Plaintiff’s Case
Antony Ngetich Seurey, (hereinafter referred to as the plaintiff) has brought this case based on a plaint dated 14th April 2014 and amended on the 17th January 2022 against John Wachira Chiri, Kalenjin Enterprises Ltd, James Kibaru Mungai and Reuben Njenga Mungai (hereinafter referred to defendants). In a nutshell, the plaintiff claimed that at all material times the Plaintiff was and is the legal owner of parcels of land known as Nakuru Municipality Block 29/242 (Ronda), 29/243(Ronda) And 29/244 (Ronda) (hereinafter referred to as the suit properties)
He states that on the 21st day of May 2013, the plaintiff entered into an agreement with the 1st defendant for the sale of the suit properties. That the 1st defendant paid a deposit of Kshs410,000/= [four hundred and ten thousand shillings] leaving a balance of 1,090,000/= [One million and ninety thousand shillings. That the 1st defendant undertook to pay the balance upon being granted vacant possession. That before the plaintiff could hand over vacant possession of the property, the 3rd and 4th defendants claimed ownership of the property having inherited the same from their deceased father one Peter Mungai Muthomi. That the said Peter Mungai Muthomi had previously claimed the properties sometimes in 1997 on the premise that he had bought the same from one Kiptuwe Arap Biwot.
The plaintiff reported the matter to the Nakuru DCI for investigation upon which the said Peter Mungai Muthomi was summoned. That upon being confronted with the illegality of the purported purchase from one Kiptuwe Arap Biwot, Peter Mungai Muthomi surrendered the title documents and signed an agreement at the CID dated 31st July 1997. That the said Peter Mungai Muthomi further wrote a statement with the police on the 5th of June 1999 wherein he affirmed that the property actually belonged to the plaintiff. That the 3rd and 4th defendants fraudulently went ahead to include the said properties already surrendered by their deceased father in the estate and now claim ownership.
The 3rd and 4th defendants are claiming ownership against properties their deceased father had surrendered for having them fraudulently obtained. The 3rd and 4th Defendants have colluded with the 2nd Defendant and fraudulently obtained title documents and have entered into the suit properties without consent of the Plaintiff.
Reason of the aforesaid invasion the Plaintiff claims that he has been deprived of the use and enjoyment of the said land and has suffered loss and damage. The plaintiff seeks the following orders against the defendants namely;
1. An order of temporary/ permanent injunction do issue against the defendants whether by themselves servants and/or agents or otherwise whomsoever from trespassing, erecting, transferring and/or interfering with the Plaintiff's quiet possession and enjoyment of parcel of land known as NAKURU MUNICIPALITY BLOCK 29/242 (RONDA), 29/243 (RONDA) and 29/244 (RONDA).
2. A declaration that the Plaintiff is the owner of parcel of land known as NAKURU MUNICIPALITY BLOCK 29/242 (RONDA), 29/243 (RONDA) and 29/244 (RONDA) and order cancelling title issued to the Defendants in respect of NAKURU MUNICIPALITY BLOCK 29/242 (RONDA), 29/243 (RONDA) and 29/244 (RONDA), z b) (a) In the alternative an order for specific performance do issue against the 1st Defendant for payment of the balance of the purchase price with interest.
3. An order for eviction against the 1st, 2nd, 3rd and 4th Defendants and demolition of structures erected thereon.
4. Costs and interest of the suit and damages,
5. Any other relief this honourable court deems fit to grants .
1st Defendant’s Defence and counter claim
The 1st Defendant herein filed a Defence and counter claim dated 5th of August 2014 stating that the suit filed herein is bad in law, inept, ambiguous and does not sufficiently disclose proper particulars of claim or cause of action against the 1st Defendant and he prays that the suit against the 1st Defendant be dismissed with costs.
He avers that he is the 1st registered owner of the suit properties having purchased the same from the Plaintiff sometimes in the year 2013. The 1st Defendant states that he has obtained the Title documents legally after a Sale Agreement with the Plaintiff and with the assistance of the Plaintiff and that there does not exist any element of fraud whatsoever singularly or jointly with the co-Defendants.
COUNTER-CLAIM
The 1st Defendant by way of Counter-Claim states that sometimes in the year 2013, he entered into a Sale Agreement with the Plaintiff wherein he bought the suit properties. That the Plaintiff assisted the 1st Defendant to acquire Titles in his name through the offices of the 3rd Defendant - Kalenjin Enterprises. That it was a term of the contract that the Plaintiff would give the 1st Defendant vacant possession of the properties. The Plaintiff attempted to give the 1st Defendant vacant possession in the presence of the Area Chief and the Administration Police but the same was resisted by the Tenants and the family of one Peter Mungai Muthama. They reported the same to the C.I.D and the Plaintiff (now Defendant) was advised to file a Civil Claim for eviction.
The 1st Defendant has on several occasions requested the Plaintiff to deliver up to the 1st Defendant into vacant possession by filing a Civil Suit so that the 1st Defendant would pay the Plaintiff the balance of the purchase price but he has failed. The 1st Defendant's claim against the Plaintiff is for specific performance of the contract or sale agreement dated 21st May 2013 by delivering vacant possession of the plots.
The 1st Defendant prays that the Plaintiff's suit be dismissed with costs to the 1st Defendant and judgment be entered for the 1st Defendant's in terms of the Counter-Claim for:
1. A declaration that the suit parcels of land belong to the 1st Defendant -
2. An Order for specific performance against the Plaintiff for the delivery of the vacant possession of the suit properties within NINETY (90) DAYS of the court's order before the payment of the balance of the purchase price.
3. Costs of the suit and costs of the Counter-Claim.
4. Any other relief that this Honourable Court may deem fit to grant.
It is important to note that The 2nd Defendant entered appearance but never filed any Defence and did not participate in the hearing. However no prayer was made against her.
The 3rd and 4th Defendants defence.
The 3rd and 4th defendants filed their defence dated 13th February 2023 and denied any fraud. They denied the allegations that the Plaintiff was at any material times or at any other time the legal owner of suit properties. On the contrary the 3rd and 4th Defendants averred that they are the duly registered owners of the suit properties. They further aver that the alleged Agreement between the plaintiff and the 1st defendant, if any, was unlawful and illegal. The 3rd and 4th Defendants further aver that their father Peter Mungai Muthami (deceased) duly bought Title Number Nakuru/Municipality Block 29/243 and Nakuru/Municipality Block 29/244 from Koros Kiprotich and Kipitok Arap Sitienei respectively and the same were duly transferred and registered in his name on 12th June, 2003.
The 3rd and 4th Defendants refer to paragraph 6 of the Plaint and deny that the Number Nakuru/Municipality Block 29/243 and Nakuru/Municipal 244 was obtained fraudulently.
The 3rd and 4th defendants aver that they were by transmission registered as owners of Title Number Nakuru/Municipality Block 29/243 and Nakuru/Municipality Block 29/244 on 5th September, 2012 and 12th July, 2012, respectively.
According to the 3rd and 4th defendants, their father Peter Mungai Muthami (Deceased) was registered as the owner of Title Number Nakuru/Municipality Block 29/243 (Ronda) and Title Number Nakuru/Municipality Block 29/244 (Ronda) on 12th June, 2003. The 3rd and 4th Defendants aver that the Plaintiffs suit is statute time barred.
The 3rd and 4th defendants filed a claim against the 1st defendant whose import is that the 1st defendant illegally and fraudulently caused title the suit properties to be registered in his name and prays that the 3rd defendant to be declared as the rightful owner of Title Number Nakuru/Municipality Block 29/243 and the 4th defendant to be declared owner of Title Number Nakuru/Municipality Block 29/244 and the land register to be rectified to remove the name of the 1st defendant.
Plaintiff’s Submissions
The plaintiff submits that he is the legal owner of suit properties which are registered and surveyed properties being; Nakuru Municipality Block 29/242, 243 and 244 (Ronda). The said properties are currently registered in the names of the 1st Defendant while also the 3rd and 4th Defendants claim proprietorship rights and have their titles too.
That in such a situation the court is under an obligation to look into the root of the two sets of title deeds vis a vis the proprietorship interest claims of the Plaintiff herein. The plaintiff relies on the case of case of Kamau v Ndabi (Environment and Land Appeal E001 of 2023) [2025] IGELC 4209 (KLR) (29 May 2025) judgment) wherein the court quoted the case of Hubert L. Martin & 2 Others v Margaret J. Kama-r & 5 Others [2016] eKLR, where the Court held as follows;-
"A Court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all z processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root, No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property, The other party also has a similar document and there is therefore no advantage in hinging one is case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.
The court also quoted the case of Munyu Maina ..Vs..Hiram Gathiha Maina Civil Appeal No, 239 Of 2009 where the Court of Appeal held that:-
"We have stated that 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 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."
The plaintiff submits that in the present case there are three parties claiming proprietorship interests in the properties and as such the court is under an obligation to look into the origin of the proprietorship interests. That it is not in dispute that the properties herein were originally owned by the 2nd Defendant, and who subsequently sub-divided the mother title and transferred the various portions to its members. That it is also not in dispute that the 2nd Defendant did maintain a register for its members and also issued its members with share certificates and from which properties would be processed. The Plaintiff herein produced a share certificate in his name dated the 2nd of April 1980 under serial number 2636 and duly executed by all the officials of the 2nd Defendant.
The plaintiff submits that the 3rd and 4th Defendant's fourth witness the land registrar produced a list of members and which showed that the properties Nakuru Municipality Block 29/243 and Nakuru/Municipality Block 29/244 (Ronda) were previously in the name of Peter Mungai Muthami and later cancellation done and the name of John Wachira Chiri inserted. That on the issue of the name of John Wachira Chiri being on the register, it was an admission of the 1st Defendant that he used the property documents of the Plaintiff to have the properties cleared in his name and to have his name inserted on the register.
That on the issue of Peter Mungai Muthami having been previously registered thereon the plaintiff submits that a dispute arose between the Plaintiff and the said Peter Mungai Muthami and which culminated in the settlement of the same vide an agreement dated 31st July 1997 and which agreement was produced by the Plaintiff.
