CHRISTOPHER NGUMBAU MUTUA AND AGNES MWENDE MUTUA VS CHRISTINE MUTWA MWANGANGI

Kitui ELC NO. E003 of 2022:Christopher Ngumbau Mutua & Another Versus-Christine Mutwa Mwangangi

1.  This suit was instituted through the Amended Plaint amended on 4th May 2022. The Plaintiffs aver that they are the administrators of the Estate of the late Evans Kitemnage Mbutu(Deceased), the absolute registered proprietor of all that parcel of land known as Title No. Mwingi/Mbondoni/1638. They aver that the Plaintiffs and defendant families are living on different designated parts of the suit land since the land belongs to two of the deceased’s sons, who are also deceased.
2. The Plaintiffs contend that the Defendant has misled the Magistrate’s Court at Mwingi Law Courts and the Land registrar that the suit land was the property of her late husband, one Mwangangi Kitemange Mbutu while having full knowledge that the same was family land registered in the name of her father in law, one Evans Kitemange Mbutu and that her husband was only one of the beneficiaries of his estate.
3.  The Defendant is registered as the owner of the suit property as the administrator of her late husband's estate( by purporting that the same belonged to her late husband). The Plaintiffs claim fraud over this registration. They claim that this has resulted in the creation of a new title deed over the suit property which the defendant has since sub-divided into two pieces and allotted one of the titles to her son, Kimanzi Mwangangi.
4.  They pray for a declaratory order that the late Evans Kitemange Mbutu(Deceased) is the absolute proprietor of the suit property, general damages for trespass, an order for revocation of the title an order for eviction of the Defendant from their portion of the suit property and all of the land originally occupied by the Plaintiffs and their family members and costs of the suit.
The Defendant’s Statement of Defence.
5. The Defendant denied the allegations in the Plaint and the particulars of fraud therein, stating that the suit property is the subject matter of succession in the Magistrate’s Court at Mwingi and also Machakos High Court Succession Cause 23 of 2012 between the defendant and the Plaintiff’s mother, Loise Kithumba Mutua(Deceased).
6. The defendant contends that the suit property rightfully belongs to her to the exclusion of the plaintiffs who have their separate lands registered to their father, Evans Kitemange Mbutu(deceased), who had allocated his property to his children before his death including her late husband.
7. The defendant's position therefore is that the plaintiffs have no right or interest whatsoever in the suit property because they have their land on which they have established homesteads and where their parents are buried.

Kitui ELC NO. E005 of 2021 Cristine Mutwa Mwangangi-Versus-Christopher Ngumbau Mutua &Another

8. By a Plaint dated 29th November 2021, the Plaintiff herein who is the defendant in ELC E003 OF 2022 avers that she is the registered proprietor of all that property known as LR. MWINGI/MBONDONI/2206 measuring approximately 10.76Ha. The defendants are accused of encroaching and trespassing onto the suit property without legal authority.
9. The Plaintiff stated that the actions of trespass on the suit property have been continuous and that the defendants have also been issuing endless threats, which are geared towards forcefully and illegally alienating/defrauding the suit property from the plaintiff.
10.  As a result of these actions, the Plaintiff has been deprived of the quiet enjoyment of her property and the defendants’ actions to alienate the suit property from the plaintiff are wrongful, unlawful and fraudulent and despite demand and notice of intention to sue, the defendants have not refrained from the said acts of trespass.
11. The Plaintiff prays for an order of permanent injunction to restrain them from further encroaching and trespassing on the suit property, an order that the suit property belongs to the plaintiff, general damages for trespass, mesne profits and costs of the suit plus interest at court rates.

1st and 2nd Defendant’s Statement of Defence
12. The defendants jointly filed a statement of defence, denying the allegations in the plaint claiming that after the death of their grandfather, the 1st Defendant's father George Mutua Kitemange embarked on the process of obtaining a grant of letters of administration in respect of the estate of the late Evans Kitemange Mbutu(Deceased), who is the bonafide owner of the Title Number Mwingi/Mbondoni/1638.
13. Unknown to them, the Plaintiff herein had already commenced succession proceedings vide P& A Cause 11 of 2015 in respect of her late husband Mwangangi Kitemange(Deceased) and named the suit property which is the only asset of the original bonafide owner Evans Kitemange Mbutu(Deceased) as belonging to her late husband.
14. The Defendants therefore contend that there is no issue of trespass or encroachment of the Plaintiff’s land but that it is the Plaintiff and her son who are waving their illegally acquired titles to the Defendants' faces and are using them to deny them inheritance of a share of their late grandfathers' estate without any lawful excuse and pray that the Plaintiff's suit be dismissed with costs.

