(A)Introduction
1. Kennedy Kipkech Chebii (hereinafter referred to as the Plaintiff) has come to this court via plaint dated 11th April 2024 seeking a declaration that the plaintiff is the lawful proprietor and registered owner of the parcels of land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5.(hereinafter referred to as the suit properties)
2. Moreover, he seeks a declaration that Sylas Kipkosgei Tochima (hereinafter referred to as the 1st defendant) is a trespasser to the parcels of land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5.
3. Furthermore, a permanent injunction against all the defendants herein either by themselves, their agents, employees and/or servants from trespassing, entering, subdividing, allocating, occupying, selling, leasing, charging, transferring, fencing, erecting any structures or dealing in any way with the Plaintiff’s pieces of land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5 suit properties.
4. The plaintiff further seeks an order of cancelation of the Titles for the suit properties held in the name of the 1st Defendant herein Sylas Tochima and/or Joshua Kimoi Singoei and declaration that the same are products of fraud.
5. Lastly the plaintiff seeks an order of eviction of the 1st defendant and his agents from the suit properties in the event that they manage to get any possession of the same plus costs of this suit and interest.
6. The plaintiff contends that at all material times relevant to this suit the Plaintiff was and is the lawfully registered owner of the suit properties.
7. According to the plaintiff, he has been in continuous and peaceful use of the properties for over 29 years, having been allocated and having the same transferred to him in the year 1994. The suit properties are prime agricultural parcels valued at over Kshs200, 000,000/=. The 1st Defendant claims that he was gifted the Plaintiffs land by his father that is Joshua Kimoi Singoei in the year 2010, and to this effect he has manufactured fake deeds of gift.
8. The plaintiff urges that the 1st Defendant has further fraudulently manufactured title deeds of the suit properties belonging to the Plaintiff and on the basis of the said titles is attempting to invade the Plaintiff’s land.
9. The plaintiff insists that 1st Defendant’s titles have no root and emanate from nowhere. By the time the 1st Defendant’s fake deed of gift were being manufactured in the year 2010, the Plaintiff was already the registered owner of the property and the property was not up for any allocation. The Plaintiff had by this time already peacefully occupied the property for over 16 years and the records of his allocation are well captured in the original list of allotees as entry number 134 and 142 while neither the 1st Defendant nor his alleged father are captured in the list.
10. The plaintiff contends that on the basis of the fake titles, the 1st Defendant has been making countless trips to the Plaintiff’s property and bringing with him third parties to view the same and attempt to cultivate the same and destroy the Plaintiff’s already planted crops therein. The 1st Defendant actions are with the full blessings and supervision of the 3rd and 4th Defendants who apart from illegally bestowing themselves the power of adjudicating on the land disputes, have instructed the local administration to ensure that the 1st Defendant gains unlawful possession of the property.
11. The Plaintiff is thus apprehensive that unless the Defendants are restrained from perpetuating their fraudulent and illegal acts on the land, he will not be able to enjoy peaceful and quiet possession of the land and is likely to be deprived of his proprietary rights over the said property.
12. The Plaintiff claims to be a bona fide holder of title for value, of the suit properties, whose rights to own and enjoy the property are now threatened by fraudsters. Unless the Defendants are restrained from perpetuating the aforementioned illegal acts on the Plaintiff’s land will not be able to enjoy peaceful and quiet possession of the land.
13. The 2nd to 4th Defendants represented by the honourable Attorney General in a general denial, state that the suit property has not been transferred to anybody else and if it was done, the same was done legally.
14. The 1st Defendant filed a defence denying the plaintiff’s allegations in the plaint and further filed a counterclaim stating that at all material times he has been the registered owner of the parcels of land known as Certificate of Title in Land Reference Number and 16672/5.
15. According to the 1st defendant, he was gifted the said suit parcels of land by his father Joshua Kimoi Singoel(deceased) vide Deed of Gift agreements dated 27th January2010. The said parcels of land were the properties of Joshua Kimoi Singoel(deceased) to which he had title deeds dated 27th July 1995 The 1st defendant avers that after the Gift agreements dated 27th January, he proceeded to transfer the said parcels of land under his name and the same is confirmed as per the land's records vide Official Search Certificate dated 6th June, 2023.
16. The 1st defendant avers that after acquiring the original title deeds he took possession of the suit parcel of land immediately and started cultivating and developing the parcels and that he has been living peacefully without any interference from anybody until the plaintiff decided to invade the said parcels stating that he is the legal owner and stopped the 1st defendant from cultivating and developing the parcels further.
17. That the plaintiff has denied the 1st defendant peaceful access of his parcels of land by refusing him to cultivate or develop them any further
18. By reason of the aforesaid trespass and Invasion the 1st defendant has been deprived of the use and enjoyment of the said land and has suffered damage. According to the 1st defendant, the action by the plaintiff is unconstitutional unlawful, a trespass and caused the 1st defendant loss and damage
19. The 1st defendant avers that the plaintiff’s actions are unconstitutional, unlawful and fraudulent and the plaintiff in the counter-claim stands to suffer irreparable damages.
