 testified that this was in 2011 and she prayed that the Plaintiff’s case be dismissed and her claim in the amended plaint be allowed.
Upon cross-examination by Mr. Gai, DW4 stated that she bought six plots and each plot was Ksh 200,000/=. DW4 stated that she did not do any search and the registered owner was Taplule. She stated that the land was sold to her by Taplule and the agreement was between her and Taplule. She stated that Coswe was the agent.
DW4 stated that she has been farming on the land and she stated that she paid a total of Ksh 1,200,000/-She stated that Joel signed the bankers cheque acknowledging receipt of the money. She stated that they were told to wait and they refused to give her the title. DW4 stated that Coswe has no problem.
Upon cross-examination by Mr. Mutai, DW4 stated that she bought six parcels in 2004 and the parcels were nor registered. She stated that the agreement shows the title. DW4 stated that the agreement was done before the land had been registered.DW4 stated that she paid through bankers cheque and the plots are not mentioned in the bankers cheque.
DW4 stated that she paid Ksh 600,000/=. DW4 stated that the acreage has not changed. She stated that the road affects the plots and the road is under construction. She stated that the money was paid to Taplule. DW4 was shown PExhb 41 and stated that she does not know Mbuti Ltd. She stated that she does not know Pad Adinku. She stated that she did not sell land and she was buying. DW4 stated that Taplule did not refuse to sign the transfer. She stated that Coswe was selling the land. DW4 stated that Coswe was to give her the title. She stated that Joel Tonui destroyed her house and fence.
Upon re-examination, DW4 testified that she seeks to be paid and she bought before the road construction. She stated that she purchased though the bankers cheque in issue.
PLAINTIFFS SUBMISSIONS
Counsel for the Plaintiffs filed submissions dated 3rd February, 2026 and 3rd March, 2026. Counsel identified the following issues for determination:
a. Whether the Plaintiffs lawfully purchased and own Njoro Ngata Block 2/1887-1894?
b. Whether the 1st to 5th Defendants unlawfully interfered with the suit properties?
c. Whether the compensation paid by the Government was unlawfully received and withheld?
d. Whether the Plaintiffs are entitled to the orders sought in the further amended plaints dated 22nd January, 2024?
On the first and second issues, the Plaintiffs submitted that they have proved their case on a balance of probability and are deserving of the orders sought. Reliance was placed on the case of Mumbi M’ Nabea vs David M. Wachira [2016] eKLR. On the third issue, counsel submitted that portions of the suit properties were compulsorily acquired for the Nakuru-Eldoret highway expansion and the government released the compensation through the 1st Defendant and the same ought to be remitted to the actual owners being the Plaintiffs. Counsel submitted that the said compensation was wrongly received and withheld. On the fourth issue, counsel asked the court to grant the orders sought and relied on Section 13 of the Environment and Land Court Act and the cases of Giella vs Cassman Brown and Musyoka vs Tiara Properties Limited [2025] KEELC 793 (KLR). Counsel submitted that the Plaintiffs have suffered for so long due to the illegalities perpetrated by the 1st-5th Defendants.
2ND DEFENDANT’S SUBMISSIONS
Counsel for the 2nd Defendant filed submissions dated 19th February, 2026. Counsel submitted that the evidence before the court was clear both orally and using documentation and the 2nd Defendant prayed that the Honourable Court does issue judgment in his favour and in favour of the 6th and 7th Defendants against the 1st to 5th Defendants with costs.
3RD 4TH 5TH AND 6TH DEFENDANT’S SUBMISSIONS
Counsel for the 3rd, 4th, 5th and 6th Defendant’s submissions dated 15th December, 2025 and identified the following issues for determination:
a. Who is the lawful proprietor of all those parcels of land referred to as Njoro/Ngata Block 2/1887, Njoro/Ngata Block 2/1888, Njoro/Ngata Block 2/1889, Njoro Ngata Block 2/1890, Njoro/Ngata Block 2/1891 and Njoro Ngata Block 2/1892, Njoro/Ngata Block 2/1893, Njoro/Ngata Block 2/1894 and Njoro/Ngata Block 2/1895?
b. Who should bear the costs of these proceedings?
On the first issue, counsel submitted that the Plaintiffs and other defendants having no registered interest and having acquired no enforceable proprietary rights in law or equity cannot dislodge the statutory protection accorded to the registered title. Counsel submitted that with regard to the two parcels that remain registered in the name of the Estate of the late Taplule Chepkemoi Chumo, one of which is alleged to have been partially paid for while the other is alleged to have been fully paid for, the purchasers are yet to be properly identified and as such, their remedy shall only lie against the 2nd Defendant who posed as the proprietor of the said parcels. Reliance was placed on Sections 24 (a) and 26 (1) of the Land Registration Act. Counsel also relied on the cases of Arthi Highway Developers Ltd vs West End Butchery Ltd & 6 others [2015] eKLR and Hubert L. Martin & 2 others vs Margaret J. Kamar & 5 others [2016] eKLR.
On the second issue, counsel asked the court to award the costs of the proceedings to the 3rd to 6th Defendants costs of these proceedings. Reliance was placed on the case of Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant vs Ihururu Dairy Farmers Co-operative Society Ltd.
ANALYSIS AND DETERMINATION
The issues for determination are:
a. Whether the Plaintiffs are entitled to the orders sought in the further amended plaint dated 22nd January, 2024?
c. Who should bear the costs of these proceedings?
The 1st Plaintiff averred that he is the legal owner of the parcel of land known as NJORO NGATA BLOCK 2/1892 &1893 being subdivisions of all that parcel of land known as NJORO/NGATA BLOCK 2/850 (KIROBON). It is the Plaintiffs case that the 1st Plaintiff in 2004 bought the suit properties from the 2nd Defendant, COSWE INVESTMENT COMPANY, being the legal authorized agent having been duly authorized to sell by the 3rd Defendant having been so appointed by TAPLULE CHEPKEMOI CHUMO (deceased) through a power of attorney dated 30th September, 2004.
The Plaintiffs aver that upon purchase of the two plots he took possession of the same. It is the 1st Plaintiff’s case that his two plots bordered the main Nakuru-Eldoret highway and that part of his plots was hived off for a road access sometime in 2009. It is the 1st Plaintiff’s case that he was to be compensated but the deceased (TAPLULE CHEPKEMOI) who was the registered owner at that time took advantage of that fact and received compensation in the sum of Ksh 218,960/= that was meant to be paid to the 1st Plaintiff.
The 1st Plaintiff contends that the deceased TAPLULE CHEPKEMOI who was the registered owner of the subject parcel of land at the time of purchase, together with his sons; the 1st, 2nd, 4th and -6th Defendants colluded and refused to sign transfer forms for the subject plots to the 1st Plaintiff. The 1st Plaintiff averred that the subject properties are instead being illegally held by the 6th Defendants. It is the 2nd Defendant’s case that he is a business man dealing in purchasing and sale of land. It is his case that he met the Defendants (In ELC 200 OF 2018) when they declared interest to subdivide their 40 acres piece of land No Njoro/Ngata Block 2/850 amongst themselves and to sell off other portions.
