The Plaintiff filed a Plaint dated 23rd September, 2023 seeking the following orders:
a. General Damages
b. A permanent injunction restraining the Respondents either by themselves, their agents, servants and/or personal representative from subdividing/demarcating/selling, leasing and/or transferring land L.R No’s 3336/6 and the resultant amalgamation and subdivisions Land Reference Number 10120/1 and 10120/2.
c. An order directing the 6th Defendant do cancel the titles registered fraudulently and irregularly in respect of land L.R No’s 3336/6 and the resultant amalgamation and subdivisions Land Reference Number 10120/1 and 10120/2.
d. A Declaration that the Estate of Muigai Kimunya Kau (Deceased) is the rightful owner or proprietor of the original land L.R No’s 3336/6.
e. Costs of this suit plus interest thereon.
f. Any further relief as this Honourable Court deems fit to grant.
PLAINTIFF’S CASE
Muigai Njoroge testified as PW1. He testified that he lives at Subukia. His statement dated 28th September, 2023 which was filed on 2nd October, 2023 was adopted as his evidence in chief.
PW1 testified that he has lived in the land in Subukia with his father and mother since 1945 when he was born. PW1 testified that his father died in 1991 and he has not heard that the land was sold. He left the land in 1995 when they were evicted and taken to the police station. He does not agree with the transfer instrument. He prayed that they be given their land.
Upon cross-examination by Mr. Mbeche, learned counsel for the defendants, PW1 stated that he was born in 1945 and he lived in the land up to 1995 which is a period of fifty years. PW1 stated that his father was an employee of a white man but the PW1 himself did not work on the land. PW1 stated that he finished school in 1963 at twenty years. PW1 is claiming land no 3396. They stopped utilizing the land in 1994.
PW1 further stated that his father was given the land in 1984 and the white man left in 1985. He reiterated that his father was given the land as a reward in 1984 and the plot No is 3336. PW1 stated that the ordinance gave only two acres.
PW1 further stated that there are six parcels being: 3336(1),(2),(3),(4) ,(5) and (6) . PW1 stated that the land in dispute is 3336(6). PW1 stated that parcel 10120 was created from 3336/6-2011 acres. He stated that parcel 10120 became 10120/1 and /2- 900 acres. He informed the court that he was given the information by the surveyor. He further stated that he worked there from 1966 to1969 and that after 1969, he worked with Jubilee insurance for one year. The land was amalgamated in 1979 and parcel 10120 came from 3336/6. PW1 stated that parcel 10120 was divided into two and that he does not know the owner of the land in 1974.
Upon re-examination, PW1 testified that the ordinance is dated but it is not clear. His father was given the land in 1984 by Mrs. Hodge and he got the information from the office of survey of Kenya. He does not know how to read maps
Christropher Muhika Muigai testified as PW2. He comes from Subukia Munayaa location. He has a statement dated 25th July, 2024 which the court adopted as part of his evidence in chief. He produced documentary evidence as PEX 1(a) – (b) and PEX 8(a) PEX 8(b)- 8(c).
The import of his testimony is that they lived in the land up to 1988 and they left in 1988. That his father was told to leave by one Isaiah Mathenge. They used the land from 1988 up to 2022. He testified that in 1998, they left the land but continued tilling up to 2022. The land is near the school known as Sidai Primary School. It was PW2’s testimony that they were arrested in 2022 and taken to the police.
They were told not to step on the land but were not charged. The surveyor went to the land and the 1st Defendant’s employees did not allow them on the land. They have not been shown any land and yet they buried their grandmother on the land. The white man did not tell them that he had sold the land. PW2 prayed for judgment.
Upon cross-examination by Mr. Waiganjo, PW2 stated that he was praying for an order that the title be granted to them. His father entered the land before he was born in 1968 and brought up on the land. He went to Sidai primary school. His father was told to vacate. PW2 stated that the land is no 1336/6 and that they are claiming 2000 acres. PW2 stated that they were occupying about 20 acres.
PW2 further stated that they had constructed on parcel 3336/6 and had leased part of the land. He did not know Isaiah Mathenge. He stated that Africans were allowed to own land in 1986. The white man died and was buried on the land in 1978. When the white man died, Mr. Mathenge bought the land and told their father to vacate.
Upon re-examination, PW2 testified that their father was told to vacate in 1987 and he vacated in 1988. He stated that he left in 1988 because he was told to vacate. That they were cultivating as they were given permission by the white man. PW2 testified that this was between 1988 to 2022 and the school is within the land and he did a search. PW2 testified that the land is next to the school and he did not know that the land had been amalgamated.
Johnson Weru Wathuku testified as PW3. He testified that he comes from Subukia. His statement dated 8th January, 2024 was adopted as his evidence in chief. He testified that he knew Muigai Kimunya until he died and that he lived on the suit land with the family. PW3 testified that he built a house on the land and the land is currently occupied by the Defendant.
Upon cross-examination by Mr. Maina, PW3 stated that he entered his land in 1979 and he has lived there to date. PW3 stated that his land is number 221. PW3 testified that he knew Muigai Kimunya in 1979 but does not know the land number. PW3 stated that his land is apparently more than 20 acres and the white man was there. He states that the land was known as Sidai farm and that the whole land was his and the land was part of Sidai farm. He found Muigai on his part and when Muigai left, Mathenge took over the land. He ploughs on his part and knows James Mathenge Mwai. PW3 stated that Mathenge’s son has been on the land. That Muigai Kimunya used to work for the white-man.
