Evidence of the Plaintiff
7.The Plaintiff as PW1 claims to have purchased the suit land measuring five (5) acres from Simon Kimani Njau in 1989 and paid valuable consideration amounting to Kshs. 70,000 to Simon Kimani Njau’s lawyer messrs Waruinge & Co. Advocates on 18th May, 1989 and 10th July, 1989 respectively. He explained that on 11th August, 1989, the vendor wrote to him, asking him to pay additional Kshs. 10,800 to his lawyer, which he did on 14th September, 1989. He was subsequently issued with a title deed on 27th December, 1989 which indicates his land measures 1.94 hectares from the mother title Kajiado/Kitengela/25. In his testimony, PW1 explained the features of his title which he held todate, and indicated that the name therein is George N. Kahira, ID No. 4830499 of P.O. Box 58510 Nairobi. PW1 testified that the vendor Simon Njau who is since deceased, later proceeded to procure a fake title which read KJD/KITENGELA/2404 measuring 1.87 hectares under the name George Ngige Kahira, of P. O. Box 72384 Nairobi, subdivided the said land to Kajiado/Olooloitikoshi/ Kitengela 16929, 16930 and 16931 and sold to the 1st, 2nd and 3rd Defendants respectively. Further, that the 1st to 3rd Defendants have put up permanent structures on the resultant subdivisions. He seeks for orders as per the Plaint. The Plaintiff produced the following documents as exhibits: Copy of Title Deed issued to George Ngige Kahira dated the 27th December, 1989; Mutation Form dated 11th November, 2002; Letter of Consent to George Ngige Kahira dated 11th September, 2002; Fee receipt for Stamp Duty dated 11th November, 2002; Forged Transfer of Land Document dated 11th November, 2002; A self-recorded statement by the Plaintiff dated 17th June, 2014; Extract of Green Card for Kajiado/ Olooloitikoshi/Kitengela/2404; Application for Official Search by Peter N. Mwaura; Certificate of official search that shows Simon Kimani Njau as the proprietor dated 11th November, 11th November, 2002; Copies of receipts for alleged payment by George Ngige Kahira to Waruinge & Company Advocates being payment of Kajiado/Kitengela/25; A copy of an original title belonging to Elias S.M.K. Muthondu, in respect to LR No. Kajiado/Olooloitikoshi/Kitengela/2402; and a Copy of a Letter to the Plaintiff by SK Njau confirming payment dated the 11th August, 1989.
Analysis and Determination
12.Upon consideration of the parties’ respective pleadings filed herein including witness testimonies and exhibits, the main issues for determination are:
- Who is/was the registered proprietor of land parcel number Kajiado/ Olooloitikoshi/Kitengela/2404 (suit land).
- Whether the 1st, 2nd and 3rd Defendants are bona fide purchasers for value without notice.
- Whether the Plaintiffs are entitled to orders sought in the Plaint.
13.As to who is/was the registered proprietor of land parcel number Kajiado/ Olooloitikoshi/Kitengela/2404 (suit land).
14.The Plaintiff in his evidence contended that he is the registered proprietor of the suit land which he bought from Simon Kimani Njau in 1989. He produced a Certificate of Title dated the 27th December, 1989 as well as various documents including copy of a Letter dated the 11th August, 1989 from the vendor addressed to him, confirming payment of purchase price and directing him to pay other transaction fees, whose excerpt I wish to reproduce hereunder:
15.The Plaintiff further produced receipt a from messrs Waruinge & Company Advocates being payment of Kajiado/Kitengela/25 dated 14th August, 1989 for Kshs. 10, 800. As per the Green Card for Kajiado/ Olooloitikoshi /Kitengela/2404 which was also produced as an exhibit, it indicates at entry no. 3 that a Title Deed had been issued to the Plaintiff George N. Kahira dated the 27th December, 1989. At entry No. 5, the land is reverted back to Simon Kimani Njau on 11th November, 2002 after which the said title is closed on subdivision and refers to new numbers 16929 – 16931. PW2 Elias Muthondu who is the proprietor of land parcel number Kajiado/Olooloitikoshi/Kitengela/2402 as evident in his title which was produced as an exhibit herein, confirmed he purchased his land the same time as the Plaintiff. Further, that their respective parcels of land are a few metres apart. He reaffirmed that since 1989, he had always known that the Plaintiff was owner of suit land. DW1 who was the Land Registrar in his report dated the 3rd December, 2019 which was produced as an exhibit explained that according to their records, there was a transfer to the Plaintiff on 27th December, 1989 but they were not able to access the documents. Further, that it was not clear how the land reverted back to Simon Kimani Njau on 11th November, 2002 who carried out subdivisions, but there are documents supporting transfer from Simon Kimani Njau to the other beneficiaries. In cross-examination, DW1 confirmed that as at 27th December, 1989 the proprietor of the suit land should have been George N. Kahira, the Plaintiff herein. He confirmed that a transfer from George N. Kahira to Simon Kimani Njau on 11th November, 2002 is not captured in their records and this means there was no transaction. He proceeded to explain that the subdivision and transfer to the 1st and 2nd Defendants were done on 11th November, 2002 all in one day, was not feasible as there should have been a consent to subdivide, then registration of subdivision including consent for transfer. He reiterated that ideally this should have taken a period of one month.
