CHECKER OIL PRODUCTS LIMITED VS GEORGE NDOTO AND SAMUEL KIMONDO THEURI AND 1 Others

ELC NO. 12 OF 2021 Checker Oil Products Limited-Versus-
George Mutua Ndoto, David Kiratu Ng’ang’a, John Malinga
Munywoki and Peter Muli

1.  This suit was instituted through the plaint dated 5th April 2019. The Plaintiff avers it is the registered proprietor of the parcel of land known as KITUI TOWN BLOCK 1/658  measuring 0.3464 Ha having obtained the same from the defunct County Council of Kitui and was duly issued with a Certificate of Lease on 1.7.1998 for 99 years.
2. The Plaintiff averred that despite the defendant knowing the foregoing, they, without its consent trespassed into the parcel of land and started constructing a temporary structure.
3. Further, the defendants illegally prevented the plaintiff from fencing the suit property despite notices to vacate the parcel of land and remove all temporary structures. As a result of the defendants’ actions, the plaintiff avers that it has incurred losses as it has been unable to develop the property and its right to own property has been violated.
4. The plaintiff prayed for a declaration that it is the legal owner of the suit property, an order of permanent injunction restraining the defendants from interfering with its possession and ownership of the suit property, general damages for trespass, loss of user and mesne profits at the rate of Ksh.100,000/= per month from the date of occupancy until the date of judgment, aggravated damages for the breach of the plaintiff’s right to property and costs and interests of this suit.
5. The 2nd Defendant did not enter appearance nor file a defence to the claim.

The 1st, 3rd and 4th Defendants’ Statement of Defence and Counterclaim
6. The 1st, 3rd and 4th Defendants denied the averments in the plaint and stated that they occupy the suit land as a matter of right since the suit land belongs to the 1st defendant, who has subsequently leased portions to the 3rd and 4th defendants.

7. The defendants stated that land parcel number Kitui Town Block 1/658 is the same on the ground as the land known as KITUI MUNICIPALITY BLOCK 1/658-MOTEL SITE, which was granted to the 1st defendant through a Presidential decree and followed with the issuance of a Letter of Allotment by the Commissioner of Lands in 1989.
8. The 1st defendant highlighted that there is another case over the same subject matter, principally with the same parties, former Machakos ELC numbers 439 of 2017which is pending determination.
9. The defendants contend that the title held by the plaintiff was issued either fraudulently, illegally, unlawfully or through mistake and misrepresentation by the plaintiff’s directors or agents.
10. Further, the 1st Defendant accused the Plaintiff of acts of fraud, mistake and misrepresentation by obtaining a letter of allotment in the name of a non-existent legal entity while incorporating the Plaintiff Company in 2001. The Plaintiff was accused of conspiring with officials from the Ministry of Lands and Settlement to have a letter of allotment issued to them when there was an existing letter of allotment over the same property issued in 1989 to the 1st defendant.
11. The defendants filed a counterclaim against the plaintiff relying on the same grounds as set out in the defence. They prayed for orders that the Plaintiff’s suit be dismissed with costs, the title issued to the Plaintiff over KITUI TOWN BLOCK 1/658 be cancelled, an order be issued directing the Land Registrar to issue a fresh title in respect to the suit property to the 1st defendant and the costs of the counter-claim.

ELC NO. 29 OF 2021 Checker Oil Products Limited -Versus-George Ndoto, Samuel Kimondo Theuri and Chief Land Registrar

12. This suit was instituted by way of the Plaint dated 1st March 2021. The Plaintiff avers that in 1998, the Plaintiff was allotted all that parcel of land known as BLOCK 1/658 KITUI MUNICIPALITY after paying the required fees. The Director of Survey forwarded a Registry Index Map to the former Commissioner of Lands. The Plaintiff thereafter obtained a Certificate of Lease from the City Council of Kitui evidenced by a search of the Ministry of Lands.
13. The Plaintiff avers that it took vacant possession of the suit land and has been in quiet possession. Ownership of the suit land was confirmed by the 3rd defendant in its report dated 31st December 2019 which also confirmed that the 1st and 2nd defendants’ claim to the land is based on falsified and fabricated documents obtained through an illegal process.
14. The Plaintiff is apprehensive that the 1st and 2nd defendants may be selling the suit land to unsuspecting members of the public.
15. The Plaintiff also stated that it is desirous of developing the suit property into a state-of-the-art shopping mall that would attract investors, create employment and generate income. He claims that the plan is being threatened by the 1st and 2nd defendants’ illegal encroachment.
16. On 1st March 2021, the 1st and 2nd defendants, through the agents and/or representatives, armed with crude weapons, encroached the Plaintiff's premises in an attempt to take possession of the same. The incident was reported at Kitui Police Station under OB Number 3101/03/2021.
17. The Plaintiff, therefore, avers that it has come to the court to protect its Constitutional right to property and states that their interest can only be guarded if the orders sought herein are granted.

1st Defendant’s Statement of Defence and Counterclaim

18. The 1st defendant denied the averments in the plaint, stating that the Plaintiff was not yet incorporated as a legal entity under the laws of Kenya in the year 1998. He also averred that he and his tenants are in possession and occupation of the suit property.
19. Further, the 1st Defendant accused the Plaintiff of acts of fraud, deceit and misrepresentation with the intention to grab the suit property from him by obtaining a letter of allotment to the suit property in the name of a non-existent legal entity while incorporating the Plaintiff Company in 2001. The Plaintiff was accused of conspiring with officials from the Ministry of Lands and Settlement to have a letter of allotment issued to them over the suit property when there was a letter of allotment over the same property issued in 1989 to the 1st defendant.
20. The 1st defendant contends that there are three other cases over the same subject matter, principally with the same parties, former Machakos ELC numbers 439 of 2017, 40 of 2019 and 32 of 2021.
21. The 1st defendant filed a counterclaim against the Plaintiff, claiming that Land Parcel number Kitui Town Block 1/658 is the same on the ground as the property known as KITUI MUNICIPALITY BLOCK 1/658-MOTEL SITE, which was granted to the 1st defendant through a Presidential Decree and followed with the issuance of a Letter of Allotment by the Commissioner of Lands in 1989.
22. The 1st defendant, therefore contends that the suit property was not available for fresh allocation to the Plaintiff, that the Certificate of Lease was issued irregularly and that the same should be revoked and/or canceled.
23. The 1st defendant prayed for orders that the Plaintiff’s suit against him be dismissed with costs, a declaration be issued that the Plaintiff’s letter of allotment and Certificate of Lease in respect to KITUI MUNICIPALITY TOWN BLOCK 1/658 be cancelled and/or revoked, an order be issued that the 3rd defendant to issue a Certificate of Lease and/or title in respect to the suit property to the 1st defendant as well as the costs of the counter-claim.

2nd Defendant’s Statement of Defence and Counterclaim

24. The 2nd defendant filed a defence and counterclaim dated 15th March 2023. In the said counterclaim, he added other parties as defendants to the counterclaim: George Ndoto, Checker Oil Products Ltd, Chief Land Registrar, Commissioner of Land and Director of Surveys.
25. The court has perused the court file and has not seen evidence of service of summons to the defendants who were added to the suit. The court further sees that no directions were sought with regard to the counterclaim against the added defendants.
26. The 2nd Defendant denied the averments in the plaint and accused the Plaintiff of obtaining the title over KITUI TOWN BLOCK 1/658 fraudulently, illegally, unlawfully and through mistake and misrepresentation. The 2nd defendant further states that the Plaintiff has never been in occupation of the suit land.
27. In his counterclaim, the 2nd defendant states that vide a letter of allotment dated 7th January 1997, he was offered the suit plot by the Commissioner of Lands and has been in peaceful and continuous occupation of the land since then, while paying the relevant rates/rents.
28. On the 12th day of February 2010, he was issued with a Certificate of Lease for the property KITUI MUNICIPALITY BLOCK 1/658 as the absolute proprietor and indefeasible owner of the land thereof.
29. The 2nd defendant also states that the 1st defendant’s letter of allotment is not valid due to failure to communicate acceptance within the period stipulated, also noting that the 1st defendant was well aware of the 2nd defendant’s entitlement to the suit property from the year 1997.
30. That the Plaintiff herein served him with an eviction notice in January 2019 claiming that the suit property belongs to them on the strength of their lease, but the 2nd defendant states that the Plaintiff’s allotment letter and certificate of lease were obtained fraudulently and hence are null and void.
31. That the Plaintiff sued the 2nd defendant in Machakos 439 of 2017 and that during the pendency of the suit, the Kitui County Land Registrar’s office confiscated the 2nd defendant’s title with illegitimate intentions.
32. The 2nd defendant accused the Plaintiff of acting in collusion with the Chief Land Registrar, the Commissioner of Lands and the Director of Survey in engaging in a scheme to take possession of his land by conducting a re-survey in 2005. He avers that this re-survey exercise was unlawful, null and void.
33. Regarding the report made by the Land Registrar dated 31st December 2019 and the recommendations therein, the 2nd defendant terms it a false report that offends the law. It was extra-judicial, fraudulent, corrupt, made through mistake and misrepresentation of facts aimed at depriving him of land in favour of the Plaintiff without following the laid down procedures in law, contrary to the provisions of Article 40 of the Constitution.
34. The 2nd defendant also states that it was unlawful and illegal for the Director of Survey to re-survey his land without giving him sufficient notice with sufficient reasons necessitating the resurveying exercise done on 28/05/2005 that reduced the suit land from 0.4Ha to 0.347 Ha.
35. Further, the 2nd defendant averred that given the chance to make good his plan and construct the Petrol service station on his parcel of land, he would make a gross of between Ksh.3,000,000/= to 7,500,000, therefore, he prays for mesne profits of Ksh.5,500,000/= annually.
36. The 2nd defendant, therefore, prays in the counterclaim for a declaration that he is the absolute owner of the parcel of land known as KITUI BLOCK 1/658, a declaration that the lease issued to the Plaintiff was fraudulently and unprocedurally registered, an order directing the land registrar to revoke the said certificate of lease issued to the Plaintiff and to replace the confiscated 2nd defendant’s leasehold title, a permanent injunction restraining the Plaintiff and 1st defendant from accessing the suit property, general damages for trespass and loss of user, mesne profits of Ksh.5,500,000 annually from the year 2014, in the alternative and without prejudice, an order directing the defendants to reimburse the costs incurred as a result of processing and final issuance of the lease title.

