Pauline Wairimu Mbagara v Stephen Kang'ethe Kiarie, Soil Merchants (K) Limited & 10 Others

GEORGE MBUGUA WAIRIMU .............................................10 TH DEFENDANT JACINTA WAMBUI THUMBI ................................................11 TH DEFENDANT THE DISTRICT LAND REGISTRAR, THIKA ....................12 TH DEFENDANT JUDGMENT 1. This suit concerns the parcel of land known as Title No. Kiambu/Munyu/1585, measuring approximately 0.405 hectares and situated at Munyu within Kiambu County (hereinafter "the Suit Property"). The Suit Property was at one time registered in the name of the 1st Defendant who transferred to the 2nd Defendant in August 2013, and was thereafter subdivided into ten parcels, namely Kiambu/Munyu/3632 to 3641 (hereinafter "the Resultant Parcels"), which were transferred to the 3rd to 11th Defendants. The Plaintiff's case as pleaded 2. The Plaintiff commenced this suit by a Plaint dated 16 th November 2020. She averred that the 1st Defendant is her legal husband. She pleaded that the Suit Property was family land, which the 1 st Defendant's father, THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 2

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who is her father-in-law, had registered in the 1st Defendant’s name "to hold in trust of the plaintiff and their siblings". 3. She averred that the 1st Defendant sold and transferred the Suit Property to the 2nd Defendant without her knowledge. She further averred that he did so without the spousal consent that the law requires. It is the Plaintiff's case that the 2nd Defendant then, again without her knowledge, subdivided the Suit Property and caused the 12 th Defendant to issue titles for the resultant parcels and later sold them to the 3 rd to 11th Defendants. She pleaded that the 1st and 2nd Defendants acted secretly and in collusion, and that their actions had rendered her and her family squatters on their own land. She averred that the 3 rd to 11th Defendants were, at the time of their purchases, aware of the illegality committed against her. 4. As against the 12th Defendant, the Plaintiff averred that it registered the transfer from the 1st Defendant to the 2nd Defendant illegally, as neither Land Control Board consent nor spousal consent had been obtained. She pleaded that if any such consent existed, it had been obtained illegally, because she never appeared before any Land Control Board and never signed any affidavit or consent. 5. The Plaintiff further averred that the 1 st Defendant had refused to rectify the transfer despite being asked to do so by the wider family. The THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 3

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Plaintiff prays for judgment against the Defendants, jointly and severally, for: a. A declaration that the 1st Defendant's sale and transfer of the suit property to the 2nd Defendant was illegal and in breach of trust to the Plaintiff and her siblings; b. A declaration that the subdivision of the suit property into the "nine subtitles" and the subsequent transfers to the other Defendants were illegal and a nullity; c. An order that the Land Registrar cancel all the titles issued from the suit property and restore the original title; d. Costs of the suit; and e. Any other or further relief the Court deems necessary. The 1st Defendant's Defence 6. The 1st Defendant filed an earlier statement of defence dated 17 th April 2021. The Plaintiff replied that it consisted of admissions, and prayed for judgment on them. At the hearing, the 1 st Defendant said he did not remember that defence and did not wish to rely on it, and elected to rely on his Statement of Defence dated 30th May 2023. 7. By his Statement of Defence dated 30 th May 2023, the 1st Defendant admitted the descriptive paragraphs of the Plaint. He admitted paragraph 6 of the Plaint partially, stating that "he is married to the plaintiff and the registered owner of land parcel KIAMBU/MUNYU/1585". THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 4

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He denied, however, that the Suit Property was family land held in trust. He further stated that at the time of the sale he had separated from the Plaintiff and was single. He denied that he sold the land without the required consent. He averred that he had sworn an affidavit of nonapplicability of spousal consent in respect of the sale. The 2nd Defendant's Defence 8. The 2nd Defendant filed a Statement of Defence dated 26 th January 2021, admitting that the 1st Defendant was the registered proprietor of the Suit Property, but denied that the land was family land or was held under any trust. It admitted that the 1st Defendant, as absolute proprietor, transferred the Suit Property to it through a sale asserting that the transfer was legal and in conformity with the laws of Kenya. 9. It admitted that it subdivided the Suit Property into Kiambu/Munyu/3632 to 3641, which it later transferred to the 3 rd to 11th Defendants and denied that its transaction with the 1st Defendant was conducted secretly. The 2nd Defendant averred that it and the 3 rd to 11th Defendants were all innocent purchasers for value. The 3rd to 11th Defendants' Defence and Counterclaim 10. The 3rd to 11th Defendants filed a Defence and Counterclaim dated 24th August 2023. They averred that the acquisition process described by the Plaintiff was false, and that the resultant parcels were transferred to them upon purchase from the 2 nd Defendant. They pleaded that they were innocent purchasers for value and strangers to the Plaintiff's THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 5

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allegations. They averred that they conducted "assiduous due diligence" before purchase, which established that the 2 nd Defendant was the duly registered owner. 11. In their Counterclaim, the 3rd to 11th Defendants averred that they are the rightful owners of the resultant parcels and that the Plaintiff is a trespasser. They averred that they had been deprived of quiet enjoyment of the land, hindered from developing it and had thereby suffered loss and damage. They pray that the Plaintiff's suit be dismissed with costs, and that judgment be entered against the Plaintiff for: a. A declaration that the 3rd to 11th Defendants are the absolute legal owners of the respective Suit Properties; b. A permanent injunction restraining the Plaintiff, her agents and/or assigns from entering into or in any way interfering with their lawful use of the suit properties; and c. General damages and interest thereon. The 12th Defendant's Defence 12. The 12th Defendant filed a Statement of Defence dated 21 st July 2023 through the Hon. Attorney General. It stated that it was a stranger to the averment that the 1st Defendant is the Plaintiff's legal husband. It admitted that the 1st Defendant had been the registered owner of the Suit Property, but denied that he was registered as such to hold it in trust for the Plaintiff "and their siblings". THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 6

