Samuel Chege Gitau & Jacinta Wanjiku Ngugi v Joseph Gicheru Muthiora [2021] KEELC 2935 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC SUIT NO.1245OF 2014

SAMUEL CHEGE GITAU..........................................................................1STPLAINTIFF

JACINTA WANJIKU NGUGI..................................................................2ND PLAINTIFF

VERSUS

JOSEPH GICHERU MUTHIORA...............................................................DEFENDANT

JUDGMENT

The Plaintiffs’ case:

The Plaintiffs brought this suit by way of an Originating Summons dated 23rd September, 2014 in which they sought the determination of the following issues;

1. Whether the honourable court should make an order of specific performance compelling the Defendant to conduct a proper sub-division of all that parcel of land known as Title No. Dagoretti/ Riruta/3102 (hereinafter referred to only as “the mother parcel”) and transfer a portion thereof to the Plaintiffs subject to the Agreement of Sale dated 1st April 2008.

2. Costs of the application.

On 7th December, 2015, the court directed that the Originating Summons be deemed a plaint and that the Defendant’s replying affidavit be deemed as a defence. In the supporting affidavit sworn by the 1st Plaintiff that accompanied the Originating Summons, the Plaintiffs stated their case as follows:

On 1st April, 2008, the Plaintiffs and the Defendant entered into an agreement for the sale of a portion of land measuring 33. 3 meters by 29. 5 metres (hereinafter referred to as “the suit property”) under which the Plaintiffs agreed to buy and the Defendant agreed to sell the suit property to the Plaintiffs at a consideration of Kshs. 2,100,000/- subject to the terms and conditions of the said agreement. The suit property was to be excised from the Defendant’s parcel of land known as Title No. Dagoretti/Riruta/3102 along Kahuho Road, Dagoretti, Nairobi (“the mother parcel”). On the execution of the agreement, the Plaintiffs paid to the Defendant Kshs. 600,000/- leaving a balance of Kshs. 1,500,000/- of which a sum of Kshs. 1,370,000/- was paid to the Defendant on various dates. As of the date of filing the Originating Summons, the Plaintiffs had paid a total of Kshs. 1,970,000/- leaving a balance of Kshs. 130,000/-.

The Defendant undertook subdivision of the mother parcel into two portions. The portion of the mother parcel that was sold to the Plaintiffs was given Plot No. 6188 while the Defendant remained with the portion that was given Plot No. 6187. The parties thereafter applied for and obtained Land Control Board consent to transfer the suit property to the Plaintiffs on 11th January, 2012. The Plaintiffs took possession of the suit property in 2009 and had put up structures thereon for their residence and for rental.

Despite receipt of the said sum of Kshs. 1, 970,000/- from the Plaintiffs, the Defendant had declined to transfer the suit property to them. On 29th July, 2014, the Nairobi City County which was constructing Kahuho Road encroached on the suit property and destroyed part of the structures that the Plaintiffs had put up thereon. The Plaintiffs sought the intervention of the Defendant concerning the encroachment to no avail. The Plaintiffs felt that the Defendant knowingly sold to them a property part of which was reserved for a public road. The Plaintiffs overheard the Defendant discussing with a third party the possibility of leasing the suit property and they became apprehensive that the Defendant was intent on dispossessing them of the suit property which they had substantially paid for. The Plaintiffs were always ready and willing to pay the balance of the purchase price to the Defendant as soon the Defendant transferred the suit property to them.

The Plaintiffs urged the court to compel the Defendant to undertake a fresh subdivision of the mother parcel taking into account the portion thereof that had been taken over by the public road and to transfer to the Plaintiffs the portion thereof that was sold to them in terms of the agreement of sale aforesaid.

At the trial, the 1st Plaintiff, Samuel Chege Gitau (PW1) gave evidence on his own behalf and on behalf of the 2nd Plaintiff. The 1st Plaintiff adopted his witness statement filed in court on 7th November, 2017 as his evidence in-chief and produced the documents that were annexed to his affidavit in support of the Originating Summons as exhibits. In his witness statement, the 1st Plaintiff reproduced the contents of the supporting affidavit that accompanied the Originating Summons that I have highlighted above while setting out the Plaintiffs’ case.