20. The 1st defendant prays for an order of temporary and permanent injunction do issue against the plaintiff whether by themselves, their servants and/or interfering with the parcels of Land known as Certificate of Title in Land Reference Number and 16672/5.
21. Moreover, an order directing the land registrar to register the 1st defendant as the sole proprietor of the parcel of land known as Certificate of 'Title in Land Reference Number 16672/2, 16672/3, 16672/4, and 16672/5.
22. Lastly, an order directing the Land registrar to cancel the title deed for the parcel of land known Certificate of Title in Land Reference Number 16672/5 issued on the name of the plaintiff. Plus Costs and interest of the suit and damages for trespass.
(B) Site visit and Hearing
23. This court ordered for a site visit by the Deputy Registrar. The order was made on 9.5.2024. The Deputy Registrar visited on 8.8.2024 and found that there was no one in occupation. However, section of the land had Boma, Rhodes grass and wheat planted by the plaintiff. There was some partially demolished temporary structures alleged to be storage for hay.
24. When the matter came up for hearing, the plaintiff, a medical doctor by training testified as PW1 and adopted his statement as evidence in chief. The import of the statement is that he owns the suit properties being the registered owner and has been in occupation since 1994. He was allocated the property by the Agricultural Development Corporation in the year 1994. The 1st Defendant invaded the property in 2023 without any justification. The plaintiff produced a certified copy of the extract of the register indicating that he was the registered owner of the suit property.
25. The 1st Defendant, Sylas Kipkosgei Tochima on the other hand testified in response that he is the registered owner of the suit property and has planted wheat. There are 4 parcels of land 16672/ (2), (3), (4), (5). The land was purchased by his father Joshua Singoei. His father gifted to him the land.
26. In cross-examination, Mr Okiro learned counsel for the plaintiff put it to him that his documents were manufactured in a cyber café to which he replied that the land was purchased by his father in 1995.
(C) Submissions
27. The plaintiff submits that there is no way that the Agricultural Development Corporation could issue two allotment letters for the same parcel of land and that if, in any unlikely event, the Agricultural Development Corporation did issue two allotment letters for the same land, the first allotee should be given preference and the second allottee should seek redress from the Agricultural Development Corporation.
28. The plaintiff cites the case of Choi & 3 others v Goldstein Group Sewices Limited & 2 others (2025) eKLR quoted with approval the Court of Appeal in Waterfront Holdings Limited vs Kandie & 2 Others [2023] KECA 1223 (KLR) where the Court restated the principle that where allotments are made to two competing parties, the party that fulfils the conditions of the offer first in time prevails:
a. "Where an allotment is made to two competing parties one of whom pays for the allotment before the other one, prevails it was clear that the 1st appellant had allotted the suit land to both the respondent and the 2nd appellant hence the learned Judge 's conclusion that there was a double allocation. That being the case, since the respondent was first in time, as the evidence is clear that she completed making payments in the year 1983 whilst the 2nd appellant claimed to have purchased the same on 24th June, 1997, she was the bonafide proprietor. "The position reflects the equitable maxim that where there are equal equities, the first in time prevails.”
29. The plaintiff submits further that the 1st Defendant failed to call any witness to come and explain the circumstances under which he obtained the impugned titles after the Plaintiffs titles had already been issued. The plaintiff refers to the dictum of the Court of Appeal in Attorney General & another v Hussein & 3 others (Civil Appeal 100 (ELD NO. 32) of2018) [20251 KECA 1022 (KLR) (5 June 2025) (Judgment) cited with approval the case of Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd [1979] (1) SA 621 (A) where it was held that:
a. “where a party fails to call as his witness as one who is available and able to elucidate the facts, whether the inferences that the party failed to call such a witness because he feared that such evidence would expose facts unfavorable to him should be drawn would depend on the facts peculiar to the case where the question arises.”
30. The plaintiff contends that the 1st defendant acquired the parcels of land fraudulently and that this Court has the power to cancel fraudulently obtained titles. According to the plaintiff, it is questionable that the 1st Defendant is the only child of the deceased who was allegedly gifted such huge chunks of land to the exclusion of the rest, No family member came forward to support the allegations that he was indeed gifted these parcels of land.
31. The plaintiff argues that the allegations that the deceased Joshua Kimoi Samoei is the 1st Defendant's father are untrue and unfounded. There is not even an iota of evidence, not even a birth certificate to prove any relationship with the deceased. The 1st defendant is a habitual land grabber who has crafted the trade of using deceased persons’ names to grab land and then transfer the same to himself as a gift using forged gift deeds.
32. The plaintiff points out instances of fraud and forgery in the 1st defendant's documentation being that the copies of the transfers dated 27th January, 2010 that were allegedly used to transfer the properties from one Joshua Kimoi Singoei to the 1st defendant, have not been signed by the alleged advocate who witnessed the transfer that is one Natasha Mwende Roli. They only bare her purported stamp.
