JUDGEMENT
1. The Plaintiff file a Plaint dated 30.04.2024 (hereinafter referred to as “the present suit” ) seeking the following Orders against the 1 st , 2 nd and 3 rd Defendants herein; -
A. A DECLARATION THAT THE PLAINTIFF IS THE LEGAL PROPRIETOR OF LAND PARCEL NUMBER ELDORET MUNICIPALITY BLOCK 12/423.
B. A DECLARATION THAT THE TRANSFER OF LAND PARCEL NUMBER ELDORET MUNICIPALITY BLOCK 12/423 EFFECTED ON 22 ND FEBRUARY, 2022 AND ISSUANCE OF A CERTIFICATE OF LEASE IN FAVOR OF THE 1 ST DEFENDANT IS IRREGULAR AND/OR ILLEGAL HENCE A NULLITY.
C. REVOCATION OF THE TRANSFER OF L.R. NO. ELDORET MUNICIPALITY BLOCK 12/423 IN FAVOR OF THE 1 ST DEFENDANT AND CANCELLATION OF THE CERTIFICATE OF LEASE ISSUED THERETO.
D. REINSTATEMENT OF THE PLAINTIFF’S TITLE WITH RESPECT TO L.R. NO. ELDORET MUNICIPALITY BLOCK 12/423 AND ISSUANCE OF A CERTIFICATE OF LEASE UNDER THE PLAINTIFF’ NAME.
E. A PERMANENT INJUNCTION RESTRAINING THE 1 ST DEFENDANT AND HIS AGENTS OR SERVANTS FROM TRESPASSING ONTO OR IN ANY OTHER WAY INTERFERING WITH THE PLAINTIFF’S OWNERSHIP, POSSESSION, OCCUPATION AND USE OF L.R. NO. ELDORET MUNICIPALITY BLOCK 12/423.
F. ANY OTHER RELIEF AS THE HONOURABLE COURT MAY DEEM JUST AND FAIR TO GRANT.
G. COSTS OF THE SUIT.
2. The facts in support of the prayers sought in the present suit were outlined as follows; -
i. The Plaintiff was the lawful allottee of the property currently known as LR.NO. ELDORET MUNICIPALITY BLOCK 12/423 (hereinafter referred to as “the suit property” ).
ii. The Plaintiff’s ownership of the suit property was based on a Letter of Allotment dated 30.01.1991 of which all terms and conditions therein were fully complied with.
iii. Thereafter, the Plaintiff did commence the process of procuring and executing the formal Lease issuance of the Certificate of Lease in her name.
iv. Due to the Plaintiff’s busy schedule and the unfamiliarity with the process of procuring the formal Lease for execution and registration, she did seek the assistance of the 1 st Defendant who was indeed familiar with this process.
v. The 1 st Defendant indeed did accept the assignment given to him by the Plaintiff and was handed over all the appropriate documents to facilitate the process of procuring a formal Lease, registering the same and acquiring the Certificate of Lease thereof.
vi. However, on or about April 2024, the Plaintiff did learn that the 1 st Defendant has taken possession of the suit property herein and dealing with the same as though he was the lawful owner of the same.
vii. It is based on these actions by the 1 st Defendant that the Plaintiff did undertake an official search of the suit property to verify the status of its registration.
viii. The outcome of the official search on the suit property did indicate that the Plaintiff had actually been registered as the lawful owner of the suit property on the 09.02.2021 and thereafter, the same was transferred to the 1 st Defendant on the 22.02.2022.
ix. The Plaintiff’s position is that the purported transfer of the suit property from herself to the 1 st Defendant was undertaken irregularly and without her consent as there was no valid Agreement For Sale, an Application For Consent to Sale and/or the formal Transfer Form executed by her to alienate the same in favour of the 1 st Defendant.
x. The Plaintiff therefore did plead that the 1 st Defendant’s actions of transferring the suit property from the Plaintiff was contrary to her instructions and were for his own self-enrichment to her detriment.
xi. The Plaintiff did seek the Court to cancel the purported Transfer Form registered by the 1 st Defendant alienating the suit property in his favour as well as all the supporting documents therein and the 2 nd Defendant be directed to rectify the Register of the suit property by deleting the name of the 1 st Defendant and retaining the name of the Plaintiff as the legitimate and lawful owner of the suit property.
xii. The Plaintiff did further seek for a Permanent Injunction prohibiting the 1 st Defendant from interfering, dealing with and/or in whatsoever manner acting on the suit property contrary to the ownership rights of the Plaintiff herein.
3. The present suit was duly served on the 1 st , 2 nd and 3 rd Defendants herein.
4. The 1 st Defendant did oppose the present suit by filing a Statement of Defence and Counter-Claim dated 24.09.2024.
5. In the 1 st Defendant’s Statement of Defence dated 24.09.2024, the following facts were pleaded in opposition to the present suit; -
i. First and foremost, the 1 st Defendants did deny the facts pleaded by the Plaintiff in the present suit in totality.
ii. The 1 st Defendant did state that he was the lawful registered owner of the suit property as provided for in the Register held by the 2 nd Defendant herein.
iii. The 1 st Defendant did further plead that he was the person in occupation and use of the suit property as the lawful registered owner of the same.
iv. According to the 1 st Defendant, there indeed does exist a valid Agreement for Sale between the Plaintiff and himself with all the relevant completion documents to facilitate the alienation of the same to his name.
v. The 1 st Defendant therefore did plead that the facts pleaded in the present suit were a misrepresentation of the correct facts and the orders sought therein should therefore be dismissed with costs.
6. In addition to the 1 st Defendant’s Statement of Defence, there was a Counter-Claim dated 24.09.2024 against the Plaintiff herein seeking the following Orders; -
A. A DECLARATION THAT THE PLAINTIFF BY COUNTER-CLAIM IS THE LAWFUL OWNER OF ELDORET MUNICIPALITY BLOCK 12/423.
B. A PERMANENT INJUNCTION RESTRAINING THE DEFENDANT AND HER AGENTS OR SERVANTS FROM TRESPASSING OR IN ANY OTHER WAY FROM INTERFERING WITH THE PLAINTIFF’S OWNERSHIP, POSSESSION AND USE OF THE LAND REFERENCE NUMBER ELDORET MUNICIPALITY BLOCK 12/423.
