The Plaintiff filed a Plaint dated 19th November 2014 which was amended on 1st April, 2019. The Plaintiff sought the following orders:
a. A declaration that the registration of suit property DUNDORI/MUGWATHI BLOCK 2/114 (now known as DUNDORI/MUGWATHI BLOCK 2/892, 893, 894 and 895 in the names of the 1st, 2nd and 3rd Defendants are null and void and should be cancelled. (sic)
b. The 1st, 2nd and 3rd defendants do execute the necessary and relevant conveyance documents to effect registration in favor of plaintiff as the proprietor of parcel of land DUNDORI/MUGWATHI BLOCK 2/114 (now known as DUNDORI/MUGWATHI BLOCK 2/892, 893, 894 and 895 and/or in alternative the deputy registrar do execute the necessary and relevant conveyance document incase the 1st, 2nd and 3rd defendants decline to execute. (sic)
c. An eviction order against the 1st, 2nd and 3rd defendants.
d. An order of permanent injunction restraining the 1st, 2nd and 3rd defendants from interfering with the plaintiff’s quite possession of the suit land.
e. Costs of the suit.
f. Any other relief the Honourable Court deems fit to grant.
Plaintiff’s Case
Chepkwony Moriror, the plaintiff in this case (PW1) relied on the witness statement dated 19th November 2014 which was adopted as part of his evidence in chief. He produced a bundle of documents on 15th October 2019 together with the plaint and a further bundle of documents. He relied on all the documents in support of his case. He testified that he was a member of Kalenjin Enterprises Ltd and that he was a shareholder and was entitled to get one and a half acres. PW1 testified that he bought three shares from three members. PW1 testified that the three members’ shares were combined by the company and he was allocated plot No. 114 which was supposed to be 4.5 acres representing the three shares that he had bought and he was supposed to get title for the land.
That in the lands office he was being asked to come back each time he went there. Eventually, the land office informed him that somebody else had been issued with title to his land. PW1 testified that Lucy Ngendo had been issued title to his land and he complained to the chief who summoned them. PW1 testified that the chief referred them back to the company. PW1 stated that the defendants refused to appear before the company and he decided to go to the District Officer who referred him to the National Land Commission. PW1 testified that the defendants were unlawfully issued title to his land and therefore they were not entitled to the land and he never sold the land to the defendants. He prayed to the court to order the cancellation of the titles issued to the defendants and to direct the title to be issued to him. He lives in the plot which was issued as a consequence of his own shares in the company. The defendants have put up houses on the land and he seeks orders for their eviction. The documents filed on 20th November, 2014 were produced as, PEX 1, PMFI1-2, PMFI -3, PEXI-4, PEX 5, PEX 6, PEX 7, PEX 8, PEX 9, PMFI-10, PMFI.11. The further list of documents dated 15th October 2019 filed on 15th October, 2019 were admitted by the court as the Plaintiff’s exhibits, PEX-12, PMFI-13, PMFI-14, PEX 15 and PEX 16.
Upon cross-examination by Abuya learned counsel, PW1 stated that he was a member of Kalenjin enterprises in 1970 and that there are many members of the company. He stated that he had one share and he got number 272. PW1 stated that three members sold him their shares of the company. He bought the shares of Kiptoo Chemjor, Komen Rerimoi and Cheptum Chepson but they did not show him land. PW1 stated that the shares belonged to the company and the company was giving land to members. PW1 informed the court that the company sold him the land and when he went to the land Dundori/Mugwathi Block 2/114 in 1986, he found nobody in possession. PW1 stated that he saw the land but he did not enter. He went back for the title but never did anything on the land. He later paid for the title on 25th August, 1997 and found someone in the land in 1997. He went to the Tribunal in 2002 and he has filed documents from the Tribunal. That after approaching the Tribunal, nothing happened. PW1 stated that the tribunal ordered that he vacates the land but he refused. PW1 stated that he has a title in his name and the title in Lucy Ngendo’s name is not proper.
Upon re-examination, PW1 testified that he was sold shares and he was a member of the company. The company took him to the land and was shown his portion. The land was being utilized by Chepkei. It took him time to process the title. He also took time to occupy because someone had taken possession. PW1 stated that he took action and he took a case to court. PW1 stated that there was a criminal case which was determined.
David Kiplimo Bor, a farmer and the Director Kalenjin Enterprises testified as PW2 the company was started in 1969 for purposes of buying land. They have members who are captured in a register. He stated that they also have the share certificates for members. He produced the Register as PEX 3. He testified that Chepkwony Mukiror is a member of Kalenjin Enterprises and that he became a member after buying shares from three people. That PW1 bought shares from Chepson, Kiptoo and Rerimoi who were members of Kalenjin Enterprises. PW2 testified that they were given parcel number Dundori/Mugwathi Block 2/114.
