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JudgmentHANNAH WANJIRU VS JOHN EDWARD WAMUGUNDA MURIUKI AND CHIEF LAND REGISTRAR48 min read

HANNAH WANJIRU VS JOHN EDWARD WAMUGUNDA MURIUKI AND CHIEF LAND REGISTRAR

Environment and Land Court at Milimani Environment and Land Court · · L. Mbugua

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC CIVIL SUIT NO.69 OF 2020

HANNAH WANJIRU……………………………….…………….PLAINTIFF

VERSUS

JOHN EDWARD WAMUGUNDA MURIUKI….………1ST DEFENDANT

CHIEF LAND REGISTRAR………………….………….2ND DEFENDANT

JUDGEMENT

Background

  1. One parcel, two titles bearing same Land Reference No.14928 (the suit property) and two claimants form the gravamen of the dispute herein. The suit land measuring about 1 hectare (2.5 acres) is situated  in Karen in Nairobi County. 
  2. On one hand, there is the plaintiff’s title issued on 23.10.2019. She claims to have bought the suit land with her deceased husband Eliud Ngethe Njuguna  from one  George Allan Walter Robinson ( hereinafter Walter) and Irene Roseta in 1982, but the transfer was not effected, thus they (plaintiff and her husband) filed the suit Nairobi  O.S HCCCNO. 77 OF 1998 (hereinafter the O.S suit) in which their claim on adverse possession was allowed vide a judgment delivered on 26.10.1999. Thus the acquisition of their title was anchored on the decree of the court in the aforementioned suit. On the other hand, the 1st defendant contends that he purchased the suit land from  Walter in 1989, and he was registered as the owner of the said land on 2.11.1989.
  3. Each protagonist is claiming to be in possession of the suit land. 

The pleadings

  1. Vide a plaint dated 16.3.2020, the  plaintiff pleaded that through an agreement dated 26.3.1982, she and her husband, Eliud Ngethe (who died in year 2014) bought the suit land from Walter and Irene Roseta, of which they immediately took vacant possession. The vendors however reneged in their obligation to effect the transfer thereof, prompting her to file the  O.S suit claiming the suit land by way of adverse possession.
  2. She avers that judgment in the adverse possession case was delivered in her favour on 26.1.1999, and on 26.9.2008, the court issued a  vesting order, vesting the suit property to her. However she was denied the fruits of her judgment as the file at the ministry of lands disappeared.
  3. Upon establishing that records relating to the suit property had permanently disappeared, the Ministry of Lands and Physical Planning issued the plaintiff with a letter dated 31st May 2019 pursuant to the vesting order in Nairobi HCCC No. 77 of 1998 (O.S) and inter alia directed that:-

a) The plaintiff communicates her written acceptance of the decision contained in the letter dated 31st May 2019; and

b) The plaintiff remits payment of Kshs. 33,290 to the Government of the Republic of Kenya.

  1. That the plaintiff accepted the decision made in the letter of 31.5.2019 paving way for the issuance of a lease which was  lodged for registration on 27.6.2019, further leading to the issuance of her title on 23.10.2019. She later subdivided the suit land into 5 parcels namely; L.R Nos 14928/1-5.
  2. That after the purchase of the suit property in 1982, she took possession of the said land until 29.1.2020 when the 1st defendant trespassed on the same and erected a temporary iron sheet structure and a clothes line.
  3. The plaintiff prays for judgment in the following terms;

“ a) A declaration that the plaintiff is entitled to ownership and occupation of the suit properties known as Land Reference Numbers 14928/1, 14928/2, 14928/3, 14928/4 and 14928/5, all formerly known as LR No. 14928 situated in Nairobi City County to the exclusion of the defendants and all other persons.

b) A permanent injunction be issued restraining the defendants either by themselves, their agents or servants or otherwise howsoever from interfering with the plaintiff’s quiet and peaceful possession and occupation of the suit property known as Land Reference Numbers 14928/1, 14928/2, 14928/3, 14928/4 and 14928/5, all formerly known as LR No. 14928 situated in Nairobi City County.

c) A permanent injunction against the defendants prohibiting whether by themselves, their agents or servants from entering upon, remaining upon, transferring, occupying, leasing, charging, assigning or interfering with the plaintiff’s quiet possession of the suit property known as Land Reference Numbers 14928/1, 14928/2, 14928/3, 14928/4 and 14928/5, all formerly known as LR No. 14928 situated in Nairobi City County

d) A mandatory injunction compelling the defendants, their servants and/or their agents and any other person occupying the suit properties known as Land Reference Numbers 14928/1, 14928/2, 14928/3, 14928/4 and 14928/5, all formerly known as LR No. 14928 situated in Nairobi City County to vacate unconditionally and remove any materials deposited or erected thereon at their own cost.

e) In default of compliance with orders number (a), (b), (c) and (d) above, an order be and is hereby issued directing the Officer Commanding Station, Hardy Police Station or any other nearest station to enforce and ensure compliance.

f) A mandatory injunction compelling the 2nd defendant to annul or cancel any instrument purporting to confer interest in properties known as Land Reference Numbers 14928/1, 14928/2, 14928/3, 14928/4 and 14928/5, all formerly known as LR No. 14928 situated in Nairobi City County to the defendants herein.

g) Damages for trespass against the defendants.

h) Costs of the suit.”

  1. The 1st defendant filed a defence dated 10.6.2020. He however died soon thereafter and was substituted with his legal representative, the wife and current 1st defendant by consent on 4.2.2021. The 1st defendant later  filed an application dated 6.6.2022 seeking orders to file an amended defence and counterclaim, of which the application was allowed paving way for the filing of an amended defence and  counterclaim   dated 9.6.2022.
  2. She contends that the suit property was transferred to her husband on 2.11.1989 after purchase, and asserts that his title is indefeasible. She avers that the defendants cited in the O.S case no 77 of 1998 were not the registered owners of the suit land, that the judgment in the said case is questionable, and  that the decree thereof is stale in terms of the Limitation of Actions Act .
  3. She denies that the suit property was part of the estate in the succession case no. 1680 of 2014 in respect of the estate of Eliud Ngethe.
  4. The 1st defendant also contends that the plaintiff has never had possession of the suit land, adding that she fenced the land, put up a gate and erected a residential structure for her caretaker. She also planted kiapple hedge and gravellia trees which are now full grown.
  5. In her counterclaim, the 1st defendant seeks judgment in the following terms;

“a) A declaration that the plaintiff in the counterclaim validly purchased the suit property, being Land Reference Number 14998 from its registered owner, George Walter Allan Robinson.

b) A declaration that he plaintiff in the counterclaim is the legal and beneficial owner of the suit property, Land Reference No. 14928.

c) A declaration that he plaintiff’s (in main suit) Title to Land Reference No. 14928 is null and void.

d) As a consequence of granting prayer © above, an order directing the 2nd defendant, to cancel the certificate of title of Land Reference No. 14928 and expunge from the Land Registry records any documents in relation to Hannah Wanjiru.

e) A declaration that the process by which the plaintiff in the main suit, Hannah Wanjiru, obtained title to Land Parcel No. Land Reference No. 14928 was irregular, fraudulent and illegal.

f) Costs for the suit and the counterclaim be borne by the plaintiff in the main suit and the 1st and 2nd defendants in the counterclaim, jointly and severally”.