The 2nd Defendant contends that vide an agreement dated 4th October, 2004, the 2nd Defendant and the Defendants (In ELC 200 OF 2018) agreed that the 2nd Defendant would subdivide the land for them, give them their 7 acres and to purchase 12 acres for sale to other people and the agreed purchase price was Ksh 7,246,000/=.
The 2nd Defendant contends that when he had successfully subdivided and sold off his portions and while he still owed the Defendants (In ELC 200 OF 2018) a balance, the Government embarked on a project to enlarge the Lanet-Njoro turn off- Timboroa project from 60 meters to 90 meters. The 2nd Defendant averred that the together with the Defendants (In ELC 200 OF 2018), they were due for the compensation. The 2nd Defendant contends that in pursuit of the compensation, they went with the 2nd Defendant (In ELC 200 OF 2018) to the concerned government and land offices where the 2nd Defendant (In ELC 200 OF 2018) was informed that he should write a letter to the effect that he had already sold off certain plots.
The 2nd Defendant contends that the Defendants (In ELC 200 OF 2018) declined to write such a letter and the 2nd Defendant retained the balance due until the matter was resolved. The 2nd Defendant contends that the Defendants (In ELC 200 OF 2018) went ahead to receive the compensation including for the plots that did not belong to them in the sum of Ksh 950,000/=. The 2nd Defendant contends that the Defendants (In ELC 200 OF 2018) have not transferred the title to him.
The Plaintiffs contend that the Defendants have not allowed them to develop the suit properties claiming that they are not the buyers. The Plaintiff’s claim is based on a sale agreement and a status quo order as pleaded in the further amended plaint dated 22nd January, 2024.
Sections 107, 108 and 109 of the Evidence Act provide as follows:
“107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either said.
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall be on any particular person.”
DW3 during his testimony in court produced a sale agreement which was marked as 6DEX 1. DW3 also produced the Gazette notice dated 11th January, 2008 as 6DEX2. He also produced searches as 6DEX3 and 6th DEX4. He also produced an award as 6DEX5, a certificate of search as 6DEX 5a) and the amended one as 6th DEX 6, a Kenya Revenue Authority Personal Identification Number as 6th DEX7 and an identity card as 6DEX 8.DW3 went on to produce a map as 6DEX9, statements as 6DEX 10 (a) (b) (c ) (d) and e and the receipts as 6DEX11 a,b,c,d,e,f and g. DW3 also produced a letter as 6DEX12, a banker’s cheque as 6DEX13, a cheque as 6DEX 14, a letter dated 15th March, 2006 as 6DEX15 and the notice to vacate as 6DEX16.
The Plaintiffs in their amended plaint contend that the action of the deceased, Taplule Chepkemoi Chumo of transferring the parcel of land bought by the Plaintiff to the 6th Defendant as illegal. The elements of a good root of title were listed by the Court of Appeal in the case of Presbyterian Foundation vs Kibera Siranga Self Help Group Nursery School [2025] eKLR as follows: (a) it must deal with or show the origin of the ownership of the whole legal and equitable interest in the land in question; (b) it must contain a recognizable description of the property; and, (c) it must not contain anything that casts any doubt on the title.
Similarly, in the case of Funzi Development Ltd & Others vs. County Council of Kwale, Mombasa Civil Appeal No. 252 of 2005 [2014] eKLR, the court held that a registered proprietor acquires an absolute and indefeasible title if the allocation was legal, proper and regular and that a court cannot on the basis of indefeasibility of title sanction an illegality or give its seal of approval to an illegal or irregularly obtained title.
Section 24 (a) of the Land Registration Act, 2012 provides:
24. Subject to this Act:
(a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and
Section 25 (1) provides:
(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—
Section 26 (1) provides:
(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
Section 80 of the Land Registration Act gives courts powers to rectify a title in case of a mistake. The section provides as follows:
“(1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.
(2) The register shall not be rectified to affect the title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default”.
Based on the evidence adduced by the parties, the Plaintiffs acquired their tittle from the 2nd Defendant whereas the 2nd Defendant acquired the title the Defendants (In ELC 200 OF 2018)/ The 2nd Defendant contended that it was agreed that the he would subdivide the land for them, give them their 7 acres and to purchase 12 acres for sale to other people and the agreed purchase price was Ksh 7,246,000/=.
The 2nd Defendant has informed this court in his pleadings that when he had successfully subdivided and sold off his portions and while he still owed the Defendants (In ELC 200 OF 2018) a balance. It therefore follows that the transaction between the 2nd Defendant and the Defendants (In ELC 200 OF 2018) was incomplete. However, there is evidence that the defendants were compensated for what they had already sold. This compensation was to be made to the buyers. This means that the Plaintiffs have acquired a good title from the 2nd Defendant. The plaintiffs in ELC 140 OF 2018 having paid for their plots fully to Mr joseph Odhiambo Coswe and the 2nd to the 6th defendants having acknowledged receipt of the consideration albeit not full, the 2nd to the 6th defendants are estopped from claiming the land from the plaintiffs OR denying them their rights. The law of equity does not encourage unjust enrichment. I have considered the orders sought in the Plaints and do make the following orders:-
a. An order of permanent injunction/mandatory injunction do issue restraining the Defendants by themselves, their agents and/or servants from entering, trespassing, continue demolishing, leasing, occupying, transferring, cultivating, evicting the 1st Plaintiff from claiming ownership and/or in any other way from interfering with 1st Plaintiff’s peaceful possession, occupation and use of parcel of land known as NJORO NGATA BLOCK 2/1892&1893 (KIROBON) and a declaration that the 1st Plaintiff is the legal and bonafide owner of the parcel of land known as NJORO NGATA BLOCK 2/1892 &1893 (KIROBON). (sic)
b. A mandatory order directing the land registrar Nakuru to cancel the title deeds for parcel numbers NJORO NGATA BLOCKS 2/1892 & 1893 (KIROBON) issued to the 6th Defendant and to remove all the entries made in the register for which the subject parcel of land was registered in the 6th defendant’s favour, and to make entries into the register for the subject parcels of land to be registered in the 1st plaintiffs favour and to issue the relevant title deeds for the subject parcels of land being NJORO NGATA BLOCK 2/1892 & 1893 (KIROBON) to the 1st Plaintiff forthwith.
c. An order for specific performance directing the 6th Defendant herein to execute transfer forms for the subject parcels of land NJORO NGATA BLOCK 2/1892 &1893 (KIROBON) in the 1st Plaintiffs favour forthwith and in default thereof the deputy registrar and or the executive officer to execute the said transfer forms in the 1st Plaintiff’s favour.