That the said Peter Mungai Muthami also wrote a statement before the then Nakuru Provincial Criminal Investigation Department. That the said Peter Mungai Muthami admitted to having been conned into purchasing shares in the name of Kogo Kipngetich from one Kiptuwe Arap Biwot through an agreement dated 14th July 1981 and in which Kiptuwe Arap Biwot claimed to sell the shares on behalf of the Plaintiff and claiming that the Plaintiff was his son.
That during the execution of the statement and the agreement the said Peter Mungai Muthami surrendered all the documents in his custody including the agreement dated 14th July 1981. That in his statement the said Peter Mungai Muthami admitted having received a receipt number 211262 from Kiptuwe Arap Biwot and which receipt was in the Plaintiff's name.
That it is evident from the above that the title deeds held by the 3rd and 4th Defendants originate from their father Peter Mungai Muthami, and whom it is evident from the evidence presented that he acquired ownership through documents belonging to the Plaintiff and which documents he surrendered but used copies to have the clearances issued to him.
The plaintiff submits that there is no other evidence tendered to prove that the said Peter Mungai Muthami acquired title from another person or member of the 2nd Defendant, since there is no share certificate to prove acquisition and there is no agreement to demonstrate a purchase save for the agreement with Kiptuwe Arap Biwot which he conceded to have been a fraud in the settlement with the Plaintiff.
The plaintiff contends that the court ought to also note that the said Peter Muthami Mungai was not a member of the 2nd Defendant, the beneficiaries allege that he acquired membership through a purchase of shares and whose share certificate has not been produced, neither has the receipt for payment as well has any share certificate of the purported seller been produced. In light of the above, the title held by Peter Mungai Ntuthami lacks its root and this honourable court ought to find so.
That it is clear from the above that a court ought to first establish the origin and or root of a title and should the same be questionable then the court ought to cancel the same and subsequent entries shall not be protected by Article 40 of the Constitution of Kenya 2010. This position was upheld by the Supreme court in the case of Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (EOIO) of 2021) [20231 KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment) wherein the court stated thus:-
"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. The first allocation having been irregularly obtained, HE Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co (1993) Ltd, who in turn could pass to the appellant.
Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire file regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under article 40 of the Constitution. The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser,"
That it was clear from the testimony of the 3rd and 4th Defendants that they do not have any evidence as to the acquisition of the property by their deceased father and all that is available are documents produced 'by the Plaintiff showing that indeed Peter Mungai Muthami used documents belonging to the Plaintiff to acquire the title deed and as such the same ought not to stand, together with subsequent transmission to the 3rd and 4th Defendants.
It is also not in dispute that the 1st Defendant admitted using the documents of the Plaintiff to acquire his title deeds and as such confirming that the properties actually belong to the Plaintiff. The plaintiff ultimately submits that this honourable court should find that the Plaintiff has proven his case on a balance of probability and that his title meets the root cause test established in the above quoted cases. The plaintiff submits that he is entitled to costs.
1ST DEFENDANT’S SUBMISSIONS
The 1st defendant submits that from the pleadings and the evidence its common ground that the plaintiff was the original allotee of the share with Kalenjin Enterprise. The plaintiff sold the property to the 1st defendant vide a sale agreement dated 21st May 2013 and made part payment but did not take possession of the property. The 1st defendant proceeded to obtain the title documents to Nakuru Municipality block 29/242,243 and 244(Rhonda) before completing the payments to the plaintiff as per the agreement. The plaintiff filed this suit against the 1st defendant and claimed for the cancellation of the title documents or in the alternative the payment of the balance of the purchase price.
The 1st defendant admitted owing the plaintiff the balance of the purchase price which he is ready and willing to pay on condition that he gets possession of the property. The 3rd and 4th defendants claim is basically against the 1st defendant by virtue of inheritance from their deceased father having obtained letters of administration for the estate.
On the issue as to whether the first defendant has a good title to the properties known as Nakuru Municipality block 29/243 and 244(Rhonda), the 1st defendant submits he was a bonafide purchaser for value from the plaintiff and made part payment. The plaintiff delivered all the ownership documents to the 1st defendant who proceeded to obtain title documents. The 1st defendant did not obtain possession of the property and therefore he did not pay the balance of the purchase price to the plaintiff.
The plaintiff has by evidence and documents been able to establish the root of its title documents vide the originals allotment letter and that the 3rd and 4th defendants further had attempted to obtain the same through fraud which was resolved when the plaintiff reported to the criminal investigation department and finally the father of the 3rd and 4th defendants surrendered the documents.
The 1st defendant reiterates the plaintiff’s submissions that whenever a court is faced with a situation where there are two or more titles on the same property held by two separate claimants, the court has settled that it must go into the root of the titled deed and inquire into the whole process how the same was acquired.
The 1st defendant cites the case of KAMAU VRS- NDABI ELCAEOOI OF 2003 KLR2025 & HERBERT L MARITIM & 2 OTHERS VRS- MARGARE T J. KAMAU & ANOTHER (2016 e KLR) the court has held that the "the title that is to be upheld is that which confirmed to the procedure and can properly trace its roots without a break in the chain".
He contends that whenever the titles are in such scrutiny, the parties must demonstrate how they got their titles starting with its roots. The plaintiff has discharged the burden by demonstrating the root of its claim to the property and therefore submits that the plaintiff is the rightful owner of the property. He further submits that the 3rd & 4th defendants have not given any evidence to demonstrate the root of the title deeds they have and therefore the claim must fail.
On the issue as to whether the 3rd and 4th defendant has established their claim of ownership, the 1st defendant submits that they have failed. The only basis of the claim is by succession, and they were unable to demonstrate how their late father obtained the title documents. They were unable to explain the dispute by the plaintiff and their late father who was reported at the criminal investigation department which had been withdrawn after the deceased surrendered the documents. They were unable to demonstrate how their father obtained the title deeds.
On the issue as to whether the plaintiff is entitled to the prayers sought, the 1st defendant submits that based on the evidence, pleadings and the law applicable, the honorable court do find and declare that the plaintiff is the original allotee of the disputed property established their claim of ownership. The 1st defendant is a bonafide purchaser for value from the plaintiff having made an initial payment but has not paid the balance of the purchase price. The plaintiff does deliver vacant possession of the property to the 1st defendant upon payment of the balance of the purchase price. The 3rd and 4th defendant do vacate from the property and deliver vacant possession to the plaintiff.
On the last issue as to who pays for the costs of the suit, the 1st defendant submits that the costs of the suit follow the event and the 3rd and 4th defendants having lost the case must pay the costs of the case.
Submissions of the 3 Rd and 4th Defendants
The 3rd and 4th defendants submit that the Plaintiff's suit against the 3rd and 4th defendants is statute barred. Section 7 of the Limitations of Actions Act Provides that the limitations period for a claim for recovery of land is 12 years from the date the right of action accrued. The Plaintiff pleaded fraud at paragraph 6 of the amended Plaint. Section of the 26 Limitation of Actions Act provides that where fraud is pleaded the period of limitation does not begin to run until the Plaintiff has discovered the fraud or could with reasonable diligence have discovered it.
The 3rd and 4th defendants have adduced evidence that the suit lands were first registered in the names of the father Peter Mungai Muthami (Deceased) on 12th June, 2003 and title deeds issued to 3rd and 4th defendants. The titles were later transmitted to the 3rd and 4th defendants on 5th September, 2012 and 12th July, 2012, respectively. In the amended plaint and in his evidence, the plaintiff did not plead or state when he discovered the alleged fraud. In the circumstances, the extension provided for in Section 26 of the Limitation of Actions Act is not available to him.
On whether the plaintiff has proved his case against the defendants, they submit that he does not state how and when he became the legal owner. In his oral evidence in court and in his written statement dated 11th April, 2023 the plaintiff testified that he claims the suit lands through his grandmother, Chebande Alima (deceased). He stated that the land was allocated to her by the 2nd defendant.
The 3rd and 4th defendants urge the court to make finding of fact and law that the plaintiff has not proved his case against the defendants for the reasons that there is no proof that Chebande Alima (deceased) was a member of the 2nd defendant.
The Plaintiff did not produce copies of the share certificate, receipts or members register to prove membership. There is no proof that Chebande Alima was ever allocated the suit lands by the 2nd defendant.
The Plaintiff produced correspondence (P Ex5) and receipts (PEx10) that all relate to Kogo Kipngetich and Plot No. 25. They have nothing to do with Chebande Alima (deceased) or the suit lands. In his evidence under cross- examination the plaintiff testified that "There is no nexus between plots 25 and Block 29/242, 243,244".
The Plaintiff produced a certificate of confirmation of Grant in respect of the estate of Chebande Alima (deceased) (PEx2). The suit lands are not included as properties of the estate of the deceased. He has no right over them.
In the sale agreement dated 21st May, 2013 between the plaintiff and the 1st defendant (l st Defendant Ex3) the plaintiff is described as "the intended administrator of the estate of the Late Chebande Alima".
The 3rd and 4th defendants submit that under Section 82 (a) and section 45 of the Law of Succession Act, an intended administrator has no legal capacity to sell assets of the estate of a deceased person. It is a criminal offence to do so. The plaintiff had no land to sell to the 1st defendant. The sale agreement dated 21st May, 2013 is null and void. The plaintiff and the 1st defendant testified that it was only after signing the agreement that they agreed to spend Kshs. 200,000 to seek documents for the suit lands.
The plaintiff has not proved fraud against the 3rd and 4th defendants at all or to the required standard as set out in Elizabeth Kameme Ndolo -v- George Matata Ndolo [1996] eKLR . The plaintiff case against the defendants should be dismissed with costs.
In this case the 1st defendants has titles to the suit lands issued on 22nd May, 2013 whereas the 3rd defendant has a title to Nakuru Municipality Block 29/243 issued on 5th September, 2012 and the 4th defendant has a title to Nakuru Municipality Block 29/244 issued on 12th July, 2012. The court has to determine the titles to be upheld.