Upon-reexamination, PW3 testified that he was given the land in 1982 but he is not sure about the year. PW3 testified that Muigai was given twenty acres near the school but does not remember when Muigai left. PW3 testified that Muigai buried his mother and wife on the land.
Peter Harus Mukonyole testified as PW4. He testified that he has been a principal Land surveyor for fourteen years and is at the Ministry of Land in the directorate of land survey. He is based in Nairobi survey field headquarters and his job number is 2011046700. He was a district surveyor in Nakuru between 2020 and 2024 and has seen the survey records for Sidai farm. PW4 testified that he knows LR No.3336 and LR 10120. He testified that in respect of L.R No 3336, he interacted with it when some people wanted him to locate it on the ground. PW4 testified that LR No.10120 was an amalgamation of LR No.2831.PW4 testified that LR No 10120 was subdivided into LR 10120/1 and 10120/2.
PW4 informed the court that they have an authenticated survey plan and the proportion at the time of subdivision cannot be told. That the subdivision was done in 1974. He testified that LR No.3336 and 10120/1 are related. He testified that LR No 3336 was subdivided into LR No.3336/1-6 and this was in year 1928. He informed the court that in the year 1958, LR No. 3336/6 was amalgamated together with LR 2831 and the resultant land was parcels 10120 and 10121. PW4 testified that parcel 10120 in the year 1973 was subdivided into 10120/1 and 10120/2. PW4 testified that one cannot tell from the map who is the owner. PW4 testified that he was on the land on February, 2023 and there is a school within the land. He testified that the school affects parcel 10120.
PW4 further testified that when amalgamating, two or more parcels numbers, they join the larger parcel and give it a number. PW4 testified that he has done other subdivisions and the subdivision is indicated on the title and that there is no indication of the subdivision of the land in the title and there is a school.
Upon cross-examination by Mr. Maina, PW4 stated that he is a licensed government surveyor and the maps came from his office. PW4 stated that there is no indication of subdivision on the title and he just saw the transfer.
PW4 stated that he has seen the tittle which shows amalgamation of parcels 2851 and 3336/6 resulting into LR 1-10120. PW4 stated that the title has number 10120 and not 10120/1. PW4 further stated that after amalgamation, a new number is created. PW4 further stated that as at 1958, parcel 3336/6 ceased to exist. PW4 informed the court that it is impossible to be given land that ceased to exist. PW4 stated that in 1973, parcel 10120 was subdivided into two portion thus resulting into parcels 10120/1 and 10120/2.
PW4 stated that the total acreage for parcel 10120 was 2011 acres and that parcel 10120/1 was 1,457 acres. PW 4 stated that as at now parcel number 3336 does not exist. He stated that the owners of the land came to him with a title in the name of Mwai Ltd (the 1st Defendant). PW4 stated that Mwai Ltd is the owner of the land.
Upon cross-examination by Mr. Mbeche, learned counsel for the defendants, PW4 stated that he does mutations and surveys. He stated that they match the complaint and current plans. PW4 stated that the title was not owned by Sidai farm but by the 1st Defendant. PW4 stated that he was not going to Sidai farm and he was not working under pressure. PW4 stated that he did not mention the 1st Defendant company.
PW4 stated that in respect of a grant, one looks at the last entry. Upon re-examination, PW4 testified that the letter is addressed to Assistant County Commissioner but he does not know the current titles for the officers in charge of the sub-location and location. PW4 testified that the size has not changed and parcels 3336 and 2851 were amalgamated into two new numbers. PW4 testified that one cannot amalgamate and come up with two parcels numbers of the land.
Caleb Wanjala Sunguti testified as PW5. He testified that he is a deputy chief Land Registrar stationed in Nairobi. PW5 testified that he has served for seventeen years as a Land Registrar and he was employed in 2008. PW5 testified that he is the custodian of the land records and he has the documents for LR No 10120. PW5 testified that he has documents for LR No.10120/1 and L.R NO.10120/2. PW5 testified that LR No 10120/1 is a subdivision of 10120. PW5 further testified that he has a grant for LR No 10120 which is the original grant and subsequent transfer after subdivision of the original number.
PW5 testified that the subdivision is not indicated in the grant and the transfer documents are available. PW5 testified that what he has on record is filed. PW5 testified that his record does not show the stamp of directorship and the last page is not very clear. He testified that he has seen the transfer of LR No. 10120/2 and the transfer was done on 12th June, 1974.
He stated that the transfer was registered and that they were both registered and 10120/1 is registered as entry No.4 on the original copy of the grant. That LR No 10120/2 was registered as entry No.5. PW5 testified that the certificate of title was only issued on LR No. 10120/2. PW5 testified that it was given a title as IR No.38898. PW5 testified that the companies used to have a company seal and Sidai farm did not have a company seal. PW5 testified that documents without a seal do not meet the threshold of registration.
PW5 was shown PExhb 2 and stated that it is a gift of land parcel 3336. He testified that when the parcels of land are amalgamated, they register the amalgamation and they may be given one number. PW5 testified that he has the original title for IR 38898 and the land reference number is 10120/2. PW5 testified that copies cannot give an impression of the seal. PW5 testified that he does not have the original copies. He produced the transfer for LR No 10120/1 as PEX 9, the transfer for LR No 10120/2 as PEX 10 and a certificate of title for LR no 10120/2 as PEX 11.
