1. This is a judgment in relation to the main suit filed by the Plaintiff against the Defendant.
The Plaintiff by a Plaint dated 19.10.2022 seeks the following reliefs against the Defendant:
a) A DECLARATION THAT the (2) acres of LR No. 18485 (I.R 64011) be and is hereby
surrendered and transferred to the plaintiff.
b) A DECLARATION THAT the plaintiff has a right of lien against the property.
c) In the alternative to prayer (a) above the defendant do pay the plaintiff the sum of
Kshs.300,000,000/= being the current value of 2 acres of land in Loresho.
d) An order for specific performance of the terms, conditions and stipulations contained in
the letter dated 30th September 2010.
e) Any other orders this court deems fit and necessary to grant.
f) Costs of the suit and interest on (c) above at commercial rates.
Background facts
2. The Plaintiff filed a claim as against the Defendant by way of a Plaint dated 19th October,
2025. It sought the reliefs sought out herein above.
3. The claim is denied by the Defendant who filed a Statement of Defence dated 9.4.2024.
4. The salient facts of the case are that the Defendant is a co-registered owner of the
property known as LR. No. 18485 (I.R 64011) situated at Loresho in Nairobi (herein after
referred to as the Loresho land). He jointly owns the land with one Mr. Ashok Rupshi Shah.
5. The Defendant is said to have been the subject of an attempted murder case involving Mr.
Ashok Rupshi Shah or his driver. This was in Kibera Criminal Case No. 3814 and 3692 of
2012.
6. The Plaintiff’s claim is hinged on a series of letters. The main on is dated 30th September
2010. The same is said to constitute irrevocable instructions to the Plaintiff, made by the
Defendant. This was to investigate how Mr. Jacob Juma (now the late) acquired or was
issued with a title deed to LR. No. 18485 (I.R 64011), the Loresho land. The Plaintiff was
also to carry out investigations to exonerate the Defendant from the murder case facing
him. In consideration thereof, the Defendant was to allocate the Plaintiff 2 acres of the
Loresho land or pay out the equivalent value of the land.
7. The Defendant maintains that there were no such instructions or agreement arrived at.
That he was just but a co-owner of the land. Hence, he could not enter into an agreement for
the disposition of the land without the co-owner’s involvement. He also pleads that the
instructions he gave on 30th September, 2010 are illegal and against public policy and
therefore unenforceable. He pleads the particulars as follows;
PARTICULARS OF ILLEGALITY, BREACH OF PUBLIC POLICY AND
UNLAWFULLNESS
a) The alleged letter of instructions dated 30th September 2010 purported to instruct the
Plaintiff, a private corporate entity, to undertake investigations into attempted murder,
which is the preserve of the Kenya Police currently under the Directorate of Criminal
Investigations (DCI).
b) The alleged letter of instructions dated 30th September 2010 purported to instruct the
Plaintiff, a private corporate entity, to undertake investigations into matter fraud which is
also a preserve of the DCI.
c) The alleged letter of instructions dated 30th September 2010 purported to instruct the
Plaintiff, a private entity, to investigate another citizen, Jacob Juma, which is the preserve of
the Kenya Police, now National Police Service.
d) The alleged letter of instructions dated 30th September 2010 purported to confer police
powers and investigative powers to the Plaintiff, a non - Governmental Agency, to instruct
police how to undertake investigations and to correspond with the DCI.
e) The purported letter of instructions purported to empower the plaintiff, a private entity,
with power to gather evidence of commission of a criminal offence, which again is the
preserve of the DCI.
f) The purported letter of instructions amounted to nudum pactum in view of the fact that
the Plaintiff had a legal capacity to perform the alleged instructions and was neither
Gazetted as a Police Station nor as part of the investigative agencies.
g) The alleged instructions dated 30th September 20110 amounted to an illegal instruction
and one which was not possible to be performed by the Plaintiff or the Defendant.
h) The alleged instruction letter dated 30th September 210 amounted to instructing the
Plaintiff to undertake public duties entrusted to the DCI and the Inspector General of Police
and therefore, the same amount to an unenforceable activity and the alleged contract or
instruction is unlawful, illegal and unenforceable.
8. The matter proceeded for hearing partly before Mong’are J when the Plaintiffs witness
Mr. Brian Yongo testified. The Court recused itself from hearing this matter on 06.3.2025.
9. The matter was therefore allocated to this court which heard the evidence of the
Defendant.
10. Parties filed their submissions, which were highlighted by Counsel orally on 16.2.2026.
The Court is highly appreciative of the industry of Counsel in carrying out detailed research
and delivering detailed submissions. This has made the work of the Court so much easier.
11. Thereafter the Court did reserve this matter for judgment which was deferred severally.
This is highly regretted as it was caused by pressure of work which was explained to
Counsel for the parties.
Issues for Determination
12. The Court has considered the pleadings filed herein, the testimonies of the witnesses,
the evidence tendered, the written submissions. The Court has also taken into
consideration, the oral highlights by Counsel for the parties. The Court frames the following
issues for determination;
(i) Whether there was an enforceable contract between the Plaintiff and the Defendant.
(ii) Whether the Defendant’s instructions to the Plaintiff were illegal, against public policy
and therefore unenforceable.
(iii) Whether the Plaintiff is entitled to the reliefs prayed for in the Plaint.
(iv) What orders should be as to costs.
Analysis
13. The claim by the Plaintiff is that the Defendant gave it irrevocable instructions, to act.
That in consideration thereof, the Defendant was to transfer two acres of land to the
Plaintiff or in the alternative, the value thereof. That those instructions were accepted by
the Plaintiff. That all the ingredients of a contract being present, the Court is bound to give
effect to the terms of the contract.
