Introduction
The Plaintiff filed a Plaint dated 2nd July, 2010 which was subsequently amended on 4th April, 2016. The Plaintiff sought the following orders:
a. A declaration that there was no lawful surrender of Title No. 6208/5 (Currently known as KABAZI/KABAZI BLOCK 1 GATONGU) by the Plaintiff to the 1st Defendant and that all the consequential steps taken by the District land Registrar to issue title deeds on the basis of this surrender are null and void.
b. An order compelling the 1st Defendant to return the original title for LR NO. 6208/5 (now known as KABAZI/KABAZI BLOCK 1/GATONGU) to the Plaintiff company and a further order compelling him to revoke and nullify the title deeds issued by the Nakuru District Land Registrar in respect of the illegal subdivisions made in respect of KABAZI/KABAZI BLOCK 1/1 (GATONGU) to KABAZI/KABAZI BLOCK 1/887 (GATONGU) and subsequent issuance of title deeds.
c. LR 6208/5 (now known as KABAZI/KABAZI BLOCK 1/GATONGU) be resurveyed and titles be issued to genuine members only considering the current settlement.
d. The rocky/hilly area in LR 6208/5 (now known as KABAZI/KABAZI BLOCK 1/GATONGU) be surveyed, subdivided and titles be issued to the genuine members of the plaintiff.
e. Costs of this suit.
f. Any other or further relief as the court deems fit to grant.
PLAINTIFF’S CASE
PW1 Mary Wanjiru Njenga, testified that she is the secretary of the plaintiff having been appointed in January 1988 and lives in Subukia sub-county. She states that following an annual general meeting held sometimes on or about 1988 for Gatongu farmers company ltd nine members including herself were appointed as directors to run the affairs of the company. That this AGM was informed by the decision by the shareholders to change the management of the company following concerns that the then directors were running the affairs of the company poorly. That this AGM and their appointments replaced the directorship statuses of seven former directors of the company including the Eliud Muya Kariuki following their ouster. That before 1988, the said Eliud Muya Kariuki was the secretary to the company and was in custody of all the company documents books and company seal. That upon his ouster in the 1988 elections, the said Eliud Muya Kariuki disappeared with the company seal, the company books and title deeds to the company’s property. That during the following AGM of the company in 1987, the details of the former directors including Eliud Muya Kariuki’s embezzlement and illegality was revealed by the chairman. The atrocities of the said Eliud Muya Kariuki were revealed as dividing Gatongu halfway and leaving the other half un-subdivided despite them informing members that the said property had been fully subdivided and selling plots illegally and disappearing with company property including the seal, title deeds and books. Furthermore, selling the Companies farm house to one Mr. Avtar Singh.
At the said meeting it was resolved to revoke and cancel the unlawfully issued title deeds and an election was conducted whereupon the members elected in 1988 were re-elected, including herself.
To reclaim the farm house sold to Mr. Avtar Singh by the former directors under the stewardship of Eliud Muya Kariuki, they resolved to institute a suit against the former directors and the said Mr. Avtar Singh. The suit was serialized as Nakuru High Court Civil Suit No. 123 OF 1998 was consolidated with Nakuru High Court Civil Suit No. 368 OF 1998.
That judgment in the suit was delivered in the above mentioned suits, the Court declared that the sale agreement entered into by the former directors and the said Avtar Singh was null and void and further declared that the suit properties L.R. NO. KABAZI/KABAZI BLOCK 1/441 (GATONGU) and L.R. NO. KABAZI/KABAZI BLOCK 1/443 be re-registered in the name of the Company.
THAT the Judgment faulted the conduct of the said Eliud Muya Kariuki and his associates considering the company did not benefit at all from the said purchase consideration and that the said Eliud Muya Kariuki and associates dishonesty extended to forging transfer documents and even forging statutory returns. The said Eliud Muya Kariuki was arrested by the CID and charged in NAKURU CMCC CRIMINAL CASE NO. 3045 OF 2005 whereupon he was convicted for possession of 29 original blank land green cards and certificates of lease.
During a visit to Gatongu Farm by District Land Adjudication and Settlement Office, Nakuru, at the request of the Permanent Secretary, Ministry of Lands and Housing and presided by the Provincial Land Adjudication/Settlement Officer and his officers recommendations were made for the arrest of the alleged fraudsters
THAT the Report observed that the operations of the company were smooth since inception until 7th January, 1988 when there were elections and consequential ouster of office bearers. That the ousted office bearers (Muigai Njora & Eliud Muya Kariuki) refused to hand over the Company Seal, Company Register and the Head Title. The ousted office bearers continued to transact business on behalf of the company despite their ouster.
On their application to the Company Registrar, in order to avoid involvement with the sealing of documents by the name GATONGU FARMERS CO. LTD, they were requested for a change in the name and to process a new Seal. That their request was granted and they changed the name to Gatonguh Farmers (1999) Company Limited.
That even as late as 2014, the said EL-IUD MUYA KARIUKI has continued to interfere with the affairs of the Company and even caused a forged letter dated 3rd June, 2014 with a list showing directorship of GATTONGUH FARMERS (1999) CO. LIMITED in order to continue doing business of the company.
THAT the said El-IUD MUYA KARIUKI is the sole reason for the troubles of the company and he has been convicted for atrocities committed against the company and cannot purport to have the best interests of the Company.
Upon cross-examination by Counsel Njoroge, admitted that her name is not in the register. PW1 stated that she is not the original member but her husband is an original member. PW1 stated that she bought her land from Victor Chege who is a member. She testified that the company bought the land in 1972 from a white man known as Geders. The founding directors were as follows: Mwende Kaia, Kamau Gichure, Mwangi Ngethe Mwaure, Joseph Kiarie and Philip Ndungu Wanuma. She stated that Eliud Muya took over in 1978 and the directors were James Miugai Mbora. Joseph Kimani Kigwi, Steve Kara Njogu Ndungu , Wanjiru Kamau, Miam Wambugu , Josephine Waithera, James Ngece and Macharia Githinji. She testified that Eliud Muya is alive but the rest passed away. They do not have a resolution in writing to file this case and she does not remember whether the resolution was done. PW1 stated that the two parcels of land were to be subdivided and given to members. They did the balloting in 1983. She stated that she agrees with the pleadings in the plaint and she does not understand the allegations about the boundaries. PW1 confirmed that there are those who were have constructed permanent structures and people have buried their beloved ones on the property. She prayed that title deeds be cancelled. She has not sued the title holders.
Upon cross-examination by Senior Principal State Counsel, PW1 stated that the land was subdivided in 1983 by the surveyor. She stated that the other survey was done wrongly and unlawfully as they had subdivided the land in 1983. They changed the name of the company in 1999. They have never written to Commissioner of Lands.
Upon re-examination, PW1 testified that she has sued as a company and she represents shareholders. The members will benefit if the court nullifies the titles. She testified that company is the complainant.