Upon cross-examination by Mr. Maina, PW5 stated that parcel 10120/1 was transferred on 19th April, 1974 and the documents are similar as they are handwritten. PW5 stated that the first document in the Defendant’s trial bundle is a seal. He stated that there is a seal for Mwai Ltd. He stated that the handwritings are not similar and there is a blank page. PW5 stated that he got the document from their custody.
PW5 further stated that what he has as the transfer was subjected to stamp duty. He stated that parcel 10120/2 was transferred to Mwai Ltd (the 1st Defendant) in April 1974. PW4 stated that gifts are not registered and a gift of the land is made through an ordinary transfer. PW5 stated that there is no transfer as gift to the plaintiff. PW5 stated that the parcel of land belongs to the 1st Defendant and the gift shows LR No. to be 3336.
PW5 stated that LR No.10120 was initially part of 2851 and 3336. He stated that LR No 2831 and 3336 were amalgamated hence they ceased to exist. PW5 stated that the agreement was made in 1957 and the gift was given on 2nd April, 1984. PW5 stated that in 1967, they were allowed to settle on parcel 6592.
Upon cross-examination by Mr. Mbeche, PW5 stated that he is an advocate of the High Court of Kenya. He stated that PEX 21 is a licence to occupy and a licence is a temporary permission to occupy. PW5 stated that the memorandum of agreement had conditions and they used to cultivate maize beans and potatoes. PW5 stated that this was not a transfer of land.
PW5 stated that grant measures 2011 acres and the license gave two acres. PW5 stated that the gift has a rubber stamp and the transfer has an impression of a seal. PW5 stated that they should have used a seal and the license has the impression of a seal. PW5 stated that there was no registered title for parcel 3336 because it had been amalgamated. PW5 stated that the agreement and gift is not on the registrable instrument. He stated that the agreement is not a will.
Upon re-examination, PW5 testified that PEX2 is a gift and LR- 6592 is not a part of the land in dispute. PW5 testified that the gift is in respect of parcel number 3336. He testified that a seal cannot be seen on a photocopied document. PW5 testified that the transfer on record is not a copy document.
PW5 further testified that normally, the registry returns a copy of the original transfer and the copy does not have a seal. PW5 testified that normally, the documents are in triplicate. PW5 testified that the amount payable is on the transfer document and there are several stamps and it should have a stamp. PW5 testified that a gift is always in the form of a will.
DEFENDANTS CASE
James Mathenge testified as DW1. He testified that he is a director of the 1st Defendant company and he has a signed authority to represent the company. He stated that he has a list of documents dated 27th July, 2024 which he produced as DEX 1. DW1 testified that one of the other director is Catherine Muigai and he represents her interest. He produced item No. 1 and 2 as DEX 2. DW1 produced a transfer dated 11th April, 1974. He stated that the transfer refers to LR No10110/1 and he has the original transfer and it deals with LR 10120/1. DW1 went on to produce it as DEX 3. He testified that the 1st Defendant company has owned the land since 1974. DW1 testified that in 1974, he was 17 years old and that he became a director of Mwai Ltd (the 1st Defendant Company) in 1992. He testified that the land is utilized for mixed farming and they do beef, dairy and coffee farming.
DW1 testified that he has studied agriculture, animal science and animal breeding. DW1 testified that he has never known the plaintiff and he has never seen them. DW1 testified that they are not co-owners or farmers and he knew Johnson Weru and he was a school teacher and his neighbour. DW1 testified that he requested to graze on the land and DW1 allowed him to graze in 1982 which he did for several years. DW1 testified that the plaintiffs are total strangers and the land is 2011 acres which he occupies solely.
Upon cross-examination by Mr. Ondande, DW1 stated that he does not have the mutation forms and the 1st Defendant company owns 10120. DW1 stated that he has a title for parcel 10120 and the document was signed by Hodge. DW1 stated that the transfer was in the banks custody. DW1 stated that he heard the Land Registrar mention subdivision and he does not have any documents showing any subdivision. DW1 stated that he settled in the farm in 1982 and he does not know the plaintiffs. DW1 stated that he has never had them arrested. DW1 informed the court that he never discussed with his father about the plaintiff. DW1 stated that he has no evidence that he is a director. He stated that there is a school within the farm and he has never seen the plaintiff in the farm.
Upon re-examination, DW1 testified that he has a restriction from the 1st Defendant company signed by himself and Catherine Muigai. He testified that PEX 2 does not refer to their parcel of land and parcel 10120/1 belongs to the 1st Defendant company.
PLAINTIFF’S SUBMISSIONS
Counsel for the Plaintiff filed submissions dated 16th January, 2026 and identified the following issues for determination:
a. Whether Sidai Farm Ltd validly gifted the suit land to the Plaintiff’s father?
b. Whether the Defendants have proved a lawful and continuous chain of title from Sidai Farm Ltd?
c. Whether the Defendants’ documents are fatally irregular and tainted by fraud?
d. Whether the Plaintiff’s interest takes priority?
Counsel submitted that it is undisputed that Sidai Farm Ltd was the original registered proprietor of LR No. 3336. Counsel submitted that the Plaintiff’s claim flows from a gift made by Sidai Farm under the Resident Labourers Ordinance to the Plaintiff’s father. Counsel submitted that the gift conferred an equitable proprietary interest on the Plaintiff’s father. It was counsel’s submission that the Plaintiff’s family has been in continuous possession of the land and the Plaintiff’s interests predates and supersedes any unregistered or irregular document claimed by the Defendants.