PW2 informed the court that when a non-member buys shares from a member, they enter into an agreement before the chief or an advocate. PW2 testified that after entering into an agreement one brings the agreement to the company and he is given clearance to get a title. PW2 testified that the share certificates remain in the name of the member and one who buys shares is give a share certificate. PW2 testified that Kipkwony Mokiror followed the process and the sale agreement was in the name of Chemjor Kiptoo. PW2 was shown PEX 1 and stated that this was the agreement. PW2 stated that they normally give a clearance certificate to the buyer and they do not know Alice Chepkoech.
PW2 was shown document number 14 in the Defendant’s documents and stated that the document does not arise from their office. PW2 testified that the name Kalenjin Enterprises is not on the face of the document. PW2 testified that this land has never had a dispute and they did not know how the defendants got tittle. PW2 testified that Lucy Ngendo did not pay for the title. PW2 testified that a clearance certificate is issued to a buyer and no other person could be issued with the title. The statement dated 15th May, 2024 was adopted by the court as part of PW2’s evidence in chief.
Upon cross-examination by M/s Morande, PW2 stated that he is the Director of Rift Valley Enterprises and previously it was Kalenjin Enterprises Ltd. PW2 stated that it was renamed in 1980 and there were nine directors two of whom died. PW2 stated that he was appointed Director in 2014. PW2 stated that he has the certificate of incorporation and the C.R 12.
PW2 was shown PEX 4 and stated that the parcel number was Dundori/Mugwathi Block 2/ 114. He stated that the title deed had not been issued. PW2 stated that they employed a government surveyor. PW2 stated that one would sell shares and the company would allocate the land. PW2 stated that the shareholders had not been shown their land and they sold shares not land.
Upon re-examination, PW2 testified that he was a director in the year 2014. PW2 stated that when one becomes a director one is given all records. PW2 testified that all records were handed over to him. PW2 testified that the buyer and seller are requested to present themselves to the office before any transfer is done. PW2 testified that during the sale, the share certificate does not change. He testified that document number four is not on the body of the certificate and Lucy Ngendo and John Maina were not members of Kalenjin Enterprises.
Korir Justice testified as PW3. He testified that he is the County Coordinator at the National Land Commission. He testified that his mandate is to manage public land for the government and he deals with matters related to disputes. PW3 testified that he received a letter from the Director National Land Commission dated 29th July, 2025 in respect of this case. PW3 testified that he received a letter from Chepkwony Mokiror dated 18th December, 2017 and it concerned the cancellation of irregularly issued title deeds. PW3 testified that it was for cancellation of title issued in respect of Dundori /Mugwathi /Block2 892,893, 894 and 895.
He informed the court that the parties were summoned severally. That the letters are dated 15th December, 2017, 9th January 2018, 16th January, 2018 and 20th February, 2018. The letters originated from their office and he produced them as exhibits which were marked by the court as PEX 17.
Upon cross-examination by Ms. Morande, PW3 stated that public land is land for public use and the National Land Commission has the mandate to deal with disputes related thereto. PW3 stated that this was private land and he was not aware of the dispute before the court. He stated that the original parcel was Block 2/114. PW3 stated that the letter dated 20th February, 2018 was written four years after the case was filed. He stated that he is not sure whether his predecessor was aware and they do not comment on matters before court. PW3 stated that they were trying to mediate the matter and they gave the parties opportunity to respond in writing. PW3 informed the court that his predecessor relied on the initial beneficiary list and the list had the name of Chepkwony Mukiror. He stated that the National Land Registrar can advise the court to cancel an allocation.
Defendants Case
Alice Chepkoech Seroney (DW1) relied on her statement which the court adopted as her evidence in chief. She testified that she lives at Keringet Molo sub county- Nakuru County and that Ndondori/ Mugwathi Block 2/114 was her land and she sold the land to Lucy Ngendo. She testified that she had the sale agreement which the court marked as DEX1. DW1 testified further that she bought the land from Kalenjin Limited and that she was a shareholder. DW1 testified that she has the receipts which she produced DEX2. She testified that the land belongs to Lucy Ngendo and John Maina.
Upon cross-examination by Kiprop learned counsel for the plaintiff, DW1 stated that she is one member of Kalenjin Enterprises and she was given a receipt to show that she was a member. DW1 stated that she does not have the certificate of shareholding. She stated that she showed Lucy Ngendo the receipt and she was given a certificate of shareholding in her name. DW1 informed the court that someone should answer for her on whether she has a shareholder’s certificate.
DW1 stated that her husband bought the land and her husband knows everything. DW1 stated that they sold with her husband and she was the member of Kalenjin Enterprises. She stated that she does not know John Maina and she bought the land from Kalenjin Enterprises. She stated that she has the receipt only. DW1 stated that she sold the share and she took the agreement to Kalenjin Enterprises. DW1 stated that she is not in the register. Upon re-examination, DW1 testified that she was a member of Kalenjin Enterprises and she sold the land to Lucy Ngendo. She testified that she was given a share certificate.