Directions on hearing of the suits

37. Due to the multiplicity of suits filed over the suit parcel of land and for the purpose of expeditious disposal of the arising disputes, the Court on 30th June 2022 gave directions involving all the suits filed inter alia that;
A) ELC Case No. 4 of 2022 (formerly Kitui CMCC 209 of 2014) Machakos ELC 439 of 2017 and Kitui CMCC Land Case 15 of 2020) and No. 3 of 2021 (Formerly Machakos ELC 32 of 2020) be stayed pending hearing and final determination of ELC Case No. 12 of 2021 (Formerly Machakos ELC 40 OF 2019 and ELC case No. 29 of 2021(Formerly Machakos ELC E027 of 2021).
B) ELC Case No. 29 of 2021(Formerly Machakos ELC E027 of 2021) be consolidated and heard together with ELC Case No. 12 of 2021 (Formerly Machakos ELC 40 of 2019) with the lead file being ELC Case No. 12 of 2021.
C) ELC Judicial Review case No. 19 of 2021(Formerly Machakos ELC JR E1 of 2021) and ELC Judicial Review No.7 of 2021 be stayed pending hearing and final determination of ELC 29 of 2021(Formerly Machakos ELC E027 of 2021) and ELC Case No. 12 OF 2021 (Formerly Machakos ELC 40 of 2019).
The Hearing of the Suits
38. Hearing of the consolidated suits began on 21st September 2023. On the said date, the Counsel for the Plaintiff was not ready to proceed and applied for an adjournment. The Court declined to adjourn the hearing, and consequently, the Court dismissed the Plaintiff’s suits in ELC 12 OF 2021 and ELC 29 OF 2021 with costs to the 1st, 3rd and 4th defendants. The counterclaims in both cases proceeded to hearing.
39. PW 1, Hon. George Mutua Ndoto the 1st defendant in the two consolidated suits, testified and adopted his witness statement dated 13th March 2023 as evidence in chief. He also adopted his bundle of documents as evidence in support of his case.
40.  In his statement, he reiterated that the suit land was allocated to him by the Government of Kenya in 1989 by a letter of allotment dated 22nd June 1989. The land was then popularly known as Motel Site, Plot Number 35 and 534-Kitui Municipality as well as Block 1/680.
41. He stated that the suit property is now known as KITUI MUNICIPALITY BLOCK 1/658 and he has leased it out with temporary structures on the site to among others, the 3rd and 4th defendants in ELC 12 OF 2021, John Malinga Munywoki and Peter Muli.
42. He stated that the Plaintiff, Checker Oil Products Limited, the 2nd defendant, Samuel Kimondo Theuri, and their team of cartels caused the same land to be registered as KITUI MUNICIPALITY BLOCK 1/658 and a Certificate of Lease issued in the name of the 2nd defendant on 12th February 2010 and later to the Plaintiff on 15th August 2018.
43. He testified that he learned of the 2nd defendant’s claim to the suit property when he was informed by his tenants that officials from an unnamed financial institution had visited the land with the aim of carrying out a valuation. The officials of the Kitui Land Control Board also informed him that his property had been grabbed by the 2nd defendant, who had sought consent from them to charge the property for a loan.
44. The 1st defendant states that he sought assistance from various County and National Government offices, culminating in a detailed report dated 15th July 2014 written by one Lucy Waema over the suit property indicating that the suit property had been allocated to him. It further indicated that the County had even approved the subdivision of the plot into 7 plots in the year 2006.
45. The conclusion of the aforesaid investigations revealed that the creation of the title number Kitui Municipality Block 1/658 and the issuance of a lease to the 2nd defendant was illegal, fraudulent and unprocedural.
46. The said Chief Officer then wrote two letters dated 30th July 2014 to the Land Registrar Kitui advising him to place a prohibition on the title against any transactions as the matter had been forwarded to the National Land Commission, advising that the title/lease issued to the 2nd defendant be cancelled.
47. The 1st defendant also stated that the lease issued to the Plaintiff, Checker Oil Products Ltd dated 15th May 2018 was fraudulent since the said company was only incorporated to facilitate the grabbing of the suit land from him as the letter of allotment dated 25th June 1998 was issued to a non-existent entity since the said company was incorporated in the year 2001.
48. He therefore states that the suit property has been his since the year 1989, which he has occupied and used since then and he urged the court to allow his counterclaim as prayed.
49. Upon cross-examination by counsel for the Plaintiff, the 1st defendant stated that after being issued with the letter of allotment dated 22nd June 1989, he gave a written acceptance of the same and paid the requisite charges prescribed but did not attach a copy of the acceptance.
50. When referred to a letter dated 30th July 2014 from the Ministry of Lands, Infrastructure and Urban Development, he confirmed that he was the Speaker of the Kitui County Assembly but denied influencing the investigations referred to in that letter. He also confirmed that the restriction placed on the title was done by the County Government and not him.
51. The 1st defendant denied that the letter of allotment issued to him was ever withdrawn. That the report by the Chief Land Registrar was a confirmation of his ownership over the suit land, which he has been in possession of since the year 1989.
52. This evidence marked the close of the 1st, 3rd and 4th defendants’ case in ELC 12 of 2021 and the 1st Defendant in ELC 29 of 2021.
53. The 2nd defendant in ELC 29 of 2021, Samuel Kimondo Theuri, testified in support of his counterclaim adopting his witness statement dated 13th March 2023. He stated that he was offered by the Commissioner of Lands land parcel KITUI MUNICIPALITY BLOCK 1/658 via a letter of allotment dated 7th January 1997 for the construction of a Petrol service station. The Deed plan attached by the Director of Survey dated 3.6.1996 gave a comprehensive status of the suit land.
54. He stated that he accepted the terms of the allotment letter before the lapse of 30 days by paying the standing premium as well as the other charges. The 2nd defendant testified that he has been in peaceful and continuous occupation of the suit land having paid the relevant rates/rents and the amounts demanded under the various heads paid on the 5th day of January 2010.
55. On the 12th day of February 2010, he was issued with a certificate of lease over land parcel KITUI MUNICIPALITY BLOCK 1/658.
56. However, the 1st defendant sued him in the year 2014 in Machakos ELC 439/2017 claiming ownership of the land. He stated that the 1st defendant's allotment letter was not valid since his offer lapsed on 25th July 1993 due to his failure to communicate his acceptance within the stipulated time.

57. He further stated that the 1st defendant's suit is automatically time-barred since he waited over 17 years to claim the suit land.
58. Regarding the Plaintiff's letter of allotment and subsequent certificate of lease, he stated that they are irregular and/or fraudulently obtained hence null and void since they were obtained through collusion with the Chief Land Registrar, the Commissioner for Lands and the Director of Survey.
59. He also averred that the Director of Survey misused his office and sanctioned an illegal resurvey in 2005 with the intention of grabbing his land. He further stated that the report by the Land Registrar dated 21st December 2019 was false. He claimed that the confiscation of his lease certificate by the Kitui County Land Registrar during the pendency of Machakos ELC 439 of 2017 was illegal.
60. It was stated that the above fraudulent, unlawful and belligerent actions complained of against the Plaintiff are contrary to the provisions of Article 40 of the Constitution of Kenya on the property rights and pray that the court grants the prayers in his counterclaim.
61. The 2nd defendant also adopted his bundle of documents as evidence before the court as they appear on the list of documents.
62. Upon cross-examination, the 2nd defendant stated that he was not aware of a restriction on the suit land on account of fraud. He also stated that he confirmed acceptance of the letter of allotment within 30 days as required but did not have a receipt of an earlier date than the one dated 5/1/2010.
63. The 2nd defendant also confirmed that he had never occupied the suit land. He was also not aware that an inquiry was carried out on the ownership of the suit property, nor was he aware of the developments carried out by the 1st defendant.
The Plaintiff’s Written Submissions (Checker Oild Products Ltd).

