Gathiga v Mbogo (Sued as the legal representative of the Estate of Obadiah Mbogo Ngotho - Dcd) & another

6. That the Court be pleased to order the OCS Kiriaini Police Station to supervise the execution of the orders herein. 7. That the Respondents do pay the costs of this suit. 2. The Plainti’s case is as follows. Firstly, on 3-10-2010, the Defendants agreed to sell to the Plainti their share of the suit land, that is to say LOC. 14/Gakurwe/215. The Defendants’ share of the suit land comprises of 2/3 of the suit land. The other 1/3 of the suit land belonged to Samuel Maina Mbogo who has already given it to the Plainti. Samuel Maina Mbogo is the Plainti’s father in law and the Defendants’ brother, 3. Secondly, the Plainti paid to the Defendants the full purchase price of Kshs, 200,000/= on 3-10-2010 and the Defendants put him in possession of the suit land. Since then, the Plainti has developed the suit land by constructing a permanent house which he occupies together with his family. He has also developed the suit land substantially. 4. Thirdly when the Plainti purchased the said suit land, it was not registered in the names of the Defendants. It was in the names of Obadiah Mbogo Ngotho, the Defendants’ father. When the Plainti was still in occupation of the suit land, the Defendants led Murang’a CM’S Succession Cause No. 389 of 2019 and left out the suit land in the schedule of the deceased’s estate with the intention of defrauding the Plainti. 5. Finally, the Plainti has tried all that he could to have the said suit land transferred to him by the Defendants. He has attempted out of Court settlement and this has not worked. He led this suit when everything else failed and he claims the reliefs as enumerated above. 6. In support of his case, the Plainti led the following evidence. 7. i. Supporting adavit dated 7-8-2024. ii. Witness statements dated 7-8-2024. iii. Original copy of the sale agreement dated 3-10-2010. iv. Copy of certicate of Conrmation of Grant in Succession cause No. 389 of 2019 dated 25-5-2023. v. Copy of certicate of death of Obadiah Mbogo Ngotho dated 17-12-2018. vi. Copy of adavit in support of the petition in the cause No. 389 of 2019 dated 13-6-2019. vii. Copy of certicate of ocial search of the suit land dated 25-7-2024 showing Obadiah Mbogo Ngotho as the registered owner. viii. Four photographs showing a homestead with at least three (3) houses, a dog, a hen, two cows, a water tank and trees. The summons is opposed by the Defendants and in this connection, the 1st Defendant has sworn a replying adavit dated 10-3-2025 in which he replies as follows. One, the Applicant is married to Sylviah Muthoni Gathira, the Defendants’ niece. Two, the Defendants have never discussed the sale of the suit land with the Plainti. Three, the suit land is registered in the name Obadiah Mbogo Ngotho, the Defendants’ father and in the year 2010, the rst defendant was neither the owner nor the administrator of the estate of his father. To date, the suit land is in the name of the Defendants’ father. Four, the sale agreement is a hopeless piece of paper which cannot stand in any Court of law as it does https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5606/eng@2026-09-21 2

