Introduction
1. This suit was commenced by a plaint dated 28th June 2006 initially filed in the High Court at Machakos as Civil Case No. 63 of 2006. The same was subsequently transferred to this Court for hearing and determination.
2. The plaintiff stated that he is the defendant’s brother and the rightful owner of L.R. Mbooni/Iiani/236, lawfully acquired as inheritance from their forefathers. That while he was engaged in his wedding preparations and further studies overseas on 27th April 1982, the defendant fraudulently prepared a forged agreement purporting to have been signed by the plaintiff, claiming to have exchanged part of the suit property with a non-existent parcel described as Plot No. 64, thereby unlawfully causing the creation of L.R. No. Mbooni/Ilani/843 in the defendant’s favor.
3. He further alleged that the defendant forged his signature, presented the fraudulent agreement to the land registry, and subsequently encroached beyond the road of access demarcating their respective parcels. He contends that the defendant continues to occupy and use part of his land unlawfully and that he only discovered the fraud in 2002 when the document was produced by the defendant during a meeting with the area chief over the suit property.
4. The plaintiff sought the following orders:
a) An order directing the land registry, Makueni District, to cancel the aforesaid fraudulently created L.R Mbooni/Iiani/843 and its reinstatement to the plaintiff’s L.R No. Mbooni/Iani/236 and the rectification of the registers accordingly.
b) An order directed to the Land registrar Makueni to re-establish the true and genuine boundary between the plaintiff’s said L.R No. Mbooni/Iani/236 and the defendant, to wit, the road access.
c) Punitive and general damages for deliberate land fraud and forgery of the plaintiff’s signature.
d) Costs of the suit and interest.
5. The defendant filed a defence and counterclaim dated 20th July 2006 opposing the plaintiff’s claim. He averred that he was entitled to a share of parcel No. Mbooni/Iiani/236 and therefore was the registered owner of L.P No. Mbooni/Iiani/843 which land borders the plaintiff’s land. He stated that since the land extends to the defendant’s land, it was mutually agreed between the plaintiff and defendant, that to ease movement on the parcels of land, the defendant would surrender his L.P No. Mbooni/Iiani/843 to the plaintiff, who would likewise surrender a portion of similar acreage to the defendant, which land was bordering the defendant’s land. That thereafter, they voluntarily entered into a written agreement on or about 27th April 1982 and that parties took possession and utilized the exchanged portions of land since 1982. That he purchased parcel Mbooni/Iiani/843.
6. Further, he averred that he had sought to have the issue regularized before the lands registry, but the plaintiff continually failed to cooperate. He contended that the land known as L.R. No. Mbooni/Iiani/236 was ancestral land given to both parties by their father, Kivindu Ngila, and that its registration with the defendant’s permission because it would have been uneconomical for the land to be subdivided and that it was registered in the plaintiff’s sole name in trust for the plaintiff and the defendant jointly. He thus claimed entitlement to a share of the said land or, in the alternative, compensation equivalent to its value.
7. In his counterclaim, the defendant sought the following prayers:
a) A declaration that the land known as MBOONI / IIANI / 236 is ancestral land and was registered in plaintiff''s name on trust for himself and the defendant and the defendant is entitled to a share of the same or in the alternative the defendant is entitled to value of his share of the land in monetary terms.
b) An order to the Land Registrar to rectify the records in compliance with the terms of the agreement dated 27th April 1982.
c) Costs of this suit.
8. The matter was heard by way of viva voce evidence. The plaintiff presented a total of five witnesses, while the defence presented one witness. Witnesses adopted contents of their respective witness statements as their evidence in chief and produced their respective filed documents.
Plaintiff’s evidence.
9. PW1 was John Mwinzi Kivindu, the plaintiff herein. He testified that in 1971, he subdivided ancestral land with the defendant, his brother. He stated that L.R. No. Mbooni/Iiani/236 was ancestral land, while L.R. No. Mbooni/Iiani/237 had been jointly purchased by himself, the defendant, and one Alice Mulekye. Both parcels were of similar acreage, and it was agreed that the defendant would take possession of L.R. No. Mbooni/Iiani/237 while the plaintiff remained on L.R. No. Mbooni/Iiani/236, which he proceeded to develop.