C. MESNE PROFITS.
D. COSTS OF THE SUIT.
E. ANY OTHER RELIEF THAT THIS HONOURABLE COURT MAY DEEM JUST TO GRANT.
7. The facts in support of the prayers sought in the Counter-Claim were as follows; -
i. The 1 st Defendant did reiterate the facts pleaded in his Statement of Defence in their entirety.
ii. According to the 1 st Defendant, the Plaintiff did offer to sale the suit property to the 1 st Defendant which offer was duly accepted and an Agreement for Sale dated 07.06.2016 was executed thereof.
iii. The 1 st Defendant did plead that the consideration in the Agreement for Sale dated 07.06.2016 was Kenya Shillings Eight Million (KShs. 8,000,000/-) which was fully settled.
iv. Upon full settlement of the Purchase Price in the Agreement for Sale dated 07.06.2016 by the 1 st Defendant, the Plaintiff herein did voluntarily execute all the completion documents including the Application for Consent to Transfer and the Transfer Forms ready for registration.
v. The 1 st Defendant did confirm that the completion documents duly executed by the Plaintiff relating to the suit property were duly and lawful registered in the 2 nd Respondent’s offices and a Certificate of Lease in the name of the 1 st Defendant issued accordingly.
vi. Based on the Certificate of Lease issued in favour of the 1 st Defendant, he did take possession of the suit property and in fact has undertaken a number of developments on the same.
vii. Despite the suit property now being vested with the 1 st Defendant, the Plaintiff herein did continue demanding unjustified payments over the same and even did threaten to take back the ownership of the same if the 1 st Defendant did not comply.
viii. In essence, the 1 st Defendant did plead that the Counter-Claim herein be allowed and the Plaintiff’s case be dismissed.
8. The 2 nd and 3 rd Defendants also did oppose the present suit through a Joint Statement of Defence dated 02.07.2024.
9. In the Joint Statement of Defence dated 02.07.2024, the present suit was opposed on the following grounds; -
i) The 2 nd and 3 rd Defendants did deny the allegations contained in the present suit in totality.
ii) The 2 nd and 3 rd Defendants did plead that according to the Register relating to the suit property, the original owner of the property was the Plaintiff who then did transfer the same to the 1 st Defendant on the 22.02.2022 and the relevant Certificate of Lease was duly issued.
iii) The 2 nd and 3 rd Defendants did admit that the Letter of Allotment relating to the suit property was issued in favour of the Plaintiff who then did comply with all the terms and conditions therein warranting the issuance of a Lease in her name and registration of the suit property in her name.
iv) The 2 nd and 3 rd Defendants did state that the transfer of the suit property from the Plaintiff to the 1 st Defendant was lawful done based on the documents that were presented in the offices of the 2 nd Defendant for registration.
v) In essence, the 2 nd and 3 rd Defendants did deny participating in any form of fraud and/or misrepresentation as alleged by the Plaintiff in the present suit.
vi) In conclusion, the 2 nd and 3 rd Defendants did urge the Court to find that the Plaintiff’s suit lacks merit and to dismiss the same with costs.
10. The 1 st Defendant’s Statement of Defence and Counter-Claim was duly served on the Plaintiff.
11. The Plaintiff on the other hand did file a Reply to Defence and a Defence to the Counter-Claim dated 20.06.2025.
12. In the Reply to Defence to the 1 st Defendant’s Statement of Defence, the Plaintiff did plead the following facts; -
i) The Statement of Defence by the 1 st Defendant was a mere denial and did not raise any triable issues therein.
ii) The Plaintiff did further specifically deny the existence of any Agreement for Sale over the suit property to the 1 st Defendant herein and put him to strict proof thereof.
iii) In essence, the Plaintiff did plead that the 1 st Respondent’s registration as the owner of the suit property and his subsequent occupation of the same was unlawful and illegal.
iv) The Plaintiff did state that the 1 st Respondent’s actions of transferring the suit property from her name to his name was a product of a fraudulent scheme and therefore null and void.
v) In other words, the Plaintiff did urge the Court to dismiss the 1 st Defendant’s Statement of Defence.
13. As regards the Counter-Claim, the Plaintiff did file a Defence to the Counter Claim dated 20.06.2025 based on the following facts; -
i) The Plaintiff did deny the facts pleaded in the 1 st Defendant’s Counter-Claim in total.
ii) To begin with, the Plaintiff did state that the suit property herein was not in her name until the year 2021 as demonstrated in the Official Search procured in 2022.
iii) Secondly, the Plaintiff had not made contact with the 1 st Defendant in the year 2016.
iv) Consequently, the allegation that there was an Agreement for Sale made over the suit property between the Plaintiff and the 1 st Defendant was not true.
v) The Plaintiff did further deny knowledge of the Advocate known as E.K ROTICH NYONGIO who is purported to have witnessed the signatures on the Agreement for Sale and did further deny issuing any instructions to any other advocate to prepare an Agreement for Sale in relation to the suit property.
vi) In essence, the Plaintiff did deny receipt of any monies from the 1 st Defendant as consideration of the suit property and in particular the sum of Kenya Shillings Eight Million (KShs 8,000,000/-) as alleged by the 1 st Defendant.
vii) Further to the above, the Plaintiff did deny either lawfully and intentionally executing any Transfer Forms or any other documents of transfer over the suit property in favour of the 1 st Defendant.
viii) As regards possession of the suit property, the Plaintiff did deny that the 1 st Defendant was in occupation of the same and did plead that she was the one in occupation and use of the suit property.
ix) The Plaintiff did reiterate that her instructions to the 1 st Defendant was to assist her procure the formal Lease of the suit property and upon execution, register the same for purposes of procuring the Certificate of Lease therein.
x) In conclusion, the Plaintiff did seek the Court to dismiss the 1 st Defendant’s Counter-Claim with costs and allow the present suit.
14. The Plaintiff did not file any Reply to Defence to the 2 nd and 3 rd Defendants Statement of Defence within the prescribed time in law.
15. The 1 st Defendant was duly served with the Reply to Defence and Defence to Counter-Claim by the Plaintiff but there was no Reply to the Defence on the Counter-Claim that was filed.
16. As such, pleadings were duly closed and the present suit was set down for hearing.
PLAINTIFF’S TESTIMONIES & DOCUMENTARY EVIDENCE
17. The Plaintiff herein was called as the first witness and she was marked as PW 1.
18. The Plaintiff did introduce herself as a senior citizen having played different roles in public service.
19. The Plaintiff did state that she resides both in Nairobi and Tran Nzoia Counties.
20. The Plaintiff then did inform the Court that she had prepared, signed and filed a witness statement dated 30.04.2024 of which she did adopt as her evidence in chief.
21. Thereafter, the Plaintiff did produce the following documents in support of her evidence in chief; -
PW 1 EXHIBIT 1 – A Copy of a Letter of Allotment dated 30.01.1991 in relation to Industrial Plot contained in attached Plan No. 31710/XXI/24 in favor of the Plaintiff.
PW1 EXHIBIT 2 (a, b & c) – Copies of receipts No. 5/07/91, 22/1/93 and 02/04/93 from the Commissioner of Land to the Plaintiff.
PW1 EXHIBIT 3 – A Copy of an Official Search of Eldoret Municipality Block 12/423 dated 23/06/2023
PW1 EXHIBIT 4 – A Certified Copy of the White card of the suit property dated 11/04/2024.
PW1 EXHIBIT 5 – copy of a Demand letter dated 04/04/2024 from the Plaintiff counsel to the 1 st Defendant.
22. In concluding her evidence in chief, the Plaintiff did seek the Court to allow the present suit and grant prayers sought therein.
23. On cross-examination by the 1 st Defendant, the Plaintiff did admit being familiar with the 1 st Defendant.
24. The Plaintiff did further confirm that the 1 st Defendant was the one currently registered as the owner of the suit property.
