Kasarani Mall Limited & another v Principal Secretary Ministry of Defence & 4 others; The National Land Commission & another (Interested Parties) (Environment & Land Case E010 of 2022) [2025] KEELC 4075 (KLR) (19 May 2025) (Judgment)
Neutral citation:
[2025] KEELC 4075 (KLR)
Republic of Kenya
Environment & Land Case E010 of 2022
JO Mboya, J
May 19, 2025
Between
Kasarani Mall Limited
1st Plaintiff
Supermarkets PLC
2nd Plaintiff
and
The Principal Secretary Ministry of Defence
1st Defendant
The Hon. Attorney General
2nd Defendant
Sidhi Investments Limited
3rd Defendant
Solio Constructions Co. Ltd
4th Defendant
The Registrar of Titles
5th Defendant
and
The National Land Commission
Interested Party
Kenya Commercial Rank Of Kfnva
Interested Party
Judgment
1.The Plaintiffs’ approached the court vide Plaint dated the 18th January 2022 and wherein same [Plaintiffs’] have sought a plethora of reliefs. The reliefs sought vide the Plaint under reference are as hereunder;i.Permanent injunction restraining the 1st to 4th Defendants whether by themselves or acting through their agents, servants and or employees from accessing, entering into, remaining on or dealing in anyway with the Suit Property.ii.A declaration that the trespass and/or occupation by the 1st Defendant the Kenya Defence Forces is illegal.iii.A declaration that the Defendants are not the owners of any part of the land known as L.R 5875/2 (IR. 85371) and that the suit property belongs to the Plaintiff.ivIn the alternative, an Order of Monetary Compensation to the Plaintiff, a sum of the value of the suit property as shall be determined by a valuer [sic] appointed by Court.vThe costs of this suit together with interest thereon at court rates from the date of filing suit until payment in full.
2.The 1st Defendant duly entered appearance and filed a statement of defence dated the 20th May 2022 and wherein the 1st Defendant disputed the claims on behalf of the Plaintiffs. The statement of defence under reference was subsequently amended resting with the amended statement of defence dated the 2nd December 2022 and wherein the 1st Defendant reiterated the averments that were contained at the foot of the previous statement of defence.
3.In particular, the 1st Defendant contended that L.R No. 5875/2 which measures approximately 17.16 acres was compulsorily acquired for the military. Furthermore, it was contended that upon the compulsory acquisition, the commissioner of lands [now defunct] proceeded to and issued the notice of taking possession of the suit property dated the 25th June 1985.
4.It was the further contention by the 1st Defendant that following the issuance of the notice of taking of possession the department of defence [namely, the Military] entered upon and took possession of the suit property. Moreover, it was contended that the suit property though Government land stood alienated on the basis of acquisition for the military and hence same [suit property] was not available for allocation and/or alienation whatsoever.
5.The 2nd and 4th Defendants duly entered appearance and filed a statement of defence dated the 21st April 2022 and wherein same [2nd and 4th Defendants] reiterated the contents at the foot of the defence by the 1st Defendant. In particular, the 2nd and 4th Defendants posited that the suit property having been compulsorily acquired for an on behalf of the Department of Defence, same [suit property] was therefore not available for allocation by the commissioner of lands or at all. Furthermore, the 2nd and 4th Defendants contended that the suit property duly and lawfully vested in the department of defence.
6.The 5th Defendant sought for and obtained leave to be joined into the suit. Upon being joined into the suit, the 5th Defendant duly entered appearance and thereafter filed a statement of defence and counterclaim dated the 15th September 2022. The statement of defence under reference was subsequently amended culminating into the amended statement of defence and counterclaim dated the 12th April 2023, and wherein the 5th Defendant has sought for various reliefs namely;i.A declaration that the 5th Defendant is a Bona Fide purchaser for value of L.R No. 5875/2 and thus entitled to the suit property.ii.An order of Specific performance to compel the 1st Plaintiff to conclude the transaction in respect of the suit property and have the suit property transferred to and in favour of the 5th Defendant.iii.Costs of the counterclaim.ivSuch further or other reliefs that the court may deem just, expedient and appropriate to issue.
7.The 3rd Defendant neither entered appearance nor filed any statement of defence. The case as against the 3rd Defendant proceeded on the basis of formal proof.
8.The 1st Interested Party entered appearance and filed a statement of defence. However, the 1st interested party did not file any list and bundle of documents or witness statement.
9.The 2nd Interested party entered appearance and filed a statement of defence dated the 8th November 2022. Furthermore, the 2nd Interested party also filed a list and bundle of documents dated the 8th November 2022 and subsequently filed a substituted witness statement by one, namely; Oscar Ombuna. For good measure, the substituted witness statement is dated the 18th June 2024.
10.The subject matter came up for the usual case conference on various dates including the 15th March 2023 whereupon the parties confirmed that same had duly filed the requisite pleadings, list and bundle of documents as well as witness statements. In this regard, the parties covenanted that the matter was ready for hearing. To this end, the court proceeded to and issued directions pertaining to the hearing of the matter.
11.The Plaintiffs’ case is premised on the evidence of two witnesses, namely; Laurence Ngao and Sammy Mwaita. Same testified as PW1 and PW2, respectively.
12.It was the testimony of the witness [PW1] that same is currently the Managing Director of the 2nd Plaintiff herein. In addition, the witness averred that by virtue of being the Managing Director of the 2nd Plaintiff same is conversant with and knowledgeable of the facts of this matter.
13.Moreover, PW1 also averred that same has since recorded a witness statement dated the 18th January 2022 and which witness statement the witness sought to adopt and rely on as his evidence in chief. To this end, the witness statement under reference was adopted and constituted as the evidence in chief of the witness.
14.It was the further testimony of the witness that same has equally recorded and filed a further witness statement dated the 27th June 2023 and which witness statement the witness sought to adopt and rely on as his further evidence in chief. Instructively, the further witness statement was duly admitted and constituted as the further evidence in chief of the witness.
15.The witness thereafter adverted to the list and bundle of documents dated the 18th January 2022, containing 16 documents and which Documents the Witness sought to tender and produce before the Court. There being no objection to the production of same, the Documents were admitted as exhibit[s] P1 to P16 on behalf of the Plaintiffs.
16.Additionally, the witness referenced the further list and bundle of documents dated the 6th July 2023, containing 8 documents and which the witness sought to tender and produce before the court as evidence in chief. Suffice to state that the documents under reference were duly admitted as exhibits P17 to P25, respectively.
17.Furthermore, the witness referred to the Plaint dated the 18th January 2022 and thereafter sought to adopt and rely on the contents thereof. In particular, the witness highlighted the reliefs sought thereunder.
18.On cross-examination by learned counsel for the First Defendant, the witness averred that same is the acting Managing Director of the two [2] entities. In addition, the witness testified that by virtue of his two portfolios, he is also the chief executive of the two entities, namely; the Plaintiffs.
19.It was the further testimony of the witness that the 2nd Plaintiff bought and purchased the suit property from the 3rd Defendant in the year 2001. However, the witness clarified that the purchase of the suit property was undertaken through the subsidiary company, namely; Kasarani Mall Limited [the 1st Plaintiff].
20.Whilst still under cross-examination, the witness testified that the suit property was bought/purchased at the sum of Kes.85,000,000/=only. Nevertheless, the witness testified that before the Plaintiffs purchased the suit property, the Plaintiffs undertook due diligence to ascertain the validity of the title in favour of the 3rd Defendant.
21.Upon being referred to the letter of allotment in favour of the 3rd Defendant, the witness averred that the letter of allotment is dated the 26th June 1999. Nevertheless, the witness testified that same does not know when the 3rd Defendant company was incorporated.
22.Regarding the document at page 53 of the 1st Defendant’s list and bundle of documents, the witness averred that the document in question is the certificate of incorporation of the 3rd Defendant. In particular, the witness averred that the certificate of incorporation was issued on the 18th August 1999, long after the Letter of allotment had been issued to the 3rd Defendant.
23.It was the further testimony of the witness that the 3rd Defendant was indeed issued with a Grant. To this end, the witness averred that the Grant in favour of the 3rd Defendant was issued on the 1st July 1999. In any event, it was the testimony of the witness that the Letter of allotment and the Grant in favour of the 3rd Defendant were issued long before the incorporation of the 3rd Defendant.
24.On further cross examination, the witness averred that the Plaintiffs undertook due diligence on the seller and same discovered that the seller [3rd Defendant] had been issued with a certificate of title. Moreover, the witness added that the due diligence did not elicit any adverse claims over and in respect of the suit property.
25.Upon being referred to the document at page 36 of the 1st Defendant’s bundle of documents, the witness averred that the document in question is a copy of the Judgment relating to the suit property. In particular, the witness averred that the Judgment in question directed payments of certain decretal sums to the Appellants as indicated at the foot of the judgment.
26.Regarding the document at page 29 of the 1st Defendant’s list and bundle of documents, the witness averred that the documents in question is the gazette notice relating to the compulsory acquisition of the suit property. In particular, the witness averred that the compulsory acquisition was being undertaken by the commissioner of lands [now defunct].
27.Whilst still under cross examination, the witness averred that there was also a notice of the taking of possession which was issued. Nevertheless, the witness testified that same is not aware whether the transaction advocates who undertook the due diligence on behalf of the Plaintiffs came across the gazette notices and the Notice of taking of possession.
28.On cross examination by learned counsel for the 2nd and 4th Defendant, the witness averred that same [Witness] has worked for the 2nd Plaintiff for three years. Furthermore, the witness testified that when the suit property was acquired the 2nd Plaintiff [Uchumi Supermarkets Limited] was a going concern.
29.It was the further testimony of the witness that the 2nd Plaintiff herein had an arrangement with its creditors. In this regard, the witness testified that on the basis of the arrangement with its creditors, the 2nd Plaintiff is able to commence and maintain the instant suit.
30.On the other hand, it was the testimony of the witness that the 1st Plaintiff is a subsidiary of the 2nd Plaintiff. In this regard, it was averred that the suit beforehand is therefore competent.
31.The witness further testified that the 2nd Plaintiff herein is the one who entered into a land sale agreement with the 3rd Defendant. Nevertheless, the witness added that before entering into the sale agreement, the 2nd Plaintiff undertook due diligence over and in respect of the suit property.
32.Upon being referred to the Letter of allotment issued in favour of the 3rd Defendant, the witness averred that same is dated the 26th June 1999. Nevertheless, the witness testified that the certificate of incorporation of the 3rd Defendant shows that same was issued on the 18th August 1999. To this end, the witness admitted and acknowledged that the letter of allotment appears to have been issued long before the incorporation of the 3rd Defendant.
33.It was the further testimony of the witness that the veracity of the certificate of title of the suit property has been the subject of investigations by the Directorate of Criminal Investigations. Furthermore, the witness testified that a report was thereafter prepared by the Criminal Investigation Department. In addition, the witness averred that the report under reference has been filed/ tendered before the court.
34.Moreover, it was the testimony of the witness that the Honourable Attorney General also generated and issued a Letter confirming that the title of the suit property was valid.
35.Whilst still under cross examination, the witness averred that the land in question was government land and same was therefore available for allocation in favour of the 3rd Defendant. Nevertheless, the witness testified that same has not seen any document to revoke the compulsory acquisition.
36.The witness further testified that there was a notice of taking of possession. Furthermore, the witness added that the notice of taking possession was relating of compulsory acquisition. Besides, the witness averred that same has not seen any notice revoking the compulsory acquisition.
37.Regarding the document at page 84 of the Plaintiffs’ list and bundle of documents, the witness testified that same is a letter stating payments to one Jacobs. Nevertheless, the witness reiterated that the land in question belongs to the Plaintiffs.
38.Additionally, it was the testimony of the witness that the suit property and the title in favour of the Plaintiffs has been recognized by various government departments and agencies. Furthermore, the witness averred that even National Land Commission [NLC] has recognized the Plaintiffs' certificate of title.
39.It was the further testimony of the witness that the 2nd and 4th Defendants have equally confirmed that the suit property belongs to the Plaintiff. In this regard, the witness averred that the Director of Public Prosecution confirmed the validity of the certificate of title vide letter dated the 14th July 2015.
40.Whilst still under cross-examination, the witness averred that the suit property was surrendered by the department of defence to the government. To this end, the witness referenced surrendered document dated the 21st October 2002. Nevertheless, the witness clarified that the document under reference is a letter from the office of the Attorney General and same states that the land in question was surrendered.
41.It was the further testimony of the witness that the contents of the letter from the office of the Honourable Attorney General is explicit and confirm[s] surrender of land to the commissioner of land. Nevertheless, the witness confirmed that same does not have the surrender document before the court.
42.The witness further testified that the land in question was lawfully transferred to the Plaintiffs. Nevertheless, the witness averred that the Department of Defence [Military] used force to enter upon and take possession of the suit property.
43.Moreover, it was the evidence of the witness that the judgment which has been tendered before the court relates to a dispute over the suit property. However, the witness acknowledged that the Honourable Attorney General was never a party to the said suit.
44.On cross examination by learned counsel for the 5th Defendant, the witness averred that same is before the court on behalf of both the Plaintiff[s]. Furthermore, the witness averred that the land in question was government land and same was lawfully allocated to the 3rd Defendant. Furthermore, the witness testified that the allocation of the suit property to the 3rd Defendant has never been challenged or revoked.
45.Whilst still under cross-examination, the witness testified that by the time the land was being allocated to and in favour of the 3rd Defendant, the 3rd Defendant was already in existence. In addition, the witness averred that the 3rd Defendant lawfully obtained the Grant over and in respect of the suit property and thereafter sold the suit property to the Plaintiffs.
46.Moreover, it was the testimony of the witness [PW1] that the 3rd Defendant was issued with a letter of allotment dated the 26th June 1999. Besides, the witness added that the letter of allotment was issued by the Commissioner of lands.
