MESHACK NYAMBERI & 60 OTHERS VS SERAH KATUMBI MULWA AND BONIFACE MUSYOKI AND 2 Others

Introduction

1.    By way of a plaint dated 25th January 2016, and further amended on 6th January 2021, the plaintiffs sought against the defendants the following orders:
a)    A declaration that the plaintiffs are the legal proprietors as purchasers for value of the plot number Mavoko Town Block 3/1968.
b)    An order directing the 1st defendant and the administrators of the estate of the late Ruth Munyiva Musyoki to execute transfer documents to the plaintiffs or their nominees, failure of which the court do direct the Deputy Registrar of this Honorable Court to execute the transfer documents.
c)    An order of permanent injunction does issue restraining the 1st, 2nd and 3rd defendants from any interference of peaceful occupation and enjoyment of the property by the Plaintiffs.
d)    An order of annulment, voidance and/or cancellation of the title issued in the name of the 6th defendant.
e)    Costs and interests thereon of this suit.
f)    Any other relief the Honorable Court may deem fit to grant.
2.    The plaintiffs averred that between 1997 and 2003, they variously purchased their respective plots of parcel No. Mavoko Town Block 3/1968 (herein after referred to as the suit property) from the 4th defendant who had earlier on purchased the suit property from Serah Katumbi Mulwa and Ruth Munyiva Musyoki (hereinafter referred to as Serah and Ruth respectively). They stated that they have been in peaceful occupation of their respective portions which they have extensively developed as they waited for their ownership documents to be processed.
3.    It was their position that on 20th July 2013, the 1st, 2nd 3rd and 5th defendants issued them with a verbal notice to vacate the suit property on the basis that they had title to the same. That on 20th August 2013, the 1st to 4th defendants through their advocates Mwania Mbithi & Company Advocates issued a vacation notice to the plaintiffs alleging that the plaintiffs were trespassers on their land. That in the said notice, the defendants were asked either to vacate the suit property or purchase it for the second time. That the plaintiffs responded vide a letter by Letangule & Company Advocates dated 4th September 2013 stating that being purchasers of the suit property, they will not vacate.
4.     They further pleaded that in 2015, the 5th defendant sold 40 acres of land to the 6th defendant and that because the plaintiffs were in occupation, the 6th defendant was unable to take possession. That the 6th defendant proceeded to have the suit property charged so as to obtain a loan facility from the 7th defendant. That on 27th June 2017, the plaintiffs were issued with eviction notices. That the 1st, 2nd and 3rd defendants have been using goons to issue demolition threats to the plaintiffs. That the defendants have frustrated the plaintiffs’ efforts to obtain title as they have been unwilling to transfer the suit property to the 4th defendant.
5.    They argued that as the suit property was sold many years ago to the 4th defendant, and therefore that the other defendants obtained title thereto, fraudulently. They stated that the transfer to the 5th defendant was done fraudulently as it happened when one of the proprietors of the suit property had passed on and no succession proceedings regarding her estate  had been done. That the 6th defendant sued the 5th defendant and that the two subsequently recorded a consent granting the 6th defendant vacant possession.
6.    The plaint was opposed. The 1st, 2nd and 3rd defendants filed amended statement of defence dated 13th May 2014. They denied the plaintiffs’ claim and stated that the suit property belonged to Serah and Ruth and that the 2nd and 3rd defendants are legal representatives of the estate of Ruth. They denied allegations that the 4th defendant purchased the suit property from Serah and Ruth terming the agreements relied upon by the 4th defendant as forgeries. They maintained that the 4th defendant had no legal interest in the suit property that could be passed on to the plaintiffs and that the plaintiffs were negligent and unreasonable in dealing with the fraudulent 4th defendant.
7.    They further stated that the plaintiffs’ claim and the 4th defendant’s claim were statute barred and null and void for want of consent from the Land Control Board. That the 4th defendant only purchased 20 acres and not 40 acres as alleged. That there was no privity of contract between the plaintiffs and the 1st to 3rd defendants. That the 1st to 3rd defendants transferred the suit property to the 5th defendant through a succession process. That as the 5th defendant is the lawful owner of the suit property, he is at liberty to deal with the same.
8.    The 1st to 3rd defendants conceded that on diverse dates as stated in the amended plaint, the plaintiffs entered the suit property, where they subdivided and put up structures including dwelling houses. They however termed the plaintiffs’ entry and occupation of the suit property as trespass and averred that the same was done in collusion with the 4th defendant insisting that their entry was without the land owners’ consent and knowledge. They maintained that the plaintiffs were liable to be evicted and their structures demolished.
9.    They maintained that they lawfully sold the suit property to the 5th defendant and transferred it to him, hence the 5th defendant is entitled to exclusive ownership of the same.
10.    The 1st to 3rd defendants counterclaimed the following orders;
a)    Plot No. Mavoko Town Block 3/1968 was at all material times prior to transfer to the 5th defendant  the exclusive legal property of the 1st, 2nd and 3rd defendants and the 4th defendant holds no valid or enforceable purchaser’s interest in Plot No. Mavoko Town Block 3/1968 and accordingly could not convey or transfer any title or interest thereto to the plaintiffs who have no colour of right to title, ownership, possession and occupation of any part of Plot No. Mavoko Town Block 3/1968 and are trespassers thereto.
b)    An order that good and valid title passed to the 5th defendant as absolute proprietor and that all the plaintiffs be forthwith forcibly evicted from the 5th defendant’s property (i.e) Plot No. Mavoko Town Block 3/1968 or any other title or plot number that may be derived therefrom and all the plaintiffs’ structures including dwelling houses thereon be demolished at their own costs.
c)    An order directing the Officer Commanding Station (O.C.S) K.B.C Police Station to oversee compliance with order No. 2 above and do put 1st, 2nd, and 3rd 5th defendants into peaceable possession of Plot No. Mavoko Town Block 3/1968 or any successive title or titles that may be derived therefrom.
d)    A permanent injunction do issue restraining all the plaintiffs and any other person claiming under or through them from entering, re-entering, remaining upon or keeping any structures or dwelling houses upon Plot No. Mavoko Town Block 3/1968 or any other title derived therefrom or undertaking any other activities whatsoever thereon and the costs of this suit and counterclaim be awarded to the 1st, 2nd, and 3rd defendants.
11.    The 4th defendant filed defence dated 26th June 2014, admitting the plaintiff’s claim. It stated that it purchased the suit property from Serah and Ruth, subdivided it and sold it to the plaintiffs. It denied instructing the firm of Mwania Mbithi Advocates to issue eviction notices to the plaintiffs.
12.    It further stated that the 1st to 3rd defendants having already sold the suit property to the 4th defendant, were not justified in issuing eviction notices to the plaintiffs and could not sell the suit property the second time. That its efforts to have the 1st to 3rd defendants transfer the suit property to the plaintiffs were being frustrated by the former and therefore no blame could be laid on the 4th defendant.  It urged the court to grant orders sought by the plaintiffs.
13.    The 5th defendant filed a statement of defence and counterclaim dated 18th August 2014, where he stated that he lawfully purchased Land Title Number Mavoko Town Block 3/1968 from the 1st, 2nd and 3rd defendants for valuable consideration, having conducted due diligence including searches at the Machakos Land Registry which confirmed the land to be free from encumbrances.
14.    He stated that he was duly registered as the absolute proprietor of the suit property on 20th January 2014 and issued with a title deed on 5th February 2014. He contended that at the time of purchase, he was not made aware of the occupation by the plaintiffs or pendency of this suit, and further averred that if the plaintiffs paid any money to the 4th defendant, then the same was obtained by false pretenses, and their recourse lies against the said 4th defendant as there was no privity of contract between them and the 5th defendant.
15.    He maintained that the plaintiffs had trespassed on part of the suit property and stated that being the registered owner, he was entitled to exclusive possession as he was suffering loss and damage due to the plaintiffs’ occupation.
16.    In his counterclaim, the 5th defendant prayed that the plaintiffs’ suit be dismissed with costs and judgment entered in his favor for the following orders:
a.    A declaration that Land Title Number Mavoko Town Block 3/1968 is the property of the 5th defendant;
b.    An order that the plaintiffs be evicted from Land Title No. Mavoko Town Block 3/1968 or any other title that may be derived therefrom;
c.    A permanent injunction do issue restraining the plaintiffs, or any other persons claiming through or under them from re-entering, re-occupying, and/or re-constructing any structures upon Land Number Mavoko Town Block 3/1968;
d.    An order directing the Officer Commanding Station, KBC Police Station, to enforce compliance with the said orders (2) and (3);
e.    Costs of the suit and counterclaim be paid by the plaintiffs and the 4th defendant.
17.    The 6th defendant also filed a statement of defence and counterclaim dated 14th March 2022, in response to the further amended plaint. He stated that he lawfully purchased 13 acres from the 5th defendant and obtained Title Number Mavoko Town Block 3/36365 from the 5th defendant, who was then the registered proprietor of Mavoko Town Block 3/1968. That he purchased the land after conducting due diligence including official searches and verification of ownership.
18.    Further that upon payment of the full purchase price, parcel No. Mavoko Town Block 3/36365 was transferred to him and a title deed issued on 7th January 2015, following subdivision of the original parcel into Mavoko Town Block 3/36364 and 3/36365. He contended that the plaintiffs were strangers to the transaction, had no proprietary interest in the suit property, and were merely trespassers. That the 5th defendant neglected to grant him vacant possession prompting him to file suit vide Machakos ELC No. 311 of 2017 – Kimson Holdings Ltd v. Geoffrey Musyoka Musembi (formerly Nairobi ELC Case No. 55 of 2016) wherein the decree thereof granted him permanent peaceful and quiet possession of parcel No. Mavoko Town Block 3/36365.
19.    He maintained that he was a bona fide purchaser for value without notice and that he ought to be protected. That as there is no privity of contract between the plaintiffs and the 1st to 3rd defendants, their recourse was against the 4th defendant. That as the purchased land stated in the agreement between the 4th defendant and Serah and Ruth is referred to as unsurveyed plot No. 478 Lukenya, it did not refer to parcel No. Mavoko Town Block 3/1968.
