Kamwenji v Kariuki (As the Administratix Ad Litem to the Estate of Zakaria Kimuhu) (Environment and Land Case Civil Suit 782 of 2017) [2026] KEELC 3767 (KLR)

4. Following the sale, the Defendant gave possession of the said two acres to the Plaintifi which possession the Plaintifi retains. However, the Defendant despite having been issued with notice of intention to sue has refused and/or neglected to transfer the said 2 acres to the Plaintifi. 5. The Defendant filed a Statement of Defence and Counter-claim dated 21/09/2023 and denied all averments in the Plaint. 6. The Defendant denies each and every allegation contained in the Plaint as though they were set forth verbatim and traversed seriatim, save for those expressly admitted herein. The contents of paragraphs 1 and 2 of the Plaint are admitted only to the extent that they describe the parties, with the clarification that the Defendant’s address for service shall be through the firm of Messrs. Malela Basil & Co. Advocates in Nairobi. 7. However, the Defendant denies the contents and particulars of paragraphs 3 and 4 in their entirety and puts the Plaintifi to strict proof. Furthermore, the Defendant denies that any demand or notice of intention to sue was ever served upon her or the late Zacharia Kimuhu. 8. Without prejudice to the foregoing, the Defendant avers that the Estate of Zacharia Kimuhu has lived on the suit land uninterrupted and notoriously for over 30 years, thereby acquiring possession by way of adverse possession. This occupation of the 2.0 acres of L.R. Ndumberi/Ndumberi/738 lapsed into a legal right 12 years after the review Judgment issued by Justice Platt in Nairobi HCCC 1200 of 1980. The Defendant further contends that the current suit is bad in law and is barred by the doctrine of res judicata, as the issues in question were already heard and determined in the aforementioned 1980 case. A Preliminary Objection on this point of law shall be raised for determination in limine litis. 9. The Defendant asserts that by a Ruling dated 28/02/1983, Justice Platt set aside the previous consent orders and subsequent land board transfers, efiectively restoring the 2.0 acres to the Estate of Zacharia Kimuhu. Following inter-partes negotiations, the Plaintifi transferred the land back to the Estate, a fact supported by the letter of consent number 358746. Despite being fully aware of these judicial orders, the Plaintifi maliciously placed an illegal and unjustified caution over the property and stubbornly refused to lift it, even proceeding to illegally register himself as an owner of a 200/840 share. 10. The Defendant specifically denies the existence of any contract for the sale of land between the late Zacharia Kimuhu and the Plaintifi and challenges the jurisdiction of this Court to hear the matter as a Court of first instance, given that the land value is below Kesh19,000,000. Consequently, the Defendant prays that the Plaintifi's suit be dismissed with costs. 11. Additionally, the Defendant filed a Counter-claim and now appearing as the Plaintifi in the Counterclaim reiterates the facts set out in the Statement of Defense and formally states her claim against the original Plaintifi. As the Administratix ad litem of the estate of the late Zacharia Kimuhu, she maintains that the estate is the registered and bona fide owner of Ndumberi/Ndumberi/738. The history of this dispute dates back to 1980 when the Defendant in the Counterclaim initiated Nairobi HCCC 1200 of 1980, leading to the 1983 Ruling by Justice Platt which restored the 2.0 acres to the Estate. For over 35 years since that Ruling, the Estate has maintained continuous, peaceful, and notorious occupation of the land, thereby satisfying the requirements for title by adverse possession. 12. The Plaintifi in the Counterclaim avers that the Defendant in the Counterclaim acted with malice by placing a caution on the land and attempting to register a 200/840 share, actions which constitute a gross violation of the constitutional right to property and quiet enjoyment. These actions have resulted in significant loss of use, including the deprivation of the ability to obtain credit facilities, the loss of opportunities to sell the land, and the general loss of the right to use the property as desired. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3767/eng@2026-06-18 2