33. The plaintiff states that perhaps the 1st Defendant was too scared of facing a count of forging ones signature while manufacturing these documents that he only chose to manufacture a fake stamp, stamp the document and leave it at that. He submits that in absence of a signature the transfers fail to meet the mandatory legal requirements regarding execution and attestation of transfer forms thus are null and void.
34. The Plaintiff has adduced before this honorable court evidence in the form of a copy of the Law Society of Kenya search engine record, confirming that the purported advocate that stamped the 1st Defendants alleged transfer forms that is one Natasha Mwende Roli does not exist. The 1st defendant simply forged the stamp of a non-existing advocate.
35. The copies of the transfers dated 20th June, 1995 that were allegedly used to transfer the properties from the Agricultural Development Corporation to one Joshua Kimoi Singoei indicate on the face of it that the land being transferred is situated along Lake Naivasha. This is coincidentally the case for all four transfer forms presented by the 1st Defendant, meaning he hurriedly used one document to forge the rest and did not realize this mistake. When cross examined on the same, he alleged that the same must have been a typing error, but could not explain why the purported typing error appeared in all his documents.
36. The plaintiff submits that the copies of the transfers dated 20th June,1995 that were allegedly used to transfer the properties from the Agricultural Development Corporation to one Joshua Kimoi Singoei indicate on the face of it that the Agricultural Development Corporation that is the transferor of the lands that the 1st Defendant claims, was established under the Agricultural Development Corporation Act Chapter 436 laws of Kenya. This is a glaring instance of forgery as Chapter 436 laws of Kenya is the Exchange Control Act thus clearly cannot establish the Agricultural Development Corporation. The Agricultural Development Corporation is established under Chapter 444 laws of Kenya as clearly captured in the Plaintiffs transfer documents.
37. During cross examination, the 1st defendant further confessed that he has never paid stamp duty in respect of these transactions, and never sought consent of land control board before allegedly carrying out the transfers. His transfers remain fraudulent for all intents and purposes.
38. The plaintiff submits that the 1st Defendant's alleged certificate of official searches do not contain time stamps showing at what time they were signed. The Plaintiffs searches on the other hand contains time stamps thus enabling even third parties to scan them and know the time they were produced.
39. The plaintiff submits that the court has power to cancel any fraudulently acquired title. He refers to Section 80 of the Land Registration Act 2012 states thus;
a. (l) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.
40. The plaintiff heavily relies on Article 40 of the Constitution that reads in part;
41. (l) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property-(a) of any description; and (b) in any part of Kenya.
42. (2) Parliament shall not enact a law that permits the State or any person--
(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or
(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).
43. The plaintiff submits that he is entitled to the reliefs sought in his plaint and that the 1st defendants counter claim to be dismissed with costs.
44. I have not seen submissions by the defendants.
(D) Analysis and Determination
45. I have considered the evidence and submissions on record and do find that it is evident that parcels no 16672/ (2), (3), and (4) respectively measuring 4.043(ha), 4.037Ha, 4.047Ha being freehold were registered vide transfer in entry no 135 in the name of Kennedy Chebii Kipkoech on the 26.5.1994. There is no evidence of registration of the said properties in the names of Joshua Kimoi Singoei. Prior to the registration the suit parcels of land belonged to The Agricultural Finance Corporation. It is alleged that the Agricultural Development Corporation issued two allotments letters but on thorough scrutiny of the two allotment letters it is observed that allotment letters issued to the 1st defendant are in respect of land adjoining Lake Naivasha whereas the suit properties are in Njoro Ngata and therefore the allotment letters issued to the 1st defendant are not in respect to the suit properties. Even assuming that the ADC issued two conflicting letters of allotment, the first in time would prevail and would be the one issued to the plaintiff.
46. This court approves the citation of the case of Choi and 3 others v Goldstein Group services Limited & 2 others (2025) eKLR quoted with approval the Court of Appeal in Waterfront Holdings Limited vs Kandie & 2 Others [2023] KECA 1223 (KLR) where the Court restated the principle that where allotments are made to two competing parties, the party that fulfils the conditions of the offer first in time prevails:
a. "Where an allotment is made to two competing parties one of whom pays for the allotment before the other one, prevails it was clear that the 1st appellant had allotted the suit land to both the respondent and the 2nd appellant hence the learned Judge 's conclusion that there was a double allocation. That being the case, since the respondent was first in time, as the evidence is clear that she completed making payments in the year 1983 whilst the 2nd appellant claimed to have purchased the same on 24th June, 1997, she was the bonafide proprietor. "The position reflects the equitable maxim that where there are equal equities, the first in time prevails.”
47. The defendant did not call any evidence from the Agricultural finance corporation to demonstrate how the letters of allotment were issued to his father.
48. The dictum of the Court of Appeal in Attorney General & another v Hussein & 3 others (Civil Appeal 100 (ELD NO. 32) of2018) [20251 KECA 1022 (KLR) (5 June 2025) (Judgment) cited with approval the case of Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd [1979] (1) SA 621 (A) is relevant, where it was held that:
a. “where a party fails to call as his witness as one who is available and able to elucidate the facts, whether the inferences that the party failed to call such a witness because he feared that such evidence would expose facts unfavourable to him should be drawn would depend on the facts peculiar to the case where the question arises.”
