Introduction
The Plaintiff commenced this suit vide a Plaint dated 12th November, 2014 against the Defendants seeking the following orders:
a) A declaration that the Plaintiff is the proper and registered owner the parcel described as NAKURU/MOI NDABI/1243 to the exclusion all others.
b) An injunction restraining the 1st and 2nd Defendants from encroaching, disposing, alienating and/or in any other manner dealing with the parcel described as NAKURU/MOI NDABI/1243.
c) An order revoking the Title referred to as NAIVASHA/MOI NDABI/1243
d) Costs
The Defendants on the other hand filed their Defence and Counter claim dated 15th May, 2015. They sought for the following orders:
a) A declaration that he is the Bonafide registered owner of the property known as Title Number Naivasha/Moi Ndabi/1243.
b) An Order of injunction to permanently restrain the Plaintiff and his agents from trespassing, meddling in any way whatsoever dealing in the property known as Naivasha/Moi Ndabi/1243.
c) An Order of Mandatory injunction to directing the Plaintiff and his agent to remove all the structures that have been illegally put up on the property known as Naivasha/Moi Ndabi/1243 forthwith and to meet the costs of its restoration to its original state.
d) Mesne profits
e) Costs
Plaintiff’s case
Julius Kandie Chesang testified as PW1. He produced his witness statement and list of documents dated 12th November, 2014. He also produced his further list of documents dated 7th February, 2017 and a survey map he filed on 3rd October, 2017.
He testified that he was the registered owner of LR No. Nakuru Moi Ndabi/1243 which he has been in possession from 17th July 2008. He further testified that on 18th October, 2014 he received a phone call from one of his neighbors who had inquired why he was selling the land without informing them. He testified that there were strange people who had visited his land and on 29th October, 2014, he did a search whose outcome yielded no fruits. He testified that he decided to file the present suit. He added that in his bundle of documents he had included a copy of search dated 2nd October, 2014 which showed Peter Kamau Mugo as the owner of the land. He testified that when he did not get a search on the property, he fenced the land and that was when the 1st Defendant appeared.
He testified that in 1994, he made an application to be allocated land to put up a school where he was allocated 25 acres vide a letter dated 7th February, 1995 from the PC’s office Rift Valley. He testified that he was shown the beacons for the land by the surveyor and was issued with a formal letter of offer from the Director of Land Adjudication and Settlement on 1st October 2001. He went on to testify that he then started pursuing title documentation. He testified that the estate manager assessed the amount payable Kshs. 450,210 which he paid vide a banker’s cheque and a receipt was issued on 27th November, 2007. He testified that the NIC bank vide letter dated 30th July, 2016 confirmed the banker’s cheque of 26th November, 2007 was from them and the beneficiary was SFT.
It was his testimony that after making the payment, they were advised to follow up their title from Nakuru lands office and he was ultimately issued a title in his name on 17th July, 2008. PPW1 was referred to the 2nd and 3rd defendants bundle of documents filed on 20th November, 2015 (Letter dated 3rd July, 2015). He testified that the letter acknowledged that allocation was made to him in 1994 but the same letter stated that there was reallocation done as per recommendation as per letter dated 13th August, 2013.
He was also referred to a letter dated 24th September, 2018 from the acting Director Lands Adjudication and Settlement where he testified that the letter confirmed that he paid Kshs. 450,210/= on 27th November, 2007. He added that the letter was addressed to the DCIO Naivasha. He further testified that the particulars of the land was shown on sheet no. 7 Moi Ndabi Settlement Scheme. He added that the survey map was annexed to the plaintiff’s supplementary bundle of documents (survey map 15th edition). He further testified that the parcel of land had not been subdivided. He also testified that his neighbor, the owner of 1243 did a subdivision and the same has a prefix of Naivasha Moi Ndabi.
PW1 was stood down in order to regularize his documents before cross examination.
Simon Ngumi Munyu, the Land surveyor based at ministry of Lands- Directorate of survey of Kenya testified as PW2. He testified that he was a Principal Land Surveyor with 9 years of service. He produced the survey Map covering Naivasha Moi Ndabi/1243. He also produced the RIM for Moi Ndabi settlement Scheme sheet No.7. He testified that the RIM related to Nakuru Moi Ndabi/1243. He further testified that there was only one settlement Scheme Moi Ndabi Nakuru. He went on to testify that the Map was prepared in October 1995 and it covered Nakuru Moi Ndabi settlement Schemes. It was his testimony that the settlement Schemes were named by District names and that from the investigations, the Scheme was established with an area list. He testified that Land parcel Nakuru Moi Ndabi/1243 was shown on the map on the bottom left and adjacent to L.R No.13043 and plot LR No.2518 was under RTA while LR No.13943 was RTA.
He testified that he was unable to locate title number Naivasha Moi Ndabi/1243. He further testified that Naivasha Moi Ndabi did not have a RIM. He explained that the first process involved survey and publication of the map and area list. He testified that the land registration section had to be designated by a map and area list. He added that it was the area list and the map that was used to open Green cards. He also testified that their records only related to Nakuru Moi Ndubi and not Naivasha Moi Ndabi. He testified that they had a registry in Nakuru before Naivasha registry was opened. He testified that there could not be any renaming of registration sections once the registration section was closed. He testified that the RIM produced in court was authentic. He added that it had recent amendments. He went on to testify that from the map produced in court, the suit property was present. He testified that the title held by the plaintiff in Nakuru was issued in accordance to the RIM and the area list. He produced the current RIM and an abstract of the area list covered parcel 1201 to 1300 as PEX 3 (a) & (b) respectively.
Upon cross examination by Cheruiyot for the 2nd and 3rd Defendants, PW1 admitted that the RIM did not show the total acreage of scheme. He stated that the area list indicated the size of the plot but not the owner. He confirmed that parcel Nakuru Moi Ndabi was shown to be 20.0 Hectares and that the map indicated the Scheme was in Nakuru district. He confirmed that the land was in Naivasha and that the schemes were designed referencing the district. He also stated that L.R No. 13043 bordered the scheme. He stated that title 2518 was part of Cheruiyot. He further stated that parcel 1243 was an original number and that after survey process and production of the area a list the process of registration commences.
Upon cross examination by Wanjeri for the 3rd Defendant, PW2 confirmed that a green card could not be issued without a Map having been published. He stated that the area list showed plot Nos, sizes and Map sheet number. He stated that the Land Registrar had to rely on the Map and area list for settlement schemes. He confirmed that the Director of settlement & Adjudication did the allocation.