20.    In his Counterclaim, the 6th defendant averred that the plaintiffs have unlawfully denied him access and use of his property, subjecting him to loss and damage. He sought judgment against the plaintiffs jointly and severally for the following orders:
a)    A declaration that the 6th defendant is the bona fide purchaser for value without notice and the lawfully registered proprietor of Title No. Mavoko Town Block 3/36365;
b)    The Honourable court be pleased to compel the plaintiffs to give the 6th defendant exclusive, peaceful and quiet enjoyment of parcel No Mavoko Town Block 3/36365 and a permanent injunction be issued to restrain the plaintiffs, their servants, or agents, jointly and/or severally or any other person or body whatsoever from interfering, alienating, erecting structures or remaining on Title No. MAVOKO TOWN BLOCK 3/36365.
c)    General damages for loss of use of the premises;
d)    Costs of the suit plus interest on (c) and (d) at court’s rates from the date of the decree in MACHAKOS ELC 311 of 2017.
e)    Any other relief this Honorable court may deem just and expedient to the ends of justice.
21.    On 21st November 2022 the plaintiffs’ suit as against the 7th defendant was by consent struck out.
22.    Upon compliance by parties herein with provisions of Order 11 of the Civil Procedure Rules, the suit was heard by way of viva voce evidence.

Plaintiffs’ evidence.
23.    PW1 was Gabriel Njogu Nthiwa, the 14th Plaintiff. He adopted his witness statement dated 18th October 2013 as his evidence in chief and produced documents attached to his list of documents dated 30th June 2021 together with a further list of documents dated 22nd June 2022. PW1 testified that in 1998 and 2002 he purchased a plot of land from the 4th Defendant, Mbukoni Holdings Limited comprised in a parcel of unsurveyed land owned by Lukenya Ranching and Cooperative Society Limited (Lukenya) being plot No. 478, which on survey and registration became parcel No. Mavoko Town Block 3/1968. That he purchased plot Nos. 258 and 259 on 8th December 1998 at a total consideration of Kshs. 14,000/-.
24.    He also informed court that the land sold to him had been purchased by the 4th defendant from Serah and Ruth. That he was issued with share certificate. That he had been in peaceful occupation of his parcel until 2013 when the 1st, 2nd, 3rd, and 5th defendants began issuing him with verbal threats asking him to vacate the suit property. That the 1st to 3rd advocates wrote to them asking that they vacate the suit property or purchase it afresh.
25.    Further that during the pendency of this suit, they learnt that the suit property had been subdivided and that the 5th defendant had sold it to the 6th defendant. That the 5th defendant failed to disclose the existence of this suit in Machakos ELC Case No. 311 of 2017 where he had been sued. That they sought to be joined to the aforesaid suit in vain. That following a consent in the other suit, the 6th defendant was allocated title.
26.    He further testified that upon obtaining registration, the 6th defendant charged the title in his name and obtained a loan of Kshs. 20, 000, 000/= from Equity Bank. That the 5th defendant also sold a portion measuring 1.5 acres to Rocks Upendo Limited and that however, when the latter sued the 54th plaintiff vide Machakos ELC Case No. 12 of 2018 for vacant possession, that suit was dismissed. That between 22nd December and 30th December 2020, the 6th defendant stormed the suit property in the company of goons and police officers and with bulldozers, began demolishing the plaintiffs’ homes.
27.    He stated that upon payment, he was issued with ownership certificates, was shown the beacons in December 1998, and took possession immediately. That he fenced the property in 1999 and later put up structures in 2013, which were occupied by tenants until December 2020, when the said houses were demolished by agents of the 6th defendant, who was accompanied by police officers executing a court order from Milimani law courts. That the plaintiffs thereafter sought legal redress and obtained an injunction order from this court.
28.    He further stated that he was shown the 4th defendant’s sale agreement indicating its purchase of the mother parcel from Serah and Ruth and that he believed the 4th defendant to be the lawful proprietor.
29.    He produced sale agreements dated 18th October 1997, 6th September 1996 and 10th July 1997; various share certificates, photographs of structures on the suit property in 2020 and currently; demand letter; reply to demand letter; consent order; court order dated 13th May 2020; ruling dated 25th February 2019; court order dated 10th October 2014; court order dated 5th January 2021; consent order dated 18th June 2021; a letter by the plaintiffs’ advocate dated 3rd December 2020, receipts demonstrating payments made; copy of Occurance Book from Joska Police Station; various beacon certificates; Daily Nation newspaper advertisement dated 30th December 1998 and a report compiled by Esther on her journey to see Serah in company of Mr. Wambua, a director of the 4th defendant.
30.    On cross-examination, PW1 maintained that he purchased the land directly from the 4th defendant at their offices at Kurani House, without engaging an advocate. He conceded that there was no formal sale agreement between himself and the 4th defendant but explained that the ownership certificate served as evidence of payment and purchase.
31.    That he was made aware of an advertisement in the Daily Nation of 30th December 1998, showing higher plot prices, but stated that he had purchased his parcel earlier. He reiterated that he fenced and occupied the property from 1999 and reported the demolition to the police, though no immediate action was taken pending the court process.
32.    He confirmed that he did not conduct an independent search prior to purchase, relying instead on the 4th defendant’s assurances and documentation showing that the vendor had already purchased the land. That he accompanied the 4th defendant’s director, Mr. Wambua, to meet the original seller, Serah, in Machakos on 26th August 2013, where she confirmed full payment by the 4th defendant and attributed the delay in title transfer to her sons’ refusal to release the title documents.
33.    On further cross-examination, PW1 asserted that the subsequent transfer of title to the 5th defendant was illegal and fraudulent, as the 4th defendant had already purchased the land. He further indicated that the 4th defendant had purchased about 5 acres from the same vendors, but the plaintiffs’ concern related only to the 40 acres encompassing their respective plots.
34.    In re-examination, counsel for the plaintiffs, PW1 reiterated that Mbukoni Holdings Limited (the 4th defendant) had never disputed selling the land to him and that no demand or revocation had been made against his ownership. He emphasized that the absence of a formal sale agreement did not negate the transaction, as he was issued with ownership certificates upon full payment. He added that attempts to place a caution were declined by the Lands Registry, pending a court injunction.
35.     He further stated that both Ruth and Serah the original registered owners, are now deceased, and that the transfer to Geoffrey Musyoka and subsequent subdivision into Mavoko Town Block 3/36364 and 3/36365 was done fraudulently. The 6th defendant’s later purchase and charge to the 7th defendant were, according to him, consequences of the fraudulent chain of transactions.
36.    PW2 was Esther Joyce Munga, the 30th plaintiff. She adopted her witness statement dated 30th June 2021 as her evidence in chief and produced the documents filed in the list of documents. Her evidence was that she purchased three plots of land measuring 50 feet by 100 feet each from the 4th defendant, between 1999 and 2002, after learning of the sale through a newspaper advertisement. That the cost of each plot was Kshs. 12,000/-, and she paid a total of Kshs. 36,000/-, in instalments, receiving share certificates and a beacon certificate upon completion of payment. She reiterated the evidence of PW1
37.    She stated that she personally visited the offices of the 4th defendant, met Mr. and Mrs. Thomas Wambua (the directors), and selected her plots from a map shown to her. She was informed that title deeds could not be issued immediately as succession in respect of the mother title was still ongoing, but was shown a sale agreement between the vendors Ruth and Serah and the purchaser, the 4th Defendant. That she occupied the land in 2002 and put up a semi-permanent structure, later developing a permanent house. That in 2013, she was informed by neighbors that evictions were imminent.
38.    That upon inquiry, the 4th defendant assured her that her ownership was valid. That she later visited Serah, in the company of other purchasers and Serah confirmed that there was no outstanding debt between her and the 4th defendant. She testified that the eviction threats intensified and in 2020, her house and others were demolished by the 6th defendant, Kimson Holdings Limited, prompting reports to Joska Police Station.
39.    On cross-examination, PW2 maintained that she had completed paying for the land by 2002 and had been in occupation since 2003. She stated that although she was not issued with a sale agreement, she possessed certificates and receipts evidencing payment, and the price variation among plots depended on their location. She stated that she had seen the sale agreement between the 1st and 4th defendants and that upon visiting Serah in 2013, Serah confirmed full payment and attributed the harassment to her sons who wished to resell the land.
40.    PW2 further testified that the 4th defendant had shown her the agreement and receipts evidencing its payments, and that she had visited the site several times, giving her no reason to doubt the 4th defendant’s ownership. In re-examination, she reiterated that Ruth and Serah, both now deceased, were the original allottees and vendors to Mbukoni Holdings, and that she had continuously occupied the land since 2003.
41.    PW3 was Charles Wanjau Maina, the 45th plaintiff. He adopted his witness statement dated 30th June 2021 as his evidence in chief and produced the documents contained in the plaintiffs’ bundle. He testified that he purchased six plots of land on Plot No. 478, referred to as Plot No. 3, from the 4th defendant, Mbukoni Holdings Limited, in 1997. That he made payments by instalments and was issued with certificates upon completion in 2000. That he entered the land immediately and has occupied it continuously to date.
42.    On cross-examination, PW3 stated that he purchased six plots from Mbukoni Holdings between 1997 and 2000, completed payments, and took possession of the land where he built his house and has lived since 1998. He confirmed having certificates and receipts for the purchases and that although there was no written agreement, he was shown the sale agreement between the 1st and 4th defendants, which satisfied him as to the legitimacy of the transaction.
43.    He stated that the 6th defendant later obtained title after the suit had been filed and was responsible for demolishing their houses in 2020. In re-examination, he confirmed that in 2020, the 6th defendant, Kimson Holdings Limited, instructed the demolition of their houses, and that he was aware Kimson had filed a suit concerning the same land. That marked the close of the plaintiffs’ case.

Defence evidence
44.    DW1 was Thomas Maingi Wambua, the 4th defendant’s director. He adopted his witness statement dated 26th June 2014 as his evidence in chief and produced a list of documents of even date. He testified that he was in agreement and supported the plaintiffs’ case and evidence. That the unsurveyed plot 478 now registered as Mavoko Town Block 3/1968 was initially owned by Ruth and Serah. That the two sold the said parcel of land to the 4th defendant vide agreements dated 18th November 1997 and 10th July 1997 respectively.