49. It boggles my legal mind the circumstances under which the 1st defendant’s father obtained the impugned titles after the Plaintiffs titles had already been issued. Both the plaintiff and 1st defendant have title to the property. The issue for our determination here is as between the certificate of title held by the plaintiff and the 1st defendant which one prevails? The determination of this issue depends on the root of title of each certificate of title.
50. The Supreme Court in the locus classicus case of Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) held as follows:-
a. “Where the registered proprietor’s root title was under challenge, it was not enough to dangle the instrument of title as proof of ownership. It was the instrument that was in challenge, and therefore, the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal, and free from any encumbrance, including interests which would not be noted in the register.”
51. The court of appeal in Munyu Maina - v - Hiram Gathiha Maina, Civil Appeal number 239 of 2009, held as follows:
“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”
52. In Sammy Mwangangi & 10 others -v - Commissioner of Lands & 3 others [2018] eKLR, the Court of Appeal expressed itself as follows:
“47. It is thus our considered view that the respondents have successfully shown how they acquired their title by producing all the documents that must be in place before a Grant could be issued and registered in their favour.
48. The 3rd and 4th respondents have sufficient evidence to prove that they acquired the suit property lawfully. Indeed, we agree with the learned Judge that no evidence was called by the appellants to show the 3rd and 4th respondents acquired the titles unlawfully to enable this court order for their cancellation.
50. Having found that the respondents were allocated the suit property lawfully, their titles cannot be impeached. In view of the fact that the appellants failed to prove the allegations of fraud in the acquisition of the title, consequently they failed to prove their case on a balance of probabilities. For all the foregoing reasons, having re-evaluated the evidence before us, we are not persuaded that the learned Judge erred in arriving at the conclusion she made. The judgment now impugned was based on sound law and evidence, and the same cannot be impeached.”
53. In this case, the plaintiff has proved the root of his title by producing the transfers by ADC and registration of transfer on the 23rd May 1994 as per the register. The 1st defendant has produced transfers for land adjoining lake Naivasha dated 20th June 1995 made more than one year after the plaintiff was registered proprietor. In this regard, the plaintiff’s titles prevail.
54. The plaintiff has proved instances of fraud and forgery in the 1st defendant's documentation being that the copies of the transfers dated 27th January, 2010 that were allegedly used to transfer the properties from one Joshua Kimoi Singoei to the 1st defendant, have not been signed by the alleged advocate who witnessed the transfer that is one Natasha Mwende Roli. This court observes that the transfers only bare her purported stamp. She was not called to give evidence.
55. The absence of a signature on the transfers renders them invalid as they fail to meet the mandatory legal requirements regarding execution and attestation of transfer forms.
56. This court observes that the copies of the transfers dated 20th June,1995 that were allegedly used to transfer the properties from the Agricultural Development Corporation to one Joshua Kimoi Singoei indicate on the face of it that the land being transferred is situated along lake Naivasha. This depicts a forgery because the suit parcels do not adjoin any lake in Nakuru County and are not in the Naivasha sub-county and therefore do not adjoin Lake Naivasha.
57. This court has power to cancel any fraudulently acquired title. Section 80 of the Land Registration Act 2012 states thus;
a. (l) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.
58. Article 40 of the Constitution that reads in part;
(l) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property-(a) of any description; and (b) in any part of Kenya.
(2) Parliament shall not enact a law that permits the State or any person--
(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or
(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).
59. This court finds that Joshua Kimoi Singoei was never at any time the registered owner of the suit properties and therefore had nothing to transfer to Sylas Kipkosgei Tochim as a gift. Though the transfers are shown as having been registered, it is only on paper but not in the register of titles as the Register of titles still reflects Kennedy Kipkoech Chebii as the registered owner of the suit properties.
60. I do find that the titles held by the 1st Defendant and all documents related to the suit property held by the 1st Defendant do not find root in the register and are all forgeries and therefore the counterclaim is dismissed. I do give judgment to the plaintiff in terms that:-
(a) declaration that the plaintiff is the lawful proprietor and registered owner of the parcels of land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5.
(b) A declaration that the 1st defendant is a trespasser to the parcels of land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5.
(c) Permanent injunction against the defendants herein either by themselves, their agents, employees and/or servants from trespassing, entering, subdividing, allocating, occupying, selling, leasing, charging, transferring, fencing, erecting any structures or dealing in any way with the plaintiffs pieces of land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5.
(d) An order of cancelation of the Titles for land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5 held in the name of the 1st Defendant herein Sylas Tochima and/or Joshua Kimoi Singoei and declaration that the same are products of fraud.
(e) An order of eviction of the 1st defendant and his agents from the parcel of land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5 in the event that they managed to get any possession of the same.
(f) Costs of this suit and interest to the plaintiff.