47.The witness further testified that the 1st Plaintiff herein has been issued with several requests on account of payment of rates. Furthermore, the witness added that the 1st Plaintiff has paid the rates at the foot of the various requests.
48.It was the further testimony of the witness that the Department of defence did not accrue any certificate of title over and in respect of the suit property. Besides, the witness averred that the suit property lawfully belongs to the Plaintiffs.
49.Regarding the document at page 43 of the Plaintiff list and bundle of documents, the witness averred that same is a letter from the office of the Directorate of Prosecution. In any event, the witness testified that the letter in question confirm[s] that the suit property belongs to the Plaintiffs.
50.It was the testimony of the witness that the department of defence entered onto the suit property by force. In this regard, the witness averred that the Plaintiffs have not been able to access the land in question. In any event, it was stated that the property has a perimeter wall that was constructed by the 2nd Plaintiff.
51.Whilst still under cross examination by learned counsel for the 5th Defendant, the witness averred that there were investigations undertaken as pertains to the veracity of the certificate of title. Nevertheless, the witness averred that the investigations confirmed that the certificate of title was valid. To this end, the witness referenced the letter at page 45 of the Plaintiffs’ bundle of documents.
52.Upon being referred to the document at page 52 of the Plaintiffs’ bundle of documents, the witness averred that the document in question is a letter by the 4th Defendant. Furthermore, the witness added that the letter in question expressly admitted the existence of the Plaintiffs’ certificate of title.
53.Regarding the document at page 74 of the Plaintiff list and bundle of documents, the witness averred that same is a document from the City County Council of Nairobi [now defunct]. In addition, the witness averred that the city council of Nairobi was confirming that the suit property belongs to the 1st Plaintiff.
54.Upon being referred to the document at page 7 of the Plaintiffs’ list and bundle of documents, the witness averred that the document in question shows that the land was duly surrendered. Moreover, the witness testified that the Honourable Attorney General has also confirmed that the land in question was duly surrendered.
55.Additionally, it was the testimony of the witness that the Plaintiffs have never received any letter countermanding the contents of the letter that was written by the Honourable Attorney General. In this regard, the witness reiterated that the suit property was surrendered back to the government.
56.Whilst still cross examination, the witness averred that the government never raised any complaint as regards the letter of allotment. In particular, the witness averred that no complaint has been raised over the suit property to date.
57.It was the further testimony of the witness that to the contrary the Honourable Attorney General and the Registrar of titles have all confirmed that the Plaintiffs’ title to the suit property is valid. To this end, the witness referenced the documents at pages 41 to 45 of the Plaintiffs bundle of documents. In particular, the witness contended that the certificate of title to the suit property is lawful.
58.Whilst still under cross examination, the witness averred that the document at page 74 of the Plaintiff bundle of document emanates from the city county of Nairobi. In any event, the witness testified that the document was addressed to the Chief Executive Officer of the Plaintiffs. Furthermore, the witness averred that the document in question relates to the suit property.
59.It was the further testimony of the witness that the Plaintiffs herein have paid rates to and in favour of the City County Council of Nairobi. Furthermore, the witness averred that the rates were being paid over and in respect of the suit property.
60.Regarding the document at page 54 of the Plaintiff list and bundle of documents, the witness averred that same is a letter dated the 13th July 2022. In any event, the witness added that the letter in question was written by the firm of M/s Rayani & Sevani Advocates on behalf of the 2nd Plaintiff.
61.Moreover, the witness averred that the letter in question was addressed to the commissioner of lands and made to the attention of the Registrar of Titles. Furthermore, the witness testified that the letter was in respect of various issues, whose details are contained/ highlighted in the body of the letter.
62.On further cross examination, the witness averred that the letter by and on behalf of the Plaintiffs was responded to by the Commissioner of Land. To this end, the witness referenced the letter dated 7th March 2001 from the commissioner of lands. In particular, the witness averred that the commissioner of land responded to the enquiries and confirmed that there was no defect as pertains to the Plaintiffs title.
63.Upon being referred to the document at page 51 of the Plaintiff list and bundle of document, the witness averred that the document is a letter dated the 25th June 1996. Furthermore, the witness averred that the letter emanated from the ministry of land and settlement. Besides, the witness testified that the letter relates to the land vesting in the Government.
64.Whilst still under cross examination, the witness testified that the land in question indeed vested in the Government. Furthermore, the witness testified that subsequently, the land was allocated to the 3rd Defendant who was duly issued with a letter of allotment.
65.Regarding the document at page 23 of the Plaintiff list of documents, the witness averred that same is the Grant. Moreover, the witness also testified that there is also a transfer of Grant. To this end, the witness referenced the transfer dated the 20th March 2001.
66.It was the further testimony of the witness that the 5th Defendant carried out various searches over and in respect of the suit property. In this regard, the witness averred that the certificate of official search undertaken by the 5th Defendant were undertaken about 4 years from the date of registration of the suit property in the name of the 1st Plaintiff. In this regard, the witness reiterated that the Ministry of Land confirmed that the land belongs to the 1st Plaintiff.
67.It was the further testimony of the witness that the 5th Defendant was undertaking the search over and in respect of the suit property because there was an intended transaction between the 5th Defendant and the 1st Plaintiff. However, the witness averred that the transaction was never completed.
68.On cross examination by learned counsel for the 2nd Interested party, the witness averred that it is the Plaintiffs herein who have filed the suit. Furthermore, the witness added that the 2nd Interested party was sued because same [Bank] had granted a banking facility to the 2nd Plaintiff herein. In addition, the witness averred that the title of the suit property was the one deployed for purposes of securing the facility.
69.It was the further testimony of the witness that the Banking facility which was offered by the Bank to and in favour of the 2nd Plaintiff is still outstanding and in arrears.
70.Regarding the documents at pages 31 to 39 of the 2nd Interested Party’s List and Bundle of Documents, the witness averred that same are letters from the bank to the 2nd Plaintiff herein relating to various facilities that were granted by the 2nd interested Party. Furthermore, the witness averred that the banking facility was procured vide simple deposit of the certificate of title in respect of the suit property.
71.Respecting the document at page 58 of the 2nd interested party’s list and bundle of document, the witness averred that the document in question is a professional undertaking relating to the release of titles for purposes of amalgamation. Nevertheless, the witness averred that the said intended amalgamation did not materialize.
72.It was the further testimony of the witness that the suit property was to be sold to Jewel Limited. However, the witness clarified that the intended sale collapsed and did not materialize.
73.On cross examination by learned counsel for the 1st Interested party, the Witness averred that the Plaintiffs undertook due diligence over and in respect of the suit property. In particular, the witness averred that the 2nd Plaintiff procured and obtained a copy of the letter of allotment that was issued to the 3rd Defendant.
74.It was the further testimony of the witness that the letter of allotment which the Plaintiffs’ have tendered before the court is dated the 26th June 1999. Nevertheless, the witness added that the letter of allotment beforehand is incomplete.
75.On further cross examination, the witness testified that the Plaintiff herein sought for confirmation from the commissioner of land. Furthermore, the witness added that the commissioner of land responded vide letter dated the 7th march 2001.
76.It was the further testimony of the witness that the land in question was compulsorily acquired. In this regard, the witness averred that the land ultimately vested in the Government of Kenya.
77.The witness further testified that following the compulsory acquisition the commissioner of land duly issued the notice of taking possession. To this end, the witness referenced the document at page 108 of the Plaintiffs’ list and bundle of document. In any event, the witness averred that the notice of taking possession was duly registered.
78.On re-examination, the witness averred that the Plaintiffs’ herein undertook due diligence before purchasing the suit property. Moreover, the witness averred that the ministry of land made various confirmation vide letters. In any event, it was the testimony of the witness that the Plaintiffs proceeded to and relied on the assurances from the Ministry of lands.
79.Whilst still under further re-examination, the witness averred that same was shown a copy of the certificate of incorporation of the 3rd Defendant. Nevertheless, the witness acknowledged that from the Certificate of Incorporation of the 3rd Defendant, it appears that same was incorporated long after the issuance of Letter of allotment.
80.It was the further testimony of the witness that the 3rd Defendant was issued with a Grant. Furthermore, the witness averred that the grant in question was signed by the President and the Commander in chief of the armed forces. In this regard, the witness testified that the allocation of the suit property was therefore authorized by the President.
81.The witness further testified that the Plaintiffs herein bought the suit property from the allottee, namely; the 3rd Defendant. In any event, the witness testified that the purchase [acquisition] was premised on the various assurances that were made/issued by the Ministry of Lands and settlement.
82.The second witness, who testified on behalf of the Plaintiffs was one Sammy Mwaita. Same testified as PW2.
83.It was the testimony of the witness that same was previously the commissioner of land. To this end, the witness averred that same was the commissioner of land between the year[s] 1999 to 2002. Furthermore, the witness averred that by virtue of being the commissioner of lands his mandate included allocation and alienation of land; execution of Grant[s] and leases. However, the witness added that same would execute grant and leases where authorized under the law.
84.Furthermore, the witness averred that same executed his mandate on behalf of the President of the Republic of Kenya.
85.Upon being referred to the document at page 23 of the Plaintiffs’ list and bundle of documents, the witness averred that same is a grant. In addition, the witness stated that the grant in question was prepared by the office of the Chief Land Registrar and thereafter same was registered on the 24th January 2001. For good measure, the witness testified that the grant was registered by one Elizabeth Gicheha, who was the Registrar of titles.
86.It was the further testimony of the witness that before the Grant before the court was executed, same received instructions from the President. Moreover, the witness testified that the execution of the grant was preceded by a meeting at state house, wherein same [Witness] was present.
87.Furthermore, the witness testified that the meeting was also attended by officers from the Department of Defence. It was the further testimony of the witness that the meeting at state house was chaired by the President namely,H.E Daniel Toroitich Arap Moi, [now deceased]. In this regard, the witness averred that a resolution was reached and arrived at that the department of defence was to relinquish the land back to the government because same did not utilize the land.
88.Additionally, the witness averred that the Department of Defence consented to relinquish the land. In this regard, the witness proceeded to and testified that thereafter a letter was written by one Mr. Tilitei who was the Deputy Secretary in charge of Defence.
89.It was the further testimony of the witness that arising from the letter which was written to his office, same [witness] proceeded to and issued a letter of allotment.
90.Regarding the letter dated the 24th October 2002, the witness averred that same was written by one Valarie Onyango who was the Deputy Chief Litigation Counsel. To this end, the witness averred that the contents of the said letter were explicit. In any event, the witness averred that upon receipt of the letter under reference, the office of the commissioner of land proceeded to and executed the letter of allotment.
91.The witness further testified that at the time when same issued the letter of allotment, there was no requirement for a certificate of incorporation. Moreover, the witness testified that the certificate of incorporation would only be required at the tail end of the process.
92.Upon being referred to page 53 of the Plaintiff list and bundle of documents, the witness averred that same is a letter written by one Serah Mwenda. The witness stated that the contents of the said letter affirm that the Land in question belongs to the Plaintiffs.
93.On cross examination by learned counsel for the 1st Defendant, the witness averred that the land in question was compulsorily acquired for the Department of Defence. In any event, the witness testified that same was/is conversant with the process of compulsory acquisition.
94.Whilst still under cross examination, the witness testified that the process of compulsory acquisition includes gazettement of the notice of intention to acquire as well as issuance of notice of taking possession. The witness further testified that the Ministry of Defence [the Military] indeed took possession of the suit property.
95.It was the further testimony, that the land in question was surrendered to the government. In particular, the witness testified that the meeting that led to the surrender of land included various persons.
96.On further cross examination, the witness testified that the various persons included officers from the Department of Defence. Furthermore, the witness testified that after the meeting, a letter was written by the Deputy Secretary in charge of Security.
97.Moreover, the witness testified that once land was acquired there would be an entry in the title. Nevertheless, the witness averred that the surrender herein was not registered.
98.Whilst still under cross examination, the witness testified that the land in question was compulsorily acquired for the ministry of defence. Moreover, the witness averred that same was not conversant with who is the accounting officer of ministry of defence.
99.It was the further testimony of the witness that the land in question was subsequently allocated to the 3rd Defendant. To this end, the witness averred that the 3rd Defendant was issued with a letter of allotment.
100.Regarding whether a letter of allotment could issue before the incorporation of a company, the witness averred that same is not conversant with matters pertaining to incorporation of Companies. Nevertheless, the witness added that a letter of allotment could indeed be issued even before a company is duly registered.
101.On further cross examination, the witness testified that the 26th June 1999 was a Saturday. To this end, the witness averred that the letter of allotment in favour of the 3rd Defendant was issued on a Saturday. Moreover, the witness testified that Saturday was not a working day.
102.It was the further testimony of the witness that nevertheless, there were days that same [witness] could to work [on Saturday]. However, the witness acknowledged that the letter of allotment is a statutory document and thus could only be issued during official days.
103.On cross examination by learned counsel for the 4th Defendant, the witness averred that same did not have any power to allocate or alienate government land. However, the witness added that his mandate was delegated and could act on behalf of the President.
104.It was the further testimony of the witness that same is privy to the letter of allotment. In addition, the witness averred that the letter of allotment had special conditions. However, the witness testified that the land in question had already been surveyed and on the basis of survey there was no need of a Part Development Plan [PDP].
105.Whilst still under cross-examination, the witness testified that the back-page of a letter of allotment is a very important page. In any event, the witness clarified that it is the back-page of a letter of allotment that would contain the signature of the commissioner of lands.
106.Regarding the document at page 29 of the 2nd and 4th Defendants’ bundle of documents, the witness averred that the document in question is a judgment relating to compulsory acquisition. Furthermore, the witness testified that the judgment was dated the 3rd June 1987.
107.Whilst still under cross-examination, the witness testified that the letter of allotment was issued in respect of land that had been compulsorily acquired. Nevertheless, the witness added that the allotment of the Land followed a meeting that was held at the state house.