The issuance of the titles is an end product and if the process followed to obtain the title did not comply with the law, then such title is not indefeasible. This was the holding of the supreme court in Dina Management Ltd- v- County Government of Mombasa & 5 others [2023] KESC 30 KLR at paragraph 110.
When the proprietor's root of title is under challenge, he must go beyond the instrument and prove the legality of how he obtained it. In Munyu Maina-v- Hiram Gathiha Maina [2013] eKLR the Court of Appeal held that:-
"We state that when a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register
Lastly, in Hubert L. Martin & 2 Others- v- Margaret Kamar and 5 others [2016] eKLR Munyao J held that when the court is faced with two or more titles, it has to make an investigation from the root of the title and follow procedure and process that brought forth the two titles. The title to be upheld is the one which conformed to the procedure and can trace its root without a break in the chain.
Taking into account the position of the law as articulated above, they submit on the process and procedure followed in obtaining titles held by the 1 defendant and the 3rd and 4th defendants and demonstrate that the titles held by the latter should be upheld.
In their submissions, the 3rd defendant has traced the title he holds thus Number Nakuru Municipality Block 29/243, in the witness statement of Elijah Kipkenei Chelaite (deceased) chairman and director of the 2nd defendant produced in evidence as 3rd and 4th Defendants Ex.41. Title Number Nakuru Municipality Block 29/243 was originally Plot No. 2085 and was balloted for by Koros Kiprotich as the shareholder. When the register of members for Block 29 was prepared the name of Peter Mungai Muthami was entered as the owner of parcel No. N/ M Block 29/243.
The 2nd defendant surrendered the land to the Government of Kenya and a copy of members register for Block 29 was submitted to the land registrar for issuance of title deeds. The 2nd defendant issued a member's clearance certificate No. 525 dated 22/05/2003 certifying that he had cleared with the 2nd defendant and should be issued with title deed for Nakuru Municipality Block 29/243. Upon receipt of the members clearance certificate a transfer of land was prepared, signed and registered in favour of Peter Mungai Muthami. A title deed was issued to him after he paid the assessed fees as evidenced by the official receipt.
Then Peter Mungai Muthami died on 5th June 2009 and the widow conducted a search on the said land and a certificate of official search was issued that showed that as of 31st December, 2009 the deceased was the registered owner of Title Number Nakuru Municipality Block 29/243.
Then Joyce Mwende , the 3rd & 4th DW4 filed Kericho High court Succession cause No. 2/2010 In re Estate of Peter Mungai Muthami (Deceased). She was issued with a Grant of letters of Administration and Certificate of Confirmation.
The land was transmitted to the 3rd Defendant in accordance with the certificate of confirmation and duly registered transfer forms were produced and ultimately, a title deed was issued to the 3rd defendant. A certificate of official search issued to the 3rd defendant on 28th May, 2013 showed that the land was registered in his name on 14/6/2012 and title deed re-issued on 5/9/2012.
The 3rd defendant testified that after he obtained title deed in his name, he together with the 4th defendant travelled to Nakuru in September, 2012. They were introduced to the 1st defendants as a surveyor who would show them the beacons to their plots. They went to the site and the 1st defendant requested them to sell the suit lands to him to which request they declined. They submit that it was after this encounter that the 1st defendant devised a scheme to obtain the suit lands fraudulently. The 3rd defendant is in possession of the parcel No.N/M/Block 29/ 243 and before him, his mother (as administrator) and his deceased father were in possession and collected rent.
Moreover, the 4th defendant in the submissions has traced the 4th defendant’s title to Nakuru Municipality Block 29/244, in the statement by Elijah Kipkemei Chelaite (deceased) produced as 3rd. and 4th DEx41, Plot No. Nakuru Municipality Block 29/244 was originally known as Plot No. 2084 and was balloted for by Kipitok Sitienei as per the balloting register He was a shareholder of the 2nd defendant as per member. He later sold the shares and Plot to Peter Muthami Mungai and when members register for Block 29 was prepared plot No. 244 was registered in the name of Peter Mungai Muthami.
From the evidence adduced, Peter Mungai Muthami followed the process and procedure he had used in obtaining title for parcel No. 243 as detailed above. They submit that he obtained a members clearance certificate No. 526 certifying that he had cleared with the 2nd defendant and should be issued with title for Nakuru Municipality Block 29/ 244. A transfer by the Government was registered in his favour on 30/05/2003 (c) He paid the requisite fees as assessed (d) he was issued with a title deed on 12th June, 2003.
Then Peter Mungai Muthami died on 5th June, 2009 and a search conducted by his widow on 31st December, 2009 showed that the land was registered in the name of Peter Mungai Muthami. Then she followed the rightful process in transmitting the land to the 4th defendant as follows: (a) she obtained Grant of letters of administration and certificate of confirmation (b) a transfer by transmission was registered on 14th June, 2012 (c) transfer by personal representative to the 4th defendant was registered on 14th June, 2012 (d) she paid all the requisite fees and a title deed was issued in favour of the 4th defendant on 12th July, 2012 (f) an official search conducted on 28th May, 2013 showed that the land was registered in the name of the 4th defendant
The 3rd qand 4th defendants have traced the 1st Defendants title to Nakuru Municipality Block 29/243 and 244, they submit that the starting point is the sale agreement dated 21st May, 2013. He bought the 2 parcels of land from the plaintiff as the intended administrator of the estate of late Chebande Alima. An intended administrator cannot sell land of a deceased person. He is an intermeddler under section 45 of the Law of Succession Act. He has no legal capacity to sell under section 82 (a) of the said Act.
The said agreement does not disclose the owner. Whose land was the plaintiff selling to the 1st defendant? In his evidence under cross-examination the 1st defendant admitted that the registers for the suit lands were opened on 29th March, 2000 but he did not conduct an official search before buying them.
In his evidence, the plaintiff produced grant of letters of administration and certificate of confirmation of grant in respect of the estate of Chebande Alima (deceased). The two suit lands are not listed as assets of the estate of the deceased. The 1st defendant did not produce proof that Chebande Alima (deceased) was a shareholder of the 2nd defendant. There was no evidence connecting Chebande Alima with the suit lands.
The plaintiff and Ist defendant testified that they on 21 st May, 2013 gave one David Rono 1st Defendant Kshs. 200,000 to process the title deeds for Suitland and surely by the following day, on 22nd May, 2013 he availed 2 titles deeds. They did not disclose the documents in respect of Chebande Alima they used to process the 2 titles deeds. None were produced in court. In their evidence the plaintiff, 1st defendant and David Rono all agreed that the 1st defendant was not a shareholder of the 2nd defendant. He could only buy shares from an existing shareholder. There is no evidence that he bought any shares as such. By the time of the sale agreement with the plaintiff, the members register for Block 29 had already been prepared and submitted to the land registrar for issuance of titles. The 2 parcels were registered in the name of Peter Mungai Muthami but his names were crossed and the name of the 1st defendant entered. On what basis was this done? The land registrar had no explanation. The procedure was that a shareholder would get members clearance certificate confirming that he had cleared with the 2nd defendant and the land registrar could issue him with titles as specified in the certificate. No such clearance certificates were produced by the 1st defendant.
The government had to sign a transfer in favour of the shareholder issued with the members' clearance certificate and thereafter issue a title deed upon payment of the requisite fee. The 1st defendant did not produce any such transfer forms or receipts in respect of Nakuru Municipality Block 29/244. How did he obtain title without transfer considering that the land had been surrendered to the government of Kenya by the 2nd defendant?
In respect of the Nakuru Municipality Block 20/243 the land registrar 3rd and 4th DW4 produced a transfer registered on 22nd May, 2013. The witness at the same time produced a transfer in favour of Peter Mungai Muthami duly registered on 30th May, 2003, the requisite government fees were paid by 3rd and 4th defendant. The land was transferred to Peter Mungai Muthami in the year 2003. There was nothing to transfer to the 1st Defendant in the year 2013. The 2nd purported transfer to the 1st defendant is null and void.
They submit that considering the process and procedure followed by the parties in obtaining their respective parties; the title deeds held by the 3rd and 4th defendants should be upheld.
The plaintiff had no legal capacity to sell the suit lands to the 1st defendant. He has not proved any fraud against the 3rd and 4th defendants. His case against the defendants should be dismissed with costs. The titles held by the 3rd and 4th defendants to their respective parcels should be upheld. The 1st defendant obtained his titles fraudulently by purporting to buy the land from an intended administrator.
ANALYSIS AND DETERMINATION
The gravamen of the plaintiff’s case is that he is a grandson of one Chebande Alima. He did the succession of Chebande Alima and obtained a grant of letters of administration interstate and proceeded to obtain a confirmation of grant. According to the plaintiff, his grandmother Chebande Alima was allotted plot NO. 25 within the Rhonda farm vide her share certificate 5026. Upon the demise of her grandmother the plaintiff and Joshua Mzee Kitoni filed for letters of administration intestate in the estate of Chebande Alima which were issued and later confirmed.
In the said succession the plaintiff was made a beneficiary of the property known as plot 25 within Rhonda farm. He however found that one Kiptune Arap Biwott had sold the property to one Peter Mungai Muthomi claiming that he was the plaintiff’s father. The plaintiff reported the matter to the police. The said Peter Mungai Muthomi surrendered his documents and agreed to return the property to the plaintiff he did not.
Peter Mungai Muthomi indicated to have no claim on the suit property. The plaintiff states that he sold the property to the 1st defendant but the 1st defendant failed to pay the full purchase price. The sons of Peter Mungai Muthomi acquired the property through succession and transmission.