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13. By way of this Counterclaim, the Plaintifi prays: i. The Plaintifi in the Counterclaim be declared the legal owner entitled by adverse possession of over 12 years to the 2.0 acres LR Ndumberi/Ndumberi/738 claimed by Richard Kamwenji. ii. A declaration do issue that the Caution placed by Richard Kamwenji on LR Ndumberi/ Ndumberi/738 was illegal iii. All that land known as LR Ndumberi/Ndumberi/738 be registered as belonging solely to the estate of Zakaria Kimuhu. iv. The suit by Richard Kariuki Kamwenji be dismissed with costs v. A declaration do issue that the acts of Richard Kamwenji have violated the claimants rights to quiet enjoyment of property vi. The Registrar of Lands be compelled to lift the caution placed by Richard Kamwenji over LR Ndumberi/Ndumberi/738 vii. The Registrar of Lands be compelled by an order of the Court to rectify the register by deleting the illegal entry of Richard Kamwenji Kariuki as an owner of LR Ndumberi/Ndumberi/738 to the tune of 2.0 acres viii. In the alternative to vi & vii the Deputy Registrar of the Honorable Court be empowered to sign any necessary forms to transfer the land from Richard Kamwenji back to the estate of Zacharia Kimuhu and to rectify the register appropriately. ix. Aggravated and exemplary damages for violation of the Plaintifi Constitutional rights to own property and quietly enjoy the same x. Damages for loss of user for the entire period the caution by Kamwenji had been in force xi. And such other relief as this Court may deem fit Plaintifi ’s Case 14. The Plaintifi testified as PW-1 Richard Kariuki Kamwenji a sole witness. He adopted his witness statement as evidence in chief and produced documents marked as “PW1-Exh1-21” as his exhibits. He testified to having bought the land when Teresia was not there since she had divorced from Zacharia and that she only came back when Zacharia died. 15. On cross-examination he told the Court that he was the Plaintifi in the matter that was filed as No. 1200 of 1980 where he sued the late Zacharia and that in the said case he stated that there was no Judgment entered via consent settlement as alleged. He however confirmed that in his trial bundle at page 6 there is a Consent that the parties recorded before Justice Platt in the case High Court at Nairobi Civil Suit No. 1200 of 1980. The parties in the said suit are Richard Kariuki Kamwenji vs Zacharia Kimuhu. 16. He stated that he did take the Decree to the Land Control Board. That at paragraph 7 of his witness statement he indicated that the late Teresia Kariuki applied to set aside the Judgment and Decree and so the case started afresh. 17. In 4th paragraph of his witness statement, he testified that he stated that the purchase price to be Kesh 60,000 but that he had not produced the Sale Agreement in Court. That the consent before Justice Platt is dated 8/04/1980 and that he had paid Kesh 60,000 for the suit property which he paid in piecemeal although he did not have proof of payment produced in Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3767/eng@2026-06-18 3

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18. He told the Court that all his witnesses had died. That in the earlier case Civil Suit No. 1200 of 1980 he never wrote a witness statement and neither did he file a witness statement. He told the Court that before purchasing the suit property he did a search which he however did not produce in Court. Although he testified having produced the Green Cards whose acreage is 3.36 hectares and the entry is dated 15/05/1980 and it states that the Plaintifi was an owner of 2/3 in the Green Card. 19. He testified not knowing that the decision in Civil Suit No. 1200 of 1980 was set aside. He told the Court that in the Agreement attached he had given a piece of land where Mr Zacharia was buried although he did not have the original document in Court. He testified having put a caution on the suit property. 20. Upon re-examination he told the Court that the exhibits he had produced did not receive any opposition. Further that the late Zacharia was to do a transfer to him and Justice Platt’s decision did not overrule the transfer. 21. It was his testimony that the suit property was owned by many people and the copy of the Green Card shows those who owned the parcel. As for PW1 he stated that his name is shown two times the first being entry on 19/04/1978 and second entry being on 15/05/1980. 22. That they had a consent about the suit property dated 8/05/1980 but that all the witnesses he had are deceased so he has no witness to attest to what happened. 