108.Additionally, it was the testimony of the witness that the land in question was bushy and the military had relinquished the land. In any event, the witness averred that the meeting at state house was attended by various persons from the Department of Defence. In particular, the Witness averred that there was in attendance Leuitenant [Lt] General Koech who was the Deputy Chief of Staff. In addition, the witness averred that the meeting was also attended by the deputy secretary in charge of security.
109.On further cross examination, the witness testified that there was no Deed of surrender. Nevertheless, the witness clarified that there was a letter that was written by the Deputy Secretary in charge of Security.
110.On further cross examination, the witness testified that the land in question became government land. In this respect, the witness averred that same proceeded to and issued a grant in favour of the 3rd Defendant.
111.On cross examination by learned counsel for the 5th Defendant, the witness averred that the letter of allotment was made pursuant to the provisions of the Government Land Act, Chapter 280, Laws of Kenya. However, the witness added that the title was to be issued under the Registration of Titles Act, Chapter 281, Laws of Kenya.
112.Be that as it may, the witness testified that there was no complaint that was raised with him from the office of the Honourable Attorney General.
113.On further cross examination, the witness testified that the gazette notices for compulsory acquisition was in respect of the Department of Defence. Nevertheless, the witness highlighted that the gazette notice did not refer to the Department of Defence.
114.Regarding the document at page 32 of the Plaintiffs list and bundle of document, the witness averred that same is a letter from the Deputy Chief valuation officer. In particular, the witness averred that the letter concerned the taking of possession of the land. Furthermore, the witness testified that the acquiring authority was the ministry of lands on behalf of the department of defence[ Military].
115.Whilst still under cross examination, it was the testimony of the witness that no title was ever issued in favour of the department of defence. In this regard, the witness added that in the absence of certificate of title there would be nothing to surrender. Moreover, the witness averred that the letter by the Deputy Secretary of Security suffice.
116.Regarding the document at page 53 of the 1st Defendant list and bundle of documents, the witness stated that the same is a certificate of incorporation of the 3rd Defendant. In any event, the witness added that the 3rd Defendant was incorporated before the issuance of the Grant.
117.Regarding the document on page 51 of the Plaintiff's bundle of documents, the witness averred that same is the notice of taking possession. In any event, the witness clarified that the notice of taking possession confirmed that the land was vesting in the Government.
118.It was the further testimony of the witness that even though the land was vesting in the government, there is nothing to indicate that the land vested in the government on behalf of the Department of Defence. To this end, the witness averred that the land in question was therefore available for alienation.
119.On re-examination, the witness stated that the land in question was allocated to and in favour of the 3rd Defendant. Furthermore, it was stated that the land was allocated on concessionary rates and not at market rates.
120.With the foregoing testimony, the Plaintiffs’ case was closed.
121.The 1st Defendant’s case is premised on the evidence of one witness, namely; Major Julius Meso. Same testified as DW1.
122.It was the testimony of the witness [DW1], that same is currently an employee of the Department of Defence. Furthermore, the witness averred that same currently serves as the staff officer II in charge of lands and physical planning at the Defence Headquarters, Ministry of Defence. Besides, the witness averred that his duties include management of land records pertaining to all military lands within the Republic of Kenya.
123.It was the further testimony of the witness that same is also a registered Physical Planner and thus same is conversant with matters pertaining to physical planning and incidental matters. In any event, the witness averred that same holds a Bachelor's degree in urban and planning from the University of Nairobi; and a Master’s degree in Geographic systems.
124.Moreover, it was the testimony of the witness that same recorded a witness statement dated 17th July 2023 and which witness statement the witness sought to adopt and rely on as his evidence in chief. To this end, the witness statement under reference was adopted and constituted as the evidence in chief of the witness.
125.Additionally, the witness referenced the list and bundle of documents dated 2nd December 2022, containing 31 documents and which documents the witness sought to adopt and rely on as exhibits on behalf of the 1st defendant. There being no objection to the production of various documents as exhibits before the Court, same were produced and admitted as exhibits D1–D31 on behalf of the 1st defendants.
126.It was the further testimony of the witness that the 1st defendant has also filed an amended statement of defence and which statement of defence the witness sought to adopt and rely on. Furthermore, the witness averred that same is conversant with L.R NO. 5875/2, which is the suit property. Besides, the witness averred that the suit property was compulsorily acquired on behalf of the Department of Defence.
127.It was the further testimony of the witness that upon the compulsory acquisition of the suit property, the commissioner of lands [now defunct] proceeded to and issued a notice of the taking of possession. Besides, the witness averred that the military thereafter entered upon and took possession of the suit property.
128.In addition, the witness testified that the military has never surrendered the land. In this regard, the witness averred that the suit property was therefore not unalienated government land capable of being allocated or at all. To this end, the witness testified that the allocation of the suit property to the third Defendant was therefore irregular, illegal and unlawful.
129.On cross-examination by learned counsel for the 2nd and 4th defendants, the witness averred that same is conversant with the process of compulsory acquisition. Furthermore, the witness testified that the suit property was acquired for the Department of Defence. In this regard, it was the testimony of the witness that upon compulsory acquisition, the Department of Defence [military] entered upon and took possession of the suit property in 1986.
130.While still under cross-examination, the witness averred that the military has never vacated the suit property to date. Furthermore, the witness averred that the suit property lawfully belongs to the military and not the Plaintiffs. In any event, the witness testified that the Plaintiffs have no lawful rights to and in respect of the suit property.
131.The witness further testified that the land in question was never surrendered back to the government. In this regard, it was the testimony of the witness that the land still belongs to the military. In addition, the witness averred that no steps have been taken to surrender the land back to the Government.
132.Regarding the letter dated 24th October 2002, the witness averred that the letter in question was written by one v Onyango on behalf of the Honourable Attorney General. Furthermore, the witness added that the letter was addressed to the commissioner of lands.
133.While still under cross-examination, the witness testified that the process of compulsory acquisition was concluded. Furthermore, the witness averred that the commissioner of lands issued and served the notice of taking of possession. To this end, the witness testified that the land in question lawfully belongs to the military.
134.It was the further testimony of the witness that the suit property was acquired for public purposes. Moreover, the witness clarified that the public purpose that underpinned the compulsory acquisition was for military use. Nevertheless, the witness added that the interest of the military was duly registered and noted on the register of the land. To this end, the witness referenced the document at page 22 of the 1st Defendant's List and bundle of documents.
135.Upon being referred to document number 33 at the foot of the 1st defendant’s list and bundle of documents, the witness averred that the documents in question is the notice of taking of possession in respect of L.R 5875/2. Additionally, the witness averred that the notice of taking of possession was issued by the Commissioner of lands [now defunct] and the possession was being taken on behalf of the military.
136.The witness further testified that if anyone was to undertake due diligence as pertains to the land in question, such a person would be able to discover that there was a notice of taking of possession which was registered. Furthermore, the witness averred that the title which was issued to and on behalf of the 3rd defendant and by extension the Plaintiffs herein is illegal and unlawful.
137.On cross-examination by learned counsel for the 5th defendant, the witness averred that same is aware that a notice of taking of possession was indeed issued. In addition, the witness averred that the notice was in respect of the taking of possession by the military. Furthermore, the witness testified that there is a military camp on the suit property.
138.While still under cross-examination, the witness averred that the suit property is developed. Nevertheless, the witness testified that same has not tendered and or produced any photographic [pictorial] evidence to show the nature of developments on the suit property.
139.It was the further testimony of the witness that same is not aware that Kasarani Mall Ltd has been paying rates over the suit property. However, upon being shown the documents at page 85 of the Plaintiff’s list and bundle of documents, the witness averred that same is a letter from the ministry of lands. Furthermore, the witness added that the letter in question was in respect of the suit property.
140.On further cross-examination, the witness testified that the military took possession of the suit property in the year 1986. Nevertheless, upon being referred to the document at page 95 of the Plaintiff's list and bundle of documents, the witness averred that same suggests that the land belongs to Kasarani Mall Ltd.
141.It was the further testimony of the witness that the land in question had never been surrendered to the government. Moreover, the witness testified that the land has a perimeter wall around the same [suit property]. Besides, the witness testified that the wall was constructed by the military.
142.While still under cross-examination, the witness averred that previously the military had constructed a workshop on the suit property. However, it was the testimony of witness that the workshop was later removed and relocated elsewhere.
143.In addition, the witness testified that same is aware of the notice of taking of possession. Furthermore, the witness averred that the notice of taking of possession of the land does not state that the military are the ones taking possession of the land. Nevertheless, the witness averred that the land having been acquired on behalf of military, the military are the ones who took possession of the land. In any event, the witness clarified that the acquisition of the land was for military use/purpose.
144.Regarding a certificate of title issued in the name of the 1st Plaintiff, the witness stated that the title was issued by the commissioner of lands. Furthermore, the witness averred that the title confirms that the suit property is registered in the name of Kasarani Mall Ltd.
145.While still under cross examination, the witness averred that despite the fact that the certificate of title was issued to and in favour of the 1st Plaintiff, the certificate of title was irregular, fraudulent and thus illegal. In addition, the witness averred that the land in question stood alienated on the basis of compulsory acquisition. Moreover, the witness testified that the land in question was compulsorily acquired on behalf of the military.
146.The witness further testified that the department of defence lodged a complaint with the directorate of criminal investigations [DCI] seeking to have the allocation of the suit property to a third party to be investigated. To this end, the witness referenced the contents of paragraph 23 of his witness statement.
147.It was the further testimony of the witness that same is aware that the 2nd Plaintiff herein had advertised the suit property. In this regard, the witness referenced the advertisement dated 11th March 2005 and which was carried in the daily Nation newspaper. Nevertheless, the witness testified that the advertisement in the daily newspaper does not amount to proof of title.
148.It was the further testimony of the witness that the director of prosecution wrote a letter addressed to the Chief Land Registrar. Furthermore, the witness averred that the letter in question touched on and concerned the suit property. Besides, the witness averred that the letter under reference indicated that the title over the suit property was properly issued to the 1st Plaintiff. In addition, the witness averred that the letter under reference also intimated that the caveat that had been registered over the suit land be removed.
149.Additionally, the witness testified that same has since tendered and produced a copy of the letter that was written by the department of defence to the directorate of criminal investigations. To this end, the witness referenced the document at page 57 of the 1st Defendant’s bundle of documents.
150.It was the further testimony of the witness that same is aware that a Grant was issued in respect to the suit property. Furthermore, the witness averred that the grant was issued by and on behalf of the President of the Republic of Kenya.
151.Moreover, the witness testified that the department of defence [Military] wrote a letter dated 6th January 2017 seeking clarification over the status of the suit property which had been acquired on behalf of the military. In this regard, the witness referenced the document at page 54 of the 1st Defendant’s bundle of documents.
152.Regarding whether the 5th Defendant acquired any lawful rights to and in respect of the suit property, the witness averred that the 5th Defendant has no lawful rights to and in respect to the suit property. In any event, the witness added that the 1st Plaintiff who was attempting to sell the suit property to the 5th Defendant had no rights to and or interests over the suit property.
153.It was the further testimony of the witness that the commissioner of land [now defunct] indeed issued and served the notice of taking of possession of the suit property. Furthermore, the witness averred that the notice of taking possession related to the possession by the military.
154.On cross examination by learned counsel for the Plaintiffs’ the witness averred that the department of defence was never issued with a certificate of title. Nevertheless, the witness averred that despite not having been issued with a certificate of title, the land lawfully belongs to the military. Moreover, the witness averred that the process of compulsory acquisition was concluded.
155.It was the further testimony of the witness that the compensation money was duly paid. Besides the witness testified that the compensation money was paid by the military.
156.While still under further cross examination, the witness averred that it is the commissioner of lands who undertook the compulsory acquisition on behalf of the military. In this regard, the witness referenced the gazette notices which were published by the commissioner of Lands. Besides, the witness also referenced the letter at page 43 of the Plaintiff’s bundle of documents.
157.The witness testified that the military indeed took possession of the suit property. In particular, the witness averred that the military entered upon and took possession of the suit property in the year 1986. Furthermore, the witness testified that the military have never surrendered the land back to the government.
158.On cross examination the learned counsel for the 2nd interested party, the witness averred that the suit property was acquired on behalf of the 1st defendant. In addition, the witness testified that the military subsequently got to know of the fraud attendant to the suit property. In this regard, the witness averred that the military thereafter wrote a letter of Complaint to various agencies inter alia the National Land Commission.
159.While still under cross examination, the witness averred that the notice of taking of possession was duly registered at the Land registry. Furthermore, the witness added that same has since filed and lodged a copy of the Memorandum of registration before the court.
160.On cross examination, the learned counsel for the 1st Interested party, the witness averred that the land in question was acquired on behalf of the military. Furthermore, the witness testified that the military are the ones who are in possession of the suit property.
161.Moreover, the witness testified that the land having been compulsorily acquired for the military, same [land] was not available for allocation. In this regard the witness reiterated that the allocation of the suit property was therefore irregular and fraudulent.
162.With the foregoing testimony, the 1st Defendant’s case was duly closed.
163.The 2nd and 4th Defendants’ called one witness, namely, Ojwang Omollo Patroba. Same testified as DW2.
164.It was the testimony of the testimony of the witness [DW2] that same is an Assistant Director of Land Administration at the Ministry of Lands, Public Works, Housing and Urban Development. Furthermore, the witness averred that by virtue of his portfolio same is conversant with and knowledgeable of the facts of this matter.
165.The witness further testified that same has since recorded and filed a witness statement dated 14th December 2023 and which witness statement the witness sought to adopt and rely on. To this end, the witness statement under reference was duly adopted and thereafter constituted as the evidence in chief of the witness.
166.Additionally, the witness referenced the list and bundle of documents dated 14th November 2022 containing 23 documents and which documents the witness sought to tender and produce as exhibits. There being no objection to the production of the documents same were duly admitted and marked as exhibits D1 to D23 on behalf of the 2nd and 4th defendants.