d. I decline to grant an order directing the 1st Defendant being the administrator of the estate of the late TAPLULE CHEPKEMOI to pay to the 1st Plaintiff a total sum of Kshs 218,960/= being compensation for a portion of the Plaintiff’s parcel of land that was hive off to pave way for a road access, which the deceased received in place of the 1st Plaintiff due to the fact that the plaintiffs did not pay the full purchase price.
e. Costs and interests of the suit.
f. Last but not least, the 2nd to 6th defendant having received compensation for land they had already sold in the tune of Ksh 950,0000 they are only entitled to Ksh 180,000 from the 2nd defendant. Each party to bear own costs of the suit because all are authors of their misfortune by dealing with the sale of land in a most careless manner
a. An order of permanent injunction/mandatory injunction do issue restraining the Defendants by themselves, their agents and/or servants from entering, trespassing, continue demolishing, leasing, occupying, transferring, cultivating, evicting the 1st Plaintiff from claiming ownership and/or in any other way from interfering with 1st Plaintiff’s peaceful possession, occupation and use of parcel of land known as NJORO NGATA BLOCK 2/1892&1893 (KIROBON) and a declaration that the 1st Plaintiff is the legal and bonafide owner of the parcel of land known as NJORO NGATA BLOCK 2/1892 &1893 (KIROBON). (sic)
b. A mandatory order directing the land registrar Nakuru to cancel the title deeds for parcel numbers NJORO NGATA BLOCKS 2/1892 & 1893 (KIROBON) issued to the 6th Defendant and to remove all the entries made in the register for which the subject parcel of land was registered in the 6th defendant’s favour, and to make entries into the register for the subject parcels of land to be registered in the 1st plaintiffs favour and to issue the relevant title deeds for the subject parcels of land being NJORO NGATA BLOCK 2/1892 & 1893 (KIROBON) to the 1st Plaintiff forthwith.
c. An order for specific performance directing the 6th Defendant herein to execute transfer forms for the subject parcels of land NJORO NGATA BLOCK 2/1892 &1893 (KIROBON) in the 1st Plaintiffs favour forthwith and in default thereof the deputy registrar and or the executive officer to execute the said transfer forms in the 1st Plaintiff’s favour.
d. An order directing the 1st Defendant being the administrator of the estate of the late TAPLULE CHEPKEMOI to pay to the 1st Plaintiff a total sum of Kshs 218,960/= being compensation for a portion of the Plaintiff’s parcel of land that was hive off to pave way for a road access, which the deceased received in place of the 1st Plaintiff herein. (sic)
e. Costs and interests of the suit.
f. Any other relief this Honourable court deems fit to grant.
The Plaintiff in ELC CASE NO 200 OF 2018 filed a Plaint dated 10th August, 2011 and sought the following orders:
a. A permanent injunction restraining the defendants by themselves, their servants and or authorized agents from selling, disposing off, alienating, transferring to third parties or depositing building materials, constructing on and or interfering with the applicant’s peaceful and quiet possession and use of the applicant’s 52 plots 1844-1895 on Njoro Ngata block 2/850 (Kirobon A) selling the same to third parties and or interfering with the plaintiff’s peaceful and quiet possession and use of the same.
b. An order of set off between the plaintiff and the defendants concerning money owing and due to each other.
c. An order of specific performance compelling the defendants to transfer land parcel Plot No. 1844-1895 on LR No. Njoro Ngata Block 2/850 (Kirobon A) to the plaintiff forthwith.
d. Costs of the suit and interests.
e. Any other and or further relief as the Honourable Court may deem fit and just to grant.
PLAINTIFF’S CASE (PLAINTIFFS IN ELC 200 OF 2018)
Joseph Odhiambo Oswe, a resident of Shabab Nakuru testified as PW1 that he lives at Shabab Nakuru and that he is a land agent who sells property. He entered into agreement with the defendants on the sale of land they gave him to sell. He has a copy of the title deed dated 16th July, 1998. PW1 testified that Joel Kiprotich was the lead person and he had a Power of Attorney. He testified that he was given a consent of the land control board and he subdivided the land. He paid the defendants their money and he has the personal cheques which he produced as PEX 6 – PEX 38. PW1 further testified that Joel Tonui had a debt with Agricultural Finance Co-operation (herein referred to as AFC.) He paid Ksh 1,700,000/= at AFC and he produced PEX 39. PW1 further testified that he paid a debt for Samuel Tonui and they bought 30 acres for Samuel Tonui which cost Ksh 3,000,050/=.
He paid school fees for Joel Tonui which was Kshs 100,000/=. He informed the court that Joel Tonui took money to buy land for Richard Cheptum and it came to Ksh 1,000,000/=. PW1 testified that the whole exercise took about five years from 2004 and he had paid all the money collected. That Samuel Tonui’s land was reduced by seven acres and it was reduced into plots. PW1 states that he had not cleared selling and there are titles from the seven acres. The road was expanded and the government compulsory acquired 0.009 acres. When the land was acquired, the plots were in possession of the buyers. PW1 testified that he was to be paid Ksh 7,200,000/- on 11th August, 2011.
It was PW1’s testimony that Ms. Taplule Chumo gave those documents necessary for the transfers but the defendants refused to proceed with the transfer of land and registration proceed that would yield titles title
PW1 testified that when compensation came, they took the money and never gave them the same and yet they had sold them the land. PW1 testified further that the total compensation paid for the plots was Ksh950,000 for nine plots. PW1 had paid the defendants their consideration money. When he wrote a demand letter, they continued receiving compensation. PW1 testified that he approached Joel Tonui and they went to the chief with him. PW1 testified that they were given the valuation report.
The titles were still in the name of Taplule Chepkemoi Chumo and those who bought were supposed to be issued wit titles. PW1 produced PEX 43 and 44 and testified that he has a list of the buyers. PW1 testified that he has agreements which he produced as PEX 45(a) 45(b) and 45 (c). PW1 testified that he has a supplementary list of documents dated 3rd April, 2025 and it has several documents which he produced as PEX 46- PEX 52.
PW1 produced a sale agreement dated 13th February, 2007 as PEX 46 for plot number 1895. PW1 produced PEX 47 a sale agreement dated 6th September, 2005. PW1 produced a list of payment indicating that he paid Kshs 2,405,000. PW1 testified that he paid through cheque and he paid to AFC loan.
In a nut shell, the plaintiff states that they agreed that he pays them Ksh 7,246,000/= and he has paid Kshs6,115,000/=. PW1 testified that they have received the money and the balance is Ksh 1,131,000/=. PW1 testified that he has not paid the balance as they agreed to receive compensation. PW1 testified that Ksh 950,000/= was paid to defendants and the balance for him to pay is Kshs180,000/=. PW1 testified that the defendant should sign transfer forms. PW1 prayed for costs.
Upon cross-examination by Mr. Mutai, PW1 stated that Coswe investment company is a business name and he was a registered agent. He stated that he sold the parcel of land to third parties and therefore the plots should not be transferred to him but the people he sold the plots to.