  1. The defence of the 2nd defendant is dated 7.7.2019 which contains a general denial of the plaintiffs claim. It is however noted that at the trial, the 2nd defendant closed ranks with the plaintiff in the main suit.
  2. Though the plaintiff filed a reply to defence dated 7.7.2020, I did not see any statement of defence from either the plaintiff or the 2nd defendant in respect of the counterclaim of the 1st defendant.
  3. One Stephen Mwari Karuga filed an application dated 9.6.2022 seeking orders to be joined as an interested party in this suit, of which the said application was allowed by consent on 19.7.2022. Thereafter, the advocate for the interested party informed the court that they would not be filing any pleadings or documents. 

The Evidence

Plaintiffs case

  1. The case of the plaintiff was advanced by three witnesses. PW1, HANNAH WANJIRU, the plaintiff adopted her witness statement dated 13.3.2020 as her evidence. She produced the documents in her bundle dated 4.2.2021 as exhibits in the following order; Items 1-12 as P-exhibits 1-12, items 23-34 as P-exhibits 23-34. Items 13 to 22 were then marked for identification. The contents of her witness statement mirrors the averments set out in the plaint.
  2. On cross-examination by counsel for the 1st defendant, Pw1 stated that the land they bought was identified as no 28 and she did not know that there was no L.R number. That it took her 17 years to file the case because the whiteman (vendor) did not transfer the land.  She did not know that he had relocated to Zimbabwe and she last saw the vendors in 1989 when they gave her a deed plan. She could not recall if they did a search before going to court and she has not seen any search for parcel 14928.
  3. Pw1 knows not about land rates and she had not seen the ones relating to the 1st defendant.
  4. She avers that her husband is Eliud Ngethe and the suit land formed part of his estate.
  5. She did not serve the 1st defendant because he was not on her land.  She contends that she works on the land where she planted trees after taking occupation in 1982. She had put a caretaker, but he was chased away and her gate was removed.
  6. Pw1 was not cross examined by the 2nd defendant.
  7. On re-examination, Pw1 reiterated that the portion of land they bought was no.28, a subdivision of  the large parcel 2244/2 belonging to the Robinsons which was over 20 acres. However, what they bought was 4 parcels of 2.5.acres each amounting to 10 acres. She was given the deed plans for the land in 1989 by Edward Robinson, a son of Irene. Adding that parcel 28 is the suit parcel 14928.
  8. She avers that she met Mr. Wamugunda at lands office where he was a Land Registrar and he had offered to assist her.
  9. PW2 is one PATRICK OPIYO ADERO a land surveyor. He produced the following documents in plaintiffs bundle as exhibits; At pages 39-54 is P-exhibit 13,  page 55 is P-exhibit 14,  page 56 is P- exhibit 15,  page 57 is P- exhibit 16, page  58  is P- exhibit 17, pages 59-62 is P-  exhibits 18, page 63 is P- exhibit 19, page 64 is P- exhibit 20, page 65  is P-exhibit 21, page 66 is P-exhibit 22.   ,
  10. He contends that pursuant to instructions given to him by the plaintiff, he carried out subdivision of the suit parcel L.R.14928 in year 2019 and he submitted the approved deed plans to the director survey.
  11. On cross examination by counsel for the 1st defendant, Pw2 stated that he got instructions in August 2019 and  was taken to the land in question at Siranga road by the plaintiff. He found that the land was fenced and had a gate and an iron sheet house. The documents he was given by the plaintiff were; an approval from the County Government as well as a court order, but not a vesting order. He did the survey on 13.9.2019.
  12. Pw2 could not recall if he saw the deed plans, and he didn’t do a search on the title. He could not have verified the search belonging to the 1st defendant as the same was not availed to him. He also did not see any subdivisions by the 1st defendant.
  13. In respect of the document at page 56 of plaintiffs bundle which is an approval to carry out the subdivision, he avers that clause 2 talked of surrender of the original title in exchange of a new one, and he doesn’t know if indeed there was surrender of that original title. For the document at page 57 of plaintiff’s bundle, he identified it as an approval by the County Government known as PPA2 relating to subdivision of L.R.14928 dated 10.4.2018 and was stamped by city council of Nairobi which was not there as at year 2018. He could see that the PPA document at page 41 of 1st defendant’s bundle was stamped by Nairobi City County as there was a county by then.
  14. For the document at page 58 of plaintiff’s bundle, the same was prepared by a physical planner whom he doesn’t know. For the documents at pages 59-62 in plaintiff’s bundle, he only got them from director of survey as copies