167.Moreover, the witness testified that the 2nd and 4th defendants have also filed an amended statement of defence dated 20th February 2023 and which statement of defence the witness sought to adopt and rely on.
168.On cross-examination by learned counsel for the Plaintiffs, the witness averred that same is an employee of the Ministry of Lands, Public Works, Housing and Urban Developments. Furthermore, the witness averred that same was employed in the year 2006.
169.While still under cross examination, the witness testified that same is aware that the commissioner of lands is the one tasked with the mandate of allocating land. Nevertheless, the witness averred that same is not aware whether the suit property was surrendered back to the government.
170.Regarding a letter dated 24th October 2002, the witness testified that same was authored/written by one v Onyango and that the contents of the letter suggest[s] that the land was surrendered to the commissioner of lands. Nevertheless, it was the testimony of the witness that the letter in question does not form part of the record of the Ministry of lands.
171.While still under cross examination, the witness averred that same is not aware whether the Plaintiffs herein undertook due diligence over and in respect of the suit property. Nevertheless, the witness averred that had the Plaintiffs’ undertaken due diligence, same [Plaintiffs’] would have discovered that the notice of taking of possession was duly registered.
172.Upon being referred to the letter dated 20th February 2001, the witness averred that the said letter was written by the Registrar of titles on behalf of the commissioner of lands. Moreover, the witness testified that the contents of the letter suggests that the suit property was available for allocation.
173.Regarding the letter dated 7th March 2001, the witness averred that the letter in question came from the Ministry of lands. Nevertheless, it was the testimony of the witness that the said letter does not form part of the records of the Ministry of lands.
174.On further cross examination, the witness testified that the 1st Plaintiff currently owns [has] a certificate of title over the suit property. However, it was averred that the certificate of title was procured irregularly and illegally.
175.Upon being referred to the letter dated 30th April 2008, the witness averred that the letter in question came from the office of the director of public prosecution. Besides the witness testified that the letter was addressed to the ministry of lands. However, it was the further testimony of the witness that the letter from the directorate of public prosecution does not form part of the records of the ministry of lands and thus same could not verify the authenticity thereof.
176.While under cross examination, the witness testified that same is aware that the Ministry of lands has been demanding land rents from the Plaintiffs. To this end, the witness averred that same has seen the various letters relating to demand for land rents.
177.It was the further testimony of the witness that anyone seeking to acquire land is obligated to undertake due diligence. Furthermore, the witness added that due diligence would also involve undertaking a physical search on the land in question.
178.On cross examination by learned counsel for the 2nd Interested party, the witness averred that same is testifying before the court on behalf of the Chief Land Registrar and the Honourable Attorney General. Moreover, the witness averred that certificates of titles are ordinarily kept under the custody of the chief land registrar while documents pertaining to allotment of land are kept by the office of the directorate of land administration.
179.In addition, it was the testimony of the witness that same has not tendered and or produced any certificate of official search showing that the land in question was ever registered in the name of the Department of Defence. Furthermore, the witness testified that no certificate of title was issued in the name of the Department of Defence.
180.It was the further testimony of the witness that on the contrary same has come across documents showing that the suit property was previously allocated to the third Defendant. In particular, the witness testified that the 3rd Defendant was even issued with a certificate of title. In addition, the witness averred that the documents at pages 30 – 33 of the Plaintiff’s bundle of documents, relates to the transfer of the suit property from the 3rd Defendant to the 1st Plaintiff.
181.It was the further testimony of the Witness that the documents at pages 39 – 40 of the Plaintiff’s bundle of documents relates to a letter on the letter head of the Honourable Attorney General. Furthermore, the witness testified that the contents of the letter relates to the suit property. Besides, the witness averred that the contents of the letter suggests that the suit property was lawfully acquired by the 3rd Defendant.
182.While still under cross examination, the witness testified that from the contents of the letter from the Honourable Attorney General was recommending the removal of the caution/caveat that had been registered on the land. However, the witness testified that same is not aware whether the caveat was removed.
183.Additionally, it was the testimony of the witnesses that there was also a mortgage/charge that was registered against the register of the suit property. Moreover, the witness averred that the mortgage in question was in favour of Kenya Commercial Bank Limited.
184.It was the further testimony of the witness that same has never seen any order from a court of law nullifying the certificate of title in the name of the Plaintiffs. Furthermore, the witness averred that there is no case that has ever been filed by the Registrar of titles seeking to nullify the certificate of title held by the 1st Plaintiff.
185.On cross-examination by learned counsel by 5th Defendant, the witness testified that same has since recorded a witness statement. Furthermore, the witness averred that by virtue of his office, same is conversant with the facts of this case. In addition, the witness testified that same is aware that the Commissioner of lands issued and served a notice of taking of possession of the suit property.
186.Moreover, the witness testified that the notice of taking of possession was issued on behalf of the department of defence. Nevertheless, the witness added the notice of taking of possession itself did not reference the military.
187.While still under cross-examination, the witness testified that the notice of taking of possession vested the land in government. Nevertheless, the witness averred that the vesting of the land in the government does not reference the military. In addition, the witness testified that same does not have any document to show that the land has ever been transferred to and registered in the name of the Department of Defence.
188.Regarding the gazette notices, the witness averred that same reference[s] the department of defence. Furthermore, the witness testified that the suit land was registered in the name of the 3rd Defendant, who thereafter transferred same to the 1st Plaintiff. However, the witness clarified that the land in question was never available for allocation.
189.Regarding the contents of paragraph 22 of the witness statement, the witness averred that the allocation of the suit property to the 3rd Defendant was undertaken during the pendency of the case challenging the vesting order. Nevertheless, the witness confirmed that the land indeed vested in the government.
190.With the foregoing testimony, the case on behalf of the 2nd and 4th Defendants was closed.
191.The 5th Defendant’s case is premised on the evidence of one witness, namely; Alex Tranchtenberg. Same testified as DW3.
192.It was the evidence of the witness that same is a director and shareholder of the 5th Defendant. Furthermore, the witness averred that by virtue of being a director of the 5th Defendant, same [Witness] is therefore authorized and mandated to appear for and on behalf of the 5th Defendant in legal proceedings.
193.The witness further testified that as concerns the instant matter, same has since recorded and filed a witness statement dated 29th September 2022. In this regard, the witness sought to adopt and rely on the witness statement under reference. Suffice it to state that the witness statement dated 29th September 2022 was thereafter admitted and constituted as the evidence in chief of the witness.
194.The witness further averred that same also recorded a further witness statement dated 12th April 2024; and which statement the witness sought to adopt and rely on as his evidence in chief. To this end, the further witness statement dated 12th April 2024 was duly admitted and constituted as further evidence in chief of the witness.
195.Moreover, the witness adverted to the list and bundle and documents dated 29th September 2022 containing 11 documents and which documents the witness sought to tender and produce before the court. There being no objection to the production of the documents, same [Documents] were duly admitted and produced as exhibits D1 – D11 on behalf of the 5th Defendants.
196.Furthermore, the witness also highlighted the further list and bundle of documents dated 6th October 2023 and thereafter sought to tender and produced the said documents as exhibits on behalf of the 5th defendants. In this regard, the documents under reference were duly admitted and marked as exhibits D12 to D13, respectively.
197.It was the further testimony of the witness that the 5th Defendant has also filed an amended statement of defence and counterclaim dated 12th April 2023. Suffice it to state that the witness intimated that the 5th Defendant was relying on the said amended statement of defence and counterclaim.
198.In addition, the witness also referenced the reply to the statement of defence dated 12th April 2023. Moreover, the witness sought to adopt and rely on the contents of the said Statement of Defence and Counter-claim.
199.On cross examination by learned counsel for the 1st Defendant, the witness averred that same is a director of the 5th Defendant. Furthermore, the witness testified that same has since recorded and filed two [2] sets of witness statements. In particular, the witness reiterated the contents of the two sets of witness statements.
200.It was the further testimony of the witness that the 5th Defendant came to know that the suit property was being sold from an estate/property agency known as Lloyd Masika Ltd. Nevertheless, the witness averred that same did not see any document to demonstrate that the said estate agency was acting on behalf of the 1st Plaintiff.
201.Additionally, the witness averred that subsequently same proceeded to and visited the suit property. To this end, the witness testified that he visited the suit property in February 2005.
202.Moreover, the witness averred that the 5th Defendant also engaged and retained an advocate to undertake due diligence over the suit property. In this regard, the witness stated that the retained advocate indeed undertook due diligence over the suit property. Besides, the witness testified that same also attended a meeting that had been called and convened by the Managing Director of Uchumi supermarket Limited; and the 1st Plaintiff herein. However, the witness clarified that same has neither tendered nor produced any minutes arising out of the said meeting.
203.The witness further testified that the 5th Defendant paid 10% stakeholders sum to the 2nd Plaintiff. It was stated that the payment in question was sent vide cheque. In addition, the witness averred that the 2nd Plaintiff indeed received and accepted the cheque. To this end, the witness averred that the letter of acceptance by the 2nd Plaintiff has been tendered and produced as one of the exhibits on behalf of the 5th Defendant.
204.While under further cross-examination, the witness averred that Uchumi Supermarket Ltd duly accepted the offer as pertains to the sale of the suit property. In this regard, the witness testified that, arising from the same, the suit property lawfully belongs to the 5th Defendant.
205.It was the further testimony of the witness that the 5th Defendant bought/purchased the suit property from the 2nd Plaintiff. In addition, it was averred that the sale agreement was executed by the Plaintiffs and the 5th Defendant. In any event, the witness added that the 5th Defendant has agreed with the Plaintiffs over the suit property.
206.It was the further testimony of the witness that the sale agreement between the Plaintiffs was filed before the court. Moreover, the witness also contended that same has also filed the minutes relating to the sale of the suit property.
207.Regarding the document at pages 53 and 54 of the Fifth Defendant’s Documents, the witness averred that same is a letter from the Chief Land Registrar. Furthermore, the witness averred that the letter in question confirms that the suit property lawfully belongs to the Plaintiffs.
208.On cross examination by Learned counsel for the 2nd and 4th defendants, the witness averred that the 5th Defendant indeed purchased the suit property. Nevertheless, the witness conceded that same has not produced any agreement for sale of the land.
209.On cross-examination by learned counsel for the 1st Interested party, the witness averred that prior to purchasing the suit property, the 5th Defendant undertook due diligence. Furthermore, the witness testified that the 5th Defendant is therefore a purchaser for value without notice of any defect in the title of its predecessor.
210.Additionally, the witness testified that the suit property was not subject to compulsory acquisition. In this regard, the witness posited that the suit property was therefore available for allocation.
211.On cross-examination by the learned counsel for the 2nd Interested party, the witness averred that the 5th Defendant indeed entered into an arrangement to purchase the suit property. Furthermore, the witness testified that the 5th Defendant proceeded to and paid 10% deposit [stakeholder sum] towards the purchase of the suit property.
212.While still under cross examination, the witness averred that no sale agreement was ever entered into and or executed between the Plaintiffs and the 5th Defendant. In addition, the witness testified that the Plaintiffs also did not execute any transfer instruments in respect of the suit property.
213.It was the further testimony of the witness that the suit property which was being sold to the 5th Defendant was duly charged to the 2nd Interested party. Furthermore, the witness averred that same has also filed a different case namely; ELC No.1499 of 2013. In any event, the witness averred that the said case is still pending before the Environment and land court at Milimani-Nairobi.
214.On cross examination by learned counsel for the Plaintiffs, the witness averred that the 5th Defendant duly undertook due diligence. In addition, the witness testified that the 5th Defendant established and confirmed that the suit property was available.
215.On re-examination, the witness averred that same has not tendered the minutes arising from the meeting held on 1st of March 2005. Nevertheless, the witness averred that the meeting in question was called by the managing director of the 2nd Plaintiff.
216.While still under re-examination, the witness averred that the suit property was sold to and in favour of the 5th Defendant. Moreover, the witness testified that the Plaintiffs’ herein accepted the offer by the 5th Defendant.
217.It was the further testimony that the 5th Defendant holds an interest over and in respect of the suit property. In addition, the witness testified that the 5th Defendant entered into a sale arrangement with the 1st and 2nd Plaintiffs. Nevertheless, the witness acknowledged that same has neither tendered nor produced an agreement for sale. For good measure, the witness confirmed that no sale agreement was ever entered into between the Plaintiffs on one hand; and the 5th Defendant on the other hand.
218.With the foregoing testimony, the 5th Defendant’s case was closed.
219.The 1st Interested party did not call any witness. For coherence, the 1st Interested party’s case was closed without any evidence having been tendered and or produced.
220.The 2nd Interested parties’ case is premised on the evidence of one witness, namely; Oscar Ombuna. Same testified as IW1.
221.It was the testimony of the witness [IW1] that same is currently employed by the 2nd Interested party as the Recoveries Officer and that by virtue of his portfolio same [witness] is conversant with and knowledgeable of the facts of the case.
222.The witness further averred that same has since recorded and filed a witness statement dated 18th June 2024 and which witness statement the witness sought to adopt and rely on as his evidence in chief. Suffice to state that the witness statement was thereafter adopted and constituted as the evidence in chief of the witness.
223.Additionally, the witness referenced the list and bundle of documents dated 8th November 2022 containing 17 documents and which documents the witness sought to produce on behalf of the 2nd interested party. In this regard, the documents under reference were ultimately produced and admitted as exhibits 1-17 on behalf of the 2nd interested party.
224.Moreover, the witness averred that the 2nd interested party had also filed a statement of defence. To this end, the witness referenced the statement of defence dated 8th November 2022 and which statement of defence the witness sought to rely on.
225.On cross-examination by learned counsel for the Plaintiffs’ the witness testified that the 2nd interested party undertook due diligence over and in respect of the suit property prior to and before granting banking facilities to the 2nd Plaintiff. Furthermore, the witness testified that the title of the suit property was pledged as security in favour of the 2nd interested party.
