(Being an appeal against the whole of the judgment and decree of the Chief Magistrate’s Court at Voi (Hon. A. M. Obura (Mrs.), Chief Magistrate) delivered on 4th February 2026 in Voi CMELC No. E031 of 2022)
Introduction
1. This is a first appeal. It arises from the judgment and decree of the Chief Magistrate’s Court at Voi (Hon. A. M. Obura (Mrs.), Chief Magistrate) delivered on 4th February 2026 in Voi CMELC No. E031 of 2022, by which the trial court dismissed the appellant’s suit with costs and allowed the 1st respondent’s counterclaim.
2. In the suit before the trial court, the appellant was the plaintiff, the 1st respondent was the 1st defendant, and the 2nd respondent (the Land Registrar, Taita Taveta) was the 2nd defendant. For convenience and consistency, the parties are referred to in this judgment by their designations in this appeal, save where the context of the trial requires otherwise.
3. The dispute concerns Plot No. 50 Mlekenyi (also rendered “Mkelenyi”) Settlement Scheme, situated within Voi Township, Taita Taveta County, now comprised in Title No. Taita Taveta/Mlekenyi Scheme/50 measuring approximately 0.0225 hectares (“the suit property”).
The case before the trial court
4. By a plaint dated 30th November 2022 and filed on 13th December 2022, the appellant claimed to be the lawful allottee and owner of the suit property. His case, in summary, was that his father, Geoffrey Malunju Mwanyanya (who testified as PW1), purchased the suit property from the 1st respondent in 1987, before the area was adjudicated; that PW1 took possession and constructed a permanent house thereon in 1990; and that during adjudication within the Mlekenyi Settlement Scheme he gave the appellant’s name as the beneficiary of the suit property.
5. The appellant further pleaded that he was issued with a Letter of Allotment dated 1st January 2002 for Plot No. 50 in his name (PEXT1); that the prescribed charges of Kshs. 3,892/= were paid to the Commissioner of Lands by banker’s cheque dated 14th July 2009 (PEXT2) under a covering letter of the same date (PEXT3); and that his allocation had earlier been approved by, and his name appears as No. 43 in, the records of the Town Planning, Works and Housing Committee for Voi Municipality whose minutes are dated 7th June 2000 (PEXT8).
6. The appellant pleaded that the 1st respondent later complained that the consideration she had received was inadequate, and that to preserve harmony the parties executed an agreement dated 12th November 2016 (PEXT4) under which a further sum of Kshs. 150,000/= was to be paid in installments, together with a further written record dated 15th February 2017 (PEXT5). It was his case that, notwithstanding the payments and his developments on the land, the 1st respondent fraudulently and secretly procured the registration of the suit property in her own name and obtained a title deed dated 7th July 2017, and thereafter purported to sell the suit property to a third party who trespassed onto the land. He pleaded particulars of fraud against the 1st respondent and prayed for a permanent injunction, an order directing the 2nd respondent to revoke the 1st respondent’s title, costs and interest.
7. The 1st respondent entered appearance and filed a statement of defence and counterclaim dated 21st February 2024 through M/s Kertiony & Company Advocates. She denied any fraud and contended that she had inherited the land from her late father; that she had only sold the appellant’s father Plot No. 45 (which she clarified was Plot 45 and not 46) and never sold Plot No. 50; and that it was the appellant who had trespassed onto her land and put up a structure. She averred that she is the lawfully registered proprietor of the suit property. By her counterclaim she sought a permanent injunction restraining the appellant from trespassing upon the suit property, an order for removal of the structures and restoration of the land, general damages for trespass, and costs.
8. The 2nd respondent did not enter appearance or file any pleadings, although there is on record an affidavit of service confirming that the summons to enter appearance and pleadings were served upon the 2nd respondent on 10th January 2023.
9. The evidence. The hearing of the suit commenced on 3rd March 2025. The appellant called two witnesses. PW1 (Geoffrey Malunju Mwanyanya, the appellant’s father) adopted his statement dated 30th November 2022 and produced the documents in the plaintiff’s list of documents dated 30th November 2022 and the further list dated 9th August 2023 (PEXT1 to PEXT11). PW2 (the appellant, Ambrose Mzera Malunju) adopted his statement and reiterated the contents of the plaint.