  15. In re-examination, Pw2 stated that the PPA2 dated 10.4.2018 at page 57 of plaintiff’s bundle was signed by Mutegi D as an assistant architect city planning department. He is aware that City Council of Nairobi stamps are still in use. He further stated that the letter dated 31.5.2019 relating to parcel 14928 had the wording at the foot of the document “ subdivision pursuant to a vesting order in civil case no. 77 of 1998”, thus that was the basis of giving the scheme plan.  
  16. Pw2 stated that his mandate ended at the stage where he gave the plaintiff her deed plans. He did not interact with the title of the 1st defendant.
  17. PW3 is one STEPHEN KIPKENDA, an advocate of the High court of Kenya. He adopted the contents in his witness statement dated 7.7.2020 as his evidence. He avers that he is the one who represented the plaintiff and her husband in the 1998 O.S. suit where the claim was on adverse possession in respect of the suit parcel. He avers that the title held by the plaintiff over the suit property is lawful and genuine.  It derives its validity from the agreement of sale dated 22nd March 1982, the power of attorney dated 18th November 1983 (pages 109-111) of the further bundle of documents), the judgment of V.V Patel J. dated 26th October 1999, the order issued by Osiemo J. on 20th February 2001, the vesting order dated 31st July 2008 and her possession of the suit property.
  18. On cross examination by counsel for the 1st defendant, Pw3 stated that he got instructions from the plaintiff and her husband Eliud to take over the case no.77 of 1998 from G. Kamonde, in which the subject matter was 5 acres out of parcel 2244/2 and that the  title was annexed to the pleadings. He also saw the title availed by the 2nd defendant as their document no.1 issued on 28.7.1924 consisting of 123 acres. He avers that entry no 13 thereof was a transfer of 28.5 acres to George Walter Allan Robinson and Irene Robinson as joint tenants. That what was transferred to them was stroke 2 and the doctrine of survivorship applied in the event of the demise of one of them. That parcel L.R.2244/2, was 28.5 acres and it is what was excised from parcel 2244. He added that as at the time of filing the OS, there was subdivision of stroke 2.
  19. He avers that at entries number 18, 19, 20 and 21 there were caveats by purchasers’ interests, but his client did not lodge any caveat as he lodged a better claim by filing a suit. He avers that entry no. 27 was the lodging of a certificate of death at lands office on 19.9.1989, whose effect was that the one owner remained as the only owner of the suit land. However, he only saw entries numbers 27 and 28 when the trial bundles were served on him.
  20. He avers that as at the time he got instructions from the plaintiffs, he didn’t do a search as the file was missing, but the claim was backed by an agreement and the land control consent. He tried to do a search in vain. He could however see the search of the 1st defendant indicating that the latter was the  registered as the owner of the suit land (14928) consisting of 2.5 acres in 1989 . If he had known that the title was in the name of another person, he could have acted differently.
  21. Pw3 did state that the O.S suit was filed 11 years after the title had been transferred to the 1st defendant. Adding that the parties therein were Eliud Ngethe and Hannah Wanjiru as plaintiffs, while defendants were Walter and Irene, thus the owner of the land was not a party. However, as per the records, George and Irene had a title. He also conceded that the suit was filed when the defendant had died 9 years earlier on. He was not aware that the living defendant in the O.S.suit had relocated to Zimbabwe.He confirms that the 1st defendant was not joined in the proceedings in the O.S. suit. 
  22. Pw3 further stated that plaintiff had deed plans for parcels 14928 and 14931, thus it was not necessary to do a search. That as at the time of filing the OS, what he saw were the original deed plans and not the title.
  23. That despite the decree, the transfer was not effected in favour of his client, thus he filed an application dated 19.2.2001 requesting the Deputy Registrar to sign the transfer. But again, the transfer was not effected. He denied the averment  that the transfer was not effected because the land was in the name of another person. The truth of the matter was that the records at the ministry of lands were missing.
  24. On re-examination, pw3 reiterated that he got instructions to act for the current plaintiff in the O.S suit where they were claiming 5 acres out of parcel 2244/2 by way of adverse possession, of which the suit land is one of the parcels claimed and the title was availed. He added that the plaintiff and her husband were in possession of the suit land by then.
  25. He avers that no search of 1989 was availed  by the 1st defendant, the one availed is dated 27.2.2020. He also contends that the search availed by the 1st defendant is system generated and is not certified. He avers that he learnt of the death of Irene when they were served with the bundle of the 1st defendant, adding that the death of Irene did not invalidate the title as the subject property survived the widower as the property was a joint ownership.