1. Kennedy Kipkech Chebii (hereinafter referred to as the Plaintiff) has come to this court via plaint dated 11th April 2024 seeking a declaration that the plaintiff is the lawful proprietor and registered owner of the parcels of land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5.(hereinafter referred to as the suit properties)
2. Moreover, he seeks a declaration that Sylas Kipkosgei Tochima (hereinafter referred to as the 1st defendant) is a trespasser to the parcels of land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5.
3. Furthermore, a permanent injunction against all the defendants herein either by themselves, their agents, employees and/or servants from trespassing, entering, subdividing, allocating, occupying, selling, leasing, charging, transferring, fencing, erecting any structures or dealing in any way with the Plaintiff’s pieces of land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5 suit properties.
4. The plaintiff further seeks an order of cancelation of the Titles for the suit properties held in the name of the 1st Defendant herein Sylas Tochima and/or Joshua Kimoi Singoei and declaration that the same are products of fraud.
5. Lastly the plaintiff seeks an order of eviction of the 1st defendant and his agents from the suit properties in the event that they manage to get any possession of the same plus costs of this suit and interest.
6. The plaintiff contends that at all material times relevant to this suit the Plaintiff was and is the lawfully registered owner of the suit properties.
7. According to the plaintiff, he has been in continuous and peaceful use of the properties for over 29 years, having been allocated and having the same transferred to him in the year 1994. The suit properties are prime agricultural parcels valued at over Kshs200, 000,000/=. The 1st Defendant claims that he was gifted the Plaintiffs land by his father that is Joshua Kimoi Singoei in the year 2010, and to this effect he has manufactured fake deeds of gift.
8. The plaintiff urges that the 1st Defendant has further fraudulently manufactured title deeds of the suit properties belonging to the Plaintiff and on the basis of the said titles is attempting to invade the Plaintiff’s land.
9. The plaintiff insists that 1st Defendant’s titles have no root and emanate from nowhere. By the time the 1st Defendant’s fake deed of gift were being manufactured in the year 2010, the Plaintiff was already the registered owner of the property and the property was not up for any allocation. The Plaintiff had by this time already peacefully occupied the property for over 16 years and the records of his allocation are well captured in the original list of allotees as entry number 134 and 142 while neither the 1st Defendant nor his alleged father are captured in the list.
10. The plaintiff contends that on the basis of the fake titles, the 1st Defendant has been making countless trips to the Plaintiff’s property and bringing with him third parties to view the same and attempt to cultivate the same and destroy the Plaintiff’s already planted crops therein. The 1st Defendant actions are with the full blessings and supervision of the 3rd and 4th Defendants who apart from illegally bestowing themselves the power of adjudicating on the land disputes, have instructed the local administration to ensure that the 1st Defendant gains unlawful possession of the property.
11. The Plaintiff is thus apprehensive that unless the Defendants are restrained from perpetuating their fraudulent and illegal acts on the land, he will not be able to enjoy peaceful and quiet possession of the land and is likely to be deprived of his proprietary rights over the said property.
12. The Plaintiff claims to be a bona fide holder of title for value, of the suit properties, whose rights to own and enjoy the property are now threatened by fraudsters. Unless the Defendants are restrained from perpetuating the aforementioned illegal acts on the Plaintiff’s land will not be able to enjoy peaceful and quiet possession of the land.
13. The 2nd to 4th Defendants represented by the honourable Attorney General in a general denial, state that the suit property has not been transferred to anybody else and if it was done, the same was done legally.
14. The 1st Defendant filed a defence denying the plaintiff’s allegations in the plaint and further filed a counterclaim stating that at all material times he has been the registered owner of the parcels of land known as Certificate of Title in Land Reference Number and 16672/5.
15. According to the 1st defendant, he was gifted the said suit parcels of land by his father Joshua Kimoi Singoel(deceased) vide Deed of Gift agreements dated 27th January2010. The said parcels of land were the properties of Joshua Kimoi Singoel(deceased) to which he had title deeds dated 27th July 1995 The 1st defendant avers that after the Gift agreements dated 27th January, he proceeded to transfer the said parcels of land under his name and the same is confirmed as per the land's records vide Official Search Certificate dated 6th June, 2023.
16. The 1st defendant avers that after acquiring the original title deeds he took possession of the suit parcel of land immediately and started cultivating and developing the parcels and that he has been living peacefully without any interference from anybody until the plaintiff decided to invade the said parcels stating that he is the legal owner and stopped the 1st defendant from cultivating and developing the parcels further.
17. That the plaintiff has denied the 1st defendant peaceful access of his parcels of land by refusing him to cultivate or develop them any further
18. By reason of the aforesaid trespass and Invasion the 1st defendant has been deprived of the use and enjoyment of the said land and has suffered damage. According to the 1st defendant, the action by the plaintiff is unconstitutional unlawful, a trespass and caused the 1st defendant loss and damage
19. The 1st defendant avers that the plaintiff’s actions are unconstitutional, unlawful and fraudulent and the plaintiff in the counter-claim stands to suffer irreparable damages.