25. However, the Plaintiff did deny executing any documents to alienate the suit property to the 1 st Defendant and in particular the Application for Consent to Transfer and the formal Transfer Form therein.
26. The Plaintiff did confirm that the 1 st Defendant had presented a number of documents for her execution which were to facilitate the procurement of the formal Lease and registration of the same in her name and not transfer the suit property to the 1 st Defendant.
27. The Plaintiff did concede that her plan was to dispose of the suit property once she had acquired the Certificate of Lease.
28. Consequently, the 1 st Defendant did advance her a friendly loan of Kenya Shillings One Million (KShs.1,000,000/-) which would be refunded once the suit property had been disposed of.
29. The Plaintiff did further inform the Court that the intended consideration of the suit property at the time of sale had been agreed with the 1 st Defendant.
30. On further cross-examination by the 2 nd and 3 rd Defendants, the Plaintiff did reiterate that the sum of Kenya Shillings One Million (KShs.1,000,000/-) received from the 1 st Defendant was a friendly loan and not a portion of any purchase price relating to the suit property.
31. The Plaintiff did inform the Court that the sum of Kenya Shillings One Million (KShs.1,000,000/-) was received on the 25.04.2022 and not when the purported Agreement For Sale was executed.
32. On being referred to the 2 nd and 3 rd Defendants List of Documents, the Plaintiff did testify that she was not familiar with the Transfer Forms and the Consent To Transfer that were held by the 2 nd Defendant’s office.
33. On being referred to the Agreement For Sale in the 1 st Defendant’s List of Documents, the Plaintiff did admit that the 2 nd Defendant was not a party to the same.
34. On being referred to the Transfer Form relating to the suit property held by the 2 nd Defendant, the Plaintiff did confirm that it bears her signature and photograph thereon.
35. The Plaintiff did confirm that the signature and photographs of the 1 st Defendant were on the Transfer Form held by the 2 nd Defendant.
36. On being referred to the Application For Consent To Transfer held by the 2 nd Defendant, the Plaintiff did deny executing such a document in favour of the 1 st Defendant as was shown on the same.
37. The Plaintiff did further testify that although the Letter of Consent held by the 2 nd Defendant was over the suit property, the same had been acquired irregularly and/or unprocedurally.
38. The Plaintiff did admit that based on the documents presented by the 1 st Defendant to the 2 nd Defendant for registration, the 2 nd Defendant was not at fault to accept the same and register them.
39. The Plaintiff did reiterate that she had not made contact with the 1 st Defendant in the year 2016 and therefore there was no way she would have executed the Agreement For Sale dated 07.06.2016 regarding the suit property herein.
40. Further to the above, the Plaintiff did deny receiving the sum of Kenya Shillings Eight Million (KShs.8,000,000/-) from the 1 st Defendant in the year 2016 as consideration of the suit property.
41. The Plaintiff did aver that the sum of Kenya Shillings One Million (KShs.1,000,000/-) owing to the 1 st Defendant as a friendly loan had not been paid back to date.
42. On re-examination, the Plaintiff did testify that she had never applied and/or attended any Land Control Board meeting for purposes of processing the Letter of Consent to Transfer the suit property to the 1 st Defendant.
43. Similarly, the Plaintiff did testify that she had never executed any Transfer Form relating to the suit property in favour of the 1 st Defendant.
44. Nevertheless, the Plaintiff did admit that the 1 st Defendant had presented a number of documents for execution relating to the procurement of the Formal Lease and its registration only in the year 2022.
45. On being referred to the Agreement For Sale produced by the 1 st Defendant, the Plaintiff did point out that the suit property therein was LR.NO.ELDORET BLOCK 12 (XII)/423 and not the suit property herein.
46. The Plaintiff did further aver that according to the Agreement For Sale, the full purchase price of Kenya Shillings Eight Million (KShs.8,000,000/-) was to be paid between June 2016 and December 2016.
47. However, at this particular time, the Plaintiff and the 1 st Defendant had not known each other and there is no proof of any payment of the same.
48. The Plaintiff did inform the court that the only monies she did receive from the 1 st Defendant was the sum of Kenya Shillings One Million (KShs.1,000,000/-) on the 25.04.2022 which was a friendly loan advanced to her by the 1 st Defendant.
49. In concluding her re-examination, the Plaintiff did confirm that the suit property was registered in the name of the 1 st Defendant on 22.02.2022 and the transfer of Kenya Shillings One Million (KShs.1,000,000/-) was received on the 25.04.2022.
50. At the end of this re-examination, the Plaintiff was duly discharged from the witness box.
51. The Plaintiff’s second witness was one MR. AMGE KIPROP KIPTUI who was marked as PW2.
52. PW 2 did introduce himself as a farmer by occupation and a resident of both Nairobi and Trans Nzoia Counties.
53. PW 2 did inform the Court that he recorded, signed and filed a Witness Statement dated 05.12.2025 which he did adopt as his evidence in chief.
54. PW 2 did confirm to the Court that he was familiar with both the Plaintiff and the 1 st Defendant herein.
55. In ending his evidence in chief, PW 2 did disclose that he was the nephew to the Plaintiff and the 1 st Defendant had been his friend for over a period of Twenty (20) years.
56. On cross-examination by the 1 st Defendant, PW 2 did testify that he was the one who had introduced the 1 st Defendant to the Plaintiff herein.
57. PW 2 did further confirm that currently the suit property was registered in the name of the 1 st Defendant.
58. PW 2 however did aver that he was not aware of any Agreement for Sale between the Plaintiff and the 1 st Defendant relating to the suit property.
59. Consequently, PW 2 did deny any knowledge of any transfer documents that were signed by the Plaintiff relating to the suit property in favour of the 1 st Defendant herein.
60. PW 2 did insist that if the 1 st Defendant’s registration as the owner of the suit property was to be upheld, then the correct procedures must be followed.
61. Nevertheless, PW 2 did confirm that the 1 st Defendant had informed him that he was in possession and/or occupation of the suit property.
62. On further cross-examination by the 2 nd and 3 rd Defendants, PW 2 did indicate that he was not aware of any Sale transaction between the Plaintiff and the 1 st Defendant in regards to the suit property.
63. According to PW 2 knowledge, the 1 st Defendant was tasked to assist the Plaintiff procure her formal Lease and ensure the registration of the suit property in her favour.
64. PW 2 did deny any knowledge of the existence of an Agreement for Sale between the Plaintiff and the 1 st Defendant over the suit property or any consideration paid for the same.
65. In concluding his cross-examination, PW 2 did testify that he had visited the suit property in the year 2025 but at time, the 1 st Defendant was not in possession or use of the suit property and there were no structures belonging to the 1 st Defendant on the ground.
66. On re-examination, PW 2 did confirm that he had introduced the Plaintiff to the 1 st Defendant in the year 2020.
67. PW 2 did reiterate that the main duty of 1 st Defendant was to assist the Plaintiff to procure the formal Lease of the suit property and have the same registered in her name so that the Certificate of Lease could be issued.
68. In concluding his re-examination, PW 2 did categorically testify that the Plaintiff and the 1 st Defendant did not know each other before the year 2020.