  Mwingi Principal Magistrates Court ELC case number E018 of  2021: Kimanzi Mwangangi versus Ngumbau Mutua & Others

15. This suit was commenced by way of the plaint dated 27th May 2021. The Plaintiff claims to be the registered proprietor of land parcel number Mwingi/Mbondoni/2207 measuring approximately 5.08 Ha. He stated that on diverse dates in 2015, the Defendants encroached onto the suit land and caused wanton destruction by cultivating, cutting down trees, destroying fences and erecting structures without the Plaintiff's authority. The Plaintiff claims that the defendants' acts were unlawful, illegal and carried out with the intention of grabbing his land. The Plaintiff seeks against the defendants jointly and severally an order of permanent injunction and eviction from the suit property.

The defendants’ Statement of Defence and Counterclaim
16. The Defendants filed a joint Amended Amended statement of defence denying the Plaintiff's claim. They claim that the suit parcel of land belongs to them by virtue of inheritance from the party's grandfather the late Evans Kitemange Mbutu the original registered proprietor of land parcel Mwingi/Mbondoni/1638.
17. They averred that land parcel Mwingi/Mbondoni/2207 is a subdivision of land parcel Mwingi/Mbondoni/1638 which was obtained when the Plaintiff’s mother filed a succession cause in Mwingi law courts secretly obtained title to the entire family land pretending that it belonged to her late husband Mwangangi Kitemange when it belonged to her late father-in-law Evans Kitemange Mbutu. They applied for annulment of the grant made to the Plaintiff's mother but the same is still pending determination.
18. Without prejudice to their above defence, the Defendants claim that they are entitled to be registered as owners of the suit land and that the registration of the Plaintiff and ownership of the suit land should be cancelled and the Defendants registered as owners hereof.
19. By a counterclaim, the defendants pray for a declaration that the suit parcel of land rightfully belongs to the estate of the late Evans Kitemange Mbutu. They further seek an order that the name of the plaintiff as owner of the suit parcel of land be cancelled in the land register and deleted in lieu thereof be substituted with the names of the defendants or be ordered to revert to the estate of the late Evans Kitemange Mbutu.