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not refer to any particular parcel of land. Five, the photographs led as evidence show buildings on the part of the suit land that belongs to the Plainti’s father in law, Samuel Maina Mbogo. 8. In support of their defence, the Defendants led the following evidence. i. Witness statement and replying adavit by the 1st Defendant both of which are dated 18-3-2025. ii. Grounds of opposition dated 2-12-2024. 9. At the trial on 2-12-2025 and 11-2-2026 the Plainti and the 1st Defendant testied by adopting their led evidence. They both reiterated what is in their witness statements, supporting and replying adavits as already summarised in paragraphs 2, 3, 4, 5 and 6 of this judgment. None of them deviated from their positions stated in the pleadings. 10. Counsel for the parties led written submissions dated 18-3-2026 and 5-5-2026 respectively. The issues raised in the Respondents’ submissions are as follows, 11. i. Whether the suit is incurably defective for the failure of mandatory certicate required under Order 38 rule 7 (2) of the Civil Procedure Rules. ii. Whether the Plainti failed to produce a copy of the sale agreement. iii. Whether time started running on the date of the sale agreement or on the date when the Respondents became the owners of the suit land, that is to say, 25-3-2023. iv. Whether all the ingredients of the adverse possession have been proved. I have carefully considered all the evidence adduced in this case by both sides. I have also considered the written submissions by learned counsel for the parties. I nd that the above framed issues are not sucient to settle the dispute. Under Order 15 rule 2 of the Civil Procedure Rules, the Court may frame the issues from all or any of the following materials. a. allegations made on oath by the parties, or by persons present on their behalf, or made by the advocates of such parties; b. allegations made in the pleading or in answers to interrogatories delivered in the suit; c. the contents of documents produced by either party. From the totality of the evidence adduced in this case, I nd that the following issue also arises. Whether the Plainti is entitled to the suit land through any other doctrines known in law. 12. Looking at the rst issue, I nd that the suit is not incurably defective because it complies with the mandatory provisions of Order 37 rule 7 (2) Civil Procedure Rules in that the Plainti led a certicate of ocial search dated 25-7-2024. In the case of Johnson Kinyua Simon vs Simon Gitura Rumuri the Court of Appeal in Nyeri Civil Appeal No. 265 of 2005 it was held, inter alia, “ …concerning the eect of failure to annex an extract of the title, we are of the view that nothing turns on this as the disputed land is registered under the Registered Land Act and as search certicate under the Registered Land Act duly signed by the Registrar constitutes evidence of the entries set out in the certicates. In our view reference to certied extracts in Order 37 refers to titles under the other systems of land registration and not to Registered https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5606/eng@2026-09-21 3

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Land Act type of registration. Under the latter system of registration, we think a search certicate meets the requirements of the relevant Law.’’ From the above decision, the certicate of ocial search is what the Plainti les in the cases of land registered under the Registered Land Act (now repealed and replaced by the Land Registration Act, Act No. 3 of 2012) Counsel for the Defendants had erroneously referred to Order 38 rule 7 (2) of the Civil Procedure Rules. Order 38 does not have rule 7. It contains only two rules and it deals with selection test suit and not adverse possession. 13. As for the second issue, the Plainti produced a copy of the sale agreement which is on record and it is laminated. There is a further list of documents dated 26-2-2026 on record. It is the one accompanied by the original sale agreement. This record was served upon the Respondents counsel. 14. There is no evidence at all that the 1st Defendant is the registered owner of the suit land. The Defendants did not le any evidence on the ownership of the suit land. The only evidence of ownership on record is the certicate of ocial search dated 25-7-2024. It shows that Obadiah Mbogo Ngotho is the registered owner of the suit land since 19-4-1978. It is only in the Respondents’ submissions dated 18-3-2026 that it is insinuated that the Respondents became the legitimate owners of the suit parcel on 25-3-2023. If there is such evidence, then it is nowhere on this record. It should have been led by the Respondents. In the absence of such evidence, it is my nding that Obadiah Mbogo Ngotho is the registered owner of the suit land. It is also my nding that time started running on 3-10-20210. In the case of Public Trustee vs Wandaru (1984) KLR 314 at 319, it was stated that adverse possession should be calculated from the date of payment of the purchase price to the full span of 12 years if the purchaser takes possession of the property because from this date, the true owner is dispossessed o possession. A purchaser in possession of the land purchased, after having paid the purchase price, is a person in whose favour the period of limitation can run. In this case, time therefore began to run when the plainti paid the full purchase price and occupied the suit land and that was 3-10-2010. I do not, even for one moment believe that the Defendants did not receive the full purchase price from the Plainti. I do not believe that there was no sale agreement between the parties. I believe the sale agreement which is laminated and led in court was signed by the two Defendants on 3-10-2010 and it contains their signatures and identity card numbers. It also contains the signatures of the Plainti, Samuel Maina Mbogo, Pauline Njoki Wachira and Sylvia Muthoni Gathira as well as their identity card numbers. It is also my nding that the Plainti occupied the suit land on the date that he paid the full purchase price as per the sale agreement. 15. Delving into the fourth issue of the adverse possession, it is my nding that all the ingredients of adverse possession exist in this case. They include the Plainti’s occupation of the land without the permission of the Defendants after the full payment of the purchase price. The second ingredient is that the said occupation is without force because there has never been any known attempted eviction of the Plainti. The occupation has also been as of right since the Plainti has established a homestead on the land. Further to the above, the period of occupation exceeded the statutory twelve (12) years on 3-10-2022. Finally, it has been held time and again that a claim for adverse possession is against the title to land and not against the individual registered proprietor, and therefore a change of registered ownership does not interrupt time already running. See the case of Githu vs Ndeete (1976) KLR 776. It is therefore immaterial who the registered owner of the land is. What matters is that the Plainti’s occupation has been continuous, with force, without permission and as for right and for a period in the excess of twelve (12) years. 16. In the grounds of opposition dated 2-12-2024, the Defendants have stated as follows inter alia: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5606/eng@2026-09-21 4

