The court also questioned the legality of the 1980 agreement under the Law of Contract Act.
A 12-year legal battle over ownership of a disputed plot has ended with the Environment and Land Court dismissing both the main suit and a counterclaim finding that neither side proved its case.
In a judgment, Justice Anne Koross ruled that the complainant, businessman Timothy Musau Mutua and the family of the late Kamala Isingi, failed to establish legal ownership or trespass over a plot in Makutano Market, Machakos County.
The dispute traces its roots to an alleged 1980 land sale agreement involving the late Isingi Kikumbi, the father of the deceased defendant, and Mr Mutua.
Mr Mutua had moved to court claiming he bought the plot from Kikumbi in 1980 for Sh6,000 and had been paying land rent and other fees to local authorities while awaiting transfer of title documents.
He accused the late Kamala Isingi of trespassing onto the property in 2013 and beginning construction works. After Kamala Isingi died in 2022, the case continued against his legal representatives, Mbatha Isingi and Daudi Isingi.
Mr Mutua sought declarations that he was the rightful owner of the property, vacant possession, a permanent injunction, damages, profits and costs.
However, the defendants disputed the entire transaction, insisting the disputed plot formed part of land parcel belonging to Kikumbi and denying any sale to Mr Mutua.
They accused the businessman of fraudulently hiving off part of land and illegally registering it as a plot. Through a counterclaim, they sought cancellation of the alleged registration and reversion of the land to the original parcel.
During the hearing, Mr Mutua told the court he entered into a sale agreement dated April 20, 1980, under which Kikumbi allegedly sold him the plot.
He produced receipts showing payment of Sh5,000, leaving a balance of Sh1,000 said to have been reserved for transfer fees. He also produced letters from county authorities indicating the plot was recorded in his name.
But under cross-examination, the plaintiff’s evidence appeared inconsistent.
Sale agreement
At one point, he told the court he had always been in possession of the plot. Later, he admitted he had never occupied it and only attempted to place building materials there before being stopped by the deceased defendant.
The court also heard that neither Mr Mutua nor Kikumbi signed a sale agreement.
Instead, the agreement was allegedly executed by intermediaries — a Daniel Nzioki Mutua on behalf of the plaintiff and one Joseph Mutua Nzuni on behalf of Kikumbi.
Justice Koross found that there was no evidence showing Joseph Mutua Nzuni had authority to sign documents on Kikumbi’s behalf.
“The court was informed that this was because he could not read and write, and that he allegedly authorised one Joseph Mutua Nzuni to execute it on his behalf,” the judge stated.
“Nevertheless, there is no evidence of such an authorisation.”
The judge further noted that all payments were allegedly made to Mr Nzuni and not directly to Kikumbi.
“There is no evidence that Kikumbi was ever paid the purchase price,” Justice Koross ruled.
“It was expected that the plaintiff would have summoned this alleged gentleman to testify and substantiate his case, but he did not do so.”
The judge observed that the title deed for the land remained intact and there was no evidence showing it had ever been subdivided.
The court also questioned the legality of the 1980 agreement under the Law of Contract Act.
Justice Koross held that the agreement contravened Section 3(3) of the law because Kikumbi never signed it.
“Consequently, this court finds that this agreement contravened Section 3(3) of the Law of Contract Act, as Kikumbi never signed it,” the judge said.
The court further found the agreement unenforceable and cast doubt on how Machakos County records eventually reflected Mr Mutua as owner of the unregistered plot.
“It also finds that it is uncertain how the County Government of Machakos recorded the plaintiff as the unregistered owner of the suit property,” the judgment reads.
The judge additionally criticised the plaintiff’s contradictory evidence on possession.
“Respecting possession, the plaintiff’s testimony was contradictory,” Justice Koross stated.
“In consequence, this court finds that his testimony was untruthful, unreliable, and unsubstantiated.”
On the other hand, the defendants also failed in their counterclaim.
Although they argued the plot in dispute had been illegally carved out of their patriarch’s land, the court found they had not proved the subdivision claim.
The judge observed that the title deed for the land remained intact and there was no evidence showing it had ever been subdivided.
The court also found the counterclaim legally defective because it had been filed by administrators of Kamala Isingi’s estate rather than representatives of Kikumbi’s estate, yet the land belonged to Kikumbi.
“Suffice it to say, the land is the free property of Kikumbi and is likely subject to probate proceedings,” Justice Koross said.
The judge ruled that only legal representatives of Kikumbi’s estate could properly sue over the parcel.
Justice Koross explained that trespass claims are based on possession rather than strict ownership and can be brought within three years of the alleged trespass.
The plaintiff had alleged the trespass occurred in 2013 and filed suit in 2014. Ultimately, the court concluded that neither side had met the legal threshold required to succeed.
“In light of the above reasons and findings, this court finds that neither the plaintiff nor the deceased defendant proved their respective cases to the required standard,” the judge ruled.
“Both the plaintiff’s claim and the deceased defendant’s counterclaim are dismissed,” he ruled.
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