On cross-examination, the 1st Plaintiff stated that: The Plaintiffs bought the suit property at Kshs. 2,100,000/-. The Plaintiffs took possession of the suit property in 2009 after subdivision of the mother parcel. There was no dispute at that point. After the preparation of the mutation, they found out that the size of the suit property on the ground differed with the size in the mutation form. The suit property was smaller on the ground than what they had purchased from the Defendant which was captured in the mutation form. They also found out that the Defendant had encroached on a portion of the suit property.

On the balance that was due to the Defendant; whether it was Kshs. 130,000/- or Kshs. 200,000/-, the 1st Plaintiff admitted that according to the letter of demand that was addressed to the Defendant by their advocates   on 5th September 2014, they had paid Kshs. 1,900,000/- to the Defendant.  The 1st Plaintiff stated further that they did not make any further payment to the Defendant after the date of that letter. The 1st Plaintiff further admitted that the Defendant’s signature in one of the acknowledgement receipts dated 11th February, 2011 was not clear and that he did not know if the Defendant had signed a petty cash voucher dated 8th June, 2011that had been issued by the 2nd Plaintiff for the payment that was made to him by the 2nd Plaintiff. The 1st Plaintiff admitted also that they applied for and obtained Land Control Board Consent after the statutory period of 6 months stipulated in the Land Control Act, Chapter 302 Laws of Kenya.

On re-examination, the 1st Plaintiff stated that he had no problem with the mutation form and that the transfer should be done in accordance with the same. The 1st Plaintiff stated that the Plaintiffs were not claiming more land than what is indicated in the said mutation form. The 1st Plaintiff admitted that the Plaintiffs did not pay the balance of the purchase price in the sum of Kshs. 1,000,000/- within 90 days as stipulated in the agreement of sale. The 1st Plaintiff contended however that the amount was to be paid upon completion and that the Defendant did not complete the agreement within 90 days. The 1st Plaintiff reiterated that the Plaintiffs owed the Defendant Kshs. 130,000/- only which they were ready to pay if the suit property was transferred to them.

In their submissions, the Plaintiffs argued that they had proved their case on a balance of probabilities as no evidence had been brought by the Defendant to controvert their case. They argued that the 1st Plaintiff’s evidence was unshaken apart from the issue of one missing receipt whose original copy the 1st Plaintiff later found and shared with the Defendant’s advocate and the Court. They further argued that the Defendant gave very sketchy evidence and that his assertion that he wished for a quick resolution of the matter amounted to an admission. The Plaintiff’s took issue with the Defendant’s reliance on his affidavit as his evidence. They referred to Order 37 Rule 19 (1) of the Civil Procedure Rules and the cases of Mukesh Manchand Shah & Another v Priyat Shah & Another [2015] eKLR and CMC Aviation Limited v Kenya Airways Limited [1978] eKLR, and submitted that the Defendant’s affidavit was to be regarded as a pleading and that pleadings are not evidence. They submitted that a pleading affords no proof and no decision can possibly be founded on it. The Plaintiffs submitted further that the issues raised by the Defendant such as whether the contract between the parties had been frustrated and whether the contract was void for want of a valid Land Control Board Consent had been decided on by Onguto J. in a ruling that was delivered on 5th December 2014. The Plaintiffs submitted that no appeal was preferred by the Defendant against that decision.

In their further submissions filed on 30th April, 2020, the Plaintiffs cited  Kiplagat Kotut v Rose Jebor Kipngok [2019] eKLR and submitted that although Onguto J. had adopted the consent that was issued to the parties late, the doctrine of constructive trust that was applied by the Court of Appeal in the cited case had obviated the strict requirement of Land Control Board Consent especially in a case like the one before the court; where the Plaintiffs were in possession, the Defendant had taken positive steps to vest the property in the Plaintiffs and over 90% of the purchase price had been paid. The Plaintiffs urged the court to enter judgment in their favour as prayed in the Originating Summons.

The Defendant’s case:

Pursuant to the directions that were given by the court on 7th December, 2015, the Defendant filed a replying affidavit dated 15th August, 2016 on 19th August 2016 which was deemed as his defence to the Plaintiffs’ claim. The Defendant’s case as set out in the said affidavit is as follows:

The Defendant admitted the agreement of sale dated 1st April, 2008 between the Plaintiffs and the Defendant and the terms thereof. The Defendant averred that the Plaintiffs paid Kshs. 1,900,000/- out of the purchase price of Kshs. 2,100,000/- leaving a balance of Kshs. 200,000/-. The Defendant admitted that he subdivided the mother parcel which subdivision gave rise to Plot No. 6188 and Plot No. 6187 and that Plot No. 6188 was the one that he had sold to the Plaintiffs. The Defendant averred that the surveyor who conducted the subdivision forwarded the mutation forms to the District Land Registrar for registration and that in the meantime, he allowed the Plaintiffs to take possession of the suit property. The Defendant admitted that upon taking possession of the suit property, the Plaintiffs put up iron sheet structures thereon. The Defendant averred that the Plaintiffs’ developments on the suit property covered the entire land.