I have considered these facts and do find that the plaintiff’s case has no basis because he was neither the registered owner nor the beneficial owner of the suit property and therefore had no capacity to sell the property in dispute to the 1st defendant as the intended administrator of the estate of Chebande Alima who was not the registered owner or beneficial owner of the suit property. The court finds that as an administrator of the Estate of his grandmother, he could only sell what belonged to his grandmother. There is no evidence that his grandmother was the owner of the property in dispute. Moreover, the land in dispute was not in the confirmed grant and therefore the in no way the plaintiff could have sold the land to the 1st defendant. An intended or proposed administrator cannot legally sell the land of a deceased person in Kenya before obtaining a confirmed Grant of Letters of Administration. Selling property without confirmation of grant by the court is illegal. This amounts to intermeddling and is punishable by fines or imprisonment, and renders the sale voidable. The relevant law is section 45 of the law of Succession Act cap 160 Laws of Kenya. It provides as follows:-
This court further finds that even if the plaintiff had obtained the letters of administration of the estate of Chebande Alima before the transaction, the same could not have given him capacity to sell the property as there was no evidence whatsoever that he land belonged to Clebande Alima.
On whether the plaintiff was properly registered as the owner of the land, the plaintiff himself did not understand how the land was registered in the names of Wachira Chiri and this court does not also understand how the 1st defendant was registered as the owner of the land. Mr. Wachira Chiri was not a member of the Kalenjin Enterprises. He did not produce any share contribution certificate and clearance certificate, a transfer form, he just ended up with the title deed. This is the epitome of fraud because the 1st defendant only had the title deed.
This court finds that the transaction between the plaintiff and the 1st defendant was fraudulent because the plaintiff was not the owner of the suit property and yet he allegedly transferred the property to the 1st defendant. His grandmother was not the owner of the suit property and that the transfer instrument was allegedly executed by the two parties who had no interest in the property.
The 1st defendant claimed to have purchased the property from the plaintiff however there is no evidence that the plaintiff owned the property. Moreover, the plaintiff’s grandmother from whom the plaintiff claims the property was not a member of Kalenjin Enterprises. The sale agreement between the plaintiff and the 1st defendant was a nullity as the plaintiff was selling as the administrator of the estate of Chebande Alima who was not the registered or beneficial owner of the property.
The evidence of David Kipkurui Rono was shaky especially on cross examination by Mr. Mutonyi. He did not have a register to demonstrate that Chibande Alima was a member of the Kalenjin Enterprises. However, he admitted that the clearance signed by the chairman was issued to Peter Mwangi Muthomi.
He processed the title for Wachira Chiri but does not explain how he did it when Wachira Chiri was not a member of Kalenjin Enterprises. He does not know from whom Wachira Chiri bought shares of the company. The witness was very evasive and appeared to have been in the depth of the fraud that occurred on the suit premises of land.
James Kibaru Mungai testified that he was claiming parcel number 243. He inherited the land from his father through transmission. In the year 2009 the land was in the names of his father Peter Mungai Muthomi.
According to the 3rd defendant John Wachira Chiri came in as a surveyor and offered to buy their land but they refused. They learnt later that the property had been transferred to John Wachira Chiri and title issued on 2013. Their title on transmission was issued on 5/9/2012. Their father had been registered on the proprietor on 12.6.2003.
Reuben Njenga Mungai claimed parcel no 244. He had a title deed issued earlier than the title issued to John Wachira Chiri. He did a search in 2012 and found that the land was registered in the names of his father. The fathers’ title came before the 1st defendants’ title. Joyce Mwende Mungai, the wife of the late, Peter Mungai Muthomi testified that she did succession and transferred the land to his sons. John Wachira Chiri was engaged by the defendants to do a survey but later acquired the property in his names fraudulently. I do find that she was truthful and her evidence was not challenged.
The Land Registrar, Emma Sitienei received witness summons to testify in court. She carried the parcel file for Nakuru Municipality Block 29/243 but did not trace the file for N/M / Block 29/244. According to the land registrar parcel number Nakuru Municipality Block 29/243 was owned by Peter Mungai Muthomi but her name was deleted and replaced with John Wachira Chiri.
Moreover, that parcel number Nakuru Municipality Block 29/244 was reading the name of Peter Mungai Muthomi as proprietor but the name was deleted and replaced by John Wachira Chiri. The cancellation was not countersigned. The members’ clearance certificate was for Peter Mungai Muthomi. The title issued to Peter Mungai Muthomi was issued on 12.6.2003. This property was transmitted to James Kibaru Mungai.
I have carefully considered the evidence on record and do find that parcel number Nakuru Municipality Block 29/243 belonged to Peter Mungai Muthomi and the same was transmitted to James Kibaru Mungai upon the demise of Peter Mungai Muthomi. The documents of transmission support to registration of the 3rd defendant as the proprietor. The 1st documents appear from nowhere and appear superimposed on already existing title in the names of James Kibaru Mungai. The presumption from the above records is that the land registry manipulated documentation for John Wachira Chiri and prepared a register and I dare say that the register for the 3rd defendant was removed from the records and a falsified register replaced it.
This is the height of fraud and forgery in the land registry Nakuru. Before the year 2012, the land belonged to Peter Mungai Muthomi. The land registrar showed the court a certificate of official search dated 31.12.2009 showing the registered owner of 29/244 as Peter Mungai Muthomi. Land parcel number 29/244 was later transmitted to Reuben Njenge Mungai. The parcel file was not traced.
The evidence of the land registrar demonstrated to rot in the land registry Nakuru at that time. However, I do find Emma Sitienei a very honest witness who also appeared shocked at the contradictory documents.
In conclusion, I do find that the plaintiff had no interest whatsoever in the suit properties and therefore had nothing to sell to the 1st defendant. Moreover, that the 1st defendant acted fraudulently in causing his names to be registered as the proprietor of the suit property. He posed as a buyer from the plaintiff and a surveyor for the 3rd and 4th defendants’ but his intention was to acquire the land illegally.
Without a legal instrument of transfer he could not have the properties transferred into his name. Moreover, the properties were already registered in the names of the 3rd and 4th defendants’ hence could not be transferred to the 1st defendant by the plaintiff.
The root of the 3rd and 4th defendants’ title can be traced from the Kalenjin Enterprises, to their father Peter Mungai Muthomi and to their mother Joyce Mungai and transmission to the defendants. The 1st defendant’s title is not properly grounded to any transaction. It is based on forgery, fraud and possible corrupt schemes. This is a case where the court ought to look at the root of the titles in dispute. The "root of title" in case law refers to the original, foundational document or transaction that proves the legal origin of land ownership, rather than merely relying on a current title deed. It must show how ownership was legitimately acquired, often requiring proof of a valid, legal, and unbroken chain of ownership from the initial lawful grantee. In disputes where both parties have competing titles to a piece of land, it is not enough for either party to dangle his or her title as proof of ownership. Each party must prove, to the satisfaction of the court, the root of his or her title.
Article 40 (6) of the Constitution stipulates that the right to property does not extend to property that has been found to have been unlawfully acquired. In this regard, the 1st defendant had the burden to prove the root of his title and to demonstrate that he procedurally and lawfully acquired title to the suit property. In other words, whereas the legal burden of proof is on he who asserts that a property comes within the provisions of Article 40 (6) of the Constitution, the evidential burden is on a registered proprietor to rebut an assertion that his property was unlawfully acquired and demonstrate that the property does not come within the provisions of Article 40 (6) of the Constitution.
Courts have often times stated that when a certificate of title is under challenge, the root of title must be proved. The lawfulness of the acquisition of title must be demonstrated to oust the provisions of Article 40 (6) of the Constitution. In the instant matter, the 1st defendant never led convincing evidence to establish the root of his title.
This position was upheld by the Supreme court in the case of Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (EOIO) of 2021) [20231 KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment) wherein the court stated thus:- "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. The first allocation having been irregularly obtained, HE Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co (1993) Ltd, who in turn could pass to the appellant. Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire file regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under article 40 of the Constitution. The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser,"
The Court of Appeal in Munyu Maina - v - Hiram Gathiha Maina, Civil Appeal number 239 of 2009, held as follows:
“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and 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.
In Sammy Mwangangi & 10 others -v - Commissioner of Lands & 3 others [2018] eKLR, the Court of Appeal expressed itself as follows:
“47. It is thus our considered view that the respondents have successfully shown how they acquired their title by producing all the documents that must be in place before a Grant could be issued and registered in their favour.
48. The 3rd and 4th respondents have sufficient evidence to prove that they acquired the suit property lawfully. Indeed, we agree with the learned Judge that no evidence was called by the appellants to show the 3rd and 4th respondents acquired the titles unlawfully to enable this court order for their cancellation.
50. Having found that the respondents were allocated the suit property lawfully, their titles cannot be impeached. In view of the fact that the appellants failed to prove the allegations of fraud in the acquisition of the title, consequently they failed to prove their case on a balance of probabilities. For all the foregoing reasons, having re-evaluated the evidence before us, we are not persuaded that the learned Judge erred in arriving at the conclusion she made. The judgment now impugned was based on sound law and evidence, and the same cannot be impeached.
The 1st defendant does not qualify to be an innocent purchaser for value without notice because he knew very well that the plaintiff was not the registered owner of the suit-land but went ahead to buy the land. He never bothered to do an official search and also posed as a surveyor only to pounce later and obtained a title. He was party to the fraud.
In the case of Katende Vs Haridar & Co. Limited (2008) 2 EA 173 as quoted by the Court of Appeal in Nakuru Court of Appeal No. 291 of 2013 –Weston Gitonga & 10 others Vs Peter Rugu Gikanga & another (2017) eKLR the Court of Appeal of Uganda held as follows:-
“…for the purpose of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase a property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, (he) must prove that;a.He holds a certificate of title;b.He purchased the property in good faith;c.He had no knowledge of the fraud;d.He purchased for valaube consideration;e.The vendors had apparent valid title;f.He purchased without notice of any fraud;g.He was not party to any fraud.”
This court finds the 3rd and 4th defendants titles valid. The plaintiff’s suit is dismissed with costs. The defendants counter claim is equally dismissed with costs.
The upshot of the above is that the 3rd and 4th defendants claim is allowed in terms that the 3rd defendant to be declared as the rightful owner of Title Number Nakuru/Municipality Block 29/243 and the 4th defendant to be declared owner of Title Number Nakuru/Municipality Block 29/244 and that the land register to be rectified to remove the name of the 1st defendant. Costs to the 3rd and 4th defendants. Orders accordingly.