45.    He stated that Ruth, the mother of the 2nd and 3rd defendants together with Serah, had earlier on sold to the 4th defendant the unsurveyed plot No. 665 measuring 5 acres where they were paid in full in respect of the agreement dated 6th September 1996. That Serah sold her share of the suit property being 20 acres to the 4th defendant on 10th July 1997 while Ruth sold her share of 20 acres on 18th November 1997. That the unsurveyed plot 478 belonged to Lukenya Ranching Cooperative society which gave its members allotment letters.
46.    He maintained that when the 4th defendant completed payment, Serah and Ruth handed over their original allotment letter No. 1401 dated 4th March 1991 to the 4th defendant. That the 1st, 2nd and 3rd defendants went behind the back of the 4th defendant and had the names of Ruth and Serah in the title document when the same had already been sold to the 4th defendant. That the 1st defendant agreed to obtain the land control board consent and cannot run away from a transaction where they received payment. That the transfer of the suit property to the 5th and 6h defendants was done fraudulently and meant to deny the 4th defendant and the plaintiffs their rights.
47.    That the plaintiffs having purchased the suit property are beneficial owners thereof and their claim is valid and lawful. That the 4th defendant subdivided the suit property sold it to the plaintiffs and issued them with ownership and beacon certificates on completion of payment of consideration. That the dispute with the 1st 2nd and 3rd defendants started in earnest in 2013. That the 1st to 3rd defendants obtained grant of letters of administration in December 2013 when they had been sued in October 2013 and that by the time the court was confirming the grant in 2014, this court was already seized of this matter.
48.    His position was that had the 5th defendant done due diligence, he should have known that the suit property had been occupied by the plaintiffs. That the confirmation of grant was rushed to defeat the plaintiffs’ claim. That the 1st defendant received payments from the 4th defendant and executed two valid land sale agreements. That the 2nd and 3rd defendants had no right to sell land to the 5th defendant as the same had already been sold to the 4th defendant. That when the plaintiffs filed suit, the 1st, 2nd and 3rd defendants rushed everything in three months to defeat their claim. That the plaintiffs are the rightful owners of the suit property and their claim ought to be allowed.
49.    DW1 added that upon completion of payments, purchasers were issued with share and beacon certificates. He explained that he had paid the vendors a total of Kshs. 1,600,000/- for two plots and that purchasers had taken possession of the land and constructed permanent houses since 1998. He denied any involvement in the Milimani case between the 5th and 6th defendants and asserted that the documents and titles obtained by the other defendants were unlawfully issued.
50.    He produced a copy of affidavit sworn by Serah; sale agreements dated 6th September 1996, 10th July 1997 and 18th November 1997; letter of allotment; copies of payment cheques and exchanged correspondence.
51.    On cross-examination, DW1 stated that he had purchased the land from Serah and Ruth under multiple agreements, with payments made partly by cheque and cash, and that he had received letters of allotment and issued share and beacon certificates to the plaintiffs. He explained that any delay in formalizing title was due to pending survey work and succession matters, and that he was not aware of any dispute from the vendors at the time of sale.
52.    He denied allegations of forgery and confirmed that the plaintiffs were in occupation of the land, with permanent and semi-permanent structures, and that he had no issue with the legitimacy of the payments or the documentation they had provided. In re-examination, DW1 reiterated that he had not executed sale agreements directly with the plaintiffs because the title had not yet been issued by Serah and Ruth, and that the plaintiffs were in lawful possession of the land with all payments properly made and documented.
53.    DW2 was Jimmy Danson Mulwa. He testified on behalf of the 1st to 3rd defendants. He adopted his witness statement dated 7th January 2022 as his evidence in chief and produced a list of documents of even date. He testified he was the personal representative of the estate of Serah. That the 2nd and 3rd defendants were the representatives of the estate of Ruth. That the 40-acre suit property was initially owned by his grandfather, then transferred to his father and uncle, and later to his aunt Ruth and mother Serah.
54.    That following Ruth’s death, administrators of her estate were appointed, and the land was sold to Geoffrey Musembi, the 5th defendant, for Kshs. 32 million, paid in installments. He denied that the allegation that the 4th defendant purchased the suit property explaining that the 4th defendant only purchased 5 acres with full family consent. DW2 stated that on discovery of occupants on the land was reported to the police and that letters from advocates were issued to trespassers on instructions from his mother.
55.    He further asserted that any signatures on agreements purporting to sell the 40 acres to others were forged, and that the sale to the 5th defendant was legitimate and properly documented under the succession process.
56.    It was his position that the 4th defendant has no purchaser’s interest in the suit property hence the plaintiffs claim is untenable. That the 1st 2nd and 3rd defendants sold the suit property to the 5th defendant. That the grant of letters of administration was issued on 28th March 2013 and confirmed on 4th October 2013.
57.    Further that the transfer to the 5th defendant was done lawfully and the 5th defendant is the absolute proprietor of the suit property whose title cannot be challenged. That the plaintiffs are trespassers on the suit property and the 4th defendant ahs never sued the 1st to 3rd defendants. That the plaintiffs were defrauded by the 4th defendant and he only remedy available to them is to sue the 4th defendant. That there is no privity of contract between the plaintiffs and the defendants.
58.    He produced a land sale agreement dated 25th November 2013; title deed for Mavoko Town Block 3/1968 together with a search certificate; copy of letter of allotment; official search; survey map; grant of letters of administration and forensic report from the handwriting analysis by Global Forensic Security Services dated 25th October 2017.
59.    On cross-examination, DW2 asserted that although they had sold 5 acres to the 4th defendant, they had not issued them title. That his mother and aunt could not sell land without involving the family. That the 4th defendant only purchased 5 acres at a consideration of Kshs. 350, ooo/= and not the entire 40 acres and that the family never consented to sell the 40 acres prior to the succession process. He stated that the title for the suit land was issued around 2006, with letters of administration obtained in 2012 and 2013. He conceded that when the 5th defendant purchased the suit property, there were people in occupation. That the 5th defendant was included when succession proceedings in respect of the estate of Ruth was filed in 2012. That the 5th defendant purchased the suit property in November 2013. That 
60.    He denied any knowledge of the plaintiffs’ alleged purchase in 1997.  He further stated that he was involved in every transaction by the family. On being referred to the cheques produced by the 4th defendant, he stated that the same were in respect of the sale of 5 acres. That his advocates letter of 20th August 2013, indicated that there were occupants on the suit property with permanent houses. That this suit was filed in 2013 and Serah died in 2020 but did not write anything regarding the status of the disputed transaction.
61.    In re-examination, DW2 reiterated that the 5-acre sale to the 4th Defendant was valid whereas the 40-acre sale to 5th defendant was lawful under succession, and that any disputed documents were submitted for expert verification.
62.    DW3 was Martin Esakina Papa, a trained document examiner and founder member of Global Forensic security services. He testified that he was instructed by counsel for the 1st to 3rd defendants to examine disputed signatures on the disputed sale agreements alleged to have been entered into between the 4th defendant and Serah and Ruth. His mandate was to compare the disputed signatures vis a vis the known signatures of Serah and Ruth. Serah’s known signatures were those on her affidavit of 25th February 1997 and on the agreement of 6th September 1996 in regard to the sale of 5 acres for unsurveyed plot No. 665, which agreement also had Ruth’s known signature.
63.    His testimony was that his examination concluded that the signatures on the sale agreements did not match the known signatures of the respective parties, and that the hands executing the documents were not the same.
64.     That he considered all characteristics affecting handwriting, including strokes, loops, speed, energy, pen pressure, rhythm and external factors such as writing instruments, supporting surfaces, age and health of the writer and factors affecting photocopy. That he examined the handwriting under magnifying lens.
65.    He produced his report dated 25th October 2017. His findings were that the disputed signature alleged to belong to Serah was an attempt to copy Serah’s signature, but does not resemble Serah’s genuine signature and that the same was a simulated forgery and that the same has varied spacing between characters, thick line quality and unnatural pen lifts. That Serah’s signature on the affidavit and on the agreement of 6th September 1996 exhibit “visible” consistent incidences of light terminal strokes on loops, habitual speed, continuity and pattern of shading.
66.    Regarding Ruth’s disputed signature, the expert’s findings were that the same was in a handwriting format and did not exhibit characteristics of an attempt to copy the genuine signature of Ruth and that the disputed signature did not belong to Ruth.
67.    During cross-examination, DW3 explained that he only had photocopies, not originals, and that it would have been good if he was given originals which he had asked for. He conceded that photocopies can be manipulated. That he was not aware if the author was not alive. That the signature of Serah on her affidavit and the agreement of 6th September 1996 were similar. That one of the copies he was comparing was faint. That regarding Ruth, he compared her style signature with her alleged alphabet signature. He conceded that he was supposed to compare the same format signatures and stated that a comparison of style and format signature is not a proper comparison.
68.    He further stated that Serah’s signature in Exhibit “A” was a mix of style and alphabet.  He emphasized that variations in handwriting style could arise from age and other factors. In re-examination, he confirmed that handwriting changes with age, and stated that the dates on the exhibits were close in time.
69.    DW4 was Joseph Kinyanjui Mundia, the Land Registrar at Machakos. He testified regarding the registers of the suit property and the resultant titles upon subdivision.  He stated that the green card for parcel No. Mavoko Town Block 3/1968 was opened on 26/8/2004 with entry No. 1 for the Government of Kenya. That entry No. 2 was done on 23rd January 2006 in favour of Ruth and Serah and entry No. 3 was dated 13th February 2006 for issuance of title to the two. That entry No. 4 was dated 20th January 2014 in favour of Boniface Musyoki and Ndeti Musyoki in respect of Succession Cause No. 1020 of 2012 and entry No. 5 was dated 20th January 2014 in favour of Geooffrey Musyoki Musembi.
70.    Regarding entry No. 6 was dated 5th February 2014 he stated that the same was for issuance of title to Geoffrey while entry No. 7 was dated 1st April 2014 was for closure of the suit property’s title for subdivision into parcel Nos. 36364 and 36365. Further that parcel No. 36364 was subdivided into parcel 39803 to 39809 which are registered in the names of Geoffrey Musembi. That parcel 36365 are in the names of Kimson Holdings Limited. The witness confirmed that up to date, no further transactions have occurred regarding these parcels. He produced eight certified copies of register/ green cards.