69. At the end of the re-examination, PW2 was discharged and the Plaintiff thereafter did close her case.
1 ST DEFENDANT’S TESTIMONIES & DOCUMENTARY EVIDENCE
70. The 1 st Defendant was the first witness to testify and was marked as DW 1.
71. The 1 st Defendant did introduce himself as a businessman by occupation and a resident of both Nairobi and Uasin Gishu Counties.
72. The 1 st Defendant did inform the Court that he had recorded and filed a witness statement dated 07.04.2025 of which he did adopt as his evidence in chief.
73. In support of his evidence in Chief, the 1 st Defendant did produce the following documents; -
DW1 EXHIBIT 1 – A Copy of a Certificate of Lease dated 22.02.2022 for Eldoret Municipality Block 12/423 in favor of the 1 st Defendant.
DW1 EXHIBIT 2 – A Copy of an Official Search of the suit property dated 21.03.2022.
DW1 EXHIBIT 3 – A Copy of the Agreement of Sale dated 07.06.2016 between the plaintiff and the 1 st Defendant over L.R. No. Eldoret Municipality Block 12(XII)/423
DW1 EXHIBIT 4 – A Copy of the Advice slip of a Bank Transfer dated 25.04.2022 from the 1 st defendant to the Plaintiff for Kshs.1,000,000/=
DW1 EXHIBIT 5 – A copy of an Mpesa Statement dated 14.05.2026 showing transfers from 24.01.21 to 07.04.2022 from the 1 st Defendant to the Plaintiff amounting to Kshs.232,100/=
DW1 EXHIBIT 6 – A copy of the duly executed Transfer Form not dated but attested on 19.12.2020.
74. On being referred to DW 1 EXHIBIT 3, the 1 st Defendant did inform the Court that the date appearing on the Agreement For Sale as 07.06.2016 was not correct and the correct dated was 07.06.2019.
75. The 1 st Defendant did testify that the Agreement For Sale was prepared by an Advocate known as OGOLLA OCHOLLA & ADVOCATES.
76. The 1 st Defendant did aver that the full sum of Kenya Shillings Eight Million (KShs.8,000,000/-) indicated in the Agreement For Sale was paid to the Plaintiff in cash on or before December 2019.
77. The 1 st Defendant did further state that the sum of Kenya Shillings One Million (KShs.1,000,000/-) and the additional sum of Two Hundred and Thirty-Two Thousand (KShs.232,000/-) were additional payments over and above the consideration of Kenya Shillings Eight Million (KShs.8,000,000/-).
78. The 1 st Defendant did inform the Court that after his registration as the owner of the suit property in 2022, he did take possession but was evicted by the Plaintiff in the year 2024.
79. In concluding his evidence in chief, the 1 st Defendant did seek the Court to declare him the lawful owner of the suit property as contained in his Certificate of Lease and issue a Permanent injunction against the Plaintiff from interfering with his quiet possession of the same.
80. On cross-examination by the 2 nd and 3 rd Defendants, the 1 st Defendant did reiterate that the Agreement for Sale with the Plaintiff was entered on the 07.06.2019.
81. The 1 st Defendant did aver that the Agreement for Sale was prepared on his instructions by the firm of OGOLLA OCHOLLA & COMPANY, ADVOCATES and executed by the Plaintiff on the 07.06.2019.
82. Upon execution of the Agreement for Sale, the signatures of the Plaintiff and the 1 st Defendant were witnessed by an Advocate known as ROTICH NYONGIO.
83. As regards the consideration of Kenya Shillings Eight Million (KShs.8,000,000/-) contained in Clause 3.1 of the Agreement For Sale, the same was paid in cash to the Plaintiff on or before December 2019.
84. The 1 st Defendant did concede that it was not possible to have paid the full purchase price of Kenya Shillings Eight Million (KShs.8,000,000/-) on the date of execution and again pay the same amount by December 2019.
85. On being referred to PLAINTIFF EXHIBIT 1, the 1 st Defendant did state that the sum of Kenya Shillings One Million (KShs.1,000,000/-) paid to the Plaintiff on the 25.04.2022 was over and above the consideration of the Agreement For Sale.
86. In total, the 1 st Defendant did inform the Court that the Plaintiff had received a total sum of Kenya Shillings Nine Million Two Hundred and Thirty-Two Thousand (Kshs.9,232,000/=)
87. The 1 st Defendant did testify that the Transfer Form of the suit property was executed by the Plaintiff on the 19.12.2020 in her home in Kitale, Trans Nzoia County.
88. However, the 1 st Defendant could not confirm who was given the instructions to prepare the Transfer Forms by the Plaintiff.
89. The 1 st Defendant did further aver that the Transfer Form was not executed by both the Vendor and the Purchaser on the same date.
90. Consequently, if the Transfer Form states that both the Vendor and the Purchaser did execute the same on the same date, then this was not the correct position.
91. The 1 st Defendant did state that at the time of execution, he did sign his part before the Advocate known as NYONGIO and left the Transfer Form with the same advocate for the Plaintiff to execute.
92. As regards submission for registration, the 1 st Defendant did inform the Court that the Transfer Documents were lodged for registration by the Advocate known as NYONGIO acting on instructions issued by him.
93. The 1 st Defendant did aver that the 2 nd Defendant was not present during the transaction with the Plaintiff and did only register the documents which had been presented to its office on behalf of the 1 st Respondent.
94. The 1 st Defendant did confirm to the Court that he had no claim whatsoever against the 2 nd Defendant herein based on his Counter-Claim.
95. The 1 st Defendant did testify that there was no witness when the consideration of Kenya Shillings Eight Million (KShs.8,000,000/-) was being handed over to the Plaintiff.
96. Similarly, the 1 st Defendant did not have any form of acknowledgement of the sum of Kenya Shillings Eight Million (KShs.8,000,000/-) from the Plaintiff herein.
97. The 1 st Defendant did admit being friends with PW 2 for a long period of time but did deny the allegations that he was the one that had introduced him to the Plaintiff herein in the year 2020.
98. The 1 st Defendant did reiterate that the proposal to purchase the suit property was made by the Plaintiff in the year 2018 but the title would be transferred to him after the Certificate of Lease was issued by the 2 nd Defendant.
99. The 1 st Defendant did aver that in the year 2021, the Certificate of Lease of the suit property was issued in the name of the Plaintiff and collected by her.
100. Subsequently, the Plaintiff’s Certificate was accordingly attached to the Transfer Form in favour of the 1 st Defendant.
101. The 1 st Defendant did aver that after his registration as the owner of the suit property, he did take possession of the same but was evicted by the Plaintiff herein in Mid-2024.
102. On cross-examination by the Plaintiff, the 1 st Defendant did reiterate that the date appearing on the Agreement for Sale was not the correct date.
103. The 1 st Defendant did further admit that in all his pleadings namely the Defence and the Counter-Claim, the date of the Agreement for Sale pleaded therein was 07.06.2016 although this was not the correct date.
104. On being referred to Clause 3 of the Agreement for Sale, the 1 st Defendant state that this was not the correct position.
