ELICANA WALELA LUNANI & MILLY KHAYANGA LUNANI VS CARLSBERG INTERNATIONAL LIMITED AND DKO INVESTMENT LIMITED AND 3 Others

Introduction
1. The Plaintiffs commenced this suit vide and Plaint dated 28th September, 2022. It was the Plaintiffs’ claim that at all material times in this suit, Shaphan Lunani Walela (now deceased) was the registered proprietor of all that property known as LR. No. 3803/3 situated in Trans Nzoia County. Further, the transfer of the property to the late, Shaphan Lunani Walela was duly registered in the Central Lands Registry on 27th March 1971. His Estate was therefore the bona fide owner of the property. The said Shaphan Lunani Walela died on 20th August 2013 and leaving behind a Will. The property still remained registered name of the said Shaphan Lunani. The plaintiffs, in their capacity were executors of the Will, embarked on the process of Succession. A Grant of Probate with Will annexed was made on 7th February 2019 in Kitale High Court Probate and Administration Cause No. 8 of 2018, In the matter of the Estate of Shaphan Lunani.
2. The Succession Cause was still ongoing and pending confirmation of the Grant and distribution of the property to the beneficiaries. During that process, on 20th April 2022 the Plaintiffs received a letter dated 20th April 2022 from Angaya and Company Advocates who claimed to be acting on instructions of the 1st to 3rd Defendants. It indicated that they were in the process of obtaining a purchaser for the property and consequently taking cognizance of the fact that the plaintiffs had cultivated the it with crops, the 1st to 3rd defendants put them on notice not to cultivate it in the next season since the Defendants intended to seize their property and put it up for sale.
3. Then the 1st and 2nd defendants presented the Plaintiffs with a copy of Certificate of Title Number 239057 and the lease number for CF 303856 over parcel No. LR 3803/3, supposedly filed at the Lands Central Registry, Nairobi, on 18th December 2022 and purportedly allocated or issued by the 3rd and 4th Defendants to the said 1st and 2nd Defendants.
4. Further, the Plaintiffs claimed that they had never disposed of the suit property to the 1st, 2nd and 3rd Defendant or any other party and neither was the property available for sale. They added that their late father did not dispose of the property or receive any consideration thereof. The plaintiffs then averred that they registration of the property in the names of the 1st to 3rd Defendants was obtained unlawfully, fraudulently and illegally. They gave the particulars of fraud and illegality as follows:
a) Fraudulently obtaining title to property. Way after the registered owner had passed on.
b) Fraudulently obtaining a lease to the property after the registered owner had passed on.
c) Engaging in acts of forgery leading to issuance of the said title and lease.
d) Failing to reasonably establish the law for the owner of the property.
e) Purporting to be, and fraudulently passing themselves as, the owners of the property.
f) Attempting to fraudulently dispose of the property of the estate of the deceased.
5. The Plaintiffs pleaded that arising from the Demand Notice by the 1st, 2nd, and 3rd Defendants, several persons claiming to be interested buyers had been visiting the property supposedly to view it. The Plaintiffs were apprehensive that the property could be sold or offered for sale at any time to their detriment. The plaintiffs then prayed for a number of declarations as below, and a permanent injunction against the f1st, 2nd and 3rd Defendants. They sought the following orders:
a) A declaration that the Estate of the Late Shaphan Lunani Walela is the bona fide and lawful owner of all that parcel of land known as L.R NO. 3803/3 situate in Kitale within Trans Nzoia County.
b) A declaration that the Certificate of Title No. 239057 and the Lease thereof serial number CF 303856 supposedly filed on 18th December 2022 (now before) purportedly allocated or issued by the 3rd and 4th Defendants to the 1st, 2nd, and 3rd Defendants are unlawful, null and void ab initio.
c) A declaration that any excision, allocation, sale, transfer, dealing or vide any other manner whatsoever by the 1st, 2nd, and 3rd Defendants over L.R NO. 3803/3 situate in Kitale within Trans Nzoia County being an asset comprising part of the Estate of the Late Shaphan Lunani Walela is unlawful, fraudulent and illegal. 
d) A declaration that any other documents by the 3rd and 4th Defendants (sic) purporting to issue title over L.R NO. 3803/3 situate in Kitale within Trans Nzoia County to the 1st, 2nd and 3rd Defendants are unlawful, null and void ab initio.
e) That a permanent injunction do issue to restrain the 1st, 2nd and 3rd Defendants either by themselves, employees, servants, agents of any other person purporting to act on their instruction or at their instance from encroaching onto, trespassing on, taking possession of, offering for sale, selling, or in any other manner whatsoever dealing or interfering with the Property known and registered as L.R NO. 3803/3 situate in Kitale within Trans Nzoia County.
f) Any other of further order that this Honourable Court may deem fit to grant.
g) That the Defendants be and are hereby ordered to pay for the costs of this suit.
6. The 1st to 3rd Defendants entered Appearance dated 14th October, 2022 on 17th October, 2022. They filed their Defence and Counterclaim dated 28th November, 2022. In their written Statement of Defence and Counterclaim the 1st to 3rd defendants denied the contents of the Plaint in paragraph 6. They added that at no time was the late Shaphan Walela registered as proprietor of that parcel of land known as LR. 3803/3 situation Kitale. They were strangers to the averments by the plaintiffs that their late father passed away on 20th August 2013, leaving a Will. They traverse the Plaintiffs’ claim that the property remained registered in the name of the late Shaphan Lunani Walela and that there were Succession proceedings touching on the property as pleaded in paragraph 10 of the Plaint. They denied paragraph 11 of the plaint, specifically that the succession cause proceedings were still ongoing and pending the Confirmation of Grant. They added that if there were any such proceedings then they were erroneous and did not confer legitimate proprietary rights to the suit property based on the fact that the property had been irregularly listed as the deceased’s property. 
7. They admitted paragraph 12 of the plaint which was to the effect that the advocate issued a letter to the Plaintiffs and also that said letter indicated that they were in the process of obtaining a purchaser for the property and the plaintiffs should cease any activity on the land. They admitted that the they presented a copy of the certificate of title in the issue and the lease thereof to the plaintiffs and added that the Lease in question was registered on 18th December, 2021 and not as erroneously indicated by the plaintiffs as 18th December 2022. They denied the contents of paragraph 15, 16 and 17 of the plaint which were to the effect that the plaintiffs as Executors of the Estate of the late Shaphan Lunani had never disposed of the property and even the father had not done so. They denied the particulars of fraud and illegality as given in paragraph 17 of the Plaint.
8. The first, second and third defendants admitted paragraph 18 of the plaint which was to the effect that there were buyers who had been contacted in relation to sale of the property and added that they had a legitimate constitutional right to offer it for sale since they were the owners. Further, as a result it was not detrimental to the estate of the late Shaphan Lunani or at all to sell the property. They admitted the jurisdiction of the court and raised a counterclaim after praying for the dismissal of the plaintiffs’ suit.
9. In the counterclaim they pleaded that they were the bona fide registered owners of the suit land. They became registered as owners after they applied for a letter of allotment, obtained the lease and finally were issued with the certificate of Title number 245327. They pleaded that the plaintiffs had illegally been cultivating the suit property and therefore their rights of ownership had been grievously trampled upon. They sought the following reliefs:
a) A Declaration be and is hereby made that the 1st -3rd Defendants (Plaintiff in the Counterclaim) are the bona fide and registered owners of LR NO. 3803.
b) A Declaration be and is hereby made that the Plaintiffs (Defendants in the Counterclaim) have trespassed on to the 1st -3rd Defendant’s property.
c) General damages for trespass to land.
d) Mesne profits.
e) An Eviction order be granted to the 1st to 3rd Defendants against the Plaintiffs and any other person working at the behest of the Plaintiffs.
f) Interest on (c) and (d) above.
g) Costs of this suit.
10. The 4th and 5th Defendants entered Appearance dated 13th March 2023 on the same date. They filed their Statement of Defence dated 5th July, 2023 which they amended on 8th July 2025 by filing one dated 7th July 2023. In it admitted the descriptive parts of the Plaint. They pleaded that they denied the contents of the Plaint and added that they were not privy to allegations in paragraphs 8, 9, 10,11, 12, 13, 14, 15 and 16 of the Plaint. They denied the particulars of fraud in respect of the parcel No. LR. 3080/3 (sic) and added that the transactions thereof were made in receipt of a valid transfer and the compliance documents were duly executed and paid for as required by law. Further, they were effected within the purview of the Land Registration Act, 2012 and other enabling instruments.
11. They averred in the alternative that they did not participate in the alleged fraud hence no cause of action was disclosed against then save that they were custodians. Further, in the alternative, the records held in by them and in their possession outlined the history relating to parcel No. LR. 3803/3 as follows:
(a) Land parcel LR. 3803/3 measuring 863 acres and the 1st, 2nd and 3rd Defendants were currently the registered proprietors as per the Certificate of Title No. IR. 245327 dated 18/12/2021.
(b) Land parcel LR. 3803/3 is a subdivision from LR. 3803 which was effected on 08/09/1960 vide Deed Plan number 48389. The other resultant numbers were LR 39=803/1 and LR 3803/2.
(c) Upon subdivision the records do not show where LR. 3803/3 was registered to any person. On those premises LR. 3803.3 was deemed as being unalienated government land and allegedly allocated to the 1st to 3rd Defendants.
12. Further to the averments above, the 4th and 5th Defendants alleged that if there was any fraud in respect of the parcel LR 3803/3 situate in Kitale, as alleged by the Plaintiffs, it was done by the 1st, 2nd and 3rd Defendants without the Notice, knowledge and participation of the officers of the said Defendants. They pleaded the following particulars of fraud by the 1st, 2nd and 3rd Defendants:
a) Presenting forced documents to the 4th and 5th Defendants to effect transfer of land parcel No. LR. 3803/3;
b) Misrepresenting facts to the officers of the 4th and 5th defendants.
c) Failure to disclose full information to the 4th and 5th Defendants.
d) Misrepresenting officials of the 4th and 5th Defendant and actual status quo.
