R U L I N G
1. This ruling is in respect of the Notice of Motion Application dated 3 rd June 2026 filed on behalf of the Defendant/Applicant and expressed to be brought pursuant to the provisions of sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and sections 26 and 80 of the Land Registration Act.
2. The Application seeks orders that: -
a. The Court be pleased to expunge from the record the title deed relating to the suit parcel known as KERICHO/CHEMAGEL/1401 in the name of the Respondents registered on 23 rd March, 2012 for being founded on fraud.
b. The Court be pleased to order the cancellation of the Plaintiffs’ purported registration as per the title deed issued to them on 23 rd March, 2012 for the suit land known as KERICHO/CHEMAGEL/1401 pursuant to Section 26(1)(a) and rectification of the register to revert to the deceased Philip Kirui as per Section 80 of the Land Registration Act.
c. The Honourable Court be pleased to find that the Plaintiffs’ claim founded on the fraudulently acquired title deed is incompetent, untenable and an abuse of the Court process and proceed to dismiss the same with costs.
d. The costs of the Application be provided for.
3. The grounds upon which the Application was brought are that:
a) Pursuant to the Court Order dated 2 nd December, 2024, a report was filed on investigations which were conducted by the Directorate of Criminal Investigation (DCI) into the authenticity of the Plaintiffs’ title deed issued to them on 23 rd March, 2012 for the suit parcel registered as KERICHO/ CHEMAGEL/1401.
b) That the report dated 4 th August, 2025 was produced on 29 th April, 2026 and that the report established and concluded that the Plaintiffs’ title deed is a result of fraud.
c) That additionally, the County Land Registrar Bomet, through a letter dated 17 th January, 2025, confirmed that there are no supporting registration documents in the Land Registry Records relating to the suit parcel, which document was jointly produced with the report and formed part of it.
d) That the finding of the DCI Report dated 4 th August, 2025 and the sentiments of the Land Registrar collectively demonstrate fraud, illegality and procedural impropriety in the acquisition of the Plaintiffs’ purported title.
e) That under section 26(1)(a) and (b) of the Land Registration Act, a title deed obtained through fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme is not protected by the law.
f) It is in the interest of justice that the forged title deed be expunged from the record, and the Application be allowed.
4. The Application was supported by the averments in the Supporting Affidavit sworn by the Defendant on 3 rd June, 2026 and the annexures thereto.
5. The Application was opposed. The Respondents /Plaintiffs filed a Replying Affidavit sworn by the 1 st Plaintiff/Respondent on behalf of herself and the other two Respondents/Plaintiffs on 22 nd June 2026. The case of the Plaintiffs is that the Application is misconceived, bad in law, res judicata , an abuse of the court process, and a calculated attempt to arrest delivery of the judgment in a matter that has been pending in court since the year 2014. That the Application seeks final substantive orders of expunging/cancelling the Plaintiffs’ title through an interlocutory motion filed after the close of the hearing. That the Plaintiffs will suffer grave prejudice if the Application is entertained because it will re-open a suit whose hearing has already been concluded and will further delay the matter. That the Application offends the overriding objective of the Court and undermines the just, expeditious, proportionate and affordable resolution of dispute.
6. The Applicant filed written submissions dated 6 th July, 2026; in addition, oral submissions in support of and in opposition to the Application were made by Counsel on behalf of their respective clients.
7. I have read and considered the application, the opposition thereto and the submissions made. I have perused the file and taken note of the history of the suit. I note that it was commenced in the year 2014 and that the same is yet to be finalized. The record shows that on 29 th April 2026 the evidence was closed and the Court gave directions on the filing of closing submissions before a date for delivery of the judgment could be given.
8. The Applicant seeks that the Plaintiffs’ title be expunged from the record and/or be cancelled. The Applicant relies on the provisions of sections 26(1)(a) and (b) and 80 of the Land Registration Act. Section 26(1) (a) and (b) provide for the sanctity of title and the instances where title to land may be impeached as follows:
“1. The Certificate of title issued by the Registrar upon registration, or to a purchaser upon transfer or transmission by the proprietor shall be taken 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, un-procedurally or through a corrupt scheme.”