105. The 1 st Defendant did admit that there was no Agreement For Sale dated 07.06.2019 which had been presented before th
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1. The Plaintiff file a Plaint dated 30.04.2024 (hereinafter referred to as “the present suit” ) seeking the following Orders against the 1 st , 2 nd and 3 rd Defendants herein; -
A. A DECLARATION THAT THE PLAINTIFF IS THE LEGAL PROPRIETOR OF LAND PARCEL NUMBER ELDORET MUNICIPALITY BLOCK 12/423.
B. A DECLARATION THAT THE TRANSFER OF LAND PARCEL NUMBER ELDORET MUNICIPALITY BLOCK 12/423 EFFECTED ON 22 ND FEBRUARY, 2022 AND ISSUANCE OF A CERTIFICATE OF LEASE IN FAVOR OF THE 1 ST DEFENDANT IS IRREGULAR AND/OR ILLEGAL HENCE A NULLITY.
C. REVOCATION OF THE TRANSFER OF L.R. NO. ELDORET MUNICIPALITY BLOCK 12/423 IN FAVOR OF THE 1 ST DEFENDANT AND CANCELLATION OF THE CERTIFICATE OF LEASE ISSUED THERETO.
D. REINSTATEMENT OF THE PLAINTIFF’S TITLE WITH RESPECT TO L.R. NO. ELDORET MUNICIPALITY BLOCK 12/423 AND ISSUANCE OF A CERTIFICATE OF LEASE UNDER THE PLAINTIFF’ NAME.
E. A PERMANENT INJUNCTION RESTRAINING THE 1 ST DEFENDANT AND HIS AGENTS OR SERVANTS FROM TRESPASSING ONTO OR IN ANY OTHER WAY INTERFERING WITH THE PLAINTIFF’S OWNERSHIP, POSSESSION, OCCUPATION AND USE OF L.R. NO. ELDORET MUNICIPALITY BLOCK 12/423.
F. ANY OTHER RELIEF AS THE HONOURABLE COURT MAY DEEM JUST AND FAIR TO GRANT.
G. COSTS OF THE SUIT.
2. The facts in support of the prayers sought in the present suit were outlined as follows; -
i. The Plaintiff was the lawful allottee of the property currently known as LR.NO. ELDORET MUNICIPALITY BLOCK 12/423 (hereinafter referred to as “the suit property” ).
ii. The Plaintiff’s ownership of the suit property was based on a Letter of Allotment dated 30.01.1991 of which all terms and conditions therein were fully complied with.
iii. Thereafter, the Plaintiff did commence the process of procuring and executing the formal Lease issuance of the Certificate of Lease in her name.
iv. Due to the Plaintiff’s busy schedule and the unfamiliarity with the process of procuring the formal Lease for execution and registration, she did seek the assistance of the 1 st Defendant who was indeed familiar with this process.
v. The 1 st Defendant indeed did accept the assignment given to him by the Plaintiff and was handed over all the appropriate documents to facilitate the process of procuring a formal Lease, registering the same and acquiring the Certificate of Lease thereof.
vi. However, on or about April 2024, the Plaintiff did learn that the 1 st Defendant has taken possession of the suit property herein and dealing with the same as though he was the lawful owner of the same.
vii. It is based on these actions by the 1 st Defendant that the Plaintiff did undertake an official search of the suit property to verify the status of its registration.
viii. The outcome of the official search on the suit property did indicate that the Plaintiff had actually been registered as the lawful owner of the suit property on the 09.02.2021 and thereafter, the same was transferred to the 1 st Defendant on the 22.02.2022.
ix. The Plaintiff’s position is that the purported transfer of the suit property from herself to the 1 st Defendant was undertaken irregularly and without her consent as there was no valid Agreement For Sale, an Application For Consent to Sale and/or the formal Transfer Form executed by her to alienate the same in favour of the 1 st Defendant.
x. The Plaintiff therefore did plead that the 1 st Defendant’s actions of transferring the suit property from the Plaintiff was contrary to her instructions and were for his own self-enrichment to her detriment.
xi. The Plaintiff did seek the Court to cancel the purported Transfer Form registered by the 1 st Defendant alienating the suit property in his favour as well as all the supporting documents therein and the 2 nd Defendant be directed to rectify the Register of the suit property by deleting the name of the 1 st Defendant and retaining the name of the Plaintiff as the legitimate and lawful owner of the suit property.
xii. The Plaintiff did further seek for a Permanent Injunction prohibiting the 1 st Defendant from interfering, dealing with and/or in whatsoever manner acting on the suit property contrary to the ownership rights of the Plaintiff herein.
3. The present suit was duly served on the 1 st , 2 nd and 3 rd Defendants herein.
4. The 1 st Defendant did oppose the present suit by filing a Statement of Defence and Counter-Claim dated 24.09.2024.
5. In the 1 st Defendant’s Statement of Defence dated 24.09.2024, the following facts were pleaded in opposition to the present suit; -
i. First and foremost, the 1 st Defendants did deny the facts pleaded by the Plaintiff in the present suit in totality.
ii. The 1 st Defendant did state that he was the lawful registered owner of the suit property as provided for in the Register held by the 2 nd Defendant herein.
iii. The 1 st Defendant did further plead that he was the person in occupation and use of the suit property as the lawful registered owner of the same.
iv. According to the 1 st Defendant, there indeed does exist a valid Agreement for Sale between the Plaintiff and himself with all the relevant completion documents to facilitate the alienation of the same to his name.
v. The 1 st Defendant therefore did plead that the facts pleaded in the present suit were a misrepresentation of the correct facts and the orders sought therein should therefore be dismissed with costs.
6. In addition to the 1 st Defendant’s Statement of Defence, there was a Counter-Claim dated 24.09.2024 against the Plaintiff herein seeking the following Orders; -
A. A DECLARATION THAT THE PLAINTIFF BY COUNTER-CLAIM IS THE LAWFUL OWNER OF ELDORET MUNICIPALITY BLOCK 12/423.
B. A PERMANENT INJUNCTION RESTRAINING THE DEFENDANT AND HER AGENTS OR SERVANTS FROM TRESPASSING OR IN ANY OTHER WAY FROM INTERFERING WITH THE PLAINTIFF’S OWNERSHIP, POSSESSION AND USE OF THE LAND REFERENCE NUMBER ELDORET MUNICIPALITY BLOCK 12/423.