23. With that the Plaintifi closed his case. Defendant’s Case 24. Elizabeth Ngina Kariuki testified as DW1 and adopted her witness statement as her evidence in chief and she also produced a list of seven documents as exhibits and it was marked as “DW1Exh 1-7” and a further list with nine other documents which were marked as “DW1Exh 8-16”. She told the Court that she also filed a Counter-claim 25. Upon cross-examination she testified that she was present when the Consent referred to at paragraph 6 was entered into but that she had no document to support her claim. At the same time, she testified that when her father entered into the agreement, she was young and not aware. She testified having filed a copy of the Green Card and at No. 5 entry she stated that the name shown is that one of the Plaintifi showing 200/840 as the share. 26. It is her testimony that they were born and brought up on the suit property and that she has never seen the consent that was filed in Court although from what she was shown the Consent has a Court stamp and there is the signature of the late Zacharia. 27. Upon re-examination she testified not having been present when the consent was entered into. She also told the Court that they went back to the suit property in 1984 and have been residing on the suit property ever since to date. That the consent Judgment that was entered into was set aside. 28. Josephine Wanjiru Nyaga testified as DW2 and she stated that the late Zacharia was her father-in-law. She adopted her witness statement as her evidence in chief. 29. When she was cross-examined, she told the Court that she got married in 1984 and that in 1980 she was not on the suit property. 30. Francis Mwaura Nyaga testified as DW3 and adopted his witness statement dated 21/03/2025 as his evidence in chief. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3767/eng@2026-06-18 4

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31. Upon cross-examination he told the Court that he is not aware that Richard’ name is in the Green Card and that he was allocated shares. He also started he knows the Plaintifi because he comes from Ndumberi but he stated that he had never interacted with him. That the late Zacharia was his step brother. 32. With that the Defendant closed his case. 33. Parties were guided on filing of written submissions. The Plaintifi filed their submissions dated 5/12/2025 and the Defendant filed submissions dated 8/02/2026. Plaintifi ’s Submissions 34. The Plaintifi avers that he lawfully purchased 2 acres of land parcel L.R. Ndumberi/Ndumberi/738 from the late Zakaria Kimuhu in 1980 for a consideration of Kshs. 60,000, pursuant to a written Sale Agreement dated 8/04/1980. Following the vendor's failure to efiect the transfer, the Plaintifi successfully moved the High Court in Nairobi HCCC 1200 of 1980, whereupon a Decree was issued on 22/05/1980 directing the said Zakaria Kimuhu to transfer the 2 acres to the Plaintifi. The Court further proceeded to issue an order authorizing the Deputy Registrar of the High Court of Kenya to execute all requisite Transfer Forms and Applications for consent of the Land Control Board for and on behalf of Zakaria Kimuhu, the Judgment-debtor, to efiect the transfer of the 2 acres out of L.R. Ndumberi/Ndumberi/738 to the Plaintifi. 35. The Plaintifi was consequently registered as proprietor on 18/12/1980, with the Green Card at the Land Registry refiecting his name as owner to date. The Plaintifi further avers that the seller Zakaria Kimuhu executed a Transfer of Undivided Share of one quarter of his shares in L.R. Ndumberi/ Ndumberi/738 on 12/01/1980 in his favour, and that at the time of the sale, the seller's wife Teresia Waithira Kamwenji had separated from the seller and was not living with him, only returning after his death. 36. The Plaintifi further contends that the Defendant's Counterclaim for adverse possession is devoid of merit and cannot lie in law, as the requisite elements of long, open, uninterrupted, and notorious possession for a statutory period of 30 years have not been established. The Defendant's witnesses, DW1, DW2, and DW3, failed to adduce cogent or consistent evidence in support of continuous occupation, and their testimonies were materially contradictory inter se. 37. Notably, DW1 confirmed under cross-examination that entries were made in the Green Card indicating the Plaintifi as owner of the suit land and as a shareholder, and further confirmed that the Plaintifi was registered as owning two thirds of the shares per the entry of 19/05/1980 in the Green Card. DW2 equally conceded that she was not present in 1980 or 1978 when the Plaintifi's name was registered in the Green Card, and could not produce evidence to support continuous occupation since 1984. DW3, a step-brother to the late Zacharia Kimuhu, also failed to produce any evidence supporting the allegation that the Defendants have lived on the suit land since the time of his late brother, and his testimony was inconsistent with that of DW1 and DW2, rendering him an unreliable witness. 