13. They denied further the rest of the Plaint except the jurisdiction of the Court. They prayed that the Plaintiffs suit be dismissed with costs.
Plaintiff’s case
14. ELIKANA LUNANI WALELA, the 1st Plaintiff, testified as PW1.  He adopted his written witness statement dated 28th September, 2022 as his evidence in chief. In the statement he stated that he was one of the Executors of the Estate of the late Shaphan Lunani Walela and one of the plaintiffs. He was versed with the matters concerning the Estate. He was aware that his late father was the registered owner of that parcel of land, known as LR. 3803/3 situate in Trans Nzoia. He attached to the Statement a copy of the title to the property. He added, the transfer to his father was made on 27th March 1971. His father died on 20th August 2013. He attached to his statement of copy of the certificate of death. He added that the property remained in the name of his late father.  He attached a copy of a Search conducted regarding the property.
15. Further, upon becoming the Executor of the Estate he embarked on the process of succession and the grant of Probate with Will annexed had been made to the plaintiffs in February 2019 by the High Court in Kitale in Probate and Administration Cause No. 8 of 2018. He attached a copy of the Grant to the statement. He added that the succession proceedings were still pending confirmation.
16. He added that he was shocked when the Estate received a letter from the Defendants’ lawyers. It was dated 20th April 2022. It stated that they had been instructed by the defendants to notify him that the 1st to 3rd Defendants were the owners of the property. He attached to the statement a copy of the letter. Further, the letter indicated that the lawyers were in the process of obtaining a buyer of the property and the defendants should cease any activities on the property, particularly farming activities since during the then current season they had planted crop.
17.  He added that the lawyers presented to him a copy of the certificate of title number 239057 and a Lease thereof No. CF 303856 for parcel LR. 3803/3. Further, it was evident from the documents presented that they were unlawfully, illegally and fraudulently obtained after the demise of his late father Shaphan Walela Lunani. He produced a copy of the supposed Title and Lease.
18. He added that neither he or they as Executors nor their late father had disposed of the property to the first, second and third defendants, or any other party and the property was not available for sale. It remained in the name of the late father and was pending completion of succession process. The first, second and third defendants were not listed as beneficiaries of the estate.
19. He added that the 4th and 5th defendants were invited to provide an explanation as to the circumstances of the issuance of the certificate of lease and the Lease thereof. Further, the supposed lease was filed in the year 2022, which is in the future (as at the time of filing the suit) and it was therefore possible that the same could have been sold to the first, second and third defendants.
20. He stated again that upon receipt of the documents, they reported the matter to the Police Station at Kitale and were given the Occurrence Book No. OB/69/30/8/22 and the matter was pending investigation. Again, he stated that several people had been visiting their property claiming to be interested buyers at the instigation of the first, second and third defendants. The estate of the late Shaban Walela Lunani was apprehensive that the property could be sold or offered for sale anytime to their great detriment.
21. When the matter came for hearing, he testified that the suit parcel LR NO. 3803/3 belonged to his late father. He testified that before filing the suit, he learnt that the Defendants claimed to have acquired a lease to the farm and had sent agents to the suit property.
22. He produced the original certificate of lease for LR NO 3903/3 as PExhibit -1, the original Certificate of Death of Shaphan Lunani Walela as PExhibit -2, a Certified copy of official search as PExhibit -3, a certificate of Probate and Confirmation of Grant as PExhibit 4 (a) and (b) and a demand letter dated 20th April, 2022 as PExhibit -5.
23. He testified that his late father had been in possession of the property since 1971. He used to use it for farming. He added that the title deed and search documents did not show any entry of surrender or cancellation of the title. He also produced a copy of the title and lease as PEXhibit 6 & 7 respectively. For reason of the copy of the application for Consent of Land Control Board being unclear it was marked as PMFI  9 (a) and (c) but later was produced as PExhibit 9 (a) and (c). The copy of the letters forwarding the form the consent was marked as PMFI- 10 (a) and (b). He produced a certified copy of Consent as PEXhibit 10 (c) the letter dated 15th June, 2021 to the Public Trustee as PEXhibit 11, National Land Commission (NLC) letter dated 22nd September, 2021 as PEXhibit -13, PEXhibit -13, Application for consent marked as PMFI- 14 and a copy of forwarding letter dated 6th August, 1970 produced as PEXhibit -15.
24. He produced further a copy of letter dated 18th August, 1970 as PEXhibit -16, a certified copy letter dated 12th September, 1970 as PEXhibit -17, letter dated 4th March, 1971 as PExhibit 18, letter dated 6th March, 1971 as PEXhibit 19, memorandum of transfer dated 19th March, 1971 as PExhibit 20, copy of the application as PEXhibit 21, unclear copy of letter at page 90 marked as PMFI-22, rent payment receipts as PEXhibit 23  & 24 and Newspaper Article of 12th October, 2023 marked as PMFI 25.
25. He testified that the entry No. 25 in PExhibit 1 showed a transfer to Lands Ltd end at No. 26 to his father at a consideration of Kshs. 260,000/=.
26. He testified that the National Land Commission (NLC) had stated that they were not aware of any re-allocation of the land as of 22nd September, 2021 as shown in PEXhibit 13. He testified that the property was therefore not available for allocation to the Defendants. He added that he had referred to the loan facilities granted to his late father, and it was not possible that the bank would grant a title that did not belong to his father. He added that the property was not available for allocation to the 1st to 3rd Defendants.
27. Upon cross-examination by Mr. Angaya for the 1st and 3rd Defendants, PW1 testified that the property was 816 acres with a deed plan No. 11703. He confirmed that the Plan showed the acreage as 1006 acres. 
28. He admitted that he did not have a copy of the sale agreement from Lands Ltd. to his father, or the charge and discharge documents.
29. He stated that number 3803 was not the same as 3803/3. He was referred to entry No. 25 on PExhibit 1 where he confirmed that the same was a transfer to Lands Ltd on 29th May, 1970.
30.  PW1 was referred to DMFI-5, a letter from the Area Chief, dated 23rd August, 2012, which listed Nathaniel Tum, Michael Wamalwa Kijana, Shaphan Lunani, and Elikana Lunani as persons the land had been leased to in different years. He stated that the said Chief wrote after his name that there were 50 squatters on the farm. He added that as at 2012, the said Chief would know the owner of the suit land.
31. Upon cross-examination by Mr. Odongo for the 4th and 5th Defendants, PW1 stated that he was born in 1954. In the year 1971, he was 17 years old. He admitted that most of the information he gave was hearsay as received from his father or read it from the documents (he relied on). He denied any knowledge of squatters on the farm. Further, he refuted the claim that Nathaniel Tum used the land.
32. Upon re-examination, he stated that the consent letter (PEXhibit 10(c)) and Memorandum of transfer (PEXhibit 20) confirmed the transaction between Lands Ltd. and his father was for 3803/3. He denied the information in the Chief's letter, which stated that he never leased the property, nor had his father or the others mentioned leased the suit land. He further stated that reference to Stephen Nyapara and squatters related to another parcel of land. He added that there were no squatters on the property in dispute.
33. He stated that while entries 17 and 18 for LR 3803/1 and 3803/2 resulted in new certificate titles, entry No. 19 for LR 3803/3 did not show the creation of a new certificate of title. He however confirmed that it reflected the 816 acres his father acquired. He stated that a transfer was not a surrender or cancellation of title.
34. MILY KHAYANGA LUNANI, the 2nd Plaintiff, testified as (PW2). She adopted her witness statement dated 28th September, 2022 as her evidence in chief.
35. In the written Statement she stated that that she was the daughter of the late Shaphan Lunani Walela and therefore well versed with the matters of the Estate. She added that she had read the contents of the statement by Elicana Lunani Walela, her coExecutor and wished to adopt the same as her evidence. She added that to her knowledge, the Estate of the late Shaphan Walela Lunani was not aware of and neither had it ever disposed of the said property to any parties. It was therefore a matter of grave concern as to how the first, second and third defendants obtained the said title documents. There was a danger of the property being exposed to the grave risk of sale and therefore divesting the Estate of the same. She prayed for the protection of the court.
36. She testified orally that the property belonged to her late father who acquired in 1971. She added that they had lived on it since childhood. She confirmed that she personally paid land rent on behalf of her father. She referred to PExhbit 23 and 24 as the evidence thereof.
37. Upon cross-examination by Angaya, she admitted that she never knew the person who owned LR 3803/1 or 3803/2. She stated that she believed the Wamalwa family owned 3803/1.
38. She stated that her late brother was Peter Lunani who lived on 3803/3 only. She admitted that from her earlier statement, she stated that he lived on the adjacent land. She confirmed that the property was included in her father's Estate, and new titles would be issued to beneficiaries after completion of Succession proceedings upon surrender of the current title.
39.  Upon cross-examination by Odongo, PW2 stated that she did not know the origin of LR 3803/3. She stated that she relied on PEXhibit 1 which was for LR 3803 (1006 acres). She admitted that they did not have a title specifically for LR 3803/3. She further admitted that she was 14 in 1971 and never participated in the property transaction. She confirmed that her knowledge on the same emanated from what she saw.
40. Upon re-examination, she stated that PEXhibit 1 was the title her father bought. Further, they (family) had not been given an alternative.
41. She further stated that while new titles were issued for entries 17 (LR 3803/2) and 18 (LR 3803/1), the entry 19 for 3803/3 in respect of 816 acres never showed the creation of a new certificate. She, however, added that it, the acreage on LR 3803/3, was the same acreage her father acquired. She stated that her late brother Peter was buried on the subject property, along with her parents and two late sisters. She stated that this showed continuous family presence.
42. That marked the close of the Plaintiff’s case.
1st, 2nd and 3rd Defendant’s case
43. Daniel Gutu the Forensic Document Examiner testified as DW1. He testified that he was instructed to compare two copy documents (A1, a Certificate of Title, and A2, a search) to determine if A1 was a copy of A25.