14. Indeed, the business of the Courts is not to re-write contracts between parties. It is to
enforce and give life to the obligations flowing from such contracts. In the celebrated case
of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362
(KLR), the Court of Appeal held as follows:
“A Court of law cannot re-write a contract between the parties. The parties are bound by the
terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”
15. In the letter dated 30th September, 2010, the Defendant wrote as follows;
“Neptune Credit Management Ltd,
Boffar Court, Kandara Road,
P.O Box 331-00606,
Nairobi.
Attn: Mr. Bryan Yongo
Dear Sir,
RE: LR.NO. 18485 (I.R64011) LORESHO, NAIROBI
Further to my instruction to you of today. I hereby irrevocably instruct your firm to
investigate the circumstances under which Mr. Jacob Juma the 1st Defendant in ELC 312 of
2009 was issued with a title deed in respect to the suit property and launch investigations
which will enable me and my partner controvert the fraud and prove our case in court.
Do also ensure Mr. Jacob Juma does not access and/or take possession of the property.
You will also investigate the persons who attempted to murder my partner wherein I have
been maliciously charged in Kibera.
In consideration hereof, I shall allocate your company 2 acres of the suit property upon
conclusion and judgment being entered in our favour as prayed in the plaint in ELC 312 of
2019 or pay you equivalent of 2 acres at the prevailing value of the land at the time of
judgment and the same shall become due and payable upon date of judgement given that
the matter will have a proceed to full hearing and will not be subject of limitation of actions
act owing to the fact that the litigation might take a considerable length of time owing to the
protraction.
I have instructed Mr. Steve Gikeria to hand over all the original files pursuant to these
instructions.
Any legal aspects in your brief shall be handled by M/s Kwengu and Co. Advocates who I
shall pay independent of your fees of aforesaid.
I attach hereto a letter dated 18th August 2010 from the Director of Criminal Investigations
which kindly do a response for my signature and enclose herewith all the relevant
documents to enable you expedite.
Your fees will be secured by a lien on the property.
Yours faithfully,
HITENKUMAR RAJA
CC: Kwengu & Company Advocates”
16. The letter dated 6th October, 2010 states as follows;
“Neptune Credit Management Ltd,
Boffar Court, Kandara Road,
P.O Box 331-00606,
NAIROBI.
Attn: Mr. Bryan Yongo
Dear Sir,
RE: LR. NO. 18485 (I.R 64011) LORESHO, NAIROBI
“Do refer to the above property wherein I am 50% owner with Mr. Ashok Rupshi Shah and
which I paid a consideration of Kshs. 55,000,000/=.
The same is subject of ELC No. 312 of 2009 wherein a Mr. Jacob Juma is claiming to be the
owner of the same property and which allegation has been controverted by the
Commissioner of Lands Mr. Mabea vide his letter dated 1st October 1999 which I attach
hereto for your perusal and retention.
I hereby irrevocably instruct you to investigate the circumstances under which the said Mr.
Jacob Juma acquired the fake title and investigate any impropriety or any criminal aspects
committed by the said Jacob Juma to enable us furnish the police with such information.
Do also do a background check on the said Jacob Juma.
In the meantime, do get me an attorney to take over the conduct of this case from S.M.
Gekaria Advocate.
I enclose herewith all the pertinent documents.
Yours faithfully,
HITENKUMAR RAJA”
17. In response, the Plaintiff wrote as follows;
“Hiten Kumar Raja,
P.O Box 45404-00100,
NAIROBI.
Dear Sir,
RE: LR. NO. 18485 (I.R 64011) LORESHO
We acknowledge receipt of your letter dated 6th instant whose contents thereof we have
duly noted.
We shall aptly execute your instructions thereon save that your letter aforesaid has not
indicated the consideration for our services.
As discussed, kindly indicate the consideration in writing to enable us proceed further.
Yours faithfully,
Byran Yongo”
18. There is a letter dated 7th October, 2010 said to have clarified the issue of consideration
as follows;
“Neptune Credit Management Ltd,
Boffar Court, Kandara Road,
P.O Box 331-00606,
NAIROBI.
Attn: Mr. Bryan Yongo
Dear Sir,
RE: LR. NO. 18485 (I.R 64011) LORESHO, NAIROBI
Further to my letter dated 6th October 2010 regarding the above mentioned matter. I thank
you for accepting my instructions thereof and engaging the firm of Kwengu & Co. Advocates
to take over the conduct of this matter as per my instructions to yourselves.
In consideration of your services herein, I shall pay you 5% of the value of the property
based on my 50% ownership of the same equivalent to Kshs.300 million upon judgment of
the case owing to the fact that I am not in funds at the moment owing to my arrest and
incarceration over the murder of the driver of Mr. Ashok Rupshi Shah.
The security of your fees will be in lien on my share of 50% of the property when it becomes
due and payable upon judgment in ELC 312 of 2009 and no money will be payable till then.
Your brief will include investigating the fraud perpetrated by Mr. Juma and officials from
Ministry of Lands and ensure proper investigations are concluded herein and if necessary
prosecution of Mr. Juma and his accomplices and ensure out title deed and the conveyance
therefore are not tempered with.
Kindly endure Mr. Juma does not manipulate the case and ensure criminal action is
undertaken.
Any legal aspects in your brief shall be handled by M/s Kwengu & Co. Advocates who I shall
pay independent of your fees aforesaid.
I attach hereto a letter dated 18th August 2010 from the Director of Criminal Investigations
which kindly do a response for my signature.
These instructions are irrevocable.
Yours faithfully,
HITENKUMAR RAJA
CC: Kwengu & Company Advocate”
19. The Plaintiff maintains that it entered into a valid agreement with the Defendant. This
was to assist it in investigations and unravelling a fraud case perpetrated on the Loresho
Land by one Jacob Juma. It was to also to assist the Defendant with investigations that
would lead to exonerating him from the murder case.
20. What was promised to the Plaintiff as consideration was either 2 acres of the Loresho
Land or 300,000,000/= being its value.