38. Furthermore, the existence of a caution duly registered on the suit land by the Plaintifi, coupled with the pendency of active Court proceedings, fatally undermines any claim to adverse possession, as the Plaintifi placed the caution after the decree was issued and it remains in place to date. It is further noteworthy that even upon the death of the late Zacharia Kimuhu, his estate and family sought permission from the Plaintifi before burying him on the land, as evidenced by the Agreement attached to the List of Documents, which conduct is wholly inconsistent with a claim of adverse possession. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3767/eng@2026-06-18 5

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39. On the issue of res judicata raised in the Defence, the Plaintifi submits that the matter is not res judicata, as Nairobi HCCC 1200 of 1980 was heard and determined and a decree issued in his favour, following which the late Teresia Waithira Kariuki applied to set aside the Judgment and decree, whereupon the matter commenced afresh and the issues therein have never been conclusively determined. The Plaintifi maintains that the Ruling of Justice Platt dated 28th February 1983 never determined the case in the Defendant's favour, and that all registrations were efiected in accordance with the law, including allotments and shares. 40. The Plaintifi produced as Exhibit 4 a Transfer of Undivided Share executed by the late Zakaria Kimuhu Nyaga dated 25/01/1980, transferring his quarter shares in respect of Land Title Number Ndumberi/Ndumberi/738 for a consideration of Kshs. 60,000, and submits that this document was never challenged by the Defendant on any ground whatsoever, including fraud, and the evidence thereon remains wholly uncontroverted. In this regard, the Plaintifi places reliance on the decision in Gachenga & 6 Others v Kimuhu & 7 Others [2025] KEELC, wherein the Court upheld a transfer executed during the lifetime of the original owner in the absence of proved fraud, finding that the suit lands were transferred to the appellants by the initial owner during his lifetime and that fraud was never proved by the Respondents, a principle squarely on all fours with the present case. 41. The Plaintifi further relies on the decision in North End Trading Company Limited (Carrying on Business under the Registered Name of Kenya Refuse Handlers Limited) v City Council of Nairobi [2019] eKLR, wherein the Court held that it is settled law in civil cases that a party who wishes the Court to give Judgment or declare any legal right dependent on particular facts or sets of facts bears the legal obligation to provide evidence that will best facilitate proof of the existence of those facts, and must present to the Court all evidence reasonably available on a litigated factual issue, thereby underscoring that it was incumbent upon the Defendant to prove that the Plaintifi either acquired the suit property through fraud or through an unlawful process, which burden the Defendant has manifestly failed to discharge. The Plaintifi accordingly seeks an order compelling the Defendant to transfer 2 acres of L.R. Ndumberi/Ndumberi/738 to him, costs of the suit, and dismissal of the Counterclaim with costs. Analysis and Determination 42. The singular and overarching issue for determination in this matter is whether the Plaintifi has established, on a balance of probabilities, a valid, enforceable, and subsisting legal interest in 2 acres of land parcel Ndumberi/Ndumberi/738, suficient to sustain an order for specific performance compelling transfer of that portion to him, and whether the Defendant's Counterclaim for adverse possession, removal of caution, and damages ought to succeed. 43. Flowing from this primary issue are the following subsidiary questions, each of which is determinative and must be resolved before the matter can be concluded: i. Whether the Judgment in Nairobi HCCC No. 1200 of 1980 was lawfully set aside by Platt J. in 1983, and if so, what the legal consequence of that setting aside is upon the registrations made pursuant to the impugned Judgment; ii. Whether the Plaintifi proved the existence of a valid and enforceable agreement for the sale of the suit land between himself and the late Zacharia Kimuhu, together with proof of payment of the alleged consideration of Kshs. 60,000; iii. Whether the late Zacharia Kimuhu possessed the legal capacity to alienate the suit land, the same being jointly owned and not having been subdivided at the material time; and, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3767/eng@2026-06-18 6