PW1 stated that Joan Chelagat paid Kshs1, 200,000/= for her plot. Joan Chelangat bought land through her company and the agreement was between Him and Joan. Plot No. 1891 was for one Adika but she declined because there was a case. PW1 further stated that he sold all the land to buyers and further that part of the land was compulsorily acquired measuring 0.09 Ha and reduced to 0.07Ha. He was told that the compensation money was paid to the defendants.
Upon cross-examination by M/s. Esang, PW1 stated that Coswe Investment Company is a business name and he is the proprietor. PW1 stated that he was selling land on behalf of the defendants and he received a letter from the defendant. PW1 stated that he received the letter of termination in 2008 after he had sold the land. He stated that the termination was to be as per the agreement and he took Ksh 250,000/= in 2008 after the letter of termination. PW1 stated that he paid him on 2nd September, 2008 and the termination was on 14th April, 2008. PW1 stated that the agreement was not terminated.
PW1 stated that he showed Professor Kitetu the land when it had been subdivided. He further showed him the title and Professor Kitetu paid everything. The Defendants were to provide the transfer forms. PW1 stated that other people were given title. He prays for specific performance. The land belongs to the Professor and the Defendants should ensure that the titles are issued.
Upon re-examination, PW1 testified that the nine portions have title in the names of Richard Cheptum and they should be transferred to the buyers. PW1 testified that the defendants should sign transfer forms.
Scholastica Kosgei testified as PW2. She knows Joseph Oswe as she bought land from him. She has a statement dated 24th October, 2025 which the court adopted as part of her evidence in chief. She is claiming parcel number 1895. She has an agreement which was produced as PEX 46. She testified that it was between him and Jackson Kosgei. PW2 prayed for title. She has been in possession for fifteen years and has pursued Joel Tonui but he has declined.
Upon cross-examination by Mr. Mutai, PW2 stated that the agreement was signed by Jackson Kiplimo Kosgei and her husband paid the money through her. PW2 stated that the land is one quarter of an acre and she has not measured the size. PW2 stated that she has no agreement with Joel.
Upon cross-examination by Mr. Esang, PW2 stated that she has not been issued with the title and they should be issued with the title.
DEFENDANT’S CASE (DEFENDANTS & INTERESTED PARTIES IN ELC 200 OF 2018)
Joel Kiprotich Tonui testified as DW1. He testified that he lives at Londiani and he is a farmer. DW1 testified that he has a witness statement dated 2nd March, 2019 which was adopted by the court as part of his evidence in chief.
He has nine documents which he produced as DEX 1-DEX 9. DW1 He has the green card which he produced as DEX 10. DW1 testified that they had an agreement with Joseph Odhiambo Oswe. They were selling land number Njoro Ngata Block 2/850 and the land had forty acres. DW1 testified that the land was to be subdivided and distributed. DW1 testified that his mother Taplule Chepkemoi Chumo wanted them to share the land and it was to be subdivided into four.
That each person gave out four acres from his share to create plots. He testified that twelve acres out of forty acres was to become plots. He stated that the twelve acres was to be subdivided into quarter acres and this was to make forty-eight plots. DW1 testified that the land was subdivided on 11th November, 2005. He testified that he knows PW2 and that she could not know the parcel number before mutation. DW1 testified that the purchase price was Kshs165,000/= per plot.
DW1 was shown DEX 3 and stated that he was informed by Oswe that they needed the money urgently. DW1 stated that their land had appreciated in value and he informed them of the position. DW 1 stated that they could not sell as agreed and they asked him to stop which he did and he had not sold ten plots. DW1 stated that they called him to show them the plots and there were nine plots. He stated that the nine plots are the ones in dispute which are: Njoro Ngata Block 2/1887, Njoro Ngata Block 2/1888, Njoro Ngata block2/1889, Njoro Ngata block2/1889, Njoro Ngata block2/1890, Njoro Ngata block2/1891, Njoro Ngata block2/1892, Njoro Ngata block2/1893, Njoro Ngata block2/1894 and Njoro Ngata block2/1895.
DW1 testified that if all money is paid they will transfer. DW1 testified that the government never acquired the property compulsorily. He stated that DEX 5 and 6 show title documents and the land was not acquired. DW1 testified that the surveys report does not show compulsory acquisition. He testified that he did not receive any money for compulsory acquisition.
Upon cross-examination by Mr. Gai, counsel for the 1st plaintiff, DW1 stated that he is a farmer and he was an employee of a tea factory. DW1 stated that he reached form four in his secondary education. DW1 stated that they have tried to resolve the dispute as he was very close to Oswe. DW1 stated that he was claiming some money from him and the problem is that Mr. Oswe did not act as agreed. DW1 stated that he did not sell all the land.
DW1 stated that he sold the rest and the total number of plots was forty-eight. DW1 stated that the plots in dispute are 1887 to 1894. He stated that the plots are connected to an existing road. DW1 stated that the plot was number 850 and they were four beneficiaries where each person acquired ten acres. DW1 testified that they contributed three acres each to make twelve acres.
DW1 stated that the twelve acres were subdivided into quarters and they agreed to receive Kshs 7, 200, 460/= and his fees as agent was Khs 630,000/= and he was to sell the plots. He testified that the commission was to come from sales and Ksh 204,000/= was to be paid to the surveyor. DW1 stated that any money owned and above the selling price was his. DW1 stated that any person withdrawing from the agreement was to pay ten percent of the selling price.
DW1 stated that the agreement did not name a time limit and he was not forced to sign the agreement. DW1 stated that there was a process of withdrawal and he is ready to pay the ten percent. DW1 stated that Coswe was selling plots and he did not agree with Coswe. DW1 stated that the plots are fifty-two and the plots are supposed to be forty-eight. DW1 stated that there are people on the ground. DW1 stated that they agreed with Coswe and he has never signed titles. DW1 stated that his mother signed titles and fifty people have titles. DW1 stated that fifty titles were issued and the plots are in the name of his mother. He stated that the disputed seven plots are in the names of Richard Cheptum. DW 1 stated that the plots have not been sold. DW1 stated that parcel 1894 was half sold and he does not know who bought it. DW1 stated that he knows the nine people and Oswe showed him the plot. DW1 stated that Oswe did a good job and Oswe never paid school fees for his son. DW1 stated that Oswe has never paid a loan for him. He stated that Oswe did not know that he had a loan. DW1 stated that his instructions were that Oswe paid his share to AFC.
DW1 stated that he showed Oswe how to pay and he did not tell Oswe to pay fees. DW1 stated that they disagreed with Oswe because of the delayed money and they did not disagree due to the compulsory acquisition. DW1 stated that the plots were not acquired and there is a road that was created on the land. DW1 stated that the road did not touch the land and Taplule was paid for compulsory acquisition on plots number 1887 to 1895.