71.    On cross-examination, DW4 stated that it is possible to have two different entries on the title done together as those made on 20th January 2014 favour of Boniface and Ndeti Kyambini as well as Geoffrey Musembi. He explained that the Green Card reflects the lawful surrender and registration of titles in the names of Ruth and Serah, and that the subdivision and registration of Parcel Nos. 36364 and 36365 followed proper procedures. He explained that simultaneous registrations in favor of multiple parties can occur and are valid when supported by letters of administration and confirmation of grant.
72.    He noted that cautions on title, such as that from Kimson Holdings Limited, are registered only on documents brought to the Registrar’s attention, and that any court orders, including the status quo order dated 10/10/2014, must be formally presented for registration to affect entries.
73.    In re-examination, DW4 emphasized that the administrators properly conveyed title to beneficiaries, with confirmation of grant schedules recorded, and that the current registered proprietors of the subdivisions are the 5th and 6th defendants. He clarified that the Registrar relies solely on official documents presented and has no authority to alter or resurrect closed titles without a court order, which has not been presented in this case.
74.    DW5, Geoffrey Musyoka Musembi, the 5th defendant, adopted his witness statement dated 18th August 2014 as his evidence in chief and produced documents attached to his list of documents of even date. He testified that on 25th November 2013 he purchased the suit property from Serah and the children of Ruth for Kshs. 32 million.
75.    He informed court that he paid the consideration in installments and completed payment in February 2014, when the land was transferred to him. That when he took possession of the suit property in February 2014, he found five semi-permanent structures on the property. That he questioned the occupants who told him they had been sold plots by the one Thomas Wambua through his company, the 4th defendant and that there was a case pending at Machakos. That at the time of purchase he was not aware of existence of squatters on the land or pendency of court proceedings. That he knows Thomas Wambua who is a known fraudster involved in many cases and that the plaintiffs were defrauded of their land. Further that he lawfully purchased the suit property from Serah and the two sons of Ruth who are the 2nd and 3rd defendants herein and that he is entitled to exclusive possession of the same.
76.    He produced a certificate of search; certificate of confirmation of grant in Machakos High Court Succession 1020 of 2012; sale and transfer agreement and title deed.
77.    On cross-examination, DW5 stated that he obtained the title deed on 5/2/2014, and subsequently subdivided Parcel No. 1968 into 36364 and 36365. That he sold parcel No. 36365 to the 6th defendant on 7/1/2015, receiving the full purchase price of Kshs. 15 million. That he retained parcel No. 36364, which he subdivided into four plots, and which remain under his name.
78.    Further that at the time of purchase, he found no occupants on the land. That the 6th defendant occupied the land upon purchase. That he had no document to show that he paid Kshs. 32, Million. That at the time of purchase he knew that one of the owners of the land was dead. That succession by the 2nd and 3rd defendants began in 2012 and that he was included in the succession. That before registration the land belonged to Lukenya Ranching Cooperative Society. That he did not know if he got title before the completion date.
79.    That he completed payment of consideration after obtaining title. That he was not aware that the land had been sold earlier. That the 1st to 3rd defendants had the right to sell the land because the search showed that the land was theirs. That he did not know if there were people on the land who had been there for 20 years at the time he purchased the suit property. That the plaintiffs came on the land between 2013 and 2014. He denied knowledge of Machakos ELC Case No. 311 of 2017.
80.    On further cross examination, he stated that he went to the suit property in 2013 and found three houses and was told the land belonged to the vendors. That at the time of possession, he found five houses and the owners of the houses informed him that they purchased the land from Thomas Wambua. That he sold land to the 6th defendant who paid him Kshs. 15 Million. On being referred to his agreement, he stated that there was no date on it and that he cannot remember before which advocate he signed the agreement. He stated that there were no witnesses when he signed the sale agreement. That he entered into two agreements for sale of 13 acres with the 6th defendant but he had not provided the agreements in evidence.
81.    He conceded that when Milimani ELC Case No. 55 of 2016 was filed, this case was pending and he had been sued in the instant case as the 5th defendant. That he did not inform the court at Milimani that he had been sued in this matter. He confirmed that his advocate in the Milimani case is his current advocate in this case. He further conceded that when he entered into the consent dated 16th February 2017 in the Milimani case, he was aware of this suit. That he sold one and half acres to Rocks Upendo Limited. He conceded that one of the agreements with the 6th defendant was not signed and not dated and that he did not have a signed agreement. That he informed the 6th defendant of this suit but that he went ahead to purchase the land because of the search.
82.    In re-examination, DW5 reiterated that the 90-day completion period allowed for transfer and payment of the balance, which was duly observed. According to him, when he sold the land to the 6th defendant, there was no one on the suit property and that the plaintiffs came on the land after he had sold it to the 6th defendant. He stated that the 6th defendant obtained vacant possession, and he sought exclusive possession for his retained portion under his counterclaim. He stated that all exhibits, including transfers, photographs, his identification documents, and signatures, were authentic.
83.    DW6 was Joseph Kimani Mbugua, the Managing Director of the 6th defendant. He adopted his witness statement dated 25th January 2016 as his evidence in chief and produced the documents in his list of documents of even date. His testimony was that in April 2013 when scouting for property to purchase, they came across advertisement for sale of the suit property and found that the same was being sold by the 5th defendant. That he inspected the property and obtained search which showed that the owner was the 5th defendant. That he entered into a land sale agreement for purchase of 10 acres and latter for purchase of 3 acres making a total of 13 acres. That the property was subdivided and the purchased portion transferred to his company after paying the consideration. That he sent his agents to fence the land and that is when they received resistance from some unidentified individuals. That he obtained a map from    survey of Kenya.
84.    He produced his replying affidavit dated 21st November 2018; two title deeds for parcel Mavoko Town Block 3/36365 for 2014 and 2015; official searches for different dates; pleadings in Machakos ELC Case No. 311 of 2017 sale agreement; acknowledgement of payment; addendum sale agreement;6th defendant’s resolution; consent in Machakos ELC 311 OF 2017 and plaint in this case.
85.    On cross examination, he stated that following a suit between himself and the 5th defendant herein vide ELC No. 311 of 2017, a decree was issued and he was given quiet possession of the land.
86.     That the title herein is similar to that of the previously filed suit. He told the court that at the time of purchase, there were no buildings and the land was unoccupied. That he acquired a loan of sum Kshs. 20 million in 2016 from Equity Bank using the said title. That he repaid the loan after four years and his title was discharged and given to him. That because of this suit he had not been able to occupy the land.
87.    On cross examination, he stated that the sale agreement with the 5th defendant was produced in court and that he paid for the suit land in three instalments via cheques. That his first payment was made on 25th November 2013. That he had visited the land with the 5th defendant and also conducted a search prior to purchase. That the total purchase price was Kshs. 20, 500, 000/= and that he had no proof of payment of the said sum of money. That at the time of purchase, there were no occupants on his 13 acres. 
88.    He maintained that he was unaware at the time of purchase that the same land had allegedly been purchased by the 4th defendant. That when he filed suit in 2016, he was not aware of this suit. That he filed suit when he was stopped from fencing the land by the people who came from the neighbourhood. That he did not sue the people who stopped him from fencing his land. He denied colluding with the other defendants to defraud the plaintiffs. That marked the close of defence case.
89.    The court directed parties file submissions is support of their respective cases. On record are submissions dated 23rd December 2024, filed by the plaintiffs; submissions dated 3rd February 2025 filed by the 1st, 2nd and 3rd defendants; submissions dated 10th March 2025 filed by the 4th defendant; submissions dated 23rd April 2025 filed by the 5th Defendant, and submissions dated 23rd April, 2025 filed by the 6th Defendant; all of which this court has carefully considered.

Plaintiffs’ submissions.
90.    Counsel for the plaintiffs isolated the following issues for determination:
i.    Whether the 4th defendant held beneficial interest in the suit land namely MAVOKO TOWN/BLOCK 3/1968;
ii.    Whether the 4th defendant passed a good title to the plaintiffs;
iii.    Whether the 1st, 2nd and 3rd defendants passed a good title to the 5th defendant, and
iv.     Whether the 5th defendant passed a good title to the 6th defendant.
91.    On the first issue, counsel urged the court to consider the history of the suit property. They relied on the case of Kimuyu v City Council of Nairobi (Environment & Land Case No. 170 of 2011) [2023] KEELC 16288 (KLR), for the proposition that tracing ownership of land depended on the root of title. It was argued that the documents relied upon by the plaintiffs established a clear chain of ownership demonstrating the 4th defendant’s beneficial interest, since their good root of title can be traced through an unbroken documentary chain.
92.    It was also submitted for the plaintiffs that the 4th defendant acquired beneficial interest in the suit property from the 1st defendant and one Ruth, the mother of the 2nd and 3rd defendants. The plaintiffs relied on the 4th defendant’s sale agreements, together with payment cheques demonstrating the purchase of the property then known as Plot No. 478.
93.    On whether the 4th defendant passed good title to the plaintiffs, it was contended for the plaintiffs that the 4th defendant surveyed, subdivided, and sold the suit property to them for valuable consideration. They relied on the sale agreement dated 18th November 1997 and share certificates issued by the 4th defendant, arguing that the authenticity of these documents was not disputed. Consequently, counsel contended that the 4th defendant passed a valid and good title to the plaintiffs.
94.    Regarding the question as to whether the 1st, 2nd, and 3rd defendants passed good title to the 5th defendant, counsel argued that the purported sale to the 5th defendant was invalid as the suit property had already been sold to the 4th defendant in 1997. It was therefore contended that the 1st, 2nd and 3rd plaintiffs could not lawfully sell what they no longer owned. Counsel cited the cases of Said Mabruk Abed v Margaret Mumbua Muli [2022] eKLR for the proposition that no valid title can pass from a person who lacks a lawful interest in the property.
95.    Counsel further submitted that the 5th defendant was not a bona fide purchaser for value without notice. Citing Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR), counsel argued that a bona fide purchaser must establish a valid and legal title, demonstrate due diligence, and prove payment of valuable consideration.