The Hearing of the Consolidated Suits
20.  Pursuant to the consent of the parties and due to the multiplicity of suits, Mwingi CMELC E018 of 2021 was withdrawn from the Chief Magistrate’s Court at Mwingi and brought to this court to be heard together with the other 2 related suits ELC E003 of 2022 and ELC E005 of 2021 as consolidated suits.
21. PW 1, Agnes Mwende Mutua, the 2nd Plaintiff in ELC E005 of 2022 testified, adopting her witness statement dated 22nd March 2022 as evidence as well as her bundle of documents.
22. She stated that the suit land Title No. Mwingi/Mbondoni/1638 had all along been registered in the name of their grandfather, Evans Kitemange Mbutu(Deceased) as evidenced in the initial entry to the green card and that the same was family land.
23. She stated that each of their grandfather’s sons has a homestead within the subject property and their families live and cultivate their portions. Her father George Mutua Kitemange(now deceased) had 2 other brothers, Mwangangi Kitemange(also deceased), the husband of the defendant and David Kitemange(also deceased) who had 2 wives. The witness stated that the defendant claimed the entire land for herself and that the defendant chased away and uprooted the homestead of the two wives of David Kitemange.
24. Upon the death of their grandfather, Evans Kitemange Mbutu, her father applied for letters of administration intestate and a grant was made to him on the 15th of September 2009. Unfortunately, he died on the 12th of September 2010 before the grant was confirmed. Unknown to them, her sister-in-law, the defendant herein had secretly colluded with the Land Registrar Kitui then, one L.K Muguti to be given the physical title deed and began a parallel administration process, claiming that the entire land belonged to her husband, one of their grandfather’s sons and her uncle.
25. On 15th July 2005, a grant of letters of administration in respect to the defendant’s husband’s estate was issued and within 6 months, the defendant had completed the administration process and had the entire suit parcel transferred to her name.
26. When PW 1’s mother died on the 1st of April 2021, the defendant immediately subdivided their portion of land and shared the same among her sons. On the 24th of October 2021, the defendant and her sons mobilized goons to evict them. She stated that they now live in constant fear as they watch their land being plundered and crops uprooted.
27. She further stated that they were not aware of the defendant's actions before 2021 when they were evicted. Given these illegal actions, she states that it is only fair and just that this Court grants the orders in the Plaint.
28. On being cross-examined regarding her claim that the defendant was registered as the proprietor of the land fraudulently, PW 1 acknowledged that she did not sue the Land Registrar in the Mwingi Court case. She also acknowledged that the grandchildren of David Kitemange(Deceased), one of the sons of their grandfather and uncle are not included in the suit. She stated that they were chased from the suitland and finally left.
29. She further clarified that when the adjudication process in the area was ongoing, the defendant’s husband was still alive. She also confirmed that that her father, George Kitemange bought separate land even before adjudication which was not given by their grandfather.PW 1 stated that her father is buried on the land that he bought about 3 kilometres away and not on the suit land.
30. PW 1 clarified that she was born on the suit land, but moved from the land in 1984 to their father's land parcel 1619 and left her brothers on the suit land. She noted that the 1st defendant in the Mwingi case lives on the suit's land as well.
31. PW 1 stated that all the sons of their grandfather had been shown their portions of land and that her children and her brother's children live on the suit land, while she lives on land parcel 1619, where she has a shop.
32. She accused one of the defendant’s sons who worked at the council of mobilizing the Member of the County Assembly of the area to beat them. Even after reporting the matter, she stated that they influenced the case to stall.
33. On re-examination, she stated that they used to cultivate on the suit land but no longer can after being evicted, though the County Commissioner ordered their return.
34. Counsel for the Plaintiff in ELC E003 of 2022 sought witness summons to issue to the Land Registrar, Mwingi sub-county.
35. PW 2 Marietta Mkala, the Land Registrar Mwingi Sub-County testified before the court. She stated that upon perusal of the history of Land Parcel Mwingi/Mbondoni/1638, she found that it was initially registered in the name of Evans Kitemange Mbutu. Through Mwingi Succession Cause 11 of 2005, the land was registered to Christina Mutwa Mwangangi, the defendant herein in respect of the estate of Mwangangi Kitemange on 26th September 2007.
36. She noted that in the affidavit in support of the Petition for the Succession proceedings, the parcel of land was not included in the part for assets. Transfer by transmission from the deceased Evans Kitemange to the defendant was done directly without being registered first in the name of her husband Mwangangi Kitemange as per the confirmation of the grant.
37. Upon cross-examination, PW 2 stated that she could not confirm whether there was fraud in the said registration. She stated that if she had been in the position of the land registrar at the time, she would have sought clarification of why the land was being transmitted from Evans Kitemange to the defendant and not from Mwangangi Kitemange to the deceased. The certificate of confirmation of grant was for the estate of Mwangangi Kitemange Mbutu and there was no alias and nothing to show that the two were the same person, she would have clarified this discrepancy. PW 2 also noted that the record only contained LR 7 but no LR 19, which were both then used for transmission.
38. The witness produced as exhibits the documents referred to by the Land Registrar being the affidavit in support of the Petition form P&A 5 as Plaintiff Exhibit 6, the certificate of confirmation of grant dated 20th September 2006 as Plaintiff Exhibit 7, the letter from the chief stamped on 27th May 2005 in respect to the estate of Mwangangi Kitemange as Plaintiff Exhibit 8 and the Transfer by Personal Representative dated 25th September 2007.
39.   The defence hearing began with DW 1 Kimanzi Mwangangi, the plaintiff in Mwingi E018 OF 2021 and stated that the defendants in the said case are his cousins as their fathers are brothers. He adopted his witness statement dated 27th May 2021 as evidence.
40. He stated that the suit land parcel Number Mwingi/Mbondoni/2207, was registered under his name. His late father Mwanagangi Kitemange(Deceased) passed away before his grandfather, Kitemange Mbutu who had already sub-divided his land to his children and each settled on his/her own portion of the land together with their family members.
41. His grandfather had verbally told his children that Title Deed No. Mwingi/Mbondoni/1638 was to be transferred to his mother in case of his demise but he passed away in  2004 before transferring the title deed to her name.
42. DW 1’s mother, Christine Mutwa Mwangangi then filed Succession Cause 11 of 2005 at Mwingi, was issued with letters of administration and the title to Mwingi/Mbondoni/1638 was issued to her.
43. In 2015, the 1st and 2nd defendants encroached onto the suit land and committed wanton destruction by cultivating and erecting structures without his mother’s consent. The 3rd defendant also encroached in 2020 cut down trees and destroyed the fence and the defendants have ignored, neglected and/or refused to move away from the land.
44. During the hearing, he stated that the defendant's claim to the land was false because they were allocated land parcels Mwingi/Mbondoni/1637 and 1619 and that Mwangangi Kitemange was left with 1638. He accused the defendants of trying to grab their land when they were brought up far away from the suit land and did not have homes in 1638.
45. Upon cross-examination, DW 1 confirmed that the suit land Mwingi/Mbondoni/1638 measures 15.56Ha approximately 38 acres. He denied knowing that Mwingi/Mbondoni/1619 measures only 3 acres and that LR 1637 only measures 1 acre. He also denied knowledge that George Mutua Kitemange filed a succession case that was never concluded.

