The pleadings
1. The plaintiff herein initiated this suit by submitting a plaint dated the 22nd day of August, 2013, seeking the eviction of the defendants from plot number 336, Shauri Moyo Settlement Scheme, measuring approximately 30 acres, together with associated costs. On 4th April, 2022, the plaintiff filed an amended plaint, and on 24th January, 2023, a reply to the defense and counterclaim.
2. The defendants submitted a defense and counterclaim dated the 25th day of May, 2021. In their counterclaim, the defendants seek the following reliefs: a declaration that the plaintiff’s registration and the subsequent issuance of title in respect to the suit property, Malindi/Shauri Moyo/336, are null and void; the revocation of the plaintiff’s title; and an order directing the Land Registrar, Kilifi, to issue deeds to the defendants’ respective portions as occupied. Additionally, they seek the award of costs for the suit and the counterclaim, along with interest on the amount specified at court rates. They also request any other relief that this Honourable Court may deem appropriate to grant under the circumstances.
Background
3. The plaintiff asserts that throughout the relevant period, the late Justus Nguma was the beneficial owner of Plot Number Malindi/Shauri Moyo/336, a 30-acre plot within the Shauri Moyo Settlement Scheme in Malindi.
4. That he acquired the same pursuant to it being adjudicated to him via a letter of offer dated 29th July, 1999, and subsequently a title deed issued in his favour on 21st June, 2019, by the Kenyan government.
5. On August 28th, 2013, Justus Nguma filed this suit against the defendants for trespassing on the suit property. Judgment was entered in the plaintiff’s favor on November 28th, 2014, because the defendants did not participate in the matter (Angote J.).
6. On 18th February, 2018, Justus Nguma passed on. After his demise on 18th February, 2018, his eldest son, Anthony Nguma Kalama, took over the conduct of this matter, having been granted letters of administration by the Honourable Court for the estate of his late father on 3rd August, 2018.
7. Subsequently, the defendants petitioned for the setting aside of the judgment, a request which was granted. The defendants submitted a response comprising a statement of defense and a counterclaim dated 25th May 2021, filed on 26th May 2021.
8. That sometime back, the plaintiff wanted to develop the suit property, but the defendants met that effort with hostility.
Plaintiff’s Case
9. On October 25, 2023, the plaintiff adduced evidence before the honorable court and stated that his late father was the beneficial owner of the suit property, having been awarded the property by the government vide a letter of offer dated July 29, 1999, and later a title deed on June 21, 2019. He has had the suit property since then and also grew up there.
10. After his father's death on February 18, 2018, he petitioned the court for letters of administration, which were granted to him on August 3, 2018.
11. The plaintiff also produced the following documents to authenticate and show all the steps taken to regularize his ownership of the suit property, as listed in a list of documents dated 22nd August, 2021, and a further list of documents dated 5th March, 2021, comprising the following documents: Copy of the Letter of Offer dated 29th July, 1999; Copies of Settlement Scheme Payments and Discharge of Charge; Copies of Payment Receipts dated 28th March, 2006 and 25th September, 2001; Copy of a letter from the Department of Adjudication confirming all payments made, dated 22nd November, 2011; Copy of the Title Deed issued on 21st June 2019; and Copy of the Official Search dated 18th February 2021. The plaintiff also produced rate payment receipts as evidence that he has been paying the same amount to the county council.
12. During cross-examination, he stated that he is the beneficial owner of the suit property, having inherited it from his late father, vide a grant issued by the court on 3rd August, 2018. He further stated that the suit property has always been his home and that he has been staying there ever since. The defendants only came to construct the said illegal structures and have no color of right to remain therein.
13. On February 1, 2024, one Maurice Kitsao Nguma, a brother of the plaintiff’s father, came to testify in support of the plaintiff’s case and stated that he had always known his late brother, Justus Nguma, to be the owner of the suit property, which the defendants later trespassed on. He further stated that he knows the defendants very well, especially the 1st defendant and his family. He also noted that the 1st defendant and his family were allocated another portion of land in the same area as the suit property. Still, they later sold it and subsequently trespassed on the suit property. Further, there was an agreement between his late brother, Justus Nguma, and the 1st defendant to vacate the suit property, and they were in fact paid Kshs 2,000/= to compensate them for the trees they had planted, vide an agreement dated 14th April, 2009, which was also produced as evidence herein.
Defendant’s Case
14. The defendants also adduced evidence before the Honorable Court on 18th February, 2025, and 1st April, 2025, as DW1-DW3. They stated that the suit property belonged to them, that they lived there, and that they had lived there ever since. The defendants also alleged that the plaintiff’s father. However, he acquired the suit property through adjudication, was a driver in the adjudication section at that time, and influenced the adjudication process to his own advantage and to the disadvantage of the defendants. They also stated that the plaintiff was not a resident of the area where the suit property was. They raised five grounds of fraud, namely that the plaintiff used his position and/or employment with the adjudication department to defraud the defendants; that the plaintiff influenced the adjudication team to exclude the suit property at the time of adjudication with the intention of defrauding the defendants; that the plaintiff caused his name to be captured in the adjudication register when he was not an original resident of the suit property; that the plaintiff was not born and brought up within the suit property or anywhere near it; and that the plaintiff fraudulently caused a title deed to be issued in his name in place of the defendants.
Analysis and determination
15. At the close of both the plaintiff's and the defendants' cases, I received written submissions from learned counsel for the plaintiff, Ms. Otieno, and from learned counsel for the defendants, Mr. Otara. I appreciated their efforts, as they went a long way toward helping the court reach the verdict.