96.    It was their position that the 5th defendant neither conducted proper due diligence nor verified the root of title, and therefore could not benefit from the protection accorded to an innocent purchaser. Reliance was placed on Said v Shume & 2 others (Civil Appeal E050 of 2023) [2024] KECA 866 (KLR), where the Court of Appeal emphasized the importance of thorough investigation of ownership prior to land purchase.
97.    On the validity of the 5th defendant’s title, counsel contended that possession of a title deed alone is not conclusive proof of ownership where the root of title is challenged. Reference was made to Munyu Maina v Hiram Gathiha Maina [2013] eKLR, where the Court of Appeal held that a registered proprietor must go beyond merely producing the instrument of title and demonstrate the legality of its acquisition. They also cited Hebert L. Martin & 2 others v Margaret J. Kamar & 5 others (2016) eKLR, where it was held that in cases involving competing titles, the court must examine the root of each title and uphold only that which can be traced through a lawful and unbroken chain. In light of the foregoing, counsel argued that the 1st, 2nd and 3rd defendants could not have passed good title to the 5th defendant, and by extension, the 5th defendant could not have transferred a valid title to the 6th defendant. That accordingly, any purported sale or transfer downstream after the 4th defendants purchase was a nullity.

1st, 2nd and 3rd defendants’ submissions.
98.    Counsel for the 1st, 2nd and 3rd defendants highlighted two issues which they submitted upon; namely, whether the 5th and 6th defendants hold a good title and whether the plaintiffs acquired good title from the 4th defendant. It was their submission that the 5th and 6th defendants held a good title, as was confirmed by DW4, the Land Registrar. Moreover, they submitted that Equity Bank did finance the 6th defendant, after conducting due diligence before granting the loan. This, they submitted, was conclusive evidence that the ownership is absolute and indefeasible thereof and that such title cannot be subject to challenge as it was not obtained fraudulently as confirmed by Section 23(1) of the Land Registration Act, 2012.
99.    On whether the plaintiff acquired good title from the 4th defendant, counsel contended that the plaintiffs were trespassers and could not benefit from the 4th defendant’s fraud. Reliance was placed on Article 40 of the Constitution and Section 26(1) of the Land Registration Act as well as the cases of Re Estate of Raphael Ngugi (Deceased) [2022] e KLR; Joseph Kinyanjui Wanjiru v Silas  Muriithi Nguchu & 2 Others [2020] e KLR and Denis Mukhulo Ochwada & Patrick Obanya  Aguto v Elizabeth Murungari Njoroge and Lilian Wairimu Ngotho CA 298 of 2014. Counsel argued that title for the suit property was lawfully obtained without any fraud and has since legitimately passed to the 5th and 6h defendants.

4th defendant’s submissions.
100.    Counsel for the 4th defendant highlighted and submitted on the following issues:
i.    Whether the 4th defendant acquired beneficial interest over the suit property following the sale agreements in 1996 and 1997 and whether the 4th Defendant passed good title to the Plaintiffs.
ii.    Whether the 1st, 2nd, and 3rd defendants passed good title to the 5th defendant and whether the 5th defendant could pass good title to the 6th defendant.
iii.    Whether the titles obtained by the 5th and 6th defendants are liable for cancellation.
101.    On the first issue, counsel submitted that the 4th defendant acquired beneficial interest over the suit property on the basis of the agreements entered into by itself and Serah and Ruth in respect thereof. Counsel maintained that the beneficial interest arose on the basis of payment of the full purchase price and consequent handing over of original letter of allotment No. 1401 dated 4th March 1991.
102.     To buttress the above position, counsel cited the case of Kagine & 75 others v Mwailigha & 4 others (Environment & Land Case E009 of 2022), submitting that despite the delay in effectuating the transfer due to the succession process, the beneficial interest of the 4th defendant remained intact. Further citing Kimuyu v City Council of Nairobi [1997] eKLR, it was the 4th defendant’s position that beneficial ownership can be established through documents such as sale agreements and payments receipts, a tenet which the 4th defendant had proved in court.
103.     On the second issue, counsel relied on the doctrine of Nemo dat quod non habet and submitted that the 1st, 2nd and 3rd defendants herein did not have valid title to pass to the 5th defendant since the suit property had already been purchased by the 4th defendant as evidenced by sale agreements between itself, Sarah and Ruth, which agreements have never been repudiated. To buttress this position the court was referred to the case of  Hinga & 2 Others v Tirop [2022] e KLR. Counsel argued that the 1st to 3rd defendants never took action when the plaintiffs took possession of the suit property in view of the purchase by the 4th defendant as he evidence on record demonstrate that the plaintiffs have been residing on the suit property since 1997. It was further argued for the 4th defendant that the 5th defendant was aware of the plaintiffs occupation when he purported to purchase the same and hence he failed to conduct due diligence. It was also submitted that the 5th defendant having received a defective title could not pass a good title to the 6th defendant.
104.    On the issue of whether the titles obtained by the 5th and 6th defendants are liable for cancellation, counsel referred to the cases of Esther Ndengi Njiru & Another V Leonard Gatei [2014] e KLR and Elijah Makeri Nyangwara v Stephen Mungai Njuguna & Another [2013] e KLR, and submitted that those titles were defective since they were obtained fraudulently; and that this court has the power to nullify the fraudulent titles under Sections 26(1) and 80 of the Land Registration Act, 2012.
105.    Counsel contended that whereas the aforesaid titles held by the 5th and 6th defendants could not be impugned under Section 26(1)(a) of the Land Registration Act since they were not party to any fraud, the titles are nonetheless impeachable under Section 26(1)(b) as the titles transferred to them by the 1st, 2nd and 3rd defendants were obtained illegally and unprocedurally.

5th defendant’s submissions.
106.    Counsel for the 5th defendant associated himself with the submissions of the 1st, 2nd, 3rd and 6th defendants. On whether the 4th defendant held a beneficial interest in the suit property, counsel submitted that the agreements relied upon by the 4th defendant were forgeries as confirmed by DW3, the handwriting expert and could not confer good title on the 4th defendant.  Counsel also argued that the cheques relied upon do not add up to the full amount of the sum of Kshs. 1, 600, 000/=. That although the 4th defendant argued that he paid the consideration by cash and in cheque, there was no evidence of payment by cash and no acknowledgment was made. Counsel argued that Serah had signed a replying affidavit dated 23rd April 2014 stating that she did not sell land to the 4th defendant contrary to the latter’s assertions.
107.    On whether the 4th defendant passed good title to the plaintiffs, counsel argued that the 4th defendant having had no beneficial interest in the suit property could not pass good title to the plaintiffs. It was submitted that authorities relied upon by the plaintiffs did not support their case.
108.    Regarding the issue as to whether the 1st to 3rd defendants passed good title to the 5th defendant, counsel contended that the 5th defendant carried out a search and established ownership of the suit property before purchasing the suit property contrary to the plaintiffs who failed to carry out due diligence and relied fully on the 4th defendant’s information.
109.    Reliance was placed on Article 40 of the Constitution and section 26 of the Land Registration Act for the proposition that the title held by the 5th defendant is indefeasible.

6th defendant’s submissions
110.    Counsel for the 6th defendant submitted that the 6th defendant lawfully purchased a portion of Mavoko Town Block 3/1968 from the 5th defendant through a sale agreement executed around 25th November 2013 for valuable consideration. That the transaction was sanctioned by the Land Control Board, and upon subdivision, he acquired thirteen (13) acres now comprised in Mavoko Town Block 3/36365, which was transferred to the 6th defendant on 7th January 2015.
111.     It was counsel’s submission that the 6th defendant produced a search confirming his registration as proprietor and stated that he subsequently obtained a decree for peaceful possession in Nairobi ELC No. 55 of 2016 (later Machakos ELC No. 311 of 2017). Counsel maintained that despite the 6th defendant being the registered owner, the plaintiffs unlawfully encroached on his land, denying him quiet possession and use, and that although he charged the property to Equity Bank Ltd for a loan of Kshs. 20,000,000/-, which he fully repaid, he has never been able to utilize the land due to the plaintiffs’ continued occupation.
112.    Counsel for the 6th defendant contended that the plaintiffs’ claim is untenable, as Mavoko Town Block 3/1968 ceased to exist upon subdivision on 1st April 2014, and no valid sale agreement was produced by the plaintiffs in compliance with Section 3(3) of the Law of Contract Act, Cap 23. It was argued that the 6th defendant’s title to Mavoko Town Block 3/36365 is valid and indefeasible under Section 26(1) of the Land Registration Act, no fraud having been proved to impeach it.
113.    Counsel further submitted that the 6th defendant had established a prima facie case of trespass and is entitled to general damages for loss of use and the prayers sought in the counterclaim, relying on Kenya Power & Lighting Co. Ltd v Ringera & Others [2022] KECA 104 (KLR) and Philip Ayaya Aluchio v Crispinus Ngayo [2014] e KLR, and that costs should follow the event.

Analysis and determination
114.    The court has carefully considered parties’ respective pleadings, evidence and rival submissions; which were quite detailed. Although the 1st, 2nd and 3rd defendants made a counterclaim on behalf of the 5th defendant, seeking for the plaintiffs’ eviction from the suit property for the benefit of the 5th defendant whom they alleged was the owner of the suit property, from their defence and counterclaim, they alleged to have sold the entire suit property to the 5th defendant and therefore, their pleadings demonstrate that they have no legal or equitable claim over the suit property.
115.    Besides, they did not exhibit any justification or locus standi that would enable them make a claim for and on behalf of and for the benefit of the 5th defendant, who is ably represented in this matter. The 5th defendant has his own counterclaim couched in the terms he deems fit.  It is therefore, my view that the 1st to 3rd defendants have no business making a claim on behalf of the 5th defendant. On that basis, I find and hold that the 1st to 3rd defendants’ counterclaim is without foundation, is superfluous, an abuse of the court process, need no further interrogation and is hereby dismissed. Therefore, what remains for them however, is their defence as against the plaintiffs’ claim, which the court will proceed to interrogate alongside the rest of the parties’ pleadings.
116.    Therefore, three issues arise for the court’s determination, namely;
a)    Whether the plaintiffs’ suit is time barred.
b)    Who between the plaintiffs (on one part) and the 5th and 6th defendants (on the other part) lawfully acquired the suit property.
c)    Who between the plaintiffs and the 5th and 6th defendants are entitled to the suit property.