Written Submissions by the Plaintiffs in ELC E003 OF 2022 and Defendants in ELC E005 OF 2021 and Mwingi CMELC 18 of 2021

46. Counsel for the Plaintiffs in ELC E003 OF 2022 and Defendants in ELC E005 OF 2021 and Mwingi CMELC 18 of 2021 filed written submissions. They gave a brief history of the consolidated suits. He submitted that as per the amended amended defence in Mwingi CMELC 18 of 2021, the suit property Mwingi/Mbondoni/2207 was excised from the main suit property Mwingi/Mbondoni/1638.
47. Counsel highlighted that ELC E005 of 2021 was not prosecuted and submitted that it be dismissed with costs.
48. Counsel cited Article 40 of the Constitution, as well as Section 24 of the Land Registration Act No. 3 of 2012 on the inalienable land rights of a proprietor, which cannot be challenged except on the grounds of fraud and misrepresentation or where certificate of title has been acquired illegally or unprocedurally or through a corrupt scheme as per Section 26 of the Act. Counsel cited the authority of Embakasi Properties Limited & another v. Commissioner of Lands & another(2019)eKLR.
49. It was submitted that Title Nos. Mwingi/Mbondoni/1638 and its subdivisions Mwingi/Mbondoni/2206 and 2207 were acquired through fraud and misrepresentation by the original proprietor’s Evans Kitemange Mbutu’s daughter in law known as Christine Mutwa Mwangangi, which titles never belonged to her husband Mwangangi. They relied on the holding of the Court of Appeal in the case of Civil Appeal No.239 of 2009 Munyu Maina v. Hiram Gatiha Maina and Teresia Wangari Mbugua v. James Njeri Nduati & another(2020)eKLR, submitting that the registration of the 1st defendant having been procured fraudulently is null and void ab initio.
50. Counsel submitted that the title of the suit land should be impeached. He cited the case of Alice Chemutai Too vs Nickson Kipkurui Korir & 2 others(2015)eKLR.
51. It was concluded that the Plaintiffs' claim in ELC E003 of 2022 is valid and that they are entitled to the prayers sought. Counsel stated that this court is empowered under Section 80(1) of the Land Registration Act 2012 to order the rectification of the register by ordering that the defendant’s title be cancelled as the same was obtained by fraud and misrepresentation.
52. Regarding the claim for general damages, they relied on the reasoning of Hon. M.A Odeny J in the case of Samuel Oludhe & 2 others v. Jubilee Jumbo Hardware Ltd and another(2018)eKLR where it was held that trespass is actionable per se without any proof of damage, quoting and relying on Mutungi J.’s holding in Park Towers Ltd v. John Mithamo Njika & 7 others(2014)eKLR and proposed damages of Ksh.1,000,000/=.
53. On costs, it was submitted that they follow the event and submitted that the Plaintiffs in the lead file be awarded the same.