10. Under cross-examination, PW1 stated that the 1st respondent had sold him the land in 1987; that there was no written agreement in 1987 and the land had not then been surveyed; that he holds Plot No. 45, which is in his name; and that an allotment letter is not, of itself, proof of title. In re-examination he maintained that he had purchased the land before adjudication, had placed beacons and remained in occupation, and that he had never received any communication revoking the Letter of Allotment dated 1st January 2002.
11. The 1st respondent testified as DW1. She adopted her statement dated 28th February 2024, asserted that she had inherited the suit property from her late father, produced a copy of the title deed (DEXT1), and maintained that she had only sold Plot No. 45 to the appellant’s father and had never sold Plot No. 50. She referred to a letter dated 24th June 2017 emanating from the Mlekenyi Settlement Scheme Committee, which was marked for identification as DMFI 2. The defence subsequently sought to introduce the evidence and witness statement of one Oliver Mwakirani Mwashigadi (described as the chairman of the scheme committee). The trial court declined to admit that statement, which had been filed late and without leave after the close of the plaintiff’s case and after the conclusion of the pre-trial conference, and struck it out of the record. The defence thereafter closed its case without calling any further witness.
The decision of the trial court
12. The trial court framed the issues as whether the appellant had proved ownership of the suit property as against the 1st respondent; whether the appellant was entitled to the reliefs sought; whether the counterclaim was merited; and costs.
13. Applying section 107 of the Evidence Act, the trial court held that the burden lay on the appellant. It found it undisputed that the 1st respondent (who is elderly) had inherited the suit property and other plots from her deceased father, and that the appellant had purchased one of the earlier plots from her. The court found that neither the agreement dated 12th November 2016 (PEXT4) nor that dated 15th February 2017 (PEXT5) was specific as to the description of the property sold or the sum of Kshs. 150,000/= referred to by the appellant, and that the mere production of an allotment letter (PEXT1) and a cheque for payment of premium (PEXT2) did not prove ownership.
14. The trial court further relied on the Statement of the Mlekenyi Settlement Scheme Committee dated 24th June 2017 (which it referred to as DEXT2) to find that ownership of Plot No. 50 remained with the 1st respondent as there had been no compensation for it, and that she was one of the genuine squatters to benefit from the scheme. It concluded that the appellant had failed to prove ownership of, or a better title to, the suit property; that no fraud or corrupt scheme had been established on the part of the 1st respondent; and that the appellant had therefore failed to prove his case on a balance of probabilities.
15. On the reliefs, the trial court applied the principles in East African Industries v Trufoods Ltd [1972] EA 420 and Giella v Cassman Brown & Co. Ltd [1973] EA 358 and held that the appellant had not established a basis for a permanent injunction. On revocation, it relied on sections 25 and 26 of the Land Registration Act and held that none of the statutory exceptions had been established to warrant defeating the 1st respondent’s title. It found the 1st respondent deserving of protection under Article 40 of the Constitution, allowed the counterclaim, and awarded the 1st respondent the costs of the suit.
The appeal
16. Aggrieved, the appellant lodged a Memorandum of Appeal dated 20th February 2026. The grounds of appeal, in summary, are that the trial court erred in law and fact in:
(a) failing to appreciate that the sale between PW1 and the 1st respondent was concluded long before adjudication, such that no specific land number could then be captured for the land sold;
(b) dismissing the Letter of Allotment to the appellant and the subsequent payment of the premium as being of no legal value, while upholding the title issued to the 1st respondent as valid without any evidence as to how it was issued;
(c) disregarding, without explanation, the minutes of the Special Town Planning, Works and Housing Committee dated 7th June 2000 (in which the appellant is listed as a beneficiary and the 1st respondent is absent), while elevating a mere statement of individuals (Oliver Mwakirani and Isaack Mghadi) dated 24th June 2017 to the status of authentic evidence validating the 1st respondent’s title;
(d) admitting and relying on the said statement of Oliver Mwakirani and Isaack Mghadi dated 24th June 2017 as sufficient evidence, when its makers did not testify and were not subjected to cross-examination as to its veracity;
(e) failing to find that the appellant and, by extension, his father (PW1) had been in uninterrupted possession, use and occupation of the suit property since 1990, while the 1st respondent only laid claim in 2017 after receiving the title which she then sought to dispose of;
(f) holding that the appellant had failed to prove his case when, on the contrary, there was profound verbal and documentary evidence before the court; and
(g) importing extraneous and non-existent evidence to the effect that the 1st respondent sold only Plot No. 46, without proof of the same.