Upon re-examination, PW2 stated that he would not be surprised if a title was issued for Naivasha Moi Ndabi if the registration section was Nakuru Moi Ndabi. He further stated that the RIM and Area list should be mirrored with what the survey process produced. He stated that he was not aware of any application for change of details of the registration details of the scheme.
PW1 was recalled where upon cross examination by Cheruiyot for the 1st and 2nd Defendant, he confirmed that he had applied for allocation of the plot. He admitted that he had not produced any application letter. He stated that he had produced a letter dated 7th February,1995 which only informed him that his request had been approved (PG 19 plaintiff’s bundle). He added that the approval was for 25 acres. He further stated that the title at page 15 of his bundle showed 20 hectares (approximately 50 acres). He also stated that the approval and the title related to the same land. He confirmed that the title was issued in 2008. He went on to state that he had visited the land in 1997. He confirmed that the offer letter was made in 2001 as per letter exhibited at page 10 of the bundle.
PW1 stated that they made the request through the provincial commissioner and that the Land officer was the one who was to process the title. He stated that the offer was for plot 1243 measuring 20 hectares. He also stated that they were required to pay within 12 months and added that he paid his in 2007 when the property was still there.
He stated that after payment of the land they processed the title and was issued with a receipt and a title in 2008. He further stated that he got the title from Nakuru Lands office. He also stated that he was not the one who followed up on issuance of title but his agent. He stated that the documents exhibited as 11 and 12 of the bundles emanated from the SFT. He added that he could not recollect paying stamp duty or having been issued with a discharge. He stated that his agent who worked at the land’s office gave him the title deed. He admitted that he had not conducted a post registration search. He also admitted that the ID No. indicated in the title was not his. He stated that he did not know whose ID/NO was indicated in his title. He stated that in the Naivasha criminal case he had been charged with theft and forgery by the 1st defendant.
PW1 was referred to letter at page 25 (plaintiff’s bundle) where he stated that the letter indicated he had paid for the plot. He stated that the DCIO letter dated 24th September, 2018 confirmed payment but stated that there was no evidence of how registration was done (no discharge of charge and transfer). He confirmed that the 1st defendants’ documents were the sequential form application to issue of title. (page 15- 37 1st defendants’ bundle).
PW1 stated that in 2014 when he wanted to fence the suit parcel, he discovered that there was another person interested in the land. He was referred to page 39 1st defendants bundle where he stated that the charge sheet indicated that he stole the 1st defendant fencing material through it was him who did the fencing.
He confirmed that the search dated 2nd October, 2014 showed that the 1st defendant was registered on 22nd July, 2014. He added that his attempt to do a search in October 2014 yielded no results. He further stated that he instituted the present suit late 2014. PW1 confirmed that he was still in occupation of the suit property. He added that prior to filing of the suit, he had a temporary structure and that he put up a fence in October 2014 after which the issues escalated resulting in the criminal case and the filing of the present case.
Upon cross examination by Ms Chepkirui, PW1 stated that they applied to be given land through the provincial commissioner and that the offer letter was from SFT. He confirmed that there were conditions attached to the offer. He admitted that he had no evidence that he made the payment within one year. He added that he was not aware whether the conditions were not met. He stated that the land would revert to SFT within one year. He stated that the documents were from the Lands office. He admitted that the letter did not have a letter head. He stated that Doc 2 had some alterations while Doc 3 had no letter head. He stated that the document had a date of 24th July, 2006 which he was supposed to pay from that date. He admitted that he did not have a certificate of outright purchase. He added that he has been in occupation of the suit property since 2004.
Upon cross examination, he stated that he made payments to SFT being Kshs. 450,210/= in 2014. He stated that the 1st Defendant’s title was issued in 2014. He was referred to page 32 of the 1st defendants bundle of documents where he stated that the letter was from Land Adjudication officer to the Land Registrar, Naivasha. He admitted that there was no response to the letter.
That marked the close of the Plaintiff’s case.
1st Defendant’s case
Peter Kamau Mbugua testified as DW1 where he produced his witness statement filed on 2nd November, 2016 which was adopted as his evidence in chief. The documents marked 1st DEX 1-1st DEX 17 were produced by consent. A letter dated 28th November, 2018 was marked as PMFI 18. He testified that he had a title and that they reported the matter to the police and his title document was found to be authentic. It was his testimony that the document examiner confirmed that the author of the signature on title by Plaintiff did not match the specimen signature. He testified that he had followed all procedures. He added that the letter dated 3rd July, 2015 was from the Director of Lands adjudication and settlement and addressed to Mr Wachira and the Attorney General office. He testified that the land was allocated to him.
Upon cross examination by Khaseke, he stated that the criminal case was concluded where the Plaintiff was acquitted. He further stated that he applied for and was offered the title. He added that his title was number Naivasha Moindosi/1243. He also stated that the description was different but the land was the same. DW1 stated that the adjudication officer confirmed the status of land from the land Registrar vide a letter dated 13th August, 2013. He stated that the offer was on 26th February, 2013. He stated that he paid by Bankers cheque on 7th October, 2013 Kshs. 325,280. He admitted that there was no receipt or acknowledgment of payment. He stated that from page 21 of the bundle of documents, the transfer of land amount was Kshs. 321,640. He admitted that the same was different from the amount in the cheque. He confirmed that he had not produced the survey maps. DW1 stated that his title was issued on 22nd July, 2014 while the Plaintiff’s title was issued on 17th July, 2008. He stated that the date was earlier than the date of his title.
Upon cross examination by Wanjeri, he stated that there was no one on the suit property but only had the fence. He denied that there was any building on the suit property. He added that he had not seen the green cards. He stated that he paid on 26th February, 2013 and stated fencing.
On re-examination, he stated that he had the authority to pay and that there was an acknowledgement from the adjudication and settlement officer. He further stated that the letter at page 25 of the bundle of documents was recalled.
That marked the close of the 1st Defendant’s case.
2nd and 3rd Defendant’s case
Wellangai John an officer with the state department of Lands and Settlement testified as 3rd DW1.
The court directed that they file a bundle of documents within 10 days.
That marked the close of the 1st and 2nd Defendant’s case.