Antony Ngetich Seurey, (hereinafter referred to as the plaintiff) has brought this case based on a plaint dated 14th April 2014 and amended on the 17th January 2022 against John Wachira Chiri, Kalenjin Enterprises Ltd, James Kibaru Mungai and Reuben Njenga Mungai (hereinafter referred to defendants). In a nutshell, the plaintiff claimed that at all material times the Plaintiff was and is the legal owner of parcels of land known as Nakuru Municipality Block 29/242 (Ronda), 29/243(Ronda) And 29/244 (Ronda) (hereinafter referred to as the suit properties)
He states that on the 21st day of May 2013, the plaintiff entered into an agreement with the 1st defendant for the sale of the suit properties. That the 1st defendant paid a deposit of Kshs410,000/= [four hundred and ten thousand shillings] leaving a balance of 1,090,000/= [One million and ninety thousand shillings. That the 1st defendant undertook to pay the balance upon being granted vacant possession. That before the plaintiff could hand over vacant possession of the property, the 3rd and 4th defendants claimed ownership of the property having inherited the same from their deceased father one Peter Mungai Muthomi. That the said Peter Mungai Muthomi had previously claimed the properties sometimes in 1997 on the premise that he had bought the same from one Kiptuwe Arap Biwot.
The plaintiff reported the matter to the Nakuru DCI for investigation upon which the said Peter Mungai Muthomi was summoned. That upon being confronted with the illegality of the purported purchase from one Kiptuwe Arap Biwot, Peter Mungai Muthomi surrendered the title documents and signed an agreement at the CID dated 31st July 1997. That the said Peter Mungai Muthomi further wrote a statement with the police on the 5th of June 1999 wherein he affirmed that the property actually belonged to the plaintiff. That the 3rd and 4th defendants fraudulently went ahead to include the said properties already surrendered by their deceased father in the estate and now claim ownership.
The 3rd and 4th defendants are claiming ownership against properties their deceased father had surrendered for having them fraudulently obtained. The 3rd and 4th Defendants have colluded with the 2nd Defendant and fraudulently obtained title documents and have entered into the suit properties without consent of the Plaintiff.
Reason of the aforesaid invasion the Plaintiff claims that he has been deprived of the use and enjoyment of the said land and has suffered loss and damage. The plaintiff seeks the following orders against the defendants namely;
1. An order of temporary/ permanent injunction do issue against the defendants whether by themselves servants and/or agents or otherwise whomsoever from trespassing, erecting, transferring and/or interfering with the Plaintiff's quiet possession and enjoyment of parcel of land known as NAKURU MUNICIPALITY BLOCK 29/242 (RONDA), 29/243 (RONDA) and 29/244 (RONDA).
2. A declaration that the Plaintiff is the owner of parcel of land known as NAKURU MUNICIPALITY BLOCK 29/242 (RONDA), 29/243 (RONDA) and 29/244 (RONDA) and order cancelling title issued to the Defendants in respect of NAKURU MUNICIPALITY BLOCK 29/242 (RONDA), 29/243 (RONDA) and 29/244 (RONDA), z b) (a) In the alternative an order for specific performance do issue against the 1st Defendant for payment of the balance of the purchase price with interest.
3. An order for eviction against the 1st, 2nd, 3rd and 4th Defendants and demolition of structures erected thereon.
4. Costs and interest of the suit and damages,
5. Any other relief this honourable court deems fit to grants .
1st Defendant’s Defence and counter claim
The 1st Defendant herein filed a Defence and counter claim dated 5th of August 2014 stating that the suit filed herein is bad in law, inept, ambiguous and does not sufficiently disclose proper particulars of claim or cause of action against the 1st Defendant and he prays that the suit against the 1st Defendant be dismissed with costs.
He avers that he is the 1st registered owner of the suit properties having purchased the same from the Plaintiff sometimes in the year 2013. The 1st Defendant states that he has obtained the Title documents legally after a Sale Agreement with the Plaintiff and with the assistance of the Plaintiff and that there does not exist any element of fraud whatsoever singularly or jointly with the co-Defendants.
COUNTER-CLAIM
The 1st Defendant by way of Counter-Claim states that sometimes in the year 2013, he entered into a Sale Agreement with the Plaintiff wherein he bought the suit properties. That the Plaintiff assisted the 1st Defendant to acquire Titles in his name through the offices of the 3rd Defendant - Kalenjin Enterprises. That it was a term of the contract that the Plaintiff would give the 1st Defendant vacant possession of the properties. The Plaintiff attempted to give the 1st Defendant vacant possession in the presence of the Area Chief and the Administration Police but the same was resisted by the Tenants and the family of one Peter Mungai Muthama. They reported the same to the C.I.D and the Plaintiff (now Defendant) was advised to file a Civil Claim for eviction.
The 1st Defendant has on several occasions requested the Plaintiff to deliver up to the 1st Defendant into vacant possession by filing a Civil Suit so that the 1st Defendant would pay the Plaintiff the balance of the purchase price but he has failed. The 1st Defendant's claim against the Plaintiff is for specific performance of the contract or sale agreement dated 21st May 2013 by delivering vacant possession of the plots.
The 1st Defendant prays that the Plaintiff's suit be dismissed with costs to the 1st Defendant and judgment be entered for the 1st Defendant's in terms of the Counter-Claim for:
1. A declaration that the suit parcels of land belong to the 1st Defendant -
2. An Order for specific performance against the Plaintiff for the delivery of the vacant possession of the suit properties within NINETY (90) DAYS of the court's order before the payment of the balance of the purchase price.
3. Costs of the suit and costs of the Counter-Claim.
4. Any other relief that this Honourable Court may deem fit to grant.
It is important to note that The 2nd Defendant entered appearance but never filed any Defence and did not participate in the hearing. However no prayer was made against her.
The 3rd and 4th Defendants defence.
The 3rd and 4th defendants filed their defence dated 13th February 2023 and denied any fraud. They denied the allegations that the Plaintiff was at any material times or at any other time the legal owner of suit properties. On the contrary the 3rd and 4th Defendants averred that they are the duly registered owners of the suit properties. They further aver that the alleged Agreement between the plaintiff and the 1st defendant, if any, was unlawful and illegal. The 3rd and 4th Defendants further aver that their father Peter Mungai Muthami (deceased) duly bought Title Number Nakuru/Municipality Block 29/243 and Nakuru/Municipality Block 29/244 from Koros Kiprotich and Kipitok Arap Sitienei respectively and the same were duly transferred and registered in his name on 12th June, 2003.
The 3rd and 4th Defendants refer to paragraph 6 of the Plaint and deny that the Number Nakuru/Municipality Block 29/243 and Nakuru/Municipal 244 was obtained fraudulently.
The 3rd and 4th defendants aver that they were by transmission registered as owners of Title Number Nakuru/Municipality Block 29/243 and Nakuru/Municipality Block 29/244 on 5th September, 2012 and 12th July, 2012, respectively.
According to the 3rd and 4th defendants, their father Peter Mungai Muthami (Deceased) was registered as the owner of Title Number Nakuru/Municipality Block 29/243 (Ronda) and Title Number Nakuru/Municipality Block 29/244 (Ronda) on 12th June, 2003. The 3rd and 4th Defendants aver that the Plaintiffs suit is statute time barred.
The 3rd and 4th defendants filed a claim against the 1st defendant whose import is that the 1st defendant illegally and fraudulently caused title the suit properties to be registered in his name and prays that the 3rd defendant to be declared as the rightful owner of Title Number Nakuru/Municipality Block 29/243 and the 4th defendant to be declared owner of Title Number Nakuru/Municipality Block 29/244 and the land register to be rectified to remove the name of the 1st defendant.
Plaintiff’s Submissions
The plaintiff submits that he is the legal owner of suit properties which are registered and surveyed properties being; Nakuru Municipality Block 29/242, 243 and 244 (Ronda). The said properties are currently registered in the names of the 1st Defendant while also the 3rd and 4th Defendants claim proprietorship rights and have their titles too.
That in such a situation the court is under an obligation to look into the root of the two sets of title deeds vis a vis the proprietorship interest claims of the Plaintiff herein. The plaintiff relies on the case of case of Kamau v Ndabi (Environment and Land Appeal E001 of 2023) [2025] IGELC 4209 (KLR) (29 May 2025) judgment) wherein the court quoted the case of Hubert L. Martin & 2 Others v Margaret J. Kama-r & 5 Others [2016] eKLR, where the Court held as follows;-
"A Court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all z processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root, No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property, The other party also has a similar document and there is therefore no advantage in hinging one is case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.
The court also quoted the case of Munyu Maina ..Vs..Hiram Gathiha Maina Civil Appeal No, 239 Of 2009 where the Court of Appeal held that:-
"We have stated that 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 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."
The plaintiff submits that in the present case there are three parties claiming proprietorship interests in the properties and as such the court is under an obligation to look into the origin of the proprietorship interests. That it is not in dispute that the properties herein were originally owned by the 2nd Defendant, and who subsequently sub-divided the mother title and transferred the various portions to its members. That it is also not in dispute that the 2nd Defendant did maintain a register for its members and also issued its members with share certificates and from which properties would be processed. The Plaintiff herein produced a share certificate in his name dated the 2nd of April 1980 under serial number 2636 and duly executed by all the officials of the 2nd Defendant.
The plaintiff submits that the 3rd and 4th Defendant's fourth witness the land registrar produced a list of members and which showed that the properties Nakuru Municipality Block 29/243 and Nakuru/Municipality Block 29/244 (Ronda) were previously in the name of Peter Mungai Muthami and later cancellation done and the name of John Wachira Chiri inserted. That on the issue of the name of John Wachira Chiri being on the register, it was an admission of the 1st Defendant that he used the property documents of the Plaintiff to have the properties cleared in his name and to have his name inserted on the register.
That on the issue of Peter Mungai Muthami having been previously registered thereon the plaintiff submits that a dispute arose between the Plaintiff and the said Peter Mungai Muthami and which culminated in the settlement of the same vide an agreement dated 31st July 1997 and which agreement was produced by the Plaintiff.