17. The appellant prays that the appeal be allowed; that the judgment of the trial court delivered on 4th February 2026 be set aside; that the 1st respondent be restrained from interfering with the suit property; that an order issue to the 2nd respondent to revoke the title and reissue it to the appellant; and for costs of the appeal.
Submissions
18. The appeal was canvassed by way of written submissions. The appellant filed written submissions dated 11th May 2026 through M/s Mwinzi & Associates Advocates. In them, the appellant advances four broad limbs.
19. First, that the trial court wrongly disregarded the handwritten agreement dated 12th November 2016; there having been no dispute over the earlier plots (Nos. 45 and 46), the only plausible explanation for that agreement was that it related to Plot No. 50, which the appellant’s family had developed since 1990. Secondly, that an allotment letter is an official document evidencing allocation, and that the appellant fulfilled all the terms of the allotment by paying for the offer, presenting a letter of acceptance, and the part development plan such that the trial court erred in dismissing it; reliance was placed, among others, on African Line Transport Co. Ltd v The Attorney General, Mombasa HCCC No. 276 of 2013 and Nelson Kazungu Chai v Pwani University College (2014) eKLR.
20. Thirdly, that the trial court erred in disregarding the minutes of the planning committee while admitting and relying on a letter authored by individuals (the statement dated 24th June 2017) which was not produced as an exhibit and whose authors were not called to testify. Fourthly, that the appellant’s evidence proved his case and was not controverted; that a title deed is not absolute proof of ownership where the process of acquisition is impugned (section 26 of the Land Registration Act); and that the root of the 1st respondent’s title was not established by any evidence. On this limb the appellant relied on Dina Management Limited v County Government of Mombasa & others (2023) KESC 30 (KLR) and Arthi Highway Developers Limited & 6 others, contending that a title derived from an invalid process cannot confer good ownership.
21. The 1st respondent did not file any written submissions within the timelines directed by the court, and none had been filed by the time of the preparation of this judgment. The 2nd respondent neither participated in the proceedings before the trial court nor filed any response on appeal. Notwithstanding the absence of the respondents’ submissions, this court has, in the exercise of its appellate jurisdiction and consistent with its duty as a first appellate court, re-evaluated the entire record of the trial court the pleadings, the proceedings, the documentary exhibits and the impugned judgment – and has proceeded to render its judgment on the merits.
Analysis and determination
22. The duty of the first appellate court. This being a first appeal, the duty of this court is to reconsider and re-evaluate afresh the evidence tendered before the trial court, to subject it to fresh scrutiny, and to arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses and giving due allowance for that fact. This is settled by, among others, Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR.
23. Having considered the grounds of appeal and the record, the issues that fall for determination in this appeal may be condensed as follows:
(i) whether the trial court properly evaluated the evidence touching on entitlement to the suit property;
(ii) whether the trial court erred in its treatment of the Letter of Allotment, the planning committee minutes, and the Settlement Scheme Committee statement dated 24th June 2017;
(iii) whether the appellant established a basis to impeach the 1st respondent’s title; and
(iv) what reliefs and orders ought to issue.
i) Burden and standard of proof
24. It is not in dispute that the appellant, as the party who asserted ownership of the suit property, bore the burden of proving his claim under sections 107, 108 and 109 of the Evidence Act, to the civil standard of a balance of probabilities. The trial court correctly directed itself on this. The question on appeal is not whether the appellant bore the burden he plainly did but whether, on a proper and complete evaluation of the admissible evidence, the trial court arrived at the right conclusion.
(ii) The Settlement Scheme Committee statement of 24th June 2017
25. Grounds 3 and 4 of the appeal raise a discrete and, in my view, well-founded complaint concerning the document the trial court referred to as DEXT2 the Statement of the Mlekenyi Settlement Scheme Committee dated 24th June 2017, authored by Oliver Mwakirani (chairperson) and Isaack Mghadi (secretary).