The Defendant admitted that they applied for and obtained consent of the Land Control Board. The Defendant contended however that the said Land Control Board Consent to transfer the suit property to the Plaintiffs was null and void as it was obtained 45 months after the date of the agreement between him and the Plaintiffs. The Defendant averred that the said agreement of sale dated 1st April, 2008 was similarly null and void. The Defendant averred that there was no agreement in respect of which the court could order specific performance. The Defendant averred further that specific performance was a discretionary remedy and since the Plaintiffs had not completed the payment of the purchase price, they had approached the court with unclean hands and as such were not entitled to the remedy.

By way of a counter-claim, the Defendant prayed for judgement against the Plaintiffs for;

a) A declaration that the agreement dated 1st April 2008 became null and void by operation of the law for reason of failure to obtain Land Control Board consent within six months of the making of the agreement.

b) A declaration that the agreement dated 1st April, 2008 being null and void, there is no agreement which the Court can order the parties to perform.

c) A declaration that the agreement dated 1st April, 2008 cannot be performed.

d) An order directing the Plaintiffs to vacate the suit property within one month.

e) An order that upon vacating, the Plaintiffs be permanently restrained from entering or trespassing on the suit property or otherwise interfering with the Defendant’s quiet possession and occupation of the same.

f) The dismissal of the Plaintiffs’ suit with costs.

At the trial, the Defendant adopted his witness statement filed in court on 8th November, 2017 as his evidence in-chief. In the said statement, the Defendant reiterated the contents of his replying affidavit the contents of which I have highlighted above. The Defendant also produced his replying affidavit dated 15th August, 2016 and the annexures thereto as exhibits. The Defendant told the court that he was ready to transfer the suit property to the Plaintiffs if they paid the balance of the purchase price. On cross-examination, the Defendant admitted that they applied for the Land Control Board Consent together with the Plaintiffs and obtained the same.

There was no re-examination of the Defendant and the Defendant did not file submissions. Regina Nyaguthie Gicheru and Jackline Wanjiru Gicheru, the Defendant’s wife and daughter respectively sought leave by way Chamber Summons dated 20th June 2019 to be joined in the suit as interested parties. When the matter came up for hearing on 26th June, 2019, they decided to withdraw the application and to support the Defendant’s case as witnesses. They were however never called by the Defendant as witnesses.

Issues for determination:

From the pleadings, the issues arising for determination in this suit and counter-claim are as follows;

1. Whether the Plaintiffs are entitled to an order for specific performance.

2. What is the amount owed to the Defendant by the Plaintiffs on account of the purchase price for the suit property?

3. Whether the Defendant is entitled to the reliefs sought in his counter-claim.

4. Who is liable for the costs of the suit?

5. Whether the Plaintiffs are entitled to an order for specific performance.

The law on specific performance has been expounded on in various cases.

In Gurdev Singh Birdi and Marinder Singh Ghatora v Abubakar Madhubuti CA No.165 of 1996 the court stated that:

“…It cannot be gainsaid that the underlying principle in granting the equitable relief of specific performance has always been that under all the obtaining circumstances in the particular case, it is just and equitable so to do with a view to doing more perfect and complete justice. Indeed...a plaintiff must show that he has performed all the terms of the contract which he has undertaken to perform, whether expressly or by implication, and which he ought to have performed at the date of the writ in the action.”

In Amina Abdulkadir Hawa vRabinder Nath Anand & Another [2012] eKLR, the court cited Chitty on Contracts, 28th Edition (Sweet & Maxwell, 1999), Chapter 28 paragraphs 027 and 028where the authors stated as follows:

“Specific performance is a discretionary remedy.  It may be refused although the contract is binding at law and cannot be impeached on some specific equitable ground (such as undue influence) although damages are not an adequate remedy and although the contract does not fall within group of contracts discussed above which will not be specifically enforced.  But the discretion to refuse specific performance is not arbitrary discretion but one to be governed as far as possible by fixed rules and principles…….specific performance may be refused on the ground that the order will cause severe hardship to the Defendant where the cost of performance to the Defendant is wholly out of proportion to the benefit which performance will confer on the claimant and where the Defendant can put himself into a position to perform by taking legal proceedings against the third party…..severe hardship may be a ground for refusing specific performance even though it results from circumstance which arise after the conclusion of the contract which effect the person of the Defendant rather than the subject matter of the contract and for which the claimant is in no way responsible.”