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13. The 12th Defendant averred that the 1st Defendant swore an affidavit stating that he did not require spousal consent to deal with the Suit Property, as he had not contracted any marriage under the laws of Kenya. It said it was a stranger to the allegations concerning the subdivision and sales. It denied that the transfer to the 2 nd Defendant was registered illegally, and prayed that the suit be dismissed with costs. The Evidence 14. PW1: Pauline Wairimu Mbagara, the Plaintiff, adopted her witness statement dated 26th November 2020 as her evidence-in-chief. She produced her list and bundle of documents of even date. She also produced her further list of documents dated 30 th May 2023, which contains five documents. 15. In her statement, PW1 stated that she is the wife of the 1 st Defendant and that they have children together. She said the Suit Property is the family's only land, and that it was given to her husband by his father, Peter Kiarie Kimethe, to hold in trust for her and their children. She stated that the 1st Defendant sold it without her knowledge or consent, and that she never appeared before any Land Control Board or gave spousal consent. She added that she and her family remain in physical possession of the land and stand to be rendered homeless. 16. The documents PW1 produced were: THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 7

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a. Certified copies of the register abstracts (green cards) for Kiambu/Munyu/1585 and for the resultant parcels, Kiambu/Munyu/3632 to 3641; b. Copies of the national identity cards of her witnesses; c. The birth certificates of five children, each naming the Plaintiff as mother and the 1st Defendant as father: Jeniffer Wanjiru (born 30th September 1992, Munyu), Erick Kiarie (born 20 th June 1994, Munyu Sub-location), Joyce Wangui (born 20 th October 1996, Munyu, Thika), Peter Mbagara (born 11 th September 1999, Thika) and Joseph Kimani (born 29th May 2005, Thika District Hospital); d. Photographs said to have been taken at her customary wedding; e. A Certificate of Official Search for the Suit Property dated 20 th September 2013, showing the 2nd Defendant as the registered proprietor; and f. Her letter to the Land Registrar, Thika, dated 20 th September 2013, headed "Restriction on Land Parcel Kiambu/Munyu/1585". 17. Cross-examined by Mr. Maina for the 1st Defendant, PW1 testified that the 1st Defendant, Stephen Kang'ethe Kiarie, is her husband and that they have been married since 1992. She said the Suit Property was sold in 2013 and that she knows land cannot be sold without spousal consent. She understands the process of selling land, but she does not know THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 8

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whether the suit land was sold lawfully. She repeated that the Suit land was given to her husband by his father, Peter Kiarie Kimethe, to hold in trust for her and their children. She confirmed that the search she produced does not show the suit property in the 1 st Defendant's name. She stated that her main complaint is that the property was sold without her consent. 18. Cross-examined by Mr. Mugane for the 2 nd Defendant, PW1 said she does not have a marriage certificate, but has produced the birth certificates of their children. She confirmed that the title does not show that her husband held the land in trust for her and the children. She said she learnt of the sale in 2013, reported the matter to the Land Registrar and asked for a restriction to be placed on the title. She confirmed that the land was later subdivided and transferred to other people, and that she filed this suit in 2020. PW1 further stated that she lodged a restriction, but it was removed and the land was transferred to the 3 rd to 11th Defendants. She said her husband sold the land to Soil Merchants. She confirmed that the land was registered in her husband's sole name, and said he did not consult her when he decided to sell it. She did not know whether he was paid in full. 19. Cross-examined by Ms. Nyawira for the 12th Defendant, PW1 said she sued the Land Registrar because he transferred the suit property although the transaction was fraudulent. She conceded that the green card does not bear her name, but that of Peter Kiarie Kimethe. She was THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 9

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shown the affidavit in which the 1st Defendant swore that he had never married, and said that her husband lied to the Land Registrar. 20. In re-examination, PW1 said she has lived on the suit property since she married in 1992, and that she lives on it and cultivates it. She said the purchasers should have verified whether the land was matrimonial property before buying it. 21. PW2: Eric Kiarie Kang'ethe testified that he is a son of the Plaintiff and the 1st Defendant. He adopted his witness statement dated 20 th May 2023. In it, he stated that in about 2013, having just finished high school, he saw people doing survey works on the family land while he was living there, and that none of them spoke to him. He told his parents and relatives, and on follow-up it emerged that the land had been sold. He also stated that the Plaintiff confirmed the transfer through a search and wrote to the Registrar seeking a restriction. His statement said the family was "forced to move out of our home due to the unlawful sale". 22. Cross-examined by Mr. Maina, PW2 said the 1st Defendant is his father and that he is aware his father was the registered owner of the suit property. He said his father sold the land in 2013 and abandoned the family. 23. Cross-examined by Mr. Mugane, PW2 confirmed that his mother does not have a marriage certificate. He said his parents had lived together since at least his birth in 1994, and that he was 19 years old in 2013 THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 10

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when the land was sold. He said he was present when his grandfather gave his father the land for the family to live on. 24. PW3: Lydia Wambui Kiarie, testified on oath that she is a businesswoman living in Kahawa estate, and a sister of the 1 st Defendant. She adopted her witness statement dated 20 th May 2023 as her evidence-in-chief. In it, she stated that in 2007 their father, Peter Kiarie, subdivided his land, Kiambu/Munyu/493, among his children and gave the 1st Defendant parcel 1585 to hold in trust for his children, on the understanding that it was not to be sold. She added that the 1 st Defendant sold it secretly without telling his wife, and then left. 25. Cross-examined on behalf of the 1st Defendant, PW3 said that in 2007 her father gave land to all his children, and that her brother was given Kiambu/Munyu/1585. She said her father made it clear that he gave the land to Stephen to hold in trust for his children, but she has no document proving the trust. She said her father is alive but suffers from dementia. She learnt of the sale only after the land had changed hands. Her father did not know about it and was not around when Stephen sold the land. PW3 said she did not know whether Stephen swore an affidavit that he was not married. She said Stephen and the Plaintiff were living as husband and wife, that they have children, and that Stephen did not obtain his wife's consent when he sold the Suit Property. She accepted that it is possible to have children out of wedlock, and that a couple with THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 11