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iv. Whether the Defendant's counterclaim for adverse possession has been proved to the requisite standard. v. The doctrine of res judicata raised by the Defendant as a preliminary point of law equally calls for considered analysis, for if it avails the Defendant, the present suit is incurably barred and must be dismissed in limine without more. These issues shall be addressed sequentially and analytically as hereunder. 44. On the first and most fundamental issue, this Court must grapple with the nature and efiect of the 1983 Ruling of Platt J., which the Defendant places at the very heart of her case. It is common ground between the parties, and indeed was conceded by the Plaintifi himself under cross-examination as well as in his own witness statement dated 28/03/2025, that the consent Judgment in Nairobi HCCC No. 1200 of 1980 was set aside by the said Ruling. The Plaintifi attempts to minimise the efiect of this concession by asserting that the matter merely started afresh following the setting aside, and that the Ruling of Platt J. did not determine the case in the Defendant's favour. This Court, with respect, finds that submission to be a fundamental misapprehension of the legal efiect of the setting aside of a Judgment. 45. It is trite law, as was restated by the Court of Appeal in Pancras T. Swai v Kenya Breweries Ltd [1986] KLR 68, that where a Judgment is set aside, the parties are restored to the position they were in before the Judgment was entered, and all consequential orders and acts done pursuant to the set aside Judgment are equally rendered void and of no legal efiect. The consent Judgment having been procured by the Plaintifi without service of summons upon the late Zacharia Kimuhu, the foundation upon which all subsequent transfers and registrations were built was null and void from its very inception. In this regard, this Court is persuaded by the position articulated by the Court of Appeal in Savings & Loan Kenya Ltd v Westmont Land (Africa) Ltd [2007] 1 KLR (G&F) 601, where the Court observed that “ A Judgment obtained without service of process upon the Defendant is a nullity, and all acts done in pursuance of such a nullity are themselves null and void." 46. The registration of the Plaintifi as proprietor vide entry No. 5 of 18/12/1980 in the Green Card for Ndumberi/Ndumberi/738, having been made pursuant to a Judgment that was subsequently set aside together with all consequential orders and transfers, stands nullified as a matter of law. The Plaintifi's argument that his case started afresh following the setting aside must be understood in its proper context: the setting aside restored the parties to their pre-Judgment positions, meaning the Plaintifi, whose Judgment was nullified, bore the full burden of re-establishing his claim from scratch before a Court of competent jurisdiction. That burden, as shall be demonstrated hereunder, he has dismally failed to discharge. 47. On the issue of res judicata, this Court finds that the doctrine does not strictly apply in the manner urged by the Defendant, since the setting aside of the Judgment in 1983 prevented the matter from being finally determined, and the subsequent transfer of the file to this Court as ELC Case No. 782 of 2017 represents a continuation of proceedings that were never concluded. However, the Court notes the observation of Gacheru J. made on 28/11/ 2018, when she dismissed the Plaintifi's application for injunctive relief upon discovery that he had attempted to obtain that relief without disclosing the subsisting Ruling of Platt J. 48. That conduct alone speaks volumes about the bona fides with which the Plaintifi has prosecuted these proceedings, and equity, as the maxim goes, will not assist a litigant who comes to Court with unclean hands as was stated in Shah v Mbogo & Another [1967] EA 116, where Justice Harris stated that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3767/eng@2026-06-18 7