26. Two matters are apparent from the record. First, that document was only marked for identification (as DMFI 2) and was not formally produced as an exhibit through a competent witness. A document that is merely marked for identification, and is not subsequently produced and exhibited, does not become part of the evidence upon which a court may act. Secondly, neither of the makers of the statement testified, and neither was tendered for cross-examination on its contents. Indeed, when the defence belatedly sought to call the chairman of the committee to speak to the scheme’s dealings, the trial court itself properly struck out his statement as having been filed late, without leave, and after the close of the plaintiff’s case, observing that the court frowns upon trial by ambush.
27. Having rightly excluded the committee chairman’s evidence, the trial court fell into error when it nonetheless relied upon the very statement of the same committee (DEXT2) to make the crucial finding that “the ownership of Plot 50 remained with the 1st defendant as there was no compensation for it” and that she was a genuine squatter entitled to benefit from the scheme. A finding of that centrality could not properly rest on a document which was unproved, untested by cross-examination, and whose makers were not before the court. This was a material misdirection that went to the heart of the decision. To that extent, grounds 3 and 4 succeed.
28. The Letter of Allotment. I accept, as a matter of law, that a letter of allotment is not, of itself, a document of title. It is in the nature of a conditional offer which must be accepted and the prescribed conditions fulfilled, and which ordinarily culminates in the issuance of a grant or title. To that limited extent the trial court was right that the production of an allotment letter does not, without more, prove ownership. However, it does not follow that an allotment letter is of no evidential value whatsoever. It is cogent evidence of the recognition, by the allocating authority, of an interest in the allottee. The trial court erred to the extent that it treated the appellant’s Letter of Allotment dated 1st January 2002 (PEXT1) and the payment of the prescribed charges (PEXT2 and PEXT3) as carrying no weight at all.
29. Significantly, the appellant’s Letter of Allotment for Plot No. 50, issued in his name in 2002, did not stand in isolation. It was preceded by, and is consistent with, the records of the Town Planning, Works and Housing Committee of June 2000 (PEXT8) and the related scheme lists, in which the appellant’s name appears as a recognized beneficiary (No. 43) and in which the 1st respondent’s name does not appear. It was followed by payment of the charges to the Commissioner of Lands in 2009. This documentary chain, recognizing the appellant’s interest in Plot No. 50 specifically, materially predates the 1st respondent’s registration in 2017, and was not displaced by any admissible evidence to the contrary.
(iii) Whether the 1st respondent’s title is impeachable
30. The 1st respondent’s title to the suit property (issued on 7th July 2017) is, prima facie, protected by sections 24, 25 and 26 of the Land Registration Act. Under section 26, a certificate of title is to be taken as conclusive evidence of proprietorship, save where it is shown that the title was procured through fraud or misrepresentation to which the proprietor is proved to be a party, or where it is shown to have been acquired illegally, unprocedurally or through a corrupt scheme.
31. That protection, however, is not absolute, and the inquiry does not end at the face of the certificate. Where, as here, the root of a title is squarely challenged, the registered proprietor must go beyond the instrument and demonstrate the legality and propriety of the process by which the title was acquired. That is the import of the Court of Appeal’s decision in Munyu Maina v Hiram Gathiha Maina [2013] eKLR, in which it was held that where a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title; the proprietor must go beyond it and prove the legality of how the title was acquired. It is also the import of the Supreme Court’s decision in Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), in which the Court held that a title is not an end in itself but the culmination of a legally sound process, and that the mere appearance of a name on the register does not, of itself, validate the integrity of a title where the court is called upon to investigate the root of ownership.
32. On the admissible evidence in this case, the 1st respondent did not discharge that burden. She did not hold or produce any letter of allotment of her own for Plot No. 50. She offered no account of the process by which she came to be registered as proprietor whether by allotment, grant, purchase or otherwise beyond the bare assertion that she had inherited the land from her father and that she had benefited as a squatter under the scheme. Once the inadmissible committee statement is left out of account, as it must be, the root of the 1st respondent’s title is left unexplained and unsupported by any evidence. A title whose root cannot be demonstrated, in the face of a contrary and earlier documented allocation, cannot be held to be indefeasible merely upon production of the certificate.