16.The 1st and 2nd Defendants only filed their respective statements of Defence but never appeared in court to tender evidence despite their Counsel having been present and even cross examined the Plaintiff. Section 107 of the Evidence Act provides that:
17.In the case of Motex Knitwear Limited v Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No.834 of 2002, Lesiit, J. favourably cited the case of Autar Singh Bahra and Another vs. Raju Govindji, HCCC No.548 of 1998 where it was held that:
18.See also the decision of Nelson Erick Mzee Vs Panal Freighters Limited (2020) eKLR.
19.As for the 3rd Defendant, he never entered appearance nor filed a Defence to controvert the Plaintiff’s averments.
20.In the circumstance, while associating myself with the decisions cited above, I find that 1st, 2nd and 3rd Defendants failed to challenge the Plaintiff’s evidence.
21.I note the Plaintiff produced documents to prove he undertook a transaction with the vendor Simon Kimani Njau and was later issued with a title. Further, that he still held the original title deed dated the 27th December, 1989 in his custody.
22.Based on the evidence presented before me , I find that the vendor Simon Kimani Njau did not adhere to the proper legal process to revert the transfer of the suit land on 11th November, 2002 from the Plaintiff to himself and hence this transaction was a nullity.
23.As to whether the 1st and 2nd Defendants are bona fide purchasers for value. The 1st and 2nd Defendants in their submissions contended that they adhered to the proper legal process to acquire their respective parcels of land. I note they however never tendered any evidence nor produced any documents to that effect but opted to rely on the evidence of the 4th and 5th Defendants. They insist the Plaintiff failed to prove how he acquired his land since there were no documents to support the transaction as per the Land’s Office, but I however beg to disagree as the Plaintiff produced a letter from the vendor, receipts from the vendor’s lawyer , extract of Green Card and his Title Deed. Further, DW1 also confirmed that as at 27th December, 1989, the Plaintiff was the proprietor of the suit land before the subdivision.
24.This brings in the question on whether the vendor Simon Kimani Njau had a proper title to transfer to the 1st, 2nd and 3rd Defendants. As I have held above that the vendor Simon Kimani Njau did not adhere to the proper legal process to revert the registration of the suit land back to his name in 2002, which title was registered under the Registered Land Act (now repealed). Further, since he obtained the title back to his name in an unprocedural manner and proceeded to subdivide including sell to third parties, I opine that he did not have clean titles to pass to the said 1st, 2nd and 3rdDefendants respectively. Insofar as the Plaintiff failed to prove fraud as against the 1st, 2nd and 3rd Defendants, however since the root of their titles are challenged as they acquired them from a person who did not obtain it procedurally or legally, the said titles cannot be deemed as indefeasible. Sections 26(1) (b) of the Land Registration Act states that:
25.In the case of Case of Arthi Highway Developers Limited v West End Butchery Limited & 6 others  eKLR the Court of Appeal dealt exhaustively with the issue of bona fide purchaser for value without notice and held that a party cannot invoke indefeasibility of title where the process of acquisition of the title is irregular. Further, in the Uganda Court of Appeal Case of Katende v Haridar & Company Ltd, the Court defined what amounts to a bona fide purchaser for value and stated thus:
26.Further in the case of Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v Attorney General & 4 others  eKLR the Court of Appeal held that a party cannot claim a bona fide purchaser for value where the vendor did not have a valid title.
27.While in the case of Munyu Maina v Hiram Gathiha Maina, Civil Appeal No. 239 of 2009, the Court of Appeal held that:-
28.Based on the facts as presented while relying on the legal provisions I have cited as well as associating myself with the quoted decisions, it is my considered view that Section 26(2) of the Land Registration Act does not confer protection to the 1st, 2nd and 3rd Defendants in respect to their respective titles to their land. Insofar as I sympathize with their plight as they did not participate in the illegal process of revocation of the Plaintiff’s titles, I find that the vendor Simon Kimani Njau did not pass to them good titles and no wonder all the transactions were being done in one day yet the Plaintiff had held his title for over twelve (12) years. In the circumstances, I find that the 1st, 2nd and 3rd Defendants cannot be deemed as bona fide purchasers for value without notice. I opine that whatever losses they will incur, they still have a recourse as against the estate of the vendor Simon Kimani Njau.
29.As to whether the Plaintiff is entitled to the orders sought in the Plaint. The Plaintiff sought for various orders which I have enumerated above. Since I have already held that the vendor Simon Kimani Njau (deceased) did not pass a good title to the 1st, 2nd and 3rd Defendants, I will proceed to make reference to Section 143 of the Registered Land Act (repealed) that was the law in place at the time of registration of 1st, 2nd and 3rd Defendants’ titles, which stipulated thus:-
31.Based on my findings above, I find that the Plaintiff is indeed entitled to the orders as sought in the Plaint.
32.It is against the foregoing that I find that the Plaintiff has established his case on a balance of probability and will proceed to make the following final orders: