JOAN WANGARI KARIUKI(Suing as the administrator of the Estate of Samuel Kariuki Waithiani-Deceased) VS Office of the attorney General AND BEATRICE IGOKI GICHONI AND 1 Others

I.   Preliminaries

1.   The Judgment of this Honourable Court pertains to the civil suit instituted through the Amended Plaint dated 2nd March, 2021 by Joan Wangari Kariuki (Suing as the Administrator of the estate of SAMUEL KARIUKI WAITHANI (Deceased), the Plaintiff herein against Beatrice Igoki Gichoi, David Wathiani Kariuki, The National Land Commission and The Attorney General the 1st,2nd, 3rd & 4th Defendants herein. The said suit was filed at MOMBASA HIGH COURT CIVIL SUIT NO. 106 OF 2005 prior to the establishment of this Court herein. Subsequently, among other files, it was transferred to be adjudicated under this Court.

2.   Upon service of the pleading and Summons to Enter Appearance, the 1st Defendant filed her Statement of Defence on 27th July, 2005 whilst the 3rd and 4th Defendant filed their Statement of Defence on 11th August, 2011 respectively.

II.   Description of the Parties in the suit

3.   The Plaintiff was described as an adult female of sound mind and understanding who resided and worked for gain in Nairobi within the Republic of Kenya.

4.   The 1st Defendant was an adult female of sound mind and understanding who resided and worked for gain at Kilifi. The 3rd Defendant was described as a  civil servant in the Government of the Republic of Kenya and was sued pursuant to the provision of section 5 of the Government Lands Act, Chapter 280, Laws of Kenya. The National Land Commission of the Republic of Kenya was an independent Government Commission established by the Constitution of Kenya, 2010 to, among other things, manage public land on behalf of the National and County Governments.

5.   The 4th Defendant was described as the Honourable Attorney General and hence the Legal Advisor of the Republic of Kenya and was sued pursuant to the Government Proceedings Act (Chapter 40, Laws of Kenya), representing the Commissioner of Lands/National Land Commission, the 3rd Defendant herein.

III.   Court directions before the hearing

6.   Nonetheless, on 6th December, 2023, the Honourable Court fixed the hearing dated on 22nd March, 2023 and again on 7th April, 2025  with the parties having fully complied on the Provisions of Order 11 of the Civil Procedure Rules 2010 and the matter proceeded for hearing on 22nd March, 2023 and 7th April, 2025  by way of adducing of “viva voce” evidence with the Plaintiff’s witnesses testifying in Court whereby they closed their case and the Defendants’ called her witnesses on 7th April, 2025 and closed their case thereafter.

IV.   The Plaintiff’s case

7.   From the filed pleadings, at all material times to this suit, it was averred that the Plaintiff and her deceased husband were the owners of all that parcel of land known as Land Reference Numbers Kwale/Gandini/32 comprising 48.13 hectares (Hereinafter referred to as “The Suit Land”), which they had purchased from one Mwanjereko in or around the year 1977. The land had been registered in the name of Samuel Kariuki Waithiani (Hereinafter referred to as “The Deceased”) in trust for himself and the Plaintiff. In or about September 2004, the Plaintiff carried out a personal search of the property as she intended to apply for Grant Letters of Administration of her deceased husband’s estate. She then learned that the title for the land had been altered to reflect the 1st Defendant and her boy child, one David Kariuki Waithiani, in place of Samuel Kariuki Waithiani, who had been the registered owner.

8.   The Plaintiff posted that the land had always been in her husband’s name and could not have been transferred, as her husband had died on 13th October 1997, yet the title appeared to have been issued in April 1999. The Plaintiff further averred that she had lodged a caution on 26th January 1989 in apprehension of a fraudulent transfer. The same did not reflect on the title, and she had never been notified of the Registrar’s intention to remove it.

9.   The Plaintiff further averred that the suit land, whose title reflected the names of the 1st Defendant and her boy child, was defective ab initio and therefore null and void, as it had been obtained fraudulently by the 1st Defendant with the 2nd Defendant. 

10.   The Plaintiff relied on the following particulars of fraud: -

a.   The Commissioner of Lands/National Land Commission, being the custodian of records concerning land in Kenya in trust for and on behalf of the Government of Kenya, had known and ought to have known that there was a caution lodged earlier before the registration of the 1st Defendant and her boy child, without first notifying the Plaintiff of his intention to remove it and effect the transfer.

b.   The 2nd  Defendant’s records never reflected who had signed the transfer documents, if any, to effect the transfer. In any case, the Plaintiff, being the administrator of the estate of the deceased, who had formerly been the registered owner, ought to have signed any consent in relation thereto.

c.   The 1st Defendant had fraudulently represented and transacted with the National Land Commission and/or his servants or agents in unlawfully acquiring a title belonging to the family suit land two years after the death of the registered owner.

d.   The 1st Defendant, other than her name appearing in the title, could not prove that she had ever bought the land from the deceased. The impression created by the registration was that she might have inherited the land from him, hence co-registering the son who had taken the deceased’s last two names. The 1st Defendant, however, could not prove that she had ever been a co-wife of the Plaintiff.

e.   The 1st Defendant and the 2nd Defendant could only colluded to effect the fraudulent transfer.

f.   The National Land Commission, being the custodian of Government land documents, had allowed the illegal transaction.

11.   Pursuant to the said illegal transfer the Plaintiff lodged a caution over the land which was registered on 22nd September 2004 as the 1st Defendant already assumed the suit land was hers. Despite Demand made by the Plaintiff to have the caution retained the 2nd Defendant had persistently intended to remove it by sending the Plaintiff a notification letter of his intention to do so. The cause of action arose within the jurisdiction of this Honourable Court. 

12.   The Plaintiffs prayed for Judgment to be entered against the 1st, 2nd, 3rd & 4th Defendants jointly and severally for:-

a)   An injunction restraining the 1st Defendant from alienating, trespassing, selling, disposing or in any other way charging, mortgaging, developing on or trespassing or in any manner dealing with land comprised in the title Kwale/Gandini/32.

b)   A declaration that the suit land having been bought by the Plaintiff plus her deceased husband was registered in his name in trust for himself and herself in equal shares and there be declared a resulting trust in favour of the Plaintiff being the sole administrator of the estate of the deceased.

c)   An order directed to the 2nd Defendant to cancel the title in the 1st Defendant's name over Kwale/Gandini/32 and issue a new title in the Plaintiff's name.

d)   Damages.

e)   Costs and other incidentals.

f)   Such other relief or further relief or order which this Honourable Court may deem fit to grant.

13.   The Plaintiff called their witness being PW - 1 who testified on 22nd March, 2023 at 2.42 pm and again on 7th April, 2025 at 11.30 am where she averred that: -

A.   Examination in Chief of PW - 1 by Mr. Nyangoro Advocate.

14.   PW - 1 testified in Swahili and under oath. She identified herself as being JOAN WANGARI KARIUKI a citizen of Kenya with all the particulars appearing in her national identity card shown to court during the hearing session. She resided in Nairobi. The case was about her property. Samuel Kariuki Waithiani was her husband but was since deceased. She had a copy of the Certificate of the death. They bought the suit property with her husband. She went and picked the title after her husband’s death but she was informed that another person had the title. She did a search and found that the 1st Defendant was the one indicated as the registered proprietor to the suit property. The 1st Defendant was not known to her only after the search did she came to know her. She had a son called Daniel, the 2nd Defendant but they were both registered under the title. She decided to file this suit upon this discovery and she also went to Kwale land registry and they refused to give her the title. She placed a caveat before she filed the suit. She recorded a statement with the Lawyer’s office. She wished to use the statement in this court as her evidence. She also gave documents to her advocate dated 12th September, 2014. She produced the said documents as Plaintiff Exhibit Numbers 1 to 10. According to her the ministry took time until it lapsed; the lawyer wanted to protest but she preferred the court case instead. She prayed for her land back so that she could give it to her children before she died so that they too could enjoy their father’s property. She wanted the title back in her name and the expenses she utilized in pursuit of her title

B.   Cross examination of PW - 1 by Ms. Ambetsa Advocate.

15.   PW - 1 confirmed that they bought the land in the year 1977 from Mwajereko. They had no sale agreement. They were paying the purchase price in installments. They used to give him monies in bits. He was quite old. His elder son was there but she did not have him in court as a witness. Before they bought the land they did their due diligence through the elders and neighbours who confirmed that the suit land belonged to Mwajereko. She did not go to Kwale to get the search to confirm the ownership of the land.