44. He testified that A1 and A2 were not copies of each other, despite referring to the same land. He testified that there were differences in entries. He further testified that they were of different authors.
45. He testified that A1 was a replica of PEXH 1 (Plaintiff's title) and A2 was a replica of PEXH 3 (Plaintiff's search). He testified that he had prepared a report on 6th March, 2023 which he produced as 1st - 3rd DEXH 7
46. Upon cross-Examination by learned counsel Mr. Maondo for the Plaintiffs, he stated that his instructions were not to confirm that the documents had to be copies, but to simply compare them. He admitted that he did not examine forgeries or see the authors of the documents. He stated further that while the content of the entries might be the same, the handwriting and signatures were by different authors, which he deemed not normal for a document which was supposed to be a replica.
47. Upon re-examination, he stated that his opinion would not change even if he saw the original documents.
48. The court asked the witness to clarify further on the document. He added that the content was the same, but the writings and signatures in specific entries (21, 23, 24) were by different persons.
49. Daniel Okello Akama, the 1st Defendant’s Director, testified as DW2. He adopted his written witness statement dated 28th November, 2022 as his evidence in chief.
50. In the detailed statement the witness stated that he was the director of the first defendant company and authorized to give testimony on behalf of the directors of this first, second and the third defendants. He had seen the contents of the plane and the supporting documents and wished to state that the first second and third defendants were the true and bona fide registered owners of the parcel of land LR. 3803/3 measuring about 816 acres. They became registered proprietors after they applied for a letter of allotment and obtained the lease and finally were issued with the certificate of title No. 245327. The legitimacy of the title was confirmed by Search Certificate. 
51. The entire process was above board since they verified that the property in issue belonged to the government after it was surrendered around the year 1960 and was never allocated to any of the plaintiffs or their relatives.
52. Further, the property could not be subject of the Succession Cause number 8 of 2019 since it never belonged to the Estate of Shaphan Lunani Walela hence no process of succession can pass title to the plaintiffs. Prior to seeking allocation to the suit property, one of the documents the 1st, 2nd and 3rd Defendants obtained was a survey plan for the original parcel number LR. 3803. It determined the fact that the land had been subdivided into parcel numbers 3803/1, 3803/2 and 3803/3. However, LR. 3803/3 did not have any title after the surrender.
53. He added that the Plaintiffs deliberately and curiously failed to produce a title to LR. 3803/3 and the deed Plan in the proceedings, but instead waved around a doctored title number IR 172 together with a deed plan which belonged to LR 3803.
54. He added that indeed they had instructed their advocates to notify the plaintiffs not to cultivate the land any further after the current crop and they were shocked to realize that instead the plaintiffs decided to cause cancelled title No. 172 and doctored it to suit their narrative. They believed that the suit filed against the defendants was based on a non existent and forged document and disclosed no reasonable cause of action by the plaintiffs. 
55. He added that the annexed Title by the plaintiffs as ELW 1and ELW3 were terribly done forgeries that could not explain basic land subdivision and transfer procedures but also irredeemably contradicted each other and did not resemble. He listed a number of discrepancies in regard to the entries on the Titles relied on by the plaintiffs. These were that the title produced by the plaintiffs was doctored to suit the original title number IR. 172 that belonged to parcel number LR. 3803 subdivided decades ago. Secondly, the plaintiffs claim to all of that number was not logically possible since IR No. 172 ceased to exist upon subdivision of the LR. 3803 giving rise to a new titles with new deed plans. Thirdly, parcel number 3803 was subdivided around 1962 and gave rise to the three parcels of land, namely, 3803/1, LR. 3803/2 and LR. 3803/3 which entries he listed. The witness added that no authentic search had been produced by the plaintiffs to show their ownership of parcel number LR. 3803/3. 
56. He added that when he conducted a further search on the Kenya Law Report, he established that one R. C. Chepkwony from the Office of the Public Trustee was the administrator of the Estate of Shaphan Lunani Walela of P. O. Box 2063 Kitale who died on 20th August 2013 and the fact he died intestate. Further, he added that:
i. The application and the entire suit was without legal basis.
ii. The application had not laid the prima facie case against the respondents with the probability of success.
iii. The defendants had not interfered with the plaintiffs’ property to warrant the orders sought. 
iv. The plaintiffs had not provided ownership of parcel LR. 3803/3
v. The applicants’ property for 3803 was not one of the neighboring properties and there was no such number in existence in the neighborhood.
vi. From the suit filed the plaintiffs. if the property existed, it was different and distinct from that 8033/3.
vii. The defendants had not encroached or trespassed or carried out any activities whatsoever on the plaintiffs’ property.
viii. No evidence had been given to warrant the issuance of the orders.
ix. The applicants were not fishing expedition.
x. The plaintiffs were guilty of nondisclosure and concealment of material facts and could not deserve the discretionary remedies sought.
xi. The suit did not disclose any reasonable cause of action against the respondents.
xii. The orders sought were incapable of being granted and if they were, they could overturn their status quo and put the plaintiffs in possession of the land they had no legal or equitable interest in.
xiii. The plaintiffs have not produced any evidence to show that they would suffer in irreparable loss. Which could not be compensated by way of damages.
xiv. He added that Eleanor 38033 was leased from the government of Kenya hence, ideally it was owned by the government and the government was the only body capable of leasing out the land to the defendants.
57. It was his oral testimony that the 1st Defendant acquired an allotment letter for LR. No. 3803/3 on 12th September, 2013. He further testified that the land was a new allocation. Further, it was initially public land with no prior title to it. He produced the original title documents and a lease as 1st to 3rd Exhibits (DEXH 1-6).
58. He testified that the original parcel LR 3803 had been subdivided into 3803/1, 3803/2, and 3803/3, with 3803/1 and 3803/2 being occupied by other people, while 3803/3 was allocated to the company. He added that the said parcel was formally used for grazing. It had no structures. He testified further that the Plaintiff's title was for LR 3803 and it was different from theirs, LR 3803/3. He not aware that the Plaintiff’s relatives had been buried on the suit land
59. Upon cross-examination by Odongo, DW2 admitted that they (1st to 3rd defendants) did not have an application letter for the allocation, a letter of acceptance of the allotment, or receipts for the acceptance payment in court. He confirmed that without the said documents, the offer (of allocation) might have lapsed and their title would not be complete.
60. Upon cross-examination by Maondo DW2 stated that the 3rd Defendant (Dawn Innovations Limited) was incorporated on 9th April, 2014, after the 12th September, 2013 allotment letter was issued, yet it was listed as an owner. He also stated that the 3rd Defendant initially existed as a business known as Dawn Innovations.
61. He admitted that the lease documents were only signed by the 1st Defendant’s directors. He further admitted that there was no lease signed by the 2nd and 3rd Defendants.
62. He confirmed that there was a discrepancy in the land use since the allotment letter described the property as a "residential plot" while the lease stated "agricultural purposes".
63. DW2 admitted that the demand letter to the Plaintiffs, which implied the intention to sell the property was issued before their lease had been finalized, and even before their certificate of title had been issued.
64. Upon re-examination DW2 stated that while the 1st to 3rd Defendants’ initial intention was farming, they decided to sell the property after they got the title. He stated that the allotment letter was obtained from the Ministry of Lands. He added that they had not received any communication from the government which invalidated their documents. He added that the 1st, 2nd and 3rd Defendants co-owned the suit property.
65. That marked the close of the 1st, 2nd and 3rd Defendants’ case.
4th and 5th Defendants’ case
66. George Gichere Githonga, the Land Registrar testified as the 4th and 5th DW1. He testified that he had received summons to attend court so as to provide the file for parcels LR 3803, 3803/1, 3803/2 and 3803/3. He testified that it was the Ministry of Lands' policy to provide certified copies of land registries instead of physical files, and he had the certified copy in Court. He produced the Survey Plan, Certificate of Title, Deed Plan, letter dated 23rd August, 2020 and Certificates of Incorporation, Kenya Revenue Authority (KRA), Personal Identification Number (PIN) and Compliance Certificates for the three Defendant companies as 4th & 5th DEXH 1 – 8. He also produced the certified copy of IR 172, LR. 3803 as DEXH 9.
67. It was his testimony that regarding parcel No. LR 3803, their department, that is to say, the Department of Lands, issued a title LR 245327 in the name of the 1st to 3rd Defendants pursuant to a lease.
68. He explained that entries 17 and 18 for LR 3803/1 and LR 3803/2 resulted in new titles and separate deed files. He further explained that Entry No. 19, which transferred 816 acres (LR 3803/3) to Henry Gordon Ross never indicated that a new title had been created. He testified that from the total acreage of the titles relating to entries 17, 18, and 19, which was 1006 acres, meant that the mother title LR 3803 had been extinguished. That being the case, it should have been closed.
69. He testified that entries subsequent to entry 19 including the transfer to Lands Ltd and then to Shaphan Lunani Walela (deceased) were irregularly recorded on the mother title. He testified that a new file should have been opened for LR 3803/3.
70.  Upon cross examination by Angaya, he confirmed that a new Deed Plan was issued upon subdivision, and that the entries from 19 to 25 on the mother title were mis-recorded. He stated that a search on the register should reveal that the handwriting on both the original title and the Land Register were similar for each entry at a particular time. He added that if a Land Register and the owner's title showed different handwritings for the same entry, it would be suspicious, unless it's a reconstructed register.
71. Upon cross-examination by Maondo, he admitted that he was unaware of the practice in 1952 but confirmed that the same Act or Statute (law) was in use.
72.  He stated that if the title was not closed, entries could still be made on it, and that about 80% of the property (816 acres) remained (on the title) after the earlier excisions.
73. He confirmed that DEXH 9, the Grant, showed that the land had been transferred to Shaphan Lunani Walela under entry 26. He stated that the same ceased to be government land. Further, it could only revert to government through a surrender, a Settlement Fund Trustees (SFT) purchase, or compulsory acquisition.