(i) Whether there was an enforceable contract between the Plaintiff and the Defendant.
21. On face of it, this would appear to be a simple case of the Court enforcing a contract
between two parties. Unfortunately, for the Plaintiff the Defendant has resiled from it.
22. He states that this is a contract that would entail the transfer of an interest land. That it
fails to comply with Section 3 (3) of the Law of Contract cap 23 of the Laws of Kenya.
23. All dispositions or transactions relating to sale or transfer of interest in land are subject
to Section 3 (3) of the Land of Contract Act, which states as follows:
(3) No suit shall be brought upon a contract for the disposition of an interest in land
unless—
(a)the contract upon which the suit is founded—
(i)is in writing;
(ii)is signed by all the parties thereto; and
(b)the signature of each party signing has been attested by a witness who is present when
the contract was signed by such party:
24. Looking at the correspondence between the parties, they do constitute an agreement
signed by the parties. This would give rise to a contract with obligations between the two
parties corresponding. The Court does note the requirement of Section 3(3)(b) of the Law of
Contact Act, to have the signatures of the contracting parties witnessed. There was no
evidence led as to the attestation. A perusal of the letters does not indicate any form of
attestation. Hence the letters fall short of the requirements of Section 3(3)(b) of the Law of
Contract act. The Court refers to the decisions of the Court of Appeal in Njaramba & 3
others v Kamau [2024] KECA 1847 (KLR) and Weiss v Mwamzungu & 2 others [2024] KECA
1472 (KLR).
25. The Court of Appeal in Jane Catherine K. Karani v Daniel Mureithi Wachira [2014] eKLR,
held as follows;
“We are of the view that Section 3(3) was enacted to guide courts on the issue of
enforceability of contracts relating to disposition of interest in land. In Halsbury’s Laws of
England, 4th Edition (Reissue), Butterworths, 1995, Vol. 44(1), Para 1372 states: -
‘The object of all interpretation of a written instrument is to discover the intention of its
author as expressed in the instrument. Therefore the object in construing an Act is to
ascertain the intention of Parliament as expressed in the Act, considering it as a whole and
in its context.....’
It is clear from the reading of Section 3 (3) (b) of the Law of Contract Act that the signature
of each party is required to be attested by a witness who was present during execution of
the agreement. We have perused the agreement and find that it is only the appellant's
signature that was attested by her husband. This was clearly contrary to Section 3(3) of the
Law of Contract. We therefore, concur with the learned Judge's (Ong'undi, J.) findings that
the agreement was unenforceable.”
26. The Defendant also raised the issue that this was land that was jointly owned. Even in
the letter of instructions, it is noted that the Defendant owned 50 % shares of the Loresho
land. The other share was owned by Mr. Ashok Rupshi Shah. This Court reminds itself of the
fact that it has not seen the Title to this land. However, the parties conduct and evidence
left this Court in no doubt that this was suit was in relation to the ownership of titled land in
Loresho. That this land was jointly owned. The correspondence presented to this Court
states as much.
27. To this Court, the Defendant could not enter into a disposition for sale or transfer of
land without involving the co-owner or partner who is said to be one Ashok Rupshi Shah.
The instructions emanated from only one party being the Defendant. He does not deny that
he did not involve the Co-owner. There was no evidence led as to the nature of co-ownership
as to whether it is a joint ownership or ownership in common. There is reference to the
owners of the land as partners, but no evidence was led by either party as to the nature of
the partnership. The Court refers to the decision in Okoth v Nyaberi & another (Civil Appeal
248 of 2018) [2024] KECA 427 (KLR) (26 April 2024) (Judgment).
“Section 3 of the Law of Contract Act requires that all contracts for disposition of an
interest in land shall be in writing, shall be signed by all the parties thereto and each
signature must be attested. The agreement in contestation before the Judge was not signed
by the 2nd respondent. In the absence of the signature, the agreement offended the
provisions of the Law of Contract Act and was not enforceable by the appellant at all.
22.The Judge was therefore right to make the finding that the agreement was not
enforceable without the signature of the 2nd respondent.”
28. In the circumstances the Court is persuaded that the contract was not enforceable.
(ii) Whether the Defendant’s instructions to the Plaintiff were illegal, against
public policy and therefore unenforceable.
29. The Defendant maintains that the instructions were given when he was undergoing
through a lot of mental stress and duress. In cross-examination he stated as follows:
“I gave instructions while I was under a lot of duress. The circumstances I was in put me
under duress. I was in remand for 5 days. My land was being grabbed.”
30. The evidence before the Court is that the Defendant had been charged with the
attempted murder of his partner. This was in Kibera Criminal Case No. 3814 and 3692 of
2012. There was also a land case involving attempts to grab the Loresho Land. This was in
ELC No. 312 of 2009.
31. During the trial, this was painted as the background upon which, the Defendant as the
proverbial drowning man clutches at any straws and reeds signed the letters of instructions.
This was to save himself from a very dire situation.
32. The Defendant also states that the instructions were signed on the false promises laid
out by the Plaintiff that it could carry out investigations, that would assist the Defendant win
his cases. This is in relation to the murder case and the land fraud case.
33. The Defendant was acquitted of the murder case and won he land fraud case. He states
that the Plaintiff did not deliver on the investigations promised. The Court has not been
shown the nature of the investigation or assistance rendered by the Plaintiff that led to the
success of the Defendant in these two cases.
34. There is no evidence that the Plaintiff is police or a licensed private investigator. There
is no evidence that it is a former Police Detective, or a former Intelligence Officer, or
current or former member of the National Police Reservists (NPR). The Court was not told
what special skills, investigative or otherwise that it brought to bear that led to the success
of the case. PW. 1 did not lead any evidence as to these special skills or knowledge.