226.While still under cross-examination, the witness averred that the 2nd interested party, granted to and in favour of the 2nd Plaintiff, a banking facility in the sum of Kshs.1, 300,000,000/= only. In any event, it was stated that the facility in question has not been repaid in full. For good measure, the witness averred that the facility in question is still in arrears.
227.It was the further testimony of the witness that the 2nd interested party is still owed monies by the plaintiffs herein. In this regard, the witness averred that the 2nd interested party would be on the verge of losing the sum of more than Kshs.1,200,000,000/= if the court decreed that the suit property belongs to the Department of Defence.
228.It was the further testimony of the witness that the 2nd interested party indeed undertook due diligence prior to perfecting the charge in respect of the suit property. In any event, the witness testified that the 2nd interested party was not privy to and or aware of the compulsory acquisition.
229.Moreover, the witness testified that the interest about the compulsory acquisition was not even mentioned in the case namely, ELC 495 of 2011.
230.While still under cross-examination, the witness testified that the Plaintiffs herein did not mention to the bank [2nd interested party] that there existed third-party claims in respect of the suit property. In any event, it was also averred that the certificate of title which was under the custody of the 1st Plaintiff, showed that the suit property was duly registered in the name of the 1st Plaintiff.
231.Additionally, the witness testified that the suit property is currently occupied by the Department of Defence, namely, the Military. To this end, the witness testified that the Plaintiffs have been deprived of their rights to the suit property.
232.On cross-examination by learned counsel for 5th Defendant, the witness averred that the 2nd Interested party indeed advanced monies to the 2nd Plaintiff on the security of the suit property. Furthermore, the witness averred that the 2nd Plaintiff also applied for further funding from the 2nd interested party.
233.Moreover, the witness averred that the funding which was granted to the 2nd Plaintiff was guaranteed by the 1st Plaintiff. Moreover, the witness testified that there was also an undertaking to pay the 5th Defendant the sum of Kshs.800,000,000 only/=. In particular, the witness averred that the undertaking was based on the intended sale of the suit property to Jewel Properties Ltd. However, it was stated that the intended sale collapsed and/or failed to materialize.
234.On cross-examination, the learned counsel for the 1st interested party the witness averred that the 2nd interested party [the bank] is also co-owned by the government. To this end, the witness testified that the government owns approximately 25% portfolio in the bank.
235.It was the further testimony of the witness that the bank has well-laid-down lending policies. Furthermore, the witness averred that the lending policies entail undertaking due diligence on any property that is intended to be charged to the bank. In this regard, the witness clarified that the bank indeed undertook due diligence as pertains to the suit property.
236.While still under cross examination, the witness averred that though the bank recovered a portion of the monies that had been advanced to the 2nd Plaintiff, the facility is still in arrears. For clarity, the witness averred that the debt [Banking facility] has not been fully repaid.
237.On re-examination by learned counsel for the 2nd interested party, the witness averred that the 2nd interested party undertook due diligence before offering the banking facility in favour of the 2nd Plaintiff. In any event, the witness testified that the banking facility was secured vide the certificate of title of the suit property.
238.It was the further testimony of the witness that the certificate of title of the suit property was subsequently released to facilitate amalgamation of the suit property. To this end, the witness referenced the document at page 70 of the 2nd interested party’s list and bundle of documents.
239.While still under re-examination, the witness averred that the suit property remains charged to and in favour of the 2nd interested party on the basis of a memorandum of charge. Nevertheless, the witness clarified that the certificate of title is not in the custody of the bank.
240.It was the further testimony of the witness that the circumstances under which the certificate of title was released from the 2nd interested party have been duly documented. In any event, the witness testified that same has tendered documents relating to the release of the certificate of title of the suit property.
241.The witness further averred that the dispute before the court touches on and concerns ownership of the suit property. Nevertheless, the witness reiterated that the suit property remains charged to the 2nd interested party.
242.With the foregoing testimony, the 2nd interested party’s case was closed.
243.Upon the close of the hearing, the advocates for the parties sought to file and exchange written submissions. To this end, the court proceeded to and gave directions pertaining to the filing and exchange of the written submissions. Furthermore, the court also ventured forward and circumscribed the timeline[s] for filing and exchange of the written submissions.
244.The Plaintiff proceeded to and filed two [2] sets of written submissions. The first set of written submissions is dated the 17th January 2025 and wherein the Plaintiff has highlighted the nine [9] issues for determination. The issues highlighted by the Plaintiff are namely; whether the Plaintiffs’ conducted due diligence before purchasing the suit property; whether the 1st Defendant relinquished its rights over the property back to the commissioner of lands; whether the Plaintiffs’ acquired lawful title over and in respect of the suit property known as L.R No. 5875/2 [I. R No. 85371]; whether the 1st Plaintiff is the registered proprietor of all that parcel of land known as L.R No. 5875/2 [I.R No. 85371] and if so whether the said title was subject to any encumbrance or otherwise; whether the 1st Plaintiff’s title to the suit property was ever revoked or cancelled; whether the Plaintiffs’ were innocent purchasers for value without notice; whether there were investigations by the various Government agencies on the Plaintiff’s purchase on the suit property L.R No. 5875/2 [I.R No. 85371]; whether the courts have made determination on the proprietary rights of the suit property; and whether the actions and/or activities by the 1st Defendant in respect of the suit property constitute trespass or otherwise.
245.In respect of the rejoinder submissions dated the 7th March 2025 the Plaintiffs’ have raised and highlighted five [5] issues for determination, namely; whether the 1st Plaintiff is the lawful and registered proprietor of the suit property; whether the 1st Defendant’s forceful occupation of the suit property is lawful; whether the principle of the Torrence System of land registration apply to protect the Plaintiffs’ title to the suit property; whether the 1st Plaintiff as an innocent purchaser for value is entitled to protection under the law; and whether the Plaintiffs’ are entitled to the reliefs sought.
246.The 1st Defendant filed undated written submissions and wherein same [1st Defendant] has highlighted four [4] salient issues for consideration. The issues highlighted at the foot of the written submissions on behalf of the 1st Defendant are namely; whether the suit property was compulsorily acquired for the department of defence or otherwise; whether the suit property was un-alienated government land or otherwise; whether the suit property was lawfully allocated to the 3rd Defendant or otherwise; and whether the 1st Plaintiff’s certificate of title to the suit property was procured by fraud and illegality and if so; whether same [certificate of title] is legitimate.
247.The 2nd and 4th Defendants’filed written submissions dated the 11th February 2025 and wherein same have highlighted four [4] pertinent issues. The issues highlighted by the 2nd and 4th Defendants are namely whether the Plaintiffs acquired a good and sound title over the suit land; whether or not there was compulsory acquisition of the suit land and if so, whether the land was available for allocation to Solio Construction Company Ltd; whether the allocation to Solio [3rd Defendant] was lawful; and whether there was/is any valid sale agreement between the Plaintiffs’ and the 5th Defendant.
248.The 5th Defendant/Counter-claimer filed written submissions dated the 7th March 2025 and wherein same has highlighted and canvassed two [2] salient issues; the issues highlighted by the 5th Defendant/Counter-claimer are namely; whether the 1st Plaintiff has a valid title over the suit property; and whether the 5th Defendant is entitled to the reliefs sought at the foot of the counterclaim/cross suit or otherwise.
249.The 2nd Interested party filed written submissions dated the 27th February 2025 and wherein same has highlighted three [3] issues for consideration and determination by the court. The issues highlighted by the 2nd interested party are namely, whether the bank has demonstrated its interests in the suit property and the prejudice same is likely to suffer from the outcome of the courts decision in the suit; whether the Plaintiffs’ had a good title to the suit property at the time of its dealings with the bank and whether the bank has ascertained that position; and what orders would be appropriate in the circumstances on the banks case.
250.The court has reviewed the pleadings filed by and on behalf of the parties; appraised the evidence [both oral and documentary] which was tendered on behalf of the parties and thereafter considered the written submissions filed. Having considered the totality of the evidence on record and the submissions filed, the court comes to the conclusion that the determination of the dispute beforehand turns on six [6] salient and pertinent issues.
251.The salient issues which are relevant to the determination of the dispute beforehand are namely; whether the allotment of the suit property and by extension the issuance of the letter of allotment to the 3rd Defendant was lawful and valid; whether the 3rd Defendant acquired and accrued lawful rights and interests over the suit property or otherwise; whether the 1st Plaintiff’s certificate of title over the suit property is lawful and valid and whether the 1st Plaintiff acquired lawful rights to the suit property or otherwise; whether the 5th Defendant’s Counterclaim is legally tenable or otherwise; whether the charge over and in respect to the suit property is valid or otherwise; and what reliefs [if at all] ought to be granted.
252.Regarding the first issue, namely; whether the allotment of the suit property and by extension the issuance of the letter of allotment to the 3rd Defendant was lawful and valid. It is important to recall and reiterate that L.R No 5875/2 [the suit property] was previously registered in the name of Mayer Jacob Samuels. Furthermore, the said proprietor was duly and lawfully issued with a certificate of title.
253.It is also common ground that the suit property was identified by the department of defence as being suitable for military use. In particular, the department of defence identified the suit property as being ideal for purposes of decongesting troops at Kahawa Garrison. To this end, the department of defence through the permanent secretary generated a letter dated the 8th August 1985 and wherein the department of defence implored the commissioner of lands [now defunct] to commence the process of compulsory acquisition of the suit property. [See exhibit D3 on behalf of the 1st Defendant].
254.It is instructive to underscore that upon receipt of the request to acquire the suit property, the commissioner of lands indeed put in place the requisite mechanism towards the acquisition of the suit property. In this regard, the commissioner of land duly published and gazetted the notice for acquisition of the suit property on behalf of the department of defence. For good measure, the gazette notice relative to the compulsory acquisition was tendered and produced as exhibit D8 on behalf of the 1st Defendant.
255.Additionally, evidence was tendered that the commissioner of Lands [now defunct] proceeded to and held the requisite public hearing culminating into the issuance of an award in favour of the registered proprietor of the suit property. Instructively, the commissioner of lands issued an award in the sum of kes.3, 530, 500/ only. In this regard, it is apposite to reference exhibit D9 on behalf of the 1st Defendant.
256.However, it is evident that the registered proprietor of the suit property contested the award and thereafter lodged an appeal before the high court. For coherence, the appeal was designated as Nairobi HCC land Acquisition No. 2 of 1986. Notably, the appeal under reference was heard and determined vide Judgment rendered on the 3rd June 1987 and wherein the High Court [Shields J] proceeded to and upgraded the award in favour of Meshumor Jacob Samuel.
257.Other than the fact that the registered proprietor contested the award culminating into the filing of the land acquisition appeal, it is also worthy to recall that upon the rendition of the judgment by the high court, the commissioner of land [now defunct] felt aggrieved and proceeded to lodge an appeal before the Court of Appeal. For good measure, the Commissioner of land lodged Nairobi Court of Appeal Civil Appeal No. 109 of 1987.
258.Be that as it may, it suffices to observe that the appeal under reference was settled vide consent adopted and recorded by the Court of Appeal on the 25th October 2002. To this end, the dispute pertaining to the quantum of award at the foot of the compulsory acquisition was settled and brought to a close.
259.Back to the legal implications of the compulsory acquisition. It is instructive to underscore that despite the dispute that concerned the quantum of award at the foot of the compulsory acquisition, the commissioner of lands proceeded to and issued the notice of taking of possession. The notice of taking of possession was issued in accordance with the provisions of Section 19[1] of the Land Acquisition Act, Chapter 295 Laws of Kenya.
260.The import and tenor of the notice of taking of possession is to the effect that the rights and interests of the previous land owner stood extinguished. Furthermore, the notice of taking of possession vested the suit land to and in favour of the Government.
261.Given the importance of Section 19[1] of the Land Acquisition Act [supra] which underpins the issuance of a notice of taking of possession, it is imperative that same be reproduced. To this end, the said provisions are reproduced as hereunder;19.(1)After the award has been made, the Commissioner shall take possession of the land by serving on every person interested in the land a notice that on a specified day, which shall not be later than sixty days after the award has been made, possession of the land and the title to the land will vest in the Government.(2)In cases of urgency, the Minister may direct the Commissioner to take possession of uncultivated or pasture or arable land upon the expiration of thirty days from the date of publication of the notice of intention to acquire, and on the expiration of that time the Commissioner, notwithstanding that no award has been made, shall take possession of that land in the manner prescribed by subsection (1).(3)Upon taking possession of land under subsection (1) or subsection (2), the Commissioner shall also serve upon—(a)the registered proprietor of the land; and(b)the Registrar, a notice that possession of the land has been taken and that the land has vested in the Government.(4)Upon taking of possession, the land shall vest in the Government absolutely free from encumbrances.
262.From the provisions of Section 19[1] and [4] of the Land Acquisition Act [supra], it is evident that the issuance and service of the notice of taking of possession effectively extinguishes the rights of the land owner. In addition, the notice in question also denotes the vesting of the land in the government.
263.The question that does arise and which is critical is whether the vesting of the suit property in the government made the suit property unalienated government land in accordance with the provisions of Section 2 of the Government Land Act Chapter 280 Laws of Kenya or otherwise.
264.To this end, it is important to take cognizance of Section 2 of the Government Land Act, Chapter 280 Laws of Kenya. For ease of appreciation, the provisions of Section 2 [supra] are reproduced as hereunder;
265.The provisions of Section 2 of the Government Land Act [supra] clearly underscore that unalienated government land is such land which has not been leased to any other person or in respect of which the commissioner of lands has not issued any letter of allotment at the point in time. In this regard, the existence of a lease and/or certificate of title, whichever is relevant, takes the land in question outside the purview of unalienated government land.
266.Additionally, it is also important to underscore that where land is compulsorily acquired for a specific public purpose, in this case for military use, the land in question cannot be categorized as unalienated land. For good measure, it is worth reiterating that such land stands alienated on the basis of reservation for the designated purpose.