10. He stated that later and upon inspection of the survey map, he discovered that parcel, L.R. No. Mbooni/Iiani/843, had been hived off from his land. That when he confronted the defendant, the latter claimed that the parcel had been gifted to him by their mother, a claim which the plaintiff disputed. The plaintiff denied ever entering into any land exchange agreement with the defendant and stated that upon discovering a forged agreement purporting such exchange, he lodged a complaint with the D.C.I.O. Makueni, who summoned the defendant, but he failed to appear thus prompting the filing of this suit. He produced Iiani registration map, adjudication record, Eombe Nthoka Katemi clan proceedings, application for boundary determination, demand notice, land certificate and photographs.
11. PW2 was Maithya Nthuku Mwei, who knew both the plaintiff and defendant as they came from the same clan. He stated that on 9th December 2003, a clan meeting was convened at the plaintiff’s home to inquire into how L.R. No. Mbooni/Iiani/843 was created from L.R. No. Mbooni/Iiani/236. The defendant stated that the parcel had been gifted to him by their mother during his wedding in 1969. That the clan sought clarification from Alice Mulekye, the mother to both parties, who was also present, and she denied ever gifting any land to the defendant. That a further witness, Monica Yula, who had attended the said wedding, told the clan committee that she never heard the mother gift the land to the defendant.
12. PW3 was Peter Mutua, the secretary to Tulimani Divisional the Aombe Nthoka Katemi clan. He stated that on 9th December 2003, a meeting was held and he noted down all the proceedings, which he produced in evidence before the court.
13. PW4 was David Kasyoka Ngumbi, a family elder. He testified that in 2002, the plaintiff and defendant called him, together with two other elders, regarding a boundary dispute of uprooted sisals. That the defendant produced a letter written in the local ‘Kamba’ dialect purporting to show that an exchange of land had taken place between the parties. The witness testified that the letter was unfamiliar to the elders present, and the land parcel number indicated therein did not appear on the official survey map. That he later recorded a statement with a C.I.D. officer in Wote concerning the alleged agreement and served summons upon the defendant as instructed.
14. PW5 John Kioko Kiala, a cousin to both parties, testified that prior to the survey, the suit land was divided between his father, Kiala Ngila, and his elder brother, Isaac Kimuyu. That since the plaintiff and defendant had no land at the time, Isaac Kimuyu gave them his portion and relocated to another parcel in Nzaui. That later on in the 1970s, the clan merged the ancestral portions and subdivided them among Kiala Ngila, Kimuyu Ngila, and Kivindu Ngila. That thereafter, a survey was done and the portion jointly held by Kimuyu Ngila and Kivindu Ngila was given one number and allocated to the plaintiff and defendant. He testified that a portion described as Plot No. 64 was later created by the defendant out of the plaintiff’s share of land, and upon inquiry, the defendant claimed to have bought it. That marked the close of the plaintiff’s case.
Defendant’s evidence
15. DW1 was the defendant. He testified that on 6th February 1971, their father together with their uncles, Isaac Kimuyu Ngila and Kiala Ngila, summoned the Aombe Nthoka Katemi clan elders to subdivide the ancestral land. That the clan divided the land into equal portions, each measuring 83 steps, and the three brothers planted sisal plants to demarcate the boundaries, with the exercise recorded in the clan’s records as an agreement. That on the same day, his uncle Isaac Kimuyu Ngila sold to him his portion of land for Kshs. 2,058/=, whereof he paid Kshs. 1,008/- immediately. The uncle had received dowry for their sister Yula, valued at Kshs. 820/=, which was taken into account as part of the consideration. That he later paid the remaining balance of Kshs. 230/= on 6th September 1971.