35. It is clear to this Court that even if the Plaintiff had obtained evidence or appeared as a
witness for the Defendant in the two cases, the Court would not enforce an agreement to
pay fees of Kshs.300,000.000/=. There would have been no professional justification for
such a pay-out to an ordinary citizen, including a corporation. Otherwise, it would be
contrary to public policy to pay a public-spirited witness to testify in Court. If such was to be
allowed, Court evidence and testimonies would become a matter of financial transactions.
The highest bidder would have all the witnesses singing his or her song. The impecunious
would stand alone in Court. The Court refers to Section 163 of the Evidence Act which
states as follows, (underlined emphasis ours);
163. Evidence to impeach the credit of a witness.
(1) The credit of a witness may be impeached in the following ways by the adverse party, or,
with the consent of the court, by the party who calls him—
(a) by the evidence of persons who testify that they, from their knowledge of the witness,
believe him to be unworthy of credit;
(b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has
received any other corrupt inducement to give his evidence;
36. The Court is also mindful that statute prohibits Advocates from champerty or charging
contingency fees. Advocates are Officers of the Court, who make a living out of legal
representation in the Court rooms and along the Court corridors. Yet, the Court would not
countenance an agreement of this nature entered between an Advocate and a Client. That
upon winning a murder case, the Lawyer would be paid Kshs.300,000,000/=, would be
charging based on a contingency or an outcome.
37. Section 46 of the Advocates Act states as follows (Underlined emphasis ours);
46. Invalid agreements
Nothing in this Act shall give validity to—
(a)any purchase by an advocate of the interest, or any part of the interest, of his client in
any suit or other contentious proceeding; or
(b)any agreement relieving any advocate from responsibility for professional negligence or
any other responsibility to which he would otherwise be subject as an advocate; or
(c)any agreement by which an advocate retained or employed to prosecute or defend any
suit or other contentious proceeding stipulates for payment only in the event of success in
such suit or proceeding or that the advocate shall be remunerated at different rates
according to the success or failure thereof; or
(d)any agreement by which an advocate agrees to accept, in respect of professional
business, any fee or other consideration which shall be less than the remuneration
prescribed by any order under section 44 respect of that business or more than twenty-five
per centum of the general damages recovered less the party and party costs as taxed or
agreed; or
(e)any disposition, contract, settlement, conveyance, delivery, dealing or transfer that is,
under the Insolvency Act (Cap. 53) void or ineffective against the Official Receiver or a
bankruptcy trustee or an interim trustee in proceedings under that Act.
38. The Court is not in any doubt that this agreement was contingent upon the Plaintiff
helping the Defendant win all his legal battles. As earlier stated, it is not clear which special
skills or knowledge or lobbying or strategies that the Plaintiff brought into the scene to save
the Defendant in distress.
39. The agreement also clearly smirks of champerty or at least some form of maintenance
seeing that the Plaintiff had no direct or peripheral interest in the litigation facing the
Defendant. It only stood to benefit from the outcome thereof. The benefit the Plaintiff stood
to gain from the litigation was Two (2) acres of land or Kshs.300,000,000/=. Yet the Plaintiff
had no direct interest in the pending litigation. This brings the agreement to the real of
champerty. It is therefore deemed void and unenforceable as it is against public policy. The
Court refers to Michael John Stanhope Duckworth v Pernille Kjaer Duckworth;Virginia
Wangui Shaw (Applicant) [2019] KEHC 3799 (KLR), Hatima Limited v Omwanza Ombati t/a
Nchogu Omwanza & Nyasimi Advocates [2021] KEHC 373 (KLR) and Ng'ani & Oluoch
Advocates v Mugo [2026] KEHC 429 (KLR).
40. If the Court was to allow the enforcement of such an agreement, it would open up a
pandora box that best remains shut. It would be opening up a portal from whence innocent
Kenyans would be preyed upon by all manner of people, (well-meaning or greedy
charlatans) while they are in distress. The motive would be financial reward. A “Mganga
awa Tanga” offering to cure stage IV cancer in return for 10 acres of land in Kisamis, in
Kajiado. A pastor or prophet offering to pray for the conception of a miracle baby for a
childless couple. This is in exchange of their Mercedes Benz Car, when the distressed lady
gets pregnant. A love match maker getting an Apartment in Lavington, in return of aligning
the stars of a shy, busy, wealthy businessmen, to the love of his life. a Soothsayer getting
50% of the winnings after predicting the winning lottery or Betika numbers. A “fixer” who
can make a Murder case disappear. A connected person demanding an acre of land at
Mang’u in Gatundu in return for getting all the children of a single mother, secure job in
Government. A public servant demanding half of the proceeds of a tender for influencing its
outcome and channeling it to a businessman. A Kenya Revenue Officer demanding half the
The Judiciary of
Kenya
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tax demands that they made to disappear and hence saved a tax payer from financial ruin.
There are many agreements that parties may enter into that the Court will not enforce, the
list is longer than the Courts arm. They will not be enforced because they are contrary to
public policy. It is for this reason that the Courts will not enforce a couple’s solemn promise
to love each other forever, though it is usually made in public and endorsed in a marriage
certificate. For some things, the Court will resoundingly say No!
(iii) Whether the Plaintiff is entitled to the reliefs prayed for in the Plaint.
41. The Court is not persuaded that it should grant any of the reliefs sought in this suit; in
view of the foregoing.
iv) What orders should be as to costs.
42. Costs are awarded at the discretion of this Court. Costs ordinarily follow the event. The
event in this case is that the Plaintiff has not proved its case to the required standard. Costs
are awarded to the Defendant.
Determination
43. The Plaintiff’s suit as against the Defendant is HEREBY dismissed.
44. The costs of the suit are awarded to the Defendant.
45. Interest on costs from the date of judgment until payment in full.
46. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 20TH DAY OF MAY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Mr. Ogado Plaintiff.
Mr. Wanyoike Defendant.