Sabina Wanjai Gathoni testified as PW2 and adopted her witness statement as part of her evidence in chief. Upon cross-examination by Counsel Njoroge, PW2 stated that she can see the report on housing and she was called to give her views. PW2 stated that she was there in the meeting but does not know whether she gave her views. PW2 stated that Mr. Muya was not there and the owners of the land gave views. PW2 stated that no former director was present.
DEFENDANTS CASE
Emma Sitenei, the County Land Registrar, Nakuru Gatongu Farmers Company is a land buying company incorporated under the Companies Act Cap 486 an issued with a Certificate of Incorporation on 14th April 1971. The company purchased Land Parcel I-R 6208/5 which was later converted to Registered Land Act cap 300 and named KABAZI/KABAZI BLOCK I (GATONGU) . On 3rd October, 1989, subdivision of the 1040 acres was commenced and Registry Index Map (RIM) and area lists were completed and forwarded to Nakuru District Land Registry.
Vide a letter Reference 19491/214 dated 31st January, 1990, The Chief Land Registrar advised the District Land Registrar Nakuru to proceed and issue individual title deeds to the members of the aforementioned company. However on 15th February, 1990, the Chief Lands Registrar vide a letter referenced 19491 /212 asked the Lands Registrar Nakuru to stop issuing the title deeds because surrender in respect of the farm had been rejected. The reason why the surrender document had been rejected was because the name of the surrender differed with that one in the title.
The problem seemed to have been resolve because the Chief Lands Registrar finally gave a go ahead for the process of issuance of individual title deeds to the members. A complaint was lodged from members of Gatongu Farm Co. LTD on the premise there was a case pending before the High Court involving the suit property and that the survey on respect of the suit parcel had not been completed. Moreover, that some members were left out in the Company's Register . She confirms that there were wrangles and disagreements within the company. There were title deeds which had been issue to individual members allied to Directors who were ousted.
Around the year 2003, the district Lands Registrar confirmed that some title deeds were being issued illegally and he instructed the Criminal Investigations Department to investigate the matter. One of the ousted directors Mr. Eliud Muya Kariuki was arrested and charged.
On cross examination by Mr Kibet, she states that she states that the probe committee detected an illegality and recommended Eric Muya to be arrested and charged. The issuance of titles by the ousted directors was a forgery. On Cross examination by Mr Njoroge, she states that the surrender was rejected because of discrepancy in names.
INTERESTED PARTIES’ CASE
Eliud Muya Kariuki, I/PW1 testified that Gattongu Farmers company ltd started in the year 1971. (LR NO, 6208/5 & 6208/3 deed plan no. 94391 NOW Kabazi/Kabazi Block I/(GATTONGU) was purchased by Gattongu farmers company ltd in the year 1971 from Gedili farm in the year 1971. In the year 1978 new directors were elected to guide the affairs of Gattongu farmers company ltd. The directors elected were:-
James Muigai Chairman
Eliud Muya Kariuki Secretary
Tabitha Wanjiru Kamau Treasurer
Joseph Kimani Kigiri Assistant Secretary
Miriam Wanjiru Wambugu Director
Josephine Waithira Director
James Ngeche Nduma Vice Chairman
Benson Macharia Director
Stephen Njogu Kaaru Director
In a meeting held on the 18th July 1980 it was resolved that (LR NO. 6203/5 & 6208/3 deed plan no. 94391would be subdivided into small plots equal to the number of members. It was also resolved that J. M. Ndirïtu Mrs R.W Githua would do planning of the suit parcel to pave way for full subdivision. The subdivision was to be done by P.S Matharu licensed land' surveyor certificate no 116. It was also resolved that the board of director would remain in office till subdivision work was completed.
Vide an agreement dated 27th July 1981 J.M NDIRITU & MRS R. W. GTHUA were retained to do a topographical survey plan on the suit parcel. Through an agreement dated 1 st December 1982 PS Matharu was retained to Carry out the survey work for a consideration of kshs. 460,000 and subdivision was done in 1983. An annual general meeting held on the 23rd December 1983 where it was agreed that the members being contented by the subdivision done by surveyor Matharu, the original title of the suit parcel would be officially surrendered to the Government of Kenya. It was also resolved that all members would pay a survey fee of KShs. 1200 to the company. Further it was resolved that the current board of directors would remain in office. Through an annual general meeting held on the 16th October 1990 it was resolved that 5 members namely
Margaret Wanjiru Maina, Mary Wanjiru Njenga,Kubai Chege
Wilson Kiburu Nganga,Kinyanjui Ruhiu Who had appointed themselves and/or masquarading as directors and stolen kshs, 300,000 from the company their parcel of land would be registered in the name of the company.
The said members had also failed to pay surveyor fee for plot which they were occupying. According to the interested party, all procedures were followed after all necessary documents were presented for registration. The title of the suit parcel was surrendered all land rates were paid and they were issued with clearance certificate dated 15th January 1990. The list of owners of parcel of land appearing on the index map was submitted to the department of land for issuance of individual title deed documents.
Through a letter dated 31st January 1990 the department of land wrote to the land registrar Nakuru giving them the go ahead to issue individual title deeds to the members.
Before members were issued with title deeds they were required to pay kshs. 220 for processing of title. On 24th January 1997 it was resolved that the hilly area known as KABAZI/ KABAZI BLOCK 1/ 359(GATTONGU) be subdivided. The parcel was subdivided and/ or titles issued members of Gattongu Farmers Ltd after all due procedures were followed necessary documents presented for registration and verified.
The purported directors who have brought this suit are not Gattongu farmers company ltd as there has never been any elections appointing them as the same in accordance with articles and memorandum of association of Gattongu Farmers company ltd, they have appointed themselves to the said positions. Further there was never any handing over from the previous directors to the' said directors. The documents they purport to rely on were snatched from Samuel Karu Nganga and he reported the same to Subukia Police Station. The said self-appointed directors have spiteful and malicious members whose titles are still in the name of the company whose main intention is to have the parcel resurveyed so that they can allocate bigger parcels to themselves and their cronies who are not members of Gattongu Farmers Company Ltd They have since sold parcels of land which were reserved as public utilities such as the cattle deep and school playground to third parties and want the resurvey to cleanse their illegal actions. The members live harmoniously on the ground in their respective parcels and the self-appointed director want to take advantage of the fact that most original members are deceased to grab their parcels of land. Members have made developments worth millions and buried their loved ones on their respective parcel of lands, further some members have sold their parcels to third parties and it will be against public policy and interest for the Suit parcel to be resurveyed. The suit herein has been without the resolution or consultation of members of Gattongu Farmers Company Ltd.