Submissions
Counsel for the Plaintiff filed his submissions dated 19th November, 2025 where he identified seven issues for determination. The first issue was what is the correct description of the suit property herein? He submits that the Plaintiff claims that he is the registered owner of NAKURU/MOI NDABI/1243 whereas the 1st Defendant claims that he is the owner of NAIVASHA/MOI NDABI/1243. Counsel relied on the case of Kirima & another V Anastasio (Deceased) & Another [2024] KEELC 744 (KLR) and submits that the title number for the suit property even if it was issued from Naivasha Land Registry it would still be NAKURU/MOI NDABI/1243 as the RIM never changed. It was his submission that the proper description of the suit property was NAKURU/MOI NDABI/1243.
The second issue is whether the Plaintiff is the registered owner of the parcel of land in (i) above. Counsel submits in the affirmative and argues that there was evidence for the title for NAKURU/MOI NDABI/1243 in the Plaintiff’s name issued on 17th July, 2008. He further submits that the Plaintiff sufficiently demonstrated how he acquired the title a fact that was also corroborated by the land officials. He relied on the Court of Appeal case in Attorney General & 2 Others V Kenya Joinery Limited & 2 Others [2025] KECA 727 (KLR) and submits that the Plaintiff acquired an indefeasible title.
The third issue was whether or not the suit property was available for registration to the 1st Defendant. He submits that the letter dated 13th August, 2013 from the District Land Adjudication and Settlement Officer, Naivasha to the Land Registrar Naivasha sought to establish the status of Moi Ndabi Settlement Scheme plot 1243. He relied on the case of Safe Cargo Limited V Embakasi Properties Ltd & Others and argues that once land has been registered, it cannot again be registered to another person other than through transmission or transfer. He submits that the property having been allocated to the Plaintiff on 17th July, 2008, it was not available for reallocated to the 1st Defendant.
The fourth issue was whether the title number Naivasha/Moi Ndabi/1243 was lawfully and procedurally registered to the 1st Defendant. He submits that the 1st Defendant testified that he was registered as the owner of the suit property on 22nd January, 2014 and was issued with a letter of offer on 26th February, 2013. He further submits that the 1st Defendant was registered as the owner of NAIVASHA/MOI NDABI/1243 which property was non-existent as per the RIM. He cited that case of Mugo & 2 Others (Suing as Legal Representatives of the Estate of Samuel Kageni IIrungu) V Kariuki (Suing on behalf of Samuel Waithaka) [2023] KEELC 21054 (KLR).
The fifth issue was whether the issuance of Title Number NAIVASHA/MOI NDABI/1243 in favour of the 1st Defendant over the suit property was fraudulent. He submits in the affirmative and argues that none of the Defendants offered an explanation as to how the description of the suit property NAKURU/MOI NDABI/1243 as per the RIM changed to NAIVASHA/MOI NDABI/1243 when it was being purportedly registered in favour of the 1st Defendant. He relied on the Court of Appeal case in Denis Noel Mukhulo Ochwada & another V Elizabeth Murungari Njoroge & Another [2018] KECA 726 (KLR)
The sixth issue was whether the principle/maxim “first in time, stronger in law” is applicable. While submitting in the affirmative, counsel argues that since the Plaintiff’s title over the suit property came first in time should take precedence. He relied on the case of Mutkaa V Keitany [2023] KEELC 20697 (KLR) and Gitwany Investment Limited V Tajmal Limited & 3 Others [2006] eKLR.
The final issue was whether the 1st Defendant’s Counterclaim lacks merit. Counsel submits in the affirmative and argues that from the oral and documentary evidence adduced, the 1st Defendant’s claim to the suit property was untenable.
Counsel for the 1st Defendant filed his submissions dated 2nd December, 2025 where he identified three issues for determination. The first issue was whether there are two titles over the suit property. While submitting in the affirmative, he argues that there were two titles on the same land. It was his submission that from the letter dated 28th November, 2018 it stated that the land was Naivasha/Moi Ndabi/1243 in the Plaintiff’s name. He further submits that a search over the said parcel showed that the 1st Defendant was the owner of the suit parcel. Counsel submits that there was no record of the said parcel at the Lands Registry. He further submits that the Plaintiff sought for orders of amendment of the records at the registry to confirm the title he held. He submits that the 2nd and 3rd Defendants filed documents that were never produced in court but the same confirmed that the title was in the 1st Defendant’s name. He further submits that the Land surveyor (PW2) testified that there were two titles that existed in the same scheme. He submits that on cross examination, the surveyor could not point out the exact location of the property. He argues that from his testimony, it was evident that survey done when the scheme belonged to Nakuru and that when it moved to Naivasha, it was Naivasha/Moi Ndabi. He submits that from PW2’s evidence, it was not possible to for a green card to be issued without a survey map, he added that the green card available confirmed that the land was Naivasha/Moi Ndabi/1243. It was his submission that the title was issued to the 1st Defendant from the Naivasha registry after it moved from Nakuru.
The second issue was who is the rightful registered owner of the suit property. He submits that the Plaintiff claims that he was the registered owner vide an allotment letter dated 1st October, 2001. He submits that the allotment letter had conditions which the Plaintiff did not fulfil its payment within the stipulated timelines. He further submits that the Plaintiff confirmed that he had not complied with the requirements at SFT and that the ID number in his title did not match his ID. He submits that the 1st Defendant on the other hand complied with the entire allocation process. He added that the 2nd and 3rd Defendant’s documents confirmed that the 1st Defendant had been issued with an offer letter dated 26th February, 2012 which he accepted vide a letter dated 28th February, 2013. It was his submission that the Plaintiff took long to comply with the allotment letter and therefore it ceased to exist as it was incapable of being perfected. He relied on the Torino case, Dina Management Limited V County Government of Mombasa and the case of Rama V Munyua & 3 Others [2025] KEELC 8125 (KLR). Counsel submits that the process of the Plaintiff in obtaining its title was marred with technicalities. He added that the Plaintiff could not be the rightful owner by virtue of holding a con-complied allotment letter and title.
The third issue was whether the two warring parties have proved their cases. It was his submission that the Plaintiff failed to establish that he was the rightful registered proprietor of the suit land. He submits that the 1st Defendant on the other hand established the root of his title which evidence was backed by the evidence of the 2nd Defendant’ Land adjudication and Settlement.
In conclusion he relied on the case of Funzi Development Ltd & Others V County Council of Kwale, Msa Civil Appeal No. 252 of 2005 (2014) eKLR. He urged the court not to give its approval to an irregularly acquired title as held by the Plaintiff. He further urged the court to allow the 1st Defendant’s Counter claim as prayed.