64. Counsel refers to his client as the 2nd Defendant, but for ease of reference, the Court will maintain reference to Checker Oil Products Ltd as the Plaintiff, submitted that his client is the registered owner of the suit land by virtue of his Certificate of Lease. He cited sections 24 and 25 of the Land Registration Act on the rights of a registered proprietor.
65. Counsel summarized the role of a Land Registrar as elaborated in the cases of Lucy Wanjiku Mwangi(suing as the legal representative of the estate of Benson Mwangi Macharia) v. Chief Land Registrar & 2 others,
Republic v. Land Registrar Laikipia East District ex parte Joshua marete M’Kiambati & 7 Others (2021)eKLR.
66. Counsel also relied on the process of acquiring title after the letter of allotment as elaborated in the case of Ali Mohamed Dagane(Granted power of attorney by Abdullahi Muhammed Dagane) suing on behalf of the Estate of Mohamed Haji Dagane) v. Hakar Abshir & 3 others(2021)eKLR.
67. It was also submitted that upon the lapse of the offer contained in the allotment letter, the land was free to be allotted to someone else as was held in the case in William Rerimoi Lagat v. Dickson Kiprop Kebut(2023)eKLR.
68. Counsel submitted that the title of the suit land was investigated by the Deputy Land Registrar and the County Land Registrar, and the report dated 21st January 1998 confirmed that the suit land was originally allotted to the 1st defendant but he did not express acceptance and pay the requisite fees. Consequently, the letter of offer was withdrawn, and the suit land was allotted to the 2nd defendant on 25th June 1998.
69. He further stated that the Plaintiff paid the requisite fees, which were receipted on 13th August 2002 and the survey was done, which resulted in the signing of a sealed Registry Index Map by the Director of Survey on 30th June 2006, culminating in the lease document being issued to him.

70. Concerning the 2nd Defendant, the Plaintiff submitted that he was also invited to tender his documents before the Lands Registry in Kitui for verification and the plaintiff produced their ownership documents. It was discovered that there were no documents supporting the allocation of the suit parcel of land to the Plaintiff. Counsel relied on the case cited previously of Lucy Wanjiku Mwangi(suing as the legal representative of the estate of Benson Mwangi Macharia) v. Chief Land Registrar & 2 others and Republic v. Land Registrar Laikipia East District ex parte Joshua marete M’Kiambati & 7 others(2021)eKLR on the duty of a Land Registrar to retain each and every document used in the /registration of transactions to land.
71.  It was also highlighted that the 2nd Defendant did not produce the payment receipts for the suit land, nor did he produce a letter from the Chief Lands Registrar forwarding the lease to the Kitui Lands Registry for registration.
72. Counsel submitted that the verification exercise was entirely fair and transparent and in compliance with the constitutional requirement of fair administrative action.
73. Counsel submitted on the burden of proof in court cases being on the one who alleges as per Section 107 of the Evidence Act Cap 80 and relied on the holding in the case of Muchai v. Kinuthia(2023)eKLR and Yusuf v. Mohamed & another(2022)eKLR, stating that the allegations of fraud and collusion on the part of the 2nd defendant’s title were not proven. They therefore urged the court to dismiss the counterclaim against the 2nd defendant with costs.
Written Submissions of 1st, 3rd and 4th Defendants in ELC 12 OF 2021 and 1st Defendant in 29 of 2021 George Mutua Ndoto, John Malinga and Munywoki and Peter Muli

74. Counsel for the 1st, 3rd and 4th defendants relied on Section 26(1) of the Land Registration Act which provides that a certificate of title is prima facie evidence of ownership and can only be challenged on grounds of fraud, misrepresentation, illegality or on the ground that it was acquired unprocedurally through a corrupt scheme.
75. Counsel submitted that since the Plaintiff and the 2nd defendant in ELC 29 of 2021 each possess a different certificate of title, the court must carry out an investigation as was found in the case of Herbert I. Martin & 2 others vs. Margaret Kamar & 5 others(2016)eKLR.
76. Counsel highlighted that investigations by the Deputy Land Registrar determined that there is no record of any supporting prerequisite documents for the processing of a lease pertaining to the 2nd defendant.
77. Counsel submitted that there was overwhelming evidence in the documents produced in court in support of the 1st defendant’s ownership of the suit property, culminating with the letter dated 30th July 2014 to the National Land Commission.
78. Counsel relied on the holding of the Court of Appeal in Munyu Maina vs. Hiram Gatiha Maina(2013)eKLR and Alice Chemutai Too vs. Nickson Kipkurui Korir & 2 others(2015)eKLR on the removal of protection of title if obtained fraudulently.
79. It was highlighted that the first in line to receive a letter of allotment was the 1st Defendant, whose letter is dated 22nd June 1989, noting that he is the one in possession of the suit property since then. It was submitted that the 2nd defendant did not comply with the terms of the allotment letter issued to him dated 7th January 1997. It was also highlighted that the allotment letter to the plaintiff is dated 25th June 1998, while the Plaintiff's Company was incorporated in 2001, terming the plaintiff's acquisition of title as fraudulent and the same cannot stand. They relied on the holding of the Court on the case of Teresia Wangari Mbugua vs. Jane Njeri Nduati & another(2020)eKLR.
80. Their submission is that the oldest trail of ownership documents leads to the 1st defendant, noting that the Memo dated 1st July 2019 is unsigned and cannot be authentic. They relied on the cases of: Metian Kitaei Nkoboini Richard Salaton Torome(2011)eKLR, Republic-vs City Council of Nairobi & 3 others(2014)eKLR, Katana Kalume & Another vs. Municipal Council of Mombasa & another(2019)eKLR, among others.
81. Counsel for the 1st, 3rd and 4th defendants concluded that the Plaintiff and the 2nd defendant acquired the suit property unprocedurally and urged the court to dismiss the plaintiff’s claim with costs.
82.
The 2nd Defendant in ELC 29 of 2021 Written Submissions (Samuel Kimondo Theuri
83. Counsel for Samuel Kimondo Theuri, the 2nd Defendant in ELC 29 OF 2021 and the Counterclaim and 2nd Defendant in ELC 29 of 2021 submitted that their client is the registered proprietor of  Kitui Municipality Block 1/G58 Measuring 0.3464HA, issued vide a letter of allotment dated 7th January 1997.
84. It is the 2nd defendant’s case that after receiving the aforesaid letter of allotment, he had been in peaceful and continuous occupation of the suit land, been paying the relevant rates/rents, and when the offer was duly accepted, the amounts demanded under various heads were paid on the 5th day of January 2010. Thereafter on the 12th  day of February 2010, he was issued with a certificate of lease for the land property known as KITUI MUNICIPALITY BLOCK 1/658 proving the 2nd defendant was the absolute proprietor and indefeasible owner of the land property thereof.
85. That it was only on or about 25/07/2014 when for the first time, Hon. George Ndoto, the 1st Defendant herein sued him in Machakos ELC Case No. 439/2017 claiming ownership over the suit property on the strengths of a letter of allotment issued to him on 24’h June 1993, over 17 years to claim the suit land hence his suit is time barred ought to be dismissed with costs.
86. Their submission therefore is that the letter of allotment issued to the 2nd Defendant in the year 1998 and the subsequent certificate of lease for land title KlTUl TOWN BLOCK 1/658 issued to it on 23rd May 2018 was irregular, and/or fraudulently obtained through collusion with County officials, hence the same is null and void for all intent and purposes.
87. Counsel quoted Section 26 of the Land Registration Act, 2012, submitting that the Certificate of Lease is subject to challenge since the same was acquired through fraud or misrepresentation or has been acquired illegally, unprocedurally or through a corrupt scheme.
88. They submitted that under Section 2 of the repealed Government Lands Act, unalienated land was defined as Government land which was not for the time being leased or for which the Commissioner of Lands hadn't issued any letter of allotment. In this case, they submit that the pertinent procedure to obtaining a letter of allotment to obtaining a lease was not followed to the latter by either George Ndoto or Checker Oil Products Limited.
89. The 2nd defendant sets out their case that after a Letter of Allotment was issued to him on 7/01/1997, spelling out the conditions to be fulfilled, a Part Development Plan (PDP) of the area was subsequently drawn and approved by the local authority of the area, vide Deed Plan Ref No. KT1/29/96/12A. The  PDP was then forwarded to the Director of Physical Planning and thereafter the approvals were made, and the approved PDP together with the original Letter of Allotment were handed over to the 5th  Defendant, the Director of Surveys who prepared the Survey Plan as required by procedure.
90. Counsel submits that the other parties did not have a chronological chain of events leading to the issuance of the certificate of lease as the 2nd defendant has and relied on the cases of Dina Management Limited V County Government Of Mombasa & 5 Others (Petition 8(E010) Of 2021) [20231kesc 30 (KLR), Caroline Awinja Ochieng & Another V Jane Anne Mbithe Gitau & 2 Others [2015] eKLR, Torino Enterprises Limited V Attorney General (Petition 5(E006) Of 2022) [2023] Kesc 79 (KLR) andPeter Wariire Kanyiri V. Chrispus Washumbe & 2 Others, Environment and Land Court Case No. 603 Of 2017; [20221 eKLR
91.  Further, it is submitted that the 2nd Defendant's evidence is clear that it was incorporated as a limited liability company on 8th March 2001, while the letter of allotment that gave rise to their certificate of title which was issued on 25/06/1998, years before its date of incorporation, relying on the authority in the case of Mavoko Land Development Co. Ltd V Kasina Housing Scheme Society & 4 Others [2019] eKLR
92.   It was submitted that there was no explanation given by the 5th Defendant for the change of the plot size and that the 1st, 3rd and 4th Defendants could not authoritatively state why their allotted areas drastically changed in acreage and their RIM was amended. That there was no proper evidence led by the Defendants that was either placed before the Honourable Court to show that there existed a letter dated 28/04/2005 by the 4th Defendant the Commissioner of Lands requesting for a re-survey to be done in the year 2005 and no reasons have been given by the defendants as to why the re-survey was done
93. Counsel concluded that the Plaintiff and 1st, 3rd and 4th defendants colluded to issue new leases by a corrupt scheme perpetrated by way of conducting a re-survey in the year 2005 and with the cancellation of the 2nd defendant's title by the 3rd and 4th Defendants on allegations that the white cards used to create the 2nd  defendant's title were missing despite them being the lawful custodian of the Land Records as a flimsy excuse.