Upon cross-examination by Counsel Kibet, he stated that he is not an official of Gathongu Farmers Ltd and he does not know the officials of the company. He became a member in 1971. He testified that was the secretary from 1978 to 2003. He was shown PEX 21 and stated that he is not aware of the change of name. He stated that the members were 439 in number and there was a register of members. He also stated that he does not know the numbers of members. He stated that the churches applied to Gatongu Farmers to be given the places of worship and that no church purchased land and it was a donation. That many bought shares and there were seventy-five shares. He does not have the register for the original shareholders and the number of shareholders could not increase. The original members were three hundred and seventy-five and he has bought five shares. He is a member with five plots.
His wife, Agnes Muya was a member having entered either 1976 or 1975. He was not in the meeting of 7th January, 1988. He admitted that he was arrested, charged and was convicted. He appealed and he does not have the judgment.
Martha Muthoni Dungui I/PW2 a member of Gattongu farmer’s company ltd since incorporation in the year 1971 reiterates the evidence of Eliud Muya. Upon cross-examination by Counsel Kibet, DW3 stated that she is not the original member of the company and her husband was the original member. Her husband died in 1988 January and he had children. DW3 stated that she has never done succession but has a share certificate given in 1979. She stated that her husband died in January 1988. DW3 stated that her share certificate was signed by James Mwigai, the chairman then and by the then secretary; Eliud Kariuki Muya.
She stated that Eliud Muya Kariuki is among the officials of the company. She does not recognize the other new officials.
Joseph Mwaura Kimunji,i/PW3, the first chairman/ director of Gattongu farmer's ltd states that he was the chairman from the year 1971 -1974 when he handed over to new directors and has been a member since then. He states that (LR NO, 6208/5 & 6208/3 deed plan no. 94391 NOW Kabazi/ kabazi block I/(GAITONGU) was purchased by Gattongu farmers company ltd in the year 1971 from Gedin farm. On the 18th July 1980 the members passed a resolution that the suit parcel be subdivided into small plots equal to the number of members. It was also resolved that the board of director would remain in office till subdivision work was completed. The subdivision was concluded in the year 1983.
On or about the 23rd December 1989 the directors called them for an annual general meeting where it was resolved that the members being contented by the subdivision done by surveyor Matharu the original title of the suit parcel would be officially surrendered to the government of Kenya, members were to pay survey fee of kshs. 1200 to the company. On or about 1990 a dispute arose in regards to the control of the company.
Some members namely:-Margaret Wanjiru Maina, Mary Wanjiru Njenga,Kubai Chege,Wilson Kiburu Nganga, Kinyanjui Ruhiu had appointed themselves as new directors without calling any elections and/or following the laid down procedures. They had also stolen Kshs 300,000 from the company.
Through an annual general meeting held on the 16th October 1990 it was resolved that the self-appointed directors parcels of land would be registered in the name of the company, The said members had also failed to pay surveyor fee for their plots which they were occupying. On or about the year 1990 the company began issuing title to the members and he was issued with his title of parcel of land known as Kabazi/Kabazi block 1/187 after paying all the requisite fees.
He has made significant development on his parcel. They have lived harmoniously in their respective parcels of land. This suit is brought has been brought by the self-appointed directors with ill intention. The suit herein has been instituted without the resolution or consultation of members of Gattongu farmers Company Ltd.
Upon cross-examination by Counsel Kibet, I/PW3 stated that he does not know the circumstances of surrender of the title and he was not present but added that the title was surrendered by Mr. Eliud Muya (Kariuki) and he does not know under what circumstances. That there is land still in the company’s name however, he was not present in 1990 as he was in Nairobi. He went to Nairobi in 1979 and came back in 1983. In 1990 he was in Kericho and he cannot remember whether he was present during the meeting.
Upon re-examination, he stated that his statement is correct that he attended a meeting in 1989 and they agreed that the land be subdivided. There was violence during election of officials. Mary Wanjiru Njenga was on one side and the other side was Eliud Muya Kariuki. The title was registered in the name of the company because of fear of destruction of the property. He was not in the meetings.
PLAINTIFF’S SUBMISSIONS
Counsel for the Plaintiff filed submissions dated 19th December, 2025 and identified the following issues for determination:
a. Whether the Plaintiff is the lawful registered proprietor of Land Reference Number 6208/5 (now known as KABAZI/KABAZI BLOCK 1/GATONGU)?
b. Whether there was a lawful surrender of Title No 6208/5 (now KABAZI/KABAZI BLOCK 1, GATONGU) by the Plaintiff to the 1st Defendant?
c. Whether the subdivision of Land Reference Number 6208/5 and the subsequent issuance of titles KABAZI/KABAZI BLOCK 1/1 to 887 (GATONGU) was lawful, regular, and procedurally compliant?
d. Whether the Plaintiff is entitled to orders for resurvey, rectification of the land register, and issuance of titles to genuine members only, taking into account the current settlement on the land; and
e. Who is to bear the costs of this suit?
On the first issue, counsel submitted that the Plaintiff is the lawful registered proprietor of the parent title (now KABAZI/KABAZI BLOCK 1, GATONGU). Counsel submitted that the Plaintiff's ownership of the parent title is not merely an assertion; it is a fact confirmed by the Ministry of Lands Report dated 19th January. Counsel submitted that this report, was the result of a high-level visit by the District Land Adjudication and Settlement Office at the behest of the Permanent Secretary.
On the second issue, counsel submitted that no lawful surrender of the parent title was ever authorized by the Plaintiff company to the 1st Defendant for purposes of subdividing Land Reference Number 6208/5 (now known as KABAZI/KABAZI BLOCK I/GATONGU) into the resultant parcels KABAZI/KABAZI BLOCK 1/1 to 887 (GATONGU), or for the subsequent issuance of individual title deeds. Reliance was placed on the cases of Munyu Maina v Hiram Gathiaka [20131 eKLR and Henry Muthee Kathurima v Commissioner Of Lands & another [2015] KECA 892 (KLR).
On the third issue, counsel submitted that the Parent Title (I-R No. 6208/5) remains, in the eyes of the law, the only valid title in existence. It was never lawfully extinguished because the hands that moved to surrender it were the hands of "ousted imposters," not the authorized directors of the Plaintiff. Consequently, the subsequent 887 titles lack legality. Reliance was placed on the cases of Dina Management Limited v County Government of Mombasa & 5 Others (20231 KESC 30 (KLR) and Daudi Kiptuqen v Commissioner of Lands & 4 Others [20151 eKLR.
On the fourth issue, counsel submitted that to leave the register as it currently stands would be to tolerate a theft that has masqueraded as a legal subdivision for over twenty years. Counsel pray that the Court grants the orders for rectification and resurvey, thereby returning Gatongu Farm to its rightful owners and genuine members. Counsel relied on Section 80 of the Land Registration Act and the following cases: Ngugi v Kamau & another (Environment & Land Case 36 of 2020) [2022] KEELC 2261 (KLR) and Mwamule Company Limited v Chief Land Registrar & 2 others [2025] KEELC 4684 (KLR).