Case for the 1st defendant

  1. The case for the 1st defendant was advanced by 5 witnesses. DW1 GEORGE MURIGI MUHORO is an advocate of the High Court of Kenya. By consent, his evidence was taken on 22.9.2022 before the closure of plaintiff’s case due to his advanced age. He avers that he is the one who prepared the sale agreement in which the 1st defendant bought the suit land identified as parcel E consisting of 2.5 acres out of parcel 2244/2. That by then, a subdivision of the larger parcel was ongoing. He also prepared the transfer dated 2.11.1989 in favour of the purchaser who was Wamugunda and that the said transfer was duly registered.
  2. Dw1 also got instructions to do a search for the suit property. That the searches were certified by the Chief Land Registrar and are to be found at pages 38 and 40 of the 1st defendants’ bundle. The searches confirm that the 1st defendant was the owner of the suit land as at 2.11.1989.
  3. On cross examination by counsel for the plaintiff, Dw1 stated that the sale agreement at page 52 of the 1st defendant’s bundle is not dated. That as per the sale agreement, the person who signed for the seller was Edward Allan Robinson having a Power of Attorney from George Walter Robinson. He however could not tell if the said Power of Attorney had been filed by the 1st defendant in this matter.
  4. He averred that the transfer bears the date covering sheet like twenty something November 1989, but it is not wholly legible and November appears erased with no countersigning. He avers that the Grant no. on the transfer is 49158/1, while the one in the title at page 34-36 of the same bundle bears no.48158. He avers that the difference in the grant no differs because one was a subject of a subdivision, as the subdivisions gave rise to new numbers. 
  5. Dw1 could identify the entry no 28 in the 1st document of the 2nd defendant as a surrender dated 19.9.1989, and that the suit property was a subdivision of parcel 2244/2. But the entry no 13 of the same document would mean that the land had been excised before in the main title, and it is not clear as to what was being surrendered. He avers that the grant of title to the 1st defendant was signed on 18.9.1989, a day before the surrender.
  6. In re-examination, Dw1 reiterated that he prepared the sale agreement at page 52 of the 1st defendant’s bundle and it was executed. He avers that the 1.R.No indicated in the grant (page 32 of 1st defendants bundle) as 49158 at the top  was a typo error since in the body of the instrument, the correct title and acreage are captured. 
  7. DW2 is the 1st defendant, PAULINE MURIUKI who is the wife of John Muriuki, the original first defendant who died in July 2020. She adopted her husbands witness statement dated 10.6.2020  as well as her own witness statement dated 17.2.2021 as her evidence. She also produced the documents at pages 28-64 of her bundle as D- exhibits 1-15. She also produced further documents at pages 65-94 as D Exhibits 16-20.
  8. In the witness statement of the original 1st defendant dated 10.6.2020, a chronology of how the suit parcel came to be was given. That for parcel 2244/2, the subdivision survey into 10 subplots was approved by the Director of Survey on 3rd April 1989 as shown by the Survey Plan FR 192/184.  For the purpose of New Grants, the subplots were given numbers LR Nos. 14921 – 14932.  Thereafter George Walter Alan Robinson surrendered his 999 years title for LR No. 2244/2 and in exchange and pursuance of the surrender, he was issued with 10 New Grants for a term of Ninety nine (99) years.  The land was then bushy with old eucalyptus trees and thick undergrowth.  Upon taking possession of the land immediately after registration, he uprooted the eucalyptus trees and cleared the undergrowth in preparation for farming.
  9. That Muriuki fenced the land in 1990 and put up a drum mabati structure, a dog pen and a latrine, of which his caretaker, one Susan Njoki Kamenju has been living in that structure with her family. He later planted kiapple hedge and gravelia trees which are now mature. He also constructed a water pan and was farming on the land. He avers that he is the one who has been in continuous possession of the suit property and that the allegations of having evicted the plaintiff in year 2020 are not true.
  10. The contents of Dw2’s witness statement dated 17.2.2021 mirrors that of her late husband.
  11. On cross examination by counsel for the plaintiff, Dw2 stated that her late husband was a lawyer employed by the ministry of lands as a Land Registrar. She didn’t  know that  the sale agreement at page 52 of her bundle was not dated and that there is no signature on the part of the vendor , Edward Robinson. She was however not present during the transaction. She recollects that Edward was a son of George Walter, but she doesn’t know if he had a Power of Attorney. She avers that the date in the transfer was canceled, but she doesn’t know who did the cancellation and she cannot tell if the cancellation was from November to October. However, her husband was registered as the owner of the suit land on 2.11.1989.
  12. Dw2 also stated that the Grant at page 32 of her bundle bears I R. No. 49158 which is different from the one in the title. She is however aware that the suit parcel was a subdivision of a bigger parcel identified as 2244/2. That her agreement identifies the portion she was buying as “E”, and she didn’t know what the user was. But in the beginning, it was agricultural land, then it became a clinic and she had no evidence of change of user.
  13. Dw2 further stated that they could not have challenged the O.S judgment as they were not aware of its existence.
  14. She contends that on the property, there is a dog pen, toilet, and a structure for their worker which they constructed in year 1989. There is also a corrugated tank which they found on the suit property but there is no permanent house. She had been cultivating on that land planting vegetables like broccoli, maize beans and sunflower.
  15. On cross-examination by counsel for the 2nd defendant, Dw2 again reiterated that her husband was a Land Registrar and he bought the land to put up a clinic though the clinic was not established. She has never lived on that land, though she is a member of the resident association known as Siranga road Karen District Association. 
  16. On re-examination, Dw2 reiterated that on the suit land, they have a boundary fence, mature trees, hedge a permanent gate,  a drum mabati stracture for their caretaker, a dog pen and toilet, adding that they bought the land when there was a permanent tank.
  17. DW3 is one MICHAEL KIRAGU MUGAMBI. He adopted his witness statement dated 20.8.2022 as his evidence. He avers that he is a resident of Siranga road in Karen. He is aware that the 1st defendant visits the suit property on many occasions and that their caretaker lives on the said land.
  18. On cross-examination by counsel for the plaintiff, Dw3 stated that the suit property is next to their land whereby they share a fence.
  19. On cross examination by counsel for the 2nd defendant, Dw3 stated that they have a resident association for Siranga road and they have a whatsup group. He was in primary school when the 1st defendant came to the property in 1989.
  20. In reexamination, Dw3 stated that he is just a neighbor of the 1st defendant.
  21. DW4, one FREDRICK AKALO INDEKYO introduced himself as a land surveyor. That vide a letter dated 19.10.2021, he received instructions from the 1st defendant to carry out a survey of the suit parcel to establish if it had been subdivided. Thus he came up with the report dated 20.10.2021 at page 78 of the 1st defendant’s bundle. He was taken to the subject property by the 1st defendant of which the gate was opened by a care taker. He also checked the records including maps at survey of Kenya and at Ardhi house. His findings were that the suit land had not been subdivided.
  22. On cross examination by counsel the plaintiff, Dw4 stated that he never did a search on the suit land after 19.10.2021. He has no documents to show that he visited the ministry of lands or survey, adding that the documents he was looking for at survey were available through walking in and paying about Sh 500. Thus the map at page 85 attached to his report is available at survey of Kenya and it shows that there is no subdivision of the suit land. Similarly, on the ground, he only found the original beacons of the suit land. At page 11 of plaintiff’s bundle, he could see the deed plan for the suit parcel. As a surveyor, he has no mandate to authenticate a title.
  23. In reexamination, Dw4 reiterated that one does not need a letter to access survey plans, adding that at the bottom of the map at page 85, the approvals are indicated.
  24. DW5 is one SUSAN NJOKI KAMENJU. She adopted her witness statement dated 10.6.2020 as her evidence. She states that in year 2002 when she was working as a cook at comboni mission house, she was looking for accommodation, that is when she was introduced to the 1st defendant who in turn was looking for someone to stay on her land. The two met and she moved into the mabati structure with her four children. Her employees at Comboni mission did visit her on the suit property to see her baby and they took photographs in that occasion. She does not know the plaintiff.
  25. On cross-examination by counsel for the plaintiff, Dw5 reiterated that she has stayed on the suit property since year 2002 of which her last born child was born on the suit property. She is the one who was reporting to the police when thuggery occurred and she has an O.B to that effect.