Counsel submitted that the Defendants have failed to discharge the burden of establishing a lawful, continuous chain of title to themselves. Counsel submitted that a company cannot lawfully transfer land without cooperate formalities. Counsel also submitted that the Defendant’s transfer refers to LR 10120/1 which did not legally exist in 1974. Counsel also submitted that there is no transfer for LR 10120/2. Counsel asked the court to grant the orders sought in the Plaint.
1ST, 2ND, 3RD AND 5TH DEFENDANTS SUBMISSIONS
Counsel for the 1st, 2nd, 3rd and 5th Defendants filed submissions dated 28th January 2026. Counsel submitted that the Plaintiffs have failed to prove their ownership claim as against the Defendant. Counsel submitted that the surveyor’s and registrar’s testimony was harmonious to the extent that the 1st Defendant is the lawful and legal owner of land parcel numbers for L.R No 10120/1, and for L.R NO 10120/2 that was formed out of parcel number L.R 10120, after subdivision, in 1973 which was a product of amalgamation of parcel numbers L.R 2851 and 3336/6 in the year 1958. Counsel submitted that it is impossible for the Plaintiff to have been allocated land that ceased to exist in 1958. Counsel relied on the following cases: Re Estate of the Late Sawe Maina [2023] KEHC 3743 (KLR) and In re Estate of the Late Gedion Manthi Nzioka (Deceased) [2015] eKLR.
Counsel asked the court to find in favour of the Defendants and award costs to the 1st, 2nd, 3rd and 5th Defendants. Reliance was placed on Section 27 of the Civil Procedure Act (Cap 21).
ANALYSIS AND DETERMINATION
The issues for determination is whether the Plaintiffs are entitled to the orders sought in the plaint. It is the Plaintiffs case that the Plaintiffs are the sons of Muigai Kimunya Kau (deceased) who is the rightful owner of the suit land. It is their case that Land Reference Number 3336/6 was amalgamated with 2851 to form 10120. It is the Plaintiffs case that it was again subdivided to form Land Reference Numbers 10120/1 and 10120/2 by the Defendants herein.
It is the Plaintiffs case that sometime on 2nd April, 1984, Muigai Kimunya Kau (deceased) was allocated parcel of Land Reference No 3336/6 by his employer, a white settler, as a gift for appreciation for the years served at Sidai Farm Limited. It is the Plaintiffs case that the deceased lived and cultivated on the said property with his family for years until he passed away on 9th May, 1991.
The Plaintiffs averred that soon after the deceased passed away, the Provincial commissioner, then one Isaiah Mwai Mathenge (also deceased) encroached on the suit property pushing out the Plaintiffs and other family members. It is the Plaintiffs case that they later on realized that the 1st Defendant company had fraudulently subdivided the parcel of land and transferred to itself all the parcel of land allegedly in 1974. The Plaintiffs averred that by this time, the white settler was still in Kenya and at the time no African was allowed to own property. It is their case that the 2nd to 5th Defendant’s leased the suit parcel of land to strangers and some to their own employees. The Plaintiffs lists the particulars of fraud and illegality on the part of the Defendants.
It is the 1st, 2nd, 3rd and 5th Defendant’s case that the Plaintiff has not been in possession of the suit land and has never been the legal owner of the same. It is their case that Land Reference Number 3336/6 never existed. It is their case that the 1st Defendant has been the lawful registered owner of the suit property and the 2nd, 3rd and 5th Defendants have an interest in the 1st Defendant to the extent of their shareholding. The 1st, 2nd, 3rd and 5th Defendants denied each and every allegation of fraud and illegality against them.
This court has looked at the list of documents produced by the parties herein. The 1st, 2nd, 3rd and 5th Defendant’s adduced a transfer form dated 11th April, 1974 as DExhb 3. The Plaintiff’s on the other hand filed a List of Documents dated 28th September, 2023 which contained a Resident’s Labourer’s Ordinance adduced as PExhb 2.
The terms of the agreement based on PExhb 2 indicate the deceased was to stay on the land until 6th November, 1957. It also states that “provided that with the written approval of a magistrate or attesting officer this agreement shall be extended for a term not exceeding five years.” The same agreement has the following barely visible hand written remarks at the last page: “To whom it may concern, The bearer Muigai Kimunya has been my employee of many years and is allowed to settle on the land next to the school as a reward for his long service under me LR 3336.”
This court has also looked at PW1’s witness statement filed on 2nd October, 2023. PW1 stated that their father used to work for a white settler by the name S.O.V Hodge from 1957 until sometime on 2nd April, 1984 when his employer gave him Land Reference Number 3336/6.
The foundation of the Plaintiff’s case is that they were given the suit premises by a white settler by the name S.V Hodge. It is a fact that the said gift was not perfected by filing the transfer and registration documents. The Court of Appeal in the case of Henry Muthee Kathurima v Commissioner Of Lands & another [2015] KECA 892 (KLR) considered the South African case of, South African Veterinary Council -v- Szymanski, 2003(4) S.A. 42 (SCA) at [paragraph 28] where the Court held as follows:
“The law does not protect every expectation but only those which are 'legitimate”.
Section 24 of the Land Registration Act provides that:
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 lease.
Section 25 of the Land Registration Act states as follows:
“(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.”
Section 26 states as follows:
“(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”.
