Charles Muthama Musau, Kivuva Ngomo & Aloise Mutie Kathime v Daniel Mbithi Kiamba

to either a member or a member’s family who was able to raise money for purchase. 4. The plot had been registered in the name of its chairman Daniel Ngomo Lole. In 1994, the plot together with the building was sold to the Respondent whose mother Rael Kiamba was a member. The proceeds of the sale were shared amongst the members who were alive including the children of those who had passed away. 5. The chairman of Uvunguo Company passed away in 1985 but plot No. 1 at Kwa Kimae Market remained in his name. On 27th December, 2014, the widow of Daniel Ngomo, Lois Syombua Ngomo sold the plot to the first Appellant who is deceased and whose legal representatives have filed Appeal No. E032 of 2025. On 7th January, 2023, the deceased sold the plot to the 3rd Appellant at Kshs.200,000/=. The 2nd Appellant is son to the late Daniel Ngomo. 6. The Respondent filed a suit against the Appellants when the 3 rd Appellant attempted to take possession of plot No. 1 at Kwa Kimae Market (suit property). The suit was fully heard and judgment was given in favour of the Respondent. This is what triggered the filing of this appeal to this court in which the Appellants raise the following grounds of appeal; 1. That the learned magistrate erred in law and in fact by making a determination that the Plaintiff was the lawful and registered owner of the suit property being plot No. 1 at Kwa Kimae Market against overwhelming evidence to the contrary. 2. That the learned magistrate erred in law and fact when he failed to give due regard to the elaborate evidence that showed the subject sale agreement was between the Plaintiff and an entity called Uvunguo Company and not the Defendants hence the Plaintiff sued the wrong parties in this matter. ELC APPEAL NO. E014 OF 2024 2|Page

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3. That the learned magistrate erred in law and fact when he failed to give due regard to the submissions filed by the Defendants. There was no link established between the registered owner and the Plaintiff and further no link was established between the registered owner and Uvunguo Company as regards ownership of the suit property. 7. In Appeal No. E032 of 2025, the Appellants raised the following grounds: 1. The learned magistrate erred in law and fact by failing to consider and determine that the legal and registered owner of the suit property was one, Daniel Ngomo (deceased) and not the Plaintiff. 2. The learned magistrate erred in law and fact by disregarding documentary evidence on ownership of the suit property by the Defendants and upholding oral evidence of the same by the Plaintiff which was not proved to the required standards of the law. 3. The learned magistrate erred in law and fact by finding that the suit property was owned Uvunguo Company and that they sold it to the Plaintiff without any document or deed of proof of ownership in the name of the said company. 8. The appeals were disposed of by way of written submissions. The Appellants filed their submissions dated 31st March, 2026. The Respondent filed his submissions dated 16th June, 2026. 9. The Appellants in their submissions consolidated the six grounds of appeal in the consolidated appeals. The six grounds were collapsed into three grounds as follows: 1. The learned magistrate erred in law and fact by determining that the lawful and registered owner of the suit property is the Plaintiff against overwhelming evidence to the contrary. The trial court ELC APPEAL NO. E014 OF 2024 3|Page

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failed to determine that the registered owner was one, Daniel Ngomo (deceased). 2. The learned magistrate disregarded evidence and Defendant’s submissions tht the sale agreement was between the Plaintiff and an entity called Uvunguo company and not the Defendants hence the Plaintiff sued the wrong party. No link was established between the registered owner and the Plaintiff and further no link was established between the registered owner and Uvunguo company as regards ownership of the suit property. 3. The learned magistrate erred in law and in fact by disregarding documentary evidence on ownership of the suit property by the Defendants and upholding oral evidence by the Plaintiff which was not to required standard of proof. The trial court determined that Uvunguo company owned the suit land and sold it to the Plaintiff without any document/deed of ownership from the said company. 10.The Appellants submitted that the Respondent had produced a transfer (Pexh 2) and an allotment letter (Pexh 3). They submitted that the Applicant in the transfer document was Daniel Ngomo and had been signed by Daniel Ngomo. The transfer application was dated 9th November, 2023 when the said Daniel Ngomo died in 1985. They submitted that the application for transfer document was suspect and that it was not possible for the Respondent to have been given a letter of allotment on 27 th November, 2009 when there was no sale agreement or transfer document signed by the owner of the suit property. 11.The Appellants further submitted that the findings of the trial magistrate in his judgment were contrary to his findings in his ruling in the application for injunction. They submit that whereas the trial magistrate found in his ruling that no party produced a search to confirm ownership, in his judgment, he ELC APPEAL NO. E014 OF 2024 4|Page