20. The 1st defendant prays for an order of temporary and permanent injunction do issue against the plaintiff whether by themselves, their servants and/or interfering with the parcels of Land known as Certificate of Title in Land Reference Number and 16672/5.
21. Moreover, an order directing the land registrar to register the 1st defendant as the sole proprietor of the parcel of land known as Certificate of 'Title in Land Reference Number 16672/2, 16672/3, 16672/4, and 16672/5.
22. Lastly, an order directing the Land registrar to cancel the title deed for the parcel of land known Certificate of Title in Land Reference Number 16672/5 issued on the name of the plaintiff. Plus Costs and interest of the suit and damages for trespass.
(B) Site visit and Hearing
23. This court ordered for a site visit by the Deputy Registrar. The order was made on 9.5.2024. The Deputy Registrar visited on 8.8.2024 and found that there was no one in occupation. However, section of the land had Boma, Rhodes grass and wheat planted by the plaintiff. There was some partially demolished temporary structures alleged to be storage for hay.
24. When the matter came up for hearing, the plaintiff, a medical doctor by training testified as PW1 and adopted his statement as evidence in chief. The import of the statement is that he owns the suit properties being the registered owner and has been in occupation since 1994. He was allocated the property by the Agricultural Development Corporation in the year 1994. The 1st Defendant invaded the property in 2023 without any justification. The plaintiff produced a certified copy of the extract of the register indicating that he was the registered owner of the suit property.
25. The 1st Defendant, Sylas Kipkosgei Tochima on the other hand testified in response that he is the registered owner of the suit property and has planted wheat. There are 4 parcels of land 16672/ (2), (3), (4), (5). The land was purchased by his father Joshua Singoei. His father gifted to him the land.
26. In cross-examination, Mr Okiro learned counsel for the plaintiff put it to him that his documents were manufactured in a cyber café to which he replied that the land was purchased by his father in 1995.
(C) Submissions
27. The plaintiff submits that there is no way that the Agricultural Development Corporation could issue two allotment letters for the same parcel of land and that if, in any unlikely event, the Agricultural Development Corporation did issue two allotment letters for the same land, the first allotee should be given preference and the second allottee should seek redress from the Agricultural Development Corporation.
28. The plaintiff cites the case of Choi & 3 others v Goldstein Group Sewices Limited & 2 others (2025) eKLR quoted with approval the Court of Appeal in Waterfront Holdings Limited vs Kandie & 2 Others [2023] KECA 1223 (KLR) where the Court restated the principle that where allotments are made to two competing parties, the party that fulfils the conditions of the offer first in time prevails:
a. "Where an allotment is made to two competing parties one of whom pays for the allotment before the other one, prevails it was clear that the 1st appellant had allotted the suit land to both the respondent and the 2nd appellant hence the learned Judge 's conclusion that there was a double allocation. That being the case, since the respondent was first in time, as the evidence is clear that she completed making payments in the year 1983 whilst the 2nd appellant claimed to have purchased the same on 24th June, 1997, she was the bonafide proprietor. "The position reflects the equitable maxim that where there are equal equities, the first in time prevails.”
29. The plaintiff submits further that the 1st Defendant failed to call any witness to come and explain the circumstances under which he obtained the impugned titles after the Plaintiffs titles had already been issued. The plaintiff refers to the dictum of the Court of Appeal in Attorney General & another v Hussein & 3 others (Civil Appeal 100 (ELD NO. 32) of2018) [20251 KECA 1022 (KLR) (5 June 2025) (Judgment) cited with approval the case of Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd [1979] (1) SA 621 (A) where it was held that:
a. “where a party fails to call as his witness as one who is available and able to elucidate the facts, whether the inferences that the party failed to call such a witness because he feared that such evidence would expose facts unfavorable to him should be drawn would depend on the facts peculiar to the case where the question arises.”
30. The plaintiff contends that the 1st defendant acquired the parcels of land fraudulently and that this Court has the power to cancel fraudulently obtained titles. According to the plaintiff, it is questionable that the 1st Defendant is the only child of the deceased who was allegedly gifted such huge chunks of land to the exclusion of the rest, No family member came forward to support the allegations that he was indeed gifted these parcels of land.
31. The plaintiff argues that the allegations that the deceased Joshua Kimoi Samoei is the 1st Defendant's father are untrue and unfounded. There is not even an iota of evidence, not even a birth certificate to prove any relationship with the deceased. The 1st defendant is a habitual land grabber who has crafted the trade of using deceased persons’ names to grab land and then transfer the same to himself as a gift using forged gift deeds.
32. The plaintiff points out instances of fraud and forgery in the 1st defendant's documentation being that the copies of the transfers dated 27th January, 2010 that were allegedly used to transfer the properties from one Joshua Kimoi Singoei to the 1st defendant, have not been signed by the alleged advocate who witnessed the transfer that is one Natasha Mwende Roli. They only bare her purported stamp.