74. He confirmed that the company incorporated in the year 2014 would not be in existence in the year 2013 when the letter (of allotment) was issued.
75. He also confirmed Lands Limited acted as a government vehicle for settlement of people. He admitted that government entities could not allot private land, and if an allotment was made to a non-existent entity or a different entity other than the one receiving the lease/certificate, it would be invalid.
76. Upon re-examination, he stated that the Office of Chief Land Registrar did not allocate alienated government land. He added that he was not aware of the considerations the offices took in the issuance of the allotment letter. He stated that the Grant was made under the Registration of Titles Act. He added that under the said land regime, the register and the title were one and the same. He also stated that the register was closed when certificates were issued to all the subdivisions.
77. He stated that the Chief Land Registrar's office only registered leases from the Directorate of Land Administration but did not make decisions on them.
78. He confirmed that under the Registration of Titles Act (RTA), if a title was fully subdivided, it should be closed. He stated that LR 3803 was not the same as LR 3803/3, as new Deed Plans were created for the subdivided parcels of land. Further, that the title IR 245327 for LR 3803/3 was a fresh grant and not a subdivision appearing on PEXH 9. He described the maintenance of LR 3803 with entries for LR 3803/3 as a big error.
79. He produced the report dated 11th December 2024, by the Director of Surveys. It was agreed by the consent of all parties that it be produced as 4 DEXH 10(a) – (c). It included a cadastral plan and letters dated 2nd June, 2021, and 16th February, 2022 which contents of the said report were accepted without his physical testimony.
80. That marked the close of the 4th and 5th Defendants’ case.
Submissions
81. Counsel for the Plaintiff filed his submissions dated 12th March, 2025 where he gave a summary of the evidence and identified six issues for determination. The first issue was whether there was a grant previously issued for the suit property. While submitting in the negative, he argues that there was no evidence that the property was ever fully subdivided to lay the basis for file closure of the Grant. He further submits that the Land Registrar testified that the grant was not closed since entries for LR. 3803/3 continued to be made on the said Grant. It was his submission that it was clear that there was a Grant in existence as regards the property.
82. The second issue was whether the Grant was surrendered. It was his submission that the 1st to 3rd Defendants claimed that they applied for allocation of the property when they established that it had been surrendered to the Government way back in 1960. He relied on Section 107 of the Evidence Act and submits that the 1st to 3rd Defendants have not presented any evidence of surrender or to whom they surrendered it to. They have equally not made any case as to any other mode through which the Grant may have ceased to exist.
83. He further submits that there was no entry for surrender. He relied on the case of Thome Dynamics Ltd & another v Nzioka & 12 others; County Government of Nairobi & another (Interested Parties) (Environment & Land Case 21 of 2012) [2024] KEELC 3258 (KLR).
84. The third issue was whether there was any property capable of allotment. He submits that the suit property ceased being government land in 1921 when the grant was issued. He further submits that there was no evidence that upon issuance of the Grant, that the same was ever surrendered, nullified or compulsorily acquired, for it to revert back to government for the government to allot it again.
85. He relied on the cases of Benja Properties Limited V Syedna Mohammed Burhannudin Sahed & 4 others [2015] eKLR, Torino Enterprises Limited V Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) and Kaseve Welfare Society v Harp Housing Limited (2020) eKLR.
86. It was his submission that even if the 1st to 3rd Defendants sought to lay claim to the property, the same could not be on the basis of the letter of allotment.
87. The fourth issue was who was the person last registered as owner of the suit and what is the registration status to date? Counsel submits that PExh 1 showed at entry no. 26 that a transfer was done to Shaphan Walela Lunani (deceased). He also submits that PExh 3 the search also confirmed the same.
88. It was counsel’s submission that PW1 and PW2 confirmed that they continued to hold the Grant to date, and that the property was never surrendered back to Government, neither has the title ever been cancelled. He added that the Land Registrar also confirmed the said position.
89. The fourth issue was whether the Lease and Certificate of Title issued to the 1st and 3rd Defendants are valid. Counsel submits in the negative and argues that DW-2 and the 4th and 5th Defendants DW 1 confirmed that once one removed the Allotment letter, then the Lease and ensuing Certificate would have no feet to stand on.
90. He argued that DW-2 confirmed that the Allotment letter was issued on 12th September, 2013 while Dawn Innovations Limited was incorporated on 9th September, 2014. He submits that Dawn Innovations Limited which ultimately became a beneficiary pursuant to the letter of offer was therefore not an allotee, as it was never in existence.
91. He submits that the Land Registrar confirmed that it was not possible to have allotted property to a non-existent entity. It was counsel’s submission that both DW-2 and the Land registrar confirmed that there was no evidence presented to Court either on acceptance, or on payments, and in the absence of that, the offer lapsed.
92. He relied on the case of Kangu V Nairobi City County & another (Environment and Land Appeal 11 of 2020) [2023] KEELC 16925 (KLR). He submits that DW-2 confirmed that only two directors of the 1st Defendant’s company executed the Lease. He argues that the same was therefore not executed by the 2nd nor 3rd Defendants and submits that in the absence of a validly executed Lease Agreement, there could be no valid Certificate of Title in existence.
93. Counsel submits that the Land registrar confirmed that without a deed plan, there could be no title. He added that the registrar also confirmed that if there had been any survey and deed plan prepared, the same would not be under the “Colony of the Protectorate” but instead under “Republic of Kenya”. He submits that what was instead presented as evidence was a Certificate of Title prepared in 2012 but bearing a Deed Plan under the Colony of the Protectorate.
94. He submits that the 1st to 3rd Defendants aided by the agents of the 4th Defendant fraudulently executed the Certificate of Title.
95. He further submits that the claim to the property first came up when the 1st to 3rd Defendants issued a demand letter dated 20th April 2022, 9 years after the issuance of the impugned letter of allotment. He submits that the 1st to 3rd Defendants have never been in actual possession of the suit property.
96. On the final issue he submits that the 1st to 3rd Defendants commenced an elaborate scheme of engaging in illegal acts which included procuring a fraudulent letter of allotment when it was clear there was no property capable of being allotted in the first instance, noting that a Grant already existed. He argues that the Defendants failed to establish any case of surrender of the Grant as claimed by their witnesses.
97. He submits that the Plaintiffs having proved their case, they were entitled to the prayers sought while the Defendants failed to establish their case hence their case ought to be dismissed.
98. The 1st to 3rd Defendants submitted vide their document 29th April 2025, which is summarized in a nutshell, by first giving their case, the prayers they sought and the specific issues that they deemed salient, particularly the evidence of their three witnesses and the verbatim claim in the pleadings. They defined fraud from legal texts and documents, statutes and case law most of which they reproduced verbatim.
99. They then gave the legal perspective of the standard of proof in allegations of forgery. While giving case law such as Christopher Ndaru Kagina v. Esther Mbadi Kagina & another [2016] eKLR in which Justice Mativo restated the factors a Court ought to take into account regarding expert witness evidence, and Stephen Kinini Wang'ondu v The Ark Limited [2016] KEHC 3449 (KLR), They urged the Court to reevaluate the evidence of 1st to 3rd DW1 and the Chief Land Registrar regarding the titles in issue. Lastly, they gave their claim over the title in issue and concluded that the totality of the evidence showed that:
a. The plaintiffs never owned LR 3803/3 and are merely making things up as they go by.
b. That the title presented by the plaintiff is a mere forgery carefully created and inserted into the Ministry of Lands records, and that explains why the Chief Land Registrar could not explain how it remained in their records.
c. The evidence of the forensic document examiner is consistent with the defence case and is uncontroverted.
d. The Chief Land Registrar confirmed that the only legitimate title to LR 3803/3 is the title registered to the defendants.
e. There is no overlapping interest between the plaintiff and the defendants since the plaintiff's title is a forgery.
100. They finally submitted that the Court finds in their favour and dismisses the Plaintiff’s case with costs.
101. Counsel for the 4th and 5th Defendants on the other hand filed his submissions dated 4th March, 2025 where he identified seven issues for determination. The first issue was the history on the origin of Land parcel LR 3803/3 Grant IR 172 where he submits that the same was initially private property granted to Charles Vivian Gray for 999 years.
102. He submits that while LR 3803/2 was excised from LR 3803, its title had not been closed. He submits that it was false to conclude that the failure to issue title for LR 3803/3 extinguished it or reverted it back to the government.
103. The second issue was whether land parcel LR 3803/3 was surrendered to the government. While submitting in the negative, counsel relied on Section 44 of the Registration of Titles Act Cap 281 (repealed). He gave a summary of the entries in the title from inception and submits that entries 27, 28 and 29 were encumbrances lodged and discharged from the grant and thus the suit property was never surrendered to the government.
104. He submits that LR 3803/3 the suit property was and remains to be private land alienated for private use. He added that it was never surrendered to government as unalienated government land within the meaning of the repealed Government Lands Act Cap 280.
105. The third issue was whether the Plaintiffs are the beneficial owners of the land parcel LR 3803/3. He submits that PW1 admitted that before Shaphan Walela Lunani (deceased) acquired the suit land, it was registered in the name of Lands Limited vide entry 25 of grant IR 172. He submits that there was no evidence of fraud availed on behalf of Lands Limited that was capable of defeating the interest acquired by the deceased.
106. He submits that PW1 demonstrated that the deceased acquired the land from Lands Limited at a consideration as evidenced in entry number 26.
107. The fourth issue was whether the 1st to 3rd Defendants were rightfully allocated LR 3803/3. He submits in the negative and argues that the suit property was allocated to them vide allotment letter dated 12th March, 2013.
108. He submits that DW2 did not avail evidence of acceptance of the offer and payment of the stand premium. He added that there was no evidence of payment of registration fees. He relied on Section 2 of the Government Land Act (repealed) and submits that the lease term did not change even after LR 3803/1 and 3803/2 were hived from 3803 nor had the lease expired. He submits that LR Nos 3803/1, 2 and 3 were lease holds and thus what Lands Limited transferred to the deceased was the remainder of the lease term.