Case for the 2nd defendant

  1. The case of the 2nd defendant was advanced by one witness namely EDWIN WAFULA, DW6. He introduced himself as a Principle Land Registrar based at Chuka. He adopted his witness statement dated 13.7.2020 as his evidence. He also produced the documents in their bundle dated 14.7.2020 as exhibits 1-14.
  2. He avers that vide a decree dated 28.10.1999, the ministry of lands received an order directing them to register parcels 14928 and 14931 into the joint names of the plaintiff and her husband. In the same parcel file, there was an order dated 21.2.2001 directing the Deputy Registrar to sign transfer forms in favour of the plaintiff in respect of the two parcels. And there was also a vesting order dated 26.9.2008 vesting the suit land into the name of the plaintiff in the O.S suit no 77 of 1998. That on 17.6.2019, the plaintiff was issued with as lease for the suit land.
  3. That upon examination of the documents of the 1st defendant, Dw6 found that there is on record an RTA title  in the name of George Walter Allan Robinson which land was transferred to John Wamugunda Muriuki through a Power of Attorney given to Edward Allan Robinson registered as IPA NO. 18057/1. He maintains that the plaintiff is the lawful owner of the suit property
  4. On cross-examination by counsel for the plaintiff, Dw6 stated that the records in custody of the 2nd defendant indicate that the suit land belongs to the plaintiff, and he has not been shown any records indicating that the 1st defendant owns the suit property, adding that the documents of the 1st defendant have not been certified. He avers that the alterations made in the transfer document of the 1st defendant ought to be countersigned.
  5. He avers that the transfer in favour of the 1st defendant was executed on the basis of a Power of Attorney, but he had not seen the said Power of Attorney.
  6. Dw6 further stated that an instrument of transfer is what leads to a grant of title in cases on purchase. He avers that the grant availed by the 1st defendant refers to two different titles.
  7. He also stated that page 1 of his bundle contains the original mother parcel IR NO. 888, of which entry no. 28 is the surrender in consideration of a new grant. That at page 34 -36 of 1st defendants bundle is a grant issued on 18.9.1989, a day before the surrender which is not the practice. He further avers that the use of the land was agriculture and not a clinic.
  8. He also avers that one cannot tell as to which Registrar issued the search availed by the 1st defendant as it was system generated. He knows of other searches where photocopies are certified by the Land Registrar. He further stated that the former CS (Karonei) had stopped issuance of online searches. He added that the search ought to be a replica of the interest registered. 
  9. He confirms that both the lease and the title to the plaintiff were issued by the 2nd defendant based on the vesting order.
  10. He stated avers that the approval of the subdivision scheme was issued based on the vesting order in the O.S ssuit and he confirms that the letter dated 31.5.2019 exists. He confirms that the suit parcel was subdivided giving rise to other parcels. On the other hand, the deed plan at page 80 of the 1st defendant cannot be verified.
  11. On cross-examination by counsel for the 1st defendant, Dw6 stated that he joined the ministry of Lands in year 2008, thus his evidence is based on the records he found at the ministry of lands. He is aware that the contested title is no.14928 and they have its records, but he has not indicated as to who is the registered owner of that title in his statement. He did see the documents of the 1st defendant and he has not challenged her title, nor did he challenge the transfer of the suit land to the 1st defendant and he did not allege fraud.
  12. He also stated that the title at page 36 of the 1st defendant’s bundle bears the date of 19.9.1989, thus on the face of it, it was signed by a Registrar, adding that Registrars had powers to sign such documents. Similarly, there is signature of Wilson Gachanja as the Commissioner of Lands  and he had mandate to sign titles. So the title was properly signed.
  13. Dw6 stated that he had limited information because what he recorded in his statement was in relation to information in the Power of Attorney Book and not the deed file. He did not see that deed file for IR 48158 upto the time he was testifying. He avers that a deed file contains all the transactions in relation to a parcel of land and also contains a copy of the title. But he has seen the deed file for the plaintiff. He avers that deed plans are prepared by director of survey, after they are signed, title is issued. For the deed plan availed by the 1st defendant, it was signed on 6.9.1989 and he has not challenged the same.
  14. He further stated that the mother title at page one of their bundle bears I.R.NO. 888 which is a leasehold where the lessor is the Government of Kenya. That after subdivision, the lessor doesn’t change, thus it would be fraudulent to state that the lessor is the County Government.
  15. He also confirms having seen the Power of Attorney Book where Edward Robinson was registered as having had a Power of Attorney.  He does not know if the counsel for the plaintiff had written to the Ministry of Lands to confirm the validity of the Power of Attorney, but he could see the letter at page 105 of plaintiff’s bundle where the counsel for the plaintiff transmitted a transfer and a Power of Attorney to the ministry  and a confirmation thereof was given vide their document at page 112.
  16. As for the transfer at page 32-33 of the 1st defendant’s bundle, Dw6 stated that on the face of it, it appears to have been registered with the ministry of lands, with the effect that the suit land passed on to John Wamugunda and bears the date of 2.11.1989. He avers that the documents at page 33 and 36 of 1st defendants bundle are signed by the same person. He contends that the grant to GeorgeWalter Robinson after subdivision was rightly done.
  17. In respect of the cancellation at page 31 of the 1st defendants bundle, Dw6 stated that such rectification do happen, but Registrar is the one with the discretion to accept a transfer, but the owner is requested to countersign.
  18. On the searches availed by the 1st defendant, Dw6 stated that they correspond with the title at page 34 thereof. Further, the application for a search at page 38 was lodged at the ministry of lands on 3.3.2020 and it was received. He confirmed that electronic searches are allowed under the Land Registration Act Regulations no. 86, adding that the applicable law before the Land Registration Act came to be was Cap 300. Thus electronic searches are permissible.
  19. On the decree dated 28.10.1999, Dw6 does not know if it was authenticated by the ministry of lands, he does not know when it came to the ministry of lands, but he certified the same in June 2020. He avers that the ministry acted upon the title on 15.3.2002, that is when the order was stamped. However, the orders at pages 11 and 12 were acted upon in year 2019. Thus the decree of 1999 was effected in year 2019. He doesn’t know why it took that long to effect the decree. He avers that whenever the ministry of lands is served with a court order, the same is supposed to be registered on the title.
  20. On the vesting order dated 31.7.2008, Dw6 stated that it does not indicate if the same was served upon the ministry. He has no search to show who the owner of the suit land was as at that time.
  21. On the succession matter relating to the estate of Eliud Ngethe, Dw6 stated that the confirmation of the grant was on September 2016. He is aware that in estate matters, only estate properties are distributed.
  22. On the lease at page 17 of the 2nd defendants bundle, the same was prepared in favour of the plaintiff by the ministry of lands, and it was the basis for the issuance of the title in her favour. The lease was issued on 17.6.2019 pursuant to a new grant and that a subdivision cannot be issued pursuant to a new grant. On the lease, the lessor is the County Government which is not correct.
  23. On the issue of use of the land, Dw6 stated that wrong user does not invalidate the title.
  24. Dw6 averred that the sale agreement of the plaintiff was done pursuant to a Power of Attorney.
  25. On reexamination, Dw6 stated that the order of 21.2.2001 was certified by the court on 29.4.2014. Similarly, the vesting order of 31.7.2008 was certified by the court on 26.9.2008.The ministry has no role in the issuance of grants in respect of estates. He avers that though the lease was issued by the County Government, it reads “Republic of Kenya…”. And at page 24, the certificate of lease is issued by the ministry to the plaintiff. He reiterates that the action by the ministry was based on the vesting court order.
  26. On the deed file, he does not know if there was an attempt to reconstruct the same. He contends that the application for the search could not have led to the generation of the searches availed by the 1st defendant.