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children can separate. She maintained that when Stephen sold the property he was married to the Plaintiff. 26. Cross-examined by Mr. Mugane, PW3 said her father divided his land in 2007, giving each of the sons one acre and each of the daughters a quarter of an acre. She said her mother died ten years ago. She is aware that land belonging to a married person cannot be sold without spousal consent; she herself is not married. PW3 further said that, before buying land, a purchaser must do due diligence by visiting the land and making inquiries from the chief and village elders. She said Soil Merchants never visited the suit property or inquired into the marital status of the vendor, the 1st Defendant. She accepted that the Suit Property was registered in Stephen's name, and that the Defendants did not know whether he was married. She said the dispute is not only between Pauline and Stephen, but also involves their children. 27. Ms. Nyawira had no questions for the witness. 28. In re-examination by Mr. Njuguna, PW3 said that anyone wishing to confirm whether she is married would need to come to the ground, to her home. Likewise, anyone who wanted to know about the suit property should have inquired from the family. She said she knows her brother is married and that the family went to the Plaintiff's home to pay dowry. She said Stephen and Pauline lived together as husband and wife, and as far as she is concerned her brother is still married to Pauline.That THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 12

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marked the close of the Plaintiff's case, and the matter was fixed for defence hearing on 19th November 2025. The 1st Defendant's case 29. DW1, Stephen Kang'ethe Kiarie, adopted his witness statement dated 30th May 2023 as his evidence-in-chief. He also produced the four documents in his list of documents of the same date. These are his affidavit sworn on 20th July 2013, a copy of the title for the Suit Property, the sale agreement dated 2nd August 2013, and the Land Control Board consent dated 25th July 2013. He stated that he sold the land to the 2 nd Defendant and has no dispute with it. 30. Cross-examined by Mr. Mugane, DW1 said he was paid the purchase price in full and willingly transferred the land to the 2 nd Defendant after obtaining Land Control Board consent. He said he did not require spousal consent because he was separated at the time: he was married with children, but was not staying with his wife. He has no marriage certificate. He said he used the sale proceeds to pay his children's school fees and for his family's welfare. He inherited the Suit Property from his father and was not required to hold it in trust for his children. His father is alive and never objected to the sale. He prayed that the Plaintiff's case be dismissed. 31. Cross-examined by Ms. Achayo, DW1 said he entered into a written sale agreement with Soil Merchants. Before the sale he held a title deed THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 13

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in his name. He said he was separated from his wife when he sold the land. 32. Cross-examined by Ms. Nyawira, DW1 said that when he was registered as owner, he did not state that he held the land in trust for his children. He said that when he sold the land he was married under customary law but separated from his wife and that there had been no legal divorce. He confirmed that he is the one who stated that he did not require spousal consent. 33. Cross-examined by Mr. Njuguna, DW1 said he understands the importance of telling the truth. Referred to his statement of defence dated 17th April 2021, he said he did not remember it and did not wish to rely on it, and that he relies on his defence dated 30 th May 2023. He said the Plaintiff was his wife, that PW2 is his son and that PW3 is his sister. He said that when he sold the Suit Property, he was living on it. He inherited the land from his father, and his brothers were also given their shares. DW1 said his marriage to the Plaintiff was a customary marriage and that they have since parted ways, but he did not file for a formal divorce. His local chief knows him and his family, and his neighbours know his land. He had produced no document to show that he used the proceeds to pay school fees. He said his family had another piece of land apart from the Suit Property. He did not involve his wife and children when he sold, and his eldest son was 18 at the time. He said he told the advocate at the time of the sale that he did not require spousal consent THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 14

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as he did not have a wife, but that he did not understand the import of that statement. He said he married the Plaintiff in 1993. 34. In re-examination by Mr. Maina, DW1 said he and the Plaintiff cohabited as man and wife and were blessed with children. He sold his land to Soil Merchants. He inherited the land and did not hold it in trust for his children. He said that in his affidavit he stated that he had not contracted any official marriage. He said he paid dowry after he sold the Suit Property, to open the way for his children to marry. He was not staying with Pauline at the time of the sale. His father is alive but not of sound mind, and never raised any objection to the sale. He did not involve his son at the time because the son was in college and he used part of the proceeds for the son's fees. The 2nd Defendant's case 35. DW2, Samuel Kanyoro, testified on oath that he is a director of Soil Merchants (K) Limited, the 2nd Defendant. He adopted his witness statement dated 16th May 2023 as his evidence-in-chief. He produced the ten documents in the 2nd Defendant's list and bundle of documents of the same date as the 2nd Defendant's exhibits. He testified that the company bought the suit property from the 1 st Defendant after following due process, subdivided it and sold the resultant parcels to the 3 rd to 11th Defendants, and that the process was lawful. He prayed that the Plaintiff's case be dismissed. THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 15

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36. The documents DW2 produced were: A copy of the title for Kiambu/Munyu/1585; A Certificate of Official Search dated 15 th December 2008; Copies of the 1st Defendant's national identity card and PIN certificate; an acknowledgement of receipt dated 1 st August 2013, for Kshs. 90,000 received by the 1st Defendant from George Gacheru Mungai; the sale agreement dated 2nd August 2013, at a purchase price of Kshs. 1,500,000; the Land Control Board application dated 20 th July 2013; the 1st Defendant's affidavit sworn on 20 th July 2013; The Land Control Board letter of consent dated 25 th July 2013; The 2nd Defendant's title, issued on 19th August 2013; and the mutation form dated 17 th June 2014. 37. Cross-examined by Mr. Maina, DW2 said the company conducted due diligence when it bought the land, and that the 1 st Defendant gave it all the documents needed to effect the transfer. 38. Ms. Achayo had no questions for the witness. Cross-examined by Ms. Nyawira, DW2 said the 1st Defendant supplied all the completion documents and signed a transfer form, which he had not produced. He said the company paid stamp duty, but had no evidence of payment. 39. Cross-examined by Mr. Njuguna, DW2 said he has not produced any document showing that he is a director of the company, and has no company resolution authorising him to testify. He said he is involved in the company's day-to-day operations, sometimes sources land and was THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 16