David Njoroge Ngendo testified as DW2. He testified that he is a businessman and he lives at Mogotio. DW2 testified that Lucy Ngendo Njoroge is her mother and her mother bought land from Alice Seroney. He testified that she was a member of Kalenjin Enterprises. The court adopted the statement dated 30th January, 2023 as part of his evidence in chief. DW2 stated that he has the certificate of confirmation of grant which he produced as DEX 3. He stated that he has a share certificated for Rift Valley Enterprises which he produced as DEX 4. DW2 testified that he has a ruling and a title deed which he produced as DEX5 and DEX 6 respectively. He testified that that the title deed was issued on 6th August, 1997. He testified that the agreement was given to Lucy Ngendo. He testified that the title was issued on 28th January, 2000 which he produced as DEX 7.
DW2 testified that the land was divided into four parcels and the title for David Njoroge Ngendo and Agnes Wanjiru Ngetto is dated 3rd October, 2012. He testified that the title is in their name and he produced DEX 8. DW2 produced the area map as DEX9. DW2 testified that his mother got Block 2/114 from Alice Seroney.
DW2 testified that his mother was given a shareholding certificate in the name of Alice Seroney and the certificate in the name of Alice Seroney was returned to the company. DW2 testified that they were given share certificate and it was stamped at the back. DW2 testified that the share certificate did not have any seal number. DW2 testified that the company had a register and the register is now at the Ministry of land. DW2 testified that the Ministry of lands was sued.
DW2 informed the court that they went to the Tribunal but there is no decision. That his mother bought the land in 1993 and it was a home. DW2 testified that they have lived there until now for thirty-four years and nobody has claimed the land. DW2 prayed that the suit be dismissed.
Upon cross-examination by Mr. Kiprop, DW2 stated that he is the administrator of the Estate of Lucy Ngendo and he did not witness the transaction between Agnes and Lucy. DW2 stated that he did not participate in the transaction. He stated that Agnes was a member of the Kalenjin Enterprises and he does not have a register and he has never requested a register. DW2 stated that he has not called the director of Kalenjin Enterprises and he is not a director. DW2 informed the court that there is a day they were called for a meeting. He stated that he cannot tell the authentication of the share certificate. He stated that his mother bought land and stones. He stated that she bought land that had a building and they went to the Director of Kalenjin Enterprises.
DW2 stated that his mother went before the advocate and he was informed of the same by his mother. DW2 stated that he does not have a clearance certificate. DW2 stated that they have never lived in peace. DW2 was shown PEX 6 and stated that he can see a restriction and this was in 1998. He stated that his mother took title in 2000 and the first title was issued in 1997 in the name of Lucy Ngendo and John Maina. DW2 stated that the criminal case included Mukiror and Alice Seroney and the court did not determine the owner of the land.
Upon re-examination, DW2 testified that he was not a witness in the sale and the share certificate for Alice was returned to the company. He testified that the registration is with the company and the fifth defendant is the Attorney General. DW2 testified that Kalenjin Enterprises are not willing to assist and the office was closed. DW2 testified that he knows a genuine certificate and there was a task force to look into the issue.
DW2 testified that his mother bought land and the evidence was the share certificate. DW2 testified that his mother went to the advocate to establish the position but there was no clearance certificate. DW2 testified that the processing of the title was through the share certificate. He testified that he did not see the receipt. DW2 testified that he did not know of the dispute in 1998 and the tribunal case was in 1970. He testified that the share certificate was in 1997.
Grace Wangare testified as DW3. She testified that Seline Nyambura bought from Alice Seroney and Alice was a shareholder of Kalenjin Enterprises. DW3 testified that she was given a certificate of shares and there is an agreement. She testified that in 1997, a title deed was issued. She testified that the title was in the name of Lucy Ngendo and John Maina Mucheru. DW3 testified that it was registered on 28th January, 2000 and she has a title in the name of John Maina a purchaser which she produced as DEX 7 (b). DW3 testified that the land was divided into five. She testified that her father remained with Dundori/Mugwathi/Block2/893, 894,895 at Muronyi/893. DW3 testified that she has a statement. She testified that she knows John Maina Mucheru who is her husband.
DW3 testified that the pleadings have a typing mistake and the name is not Wachira but Mucheru. The court amended the same to read John Maina Mucheru. The court also adopted her statement as part of her evidence in chief. DW3 testified that her husband bought land Dundori/Mugwathi/Block2/114 and he bought from Seline Nyambura Muiya. DW3 testified that the land is in the name of deceased husband and she knows Seline Nyambura and she bought from Alice Chepkoech Seroney . DW3 testified that Alice was member of Kalenjin Enterprises and she does not have a certificate of shares. DW3 testified that she does not have the registration.
DW3 testified that she has the share certificate in the name of Lucy and Sally and there is no certificate in the name of Lucy and John. She testified that she does not know any issue of a clearance certificate. She testified that her husband dealt with the dispute and her husband sold Block 2/894 to Josphat Karanja and got a title in his name. DW3 produced the title documents as DEX 10. DW3 testified that there was a dispute before the Tribunal She testified that Mukiror had never claimed the land. DW3 prayed that the suit be dismissed.