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4. The Applicant’s claim ought to be refund of cash paid as legally the Applicant did not purchase any land. 5. That Kshs 200,000/= for 1.5 acres cannot possibly be fair value. These grounds seem to admit that the Defendants received the Kshs. 200,000/= from the plainti. The fth ground suggests that 2/3 of the suit land is 1.5 acres. By saying that the Defendants should be asked for a refund of the purchase price and not the land purchased, the Defendants seem to be saying that they can enter into a sale agreement in 2010, let the Plainti perform his part of the agreement while they do not perform theirs and then more than 14 years later in the year 2024, refund the purchase price. This is not only unjust enrichment but also benetting from their own fault. They have not explained why they cannot transfer the suit land to the plainti. ‘’Nullus commodum capere potest de injuria sua propria is an equitable maxim which means that no person can take advantage of their own wrong’’ Equity is now a Constitutional value under Article 10 of the constitution which binds the Courts whenever they interpret any Law. Applying this principle, the defendants should not benet from their refusal to comply with the agreement dated 3-10-2010. It is not correct to say that the plainti was buying 1.5 acres of land from the Defendants. The whole land is 1.5 acres and he was buying 2/3 of the suit land which translates to 1 acre. The half acre had already been gifted to him by his father in law who is a brother to the Defendants. After all, the defendants did not le any evidence of the value of the land in the year 2010 and currently to back their assertion that Kshs 200,000/= is not a fair value for the land. 17. Finally on the fth issue, I nd that the Plainti is entitled to the suit land through the twin doctrines of constructive trust and proprietary estoppel. Having received the full purchase price from the Plainti and having put him in possession, the Defendants are now estopped from denying that the plainti owns the land. This case is similar to that of Willy Kimutai Kitilit vs Michael Kibet Civil Appeal No. 51 of 2015 whose holding is that the two doctrines will apply where circumstances make it unconscionable for the vendor to rely on the statutory invalidity of the transaction. 18. In conclusion and for the reasons already given, I nd that the Plainti has proved that he is entitled to the suit land through the doctrine of adverse possession as well as the doctrines of constructive trust and proprietary estoppel. Consequently, I enter judgment for the Plainti against the Defendants jointly and severally in terms of prayers 1, 2, 3, 5 and 6 of the originating summons dated 7-8-2024. Costs to be borne by the 1st Defendant alone. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 21ST DAY OF SEPTEMBER, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistants– Antony Plainti’s Counsel – T.M. Njoroge 1st Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5606/eng@2026-09-21 5

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Mr Kimwere 2nd Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5606/eng@2026-09-21 6

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