16.   PW - 1 reiterated that in page 5 of the statement (read out loudly) she did not have the title in the name of her husband and herself before the title was registered. With reference to paragraph 8 of the Plaint, PW -  1 told the court that it took long for her to come to court because she did not know the land had been taken by other people. The case would adjourned severally. It took her two years and she was unwell and its her who delayed its filing. She thought everything was okay. She saw the last aspect of it on page 1 of the witness statement. She also stated that her husband used to date the 1st Defendant. She did not have any relationship with the 1st Defendant. She was only told about the relationship but she never confronted her husband about it.

17.   PW - 1 confirmed that since they had bought the land they had not done anything on it. To the witness, the Defendants never followed the due process even obtaining the Land Control Board Letter of Consent. The wazees would sit and give consent. Infact,  she had heard the lady used to work with lands. This was to her knowledge so how did they transfer the land without a LCB consent.

C.   Re – examination of PW 1 by Mr. Nyangoro Advocate.

18.   PW - 1 confirmed that she had a Green Card which she had produced showing ownership of the land. It was registered in her husband’s name. She had her shambas in Mombasa and she knew that the property was hers even with the death of her husband. About Beatrice (the 1st Defendant) she only heard about her through rumours but she did not confront her husband. According to the witness, the 1st Defendant colluded with the lands official because the transaction ought to have passed through the Lands Control Board. Even the letter to summon her about the removal of the caution,  they delayed it deliberately and even only after her lawyer wrote a complaint to them.

D.   Re - called PW - 1 by Mr. Nyangoro Advocate.

19.   Upon being recalled, PW - 1 was sworn and testified in Swahili language. She further informed Court of her residence being in Nairobi. She was 88 years old. She had already testified before court. However, the Honourable Court allowed her to produce a further document which was a Certificate of birth for Mr. David Wathiani  Kariuki, the 2nd Defendant of the Amended Plaint dated 12th May, 2021. She told the court that, the 2nd Defendant was born on 21st September, 1988. She produced it as Plaintiff Exhibit No. 13 as it was allowed by Court.

20.   She made reference to the two (2) documents from the Defendant’s list of documents dated 10th March, 2021. From the adjudication record showed that the names of Samuel Kariuki Waithiani was crossed and replaced with that of Beatrice Igoki Gichoni, the 1st Defendant. It was indicated that the documents were sent to them through the Postal address of 89966 Mombasa and her address was 4780 – 00100 Nairobi – GPO. Further, the Green Card was for 20th April, 1999 with the names of Beatrice Igori Gichoni and Daniel Waithiani Kariuki.

21.   According to the witness from the record this was not possible as David Waithiani Kariuki was born on 21st September, 1988. By the time of registration, he must have been 11 years old. Hence this would not have been possible.

22.   The Plaintiff through her counsel on record Mr. Nyangoro Advocate marked her case as closed on 7th April, 2025.

V.   The 1st Defendant’s case

23.   The 1st Defendant responded to the Plaint through a defence where she each and every allegation contained in the plaint in toto. The 1st Defendant admitted the contents of Paragraphs 1, 2, 3 and 4 of the Plaint insofar as they were merely descriptive of the parties therein. The 1st Defendant denied the contents of Paragraph 5 of the Plaint, particularly the allegation that the Plaintiff owned plot No. Kwale/Gandini/32, and put the Plaintiff to strict proof.

24.   The 1st Defendant denied any knowledge of the contents of paragraph 6 of the Plaint and stated that if the Plaintiff had applied for and obtained Grant Letters of Administration of the estate of Samuel Kariuki Waithiani (deceased), then the same had been done secretly. The 1st Defendant wondered whether all interested beneficiaries had been informed, because her son, David Kariuki Waithiani, who was one of the rightful beneficiaries, had not been aware of this.

25.   The 1st Defendant, in reply to the contents of Paragraph 6 of the Plaint, denied that she had been a girlfriend to Samuel Kariuki Waithiani. She asserted that she had been a second wife whom he had married under customary law, with whom she had cohabited until his death on 13th October 1997, and with whom she had had one issue, namely David Kariuki Waithiani, as admitted by the Plaintiff. The 1st Defendant, in reply to paragraph 7 of the plaint, denied the plaintiff’s averments and stated that the property had been bought by her husband, Samuel Kariuki Waithiani, in the year 1977 from money he had acquired from Nacico as a loan facility where he had been a member. All documents of purchase had been in his name until October 1995, when he had officially recommended the plot to be registered in the defendant’s and her son’s names.

26.   The 1st Defendant denied the contents of Paragraph 8 of the Plaint and put the Plaintiff to strict proof thereof. The 1st Defendant denied the contents of Paragraph 9 of the Plaint and relied on letters dated October 1995 and November 1995, putting the Plaintiff to strict proof. The 1st Defendant denied the contents of Paragraph 10 of the Plaint and put the Plaintiff to strict proof thereof. The 1st Defendant denied the contents of Paragraph 10 of the Plaint and put the Plaintiff to strict proof thereof. The jurisdiction of the court was admitted.

27.   The 1st Defendant asked the court to revoke the Grant Letters of Administration given to the Plaintiff and to order that the entire stock of the family estate of Samuel Kariuki Waithiani be distributed so that the 1st Defendant’s child could get his share out of his father’s estate, and that the title deeds withheld by the Registrar of Titles at Kwale be immediately released to her. The 1st Defendant contended that the Plaint did not disclose any cause of action and stated that she would be applying for it to be dismissed with costs.

VI.   The 3rd and 4th Defendant’s case

28.   The 3rd and 4th Defendant filed their defence to the Plaint wherein the Defendants admitted the contents of Paragraphs 1 to 4 of the Plaint insofar as they were descriptive of the parties, save that their address of service for purposes of the suit had been c/o the Honourable Attorney General, Attorney General’s Chambers, National Social Security House, P.O. Box Numbers 82427, Mombasa. Save as expressly admitted, the Defendants denied each and every allegation contained in the Plaint as if the same had been set forth verbatim and traversed seriatim.

29.   The Defendants stated that they had been strangers to the averments contained in Paragraphs 5 to 8 of the Plaint and put the Plaintiff to strict proof thereof. The Defendants denied the contents of Paragraph 9 of the Plaint, including all particulars of fraud enumerated therein, and put the Plaintiff to strict proof thereof. The Defendants denied the contents of Paragraphs 10 and 11 of the Plaint and put the Plaintiff to strict proof thereof. The jurisdiction of the Honourable Court was admitted. 

30.   The Defendants prayed that the Plaintiff’s suit against them be dismissed with costs.

A.   Opening remarks

31.   The Learned Counsel for the 3rd and 4th Defendants, Ms. Ambetsa opened by stating that the allegation and acts of fraud and collusion on the transfer of the suit property levelled against the 4th Defendant was denied. They never issued any title to Kwale /Gandini 32 and hence they pleaded that the suit be dismissed with costs.

32.   Further on 3rd June, 2025 the Counsel averred they would producing the records of the land adjudication settlement for the area.

33.   On 7th April, 2025, the 3rd and 4th Defendants called DW - 1 who testified as follows:-

A.   Examination in Chief of DW - 1 by Mr. Abdalla Advocate:-

34.   DW - 1 testified under oath and in English language. She identified herself as SUSAN MWENI. She had been a Land Registrar for over ten (10) years. That she had been on that position at Kwale for the past 3 years. She was therefore competent to give evidence to the suit property. She had filed a list of documents dated 10th March, 2021 which she produced as Defendants Exhibit 1 a copy of the Green card. It was opened on 20th April, 1999 in the names of Beatrice Igoki Gichoni and David Waithiani Kariuki on Entry No. 2 was a caution registered on 23rd September, 2004 by Joan Wangari Kariuki claiming beneficial interest. The registration of the names of Beatrice Igoki Gichoi and David Wathiani Kariuki were as a result of an adjudication record. On the green card there were two entries – Entry 1 had no signature while entry 2 had the signature of the Land Registrar.

35.   According to the witness she could only speculate that the two names were as a result of the registration on land adjudication but by the title deed had not been issued. There were many of such Green cards which had not been signed. Any person can lodge a caution, so long as they had an interest in the matter. For instance purchaser’s interest whereby a wife could attach a marriage certificate or a purchaser attaching of a sale agreement.

B.   Cross Examination of DW - 1 by Mr. Nyangoro Advocate.

36.   DW - 1 confirmed that she had been a Land Registrar for 10 years. With reference to the green card on the 1st entry the witness told the court that it had no signature. She did not know why on 20th April, 1999 she could only speculate that at the year 1999 when the land adjudicate was closed. They were not signed until when the title deed were being collected. In this one there were no titles were issued. The registration of the minor was allowed but had to be indicated. By 20th April, 1995 David Wathiani Kariuki was 11 years – clearly he was a minor. Hence it was an error.

37.   On being referred to the adjudication record, the witness told the court that the same appeared to have two distinct dates. One was dated 14th December, 1983 by the Chairman and 3rd March, 1983 by the Executive Officer and whereby the name of Samuel Kariuki Wathiani was removed and other names listed

C.   Clarification from the DW - 1 by the Hon. Court. 

38.   DW - 1 reiterated that an entry on the Green Card and the signature thereof validated the ownership of the property. Without the signature and issuance of title the entry would be invalid.

39.   The 3rd and 4th Defendant called DW - 2 on 3rd June, 2025 who testified that: -

A.   Examination of DW - 2 by Ms. Ambetsa Advocate.

40.   DW – 2 testified under oath and in English language. He was called NIGRAS KIBET SANYA. He was a Land Surveyor by profession working with the Ministry for Lands in the department of land and settlement. At the time of his testimony, he was the Deputy DLASO. He produced a copy of the adjudication record number A201432 certified on 30th September, 2005 for Kwale Gandini. It was in their list of documents dated 10th March, 2021.

41.   The witness told the court that he was concerned on parcel no. 32. With reference to the Adjudication record – Entry No. 6 for parcel no. 32 (48.13 HA) was first registered in the names of Samuel Kariuki Wathiani (deceased). Later after the publication there was an objection no. 175/93/94 and as indicated on Part no. 14 of the record, to wit the objection was allowed and plot was transferred to the Registration as per request. The objection was raised by Samuel Kariuki Wathiani.

42.   The witness told the court that the objection was heard by the DLASO and it was implemented and entry signed by the DLASO. The adjudication record was prepared on 14th December, 1983. The objection was heard on 7th November, 1995. The witness may not know why the objection was raised. Objection could be raised by the registered parties in the register or any other interested party. The objectors do fill a form and they were given a number. In this case the number was 175/93.94. The witness could have the land adjudicate record produced as Defendant Exhibits.

B.   Cross examination of DW - 2 by Mr. Nyangoro Advocate.

43.   DW - 2 stated that it was the owner of the property who raised the objection – no reason was given for the objection as the same would had been placed in the objection proceedings; he did not have the objection proceedings. Ordinarily the objections were captured under part 14 of the form. He was not aware that David Wathiani  Kariuki was born in the year 1989. His name in the form that was prepared in the year 1983 whereby by then he was 6 years. The Land Adjudication record he never appeared as a minor.

44.   According to the witness, in the normal circumstances both parties must physically appear when records was being prepared. There must have been an anomaly may be David Wathiani Kariuki appeared as a minor. According to the demarcation request its Samuel Kariuki on 23rd October, 1979. In the year 1993, the survey and demarcation was completed and the records were prepared in the names of Samuel Kariuki Wathiani. After the publication for the public view; an objection to this entry being no. 175/93.95 was lodged by Samuel Kariuki Wathiani. The objection was heard on 2nd November, 1995 and it was allowed and was transferred to the Respondents as requested.

45.   The witness told the court that he did not know the reason as he did not have the objection proceedings. Part 11 of the adjudication form was thump printed by the Chairman on 14th December, 1983 and the executive officer on 3rd March, 1983. Part No. 13 was never filled.  It was blank. Part No. 9 was signed by the land owner. He did not know the reason the objection was raised and whether these documents reached the other party. No evidence of whether the document was signed by David Wathiani Kariuki. It was the duty of the 3rd party to come and collect their documents. The document did not have any anomalies. He did not have the objection proceedings with him in court.

46.   The 3rd and 4th Defendant marked their case closed on 3rd June, 2025 through their Learned Counsel on record Ms. Ambetsa Advocate.

VII.   Submissions

46.   On 3rd June, 2025 after the Plaintiff and Defendants marked the closure of their cases, the Honourable Court directed that the parties file their submissions within stringent timeframe thereof on. Pursuant to that, all parties obliged and the Honourable Court reserved a date to deliver its Judgement on 11th November, 2025. Eventually, it was delivered on 17th December, 2025.

A.   The Written Submissions by the Plaintiff

47.   The Plaintiff through the Law firm of Messrs. Atuti & Associates Advocates filed their written submissions dated 17th June, 2025. Mr. Nyandoro, the Learned Counsel commenced the submissions by stating that the Plaintiff instituted the present suit vide a Plaint dated 6th June, 2005 and amended it vide an Amended Plaint dated 2nd March, 2021. The Plaintiff who had instituted the suit as the personal representative of the late Samuel Kariuki Wathiani (deceased), claims that the 1st and 2nd Defendants fraudulently caused the transfer of land parcel Kwale/Gandini 32 comprising of 48.13 Hectares from the name of the deceased to the names of the 1st and the 2nd Defendants. The 1st and 2nd Defendants though initially had counsel representing them and upon the counsel's demise did not participate in the proceedings even after being served through substituted service as ordered by the Honorable court. The 4th Defendant appeared and also represented the 3rd Defendant and participated the proceedings fully and in fact called two witnesses to testify in defense to the Plaintiff's case.

48.   The Learned Counsel submitted that the Plaintiff had testified as the sole witness in support of her case. She had adopted her witness statement dated 12th September 2012 and filed in Court on the same date. She had relied on her bundle of documents comprising twelve exhibits, which were admitted in evidence, and she had further produced a birth certificate pursuant to leave granted by the Court. In her witness statement, the Plaintiff had explained that she was the wife of the late Samuel Kariuki Waithiani, who had died on 13th October 1997, and that she had taken out Grant Letters of Administration on 15th April 2005 to administer his estate. The Plaintiff had stated that her late husband had been registered as the owner of land parcel Kwale/Gandini/32 in trust for himself and the Plaintiff in or around year 1977.

49.   The Learned Counsel asserted that the Plaintiff had averred that on 20th September 2004, when she conducted a personal search, she had discovered that the title for the suit land had been fraudulently altered to reflect the names of the 1st Defendant and her son, the 2nd Defendant, in place of the deceased. The Learned Counsel submitted that the Plaintiff had further averred that the land had always been in her late husband’s name and could not have been transferred, as he had died on 13th October 1997, yet the title appeared to have been issued on 20th April 1999. The Plaintiff had averred that she had lodged a caution on 26th January, 1998 in apprehension of a fraudulent transfer. However, the caution had not reflected on the title, and she had never been notified of the registrar’s intention to remove it. It had further emerged that on 20th January, 1999, an entry had been made in the green card transferring the suit property to the 1st and 2nd Defendants.

50.   The Learned Counsel informed court that that it was imperative to note that when the name of the 2nd Defendant had been entered in the green card, he had been only nine years old, yet there had been no entry to show that he was a minor. The Plaintiff’s case was that the 3rd Defendant, being the custodian of records concerning land in Kenya in trust for and on behalf of the Government, had known and ought to have known that there had been a caution lodged earlier before the registration of the 1st and 2nd Defendants, and that the Plaintiff had not been notified of its removal.

51.   Further the Plaintiff had averred that the records did not reflect who had signed the transfer documents, if any, to effect the transfer, and that in any case the Plaintiff, being the administratrix of the estate of the deceased, ought to have signed any consent in relation thereto. The 1st and 2nd Defendants had not defended the case despite service, and that when their advocate had passed away, they had opted out of the proceedings.

52.   The Learned Counsel averred that the 3rd and 4th Defendants had been represented by the Honourable Attorney General, who had called two witnesses, namely the Registrar of Lands and the Land Adjudication Officer. DW - 1, the Registrar of Lands at Kwale, had testified that entries had been made on 20th January, 2004 in the green card in favour of the 1st and 2nd Defendants following an adjudication signed on 2nd November, 1999. She had testified that the 2nd Defendant had been a minor at the time, though this had not been indicated in the entry, and that no title had been issued to them. DW - 2, the Land Adjudication Officer, had admitted that the adjudication record had been incomplete. The record had shown that the deceased’s name had been erased and replaced with the names of the 1st and 2nd Defendants.

53.   The Learned Counsel submitted that DW - 2 had confirmed that by the time the adjudication record had been prepared in the year 1983, the 2nd Defendant had not yet been born. He had been born in the year 1988. The witness had been unable to explain why the deceased would had objected to his own name being removed. It had emerged that there had been an apparent motive behind the removal of the deceased’s name from the records, and that the Defendants’ case had exhibited lack of transparency. The Plaintiff, on the other hand, had proved her case beyond reasonable doubt.

54.   To buttress his case, the Learned Counsel relied on the following three (3) issues for its determination. Firstly, who was the registered owner to the suit land. The Learned Counsel submitted that the rights of a registered owner of property were clearly set out under the provision of Sections 24, 25 and 26 of the Land Registration Act, 2012. The Learned Counsel emphasized that section 24 provided that the registration of a person as proprietor of land vested in that person the absolute ownership of that land together with all rights and privileges appurtenant thereto. The Learned Counsel opined that the provision of Section 25 (1) of the Act provided that the rights of a registered owner were indefeasible and held free from all other interests and claims, save as provided under the Act. However, that ownership of such title was not absolute, as Section 26 (1) of the Act contemplated that a certificate of title could be impeached on grounds of fraud, misrepresentation, illegality, or acquisition through a corrupt scheme.

55.   The Learned Counsel contended that in the instant case, DW - 2, the Land Adjudication Officer, had admitted that the adjudication record was incomplete. The record had shown that the deceased’s name had been erased fraudulently and unprocedurally and replaced with the names of the 1st and 2nd Defendants. The Learned Counsel posited that DW - 2 had further confirmed that by the time the adjudication record was being prepared in the year 1983, the 2nd Defendant had not yet been born, having been born in the year 1988. Counsel argued that the witness had been unable to explain why the deceased would have objected to his own name being removed, and that there was nothing on record to justify such removal.

56.   The Learned Counsel submitted that from the foregoing, the Plaintiff had proved that a fraudulent enterprise had been committed by the Defendants to deprive her of her late husband’s registered land parcel Kwale/Gandini/32, which by law devolved to her.

57.   The Learned Counsel stated that it was trite law that when a person’s title was called into question, the said proprietor had to show the root of his ownership. To buttress her point, the Learned Counsel relied on the case of:- “Hebert L. Martin & 2 Others – Versus -  Margaret J Kamar & 5 Others [2016] eKLR”, where the Court held that when faced with competing titles, the Court must investigate the root of each title and uphold only that which conformed to procedure and could properly trace its root without a break in the chain. The Learned Counsel submitted that the Court of Appeal in the case of: “Munyu Maina – Versus - Hiram Gathiha Maina, Civil Appeal No. 239 of 2009” had held that when a registered proprietor’s root of title was challenged, it was not sufficient to dangle the instrument of title as proof of ownership. The proprietor had to go beyond the instrument and prove the legality of acquisition.

58.   The Learned Counsel cited the case of:- “Vijay Morjaria – Versus -  Nansingh Madhusingh Darbar & Another [2000] eKLR”, Tunoi JA (as he then was) had emphasized that fraud must be specifically pleaded and proved, and that fraudulent conduct must be distinctly alleged and distinctly proved. Further in the case of “Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 Others [2015] eKLR”, the Court observed that fraud was a serious accusation which had to be pleaded and proved to a standard above a balance of probabilities, though not beyond reasonable doubt. Counsel emphasized that general allegations, however strongly worded, were insufficient to amount to an averment of fraud.

59.   The Learned Counsel asserted that it was common ground that the 1st and 2nd Defendants had not entered into any written sale agreement with the deceased. The Learned Counsel further submitted that when the Defendants realized they could not defend the suit, they abandoned the hearing, leaving only the 4th Defendant to defend. The Plaintiff had proved that the 1st Defendant fraudulently transferred the suit land to herself and the 2nd Defendant, who had been a minor aged about 11 years at the time. The Counsel pointed out that DW - 1, the Land Registrar, had confirmed that the green card had been opened in their names following a fraudulent adjudication process.

60.   The Learned Counsel submitted that on the basis of the evidence on record, the Plaintiff had proved fraud against the Defendants arising out of a fraudulent adjudication process and the consequent opening of the green card in the names of the 1st and 2nd Defendants. 

61.   Secondly, on the issue of whether the title issued in the name of the 1st and 2nd Defendants should be cancelled. The Learned Counsel submitted that the 1st and 2nd Defendants names were entered in the Green Book following a fraudulent adjudication process on 20th April, 1999 as per the evidence of DW – 1,  (M/s. Susan Mweni) the Land Registrar. The Plaintiff had sought for the cancellation of the proprietorship of the 1st and 2nd Defendants. The testimony on record of DW – 1 and point to the fact that the registration of the 1st and 2nd Defendants as lawful registered owners of land parcel Kwale/Gandini 32 was unprocedurally acquired.

62.   According to the witness, it is trite law that the registration of a person and Certificate of title held by such a person as a proprietor of a property is conclusive proof that such person is the owner of the property. However, the holding of such title is not absolute as the same may be impeached under certain circumstances. Section 26 (1)a and b of the Land Registration Act, which provides;(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.

63.   The Learned Counsel urged this Court to find that the Plaintiff had established on a balance of probability the root of his deceased husband's title and there being no cogent evidence to controvert her testimony, that the Court to proceed to exercise its discretion in her favor. The provision of Section 80 (1) of the Land Registration Act provides:-

 “Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.”

64.   The above provision of Law is relevant in this case. Further in the case of “Alice Chemutai Too – Versus -  Nickson Kipkurui Korir & 2 Others [2015] eKLR”, the Court held that:- 

“It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party; or where it is procured illegally, unprocedurally, or through a corrupt scheme. I do not see how a person with a perfectly good title should be deprived of his title by activities of fraudsters. It is in fact time to put down our feet and affirm that no fraudster, nor any beneficiary of fraudulent activities, stands to gain for his fraud, and no title holder will ever be deprived of his good title by the tricks of con artists.”

65.   Finally, on who should bear the Costs of the Suit, the Learned Counsel submitted that it was very that Section 27 of the Civil Procedure Act gives the Court discretion to grant costs. As the successful party is always entitled to costs, except in exceptional circumstances, and having noted that no exceptional circumstance exists in this suit, the Court should find and hold that the Plaintiff being the successful litigant is entitled to the costs of the suit. The Plaintiff has proved her case beyond the balance of probabilities and urge the Honourable Court to make a finding in favour of the Plaintiff.

B.   The Written Submissions of the 3rd and 4th Defendants

66.   The 3rd and 4th Defendant filed their written submission through the State offices of Hon. Attorney General Chambers dated 28th July, 2025. M/s. Ambetsa Advocate commenced the submissions by stating that the Plaintiff had filed a claim against the Defendants seeking among other prayers: -

(i)   An order directing the 4th Respondent to cancel the title in the 1st Defendant’s name over Kwale/Gandini/32 and issue a new title in the Plaintiff's name.

67.   The Learned Counsel relied on the following two ( 2 ) main issues for determination:-

a)   Whether the 3rd and 4th Defendants acted fraudulently by registering the 1st Defendant’s title in her name.

b)   Whether the 3rd and 4th Defendants could call for cancellation of title in the 1st Defendant’s name over Kwale/Gandini/32 and issue a new title In the Plaintiff's name.

68.   The provision of Article 40 of the Constitution of Kenya, 2010, Sections 26 ( 1 ) and 80 of the Land Registration Act, No. 3 of 2012 on the ownership and protection of land.

69.   The Article 40 of the Constitution makes provision for the protection of right to property. However, this protection is not absolute as Sub - Section (6) thereof provides that:- 

“The rights under this article do not extend to any property that has been found to have been unlawfully acquired.”

Section 26 stipulates as follows:-

“(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except-

(a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or

(b) Where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme.

(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original”.

Section 80 (1) Subject to sub - section (2). the court may order the rectification of the register by directing that any registration be cancelled or amended If it is satisfied that any registration was obtained, made or omitted by fraud or mistake”.

70.   The Learned Counsel relied on the case of:- “Dina Management Limited – Versus - County Government of Mombasa & 5 Others (Petition 8(E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment)”,

Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limited the rights as not extending them to any property that had been found to have been unlawfully acquired. As the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter could not therefore be protected under article 40. The root of the title having been challenged: the appellant could not benefit from the doctrine of bona fide purchaser.

The appellant's title was not protected under Article 40 the Constitution and the land automatically vested to the P respondent pursuant to Article 62 (2) the Constitution. The suit property, by its very nature being a beach property, was always bound to be attractive and lucrative. The appellant ought to have been more cautious in undertaking its due diligence.

71.   Further in the case of:- “Alice Chemutai Too – Versus -  Nickson Kipkurui Korir & 2 others [2015] eKLR” cited in the case of:- “Sigona Juakali Association – Versus -  County Government of Kiambu & 8 others [2019] eKLR”  the Court held:-

“......where one intends to impeach title on the basis that the title has been procured by fraud or misrepresentation, then he needs to prove that the title holder was party to the fraud or misrepresentation. However, where a person intends to indict a title on the ground that the title has been acquired illegally, unprocedurally, or through a corrupt scheme, my view has been, and still remains, that it is not necessary for one to demonstrate that the title holder is guilty of any immoral conduct on his part.”

72.   According to the Learned Counsel, in the present case the Plaintiff states that the 1st Defendant acquired the title irregularly and thus the entry irregular, 1st and 2nd Defendants have not produced any evidence to rebut and substantiate the fraudulent claims. The 3rd and 4th Defendants filed their defence and state that the same are not parties to the alleged fraud or misrepresentation.

73.   In the case of:- Dina Management (Supra) reiterated that where the registered proprietor's root title was under challenge, it was not enough to dangle the instrument of title as proof of ownership. It was the Instrument that was in challenge and therefore the registered proprietor must go beyond the Instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.

Indeed. the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible. The first allocation having been irregularly obtained, HE Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co (1993) Ltd, who in turn could pass to the Appellant.

Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40 (6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1 registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under article 40 of the Constitution. The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser.

74.   On whether the 3rd and 4th Defendants could call for the cancellation of title in the 1st Defendant’s name over Kwale/Gandini/32 and issue a new title in the Plaintiff’s name. The Learned Counsel submitted that in case of:- “Civil Appeal No. 246 of 2013 between Arthi Highway Developers Limited – Versus - West End Butchery Limited and Others” cited in “Murang’a ELC Appeal No.16 of 2017 Gichlnga Kibutha – Versus -  Caroline Nduku”, the Court of Appeal expressly stated that the law on fraud and indefeasibility of Title has been settled. The Court specifically referred to the law as stated in the case of “Dr. Joseph Arap Ngok -Versus- Justice Moijo ole Keiwua & 5 others”, Civil Appeal No. 60 of 1997 where the Court categorically declared that:-

“Section 23 (1) of the then Registration of Titles Act (now reproduced substantially as Sections 25 and 26 of the Land Registration Act set out below) gives an absolute and indefeasible title to the owner of the property. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of Titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy.”

75.   In the present case the Plaintiff alleged to be the registered owner of Kwale/Gandini/32. This is the first registration. Under Section 25(1) stated above, the Plaintiff's title ought not to be defeated except among others, fraud to which the 1st and 2nd Defendants are proved to be a party. The Section 107 of the Evidence Act Cap 80 of the laws of Kenya states that;-

“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.”

76.   Therefore, according to the Learned Counsel it was settled law that in civil cases the principle of a burden of proof comes to play. This is whereby  a party who wished the court to give a judgment or to declare any legal right dependent on a particular fact or sets of facts, holds that such a party has a legal obligation to provide evidence that would best facilitate the proof of the existence of those facts. The party must present to the court all the evidence reasonably available on a litigated factual issue.

77.   It was the contention of the Counsel that, the 3rd and 4th Defendants did not take part in any fraudulent dealings with respect to the suit property. It was for the 1st and 2nd  Defendants to demonstrate how they acquired their respective title to the suit property.  In light of provision Section 107 (1) of the Evidence Act, Cap. 80, the 3rd and 4th Defendants had the legal obligation of proving the process or procedure they followed in acquiring the alleged title and sub -divisions of the suit. In the absence of such evidence, it could not be concluded that the Office of Registration of Titles acted unless, let alone fraudfully.

78.   In conclusion, the Learned Counsel relied on the Court of Appeal decision in the case of “Richad Akwesera Onditi – Versus - Kenya Commercial Finance Company Limited (2010) eKLR” indeed held that allegations of fraud and collusion were serious in nature and required a very high standard of proof. This standard of proof had been held in numerous occasions to be above a mere balance of probability. The 1st and 2nd Defendants herein have not provided any cogent evidence to demonstrate that the 3rd and 4th Defendants acted fraudulently or that they (the 3rd and 4th Defendants) had or have an interest in the suit property; and neither has the Plaintiff.

VIII.   Analysis and Determination

79.   I have keenly assessed the filed pleadings by all the Plaintiff and 1st, 2nd, 3rd & 4th Defendants herein, the written submissions and the cited authorities, the relevant provisions of the Constitution of Kenya, 2010 and the statutes.

80.   In order to reach an informed, reasonable and just decision in the subject matter, the Honourable Court has crafted the following five (5) for its determination. These are: -

a)   Whether Land parcel number Kwale/Gandini/32 was registered in the name of the deceased in trust for himself and the Plaintiff herein?

b)   Whether the 1st Defendant fraudulently caused the title to the suit property to be altered to read her name and that of her child David Kariuki Waithiani in place of Samuel Kariuki Waithiani?

c)   Whether the Plaintiff's husband, the deceased died on 13th October 1997 and whether the title in the joint names of the 1st Defendant and that of David Kariuki Waithiani was issued on 20th April 1999?

d)   Whether the Plaintiff is entitled to the reliefs sought in the Plaint against the defendants?

e)   Who is to pay costs of this suit?

ISSUE No. a).         Whether Land parcel number Kwale/Gandini/32 was registered in the name of the deceased in trust for himself and the Plaintiff herein.

81.   Under this sub - title, the Honourable Court shall examine the efficacy, absolute and legal ownership of the suit property in relation to the name of the deceased in trust for himself and the Plaintiff. To begin with, the right to own and acquire property in Kenya is a Constitutional right to be enjoyed by all persons. It is hinged on the provision of Article 40 of the Constitution of Kenya, 2010 which provides as follows:-

(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—

(a) of any description; and

(b) in any part of Kenya.

(2) Parliament shall not enact a law that permits the State or any person--

(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or

(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).

(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation-

(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or

(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that

(i) requires prompt payment in full, of just compensation to the person; and

(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.…”

82.   It is evident that the rights of a registered owner of property are clearly set out under the provision of Sections 24, 25 and 26 of the Land Registration Act 2012.

Section 24 holds that:- “Subject to this Act

(a) The registration of a person as proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”

83.   Further Section 25(1) provides that for such a registered owner, his/her rights are indefeasible and are held free from all other interests and claims and that the rights can only be defeated in the manner provided under the Act.

84.   Further, a title holder enjoys statutory protection by dint of the provision of Section 26 (1) (b) of the Land Registration Act, No. 3 as already provided above.

85.   The Plaintiff testified that she and her late husband, Samuel Kariuki Waithiani, purchased the suit property in the year 1977 from one Mwanjereko. The land was registered in the deceased’s name. She contended that the registration was done in trust for both herself and her husband, as they had jointly acquired the property for the benefit of their family. Documentary evidence produced by the Plaintiff particularly the Adjudication records under the custody of the Land Adjudication and Settlement offices (DLASO) and the Land Registrar, Kwale, confirmed that the deceased’s name appeared on the register as the absolute and legal proprietor until there were alterations through the hand written cancellations were made after his death under unclear circumstances whatsoever. The DW – 2 being the DLASO, Kwale was at great pains to explain the reasons that led to the said cancellation by the Plaintiff over his own land to ostensibly incorporate and/or substitute himself with the 1st and 2nd Defendants herein merely by holding that these would be easily traced from the Adjudication proceedings which certainly were never produced in Court.  

86.   Subsequently, on discovering this atrocities over the land, the Plaintiff further averred that she had lodged a caution in year 1989. The said prohibitory action by the Plaintiff was to protect the estate’s interest. However, in the Court of time, the said caution was irregularly and/or wrongfully removed by the Land Registrar contrary to the provision of the law without her knowledge. DW - 1 (The Land Registrar, Kwale) admitted that entries were later made in the green card in favour of the 1st and 2nd Defendants, but no title deed was ever issued to them. DW - 2 (Land Adjudication Officer) conceded that the adjudication record was incomplete and that the deceased’s name had been erased and replaced with the Defendants’ names without lawful justification.

87.   It is trite that when a person’s title is called into question, the said proprietor has to show the root of his ownership. In the case of Hebert L Martin & 2 Others – Versus - Margaret J Kamar & 5 Others {2016} the Court held:

“A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.”

88.   Having been so guided, this Court will move to ascertain which party has proved the root of its title. The Plaintiff has led evidence that he acquired ownership of the suit property  from his late mother. The Plaintiff has corroborated his evidence with a gazette notice. This Court has no reason to doubt the evidence adduced by the Plaintiff and the contents of the aforementioned.

89.   On the basis of the evidence and authorities, the Court found that the absolute and legal registered owner of the suit property was Samuel Kariuki Waithiani (deceased) with all indefeasible interest, title and rights vested on him by law.

90.   The Plaintiff testified that she and her late husband, Samuel Kariuki Waithiani, purchased the suit property in year 1977 from one Mwanjereko. The land was registered in the deceased’s name. She contended that the registration was done in trust for both herself and her husband, as they had jointly acquired the property for the benefit of their family.

91.   Further reliance was placed on the provision of Section 9 of the Matrimonial Property Act No. 49 of 2013, which provides for Acquisition of interest in property by contribution. It states:

“Where one spouse acquires property before or during the marriage and the property acquired during the marriage does not become matrimonial property, but the other spouse makes a contribution towards the improvement of the property, the spouse who makes a contribution acquires a beneficial interest in the property, equal to the contribution made.”

92.   While the Act uses the term “improvement”, Kenyan courts have interpreted “contribution” broadly to include financial contribution to the initial purchase, as was the case here. The Plaintiff's contribution to buying the land gave her a direct beneficial interest.

93.   Further, under the provision of Section 14 (a) of the Matrimonial Property Act similarly provides that where matrimonial property acquired during marriage is registered in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse.

94.   From the pleadings and submissions on record, it was consistently stated that the deceased, Samuel Kariuki Waithiani, died on 13th October 1997. The Law of Succession Act, Cap. 160 had commenced by then since it did on 1st July, 1981. The provision of Section 2 of the Law of Succession Act, Cap. 160 provides as follows in relation to the administration of estates of persons deceased prior to its commencement:

‘2. Application of Act

(1)  Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after, the commencement of this Act and to the administration of estates of those persons.

(2)  The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.’

95.   The Court’s decision will be anchored on “the doctrine of resulting trust” where property is purchased by one party but the purchase price is paid by another, or where multiple parties contribute to the purchase but the legal title is placed in the name of only one, equity presumes that the legal holder owns the property for the benefit of all contributors. This is known as a purchase price resulting trust.

96.   The Plaintiff demonstrated that the suit property was acquired jointly with her husband. The fact that registration was effected solely in the deceased’s name did not extinguish her beneficial interest. Equity presumed a resulting trust in her favour. The Defendants did not produce any evidence to rebut this presumption or to show that the deceased intended to exclude the Plaintiff from ownership.

97.   In conclusion, the Court shall proceed to answer this question in the affirmative. It is thereby held that the registration of the land in the name of Samuel Kariuki Waithiani was not for his sole benefit. Instead, he held the legal title in a resulting trust, whereby he was a trustee for both himself and the Plaintiff, who was the beneficial owner of her share by virtue of her financial contribution and their common intention as a married couple.

98.   In view of the foregoing, therefore, the Honourable Court discern that the 1st and 2nd Defendants failed to provide any evidence to rebut this presumption of trust. 

ISSUE No. b).         Whether the 1st Defendant fraudulently caused the title to the suit property to be altered to read her name and that of her child David Kariuki Waithiani in place of Samuel Kariuki Waithiani.

99.   Under this sub - heading, the Honourable Court shall examine the existence of fraud by the 1st Defendant in acquiring the title to the suit land. Fraud in land transactions has been a recurring theme in Kenyan jurisprudence. This Honourable Court has issued strong precedence condemning fraudulent dealings in land as well as my counterparts in the Environment and Land Court.

100.   The provision of Section 26 of the Land Registration Act, Act No. 3 of 2012, provides that a title which was acquired by way of fraud or misrepresentation, where a person is proved to be a party can be attacked. So too a title which was acquired illegally, unprocedurally or through a corrupt scheme.

101.   Therefore, unless there is proof that the acquisition of title by a registered proprietor was by fraud, misrepresentation, illegality or corruption, registration vests in a proprietor of land, absolute and indefeasible rights. In the case of “Munyu Maina – Versus - Hiram Gathiha Maina, Civil Appeal No239 of 2009”, the Court of Appeal held that:-

“We have stated that when a registered proprietor root title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”

102.   When a party alleges fraud, they must specifically plead the particulars thereof and strictly prove the same. The standard proof of fraud is slightly higher than the standard of proof in criminal cases of beyond reasonable doubt. In the case of “Kinyajui Kama – Versus – George Kamau [2015] eKLR” the Court expressed itself as follows:

“……….it is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo – Versus – Ndolo [2008] 1KLR (G&F) 742 wherein the court stated that: “……..we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases………..”

103.   In the instant case, the Plaintiff alleges fraudulent acquisition and registration of the suit property, seeking cancellation of title, rectification of the register, injunctive relief, and damages. The Court identifies several specific and glaring, unlawful actions that formed a clear pattern of fraud. To begin with, the registered owner to the suit property was Samuel Kariuki Waithiani. From the records, he died on 13th October 1997. Paradoxically, the alteration of the Adjudication register to substitute him and include the 1st and 2nd Defendants’ names was done on 20th April 1999. This was nearly two years after his death.  This is extremely bizarre.

104.   Secondly, the 2nd Defendant, David Kariuki Waithiani is alleged to have been registered as legal proprietor to the suit land. From the records, being his Certificate of birth, indicates that he was born on 21st September 1988. At the time of the registration on 20th April 1999, he was only 11 years old. The Land Registrar (DW - 1) testified that the entry did not indicate he was a minor, which was a procedural error and highly irregular. This was wrongful.

105.   Thirdly, I have also noted that there was an irregular adjudication process. As already indicated above, the Land Adjudication Officer (DW - 2) testified that the change on the record was based on an adjudication record allegedly based on “an objection” raised by the Plaintiff. However, in the course of his testimony, DW – 2 conceded that the record was incomplete and could not explain why the deceased would have objected to his own name or how the names were changed lawfully. He merely held that all the reasons on the objection raised by the Plaintiff were founded in the adjudication proceedings which apparently for reasons well known to the Defendants was not part of the evidence in this Court. The process lacked transparency and legal foundation. 

106.   Fourthly, the Court notes that there was removal of a caution without notice nor adhering with the provided for provisions of the Law. Matters on registration and removal of cautions are governed by the provision of Sections 71, 72, 73 & 74 of the Land Registration Act, No. 3. It is a process couched based on the principles of natural justice.  The Plaintiff had lodged a caution on the title in the year 1989 seeking for prohibition and/or forbidding on any transactions to protect her interest over the suit property. Apparently, this caution was removed without the legally required notification to her, allowing the fraudulent transfer to proceed. This was wrongful and an abuse of office perpetrated by the 3rd and 4th Defendants acting in cohort and collusion with the 1st and 2nd Defendants.

107.   Fifthly, the Honourable Court also notes that the transfer was effected without the knowledge or consent of the Plaintiff who was the rightful and the duly appointed Legal Administratrix of the deceased's estate. It is trite law that any lawful transfer after death would require her consent in that capacity. Indeed, the provision of Section 45 of the Laws of Succession, Cap. 160 would cause this action of omission and commission by the Defendants tantamount to Intermeddling. The 1st Defendant's case collapsed due to a complete lack of evidence to justify the transfer. Despite being served, the 1st and 2nd Defendants did not call any witnesses or produce documents to prove a lawful sale, gift, or inheritance. Where a Defendant fails to adduce evidence in support of the Defence and fails to attend court to prosecute the case, the Plaintiff’s evidence escapes the possibility of being controverted by defence evidence. It escapes the scrutiny of cross-examination by the Defendant. It therefore stands unchallenged and uncontroverted. However, the Plaintiff does not escape the burden and standard of proof which she has to satisfy and discharge in accordance with the law in order for his claim to succeed.

108.   The provision of Sections 107 ( 1 ), 108 and 109 of the Evidence Act, Cap. 80 provides that: -

         Section 107 ( 1 ) - “Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

             Section 108:-      “The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.”

            And the provision of Section 109 provides:-

“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 for by law that the proof of that fact shall lie on any particular person.”

109.   In the case of “Charter House Bank Limited (Under Statutory management – Versus - Frank N. Kamau [2016] eKLR” the Court of Appeal when discussing the burden of proof on the Plaintiff in a situation where the Defendants failed to adduce evidence stated that: -

“……..we would therefore venture to suggest that before the trial court can conclude that the Plaintiff’s case is not controverted or is proved on a balance of probability by reason of the Defendant’s failure to call evidence, the court must be satisfied that the Plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence from the Defendant.