117.    I have considered the amended plaint. In their amended plaint, the plaintiffs stated that between 1997 and 2003 they purchased their respective plots from the 4th defendant, who held a purchaser’s interest in the suit property having purchased it from Serah and Ruth. That since the time of purchase, the plaintiffs have been in peaceful occupation of the suit property until 2013 when the defendants issued them notices to vacate claiming that the plaintiffs were trespassers, prompting the instant suit.
118.    In view of the plaintiffs’ claim having been based on their alleged purchase of the suit property from an alleged purchaser and on the basis that they were in occupation thereof by the time of filing this suit in 2013, it is clear that their claim is that of beneficial owners which is a claim anchored in equity and more specifically, constructive trust. In other words, the plaintiffs’ ownership claim is not based on assertions that they are the registered owners or that they purchased it from the registered owners. Their claim is that Serah and Ruth sold the suit property to the 4th defendant, who in turn sold it to them and therefore Serah and Ruth and their assigns and administrators of their estates had no land to sell to the 5th and 6th defendants because the land had passed from them to the 4th defendant and subsequently to them.
119.    As I understand it, the plaintiffs’ claim is that although the suit property was registered in the name of Ruth and Serah in 2006, they had already purchased and occupied the same, hence it was registered in the name of Serah and Ruth in trust for them and that the transfer to the 5th and 6th defendants was unconscionable and amounted to fraudulent breach of trust. While this court notes that the plaintiffs did not use the word “trust” in their amended plaint, the findings and conclusions made herein above by this court to the effect that the plaintiffs’ claim is anchored in equity and more specifically constructive trust, is based on the framing of the amended plaint.
120.    That being the case, the next question is whether there is a time limit for bringing a claim based on trust.
121.     It is trite that there is no time limitation in regard to a claim based on trust.
122.    Section 20 of the Limitation of Actions Act provide for actions concerning trust property as follows;
“20. Actions concerning trust property
(1)None of the periods of limitation prescribed by this Act apply to an action by a beneficiary under a trust, which is an action—(a)in respect of a fraud or fraudulent breach of trust to which the trustee was a party or privy; or(b)to recover from the trustee trust property or the proceeds thereof in the possession of the trustee or previously received by the trustee and converted to his use.”
123.    Therefore, a claim for recovery of trust property or in regard to fraudulent breach of trust cannot be time barred.
124.    In the case of Prabhulal Tejpal Haria & Another v Pravinchandra Meghji Dodhia & 2 Others [2008] KEHC 364 (KLR), the court held that where the intention of the plaintiff is to recover property by virtue of being a beneficiary, then such suit is not time barred.
125.    As the plaintiffs’ claim herein is anchored on constructive trust and fraudulent breach of trust, I find and hold that the same is not time barred.
126.    Regarding the second issue, Article 40 (6) of the Constitution protects the right to own and acquire property only in regard to property that is lawfully acquired.
127.    Section 26 of the Land Registration Act provide for indefeasibility of title as follows;
“Certificate of title to be held as conclusive evidence of proprietorship
(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.”
128.    Therefore, unless there is proof that the acquisition of title by a registered proprietor was by fraud, misrepresentation, want of procedure, illegality or corruption, registration of such property vests in a proprietor, absolute and indefeasible rights.
129.    In the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] e KLR the court held that where title is unlawfully obtained, the same is invalid.
130.    Similarly, in the case of Dina Management Limited v County Government of Mombasa & 5 Others [2023] e KLR, the Supreme court held that a defence of bona fide purchaser for value without notice of defect in title, does not validate a title obtained unlawfully.
131.    Section 107 of the Evidence Act places the burden of proof in a matter on the plaintiff. As both the plaintiffs and 5th and 6th defendants claim ownership of the suit property, they are each obligated to demonstrate to this court that their acquisition of the same was lawful and procedural and was not vitiated by the elements set out in section 26 of the Land Registration Act.
132.    It is now settled that a defence of being an innocent purchaser for value without notice of defect in title cannot validate a title obtained unlawfully, or without following the proper procedure or through corruption, even where the purchaser was not involved in such illegalities. Therefore, in the instant matter, the plaintiffs on one hand and the 5th and 6th defendants on the other hand, both having alleged lawful purchase cannot succeed in relying on the argument of being innocent purchasers for value, as that argument is no longer tenable in the current legal dispensation.  To succeed, each party is obligated under the law to demonstrate that the root of their title is clean. And for that reason, this court will not inquire into the innocence of any of the parties herein regarding their respective transactions. What the court sets out to do is to check the root of each party’s title. There can only be one clean title for each parcel.
133.    In the instant case, there is no dispute that the suit property was previously owned by Lukenya Ranching Cooperative Society (Lukenya). From the Allotment letter presented in evidence, the same was before registration known as unsurveyed Plot No. 478. That property was registered in the names of Serah and Ruth, by virtue of their membership of Lukenya. The 4th defendant has also not disputed selling the suit property to the plaintiffs. The evidence also shows that during the pendency of this suit, in April 2014, the suit property was subdivided into parcel Nos. Mavoko Town Block 3/36364 and 36365. Parcel No. Mavoko Town Block 3/36364 was in November 2014 subdivided into parcel Nos. 39803 to 39809.
134.    What is disputed is the plaintiffs’ allegation that they lawfully purchased the suit property from the 4th defendant on the basis that the 4th defendant had lawfully purchased the same from Serah and Ruth. Therefore, the validity and legality of plaintiffs’ acquisition of the suit property solely rests on the legality of the 4th defendant’s alleged acquisition. 
135.    On the other hand, the plaintiffs dispute the legality of the 5th and 6th defendants’ respective acquisition of the suit property on the basis inter alia that since the same had already been sold to them, and was therefore no longer available for sell by the 1st to 3rd defendants to the 5th and the 6th defendants. Further that the 5th defendant not having obtained good title, could not pass it to the 6th defendants. They also challenged the procedure and legality of acquisition by the said defendants.
136.    I have considered the evidence presented by DW1 the 4th defendant’s witness. He produced two land sale agreements drawn by advocates showing sale of the suit property by Ruth and Serah. The allegation of purchase of the suit property by the 4th defendant was vehemently contested in evidence.  The 1st, 2nd and 3rd defendants denied existence of the agreements terming them forgeries. They also presented evidence of a handwriting expert DW3 one Martin Esakina Papa, who produced a forensic examiners’ report with the opinion that the signatures on the sale agreements relied upon by the 4th defendant do not belong to Serah and Ruth respectively. 
137.    Regarding expert evidence, section 48 of the Evidence Act provides as follows;
“ 48. Opinions of experts.
(1) When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions.
(2) Such persons are called experts”
138.    It is trite that the role of an expert in giving expert opinion to the court is to assist the court by providing impartial and objective opinion in matters requiring specialized knowledge to assist the court in making informed decisions. The expert’s duty of objectivity to the court overrides their obligation to the instructing party. It is trite that the court is not bound by expert opinion, and expert opinion does not trump other evidence but is considered alongside all other evidence in the case.
139.    In the case of Christopher Ndaru Kagina v Esther Mbandi Kagina & Another [2016] e KLR, the court cited with approval the decision in the case of R V Harris & Others [2005] EWCA crim. 1980, where it was held that the duty of an expert to the court, overrides any obligation to the instructing party because they ought to provide an independent assistance to the court by way of objective and unbiased opinion in relation to matters within their expertise.
140.    In evaluating the weight to be given to expert evidence, the court is obligated to be cautious, judicious and vigilant and consider that evidence in the context of all other evidence presented in the case and the circumstances of the case, including the possibility of such evidence being biased in favour of the instructing party or the same being impartial despite the instructing party being only one of the parties.
141.    Essentially, expert evidence should neither trump other evidence nor be elevated above the other evidence, but ought to be considered together with other evidence in the case. It ought not be considered in a vacuum or in isolation. It ought to be considered contextually in regard to other evidence in the matter because it is not the yardstick against which the other evidence should be judged. Additionally, the quality of reasoning of the expert should be interrogated by the court.
142.    The place of expert evidence was discussed in the case of Stephen Wangóndu v The Ark Limited High Court Civil Appeal No. 2 of 2014, as follows;
“Firstly, expert evidence does not “trump all other evidence.” It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision.
Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing. A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence.
Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred.”
Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional ones.”
143.    In the instant matter, the 1st to 3rd defendants produced an expert report which concluded that the alleged signatures of Serah and Ruth indicated in the 4th defendant’s sale agreements regarding the suit property made in 1997, were forgeries. This court has carefully considered the report and examined the quality of the expert’s reasoning in arriving at the conclusions made.
144.    The 1st to 3rd defendants produced a letter dated 6th October 2017 said to have been written and signed by Serah Katumbi Mulwa addressed to Mwania Mbithi & Company Advocates in which she instructed the said advocates to obtain the services of a document examiner to verify the authenticity and genuineness of the signatures on the agreements said to have been signed by her and the late Ruth Munyiva. That letter was signed by Serah and one Ndeti Kyambinu.
145.    Pursuant to the said instructions, Mwania Mbithi & Company Advocates wrote to Martin E. Papa, (DW3) forwarding photocopies of four documents labelled as exhibits “A”, “B”, “C” and “D”.  Exhibit “A” is a copy of a genuine affidavit of Serah dated 25/2/1997; Exhibit “B” is a copy of a disputed sale agreement dated 10/07/1997 allegedly signed by Serah; Exhibit “C” is a copy of a genuine sale agreement dated 6/9/1996 signed by Serah and Ruth and Exhibit “D” is a copy of disputed sale agreement dated 18/11/1997 allegedly signed by Ruth. DW3’s mandate was to use Serah’s signature on Exhibit “A” as the genuine signature and ascertain the authenticity of the disputed signature on Exhibit “B”; and to use Ruth’s genuine signature on Exhibit “C” as to ascertain the authenticity of the disputed signature on Exhibit “D”.