On the fifth issue, counsel urged this Honorable Court to exercise its discretion in favor of awarding costs to the Plaintiff. Reliance was placed on the case of Cecilia Karuru Nqavu v Barclavs Bank of Kenya (2016) eKLR.
ANALYSIS AND DETERMINATION
The issues for determination are:
a. Whether the subdivision of the suit parcel was procedurally done?
b. Whether the Plaintiff is entitled to the orders sought?
It is the Plaintiff’s case that the Plaintiff was the registered owner of the parcel of land known as LR NO 6208/5 (Currently known as KABAZI/KABAZI BLOCK 1/GATONGU). The Plaintiff avers that no resolution or decision has been made for the sub-division of the said land or to sell it or surrender the title to the 1st Defendant.
It is the Plaintiff’s case that in or around July 2002, it visited the 1st Defendant and was informed that the title document for the land had been surrendered to the 1st Defendant for purposes of sub-division of titles. The Plaintiff contends that the 1st Defendant illegally authorized the subdivision of the land.
The Plaintiff contends that the illegal subdivisions arising from KABAZI/KABAZI BLOCK 1/GATONGU have been registered and subsequently issued with title documents registered from KABAZI/KABAZI BLOCK 1/1 (GATONGU) to KABAZI/KABAZI BLOCK 1/ 887 (GATONGU).
It is the Plaintiff’s case that there was no surrender of the original title and the illegal subdivisions arising therefrom should be revoked and the titles issued cancelled. The Plaintiff contends that on or about the year 2005, a probe committee appointed by the Minister of Lands and Settlement found that the titles were issued irregularly. It is the Plaintiff’s case that the 1st Defendant’s actions were illegitimate as: the original surrender of the title deed and all subsequent actions were conducted by individuals not authorized to deal in affairs of the company as they were not directors and the Registry Index Map was not in existence.
It is the Defendant’s case that if the suit parcel was sub-divided and/or titles issued, the same was done procedurally and after all the necessary documents were duly presented for registration, verified and ascertained to have been properly executed. The 1st Defendant avers that a fair registration and further transfer was procedurally done.
It is the Interested Parties case that KABAZI/KABAZI BLOCK 1/ (GATTONGU) was subdivided on or about the year 1983 after a resolution by members of Gattongu Farmers and the same was conducted by a duly licensed surveyor. The Interested Parties further aver that the surrender of the title to the suit parcel was lawfully and procedurally done after all the necessary documents were duly presented and approved by the 1st Defendant.
It is the Interested Parties case that after the surrender, title deeds were procedurally issued to all members of the Plaintiff who had paid the requisite fees. The Interested parties contend that members of Gattongu farmers have settled in their individual parcel peacefully and have carried significant development thereon.
Sections 107, 108 and 109 of the Evidence Act provides as follows:
“107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. 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 said.
109. 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 be on any particular person.”
The Plaintiff has informed this court that there was no surrender of the original title and thus the resultant sub-divisions of the suit property are illegal. The court has looked at the Interested Parties List of documents filed in court on 23rd February, 2021, and notes that the Interested party contends that there was an annual general meeting for the proposal to subdivided LR No 6208/2R dated 18th July, 1980. The Interested parties also contend that there was a surrender of the main title deed of Gattongu Farmers Company Limited LR No 208/2R on 23rd December, 1989.
This court has considered the report dated 19th January, 2005 from the District Land Adjudication and Settlement Office. The Court notes that based on the report, the ousted directors (including Muigai Njora- Chairman and Eliud Muya Kariuki- Secretary) continued transacting company business despite their ouster.
DW1 stated upon cross-examination that there are five recommendations in the report and illegal activities were detected. DW1 stated that Erick Muya Kariuki was to be arrested. DW1 stated that the Director’s action of continuing to issuing titles was deemed a forgery. She stated that the entire process was put into question.
DW1 on further cross-examination stated that the Land Registrar was to stop giving titles because there was an error. DW1 stated that there was an issue with surrender forms which had been rejected. DW1 stated that the surrender name differed with title and she does not know how many title deeds were issued.
Section 26 (1) of the Land Registration Act provides:
(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
This court has considered the witness testimonies and finds that there was no lawful surrender of the original title in respect of the suit property. The court further takes cognizance of the fact that the resultant subdivisions of the suit property might have been transferred to other third parties.
In Sehmi & Another -vs- Tarabana Co. Ltd & Others [2025] KESC 21 [KLR], the Apex Court pronounced as follows at paragraph 72:
In view of this court’s pronouncement in Dina Management Limited (supra), the answer as to whether the doctrine of innocent purchaser for value without notice protects a purchaser of an illegally or irregularly allocated title to public land lies squarely in the negative. We hasten to add that such a transaction cannot attract the protection of equity because “the latter follows the law”. In this regard, two critical elements of the doctrine would be missing because, first, the purchaser must have purchased “a legal estate”, and secondly, such purchase must have been without “notice”. Since the holder of an illegally allocated title cannot confer a valid title upon a third party, there would be no “legal estate” to be purchased in the first place. Similarly, the absence of “notice” is in reference to the existence of “an equitable interest” in the land and not “the incidence of illegality or irregularity of the title” in question. Therefore, there can be no protectable “purchaser of an illegal title without notice of such illegality”. In other words, a purchaser will only be regarded as bona fide if he buys property in good faith without notice of any defect or claims against the title. So that if the title in question is illegal or obtained through unlawful means, the purchaser cannot claim protection even if he was not aware of the illegality.
This court finds that the Plaintiff has proved it’s case and I therefore issue the following orders:
a. A declaration is hereby made that there was no lawful surrender of Title No. 6208/5 (Currently known as KABAZI/KABAZI BLOCK 1 GATONGU) by the Plaintiff to the 1st Defendant and that all the consequential steps taken by the District land Registrar to issue title deeds on the basis of this surrender are null and void.
b. The 1st Defendant shall return the original title for LR NO. 6208/5 (now known as KABAZI/KABAZI BLOCK 1/GATONGU) to the Plaintiff company.
c. The 1st Defendant shall revoke and nullify the title deeds issued by the Nakuru District Land Registrar in respect of the illegal subdivisions made in respect of KABAZI/KABAZI BLOCK 1/1 (GATONGU) to KABAZI/KABAZI BLOCK 1/887 (GATONGU) and subsequent issuance of title deeds.
d. LR 6208/5 (now known as KABAZI/KABAZI BLOCK 1/GATONGU) shall be resurveyed and titles be issued to genuine members only considering the current settlement.
e. The rocky/hilly area in LR 6208/5 (now known as KABAZI/KABAZI BLOCK 1/GATONGU) shall be surveyed, subdivided and titles be issued to the genuine members of the plaintiff.
f. Costs of this suit are awarded to the Plaintiff.
It is so ordered.