Written Submissions of the Defendant in ELC E003 OF 2022 and the Plaintiff in Mwingi CMELC 18 OF 2021.
54. Counsel for the defendant in ELC E003 OF 2022 and the Plaintiff in Mwingi CMELC 18 OF 2021 filed written submissions. They stated that the Plaintiffs in the lead file have not proven their case on a balance of probabilities, highlighting that on the claim of collusion with the Land Registrar, the Mwingi Court and the alleged Member of County Assembly who evicted them, were not called to testify on the alleged fraud.
55. It is submitted that the defendant occupies the suit land to the exclusion of the Plaintiffs who were already allocated land by their late grandfather Evans Kitemange (Deceased) who shared his property to all his beneficiaries before he died. It is submitted that the Plaintiff's claim is aimed at defrauding the Defendant and her children of their inheritance. Further, Counsel submitted that the issues are best addressed by a Succession court as they arise therefrom.
56. Counsel concluded by ceding that the Court may revoke the titles created from the suit premises with a view to have the succession suit of Evans Kitemange (Deceased) heard afresh.

Analysis and Determination
57. The Court has considered the pleadings filed, the evidence adduced at the trial and the rival submissions by Counsel for the parties. It is the Court’sview that the following issues arise for determination:
A) Whether the original suit parcel of land Mwingi/Mbondoni/1638 and the resultant titles Mwingi/Mbondoni/2206 and 2207 were acquired and/or transferred legally or through fraud, misrepresentation and/or in contravention of the law.
B) Whether any of the parties to the consolidated suits is guilty of trespass on the suit parcels of land.
C) What orders should the Court make?
58. On 18th October 2022 the court by consent of Counsels for the parties transferred Mwingi Principal Magistrates Court ELC case number E018 of 2021 Kimanzi Mutua versus Ngumbau Mutua, Mbinya Mutua and Agnes Mwende Mutua from the Magistrate’s Court at Mwingi and consolidated the same with two suits originating from this court being ELC case number E005 of 2021 Christina Mutua Mwangangi versus Christopher Ngumbao Mutua and Agnes Mwende Mutua and ELC case number E003 of 2021 Christopher Ngumbao Mutua and Agnes Mwende Mutua versus Christina Mutua Mwangangi. The three consolidated suits relate to the acquisition and possession of the same parcel of land Mwingi/Mbondoni/1638 and the resultant subdivision titles Mwingi/Mbondoni/2206 and 2207.
A) After the consolidation of the three suits, it was determined that the lead file for the three consolidated suits was to be ELC case number E003 of 2021. For purposes of the consolidated suits, the Plaintiffs shall be Christopher Ngumbao Mutua, Agnes Mwende Mutua and Mbinya Mutua while the Defendants shall be Christina Mutua Mwangangi and Kimanzi Mutua.
A) Whether the original suit parcel of land Mwingi/Mbondoni/1638 and the resultant titles Mwingi/Mbondoni/2206 and 2207 were acquired and/or transferred legally or through fraud, misrepresentation and/or in contravention of the law.
59. It is common ground that the original title number Mwingi/Mbondoni/1638 was registered in the name of Evans Kitemange Mbutu (deceased). The copy of the green card produced by the Plaintiffs indicates that the title was originally issued to Evans Kitemange Mbutu on 16th August 2004. The said Evans Kitemange died on 16th February 2004 as per the certificate of death produced in evidence. He therefore passed away before the title deed to the land was issued. He was the father of George Mutua Kitemange (father to Christopher Ngumbau Mutua and Agnes Mwende Mutua), Mwangangi Kitemange (husband to Christine Mutua Mwangangi and father to Kimanzi Mwangangi) and David Kitemange.
60. According to the green card for land parcel Mwingi/Mbondoni/1638, the land was transferred to Christina Mutwa Mwangangi, pursuant to a grant issued in Mwingi Succession 11 of 2005 on 26th September 2007 and a title deed was issued on 16th October 2007.
61. The title was subsequently closed on sub-division into new numbers 2206 and 2207 on 30th September 2020. The resultant titles were both issued first in the name of the 1st Defendant Christina Mutwa. Title number Mwingi/Mbondoni/2207 was transferred to the 2nd Defendant Kimanzi Mwangangi while title number 2206 remained in the name of the 1st Defendant.
62. According to the certificate of confirmation of the grant issued in Succession Cause number 11 of 2005, the succession Cause related to the estate of Mwangangi Kitemange Mbutu and the grant issued to Christina Mutwa Mwangangi was confirmed on 19th September 2005. According to the confirmed grant land parcel number 1638 Mbondoni Adj. Section was taken to be an asset belonging to the estate of Mwangangi Kitemange Mbutu and was awarded to the 1st Defendant Christina Mutwa Mwangangi as absolute owner.
63. It is to be noted that at that point the parcel of land number 1638 had already been registered in the name of Evans Kitemange Mbutu. A grant of letters of Administration to the estate of Evans Kitemange Mbutu was first issued through The Senior Resident Magistrates Court at Mwingi in Succession Cause number 32 of 2007 to George Mutua Kitemange, the father to the Plaintiffs Christopher and Agnes on 15th September 2009.
64. The 2nd Defendant testified for the Defendants and claimed that their father Mwangangi Kitemange died before his father Evans Kitemange had subdivided his land to his children. Afterwards, his grandfather subdivided his land to his children including Mutua KItemange and Christina Mutwa Mwangangi (his daughter-in-law). The 2nd Defendant stated that his grandfather had given the suit land parcel 1638 to his mother, the 1st Defendant, and the land was to be transferred to her in case of his demise and that he died in 2004 before he transferred the land.
65. He testified that his mother obtained letters of administration succession cause number 11 of 2005 and the title deed to land parcel number Mwingi/ Mbondoni/1638 was issued to her.
66. In 2015 the Plaintiffs encroached on the land which had been subdivided into two creating Mwingi/Mbondoni/2206 and 2207 registered in the names of the 1st and 2nd Defendants’ respectively. He stated that since then the Plaintiffs have refused and/or failed to move out of the suit land.
67. The first issue for determination is whether the original suit parcel of land Mwingi/Mbondoni/1638 was registered in the name of the 1st Defendant Christina Mutwa Mwangangi and the resultant titles Mwingi/Mbondoni/2206 and 2207 were transferred legally or through fraud, misrepresentation and/or in contravention of the law.
68. Section 26 of the Land Registration Act No. 3 of 2012 provides that a Certificate of title is to be held as prima facie evidence of absolute and indefeasible proprietorship. It states that:
“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.”