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involved in the due diligence on the Suit Property. He said he knows what "buyer beware" means. He did not personally visit the suit property and does not know whether it was developed. DW2 said that when the company wants to buy land that turns out to be occupied, it talks to the occupants to find out who they are. It relies on the vendor's word and also conducts an official search. He said he was not aware that the Plaintiff's family was living on the land, and that when they bought it there was no one on it. He accepted that spousal consent is a legal requirement, and said he had not realised that some information had been withheld from them. 40. DW2 further said the company's advocates in the sale were F.N. Mungai Advocates, who prepared all the documents relating to the sale. The 1st Defendant told them he was no longer married. He said he had not read the 1st Defendant's witness statement. When it was put to him, he acknowledged that the statement says the 1st Defendant had separated from his wife and was single, whereas the affidavit says he was not married. He said he does not understand divorce proceedings and that in his experience at Soil Merchants he had never dealt with a divorced vendor; this was a unique experience. 41. In re-examination by Mr. Mugane, DW2 said the 1 st Defendant never gave them a marriage certificate, and that without one there would be no need for a divorce. He said the 1st Defendant's affidavit, stating that he had not contracted any marriage under the laws of Kenya, was selfTHIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 17

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explanatory. He said F.N. Mungai Advocates acted for both the vendor and the purchaser. He maintained that they conducted due diligence, that no one objected to the sale and that they followed the right procedure. He said a transfer could not have been registered without all the necessary documents. He said he could not have known whether the 1st Defendant was married, and relied on his affidavit. The 3rd to 11th Defendants' case 42. On 22nd January 2026, DW3, Walter Githinji Kibe, testified on oath that he is the 8th Defendant. He said he was testifying on his own behalf and on behalf of the 3rd to 7th and 9th to 11th Defendants. He adopted his witness statement dated 23rd August 2023 as his evidence-in-chief. He produced the twenty documents in their list and bundle of documents as the 3rd to 11th Defendants' Exhibits 1 to 20. He said the 3rd to 11th Defendants bought their parcels at the same time from the same person, the 2nd Defendant. He prayed that the Plaintiff's suit be dismissed and judgment entered in terms of the Counterclaim. 43. DW3 said they bought their parcels from the 2 nd Defendant under various sale agreements and paid the full purchase prices, after "assiduous due diligence" confirming that the 2 nd Defendant was the registered owner. He stated that the Plaintiff, with persons’ unknown to them, later invaded the land and put up illegal structures. He said this was reported at Githima Police Patrol Base on 4 th October 2022 under OB THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 18

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No. 05/04/10/2022, and that they recorded statements at Ngoliba Police Station. 44. The documents produced as Exhibits 1 to 20 include: Sale agreements between the 2nd Defendant and the 3rd, 4th, 5th, 7th, 8th and 11th Defendants, dated between 2nd March 2015 and 11th July 2016, at Kshs. 299,000 to Kshs. 350,000 per parcel; transfer forms, Land Control Board consents, title deeds and register abstracts for the resultant parcels; photographs of the structures on the land; and the police Occurrence Book reference No. 05/04/10/2022. 45. Cross-examined by Mr. Maina, DW3 confirmed that they bought, they did due diligence and found Kiambu/Munyu/1585 registered in the name of Soil Merchants (K) Ltd. The land was then subdivided and he got his title deed.Cross-examined by Mr. Mugane, DW3 said he personally entered into a sale agreement with Soil Merchants in 2015, when the title was in its name. He never met the Plaintiff or the 1st Defendant. 46. Cross-examined by Ms. Ndundu for the 12th Defendant, DW3 said he had not annexed the other Defendants' authority for him to testify on their behalf, and had not produced any certificate of official search for the Suit Properties. He said that when he bought, he visited the land and it was vacant. The adjacent parcels were developed, and he learnt that their occupants were members of the Plaintiff's family, but they never asked him any questions. THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 19

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47. Cross-examined by Mr. Njuguna, he said the Defendants did not buy the suit properties at the same time and did not do due diligence together. He could not confirm when his co-defendants visited the land, though he knows they did a search. He said he visited the suit property twice before buying, and it was vacant. He has not produced any photographs to show this. 48. DW3 said there is a house on the suit property, built after he bought, which he has never occupied. He said the neighbours never asked him anything. He asked them who owned the suit property, and they said it belonged to the people who had accompanied him. He has not taken possession since 2015 because he is still putting his resources together. No one was charged after his complaint to the police. He is aware that spousal consent is needed to transfer land, but he said it is not required from a company. He said he was not aware that Soil Merchants bought the land from someone, or that there was a house on the suit property when he bought. He was also not aware that his title would be cancelled if the Court agreed with the Plaintiff. 49. The 12th Defendant's case. Ms. Ndundu, for the 12th Defendant did not call any witness. E. THE SUBMISSIONS The Plaintiff's submissions THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 20

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50. The Plaintiff's submissions dated 13th March 2026 framed four issues: the relationship between the Plaintiff and the 1 st Defendant; whether the suit property was matrimonial property; whether spousal consent was required; and whether the Plaintiff is entitled to the reliefs sought. 51. On the relationship, counsel relied on the birth certificates, the evidence of PW2 and PW3, and the 1st Defendant's own pleadings. Counsel pointed to paragraph 3 of his defence, which admits that he is married to the Plaintiff, and to paragraph 4 of his witness statement, which refers to "my wife the Plaintiff". Relying on Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR and Raila Amolo Odinga & Another v IEBC & 2 Others [2017] eKLR, counsel submitted that parties are bound by their pleadings. Counsel further submitted that the 1 st Defendant's change of position at trial amounted to approbating and reprobating, citing Republic v Institute of Certified Public Secretaries of Kenya, ex parte Mundia Njeru Geteria [2010] eKLR. 52. On matrimonial property, counsel relied on sections 2, 6(1) and 14(a) of the Matrimonial Property Act, 2013, and section 93 of the Land Registration Act, 2012. Counsel submitted that the Suit Property was the family home, occupied by the Plaintiff and her children, and that it was acquired during the marriage. 53. On consent, counsel submitted that under section 12 of the Matrimonial Property Act, a disposition of matrimonial property without THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 21