Ms. Susan Nzioka - Court Assistant
The Plaintiff by a Plaint dated 19.10.2022 seeks the following reliefs against the Defendant:
a) A DECLARATION THAT the (2) acres of LR No. 18485 (I.R 64011) be and is hereby
surrendered and transferred to the plaintiff.
b) A DECLARATION THAT the plaintiff has a right of lien against the property.
c) In the alternative to prayer (a) above the defendant do pay the plaintiff the sum of
Kshs.300,000,000/= being the current value of 2 acres of land in Loresho.
d) An order for specific performance of the terms, conditions and stipulations contained in
the letter dated 30th September 2010.
e) Any other orders this court deems fit and necessary to grant.
f) Costs of the suit and interest on (c) above at commercial rates.
Background facts
2. The Plaintiff filed a claim as against the Defendant by way of a Plaint dated 19th October,
2025. It sought the reliefs sought out herein above.
3. The claim is denied by the Defendant who filed a Statement of Defence dated 9.4.2024.
4. The salient facts of the case are that the Defendant is a co-registered owner of the
property known as LR. No. 18485 (I.R 64011) situated at Loresho in Nairobi (herein after
referred to as the Loresho land). He jointly owns the land with one Mr. Ashok Rupshi Shah.
5. The Defendant is said to have been the subject of an attempted murder case involving Mr.
Ashok Rupshi Shah or his driver. This was in Kibera Criminal Case No. 3814 and 3692 of
2012.
6. The Plaintiff’s claim is hinged on a series of letters. The main on is dated 30th September
2010. The same is said to constitute irrevocable instructions to the Plaintiff, made by the
Defendant. This was to investigate how Mr. Jacob Juma (now the late) acquired or was
issued with a title deed to LR. No. 18485 (I.R 64011), the Loresho land. The Plaintiff was
also to carry out investigations to exonerate the Defendant from the murder case facing
him. In consideration thereof, the Defendant was to allocate the Plaintiff 2 acres of the
Loresho land or pay out the equivalent value of the land.
7. The Defendant maintains that there were no such instructions or agreement arrived at.
That he was just but a co-owner of the land. Hence, he could not enter into an agreement for
the disposition of the land without the co-owner’s involvement. He also pleads that the
instructions he gave on 30th September, 2010 are illegal and against public policy and
therefore unenforceable. He pleads the particulars as follows;
PARTICULARS OF ILLEGALITY, BREACH OF PUBLIC POLICY AND
UNLAWFULLNESS
a) The alleged letter of instructions dated 30th September 2010 purported to instruct the
Plaintiff, a private corporate entity, to undertake investigations into attempted murder,
which is the preserve of the Kenya Police currently under the Directorate of Criminal
Investigations (DCI).
b) The alleged letter of instructions dated 30th September 2010 purported to instruct the
Plaintiff, a private corporate entity, to undertake investigations into matter fraud which is
also a preserve of the DCI.
c) The alleged letter of instructions dated 30th September 2010 purported to instruct the
Plaintiff, a private entity, to investigate another citizen, Jacob Juma, which is the preserve of
the Kenya Police, now National Police Service.
d) The alleged letter of instructions dated 30th September 2010 purported to confer police
powers and investigative powers to the Plaintiff, a non - Governmental Agency, to instruct
police how to undertake investigations and to correspond with the DCI.
e) The purported letter of instructions purported to empower the plaintiff, a private entity,
with power to gather evidence of commission of a criminal offence, which again is the
preserve of the DCI.
f) The purported letter of instructions amounted to nudum pactum in view of the fact that
the Plaintiff had a legal capacity to perform the alleged instructions and was neither
Gazetted as a Police Station nor as part of the investigative agencies.
g) The alleged instructions dated 30th September 20110 amounted to an illegal instruction
and one which was not possible to be performed by the Plaintiff or the Defendant.
h) The alleged instruction letter dated 30th September 210 amounted to instructing the
Plaintiff to undertake public duties entrusted to the DCI and the Inspector General of Police
and therefore, the same amount to an unenforceable activity and the alleged contract or
instruction is unlawful, illegal and unenforceable.
8. The matter proceeded for hearing partly before Mong’are J when the Plaintiffs witness
Mr. Brian Yongo testified. The Court recused itself from hearing this matter on 06.3.2025.
9. The matter was therefore allocated to this court which heard the evidence of the
Defendant.
10. Parties filed their submissions, which were highlighted by Counsel orally on 16.2.2026.
The Court is highly appreciative of the industry of Counsel in carrying out detailed research
and delivering detailed submissions. This has made the work of the Court so much easier.
11. Thereafter the Court did reserve this matter for judgment which was deferred severally.
This is highly regretted as it was caused by pressure of work which was explained to
Counsel for the parties.
Issues for Determination
12. The Court has considered the pleadings filed herein, the testimonies of the witnesses,
the evidence tendered, the written submissions. The Court has also taken into
consideration, the oral highlights by Counsel for the parties. The Court frames the following
issues for determination;
(i) Whether there was an enforceable contract between the Plaintiff and the Defendant.
(ii) Whether the Defendant’s instructions to the Plaintiff were illegal, against public policy
and therefore unenforceable.
(iii) Whether the Plaintiff is entitled to the reliefs prayed for in the Plaint.
(iv) What orders should be as to costs.
Analysis
13. The claim by the Plaintiff is that the Defendant gave it irrevocable instructions, to act.
That in consideration thereof, the Defendant was to transfer two acres of land to the
Plaintiff or in the alternative, the value thereof. That those instructions were accepted by
the Plaintiff. That all the ingredients of a contract being present, the Court is bound to give
effect to the terms of the contract.
14. Indeed, the business of the Courts is not to re-write contracts between parties. It is to
enforce and give life to the obligations flowing from such contracts. In the celebrated case
of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362
(KLR), the Court of Appeal held as follows:
“A Court of law cannot re-write a contract between the parties. The parties are bound by the
terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”
15. In the letter dated 30th September, 2010, the Defendant wrote as follows;
“Neptune Credit Management Ltd,
Boffar Court, Kandara Road,
P.O Box 331-00606,
Nairobi.
Attn: Mr. Bryan Yongo
Dear Sir,
RE: LR.NO. 18485 (I.R64011) LORESHO, NAIROBI
Further to my instruction to you of today. I hereby irrevocably instruct your firm to
investigate the circumstances under which Mr. Jacob Juma the 1st Defendant in ELC 312 of
2009 was issued with a title deed in respect to the suit property and launch investigations
which will enable me and my partner controvert the fraud and prove our case in court.
Do also ensure Mr. Jacob Juma does not access and/or take possession of the property.
You will also investigate the persons who attempted to murder my partner wherein I have
been maliciously charged in Kibera.
In consideration hereof, I shall allocate your company 2 acres of the suit property upon
conclusion and judgment being entered in our favour as prayed in the plaint in ELC 312 of
2019 or pay you equivalent of 2 acres at the prevailing value of the land at the time of
judgment and the same shall become due and payable upon date of judgement given that
the matter will have a proceed to full hearing and will not be subject of limitation of actions
act owing to the fact that the litigation might take a considerable length of time owing to the
protraction.
I have instructed Mr. Steve Gikeria to hand over all the original files pursuant to these
instructions.
Any legal aspects in your brief shall be handled by M/s Kwengu and Co. Advocates who I
shall pay independent of your fees of aforesaid.
I attach hereto a letter dated 18th August 2010 from the Director of Criminal Investigations
which kindly do a response for my signature and enclose herewith all the relevant
documents to enable you expedite.
Your fees will be secured by a lien on the property.
Yours faithfully,
HITENKUMAR RAJA
CC: Kwengu & Company Advocates”
16. The letter dated 6th October, 2010 states as follows;
“Neptune Credit Management Ltd,
Boffar Court, Kandara Road,
P.O Box 331-00606,
NAIROBI.
Attn: Mr. Bryan Yongo
Dear Sir,
RE: LR. NO. 18485 (I.R 64011) LORESHO, NAIROBI
“Do refer to the above property wherein I am 50% owner with Mr. Ashok Rupshi Shah and
which I paid a consideration of Kshs. 55,000,000/=.
The same is subject of ELC No. 312 of 2009 wherein a Mr. Jacob Juma is claiming to be the
owner of the same property and which allegation has been controverted by the
Commissioner of Lands Mr. Mabea vide his letter dated 1st October 1999 which I attach
hereto for your perusal and retention.
I hereby irrevocably instruct you to investigate the circumstances under which the said Mr.
Jacob Juma acquired the fake title and investigate any impropriety or any criminal aspects
committed by the said Jacob Juma to enable us furnish the police with such information.
Do also do a background check on the said Jacob Juma.
In the meantime, do get me an attorney to take over the conduct of this case from S.M.
Gekaria Advocate.
I enclose herewith all the pertinent documents.
Yours faithfully,
HITENKUMAR RAJA”
17. In response, the Plaintiff wrote as follows;
“Hiten Kumar Raja,
P.O Box 45404-00100,
NAIROBI.
Dear Sir,
RE: LR. NO. 18485 (I.R 64011) LORESHO
We acknowledge receipt of your letter dated 6th instant whose contents thereof we have
duly noted.
We shall aptly execute your instructions thereon save that your letter aforesaid has not
indicated the consideration for our services.
As discussed, kindly indicate the consideration in writing to enable us proceed further.
Yours faithfully,
Byran Yongo”
18. There is a letter dated 7th October, 2010 said to have clarified the issue of consideration
as follows;
“Neptune Credit Management Ltd,
Boffar Court, Kandara Road,
P.O Box 331-00606,
NAIROBI.
Attn: Mr. Bryan Yongo
Dear Sir,
RE: LR. NO. 18485 (I.R 64011) LORESHO, NAIROBI
Further to my letter dated 6th October 2010 regarding the above mentioned matter. I thank
you for accepting my instructions thereof and engaging the firm of Kwengu & Co. Advocates
to take over the conduct of this matter as per my instructions to yourselves.
In consideration of your services herein, I shall pay you 5% of the value of the property
based on my 50% ownership of the same equivalent to Kshs.300 million upon judgment of
the case owing to the fact that I am not in funds at the moment owing to my arrest and
incarceration over the murder of the driver of Mr. Ashok Rupshi Shah.
The security of your fees will be in lien on my share of 50% of the property when it becomes
due and payable upon judgment in ELC 312 of 2009 and no money will be payable till then.
Your brief will include investigating the fraud perpetrated by Mr. Juma and officials from
Ministry of Lands and ensure proper investigations are concluded herein and if necessary
prosecution of Mr. Juma and his accomplices and ensure out title deed and the conveyance
therefore are not tempered with.
Kindly endure Mr. Juma does not manipulate the case and ensure criminal action is
undertaken.
Any legal aspects in your brief shall be handled by M/s Kwengu & Co. Advocates who I shall
pay independent of your fees aforesaid.
I attach hereto a letter dated 18th August 2010 from the Director of Criminal Investigations
which kindly do a response for my signature.
These instructions are irrevocable.
Yours faithfully,
HITENKUMAR RAJA
CC: Kwengu & Company Advocate”
19. The Plaintiff maintains that it entered into a valid agreement with the Defendant. This
was to assist it in investigations and unravelling a fraud case perpetrated on the Loresho
Land by one Jacob Juma. It was to also to assist the Defendant with investigations that
would lead to exonerating him from the murder case.
20. What was promised to the Plaintiff as consideration was either 2 acres of the Loresho
Land or 300,000,000/= being its value.