69. The Plaintiffs claim that the original title deed was registered in the 1st defendant's name and subsequent sub-divisions were made as a result of fraud and misrepresentation. They claim that the suit land forms part of the estate of their grandfather Evans Kitemange Mbutu(Deceased) and was therefore acquired by the 1st defendant to the exclusion of the other beneficiaries.
70. Counsel for the Plaintiffs relied on the holding by the Court of Appeal in the case of Embakasi Properties Limited & another v. Commissioner of Lands & another(2019)eKLR where it was held that:
"Although it has been held time without end that the certificate of title is; "...conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof", it is equally true that ownership can only be challenged on the ground of fraud or misrepresentation to which the proprietor named is proved to be a party. See section 23 of the repealed Registration of Titles Act. Section 26 of the Land Registration Act, 2012 though not as emphatic as section 23 aforesaid on the conclusive nature of ownership, confirms that the certificate is prima facie evidence that the person named proprietor is the absolute and indefeasible owner. It adds that apart from encumbrances, easements, and restrictions to which the title is subject, there is no guarantee of the title if it is acquired by fraud or misrepresentation or where it has been acquired "illegally, unprocedurally or through a corrupt scheme”.
71. In addition to this, the Court of Appeal in the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR that:
“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”
72. Regarding the allegations of fraud and misrepresentation, the Court notes that it is not clear from the evidence adduced how the 1st Defendant obtained the title deed belonging to his father-in-law, Evans Kitemange Mbutu when the same ought to have been released from the land registry to the registered owner or his legal representative. By the time of registration into his name the owner of the land had already died.
73. Further, the evidence of PW2, the Land Registrar Mwingi Sub-County, Marietta Mkala, confirmed that the transfer of the land to the 1st Defendant, Christina Mutwa, was through transmission. She acknowledged that it was unusual for the Succession case for the estate of Mwangangi Kitemange Mbutu (Deceased) to deal with the transmission of land in the name of  Evans Kitemange Mbutu (Deceased) without clarifying whether the two names referred to one and the same person who had an alias. The witness was clear that if she had dealt with the application for transmission of the title, she would have first sought clarification through an affidavit on whether the two were one and the same person. She further stated that she could not confirm if her predecessor sought clarification or what considerations led to the registration. She confirmed on cross-examination that there was probably a mistake in the registration of the transmission.
74. The witness noted that in the affidavit in support of the Petition Form P& A 5, there were no assets attributed to the deceased Mwangangi Kitemange save for stating that he is a beneficiary of the estate of Evans Kitemange Mbutu(Deceased) without including exactly which Parcel of land it was.
75. It is also clear that even though the names Mwangangi Kitemange Mbutu and Evans Kitemange Mbutu are similar, they are not the same name and one would have required a firm clarification ideally through an affidavit to confirm that the two refer to the same person. It is noted that there was no attempt during the confirmation of the grant to show who the owner of the land in question was. It is thus not clear how the court confirming the grant allowed a parcel of land not registered to the deceased in the cause to be confirmed as part of his estate.
76. Further, the letter by the chief referred to the 1st defendant as the wife of Mwangangi Kitemange and not Evans Kitemange Mbutu. As the spouse to Mwangangi Kitemange Mbutu (Deceased), the 1st Defendant ought to have inherited from her husband’s estate. Since Evans Kitemange Mbutu (Deceased) was the registered owner of the suit property, the correct procedure would have been to deal with his land in the succession cause dealing with his estate. Further, it would have been necessary for his estate to be transmitted to Mwangangi Kitemange Mbutu (Deceased) as a beneficiary, then his spouse and children would inherit from the estate.
77.  It was held by the Court of Appeal in the case of Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000]eKLR that:
“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts. See Davy v Garrett (1878) 7 Ch. D 473 at 489.”
78. In the Court’s view, the Plaintiffs have proved fraud and misrepresentation in the registration of the 1st Defendant as the title holder to Mwingi/Mbondoni/1638 through transmission. There were marked irregularities in the procedure followed in obtaining the 1st Defendant’s registration as proprietor of the land.
79. The Law of Succession Act Section 3 defines “estate” as “the free property of a deceased person”;  "free property" is defined “in relation to a deceased person to mean the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.”
80. From the foregoing definitions, the parcel of land Mwingi/Mbondoni/1638 was not the free property of the deceased Mwangangi Kitemenge and neither was it part of his estate. It was thus incapable of being transmitted through succession cause number 11 of 2005 in the estate of Mwangangi Kitemange Mbutu. The same ought to have been the subject of the succession cause of the registered proprietor Evans Kitemange Mbutu.
81.  Section 45 of the Law of Succession Act prohibits and makes a criminal offence the act of interference with the estate of a deceased person. And states that;
(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.
(2) Any person who contravenes the provisions of this section shall—
(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
(b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.
82. Further, Section 79 provides that the property of a deceased person is to vest in personal representative and states that;
The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.
83. From the foregoing, the 1st Defendant was prohibited by law from dealing with the property registered in the name of Evans Kitemange Mbutu without first obtaining letters of administration to his estate. Since she went ahead and even caused the property of the deceased to be registered in her name she committed a criminal offence under Section 45 of the Law of Succession Act.
84. In the Court's view, the Plaintiffs have proved that the title to land parcel number Mwingi/Mbondoni/1638 was transferred into the names of the 1st Defendant illegally, through fraud, misrepresentation and without following the procedure provided for transmission of property belonging to a deceased person.
B) Whether any of the parties to the consolidated suits is guilty of trespass to the suit parcels of land.