Analysis and Determination
This court has considered the pleadings, evidence on record and submissions and is of the view that the following issues need to be determined:
a) Whether or not properties Nakuru/Moi Ndabi/1243 and Naivasha/Moi Ndabi/1243 are one and the same.
b) Who is the legal owner of the suit property?
c) Whether the Plaintiff is entitled to the orders sought.
d) Whether the 1st Defendant’s counterclaim is merited.
Whether or not properties Nakuru/Moi Ndabi/1243 and Naivasha/Moi Ndabi/1243 are one and the same.
It is not in dispute that there were two titles, one in the Plaintiff’s name being Nakuru/Moi Ndabi/1243 and the other in the 1st Defendant’s name being Naivasha/Moi Ndabi/1243. It is also not in dispute that both measured 20ha. PW2, the Lands Surveyor produced the RIM for Moi Ndabi settlement Scheme. It was his testimony that the settlement Schemes were named by District names and that the Scheme was established with an area list.
He confirmed that they had a registry in Nakuru before Naivasha registry was opened. He further confirmed that there could not be any renaming of registration sections once the registration section was closed. I have perused the court record and it is a fact that from the initial letters of request and acceptance from the Land Adjudication and Settlement scheme as produced by both the Plaintiff and 1st Defendant, refer to one property, Moi Ndabi Settlement Scheme. It is this court’s view that from the surveyor’s testimony, it was evident that the initial registry was in Nakuru prior to one having been later established in Naivasha. It is my view that that the renaming might have occurred after a new registry was opened in Naivasha, but the number and acreage was the same. It is therefore this court’s view that the two properties are one and the same.
Who is the legal owner of the suit property?
It is not in dispute that both the Plaintiff and 1st Defendant produced before this court two titles for the same property. It was the Plaintiff’s case that in 1994, he made an application to be allocated the suit land and he was successfully allocated 25 acres vide a letter dated 7th February, 1995 from the PC’s office Rift Valley. He also testified that he was shown the beacons for the land by the surveyor and was issued with a formal letter of offer from the Director of Land Adjudication and Settlement on 1st October 2001. PW1 testified that he made payments of Kshs. 450,210/= on 27th November, after which a title was issued in his name on 17th July, 2008. On cross examination, PW1 confirmed that the offer letter was made in 2001 where he was required to pay within 12 months. He admitted that he paid in 2007. The Plaintiff admitted that he could not recall having paid stamp duty or having been issued with a discharge. He also admitted that he had not conducted a post registration search. He further admitted that the ID No. indicated in the title was not his.
The 1st Defendant on the other hand testified that he had applied to be allocated the suit property and that he followed the due process. He produced from his bundle of documents application letter for allocation, offer and acceptance letter, cheque, stamp duty payment and receipt, transfer and discharge of charge, copy of title, search and payment receipts and letter dated 13th August, 2013 and marked as 1st DEX 1- 1st DEX11.
Section 107 of the Evidence Act provides:
“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”
Section 109 of the same Act 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 by any law that the proof of the fact shall lie on any particular person.”
It is not in dispute that both the Plaintiff and 1st Defendant claimed that they were the registered allottees of the suit land. It is trite law that he who alleges must prove and therefore, the burden of proof to prove ownership was on each of them to successfully discharge it.
From the evidence and testimony adduced, it was clear that the Plaintiff having been allotted the suit parcel, had to fulfil the conditions of payment stipulated within 12 months. He admitted that he did not do so within the said period. It was also a provision of the allotment letter that in the event of default, the suit property would be reallocated to another person without notice.
In the case of Dr. Joseph N.K. Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others C.A.60/1997, the Court of Appeal held as follows:
“It has been held severally that a letter of allotment per se is nothing but invitation to treat. It does not constitute a contract between the offerer and the offeree and does not confer interest in land at all. It cannot thus be used to defeat a title of a person who is the registered proprietor of the said parcel of land.”
Further, in the case of Ravji Karsan Sangani V Peter Gakunu [2019] eKLR, the court held;
“It is registration of title that confers rights of ownership to a proprietor of land. A letter of allotment does not confer rights of ownership but is merely a conditional offer of the land to the allottee subject to the allottee satisfying the terms and conditions of the allotment. The allotment can be revoked and/or cancelled before the title to the land is processed and issued in the name of the allottee. It is only after one has adhered to the requirements set out in the Letter of Allotment and is subsequently registered and issued with title that one acquires an absolute and indefeasible proprietary interest in the land.”
In the instant case, it is not in dispute that the Plaintiff did not meet the conditions in the letter dated 1st October, 2001 within the stipulated time of 12 months. PW1 expressly admitted that he paid in 2007 which was after the set-out period in the allotment letter. It was also evident that the suit parcel was reallocated to the 1st Defendant who proceeded to secure the title in his name.
Section 26(1) of the Land Registration Act provides that:
“…the certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
a) on the ground of fraud or misrepresentation to which the person is proved to be a party
b) Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”
In the case of Torino Enterprises Limited V Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) the Supreme Court held that:
“So, can an allotment letter pass good title? It is settled law that an allotment letter is incapable of conferring interest in land, being nothing more than an offer, awaiting the fulfilment of conditions stipulated therein…
Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling the conditions therein. These conditions include but are not limited to, the payment of a stand premium and ground rent within prescribed timelines. But even after the perfection of an allotment letter through the fulfillment of the conditions stipulated therein, an allottee cannot pass valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter.”
It is this court’s view that the Plaintiff failed to explain the root of his title while the 1st Defendant on the other hand successfully explained the root of his title. This court therefore finds that the 1st Defendant is the lawful owner of the suit property.
Whether the Plaintiff is entitled to the orders sought.
Having established that the Plaintiff failed to prove his case on a balance of probabilities, he is therefore not entitled to the orders sought in his plaint.
Whether the 1st Defendant’s counterclaim is merited.
This court having found that the 1st Defendant has proved his case to the required standard, his counter claim is merited and thus entitled to the orders sought.
Consequently, this court enters judgment in the following terms:
a) A declaration that the 1st Defendant is the lawful owner of the parcel of land known as Naivasha/Moi Ndabi/1243.
b) An order be and is hereby issued directing the 2nd Defendant to cancel the title issued to the Plaintiff with respect to parcels of land known as Nakuru/Moi Ndabi/1243.
c) The 2nd Defendant be and is hereby directed and ordered to effect rectification of the registers of the parcel of land referred in (b) above to the 1st Defendant’s name.
d) An order of permanent injunction is hereby issued restraining the Plaintiff by himself, his agents and or servants from dealing in any way with the parcel of land known as Naivasha/Moi Ndabi/1243.
e) Each party shall bear the costs of the suit.
It is so ordered.