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the spouse's consent is void, citing Mwanzou v Patel & 3 Others [2026] eKLR. Counsel argued that the 1st Defendant's affidavit that he had never married was untrue, and that even a separated spouse's consent would still have been required. 54. On the reliefs, counsel submitted that the purchasers failed to carry out due diligence, relying on the affidavit and a registry search without visiting the land, which was visibly occupied. Counsel relied on section 26(1) of the Land Registration Act, on Funzi Island Development Ltd & 2 Others v County Council of Kwale & 2 Others [2014] eKLR, and on the principles of caveat emptor and nemo dat quod non habet. On the bona fide purchaser defence, counsel cited Suyianka & Another v Suyianka [2026] eKLR, Samuel Kamere v Lands Registrar, Kajiado [2015] eKLR and Sehmi & Another v Tarabana Company Ltd & 5 Others [2025] KESC 21 (KLR). Counsel urged the Court to allow the suit with costs. The 1st Defendant's submissions 55. The 1st Defendant's submissions raised eight issues, the first being limitation. Counsel submitted that the sale agreement was made on 2 nd August 2013 and that the Plaintiff knew of the sale that year. Counsel pointed to PW2's statement about the 2013 survey, and to the Plaintiff's own letter and search dated 20th September 2013. Counsel argued that a suit filed in November 2020 was therefore statute-barred under section 4(1)(a) of the Limitation of Actions Act. THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 22

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56. Counsel submitted that the Suit Property was a completed gift inter vivos from the 1st Defendant's father, to use as he saw fit, citing Micheni Aphaxard Nyaga & 2 Others v Robert Njue & 2 Others [2021] eKLR and In re Estate of Gedion Manthi Nzioka [2015] eKLR. Counsel denied the alleged trust, and argued that the Plaintiff's witness statements contradicted each other on whether the family still lived on the land. 57. Counsel submitted that the 1st Defendant never consented to or contracted any marriage. Counsel argued that the essentials of a Kikuyu customary marriage, in particular the ngurario and ruracio, were not proved. Counsel relied on Eva Naima Kaaka & Another v Tabitha Waithera Mararo [2018] eKLR, Eliud Maina Mwangi v Margaret Wanjiru Gichangi [2013] eKLR and Re Estate of Stephen Ngigi Karwigi [2026] KECA 670 (KLR). Counsel characterised the relationship as mere cohabitation, an adult interdependent relationship outside marriage, relying on MNK v POM; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2023] KESC 2 (KLR). Citing Odhiambo & Another v KCB Bank Kenya Ltd & Another [2025] KEHC 12726 (KLR), counsel submitted that birth certificates are not proof of marriage. 58. Counsel submitted that the 1st Defendant's affidavit of marital status was properly sworn under the Oaths and Statutory Declarations Act and was not controverted by any marriage certificate. Counsel concluded that the sale, made with Land Control Board consent, was lawful, and urged dismissal of the suit with costs. THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 23

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59. The 2nd Defendant's submissions dated 19th May 2026 framed three issues: whether the suit property was matrimonial property; whether the sale and transfer to the 2nd Defendant was procedural and lawful; and costs. 60. Counsel submitted that marriage and occupation alone do not confer proprietary rights over property registered in one spouse's name. Counsel argued that the Plaintiff bore the burden, under sections 107 to 109 of the Evidence Act, of proving contribution under sections 7 and 14 of the Matrimonial Property Act, and did not discharge it. Counsel relied on Resma Commercial Agencies v Ngattah & Another [2025] KECA 2214 (KLR), submitting that where no beneficial interest is proved, spousal consent is not required. 61. Counsel submitted that the 2nd Defendant bought after an official search showed the 1st Defendant as sole proprietor, with no restriction or caution. Counsel argued that it is protected by Article 40 of the Constitution and sections 24 to 26 of the Land Registration Act, as a bona fide purchaser for value without notice. Counsel relied on Arthi Highway Developers Ltd v West End Butchery Ltd & 6 Others [2015] KECA 816 (KLR), and on Katende v Haridar & Company Ltd as cited in Lawrence Mukiri v Attorney General & 4 Others [2013] eKLR. Counsel urged dismissal of the suit with costs. THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 24

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62. The 3rd to 11th Defendants' submissions dated 22nd May 2026 framed six issues. These were: whether fraud or illegality was proved against them; whether they are bona fide purchasers for value without notice; whether purchasers from a land-selling company are protected; whether the Plaintiff is entitled to the reliefs sought; whether the Counterclaim was proved; and costs. 63. Counsel submitted that fraud must be specifically pleaded and strictly proved, to a standard above a balance of probabilities, citing Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR and Ndolo v Ndolo [1996] KLR. Counsel argued that no evidence connected these Defendants to any fraud, or showed that they knew of the absence of spousal consent. Counsel submitted that they satisfied the test in Katende v Haridar & Company Ltd [2008] 2 EA 173, having bought in good faith, for value and without notice, relying on a register that showed no caution or restriction. Counsel relied on Lawrence Mukiri, Arthi Highway and Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another [2013] eKLR. 64. Counsel argued that cancellation of title is a drastic remedy, and that the Plaintiff did not challenge the transactions at the earliest opportunity, allowing third-party rights to crystallise; equity aids the vigilant. On the Counterclaim, counsel submitted that the Defendants proved they are the registered owners and that the Plaintiff interfered with their possession. Counsel sought dismissal of the suit, an order THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 25