33. The plaintiff states that perhaps the 1st Defendant was too scared of facing a count of forging ones signature while manufacturing these documents that he only chose to manufacture a fake stamp, stamp the document and leave it at that. He submits that in absence of a signature the transfers fail to meet the mandatory legal requirements regarding execution and attestation of transfer forms thus are null and void.
34. The Plaintiff has adduced before this honorable court evidence in the form of a copy of the Law Society of Kenya search engine record, confirming that the purported advocate that stamped the 1st Defendants alleged transfer forms that is one Natasha Mwende Roli does not exist. The 1st defendant simply forged the stamp of a non-existing advocate.
35. The copies of the transfers dated 20th June, 1995 that were allegedly used to transfer the properties from the Agricultural Development Corporation to one Joshua Kimoi Singoei indicate on the face of it that the land being transferred is situated along Lake Naivasha. This is coincidentally the case for all four transfer forms presented by the 1st Defendant, meaning he hurriedly used one document to forge the rest and did not realize this mistake. When cross examined on the same, he alleged that the same must have been a typing error, but could not explain why the purported typing error appeared in all his documents.
36. The plaintiff submits that the copies of the transfers dated 20th June,1995 that were allegedly used to transfer the properties from the Agricultural Development Corporation to one Joshua Kimoi Singoei indicate on the face of it that the Agricultural Development Corporation that is the transferor of the lands that the 1st Defendant claims, was established under the Agricultural Development Corporation Act Chapter 436 laws of Kenya. This is a glaring instance of forgery as Chapter 436 laws of Kenya is the Exchange Control Act thus clearly cannot establish the Agricultural Development Corporation. The Agricultural Development Corporation is established under Chapter 444 laws of Kenya as clearly captured in the Plaintiffs transfer documents.
37. During cross examination, the 1st defendant further confessed that he has never paid stamp duty in respect of these transactions, and never sought consent of land control board before allegedly carrying out the transfers. His transfers remain fraudulent for all intents and purposes.
38. The plaintiff submits that the 1st Defendant's alleged certificate of official searches do not contain time stamps showing at what time they were signed. The Plaintiffs searches on the other hand contains time stamps thus enabling even third parties to scan them and know the time they were produced.
39. The plaintiff submits that the court has power to cancel any fraudulently acquired title. He refers to Section 80 of the Land Registration Act 2012 states thus;
a. (l) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.
40. The plaintiff heavily relies on Article 40 of the Constitution that reads in part;
41. (l) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property-(a) of any description; and (b) in any part of Kenya.
42. (2) Parliament shall not enact a law that permits the State or any person--
(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or
(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).
43. The plaintiff submits that he is entitled to the reliefs sought in his plaint and that the 1st defendants counter claim to be dismissed with costs.
44. I have not seen submissions by the defendants.
(D) Analysis and Determination
45. I have considered the evidence and submissions on record and do find that it is evident that parcels no 16672/ (2), (3), and (4) respectively measuring 4.043(ha), 4.037Ha, 4.047Ha being freehold were registered vide transfer in entry no 135 in the name of Kennedy Chebii Kipkoech on the 26.5.1994. There is no evidence of registration of the said properties in the names of Joshua Kimoi Singoei. Prior to the registration the suit parcels of land belonged to The Agricultural Finance Corporation. It is alleged that the Agricultural Development Corporation issued two allotments letters but on thorough scrutiny of the two allotment letters it is observed that allotment letters issued to the 1st defendant are in respect of land adjoining Lake Naivasha whereas the suit properties are in Njoro Ngata and therefore the allotment letters issued to the 1st defendant are not in respect to the suit properties. Even assuming that the ADC issued two conflicting letters of allotment, the first in time would prevail and would be the one issued to the plaintiff.
46. This court approves the citation of the case of Choi and 3 others v Goldstein Group services Limited & 2 others (2025) eKLR quoted with approval the Court of Appeal in Waterfront Holdings Limited vs Kandie & 2 Others [2023] KECA 1223 (KLR) where the Court restated the principle that where allotments are made to two competing parties, the party that fulfils the conditions of the offer first in time prevails:
a. "Where an allotment is made to two competing parties one of whom pays for the allotment before the other one, prevails it was clear that the 1st appellant had allotted the suit land to both the respondent and the 2nd appellant hence the learned Judge 's conclusion that there was a double allocation. That being the case, since the respondent was first in time, as the evidence is clear that she completed making payments in the year 1983 whilst the 2nd appellant claimed to have purchased the same on 24th June, 1997, she was the bonafide proprietor. "The position reflects the equitable maxim that where there are equal equities, the first in time prevails.”
47. The defendant did not call any evidence from the Agricultural finance corporation to demonstrate how the letters of allotment were issued to his father.
48. The dictum of the Court of Appeal in Attorney General & another v Hussein & 3 others (Civil Appeal 100 (ELD NO. 32) of2018) [20251 KECA 1022 (KLR) (5 June 2025) (Judgment) cited with approval the case of Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd [1979] (1) SA 621 (A) is relevant, where it was held that:
a. “where a party fails to call as his witness as one who is available and able to elucidate the facts, whether the inferences that the party failed to call such a witness because he feared that such evidence would expose facts unfavourable to him should be drawn would depend on the facts peculiar to the case where the question arises.”