85. Having established that the root of the title transferred to the 1st defendant has been successfully challenged, the Court is of the view that the offence of trespass cannot be established until the rightful owners of the suit property have been known. This position includes the resultant sub-divisions numbers Mwingi/Mbondoni/2206 and 2207.
86. The parties to this suit are all related, with each claiming that their grandfather was the original owner and they are entitled to the possession by inheritance. The question of who is entitled to possession of the suit properties can only be determined within the succession cause in the estate of Evans Kitemange Mbutu.
87. The Court of Appeal sitting at Eldoret in Municipal Council of Eldoret v Titus Gatitu Njau [2020] eKLR cited with approval the references below:
“In M’Mukanya v M’Mbijiwe (1984) KLR 761, the ingredients of the tort of trespass were revisited by this Court and restated as follows:
“trespass is a violation of the right to possession and a plaintiff must prove that he has the right to immediate and exclusive possession of the land which is different from ownership (See Thomson v Ward, (1953) 2QB 153.”
  Further, in Winfield & Jolowicz on Tort, Sweet & Maxwell, 19th Edition page 428 states as follows:
“Trespass to land, like the tort of trespass to goods, consists of interference with possession. Mere physical presence on the land does not necessarily amount to possession sufficient to bring an action for trespass. It is not necessary that the claimant should have some lawful interest in the land. This is not to say that legal title is irrelevant, for where the facts leave it uncertain which of several competing claimants has possession, it is in him who can prove title that can prove he has the right to possession. More generally, in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land.” [Emphasis supplied].