Upon cross-examination, DW3 stated that she is the legal representative of John Maina and he died in 2001. She stated that she has filed for succession. She stated that she has not brought the grant. She stated that she did not investigate how her husband acquired the land. DW3 stated that they have had disputes and they still have this case.
Upon re-examination, DW3 testified that they done succession and her husband was given a shareholder certificate. She testified that the share certificate was returned and she has no share certificate in her husband’s name. She testified that she was not there and the title was processed by a person whom she does not know. She testified that she does not know where the documents are and her husband did not go to the Tribunal. She testified that she does not know whether her husband investigated and Mukiror has claimed the land.
Plaintiff’s Submissions
Counsel for the Plaintiff filed submissions dated 29th January, 2026 and identified the following issues for determination:
a. Whether the Plaintiff is the lawful owner of land parcel Dundori/Mugwathi Block 2/114 (now Dundori/Mugwathi Block 2/892. 893. 894 and 895)?
b. Whether the Defendants lawfully acquired title to the suit property?
c. Whether the registration and subsequent subdivision of the suit property in favour of the Defendants was fraudulent, illegal and/or unprocedural?
d. Whether the Plaintiff is entitled to the reliefs sought in the amended Plaint?
e. Who bears the costs?
On the first issue, counsel submitted that the Plaintiff has proved on a balance of probabilities that he is the lawful owner of land parcel Dundori/Mugwathi Block 2/114 now subdivided into Dundori/Mugwathi Block 2/892. 893, 894 and 895. Counsel relied on Sections 24 9a), 25 (1) and 26 (1) of the Land Registration Act and the following cases: Munyu Maina vs Hiram Gathiha Maina [2013] eKLR, Makeri Wreck Motors Enterprises vs The Commissioner of Lands 7 Others [1997] eKLR and Elijah Nyang’wara vs Stephen Mungai Njuguna [2013] eKLR.
On the second issue, counsel submitted that the Defendants failure to demonstrate a lawful acquisition process coupled with the unexplained removal of a caveat and immediate subdivision of the suit property leads to the conclusion that the registration and subdivision were fraudulent, illegal and unprocedural. Counsel urged the court to find that the titles held by the Defendants are impeachable and liable to cancellation.
On the third issue, counsel asked the court to grant the reliefs sought in the amended plaint. On the fourth issue, counsel submitted that costs of the suit are awarded at the discretion of the court and while the court has an absolute and unfettered discretion to award or not award them, that discretion must be exercised judicially. Counsel relied on the cases of Jasbir Singh Rai and 3 others vs Tarlochan Singh Rai and 4 others [2014] eKLR and Republic vs Communiaction Authority of Kenya and another ex-parte Legal Advice Centre aka Kituo Cha Sheria [2015] eKLR.
1st, 2nd And 3rd Defendants Submissions
Counsel for the 1st, 2nd and 3rd Defendants filed submissions and identified the following issues for determination:
a. Whether the Plaintiff proved ownership of the suit property?
b. Whether the Defendants’ titles were fraudulently and unlawfully acquired?
c. Whether the Plaintiff’s claim is statute barred?
d. Whether the Plaintiff is entitled to the orders sought?
On the first issue, counsel submitted that the Defendants have demonstrated the root of their title through the testimony of the original owner (PW1), sale agreements, share transfer evidence, issuance of title, subdivision and long possession. Counsel submitted that the Plaintiff on the other hand has failed to demonstrate any registrable interest. Reliance was placed on the following cases: Wreck Motors Enterprises vs The Commissioner of Lands & Others [1997] eKLR, Joseph Arap Ng’ok vs Justice Moijo Ole Keiwua & 4 others [1997] eKLR and Munyu Maina vs Hiram Gathiha Maina [2013] eKLR.
On the second issue, counsel submitted that the Defendants titles originated from a transaction confirmed by the original owner being PW1, the titles were issued by the Land Registrar and the Plaintiff did not call the Land Registrar to demonstrate irregular issuance. Counsel submitted that the dispute concerns private land between private individuals and therefore the National Land Commission had no jurisdiction to purport to determine ownership of private land subject to active court proceedings. Reliance was placed on the case of Republic vs National Land Commission ex parte Holborn Properties Ltd [2016] eKLR.
On the third issue, counsel submitted that evidence shows that the Defendants and their predecessors took possession in 1983 and were issued with title deeds in 1997/2000 whereas the Plaintiff filed the present suit in 2014. Counsel submitted that it is trite that any claim for recovery of land ought to have been brought within twelve years under the Limitation of Actions Act.
On the fourth issue, counsel submitted that the Defendant have demonstrated a clear claim of ownership from the original owner. Counsel asked the court to dismiss the Plaintiff’s suit with costs to the 1st, 2nd and 3rd Defendants and that the Defendant’s titles to Dundori/Mugwati Block 2/892, 893, 894 and 895 be upheld as lawful and valid. Reliance was placed on the case of Arthi Highway Developers Ltd vs West End Butchery Ltd & 6 others [2015] eKLR.