9. Section 80 deals with rectification of the register of land by the court as follows:
“1. Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud,
2. The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.”
10. The process of proving the grounds for impeachment of the title to land or rectification of the register by court can, however, not be by way of summary procedure. It requires evidence of the fraud, mistake, omission or corrupt scheme to be produced at a hearing; it requires the title holder to be given a chance to respond to and interrogate the evidence; and it requires the court to analyze the evidence, make findings thereon and decide. This is because the standard of proof of allegations of fraud, illegality or a corrupt scheme is higher than the proof on a balance of probabilities in ordinary civil cases. In Koinange & 13 others vs Charles Karuga Koinange 1986 KLR at page 23, the court held that:
“When fraud is alleged by the Plaintiffs, the onus is on the Plaintiffs to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt; something more than a balance of probabilities is required.”
11. Similarly, in the case of Kinyanjui Kamau vs George Kamau [2015] eKLR, the court dismissed the appeal as it was not demonstrated that the appellants had proved fraud to the required standard and stated that:
“It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008)1KLR (G & F) 742, wherein the court stated that “... we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove the allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely, proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases.” In a case where fraud is alleged, it is not enough to simply infer fraud from the facts.
In my view, this standard of proof cannot be achieved through an interlocutory application as in the one before the court.
12. The status of the suit is that the process of production and interrogation of the evidence by the parties has already been completed. The impugned title deed, the DCI report and the communication from the Land Registrar are all part of the evidence in the matter. What remains is the analysis of the evidence, findings and decision on the case by the court. In the circumstances, the correct thing to do is to allow delivery of the judgment for exhaustive and final determination of the issues in the suit and the rights of the parties. The title deed, DCI Report and the letter by the Land Registrar, being some of the exhibits produced in the case, will be considered alongside other evidence adduced in deciding the case.
13. For the foregoing reasons, the court finds that the Application lacks merit with the result that;
i. The Application is dismissed.
ii. Costs to the Plaintiffs.
Orders accordingly.
Ruling delivered, dated and signed at Bomet and delivered virtually this 17 th day of September, 2026.
HON E. ASATI,
JUDGE.
In the presence of:
Court Assistant.
For the Plaintiffs/Respondents.
For the Defendant/Applicant.
BOMET ELC ELC LC NO. E063 OF 2026 – RULING BOMET ELC ELC LC NO. E063 OF 2026 – RULING BOMET ELC ELC LC NO. E063 OF 2026 – RULING BOMET ELC ELC LC NO. E063 OF 2026 – RULING 1111
1. This ruling is in respect of the Notice of Motion Application dated 3 rd June 2026 filed on behalf of the Defendant/Applicant and expressed to be brought pursuant to the provisions of sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and sections 26 and 80 of the Land Registration Act.
2. The Application seeks orders that: -
a. The Court be pleased to expunge from the record the title deed relating to the suit parcel known as KERICHO/CHEMAGEL/1401 in the name of the Respondents registered on 23 rd March, 2012 for being founded on fraud.
b. The Court be pleased to order the cancellation of the Plaintiffs’ purported registration as per the title deed issued to them on 23 rd March, 2012 for the suit land known as KERICHO/CHEMAGEL/1401 pursuant to Section 26(1)(a) and rectification of the register to revert to the deceased Philip Kirui as per Section 80 of the Land Registration Act.
c. The Honourable Court be pleased to find that the Plaintiffs’ claim founded on the fraudulently acquired title deed is incompetent, untenable and an abuse of the Court process and proceed to dismiss the same with costs.
d. The costs of the Application be provided for.
3. The grounds upon which the Application was brought are that:
a) Pursuant to the Court Order dated 2 nd December, 2024, a report was filed on investigations which were conducted by the Directorate of Criminal Investigation (DCI) into the authenticity of the Plaintiffs’ title deed issued to them on 23 rd March, 2012 for the suit parcel registered as KERICHO/ CHEMAGEL/1401.
b) That the report dated 4 th August, 2025 was produced on 29 th April, 2026 and that the report established and concluded that the Plaintiffs’ title deed is a result of fraud.
c) That additionally, the County Land Registrar Bomet, through a letter dated 17 th January, 2025, confirmed that there are no supporting registration documents in the Land Registry Records relating to the suit parcel, which document was jointly produced with the report and formed part of it.
d) That the finding of the DCI Report dated 4 th August, 2025 and the sentiments of the Land Registrar collectively demonstrate fraud, illegality and procedural impropriety in the acquisition of the Plaintiffs’ purported title.
e) That under section 26(1)(a) and (b) of the Land Registration Act, a title deed obtained through fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme is not protected by the law.
f) It is in the interest of justice that the forged title deed be expunged from the record, and the Application be allowed.