Submissions

  1. The submissions of the plaintiff were filed on 21.5.2025.It is argued that the germane of the dispute is ; who as between the plaintiff and the 1st defendant has demonstrated that they purchased the suit parcel from George Walter Allan Robinson and Irene Roseta Isobel Robinson and who between the two is the validly registered owner of the suit property.
  2. It was submitted that the plaintiff had proved that they bought the suit land in 1982, where by Edward Robinson had a Power of Attorney and by then, the suit parcel was a portion of parcel 2244/2. That when the vendors failed to transfer the suit property, the plaintiff filed the O.S. suit in which judgment was delivered in her favor. Thus the registration of the plaintiff as the owner of the suit property is valid as it was done on the basis of a court order.  On this point, reference was made to the cases of James Maina Kinya vs Gerald Michael Kwendeka (2018) Eklr and Chief Land Registrar & 4 Others vs. Nathan TiropKoech & Others ( 2018)Eklr.
  3. On the issue of time bar, it was argued that the execution process commenced within 12 years of the delivery of the judgment, in that by 20.2.2001, the plaintiff had obtained an order for the Deputy Registrar to sign transfer forms, which order was presented at the ministry of lands . Then a vesting order was issued on 31.7.2008. And having lost the original deed plan, plaintiff applied and got a new one no. 140621.
  4. Thus the issuance of the subdivision scheme plan approval via letter of 31.5.2019 and the registration of the plaintiff as the owner of the suit land on 27.6.2019 was a product of repeated attempts at executing the decree in the O.S suit within 12 years. To this end, the case of Godfrey Okumu vs. Nicholas Odera Opiya (2017) Eklr amongst other cases was cited.
  5. On the validity of the title of the 1st defendant, it was argued that the grant No. 48158 was issued on 18.9.1989, a day before the surrender depicted at entry no.28 in the title. Thus the court has been urged to find that the said grant is a questionable document. What more, the said grant was registered on the basis of a deed plan which was neither verified or authenticated.
  6. It was also argued that the 1st defendant did not demonstrate that Edward Robinson had a Power of Attorney to effect transfer of the suit land, adding that the sale agreement itself was undated.
  7. It was also submitted that the 1st defendant had admitted that the property transmitted to her was a different one from the suit property. Further, the date of the transfer was altered from October to read 2.11.1989 without any counter-singing. Thus the transfer instrument is questionable. To this end, the cases of William Kabogo Gitau vs Gearge Thuo & 2 Others  (2010) Eklr and  Swisscom Logistics vs Paul Nakachi Frene ( 2019) eKLR were cited amongst other decisions.
  8. It is also submitted that the proceedings in the O.S suit are not null and void as they were filed against two defendants who had jointly owned the land, and therefore the doctrine of survivorship applied when one of the owners died.   
  9. Finally, it was submitted that the plaintiff has since subdivided the suit land to give rise to 5 portions and that the evidence of Dw4 did not in any way rebut the aforementioned averments.
  10. The submissions of the 1st defendant are dated 24.4.2025 where they frame  issues for determination as follows; Whether the plaintiff’s suit against the defendant is statute barred, whether the plaintiff has proved fraud against the 1st defendant, what is the plaintiff’s cause of action and whether her claim has been proved against the 1st defendant, which title has preference as between the title held by John  Wamugunda  and the plaintiff, whether the 1st defendant has proved the claim as pleaded in the Counter claim and what orders should issue.
  11. It is submitted that in the O.S suit, the 1st defendant was neither joined in those proceedings nor served. Further, no attempt was made to confirm the registered owners of the suit property.
  12. It is also submitted that  the  claim of the plaintiff is time barred in terms of the provisions of  Section 4 of the Limitation of Actions Act which stipulates that an action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered.  And in the case at hand, the judgment which the plaintiff seeks to enforce dates 21 years back before the filing of the current suit. To this end, the cases of Assia Pharmaceuticals Limited vs. Kenya Alliance Insurance Co. Limited ( Civil case 1605 of 1999) ( 2021)KEHC 19 ( KLR) and M’Ikiara M’Rinkanya & Another v Gilbert Kabeere M’Mbijiwe amongst other cases were cited.
  13. It is submitted that no fraud was pleaded by the plaintiff and none  has been proved as against the 1st defendant in acquisition of her title , adding that the the standard of proof is higher than that of a balance of probabilities as set out in the case of Marteve Guest House Limited v. Njenga & 3 Others ( 2022) KECA (539 (KLR).
  14. It is submitted that the 1st defendant has had her title for a period of 30 years, and under the Registration of Titles Act the same is absolute and indefeasible as it is protected under Section 23 of the aforementioned statute. To this end, the case of Dr. Joseph Arap Ngok v. Justice Moijo Ole Keiwa Civil Application no.60 of 1997 was cited amongst other cases.
  15. The 1st defendant has also submitted that the lease issued to the plaintiff was from the County Government, yet the second defendant had admitted that the lessor in the mother title was the Government of Kenya. Adding that the 2nd defendant had also admitted that a subdivision as was the case in this matter could not be issued pursuant to a new grant.
  16. The submissions of the 2nd defendant were not accessible in the digital portal.

DETERMINATION

  1. As stated at the introductory part of this judgment, there are two competing claims advanced by the plaintiff on one hand and by the 1st defendant on the other hand in respect of the suit property LR NO 14928 situated in Karen Nairobi County. The plaintiff traces the root of her title to the 1982 sale agreement between herself and her deceased husband Eliud Ngethe as purchasers and George Walter Allan Robinson and Irene Roseta Isobel Robinson as the vendors. The said agreement is to be found at page 71 of the plaintiff’s bundle. That the transfer was not effected which prompted the plaintiff and her husband to file the O.S suit claiming the suit land through adverse possession. The plaintiff avers that judgment was given in their favour leading to the Vesting order of year 2008 which eventually lead to the issuance of a title in her favour.
  2. The 1st defendant similarly claims that her deceased husband bought the suit land from George Walter Allan Robinson vide the sale agreement with a completion date of 19.4.1989 at page 52 of the 1st defendant’s bundle. He was then registered as the owner of the suit land on 2.11.1989.
  3. I find that the issues falling for determination are 1) whether the claim of the plaintiff is time barred, who as between the plaintiff and the 1st defendant is the legitimate owner of the suit land L.R 14928 and what reliefs are available in the circumstances.  
  4. On limitation, the 1st defendant pleaded at paragraph 8 of her defence that the claim of the plaintiff relating to the Judgment in the O.S suit and all its consequential orders are time barred by virtue of Section 4 (4) of the Limitation of Actions Act. True, the decree in the O.S suit was given way back on 28.10.2000. However, the prayers sought in the plaint do not seek to enforce the aforementioned decree. The enforcement of the judgment did take place upon the issuance of the title to the plaintiff in year 2019.  In that regard, the question as to whether the decree is stale or not is neither here nor there. The question which the court will deal with relates to the nature or bundle of rights acquired  by the plaintiff out of the aforementioned decree.
  5. I now come to the issue of the validity of the two competing claims by the two protagonists.  There appears to be no controversy that the suit land was birthed from parcel 2244/2 which was owned by Walter and Irene, going by the two agreements availed before this court, the one for the plaintiff and the one for the 1st defendant. Further, the historical registration  records availed by the 2nd defendant at page 8 of their bundle at entry no 13 confirm that indeed Walter and Irene were the registered owners of parcel 2244/2.
  6. It is trite law that each party bears the burden of proofing their claim in tandem with the provisions of Section 107 of the Evidence Act  which stipulates that:

“ (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”

  1. In Samson S. Maitai & another V. African Safari Club Limited & Another [2010] eKLR, the court stated that;

“Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well  know, the burden of proof lies on the party who asserts the truth of the issue in dispute.”

Also see Kipkebe Limited v Peterson Ondieki Tai [2016]

eKLR, Jennifer Nyambura Kamau v Humphrey Mbaka Nandi

[2013] eKLR, Ngungu v China Road Brdge Corporation (K) & another (Environment & Land Case 378 of 2017) [2022] KEELC 15299 (KLR) (24 November 2022) (Judgment) Neutral citation: [2022] KEELC 15299 (KLR).

  1. Each of the protagonist is waving a title to buttress their respective claim, but waving a title is not enough when a title is under challenge.  In Munyu Maina Va. Hiram Githiha Maina (2013) eKLR, it was held that;

“When a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal”.