94.  On matters of general damages for trespass/loss of user, they relied on the authority by E. Obaga J in the case of Philip Ayaya Aluchio V Crispinus Ngayo [20141 eKLR where it held that the measure of damages for trespass is the difference in the value of the 2nd defendant's property immediately after the trespass or the costs of restoration, whichever is less.
95. The 2nd defendant argues that he has demonstrated that had he been granted an opportunity to make good his plan and construct his Petrol Service Station and/or Commercial Mall on his parcel of land, he would have been grossing between Kshs. 3,000,000/ = to 7,500, 000/=. Thus, he prayed for Mesne Profit of Kshs. 5,500,000/= annually from the year 2014 when the 1st Defendant and from the year 2019 when the Plaintiff herein respectively started laying claims and/or disrupted the 2nd  defendant's peaceful occupation and quiet enjoyment of his land property title KITUI MUNICIPALITY BLOCK 1/658 and prays for the compensation of this loss.
Analysis and Determination
96. The court has considered the pleadings in the two consolidated suits ELC No. 12 and 29 of 2021 between Checker Oil Products Ltd Versus George Mutua Ndoto, David Kiratu Ng’ang’a, John Malinga Munywoki, Peter Muli Samuel Kimondo Theuri and Chief Land Registrar, the evidence adduced during the trial and submissions by Counsel for the parties. The court considers the following as the issues arising for determination;
1) Whether the 1st defendant, George Mutua Ndoto, has a valid title to the suit property
2) Whether the 2nd Defendant, Samuel Kimondo Theuri, has a valid title to the suit property
3) Whether the 1st and 2nd Defendants are entitled to the orders they seek in the respective counterclaims.
4) Who will bear the costs of the suit and the counterclaims?
97. This is a suit where three parties claim ownership of the suit parcel of land KITUI TOWN BLOCK 1/658 measuring 0.3464 Ha. The Plaintiff Checker Oil Products Ltd filed the original two suits before the Court, ELC 12 of 2021 consolidated with ELC 29 of 2021. However, the Plaintiff’s suit was dismissed before the hearing commenced because they were not ready to prosecute their claim at the time, which leaves the court with the 1st defendant’s and 2nd defendant’s counterclaims.
98. In the Court’s view, the law relating to the issues at hand starts with the provisions of the Constitution of Kenya Article 40 which guarantees protection of the right to property in Kenya and states that;
(1) Subject to Article 65, every person has the right, either     individually  or in association with others, to acquire and own property—
(a) of any description and
(b)in any part of Kenya
93. In the present case, the Plaintiff and the 1st Defendant claim to have been issued with certificates of title, while the 1st Defendant claims ownership of the land by a letter of allotment of the same land that has been issued to two individuals over the same parcel of land while a  Interest conferred by registration.
94. The Land Registration Act CAP 300 Laws of Kenya provides for the legal effect of registration of land and Section 24 in particular state with regard to the rights conferred by registration of land; Subject to this Act—
(a)the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and
(b)the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.
95. Under Section 25 of the Land Registration Act on rights of a proprietor, the law states that;
(1)The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—
(a).to the leases, charges and other encumbrances and to the conditions  and restrictions, if any, shown in the register; and
(b).to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.
(2). Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.
96. Section 26 of the Land Registration Act provides that the Certificate of title to be held as conclusive evidence of proprietorship and states that;
  (1)The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a).on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b).where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
(2)A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.
99. When confronted with two title deeds issued on the same parcel of land, the Hon Justice Munyao Sila in Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others[2016] eKLR found 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 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:
100. Further, the Court of Appeal in Munyu Maina v. Hiram Gathiha Maina [2013] eKLR 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 the 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.”
101. It is thus imperative that the court interrogates and analyzes any document relied on by the parties to this suit to acquire and claim title or ownership thereof in order to prove the legality of how the titles were acquired and show that the acquisition was legal, formal and free from any encumbrances. The first document of ownership to be placed under consideration is the first one in time, the letter of allotment dated 22nd June 1989 issued to the 1st Defendant.
102. Plenty of court judgments have held that a mere letter of allotment does not per se confer ownership. The Supreme Court of Kenya in Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment)
“So, can an allotment letter pass good title? It is settled law that an
allotment letter is incapable of conferring interest in land, being nothing more than an offer, awaiting the fulfilment of conditions stipulated therein. In Dr Joseph NK Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others CA 60/1997 [unreported]; and in Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others HC Civil Case No 182 of 1992; [2008] eKLR, the superior courts restated this principle as follows:
“It has been held severally that a letter of allotment per se is nothing but an invitation to treat. It does not constitute a contract between the offerer and the offeree and does not confer an interest in land at all ” [Emphasis added].
The pronouncement in Gladys Wanjiru and Dr Joseph NK Arap
Ng’ok (supra) has been echoed in various Environment and Land Court decisions post the 2010 Constitution, including; Lilian Wanjeri Njatha v Sabina Wanjiru Kuguru & another, Environment and Land Case No 471 of 2010; [2022] eKLR; John Elias Kirimi v Martin Maina Nderitu & 4 others, Environment and Land Suit No 320 of 2011; [2021] eKLR; and Kadzoyo Chombo Mwero v Ahmed Muhammed Osman & 11 others, Environment and Land Case No 42 of 2021; [2021] eKLR, to mention but a few.
Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling the conditions therein. These conditions include but are not limited to the payment of a stand premium and ground rent within prescribed timelines. But even after the perfection of an allotment letter through the fulfilment of the conditions stipulated therein, an allottee cannot pass a valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter. In Peter Wariire Kanyiri v Chrispus Washumbe & 2 others, Environment and Land Court Case No 603 of 2017; [2022] eKLR, Kemei, J held as follows:“[15].In the case at hand, in the absence of any title registered in the name of the plaintiff, the court is unable to hold that the plaintiff is the registered proprietor of the land. This is because the letter of allotment lapsed within 30 days and the same is of no legal consequences” [Emphasis added].
61. While we agree with the general tenor of the learned Judge’s foregoing pronouncement, we remain uncomfortable with his inference that the allotment letter was of no legal consequence solely because it had lapsed after 30 days. We must reiterate the fact that an allotment letter in and by itself, is incapable of conferring a transferable title to an allottee. Put differently, the holder of an allotment letter is incapable of transferring or passing valid title to a third party on the basis of the allotment letter unless and until he becomes the registered proprietor of the land consequent upon the perfection of the Allotment Letter. It matters not therefore, that the allotment letter has not lapsed.
Whether the 1st defendant, George Mutua Ndoto, has a valid title to the suit property
103. The 1st defendant in both suits, George Mutua Ndoto, claims ownership of the suit land originally known as Motel Site, Plot Number 35 and 534-Kitui Municipality, also known as Block 1/680, through a letter of allotment dated 22nd June 1989 by the Government of Kenya. He stated that he has leased the land with temporary structures on the site to, among others, the 3rd and 4th defendants in ELC 12 OF 2021, John Malinga Munywoki and Peter Muli.
104. In support of his counterclaim, he produced in evidence the following documents;
A) Letter of allotment ref. No. 35382/VI/213 dated 22nd June 1989, issued by the Commissioner of Lands allotting UNS. Motel Site-Kitui Township and a copy of a map.
B) The defunct Municipal Council of Kitui demands outstanding payments from the 1st defendant dated 24th June 1993 (Kshs. 283,820/-) and 16th September 1994 (Kshs. 302,220/-)
C)  Demand for payment of the outstanding sum of Kshs 366,800 dated 29th September 1998 from Vanguard Credit Management Ltd as monies owed to the Municipal Council of Kitui.
D) Two letters from the defunct Municipal Council of Kitui addressed to the Permanent Secretary, Ministry of Lands and Settlement dated 23rd September 2002 and 28th December 2006, respectively, confirming that George Mutua Ndoto is the owner of the suit land by virtue of the letter of allotment.
E) Various requests for payment of rates.
F) Receipts for payment to the municipal Council of Kitui for Ksh.100,000 dated 4th May 2011 and for Ksh.400,000 dated 27th October 2006.
G) A letter dated 15th September 2010 from the Municipal Council of Kitui authorizing him to fence the plot, and another dated 16th January 2007 approving the sub-division of the suit plot into 7 portions.
H) Letter dated 15th July 2014 from the Office of the Clerk, County Assembly of Kitui, addressed to the County Government of Kitui, Ministry of Land Infrastructure and Urban Development.
I) Internal Memo dated 30th July 2014.
J) Letter from the Chief Officer, County Government of Kitui, addressed to the National Land Commission.
105. The 1st defendant accused the plaintiff of acts of fraud, deceit and misrepresentation since it was incorporated in 2001 while its letter of allotment was purportedly issued in 1998. The said allotment is also said to have been made when there was a letter of allotment over the same property issued to him thus, the property was not available for fresh allocation, and he and his tenants were in possession and occupation of the property.
106. The 1st defendant prayed for orders that the Plaintiff’s suit against him be dismissed, a declaration that the Plaintiff’s letter of allotment and Certificate of Lease in respect to KITUI MUNICIPALITY TOWN BLOCK 1/658 be cancelled and/or revoked, an order be issued that the 3rd defendant to issue a Certificate of Lease and/or title in respect to the suit property to the 1st defendant.
107. The details of the land allocated to the 1st Defendant are as shown in the letter of allotment and edged red on the attached plan No TR39/1/VI/185A measuring 0.46 for a term of 99 years from 1st July 1989. The letter required payment of Kshs 210,220 as stand premium and other charges. The said letter further stated that the grant of the plot was; “subject to your formal written acceptance of the following conditions and to payment of the charges as prescribed hereunder:-” Some of the conditions set out in the letter of allotment related acceptance of offer and payment stating, that “If acceptance and payment respectively are not received within 30 days from indicated that the same should be accepted and paid for within 30 days or else the offer will be considered to have lapsed.”
108. The 1st defendant did not produce any written acceptance of the offer contained in the letter of allotment. He also did not produce receipts of payment of the money required to be paid within  30 days. When cross-examined on this issue the 1st Defendant stated that he gave a written acceptance of the offer but had not attached it to his court documents.