…………The Plaintiff must adduce evidence, which in the absence of rebutted evidence by the Defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the Plaintiff is not entitled to Judgement merely because the Defendant has not testified’’

110.   In the present case, the Plaintiff has the burden to adduce some credible and believable evidence to prove on a balance of probabilities, that she has acquired the prescriptive rights. That her possession of the suit land was as of right and in a manner inconsistent with the rights of the registered owner that is to say: the occupation has been open, actual, continuous, uninterrupted, peaceful, exclusive and with the knowledge but without the consent or permission of the registered owner for the prescribed period of 12 years. In the case of “Kimani Ruchure – Versus - Swift Rutherfords & Co. Ltd (1980)KLR 10” Kneller J held that”- 

“the Plaintiffs have to prove that they have used this land which they claim as of right: nec vi, nec clam, nec precario (no force, no secrecy, no persuasion)”

111.   In the case of “Kirugi and Another – Versus - Kabiya & 3 Others (1987) KLR 347”, the Court of Appeal held that:-

“The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof. Likewise, failure by the Defendant to contest the case does not absolve a plaintiff of the duty to prove the case to the required standard.”

112.   Similarly, in the case of “Gichinga Kibutha – Versus - Caroline Nduku (2018) eKLR”, the Court held that:-

“It is not automatic that (in) instances where the evidence is not controverted the Claimant shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”

113.   In the case of:- “Samson S. Maitai & Another – Versus -  African Safari Club Ltd & Another [2010] eKLR”, Emukule J observed: -

“……. I have not seen a judicial definition of the phrase ‘Formal Proof’. ‘Formal’ in its ordinary Dictionary meanings - refers to being ‘methodical’ according to rules (of evidence). On the other hand, according to Halsbury’s Laws of England, Vol. 15, para, 260, ‘proof’ is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. 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. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption.”

114.   In the case of:- “Rosaline Mary Kahumbu – Versus - National Bank of Kenya Limitedd [2014] eKLR”, the Court held: -

“In contrast, at a formal proof hearing, if the party with the onus of adducing evidence fails to satisfy the truth threshold, the matter would stand to be dismissed on the basis that it was unmeritorious and did not raise sufficient proof of any issues of fact or law. It would be heard and determined on its merits.”

115.   In this regard, in a formal proof hearing, a party with the onus of adducing evidence must produce such sufficient evidence which must satisfy the court as to its truth. It is trite law that in any suit of this nature, the party who seeks to rely on the existence of a fact or a set of facts must provide evidence that those facts exist. The 1st Defendant claimed to be a customary law wife, but the Court found the Plaintiff’s evidence more credible. The 1st Defendant could not produce any sale agreement, gift deed, or other documentation to legitimize the transfer. The court confirmed that the high standard of proof for fraud in civil cases—above a balance of probabilities—was met. 

116.   The cumulative effect of the evidence—the posthumous transfer, the registration of a minor, the flawed adjudication, and the removal of the caution—created an undeniable picture of a “fraudulent enterprise” (as described in Paragraph 57), for which the 1st Defendant was responsible. The process was not a one day event. It was well choreographed. The fraudulent scheme  involved processes of adjudication, demarcation, survey and registration and further removal of the caution. The process began with giving not less than six months to any person who had an interest in land to present the same. That being the position, it is clear to me that the process of registration of the suit property in the name of the 2nd Defendant began before January 1999. It is improbable that the 2nd Defendant could have been registered as an owner being that he was a minor and could not have effected the processes of land acquisition for want of capacity and he did not bother to explain to the court the circumstances under which the registration was effected in his favour in view of his age.

117.   Therefore, the Court answered this question in the affirmative. It is this Court’s holding that the 1st Defendant, Beatrice Igoki Gichoni, fraudulently and collusively caused the title for Kwale/Gandini/32 to be altered, illegally displacing the name of the rightful owner, Samuel Kariuki Waithiani, with her own name and that of her son.

ISSUE No. c).         Whether the Plaintiff's husband, the deceased died on 13th October 1997 and whether the title in the joint names of the 1st Defendant and that of David Kariuki Waithiani was issued on 20th April 1999.

118.   Under this sub – title the Court shall critically scrutinize the two most important dates. First, I need to verify the dates mentioned. The Honourable Court, from the documentation submitted,  clearly the deceased’s date of death in multiple places, like Paragraphs 7 and 49. The Plaintiff provided a Certificate of death and the court accepted it as evidence. No party contested this date, so it's established that the Plaintiff's husband - the deceased -  died on 13th October 1997.

119.   The Plaintiff, consistently averred in her Plaint and in her sworn testimony that her husband died on 13th October 1997. The Plaintiff produced a death certificate as part of her evidence to formally prove this fact. None of the Defendants disputed this date. In fact, the 1st Defendant’s own statement of defense confirmed that she cohabited with the deceased “until his death on 13th October 1997”. The court, therefore, had no reason to doubt this fact and repeatedly referenced it throughout the Judgment.

120.   Next, it’s the date when the title was issued. The Green Card entry on 20th April, 1999, is highlighted in Paragraphs 20, 34, and 49. The Land Registrar confirmed this during testimony. Even though no physical title deed was issued, the legal registration occurred on that date. Apparently, the Defendants didn't challenge this, and the court was left with no choice but to rely on documentary evidence. The timeline shows the title changed after the death, which supports the fraud finding. The entry registering the suit property in the joint names of the 1st Defendant and the 2nd Defendant  was made on 20th April 1999.

121.   The date of the fraudulent registration was established through official government records presented in court. The Land Registrar for Kwale, testifying as DW - 1, produced the official green card for the suit property as a defense exhibit. This date, drawn from the official record, was not contested by any party. The Plaintiff's case was built around the illegality of this entry, and the 3rd and 4th Defendants (the land authorities) did not dispute that the entry was made on this date.

122.   The court placed immense significance on the chronological sequence of these two facts. The transfer occurred nearly two years after the registered proprietor had died. From the Judgment (Paragraph 49, summarizing the Plaintiff's successful argument) though her Learned Counsel was that she had further averred that the land had always been in her late husband’s name and could not have been transferred, as he had died on 13th October 1997, yet the title appeared to have been issued on 20th April 1999.

123.   This timeline made it legally impossible for the deceased to have consented to or participated in the transfer, leading the court to the inescapable conclusion that the registration was illegal, unprocedural, and fraudulent. 

124.   In conclusion, the Court makes a finding as a matter of fact that the deceased died on 13th October 1997. The register was altered to show the 1st and 2nd Defendants as proprietors on 20th April 1999. The stark contradiction between these two dates was fundamental to the court's decision to cancel the Defendants' title and restore the property to the Plaintiff.

ISSUE No. d).         Whether the Plaintiff is entitled to the orders sought in the Plaint

125.   Under this Sub - heading, the Honourable Court takes cognizance to the fact that the Plaintiffs have sought for various reliefs as contained at the foot of the Plaint herein. As already elaborately stated above, the standard of proof in civil cases is well settled under the provisions of Sections 107, 108 and 109 of the Evidence Act, Cap 80 Laws of Kenya. The Court needn’t belabour the point.

126.   The guiding principle is that the Plaintiff must establish her case on a balance of probabilities, meaning that the Court must be satisfied that it is more probable than not that his/her version of events is true. In the instant case, the background summary of the case are straight forward. That the Plaintiff herein sued as the duly appointed Legal Administratrix of the estate of the deceased. Her claim was that the suit property had been purchased by the deceased (in or about the year 1977) and registered in his name in trust for himself and the Plaintiff. Subsequently, it was later altered and recorded in the names of the 1st and 2nd Defendants by an unprocedural and fraudulent process. The Plaintiff sought declaratory relief, rectification of the register, injunctive relief, damages and costs.

127.   The Honourable Court has critically considered the pleadings filed, the witness testimony by all the parties, the documents admitted in evidence, the statutory scheme, the written submissions and the authorities relied upon by Counsels. As already stated above, the Legal framework applied herein is the Land Registration Act, 2012, No. 3 of 2012 in particular the provisions of Section 24, 25, 26 (1) and Section 80(1). Additionally, the Court has also made reliance onto the provision of Article 40 (1) and (6) of the Constitution of Kenya, 2010 which gives right to property; protection does not extend to unlawfully acquired property.

128.    The Honourable Court reiterates the facts of the case. They are relevant in terms of considering the entitlement of the Prayers sought by the Plaintiff. Undisputedly, the deceased had been registered as proprietor of the suit property. The Plaintiff adduced evidence (oral and documentary) that the parcel had been bought in or about the year 1977 and held for the family. The Plaintiff took out Grant Letters of Administration in April 2005 and had earlier lodged a caution which she said did not appear on the register when contested.