The Plaintiff commenced this suit vide a Plaint dated 12th November, 2014 against the Defendants seeking the following orders:
a) A declaration that the Plaintiff is the proper and registered owner the parcel described as NAKURU/MOI NDABI/1243 to the exclusion all others.
b) An injunction restraining the 1st and 2nd Defendants from encroaching, disposing, alienating and/or in any other manner dealing with the parcel described as NAKURU/MOI NDABI/1243.
c) An order revoking the Title referred to as NAIVASHA/MOI NDABI/1243
d) Costs
The Defendants on the other hand filed their Defence and Counter claim dated 15th May, 2015. They sought for the following orders:
a) A declaration that he is the Bonafide registered owner of the property known as Title Number Naivasha/Moi Ndabi/1243.
b) An Order of injunction to permanently restrain the Plaintiff and his agents from trespassing, meddling in any way whatsoever dealing in the property known as Naivasha/Moi Ndabi/1243.
c) An Order of Mandatory injunction to directing the Plaintiff and his agent to remove all the structures that have been illegally put up on the property known as Naivasha/Moi Ndabi/1243 forthwith and to meet the costs of its restoration to its original state.
d) Mesne profits
e) Costs
Plaintiff’s case
Julius Kandie Chesang testified as PW1. He produced his witness statement and list of documents dated 12th November, 2014. He also produced his further list of documents dated 7th February, 2017 and a survey map he filed on 3rd October, 2017.
He testified that he was the registered owner of LR No. Nakuru Moi Ndabi/1243 which he has been in possession from 17th July 2008. He further testified that on 18th October, 2014 he received a phone call from one of his neighbors who had inquired why he was selling the land without informing them. He testified that there were strange people who had visited his land and on 29th October, 2014, he did a search whose outcome yielded no fruits. He testified that he decided to file the present suit. He added that in his bundle of documents he had included a copy of search dated 2nd October, 2014 which showed Peter Kamau Mugo as the owner of the land. He testified that when he did not get a search on the property, he fenced the land and that was when the 1st Defendant appeared.
He testified that in 1994, he made an application to be allocated land to put up a school where he was allocated 25 acres vide a letter dated 7th February, 1995 from the PC’s office Rift Valley. He testified that he was shown the beacons for the land by the surveyor and was issued with a formal letter of offer from the Director of Land Adjudication and Settlement on 1st October 2001. He went on to testify that he then started pursuing title documentation. He testified that the estate manager assessed the amount payable Kshs. 450,210 which he paid vide a banker’s cheque and a receipt was issued on 27th November, 2007. He testified that the NIC bank vide letter dated 30th July, 2016 confirmed the banker’s cheque of 26th November, 2007 was from them and the beneficiary was SFT.
It was his testimony that after making the payment, they were advised to follow up their title from Nakuru lands office and he was ultimately issued a title in his name on 17th July, 2008. PPW1 was referred to the 2nd and 3rd defendants bundle of documents filed on 20th November, 2015 (Letter dated 3rd July, 2015). He testified that the letter acknowledged that allocation was made to him in 1994 but the same letter stated that there was reallocation done as per recommendation as per letter dated 13th August, 2013.
He was also referred to a letter dated 24th September, 2018 from the acting Director Lands Adjudication and Settlement where he testified that the letter confirmed that he paid Kshs. 450,210/= on 27th November, 2007. He added that the letter was addressed to the DCIO Naivasha. He further testified that the particulars of the land was shown on sheet no. 7 Moi Ndabi Settlement Scheme. He added that the survey map was annexed to the plaintiff’s supplementary bundle of documents (survey map 15th edition). He further testified that the parcel of land had not been subdivided. He also testified that his neighbor, the owner of 1243 did a subdivision and the same has a prefix of Naivasha Moi Ndabi.
PW1 was stood down in order to regularize his documents before cross examination.
Simon Ngumi Munyu, the Land surveyor based at ministry of Lands- Directorate of survey of Kenya testified as PW2. He testified that he was a Principal Land Surveyor with 9 years of service. He produced the survey Map covering Naivasha Moi Ndabi/1243. He also produced the RIM for Moi Ndabi settlement Scheme sheet No.7. He testified that the RIM related to Nakuru Moi Ndabi/1243. He further testified that there was only one settlement Scheme Moi Ndabi Nakuru. He went on to testify that the Map was prepared in October 1995 and it covered Nakuru Moi Ndabi settlement Schemes. It was his testimony that the settlement Schemes were named by District names and that from the investigations, the Scheme was established with an area list. He testified that Land parcel Nakuru Moi Ndabi/1243 was shown on the map on the bottom left and adjacent to L.R No.13043 and plot LR No.2518 was under RTA while LR No.13943 was RTA.
He testified that he was unable to locate title number Naivasha Moi Ndabi/1243. He further testified that Naivasha Moi Ndabi did not have a RIM. He explained that the first process involved survey and publication of the map and area list. He testified that the land registration section had to be designated by a map and area list. He added that it was the area list and the map that was used to open Green cards. He also testified that their records only related to Nakuru Moi Ndubi and not Naivasha Moi Ndabi. He testified that they had a registry in Nakuru before Naivasha registry was opened. He testified that there could not be any renaming of registration sections once the registration section was closed. He testified that the RIM produced in court was authentic. He added that it had recent amendments. He went on to testify that from the map produced in court, the suit property was present. He testified that the title held by the plaintiff in Nakuru was issued in accordance to the RIM and the area list. He produced the current RIM and an abstract of the area list covered parcel 1201 to 1300 as PEX 3 (a) & (b) respectively.
Upon cross examination by Cheruiyot for the 2nd and 3rd Defendants, PW1 admitted that the RIM did not show the total acreage of scheme. He stated that the area list indicated the size of the plot but not the owner. He confirmed that parcel Nakuru Moi Ndabi was shown to be 20.0 Hectares and that the map indicated the Scheme was in Nakuru district. He confirmed that the land was in Naivasha and that the schemes were designed referencing the district. He also stated that L.R No. 13043 bordered the scheme. He stated that title 2518 was part of Cheruiyot. He further stated that parcel 1243 was an original number and that after survey process and production of the area a list the process of registration commences.
Upon cross examination by Wanjeri for the 3rd Defendant, PW2 confirmed that a green card could not be issued without a Map having been published. He stated that the area list showed plot Nos, sizes and Map sheet number. He stated that the Land Registrar had to rely on the Map and area list for settlement schemes. He confirmed that the Director of settlement & Adjudication did the allocation.