The Plaintiff filed a Plaint dated 2nd July, 2010 which was subsequently amended on 4th April, 2016. The Plaintiff sought the following orders:
a. A declaration that there was no lawful surrender of Title No. 6208/5 (Currently known as KABAZI/KABAZI BLOCK 1 GATONGU) by the Plaintiff to the 1st Defendant and that all the consequential steps taken by the District land Registrar to issue title deeds on the basis of this surrender are null and void.
b. An order compelling the 1st Defendant to return the original title for LR NO. 6208/5 (now known as KABAZI/KABAZI BLOCK 1/GATONGU) to the Plaintiff company and a further order compelling him to revoke and nullify the title deeds issued by the Nakuru District Land Registrar in respect of the illegal subdivisions made in respect of KABAZI/KABAZI BLOCK 1/1 (GATONGU) to KABAZI/KABAZI BLOCK 1/887 (GATONGU) and subsequent issuance of title deeds.
c. LR 6208/5 (now known as KABAZI/KABAZI BLOCK 1/GATONGU) be resurveyed and titles be issued to genuine members only considering the current settlement.
d. The rocky/hilly area in LR 6208/5 (now known as KABAZI/KABAZI BLOCK 1/GATONGU) be surveyed, subdivided and titles be issued to the genuine members of the plaintiff.
e. Costs of this suit.
f. Any other or further relief as the court deems fit to grant.
PLAINTIFF’S CASE
PW1 Mary Wanjiru Njenga, testified that she is the secretary of the plaintiff having been appointed in January 1988 and lives in Subukia sub-county. She states that following an annual general meeting held sometimes on or about 1988 for Gatongu farmers company ltd nine members including herself were appointed as directors to run the affairs of the company. That this AGM was informed by the decision by the shareholders to change the management of the company following concerns that the then directors were running the affairs of the company poorly. That this AGM and their appointments replaced the directorship statuses of seven former directors of the company including the Eliud Muya Kariuki following their ouster. That before 1988, the said Eliud Muya Kariuki was the secretary to the company and was in custody of all the company documents books and company seal. That upon his ouster in the 1988 elections, the said Eliud Muya Kariuki disappeared with the company seal, the company books and title deeds to the company’s property. That during the following AGM of the company in 1987, the details of the former directors including Eliud Muya Kariuki’s embezzlement and illegality was revealed by the chairman. The atrocities of the said Eliud Muya Kariuki were revealed as dividing Gatongu halfway and leaving the other half un-subdivided despite them informing members that the said property had been fully subdivided and selling plots illegally and disappearing with company property including the seal, title deeds and books. Furthermore, selling the Companies farm house to one Mr. Avtar Singh.
At the said meeting it was resolved to revoke and cancel the unlawfully issued title deeds and an election was conducted whereupon the members elected in 1988 were re-elected, including herself.
To reclaim the farm house sold to Mr. Avtar Singh by the former directors under the stewardship of Eliud Muya Kariuki, they resolved to institute a suit against the former directors and the said Mr. Avtar Singh. The suit was serialized as Nakuru High Court Civil Suit No. 123 OF 1998 was consolidated with Nakuru High Court Civil Suit No. 368 OF 1998.
That judgment in the suit was delivered in the above mentioned suits, the Court declared that the sale agreement entered into by the former directors and the said Avtar Singh was null and void and further declared that the suit properties L.R. NO. KABAZI/KABAZI BLOCK 1/441 (GATONGU) and L.R. NO. KABAZI/KABAZI BLOCK 1/443 be re-registered in the name of the Company.
THAT the Judgment faulted the conduct of the said Eliud Muya Kariuki and his associates considering the company did not benefit at all from the said purchase consideration and that the said Eliud Muya Kariuki and associates dishonesty extended to forging transfer documents and even forging statutory returns. The said Eliud Muya Kariuki was arrested by the CID and charged in NAKURU CMCC CRIMINAL CASE NO. 3045 OF 2005 whereupon he was convicted for possession of 29 original blank land green cards and certificates of lease.
During a visit to Gatongu Farm by District Land Adjudication and Settlement Office, Nakuru, at the request of the Permanent Secretary, Ministry of Lands and Housing and presided by the Provincial Land Adjudication/Settlement Officer and his officers recommendations were made for the arrest of the alleged fraudsters
THAT the Report observed that the operations of the company were smooth since inception until 7th January, 1988 when there were elections and consequential ouster of office bearers. That the ousted office bearers (Muigai Njora & Eliud Muya Kariuki) refused to hand over the Company Seal, Company Register and the Head Title. The ousted office bearers continued to transact business on behalf of the company despite their ouster.
On their application to the Company Registrar, in order to avoid involvement with the sealing of documents by the name GATONGU FARMERS CO. LTD, they were requested for a change in the name and to process a new Seal. That their request was granted and they changed the name to Gatonguh Farmers (1999) Company Limited.
That even as late as 2014, the said EL-IUD MUYA KARIUKI has continued to interfere with the affairs of the Company and even caused a forged letter dated 3rd June, 2014 with a list showing directorship of GATTONGUH FARMERS (1999) CO. LIMITED in order to continue doing business of the company.
THAT the said El-IUD MUYA KARIUKI is the sole reason for the troubles of the company and he has been convicted for atrocities committed against the company and cannot purport to have the best interests of the Company.
Upon cross-examination by Counsel Njoroge, admitted that her name is not in the register. PW1 stated that she is not the original member but her husband is an original member. PW1 stated that she bought her land from Victor Chege who is a member. She testified that the company bought the land in 1972 from a white man known as Geders. The founding directors were as follows: Mwende Kaia, Kamau Gichure, Mwangi Ngethe Mwaure, Joseph Kiarie and Philip Ndungu Wanuma. She stated that Eliud Muya took over in 1978 and the directors were James Miugai Mbora. Joseph Kimani Kigwi, Steve Kara Njogu Ndungu , Wanjiru Kamau, Miam Wambugu , Josephine Waithera, James Ngece and Macharia Githinji. She testified that Eliud Muya is alive but the rest passed away. They do not have a resolution in writing to file this case and she does not remember whether the resolution was done. PW1 stated that the two parcels of land were to be subdivided and given to members. They did the balloting in 1983. She stated that she agrees with the pleadings in the plaint and she does not understand the allegations about the boundaries. PW1 confirmed that there are those who were have constructed permanent structures and people have buried their beloved ones on the property. She prayed that title deeds be cancelled. She has not sued the title holders.
Upon cross-examination by Senior Principal State Counsel, PW1 stated that the land was subdivided in 1983 by the surveyor. She stated that the other survey was done wrongly and unlawfully as they had subdivided the land in 1983. They changed the name of the company in 1999. They have never written to Commissioner of Lands.
Upon re-examination, PW1 testified that she has sued as a company and she represents shareholders. The members will benefit if the court nullifies the titles. She testified that company is the complainant.