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found that the Plaintiff was the owner when the Appellants had produced a search which showed that the owner of the suit property was Daniel Ngomo. 12.The Appellants further submitted that the trial magistrate was persuaded to agree that Daniel Ngomo was fraudulently registered as owner of the suit property when no such fraud was pleaded or proved. Reliance was placed on the case of Samuel Kihamba –vs- Mary Mbaisi Civil Appeal No. 27 of 2013. 13.The Appellants further submitted that documents which the Respondent produced were not genuine. Reliance was placed in the case of Patel –vsMwangi KEELC 12603 (KLR). 14.The Appellants submitted that the Respondent cannot seek the suit property by way of adverse possession. They submitted that to succeed in a claim for adverse possession the claimant has to show that the registered owner knew the presence of the claimant on the land. They relied on the case of Kamia & Another –vs- King’oo & 711 Others (2024) KECA 1609 (KLR). 15.The Appellants submitted that Daniel Ngomo had died and he would not have known that the Respondent was on his land. 16.It was further submitted that no title was produced to confirm that Uvunguo company was the registered owner of the suit property. They submit that the Respondent cannot claim to be a bonafide purchaser without notice. They relied on the case of Dina Management Ltd –vs- County Council of Mombasa & 5 Others Petition No. 8 of 2021. 17.The Appellants finally submitted that even though Daniel Ngomo allowed the members of Uvunguo to use his plot, this did not amount to transfer and that continuous use of Daniel Ngomo’s land by Uvunguo Company did not result to any adverse claims. They relied on the case of Kihamba –vsMbaisi (Supra). 18.The Respondent submitted that the trial magistrate properly analyzed the evidence adduced and arrived at a correct finding that the Respondent had ELC APPEAL NO. E014 OF 2024 5|Page

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proved his case on a balance of probabilities. The evidence of the Respondent was corroborated by two independent witnesses. The proceeds of the sale were shared amongst the members of Uvunguo company and that one of the sons of the late Daniel Ngomo received a share of the family’s money. 19.It was further submitted that the Appellants merely raised suspicion on how the Respondent obtained his allotment letter. It was submitted that the Appellants never plead or proved any particulars of fraud on the part of the Respondent. It was further submitted that the Appellants witnesses were aware that the Respondent was laying claim to the suit property way back in 1995 yet the sale by the family of Daniel Ngomo took place in 2014. This evidence came out from DW3. The 1 st Appellant paid rates for the suit property after the case before the lower court had been filed. 20.It was further submitted that failure of the 2nd Appellant to give any evidence before the lower court entitled the court to make an adverse inference that if he testified, his evidence would not support his case. Reliance was placed on the case of Grain Industries Limited –vs- Ali & 6 Others KEHC 27009 (KLR). 21.The Respondent further submitted that DW 2 had no authority to sell the property of the late Daniel Ngomo as she had not obtained grant of letters of administration. Reliance was placed on Section 45 (1) of the Law of Succession Act. It was submitted that the transaction between DW2 and the 1st Appellant was void ab initio and was incapable of conferring any interest in the 3rd Appellant. Reliance was placed on the case of Kamau & Another –vs- Nganga & 3 Others KEELC 18678 (KLR). 22.The duty of a first appellate court was aptly stated in the case of Selle and Another –vs- Associated Motor Boat Co. Ltd & Others (1968) EA 123 as follows: ELC APPEAL NO. E014 OF 2024 6|Page

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“.....An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either it has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence of if the impression based on the demeanor of a witness is inconsistent with the evidence in the cases generally”. 23.I have carefully re-evaluated the evidence adduce before the trial court as well as the submissions of the parties. I have also considered the grounds of appeal raised in the consolidated appeal. The issues which arise for determination are firstly, who owned the suit property. Secondly, was the sale to the Respondent valid. Thirdly, was the sale of the suit property to the 1st Appellant valid and if so, did the 3rd Appellant have any good title derived from the 1st Appellant. Who owned the suit property 24.The evidence which was tendered before the lower court shows that the place where the suit property is situated had been given to the County Council for a market called Kwa Kimae market, dispensary and a church. The market centre and other public utilities were given by Daniel Ngomo and Mbithuka Nzuasya. This is confirmed from the judgment in Uaani District Court Civil Case No. L91 of 1977 where Daniel Ngomo who was known as Ngomo Lole was named as the 2 nd Defendant. The land which had ELC APPEAL NO. E014 OF 2024 7|Page

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been surrendered by Daniel Ngomo and Mbithuka Nzuasyo became public land. 25.There is also evidence that there were 12 members who were operating under the name of Uvunguo company where Daniel Ngomo was chairman. This group was operating the business of selling Kaluvu. PW3 Joseph Ngui Kitema was son to Hurun Kitema Kiluvi who was the vice chairman of Uvunguo company. He testified on how the traditional brews were banned in 1980’s. He stated that in 1993, members decided to sell the premises from where the business was operating. 26.The members had resolved to sell the suit property to either a member or his children who were able to buy. The Respondent’s mother was a member. The Respondent then entered into an agreement whereby the suit property was sold to him on 11th January, 1994. The proceeds of the sale were shared among members who were alive and the children of those who had died. Among those who benefitted was the 2 nd Appellant who is son to the late Daniel Ngomo who had died as at the time the suit property was sold. 27.Since Kwa Kimae market was under the County Council, the County Council of Makueni gave an allotment letter to the Respondent on 27 th November, 2009. It is clear that in 2013, there was an attempt to transfer the suit property from the name of Daniel Ngomo to that of the Respondent but this was not possible for obvious reasons. Daniel Ngomo had died in 1985. The Respondent admitted as much when he stated during the hearing that he unsuccessfully tried to change ownership records with the County Government of Makueni in vain. 28.DW3 confirmed during cross examination that he was aware that the Respondent was claiming ownership of the suit property in 1995. He also stated that Musyoka Mbithuka told them that the suit property had been sold. The 2nd Appellant who is the eldest son of Daniel Ngomo and who received part of the proceeds of the sale never testified before the lower court. ELC APPEAL NO. E014 OF 2024 8|Page