C) What orders should the Court make?
88. On the  question of the orders the Court should make, Counsel for the Plaintiffs relied on the holding of Munyao Sila J in the case of Alice Chemutai Too v Nickson Kipkurui Korir & 2 others [2015] eKLR stated as follows;
“In our case, there is no doubt that in so far as the title of the 1st respondent is concerned, it was procured by way of fraud or misrepresentation, and there is no way that the 1st respondent could have procured title without his own involvement in the fraud or misrepresentation. The title of the 1st respondent is clearly impeachable by dint of the provisions of Section 26 (1) (a). It cannot be allowed to stand and must be cancelled. If it is cancelled then it follows that any subsequent transactions have to be cancelled as well, for they were entered into by a party who had no capacity to do so, he not having a title in the first place……As for the applicant, she has succeeded in this case and the title has to revert to the name of the deceased.”
89. The Court agrees with the findings of the court in the above case and finds that the title formerly known as Mwingi/Mbondoni/1638I issued to the defendant Christina Mutwa Mwangangi was issued fraudulently, through misrepresentation and without following the laid down procedure of dealing with the property of a deceased person. The said title is clearly impeachable by dint of the provisions of Section 26 (1) (a) and (b) of the Land Registration Act, CAP 300 Laws of Kenya. It cannot be allowed to stand and must be cancelled. If the original title is cancelled, then it follows that any subsequent transactions, being the subdivisions of the original title into land parcels Mwingi/Mbondoni/2206 and 2207 and registration of the resultant titles in the names of the Defendants respectively, have to be cancelled, for they were entered into by a party with no capacity to do so.
90. The final orders of the court are as hereunder;
1. ELCC number E003 of 2022
The Plaintiff's suit in ELCC number E003 of 2022 partly succeeds and the following orders are issued;
(A) A declaration is hereby issued that the estate of  Evans Kitemange Mbutu is the bona fide, absolute proprietor of the land parcel formerly known as Mwingi/Mbondoni/1638 and the resultant subdivisions being land parcels Mwingi/Mbondoni/2206 and 2207.
(B)  An order is hereby issued for rectification of the registers for the titles formerly known as land parcel Mwingi/Mbondoni/1638 and all the subdivisions derived therefrom including title numbers Mwingi/Mbondoni/2206 and Mwingi/Mbondoni/2207 by directing that the registration be cancelled. The entries in the register of the said titles are to revert into the name of the deceased Evans Kitemange Mbutu (deceased).
(C) The dispute over the inheritance of the land parcel formerly known as Mwingi/Mbondoni/1638 and all the subdivisions derived therefrom including title numbers Mwingi/Mbondoni/2206 and Mwingi/Mbondoni/2207 shall be dealt with in the appropriate succession cause.
(D) Prayers (ii) and (iv) of the plaint are hereby dismissed.
(E) The Plaintiffs are awarded the costs of the suit.
2. Kitui ELCC E005 of 2021
The Plaintiff’s suit in Kitui ELCC E005 of 2021 is found to have no merit and the same is hereby dismissed with costs to the Defendants.
3. Mwingi Principal Magistrates Court ELC number E018 of 2021
(A) The Plaintiff’s suit in Mwingi Principal Magistrates Court ELC number E018 of 2021 is found to have no merit and is hereby dismissed.
(B) The Counterclaim filed by the Defendants in Mwingi Principal Magistrates Court ELC number E018 of 2021 is found to have merit and is hereby allowed in the same terms as order 1 (A), (B) and (C) above.
(C) There shall be no order as to costs
Delivered, dated and signed at Nyeri this 20th day of March 2025.