Analysis and Determination
The issues for determination are:
a. Whether the Plaintiff is the lawful owner of land parcel Dundori/Mugwathi Block 2/114 (now Dundori/Mugwathi Block 2/892. 893. 894 and 895)?
b. Whether the Defendants’ titles were fraudulently and unlawfully acquired?
It is the Plaintiff’s case that he is the beneficial proprietor of the parcel of land known as DUNDORI/MUGWATHI BLOCK 2/114 (now known as DUNDORI/MUGWATHI BLOCK 2/892, 893,894 and 895. The Plaintiff averred that there exists a company known as Kalenjin Enterprises Limited, a company buying large tracts of land and selling them to its registered members in small portions.
It is the Plaintiff’s case that in the year 1987, he bought shares from members of the said company known as Cheptum Chepsom, Kiptoo Chemjor and Komen Rerimoi and the said company registered him as the holder of those shares which upon registration was equivalent to 4.5 acres of land.
The Plaintiff averred that the Plaintiff paid to the 4th Defendant Ksh 1,375/= being title deed processing fee for parcel of suit land and he was required to pick the title deed after two weeks. The Plaintiff averred that he went to the 4th Defendant’s offices to take the title deed to the suit land but to his surprise the 4th Defendant informed him that the title had been registered in the name of the 1st and 2nd Defendants. The Plaintiff went on to list the particulars of fraud on the part of the 1st, 2nd, 3rd, 4th and 5th Defendants.
It is the 1st, 2nd and 3rd Defendant’s case that they are the registered owners of all those parcels of land known as Dundori/Mugwathi Block 2/892, Dundori/Mugwathi Block 2/893, Dundori/Mugwathi Block 2/894 and Dundori/Mugwathi Block 2/895 which parcels are as a result of subdivision of all that parcel of land known as Dundori/Mugwathi Block 2/114 initially owned by Lucy Ngendo Njoroge and Sally Nyambura Mugo.
It is the 1st, 2nd and 3rd Defendant’s case that they have been in continuous and exclusive possession of the said properties since 1983 and as such the Plaintiff is not entitled to the orders sought. The 1st, 2nd and 3rd Defendant’s denied the particulars of fraud as pleaded by the Plaintiff.
It is the 4th and 5th Defendants case that all of the 4th Defendant’s actions have not been fraudulent and they have been undertaken procedurally and within the law.
Fraud has been defined in Black’s Law Dictionary 11th Edition as;
“A knowing misrepresentation or knowing concealment of material facts made to induce another to act to his or her detriment.”
It is an established principle of law that a claim based on fraud must be specifically pleaded and strictly proved. The Court of Appeal in the case of Vijay Morjaria Vs Nansingh, Madhusingh Darbar & another [2000] eKLR held thus;
“It is well established that fraud must be specifically pleaded and the particulars of fraud alleged must be stated on the face of the pleading. The act alleged to be fraudulent must of course be set out and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved and it is not allowable to leave fraud to be inferred from the facts.”
The Plaintiff in the amended plaint dated 1st April, 2019 listed the particulars of fraud on the part of the 1st, 2nd and 3rd Defendants as follows:
a. Obtaining title when they knew or ought to have known that the suit parcel was allocated to them.
b. Failing to make full disclosure to the relevant authorities that the suit parcel belonged to the plaintiff.
c. Obtaining title document without consent of the plaintiff.
d. Further obtaining the subdivision of the parcel of land DUNDORI/MUGWATHI BLOCK 2/114 into four portions DUNDORI/MUGWATHI BLOCK 2/892, 893, 894 and 895.
e. Obtaining the titles for parcels of land DUNDORI/MUGWATHI BLOCK 2/892, 893. 894 and 895 in their names.
The Plaintiff listed the particulars of fraud on the part of the 4th and 5th Defendants as follows:
a. Registering the suit land DUNDORI/MUGWATHI BLOCK 2/114 in the names of the 1st and 2nd defendants although the records at the 4th Defendants registry indicate that the plaintiff had paid for the fees required to process title in his name.
b. Failing to register the suit lands in the name of the plaintiff.
c. Facilitating and/or permitting further subdivisions of DUNDORI/MUGWATHI BLOCK 2/114 into four portions DUNDORI/MUGWATHI BLOCK 2/892, 893, 894 and 895.
d. Registering the title documents of parcels of land into four portions DUNDORI/MUGWATHI BLOCK 2/892, 893, 894 and 895 in the names of the 1st, 2nd and 3rd Defendants.