DW1 stated that the money was being paid in January 2008 and this was an award for compulsory acquisition. DW1 stated that the money was paid because the plot was in her name and at the time of the award, they had not sold the land. DW1 stated that the agreement was in 2004 and they received money from Coswe on 2nd September, 2008. He stated that he received Ksh 250,000/= and he received the last payment on 27th September, 2006 and this was Kshs180,000/=. He stated that the last payment was on 2nd September, 2008 and he did not receive any money.
DW1 stated that the award was made on 4th December, 2008 and the balance was Ksh 1,131,000/=. DW1 stated that they were to receive Ksh 7,246,000/= and the government paid her mother Ksh 950,000/= for the land acquired. DW1 stated that he does not have the letter for Coswe and they did title deeds in 2010. DW1 stated that he was not stopping him from selling the land and he has never given Coswe any money as it was part of the commission.
Upon cross-examination by Mr. Esang, DW1 stated that they did the agreement with Mr. Coswe and he was given permission by Taplule. DW1 stated that Taplule is his mother and they agreed that Coswe Investment Company sells the land. DW1 stated that the agreement did not have time lines and he said that it would not take long. DW1 stated that the land was for subdivision and he was showed the parcels of land. DW1 stated that he could not know when land was sold and which was not sold. DW1 stated that he does not know Professor Kitetu and he has not looked at the documents.
DW1 stated that he does not live on the land and the land had not been sold before. He stated that the plot appreciated in value and that he signed the agreement. DW1 stated that he read the agreement and the agreement was oppressive because the value had gone up. DW1 stated that the agreement is dated 4th October, 2004 and Coswe Investment Company, paid the whole amount on 2nd September, 2008 and the money was being paid depending on the sale of the land.
DW1 stated that Coswe was given the authority to sell the land and those who signed the agreement were given titles. DW1 stated that they gave titles to those who paid and Coswe did not bring his titles. DW1 stated that Coswe was the one paying them the money and he could not know whether the Professor paid all the money. DW1 stated that Mr. Taplule was paid compensation and they were ploughing the land in the year 2011. DW1 stated that they had not terminated the agreement.DW1 stated that they wrote on 4th April, 2008 invalidating the agreement. DW1 stated that they transferred the property to Richard and the road is not going through the land. DW1 stated that he does not know who was to be paid compensation.
Upon cross-examination by Joan Rono, DW1 stated that he was not given a banker’s cheque by Joan. He stated that he did not sign any bankers cheque and he does not know that one had a banker’s cheque. He stated that he knows Coswe and not Joan Rono.
Upon re-examination by Mr. Mutai, DW1 testified that he was shown the cheque for kshs600,000/= and it does not show that Joan was paying the money. He testified that it did not have the parcel number and he was given an agreement by Joan. DW1 stated that the road did not affect the parcel of land. DW1 testified that they surveyed the land and the beacons were not affected.
DW1 stated that the money was paid to Taplule and he did not know why. DW1 stated that the plots were to be forty-eight and they were supposed to be a quarter. DW1 testified that it was in the agreement between him and Coswe. DW1 testified that the land was to be subdivided and the forty-eight plots are for twelve acres. DW1 further testified that the twelve acres were to be subdivided into quarters.
DW1 testified that the fifty-two plots in question cannot be hived from twelve acres. DW1 testified that the agreement was valid as long as the plot had not been sold. DW1 testified that the plaintiff had captured the sale of plot and he has not asked for ten percent damages. DW1 testified that he did not receive any transfer forms.
Richard Kipkurui Cheptum testified as DW 2. He testified that he is a farmer and the court adopted his statement dated 2nd March 2019. DW2 testified that the parcel of land is Njoro Ngata Block 2/1887, Njoro Ngata Block 2/1888, Njoro Ngata block 2/1889, Njoro Ngata block 2/1889, Njoro Ngata block2/1890, Njoro Ngata block2/1891, Njoro Ngata block2/1892 and Njoro Ngata block2/1893. DW2 testified that they are 0.09 Ha each. DW2 testified that the parcels were not bought by Joan Chelangat Rono. DW2 testified that according to the agreement, they received Ksh1,650,000/= and they have the names of those who paid money. DW2 testified that they did not receive any money from Prof Jackson Kitetu and they asked Coswe to give them a list of purchasers.
DW2 was shown PEX 44 and testified that Jackson Kitetu did not come. DW2 testified that Jackson Kitetu claims to have purchased parcels 1892 and 1893. DW2 testified that Taplule could not transfer the land and Scholastica Kosgei came several times. DW2 stated that she was asked for the agreement but refused and it appears she did not pay all the money. DW2 testified that the land has no road acquired by the government. DW2 testified that his land is parcel 1842 and it has beacons made of concrete. DW2 testified that the road did not touch the plots. DW2 testified that telecom cables had been placed and the road affected the telecom cables.
Upon cross-examination by Mr. Gai, DW2 stated that his problem is that he did not receive all the money. DW2 stated that he took back all plots and that the road does not reach the plots. He stated that Taplule received the money because the road had been excised earlier. DW2 stated that their agreement was dated 4th October, 2004 and the plots to be sold by Coswe were forty-eight acres. DW2 stated that Coswe subdivided the land and there are people settled in the forty-eight plots. DW2 stated that some have titles deeds and others do not have titles. DW2 stated that their job was to assist his mother to sign the transfer. DW2 stated that he was not the one selling the plots. DW2 stated he does not know all the buyers and Coswe knows them. DW2 stated that the list has thirty-eight people. DW2 stated that they reached Ksh 1,650,000/=. DW2 stated that they received a total of Ksh 6,115,000/= and he cannot know where the money came from.
Upon cross-examination by Mr. Esang, DW2 stated that he is the last born of Taplule. He stated that he has a letter of termination and there is no agreement of termination. DW2 stated that they took the letter to the office and he does not know whether Coswe signed. DW2 stated that there was no money paid and land parcels 1887 to 1893 were transferred to him. DW2 stated that he did not know the buyer and Coswe showed them the plots not sold. DW2 stated that Coswe showed the land not sold and he received Ksh 760,000/=. DW2 stated that he received less money and Joel was to receive the money. DW2 stated that Taplule did not receive the money and Joel received all the money. DW2 stated that he relied on Coswe and the plots he took were seven.
DW2 stated that when he failed to receive the money, he took the plots. DW2 stated that the fence was his and the stock were his. DW2 stated that he had put up an original fence and he received the title in 2010. DW2 stated that he put the stores in July 2011 and he did not have a transfer. DW2 stated that there was a transfer. He stated that parcels 1894 and 1995 was not transferred because of contradictions. DW2 stated that Coswe was to explain any contradiction and they did not transfer the pro-forma because of the agreement. DW2 stated that Coswe did not bring the transfer and the plots were to be transferred to the buyers. DW2 stated that he could not know whether Coswe was paid or not. DW2 stated that he could not have known the agreement between the agent and buyers. DW2 stated that he took the land because he was not paid any money.