In the Supreme Court of Uganda’s case of Manzoor v Baram [2003] 2 E.A 580 that was cited in the case of Thrift Homes Limited v Kays Investment Limited [2015] eKLR, the court stated as follows on specific performance:

“Specific performance is an equitable remedy grounded in the equitable maxim that “equity regards as done, that which ought to be done”.  As an equitable remedy, it is decreed at the discretion of the court.  The basic rule is that specific performance will not be decreed where a common law remedy such as damages, would be adequate to put the plaintiff in the position he would have been but for the breach.  In that regard, the courts have long considered damages an inadequate remedy for breach of a contract for the sale of land, and they more readily decree specific performance to enforce such contract as a matter of course.  In the instant case, I find no circumstances that would make it inequitable to order the respondent to complete the contract.  On the contrary, it seems to me that to deny the appellant that relief would be to give unfair advantage to a respondent, who sought to avoid his contractual obligations through false claims, as found by the trial court, and through inapplicable technicalities.  After taking into consideration the equities of this case, I am satisfied that the discretion ought to be exercised in favour of the appellant.  I would hold that the appellant is entitled to specific performance.”

It is common ground that the Plaintiffs and the Defendant entered into an agreement of sale dated 1st April, 2008 under which the Defendant agreed to sell and the Plaintiffs agreed to purchase the suit property at a consideration of Kshs. 2,100,000/-. It is not disputed that the Plaintiffs have paid to the Defendant Kshs. 1,900,000/- in part performance of their obligations under the said agreement. Under Clause 3(d) of the agreement, the Plaintiffs were to pay the balance of the purchase price in the sum of Kshs. 1,000,000/- within 90 days of the execution of the agreement which was also the completion date. It is not disputed that the Defendant has not completed the agreement and that the Plaintiffs have paid to the Defendant substantial part of the balance of the purchase price even before completion. In my view, the Defendant has not given any reasonable excuse for not performing his part of the bargain. In his last statement in his evidence in chief, the Defendant stated that “I am ready to transfer the land to the Plaintiffs. I understand the Plaintiffs’ claim. The Plaintiffs should pay me the balance of the purchase price so that I can transfer the land to them.”   This shows that there is no impediment to an order for specific performance. The Defendant had contended that the agreement between him and the Plaintiffs was void and unenforceable for want of a valid consent of the Land Control Board. I am of the view that in the circumstances of this case, the Defendant cannot use lack of a valid Land Control Consent to avoid his obligations under the agreement of sale dated 1st April, 2008. Under the special conditions of the said agreement, the obligation to obtain consent of the Land Control Board was upon the Defendant. The Defendant gave the Plaintiffs possession of the suit property before an application for Land Control Board consent (LCB consent) was made. The Plaintiffs developed the property on the understanding that the Defendant would obtain the consent and transfer the suit property to them. The parties applied for the Consent on 10th January, 2012; over 3 years after the agreement of sale and while the Plaintiffs were in possession. The consent was granted by the Land Control Board to the Defendant on 11th January, 2012. This is the consent that the Defendant has now termed as null and void the same having been applied for outside the 6 months’ statutory period set out under the Land Control Act, Chapter 302 Laws of Kenya.

I am fully in agreement that in the circumstances of this case, a constructive trust was created by the Defendant in favour of the Plaintiffs that must be satisfied by the Defendant by transferring the suit property to the Plaintiffs. The Plaintiff paid a substantial amount of the purchase price to the Defendant. The balance of the purchase price was to be paid upon completion. The Defendant did not complete the agreement. The Defendant gave the Plaintiffs possession pending completion. The Plaintiffs have developed the suit property with the full knowledge of the Defendant. The Plaintiff have established the existence of a trust in their favour in respect of the suit property. In Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri[2014] eKLR, that the court had referred to in the interlocutory application for injunction, the Court of Appealgranted an order of specific performance in favour of the appellants where the Land Control Board (LCB) consent had not been obtained. In overturning the decision of the High Court which had heldthat failure to obtain the LCB consent rendered the transactions between the appellants and the respondent void and unenforceable against the respondent, the court stated that the respondents who had paid the purchase price and were in possession of the suit properties had acquired an implied or constructive trust which was not a disposal or dealing with land for purposes of section 6(1) of the Land Control Act.