That the said Peter Mungai Muthami also wrote a statement before the then Nakuru Provincial Criminal Investigation Department. That the said Peter Mungai Muthami admitted to having been conned into purchasing shares in the name of Kogo Kipngetich from one Kiptuwe Arap Biwot through an agreement dated 14th July 1981 and in which Kiptuwe Arap Biwot claimed to sell the shares on behalf of the Plaintiff and claiming that the Plaintiff was his son.
That during the execution of the statement and the agreement the said Peter Mungai Muthami surrendered all the documents in his custody including the agreement dated 14th July 1981. That in his statement the said Peter Mungai Muthami admitted having received a receipt number 211262 from Kiptuwe Arap Biwot and which receipt was in the Plaintiff's name.
That it is evident from the above that the title deeds held by the 3rd and 4th Defendants originate from their father Peter Mungai Muthami, and whom it is evident from the evidence presented that he acquired ownership through documents belonging to the Plaintiff and which documents he surrendered but used copies to have the clearances issued to him.
The plaintiff submits that there is no other evidence tendered to prove that the said Peter Mungai Muthami acquired title from another person or member of the 2nd Defendant, since there is no share certificate to prove acquisition and there is no agreement to demonstrate a purchase save for the agreement with Kiptuwe Arap Biwot which he conceded to have been a fraud in the settlement with the Plaintiff.
The plaintiff contends that the court ought to also note that the said Peter Muthami Mungai was not a member of the 2nd Defendant, the beneficiaries allege that he acquired membership through a purchase of shares and whose share certificate has not been produced, neither has the receipt for payment as well has any share certificate of the purported seller been produced. In light of the above, the title held by Peter Mungai Ntuthami lacks its root and this honourable court ought to find so.
That it is clear from the above that a court ought to first establish the origin and or root of a title and should the same be questionable then the court ought to cancel the same and subsequent entries shall not be protected by Article 40 of the Constitution of Kenya 2010. This position was upheld by the Supreme court in the case of Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (EOIO) of 2021) [20231 KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment) wherein the court stated thus:-
"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. The first allocation having been irregularly obtained, HE Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co (1993) Ltd, who in turn could pass to the appellant.
Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire file regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under article 40 of the Constitution. The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser,"
That it was clear from the testimony of the 3rd and 4th Defendants that they do not have any evidence as to the acquisition of the property by their deceased father and all that is available are documents produced 'by the Plaintiff showing that indeed Peter Mungai Muthami used documents belonging to the Plaintiff to acquire the title deed and as such the same ought not to stand, together with subsequent transmission to the 3rd and 4th Defendants.
It is also not in dispute that the 1st Defendant admitted using the documents of the Plaintiff to acquire his title deeds and as such confirming that the properties actually belong to the Plaintiff. The plaintiff ultimately submits that this honourable court should find that the Plaintiff has proven his case on a balance of probability and that his title meets the root cause test established in the above quoted cases. The plaintiff submits that he is entitled to costs.
1ST DEFENDANT’S SUBMISSIONS
The 1st defendant submits that from the pleadings and the evidence its common ground that the plaintiff was the original allotee of the share with Kalenjin Enterprise. The plaintiff sold the property to the 1st defendant vide a sale agreement dated 21st May 2013 and made part payment but did not take possession of the property. The 1st defendant proceeded to obtain the title documents to Nakuru Municipality block 29/242,243 and 244(Rhonda) before completing the payments to the plaintiff as per the agreement. The plaintiff filed this suit against the 1st defendant and claimed for the cancellation of the title documents or in the alternative the payment of the balance of the purchase price.
The 1st defendant admitted owing the plaintiff the balance of the purchase price which he is ready and willing to pay on condition that he gets possession of the property. The 3rd and 4th defendants claim is basically against the 1st defendant by virtue of inheritance from their deceased father having obtained letters of administration for the estate.
On the issue as to whether the first defendant has a good title to the properties known as Nakuru Municipality block 29/243 and 244(Rhonda), the 1st defendant submits he was a bonafide purchaser for value from the plaintiff and made part payment. The plaintiff delivered all the ownership documents to the 1st defendant who proceeded to obtain title documents. The 1st defendant did not obtain possession of the property and therefore he did not pay the balance of the purchase price to the plaintiff.
The plaintiff has by evidence and documents been able to establish the root of its title documents vide the originals allotment letter and that the 3rd and 4th defendants further had attempted to obtain the same through fraud which was resolved when the plaintiff reported to the criminal investigation department and finally the father of the 3rd and 4th defendants surrendered the documents.
The 1st defendant reiterates the plaintiff’s submissions that whenever a court is faced with a situation where there are two or more titles on the same property held by two separate claimants, the court has settled that it must go into the root of the titled deed and inquire into the whole process how the same was acquired.
The 1st defendant cites the case of KAMAU VRS- NDABI ELCAEOOI OF 2003 KLR2025 & HERBERT L MARITIM & 2 OTHERS VRS- MARGARE T J. KAMAU & ANOTHER (2016 e KLR) the court has held that the "the title that is to be upheld is that which confirmed to the procedure and can properly trace its roots without a break in the chain".
He contends that whenever the titles are in such scrutiny, the parties must demonstrate how they got their titles starting with its roots. The plaintiff has discharged the burden by demonstrating the root of its claim to the property and therefore submits that the plaintiff is the rightful owner of the property. He further submits that the 3rd & 4th defendants have not given any evidence to demonstrate the root of the title deeds they have and therefore the claim must fail.
On the issue as to whether the 3rd and 4th defendant has established their claim of ownership, the 1st defendant submits that they have failed. The only basis of the claim is by succession, and they were unable to demonstrate how their late father obtained the title documents. They were unable to explain the dispute by the plaintiff and their late father who was reported at the criminal investigation department which had been withdrawn after the deceased surrendered the documents. They were unable to demonstrate how their father obtained the title deeds.
On the issue as to whether the plaintiff is entitled to the prayers sought, the 1st defendant submits that based on the evidence, pleadings and the law applicable, the honorable court do find and declare that the plaintiff is the original allotee of the disputed property established their claim of ownership. The 1st defendant is a bonafide purchaser for value from the plaintiff having made an initial payment but has not paid the balance of the purchase price. The plaintiff does deliver vacant possession of the property to the 1st defendant upon payment of the balance of the purchase price. The 3rd and 4th defendant do vacate from the property and deliver vacant possession to the plaintiff.
On the last issue as to who pays for the costs of the suit, the 1st defendant submits that the costs of the suit follow the event and the 3rd and 4th defendants having lost the case must pay the costs of the case.
Submissions of the 3 Rd and 4th Defendants
The 3rd and 4th defendants submit that the Plaintiff's suit against the 3rd and 4th defendants is statute barred. Section 7 of the Limitations of Actions Act Provides that the limitations period for a claim for recovery of land is 12 years from the date the right of action accrued. The Plaintiff pleaded fraud at paragraph 6 of the amended Plaint. Section of the 26 Limitation of Actions Act provides that where fraud is pleaded the period of limitation does not begin to run until the Plaintiff has discovered the fraud or could with reasonable diligence have discovered it.
The 3rd and 4th defendants have adduced evidence that the suit lands were first registered in the names of the father Peter Mungai Muthami (Deceased) on 12th June, 2003 and title deeds issued to 3rd and 4th defendants. The titles were later transmitted to the 3rd and 4th defendants on 5th September, 2012 and 12th July, 2012, respectively. In the amended plaint and in his evidence, the plaintiff did not plead or state when he discovered the alleged fraud. In the circumstances, the extension provided for in Section 26 of the Limitation of Actions Act is not available to him.
On whether the plaintiff has proved his case against the defendants, they submit that he does not state how and when he became the legal owner. In his oral evidence in court and in his written statement dated 11th April, 2023 the plaintiff testified that he claims the suit lands through his grandmother, Chebande Alima (deceased). He stated that the land was allocated to her by the 2nd defendant.
The 3rd and 4th defendants urge the court to make finding of fact and law that the plaintiff has not proved his case against the defendants for the reasons that there is no proof that Chebande Alima (deceased) was a member of the 2nd defendant.
The Plaintiff did not produce copies of the share certificate, receipts or members register to prove membership. There is no proof that Chebande Alima was ever allocated the suit lands by the 2nd defendant.
The Plaintiff produced correspondence (P Ex5) and receipts (PEx10) that all relate to Kogo Kipngetich and Plot No. 25. They have nothing to do with Chebande Alima (deceased) or the suit lands. In his evidence under cross- examination the plaintiff testified that "There is no nexus between plots 25 and Block 29/242, 243,244".
The Plaintiff produced a certificate of confirmation of Grant in respect of the estate of Chebande Alima (deceased) (PEx2). The suit lands are not included as properties of the estate of the deceased. He has no right over them.
In the sale agreement dated 21st May, 2013 between the plaintiff and the 1st defendant (l st Defendant Ex3) the plaintiff is described as "the intended administrator of the estate of the Late Chebande Alima".
The 3rd and 4th defendants submit that under Section 82 (a) and section 45 of the Law of Succession Act, an intended administrator has no legal capacity to sell assets of the estate of a deceased person. It is a criminal offence to do so. The plaintiff had no land to sell to the 1st defendant. The sale agreement dated 21st May, 2013 is null and void. The plaintiff and the 1st defendant testified that it was only after signing the agreement that they agreed to spend Kshs. 200,000 to seek documents for the suit lands.
The plaintiff has not proved fraud against the 3rd and 4th defendants at all or to the required standard as set out in Elizabeth Kameme Ndolo -v- George Matata Ndolo [1996] eKLR . The plaintiff case against the defendants should be dismissed with costs.
In this case the 1st defendants has titles to the suit lands issued on 22nd May, 2013 whereas the 3rd defendant has a title to Nakuru Municipality Block 29/243 issued on 5th September, 2012 and the 4th defendant has a title to Nakuru Municipality Block 29/244 issued on 12th July, 2012. The court has to determine the titles to be upheld.