DW2 stated that Mr. Coswe did not pay and Coswe was to pay Kshs7,246,000/=. DW2 stated that Coswe paid Ksh 6,115,000 and the balance was Ksh 1,131,000. DW2 stated that Martin was paid Ksh 950,000/= and this was for land parcels 1842, 1845, 1887, 1888,1889, 1890, 1891, 1812, 1893, 1894 and 1895.
Upon cross-examination by Joan Rono, DW2 stated that the plots cleared by Joan were purchased by Mbuji transports services. DW2 stated that parcel 1894 was purchased by Coswe and Coswe Investment companies owned the other plots. DW2 stated that Mbuji travelers is not in the list and the name of Joan is not in the list. DW2 stated that he brought down the house and fence. DW2 stated that he demolished Joan’s house because she entered his land without permission. DW2 stated that he cannot pay because she broke down his stones. DW2 stated that Coswe was selling the plots and he did not know that Joan bought the plots from Coswe. DW2 stated that he knew that Joel had a loan and everybody had his share. DW2 stated that Joel was to resolve his own problem. DW2 stated that they found Coswe in the land and he does not know that it was Joan who had constructed.
Upon re-examination, DW2 testified that Mbuji bought some land parcels.
Jackson John Kitetu testified as DW3. He testified that he has an undated statement filed on 30th October, 2017 which was adopted by the court as part of his evidence in chief. DW3 testified that he has two lists of documents dated 22nd January, 2023 and 7th April, 2025. He testified that he has a sale agreement which was produced as 6DEX 1.
DW3 also produced the Gazette notice dated 11th January, 2008 as 6DEX2. He also produced searches as 6DEX3 and 6th DEX4. He also produced an award as 6DEX5, a certificate of search as 6DEX 5a) and the amended one as 6th DEX 6, a Kenya Revenue Authority Personal Identification Number as 6th DEX7 and an identity card as 6DEX 8.DW3 went on to produce a map as 6DEX9, statements as 6DEX 10 (a) (b) (c ) (d) and e and the receipts as 6DEX11 a,b,c,d,e,f and g.
DW3 also produced a letter as 6DEX12, a banker’s cheque as 6DEX13, a cheque as 6DEX 14, a letter dated 15th March, 2006 as 6DEX15 and the notice to vacate as 6DEX16. DW3 testified that he entered into an agreement with Coswe and after buying the two plots, he was given possession. DW3 testified that a portion of his plot had been affected. DW3 testified that the size of land excised out of 1892 was 0.0234 Ha. He testified that on parcel 1893, 0.0242 was excised. DW3 testified that he was not paid and he had already bought the land. DW3 stated that he bought the land in 2004 and somebody else received the money. DW3 prayed for the reliefs in the plaint as well as costs.DW3 also prayed for damages for loss of investment.
Upon cross-examination by Mr. Ghai, DW3 stated that he bought plots Njoro/Ngata/Block 2/1892 and 1893. DW3 stated that the search was done by the seller and the parcels were registered in the name of Taplule Chumo whom he does not know. DW3 stated that he did not know anybody apart from Joseph Odhiambo Oswe. He stated that he has come to know of the family and he has seen them in court. DW3 stated that he has never talked to them and he made full payment. DW3 stated that he took possession and he has been ploughing and planting crops. DW3 stated that the registered owner as at now is Richard Cheptum. DW3 stated that he purchased the land between in 2014. He stated that they were registered in the names of Richard Cheptum on 27th July, 2011.
Upon cross-examination by Mr. Mutai, DW3 stated that he has looked at the documents and the registered owner did not sell him the land. DW3 stated that he had entered an agreement with Mr. Oswe who did not having any title deed. DW3 stated that the mutation form was prepared on 11th November, 2003 and his agreement was on 30th October, 2004. DW3 was shown 3rd DEX 1.
DW3 stated that he took possession in 2004 and as soon as he completed, he entered either in 2003 or 2006 and he is not sure. He stated that the measurement of 0.091 ha was for each parcel. DW3 stated that the land has never shrunk in size. DW3 stated that it has not reduced except in government documents. He stated that the gazette notice was issued on 11th January, 2008. DW3 stated that the acreage is 0.091 ha. DW3 stated that the size should have decreased. DW3 stated that the sizes of the plot were going to be affected.
DW3 stated that the land has not been compulsorily acquired. DW3 stated that he wishes to be refunded the money and the money was paid to the Defendants. DW3 stated that he has never claimed the money. DW3 stated that he was made aware through the person who sold. DW3 stated that he only dealt with Mr. Oswe.
Upon re-examination, DW3 testified that he entered into the agreement with Mr. Oswe because he advertised the land for sale and it was Ksh 200,000/- per plot. DW3 testified that each plot was to be sold for Ksh 100,000/=. DW3 stated that when they went to the site, the plot had already been marketed. DW3 testified that the purchaser was to take vacant possession immediately. DW3 testified that the size of the plots indicated on the document to be 0.091.
Joan Chelangat Rono testified as DW4. She testified that she has a statement filed in this case which was adopted by the court as part of her evidence in chief. DW4 produced a sale agreement as 7th DEX 1, a bankers cheque as 7th DEX 2, a Kenya Gazette Notice as 7th DEX 3, 7th DEX 4 a-e and a letter dated 5th January, 2006 as 7th DEX 5.
DW4 testified that she bought the land from Coswe and she looked at the poster for sale and there was a sign post. DW4 testified that she was shown the land and he was selling the land on behalf of Taplule. DW4 testified that she was not shown the authority to sell. DW4 testified that she paid her money to Joel Kiprotich Tonui who is the son of Taplule.
DW4 testified that she was shown the plot. DW4 testified that the plot was given a registration number and she was given N/N/BLOCK/1887,1888,1889,1890, 1891 and 1894. DW4 testified that she bought the land on 10th November, 2004. She testified that she did not enter the land immediately and she entered after payment of the purchase price which was in December 2004. She stated that she constructed, fenced and ploughed. She testified that she is still in occupation.
DW4 testified that the house was removed and the fence destroyed by Joel Tonui thereafter and she does not live in the land. DW4 testified that she was not compensated for the road expansion. She testified that Taplule was paid for the road expansion and the plots are in the name of Richard Cheptum. DW4 testified that this was in 2011 and she prayed that the Plaintiff’s case be dismissed and her claim in the amended plaint be allowed.
Upon cross-examination by Mr. Gai, DW4 stated that she bought six plots and each plot was Ksh 200,000/=. DW4 stated that she did not do any search and the registered owner was Taplule. She stated that the land was sold to her by Taplule and the agreement was between her and Taplule. She stated that Coswe was the agent.
DW4 stated that she has been farming on the land and she stated that she paid a total of Ksh 1,200,000/-She stated that Joel signed the bankers cheque acknowledging receipt of the money. She stated that they were told to wait and they refused to give her the title. DW4 stated that Coswe has no problem.