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upholding their titles, judgment on the Counterclaim and a permanent injunction, with costs. 65. The 12th Defendant's submissions dated 25th February 2026 framed four issues: whether the suit property is matrimonial property; whether spousal consent was required; whether the 1 st Defendant could pass good title to the 2nd Defendant; and whether the Plaintiff is entitled to the prayers sought. 66. Counsel submitted that the Suit Property was acquired during the marriage, which began in 1992 or 1993, through the 2007 gift, and that the Plaintiff and her children reside on it. Counsel submitted that it is therefore matrimonial property and that the presumption of trust in section 14 of the Matrimonial Property Act applies. Counsel relied on EWM v MOM; ANM & Another [2022] KECA 796 (KLR) and Elizabeth Muthoni Kirongi v John Kariuki Maina & 3 Others [2020] KEELC 2985 (KLR). 67. Relying on section 12 of the Matrimonial Property Act and on section 93 of the Land Registration Act as it stood before its 2016 amendment, counsel submitted that spousal consent was required and that the sale without it was null and void. Counsel cited JKN v JWN & 3 Others [2022] KEELC 1428 (KLR), Ngeeni & Another v Ngarira & 2 Others [2025] KECA 1496 (KLR) and Kadzo Mkutano v Mukutano Mwamboje Kadosho & 2 Others [2016] eKLR. Citing Dina Management Ltd v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), counsel submitted that THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 26

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the 2nd Defendant acquired no good title and could pass none to the 3 rd to 11th Defendants. 68. Counsel conceded that the Plaintiff is entitled to the prayers sought. Counsel submitted, however, that the 12 th Defendant should not bear costs, because Land Control Board consent was in fact produced and the Registrar relied on the 1st Defendant's sworn affidavit, which it had no means of refuting. Analysis and Determination 69. I have carefully considered the pleadings, the testimonies in court, the exhibits produced and the parties' submissions. In my considered view, the issues arising for determination are: 1. Whether the suit is time-barred. 2. Whether the Plaintiff is the wife of the 1 st Defendant. 3. Whether the suit property is matrimonial property and if so, whether the necessary spousal consent was obtained in terms of sections 28 and 93 of the Land Registration Act. 4. Whether a good title passed to the 2 nd Defendant and to the 3rd to 11th Defendants. 5. Whether the Counterclaim is merited. 6. Whether the Plaintiff is entitled to the reliefs sought, and who should bear the costs. Whether the suit is time-barred 70. The 1st Defendant submitted that the suit is time-barred under section 4(1)(a) of the Limitation of Actions Act, because the Plaintiff knew of the sale in 2013 but filed suit in 2020. THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 27

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71. Limitation is a defence that must be specifically pleaded under Order 2 Rule 4(1) of the Civil Procedure Rules. The 1 st Defendant did not plead it in his defence dated 30 th May 2023. It was raised for the first time in submissions and submissions are not pleadings. In any event, the Plaintiff was not a party to the sale agreement and her claim is not founded on contract. It is a claim to recover land and to impeach the titles that flowed from its transfer. Under section 7 of the Limitation of Actions Act, the limitation period for such a claim is twelve years. Even taking 20th September 2013, the date of her letter to the Land Registrar, as the date on which time began to run, the suit filed in November 2020 is well within time. It is therefore my finding that the suit is not timebarred. Whether the Plaintiff is the wife of the 1st Defendant 72. The Plaintiff sued as the wife of the 1st Defendant. In paragraph 3 of his defence dated 30th May 2023, the 1st Defendant admitted that "he is married to the plaintiff", and in his witness statement he referred to "my wife the plaintiff". It is trite law that parties are bound by their pleadings, and under section 61 of the Evidence Act a fact admitted in the pleadings need not be proved. The 1 st Defendant cannot now be heard to say, in submissions, that he was never married to the Plaintiff. 73. Further, on cross-examination the 1st Defendant testified that he married the Plaintiff under customary law in 1993, that they had since THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 28

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parted ways, and that he never filed for divorce. He also confirmed that dowry was paid and that they have children together. PW3, his own sister, testified that the family went to the Plaintiff's home to pay dowry and that her brother is still married to the Plaintiff. The Plaintiff produced the birth certificates of five children born between 1992 and 2005, each naming the 1st Defendant as the father. The absence of a marriage certificate does not invalidate a customary marriage, and a separation, however long, does not dissolve a marriage. The Plaintiff's evidence that she is married to the 1 st Defendant was not shaken on crossexamination. It is therefore my finding that the Plaintiff is the wife of the 1st Defendant, and was his wife when the suit property was sold in August 2013. Whether the suit property is matrimonial property and, if so, whether the necessary spousal consent was obtained in terms of sections 28 and 93 of the Land Registration Act 74. Section 6 of the Matrimonial Property Act defines matrimonial property as follows: "For the purposes of this Act matrimonial property means: (a) the matrimonial home or homes; (b) household goods and effects in the matrimonial home or homes; or (c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage." THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 29

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75. Under section 2 of the Matrimonial Property Act, "matrimonial home" means any property that is owned or leased by one or both spouses and occupied by the spouses as their family home. Section 2 of the Land Registration Act, which was in force at the time of the sale, defines a matrimonial home in materially similar terms, as "any interest in land that is owned or leased by one or both spouses and occupied by the spouses as their family home". 76. The suit property was registered in the name of the 1 st Defendant in 2007, during the subsistence of his marriage to the Plaintiff. The Plaintiff testified that she has lived on it since she got married, and that she lives on it and cultivates it. PW2 testified that in 2013 he was living on the land when the surveyors came. 77. The 1st Defendant himself admitted on cross-examination that when he sold the Suit Property he was living on it. DW3 conceded that the parcels adjacent to his plot are occupied by members of the Plaintiff's family. This evidence was not controverted. 78. It is therefore not in dispute that the Plaintiff lived on the Suit Property with the 1st Defendant and their children as their family home, and it therefore constitutes matrimonial property. Section 28(a) of the Land Registration Act recognises spousal rights over matrimonial property as an overriding interest. THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 30