The issuance of the titles is an end product and if the process followed to obtain the title did not comply with the law, then such title is not indefeasible. This was the holding of the supreme court in Dina Management Ltd- v- County Government of Mombasa & 5 others [2023] KESC 30 KLR at paragraph 110.
When the proprietor's root of title is under challenge, he must go beyond the instrument and prove the legality of how he obtained it. In Munyu Maina-v- Hiram Gathiha Maina [2013] eKLR the Court of Appeal held that:-
"We state that when a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register
Lastly, in Hubert L. Martin & 2 Others- v- Margaret Kamar and 5 others [2016] eKLR Munyao J held that when the court is faced with two or more titles, it has to make an investigation from the root of the title and follow procedure and process that brought forth the two titles. The title to be upheld is the one which conformed to the procedure and can trace its root without a break in the chain.
Taking into account the position of the law as articulated above, they submit on the process and procedure followed in obtaining titles held by the 1 defendant and the 3rd and 4th defendants and demonstrate that the titles held by the latter should be upheld.
In their submissions, the 3rd defendant has traced the title he holds thus Number Nakuru Municipality Block 29/243, in the witness statement of Elijah Kipkenei Chelaite (deceased) chairman and director of the 2nd defendant produced in evidence as 3rd and 4th Defendants Ex.41. Title Number Nakuru Municipality Block 29/243 was originally Plot No. 2085 and was balloted for by Koros Kiprotich as the shareholder. When the register of members for Block 29 was prepared the name of Peter Mungai Muthami was entered as the owner of parcel No. N/ M Block 29/243.
The 2nd defendant surrendered the land to the Government of Kenya and a copy of members register for Block 29 was submitted to the land registrar for issuance of title deeds. The 2nd defendant issued a member's clearance certificate No. 525 dated 22/05/2003 certifying that he had cleared with the 2nd defendant and should be issued with title deed for Nakuru Municipality Block 29/243. Upon receipt of the members clearance certificate a transfer of land was prepared, signed and registered in favour of Peter Mungai Muthami. A title deed was issued to him after he paid the assessed fees as evidenced by the official receipt.
Then Peter Mungai Muthami died on 5th June 2009 and the widow conducted a search on the said land and a certificate of official search was issued that showed that as of 31st December, 2009 the deceased was the registered owner of Title Number Nakuru Municipality Block 29/243.
Then Joyce Mwende , the 3rd & 4th DW4 filed Kericho High court Succession cause No. 2/2010 In re Estate of Peter Mungai Muthami (Deceased). She was issued with a Grant of letters of Administration and Certificate of Confirmation.
The land was transmitted to the 3rd Defendant in accordance with the certificate of confirmation and duly registered transfer forms were produced and ultimately, a title deed was issued to the 3rd defendant. A certificate of official search issued to the 3rd defendant on 28th May, 2013 showed that the land was registered in his name on 14/6/2012 and title deed re-issued on 5/9/2012.
The 3rd defendant testified that after he obtained title deed in his name, he together with the 4th defendant travelled to Nakuru in September, 2012. They were introduced to the 1st defendants as a surveyor who would show them the beacons to their plots. They went to the site and the 1st defendant requested them to sell the suit lands to him to which request they declined. They submit that it was after this encounter that the 1st defendant devised a scheme to obtain the suit lands fraudulently. The 3rd defendant is in possession of the parcel No.N/M/Block 29/ 243 and before him, his mother (as administrator) and his deceased father were in possession and collected rent.
Moreover, the 4th defendant in the submissions has traced the 4th defendant’s title to Nakuru Municipality Block 29/244, in the statement by Elijah Kipkemei Chelaite (deceased) produced as 3rd. and 4th DEx41, Plot No. Nakuru Municipality Block 29/244 was originally known as Plot No. 2084 and was balloted for by Kipitok Sitienei as per the balloting register He was a shareholder of the 2nd defendant as per member. He later sold the shares and Plot to Peter Muthami Mungai and when members register for Block 29 was prepared plot No. 244 was registered in the name of Peter Mungai Muthami.
From the evidence adduced, Peter Mungai Muthami followed the process and procedure he had used in obtaining title for parcel No. 243 as detailed above. They submit that he obtained a members clearance certificate No. 526 certifying that he had cleared with the 2nd defendant and should be issued with title for Nakuru Municipality Block 29/ 244. A transfer by the Government was registered in his favour on 30/05/2003 (c) He paid the requisite fees as assessed (d) he was issued with a title deed on 12th June, 2003.
Then Peter Mungai Muthami died on 5th June, 2009 and a search conducted by his widow on 31st December, 2009 showed that the land was registered in the name of Peter Mungai Muthami. Then she followed the rightful process in transmitting the land to the 4th defendant as follows: (a) she obtained Grant of letters of administration and certificate of confirmation (b) a transfer by transmission was registered on 14th June, 2012 (c) transfer by personal representative to the 4th defendant was registered on 14th June, 2012 (d) she paid all the requisite fees and a title deed was issued in favour of the 4th defendant on 12th July, 2012 (f) an official search conducted on 28th May, 2013 showed that the land was registered in the name of the 4th defendant
The 3rd qand 4th defendants have traced the 1st Defendants title to Nakuru Municipality Block 29/243 and 244, they submit that the starting point is the sale agreement dated 21st May, 2013. He bought the 2 parcels of land from the plaintiff as the intended administrator of the estate of late Chebande Alima. An intended administrator cannot sell land of a deceased person. He is an intermeddler under section 45 of the Law of Succession Act. He has no legal capacity to sell under section 82 (a) of the said Act.
The said agreement does not disclose the owner. Whose land was the plaintiff selling to the 1st defendant? In his evidence under cross-examination the 1st defendant admitted that the registers for the suit lands were opened on 29th March, 2000 but he did not conduct an official search before buying them.
In his evidence, the plaintiff produced grant of letters of administration and certificate of confirmation of grant in respect of the estate of Chebande Alima (deceased). The two suit lands are not listed as assets of the estate of the deceased. The 1st defendant did not produce proof that Chebande Alima (deceased) was a shareholder of the 2nd defendant. There was no evidence connecting Chebande Alima with the suit lands.
The plaintiff and Ist defendant testified that they on 21 st May, 2013 gave one David Rono 1st Defendant Kshs. 200,000 to process the title deeds for Suitland and surely by the following day, on 22nd May, 2013 he availed 2 titles deeds. They did not disclose the documents in respect of Chebande Alima they used to process the 2 titles deeds. None were produced in court. In their evidence the plaintiff, 1st defendant and David Rono all agreed that the 1st defendant was not a shareholder of the 2nd defendant. He could only buy shares from an existing shareholder. There is no evidence that he bought any shares as such. By the time of the sale agreement with the plaintiff, the members register for Block 29 had already been prepared and submitted to the land registrar for issuance of titles. The 2 parcels were registered in the name of Peter Mungai Muthami but his names were crossed and the name of the 1st defendant entered. On what basis was this done? The land registrar had no explanation. The procedure was that a shareholder would get members clearance certificate confirming that he had cleared with the 2nd defendant and the land registrar could issue him with titles as specified in the certificate. No such clearance certificates were produced by the 1st defendant.
The government had to sign a transfer in favour of the shareholder issued with the members' clearance certificate and thereafter issue a title deed upon payment of the requisite fee. The 1st defendant did not produce any such transfer forms or receipts in respect of Nakuru Municipality Block 29/244. How did he obtain title without transfer considering that the land had been surrendered to the government of Kenya by the 2nd defendant?
In respect of the Nakuru Municipality Block 20/243 the land registrar 3rd and 4th DW4 produced a transfer registered on 22nd May, 2013. The witness at the same time produced a transfer in favour of Peter Mungai Muthami duly registered on 30th May, 2003, the requisite government fees were paid by 3rd and 4th defendant. The land was transferred to Peter Mungai Muthami in the year 2003. There was nothing to transfer to the 1st Defendant in the year 2013. The 2nd purported transfer to the 1st defendant is null and void.
They submit that considering the process and procedure followed by the parties in obtaining their respective parties; the title deeds held by the 3rd and 4th defendants should be upheld.
The plaintiff had no legal capacity to sell the suit lands to the 1st defendant. He has not proved any fraud against the 3rd and 4th defendants. His case against the defendants should be dismissed with costs. The titles held by the 3rd and 4th defendants to their respective parcels should be upheld. The 1st defendant obtained his titles fraudulently by purporting to buy the land from an intended administrator.
ANALYSIS AND DETERMINATION
The gravamen of the plaintiff’s case is that he is a grandson of one Chebande Alima. He did the succession of Chebande Alima and obtained a grant of letters of administration interstate and proceeded to obtain a confirmation of grant. According to the plaintiff, his grandmother Chebande Alima was allotted plot NO. 25 within the Rhonda farm vide her share certificate 5026. Upon the demise of her grandmother the plaintiff and Joshua Mzee Kitoni filed for letters of administration intestate in the estate of Chebande Alima which were issued and later confirmed.
In the said succession the plaintiff was made a beneficiary of the property known as plot 25 within Rhonda farm. He however found that one Kiptune Arap Biwott had sold the property to one Peter Mungai Muthomi claiming that he was the plaintiff’s father. The plaintiff reported the matter to the police. The said Peter Mungai Muthomi surrendered his documents and agreed to return the property to the plaintiff he did not.
Peter Mungai Muthomi indicated to have no claim on the suit property. The plaintiff states that he sold the property to the 1st defendant but the 1st defendant failed to pay the full purchase price. The sons of Peter Mungai Muthomi acquired the property through succession and transmission.