(i) Whether there was an enforceable contract between the Plaintiff and the Defendant.
21. On face of it, this would appear to be a simple case of the Court enforcing a contract
between two parties. Unfortunately, for the Plaintiff the Defendant has resiled from it.
22. He states that this is a contract that would entail the transfer of an interest land. That it
fails to comply with Section 3 (3) of the Law of Contract cap 23 of the Laws of Kenya.
23. All dispositions or transactions relating to sale or transfer of interest in land are subject
to Section 3 (3) of the Land of Contract Act, which states as follows:
(3) No suit shall be brought upon a contract for the disposition of an interest in land
unless—
(a)the contract upon which the suit is founded—
(i)is in writing;
(ii)is signed by all the parties thereto; and
(b)the signature of each party signing has been attested by a witness who is present when
the contract was signed by such party:
24. Looking at the correspondence between the parties, they do constitute an agreement
signed by the parties. This would give rise to a contract with obligations between the two
parties corresponding. The Court does note the requirement of Section 3(3)(b) of the Law of
Contact Act, to have the signatures of the contracting parties witnessed. There was no
evidence led as to the attestation. A perusal of the letters does not indicate any form of
attestation. Hence the letters fall short of the requirements of Section 3(3)(b) of the Law of
Contract act. The Court refers to the decisions of the Court of Appeal in Njaramba & 3
others v Kamau [2024] KECA 1847 (KLR) and Weiss v Mwamzungu & 2 others [2024] KECA
1472 (KLR).
25. The Court of Appeal in Jane Catherine K. Karani v Daniel Mureithi Wachira [2014] eKLR,
held as follows;
“We are of the view that Section 3(3) was enacted to guide courts on the issue of
enforceability of contracts relating to disposition of interest in land. In Halsbury’s Laws of
England, 4th Edition (Reissue), Butterworths, 1995, Vol. 44(1), Para 1372 states: -
‘The object of all interpretation of a written instrument is to discover the intention of its
author as expressed in the instrument. Therefore the object in construing an Act is to
ascertain the intention of Parliament as expressed in the Act, considering it as a whole and
in its context.....’
It is clear from the reading of Section 3 (3) (b) of the Law of Contract Act that the signature
of each party is required to be attested by a witness who was present during execution of
the agreement. We have perused the agreement and find that it is only the appellant's
signature that was attested by her husband. This was clearly contrary to Section 3(3) of the
Law of Contract. We therefore, concur with the learned Judge's (Ong'undi, J.) findings that
the agreement was unenforceable.”
26. The Defendant also raised the issue that this was land that was jointly owned. Even in
the letter of instructions, it is noted that the Defendant owned 50 % shares of the Loresho
land. The other share was owned by Mr. Ashok Rupshi Shah. This Court reminds itself of the
fact that it has not seen the Title to this land. However, the parties conduct and evidence
left this Court in no doubt that this was suit was in relation to the ownership of titled land in
Loresho. That this land was jointly owned. The correspondence presented to this Court
states as much.
27. To this Court, the Defendant could not enter into a disposition for sale or transfer of
land without involving the co-owner or partner who is said to be one Ashok Rupshi Shah.
The instructions emanated from only one party being the Defendant. He does not deny that
he did not involve the Co-owner. There was no evidence led as to the nature of co-ownership
as to whether it is a joint ownership or ownership in common. There is reference to the
owners of the land as partners, but no evidence was led by either party as to the nature of
the partnership. The Court refers to the decision in Okoth v Nyaberi & another (Civil Appeal
248 of 2018) [2024] KECA 427 (KLR) (26 April 2024) (Judgment).
“Section 3 of the Law of Contract Act requires that all contracts for disposition of an
interest in land shall be in writing, shall be signed by all the parties thereto and each
signature must be attested. The agreement in contestation before the Judge was not signed
by the 2nd respondent. In the absence of the signature, the agreement offended the
provisions of the Law of Contract Act and was not enforceable by the appellant at all.
22.The Judge was therefore right to make the finding that the agreement was not
enforceable without the signature of the 2nd respondent.”
28. In the circumstances the Court is persuaded that the contract was not enforceable.
(ii) Whether the Defendant’s instructions to the Plaintiff were illegal, against
public policy and therefore unenforceable.
29. The Defendant maintains that the instructions were given when he was undergoing
through a lot of mental stress and duress. In cross-examination he stated as follows:
“I gave instructions while I was under a lot of duress. The circumstances I was in put me
under duress. I was in remand for 5 days. My land was being grabbed.”
30. The evidence before the Court is that the Defendant had been charged with the
attempted murder of his partner. This was in Kibera Criminal Case No. 3814 and 3692 of
2012. There was also a land case involving attempts to grab the Loresho Land. This was in
ELC No. 312 of 2009.
31. During the trial, this was painted as the background upon which, the Defendant as the
proverbial drowning man clutches at any straws and reeds signed the letters of instructions.
This was to save himself from a very dire situation.
32. The Defendant also states that the instructions were signed on the false promises laid
out by the Plaintiff that it could carry out investigations, that would assist the Defendant win
his cases. This is in relation to the murder case and the land fraud case.
33. The Defendant was acquitted of the murder case and won he land fraud case. He states
that the Plaintiff did not deliver on the investigations promised. The Court has not been
shown the nature of the investigation or assistance rendered by the Plaintiff that led to the
success of the Defendant in these two cases.
34. There is no evidence that the Plaintiff is police or a licensed private investigator. There
is no evidence that it is a former Police Detective, or a former Intelligence Officer, or
current or former member of the National Police Reservists (NPR). The Court was not told
what special skills, investigative or otherwise that it brought to bear that led to the success
of the case. PW. 1 did not lead any evidence as to these special skills or knowledge.