109. He submits that the land fell within the category of government land which at the time of the purported allocation to the 1st to 3rd Defendants, it was already leased to the deceased thus not available for allocation to the 1st to 3rd Defendants.
110. The fifth issue was whether the 1st to 3rd Defendants acquired any interest in LR 3803/3. It was counsel’s submission that even if the suit parcel was available for allocation, the 1st to 3rd Defendants would not have acquired any interest since the allocation was by a non-existent entry as the Commissioner of Lands had ceased to exist in 2012. He submits that only the NLC would allocate land in 2013.
111. He further submits that the conditions in the allotment letter were not fulfilled for any interest to have had crystalized in favour of the 1st to 3rd Defendants. He relied on Section 107 of the Evidence Act and submits that the 1st to 3rd Defendants failed to prove compliance with the conditions in the said letter.
112. He added that there were a lot of anomalies in the entire allocation process which DW2 could not explain including why an allocation made in 2013 was based on a Deed Plan prepared on 8th September, 1960 and why allocation was made to a non-existent entity being the 3rd Defendant.
113. He relied on Section 26(1) of the Land Registration Act and the case of Munyu Maina V Hiram Gathiha Maina [2013] eKLR. He also relied on Article 40(6) of the Constitution and the case of Henry Muthee Kathurima V Commissioner of Lands & Another [2015] eKLR.
114. He submits that the 1st to 3rd Defendants failed to prove how they acquired title in respect of the suit property. He cited the case in Funzi Island Development Limited & 2 Others V County Council of Kwale & 2 Others [2014] eKLR.
115. The sixth issue was whether fraud has been proved to the required standard. Counsel submits that the Plaintiff did not provide evidence to prove acts of fraud against the 4th and 5th Defendants. He submits that testimonies of DW2 and DW3 confirmed that the purported allocation of the suit property to the 1st to 3rd Defendant was erroneous.
116. He added that the Plaintiffs did not lead evidence to show that the 4th and 5th Defendants were aware of any scheme to dispossess the estate of the deceased.
117. It was his submission that the claim of forgery against the 4th and 5th Defendants was neither pleaded or proved. He relied on the cases of Vijay Morjaria V Nansingh Madhusingh Darbar & Another [2000] eKLR, Ndolo V Ndolo [2008] 1KLR (G&F) 742 and Kinyanjui Kamau V George Kamau Njoroge [2015] eKLR.
118. On the final issue of reliefs the court should grant, learned counsel submitted that both the Plaintiff and 1st to 3rd Defendants claim against the 4th and 5th Defendants should be dismissed with costs.
Analysis and Determination
119. This court has considered the pleadings, the law, the evidence and rival submissions of the parties. The issues that commend themselves for determination by this Court are as follows:
a) Whether there was a subdivision of LR No. 3803 and a surrender of any of the subdivisions to government
b) Whether the Plaintiffs lawfully acquired the suit property
c) Whether LR. 3803/3 was public land at, and available for, allocation to the 1st to 3rd Defendants
d) Whether the 1st to 3rd Defendants acquired the suit parcel legally, lawfully or fraudulently, illegally or unprocedurally
e) Whether the Plaintiff is entitled to the prayers sought in the Plaint.
f) Whether the Defendant’s counter-claim has merit
g) Who to bear the costs of the suit
120. The suit herein arises from a claim, by the Plaintiffs who are the administrators of the Estate of the late Shaphan Walela Lunani, that the suit land, namely, LR.  3803/3, is part of the Estate of the deceased, and that the its allocation to the 1st to 3rd Defendants is illegal, unprocedural and fraudulent and should be cancelled. This claim is hotly contested by the said Defendants. The claim against the 4th and 5th Defendants is basically that the 4th Defendant represented by the 5th Defendant facilitated the unprocedural and fraudulent transfer of the said parcel to the 1st to 3rd Defendants. It is against that background that this Court proposes to determine sequentially the issues identified above.
a) Whether there was a subdivision of LR No. 3803 and a surrender of any of the subdivisions to government
121. This Court starts with the analysis of the evidence regarding the genesis of parcel No. LR. 3803/3. The parcel of land in question lies within the Trans Nzoia County. From the evidence of PW1 and 1st to 3rd DW2 and 4th and 5th DW1 it is approximately 331.1 Ha (which is approximately 818.65 acres) or thereabouts. It is registered under the Registration of Titles Act land regime. It is evidenced by the original Certificate of Title, produced as 1st to 3rd DExhibit 3. It appears, from the evidence of one Daniel Okello Akama, 1st to 3rd DW2, and George Gichere Githonga, 4th to 5th DW1 and the title itself that it came into existence on 18th December 2021 and was registered in the Land Titles Registry, Nairobi as No. IR. 2453271 on 12th May 2022 at 1230 hours. It was for a Term of 99 years with effect from 01/09/2013, in favour of Carlsberg International Limited, DKO Investment Co. Limited and Dawn Innovations Limited of P.O. Box No. 23156 Nairobi. It was created following a lease ed the signing of a lease in favour of the three companies on 9th December, 2019, which was witnessed by M/S. Angaya Moses Amwata on 16th December 2019 and registered on 18th December 1921.
122. If the Deed Plan No. 48389 which was annexed to it is anything to go by as the truth then it was a very wrong one or it contained a grave error because it did not factor in the excision of both parcels of land which shall be noted here below in respect of whose entries No. 17 and 18 reflected on the original mother title instrument (the subdivided title instrument) refer it, that is to say LR. 3803/1 and LR. 3803/2. It shows only the excision of LR. 3803/1, leaving out a very crucial evidence of further subdivision while it christens itself as the Deed Plan for LR. 3803/3.
123. That aside, the question that automatically arises is, where did it come from? It was the evidence of PW1, the 1st to 3rd DW2 and 4th to 5th DW1 that the parcel of land in question was a subdivision of the mother title which was described in the Grant as Subdivision Number One Portion Five (Land Office Number Three thousand eight hundred and three (which this Court abbreviates as LR. No. 3803 even as evidenced in some of the entries such as No. 17, 18 and 19 in the Instrument of Title) which comprised one thousand and six (1006) acres or thereabouts. This was evidenced by PExh 1, the 1st to 3rd DExh 3 and 4th to 5th DExh 2 as produced by the witnesses respectively. The three documents evidence the creation of a Grant in respect of a Register of Titles No. 172 regard to the parcel of land described as being situate in Kitale of Trans Nzoia District, on 15th August 1921 for a Term of 999 years with effect from 1/011/1913 to 31/10/2912 registered in favour of Charles Vivian Gray, and was registered on 24th October 1921 at 1 PM.
124. A careful examination of the said set of documents as evidenced from them, and even documents A1 and A2 produced by the 1st to 3rd DW1, and as explained very vividly by the 4th and 5th DW1, shows that the mother title was indeed LR. 3803. The Exhibits shows that the mother title was initially owned by Charles Vivian Gray as at 15th August 1921. Entry No. 17 shows that the mother title was subdivided on 01/04/1952 in favour of Ralph Hamilton Cameron for approximately 170 acres. The transaction split the mother title while creating a new Grant or instrument for the 170 acres.
125. The content of the rest of the entries is not relevant for purposes of determining the issue before me now. However, the relevant one is entry No. 17 which shows that the mother title (parcel) was subdivided to given rise to parcel No. LR. 3803/2. The creation of the new title instrument left the mother title a portion of land approximately 836 acres. 
126. Subsequent to the subdivision stated above, another subdivision took place on 26th May 1952. It was for excision of approximately 22.6 acres. It led to the creation of a new title instrument issued in the name of Nathaniel William Benjamin Butler Thomas. It was signified by entry No. 18 on the previously subdivided mother title. It left the said previous title with approximately 813.4 acres but it was indicated 816 acres in the next entry No. 19. The said title instrument remained in the name of the Charlote Kay Bolton “as Representative” by Probate of Will of Claude Leslie Bolton as per entry No. 15 of 6th December 1951. From the sequence of the entries in the Grant (title instrument), this is the transferor of the remaining 816 acres (sic) to Harry Gordon Ross in Entry No. 19 in the instrument. When that transfer took place there was no new instrument created. But at that point the parcel of land being transferred was referred to parcel LR. 3803/3. This is the step or act which the witness, the 4th and 5th DW1 stated that it was a “big error”.
127. Regarding the above Entry No. 19, the 4th to 5th DW1 was at pains to explain the entries on the instrument of the mother title explaining the excision of the two parcels of land above mentioned and the remainder. He stated in evidence that once the second subdivision took place the mother title was “extinguished” and a new title instrument should have been created by the Land Registrar rather than continuing to make entries on the mother subdivided title which no longer remained. He added that making such entries on the “extinguished” mother title was a big error; that a new title ought to have been created and the mother title closed. He added also, in cross examination by MR. Maondo, that if the new title instrument was not created then the Land registry could make entries evidencing any subsequent transactions on the said initial title instrument. He acknowledged that indeed that was what happened in relation in the instant case. 
128. At this point, this Court pauses to give a deep reflection on the import and meaning of Entries No. 18 and 19 in PExh 1. Entry No. 18 was an excision of 22.6 acres while entry No. 17 was one for 170 acres. If the explanation by the 4th and 5th DW1 is anything to go by, that once a title or new parcel would be excised from the “mother” title, a new Grant or title instrument could be created but the further entries regarding the remainder of the land would be recorded on the “subdivided mother title”, then it is clear to me that when the 170 acres and 22.6 acres were excised from the 1006 acres, the mother title remained with the owner or seller and entries would still be made in it. Further, there would not have been need to create a new grant or instrument christened as LR. 3803/3 since the subdivided mother title was still in existence. This exactly is what happened after Entry No 18. That is why there was no creation of a new title instrument. Further, that having happened, the transfer to Harry Gordon Ross should have been on the subdivided mother title as it was done without giving a new LR. 3803/3 number as was done. But that having been done, they subdivided mother title ought to have been closed and the new one issued in the name of Harry Gordon Ross as LR. 3803/3.