  1. Thus be it a court sanctioned acquisition of title process as claimed by the plaintiff, or the assertion of indefeasibility of title by the 1st defendant, the court has to interrogate the validity of the competing claims based on the pleadings and the evidence adduced by the respective parties. 
  2. For the plaintiff, she has the judgment in the O.S suit to buttress the validity of her title. This court has no appellate attires over the aforementioned judgment, but like Murphy’s law where “anything that can go wrong will go wrong anyway”, there appears to be nothing right about the O.S suit.
  3. The crux of the matter is; What is the nature and extent of rights and interests in the suit parcel that were acquired by the plaintiffs out of the judgment in the OS suit?  A perusal of the sale agreement of 1982  reveals that the plaintiffs  were buying a portion of parcel 2244/2. But in the O.S at paragraph (a), the plaintiffs were making their claims in respect of the “ subdivisional portions numbers L.R.14928 and 14931 out of L.R 2244/2”.  Further, Pw3 stated that as at the time the O.S. suit was filed, the stroke 2 parcel (read 2244/2) had been subdivided. This can only mean one thing, that the plaintiffs were aware that parcel 2244/2 did not exist as at the time the O.S. suit was filed.
  4. It is noted that the plaintiffs already had the mother title, the one at page 77 of their bundle though it has several missing entries, particularly the relevant ones at entry 13 and 28. However, the 2nd defendant has availed a copy thereof which runs upto entry no 28 which reads “Surrender to the Government of the Republic of Kenya in consideration of New Grants in respect of subdivision”.
  5. There is no evidence to indicate that the plaintiffs verified the identity of the owners of the resultant subdivisions when they filed the O.S suit in 1998, 9 years after the endorsement of subdivision of the title 2244/2. Put it differently, the averments by the plaintiff that the registered owners of parcel 2244/2 were Walter and Irene as at the time the O.S suit was filed are hollow, as there is nothing to indicate that the said parcel was in existence by then.   
  6. To this end, no search on the suit property was ever done or availed by the plaintiffs at any given time, (before the OS suit was filed, during the court proceedings or thereafter). An assertion has been made by the plaintiff’s witness no 3 that they could not do a search because the Land file was missing. However, there is not the slightest evidence of communication by the plaintiff to the Ministry of Lands through the decades inquiring about the missing file or demonstrating the attempts made to do the search.
  7. As it were, the suit land was registered in the name of the 1st defendant by the time the O.S suit was filed. Thus the import of the judgment dated 26.10.1999 in the O.S suit is that it was a paper judgment, incapable of being enforced as Walter and Irene had no ascertainable rights and interests in the suit property capable of being transmitted to the plaintiffs. It also follows that the subsequent decree, the order of 21.2.2001 for the Deputy Registrar to sign transfer forms as well as the vesting order of 31.7.2008 were similarly paper orders as there was no interest therein flowing from Walter to the plaintiff.  The subsequent lease and title issued to the plaintiff on 17.6. 2019 and 23.10.2019 respectively as well as the subdivision of the suit land are therefore unlawful and cannot be protected under Article 40 of the Constitution.
  8. At paragraph 10 of the plaint, it is pleaded that the letter of 31.5.2019 was issued “upon the ministry establishing that the records relating to the suit property had permanently disappeared”. That appears to have formed the basis of the issuance of the lease to the plaintiff.  As stated earlier, such communication of the disappearance of the file has not been availed and has not been captured in the said letter. The said letter (which is to be found at page 31 of plaintiffs bundle and at page 45 of the 2nd defendants bundle) reads as follows;

“HANNAH WANJIRU KAMAU

P O Box 11807 – 00100

NAIROBI

SUBDIVISION SCHEME APPROVAL

L.R. NO. 14928

Further to the Government approval of subdivision scheme relating to L.R. NO. 2244/2, I am pleased to inform you that the issue of lease for the above plot (which is a resultant subplot) will be undertaken as soon as I receive your formal written acceptance of the special conditions attached and payment of the charges prescribed hereunder and subject to surrender of original title.

PLOT DETAILS

Area: 1.00 Ha (approx.)

Term 999 years from 1.7.1919

Annual Rent: 56,000/- W.EF. 1.5.2019”

  1. At the bottom of the letter, it is stated that “This is as a result of subdivision pursuant to  vesting order   Civil case no 77 of 1998” (OS) Nairobi.
  2. Firstly, the subdivision of parcel 2244/2 was not done via a court order. Secondly, the vesting order had not been registered in any title so as to divest the interests in that land from the registered owner to a new owner. In Gecy Systems Limited v Tom Odago Opiyo & 4 others [2014] KEELC 647 (KLR), the court ordered “ That the Registrar of Titles be and is hereby ordered to lift, remove and/or discharge the vesting order” upon making a finding that no vesting order was registered against the title to the suit property.
  3. Similarly in Dandora Housing Schemes Limited vs City Council Of Nairobi [1998] KEHC 206 (KLR), the court stated that;

“ Having obtained a vesting order in HCCC No.1348 of 1972 there is no evidence that that vesting order or a transfer giving effect to the vesting order was registered under the Regulation of Titles Act…”

  1. Thirdly, the lease issued to the plaintiff dated 17.6.2019 states that “Parcel 14928, The County Government of Nairobi in pursuance of a New Grant hereby leases to Hannah Wanjiru…”
  2. The lease does not make reference to the letter of 31.5.2019, nor does it refer to a vesting order. Further, the lease emanates from the County Government of Nairobi, yet this was private land alienated as such as far back as year 1924!. Pw2 stated as follows on the lease “it is an allocation by former Commissioner of Lands. I can’t see an enforcement of a court order’. Similarly, Pw3 had stated as follows in relation to the lease” It is a grant. It is not indicated if it is pursuant to a court order or transmission. Pursuant to a new grant means it is directly from the government…”
  3. This far, it is apparent that the lease didn’t confer any proprietary rights and interests in the suit property in favour of the plaintiff as the land was not available for allocation by the government since it was private land. Dw6, the land Registrar termed such a lease, the one from the County Government as incorrect and a fraud. Thus again the subsequent title rests on quicksand.
  4. In  Philan Holdings Limited v Mabea & 3 others (Environment & Land Case 443 of 2008) [2023] KEELC 20416 (KLR) (28 September 2023) (Judgment) Neutral citation: [2023] KEELC 20416 (KLR), the court stated as follows;

“Having considered how the root of the parties’ title came about and the events leading to the issuance of Title to the 3rd Defendant, this Court associates itself with the Court of Appeal in Wambui v Mwangi & 3 others [2021] KECA 144 (KLR) where it held: “…Our take on the same is that the jurisprudential thread running through all of them is that no court of law should sanction and pass as valid any title to property founded on: fraud; deceitfulness; a contrived decree; illegality; nullity; irregularity, unprocedurality or otherwise a product of a corrupt scheme…”