I have considered these facts and do find that the plaintiff’s case has no basis because he was neither the registered owner nor the beneficial owner of the suit property and therefore had no capacity to sell the property in dispute to the 1st defendant as the intended administrator of the estate of Chebande Alima who was not the registered owner or beneficial owner of the suit property. The court finds that as an administrator of the Estate of his grandmother, he could only sell what belonged to his grandmother. There is no evidence that his grandmother was the owner of the property in dispute. Moreover, the land in dispute was not in the confirmed grant and therefore the in no way the plaintiff could have sold the land to the 1st defendant. An intended or proposed administrator cannot legally sell the land of a deceased person in Kenya before obtaining a confirmed Grant of Letters of Administration. Selling property without confirmation of grant by the court is illegal. This amounts to intermeddling and is punishable by fines or imprisonment, and renders the sale voidable. The relevant law is section 45 of the law of Succession Act cap 160 Laws of Kenya. It provides as follows:-
This court further finds that even if the plaintiff had obtained the letters of administration of the estate of Chebande Alima before the transaction, the same could not have given him capacity to sell the property as there was no evidence whatsoever that he land belonged to Clebande Alima.
On whether the plaintiff was properly registered as the owner of the land, the plaintiff himself did not understand how the land was registered in the names of Wachira Chiri and this court does not also understand how the 1st defendant was registered as the owner of the land. Mr. Wachira Chiri was not a member of the Kalenjin Enterprises. He did not produce any share contribution certificate and clearance certificate, a transfer form, he just ended up with the title deed. This is the epitome of fraud because the 1st defendant only had the title deed.
This court finds that the transaction between the plaintiff and the 1st defendant was fraudulent because the plaintiff was not the owner of the suit property and yet he allegedly transferred the property to the 1st defendant. His grandmother was not the owner of the suit property and that the transfer instrument was allegedly executed by the two parties who had no interest in the property.
The 1st defendant claimed to have purchased the property from the plaintiff however there is no evidence that the plaintiff owned the property. Moreover, the plaintiff’s grandmother from whom the plaintiff claims the property was not a member of Kalenjin Enterprises. The sale agreement between the plaintiff and the 1st defendant was a nullity as the plaintiff was selling as the administrator of the estate of Chebande Alima who was not the registered or beneficial owner of the property.
The evidence of David Kipkurui Rono was shaky especially on cross examination by Mr. Mutonyi. He did not have a register to demonstrate that Chibande Alima was a member of the Kalenjin Enterprises. However, he admitted that the clearance signed by the chairman was issued to Peter Mwangi Muthomi.
He processed the title for Wachira Chiri but does not explain how he did it when Wachira Chiri was not a member of Kalenjin Enterprises. He does not know from whom Wachira Chiri bought shares of the company. The witness was very evasive and appeared to have been in the depth of the fraud that occurred on the suit premises of land.
James Kibaru Mungai testified that he was claiming parcel number 243. He inherited the land from his father through transmission. In the year 2009 the land was in the names of his father Peter Mungai Muthomi.
According to the 3rd defendant John Wachira Chiri came in as a surveyor and offered to buy their land but they refused. They learnt later that the property had been transferred to John Wachira Chiri and title issued on 2013. Their title on transmission was issued on 5/9/2012. Their father had been registered on the proprietor on 12.6.2003.
Reuben Njenga Mungai claimed parcel no 244. He had a title deed issued earlier than the title issued to John Wachira Chiri. He did a search in 2012 and found that the land was registered in the names of his father. The fathers’ title came before the 1st defendants’ title. Joyce Mwende Mungai, the wife of the late, Peter Mungai Muthomi testified that she did succession and transferred the land to his sons. John Wachira Chiri was engaged by the defendants to do a survey but later acquired the property in his names fraudulently. I do find that she was truthful and her evidence was not challenged.
The Land Registrar, Emma Sitienei received witness summons to testify in court. She carried the parcel file for Nakuru Municipality Block 29/243 but did not trace the file for N/M / Block 29/244. According to the land registrar parcel number Nakuru Municipality Block 29/243 was owned by Peter Mungai Muthomi but her name was deleted and replaced with John Wachira Chiri.
Moreover, that parcel number Nakuru Municipality Block 29/244 was reading the name of Peter Mungai Muthomi as proprietor but the name was deleted and replaced by John Wachira Chiri. The cancellation was not countersigned. The members’ clearance certificate was for Peter Mungai Muthomi. The title issued to Peter Mungai Muthomi was issued on 12.6.2003. This property was transmitted to James Kibaru Mungai.
I have carefully considered the evidence on record and do find that parcel number Nakuru Municipality Block 29/243 belonged to Peter Mungai Muthomi and the same was transmitted to James Kibaru Mungai upon the demise of Peter Mungai Muthomi. The documents of transmission support to registration of the 3rd defendant as the proprietor. The 1st documents appear from nowhere and appear superimposed on already existing title in the names of James Kibaru Mungai. The presumption from the above records is that the land registry manipulated documentation for John Wachira Chiri and prepared a register and I dare say that the register for the 3rd defendant was removed from the records and a falsified register replaced it.
This is the height of fraud and forgery in the land registry Nakuru. Before the year 2012, the land belonged to Peter Mungai Muthomi. The land registrar showed the court a certificate of official search dated 31.12.2009 showing the registered owner of 29/244 as Peter Mungai Muthomi. Land parcel number 29/244 was later transmitted to Reuben Njenge Mungai. The parcel file was not traced.
The evidence of the land registrar demonstrated to rot in the land registry Nakuru at that time. However, I do find Emma Sitienei a very honest witness who also appeared shocked at the contradictory documents.
In conclusion, I do find that the plaintiff had no interest whatsoever in the suit properties and therefore had nothing to sell to the 1st defendant. Moreover, that the 1st defendant acted fraudulently in causing his names to be registered as the proprietor of the suit property. He posed as a buyer from the plaintiff and a surveyor for the 3rd and 4th defendants’ but his intention was to acquire the land illegally.
Without a legal instrument of transfer he could not have the properties transferred into his name. Moreover, the properties were already registered in the names of the 3rd and 4th defendants’ hence could not be transferred to the 1st defendant by the plaintiff.
The root of the 3rd and 4th defendants’ title can be traced from the Kalenjin Enterprises, to their father Peter Mungai Muthomi and to their mother Joyce Mungai and transmission to the defendants. The 1st defendant’s title is not properly grounded to any transaction. It is based on forgery, fraud and possible corrupt schemes. This is a case where the court ought to look at the root of the titles in dispute. The "root of title" in case law refers to the original, foundational document or transaction that proves the legal origin of land ownership, rather than merely relying on a current title deed. It must show how ownership was legitimately acquired, often requiring proof of a valid, legal, and unbroken chain of ownership from the initial lawful grantee. In disputes where both parties have competing titles to a piece of land, it is not enough for either party to dangle his or her title as proof of ownership. Each party must prove, to the satisfaction of the court, the root of his or her title.
Article 40 (6) of the Constitution stipulates that the right to property does not extend to property that has been found to have been unlawfully acquired. In this regard, the 1st defendant had the burden to prove the root of his title and to demonstrate that he procedurally and lawfully acquired title to the suit property. In other words, whereas the legal burden of proof is on he who asserts that a property comes within the provisions of Article 40 (6) of the Constitution, the evidential burden is on a registered proprietor to rebut an assertion that his property was unlawfully acquired and demonstrate that the property does not come within the provisions of Article 40 (6) of the Constitution.
Courts have often times stated that when a certificate of title is under challenge, the root of title must be proved. The lawfulness of the acquisition of title must be demonstrated to oust the provisions of Article 40 (6) of the Constitution. In the instant matter, the 1st defendant never led convincing evidence to establish the root of his title.
This position was upheld by the Supreme court in the case of Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (EOIO) of 2021) [20231 KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment) wherein the court stated thus:- "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. The first allocation having been irregularly obtained, HE Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co (1993) Ltd, who in turn could pass to the appellant. Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire file regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under article 40 of the Constitution. The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser,"
The Court of Appeal in Munyu Maina - v - Hiram Gathiha Maina, Civil Appeal number 239 of 2009, held as follows:
“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and 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.
In Sammy Mwangangi & 10 others -v - Commissioner of Lands & 3 others [2018] eKLR, the Court of Appeal expressed itself as follows:
“47. It is thus our considered view that the respondents have successfully shown how they acquired their title by producing all the documents that must be in place before a Grant could be issued and registered in their favour.
48. The 3rd and 4th respondents have sufficient evidence to prove that they acquired the suit property lawfully. Indeed, we agree with the learned Judge that no evidence was called by the appellants to show the 3rd and 4th respondents acquired the titles unlawfully to enable this court order for their cancellation.
50. Having found that the respondents were allocated the suit property lawfully, their titles cannot be impeached. In view of the fact that the appellants failed to prove the allegations of fraud in the acquisition of the title, consequently they failed to prove their case on a balance of probabilities. For all the foregoing reasons, having re-evaluated the evidence before us, we are not persuaded that the learned Judge erred in arriving at the conclusion she made. The judgment now impugned was based on sound law and evidence, and the same cannot be impeached.
The 1st defendant does not qualify to be an innocent purchaser for value without notice because he knew very well that the plaintiff was not the registered owner of the suit-land but went ahead to buy the land. He never bothered to do an official search and also posed as a surveyor only to pounce later and obtained a title. He was party to the fraud.
In the case of Katende Vs Haridar & Co. Limited (2008) 2 EA 173 as quoted by the Court of Appeal in Nakuru Court of Appeal No. 291 of 2013 –Weston Gitonga & 10 others Vs Peter Rugu Gikanga & another (2017) eKLR the Court of Appeal of Uganda held as follows:-
“…for the purpose of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase a property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, (he) must prove that;a.He holds a certificate of title;b.He purchased the property in good faith;c.He had no knowledge of the fraud;d.He purchased for valaube consideration;e.The vendors had apparent valid title;f.He purchased without notice of any fraud;g.He was not party to any fraud.”
This court finds the 3rd and 4th defendants titles valid. The plaintiff’s suit is dismissed with costs. The defendants counter claim is equally dismissed with costs.
The upshot of the above is that the 3rd and 4th defendants claim is allowed in terms that the 3rd defendant to be declared as the rightful owner of Title Number Nakuru/Municipality Block 29/243 and the 4th defendant to be declared owner of Title Number Nakuru/Municipality Block 29/244 and that the land register to be rectified to remove the name of the 1st defendant. Costs to the 3rd and 4th defendants. Orders accordingly.