146.    DW3 emphasized that he took into account factors that affect handwriting including illness, age, impairment of vision or hearing, posture or supporting surface. His verdict was that the signatures on Exhibit “B” and “D” did not belong to Serah and Ruth respectively because the signature on “B” was an attempt to copy Serah’s genuine signature, as it resembles the genuine signature but is a simulated forgery. Further that the signature on “B” was written in a natural manner but has varied spacing between characters, thick line quality and unnatural pen lifts. That on Exhibit “A” and “C” there were visible consistent instances of light terminal strokes on loops, habitual speed, continuity and pattern of shading. Regarding the signature on Exhibit “D”, he stated that the signature was different from that on Exhibit “C” because there is no evidence that Exhibit “D” is a genuine handwriting of the hand.
147.    DW3 stated that the signature in the known Exhibit and the examined Exhibit demonstrated that they were not by one person. DW3 confirmed that he examined photocopies and not originals and that in regard to Ruth, he compared a signature in text and one in style, which he admitted cannot be comparable. He alluded to ‘speed, energy, pen pressure and other matters. I do not think that speed, energy and pen pressure can be observed from photocopies, and he did not explain how that would be discerned from a photocopy some of which he stated were faint.
148.    In addition, while the court notes that characteristics like pattern of shading and loops may need optical instruments to ascertain, characteristics like continuity, pen lifts and letters of the alphabet used in a signature in text, are discernible by the naked eye.
149.    I have looked at the genuine exhibits vis a vis what is disputed. Serah’s signature is in text. Exhibits “A” and “C” have Serah’s undisputed genuine signatures. From the naked eyes’ view, both signatures are written in text, using letters of the alphabet.  While Serah signed off as “Serah” on Exhibit “A”, her signature on Exhibit “C” is signed off as “Sarah”; meaning that there is a difference in the letters used in the text that is her signature. In addition, there is no continuity in her signature on exhibit “A” in respect of the first four letters. On the other hand, in Exhibit “C” there is continuity from the second to the last letter. Therefore, the non-continuity in Exhibit “A” demonstrates pen lifts which are not present in Exhibit “C”. Therefore, the conclusion by DW3 that Serah’s signature on Exhibits “A” and “C” are consistent, is not justified as the letters used, the continuity and pen lifts applied are clearly and materially different.
150.    Besides, this court has interacted with other documents said to have been signed by Serah. Serah is said to have signed the sale agreement in regard to the sale of the suit property between the 1st to 3rd defendants and the 5th defendant. In the said sale agreement, she signed as “Sarah” with a visible continuity from the second to the last letter. In her letter of instruction to her advocates dated 6th October 2017 requesting for an expert opinion, she signed off as “sara” with no continuity between letters, demonstrating clear pen lifts. This points to the fact that while Serah used text in signing her documents, she used different letters of the alphabet, and applied different pen lifts and continuity in signing her documents.
151.    Looking at the undisputed documents said to have been signed by Serah and presented in evidence by the 1st to 3rd defendants, it is clear that she at times signed off as “Serah”, other times as “Sarah” and yet other times, as “sara”. In those documents, pen lifts, continuity and the letters used are clearly incomparable. This shows that Serah had more than one genuine signature.
152.     Regarding Ruth, the comparison made by DW3 was between a signature in text and one in style, which the expert conceded that the two were incomparable. For the reasons given above, I find and hold that the expert report by DW3 contained internal inconsistencies and factual incorrectness making it unreliable. In view of the foregoing, and the fact that DW3 was instructed by the 1st to 3rd defendants, I find and hold that the expert evidence by DW3 is subjective, partial and with no probative value.
153.    The findings on the expert report notwithstanding, I will consider the said report alongside and in the context of all other evidence on record and the circumstances of the case. The next issue is therefore, whether the 4th defendant demonstrated purchase of the suit property from Serah and Ruth.
154.    The evidence in the expert report had set out to counter the evidence of the 4th defendant that it purchased the suit property from Serah and Ruth. Therefore, on one hand, there is an expert report that the vendors’ signatures on land sale agreements are forgeries and on the other hand, the 4th defendant relies on the sale agreements as well as the cheques (about 15) issued in favour of Serah and Ruth indicating that they were payment for consideration in regard to sale of plot No. 478 Lukenya.  The 4th defendant explained that it had earlier on purchased 5 acres from Serah and Ruth in 1996 in respect of plot No. 665 Lukenya and thereafter purchased the 40 acres being Plot No. Lukenya 478. They produced the sale agreement for plot No. 665 (5 acres) and the sale agreements for plot No. 478 (40 acres). The 4th defendant also availed the affidavit of Serah dated 25th February 1997. It is the said copies of the affidavit and sale agreement that were presented to DW3 for forensic examination vis a vis the agreements for the 40 acres. It is not disputed that plot No. 478 Lukenya, is what was registered as parcel No. Mavoko Town Block 3/1968.
155.    The 4th defendant’s testimony was also that upon purchase of the suit property, Serah and Ruth issued it with the original allotment letter for plot No. 478. This allotment letter was produced in evidence. While the 1st to 3rd defendants contested the sale agreements, they did not controvert the fact that Serah and Ruth received payments by cheques from the 4th defendant. Their allegations that the cheques were in regard to the 5 acres purchased earlier by the 4th defendant is not plausible, as the cheques produced are for sums far much exceeding the agreed consideration of Kshs. 350, 000/= stated in the agreement for 5 acres being plot No. 665. It is clear that the Serah and Ruth received consideration in respect of the suit property from the 4th defendant.
156.    If Serah and Ruth were not selling plot No. 478, they had no business handing over the original letter of allotment thereof to the 4th defendant. No complaint was ever made that the 4th defendant unlawfully obtained the original letter of allotment for plot No. 478. Therefore, the evidence of the 1st to 3rd defendants was not worth of belief as their denial of the fact that the 4th defendant purchased the suit property does not controvert the evidence of payment for the same by the 4th defendant.
157.    Besides, while in their evidence, the 1st to 3rd defendants categorically denied the existence of any sale agreement between Serah and Ruth with the 4th defendant, in regard to the suit property, they pleaded in paragraphs 6 (cc) of their amended defence and counterclaim that the 4th defendant purchased 20 acres and not 40 acres as alleged. They insisted that the claim was time barred and not blessed with a land control board consent. They however did not state from whom (between Serah and Ruth) the alleged 20 acres were purchased, neither did they avail any agreement for 20 acres. 
158.    The 1st to 3rd defendants in their amended defence and counterclaim (paragraph 13 (a)) conceded to the fact that the plaintiffs entered and occupied the suit property between 1997 and 2003 as pleaded in the amended plaint. That means that the 1st to 3rd defendants were aware of the plaintiffs’ presence on the suit property but did not challenge it or demand the justification of their presence on the suit property, until 2013 upon being sued, that is when they realized that the plaintiffs’ occupation was based on forged sale agreements by the 4th defendant. In addition, it appears that during her lifetime, Ruth did not challenge the legality of the plaintiffs’ occupation of the suit property. That, in my view suggests that the allegation of forgery was merely an afterthought. 
159.    The contradiction and gaps in the 1st to 3rd defendants’ pleadings and evidence point to their intent of misleading the court, so as to evade the consequences of lawful agreements. This aspect of blowing hot and cold reeks of dishonesty.  Therefore, looking at the totality of their evidence as against the plaintiffs’ and 4th defendant’s evidence, I am inclined to accept the plaintiffs’ and 4th defendant’s evidence as being the true picture as to what actually transpired in this matter and I find the 1st to 3rd defendants’ case and evidence as unworthy of belief and lacking credibility.
160.    In addition, the conduct of the 1st to 3rd defendants in selling the suit property to the 5th defendant when the plaintiff’s suit herein was pending, demonstrate persons inclined to defeat the plaintiffs’ claim through fraudulent breach of trust. The transfer in 2014 and sale agreement done in 2015 when this matter had been in court since 2013 violated the hallowed principle of lis pendens which points to litigants who were wary of waiting for the truth to unfold in court. 
161.    The agreements presented by DW1 show that they were signed before advocates. The two agreements were signed by Serah and Ruth before A. E. Kisebu advocate and Ngovi Mbulo advocate respectively. None of the advocates were asked to appear in court to shed light on the authenticity of the agreements. In the premises, I am convinced that indeed the 4th defendants lawfully purchased the suit property from Ruth and Serah.
162.    In view of the above, I reject the 1st to 3rd defendant’s allegation that the 4th defendant’s sale agreements were forgeries, and therefore, the evidence of the handwriting expert is found to be of no probative value in the face of other credible evidence on record demonstrating purchase of the suit property by the 4th defendant.
163.    The 4th defendant having shown lawful purchase of the suit property, it is clear to me that the same was held by the sellers, that is Serah and Ruth, their assigns and legal representatives including the 1st, 2nd and 3rd defendants herein, in trust for the 4th defendant and or their assigns including the plaintiffs. 
164.    The plaintiffs’ evidence that they purchased the suit property between 1997 and 2003 and respectively entered thereon within the said period was confirmed by the 4th defendant and not controverted by the rest of the defendants. The plaintiffs produced a newspaper advertisement of 1998 showing that the 4th defendant advertised sale of plots measuring 100 feet by 50 feet to the public. The 1st to 3rd defendant’s advocates, Mwania Mbithi in his demand letter of 20/08/2013 required the plaintiffs to vacate the suit property terming them trespassers, stating that they “have occupied the same for quite some time” without his clients’ authority and consent.
165.     From the plaintiffs’ evidence of  share and beacon certificates, payment receipts and photographs together with the 1st to 3rd defendants’ confirmation  of the plaintiffs’ occupation, I am therefore convinced that between 1997 and 2003, the plaintiffs had upon their respective lawful purchases, occupied the suit property. They continued in occupation even after Ruth and Serah became registered as proprietors thereof in 2006.
166.    Serah and Ruth having already sold the suit property to the 4th defendant, could not by themselves or through the legal representatives of their respective estates sell the same to another person including the 5th defendant as they could not dispose what was no longer theirs, in tandem with the doctrine of Nemo dat quod non habet. In the premises, neither Serah nor the estate of Ruth could pass a good title to the 5th defendant. And the 5th defendant having not obtained good title could not pass good title to the 6th defendant.