16. Based on the evidence, materials, and submissions presented before me, I delineate the following issues for the court's consideration: whether the plaintiff has substantiated his claims in the plaint; whether the defendants have established their claims in the counterclaim; whether both parties are entitled to the reliefs sought; and which party should bear the costs of the litigation.
17. Both counsels for the parties submitted on the relevant law and judicial precedents applicable within the framework within which the causes of action, as seen by the parties, are embedded.
18. Ms. Otieno, for the plaintiffs, asserts that the defendants confirmed that the suit property was allocated to the plaintiff. A register was subsequently made to that effect; they never challenged the allocation, as per Section 26 of the Land Adjudication Cap 284, a clear indication that they were not objecting to the suit property being awarded to the plaintiff.
19. Conversely, Mr. Otara, representing the defendants, contends that Section 26 of the Land and Adjudication Act is inapplicable to this case because no such register has ever been made available to the defendants. Moreover, the defendants were advised to await the adjudication of their respective parcels at a later date, but that did not occur. The maxim 'he who alleges must prove' applies.
20. Before the enactment of the Land Act 2012, the legislative framework governing the establishment of a Settlement Scheme comprised the Agriculture Act, the repealed Registered Land Act, and associated regulations. The Land Settlement Fund Trustees, currently designated as the Land Settlement Fund, were constituted in 1963 under the Agriculture Regulations LN No. 352/1963, pursuant to the Agriculture Act, Cap 318. The Fund was supported by government allocations for land acquisition, which were subsequently planned, surveyed, subdivided, and allocated to landless Kenyans through loans or standard premiums.
21. These premiums were payable either in installments or as a lump sum; upon full repayment, ownership of the land was transferred to the allottee.
22. Applications were scrutinized by a committee, which then issued an offer letter. Upon inspecting the land, the applicant paid a 10% deposit or the full amount to the Land Settlement Fund. Conditions often accompanied the allocation, including fencing the land, constructing a dwelling, cultivating the land, and placing beacons.
23. If the conditions were not met, the land could be repossessed. Every parcel of land was issued a parcel number for planning and survey purposes. This parcel number was included in the offer letter. The settlement charge for a land loan was the amount the settlor or allottee was required to pay, either in installments or as a one-off, depending on the terms and conditions in the offer letter. Only after the loan was cleared and the amount paid could a title deed be issued.
24. Once the loan payment was made, a discharge of charge was prepared. Upon payment of the loan, a settler was issued receipts and statements. Further, the settlement officer would show the settlor the land to settle on. The payment was made in accordance with the number of acres offered. The documentation for an allottee included the area list, the file, and the maps, with the parcel number indicated. The allocation committee ordinarily maintained an accountability register for the allottees.
25. Allocation of land in a settlement scheme, therefore, means that the settlor had to be physically shown the land, and once satisfied, either pay the 10% deposit against the number provided or make a one-off payment. The settlement officer kept records of all plot numbers against the settlor's name. After documentation, the land remained the Settlement Fund Trustees' land until a settlor was discharged. A settlor was required to sign for the parcel number allocated to him as per his file number. The certificate of acceptance, duly signed by the settlor, could be found in the file number. A charge is a document that shows how the payment for the land is to be made.
26. Section 26 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; or
b.Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”
27. The defendants in the counterclaim alleged multiple grounds of fraud regarding the plaintiff's land acquisition. Fraud allegations must be explicitly pleaded and supported by proof, but none of these allegations were substantiated. The plaintiff's title was issued under an offer and in accordance with the conditions associated with the SFT program, which the plaintiff complied with. In contrast, no offer was extended to the defendants. The defendants claim they are awaiting an adjudication program, but this case concerns an SFT program, which operates under a different regime with its own procedures and specific conditions. Once a person has settled all conditions under an SFT program and the title is issued, it is good. See James Kiprono Tinego v Peter Khisa Musungu [2012] KEHC 1316 (KLR), where the court held:
“I am convinced that the Plaintiff fulfilled all the requirements and all his documents were in order. In the light of evidence of the District Settlement officers, I am obliged to find that the land was duly allotted to the Plaintiff and that he has good title.
Mr. Machio submitted that forfeiture should have been preceded by a notice as required the condition of issuance of the letter of allotment. I respectfully disagree with him. That notice could have been issued if there was a contract. If Alex Masuda had paid a deposit towards the acquisition of the land, there would have been a contract and the decision of this court may have been different. My view is that the evidence of PW2 and PW3 reinforces the argument that Alex Masuda was offered the land and forfeited once he failed to accept that offer.
It has been submitted that there is a family graves in the land and that the defendants were using the land for considerable period of time thinking that the land was theirs. The law has procedure and process to be adhered to which, neither this court nor the defendants can ignore without consequences. The Plaintiff adhered to and fulfilled all requirements of law. The Defendants ignored them instead and they have to suffer the consequence.
The role of this Court is to interpret the law as it is. I cannot make judgement based on my personal feeling or my sympathy towards the family of the late Peter Khisa Musungu. The law is very clear. The land is owned by the plaintiff who should get it back.”
28. Similar to the foregoing, the plaintiff is entitled to the suit property herein, as he has not only adduced before this court documents that made him the legal owner but has also illustrated to this honorable court the means by which he came to have the suit property, procedurally as required by law, including the letter of offer, payment of the requisite SFT fees, and issuance of the title, unlike the defendant, who has not presented any documents whatsoever to this honorable court affirming their legitimate right to the suit property, but merely facts that they reside at the suit property.
29. Consequently, the amended plaint succeeds, and the orders sought are granted with costs to the plaintiff; the defendants’ counterclaim is dismissed with costs.
Dated, signed, and delivered electronically in Malindi on December 11, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Otieno for the plaintiff
Mr.Otara for the Defendants
Jill: Court Assistant