35. It is clear to this Court that even if the Plaintiff had obtained evidence or appeared as a
witness for the Defendant in the two cases, the Court would not enforce an agreement to
pay fees of Kshs.300,000.000/=. There would have been no professional justification for
such a pay-out to an ordinary citizen, including a corporation. Otherwise, it would be
contrary to public policy to pay a public-spirited witness to testify in Court. If such was to be
allowed, Court evidence and testimonies would become a matter of financial transactions.
The highest bidder would have all the witnesses singing his or her song. The impecunious
would stand alone in Court. The Court refers to Section 163 of the Evidence Act which
states as follows, (underlined emphasis ours);
163. Evidence to impeach the credit of a witness.
(1) The credit of a witness may be impeached in the following ways by the adverse party, or,
with the consent of the court, by the party who calls him—
(a) by the evidence of persons who testify that they, from their knowledge of the witness,
believe him to be unworthy of credit;
(b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has
received any other corrupt inducement to give his evidence;
36. The Court is also mindful that statute prohibits Advocates from champerty or charging
contingency fees. Advocates are Officers of the Court, who make a living out of legal
representation in the Court rooms and along the Court corridors. Yet, the Court would not
countenance an agreement of this nature entered between an Advocate and a Client. That
upon winning a murder case, the Lawyer would be paid Kshs.300,000,000/=, would be
charging based on a contingency or an outcome.
37. Section 46 of the Advocates Act states as follows (Underlined emphasis ours);
46. Invalid agreements
Nothing in this Act shall give validity to—
(a)any purchase by an advocate of the interest, or any part of the interest, of his client in
any suit or other contentious proceeding; or
(b)any agreement relieving any advocate from responsibility for professional negligence or
any other responsibility to which he would otherwise be subject as an advocate; or
(c)any agreement by which an advocate retained or employed to prosecute or defend any
suit or other contentious proceeding stipulates for payment only in the event of success in
such suit or proceeding or that the advocate shall be remunerated at different rates
according to the success or failure thereof; or
(d)any agreement by which an advocate agrees to accept, in respect of professional
business, any fee or other consideration which shall be less than the remuneration
prescribed by any order under section 44 respect of that business or more than twenty-five
per centum of the general damages recovered less the party and party costs as taxed or
agreed; or
(e)any disposition, contract, settlement, conveyance, delivery, dealing or transfer that is,
under the Insolvency Act (Cap. 53) void or ineffective against the Official Receiver or a
bankruptcy trustee or an interim trustee in proceedings under that Act.
38. The Court is not in any doubt that this agreement was contingent upon the Plaintiff
helping the Defendant win all his legal battles. As earlier stated, it is not clear which special
skills or knowledge or lobbying or strategies that the Plaintiff brought into the scene to save
the Defendant in distress.
39. The agreement also clearly smirks of champerty or at least some form of maintenance
seeing that the Plaintiff had no direct or peripheral interest in the litigation facing the
Defendant. It only stood to benefit from the outcome thereof. The benefit the Plaintiff stood
to gain from the litigation was Two (2) acres of land or Kshs.300,000,000/=. Yet the Plaintiff
had no direct interest in the pending litigation. This brings the agreement to the real of
champerty. It is therefore deemed void and unenforceable as it is against public policy. The
Court refers to Michael John Stanhope Duckworth v Pernille Kjaer Duckworth;Virginia
Wangui Shaw (Applicant) [2019] KEHC 3799 (KLR), Hatima Limited v Omwanza Ombati t/a
Nchogu Omwanza & Nyasimi Advocates [2021] KEHC 373 (KLR) and Ng'ani & Oluoch
Advocates v Mugo [2026] KEHC 429 (KLR).
40. If the Court was to allow the enforcement of such an agreement, it would open up a
pandora box that best remains shut. It would be opening up a portal from whence innocent
Kenyans would be preyed upon by all manner of people, (well-meaning or greedy
charlatans) while they are in distress. The motive would be financial reward. A “Mganga
awa Tanga” offering to cure stage IV cancer in return for 10 acres of land in Kisamis, in
Kajiado. A pastor or prophet offering to pray for the conception of a miracle baby for a
childless couple. This is in exchange of their Mercedes Benz Car, when the distressed lady
gets pregnant. A love match maker getting an Apartment in Lavington, in return of aligning
the stars of a shy, busy, wealthy businessmen, to the love of his life. a Soothsayer getting
50% of the winnings after predicting the winning lottery or Betika numbers. A “fixer” who
can make a Murder case disappear. A connected person demanding an acre of land at
Mang’u in Gatundu in return for getting all the children of a single mother, secure job in
Government. A public servant demanding half of the proceeds of a tender for influencing its
outcome and channeling it to a businessman. A Kenya Revenue Officer demanding half the
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tax demands that they made to disappear and hence saved a tax payer from financial ruin.
There are many agreements that parties may enter into that the Court will not enforce, the
list is longer than the Courts arm. They will not be enforced because they are contrary to
public policy. It is for this reason that the Courts will not enforce a couple’s solemn promise
to love each other forever, though it is usually made in public and endorsed in a marriage
certificate. For some things, the Court will resoundingly say No!
(iii) Whether the Plaintiff is entitled to the reliefs prayed for in the Plaint.
41. The Court is not persuaded that it should grant any of the reliefs sought in this suit; in
view of the foregoing.
iv) What orders should be as to costs.
42. Costs are awarded at the discretion of this Court. Costs ordinarily follow the event. The
event in this case is that the Plaintiff has not proved its case to the required standard. Costs
are awarded to the Defendant.
Determination
43. The Plaintiff’s suit as against the Defendant is HEREBY dismissed.
44. The costs of the suit are awarded to the Defendant.
45. Interest on costs from the date of judgment until payment in full.
46. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 20TH DAY OF MAY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Mr. Ogado Plaintiff.
Mr. Wanyoike Defendant.
Ms. Susan Nzioka - Court Assistant