Sabina Wanjai Gathoni testified as PW2 and adopted her witness statement as part of her evidence in chief. Upon cross-examination by Counsel Njoroge, PW2 stated that she can see the report on housing and she was called to give her views. PW2 stated that she was there in the meeting but does not know whether she gave her views. PW2 stated that Mr. Muya was not there and the owners of the land gave views. PW2 stated that no former director was present.
DEFENDANTS CASE
Emma Sitenei, the County Land Registrar, Nakuru Gatongu Farmers Company is a land buying company incorporated under the Companies Act Cap 486 an issued with a Certificate of Incorporation on 14th April 1971. The company purchased Land Parcel I-R 6208/5 which was later converted to Registered Land Act cap 300 and named KABAZI/KABAZI BLOCK I (GATONGU) . On 3rd October, 1989, subdivision of the 1040 acres was commenced and Registry Index Map (RIM) and area lists were completed and forwarded to Nakuru District Land Registry.
Vide a letter Reference 19491/214 dated 31st January, 1990, The Chief Land Registrar advised the District Land Registrar Nakuru to proceed and issue individual title deeds to the members of the aforementioned company. However on 15th February, 1990, the Chief Lands Registrar vide a letter referenced 19491 /212 asked the Lands Registrar Nakuru to stop issuing the title deeds because surrender in respect of the farm had been rejected. The reason why the surrender document had been rejected was because the name of the surrender differed with that one in the title.
The problem seemed to have been resolve because the Chief Lands Registrar finally gave a go ahead for the process of issuance of individual title deeds to the members. A complaint was lodged from members of Gatongu Farm Co. LTD on the premise there was a case pending before the High Court involving the suit property and that the survey on respect of the suit parcel had not been completed. Moreover, that some members were left out in the Company's Register . She confirms that there were wrangles and disagreements within the company. There were title deeds which had been issue to individual members allied to Directors who were ousted.
Around the year 2003, the district Lands Registrar confirmed that some title deeds were being issued illegally and he instructed the Criminal Investigations Department to investigate the matter. One of the ousted directors Mr. Eliud Muya Kariuki was arrested and charged.
On cross examination by Mr Kibet, she states that she states that the probe committee detected an illegality and recommended Eric Muya to be arrested and charged. The issuance of titles by the ousted directors was a forgery. On Cross examination by Mr Njoroge, she states that the surrender was rejected because of discrepancy in names.
INTERESTED PARTIES’ CASE
Eliud Muya Kariuki, I/PW1 testified that Gattongu Farmers company ltd started in the year 1971. (LR NO, 6208/5 & 6208/3 deed plan no. 94391 NOW Kabazi/Kabazi Block I/(GATTONGU) was purchased by Gattongu farmers company ltd in the year 1971 from Gedili farm in the year 1971. In the year 1978 new directors were elected to guide the affairs of Gattongu farmers company ltd. The directors elected were:-
James Muigai Chairman
Eliud Muya Kariuki Secretary
Tabitha Wanjiru Kamau Treasurer
Joseph Kimani Kigiri Assistant Secretary
Miriam Wanjiru Wambugu Director
Josephine Waithira Director
James Ngeche Nduma Vice Chairman
Benson Macharia Director
Stephen Njogu Kaaru Director
In a meeting held on the 18th July 1980 it was resolved that (LR NO. 6203/5 & 6208/3 deed plan no. 94391would be subdivided into small plots equal to the number of members. It was also resolved that J. M. Ndirïtu Mrs R.W Githua would do planning of the suit parcel to pave way for full subdivision. The subdivision was to be done by P.S Matharu licensed land' surveyor certificate no 116. It was also resolved that the board of director would remain in office till subdivision work was completed.
Vide an agreement dated 27th July 1981 J.M NDIRITU & MRS R. W. GTHUA were retained to do a topographical survey plan on the suit parcel. Through an agreement dated 1 st December 1982 PS Matharu was retained to Carry out the survey work for a consideration of kshs. 460,000 and subdivision was done in 1983. An annual general meeting held on the 23rd December 1983 where it was agreed that the members being contented by the subdivision done by surveyor Matharu, the original title of the suit parcel would be officially surrendered to the Government of Kenya. It was also resolved that all members would pay a survey fee of KShs. 1200 to the company. Further it was resolved that the current board of directors would remain in office. Through an annual general meeting held on the 16th October 1990 it was resolved that 5 members namely
Margaret Wanjiru Maina, Mary Wanjiru Njenga,Kubai Chege
Wilson Kiburu Nganga,Kinyanjui Ruhiu Who had appointed themselves and/or masquarading as directors and stolen kshs, 300,000 from the company their parcel of land would be registered in the name of the company.
The said members had also failed to pay surveyor fee for plot which they were occupying. According to the interested party, all procedures were followed after all necessary documents were presented for registration. The title of the suit parcel was surrendered all land rates were paid and they were issued with clearance certificate dated 15th January 1990. The list of owners of parcel of land appearing on the index map was submitted to the department of land for issuance of individual title deed documents.
Through a letter dated 31st January 1990 the department of land wrote to the land registrar Nakuru giving them the go ahead to issue individual title deeds to the members.
Before members were issued with title deeds they were required to pay kshs. 220 for processing of title. On 24th January 1997 it was resolved that the hilly area known as KABAZI/ KABAZI BLOCK 1/ 359(GATTONGU) be subdivided. The parcel was subdivided and/ or titles issued members of Gattongu Farmers Ltd after all due procedures were followed necessary documents presented for registration and verified.
The purported directors who have brought this suit are not Gattongu farmers company ltd as there has never been any elections appointing them as the same in accordance with articles and memorandum of association of Gattongu Farmers company ltd, they have appointed themselves to the said positions. Further there was never any handing over from the previous directors to the' said directors. The documents they purport to rely on were snatched from Samuel Karu Nganga and he reported the same to Subukia Police Station. The said self-appointed directors have spiteful and malicious members whose titles are still in the name of the company whose main intention is to have the parcel resurveyed so that they can allocate bigger parcels to themselves and their cronies who are not members of Gattongu Farmers Company Ltd They have since sold parcels of land which were reserved as public utilities such as the cattle deep and school playground to third parties and want the resurvey to cleanse their illegal actions. The members live harmoniously on the ground in their respective parcels and the self-appointed director want to take advantage of the fact that most original members are deceased to grab their parcels of land. Members have made developments worth millions and buried their loved ones on their respective parcel of lands, further some members have sold their parcels to third parties and it will be against public policy and interest for the Suit parcel to be resurveyed. The suit herein has been without the resolution or consultation of members of Gattongu Farmers Company Ltd.