16. He stated that in 1973, the said Isaac Kimuyu filed a claim against him before the Land Control Board at Tawa, alleging ownership of the same parcel, but the Board dismissed the claim and ordered the uncle to pay him Kshs. 400/= as damages. That thereafter, the defendant moved to L.R. No. Mbooni/Iiani/237, which he had purchased, while the plaintiff remained on Mbooni/Iiani/236. He asserted that Mbooni/Iiani/236 included both his inheritance from their father and the portion he bought from his uncle, as the two parcels were adjacent to each other. That despite his request for formal subdivision to obtain his rightful inheritance, the plaintiff declined. That when survey was later conducted, the plaintiff, allegedly in collusion with unknown persons, caused the entire parcel including his portion to be registered in his (plaintiff’s) name.
17. He maintained that land parcel Mbooni/Iiani/843, registered in his name, was lawfully his, having been created after mutual adjustments with the plaintiff to facilitate access and movement between their respective parcels; and accused the plaintiff of attempting to unlawfully deprive him of his rightful property. He produced land certificate for parcel No. 843, agreement dated 27/04/1982, letters from the land adjudication officer Machakos and minutes of the clan meeting. In cross examination he stated that he did not know parcel No. 843 as the same was being occupied by the plaintiff. That he did not know who was on parcel No. 237 as he lives on the land he bought which is either parcel No. 267 or parcel No. 237. That parcel No. 236 was family land, which is supposed to be shared between himself, the plaintiff and their sister. That he did not know the agreement dated 27/4/1982 although his signature was on the agreement. He denied ever exchanging land with the plaintiff. That he was given parcel No. 843 as a gift by his mother when he got married. That they refused to take part in the Aombe clan meeting of 9/12/2003 and that he did not accept to be bound by the decision of the clan. That marked the close of the defence case.
18. The court directed parties to file and exchange written submissions in support of their respective cases. On record are submissions dated 11th July 2025, filed by the plaintiff. No submissions were filed by the defendant.
Plaintiff’s submissions.
19. Counsel for the plaintiff submitted that the plaintiff sought cancellation of L.R. No. Mbooni/Iiani/843 and reinstatement of the acreage to L.R. No. Mbooni/Iiani/236, together with reestablishment of the boundary between his land, the access road, and the defendant’s parcel L.R. No. Mbooni/Iiani/237. Counsel argued that the creation of parcel No. 843 was fraudulent, having been founded on a forged land exchange agreement involving a non-existent Plot No. 64.
20. On evidence, counsel emphasized that all the plaintiff’s five witnesses corroborated his account and that their evidence, including minutes of the clan meeting held on 9th December 2003, confirmed that the parties’ mother never gifted the disputed parcel to the defendant.
21. Relying on Sections 26 and 80 of the Land Registration Act, counsel submitted that titles obtained through fraud or illegality are liable to cancellation and that this court has power to order rectification of the register. The court was urged to find that L.R. No. Mbooni/Iiani/843 was unlawfully created, and proceed to cancel it, rectify the register accordingly, and dismiss the defendant’s counterclaim with costs.
Analysis and determination.
22. The court has carefully considered the pleadings, evidence and submissions. The only issue that arise for the determination of the court is whether the parties herein have proved their respective claims.
23. Article 40 (1) and (6) of the Constitution of Kenya only provides protection of the right to own and acquire property which is lawfully acquired. Section 26 of the land registration Act grants absolute and indefeasible ownership to a registered proprietor unless it is proved that the registration was done by fraud, misrepresentation, want of procedure, illegality or corruption, whether or not the registered owner was party thereto.
24. Section 26 of the Land Registration Act provides for conclusiveness of title as follows;
Certificate of title to be held as conclusive evidence of proprietorship
(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b)Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
25. Section 107 of the Evidence Act places the burden of proof in a claim on the plaintiff. In this case therefore the plaintiff was obligated to prove his claim while the defendant was obligated to prove his counterclaim.