129.   DW - 1 (The Land Registrar, Kwale) and DW - 2 (the Land Adjudication Officer) conceded material lacunae: entries had been made in the Green card/adjudication records which casually replaced the deceased’s name with the names of the 1st and 2nd Defendants; the adjudication record was incomplete; the 2nd Defendant had not been born at the time the earlier record was prepared; and no proper transfer paper trail was produced to explain the alteration. DW - 1 confirmed no title had been issued to the 1st /2nd Defendants at the time of testimony and that the Green - card entries and adjudication entries were irregular.

130.   Juxatapose,  the 1st and 2nd Defendants did not put forward cogent documentary proof of a lawful purchase, transfer instrument or other lawful root of title; they did not actively defend the merits during hearing (their original counsel died and they thereafter did not participate).

131.   On the declaration of beneficial interest/ resulting trust, this Honourable Court observes that registration vested legal ownership under the provisions of Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012 creates an indefeasible title, interest and rights vested onto the Plaintiff over the suit land by law. But equitable interests (including resulting trusts) could subsist notwithstanding registration where evidence justified them.

132.   The provision of Section 152A of the Land Act No. 6 of 2012 prohibits unlawful occupation of land and states that “A person shall not unlawfully occupy private, community or public land.”

133.   This Court has previously stated in “Mwenye & 5 others – Versus - Tsama & 3 others [2025] KEELC 152 (KLR)” where the Court opined that: -

“65. The above rights, interests and privileges accorded to a registered proprietor of land apply to the 1st and 2nd Defendants in this case having established that they are the proprietors of the suit properties. For the reasons tendered herein above, the Counter claim by the 1st and 2nd Defendants succeeds.”

134.   Ideally, the Plaintiff proved joint acquisition context, continuous family ownership and absence of any competing lawful acquisition by the Defendants. No evidence on record rebutted a presumption of a resulting trust or demonstrated an intention by the deceased to exclude the Plaintiff. The Plaintiff was entitled to a declaration that the deceased had been registered as proprietor holding the land in trust for himself and the Plaintiff (the beneficial interest).

135.   On the cancellation of the subsequent titles, the Court has found that the registration of the 1st Defendant and the subsequent transfer to the 2nd Defendant in the year 1999 were wrongful, unlawful and impeachable under the provision of Section 26 (1) (b) the Land Registration Act, No. 3 of 2012. Thus, pursuant to the provision of Section 80 (1) of the Land Registration Act, No. 3 of 2012, the Court has jurisdiction to order rectification of the register by directing the cancellation of such entries from the names of the 1st and 2nd Defendants to that of the Plaintiff.  

136.   The Plaintiff pleaded particulars of fraud. She produced evidence pointing to erasing and/or alteration of the deceased’s name, insertion of the 1st and 2nd Defendants’ names in the Green card and incomplete/absent transfer documentation. The registry witnesses conceded the adjudication record was incomplete and could not account for the lawful steps that produced the new entries; the date of birth of the 2nd Defendant of 1988 made his purported place on a the year 1983 adjudication record impossible. Those concessions materially corroborated the Plaintiff’s allegations. On the contrary, the Defendants produced no lawful root of title or credible explanation of procedure.

137.   While fraud allegations required clear and distinct pleading and strong proof, the evidence here (admissions by registry witnesses and absence of lawful documents) met the necessary standard to establish that the contested entries had been procured by irregular and likely fraudulent procedure. 

138.   Given the risk of irreparable prejudice by dealing with the land and the necessity to restore the register to its lawful state, the Plaintiff was entitled to rectification and a permanent injunction restraining alienation or dealing until rectification had been effected.

139.   The Plaintiff has prayed for a permanent injunction to restrain the Defendants from interfering with his proprietary rights over the suit property. The law on injunctions is well settled. As already established, the rights of a registered proprietor are absolute and indefeasible, subject only to encumbrances noted in the register and the exceptions under Section 26(1). Once the Court has found that the Plaintiff is the lawful proprietor, she is entitled to the full protection of the law, including injunctive relief.

140.   The principles governing the grant of injunctions were set out in “Giella – Versus - Cassman Brown & Co. Ltd [1973] EA 358”, namely: -

a)   The applicant must establish a prima facie case with a probability of success;

b)   The applicant must demonstrate that he will suffer irreparable harm not compensable by damages;

c)   If in doubt, the Court will decide the matter on a balance of convenience.

141.   Although Giella dealt with interlocutory injunctions, the principles are instructive even at the final stage. Where a party has proved ownership and unlawful interference, a permanent injunction is the natural remedy to protect proprietary rights.

142.   In this case, the Plaintiff has proved that she is the lawful proprietor of the suit property; the 1st and 2nd Defendants have interfered with her quiet possession by purporting to acquire and occupy the land and monetary compensation would not adequately protect his constitutional right to property under the provision of  Article 40 of the Constitution of Kenya, 2010.  Accordingly, the Court finds that the Plaintiff is entitled to a permanent injunction. An order of permanent injunction is hereby issued restraining the 1st and 2nd Defendants, their servants, agents, or assigns from entering upon, alienating, disposing of, wasting, constructing on, or in any way interfering with the Plaintiff’s quiet possession, occupation, and enjoyment of the suit parcel.

143.   On General Damages, the Plaintiff suffered harm due to the Land Registrar and County Government’s failure to enforce the law. She endured loss of enjoyment of her property. In the case of:- “Kenya Power & Lighting Co. Ltd – Versus - Nathan Karanja Gachoka & Another [2016] eKLR”, the Court awarded damages for administrative negligence by a public authority in being diligent while registering titles. A modest award of a sum of Kenya Shillings Five Million (Kshs. 5,000,000/-) is appropriate.

ISSUE No. e).         Who bears the costs of the suit 

144.   It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances.

145.   In the case of:- “Machakos ELC Pet No. 6 of 2013 Party of Independent Candidate of Kenya & another – Versus -  Mutula Kilonzo & 2 others [2013] eKLR” quoted the case of “Levben Products – Versus -Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227” the Court held:-

“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion (Fripp – Versus - Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at….In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.”

146.   In the present case, I reiterate that the Plaintiff has proved her claim against the 1st, 2nd, 3rd and 4th Defendants. She shall be entitled to the costs of the suit thereof.

IX.   Conclusion and Disposition

147.   Ultimately, having caused such an in-depth analysis to the framed issues herein, the Honourable Court on the Preponderance of Probabilities and the balance of convenience finds that the Plaintiff has established her case against the 1st, 2nd , 3rd & 4th Defendants. Thus, for avoidance of doubt, the Honourable Court proceeds to make the following specific orders:-

(a)   THAT Judgment be and is hereby entered in favour of the Amended Plaint dated 2nd March, 2021 in its entirety with costs.

(b)   THAT a declaration do and is hereby made that the (suit land) parcel of land known as the Land Reference Number Kwale/Gandini/32 measuring approximately 48.13 Hectares having been bought by the Plaintiff plus her deceased husband was registered in his name in trust for himself and herself in equal shares and there be declared a resulting trust in favour of the Plaintiff being the sole and duly appointed Legal Administrator of the estate of the deceased.

(c)   THAT an Order of permanent Injunction be and is hereby issued restraining the 1st and 2nd Defendants herein from alienating, trespassing, selling, disposing or in any other way charging, mortgaging, developing on or trespassing or in any manner dealing with land comprised in the suit land.

(d)   THAT an Order be and is hereby issued directed to the 3rd Defendant to cancel the title in the 1st and 2nd Defendant’s name over the suit land and henceforth but WITHIN 45 DAYS of this Judgment issue a new title in the name of the Plaintiff's name.

(e)   THAT the 1st, 2nd, 3rd & 4th Defendants shall jointly and severally pay the Plaintiff general damages in the sum of Kenya Shillings Five Million (Kshs. 5,000,000/-) for the fraud and administrative negligence which sum should be settled WITHIN 90 DAYS of the delivery of this Judgment; failure to which the Plaintiff shall be at liberty to apply to the Honourable Court for appropriate relief and/or legal action.

(f)   THAT the court awards the costs of litigation of the Amended Plaint to the Plaintiff to be borne jointly and severally by the 1st, 2nd, 3rd & 4th Defendants herein.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ……17TH ….. …………….DAY OF ………DECEMBER. 2025.

Judgement delivered in the presence of: -

a)   M/s. Daniel Disii – the Court Assistant.

b)   Mr. Nyangoro Advocate for the Plaintiff.

c)   No appearance for the 1st , 2nd , 3rd and 4th Defendants