267.What constitutes unalienated government land has been the subject of various decisions [judicial pronouncements]. In this regard, it is imperative to name just but a few holdings wherein the various courts, including the Supreme Court of Kenya [the apex court] and the Court of Appeal, have elaborated upon the meaning and import of unalienated government land.
268.In the case of Kiluwa Limited & another v Business Liaison Company Limited & 3 others (Petition 14 of 2017) [2021] KESC 37 (KLR) (6 August 2021) (Judgment), the Supreme Court elaborated on the meaning of Unalienated Land thus:55.A number of conclusions can be derived from the foregoing provisions as quoted. Firstly, un-alienated government land is public land within the context of article 62 of the Constitution and the Government Lands Act (repealed). This notwithstanding the fact that, the expression “Public Land” only came to the fore with the promulgation of the 2010 Constitution.What article 62 of the Constitution does is to clearly delimit the frontiers of public land by identifying and consolidating all areas of land that were regarded as falling under the province of “public tenure”. The retired constitution used the term “government” instead of “public” to define such lands. Therefore, it is incorrect for the respondents to assert that the lands in question were un-alienated government land but not public land. It is even more inaccurate to argue that the said parcels had never been public land. Un-alienated government land remains public until it is privatized through allocation to individuals or other private entities.
269.The import and tenor of what constitutes unalienated government land [now unalienated public land] was also re-affirmed by the Supreme Court in the case of Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment), where the court stated as hereunder;
270.The Court of Appeal on its part, addressed the import and tenor of what constitute unalienated government land in the case of Frann Investment Limited v Kenya Anti-Corruption Commission & 6 others (Civil Appeal E038 of 2021) [2024] KECA 714 (KLR) (21 June 2024) (Judgment), where the court stated as hereunder;32.In this respect, section 2 of the repealed Government Lands Act defined “unalienated Government land” to mean Government land which was not for the time being leased to any other person, or in respect of which the Commissioner has not issued any letter of allotment. Government land in this context is land that was held by government ministries, departments, statutory bodies and agencies, and land which has not been registered. Section 3 of the then Physical Planning Act defines un-alienated Government land in similar terms. A similar definition is now given to public land under Article 62 of the Constitution, which includesa.land which at the effective date was unalienated government land as defined by an Act of Parliament in force at the effective date;b.land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease…33.The Supreme Court of Kenya noted these definitions in Torino Enterprises Ltd v The Attorney General, SC Petition No. 5 (E006) of 2022; [2023] KESC 79 (KLR), and also cited with approval the decision of this Court in BenjaProperties Limited v Syedna Mohammed Burhannudin Sahed & 4 Others, Civil Appeal No. 79 of 2007; [2015] eKLR that the legal effect of registration of land is to convert property from un-alienated government land to alienated land, with the consequence that the property became private property and moved out of the ambit and confines of the Government Land Act}.
271.Bearing in mind the ratio decidendi espoused in the various decisions [supra], it is apparent and evident that the suit property which was hitherto private land but was the subject of compulsory acquisition on behalf of the Department of Defence [military] did not become unalienated government land.
272.On the contrary, the suit property stood alienated on the basis of the certificate of lease that had hitherto been issued in favour of Mayer Jacob Samuels [deceased]. Furthermore, the stood property stood alienated on the basis of compulsory acquisition for a designated public purpose.
273.Secondly, it is also important to state and observe that where land, the suit property not excepted is acquired for public purpose, such land cannot be converted to private purpose and/or use. In this case the suit property could not have been converted for purposes of allocation to [sic] the 3rd Defendant or such other person.
274.For good measure, where the public purpose for which the suit property was acquired extinguishes and or ceases to exists, the land in question can only be deployed for a public purpose and not otherwise. In this regard, it is imperative to take cognizance of the holding in the case of Town Council of Awendo v Onyango & 13 others; Mohamed & 178 others (Interested Parties) (Petition 37 of 2014) [2019] KESC 38 (KLR) (Civ) (30 April 2019) (Judgment), where the court stated as hereunder;
275.Furthermore, the Court of Appeal in the case of Kenya Urban Roads Authority & another v Belgo Holdings Limited (Civil Appeal E011 of 2021) [2025] KECA 764 (KLR) (9 May 2025) (Judgment), has also reiterated that once a particular piece of land is acquired for a particular public purpose, the land can only utilized for such purpose and not otherwise.
276.For coherence, the court stated thus;
277.To my mind, the suit property was acquired for a designated purpose. The purpose was for military use. In any event, there is no gainsaying that the moneys that were deployed towards payment of the award at the foot of the compulsory acquisition was paid by the department of defence.
278.Moreover, no evidence was tendered that the purpose for which the suit property was acquired, namely [military use] ceased, if anything, evidence abound that the military indeed entered upon and took possession of the suit property, which is testament to the fact that the purpose for compulsory acquisition remains alive to date.
279.Thirdly, there was contention by and on behalf of the Plaintiff[s] that the suit property was surrendered by the department of defence [military] back to the commissioner of lands and that same thereafter became unalienated government land. In this regard, the Plaintiffs made reference to the evidence of Sammy Mwaita [PW2].
280.I wish to address the question of surrender in a three-pronged manner. To start with, it is important to observe that the Plaintiffs herein did not advert to and or highlight the question of surrender in their pleadings. Instructively, the claim and/or contention premised on surrender was brought on board vide the evidence of PW2.
281.The question that does arise is whether the Plaintiffs herein who did not implead the plea of surrender can be allowed to anchor and propagate their case on the basis of surrender or otherwise.
282.To my mind, Kenya espouses the common law jurisprudence. One of the salient tenets of the common law jurisdiction is that parties are bound by their pleadings. Furthermore, wherever a party seeks to espouse a position hitherto not captured in the pleadings beforehand then such a party is obligated to amend the pleadings. Nevertheless, where no amendment is sought for and obtained, any evidence that is at variance with the pleadings goes towards no issue and same must therefore be disregarded.
283.The Court of Appeal in the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others (Civil Appeal 219 of 2013) [2014] KECA 890 (KLR) (31 January 2014) (Judgment), captured the obtaining legal position as pertains to the common law jurisprudence as hereunder;
284.Additionally, the import and tenor of the adversarial system, which highlights the position that a party must plead his claim before production of evidence was reaffirmed in the case of Dakianga Distributors (K) Ltd v Kenya Seed Company Limited [2015] KECA 870 (KLR).
285.For coherence, the court stated as hereunder;
286.Furthermore, the Court of Appeal in the case of David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] eKLR, stated as hereunder;
287.In the absence of pleadings touching on and concerning the issue of surrender of the suit property by the department of defence, the evidence if any; that was tendered by PW2 contravene the doctrine of departure. Such evidence go towards proving no issue. [See Order 2 Rule 6 of the Civil Procedure Rules, 2010].
288.The second aspect that merits consideration touches on the manner in which a surrender [if at all] is to be executed. In this regard, the starting point is by referencing the provisions of Section 44 of the Registration of Titles Act, Chapter 281 Laws of Kenya.
289.The provisions of Section 44 of the Registration of Titles Act [supra] stipulates as hereunder;44.(1)Whenever any lease which is required to be registered by the provisions of this Act is intended to be surrendered, and the surrender thereof is effected otherwise than by operation of law, there shall be endorsed upon the lease the word “surrendered”, with the date of surrender, and the endorsement shall be signed by the lessee and the lessor as evidence of the acceptance thereof, and shall be attested by a witness; and the registrar thereupon shall enter in the register a memorial recording the date of surrender and shall likewise endorse upon the lease a memorandum recording the fact of the entry having been so made in the register, and thereupon the interest of the lessee in the land shall vest in the lessor or in the person in whom having regard to intervening circumstances, if any, the land would have been then vested if no such lease had ever been executed; and production of the lease or counterpart bearing the endorsed memorandum shall be sufficient evidence that the lease has been so surrendered:Provided that no lease subject to a charge shall be surrendered without the consent of the chargee.
290.The import of the foregoing provisions of the law highlights the necessity to have the surrender instrument duly executed and attested by the person seeking to surrender [sic] the land in question. Furthermore, the surrender once duly executed and attested is required to be registered for it to be effective and efficacious.
291.The manner in which a surrender is to be executed was elaborated upon by the Supreme Court of Kenya in the case of Fanikiwa Limited & 3 others v Sirikwa Squatters Group & 17 others (Petition 32 (E036), 35 (E038) & 36 (E039) of 2022 (Consolidated)) [2023] KESC 105 (KLR) (15 December 2023) (Judgment).
292.The court addressed the position thus;
293.It was the Plaintiffs’ through PW2 who sought to propagate a position that the Department of Defence surrendered the suit property to the Commissioner of Lands and thus made the land available for allocation. Having espoused the contention pertaining to [sic] surrender, it was therefore incumbent upon the Plaintiffs to demonstrate compliance with the provisions of Section 44 of the Registration of Tiles Act, Chapter 281 Laws of Kenya.
294.Sadly, the Plaintiffs, who by sidewind sought to rely on the plea of surrender, did not tender any evidence pertaining to the instrument of surrender. It was the duty and obligations of the Plaintiffs and not otherwise.
295.The last aspect as pertains to the question of surrender, touches on and concerns the evidence of PW2. It was PW2, namely; Sammy Mwaita who contended that the suit property was surrendered back to the commissioner of lands and thereafter same became available for [sic] allocation.
296.Before determining the probative value of the evidence of PW2 as pertains to the question of surrender, it is import to reproduce the evidence of PW2 whilst under examination in chief.
297.The witness stated thus;
298.Though PW2 [who was formally the commissioner of lands] testified that there were resolutions that were passed pertaining to the surrender of the land by the department of defence, the said resolutions [if any] were never tendered before the court.
299.Additionally, it is also imperative to reiterate that PW2 also did not tender and produce before the court the letter which was said to have been written by one Mr. Tilitei [the deputy secretary in charge of defence].
300.Whilst under cross examination by learned counsel for the 1st Defendant PW2 stated thus;
301.Additionally, PW2 is on record as starting thus;
302.From the testimony of PW2 whilst under cross examination by learned counsel for the 1st Defendant, four critical issues arise. The four issues are namely; the land in question was acquired for defence; the letter purported to have been written by the deputy secretary in charge of defence is not part of the record of the court; the military indeed took possession of the land; and finally that the purported surrender was never registered.
303.In my humble albeit considered view, the evidence by PW2 which has been heavily relied upon by the Plaintiffs to espouse a position that there was a surrender does not meet the legal threshold for surrender. In any event, I am afraid that the evidence by PW2 which was propagated without any documentary proof is devoid of probative value.
304.Back to the issue under discussion. Other than the aspects which have been canvassed, it is also important to highlight that the 3rd Defendant contends to have been issued with a letter of allotment dated the 26th June 1999. For good measure, it is the said letter of allotment which underpins the contention that the 3rd Defendant acquired rights to and in respect of the suit property.
305.Nevertheless, it is worthy to recall that even though the letter of allotment was issued to and in favour of the 3rd Defendant [sic] on the 26th June 1999 evidence was tendered and produced before the court that the 3rd Defendant herein was never incorporated up to and including the 18th August 1999. In this regard, the question that does arise is whether a letter of allotment could have been issued to and in respect of a company that had not been incorporated [sic] at the time of the purported issuance of the letter of allotment.
306.There is no gainsaying that a letter of allotment which is an offer, can only issue to and in favour of a legal entity, whether the entity be natural or artificial. Where the entity is a natural person [human being], it is common ground that same must be an adult. For good measure, no offer can issue to and in favour of a minor; or a person of unsound mind.
307.Where the legal entity is a body corporate, the letter of offer can only issue to an existing body corporate and not otherwise. Suffice it to underscore that a body corporate can only be born [birthed] upon incorporation or registration in accordance with the relevant law.
308.The 3rd Defendant being a Company, could not have arisen until and unless same was incorporated. In any event, evidence abound that the 3rd Defendant was incorporated on the 18th August 1999.
309.In my humble view, there is no way that a letter of allotment could have been issued to and in favour of the 3rd Defendant as at the 26th June 1999, when the 3rd Defendant had neither been incorporated nor birthed in accordance with the law. To this end, the [sic] prophetic issuance of the letter of allotment to the 3rd Defendant when same was non-existent creates doubt as to the validity to the impugned letter of allotment.
310.Before departing from the subject issue, there is yet another perplexing aspect that merits consideration, the aspect relates to the fact that the impugned letter of allotment was issued on a non-working day. For good measure, the letter of allotment was issued on a Saturday.
311.PW2, whilst under cross-examination by learned counsel for the 1st Defendant, is on record as starting thus;
312.Surely, the issuance of the letter of allotment to the 3rd Defendant who had not been incorporated and more particularly on a Saturday begs the question as to whether the process attendant to the impugned letter of allotment complied with the law.
313.Be that as it may, the testimony by PW2 [Sammy Mwaita], leaves more questions than answers.
314.On the other hand, and without belabouring the point, it is also important to highlight that the impugned allocation of the suit property to the 3rd Defendant who had not been incorporated as at the time of the allotment, was also undertaken without the requisite part development plan [PDP]. Instructively, it is the PDP which would have confirmed the availability or otherwise of the suit property for allocation.
315.The significance of a Part Development Plan [PDP] was highlighted by Section 3 of the Physical Planning Act, Chapter 286 Laws of Kenya [now repelled].
316.The said Section stipulates thus;(d)a part development plan indicating precise sites for immediate implementation of specific projects or for alienation purposes;
317.Finally, there is one more aspect that also merits due consideration. The aspect herein touches on the fact that on or about the 1st December 1995 an organisation known as Prilscot Company Ltd of P.O Box 795 Nakuru had applied to be allocated L.R No. 5875/2 [the suit property]. However, on the face of the letter of allotment which was produced as exhibit D22 on behalf of the 1st Defendant, the commissioner of land duly noted that the land in question was army land. The notation is dated the 19th June 1998.