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29.Daniel Ngomo never laid claim to the suit property during his lifetime. He is not the one who constructed the building from where the Kaluvau business was operated. There was no rent being paid to Daniel Ngomo. His name was captured in the records of Makueni County Council as he was chairman of Uvunguo company. 30.The sale of the suit property by DW2 in 2014 was an afterthought. The suit property never belonged to Daniel Ngomo. Daniel Ngomo and Mbithuka Nzuasyo had surrendered their land to the County Council which set up Kwa Kimae market which became public property and could not be retained as private property by Daniel Ngomo. If the suit property belonged to Daniel Ngomo, he should have been charging rent from Uvunguo company. 31.If indeed the family of Daniel Nomo was serious that the suit property belonged to him they should have taken steps to stop the Respondent from laying claim to it. The family of the late Daniel Ngomo should not have received a share of the proceeds of sale from the suit property. The 2 nd Appellant knew that the suit property had been sold to the Respondent. When he was sued, he did not give any evidence. This court is entitled to infer an adverse inference that if he were to testify, his evidence would not have been favorable to him. 32.In the case of Grain Industries Limited (Supra) it was stated as follows: “The court will make an adverse inference when a party failed to call evidence they have. In the case of Nesco Services Limited vs CM Construction (EA) Limited (2021) eKLR, Justice Odunga J as he then was stated as doth:“Since the said author was for reasons unknown to the court not called to testify and dispute its authenticity, adverse inference could be made thereon”. 33.Daniel Ngomo was one of the pioneer members of Uvunguo company. His registration as owner of Uvunguo company may not have been with a bad ELC APPEAL NO. E014 OF 2024 9|Page

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intention. He was the chairman and all the group members would not have been put in the records. This explains why Daniel Ngomo did not charge rent from Uvunguo company because he was aware that he and Mbithuka Nzuasyo had surrendered their land for a market centre. This plot became public land as the search produced by the Appellants show. The mere appearance of Daniel Ngomo’s name in the records does not mean that the suit property belonged to him. I therefore find that the suit property belongs to the Respondent. Whether the sale to the Respondent was valid 34.The evidence which was adduced shoed that the suit property belonged to Uvunguo company. Those who sold it were members of Uvunguo company who had been mandated to do so by the members in 1993. The reason for the sale was that the main business of the company had crumbled the sale of Kaluvu having been banned by a presidential decree. The Uvunguo company was not a registered entity. Decisions were collectively made by members including the decision to sell the suit premises to a son of one of the members. Proceeds from the sale were shared amongst the group members. Whether the sale of the suit property to the 1 st Appellant was valid and if so, did the 3rd Appellant have any good title derived from the 1st Appellant. 35.The 2nd Appellant was sued before the lower court because he was involved or was aware of the sale of the suit property to the 1 st Appellant who in turn sold it to the 3rd Appellant. The 2nd Appellant was aware that the suit property had been sold to the Respondent. He had in fact benefited from the share of his late father Daniel Ngomo. He therefore knew that there was nothing to sell to the 1st Appellant. 36.DW2 is the third wife of Daniel Ngomo. When she was selling the suit property she was aware that her husband had died in 1985 and that there was ELC APPEAL NO. E014 OF 2024 10 | P a g e

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no succession which had been carried out. Even if it emerged that the suit property belonged to her husband, which is not, then she had no capacity to sell the same to the 1st Appellant. Equally the 1st Appellant had nothing to pass to the 3rd Appellant. 37.Section 45(1) of the Law of Succession Act states as follows: “Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children”. 38.The 1st Appellant did not obtain a better title which he would have passed on to the 3rd Appellant. In the case of Kamau & Another (Supra) it was held as follows: “The maxim of ‘nemo date quod non habet’ is as old as the law itself; no one can transfer a better title than he holds. It matters not that the Appellants may have acted in good faith or that they relied upon formal documentation. Where the root of title is poisoned, the subsequent transferee inherits not a shield but a shadow. The law does not breathe life into a transaction that is steeped in fraud”. 39.It is clear that the suit property was lawfully sold to the Respondent. The suit property never belonged to Daniel Ngomo who had surrendered it to the County Council for setting up a market. I therefore find that these consolidated appeals are devoid of merit. The same are dismissed with costs to the Respondent. ..................................................... HON. E. O. OBAGA, FCIArb JUDGE ELC APPEAL NO. E014 OF 2024 11 | P a g e

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JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 1ST DAY OF OCTOBER, 2026. IN THE PRESENCE OF: Mr. Mwangi for Mulu for Respondent Ms. Kenyatta for Appellant Court assistants – Kilonzo and Musyoki ELC APPEAL NO. E014 OF 2024 12 | P a g e

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