DW1 testified that Dundori/ Mugwathi Block 2/114 was her land and she sold the land to Lucy Ngendo. She testified that she has a sale agreement which the court marked as DEX1. DW1 testified that she bought the land from Kalenjin Limited and she was a shareholder. DW1 testified that she has the receipts and she produced DEX2. DW1 stated on cross-examination that she is one member of Kalenjin Enterprises and she was given a receipt to show that she was a member. DW1 stated that she does not have the certificate of shareholding. She stated that she showed Lucy Ngendo the receipt and she was given a certificate of shareholding in her name. It was incumbent upon DW1 to prove that she was a shareholder of Kalenjin Enterprises Limited and that she bought the land from the same company as alleged.
The Plaintiff on the other hand has tendered documentary evidence in form of copies of share certificates issued by Kalenjin Enterprises to Cheptum Chepsom, Kiptoon Chemjor and Komen Kerimoi and these are the shares that he stated in his evidence that he purchased from these members. The Plaintiff further exhibited copies of the sale agreements he entered with the three members of the company. On account of the three bought shares, the Plaintiff was allocated plot number 114. The company issued a confirmation vide a document dated 15th August, 2014 signed by Elijah K Chelaite who was the Chairman of Kalenjin Enterprises Ltd.
The Plaintiff tendered in evidence a receipt No D682898 issued to him by the Department of Lands dated 25th August, 1997 for Ksh 1,375 on account of registration, search fees, opening of register, attestation and stamp duty in respect of DUNDORI/MUGWATHI BLOCK 2/114. Rift Valley Enterprises subsequently on 24th August, 1997 issued the Plaintiff with the members clearance certificate No. 852 for plot DUNDORI/MUGWATHI BLOCK 2/114 to enable the Plaintiff pay for the processing of the title which he did the very next day.
The Plaintiff has exhibited a search certificate for land parcel Dundori/Mugwathi Block 2/114 issued on 17th December, 1998 which showed that the 1st and 2nd Defendants were the registered owners on 18th November 1993 and a title deed issued to them on 6th August, 1997.
Section 24 (a) of the Land Registration Act, 2012 provides:
24. Subject to this Act:
(a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and
Section 25 (1) provides:
(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—
Section 26 (1) provides:
(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
In the case of ELIJAH MAKERI NYANGWARA v STEPHEN MUNGAI NJUGUNA & another [2013] eKLR the court held as follows:
"…it needs to be appreciated that for Section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions."
This court has looked at the evidence adduced and finds that the Plaintiff was lawfully allocated land parcel Dundori/Mugwathi Block 2/114. He properly paid for the processing of the title for the land and should have been issued with title to the specific parcel of land. The records of Rift Valley Enterprises Ltd (Kalenjin Enterprises Ltd) who were the owners of the land show that the suit property was allocated to the plaintiffs as shown in the abstract of their register and the clearance certificate issued to the plaintiff. The 1st and 2nd Defendant’s registration as the owners was either illegally or fraudulently obtained and no good title passed to them. I find that the Plaintiff has proved his case on a balance of probabilities and I therefore issue the following orders:
1. That the plaintiff is hereby declared to be the valid and lawful owner of land parcel Dundori/Mugwathi Block 2/114 (now subdivided into land parcels Dundori/Mugwathi Block 2/892, 893,894 and 895.
2. The registration of the 1st, 2nd and 3rd defendants as the owners of land parcels Dundori/Mugwathi Block 2/892, 893, 894 and 895 being resultant subdivisions from land parcel Dundori/Mugwathi Block 2/114 is hereby declared null and void.
3. The Land Registrar is hereby ordered to cancel the registration of land titles Dundori/Mugwathi Block 2/892, 893, 894 and 895 and to restore land title Dundori/Mugwathi Block 2/114 in the register and to register the plaintiff, Kipkwony Muriror as the owner thereof.
4. The 1st, 2nd and 3rd defendants are ordered to vacate from land parcel Dundori/Mugwathi Block 2/114 (now known as Dundori/Mugwathi Block 2/892, 893, 894 and 895 within sixty (60) days of being served with the decree herein failing which an eviction order to issue on application by the plaintiff.
5. The Deputy Registrar of the Court is hereby authorized to execute any necessary and appropriate documents to effectuate this judgment.
6. The costs of the suit are awarded to the Plaintiff as against the 1st, 2nd and 3rd Defendants.
a. A declaration that the registration of suit property DUNDORI/MUGWATHI BLOCK 2/114 (now known as DUNDORI/MUGWATHI BLOCK 2/892, 893, 894 and 895 in the names of the 1st, 2nd and 3rd Defendants are null and void and should be cancelled. (sic)
b. The 1st, 2nd and 3rd defendants do execute the necessary and relevant conveyance documents to effect registration in favor of plaintiff as the proprietor of parcel of land DUNDORI/MUGWATHI BLOCK 2/114 (now known as DUNDORI/MUGWATHI BLOCK 2/892, 893, 894 and 895 and/or in alternative the deputy registrar do execute the necessary and relevant conveyance document incase the 1st, 2nd and 3rd defendants decline to execute. (sic)
c. An eviction order against the 1st, 2nd and 3rd defendants.
d. An order of permanent injunction restraining the 1st, 2nd and 3rd defendants from interfering with the plaintiff’s quite possession of the suit land.
e. Costs of the suit.
f. Any other relief the Honourable Court deems fit to grant.