129. It came out in evidence of the four witnesses whose evidence is referred to herein above that in the course of time, the office of the Chief Land Registrar must have ‘remembered’ that the title for the remainder of the portion of land comprising in approximately 816 acres ought to have been created. It created the said title and purported to allocate the same to the 1st to 3rd Defendants, as public land. But what happened to the subdivided mother title ownership whose 816 acres remained after the entry No. 19 was made? The owner remined to be Charlote Kay Bolton as the Representative of the deceased. It was this party who then transferred the land to Harry Gordon Ross. The trail of the transactions afterwards, particularly, Entry No. 26, show that indeed the land was last owned by the late Shaphan Lunani Walela through a transfer on 27th March 1971.
130. PW1 and PW2, both children of Shaphan Lunani Walela (deceased), testified that the land, LR. 3803/3, belonged to their family and was never surrendered to the government. They maintained that the title held by the 1st to 3rd Defendants was on top of another title thus illegal. It was their case that Shaphan Lunani Walela acquired a bona fide interest in the land under Grant IR 172 as per Entry 26.
131. The 1st to 3rd Defendants on the other hand contend that the suit land was processed in their favor by the Commissioner of Lands who allocated them the land for a 99-year lease. DW2 the 1st Defendant’s Director acknowledged that there was no entry for surrender recorded on the grant for LR 3803 affecting LR 3803/3.
132. Here is the crux of the matter. I have keenly perused the entries in the grant and it is clear that the initial entry recorded was to Charles Vivian Gray on 1st November, 1913 for a 999-year term and subsequently transferred to various other individuals including the Plaintiff.
133. Looking at entry 25, which records that the suit parcel was transferred to Land Limited on 29th May, 1970, it was the 1st to 3rd Defendant’s case that the same amounted to reversion of the parcel land back to the government. However, it is important to note that this was rebutted by evidence of DW3, the Land Registrar when he conceded that there was misrepresentation of the grant with no intention to deprive the Plaintiff from the suit parcel.
134. One thing that is clear to this Court is that the 1st to 3rd Defendants rely on the entries recorded on the title instrument was began as the mother title, which this Court keeps referring to as the “subdivided title instrument”. They do no deny then that the entries on that instrument of title which were subsequent to entry No. 19 are genuine even though they are made on a document which DW3 (the 4th and 5th DW1) referred to as a big error. What the witness did not explain to the Court was whether such an error would invalidate one’s ownership or proprietorship of land for reason of an error committed by the officers in Lands Department or the Chief Land Registrar’s office. In my humble view that “big error”, which the witness acknowledged, in cross examination, could still continue to be by way of entries being made of a new title instrument was not created, would not disentitle a bona fide owner of their proprietary or ownership rights. That would be the greatest injustice resulting in deprivation of one’s private property by unprocedural and unconstitutional means or processes.
135. Thus, the 1st to 3rd Defendants cannot approbate and reprobate on the fact that the entries continued to be entered in the subdivided or mother title support their cause and at the same time do not reflect the proper position in law regarding the ownership of the suit land.
136. Therefore, whereas the parcel of land was transferred to the Lands Limited on 29th May 1970 vide entry No. 25 it did not cease to be the same parcel of land which was referred to as LR. 3803/3. Entry no. 26 records the transfer of LR 3803/3 to Shaphan Lunani Walela on 27th March, 1971 for KShs. 260,000/= which remains as the final entry position regarding ownership of the parcel. The land changed ownership from the Lands Limited which was a public entity. It became private land from then on.
137. In addition, the 4th and 5th Defendants submitted that the suit property LR 3803/3 is private land alienated for private use and was never surrendered to the government as unalienated government land.
138. There was evidence by the 4th to 5th DW1 that the transfer to Harry Gordon Ross extinguished the title. A fundamentally important finding which dislodges the 1st to 3rd Defendants’ claim and evidence and agrees with the 4th and 5th Defendant’s Defence and particularly their allegation of fraud on the part of the other defendants is as follows. In my humble view, given that there were two subdivisions or excisions that had been made giving rise to LR. 3803/1 and 3803/2 leaving the 816 acres in the name of the seller who subdivided the parcel in those two transactions, a transfer of the whole parcel does not extinguish the title he remained with. It is only a mere transfer of the whole to the new owner. What is ‘extinguished’ then is the ownership of previous proprietor and the existence of the new or subsequent proprietor. The title still remains intact. It can only be extinguished of there are subsequent subdivisions which ultimately ‘eat it up’ to the end. This is not what happened in the instant case as shown through the Plaintiffs’ evidence. The title was for the remainder was intact but transferred as a block to the new owner.
139. In the case of Benja Properties Limited V Syedna Mohammed Burhannudin Sahed & 4 others, Civil Appeal No 79 of 2007; [2015] eKLR, the Court of Appeal held as follows:
“… the legal effect of registrations made in 1907 and 1911 was to convert the suit property at that time from un-alienated government land to alienated land with the consequence that the suit property became private property and moved out of the ambit and confines of the Government Land Act. …”
140. It is this court’s view that it is not in contention that there is no iota of evidence to the effect that there was an entry for surrender of the suit parcel back to the government. In view of the above, this court finds that there was no surrender of the suit parcel to the government and thus the same was private land.
141. It is this Court’s finding that parcel LR No. 3803 was subdivided to give rise to parcels No. LR. 3803/01, 3803/2 and 3803/3. The trail of all the transactions from No. 1 to 29, there is no evidence of surrender of the lease to the government of the parcels, particularly LR. 3803/3. In absence of that, in terms of Section 44(1) of the Registration of Titles Act, Chapter 281 Laws of Kenya which requires that unless the surrender is by operation of the law, where the surrender is made it should be endorsed upon the lease “surrendered”, with the date of surrender, and the same shall be endorsed by the parties. 
b) Whether the Plaintiffs lawfully acquired the suit property
142. The Plaintiffs claim that they are the owners of the suit property by virtue of it comprising part of the Estate of Shaphan Walela Lunani (deceased) whose administrators they are. It is this court’s view that the duty was upon the Plaintiffs to explain the root of their title. He who alleges must prove. It is trite law that Section 107 (1) and 108 of the Evidence Act places the burden of proof squarely on the party who alleges to discharge it. In the present case, it is thus imperative for the Plaintiffs to prove that indeed they legally acquired the suit property.
143. The Court of Appeal in the case of Elizabeth Wanjiru Githinji and 29 Others V Kenya Urban Roads Authority [2019] eKLR, Justice Otieno Odek, JA, [as he then was] held as follows:
“I am convinced and persuaded by the merits and reasoning in the local and comparative jurisprudence that a title under the Torrens system is defeasible on account of mistake, misrepresentation, fraud and illegality. For this reason, it is not sufficient for the appellants to wave an RLA or RTA title and assert indefeasibility. If a mistake is proved or total failure of consideration or other vitiating constitutional or statutory factors, an RLA or RTA title is defeasible.”
144. PW1 and PW2 testified that their father Shaphan Lunani Walela (deceased) bought the suit land from Lands Limited at a sum of Kenya Shillings 260,000/= in 1971. He took possession of the property upon acquisition and his (their) family has maintained continuous possession thereof for over 50 years.
145. It was their case that their late father, mother, and brother were all buried on the land, and that they have been engaged in farming activities on the suit parcel.
146. PW1 produced the Original Grant (P.EXH. 1) which he confirmed that under Entry number 26, the suit parcel was allocated to his late father having purchased the same from Lands Limited at a consideration of Kshs. 260,000/=. He also produced copies of a transfer form supported by a Letter of Consent dated 12th September, 1970, issued by the Land Control Board and a Memorandum of Registration of Transfer.
147. The Plaintiffs also produced evidence of payment of land rents together with evidence of a charge which confirmed that the suit land was used as security for bank financing from Standard Chartered Bank and the same was backed by the charges registered on the Grant (Entries No. 27 and 28) and subsequent discharge.
148. The official search document as produced also confirmed that the suit land belonged to Shaphan Lunani Walela. While the 1st to 3rd DW1 discounted official search certificate, which was marked as A2 in his report, by stating that it bore different handwritings on some of the entries compared to the title instrument, which was marked as A1 in his report, he agreed and stated that the entries were exactly similar in content. That being so, the means that the instrument under focus, which was the original Grant or title instrument and which contained entries showing that Shaphan Lunani Walela was registered as owner was genuine. The Search may have been done by an official in the 4h and 5th Defendants’ offices who did not understand that it should be a photocopy of the original title that should be verified, or as the 4th to 5th DW1 stated, extract of the title the office holds rather than filling in similar entries and countersigning them. These errors, just as the one the said witness referred to as the “big error” cannot be used against the legality of the title held by the proprietor who are the Plaintiffs or the Estate of the late Shaphan Walela.
149. It is noteworthy that the 1st to 3rd Defendants did not challenge the Plaintiffs evidence on the process and trail of transactions or steps of how the Plaintiffs’ late father became registered as owner. In addition, the Land Registrar (DW3) confirmed that the Original Grant, produced by the Plaintiffs (P.EXH. 1), existed and that Entry No. 26 clearly showed the transfer from Lands Limited to Shaphan Lunani Walela as the last registered owner.
150. This Court is of the opinion that the suit land, namely LR. No 3803/3, as identified in the PExh 1 (entry No. 26) ceased to be public land when the Shaphan Lunani Walela bought the same from the Lands Limited and had it transferred to him. The Plaintiffs’ testimony, even using their own evidence alone, was clear, unshaken, consistent and backed with documentary evidence as to the chain of ownership.