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discretionary equitable remedy of specific performance "will not be granted where the Plaintifi has not himself observed the terms of the contract or has been guilty of sharp practice." 49. The law applicable to the transfer of land and sale agreements at the material time in 1980 was principally the Registered Land Act, Cap. 300 of the Laws of Kenya (now repealed and replaced by the Land Registration Act, No. 3 of 2012), under which Section 38 required that any dealing in registered land be efiected by a written instrument in the prescribed form, duly executed by the parties thereto. Additionally, the Land Control Act, Cap. 302 required that consent of the Land Control Board be obtained before any sale of agricultural land could be valid and enforceable. 50. A sale conducted without Land Control Board consent was rendered void ab initio by Section 6 of the Land Control Act, as the Court of Appeal emphatically held in Githu v Ndeete [1984] KLR 776, where it was stated that: “ A transaction in agricultural land without the prior consent of the Land Control Board is void for all purposes and cannot be resurrected by any subsequent conduct of the parties." 51. The Plaintifi's claim that the Deputy Registrar of the High Court obtained Land Control Board consent on behalf of Zacharia Kimuhu pursuant to the impugned Court order cannot sanitize a transaction whose very foundation, the consent Judgment, was subsequently nullified. Furthermore, as regards the capacity of Zacharia Kimuhu to sell, Section 94 of the Registered Land Act Cap 300 provided that where land was registered in the names of joint proprietors, no single proprietor could deal with the land independently of the others without their concurrence. 52. DW3, whose evidence was wholly uncontroverted, testified with clarity and consistency that the suit land was jointly owned by five brothers following the death of their father Nyaga Njoka, and that no consent was ever sought or obtained from the co-owners for any purported sale. The Plaintifi himself conceded under cross-examination that his pre-purchase search revealed the land was registered in the joint names of Zacharia Kimuhu and his brothers, yet he proceeded to transact with Zacharia alone. In Nairobi Hundred Acres Ltd v National Bank of Kenya Ltd [1978] KLR 11, the Court was categorical that; “ a vendor cannot pass a better title than he himself has," and a co-owner who purports to sell jointly owned land without the consent of his co-proprietors conveys nothing. The purported sale to the Plaintifi was therefore null and void ab initio on this ground alone, independently of all other irregularities attending the transaction. 53. On the question of proof of the essential ingredients of the alleged sale contract, the law is settled beyond any controversy that he who asserts must prove, and the standard in civil cases is proof on a balance of probabilities: see Section 107 of the Evidence Act, Cap. 80. The Plaintifi pleaded a written sale agreement dated 8/04/1980 and alleged payment of Kshs. 60,000 as the purchase price. This Court observes, with no small measure of concern, that under cross-examination the Plaintifi was unable to produce the said sale agreement, and what he had presented in his bundle as a sale agreement was revealed to be nothing more than a letter from Njoroge Musyoka Advocates to the Deputy Registrar of the High Court requesting a consent Judgment. This is a document of an entirely difierent character from a sale agreement, and the Plaintifi's attempt to pass it ofi as evidence of a contractual relationship between himself and the late Zacharia Kimuhu demonstrates an attempt to mislead the Court. 54. On payment of the purchase price, the Plaintifi conceded unreservedly under cross-examination that he had no receipt, no acknowledgement, no bank records, no cash records, and no witness to attest to the alleged payment, stating only that the sum was paid in cash and in the absence of any witness. He https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3767/eng@2026-06-18 8

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further conceded that he could not demonstrate that he was in a financial position to command the sum of Kshs. 60,000 in 1980. In Mwangi v Wambugu [1984] KLR 453, the Court of Appeal held that; “ A Plaintifi who seeks specific performance of a contract for the sale of land must prove, to the satisfaction of the Court, not only the existence of the contract but also that he has performed or is ready and willing to perform his part of the bargain." 55. The Plaintifi has proved neither the existence of a valid contract nor payment of the consideration alleged. His case, stripped of its assertions, is built entirely on a consent Judgment that was annulled in 1983, Green Cards that have been shown to relate partly to a wholly difierent parcel of land, and oral testimony that was materially contradicted by the documentary record and his own cross-examination admissions. The attempted presentation of composite Green Card pages drawn from Ndumberi/ Ndumberi/738 and Kiambaa/Kinunga/624 as a single register is particularly troubling. Kiambaa/ Kinunga/624 is a parcel entirely distinct from the suit land, and Zacharia Kimuhu had no interest in it whatsoever. 