In a subsequent decision of the Court of Appeal in Willy Kimutai Kitilit vMichael Kibet (2018) eKLR, the court held that the doctrines of constructive trust and proprietary estoppel are applicable to and supersede the Land Control Act. The Court stated as follows:

“A contract for the sale of land to which the Land Control Act applies is not void from inception nor is it an illegal contract. It becomes void when no application for consent of the Land Control Board is made or if made, it is refused and the appeal from the refusal, if any, has been dismissed (see Section 9 (2))…The Land Control Act does not, unlike Section 3 (3) of the Law of Contract Act and Section 38 (2) of the Land Act save the operation of the doctrines of constructive trust or proprietary estoppel nor expressly provide that they are not applicable to controlled land transactions…Since the doctrines of constructive trust and proprietary estoppel apply to oral contracts which are void and enforceable, in our view, and by analogy, they equally apply to contracts which are void and unenforceable for lack of consent of the Land Control Board especially where the parties in breach of the Land Control Act have unreasonably delayed in performing the contract.  However, whether the court will apply the doctrines of constructive trust and proprietary estoppel to a contract rendered void by lack of the consent of Land Control Board will largely depend on the circumstances of each particular case…There is another stronger reason for applying the doctrines of constructive trust and proprietary estoppel to the Land Control Act. By Article 10(2) (b) of the Constitution of Kenya, equity is one of the national values (emphasis supplied) which binds the courts in interpreting any law (Article 10(1) (b)). Further, by Article 159(2) (e), the courts in exercising judicial authority are required to protect and promote the purpose and principles of the Constitution. Moreover, as stated before, by virtue of clause 7 of the Transitional and Consequential Provisions in the Sixth Schedule to the Constitution, the Land Control Act should be construed with the alterations, adaptations, and exceptions necessary to bring it into conformity with the Constitution. The word equity broadly means a branch of law denoting fundamental principles of justice. It has various meanings according to the context but three definitions from Black’s Law Dictionary, Ninth Edition will suffice for our purpose: “1. ---2. The body of principles constituting what is fair and right. 3. The recourse to principles of justice to correct or supplement the law as applied to particular circumstances --- 4. The system of law or body of principles originating in the English Court of Chancery and superseding the common and statute law (together called “Law” in the narrower sense) when the two conflict” Thus, since the current Constitution has by virtue of Article 10(2) (b) elevated equity as a principle of justice to a constitutional principle and requires the courts in exercising judicial authority to protect and promote that principle, amongst others, it follows that the equitable doctrines of constructive trust and proprietary estoppel are applicable to and supersede the Land Control Act where a transaction relating to an interest in land is void and enforceable for lack of consent of the Land Control Board. For the reasons in paragraphs 20, 21, 22, 23, 24 and 25 above, we are in agreement with the Macharia Mwangi Maina decision that the equitable doctrines of constructive trust and proprietary estoppel are applicable and enforceable to land subject to the Land Control Act, though this is subject to the circumstances of the particular case. Upon the application of the equitable doctrines, the court in its discretion may award damages and where damages are an inadequate remedy grant the equitable remedy of specific performance.”

Due to the foregoing, it is my finding that although the LCB Consent that was issued in respect of the sale transaction between the Plaintiffs and the Defendant was void the same having been applied for after the expiry of 6 months set out in the Land Control Act, that does not invalidate the agreement dated 1st April, 2008. The lack of LCB consent is therefore not a valid defence to the Plaintiffs prayer for specific performance. The Defendant had also raised the issue of the agreement having been frustrated by the encroachment on a portion of the suit property by the Nairobi City County Government. I am of the view that this defence was not raised in good faith.

From the evidence on record, the parties entered into the agreement of sale on 1st April, 2008. The Defendant carried out subdivision of the mother parcel in 2011, the parties applied for and obtained consent to transfer the suit property to the Plaintiffs on 11th January, 2012. It was not until 29th July, 2014 several years after the agreement and 2 years after the issuance of the LCB consent that the Nairobi City County encroached on the suit property and destroyed part of the structures the Plaintiffs had put up thereon. I am of the view that as at the time of this encroachment, the Plaintiffs were the beneficial owners of the suit property. There is no evidence placed before the court showing that any portion of the mother parcel was on a road reserve. This encroachment did not stop the Defendant from transferring the suit property to the Plaintiffs. It was up to the Plaintiffs to take up the issue of encroachment with the Nairobi City County.