  1. Similarly in the current case, the title issued to the plaintiff on 23.10.2019 is fraught with all manner of illegalities and irregularities and is therefore unlawful.
  2. On the subdivisions of the suit land into 5 portions, the entire process is null and void in view of the finding that the title issued on 23.10.2019 to the plaintiff was unlawful. It is not lost to this court that the plaintiff was undertaking the process of subdivision of the suit land long before the acquisition of the title as seen in her documents running from pages 39 to 66 of her bundle.  Of great concern is the Notification of approval of development permission on subdivision given to the plaintiff to be found at page 57 of plaintiffs bundle. The permission to subdivide the land was being given way back on 10.4.2018 referring to what had been submitted on 10.3.2018! This process was being undertaken long before the letter of 31.5.2019, the one the plaintiff relies upon to assert her claim that all records of the file had been confirmed as missing. The bottom line is that the purported subdivisions of parcel 14928 giving rise to 5 parcels amounts to an unlawful process.  
  3. As for claim of the  1st defendant, the transfer at page 33 of his bundle indicates that he was registered as the owner of the suit land on 2.11.1989. The plaintiff and the 2nd defendant have questioned this registration on the basis that the sale agreement was not signed, that the issuance of a title came on 18.9.1989 before the surrender on 19.9.1989, there was no Power of Attorney availed to support the sale, the grant bore a different number from the title, that there was a wrong user and that the searches availed by the 1st defendant are wanting.
  4. It is trite law that issues for determination flow from the pleadings as was stated in Gandy v. Caspair [1956] EACA 139 that;

“Unless the pleadings are amended, parties must be confined to their pleadings. Otherwise, to decide against a party on matters which do not come within the issues arising from the dispute as pleaded clearly amounts to an error on the face of the record….”

  1. A perusal of the pleadings of the plaintiff reveals that the claim made against the 1st defendant relates to trespass at paragraph 14 thereof, then there is a prayer for the 2nd defendant to annul any instrument purporting to confer interest in the suit parcel or its resultant subdivisions to the defendants.  As for the 2nd defendant nothing at all has been pleaded in reference to the title of the 1st defendant.
  2. This far, I am in agreement with the submissions of the 1st defendant in which the case  of  Kioko v Sigei & 4 others (Constitutional Petition E387 of 2020) [2023] KEHC 1088 (KLR) (Constitutional and Human Rights) (23 February 2023) (Judgment) Neutral citation: [2023] KEHC 1088 (KLR) was cited where it was stated that;

“  …..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation”.

  1. In the circumstances, the court cannot embark on interrogating the manner in which the transactions between the vendor and the purchaser were conducted in relation to the acquisition of the title of the 1st defendant. Needless to state that the 1st defendant has availed a search depicting her as the registered owner of the suit land since 2.11.1989. The advocate who represented the parties in the transaction has also given his testimony as Dw1 contending that their documents were duly lodged at the lands office. 
  2. A perusal of the registration records in the Mother title  availed by the plaintiff and the  2nd defendant, reveals that the suit property was registered way back in 1924 in a regime identified as “ Register of Titles” whereby each registration record is captured as an entry. At entry no. 13 is the registration of parcel 2244/2 in favour of Walter and Irene. That title was surrendered at entry no.28 to pave way for the subdivisions.  The title availed by the 1st defendant for the suit parcel falls under the Repealed Registration of Titles Act (RTA).
  3. The question begging for an answer is, at what point in time did the records at the Ministry of Lands disappear where the mother title was retained. Put it differently, what records were missing at the Ministry of Lands? 
  4. It is rather perplexing, and unfortunate that the Land Registrar (DW6) who was  entrusted to shed light on the matter as he was representing the custodian of registration records was most unhelpful. He informed the court that a deed file is the one which contains all transactions relating to a parcel of land. However, he never saw the deed file for I.R.NO. 48158 (the one for the suit parcel). Nevertheless, he confirms that plaintiff is the owner of the suit land. Having presented the mother title (at least upto the records of 19.9.1989 at entry no.28), and having stated that the lands ministry has records of the plaintiff and not the 1st defendant, is this then a case of selective reconstruction of their parcel file?. 
  5. Further, Dw6 cast aspersions on the system generated search availed by the 1st defendant, but he availed none himself, though he admitted that such searches are anchored under the law (Regulations under the Land Registration Act). He also mentioned that previously, the searches were being done under Cap 300, yet the registration regime governing the titles in question before the coming into force of the Land Registration Act was the Registration of Titles Act Cap 281. 
  6. The logical conclusion to make is that the evidence of Dw6 cannot confirm what is missing and what is available in their records as it is tainted with discrepancies.  
  7. This far, I find that no sufficient material has been placed before this court to impeach the title held by the 1st defendant, noting that she has also been the rate payer of the suit property.
  8. On the issue of trespass raised by the plaintiff in her pleadings, this court has already pronounced that the plaintiff has not rights and interests over the suit property, thus the question of trespass does not arise. It is however pertinent to note that the plaintiff has not given a credible account of her possession of the suit land (the nature and extent of occupation). In her evidence (witness statement), she simply stated that she took possession of the suit property. Her witness, pw2 stated that he went to the suit land in August 2019 where he found an iron gate house and the place was fenced. This is consistent with the photographs availed by the 1st defendant.
  9. The 1st defendant has on the other hand  given details of their possession of the land, that though there was no permanent house, they had put up a  drum mabati structure which is   occupied by their caretaker. There is also a toilet, dog pen, gate, fence and they had found a tank on the land. This evidence was corroborated by the caretaker, Susan (Dw5). Thus I find that the 1st defendant is the one in possession of the suit land.
  10. In the end, I find that the plaintiff has not proved her case on a balance of probabilities and the said claim must fail, while the claim of the 1st defendant has been proved to the required standard on a balance of probabilities. I therefore proceed to give judgment in the following terms;

1. The plaintiff’s suit is hereby dismissed with costs to the 1st defendant.

2. The Counterclaim of the 1st defendant is hereby allowed in the following terms;

(a) It is hereby declared that the 1St defendant (read the ESTATE OF JOHN WAMUGUNDA MURIUKI) is the legal owner of parcel L.R.14928,

(b)The title issued to the plaintiff  HANNAH WANJIRU, the same being  L.R NO 14928 and any other subsequent titles or Land Reference numbers 14928/1-5 are hereby cancelled. 

3. Each party shall bear their costs of the suit.

DATED, SIGNED AND DELIVERED AT NANYUKI THIS 16TH DAY OF JULY 2025 THROUGH MICROSOFT TEAMS.

LUCY N. MBUGUA

JUDGE

In the presence of:-

Ndegwa holding brief for Rapando for plaintiff

Opole holding brief for Munge for 1st defendant

Motari for 2nd defendant

Macharia for Interested party

Nancy Mwangi – Court Assistant

Details

Delivered
Court rank
Environment and Land Court
Station
Milimani Environment and Land Court (Environment and Land Court at Milimani Environment and Land Court)
Division
ELC Land
Case type
Civil Suit
Judge
L. Mbugua

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