C. MESNE PROFITS.
D. COSTS OF THE SUIT.
E. ANY OTHER RELIEF THAT THIS HONOURABLE COURT MAY DEEM JUST TO GRANT.
7. The facts in support of the prayers sought in the Counter-Claim were as follows; -
i. The 1 st Defendant did reiterate the facts pleaded in his Statement of Defence in their entirety.
ii. According to the 1 st Defendant, the Plaintiff did offer to sale the suit property to the 1 st Defendant which offer was duly accepted and an Agreement for Sale dated 07.06.2016 was executed thereof.
iii. The 1 st Defendant did plead that the consideration in the Agreement for Sale dated 07.06.2016 was Kenya Shillings Eight Million (KShs. 8,000,000/-) which was fully settled.
iv. Upon full settlement of the Purchase Price in the Agreement for Sale dated 07.06.2016 by the 1 st Defendant, the Plaintiff herein did voluntarily execute all the completion documents including the Application for Consent to Transfer and the Transfer Forms ready for registration.
v. The 1 st Defendant did confirm that the completion documents duly executed by the Plaintiff relating to the suit property were duly and lawful registered in the 2 nd Respondent’s offices and a Certificate of Lease in the name of the 1 st Defendant issued accordingly.
vi. Based on the Certificate of Lease issued in favour of the 1 st Defendant, he did take possession of the suit property and in fact has undertaken a number of developments on the same.
vii. Despite the suit property now being vested with the 1 st Defendant, the Plaintiff herein did continue demanding unjustified payments over the same and even did threaten to take back the ownership of the same if the 1 st Defendant did not comply.
viii. In essence, the 1 st Defendant did plead that the Counter-Claim herein be allowed and the Plaintiff’s case be dismissed.
8. The 2 nd and 3 rd Defendants also did oppose the present suit through a Joint Statement of Defence dated 02.07.2024.
9. In the Joint Statement of Defence dated 02.07.2024, the present suit was opposed on the following grounds; -
i) The 2 nd and 3 rd Defendants did deny the allegations contained in the present suit in totality.
ii) The 2 nd and 3 rd Defendants did plead that according to the Register relating to the suit property, the original owner of the property was the Plaintiff who then did transfer the same to the 1 st Defendant on the 22.02.2022 and the relevant Certificate of Lease was duly issued.
iii) The 2 nd and 3 rd Defendants did admit that the Letter of Allotment relating to the suit property was issued in favour of the Plaintiff who then did comply with all the terms and conditions therein warranting the issuance of a Lease in her name and registration of the suit property in her name.
iv) The 2 nd and 3 rd Defendants did state that the transfer of the suit property from the Plaintiff to the 1 st Defendant was lawful done based on the documents that were presented in the offices of the 2 nd Defendant for registration.
v) In essence, the 2 nd and 3 rd Defendants did deny participating in any form of fraud and/or misrepresentation as alleged by the Plaintiff in the present suit.
vi) In conclusion, the 2 nd and 3 rd Defendants did urge the Court to find that the Plaintiff’s suit lacks merit and to dismiss the same with costs.
10. The 1 st Defendant’s Statement of Defence and Counter-Claim was duly served on the Plaintiff.
11. The Plaintiff on the other hand did file a Reply to Defence and a Defence to the Counter-Claim dated 20.06.2025.
12. In the Reply to Defence to the 1 st Defendant’s Statement of Defence, the Plaintiff did plead the following facts; -
i) The Statement of Defence by the 1 st Defendant was a mere denial and did not raise any triable issues therein.
ii) The Plaintiff did further specifically deny the existence of any Agreement for Sale over the suit property to the 1 st Defendant herein and put him to strict proof thereof.
iii) In essence, the Plaintiff did plead that the 1 st Respondent’s registration as the owner of the suit property and his subsequent occupation of the same was unlawful and illegal.
iv) The Plaintiff did state that the 1 st Respondent’s actions of transferring the suit property from her name to his name was a product of a fraudulent scheme and therefore null and void.
v) In other words, the Plaintiff did urge the Court to dismiss the 1 st Defendant’s Statement of Defence.
13. As regards the Counter-Claim, the Plaintiff did file a Defence to the Counter Claim dated 20.06.2025 based on the following facts; -
i) The Plaintiff did deny the facts pleaded in the 1 st Defendant’s Counter-Claim in total.
ii) To begin with, the Plaintiff did state that the suit property herein was not in her name until the year 2021 as demonstrated in the Official Search procured in 2022.
iii) Secondly, the Plaintiff had not made contact with the 1 st Defendant in the year 2016.
iv) Consequently, the allegation that there was an Agreement for Sale made over the suit property between the Plaintiff and the 1 st Defendant was not true.
v) The Plaintiff did further deny knowledge of the Advocate known as E.K ROTICH NYONGIO who is purported to have witnessed the signatures on the Agreement for Sale and did further deny issuing any instructions to any other advocate to prepare an Agreement for Sale in relation to the suit property.
vi) In essence, the Plaintiff did deny receipt of any monies from the 1 st Defendant as consideration of the suit property and in particular the sum of Kenya Shillings Eight Million (KShs 8,000,000/-) as alleged by the 1 st Defendant.
vii) Further to the above, the Plaintiff did deny either lawfully and intentionally executing any Transfer Forms or any other documents of transfer over the suit property in favour of the 1 st Defendant.
viii) As regards possession of the suit property, the Plaintiff did deny that the 1 st Defendant was in occupation of the same and did plead that she was the one in occupation and use of the suit property.
ix) The Plaintiff did reiterate that her instructions to the 1 st Defendant was to assist her procure the formal Lease of the suit property and upon execution, register the same for purposes of procuring the Certificate of Lease therein.
x) In conclusion, the Plaintiff did seek the Court to dismiss the 1 st Defendant’s Counter-Claim with costs and allow the present suit.
14. The Plaintiff did not file any Reply to Defence to the 2 nd and 3 rd Defendants Statement of Defence within the prescribed time in law.
15. The 1 st Defendant was duly served with the Reply to Defence and Defence to Counter-Claim by the Plaintiff but there was no Reply to the Defence on the Counter-Claim that was filed.
16. As such, pleadings were duly closed and the present suit was set down for hearing.
PLAINTIFF’S TESTIMONIES & DOCUMENTARY EVIDENCE
17. The Plaintiff herein was called as the first witness and she was marked as PW 1.
18. The Plaintiff did introduce herself as a senior citizen having played different roles in public service.
19. The Plaintiff did state that she resides both in Nairobi and Tran Nzoia Counties.
20. The Plaintiff then did inform the Court that she had prepared, signed and filed a witness statement dated 30.04.2024 of which she did adopt as her evidence in chief.
21. Thereafter, the Plaintiff did produce the following documents in support of her evidence in chief; -
PW 1 EXHIBIT 1 – A Copy of a Letter of Allotment dated 30.01.1991 in relation to Industrial Plot contained in attached Plan No. 31710/XXI/24 in favor of the Plaintiff.
PW1 EXHIBIT 2 (a, b & c) – Copies of receipts No. 5/07/91, 22/1/93 and 02/04/93 from the Commissioner of Land to the Plaintiff.
PW1 EXHIBIT 3 – A Copy of an Official Search of Eldoret Municipality Block 12/423 dated 23/06/2023
PW1 EXHIBIT 4 – A Certified Copy of the White card of the suit property dated 11/04/2024.
PW1 EXHIBIT 5 – copy of a Demand letter dated 04/04/2024 from the Plaintiff counsel to the 1 st Defendant.
22. In concluding her evidence in chief, the Plaintiff did seek the Court to allow the present suit and grant prayers sought therein.
23. On cross-examination by the 1 st Defendant, the Plaintiff did admit being familiar with the 1 st Defendant.
24. The Plaintiff did further confirm that the 1 st Defendant was the one currently registered as the owner of the suit property.
25. However, the Plaintiff did deny executing any documents to alienate the suit property to the 1 st Defendant and in particular the Application for Consent to Transfer and the formal Transfer Form therein.