26. The plaintiff’s case is that he is the registered proprietor of parcel No. Mbooni/Iiani/236 and that on the pretext of a purported agreement for exchange of land, the defendant hived off a portion of land from the said property being parcel No. 843. Parties produced the title documents for parcel Nos. 236 and 843. The title for parcel No. 236 was registered on 30th October 1982 in the name of John Mwinzi Kivindu, and the same measures 6.6 hectares. On the other hand, parcel No. 843 was registered in the name of James Kitaka Ngila the defendant on 30th October 1982. Both parcels were first registered on 30th October 1982. That being the case, the plaintiff’s contention that parcel No. 843 is a subdivision of parcel No. 236 is not correct. If the subdivision occurred before adjudication, then the plaintiff should have challenged it within the land adjudication process which has several levels of dispute resolution mechanisms including the recording officer, demarcation officer, the surveyor, adjudication committee, arbitration board, adjudication officer and the “Minister”. Section 29 of the Land Adjudication Act makes the decision of the Minister final and not subject to appeal before the courts. For those reasons, I find and hold that the plaintiff did not prove his case on the required standard and therefore parcel No. Mbooni/Iiani/843 was neither part of parcel No. Mbooni/Iiani/236 nor created from the subdivision of parcel No. Mbooni/Iiani/236.
27. Regarding the defendant’s counterclaim he stated that the plaintiff held the suit property in trust for him.
28. Section 28 (b) of the Land Registration Act which mirrors Section 30 of Registered Land Act Cap 300(repealed) provides for overriding interests on registered land which includes trusts, as follows:
“Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register—
(a)………
(b)Trusts including customary trusts;”
29. Therefore, trusts including customary trusts are overriding interests on registered land, which, although not noted in the register, all registered land is subject to. Anyone claiming land based on trust, including customary trust, bears the burden of proving the existence of such trust.
30. In the case of Kamau v Thiga (Environment and Land Appeal 5 of 2021) [2022] KEELC 2839 (KLR) (21 July 2022) (Judgment) the court sated as follows;
The legal burden of proving existence of trust rests with the one who is asserting a right under customary trust. To discharge this burden, the person claiming must prove that;
• The suit properties were ancestral land;
• During adjudication and consolidation, one member of the family was designated to hold on behalf of the family;
• The registered persons were the designated family members who were registered to hold the parcels of land on behalf of the family. In essence he had to lay bare the root of the title to create the nexus or link of the trust to the title holder and the claimant.
31. Similarly, in the case of Isack Kieba Mínanga v Isaaya Theuri M’Lintari & Another [2018] e KLR, the Supreme Court of Kenya explained customary trust as follows;
“Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are: are:1.The land in question was before registration, family, clan or group land.2.The claimant belongs to such family, clan, or group3.The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.4.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.5.The claim is directed against the registered proprietor who is a member of the family, clan or group.”
32. Essentially, to prove customary trust, a claimant must demonstrate that;
a. The land in question was before registration, family, clan or group land.
b. The claimant belongs to such family, clan, or group.
c. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.
d. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances; and
e. The claim is directed against the registered proprietor who is a member of the family, clan or group.
33. From the evidence on record, the plaintiff stated that their parents had several pieces of land which was shared between them. The defendant confirmed that he was residing on parcel No. 237 and stated that his mother gifted him parcel No. 843 as a wedding gift. While it is not disputed that the suit property was originally family/ancestral land, the same is registered in the plaintiff’s name and exclusively in his possession. The defendant confirms to also have received a share of the ancestral land being parcel Nos. 237 and 843 as no evidence of purchase was provided. In the premises, I find and hold that the defendant failed to show that the suit property was held in trust for him.
34. For the above reasons I find and hold that the defendant failed to prove his counterclaim to the required standard which I hereby dismiss.
35. Ultimately, this court finds that both the plaintiff and the defendant failed to prove their respective claims to the required standard. In the premises, the plaintiff’s suit and the defendant’s counterclaim are hereby dismissed. In view of the fact that parties herein are siblings, I order that each party shall bear its own costs.
36. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 12TH DAY OF NOVEMBER 2025
In the presence of;
Mr. Mutiso for the plaintiff
No appearance for the defendant
Court Assistant- Delphine