109. On payments, the 1st Defendant produced letters of demand issued to him by the defunct County Council of Kitui dated 24th June 1993 and 16th September 1994 demanding payment of Ksh.283,620/= and Ksh.302,220/=, respectively. He exhibited receipts for Ksh.100,000 dated 4th May 2011 and another for Ksh.400,000 dated 27th October 2006, many years after the allotment letter was issued to him and obviously outside of the required 30-day period. It is noted that the demands for payment were made by the defunct County Council of Kitui and the payments were made to the same council. No payment was made to the Commissioner of Lands.
110. The court finds that the letter of allotment issued to the 1st Defendant dated 22nd June 1989 lapsed after 30 days since no formal written acceptance of the offer was made and no payment of the sum of Kshs 210,220 as the charges prescribed in the letter of allotment was made within 30 days or at all. The court further finds that the letter of allotment exhibited by the 1st Defendant was nothing but an invitation to treat and did not constitute a contract between the Commissioner of Lands and the 1st Defendant and did not confer an interest in the suit land at all. Upon expiry of the 30 days, the letter of offer was considered as having lapsed.
111.  It is the court’s finding that the letter of allotment issued to the 1st Defendant cannot form the basis for the issuance of orders in terms of prayer (d) in the counterclaim in ELC case number 29 of 2022 seeking an order directing the Chief Land Registrar or his agents, to issue a certificate of lease or title in respect of the suit property to the 1st Defendant.
112. The Court further finds that the letter of allotment issued to the 1st Defendant cannot form the basis for the grant of prayer ( c) in the Counterclaim in ELC case number 12 of 2021 which seeks an order directing the Land Registrar, Kitui County to issue to the 1st Defendant a fresh title in respect to the property known as plot number KITUI TOWN BLOCK 1/658.

Whether the 2nd Defendant Samuel Kimondo Theuri has a valid title to the suit property
113. The 2nd Defendant in ELC 29 of 2021 Samuel Kimondo Theuri claims ownership of the suit land and supports his counterclaim by producing the following documents;
A) Certificate of Lease dated 12th February 2010.
B) Letter of allotment dated 7th January 1997
A) Receipt for Ksh.45,800 dated 5/1/2010 and another for Ksh.6000 paid on 6th January 2015 as ground rent.
B) Valuation report dated 21st August 2014
C) Images of the suit land
D) Report dated 1st July 2019
E) Report dated 30th December 2019
F) Memo from the Director, Land Administration in the Ministry of Lands and Physical Planning addressed to the Cabinet Secretary dated 1st July 2019.
114. The 2nd defendant stated that the 1st defendant's letter of allotment and the Plaintiff's certificate of lease were obtained fraudulently and hence are null and void. He claimed that the Kitui County Land Registrar’s office had confiscated his title with illegitimate intentions. The 2nd defendant accused the Plaintiff of acting in collusion with the Chief Land Registrar, the Commissioner of Lands and the Director of Survey in engaging in a scheme to take possession of his land by conducting a re-survey in 2005. He avers that this re-survey exercise was unlawful, null and void.
115. Regarding the report made by the Land Registrar dated 31st December 2019 and the recommendations therein, the 2nd defendant terms it as a false report that offends the law and that it was extra-judicial, fraudulent, corrupt, made through mistake and misrepresentation of facts aimed at depriving him of land in favour of the Plaintiff without following the laid down procedures in law, contrary to the provisions of Article 40 of the Constitution.
116. The 2nd defendant prays in the counterclaim for a declaration that he is the absolute owner of the parcel of land known as KITUI BLOCK 1/658, a declaration that the lease issued to the Plaintiff was fraudulently and unprocedurally registered, an order directing the land registrar to revoke the said certificate of lease issued to the Plaintiff and to replace the confiscated 2nd defendant’s leasehold title, a permanent injunction restraining the Plaintiff and 1st defendant from accessing the suit property, general damages for trespass and loss of user, mesne profits of Ksh.5,500,000 annually from the year 2014, in the alternative and without prejudice, an order directing the defendants to reimburse the costs incurred as a result of processing and final issuance of the lease title.
117. The 2nd defendant was issued a letter of allotment dated 7th January 1998, Ref No. 35382/X for UNS. Petrol Service Station. The plot was shown on a plan attached to the letter of allotment No. KTI/29/96/12A, and the measurement of the plot was 0.347. The letter of allotment required payment of Kshs 45,800 as stand premium and other charges.  The said letter further stated that the grant of the plot is "subject to your formal written acceptance of the following conditions and payment of the charges as prescribed hereunder:-" Some of the conditions set out in the letter of allotment related to acceptance of offer and payment stating that “If acceptance and payment respectively are not received within 30 days from indicated that the same should be accepted and paid for within 30 days or else the offer will be considered to have lapsed.”
118. The 2nd defendant did not produce any written acceptance of the offer contained in the letter of allotment. He also did not produce receipts of payment of the money required to be paid under the letter of allotment made within 30 days. He produced receipts for Ksh.45,800 dated 5/1/2010 and another for Ksh.6,000 paid on 6th January 2015 as ground rent.
119. The 2nd Defendant was issued a Certificate of Lease from the Government of Kenya registered in his name dated 12th February 2010 for land parcel Kitui Municipality Block 1/658 for 99 days from 1st January 1997. He claims that by virtue of the Certificate of Lease issued he is the absolute and indefeasible owner of the land thereof, and he has been in occupation of the plot since allotment of the same.
120. The Plaintiff and the 1st Defendant challenged the said documents of title claiming that the same were obtained through fraud, or illegally unprocedurally or through a corrupt scheme.
121. The 1st Defendant claims that by the time the 2nd Defendant was allegedly issued with a letter of allotment on 7th January 1997, his own letter of allotment had been in existence since 22nd June 1998. Further, there was no acceptance of the offer contained in the letter of allotment and there was no payment of the charges demanded in the said letter of allotment in the time given or at all.
122. The Plaintiff also attacked the 2nd Defendant’s title, stating that the report by the Chief Land Registrar dated 30th December 2019 was made under the powers of the Chief Land Registrar under Section 14 (20 of the Land Registration Act. The said report concluded that the registration of the 2nd Defendant’s title was not supported by documents held in the correspondence file at the Lands registry. The report concluded that the 2nd Defendant was not the owner of the suit land.
123. Though the 2nd Defendant denied the claims by the Plaintiff and the 1st Defendant, he exhibited a Memo dated 1st July 2019 from the Director of Land Administration to the Cabinet Secretary, Ministry of Lands and Physical Planning, which gave a brief on the allotment of the suit land to the three claimants herein. It was recommended that the County Land Registrar summon the 2nd Defendant, Samwel Kimondo Theuri, to avail his documents leading to registration and issuance of his title to the suit property.
124. Subsequently, a report was made by the Deputy Chief Land Registrar addressed to the County Land Registrar dated 30th December 2019, showing that an investigation was carried out where the three claimants were summoned, and they produced their documents. The said investigations found as follows where it relates to the 2nd Defendant’s claim;
“ Though Samuel Kimondo Theuri is in possession of a lease document and Certificate of Lease, the same are not supported by all prerequisite documents for processing of a lease. The Letter of allotment that he produced is not in the correspondence file. He did not produce a payment receipt for the legal charges and stand premiums and a letter forwarding the lease to Kitui Land Registry for registration.
The White and Green Cards that are in the parallel file in Kitui Land  Registry in respect of Parcel Number Kitui Municipality Block1/658 in  the name of Samuel Kimondo Theuri were not processed legally and  should therefore be expunged from the record”
125. The Court has considered the powers of Land Registrars under section 14 (1) of the Land Registration Act, which states that;
The Chief Land Registrar, County Land Registrars or any other land  registrars may, in addition to the powers conferred on the office of the  Registrar by this Act—
(a) require any person to produce any instrument, certificate or other document or plan relating to the land, lease or charge in question, and that person shall produce the same;
(b) summon any person to appear and give any information or explanation in respect to land, a lease, charge, instrument, certificate, document or plan relating to the land, lease or charge in question, and that person shall appear and give the information or explanation;
(c) refuse to proceed with any registration if any instrument, certificate or other document, plan, information or explanation required to be produced or given is withheld or any act required to be performed under this Act is not performed;
(d) cause oaths to be administered or declarations taken and may require that any proceedings, information or explanation affecting registration shall be verified on oath or by statutory declaration; and
(e) order that the costs, charges and expenses as prescribed under this Act, incurred by the office or by any person in connection with any investigation or hearing held by the Registrar for the purposes of this Act shall be borne and paid by such persons and in such proportions as the Registrar may think fit.
126. Section 7 (1) of the Land Registration Act provides for what is to be kept in every  Land registry and states that;
There shall be maintained, in each registration unit, a land registry in which there shall be kept—
(a )  A land register in the form to be determined by the Commission;
(b)  the cadastral map; 
(c)  parcel files containing the instruments and documents that support subsisting entries in the land register; a land register
(d)  any plans which shall, after a date appointed by the Commission, be geo-referenced;
(e)  the presentation book, in which shall be kept a record of all applications numbered consecutively in the order in which they are presented to the registry;
(f)  an index, in alphabetical order, of the names of the proprietors; and (g) a register and a file of powers of attorney.
127. None of the parties to this suit deny that investigations were carried out by the Deputy Chief Land Registrar and the report dated 30th December 2019 was made. The report shows that the Plaintiff herein, the 1st and 2nd Defendants were summoned to present their documents to the Land Registry Kitui for verification and a hearing was conducted with the three parties participating and presenting their supporting documents. The report concluded that the suit land was originally allotted to the 1st defendant George Mutua Ndoto, but the letter of allotment was legally withdrawn by the Commissioner of Lands for failure to comply with the statutory conditions of allotment. The report states that the 1st Defendant is not the legal owner of the plot. The report further stated that the 1st Defendant’s rights initially established by the letter of allotment were extinguished for failure to meet the legal requirements.
128. The report found concerning the documents presented by the 2nd Defendant that he produced a letter of allotment dated 7th January 1997 and a lease dated 24th January 2006. However, the report stated that the same were not supported by all prerequisite documents for the processing of a lease and the correspondence file for plot Block 1/658 Kitui Municipality did not have any documents to support the allocation of the land to him. Further, the Deputy Chief Land Registrar found that the 2nd defendant’s letter of allotment was not in the correspondence file and he did not produce a payment receipt for the legal charges and stand premiums and a letter from the Chief Land Registrar forwarding the lease to the Kitui Land Registry for registration, which the Plaintiff had.
129. From the law set out on powers of Land Registrars, the Court finds that the Deputy Chief Land Registrar had the legal mandate to carry out the investigations that he undertook. The Court has noted that the 2nd Defendant produced in court mainly the same documents he produced before the Land Registrar and did not produce any documents to counter the findings of the investigations by the Deputy Chief Land Registrar. The Court asserts that it is not bound by the findings in the report dated 30th December 2019. However, the 2nd defendant produced in court a report whose findings cast doubt on the legality and the procedural propriety of his title documents but did not make any effort to allay the Court’s doubts about the said title.
130. The 2nd Defendant did not produce documents that would have been found in the Lands Registry correspondence file to support the allocation of the land to him. The 2nd Defendant, in his evidence in court and in his pleadings, confirms that as a result of the investigations, his certificate of lease was confiscated.
131. The Court thus finds that the 2nd Defendant did not prove to the required standard that he has a certificate of lease to land parcel number Kitui Town Block1/658 that was acquired legally and that he followed the laid down procedure in obtaining the same.
132. The Court further finds that the Certificate of lease in the name of the 2nd Defendant dated 12th February 2010 does not support the issuance of the orders sought under paragraphs (a), (c), (d), ( e), (f), (g) and (h) in the 2nd Defendant’s/Plaintiff in the counterclaim filed in ELC Case number 29 of 2021 seeking a declaration that the 2nd Defendant is the absolute owner of the suit parcel of land, the certificate of lease confiscated from him be returned, an injunction to issue against the Plaintiff and the 1st Defendant to restrain them from trespassing onto the suit land, General damages, mesne profits and alternatively reimbursement at commercial rates costs incurred in processing his title.