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79. The Matrimonial Property Act protects matrimonial property, and in particular section 12 provides as follows: "(1) An estate or interest in any matrimonial property shall not, during the subsistence of a monogamous marriage and without the consent of both spouses, be alienated in any form, whether by way of sale, gift, lease, mortgage or otherwise. (2) A spouse in a monogamous marriage, or in the case of a polygamous marriage, the man and any of the man's wives, have an interest in matrimonial property capable of protection by caveat, caution or otherwise under any law for the time being in force relating to the registration of title to land or of deeds. (3) A spouse shall not, during the subsistence of the marriage, be evicted from the matrimonial home by or at the instance of the other spouse except by order of a court. (4) Subject to subsection (3), a spouse shall not be evicted from the matrimonial home by any person except— (a) on the sale of any estate or interest in the matrimonial home in execution of a decree; (b) by a trustee in bankruptcy; or (c) by a mortgagee or chargee in exercise of a power of sale or other remedy given under any law. (5) The matrimonial home shall not be mortgaged or leased without the written and informed consent of both spouses." 80. The sale in this case took place in August 2013, shortly before the Matrimonial Property Act came into force on 16 th January 2014. At that THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 31

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time, however, the same protection was afforded to the Plaintiff by sections 28(a) and 93 of the Land Registration Act, as it then stood. Section 12 of the Matrimonial Property Act restates that protection. I now turn to consider those provisions. Whether the necessary spousal consent was obtained 81. Section 93(3) and (4) of the Land Registration Act, as it stood at the time of the sale, provided: "(3) Where a spouse who holds land or a dwelling house in his or her name individually undertakes a disposition of that land or dwelling house — … (b) the assignee or transferee shall, if that disposition is an assignment or a transfer of land, be under a duty to inquire of the assignor or transferor on whether the spouse or spouses have consented to that assignment. (4) If the spouse undertaking the disposition deliberately misleads the lender or, the assignee or transferee by the answers to the inquiries made in accordance with subsection (3)(a) or (3)(b), the disposition shall be void at the option of the spouse or spouses who have not consented to the disposition." In Kadzo Mkutano v Mukutano Mwamboje Kadosho & 2 others [2016] eKLR, the court held: "Section 28 of the Land Registration Act recognizes spousal rights over matrimonial property as an overriding interest. Spousal consent, is THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 32

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therefore required before a spouse can sell matrimonial property. In the absence of such a consent, the sale becomes null and void." 82. To the same effect, in JKN v JWN & 3 others [2022] KEELC 1428 (KLR), the court held that under section 93(3)(b) as it stood before its amendment in 2016, the transferee was under a duty to inquire whether the spouse had consented, and that spousal consent was a necessity before the transfer of a matrimonial home. The position is now codified in section 12(1) of the Matrimonial Property Act, 2013. 83. It is not in dispute that the Plaintiff never gave her consent to the sale. The 1st Defendant confirmed that he did not involve his wife and children when he sold the suit property. Instead, the 1 st Defendant swore an affidavit on 20th July 2013 stating that he had not contracted any marriage under the laws of Kenya, and that he therefore did not require spousal consent. I have already found that he was married to the Plaintiff. The affidavit was therefore untrue. On cross-examination, the 1st Defendant conceded that at the time of the sale he told the advocate that he did not require spousal consent because he did not have a wife. 84. In my view, this is precisely the situation contemplated by section 93(4): the spouse undertaking the disposition deliberately misled the transferee in answer to the inquiry on spousal consent. THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 33

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85. The 2nd Defendant cannot shelter behind that affidavit. DW2 testified that the affidavit, and all the other documents relating to the sale, were prepared by F.N. Mungai Advocates, who acted for both the vendor and the purchaser. DW2 further stated that the 1st Defendant told them that he was "no longer married". That statement in itself disclosed that there had been a marriage, and called for further inquiry as to whether, and how, that marriage had ended. 86. No such inquiry was made. DW2 admitted that he did not personally visit the suit property, that he did not know whether it was developed, and that the company relied on the word of the vendor. He conceded that spousal consent is a legal requirement. PW3 testified, and I believe her, that a purchaser who wished to know about the land and the vendor's marital status would have inquired from the family, the chief or the village elders. Had the 2nd Defendant visited the land, it would have found the vendor's family living on it. 87. I have considered the 2nd Defendant's reliance on Resma Commercial Agencies v Joel Karumba Ngattah & another, Nakuru Civil Appeal No. 16 of 2019 (judgment of 16th December 2025). In that case, the majority of the Court of Appeal held that marriage and occupation do not by themselves confer beneficial ownership of property registered in the name of one spouse, and that a spouse claiming such an interest must prove contribution. I respectfully accept that statement of principle. It THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 34

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does not, however, dispose of the issue before me, for the reasons that follow. 88. First, the sale in Resma took place in 2006, before the Land Registration Act came into force, and the Court of Appeal did not have occasion to consider section 93. The sale in the present case took place in 2013 and was governed by that section, which placed a duty of inquiry on the transferee and made a disposition voidable at the option of the non-consenting spouse where the transferor misled the transferee. Secondly, the Plaintiff does not seek a share of the Suit Property or a declaration of beneficial ownership. She challenges a disposition of her matrimonial home made in breach of a statutory safeguard, and her right to occupy that home is a spousal right protected as an overriding interest under section 28(a). Thirdly, the 2 nd Defendant made no inquiry at all. Having relied on an affidavit that I have found to be untrue, it cannot now be heard to say that the consent it never sought was not required. In the circumstances, Resma is distinguishable on its facts and on the applicable law. 89. The duty imposed by section 93(3)(b) is not discharged by obtaining a statement from the vendor that is contradicted by facts readily ascertainable on the ground. The 2nd Defendant, through its advocates, knew that the vendor had been married and was told that he was "no longer married", yet it made no inquiry. The Plaintiff, as the spouse who did not consent, has exercised her option under section 93(4) by bringing this suit to challenge the disposition. It is therefore my finding THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 35