Upon re-examination, PW2 stated that he would not be surprised if a title was issued for Naivasha Moi Ndabi if the registration section was Nakuru Moi Ndabi. He further stated that the RIM and Area list should be mirrored with what the survey process produced. He stated that he was not aware of any application for change of details of the registration details of the scheme.
PW1 was recalled where upon cross examination by Cheruiyot for the 1st and 2nd Defendant, he confirmed that he had applied for allocation of the plot. He admitted that he had not produced any application letter. He stated that he had produced a letter dated 7th February,1995 which only informed him that his request had been approved (PG 19 plaintiff’s bundle). He added that the approval was for 25 acres. He further stated that the title at page 15 of his bundle showed 20 hectares (approximately 50 acres). He also stated that the approval and the title related to the same land. He confirmed that the title was issued in 2008. He went on to state that he had visited the land in 1997. He confirmed that the offer letter was made in 2001 as per letter exhibited at page 10 of the bundle.
PW1 stated that they made the request through the provincial commissioner and that the Land officer was the one who was to process the title. He stated that the offer was for plot 1243 measuring 20 hectares. He also stated that they were required to pay within 12 months and added that he paid his in 2007 when the property was still there.
He stated that after payment of the land they processed the title and was issued with a receipt and a title in 2008. He further stated that he got the title from Nakuru Lands office. He also stated that he was not the one who followed up on issuance of title but his agent. He stated that the documents exhibited as 11 and 12 of the bundles emanated from the SFT. He added that he could not recollect paying stamp duty or having been issued with a discharge. He stated that his agent who worked at the land’s office gave him the title deed. He admitted that he had not conducted a post registration search. He also admitted that the ID No. indicated in the title was not his. He stated that he did not know whose ID/NO was indicated in his title. He stated that in the Naivasha criminal case he had been charged with theft and forgery by the 1st defendant.
PW1 was referred to letter at page 25 (plaintiff’s bundle) where he stated that the letter indicated he had paid for the plot. He stated that the DCIO letter dated 24th September, 2018 confirmed payment but stated that there was no evidence of how registration was done (no discharge of charge and transfer). He confirmed that the 1st defendants’ documents were the sequential form application to issue of title. (page 15- 37 1st defendants’ bundle).
PW1 stated that in 2014 when he wanted to fence the suit parcel, he discovered that there was another person interested in the land. He was referred to page 39 1st defendants bundle where he stated that the charge sheet indicated that he stole the 1st defendant fencing material through it was him who did the fencing.
He confirmed that the search dated 2nd October, 2014 showed that the 1st defendant was registered on 22nd July, 2014. He added that his attempt to do a search in October 2014 yielded no results. He further stated that he instituted the present suit late 2014. PW1 confirmed that he was still in occupation of the suit property. He added that prior to filing of the suit, he had a temporary structure and that he put up a fence in October 2014 after which the issues escalated resulting in the criminal case and the filing of the present case.
Upon cross examination by Ms Chepkirui, PW1 stated that they applied to be given land through the provincial commissioner and that the offer letter was from SFT. He confirmed that there were conditions attached to the offer. He admitted that he had no evidence that he made the payment within one year. He added that he was not aware whether the conditions were not met. He stated that the land would revert to SFT within one year. He stated that the documents were from the Lands office. He admitted that the letter did not have a letter head. He stated that Doc 2 had some alterations while Doc 3 had no letter head. He stated that the document had a date of 24th July, 2006 which he was supposed to pay from that date. He admitted that he did not have a certificate of outright purchase. He added that he has been in occupation of the suit property since 2004.
Upon cross examination, he stated that he made payments to SFT being Kshs. 450,210/= in 2014. He stated that the 1st Defendant’s title was issued in 2014. He was referred to page 32 of the 1st defendants bundle of documents where he stated that the letter was from Land Adjudication officer to the Land Registrar, Naivasha. He admitted that there was no response to the letter.
That marked the close of the Plaintiff’s case.
1st Defendant’s case
Peter Kamau Mbugua testified as DW1 where he produced his witness statement filed on 2nd November, 2016 which was adopted as his evidence in chief. The documents marked 1st DEX 1-1st DEX 17 were produced by consent. A letter dated 28th November, 2018 was marked as PMFI 18. He testified that he had a title and that they reported the matter to the police and his title document was found to be authentic. It was his testimony that the document examiner confirmed that the author of the signature on title by Plaintiff did not match the specimen signature. He testified that he had followed all procedures. He added that the letter dated 3rd July, 2015 was from the Director of Lands adjudication and settlement and addressed to Mr Wachira and the Attorney General office. He testified that the land was allocated to him.
Upon cross examination by Khaseke, he stated that the criminal case was concluded where the Plaintiff was acquitted. He further stated that he applied for and was offered the title. He added that his title was number Naivasha Moindosi/1243. He also stated that the description was different but the land was the same. DW1 stated that the adjudication officer confirmed the status of land from the land Registrar vide a letter dated 13th August, 2013. He stated that the offer was on 26th February, 2013. He stated that he paid by Bankers cheque on 7th October, 2013 Kshs. 325,280. He admitted that there was no receipt or acknowledgment of payment. He stated that from page 21 of the bundle of documents, the transfer of land amount was Kshs. 321,640. He admitted that the same was different from the amount in the cheque. He confirmed that he had not produced the survey maps. DW1 stated that his title was issued on 22nd July, 2014 while the Plaintiff’s title was issued on 17th July, 2008. He stated that the date was earlier than the date of his title.
Upon cross examination by Wanjeri, he stated that there was no one on the suit property but only had the fence. He denied that there was any building on the suit property. He added that he had not seen the green cards. He stated that he paid on 26th February, 2013 and stated fencing.
On re-examination, he stated that he had the authority to pay and that there was an acknowledgement from the adjudication and settlement officer. He further stated that the letter at page 25 of the bundle of documents was recalled.
That marked the close of the 1st Defendant’s case.
2nd and 3rd Defendant’s case
Wellangai John an officer with the state department of Lands and Settlement testified as 3rd DW1.
The court directed that they file a bundle of documents within 10 days.
That marked the close of the 1st and 2nd Defendant’s case.