Whether the 1st and 2nd Defendants are entitled to the orders they seek in the respective counterclaims.

133. The 1st 3rd and 4th Defendants in ELC case number 12 of 2021 and the 2nd Defendant in ELC number 29 of 2021 in their counterclaims challenge the legality of the Certificate of Lease issued to the Plaintiff (Checker Oil Products Ltd) on 23rd May 2018 and the letter of allotment issued on 7th June 1998 stating that the same were obtained fraudulently, illegally, through mistake or misrepresentation and without following the legally laid down procedure.
134. The said 1st Defendant, George Ndoto, claims that when the letter of allotment was allegedly issued to the Plaintiff, there was an existing letter of allotment issued to him on 22nd June 1989, and he was already in possession. The 1st Defendant further claims that the letter of allotment was issued to a non-existent entity. They state that a Certificate of Lease issued to the Plaintiff was based on an illegal letter of allotment and was thus null and void and should be recalled and revoked. They seek orders of dismissal of the Plaintiff’s suit and cancellation of its title.
135. The 2nd Defendant in ELC number 29 of 2021, Samuel Kimondo Theuri, claims that at the time when the letter of allotment was allegedly issued to the Plaintiff on 25th June 1998, there was an existing letter of allotment issued to him on 7th January 1997 and he was already in possession of the land. The letter of allotment and the Certificate of Lease were issued through collusion with persons in the officials at the Ministry of Lands.
136. He thus sought orders that the title issued to the Plaintiff was issued fraudulently and unprocedurally, cancellation of the title issued to the Plaintiff, an injunction to issue against the Plaintiff and the 1st Defendant to restrain them from trespassing onto the suit land, General damages, mesne profits and alternatively reimbursement at commercial rates costs incurred in processing his title.
137. As stated earlier, the Plaintiff’s suit was on 21st September 2023 dismissed. The Court proceeded and heard the counterclaim by the 1st, 3rd and 4th Defendants in ELC case number 12 of 2021 and the 1st Defendant in ELC 29 of 2021. The Plaintiff did not adduce any evidence in defence of the counterclaims.
138. In essence, the averments made by the Plaintiff remain mere averments since no evidence was adduced to prove them. Further, it is trite law that If documents are not formally produced and proved in court, they lack evidential value and can be considered hearsay, untested, and unauthenticated. The Court of Appeal in the case of Kenneth Nyaga Mwige vs Austin Kiguta and 2 others [2015] eKLR had this to say on the production of documents.
“The mere marking of a document for identification does not dispense with the formal proof. How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party passes through three stages before it is held proved or disproved. First, when the documents are filed, the documents though on the court file does not become part of the judicial record.”
139. In order to succeed in their counterclaims against the Plaintiff, the 1st, 3rd and 4th Defendants in ELC number 12 of 2021 and the 2nd Defendant relied heavily on the documents filed in court by the Plaintiff. They, therefore, did not independently produce evidence documents challenging the Plaintiff's title.
140. In the Court's assessment of the evidence on record, the only documentary evidence that touches on the Plaintiff's documents of title to the suit land were some of those produced by the 2nd Defendant, Samuel Kimondo. The documents were the Memo from the Director of Land Administration to the Cabinet Secretary, Ministry of Lands and Physical Planning, dated 1st July 2019, and the report dated 30th December 2019 by the Deputy Chief Land Registrar discussed earlier in this judgment.
107. With regard to the Plaintiff’s case, the report concluded that the suit land was originally allotted to the 1st defendant, George Mutua Ndoto. However, the letter of allotment was legally withdrawn by the Commissioner of Lands for failure to comply with the statutory conditions of allotment. The report states that the 1st Defendant is not the legal owner of the plot. The report further showed that Plaintiff was allocated the land on 21st January 1998 after applying for it. The Plaintiff produced documents in support of the claim to the land and it was concluded that all the documents produced were supported by the records in the correspondence file. It was further found that there existed a parcel file for the land in the registry with a copy of the White and Green Card in the name of Checker Oil Products Ltd.
108. The report concluded that Checker Oil Products Ltd was in possession of a Certificate of Lease, which was processed legally and is therefore the lawful owner of the plot.
109. The Court has looked at the documents the Plaintiff presented to the Deputy Chief Land Registrar during the hearing of the dispute. They were a letter of allotment, Certificate of Incorporation, Copy of Part Development plan, copy of payment receipt of legal fees and stand premium, letter from the Director Survey to the Commissioner of Lands forwarding the amended Registry Index Map, the Registry Index Map, copy of lease document, copy of letter from the Chief Land Registrar forwarding the lease to Kitui Land Registry for registration, copy of certificate of lease in the name of Checker Oil Products Ltd.
110. The Plaintiff, however, chose not to present to the court the above documents. This Court finds that even though the Chief Land Registrar carried out investigations as summarized above, the Plaintiff had an obligation to attend court to testify and present in evidence the documents for examination to enable the Court to arrive at its own independent conclusion as to the legality of the process undertaken in issuing the ownership documents.  The Court further notes that the documents listed in the Chief Land Registrar’s report as having been presented to them by the Plaintiff do not satisfy the requirements of the law under the Government Lands Act (now repealed).
111. The Chief Land Registrar's report does not include a letter applying for a grant of the suit land, a Letter of acceptance of the offer of allotment and payment of the stand premium and other charges within the stipulated period. The report has also not shown Compliance with Sections 3, 12 and 13 of the Government Land Act by proof of 12 and 13 of the Government Lands Act.
112. Further, the Plaintiff did not show to the Court that there was any Part Development Plan.
113. Courts of law have confirmed over time that following the provisions of Article 40 of the Constitution of Kenya and Section 26 of the Land Registration Act, the registration of title to land is absolute and indefeasible to the extent firstly that the creation of such title was in accord with the applicable law and secondly where it is demonstrated that such registration was not procured through fraud and misrepresentation to which the person or body which claims and relies on has not himself or itself been involved in. See Nairobi High Court Civil Suit No. 1024 of 2005(O.S), Milankumar Shah & 2 others v The City Council of Nairobi & another.
114.  In Daudi Kiptugen v Commissioner of Lands & 4 Others [2015] eKLR the court stated that:
“…the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process, the title itself cannot be a good title.  If this were not the position then all one would need to do is to manufacture a Lease or a Certificate of title at a backyard or the corner of a dingy street, and by virtue thereof, claim to be the rightful proprietor of the land indicated therein.”  
115. The Hon Justice Cherono gave a detailed analysis of the law regulating the power to dispose of public land in the case of Ali Mohamed Dagane (Granted Power of Attorney by Abdullahi Muhumed Dagane, suing on behalf of the Estate of Mohamed Haji Dagane) v Hakar Abshir & 3 others [2021] eKLR as cited by counsel for the 2nd defendant as here below:
“Power to dispose of public land was vested in two entities: The President and the Commissioner of Lands, under Sections 3 and 9 respectively. The process of the disposition of government land followed the following procedure: First, the respective municipal council in which the land to be disposed was situated had the mandate of advising the Commissioner of Lands on which portions of land could be disposed. This step would have required the responsible council to visit the area or to carry out a fact-finding mission to satisfy itself that the land was first of all government land and second that it was indeed available for disposition. See Harison Mwangi Nyota v Naivasha Municipal Council & 20 others [2019] eKLR
“…The question that the plaintiff seemed to raise is what role the Municipal Council of Naivasha had in the issuance of allotment letters to the defendants in 1992.  According to DW1, an employee of the 1st defendant, the local authority (1st defendant) has to recommend that the land is available for allocation before an allotment letter can be issued.  DW13 also told the court that the Council oversees all developments in its jurisdiction and allocates land on an advisory basis for the Commissioner. It seems that even if the 1st defendant issued the letters dated 1/12/1992, it was mere advisory to the Commissioner of Lands.  The allotment of the land had to be ratified by the Commissioner for Lands.  It is obvious even from the communication between the Municipal Council and the Office of the Commissioner of Lands that the Council played an important role in identifying what land was available for purposes of alienation.”