56. The deliberate splicing of pages from two difierent registers to suggest a continuous proprietorship history in Ndumberi/Ndumberi/738 constitutes a calculated misrepresentation of the land records, and squarely engages the proviso to Section 26(1) of the Land Registration Act, 2012 (and its predecessor Section 143 of the Registered Land Act, Cap. 300), which denies the protection of indefeasibility to any title acquired through fraud or misrepresentation. As Nyarangi JA observed in Munyu Maina v Hiram Gathiha Maina [2013] eKLR, “ A title obtained by fraud cannot be protected by the register; the principle of indefeasibility of title is not a licence for fraud." 57. The Plaintifi's claim cannot be sustained on evidence that has been so thoroughly discredited, and his suit must accordingly fail. 58. On the Defendant's Counterclaim, this Court is satisfied that the Defendant has established her entitlement to the reliefs sought, subject to the following findings. The evidence of DW1, DW2, and DW3, read together, establishes that the beneficiaries of the estate of the late Zacharia Kimuhu have been in actual, open, continuous, and uninterrupted occupation of Ndumberi/Ndumberi/738 since 1984 to date, a period in excess of forty years, during which they have erected permanent structures, buried their deceased family members including Zacharia Kimuhu himself and his widow Teresia Waithira on the suit land, and exercised dominion over the same to the exclusion of the Plaintifi. The Plaintifi's caution, lodged in 1980 and maintained to date notwithstanding the nullification of his interest by the Ruling of Platt J. in 1983, has been maintained without any legal justification whatsoever for over four decades. 59. It is settled law, as Angote J. observed in John Kirui Muthiora v Stephen Waweru Muthiora [2019] KEELC 4728 (KLR), that “ A caution is not intended to be a permanent fixture on the register; a cautioner who fails to take steps to establish the validity of his claim or to remove the caution when called upon to do so renders the caution wrongful and actionable." 60. The Plaintifi's maintenance of this caution from 1983 to 2026, a period during which the suit lay dormant and the file went missing, has caused the Defendant demonstrable prejudice, including inability to deal with the suit land and deprivation of the right to quiet enjoyment of property guaranteed under Article 40 of the Constitution of Kenya, 2010. The Defendant is therefore entitled to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3767/eng@2026-06-18 9

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damages for the wrongful maintenance of the caution, having regard to the length of time the caution has subsisted and the nature of the deprivation occasioned, guided by the principles enunciated in Fredrick David Muema v Land Registrar Makueni & Anor [2022] KEELC 736 (KLR). 61. In the premises, and for all the foregoing reasons, this Court enters Judgment as follows: i. The Plaintifi’s suit dated 30/04/1980 is hereby dismissed in its entirety. ii. The Land Registrar, Kiambu, is hereby directed to rectify the register for Land Reference Number Ndumberi/Ndumberi/738 by deleting the entry of Richard Kariuki Kamwenji as an owner of the 200/840 share (or any 2.0-acre portion). iii. The Caution placed by the Plaintifi over the suit property is hereby ordered to be lifted and removed forthwith. iv. The Defendant’s Counterclaim for Adverse Possession is dismissed, but the prayer for the land to be registered solely in the name of the Estate of Zacharia Kimuhu is granted by virtue of the failure of the Plaintifi's claim. v. The Land Registrar is hereby further directed to rectify the register by deleting any entries made in favour of Richard Kariuki Kamwenji in respect of Ndumberi/Ndumberi/738 consequent upon the nullified Judgment, and to register the Estate of the late Zacharia Kimuhu as the sole proprietor thereof; vi. The Plaintifi shall pay to the Defendant damages in the sum of Kshs. 200,000 for the wrongful placement and maintenance of the caution; vii. Each party shall bear their own costs, considering the exceptional age of the matter and the demise of the original parties. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 18TH DAY OF JUNE, 2026. ……………………… MOGENI J JUDGE In the presence of: Mr. Outa for the Plaintifi Defendant - Absent Ms. Lillian - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3767/eng@2026-06-18 10

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