318.On the 25th June 1998, the commissioner of land generated a letter to Prilscot Company Ltd of P.O Box 795, Nakuru and wherein the commissioner of land stated thus;RE: L.R NO. 5875/2Your letter dated 1st December 1995, refers.The plot applied for is not available for allocation as it is committed elsewhereS. K. W WangilaFor: Commissioner of Lands
319.If the land in question was admittedly army land in the manner ascribed in terms of the notation at the foot of exhibit D22, then the question is when did same cease to be army land?
320.It then means that something untowards [magical] happened between the 25th June 1998 and the 26th June 1999. Nevertheless, whatever happened cannot attract the seal of approval in eyes of the law insofar as the land in question remained committed elsewhere as previously highlighted by the commissioner of lands himself.
321.Flowing from the foregoing analysis, my answer to issue number one [1] is summarized as hereunder. Firstly, the suit property, having been compulsorily acquired by the commissioner of lands [now defunct] for a designated purpose, did not comprise of unalienated government land.
322.Secondly, the land in question having been acquired for a designated public purpose, namely; for use by the military, same stood alienated and could only be used for the specific purpose. Where the public purpose for which it was acquired lapsed then the land could only be used for such other public purpose and not otherwise. [See the Supreme court decision in Town Council of Awendo [supra].
323.Thirdly, the letter of allotment which was issued to and in favour of the 3rd Defendant, was a nullity ab initio. The letter of allotment could not have been issued in favour of a non-existent legal entity.
324.Fourthly, the land in question having been duly alienated on the basis of compulsory acquisition and designation of a particular public purpose was not available. In this regard, the letter of allotment dated the 26th June 1999 was a mere paper transaction which did not attach to any land.[See the decision of the Court of Appeal in the case of Benja Properties Limited versus S.Syedna Burhannudin Shaheb and Another [2015] eklr]
325.Finally, the impugned letter of allotment was issued in contravention of Section 3 of the Physical Planning Act, Chapter 286 Laws of Kenya [now repealed].
326.Absent Part Development Plan [PDP] no lawful allocation of any public land can be undertaken. [See Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment)].
327.Regarding the second issue, namely; whether the 3rd Defendant acquired and accrued lawful rights and interests over the suit property or otherwise, it is common ground that a certificate of lease or certificate of title [whichever is relevant] is an end product. For good measure, the certificate only issues after the transactional process has been concluded.
328.In the case of Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment), the Supreme Court of Kenya stated and held as hereunder;
329.Moreover, the Court of Appeal in the case of Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR), where the court stated as hereunder;
330.Furthermore, the position that a certificate of title by and of itself does not suffice until and unless same was issued in accordance with the law was also highlighted in the case of Mas Construction Limited v Sheikh & 6 others (Civil Appeal E789 of 2023) [2025] KECA 349 (KLR) (28 February 2025) (Judgment), where the court stated as hereunder;
331.Bearing in mind the position of the law captured and highlighted at the foot of the foregoing decisions, it is now apposite to revert to the facts of the subject matter and to discern whether the 3rd Defendant acquired and accrued lawful rights to and in respect of the suit property.
332.First and foremost, whilst discussing issue number one, I have found inter alia that the suit property was compulsorily acquired for and on behalf of the Department of Defence. Furthermore, I have also found and held that the purpose for which the suit property was acquired did not lapse. On the contrary, PW2 confirmed that post-compulsory acquisition the Department of defence actually took possession of the land.
333.Moreover, it is not lost on me that the letter of allotment which underpins the certificate of title that was being relied upon by the 3rd Defendant was also issued long before the incorporation of the 3rd Defendant. In this regard, there is no gainsaying that the impugned letter of allotment was itself a nullity.
334.Other than the foregoing, it is common ground that a letter of allotment can only issue to and in respect of an existing parcel of land. Simply put, allotment of land is an act in rem and must therefore attach to a parcel of land and not otherwise.
335.In the case of Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others [2015] eKLR, the Court of Appeal stated thus;
336.Be that as it may, the letter of allotment which was purportedly issued to and in favour of the 3rd Defendant did not attach to any known land. In this regard, the act of issuing the impugned letter of allotment was illegal and thus void. The question that does arise is whether such an act can give birth to any legitimate and valid certificate of title?
337.The answer to the foregoing question can easily be discerned from the dicta in the case of Macfoy v United Africa Co. Ltd [1961] 3 All E.R. 1169; where Lord Denning while delivering the opinion of the Privy Council at page 1172 (1) said;
338.Additionally, there is the doctrine of ex-nihilo-nihil-fit [out of nothing comes nothing]. The certificate of title which was issued to and in favour of the 3rd Defendant came out of an illegitimate letter of allotment. Having found that the letter of allotment was illegal and void, it then means that the resultant certificate of title cannot be anything but an illegality.
339.Pertinently, the import and tenor of the doctrine of Ex-hihilo-nihil-fit was elaborated by the Court of Appeal in the case of Caroget Investment Limited v Aster Holdings Limited & 4 others [2019] KECA 79 (KLR), where the court held as hereunder;
340.I am aware that the 3rd Defendant was issued with a certificate of title, which same thereafter sold to and in favour of the Plaintiffs’. Furthermore, it is not in doubt that the impugned certificate of title was issued by the 4th Defendant. Nevertheless, the mere fact of the issuance of the impugned certificate of title without due regard to the provisions of the law does not by and of itself confer validity thereto or at all.
341.Moreover, it is not lost on me that various courts of law including the Supreme Court of Kenya have held that the doctrine of indefeasibility of title cannot be deployed to sanction an illegality.
342.In the case of Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment), the Supreme Court of Kenya stated and held as hereunder;
343.Moreover, the Court of Appeal in the case of Chemey Investment Limited v Attorney General & 2 others [2018] KECA 863 (KLR), held thus;
344.Arising from the foregoing analysis, I am compelled to answer issue number two [2] in the following manner. Firstly, the 3rd Defendant did not acquire any lawful rights and or interests to the suit property. In any event, the mere issuance of certificate of title which does not accord with the law does not bestow upon the bearer thereof any lawful rights thereto.
345.Secondly, the mere fact that the certificate of title under reference was generated and issued by the 4th Defendant cannot be deployed to sanction an illegality. For good measure, it is apposite to reference the dictum in the case of Henry Muthee Kathurima v Commissioner Of Lands & another [2015] KECA 892 (KLR), at paragraph 18 thereof, where the court stated as hereunder;
346.As pertains to the third issue, namely; whether the 1st Plaintiff’s certificate of title over the suit property is lawful and valid and whether the 1st Plaintiff acquired lawful rights to the suit property or otherwise, I beg to start by stating that the 1st Plaintiff herein acquired the suit property from the 3rd Defendant. In this regard, there is no gainsaying that the 1st Plaintiff’s title can only be as good as the certificate of title which was held by her predecessor.
347.Put differently, if the 3rd Defendant acquired and accrued lawful title to the suit property, then the 3rd Defendant would be in a position to convey lawful rights and interests to its successor. However, if the 3rd Defendant acquired no lawful rights to the suit property, then the 3rd Defendant would not be in a position to convey any title to her successors.
348.Before interrogating the validity or otherwise of the 1st Plaintiff’s title, it is important to take cognizance of the doctrine of nemo dat-quad-non-habet [one cannot pass a better title that the one same holds].
349.The legal import and tenor of the said doctrine was elaborated upon by the Court of Appeal in the case of Diamond Trust Bank Kenya Ltd v Said Hamad Shamisi & 2 others [2015] KECA 717 (KLR), where the court stated and observed as hereunder;
350.Though the court was referencing the provisions of the Sales of Goods Act, Chapter 31 Laws of Kenya, which does not apply to immovable properties, however, the import of the doctrine cuts across. Simply put, one cannot pass a better title than the one same possesses, if at all.
351.Moreover, the Court of Appeal in the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR, has also had an occasion to reaffirm the import of the doctrine under reference.
352.The court stated thus;
353.With the foregoing in mind, it is therefore appropriate to revert to the subject matter and to ascertain whether the 1st Plaintiff acquired any lawful title to the suit property. To start with, it is important to recall that it is the 2nd Plaintiff who entered into a sale agreement with the 3rd Defendant pertaining to and concerning the suit property.
354.Instructively, the 1st Plaintiff did not enter into any sale agreement with the 3rd Defendant. Nevertheless, the suit property ended up being transferred to and registered in the name of the 1st Plaintiff even though same had not entered into a sale agreement. Notably, the absence of a sale agreement between the 3rd Defendant and the 1st Plaintiff brings into the fore the implication[s] of Section 3[3] of the Law of Contract Act, Chapter 23 Laws of Kenya.
355.Nevertheless, it is worthy to recall that the certificate of title that was transferred to and in favour of the 1st Plaintiff relates to the suit property which was hitherto allocated in favour of the 3rd Defendant. Be that as it may, this court has since found and held that the 3rd Defendant did not accrue any lawful rights to and in favour of the suit property.
356.Having accrued and/or acquired no lawful title to the suit property, there is no gainsaying that the 3rd Defendant could therefore pass no title to the first Plaintiff. In my humble view, the doctrine of nemo dat-quod-non-habet applies.
357.Arising from the foregoing, it is therefore my finding and holding that the 1st Plaintiff did not acquire any lawful rights and or interests to the suit property. In any event, the moment the court found and held that the 1st Plaintiff’s predecessors title was illegal, same applies with equal force to the 1st Plaintiff’s title.
358.To this end, I beg to reference and adopt the holding of the Court of Appeal in the case of Said v Shume & 2 others (Civil Appeal E050 of 2023) [2024] KECA 866 (KLR) (26 July 2024) (Judgment), where the court stated as hereunder;
359.Additionally, the 1st Plaintiff has also contended that same acquired the suit property without notice and/or knowledge of any defect in the title of its predecessor. To this end, the 1st Plaintiff has therefore invoked and sought to rely on the doctrine of bona fide purchaser for value.
360.However, it is instructive to state and observe that before one, the 1st Plaintiff not excepted, can invoke and deploy the plea of bona fide purchaser for value, same [claimant] must demonstrate that the title of her predecessor was valid and not otherwise. In addition, the claimant must also demonstrate that same acquired a lawful and valid title.
361.In the case of Samuel Kamere v Lands Registrar, Kajiado [2015] KECA 644 (KLR), where the Court of Appeal held as hereunder;
362.The law on bona fide purchaser for value has since been settled by the Supreme Court of Kenya. In the case of Sehmi & another v Tarabana Company Limited & 5 others (Petition E033 of 2023) [2025] KESC 21 (KLR) (11 April 2025) (Judgment), where the court stated as hereunder;
363.For the reasons highlighted in the preceding paragraphs, my answer to issue number three [3] is twofold. Firstly, the 1st Plaintiff did not acquire any valid or lawful rights to the suit property taking into account that her predecessor in title had not title capable of being conveyed unto her [1st Plaintiff].
364.Secondly, the 3rd Defendant’s title was vitiated to the root insofar as the land that was allegedly being allocated to the 3rd Defendant did not exist. Indeed, the certificate of title which was issued to and in favour of the 3rd Defendant fails the threshold espoused vide Section 26[1][b] of the Land Registration Act.
365.Finally, the 1st Plaintiff’s plea of bona fide purchaser for value is misconceived and legally untenable taking into account the illegality that impacts on the title of its predecessor. To this end, the decision of the supreme court in the case of Sehmi & another v Tarabana Company Limited & 5 others (Petition E033 of 2023) [2025] KESC 21 (KLR) (11 April 2025) (Judgment), [supra] is apt.
366.Regarding issue number four, namely; whether the 5th Defendant’s Counterclaim is legally tenable or otherwise, it is imperative to start by observing that the 5th Defendant herein contended that same purchased the suit property from the 1st Plaintiff. Furthermore, the 5th Defendant contended that arising out of the sale/purchase transaction, the 5th Defendant paid 10% of the purchase price being the agreed stakeholder sum.
367.Nevertheless, it is worthy to recall that Alex Trachenberg, who testified as DW3 averred that the 5th Defendant did not pay any further monies to and in favour of the 1st Plaintiff. For good measure, the witness reiterated that the only money that the 5th Defendant paid was the stakeholder sum.
368.For ease of reference, it is imperative to take cognizance of the evidence of DW3 whilst under cross examination by learned counsel for the 1st Defendant.
369.Same stated as hereunder;
370.Whilst under cross examination by learned counsel for the 2nd Interested party, DW3 stated as hereunder;‘I do confirm that there was a sale agreement between the Plaintiffs and the 2nd Defendant. the 5th Defendant was buying the suit property.I do confirm that the 5th Defendant paid 10% deposit towards the purchase of the suit property. I do wish to confirm that no sale agreement was signed by the parties. The Plaintiffs herein did not execute any sale agreement. The Plaintiff did not execute the transfer over and in respect of the suit property”.
371.Moreover, whilst under re-examination DW3 stated as hereunder;
372.The foregoing evidence premises the claim by and on behalf of the 5th Defendant. For good measure, the counterclaim by the 5th Defendant is anchored on the basis that the 5th Defendant is a bona fide purchaser for value of the suit property; and secondly that the 5th Defendant is entitled to an order to specific performance as against the Plaintiffs herein.
373.I beg to start with the question as to whether the 5th Defendant can lawfully stake a claim to the suit property on the basis of being a bona fide purchaser for value. Instructively, it is common ground that before anyone, the 5th Defendant not excepted, can stake a claim to a designated property on the basis of being a bona fide purchaser for value, the claimant must demonstrate that same holds a valid and lawful certificate of title to the property.
374.Furthermore, it is incumbent upon such a claimant to demonstrate that same paid the agreed consideration in full.