For the foregoing reasons, it is my finding that the Plaintiffs are entitled to an order of specific performance in the manner that shall be fashioned by the court.

What is the amount owed by the Defendants to the Plaintiffs on account of the purchase price?

The Plaintiffs contented that they owed the Defendant a sum of Kshs. 130,000/- on account of the purchase price of the suit property. The Defendant on his part had claimed that the Plaintiffs owed him Kshs. 200,000/-. I am unable to confirm from the documents produced by the Plaintiffs as exhibits that they paid to the Defendant a total sum of Kshs. 1,970,000/-. One acknowledgment receipt dated 11th February, 2011 that was produced as PEXH 3f appears not to have been signed by the Defendant. Although the Plaintiffs claimed to have “forwarded” a signed copy of the document to court after the hearing, I have not had sight of the same.

In support of his contention that the balance of the purchase price was Kshs. 200,000/-, the Defendant put reliance on a demand letter before action dated 5th September, 2014 that was served upon him by the Plaintiffs’ advocates. The letter was produced as PEXH.12. In the letter, the Plaintiffs’ advocates on record stated that the Plaintiffs had already paid to the Defendant a sum of Kshs. 1,900,000/-. At the trial, the 1st Plaintiff told the court in cross-examination that no further payment was made to the Defendant after the said demand letter. In the absence of clear evidence that the Plaintiffs paid Kshs. 1,970,000/- to the Defendant, I am inclined to go with the contents of the said demand letter. It is therefore my finding that the Plaintiffs paid to the Defendant a sum of Kshs. 1,900,000/- on account of the purchase price and that they owe the Defendant a sum of Kshs. 200,000/- payable upon the completion of the agreement of sale in accordance with clause 3(d) of the said agreement.

Whether the Defendant is entitled to the reliefs sought in his counter-claim.

From my findings above, there is no basis for the reliefs sought by the Defendant. The agreement of sale dated 1st April, 2008 is not void neither is it impossible to perform; not when the Defendant told the court that he could perform it if paid the balance of the purchase price. The declarations, possession and the injunction sought by the Defendant are therefore not for granting.

Who is liable for the costs of the suit?

Costs is at the discretion of the court. As a general rule, costs follow the event. In this case the Plaintiffs have succeeded in their claim against the Defendant. No reason has been put forward that would justify denying them the costs of the suit. They shall have the costs of the suit.

Conclusion:

In conclusion, I hereby enter judgment for the Plaintiffs against the Defendant as follows;

1. The Plaintiffs shall pay to the Defendant a sum of Kshs. 200,000/- being the balance of the purchase price within sixty (60) days from the date hereof.

2. Upon receipt of the said sum of Kshs. 200,000/-, the Defendant shall process the registration of the Mutation presented for registration on 6th September, 2011 and upon such registration, shall transfer to the Plaintiffs Title No. Dagoretti/Riruta/6188 being a portion of Title No. Dagoretti/Riruta/3102 within ninety (90) days of receipt of the said payment.

3. The Plaintiffs shall be at liberty to pursue compensation from whoever encroached on the portion of Title No. Dagoretti/Riruta/6188 in case such encroachment was illegal.

4. In the event that the Mutation referred to in order 2 above cannot be registered for any reason not attributable to the Defendant’s failure to pursue such registration, the Defendant shall carry out fresh sub-division of Title No. Dagoretti/Riruta/3102 and shall transfer to the Plaintiffs a portion thereof with frontage along Kahuho Road with a width of 33. 3 Meters and a length of 29. 5 meters.

5. In the event that the Defendant carries out a fresh sub-division and transfer pursuant to order 4 above, the Defendant shall be at liberty to pursue compensation from whoever encroached on the portion of Title No. Dagoretti/Riruta/3102 in the event that the said encroachment was unlawful.

6. The Plaintiffs shall have the costs of the suit.

7. The parties shall be at liberty to apply limited only to the execution of the orders issued herein.

Dated and Delivered at Nairobi this 10th day of June 2021

S. OKONG’O

JUDGE

Judgment delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of;

Mr. Githinji for the Plaintiffs

Mr. Mwangombe for the Defendant

Ms. C. Nyokabi-Court Assistant