This court finds that the Plaintiffs have not proved their case. The Plaintiffs case is hereby dismissed with costs.
a. General Damages
b. A permanent injunction restraining the Respondents either by themselves, their agents, servants and/or personal representative from subdividing/demarcating/selling, leasing and/or transferring land L.R No’s 3336/6 and the resultant amalgamation and subdivisions Land Reference Number 10120/1 and 10120/2.
c. An order directing the 6th Defendant do cancel the titles registered fraudulently and irregularly in respect of land L.R No’s 3336/6 and the resultant amalgamation and subdivisions Land Reference Number 10120/1 and 10120/2.
d. A Declaration that the Estate of Muigai Kimunya Kau (Deceased) is the rightful owner or proprietor of the original land L.R No’s 3336/6.
e. Costs of this suit plus interest thereon.
f. Any further relief as this Honourable Court deems fit to grant.
PLAINTIFF’S CASE
Muigai Njoroge testified as PW1. He testified that he lives at Subukia. His statement dated 28th September, 2023 which was filed on 2nd October, 2023 was adopted as his evidence in chief.
PW1 testified that he has lived in the land in Subukia with his father and mother since 1945 when he was born. PW1 testified that his father died in 1991 and he has not heard that the land was sold. He left the land in 1995 when they were evicted and taken to the police station. He does not agree with the transfer instrument. He prayed that they be given their land.
Upon cross-examination by Mr. Mbeche, learned counsel for the defendants, PW1 stated that he was born in 1945 and he lived in the land up to 1995 which is a period of fifty years. PW1 stated that his father was an employee of a white man but the PW1 himself did not work on the land. PW1 stated that he finished school in 1963 at twenty years. PW1 is claiming land no 3396. They stopped utilizing the land in 1994.
PW1 further stated that his father was given the land in 1984 and the white man left in 1985. He reiterated that his father was given the land as a reward in 1984 and the plot No is 3336. PW1 stated that the ordinance gave only two acres.
PW1 further stated that there are six parcels being: 3336(1),(2),(3),(4) ,(5) and (6) . PW1 stated that the land in dispute is 3336(6). PW1 stated that parcel 10120 was created from 3336/6-2011 acres. He stated that parcel 10120 became 10120/1 and /2- 900 acres. He informed the court that he was given the information by the surveyor. He further stated that he worked there from 1966 to1969 and that after 1969, he worked with Jubilee insurance for one year. The land was amalgamated in 1979 and parcel 10120 came from 3336/6. PW1 stated that parcel 10120 was divided into two and that he does not know the owner of the land in 1974.
Upon re-examination, PW1 testified that the ordinance is dated but it is not clear. His father was given the land in 1984 by Mrs. Hodge and he got the information from the office of survey of Kenya. He does not know how to read maps
Christropher Muhika Muigai testified as PW2. He comes from Subukia Munayaa location. He has a statement dated 25th July, 2024 which the court adopted as part of his evidence in chief. He produced documentary evidence as PEX 1(a) – (b) and PEX 8(a) PEX 8(b)- 8(c).
The import of his testimony is that they lived in the land up to 1988 and they left in 1988. That his father was told to leave by one Isaiah Mathenge. They used the land from 1988 up to 2022. He testified that in 1998, they left the land but continued tilling up to 2022. The land is near the school known as Sidai Primary School. It was PW2’s testimony that they were arrested in 2022 and taken to the police.
They were told not to step on the land but were not charged. The surveyor went to the land and the 1st Defendant’s employees did not allow them on the land. They have not been shown any land and yet they buried their grandmother on the land. The white man did not tell them that he had sold the land. PW2 prayed for judgment.
Upon cross-examination by Mr. Waiganjo, PW2 stated that he was praying for an order that the title be granted to them. His father entered the land before he was born in 1968 and brought up on the land. He went to Sidai primary school. His father was told to vacate. PW2 stated that the land is no 1336/6 and that they are claiming 2000 acres. PW2 stated that they were occupying about 20 acres.
PW2 further stated that they had constructed on parcel 3336/6 and had leased part of the land. He did not know Isaiah Mathenge. He stated that Africans were allowed to own land in 1986. The white man died and was buried on the land in 1978. When the white man died, Mr. Mathenge bought the land and told their father to vacate.
Upon re-examination, PW2 testified that their father was told to vacate in 1987 and he vacated in 1988. He stated that he left in 1988 because he was told to vacate. That they were cultivating as they were given permission by the white man. PW2 testified that this was between 1988 to 2022 and the school is within the land and he did a search. PW2 testified that the land is next to the school and he did not know that the land had been amalgamated.
Johnson Weru Wathuku testified as PW3. He testified that he comes from Subukia. His statement dated 8th January, 2024 was adopted as his evidence in chief. He testified that he knew Muigai Kimunya until he died and that he lived on the suit land with the family. PW3 testified that he built a house on the land and the land is currently occupied by the Defendant.
Upon cross-examination by Mr. Maina, PW3 stated that he entered his land in 1979 and he has lived there to date. PW3 stated that his land is number 221. PW3 testified that he knew Muigai Kimunya in 1979 but does not know the land number. PW3 stated that his land is apparently more than 20 acres and the white man was there. He states that the land was known as Sidai farm and that the whole land was his and the land was part of Sidai farm. He found Muigai on his part and when Muigai left, Mathenge took over the land. He ploughs on his part and knows James Mathenge Mwai. PW3 stated that Mathenge’s son has been on the land. That Muigai Kimunya used to work for the white-man.