Plaintiff’s Case
Chepkwony Moriror, the plaintiff in this case (PW1) relied on the witness statement dated 19th November 2014 which was adopted as part of his evidence in chief. He produced a bundle of documents on 15th October 2019 together with the plaint and a further bundle of documents. He relied on all the documents in support of his case. He testified that he was a member of Kalenjin Enterprises Ltd and that he was a shareholder and was entitled to get one and a half acres. PW1 testified that he bought three shares from three members. PW1 testified that the three members’ shares were combined by the company and he was allocated plot No. 114 which was supposed to be 4.5 acres representing the three shares that he had bought and he was supposed to get title for the land.
That in the lands office he was being asked to come back each time he went there. Eventually, the land office informed him that somebody else had been issued with title to his land. PW1 testified that Lucy Ngendo had been issued title to his land and he complained to the chief who summoned them. PW1 testified that the chief referred them back to the company. PW1 stated that the defendants refused to appear before the company and he decided to go to the District Officer who referred him to the National Land Commission. PW1 testified that the defendants were unlawfully issued title to his land and therefore they were not entitled to the land and he never sold the land to the defendants. He prayed to the court to order the cancellation of the titles issued to the defendants and to direct the title to be issued to him. He lives in the plot which was issued as a consequence of his own shares in the company. The defendants have put up houses on the land and he seeks orders for their eviction. The documents filed on 20th November, 2014 were produced as, PEX 1, PMFI1-2, PMFI -3, PEXI-4, PEX 5, PEX 6, PEX 7, PEX 8, PEX 9, PMFI-10, PMFI.11. The further list of documents dated 15th October 2019 filed on 15th October, 2019 were admitted by the court as the Plaintiff’s exhibits, PEX-12, PMFI-13, PMFI-14, PEX 15 and PEX 16.
Upon cross-examination by Abuya learned counsel, PW1 stated that he was a member of Kalenjin enterprises in 1970 and that there are many members of the company. He stated that he had one share and he got number 272. PW1 stated that three members sold him their shares of the company. He bought the shares of Kiptoo Chemjor, Komen Rerimoi and Cheptum Chepson but they did not show him land. PW1 stated that the shares belonged to the company and the company was giving land to members. PW1 informed the court that the company sold him the land and when he went to the land Dundori/Mugwathi Block 2/114 in 1986, he found nobody in possession. PW1 stated that he saw the land but he did not enter. He went back for the title but never did anything on the land. He later paid for the title on 25th August, 1997 and found someone in the land in 1997. He went to the Tribunal in 2002 and he has filed documents from the Tribunal. That after approaching the Tribunal, nothing happened. PW1 stated that the tribunal ordered that he vacates the land but he refused. PW1 stated that he has a title in his name and the title in Lucy Ngendo’s name is not proper.
Upon re-examination, PW1 testified that he was sold shares and he was a member of the company. The company took him to the land and was shown his portion. The land was being utilized by Chepkei. It took him time to process the title. He also took time to occupy because someone had taken possession. PW1 stated that he took action and he took a case to court. PW1 stated that there was a criminal case which was determined.
David Kiplimo Bor, a farmer and the Director Kalenjin Enterprises testified as PW2 the company was started in 1969 for purposes of buying land. They have members who are captured in a register. He stated that they also have the share certificates for members. He produced the Register as PEX 3. He testified that Chepkwony Mukiror is a member of Kalenjin Enterprises and that he became a member after buying shares from three people. That PW1 bought shares from Chepson, Kiptoo and Rerimoi who were members of Kalenjin Enterprises. PW2 testified that they were given parcel number Dundori/Mugwathi Block 2/114.
PW2 informed the court that when a non-member buys shares from a member, they enter into an agreement before the chief or an advocate. PW2 testified that after entering into an agreement one brings the agreement to the company and he is given clearance to get a title. PW2 testified that the share certificates remain in the name of the member and one who buys shares is give a share certificate. PW2 testified that Kipkwony Mokiror followed the process and the sale agreement was in the name of Chemjor Kiptoo. PW2 was shown PEX 1 and stated that this was the agreement. PW2 stated that they normally give a clearance certificate to the buyer and they do not know Alice Chepkoech.
PW2 was shown document number 14 in the Defendant’s documents and stated that the document does not arise from their office. PW2 testified that the name Kalenjin Enterprises is not on the face of the document. PW2 testified that this land has never had a dispute and they did not know how the defendants got tittle. PW2 testified that Lucy Ngendo did not pay for the title. PW2 testified that a clearance certificate is issued to a buyer and no other person could be issued with the title. The statement dated 15th May, 2024 was adopted by the court as part of PW2’s evidence in chief.