33. On fraud, I bear in mind that an allegation of fraud must be specifically pleaded and strictly proved, to a standard more exacting than the ordinary balance of probabilities (R. G. Patel v Lalji Makanji [1957] EA 314; Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR; and Moses Parantai & Another v Stephen Njoroge Macharia [2020] eKLR, relied on by the appellant). I am not persuaded that the appellant led direct proof of a deliberate fraudulent scheme to the requisite standard. But impeachment of the register does not depend upon proof of fraud alone. Section 80(1) of the Land Registration Act empowers the court to order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that the registration was obtained, made or omitted by fraud or by mistake. On the totality of the admissible evidence the appellant’s earlier and specific recognition in the scheme records and allotment, his long possession, and the unexplained root of the 1st respondent’s later registration over the same plot I am satisfied that the registration of the suit property in the name of the 1st respondent is liable to rectification.
34. Possession. Ground 5 of the appeal has substance. It was not seriously controverted that the appellant and his father had been in occupation of the suit property, with a permanent house and other structures thereon (depicted in PEXT11), from about 1990. The 1st respondent did not assert any claim to evict the appellant until her counterclaim, long after the title issued in 2017. While long possession does not, of itself, confer ownership, it is a material circumstance that reinforces the appellant’s account and weighs against the 1st respondent’s belated assertion of an exclusive proprietary interest.
35. Weighing the whole of the admissible evidence afresh, I am satisfied that the trial court reached a conclusion that the evidence did not support. The trial court under-valued the appellant’s documentary chain relating specifically to Plot No. 50; it placed decisive reliance on a document (DEXT2) that was not properly in evidence and whose makers it had itself declined to hear; and it failed to subject the 1st respondent’s title to the scrutiny required where the root of a title is challenged. Properly evaluated, the evidence established, on a balance of probabilities, that the appellant and not the 1st respondent was the person entitled to the suit property, and that the 1st respondent’s registration is impeachable. Grounds 1, 2, 3, 4, 5 and 6 of the appeal accordingly succeed. As regards ground 7, the precise distinction between Plots Nos. 45 and 46 in the trial court’s reasoning is not, in the result, material to this outcome.
Disposition and orders
36. For the foregoing reasons, the appeal is merited and succeeds. I make the following orders:
i. The appeal is allowed.
ii. The judgment and decree of the Chief Magistrate’s Court at Voi in Voi CMELC No. E031 of 2022, delivered on 4th February 2026 including the orders allowing the counterclaim are set aside in their entirety.
iii. It is declared that the appellant, Ambrose Mzera Malunju, is the person lawfully entitled to Plot No. 50 Mlekenyi Settlement Scheme (Title No. Taita Taveta/Mlekenyi Scheme/50) by virtue of the Letter of Allotment dated 1st January 2002.
iv. The registration of the 1st respondent, Violet Mghoi Mwakala, as proprietor of Title No. Taita Taveta/Mlekenyi Scheme/50 is hereby ordered to be rectified by cancellation.
v. The 2nd respondent (the Land Registrar, Taita Taveta) is directed to cancel the registration of the 1st respondent as proprietor of Title No. Taita Taveta/Mlekenyi Scheme/50 and to register the appellant as proprietor thereof in accordance with the Letter of Allotment dated 1st January 2002, subject to the appellant satisfying any outstanding statutory and regulatory requirements.
vi. A permanent injunction is hereby issued restraining the 1st respondent, by herself, her agents, servants and/or assigns, from trespassing upon, encroaching on, alienating, or in any way interfering with the appellant’s quiet possession of the suit property, Title No. Taita Taveta/Mlekenyi Scheme/50.
vii. The 1st respondent’s counterclaim is dismissed.
viii. The 1st respondent shall bear the costs of this appeal and the costs of the proceedings before the trial court.
It is so ordered.
DATED, SIGNED and DELIVERED at VOI this 18TH day of JUNE 2026.
E.K. WABWOTO
JUDGE
In the presence of:
Counsel for the Appellant: N/A
Counsel for the 1st Respondent: N/A
For the 2nd Respondent: N/A
Court Assistants: Mary Ngoira and David Ngoosa.
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