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that spousal consent was required before the sale of the suit property, that no such consent was obtained, and that the sale and transfer of the suit property by the 1st Defendant to the 2nd Defendant was void. Whether a good title passed to the 2nd Defendant and to the 3 rd to 11th Defendants 90. Section 26(1) of the Land Registration Act provides that a certificate of title is prima facie evidence that the person named in it is the absolute and indefeasible owner. It further provides that the title may be challenged: "(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme." 91. In Munyu Maina v Hiram Gathiha Maina [2013] eKLR, the Court of Appeal held: "… when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register." THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 36

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91. The Plaintiff's spousal rights over the matrimonial home were an overriding interest under section 28(a), which did not need to be noted on the register. The 2nd Defendant acquired the suit property in disregard of those rights, and on the strength of an affidavit that its own advocates prepared and that was untrue. Its title was therefore acquired illegally and unprocedurally within the meaning of section 26(1)(b). 92. The 2nd Defendant pleaded that it was a bona fide purchaser for value without notice. In Katende v Haridar & Company Ltd, cited with approval in Lawrence Mukiri v Attorney General & 4 others [2013] eKLR, the court held that such a purchaser must prove, among other things, that he purchased in good faith and without notice of any fraud. The only official search the 2nd Defendant produced is dated 15th December 2008, almost five years before the purchase. It did not visit the land. It was told that the vendor was "no longer married", but made no inquiry. Its own advocates drew the affidavit on which it now relies. A purchaser who closes his eyes to what he would have discovered by the most basic inquiry cannot claim to be without notice. The 2 nd Defendant was not a bona fide purchaser for value without notice. 93. The 3rd to 11th Defendants derive their titles from the 2nd Defendant. In Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), the Supreme Court held: THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 37

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"Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible." 94. The 2nd Defendant could not pass to the 3rd to 11th Defendants a better title than it had: nemo dat quod non habet. The 3rd to 11th Defendants bought between 2015 and 2016, well after the Plaintiff had raised her objection with the Land Registrar in September 2013. DW3 produced no official search for any of the parcels. He conceded that he has never taken possession of his parcel since 2015. 95. He also conceded that the adjacent parcels were occupied by members of the Plaintiff's family, yet he never asked them any question. The sale agreements promised vacant possession, which the 2nd Defendant was never in a position to give. 96. I am alive to the position of the 3 rd to 11th Defendants, who paid for their parcels. However, their titles cannot rise higher than the title of the 2nd Defendant from whom they bought. It is therefore my finding that no good title passed to the 2nd Defendant and that the titles held by the 3rd to 11th Defendants to Kiambu/Munyu/3632 to 3641 are liable to cancellation. 97. Section 80(1) of the Land Registration Act empowers this Court to order the rectification of the register, by directing that any registration THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 38

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be cancelled or amended, where it is satisfied that the registration was obtained, made or omitted by fraud or mistake. The protection in section 80(2) for a proprietor who is in possession and acquired the land for valuable consideration does not avail the 3rd to 11th Defendants. On DW3's own evidence, they have never been in possession. 98. As regards the 12th Defendant, the Land Registrar registered the transfer on the strength of the documents presented, including the Land Control Board consent and the 1st Defendant's affidavit. No fraud on the part of the 12th Defendant was proved. However, as the custodian of the register, the 12th Defendant is properly a party so that the register may be rectified in accordance with this judgment. Whether the Counterclaim is merited 99. The Counterclaim is founded entirely on the 3rd to 11th Defendants' titles to the resultant parcels. Having found that no good title passed to them, the declaration and injunction they seek cannot issue. Further, the injunction sought would in effect evict the Plaintiff from her matrimonial home. Section 12(3) and (4) of the Matrimonial Property Act forbid the eviction of a spouse from the matrimonial home except by order of a court, or in the specific circumstances there listed, none of which applies here. As for general damages, DW3 conceded that they have never taken possession or developed the land, and no evidence of any loss was THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 39

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led. It is therefore my finding that the Counterclaim has not been proved to the required standard. 100. The 2nd Defendant paid the 1st Defendant the purchase price of Kshs. 1,500,000. No claim for a refund was pleaded, and I make no order on it. 101. Costs generally follow the event. The litigation was occasioned by the 1st Defendant's untrue affidavit and by the 2nd Defendant's failure to make the inquiry required of it by law. The Plaintiff shall therefore have her costs of the suit against the 1st and 2nd Defendants, jointly and severally. The 12th Defendant acted on the documents presented to it and conceded the Plaintiff's claim, so no order as to costs is made against it. 102. In conclusion, I dismiss the 3rd to 11th Defendants' Counterclaim and enter judgment for the Plaintiff in the following terms: a. A declaration is hereby issued that the sale and transfer of land parcel Kiambu/Munyu/1585 by the 1 st Defendant to the 2nd Defendant was illegal, null and void for want of the Plaintiff's spousal consent. b. A declaration is hereby issued that the subdivision of land parcel Kiambu/Munyu/1585 into parcels Kiambu/Munyu/3632 to 3641 and the subsequent transfers of those parcels to the 3rd to 11th Defendants, is illegal, null and void. THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 40

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c. An order is hereby issued directing the Land Registrar, Thika (the 12th Defendant) to cancel the titles to Kiambu/Munyu/3632, 3633, 3634, 3635, 3636, 3637, 3638, 3639, 3640 and 3641, to close those registers, and to restore the original title Kiambu/Munyu/1585 in the name of the 1st Defendant, Stephen Kang'ethe Kiarie. d. The 3rd to 11th Defendants' Counterclaim is dismissed, with costs. e. The Plaintiff shall have the costs of the suit, to be borne by the 1st and 2nd Defendants jointly and severally. Dated, signed and delivered virtually at Malindi this 30 th day of September 2026. …………………… J. M ONYANGO JUDGE In the presence of: Mr. Njuguna for the Plaintiff Ms Achayo for the 3rd- 11th Defendants Mr. Warui for the 1st Defendant Mr. Mugane for the 2nd Defendant Ms Mwangi for Mr. Motari for the 12th Defendant THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 41

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Court Assistant: Happy THIKA ELC APPEAL NO. 116 OF 2020 (JUDGMENT) Page 42

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