The second step would be for the part development plan to be drawn up and approved by the Commissioner of Lands. See Nelson Kazungu Chai & 9 Others vs. Pwani University College (2014) eKLR
“It is trite law that under the repealed Government Lands Act, a Part Development Plan must be drawn and approved by the Commissioner of Lands or the Minister of Lands before any unalienated Government land could be allocated. After a Part Development Plan (PDP) has been drawn, a letter of allotment based on the approved Part Development Plan is then issued to the allottee.”
The third step involved the determination of certain matters by the Commissioner of Lands which matters are listed under Section 11 of the Government Lands Act (Repealed). The matters to be determined include the upset price at which the lease of the plot would be sold, the conditions to be inserted into the lease, the determination of any attaching special covenants and the period into which the term is to be divided and the annual rent payable in respect of each period.
The fourth step would be for the gazettement of the plots to be sold, at least four weeks prior to the sale of the plots by auction under Section 13 of the Government Lands Act (Repealed). The notice was required to indicate the number of plots situate in an area; the upset price in respect of every plot; the term of the lease and rent payable, building conditions and any attaching special covenants.
The fifth step would be for the sale of the plots by public auction to the highest bidder. Section 15 of the Government Lands Act (Repealed).
The sixth step would be for the issuance of an allotment letter to the allotee. An allotment letter has been held not to be capable of conferring an interest in land, being nothing more than an offer, awaiting the fulfilment of the conditions stipulated therein by the offeree. See the decisions in: Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others 182/1992 (Nyeri); and in Dr. Joseph N.K. Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others C.A.60/1997 where the Court of Appeal held as follows:
“It has been held severally that a letter of allotment per se is nothing but an invitation to treat.  It does not constitute a contract between the offerer and the offeree and does not confer interest in land at all.  It cannot thus be used to defeat a title of a person who is the registered proprietor of the said parcel of land.”
In order for an allotment letter to become operative, the allotee was required to comply with the conditions set out therein, including the payment of stand premium and ground rent within the prescribed period. See the decision in: Mbau Saw Mills Ltd v Attorney General for and on behalf of the Commissioner of Lands) & 2 others [2014] eKLR
“I have considered the evidence on record and the submission of the parties and do find that a letter of allotment was issued to Mr. Joseph K. Mugambi on 21/10/1971 with a condition to accept the offer within 30 days.  He did not do so and thereafter, the offer lapsed 30 days after it was made in accordance with the allotment letter.  Having failed to accept the offer as stipulated in the letter of allotment, Mr. J.K. Mugambi did not acquire interest in the unsurveyed lorry depot and, therefore, had no interest to transfer to the plaintiff.  This court holds that a letter of allotment does not confer any property rights to a person unless there is acceptance and payment of the stand premium and ground rent.  In the letter dated 17/6/1988 which was written about 17 years after the allotment letter was issued, the Commissioner of Lands confirmed that the plot was allocated to Joseph M. Mugambi in 1971 for lorry depot.  However, the plot had neither been paid for nor an acceptance of the offer in the allotment letter made.  The implication of this letter was that the allottee had not complied with the terms of the allotment letter, and therefore, the offer had lapsed.  The offer having lapsed, the allottee Mr. Joseph M. Mugambi did not have any interest to transfer to the plaintiff and therefore all transactions between the allottee and the plaintiff were a nullity in law.”
The allotment letter also must have attached to it a part development plan (PDP). See the decision in African Line Transport Co. Ltd Vs The Hon .AG, Mombasa HCCC No.276 of 2013, where Njagi J held as follows:
“…Secondly, all the defence witnesses were unanimous that in the normal course of events, planning comes first, then surveying follows.  A letter of allotment is invariably accompanied by a PDP with a definite number.”
And again, in Nelson Kazungu Chai & 9 Others vs. Pwani University College (2014) eKLR
“Worth noting as well is that no Part Development Plan was produced to back the Appellants’ claim that due process had been followed as alleged.”
The seventh step, which comes after the allotee has complied with the conditions set out in the allotment letter, is the cadastral survey, its authentication and approval by the Director of Surveys and the issuance of a beacon certificate. The survey process precipitates the issuance of land reference numbers and, finally the issuance of a certificate of lease. Nelson Kazungu Chai & 9 Others vs. Pwani University College (2014) eKLR the court held as follows:
‘It is only after the issuance of the letter of allotment, and the compliance of the terms therein, that a cadastral survey can be conducted for the purpose of issuance of a Certificate of Lease.  This procedural survey was confirmed by the Surveyor, PW3.  The process was also reinstated in the case of African Line Transport Co. Ltd Vs The Hon .AG, Mombasa HCCC No.276 of 2013 where Njagi J held as follows:
“Secondly, all the defence witnesses were unanimous that in the normal course of events, planning comes first, then surveying follows.  A letter of allotment is invariably accompanied by a PDP with a definite number. These are then taken to the department of survey, who undertake the surveying.  Once the surveying is complete, it is then referred to the Director of Surveys for authentication and approval. Thereafter, a land reference number is issued in respect of the plot.”
Having evaluated in detail the necessary steps to be followed, it is emergent that a litigant basing their interest in land on the foundation of an allotment letter must provide the following proof: First, the allotment letter from the Commissioner of Lands; Secondly, and attached to the allotment letter, a part development plan; Thirdly, proof that they complied with the conditions set out in the allotment letter, primarily that the stand premium and ground rent were paid, within the specified timeline. It would also help a litigant’s case, although this may not be mandatory based on the stage of the transaction, to have a certified beacon certificate.”
116. It is common ground that the suit parcel of land was government land located within the Municipal Council of Kitui. The process of acquisition of public land prior to the promulgation of the Constitution of Kenya 2010 was, set out under the Government Land Act Cap.280 Laws of Kenya (now repealed). Section 3(a) of the Government Lands Act,  provides that;
“The President, in addition to, but without limiting, any other right, power or authority vested in him under this Act, may—
a). subject to any other written law, make grants or dispositions of any estates, interests or rights in or over unalienated government land;”
116. Section 7 of the Government Lands Act provided that:
“The Commissioner or an officer of the Lands Department may, subject to any general or special directions from the President, execute for and on behalf of the President any conveyance, lease or licence of or for the occupation of Government lands, and do any act or thing, exercise any power and give any order or direction and sign or give any document, which may be done, exercised, given or signed by the President under this Act:
Provided that nothing in this section shall be deemed to authorize the Commissioner or such officer to exercise any of the powers conferred upon the President by sections 3, 12, 20 and 128.”
117. Under Part III of the Government Lands Act, land in townships could only be disposed of by the Commissioner of Lands through a public auction that had to be advertised in the Kenya Gazette in which the terms of sale had to be set out. See sections 9 to 18B of the Act. It is not disputed that the suit plot was not allocated to any of the parties through the public auction procedure that was provided for in law.
118. After considering the evidence of the 1st and 2nd Defendants who are Plaintiffs in the two counterclaims, none of them has produced evidence to show that the President, in exercise of powers under Section 3(a) of the Government Lands Act allocated them the suit plot. Further none of the claimants have shown any communication applying to be granted the suit land. The Plaintiff herein has also not shown evidence of compliance with the provisions of the Government Lands Act.
119. The Supreme Court in the case of Dina Management Limited v County Government of Mombasa & 5 others (2023) eKLR, held