26. The Plaintiff did confirm that the 1 st Defendant had presented a number of documents for her execution which were to facilitate the procurement of the formal Lease and registration of the same in her name and not transfer the suit property to the 1 st Defendant.
27. The Plaintiff did concede that her plan was to dispose of the suit property once she had acquired the Certificate of Lease.
28. Consequently, the 1 st Defendant did advance her a friendly loan of Kenya Shillings One Million (KShs.1,000,000/-) which would be refunded once the suit property had been disposed of.
29. The Plaintiff did further inform the Court that the intended consideration of the suit property at the time of sale had been agreed with the 1 st Defendant.
30. On further cross-examination by the 2 nd and 3 rd Defendants, the Plaintiff did reiterate that the sum of Kenya Shillings One Million (KShs.1,000,000/-) received from the 1 st Defendant was a friendly loan and not a portion of any purchase price relating to the suit property.
31. The Plaintiff did inform the Court that the sum of Kenya Shillings One Million (KShs.1,000,000/-) was received on the 25.04.2022 and not when the purported Agreement For Sale was executed.
32. On being referred to the 2 nd and 3 rd Defendants List of Documents, the Plaintiff did testify that she was not familiar with the Transfer Forms and the Consent To Transfer that were held by the 2 nd Defendant’s office.
33. On being referred to the Agreement For Sale in the 1 st Defendant’s List of Documents, the Plaintiff did admit that the 2 nd Defendant was not a party to the same.
34. On being referred to the Transfer Form relating to the suit property held by the 2 nd Defendant, the Plaintiff did confirm that it bears her signature and photograph thereon.
35. The Plaintiff did confirm that the signature and photographs of the 1 st Defendant were on the Transfer Form held by the 2 nd Defendant.
36. On being referred to the Application For Consent To Transfer held by the 2 nd Defendant, the Plaintiff did deny executing such a document in favour of the 1 st Defendant as was shown on the same.
37. The Plaintiff did further testify that although the Letter of Consent held by the 2 nd Defendant was over the suit property, the same had been acquired irregularly and/or unprocedurally.
38. The Plaintiff did admit that based on the documents presented by the 1 st Defendant to the 2 nd Defendant for registration, the 2 nd Defendant was not at fault to accept the same and register them.
39. The Plaintiff did reiterate that she had not made contact with the 1 st Defendant in the year 2016 and therefore there was no way she would have executed the Agreement For Sale dated 07.06.2016 regarding the suit property herein.
40. Further to the above, the Plaintiff did deny receiving the sum of Kenya Shillings Eight Million (KShs.8,000,000/-) from the 1 st Defendant in the year 2016 as consideration of the suit property.
41. The Plaintiff did aver that the sum of Kenya Shillings One Million (KShs.1,000,000/-) owing to the 1 st Defendant as a friendly loan had not been paid back to date.
42. On re-examination, the Plaintiff did testify that she had never applied and/or attended any Land Control Board meeting for purposes of processing the Letter of Consent to Transfer the suit property to the 1 st Defendant.
43. Similarly, the Plaintiff did testify that she had never executed any Transfer Form relating to the suit property in favour of the 1 st Defendant.
44. Nevertheless, the Plaintiff did admit that the 1 st Defendant had presented a number of documents for execution relating to the procurement of the Formal Lease and its registration only in the year 2022.
45. On being referred to the Agreement For Sale produced by the 1 st Defendant, the Plaintiff did point out that the suit property therein was LR.NO.ELDORET BLOCK 12 (XII)/423 and not the suit property herein.
46. The Plaintiff did further aver that according to the Agreement For Sale, the full purchase price of Kenya Shillings Eight Million (KShs.8,000,000/-) was to be paid between June 2016 and December 2016.
47. However, at this particular time, the Plaintiff and the 1 st Defendant had not known each other and there is no proof of any payment of the same.
48. The Plaintiff did inform the court that the only monies she did receive from the 1 st Defendant was the sum of Kenya Shillings One Million (KShs.1,000,000/-) on the 25.04.2022 which was a friendly loan advanced to her by the 1 st Defendant.
49. In concluding her re-examination, the Plaintiff did confirm that the suit property was registered in the name of the 1 st Defendant on 22.02.2022 and the transfer of Kenya Shillings One Million (KShs.1,000,000/-) was received on the 25.04.2022.
50. At the end of this re-examination, the Plaintiff was duly discharged from the witness box.
51. The Plaintiff’s second witness was one MR. AMGE KIPROP KIPTUI who was marked as PW2.
52. PW 2 did introduce himself as a farmer by occupation and a resident of both Nairobi and Trans Nzoia Counties.
53. PW 2 did inform the Court that he recorded, signed and filed a Witness Statement dated 05.12.2025 which he did adopt as his evidence in chief.
54. PW 2 did confirm to the Court that he was familiar with both the Plaintiff and the 1 st Defendant herein.
55. In ending his evidence in chief, PW 2 did disclose that he was the nephew to the Plaintiff and the 1 st Defendant had been his friend for over a period of Twenty (20) years.
56. On cross-examination by the 1 st Defendant, PW 2 did testify that he was the one who had introduced the 1 st Defendant to the Plaintiff herein.
57. PW 2 did further confirm that currently the suit property was registered in the name of the 1 st Defendant.
58. PW 2 however did aver that he was not aware of any Agreement for Sale between the Plaintiff and the 1 st Defendant relating to the suit property.
59. Consequently, PW 2 did deny any knowledge of any transfer documents that were signed by the Plaintiff relating to the suit property in favour of the 1 st Defendant herein.
60. PW 2 did insist that if the 1 st Defendant’s registration as the owner of the suit property was to be upheld, then the correct procedures must be followed.
61. Nevertheless, PW 2 did confirm that the 1 st Defendant had informed him that he was in possession and/or occupation of the suit property.
62. On further cross-examination by the 2 nd and 3 rd Defendants, PW 2 did indicate that he was not aware of any Sale transaction between the Plaintiff and the 1 st Defendant in regards to the suit property.
63. According to PW 2 knowledge, the 1 st Defendant was tasked to assist the Plaintiff procure her formal Lease and ensure the registration of the suit property in her favour.
64. PW 2 did deny any knowledge of the existence of an Agreement for Sale between the Plaintiff and the 1 st Defendant over the suit property or any consideration paid for the same.
65. In concluding his cross-examination, PW 2 did testify that he had visited the suit property in the year 2025 but at time, the 1 st Defendant was not in possession or use of the suit property and there were no structures belonging to the 1 st Defendant on the ground.
66. On re-examination, PW 2 did confirm that he had introduced the Plaintiff to the 1 st Defendant in the year 2020.
67. PW 2 did reiterate that the main duty of 1 st Defendant was to assist the Plaintiff to procure the formal Lease of the suit property and have the same registered in her name so that the Certificate of Lease could be issued.
68. In concluding his re-examination, PW 2 did categorically testify that the Plaintiff and the 1 st Defendant did not know each other before the year 2020.