151. However, in addition to the Plaintiffs’ evidence of how the deceased acquired the suit parcel, the evidence of the 4th and 5th Defendant corroborated it. The 4th and 5th DW1 explained in detail how the transactions leading to the registration of Shaphan Lunani Walela were. He explained how the 170 acres of the land was excised and transferred as LR. 3803/2 to Ralph Hamilton Cameron (as per entry No. 17) and 22.6 acres later was excised and transferred to Nathaniel William Benjamin Butler Thoms (as per entry No. 18), leaving a balance of 816 acres (as per the instrument of title. This was the title which was later referred to as LR. 3803/3 without the creation of a new Grant or instrument of title but was transferred to Harry Gordon Ross (as per entry No. 19).  Moreover, the entries in the original grant bore the Plaintiffs’ deceased father’s name as the last registered person in the parcel of land. The entries subsequent to his registration were for transactions such as charges on the land and discharges of the charge. It is this court’s view that the Plaintiff proved their claim to the required standard, that is, on a balance of probabilities, that their father bought the land lawfully and procedurally. In light of this, I find that the Plaintiffs discharged this burden about the acquisition of the suit property.
c) Whether LR. 3803/3 was public land at, and available for, allocation to the 1st to 3rd Defendants
152. Article 61(2) of the Constitution classifies land in Kenya into three, namely, public, community or private. Article 62 then defines what comprises of public land, as among others,
“b) land lawfully held, used or occupied by any State organ, except any such land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease;”
153. On the other hand, under Article 64 (a) and (b) of the Constitution, private land is land —
(a) registered land held by any person under any freehold tenure;
(b) land held by any person under leasehold tenure;

154. The Plaintiffs have adduced evidence, through PW1 that their late father was registered as lessor from government of parcel LR. 3803/3 as shown in the original (or subdivided mother title), and 2 and the 4th and 5th Defendant too have shown through the evidence of 4th and 5th DW1 that the parcel of land in issue was never surrendered to government. The fact that there was no creation of a new title instrument at the time when the first entry referring to it was noted in the subdivided mother title does not cause private land to revert to government. Reversion occurs when a lease expires and is not renewed or the conditions of renewal are not fulfilled. It is a matter of operation of the law and not a voluntary surrender of the title. That being the case, land as the instant one which was private could not translate to being public land and available for alienation to the 1st to 3rd Defendants.
d) Whether the 1st to 3rd Defendants acquired the suit parcel legally, lawfully or procedurally or fraudulently
155.  On the one hand, it was the Plaintiffs’ case that they, the estate of their deceased father Shaphan Lunani Walela, lawfully acquired the suit property their said father having purchased the same from Lands Limited. On the other and, they claimed that the 1st to 3rd Defendants fraudulently acquired the suit land. But on their part the 1st to 3rd Defendants claimed that they were the bona fide and registered owners of the suit parcel having been allotted by the government and a Certificate of Lease issued in 2013.
156. Section 108 of the Evidence Act provides that:
“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
157. Further, Section 109 of Act refers to the burden of proof of a particular fact and states that:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
158. Consequently, the burden of proof squarely lay on the 1st to 3rd Defendants to prove that they were the proprietor of the suit property having acquired the same legally, lawfully and without any instances of fraud.
159. Section 26(1) of the Land Registration Act, provides 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.”
160. It is this court’s view that whenever the validity of a title is challenged, the evidentiary burden lies upon the party claiming that it is valid to prove that it, indeed, is. It is not enough for one to hold and wave to anyone and all a title which is impugned, and claim that it proves ownership. That very document is the one under challenge hence it is incumbent on the holder or owner thereof to adduce other independent and sufficient evidence to back it up. This is because the issue at hand at the time is that that title is not one that can stand the test of validity even if it is issued by the relevant office. The registered owner has to prove that he got registered as such through lawful means, and to do so, the owner has to demonstrate how the title came into existence.
161. In the case of Korir V Njoki & another (Civil Appeal 34 of 2020) [2023] KECA 439 (KLR) the court held as follows:
“It is now law that the mere fact of issuance of a title deed does not confer the status of indefeasibility of title. Courts of this country have therefore held that they would not hesitate to nullify titles held by those who stare at the court and wave a title of a grabbed land by merely and pleading loudly the principle of the indefeasibility of title deed. In cases where the very process of acquisition of the land in question is under challenge, it is not enough to simply rely on the title.”
162. The title in issue, as analyzed in paragraph123 above is in the names of the 1st, 2nd and 3rd Defendant companies. It was signed and registered on 18th December 2022 and 12th May 2022 respectively. It means basically that the said date was the one when the instrument was created, and the grantees, being the defendants, were the first to own it. Actually, the said defendants’ claim is that the land was unalienated or free public land which they were allocated. While they did not demonstrated how they applied for it and were allocated and if they fulfilled the conditions of the allocation, it is clear from PExh 1 (the mother title and the entries therein) that land parcel No. LR. 3803/3 was created or its title instrument (Grant) ought to have been created on or about the 28/02/52 (see entry no. 19) when the existence of the said parcel was duly noted on the initial Grant.
163. The question to ponder as the court analyzes the evidence is, if the 2013 Grant of a new allocation and title is anything to be believed as genuine and procedurally issued, where did the one ‘created’ as per Entry No. 19 go? How about the entries relating to any transactions in it subsequent to its creating or mention?   
164. The 1st to 3rd DW2, Daniel Okello Akama, testified that the Commissioner of Lands allocated the land to them for a 99-year lease vide an allotment letter dated 12th September, 2013. However, upon cross examination, he admitted that he did not have the application letter for the allocation, a letter of acceptance of the allotment, or receipts for the acceptance payment in court. He also confirmed that without the said documents, their offer might have lapsed and their title would not be complete.
165. Furthermore, DW 2 testified that he was a director of the 1st Defendant. He stated the letter of allotment, dated 12th September, 2013 was first issued to Carlsberg International Limited, DKO Investment Co. Ltd and Dawn Innovations, which third allottee was a sole proprietorship since it was a business name known as Dawn Innovations. Thereafter, six (6) years later, the Dawn Innovations Limited, together with the two other sister companies, got registered as the owner. What happened to the offer that was made six years earlier? Can it be said to have been accepted? Acceptance was to be within 30 days. It was not done. One thing that comes out from there is that there was no letter of allotment issued to Dawn Innovations Limited: it was not yet incorporated. In any event the letter of offer, by way of an allotment, could not be issued to a non existent entity because it was incorporated about a year later.
166. The 4th and 5th DW1 was clear in his evidence in cross examination that government cannot allocate private property. Secondly, that if there was an allocation to a nonexistent entity that allocation is invalid. This is what happened in the instant case. Government purported to allocate property belonging to the Estate of Shaphan Walela. It has not business doing so. Again, even with that gave error, it purported to allocate and issue title to one among the three registered entities, that it Dawn Innovations Limited, that did not exist at the time of the purported allocation. That trail of transactions was invalid.
167. One thing that ought to be clear is that a company is totally different from its owners. This was stated in the seminal case of Salomon v. Salomon & Co Ltd [1897] AC 22. Thus, while the director(s) of Dawn Innovation Limited was the one who traded by the business name Dawn Innovations at the time the allotment was made, it could not translate him to being one and the same as Dawn Innovations Limited. Therefore, any purported allocation of the land to him could not grant him the legal basis to register the same directly in the company’s name as he did. That process clearly shows fraud and an illegality. Simply put, the registration of the parcel of land which was allocated to Dawn Innovations in the name of Dawn Innovations Limited was fraudulent.
168. The establishment of the root of a title that is under challenge is always key. One has to go beyond waving the title to anyone’s face that he has one and show that indeed that which he has is legitimate. This, the 1st to 3rd Defendants failed to do. In Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment), the Supreme Court stated as follows:
“93. As held by the Court of Appeal in Munyu Maina v Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR, where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.”
169. In the case of Mbau Saw Mills Ltd v Attorney General for and on behalf of the Commissioner of Lands) & 2 others [2014] KEHC 4946 (KLR) the court held that:
“I have considered the evidence on record and the submission of the parties and do find that a letter of allotment was issued to Mr. Joseph K. Mugambi on 21/10/1971 with a condition to accept the offer within 30 days. He did not do so and thereafter the offer lapsed 30 days after it was made in accordance with the allotment letter. Having failed to accept the offer as stipulated in the letter of allotment Mr. J.K. Mugambi did not acquire interest in the unsurveyed lorry depot and therefore had no interest to transfer to the plaintiff. This court holds that a letter of allotment does not confer any property rights to a person unless there is acceptance and payment of the stand premium and ground rent. In the letter dated 17/6/1988 which was written about 17 years after the allotment letter was issued, the Commissioner of Lands confirmed that the plot was allocated to Joseph M. Mugambi in 1971 for lorry depot. However, the plot had neither been paid for nor an acceptance of the offer in the allotment letter made. The implication of this letter was that the allottee had not complied with the terms of the allotment letter and therefore the offer had lapsed. The offer having lapsed, the allottee Mr. Joseph M. Mugambi did not have any interest to transfer to the plaintiff and therefore all transactions between the allottee and the plaintiff were a nullity in law.”
170. It is thus this court’s view that it is only upon acceptance and fulfillment of the conditions that an allotment letter confers absolute right of ownership. This was not the case with the 1st to 3rd Defendants’ claim of ownership herein. The 1st, 2nd and 3rd DW2 produced as DExhibit 2 the purported letter of allotment issued to the 1st and 2nd Defendants and Dawn Innovations. It took 6 years for the offer to be accepted. Even then, it was not accepted by the offeree but a stranger in the name of Dawn Innovations Limited. The acceptance was not only a nullity for want of it being made by the offeree but it was also made long after the offer had lapsed. The offer no longer existed or it was never renewed.
171. It goes without saying that there was no offer to accept after all. And without proof that the offer was renewed or given again, all the subsequent processes purporting to validate it were irregular or illegal hence null and void.  as they did not adduce evidence proving the same hence there was no right of ownership since the offer had already lapsed.
172. It was 1st to 3rd DW2’s evidence that the allotment letter was issued to them by the Ministry of Lands. However, this court having perused the allotment letter, it is a fact that the same was signed by the Commissioner of Lands which DW3, the Land Registrar disapproved on the basis that the allotment letter was issued by a non-existent office. It was his evidence that by 2013, the Commissioner of Lands office, had ceased to exist and was replaced by the National Land Commission under the 2010 Constitution. Notably, the 1st to 3rd Defendants did not challenge this evidence.