120. “We are careful to note that this Court has no jurisdiction to revisit the factual findings of the superior courts, and we are limited to the Court’s jurisdiction under Article 163(4)(a) in this case. It has not been disputed that indeed there was no evidence produced of the letter to the Commissioner of Lands seeking allocation of the suit property by the first registered owner, and there was no PDP before the survey was done. We therefore agree with the trial court and the appellate court that the allocation of the suit property to H.E. Daniel T. Arap Moi was irregular.”
120. Further, the Plaintiff, 1st and 2nd Defendants did not show that the plot herein was sold to any one of them through a public auction as envisaged under Sections 9, 12 and 13 of the Government Lands Act.
(9) The Commissioner may cause any portion of a township which is not required for public purposes to be divided into plots suitable for the erection of buildings for business or residential purposes, and such plots may from time to time be disposed of in the prescribed manner.
12. Leases of town plots shall, unless the President otherwise orders in any particular case or cases, be sold by auction.
13. The place and time of sale shall be notified in the Gazette not less than four weeks nor more than three months before the day of sale, and  the notice shall state—
121. Following the procedure set out in the Ali Mohamed Dagane case (supra), and on the question of involvement of the former Municipal Council of Kitui in which the land to be disposed of was situated, the case of Harison Mwangi Nyota v Naivasha Municipal Council & 20 others [2019] eKLR explained that the Council had the mandate of advising the Commissioner of Lands on which portions of land could be disposed. The Plaintiff, 1st Defendant and 2nd Defendants did not exhibit any communication from the Council before the issuance of the letter of allotment indicating that the suit land was available. The 1st Defendant, in his defence, stated that he was allocated the land through a presidential decree. The said decree was not exhibited.
121. The 1st, 2nd and 3rd Defendants further challenged the legality of the Plaintiff's title on the ground that the Plaintiff was not incorporated as a legal entity at the time when they purport to have been allocated the plot on 25th June 1998, stating that the Plaintiff was incorporated on 8th March 2001.  The Plaintiff did not place any evidence before the court to discount this assertion by the Defendants. The Plaintiff produced the certificate of incorporation before the Deputy Chief Land Registrar but did not produce the same in court. The court thus finds the 1st Defendant’s assertion to be true. 
121. In finding that a company that has not been incorporated could not hold title to land, Obaga J. in the case of Ubora Housing Co-operative Society Ltd v Trippel Two Properties Limited & 5 others; Angut Muumbi Munyao & another (on his behalf & on behalf of 82 others (Interested parties) [2021] eKLR held;
"The title held by Jena was registered on 7th September 1994. As at the time of registration, Jena had not been incorporated. It was incorporated on 4th May 1998. It is therefore not possible that a company which had not been incorporated could hold land in its name. In the case of Charles Karaithe Kiarie & 2 Others Vs Administrators of the Estate of John Wallace Mathare (Deceased) & 5 Others (2013) eKLR, the Court of Appeal stated as follows: -
“Further, having found as a fact that the company did not exist when it was purportedly registered as the owner of the property, we think the learned trial judge was right in holding that a non-existent company could not hold title".
122. From the foregoing, the court is satisfied that the Plaintiff did not follow the procedure clearly set out in law for the allocation of land issuance of a letter of allotment, lease and the Certificate of Lease. The Court finds that the certificate of Lease issued to the Plaintiff on 23rd May 2018 was obtained illegally, without following the legally laid down procedure.
123. The fate of a Certificate of Lease obtained in contravention of the law was made clear in the case of Kenya Industrial Estates Limited v Anne Chepsiror & 5 others [2015] eKLR by Munyao Sila J:
“So long as a title is acquired illegally, unprocedurally, or through a corrupt scheme, it matters not that the title holder is an innocent purchaser for value. This has been held in various authorities including the decision of Mutungi J, in the case of Esther Ndegi Njiru & Another v Leonard Gatei, Nairobi ELC No.128 of 2011, (2014) eKLR. The title of Hosea Ruto is therefore liable to be cancelled.”
Conclusion
From the foregoing analysis of the pleadings, evidence adduced and the law, the court makes the following conclusions and findings;
141. The court finds that the letter of allotment issued to the 1st Defendant, George Mutua Ndoto, dated 22nd June 1989, lapsed after 30 days since the 1st Defendant failed to comply with the terms and conditions set out in the letter of allotment. The 1st Defendant further failed to prove to the court that he followed the procedure laid down in law for the allotment of Government land.
142.  It is the court’s finding that the letter of allotment issued to the 1st Defendant cannot form the basis or support the issuance of orders in terms of prayer (d) in the counterclaim in ELC case number 29 of 2022 seeking an order directing the Chief Land Registrar or his agents, to issue a certificate of lease or title in respect of the suit property to the 1st Defendant.
143. The Court further finds that the letter of allotment issued to the 1st Defendant cannot form the basis or support the grant of prayer ( c) in the Counterclaim in ELC case number 12 of 2021 which seeks an order directing the Land Registrar, Kitui County to issue to the 1st Defendant a fresh title in respect to the property known as plot number KITUI TOWN BLOCK 1/658.
144. Concerning the 2nd Defendant, Samuel Kimondo Theuri’s counterclaim, the Court finds that he did not prove to the required standard that the Certificate of Lease to land parcel number Kitui Town Block1/658 dated 12th February 2010 was acquired legally and/or obtained by following the legally laid down procedure.
145. The Court further finds that the Certificate of lease in the name of the 2nd Defendant dated 12th February 2010 does not support the issuance of the orders sought under paragraphs (a), (c), (d), ( e), (f), (g) and (h) in the 2nd Defendant’s/Plaintiff in the counterclaim filed in ELC Case number 29 of 2021 seeking a declaration that the 2nd Defendant is the absolute owner of the suit parcel of land, the certificate of lease confiscated from him be returned, an injunction to issue against the Plaintiff and the 1st Defendant to restrain them from trespassing onto the suit land, General damages, mesne profits and alternatively reimbursement at commercial rates costs incurred in processing his title.
146. Concerning the orders sought in the counterclaims by the 1st and 2nd Defendant against the Plaintiff, the court is satisfied that the Plaintiff did not follow the procedure clearly set out in law for the allocation of land, issuance of a letter of allotment, lease and the Certificate of Lease. The Court finds that the certificate of Lease issued to the Plaintiff dated 23rd May 2018 was obtained illegally, without following the legally laid down procedure.
147. The final Orders of the Court are as follows;
1) ELC NO. 12 OF 2021 Checker Oil Products Limited-Versus-George Mutua Ndoto, David Kiratu Ng’ang’a, John Malinga Munywoki and Peter Muli
A) The Plaintiff's suit be and is hereby dismissed.
B) The 1st, 3rd and 4th Defendants counterclaim is allowed partly as follows;
I) The Certificate of Lease dated 23rd May 2018 issued to the Plaintiff, Checker Oil Products Ltd, in respect of plot Number KITUI TOWN BLOCK 1/685 be and is hereby cancelled.
II) Prayer 2 is hereby dismissed.
2) ELC NO. 29 OF 2021 Checker Oil Products Limited -Versus-George Ndoto, Samuel Kimondo Theuri and Chief Land Registrar
C) The Plaintiff's suit against the Defendants be and is hereby dismissed.
D) The 1st Defendant, George Mutua Ndoto’s, counterclaim partly succeeds in the following terms;
I) A declaration be and is hereby issued that the letter of allotment issued to the Plaintiff Checker Oil Products Ltd in respect to land parcel number KITUI TOWN BLOCK 1/658 on 25th June 1998 before the Plaintiff was lawfully incorporated is null and void and that all documents of either validation or ownership of the suit property issued pursuant to the said letter of allotment be and are hereby invalidated and/or revoked.
II) The certificate of Lease issued to the Plaintiff (Checker Oil Products Ltd) in respect to land parcel KITUI BLOCK 1/658 be and is hereby cancelled.
III) Prayer (d) of the counterclaim be and is hereby dismissed.
E) The 2nd Defendant, Samuel Kimondo Theuri’s, counterclaim against the Plaintiff  partly succeeds in the following terms;
I) Prayers (a), (c), (d), (e), (f), (g), and (h) be and are hereby dismissed.
II) A declaration be and is hereby issued that the land known as KITUI TOWN BLOCK 1/658 was illegally and unprocedural registered in the name of the 2nd Defendant.
F)  The 2nd Defendant’s counterclaim against the 1st, 4th and 5th Defendants to the counterclaim be and is hereby dismissed.
G) The order issued on 21st September 2023 directing the Plaintiff to pay costs of the two suits be and is hereby reviewed and each party is directed to pay their own costs of the suit and the counterclaim.

Judgement Dated, Signed and Delivered at Nyeri this 13th Day of March 2025