Upon-reexamination, PW3 testified that he was given the land in 1982 but he is not sure about the year. PW3 testified that Muigai was given twenty acres near the school but does not remember when Muigai left. PW3 testified that Muigai buried his mother and wife on the land.
Peter Harus Mukonyole testified as PW4. He testified that he has been a principal Land surveyor for fourteen years and is at the Ministry of Land in the directorate of land survey. He is based in Nairobi survey field headquarters and his job number is 2011046700. He was a district surveyor in Nakuru between 2020 and 2024 and has seen the survey records for Sidai farm. PW4 testified that he knows LR No.3336 and LR 10120. He testified that in respect of L.R No 3336, he interacted with it when some people wanted him to locate it on the ground. PW4 testified that LR No.10120 was an amalgamation of LR No.2831.PW4 testified that LR No 10120 was subdivided into LR 10120/1 and 10120/2.
PW4 informed the court that they have an authenticated survey plan and the proportion at the time of subdivision cannot be told. That the subdivision was done in 1974. He testified that LR No.3336 and 10120/1 are related. He testified that LR No 3336 was subdivided into LR No.3336/1-6 and this was in year 1928. He informed the court that in the year 1958, LR No. 3336/6 was amalgamated together with LR 2831 and the resultant land was parcels 10120 and 10121. PW4 testified that parcel 10120 in the year 1973 was subdivided into 10120/1 and 10120/2. PW4 testified that one cannot tell from the map who is the owner. PW4 testified that he was on the land on February, 2023 and there is a school within the land. He testified that the school affects parcel 10120.
PW4 further testified that when amalgamating, two or more parcels numbers, they join the larger parcel and give it a number. PW4 testified that he has done other subdivisions and the subdivision is indicated on the title and that there is no indication of the subdivision of the land in the title and there is a school.
Upon cross-examination by Mr. Maina, PW4 stated that he is a licensed government surveyor and the maps came from his office. PW4 stated that there is no indication of subdivision on the title and he just saw the transfer.
PW4 stated that he has seen the tittle which shows amalgamation of parcels 2851 and 3336/6 resulting into LR 1-10120. PW4 stated that the title has number 10120 and not 10120/1. PW4 further stated that after amalgamation, a new number is created. PW4 further stated that as at 1958, parcel 3336/6 ceased to exist. PW4 informed the court that it is impossible to be given land that ceased to exist. PW4 stated that in 1973, parcel 10120 was subdivided into two portion thus resulting into parcels 10120/1 and 10120/2.
PW4 stated that the total acreage for parcel 10120 was 2011 acres and that parcel 10120/1 was 1,457 acres. PW 4 stated that as at now parcel number 3336 does not exist. He stated that the owners of the land came to him with a title in the name of Mwai Ltd (the 1st Defendant). PW4 stated that Mwai Ltd is the owner of the land.
Upon cross-examination by Mr. Mbeche, learned counsel for the defendants, PW4 stated that he does mutations and surveys. He stated that they match the complaint and current plans. PW4 stated that the title was not owned by Sidai farm but by the 1st Defendant. PW4 stated that he was not going to Sidai farm and he was not working under pressure. PW4 stated that he did not mention the 1st Defendant company.
PW4 stated that in respect of a grant, one looks at the last entry. Upon re-examination, PW4 testified that the letter is addressed to Assistant County Commissioner but he does not know the current titles for the officers in charge of the sub-location and location. PW4 testified that the size has not changed and parcels 3336 and 2851 were amalgamated into two new numbers. PW4 testified that one cannot amalgamate and come up with two parcels numbers of the land.
Caleb Wanjala Sunguti testified as PW5. He testified that he is a deputy chief Land Registrar stationed in Nairobi. PW5 testified that he has served for seventeen years as a Land Registrar and he was employed in 2008. PW5 testified that he is the custodian of the land records and he has the documents for LR No 10120. PW5 testified that he has documents for LR No.10120/1 and L.R NO.10120/2. PW5 testified that LR No 10120/1 is a subdivision of 10120. PW5 further testified that he has a grant for LR No 10120 which is the original grant and subsequent transfer after subdivision of the original number.
PW5 testified that the subdivision is not indicated in the grant and the transfer documents are available. PW5 testified that what he has on record is filed. PW5 testified that his record does not show the stamp of directorship and the last page is not very clear. He testified that he has seen the transfer of LR No. 10120/2 and the transfer was done on 12th June, 1974.
He stated that the transfer was registered and that they were both registered and 10120/1 is registered as entry No.4 on the original copy of the grant. That LR No 10120/2 was registered as entry No.5. PW5 testified that the certificate of title was only issued on LR No. 10120/2. PW5 testified that it was given a title as IR No.38898. PW5 testified that the companies used to have a company seal and Sidai farm did not have a company seal. PW5 testified that documents without a seal do not meet the threshold of registration.
PW5 was shown PExhb 2 and stated that it is a gift of land parcel 3336. He testified that when the parcels of land are amalgamated, they register the amalgamation and they may be given one number. PW5 testified that he has the original title for IR 38898 and the land reference number is 10120/2. PW5 testified that copies cannot give an impression of the seal. PW5 testified that he does not have the original copies. He produced the transfer for LR No 10120/1 as PEX 9, the transfer for LR No 10120/2 as PEX 10 and a certificate of title for LR no 10120/2 as PEX 11.