Upon cross-examination by Counsel Kibet, he stated that he is not an official of Gathongu Farmers Ltd and he does not know the officials of the company. He became a member in 1971. He testified that was the secretary from 1978 to 2003. He was shown PEX 21 and stated that he is not aware of the change of name. He stated that the members were 439 in number and there was a register of members. He also stated that he does not know the numbers of members. He stated that the churches applied to Gatongu Farmers to be given the places of worship and that no church purchased land and it was a donation. That many bought shares and there were seventy-five shares. He does not have the register for the original shareholders and the number of shareholders could not increase. The original members were three hundred and seventy-five and he has bought five shares. He is a member with five plots.
His wife, Agnes Muya was a member having entered either 1976 or 1975. He was not in the meeting of 7th January, 1988. He admitted that he was arrested, charged and was convicted. He appealed and he does not have the judgment.
Martha Muthoni Dungui I/PW2 a member of Gattongu farmer’s company ltd since incorporation in the year 1971 reiterates the evidence of Eliud Muya. Upon cross-examination by Counsel Kibet, DW3 stated that she is not the original member of the company and her husband was the original member. Her husband died in 1988 January and he had children. DW3 stated that she has never done succession but has a share certificate given in 1979. She stated that her husband died in January 1988. DW3 stated that her share certificate was signed by James Mwigai, the chairman then and by the then secretary; Eliud Kariuki Muya.
She stated that Eliud Muya Kariuki is among the officials of the company. She does not recognize the other new officials.
Joseph Mwaura Kimunji,i/PW3, the first chairman/ director of Gattongu farmer's ltd states that he was the chairman from the year 1971 -1974 when he handed over to new directors and has been a member since then. He states that (LR NO, 6208/5 & 6208/3 deed plan no. 94391 NOW Kabazi/ kabazi block I/(GAITONGU) was purchased by Gattongu farmers company ltd in the year 1971 from Gedin farm. On the 18th July 1980 the members passed a resolution that the suit parcel be subdivided into small plots equal to the number of members. It was also resolved that the board of director would remain in office till subdivision work was completed. The subdivision was concluded in the year 1983.
On or about the 23rd December 1989 the directors called them for an annual general meeting where it was resolved that the members being contented by the subdivision done by surveyor Matharu the original title of the suit parcel would be officially surrendered to the government of Kenya, members were to pay survey fee of kshs. 1200 to the company. On or about 1990 a dispute arose in regards to the control of the company.
Some members namely:-Margaret Wanjiru Maina, Mary Wanjiru Njenga,Kubai Chege,Wilson Kiburu Nganga, Kinyanjui Ruhiu had appointed themselves as new directors without calling any elections and/or following the laid down procedures. They had also stolen Kshs 300,000 from the company.
Through an annual general meeting held on the 16th October 1990 it was resolved that the self-appointed directors parcels of land would be registered in the name of the company, The said members had also failed to pay surveyor fee for their plots which they were occupying. On or about the year 1990 the company began issuing title to the members and he was issued with his title of parcel of land known as Kabazi/Kabazi block 1/187 after paying all the requisite fees.
He has made significant development on his parcel. They have lived harmoniously in their respective parcels of land. This suit is brought has been brought by the self-appointed directors with ill intention. The suit herein has been instituted without the resolution or consultation of members of Gattongu farmers Company Ltd.
Upon cross-examination by Counsel Kibet, I/PW3 stated that he does not know the circumstances of surrender of the title and he was not present but added that the title was surrendered by Mr. Eliud Muya (Kariuki) and he does not know under what circumstances. That there is land still in the company’s name however, he was not present in 1990 as he was in Nairobi. He went to Nairobi in 1979 and came back in 1983. In 1990 he was in Kericho and he cannot remember whether he was present during the meeting.
Upon re-examination, he stated that his statement is correct that he attended a meeting in 1989 and they agreed that the land be subdivided. There was violence during election of officials. Mary Wanjiru Njenga was on one side and the other side was Eliud Muya Kariuki. The title was registered in the name of the company because of fear of destruction of the property. He was not in the meetings.
PLAINTIFF’S SUBMISSIONS
Counsel for the Plaintiff filed submissions dated 19th December, 2025 and identified the following issues for determination:
a. Whether the Plaintiff is the lawful registered proprietor of Land Reference Number 6208/5 (now known as KABAZI/KABAZI BLOCK 1/GATONGU)?
b. Whether there was a lawful surrender of Title No 6208/5 (now KABAZI/KABAZI BLOCK 1, GATONGU) by the Plaintiff to the 1st Defendant?
c. Whether the subdivision of Land Reference Number 6208/5 and the subsequent issuance of titles KABAZI/KABAZI BLOCK 1/1 to 887 (GATONGU) was lawful, regular, and procedurally compliant?
d. Whether the Plaintiff is entitled to orders for resurvey, rectification of the land register, and issuance of titles to genuine members only, taking into account the current settlement on the land; and
e. Who is to bear the costs of this suit?
On the first issue, counsel submitted that the Plaintiff is the lawful registered proprietor of the parent title (now KABAZI/KABAZI BLOCK 1, GATONGU). Counsel submitted that the Plaintiff's ownership of the parent title is not merely an assertion; it is a fact confirmed by the Ministry of Lands Report dated 19th January. Counsel submitted that this report, was the result of a high-level visit by the District Land Adjudication and Settlement Office at the behest of the Permanent Secretary.
On the second issue, counsel submitted that no lawful surrender of the parent title was ever authorized by the Plaintiff company to the 1st Defendant for purposes of subdividing Land Reference Number 6208/5 (now known as KABAZI/KABAZI BLOCK I/GATONGU) into the resultant parcels KABAZI/KABAZI BLOCK 1/1 to 887 (GATONGU), or for the subsequent issuance of individual title deeds. Reliance was placed on the cases of Munyu Maina v Hiram Gathiaka [20131 eKLR and Henry Muthee Kathurima v Commissioner Of Lands & another [2015] KECA 892 (KLR).
On the third issue, counsel submitted that the Parent Title (I-R No. 6208/5) remains, in the eyes of the law, the only valid title in existence. It was never lawfully extinguished because the hands that moved to surrender it were the hands of "ousted imposters," not the authorized directors of the Plaintiff. Consequently, the subsequent 887 titles lack legality. Reliance was placed on the cases of Dina Management Limited v County Government of Mombasa & 5 Others (20231 KESC 30 (KLR) and Daudi Kiptuqen v Commissioner of Lands & 4 Others [20151 eKLR.
On the fourth issue, counsel submitted that to leave the register as it currently stands would be to tolerate a theft that has masqueraded as a legal subdivision for over twenty years. Counsel pray that the Court grants the orders for rectification and resurvey, thereby returning Gatongu Farm to its rightful owners and genuine members. Counsel relied on Section 80 of the Land Registration Act and the following cases: Ngugi v Kamau & another (Environment & Land Case 36 of 2020) [2022] KEELC 2261 (KLR) and Mwamule Company Limited v Chief Land Registrar & 2 others [2025] KEELC 4684 (KLR).