69. At the end of the re-examination, PW2 was discharged and the Plaintiff thereafter did close her case.
1 ST DEFENDANT’S TESTIMONIES & DOCUMENTARY EVIDENCE
70. The 1 st Defendant was the first witness to testify and was marked as DW 1.
71. The 1 st Defendant did introduce himself as a businessman by occupation and a resident of both Nairobi and Uasin Gishu Counties.
72. The 1 st Defendant did inform the Court that he had recorded and filed a witness statement dated 07.04.2025 of which he did adopt as his evidence in chief.
73. In support of his evidence in Chief, the 1 st Defendant did produce the following documents; -
DW1 EXHIBIT 1 – A Copy of a Certificate of Lease dated 22.02.2022 for Eldoret Municipality Block 12/423 in favor of the 1 st Defendant.
DW1 EXHIBIT 2 – A Copy of an Official Search of the suit property dated 21.03.2022.
DW1 EXHIBIT 3 – A Copy of the Agreement of Sale dated 07.06.2016 between the plaintiff and the 1 st Defendant over L.R. No. Eldoret Municipality Block 12(XII)/423
DW1 EXHIBIT 4 – A Copy of the Advice slip of a Bank Transfer dated 25.04.2022 from the 1 st defendant to the Plaintiff for Kshs.1,000,000/=
DW1 EXHIBIT 5 – A copy of an Mpesa Statement dated 14.05.2026 showing transfers from 24.01.21 to 07.04.2022 from the 1 st Defendant to the Plaintiff amounting to Kshs.232,100/=
DW1 EXHIBIT 6 – A copy of the duly executed Transfer Form not dated but attested on 19.12.2020.
74. On being referred to DW 1 EXHIBIT 3, the 1 st Defendant did inform the Court that the date appearing on the Agreement For Sale as 07.06.2016 was not correct and the correct dated was 07.06.2019.
75. The 1 st Defendant did testify that the Agreement For Sale was prepared by an Advocate known as OGOLLA OCHOLLA & ADVOCATES.
76. The 1 st Defendant did aver that the full sum of Kenya Shillings Eight Million (KShs.8,000,000/-) indicated in the Agreement For Sale was paid to the Plaintiff in cash on or before December 2019.
77. The 1 st Defendant did further state that the sum of Kenya Shillings One Million (KShs.1,000,000/-) and the additional sum of Two Hundred and Thirty-Two Thousand (KShs.232,000/-) were additional payments over and above the consideration of Kenya Shillings Eight Million (KShs.8,000,000/-).
78. The 1 st Defendant did inform the Court that after his registration as the owner of the suit property in 2022, he did take possession but was evicted by the Plaintiff in the year 2024.
79. In concluding his evidence in chief, the 1 st Defendant did seek the Court to declare him the lawful owner of the suit property as contained in his Certificate of Lease and issue a Permanent injunction against the Plaintiff from interfering with his quiet possession of the same.
80. On cross-examination by the 2 nd and 3 rd Defendants, the 1 st Defendant did reiterate that the Agreement for Sale with the Plaintiff was entered on the 07.06.2019.
81. The 1 st Defendant did aver that the Agreement for Sale was prepared on his instructions by the firm of OGOLLA OCHOLLA & COMPANY, ADVOCATES and executed by the Plaintiff on the 07.06.2019.
82. Upon execution of the Agreement for Sale, the signatures of the Plaintiff and the 1 st Defendant were witnessed by an Advocate known as ROTICH NYONGIO.
83. As regards the consideration of Kenya Shillings Eight Million (KShs.8,000,000/-) contained in Clause 3.1 of the Agreement For Sale, the same was paid in cash to the Plaintiff on or before December 2019.
84. The 1 st Defendant did concede that it was not possible to have paid the full purchase price of Kenya Shillings Eight Million (KShs.8,000,000/-) on the date of execution and again pay the same amount by December 2019.
85. On being referred to PLAINTIFF EXHIBIT 1, the 1 st Defendant did state that the sum of Kenya Shillings One Million (KShs.1,000,000/-) paid to the Plaintiff on the 25.04.2022 was over and above the consideration of the Agreement For Sale.
86. In total, the 1 st Defendant did inform the Court that the Plaintiff had received a total sum of Kenya Shillings Nine Million Two Hundred and Thirty-Two Thousand (Kshs.9,232,000/=)
87. The 1 st Defendant did testify that the Transfer Form of the suit property was executed by the Plaintiff on the 19.12.2020 in her home in Kitale, Trans Nzoia County.
88. However, the 1 st Defendant could not confirm who was given the instructions to prepare the Transfer Forms by the Plaintiff.
89. The 1 st Defendant did further aver that the Transfer Form was not executed by both the Vendor and the Purchaser on the same date.
90. Consequently, if the Transfer Form states that both the Vendor and the Purchaser did execute the same on the same date, then this was not the correct position.
91. The 1 st Defendant did state that at the time of execution, he did sign his part before the Advocate known as NYONGIO and left the Transfer Form with the same advocate for the Plaintiff to execute.
92. As regards submission for registration, the 1 st Defendant did inform the Court that the Transfer Documents were lodged for registration by the Advocate known as NYONGIO acting on instructions issued by him.
93. The 1 st Defendant did aver that the 2 nd Defendant was not present during the transaction with the Plaintiff and did only register the documents which had been presented to its office on behalf of the 1 st Respondent.
94. The 1 st Defendant did confirm to the Court that he had no claim whatsoever against the 2 nd Defendant herein based on his Counter-Claim.
95. The 1 st Defendant did testify that there was no witness when the consideration of Kenya Shillings Eight Million (KShs.8,000,000/-) was being handed over to the Plaintiff.
96. Similarly, the 1 st Defendant did not have any form of acknowledgement of the sum of Kenya Shillings Eight Million (KShs.8,000,000/-) from the Plaintiff herein.
97. The 1 st Defendant did admit being friends with PW 2 for a long period of time but did deny the allegations that he was the one that had introduced him to the Plaintiff herein in the year 2020.
98. The 1 st Defendant did reiterate that the proposal to purchase the suit property was made by the Plaintiff in the year 2018 but the title would be transferred to him after the Certificate of Lease was issued by the 2 nd Defendant.
99. The 1 st Defendant did aver that in the year 2021, the Certificate of Lease of the suit property was issued in the name of the Plaintiff and collected by her.
100. Subsequently, the Plaintiff’s Certificate was accordingly attached to the Transfer Form in favour of the 1 st Defendant.
101. The 1 st Defendant did aver that after his registration as the owner of the suit property, he did take possession of the same but was evicted by the Plaintiff herein in Mid-2024.
102. On cross-examination by the Plaintiff, the 1 st Defendant did reiterate that the date appearing on the Agreement for Sale was not the correct date.
103. The 1 st Defendant did further admit that in all his pleadings namely the Defence and the Counter-Claim, the date of the Agreement for Sale pleaded therein was 07.06.2016 although this was not the correct date.
104. On being referred to Clause 3 of the Agreement for Sale, the 1 st Defendant state that this was not the correct position.
105. The 1 st Defendant did admit that there was no Agreement For Sale dated 07.06.2019 which had been presented before th
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