4. The Application was supported by the averments in the Supporting Affidavit sworn by the Defendant on 3 rd June, 2026 and the annexures thereto.
5. The Application was opposed. The Respondents /Plaintiffs filed a Replying Affidavit sworn by the 1 st Plaintiff/Respondent on behalf of herself and the other two Respondents/Plaintiffs on 22 nd June 2026. The case of the Plaintiffs is that the Application is misconceived, bad in law, res judicata , an abuse of the court process, and a calculated attempt to arrest delivery of the judgment in a matter that has been pending in court since the year 2014. That the Application seeks final substantive orders of expunging/cancelling the Plaintiffs’ title through an interlocutory motion filed after the close of the hearing. That the Plaintiffs will suffer grave prejudice if the Application is entertained because it will re-open a suit whose hearing has already been concluded and will further delay the matter. That the Application offends the overriding objective of the Court and undermines the just, expeditious, proportionate and affordable resolution of dispute.
6. The Applicant filed written submissions dated 6 th July, 2026; in addition, oral submissions in support of and in opposition to the Application were made by Counsel on behalf of their respective clients.
7. I have read and considered the application, the opposition thereto and the submissions made. I have perused the file and taken note of the history of the suit. I note that it was commenced in the year 2014 and that the same is yet to be finalized. The record shows that on 29 th April 2026 the evidence was closed and the Court gave directions on the filing of closing submissions before a date for delivery of the judgment could be given.
8. The Applicant seeks that the Plaintiffs’ title be expunged from the record and/or be cancelled. The Applicant relies on the provisions of sections 26(1)(a) and (b) and 80 of the Land Registration Act. Section 26(1) (a) and (b) provide for the sanctity of title and the instances where title to land may be impeached as follows:
“1. The Certificate of title issued by the Registrar upon registration, or to a purchaser upon transfer or transmission by the proprietor shall be taken 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, un-procedurally or through a corrupt scheme.”
9. Section 80 deals with rectification of the register of land by the court as follows:
“1. Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud,
2. The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.”
10. The process of proving the grounds for impeachment of the title to land or rectification of the register by court can, however, not be by way of summary procedure. It requires evidence of the fraud, mistake, omission or corrupt scheme to be produced at a hearing; it requires the title holder to be given a chance to respond to and interrogate the evidence; and it requires the court to analyze the evidence, make findings thereon and decide. This is because the standard of proof of allegations of fraud, illegality or a corrupt scheme is higher than the proof on a balance of probabilities in ordinary civil cases. In Koinange & 13 others vs Charles Karuga Koinange 1986 KLR at page 23, the court held that:
“When fraud is alleged by the Plaintiffs, the onus is on the Plaintiffs to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt; something more than a balance of probabilities is required.”
11. Similarly, in the case of Kinyanjui Kamau vs George Kamau [2015] eKLR, the court dismissed the appeal as it was not demonstrated that the appellants had proved fraud to the required standard and stated that:
“It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008)1KLR (G & F) 742, wherein the court stated that “... we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove the allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely, proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases.” In a case where fraud is alleged, it is not enough to simply infer fraud from the facts.
In my view, this standard of proof cannot be achieved through an interlocutory application as in the one before the court.
12. The status of the suit is that the process of production and interrogation of the evidence by the parties has already been completed. The impugned title deed, the DCI report and the communication from the Land Registrar are all part of the evidence in the matter. What remains is the analysis of the evidence, findings and decision on the case by the court. In the circumstances, the correct thing to do is to allow delivery of the judgment for exhaustive and final determination of the issues in the suit and the rights of the parties. The title deed, DCI Report and the letter by the Land Registrar, being some of the exhibits produced in the case, will be considered alongside other evidence adduced in deciding the case.
13. For the foregoing reasons, the court finds that the Application lacks merit with the result that;
i. The Application is dismissed.
ii. Costs to the Plaintiffs.
Orders accordingly.
Ruling delivered, dated and signed at Bomet and delivered virtually this 17 th day of September, 2026.
HON E. ASATI,
JUDGE.
In the presence of:
Court Assistant.
For the Plaintiffs/Respondents.
For the Defendant/Applicant.
BOMET ELC ELC LC NO. E063 OF 2026 – RULING BOMET ELC ELC LC NO. E063 OF 2026 – RULING BOMET ELC ELC LC NO. E063 OF 2026 – RULING BOMET ELC ELC LC NO. E063 OF 2026 – RULING 1111