On the fifth issue, counsel urged this Honorable Court to exercise its discretion in favor of awarding costs to the Plaintiff. Reliance was placed on the case of Cecilia Karuru Nqavu v Barclavs Bank of Kenya (2016) eKLR.
ANALYSIS AND DETERMINATION
The issues for determination are:
a. Whether the subdivision of the suit parcel was procedurally done?
b. Whether the Plaintiff is entitled to the orders sought?
It is the Plaintiff’s case that the Plaintiff was the registered owner of the parcel of land known as LR NO 6208/5 (Currently known as KABAZI/KABAZI BLOCK 1/GATONGU). The Plaintiff avers that no resolution or decision has been made for the sub-division of the said land or to sell it or surrender the title to the 1st Defendant.
It is the Plaintiff’s case that in or around July 2002, it visited the 1st Defendant and was informed that the title document for the land had been surrendered to the 1st Defendant for purposes of sub-division of titles. The Plaintiff contends that the 1st Defendant illegally authorized the subdivision of the land.
The Plaintiff contends that the illegal subdivisions arising from KABAZI/KABAZI BLOCK 1/GATONGU have been registered and subsequently issued with title documents registered from KABAZI/KABAZI BLOCK 1/1 (GATONGU) to KABAZI/KABAZI BLOCK 1/ 887 (GATONGU).
It is the Plaintiff’s case that there was no surrender of the original title and the illegal subdivisions arising therefrom should be revoked and the titles issued cancelled. The Plaintiff contends that on or about the year 2005, a probe committee appointed by the Minister of Lands and Settlement found that the titles were issued irregularly. It is the Plaintiff’s case that the 1st Defendant’s actions were illegitimate as: the original surrender of the title deed and all subsequent actions were conducted by individuals not authorized to deal in affairs of the company as they were not directors and the Registry Index Map was not in existence.
It is the Defendant’s case that if the suit parcel was sub-divided and/or titles issued, the same was done procedurally and after all the necessary documents were duly presented for registration, verified and ascertained to have been properly executed. The 1st Defendant avers that a fair registration and further transfer was procedurally done.
It is the Interested Parties case that KABAZI/KABAZI BLOCK 1/ (GATTONGU) was subdivided on or about the year 1983 after a resolution by members of Gattongu Farmers and the same was conducted by a duly licensed surveyor. The Interested Parties further aver that the surrender of the title to the suit parcel was lawfully and procedurally done after all the necessary documents were duly presented and approved by the 1st Defendant.
It is the Interested Parties case that after the surrender, title deeds were procedurally issued to all members of the Plaintiff who had paid the requisite fees. The Interested parties contend that members of Gattongu farmers have settled in their individual parcel peacefully and have carried significant development thereon.
Sections 107, 108 and 109 of the Evidence Act provides as follows:
“107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. 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 said.
109. 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 be on any particular person.”
The Plaintiff has informed this court that there was no surrender of the original title and thus the resultant sub-divisions of the suit property are illegal. The court has looked at the Interested Parties List of documents filed in court on 23rd February, 2021, and notes that the Interested party contends that there was an annual general meeting for the proposal to subdivided LR No 6208/2R dated 18th July, 1980. The Interested parties also contend that there was a surrender of the main title deed of Gattongu Farmers Company Limited LR No 208/2R on 23rd December, 1989.
This court has considered the report dated 19th January, 2005 from the District Land Adjudication and Settlement Office. The Court notes that based on the report, the ousted directors (including Muigai Njora- Chairman and Eliud Muya Kariuki- Secretary) continued transacting company business despite their ouster.
DW1 stated upon cross-examination that there are five recommendations in the report and illegal activities were detected. DW1 stated that Erick Muya Kariuki was to be arrested. DW1 stated that the Director’s action of continuing to issuing titles was deemed a forgery. She stated that the entire process was put into question.
DW1 on further cross-examination stated that the Land Registrar was to stop giving titles because there was an error. DW1 stated that there was an issue with surrender forms which had been rejected. DW1 stated that the surrender name differed with title and she does not know how many title deeds were issued.
Section 26 (1) of the Land Registration Act provides:
(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
This court has considered the witness testimonies and finds that there was no lawful surrender of the original title in respect of the suit property. The court further takes cognizance of the fact that the resultant subdivisions of the suit property might have been transferred to other third parties.
In Sehmi & Another -vs- Tarabana Co. Ltd & Others [2025] KESC 21 [KLR], the Apex Court pronounced as follows at paragraph 72:
In view of this court’s pronouncement in Dina Management Limited (supra), the answer as to whether the doctrine of innocent purchaser for value without notice protects a purchaser of an illegally or irregularly allocated title to public land lies squarely in the negative. We hasten to add that such a transaction cannot attract the protection of equity because “the latter follows the law”. In this regard, two critical elements of the doctrine would be missing because, first, the purchaser must have purchased “a legal estate”, and secondly, such purchase must have been without “notice”. Since the holder of an illegally allocated title cannot confer a valid title upon a third party, there would be no “legal estate” to be purchased in the first place. Similarly, the absence of “notice” is in reference to the existence of “an equitable interest” in the land and not “the incidence of illegality or irregularity of the title” in question. Therefore, there can be no protectable “purchaser of an illegal title without notice of such illegality”. In other words, a purchaser will only be regarded as bona fide if he buys property in good faith without notice of any defect or claims against the title. So that if the title in question is illegal or obtained through unlawful means, the purchaser cannot claim protection even if he was not aware of the illegality.
This court finds that the Plaintiff has proved it’s case and I therefore issue the following orders:
a. A declaration is hereby made that there was no lawful surrender of Title No. 6208/5 (Currently known as KABAZI/KABAZI BLOCK 1 GATONGU) by the Plaintiff to the 1st Defendant and that all the consequential steps taken by the District land Registrar to issue title deeds on the basis of this surrender are null and void.
b. The 1st Defendant shall return the original title for LR NO. 6208/5 (now known as KABAZI/KABAZI BLOCK 1/GATONGU) to the Plaintiff company.
c. The 1st Defendant shall revoke and nullify the title deeds issued by the Nakuru District Land Registrar in respect of the illegal subdivisions made in respect of KABAZI/KABAZI BLOCK 1/1 (GATONGU) to KABAZI/KABAZI BLOCK 1/887 (GATONGU) and subsequent issuance of title deeds.
d. LR 6208/5 (now known as KABAZI/KABAZI BLOCK 1/GATONGU) shall be resurveyed and titles be issued to genuine members only considering the current settlement.
e. The rocky/hilly area in LR 6208/5 (now known as KABAZI/KABAZI BLOCK 1/GATONGU) shall be surveyed, subdivided and titles be issued to the genuine members of the plaintiff.
f. Costs of this suit are awarded to the Plaintiff.
It is so ordered.