Upon cross-examination by Mr. Mutai, DW4 stated that she bought six parcels in 2004 and the parcels were nor registered. She stated that the agreement shows the title. DW4 stated that the agreement was done before the land had been registered.DW4 stated that she paid through bankers cheque and the plots are not mentioned in the bankers cheque.
DW4 stated that she paid Ksh 600,000/=. DW4 stated that the acreage has not changed. She stated that the road affects the plots and the road is under construction. She stated that the money was paid to Taplule. DW4 was shown PExhb 41 and stated that she does not know Mbuti Ltd. She stated that she does not know Pad Adinku. She stated that she did not sell land and she was buying. DW4 stated that Taplule did not refuse to sign the transfer. She stated that Coswe was selling the land. DW4 stated that Coswe was to give her the title. She stated that Joel Tonui destroyed her house and fence.
Upon re-examination, DW4 testified that she seeks to be paid and she bought before the road construction. She stated that she purchased though the bankers cheque in issue.
PLAINTIFFS SUBMISSIONS
Counsel for the Plaintiffs filed submissions dated 3rd February, 2026 and 3rd March, 2026. Counsel identified the following issues for determination:
a. Whether the Plaintiffs lawfully purchased and own Njoro Ngata Block 2/1887-1894?
b. Whether the 1st to 5th Defendants unlawfully interfered with the suit properties?
c. Whether the compensation paid by the Government was unlawfully received and withheld?
d. Whether the Plaintiffs are entitled to the orders sought in the further amended plaints dated 22nd January, 2024?
On the first and second issues, the Plaintiffs submitted that they have proved their case on a balance of probability and are deserving of the orders sought. Reliance was placed on the case of Mumbi M’ Nabea vs David M. Wachira [2016] eKLR. On the third issue, counsel submitted that portions of the suit properties were compulsorily acquired for the Nakuru-Eldoret highway expansion and the government released the compensation through the 1st Defendant and the same ought to be remitted to the actual owners being the Plaintiffs. Counsel submitted that the said compensation was wrongly received and withheld. On the fourth issue, counsel asked the court to grant the orders sought and relied on Section 13 of the Environment and Land Court Act and the cases of Giella vs Cassman Brown and Musyoka vs Tiara Properties Limited [2025] KEELC 793 (KLR). Counsel submitted that the Plaintiffs have suffered for so long due to the illegalities perpetrated by the 1st-5th Defendants.
2ND DEFENDANT’S SUBMISSIONS
Counsel for the 2nd Defendant filed submissions dated 19th February, 2026. Counsel submitted that the evidence before the court was clear both orally and using documentation and the 2nd Defendant prayed that the Honourable Court does issue judgment in his favour and in favour of the 6th and 7th Defendants against the 1st to 5th Defendants with costs.
3RD 4TH 5TH AND 6TH DEFENDANT’S SUBMISSIONS
Counsel for the 3rd, 4th, 5th and 6th Defendant’s submissions dated 15th December, 2025 and identified the following issues for determination:
a. Who is the lawful proprietor of all those parcels of land referred to as Njoro/Ngata Block 2/1887, Njoro/Ngata Block 2/1888, Njoro/Ngata Block 2/1889, Njoro Ngata Block 2/1890, Njoro/Ngata Block 2/1891 and Njoro Ngata Block 2/1892, Njoro/Ngata Block 2/1893, Njoro/Ngata Block 2/1894 and Njoro/Ngata Block 2/1895?
b. Who should bear the costs of these proceedings?
On the first issue, counsel submitted that the Plaintiffs and other defendants having no registered interest and having acquired no enforceable proprietary rights in law or equity cannot dislodge the statutory protection accorded to the registered title. Counsel submitted that with regard to the two parcels that remain registered in the name of the Estate of the late Taplule Chepkemoi Chumo, one of which is alleged to have been partially paid for while the other is alleged to have been fully paid for, the purchasers are yet to be properly identified and as such, their remedy shall only lie against the 2nd Defendant who posed as the proprietor of the said parcels. Reliance was placed on Sections 24 (a) and 26 (1) of the Land Registration Act. Counsel also relied on the cases of Arthi Highway Developers Ltd vs West End Butchery Ltd & 6 others [2015] eKLR and Hubert L. Martin & 2 others vs Margaret J. Kamar & 5 others [2016] eKLR.
On the second issue, counsel asked the court to award the costs of the proceedings to the 3rd to 6th Defendants costs of these proceedings. Reliance was placed on the case of Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant vs Ihururu Dairy Farmers Co-operative Society Ltd.
ANALYSIS AND DETERMINATION
The issues for determination are:
a. Whether the Plaintiffs are entitled to the orders sought in the further amended plaint dated 22nd January, 2024?
c. Who should bear the costs of these proceedings?
The 1st Plaintiff averred that he is the legal owner of the parcel of land known as NJORO NGATA BLOCK 2/1892 &1893 being subdivisions of all that parcel of land known as NJORO/NGATA BLOCK 2/850 (KIROBON). It is the Plaintiffs case that the 1st Plaintiff in 2004 bought the suit properties from the 2nd Defendant, COSWE INVESTMENT COMPANY, being the legal authorized agent having been duly authorized to sell by the 3rd Defendant having been so appointed by TAPLULE CHEPKEMOI CHUMO (deceased) through a power of attorney dated 30th September, 2004.
The Plaintiffs aver that upon purchase of the two plots he took possession of the same. It is the 1st Plaintiff’s case that his two plots bordered the main Nakuru-Eldoret highway and that part of his plots was hived off for a road access sometime in 2009. It is the 1st Plaintiff’s case that he was to be compensated but the deceased (TAPLULE CHEPKEMOI) who was the registered owner at that time took advantage of that fact and received compensation in the sum of Ksh 218,960/= that was meant to be paid to the 1st Plaintiff.
The 1st Plaintiff contends that the deceased TAPLULE CHEPKEMOI who was the registered owner of the subject parcel of land at the time of purchase, together with his sons; the 1st, 2nd, 4th and -6th Defendants colluded and refused to sign transfer forms for the subject plots to the 1st Plaintiff. The 1st Plaintiff averred that the subject properties are instead being illegally held by the 6th Defendants. It is the 2nd Defendant’s case that he is a business man dealing in purchasing and sale of land. It is his case that he met the Defendants (In ELC 200 OF 2018) when they declared interest to subdivide their 40 acres piece of land No Njoro/Ngata Block 2/850 amongst themselves and to sell off other portions.
The 2nd Defendant contends that vide an agreement dated 4th October, 2004, the 2nd Defendant and the Defendants (In ELC 200 OF 2018) agreed that the 2nd Defendant would subdivide the land for them, give them their 7 acres and to purchase 12 acres for sale to other people and the agreed purchase price was Ksh 7,246,000/=.