Upon cross-examination by Mr. Maina, PW5 stated that parcel 10120/1 was transferred on 19th April, 1974 and the documents are similar as they are handwritten. PW5 stated that the first document in the Defendant’s trial bundle is a seal. He stated that there is a seal for Mwai Ltd. He stated that the handwritings are not similar and there is a blank page. PW5 stated that he got the document from their custody.
PW5 further stated that what he has as the transfer was subjected to stamp duty. He stated that parcel 10120/2 was transferred to Mwai Ltd (the 1st Defendant) in April 1974. PW4 stated that gifts are not registered and a gift of the land is made through an ordinary transfer. PW5 stated that there is no transfer as gift to the plaintiff. PW5 stated that the parcel of land belongs to the 1st Defendant and the gift shows LR No. to be 3336.
PW5 stated that LR No.10120 was initially part of 2851 and 3336. He stated that LR No 2831 and 3336 were amalgamated hence they ceased to exist. PW5 stated that the agreement was made in 1957 and the gift was given on 2nd April, 1984. PW5 stated that in 1967, they were allowed to settle on parcel 6592.
Upon cross-examination by Mr. Mbeche, PW5 stated that he is an advocate of the High Court of Kenya. He stated that PEX 21 is a licence to occupy and a licence is a temporary permission to occupy. PW5 stated that the memorandum of agreement had conditions and they used to cultivate maize beans and potatoes. PW5 stated that this was not a transfer of land.
PW5 stated that grant measures 2011 acres and the license gave two acres. PW5 stated that the gift has a rubber stamp and the transfer has an impression of a seal. PW5 stated that they should have used a seal and the license has the impression of a seal. PW5 stated that there was no registered title for parcel 3336 because it had been amalgamated. PW5 stated that the agreement and gift is not on the registrable instrument. He stated that the agreement is not a will.
Upon re-examination, PW5 testified that PEX2 is a gift and LR- 6592 is not a part of the land in dispute. PW5 testified that the gift is in respect of parcel number 3336. He testified that a seal cannot be seen on a photocopied document. PW5 testified that the transfer on record is not a copy document.
PW5 further testified that normally, the registry returns a copy of the original transfer and the copy does not have a seal. PW5 testified that normally, the documents are in triplicate. PW5 testified that the amount payable is on the transfer document and there are several stamps and it should have a stamp. PW5 testified that a gift is always in the form of a will.
DEFENDANTS CASE
James Mathenge testified as DW1. He testified that he is a director of the 1st Defendant company and he has a signed authority to represent the company. He stated that he has a list of documents dated 27th July, 2024 which he produced as DEX 1. DW1 testified that one of the other director is Catherine Muigai and he represents her interest. He produced item No. 1 and 2 as DEX 2. DW1 produced a transfer dated 11th April, 1974. He stated that the transfer refers to LR No10110/1 and he has the original transfer and it deals with LR 10120/1. DW1 went on to produce it as DEX 3. He testified that the 1st Defendant company has owned the land since 1974. DW1 testified that in 1974, he was 17 years old and that he became a director of Mwai Ltd (the 1st Defendant Company) in 1992. He testified that the land is utilized for mixed farming and they do beef, dairy and coffee farming.
DW1 testified that he has studied agriculture, animal science and animal breeding. DW1 testified that he has never known the plaintiff and he has never seen them. DW1 testified that they are not co-owners or farmers and he knew Johnson Weru and he was a school teacher and his neighbour. DW1 testified that he requested to graze on the land and DW1 allowed him to graze in 1982 which he did for several years. DW1 testified that the plaintiffs are total strangers and the land is 2011 acres which he occupies solely.
Upon cross-examination by Mr. Ondande, DW1 stated that he does not have the mutation forms and the 1st Defendant company owns 10120. DW1 stated that he has a title for parcel 10120 and the document was signed by Hodge. DW1 stated that the transfer was in the banks custody. DW1 stated that he heard the Land Registrar mention subdivision and he does not have any documents showing any subdivision. DW1 stated that he settled in the farm in 1982 and he does not know the plaintiffs. DW1 stated that he has never had them arrested. DW1 informed the court that he never discussed with his father about the plaintiff. DW1 stated that he has no evidence that he is a director. He stated that there is a school within the farm and he has never seen the plaintiff in the farm.
Upon re-examination, DW1 testified that he has a restriction from the 1st Defendant company signed by himself and Catherine Muigai. He testified that PEX 2 does not refer to their parcel of land and parcel 10120/1 belongs to the 1st Defendant company.
PLAINTIFF’S SUBMISSIONS
Counsel for the Plaintiff filed submissions dated 16th January, 2026 and identified the following issues for determination:
a. Whether Sidai Farm Ltd validly gifted the suit land to the Plaintiff’s father?
b. Whether the Defendants have proved a lawful and continuous chain of title from Sidai Farm Ltd?
c. Whether the Defendants’ documents are fatally irregular and tainted by fraud?
d. Whether the Plaintiff’s interest takes priority?
Counsel submitted that it is undisputed that Sidai Farm Ltd was the original registered proprietor of LR No. 3336. Counsel submitted that the Plaintiff’s claim flows from a gift made by Sidai Farm under the Resident Labourers Ordinance to the Plaintiff’s father. Counsel submitted that the gift conferred an equitable proprietary interest on the Plaintiff’s father. It was counsel’s submission that the Plaintiff’s family has been in continuous possession of the land and the Plaintiff’s interests predates and supersedes any unregistered or irregular document claimed by the Defendants.