49. It boggles my legal mind the circumstances under which the 1st defendant’s father obtained the impugned titles after the Plaintiffs titles had already been issued. Both the plaintiff and 1st defendant have title to the property. The issue for our determination here is as between the certificate of title held by the plaintiff and the 1st defendant which one prevails? The determination of this issue depends on the root of title of each certificate of title.
50. The Supreme Court in the locus classicus case of Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) held as follows:-
a. “Where the registered proprietor’s root title was under challenge, it was not enough to dangle the instrument of title as proof of ownership. It was the instrument that was in challenge, and therefore, the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal, and free from any encumbrance, including interests which would not be noted in the register.”
51. The court of appeal in Munyu Maina - v - Hiram Gathiha Maina, Civil Appeal number 239 of 2009, held as follows:
“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”
52. In Sammy Mwangangi & 10 others -v - Commissioner of Lands & 3 others [2018] eKLR, the Court of Appeal expressed itself as follows:
“47. It is thus our considered view that the respondents have successfully shown how they acquired their title by producing all the documents that must be in place before a Grant could be issued and registered in their favour.
48. The 3rd and 4th respondents have sufficient evidence to prove that they acquired the suit property lawfully. Indeed, we agree with the learned Judge that no evidence was called by the appellants to show the 3rd and 4th respondents acquired the titles unlawfully to enable this court order for their cancellation.
50. Having found that the respondents were allocated the suit property lawfully, their titles cannot be impeached. In view of the fact that the appellants failed to prove the allegations of fraud in the acquisition of the title, consequently they failed to prove their case on a balance of probabilities. For all the foregoing reasons, having re-evaluated the evidence before us, we are not persuaded that the learned Judge erred in arriving at the conclusion she made. The judgment now impugned was based on sound law and evidence, and the same cannot be impeached.”
53. In this case, the plaintiff has proved the root of his title by producing the transfers by ADC and registration of transfer on the 23rd May 1994 as per the register. The 1st defendant has produced transfers for land adjoining lake Naivasha dated 20th June 1995 made more than one year after the plaintiff was registered proprietor. In this regard, the plaintiff’s titles prevail.
54. The plaintiff has proved instances of fraud and forgery in the 1st defendant's documentation being that the copies of the transfers dated 27th January, 2010 that were allegedly used to transfer the properties from one Joshua Kimoi Singoei to the 1st defendant, have not been signed by the alleged advocate who witnessed the transfer that is one Natasha Mwende Roli. This court observes that the transfers only bare her purported stamp. She was not called to give evidence.
55. The absence of a signature on the transfers renders them invalid as they fail to meet the mandatory legal requirements regarding execution and attestation of transfer forms.
56. This court observes that the copies of the transfers dated 20th June,1995 that were allegedly used to transfer the properties from the Agricultural Development Corporation to one Joshua Kimoi Singoei indicate on the face of it that the land being transferred is situated along lake Naivasha. This depicts a forgery because the suit parcels do not adjoin any lake in Nakuru County and are not in the Naivasha sub-county and therefore do not adjoin Lake Naivasha.
57. This court has power to cancel any fraudulently acquired title. Section 80 of the Land Registration Act 2012 states thus;
a. (l) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.
58. Article 40 of the Constitution that reads in part;
(l) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property-(a) of any description; and (b) in any part of Kenya.
(2) Parliament shall not enact a law that permits the State or any person--
(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or
(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).
59. This court finds that Joshua Kimoi Singoei was never at any time the registered owner of the suit properties and therefore had nothing to transfer to Sylas Kipkosgei Tochim as a gift. Though the transfers are shown as having been registered, it is only on paper but not in the register of titles as the Register of titles still reflects Kennedy Kipkoech Chebii as the registered owner of the suit properties.
60. I do find that the titles held by the 1st Defendant and all documents related to the suit property held by the 1st Defendant do not find root in the register and are all forgeries and therefore the counterclaim is dismissed. I do give judgment to the plaintiff in terms that:-
(a) declaration that the plaintiff is the lawful proprietor and registered owner of the parcels of land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5.
(b) A declaration that the 1st defendant is a trespasser to the parcels of land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5.
(c) Permanent injunction against the defendants herein either by themselves, their agents, employees and/or servants from trespassing, entering, subdividing, allocating, occupying, selling, leasing, charging, transferring, fencing, erecting any structures or dealing in any way with the plaintiffs pieces of land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5.
(d) An order of cancelation of the Titles for land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5 held in the name of the 1st Defendant herein Sylas Tochima and/or Joshua Kimoi Singoei and declaration that the same are products of fraud.
(e) An order of eviction of the 1st defendant and his agents from the parcel of land known as L.R 16672/2, L.R. 16672/3, L.R. 16672/4 and L.R. 16672/5 in the event that they managed to get any possession of the same.
(f) Costs of this suit and interest to the plaintiff.