167.    Therefore, the registration of the suit property in 2006 in the names of Serah and Ruth was made in trust for the plaintiffs who had lawfully purchased the same from the 4th defendants and who were in occupation of the same. Allowing Serah and the estate of Ruth to sell the suit property again after having sold the same to the 4th defendant, would amount to unjust enrichment. Therefore, I find and hold that the purchase of the suit property by the 4th defendant and subsequent sale of the same to the plaintiffs created a constructive trust against Serah and Ruth in favour of the plaintiffs, who had not only purchased the suit property but also occupied the same.
168.    A constructive trust is an equitable remedy which is an intervention against unconscionable conduct and places an equitable duty on the holder of a title, to convey it to another, on the basis that if he retains the property, he would be unjustly enriched.
169.    The Blacks Law Dictionary 11th Edition defines constructive trust as;
“An equitable remedy by which a court recognizes that a claimant has a better right to a certain property than the person who has legal title to it. This remedy is commonly used when the person holding the property acquired it by fraud, or when property obtained by fraud or theft (as with embezzlement of money) is exchanged for other property to which the wrongdoer gets title. The court declares a constructive trust in favour of the victim of the wrong, who is given a right to the property rather than a claim for damages. The obligation of the constructive trustee is simply to turn the property over to the constructive beneficiary.”
170.    In the case of Shah & 7 Others v. Mombasa Bricks & Tiles Limited & 5 Others (Petition 18 (E020) of 2022 [2023] KESC 106 (KLR) (28 December 2023) (Judgment), the Supreme Court of Kenya, agreed with the position taken by the Court of Appeal in Willy Kimutai Kitilit (Supra) and Maina & 87 Others (Supra) and further stated as follows;
“[85]Section 28 provides that unless the contrary is expressed in the register all registered land shall be subject to overriding interests as may for the time being subsist and affect the same without being noted in the register. These overriding interests include trusts.
[86]While Sections 25, 26 and 28 of the Land Registration Act recognize that the rights of a registered proprietor of land are absolute and indefeasible, there are only subject to rights and encumbrances noted in the register and overriding interests. The overriding interests including trusts. In our view, and in the absence of any limitation as to the trusts, this includes constructive trusts. Applying the provisions of Article 24 of the Constitution therefore, the limitation of the right to property is provided under the law, and includes a constructive trust.
[87]We have found that the doctrines of equity are part of our laws ………and while the constitution entitles every person to the right to property at Article 40, this right is not absolute. We have also established that constructive trusts can arise in various circumstances, including in land sale agreements. Trust is an equitable remedy which is an intervention against unconscionable conduct. Where the circumstances of the case are such that if would demand that equity treats the legal owner as a trustee, the law will impose a trust. It is imposed by law whenever justice and good conscience require it. On this issue and for the reasons given above, we therefore find that a constructive trust can be imported into a land sale agreement to defeat a registered title.”
171.    In the case of Soulos v Korkontzilas [1997] 2 SCR 217, the Canadian Supreme court held as follows;
“The constructive trust is an ancient and eclectic institution imposed by law not only to remedy unjust enrichment, but to hold persons in different situations to high standards of trust and probity and prevent them from retaining property which in “good conscience” they should not be permitted to retain. While Canadian courts in recent decades have developed the constructive trust as a remedy for unjust enrichment, this should not be taken as expunging from Canadian law the constructive trust in other circumstances where its availability has long been recognized. Under the broad umbrella of good, conscience, constructive trusts are recognized both for wrongful acts like fraud and breach of duty of loyalty and to remedy unjust enrichment and corresponding deprivation. While cases often involve both a wrongful act and unjust enrichment, constructive trusts may be imposed on either ground.”
172.    In the case of Twalib Hatayan Twalib Hatayan & Anor vs. Said Saggar Ahmed Al-Heidy & Others [2015] eKLR, where it was held that;
“According to the Black’s Law Dictionary, 9th Edition; a trust is defined as:“1.The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).”Under the Trustee Act,
“… the expressions “trust” and “trustee” extend to implied and constructive trust, and cases where the trustee has a beneficial interest in the trust property……Trusts are created either expressly (by the parties) or by operation of law. An express trust arises where the trust property, its purpose and beneficiaries have been clearly identified (see. Halsbury’s Laws of England vol 16 Butterworths 1976 at para 1452). In this case, we have a definite property and beneficiary. The purpose/intent for which the property was bought remains in dispute. This negates the existence of an express trust herein. In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories; constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them inrelation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing. (see Black’s Law Dictionary) (Supra). It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (see. Halsbury’s Laws of England supra at para1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment. In the present case, a constructive trust cannot be imposed or inferred since the suit premises were yet to be transferred to the third party. Therefore, there is no unjust enrichment to be forestalled. This trust may arise either upon the unexpressed but presumed intention of the settlor or upon his informally expressed intention. (See Snell’s Equity 29th Edn, Sweet & Maxwell p.175). Therefore, unlike constructive trusts where unknown intentions maybe left unexplored, with resulting trusts, courts will readily look at the circumstances of the case and presume or infer the transferor’s intention. Most importantly, the general rule here is that a resulting trust will automatically arise in favour of the person who advances the purchase money. Whether or not the property is registered in his name or that of another, is immaterial (see Snell’s Equity at p.177) (supra).”
173.    In the instant matter, having found that the 4th defendant lawfully purchased the suit property from Ruth and Serah, and subsequently sold it to the plaintiffs herein, who took possession, I find and hold that Serah and Ruth and or their assigns or legal representatives, held the same in trust for the plaintiffs and hence the plaintiffs are entitled to the same.
174.    On the legality of the acquisition of the suit property by the 5th defendant, he pleaded that he purchased the suit property from the 1, 2nd and 3rd defendants. As observed above, those three defendants had no good title worth passing to the 5th defendant. Besides, the fact that the transactions by the 5th and the 6th defendants happened when the plaintiffs were already in occupation and when this suit was pending, shows that the transactions thereof were not made in good faith.  In addition, the fact that the 5th defendant entered into a sale agreement on 25th November 2013 and none of the 5th and 6th defendants demonstrated payment of Kshs. 32 million and 15 Million respectively as the alleged consideration; no payment of stamp duty was demonstrated, the agreement for 10 acres by the 6th defendant was undated while the second agreement for 3 acres was not dated or signed by any of the parties thereto. It is clear that the process for transfer of the suit property to the 5th and 6th defendants was uprocedural.
175.    I have also considered the consent order recorded in Milimani ELC Case No. 55 of 2016 dated 31st January 2017. The consent allowed the 6th defendant’s claim for vacant possession and injunction against the 5th defendant. The Milimani suit was filed in 2016, at a time when the instant suit was pending, having been filed in 2013. No disclosure was made by the parties in that suit that the plaintiffs herein were in occupation of the suit property and were not parties in that suit and had made a claim over the same subject matter. That is the same property that the 5th defendant was granting vacant possession to the 6th defendant, when the former was not in fact in possession. The fact that the plaintiffs were already in possession of the suit property way before 2013 and resisted the 6th defendant’s possession yet he chose to file suit in Nairobi without involving the plaintiffs demonstrates that his intention was to steal a march on the plaintiffs.
176.    It is also clear that the alleged sale to the 6th defendant was done in breach of the orders of status quo on record in this matter. Clearly, the 5th and 6th defendants acts of filing suit at Milimani, when the suit property is located in Machakos, excluding the plaintiffs in that suit and recording consent for delivery of vacant possession when in fact the 5th defendant was incapable of granting possession because he was not in possession, pointed to collusion to defeat the plaintiffs claim herein. I say so because the suit filed in Milimani did not in fact resolve the dispute as the 5th and 6th defendants despite consenting on vacant possession, still made counterclaims in this suit for vacant possession as against the plaintiffs herein, thus their suit in Milimani was an abuse the court process with intention to sanitize their illegalities.
177.    In the premises, I find and hold that the acquisitions of title by the 5th and 6th defendants were unlawful and therefore their titles cannot be protected in law. Ultimately, I find and hold that the plaintiffs have demonstrated that they are the equitable owners of the suit property and are entitled to the same. Section 80 of the Land Registration Act grants this court power to nullify unlawful registrations. As the acquisition of titles by the 5th and 6th defendants is hereby found to be unlawful, it therefore, follows that the subdivision of the suit property into parcel Nos. 36364 and 36365 and subdivision of parcel No. 36364 into parcel No. 39803 to 39809 is unlawful and the same ought to be cancelled, for the plaintiffs’ rights to be enforced.
178.    The upshot is that the 1st, 2nd, 3rd, 5th and 6th defendants’ counterclaims are hereby found to have no merit and therefore the same are hereby dismissed. The court finds that the plaintiffs have proved their case on the required standard as against the defendants and the same is hereby allowed as follows;
a)    A declaration is hereby made that the plaintiffs are the legal owners as purchasers for value of the plot number Mavoko Town Block 3/1968.
b)    The subdivision of parcel No. Mavoko Town Block 3/ 1968 and registration of titles issued in the names of the 5th and 6th Defendants in respect of parcels Nos. Mavoko Town Block 3/36364 (and their subdivisions being parcel Nos. 39803 to 39809) and Mavoko Town Block 3/36365 respectively, are hereby cancelled and the same shall revert to title No. Mavoko Town Block 3/1968.
c)    An order is hereby made directing the 1st, 2nd and 3rd defendants to execute transfer documents in favour of the plaintiffs or their nominees in respect of parcel No. Mavoko Town Block 3/1968, failure of which the Deputy Registrar of this Honorable Court is authorized to execute all the transfer documents.
d)    An order of permanent injunction is hereby issued restraining the 1st, 2nd and 3rd defendants from any interference of peaceful occupation and enjoyment of the suit property by the plaintiffs.
e)    The costs of the suit and the counterclaims herein are hereby awarded to the plaintiffs and shall be borne by the 1st, 2nd, 3rd, 5th and 6th defendants.
179.    It is so ordered.

DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 14TH DAY OF APRIL 2026.

In the presence of;
Ms. Nduta for the plaintiffs
Mr. Orenge for the 1st, 2nd and 3rd defendants and holding brief for Mr. Ndegwa for the 6th defendant
Mr. Manyange holding brief for Ms Jeruto for the 4th defendants
Ms. Kitonga for the 5th defendant
Court Assistant- Delphine