375.Without belabouring the point, the ingredients to be proven before one can stake a claim as a bona fide purchaser for value were crystalized by the Supreme Court in the case of Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment), where the court stated as hereunder;
376.Suffice it to underscore that the 5th Defendant herein admittedly does not hold any certificate of title to and in respect of the suit property. Absent a valid and lawful certificate of title to the suit property, the 5th Defendant’s claim on the basis of being a bona fide purchaser for value collapses at the door- step.
377.Moreover, it is also worthy to highlight that a claimant seeking to rely on and deploy the doctrine of bona fide purchase for value must also demonstrate that same has since paid the agreed purchase price/consideration. Notably, the payment of the purchase price must be in full and not otherwise.
378.To this end, I beg to cite and reference the decision of the Supreme Court of Uganda in the case of in Lwanga v Mubiru and Others (Civil Appeal 18 of 2022) [2024] UGSC 7, where the court held:‘The principle of bona fide purchaser for value without notice is a general defence in any transaction of sale or purchase of any property particularly land.The definition of bona fide purchaser for value without notice is “that buyer who has paid a stated price for the property without knowledge of existing or prior claims or prior equitable interest”.Bona fide is a Latin word meaning good faith, without fraud, sincere, genuine. See (Black’s Law Dictionary 9th Edn Page 199)A bona fide purchaser is a buyer who buys without constructive or actual notice of any defects or infirmities against the seller’s title. See (page 1355 Black’s Law Dictionary 9th Edn. It is trite law that a person who relies on the defence of bona fide purchaser for value without notice has the burden to prove that he or she acted in good faith. The purchaser must have given due consideration and purchased the land without notice of the fraud. Such notice cover both actual and constructive notice of fraud. In the case of Jones v Smith [1841] I Hare 43, the Chancery Court held: “a purchaser has constructive notice of fraud if he had actual notice, that there was some encumbrance and a proper inquiry would have revealed what it was (but if) it abstained either deliberately, carelessly from making those inquiries which a prudent purchaser would have made...
379.However, in respect of the instant matter, DW3 acknowledged and confirmed that the 5th Defendant has only paid 10%, namely; the stakeholder sum and no more. Can payment of 10% [being the stakeholder sum] found a basis to invoke and rely upon the plea of bona fide purchaser for value.
380.Sadly, the answer is in the negative.
381.Regarding the aspect of the counterclaim that touches on and concerns the prayer for specific performance, it is worthy to reiterate that such a prayer can only issue sparingly and upon proof of certain known ingredients. To start with, it must be reiterated that a prayer for specific performance can only issue where there exists a valid and lawful sale agreement. Absent a valid and lawful sale agreement, a fundamental pillar that underpins the plea of specific performance dissipates.
382.Furthermore, it is also imperative to state that a plea of specific performance can only issue where monetary damages cannot suffice. In any event, the claimant must also demonstrate that same has performed and or is ready and willing to perform his/her part of the bargain.
383.Be that as it may, the current situation is to the effect that the 5th Defendant has only paid 10% of the purchase price. Instructively, same has not paid the rest of the monies. Simply put, the 5th Defendant has not performed her part of the bargain.
384.Other than the foregoing, it is not lost on me that DW3 also admitted and acknowledged that no sale agreement was ever entered into and/or executed between the Plaintiffs and the 5th Defendant. Nevertheless, it is worth recalling that what was sought to be transacted upon was a landed property. In this regard, the provisions of Section 3[3] of the Law of Contract Act highlight that such a contract must not only be in writing but be duly executed by the persons chargeable therewith.
385.In addition, such a contract must also be duly attested by the witnesses present and witnessing the execution.
386.Back to the question as to whether the 5th Defendant has established a basis to warrant specific performance. Certainly, the answer to the question is in the negative.
387.The law as pertains to specific performance was elaborated upon in the case of Reliable Electrical Engineers (K) Ltd v Mantrac Kenya Limited [2006] eKLR, where the court [per Maraga, J as he then was] stated as hereunder;
388.Moreover, the Court of Appeal in the case of Gurdev Singh Birdi & Another as Trustees of Ramgharia Institute Of Mombasa v Abubakar Madhbuti[1997] eKLR, [per Gicheru JA], where the court stated as hereunder;
389.In my humble view, the counterclaim by and on behalf of the 5th Defendant, which is predicated on the two fronts, namely, being a bona fide purchaser for value; and a prayer for specific performance is not only premature and misconceived but same is legally untenable.
390.Simply put, the counterclaim by the 5th Defendant merits dismissal.
391.Regarding the fifth issue, namely; whether the charge over and in respect to the suit property is valid or otherwise, it is important to highlight that the 1st Plaintiff herein entered into a commercial transaction with the 2nd interested party wherein the 2nd interested party granted a banking facility to and in favour of the 1st Plaintiff. It was contended that the banking facility which was issued to and in favour of the Plaintiffs is still outstanding and in arrears.
392.Additionally, it was contended that the Plaintiffs herein and in particular the 2nd Plaintiff pledged the title in respect of the suit property to the 2nd interested party. For good measure, the title of the suit property remains charged to and in favour of the 2nd interested party [sic] on the basis of an equitable mortgage.
393.The 2nd interested party has reiterated that same continues to hold the title of the suit property on the basis of a memorandum of charge by way of deposit of title. In addition, the 2nd interested party posits that the 2nd Plaintiff still owes the sum of Kes.1, 206, 264, 607/= only to the 2nd interested party.
394.Despite the claim by and on behalf of the 2nd interested party, the question that the court must grapple with is whether the charge [memorandum of charge] in favour of the 2nd interested party can hold sway on the face of the findings that the certificate of title under reference is illegal and invalid.
395.To my mind, the illegality and validity of the certificate of title that has been deposited in the 2nd interested party at the foot of the memorandum of charge affects the charge. In any event, it is common knowledge that what is void is void and no amount of legal arguments can sanitize the illegality. [See Macfoy v United Africa Ltd [1961] 3 All F.R. 1169 Lord Denning said at p. 1172].
396.Arising from the foregoing, I encounter no difficulty in finding and holding that the memorandum of charge by way of deposit of title of the suit property is illegal, invalid and void. For good measure, the 2nd interested party accrued no lawful right[s] over and in respect of the suit property.
397.To buttress the foregoing observation, it suffices to cite and reference the holding of the Court of Appeal in the case of Teleposta Pension Scheme Registered Trustees v Intercountries Exporters Limited & 5 others (Civil Appeal 293 of 2016) [2024] KECA 870 (KLR) (12 July 2024) (Judgment), where the court stated as hereunder;
398.Flowing from the foregoing analysis, I find and hold that the charge over and in respect of the suit property is invalid and thus void for all intents and purposes.
399.Regarding issue number six, namely; what reliefs [if any] ought to be granted, it is imperative to recall that the Plaintiffs herein sought a plethora of reliefs at the foot of the Plaint dated the 18th January 2022. In particular, the Plaintiffs’ herein sought a declaration that same are the lawful and legitimate proprietors of the suit property. However, whilst discussion issue number three, I have found and held that the 1st Plaintiff did not accrue any lawful rights to and in respect of the suit property.
400.Consequently, and in this regard, there is no gainsaying that the declaration sought is premature and misconceived.
401.Secondly, the Plaintiffs’ have also sought a declaration that the activities by and on behalf of the 1st Defendant on the suit property constitute trespass. Nevertheless, it is not lost on the court that the suit property was lawfully acquired for and on behalf of the Department of Defence. Furthermore, evidence abound that the Department of Defence entered upon and took possession of the suit property. [See the Notice of taking possession issued pursuant to the provisions of Section 19[1] of the Land Acquisition Act]
402.The question that does arise is whether the Plaintiff herein can lawfully stake a claim based on trespass. Suffice it to underscore that before one, the Plaintiffs’ not excepted can espouse a claim based on trespass, the same [claimant] must demonstrate title to or ownership of the designated property. Absent a lawful title to the designated property, no claim based on trespass can arise.
403.In the case of Municipal Council of Eldoret v Titus Gatitu Njau [2020] KECA 782 (KLR), the court stated as hereunder;
404.In respect of the instant matter, I am afraid that the Plaintiffs have no stake to and or claim over the suit property.
405.On the other hand, the Plaintiffs have also sought an order of permanent injunction to restrain the 1st to 4th Defendants either by themselves, agents and/or servants, from entering onto the suit property. However, it is worth recalling that the suit property was compulsorily acquired for use by the Department of Defence [the military]. Under the law, it then means that the Department of Defence are the de-facto and de jure owner of the suit property.
406.The question that does ensue is whether an order for permanent injunction can issue to restrain inter-alia the known and registered owner of the property.
407.The answer to this question is discernible from the holding in the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR), where the Court of Appeal stated as hereunder;
408.Other than the foregoing, the Plaintiff has sought for an alternative remedy, namely; an order of monetary compensation to the Plaintiffs’ being the sum of the value of the suit property as shall be determined by a valuer appointed by the court.
409.I must say, that the prayer under reference is curiously worded. Nevertheless, it is not lost on the court that whosesoever seeks a monetary claim [which falls in the category of liquidated/special damages] must particularly plead the claim and avail particulars thereof.
410.Moreover, after complying with the law as pertains to the pleadings of liquidated/special damages, the claimant would thereafter be called upon to strictly [specifically] prove the claim. [ See Superior Homes (Kenya) PLC v Water Resources Authority & 9 others (Civil Appeal E330 of 2020) [2024] KECA 1102 (KLR) (19 August 2024) (Judgment)].
411.However, in respect of the instant matter, there is no gainsaying that the Plaintiffs’ have neither pleaded nor particularized the claim based on monetary compensation. Simply put, the claim has been merely thrown on the face of the court and the Plaintiffs’ herein imagine that waving such a prayer would suffice.
412.I am afraid the law as pertains to pleading and proving liquidated and special damages is well established. It behoves the Plaintiffs’ and their counsel to comply. [See Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR)].
413.Moreover, it is also worth recalling that the Plaintiffs’ case is premised on the evidence of two witnesses. None of the two witnesses is a qualified and registered valuer. In any event, there is no gainsaying that no valuation report was produced before the court.
414.In the circumstances, the question that I must ask myself is what monetary compensation can issue and/or be granted in favour of the Plaintiff? or better still can a court of law pluck any award from the blues and award same to the Plaintiffs’.
415.The answer is in the negative.
416.Finally, the Plaintiffs’ have implored the court to make the monetary award in such sums as shall be determined by a valuer appointed by the court. It bears a remainder that ours is a common law jurisdiction. It is the duty of the parties to bring forth the evidence and prove their cases. The courts, this court not excepted, is not tasked with any obligation to assist any party. The court must remain an impartial arbiter.
417.The mandate of the court in an adversarial system [common law jurisdiction] was exemplified by the Court of Appeal in the case of Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2019] KECA 783 (KLR), where the court stated as hereunder;
418.Simply put, it is not the duty of this court to commission a valuer with a view to inspecting and valuing the suit property for purposes of compensating the Plaintiffs. In any event, such a claim for compensation could only be raised and propagated against the 3rd Defendant and not the rest of the Defendants.
419.Other than the Plaintiffs, the 5th Defendant also filed a counter-claim dated the 12th April 2023. However, whilst discussing issue number four, this court has found and held that the 5th Defendant cannot legally be declared as a bona fide purchaser for value in respect of the suit property.
420.Furthermore, the court also found and held that the 5th Defendant did not meet the threshold for issuance of an order of specific performance, which an Equitable remedy. In short, the 5th Defendant’s counterclaim is bereft of merits.
Final Disposition:
421.Flowing from the foregoing analysis, it is apparent that the Plaintiffs’ herein have neither proved their claim to the requisite standard of proof, namely, on a balance of probabilities. On the contrary, it is evident that the Plaintiffs’ claim is devoid and bereft of merits.
422.Additionally, the 5th Defendant’s counterclaim is equally pre-mature and misconceived. In any event, the counterclaim by the 5th Defendant was presumptuous and speculative in nature.
423.Consequently, and in the premises, the final orders that commend themselves to the court are as hereunder;i.The Plaintiffs’ suit be and is hereby Dismissed.ii.The Costs of the suit be and are hereby awarded to the 1st Defendant and the 2nd Interested Party only.iii.The 2nd and 4th Defendants were complicit in the issuance of the impugned certificate of title and same are therefore not entitled to any costs.ivThe 5th Defendant was not pleaded by the Plaintiffs’ and merely sought joinder with a view to espousing a counterclaim. Same is not entitled to costs.vThe Counterclaim by the 5th Defendant be and is hereby dismissed.vi.Costs of the Counterclaim be and are hereby awarded to the Plaintiffs’ [Defendants’ to the counterclaim] only.vii.For the avoidance of doubt and taking into account the provisions of Section 13[7] of the Environment and Land Court Act, 2011, the Certificate of title in respect of L.R No. 5875/2 [the suit property] be and is hereby cancelled.viii.The Plaintiffs and by extension the 2nd Interested party be and are hereby ordered to surrender and submit the said Certificate of title for cancellation/ nullification within 60 days from the date hereof.ix.The charge vide Memorandum of Charge held by the 2nd Interested party over the suit property, namely, L.R No. 5875/2 be and is hereby cancelled and/or nullified.x.Any other reliefs not expressly granted is hereby declined.
424.It is so ordered.
DATED SIGNED AND DELIVERED AT NAIROBI ON THE 19TH DAY OF MAY, 2025.OGUTTU MBOYA, FCIArb, CPM [MTI].JUDGE.In the presence of:Benson – Court AssistantMr. Kibet Rop for the Plaintiffs’Mr. Mugiira and Ms. Mung’ata for the 1st Defendant.Mr. Oscar Eredi [chief litigation counsel] for the 2nd and 4th Defendants’.Ms. Milly Ondari h/b for Mr. Kamau Karori [Sc] for the 5th Defendant/Counter-claimerMs. Niuster Bitok for the 1st Interested party.Mr. Paul Wanga for the 2nd Interested Party.N/A for the 3rd Defendant