The 2nd Defendant contends that when he had successfully subdivided and sold off his portions and while he still owed the Defendants (In ELC 200 OF 2018) a balance, the Government embarked on a project to enlarge the Lanet-Njoro turn off- Timboroa project from 60 meters to 90 meters. The 2nd Defendant averred that the together with the Defendants (In ELC 200 OF 2018), they were due for the compensation. The 2nd Defendant contends that in pursuit of the compensation, they went with the 2nd Defendant (In ELC 200 OF 2018) to the concerned government and land offices where the 2nd Defendant (In ELC 200 OF 2018) was informed that he should write a letter to the effect that he had already sold off certain plots.
The 2nd Defendant contends that the Defendants (In ELC 200 OF 2018) declined to write such a letter and the 2nd Defendant retained the balance due until the matter was resolved. The 2nd Defendant contends that the Defendants (In ELC 200 OF 2018) went ahead to receive the compensation including for the plots that did not belong to them in the sum of Ksh 950,000/=. The 2nd Defendant contends that the Defendants (In ELC 200 OF 2018) have not transferred the title to him.
The Plaintiffs contend that the Defendants have not allowed them to develop the suit properties claiming that they are not the buyers. The Plaintiff’s claim is based on a sale agreement and a status quo order as pleaded in the further amended plaint dated 22nd January, 2024.
Sections 107, 108 and 109 of the Evidence Act provide as follows:
“107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either said.
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall be on any particular person.”
DW3 during his testimony in court produced a sale agreement which was marked as 6DEX 1. DW3 also produced the Gazette notice dated 11th January, 2008 as 6DEX2. He also produced searches as 6DEX3 and 6th DEX4. He also produced an award as 6DEX5, a certificate of search as 6DEX 5a) and the amended one as 6th DEX 6, a Kenya Revenue Authority Personal Identification Number as 6th DEX7 and an identity card as 6DEX 8.DW3 went on to produce a map as 6DEX9, statements as 6DEX 10 (a) (b) (c ) (d) and e and the receipts as 6DEX11 a,b,c,d,e,f and g. DW3 also produced a letter as 6DEX12, a banker’s cheque as 6DEX13, a cheque as 6DEX 14, a letter dated 15th March, 2006 as 6DEX15 and the notice to vacate as 6DEX16.
The Plaintiffs in their amended plaint contend that the action of the deceased, Taplule Chepkemoi Chumo of transferring the parcel of land bought by the Plaintiff to the 6th Defendant as illegal. The elements of a good root of title were listed by the Court of Appeal in the case of Presbyterian Foundation vs Kibera Siranga Self Help Group Nursery School [2025] eKLR as follows: (a) it must deal with or show the origin of the ownership of the whole legal and equitable interest in the land in question; (b) it must contain a recognizable description of the property; and, (c) it must not contain anything that casts any doubt on the title.
Similarly, in the case of Funzi Development Ltd & Others vs. County Council of Kwale, Mombasa Civil Appeal No. 252 of 2005 [2014] eKLR, the court held that a registered proprietor acquires an absolute and indefeasible title if the allocation was legal, proper and regular and that a court cannot on the basis of indefeasibility of title sanction an illegality or give its seal of approval to an illegal or irregularly obtained title.
Section 24 (a) of the Land Registration Act, 2012 provides:
24. Subject to this Act:
(a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and
Section 25 (1) provides:
(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—
Section 26 (1) provides:
(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
Section 80 of the Land Registration Act gives courts powers to rectify a title in case of a mistake. The section provides as follows:
“(1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.
(2) The register shall not be rectified to affect the title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default”.
Based on the evidence adduced by the parties, the Plaintiffs acquired their tittle from the 2nd Defendant whereas the 2nd Defendant acquired the title the Defendants (In ELC 200 OF 2018)/ The 2nd Defendant contended that it was agreed that the he would subdivide the land for them, give them their 7 acres and to purchase 12 acres for sale to other people and the agreed purchase price was Ksh 7,246,000/=.
The 2nd Defendant has informed this court in his pleadings that when he had successfully subdivided and sold off his portions and while he still owed the Defendants (In ELC 200 OF 2018) a balance. It therefore follows that the transaction between the 2nd Defendant and the Defendants (In ELC 200 OF 2018) was incomplete. However, there is evidence that the defendants were compensated for what they had already sold. This compensation was to be made to the buyers. This means that the Plaintiffs have acquired a good title from the 2nd Defendant. The plaintiffs in ELC 140 OF 2018 having paid for their plots fully to Mr joseph Odhiambo Coswe and the 2nd to the 6th defendants having acknowledged receipt of the consideration albeit not full, the 2nd to the 6th defendants are estopped from claiming the land from the plaintiffs OR denying them their rights. The law of equity does not encourage unjust enrichment. I have considered the orders sought in the Plaints and do make the following orders:-
a. An order of permanent injunction/mandatory injunction do issue restraining the Defendants by themselves, their agents and/or servants from entering, trespassing, continue demolishing, leasing, occupying, transferring, cultivating, evicting the 1st Plaintiff from claiming ownership and/or in any other way from interfering with 1st Plaintiff’s peaceful possession, occupation and use of parcel of land known as NJORO NGATA BLOCK 2/1892&1893 (KIROBON) and a declaration that the 1st Plaintiff is the legal and bonafide owner of the parcel of land known as NJORO NGATA BLOCK 2/1892 &1893 (KIROBON). (sic)
b. A mandatory order directing the land registrar Nakuru to cancel the title deeds for parcel numbers NJORO NGATA BLOCKS 2/1892 & 1893 (KIROBON) issued to the 6th Defendant and to remove all the entries made in the register for which the subject parcel of land was registered in the 6th defendant’s favour, and to make entries into the register for the subject parcels of land to be registered in the 1st plaintiffs favour and to issue the relevant title deeds for the subject parcels of land being NJORO NGATA BLOCK 2/1892 & 1893 (KIROBON) to the 1st Plaintiff forthwith.
c. An order for specific performance directing the 6th Defendant herein to execute transfer forms for the subject parcels of land NJORO NGATA BLOCK 2/1892 &1893 (KIROBON) in the 1st Plaintiffs favour forthwith and in default thereof the deputy registrar and or the executive officer to execute the said transfer forms in the 1st Plaintiff’s favour.
d. I decline to grant an order directing the 1st Defendant being the administrator of the estate of the late TAPLULE CHEPKEMOI to pay to the 1st Plaintiff a total sum of Kshs 218,960/= being compensation for a portion of the Plaintiff’s parcel of land that was hive off to pave way for a road access, which the deceased received in place of the 1st Plaintiff due to the fact that the plaintiffs did not pay the full purchase price.
e. Costs and interests of the suit.
f. Last but not least, the 2nd to 6th defendant having received compensation for land they had already sold in the tune of Ksh 950,0000 they are only entitled to Ksh 180,000 from the 2nd defendant. Each party to bear own costs of the suit because all are authors of their misfortune by dealing with the sale of land in a most careless manner