Counsel submitted that the Defendants have failed to discharge the burden of establishing a lawful, continuous chain of title to themselves. Counsel submitted that a company cannot lawfully transfer land without cooperate formalities. Counsel also submitted that the Defendant’s transfer refers to LR 10120/1 which did not legally exist in 1974. Counsel also submitted that there is no transfer for LR 10120/2. Counsel asked the court to grant the orders sought in the Plaint.
1ST, 2ND, 3RD AND 5TH DEFENDANTS SUBMISSIONS
Counsel for the 1st, 2nd, 3rd and 5th Defendants filed submissions dated 28th January 2026. Counsel submitted that the Plaintiffs have failed to prove their ownership claim as against the Defendant. Counsel submitted that the surveyor’s and registrar’s testimony was harmonious to the extent that the 1st Defendant is the lawful and legal owner of land parcel numbers for L.R No 10120/1, and for L.R NO 10120/2 that was formed out of parcel number L.R 10120, after subdivision, in 1973 which was a product of amalgamation of parcel numbers L.R 2851 and 3336/6 in the year 1958. Counsel submitted that it is impossible for the Plaintiff to have been allocated land that ceased to exist in 1958. Counsel relied on the following cases: Re Estate of the Late Sawe Maina [2023] KEHC 3743 (KLR) and In re Estate of the Late Gedion Manthi Nzioka (Deceased) [2015] eKLR.
Counsel asked the court to find in favour of the Defendants and award costs to the 1st, 2nd, 3rd and 5th Defendants. Reliance was placed on Section 27 of the Civil Procedure Act (Cap 21).
ANALYSIS AND DETERMINATION
The issues for determination is whether the Plaintiffs are entitled to the orders sought in the plaint. It is the Plaintiffs case that the Plaintiffs are the sons of Muigai Kimunya Kau (deceased) who is the rightful owner of the suit land. It is their case that Land Reference Number 3336/6 was amalgamated with 2851 to form 10120. It is the Plaintiffs case that it was again subdivided to form Land Reference Numbers 10120/1 and 10120/2 by the Defendants herein.
It is the Plaintiffs case that sometime on 2nd April, 1984, Muigai Kimunya Kau (deceased) was allocated parcel of Land Reference No 3336/6 by his employer, a white settler, as a gift for appreciation for the years served at Sidai Farm Limited. It is the Plaintiffs case that the deceased lived and cultivated on the said property with his family for years until he passed away on 9th May, 1991.
The Plaintiffs averred that soon after the deceased passed away, the Provincial commissioner, then one Isaiah Mwai Mathenge (also deceased) encroached on the suit property pushing out the Plaintiffs and other family members. It is the Plaintiffs case that they later on realized that the 1st Defendant company had fraudulently subdivided the parcel of land and transferred to itself all the parcel of land allegedly in 1974. The Plaintiffs averred that by this time, the white settler was still in Kenya and at the time no African was allowed to own property. It is their case that the 2nd to 5th Defendant’s leased the suit parcel of land to strangers and some to their own employees. The Plaintiffs lists the particulars of fraud and illegality on the part of the Defendants.
It is the 1st, 2nd, 3rd and 5th Defendant’s case that the Plaintiff has not been in possession of the suit land and has never been the legal owner of the same. It is their case that Land Reference Number 3336/6 never existed. It is their case that the 1st Defendant has been the lawful registered owner of the suit property and the 2nd, 3rd and 5th Defendants have an interest in the 1st Defendant to the extent of their shareholding. The 1st, 2nd, 3rd and 5th Defendants denied each and every allegation of fraud and illegality against them.
This court has looked at the list of documents produced by the parties herein. The 1st, 2nd, 3rd and 5th Defendant’s adduced a transfer form dated 11th April, 1974 as DExhb 3. The Plaintiff’s on the other hand filed a List of Documents dated 28th September, 2023 which contained a Resident’s Labourer’s Ordinance adduced as PExhb 2.
The terms of the agreement based on PExhb 2 indicate the deceased was to stay on the land until 6th November, 1957. It also states that “provided that with the written approval of a magistrate or attesting officer this agreement shall be extended for a term not exceeding five years.” The same agreement has the following barely visible hand written remarks at the last page: “To whom it may concern, The bearer Muigai Kimunya has been my employee of many years and is allowed to settle on the land next to the school as a reward for his long service under me LR 3336.”
This court has also looked at PW1’s witness statement filed on 2nd October, 2023. PW1 stated that their father used to work for a white settler by the name S.O.V Hodge from 1957 until sometime on 2nd April, 1984 when his employer gave him Land Reference Number 3336/6.
The foundation of the Plaintiff’s case is that they were given the suit premises by a white settler by the name S.V Hodge. It is a fact that the said gift was not perfected by filing the transfer and registration documents. The Court of Appeal in the case of Henry Muthee Kathurima v Commissioner Of Lands & another [2015] KECA 892 (KLR) considered the South African case of, South African Veterinary Council -v- Szymanski, 2003(4) S.A. 42 (SCA) at [paragraph 28] where the Court held as follows:
“The law does not protect every expectation but only those which are 'legitimate”.
Section 24 of the Land Registration Act provides that:
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 lease.
Section 25 of the Land Registration Act states as follows:
“(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.”
Section 26 states as follows:
“(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”.
This court finds that the Plaintiffs have not proved their case. The Plaintiffs case is hereby dismissed with costs.