173. DW2 endeavoured to explain how the 3rd Defendant was incorporated after having been allotted the suit land and acquired the land. He stated that the directors having been the same was the basis for the process. DW2’s attempt to explain that Dawn Innovations was a business name and later converted to a limited liability company hence the allotment was properly ‘transferred’ hence the ownership of the land was procedural and proper also could not hold water. This is because a business name and a company are distinct legal entities, as explained through the seminal case of Salomon v. Salomon & Co Ltd [1897] AC 22 that a company only comes into existence upon incorporation and once it is so it is a totally different entity from the owners. I have perused the Certificate of Incorporation of the 3rd Defendant and it is a fact that the same was incorporated on 10th September, 2013 was after it was allegedly allotted the suit parcel. Thus, the question that begs is how was the 3rd Defendant allocated the suit parcel before its incorporation? This surely remains a mystery. It clearly shows that there were illegal, unrpocedural and fraudulent transactions that took place in regard to the registration of the parcel of land in the names of the 1st to 3rd Defendants.
174. Moreover, 1st to 3rd DW2 also confirmed that only two signatories signed the lease (Daniel Samba and himself) on behalf of the 1st Defendant. He admitted that there was no lease signed by the 2nd and 3rd Defendants. He also confirmed that the three companies were separate entities and none was a proxy or trustee of the other.
175. It was even more puzzling that two (existing) companies, assuming for a moment that Dawn Innovations Limited was supposed to have been allocated the land, through the existence of the initial allotment, could be joined in the process of registration with a stranger in the offer. Simply put, Dawn Innovations Limited was a stranger to the allocation. But as stated before, even the company assumed to be the one that could have been allocated was not legally allocated the land.
176. Three fundamental deductions arise from the analysis of this Court of the 1st to 3rd Defendants’ evidence on the assertion of the land being allocated to them. First, one glaring piece of evidence to demonstrate fraud on the part of the 1st to 3rd Defendants was that allocation of the parcel of land was purported to have been made in 2013. Then the Public Trustee purported to gazette the land as having no true heir in May 2021, as per DExh. 6, and then the title issued in favour of the said Defendants on 18th December, 2021. What this evidence shows is that indeed there was no allocation in 2013 to the said Defendants. If it was, then the Public Trustee could not be publishing via the gazette notice (DExh 6) eight (8) years later that there is no heir to the estate of the late Shaphan Walela who is to take up the property hence the intention to return it to the public. This is because the land should have been already allocated to the said defendants.
177. Secondly, if indeed, the land was allocated in 2013 and yet the Public Trustee is claiming to have it managed by him in 2021, it means then that the acceptance of the offer by the said Defendants was never made within the stipulated time and the offer lapsed hence the land remained unallocated.
178. Thirdly, if the land was surrendered to government in 1960 or thereabouts as the 1st to 3rd Defendants allege and asserted through the evidence of PW2 and submitted by their learned Counsel, then they are taking the intelligence of this Court for granted: actually they are underrating it and abusing it. How come a property which is public land from 1960 or thereabouts can become the subject of management by the Public Trustee and therefore be gazetted by the said office as being the property of the late Shaphan Walela whose heirs have neither come up to trace it nor be traced hence it, by that Gazette, then hands over the property to the 1st to 3rd Defendants? Does it make sense to anyone? May be the 1st to 3rd Defendants which are bent on defrauding the Estate of the late Shaphan Walela.
179. Public land cannot translate to private land for the Public Trustee to manage it when heirs are not traced. Government is the heir through the radical title, and even then that is not what the Public Trustee is saying. Let it be known to the Defendants that Courts are not infants whose brains may not deduce much but even infants are intelligent enough to tell their mothers through their keen sense of smell.
180. I have perused the lease dated 1st September, 2013 and the same has been executed by only two directors of the 1st Defendant. The question that remains unanswered is how could the suit property be jointly held by all the 3 Defendants yet it was not executed by only the 2nd and 3rd representatives.
181. The Land Registrar also confirmed that all entities ought to have been executed by all parties to the document and without proper execution by all parties, the lease was not valid hence could not confer any lawful or valid interest.
182. More puzzling was that the allotment letter described the property as a residential plot. It did not contain the size of the land and other accompanying details. But the suit land was for agricultural purposes, and the lease created for purposes of completing the said Defendants’ interest in the suit property indicated that the land was for agricultural purposes. That great divergence goes to show that there must have been a deliberate alteration of the true records, content and descriptions of the properties in issue as to ultimately generate a title document, No. LR. 3803/3 registered in the Land Titles Registry, Nairobi as No. IR. 2453271 on 12th May 2022 at 1230 hours, which was a fraudulent scheme.
183. It is this court’s view that one fact that came out from the 1st to 3rd Defendant’s evidence was serious chronological inconsistencies that resulted in the 1st to 3rd Defendants' acquisition of LR 3803/3. Further, there were significant procedural gaps that came out clear even without much effort needed. It is my opinion that the 1st to 3rd Defendants case is akin to a complex puzzle or maze wherein key pieces are subtly put together so that they could not fit perfectly into a coherent picture leaving their claim in acquisition of the suit parcel almost impossible to prove save for a keen eye and mind.
184. To deconstruct the 1st to 3rd Defendants’ trickery as analyzed above, the 4th and 5th Defendants contend that the allocation to the 1st and 3rd Defendants was null and void since the land was unavailable for allocation. This Court cannot agree more.
185. It is my view that the 1st to 3rd Defendants failed to show how they legally acquired the suit land and how the said land being private land, converted back to public without a deed of surrender and thereafter allocated to them in the first place. By virtue of the fact that the 1st to 3rd Defendants failed to demonstrate the steps which would show how they acquired the suit parcel, this court finds that they illegally, irregularly and fraudulently acquired the suit land.
e) Whether the Plaintiff is entitled to the prayers sought in the Plaint
186. It is clear to me that the title LR. 3803/3 referred to in PExh 1 and the same document copies as produced by the various witnesses as shown above, is the same as the one purported to have been registered in favour of the 1st to 3rd Defendants. The two cannot stand, and the rightful owners, the Plaintiffs, cannot be deprived of their property through the errors or mistakes of the 4th Defendants’ officers or offices in failing at the right point in time, at the time the mother title was “extinguished”. Thus, this court having already established that the Plaintiffs proved their case on a balance of probabilities, I therefore find that they are entitled to the prayers sought in their plaint dated 19th June, 2017.
f) Whether the Defendant’s counter-claim has merit
187. This Court has fund that the allocation of the L.R NO. 3803/3 to the 1st to 3rd Defendants to be unlawful, irregular and fraudulent. The Defendants prayed that the Plaintiffs’ case be dismissed. This Court cannot dismiss a suit that has been successfully proven by the rightful owners of the suit land. The said defendants raised a counterclaim in respect of the property. This Court finds that the 1st to 3rd Defendants’ Defence and Counter-claim dated 28th November, 2022 is without merit and they are hereby dismissed.
g) Who to bear the costs of the suit and Counterclaim
188. This Plaintiff’s suit has succeeded while the 1st and 3rd Defendant’s counterclaim has not succeeded. Section 27(1) of the Civil Procedure Act provides that:
“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
189. In the circumstances, I find that the costs of both the suit and counterclaim to the Plaintiffs. It is worthwhile to note that the 4th and 5th Defendants argued that they were never aware of the irregular acquisition of the suit parcel by the 1st to 3rd Defendants. They also gave evidence in support of the Plaintiffs case and thus they ought not bear costs of the suit. 
190. Consequently, I enter judgment for the Plaintiff against the 1st and 3rd Defendants on the following terms:
a) A declaration is hereby issued that the Estate of the Late Shaphan Lunani Walela is the bona fide and lawful owner of all that parcel of land known as L.R NO. 3803/3 situate in Kitale within Trans Nzoia County.
b) A declaration that the Certificate of Title No. 239057 and the Lease thereof serial number CF 303856 issued to the 1st, 2nd and 3rd Defendants is unlawful, null and void ab initio, and original given in Court as evidence, should be returned, by the Deputy Registrar of this Court, to the Chief Land Registrar together with a copy of this judgment and be cancelled forthwith.
c) A declaration that any excision, allocation, sale, transfer, dealing or vide any other manner whatsoever by the 1st, 2nd and 3rd Defendants over L.R NO. 3803/3 situate in Kitale within Trans Nzoia County being an asset comprising part of the Estate of the Late Shaphan Lunani Walela is unlawful, fraudulent and illegal. 
d) A declaration is hereby issued that any other documents by the 3rd and 4th Defendants purporting to issue title over L.R NO. 3803/3 situate in Kitale within Trans Nzoia County to the 1st, 2nd and 3rd Defendants are unlawful, null and void ab initio.
e) An order of permanent injunction is hereby issued restraining the 1st, 2nd and 3rd Defendants either by themselves, employees, servants, agents of any other person purporting to act on their instruction or at their instance from encroaching onto, trespassing on, taking possession of, offering for sale, selling, or in any other manner whatsoever dealing or interfering with the Property known and registered as LR. NO. 3803/3 situate in Kitale within Trans Nzoia County.
f) Costs of both the suit and counterclaim are awarded to the Plaintiffs to be borne by the 1st, 2nd and 3rd Defendants. The 4th and 5th Defendants to pay the costs of the suit to the Plaintiffs: that means all the Defendants pay the costs of the suit jointly and severally but the 1st to 3rd Defendants bear the costs of the Counterclaim.
191. Orders accordingly.
Judgment dated, signed and delivered virtually via the Teams Platform this 29th day of July 2025.
Hon. Dr. iur Nyagaka,
Judge
In the presence of,
Mr. Maondo Advocate for the Plaintiffs
Mr. Angaya Advocate for the 1st to 3rd Defendants
Mr. Odongo State Counsel for the 4th and 5th Defendants