Submissions
Counsel for the Plaintiff filed his submissions dated 19th November, 2025 where he identified seven issues for determination. The first issue was what is the correct description of the suit property herein? He submits that the Plaintiff claims that he is the registered owner of NAKURU/MOI NDABI/1243 whereas the 1st Defendant claims that he is the owner of NAIVASHA/MOI NDABI/1243. Counsel relied on the case of Kirima & another V Anastasio (Deceased) & Another [2024] KEELC 744 (KLR) and submits that the title number for the suit property even if it was issued from Naivasha Land Registry it would still be NAKURU/MOI NDABI/1243 as the RIM never changed. It was his submission that the proper description of the suit property was NAKURU/MOI NDABI/1243.
The second issue is whether the Plaintiff is the registered owner of the parcel of land in (i) above. Counsel submits in the affirmative and argues that there was evidence for the title for NAKURU/MOI NDABI/1243 in the Plaintiff’s name issued on 17th July, 2008. He further submits that the Plaintiff sufficiently demonstrated how he acquired the title a fact that was also corroborated by the land officials. He relied on the Court of Appeal case in Attorney General & 2 Others V Kenya Joinery Limited & 2 Others [2025] KECA 727 (KLR) and submits that the Plaintiff acquired an indefeasible title.
The third issue was whether or not the suit property was available for registration to the 1st Defendant. He submits that the letter dated 13th August, 2013 from the District Land Adjudication and Settlement Officer, Naivasha to the Land Registrar Naivasha sought to establish the status of Moi Ndabi Settlement Scheme plot 1243. He relied on the case of Safe Cargo Limited V Embakasi Properties Ltd & Others and argues that once land has been registered, it cannot again be registered to another person other than through transmission or transfer. He submits that the property having been allocated to the Plaintiff on 17th July, 2008, it was not available for reallocated to the 1st Defendant.
The fourth issue was whether the title number Naivasha/Moi Ndabi/1243 was lawfully and procedurally registered to the 1st Defendant. He submits that the 1st Defendant testified that he was registered as the owner of the suit property on 22nd January, 2014 and was issued with a letter of offer on 26th February, 2013. He further submits that the 1st Defendant was registered as the owner of NAIVASHA/MOI NDABI/1243 which property was non-existent as per the RIM. He cited that case of Mugo & 2 Others (Suing as Legal Representatives of the Estate of Samuel Kageni IIrungu) V Kariuki (Suing on behalf of Samuel Waithaka) [2023] KEELC 21054 (KLR).
The fifth issue was whether the issuance of Title Number NAIVASHA/MOI NDABI/1243 in favour of the 1st Defendant over the suit property was fraudulent. He submits in the affirmative and argues that none of the Defendants offered an explanation as to how the description of the suit property NAKURU/MOI NDABI/1243 as per the RIM changed to NAIVASHA/MOI NDABI/1243 when it was being purportedly registered in favour of the 1st Defendant. He relied on the Court of Appeal case in Denis Noel Mukhulo Ochwada & another V Elizabeth Murungari Njoroge & Another [2018] KECA 726 (KLR)
The sixth issue was whether the principle/maxim “first in time, stronger in law” is applicable. While submitting in the affirmative, counsel argues that since the Plaintiff’s title over the suit property came first in time should take precedence. He relied on the case of Mutkaa V Keitany [2023] KEELC 20697 (KLR) and Gitwany Investment Limited V Tajmal Limited & 3 Others [2006] eKLR.
The final issue was whether the 1st Defendant’s Counterclaim lacks merit. Counsel submits in the affirmative and argues that from the oral and documentary evidence adduced, the 1st Defendant’s claim to the suit property was untenable.
Counsel for the 1st Defendant filed his submissions dated 2nd December, 2025 where he identified three issues for determination. The first issue was whether there are two titles over the suit property. While submitting in the affirmative, he argues that there were two titles on the same land. It was his submission that from the letter dated 28th November, 2018 it stated that the land was Naivasha/Moi Ndabi/1243 in the Plaintiff’s name. He further submits that a search over the said parcel showed that the 1st Defendant was the owner of the suit parcel. Counsel submits that there was no record of the said parcel at the Lands Registry. He further submits that the Plaintiff sought for orders of amendment of the records at the registry to confirm the title he held. He submits that the 2nd and 3rd Defendants filed documents that were never produced in court but the same confirmed that the title was in the 1st Defendant’s name. He further submits that the Land surveyor (PW2) testified that there were two titles that existed in the same scheme. He submits that on cross examination, the surveyor could not point out the exact location of the property. He argues that from his testimony, it was evident that survey done when the scheme belonged to Nakuru and that when it moved to Naivasha, it was Naivasha/Moi Ndabi. He submits that from PW2’s evidence, it was not possible to for a green card to be issued without a survey map, he added that the green card available confirmed that the land was Naivasha/Moi Ndabi/1243. It was his submission that the title was issued to the 1st Defendant from the Naivasha registry after it moved from Nakuru.
The second issue was who is the rightful registered owner of the suit property. He submits that the Plaintiff claims that he was the registered owner vide an allotment letter dated 1st October, 2001. He submits that the allotment letter had conditions which the Plaintiff did not fulfil its payment within the stipulated timelines. He further submits that the Plaintiff confirmed that he had not complied with the requirements at SFT and that the ID number in his title did not match his ID. He submits that the 1st Defendant on the other hand complied with the entire allocation process. He added that the 2nd and 3rd Defendant’s documents confirmed that the 1st Defendant had been issued with an offer letter dated 26th February, 2012 which he accepted vide a letter dated 28th February, 2013. It was his submission that the Plaintiff took long to comply with the allotment letter and therefore it ceased to exist as it was incapable of being perfected. He relied on the Torino case, Dina Management Limited V County Government of Mombasa and the case of Rama V Munyua & 3 Others [2025] KEELC 8125 (KLR). Counsel submits that the process of the Plaintiff in obtaining its title was marred with technicalities. He added that the Plaintiff could not be the rightful owner by virtue of holding a con-complied allotment letter and title.
The third issue was whether the two warring parties have proved their cases. It was his submission that the Plaintiff failed to establish that he was the rightful registered proprietor of the suit land. He submits that the 1st Defendant on the other hand established the root of his title which evidence was backed by the evidence of the 2nd Defendant’ Land adjudication and Settlement.
In conclusion he relied on the case of Funzi Development Ltd & Others V County Council of Kwale, Msa Civil Appeal No. 252 of 2005 (2014) eKLR. He urged the court not to give its approval to an irregularly acquired title as held by the Plaintiff. He further urged the court to allow the 1st Defendant’s Counter claim as prayed.
Analysis and Determination
This court has considered the pleadings, evidence on record and submissions and is of the view that the following issues need to be determined:
a) Whether or not properties Nakuru/Moi Ndabi/1243 and Naivasha/Moi Ndabi/1243 are one and the same.
b) Who is the legal owner of the suit property?
c) Whether the Plaintiff is entitled to the orders sought.
d) Whether the 1st Defendant’s counterclaim is merited.
Whether or not properties Nakuru/Moi Ndabi/1243 and Naivasha/Moi Ndabi/1243 are one and the same.
It is not in dispute that there were two titles, one in the Plaintiff’s name being Nakuru/Moi Ndabi/1243 and the other in the 1st Defendant’s name being Naivasha/Moi Ndabi/1243. It is also not in dispute that both measured 20ha. PW2, the Lands Surveyor produced the RIM for Moi Ndabi settlement Scheme. It was his testimony that the settlement Schemes were named by District names and that the Scheme was established with an area list.
He confirmed that they had a registry in Nakuru before Naivasha registry was opened. He further confirmed that there could not be any renaming of registration sections once the registration section was closed. I have perused the court record and it is a fact that from the initial letters of request and acceptance from the Land Adjudication and Settlement scheme as produced by both the Plaintiff and 1st Defendant, refer to one property, Moi Ndabi Settlement Scheme. It is this court’s view that from the surveyor’s testimony, it was evident that the initial registry was in Nakuru prior to one having been later established in Naivasha. It is my view that that the renaming might have occurred after a new registry was opened in Naivasha, but the number and acreage was the same. It is therefore this court’s view that the two properties are one and the same.
Who is the legal owner of the suit property?
It is not in dispute that both the Plaintiff and 1st Defendant produced before this court two titles for the same property. It was the Plaintiff’s case that in 1994, he made an application to be allocated the suit land and he was successfully allocated 25 acres vide a letter dated 7th February, 1995 from the PC’s office Rift Valley. He also testified that he was shown the beacons for the land by the surveyor and was issued with a formal letter of offer from the Director of Land Adjudication and Settlement on 1st October 2001. PW1 testified that he made payments of Kshs. 450,210/= on 27th November, after which a title was issued in his name on 17th July, 2008. On cross examination, PW1 confirmed that the offer letter was made in 2001 where he was required to pay within 12 months. He admitted that he paid in 2007. The Plaintiff admitted that he could not recall having paid stamp duty or having been issued with a discharge. He also admitted that he had not conducted a post registration search. He further admitted that the ID No. indicated in the title was not his.
The 1st Defendant on the other hand testified that he had applied to be allocated the suit property and that he followed the due process. He produced from his bundle of documents application letter for allocation, offer and acceptance letter, cheque, stamp duty payment and receipt, transfer and discharge of charge, copy of title, search and payment receipts and letter dated 13th August, 2013 and marked as 1st DEX 1- 1st DEX11.
Section 107 of the Evidence Act provides:
“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”
Section 109 of the same Act 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 by any law that the proof of the fact shall lie on any particular person.”
It is not in dispute that both the Plaintiff and 1st Defendant claimed that they were the registered allottees of the suit land. It is trite law that he who alleges must prove and therefore, the burden of proof to prove ownership was on each of them to successfully discharge it.
From the evidence and testimony adduced, it was clear that the Plaintiff having been allotted the suit parcel, had to fulfil the conditions of payment stipulated within 12 months. He admitted that he did not do so within the said period. It was also a provision of the allotment letter that in the event of default, the suit property would be reallocated to another person without notice.
In the case of Dr. Joseph N.K. Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others C.A.60/1997, the Court of Appeal held as follows:
“It has been held severally that a letter of allotment per se is nothing but invitation to treat. It does not constitute a contract between the offerer and the offeree and does not confer interest in land at all. It cannot thus be used to defeat a title of a person who is the registered proprietor of the said parcel of land.”
Further, in the case of Ravji Karsan Sangani V Peter Gakunu [2019] eKLR, the court held;
“It is registration of title that confers rights of ownership to a proprietor of land. A letter of allotment does not confer rights of ownership but is merely a conditional offer of the land to the allottee subject to the allottee satisfying the terms and conditions of the allotment. The allotment can be revoked and/or cancelled before the title to the land is processed and issued in the name of the allottee. It is only after one has adhered to the requirements set out in the Letter of Allotment and is subsequently registered and issued with title that one acquires an absolute and indefeasible proprietary interest in the land.”
In the instant case, it is not in dispute that the Plaintiff did not meet the conditions in the letter dated 1st October, 2001 within the stipulated time of 12 months. PW1 expressly admitted that he paid in 2007 which was after the set-out period in the allotment letter. It was also evident that the suit parcel was reallocated to the 1st Defendant who proceeded to secure the title in his name.
Section 26(1) of the Land Registration Act provides that:
“…the certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
a) on the ground of fraud or misrepresentation to which the person is proved to be a party
b) Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”
In the case of Torino Enterprises Limited V Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) the Supreme Court held that:
“So, can an allotment letter pass good title? It is settled law that an allotment letter is incapable of conferring interest in land, being nothing more than an offer, awaiting the fulfilment of conditions stipulated therein…
Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling the conditions therein. These conditions include but are not limited to, the payment of a stand premium and ground rent within prescribed timelines. But even after the perfection of an allotment letter through the fulfillment of the conditions stipulated therein, an allottee cannot pass valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter.”
It is this court’s view that the Plaintiff failed to explain the root of his title while the 1st Defendant on the other hand successfully explained the root of his title. This court therefore finds that the 1st Defendant is the lawful owner of the suit property.
Whether the Plaintiff is entitled to the orders sought.
Having established that the Plaintiff failed to prove his case on a balance of probabilities, he is therefore not entitled to the orders sought in his plaint.
Whether the 1st Defendant’s counterclaim is merited.
This court having found that the 1st Defendant has proved his case to the required standard, his counter claim is merited and thus entitled to the orders sought.
Consequently, this court enters judgment in the following terms:
a) A declaration that the 1st Defendant is the lawful owner of the parcel of land known as Naivasha/Moi Ndabi/1243.
b) An order be and is hereby issued directing the 2nd Defendant to cancel the title issued to the Plaintiff with respect to parcels of land known as Nakuru/Moi Ndabi/1243.
c) The 2nd Defendant be and is hereby directed and ordered to effect rectification of the registers of the parcel of land referred in (b) above to the 1st Defendant’s name.
d) An order of permanent injunction is hereby issued restraining the Plaintiff by himself, his agents and or servants from dealing in any way with the parcel of land known as Naivasha/Moi Ndabi/1243.
e) Each party shall bear the costs of the suit.
It is so ordered.