Upon cross-examination by M/s Morande, PW2 stated that he is the Director of Rift Valley Enterprises and previously it was Kalenjin Enterprises Ltd. PW2 stated that it was renamed in 1980 and there were nine directors two of whom died. PW2 stated that he was appointed Director in 2014. PW2 stated that he has the certificate of incorporation and the C.R 12.
PW2 was shown PEX 4 and stated that the parcel number was Dundori/Mugwathi Block 2/ 114. He stated that the title deed had not been issued. PW2 stated that they employed a government surveyor. PW2 stated that one would sell shares and the company would allocate the land. PW2 stated that the shareholders had not been shown their land and they sold shares not land.
Upon re-examination, PW2 testified that he was a director in the year 2014. PW2 stated that when one becomes a director one is given all records. PW2 testified that all records were handed over to him. PW2 testified that the buyer and seller are requested to present themselves to the office before any transfer is done. PW2 testified that during the sale, the share certificate does not change. He testified that document number four is not on the body of the certificate and Lucy Ngendo and John Maina were not members of Kalenjin Enterprises.
Korir Justice testified as PW3. He testified that he is the County Coordinator at the National Land Commission. He testified that his mandate is to manage public land for the government and he deals with matters related to disputes. PW3 testified that he received a letter from the Director National Land Commission dated 29th July, 2025 in respect of this case. PW3 testified that he received a letter from Chepkwony Mokiror dated 18th December, 2017 and it concerned the cancellation of irregularly issued title deeds. PW3 testified that it was for cancellation of title issued in respect of Dundori /Mugwathi /Block2 892,893, 894 and 895.
He informed the court that the parties were summoned severally. That the letters are dated 15th December, 2017, 9th January 2018, 16th January, 2018 and 20th February, 2018. The letters originated from their office and he produced them as exhibits which were marked by the court as PEX 17.
Upon cross-examination by Ms. Morande, PW3 stated that public land is land for public use and the National Land Commission has the mandate to deal with disputes related thereto. PW3 stated that this was private land and he was not aware of the dispute before the court. He stated that the original parcel was Block 2/114. PW3 stated that the letter dated 20th February, 2018 was written four years after the case was filed. He stated that he is not sure whether his predecessor was aware and they do not comment on matters before court. PW3 stated that they were trying to mediate the matter and they gave the parties opportunity to respond in writing. PW3 informed the court that his predecessor relied on the initial beneficiary list and the list had the name of Chepkwony Mukiror. He stated that the National Land Registrar can advise the court to cancel an allocation.
Defendants Case
Alice Chepkoech Seroney (DW1) relied on her statement which the court adopted as her evidence in chief. She testified that she lives at Keringet Molo sub county- Nakuru County and that Ndondori/ Mugwathi Block 2/114 was her land and she sold the land to Lucy Ngendo. She testified that she had the sale agreement which the court marked as DEX1. DW1 testified further that she bought the land from Kalenjin Limited and that she was a shareholder. DW1 testified that she has the receipts which she produced DEX2. She testified that the land belongs to Lucy Ngendo and John Maina.
Upon cross-examination by Kiprop learned counsel for the plaintiff, DW1 stated that she is one member of Kalenjin Enterprises and she was given a receipt to show that she was a member. DW1 stated that she does not have the certificate of shareholding. She stated that she showed Lucy Ngendo the receipt and she was given a certificate of shareholding in her name. DW1 informed the court that someone should answer for her on whether she has a shareholder’s certificate.
DW1 stated that her husband bought the land and her husband knows everything. DW1 stated that they sold with her husband and she was the member of Kalenjin Enterprises. She stated that she does not know John Maina and she bought the land from Kalenjin Enterprises. She stated that she has the receipt only. DW1 stated that she sold the share and she took the agreement to Kalenjin Enterprises. DW1 stated that she is not in the register. Upon re-examination, DW1 testified that she was a member of Kalenjin Enterprises and she sold the land to Lucy Ngendo. She testified that she was given a share certificate.
David Njoroge Ngendo testified as DW2. He testified that he is a businessman and he lives at Mogotio. DW2 testified that Lucy Ngendo Njoroge is her mother and her mother bought land from Alice Seroney. He testified that she was a member of Kalenjin Enterprises. The court adopted the statement dated 30th January, 2023 as part of his evidence in chief. DW2 stated that he has the certificate of confirmation of grant which he produced as DEX 3. He stated that he has a share certificated for Rift Valley Enterprises which he produced as DEX 4. DW2 testified that he has a ruling and a title deed which he produced as DEX5 and DEX 6 respectively. He testified that that the title deed was issued on 6th August, 1997. He testified that the agreement was given to Lucy Ngendo. He testified that the title was issued on 28th January, 2000 which he produced as DEX 7.
DW2 testified that the land was divided into four parcels and the title for David Njoroge Ngendo and Agnes Wanjiru Ngetto is dated 3rd October, 2012. He testified that the title is in their name and he produced DEX 8. DW2 produced the area map as DEX9. DW2 testified that his mother got Block 2/114 from Alice Seroney.
DW2 testified that his mother was given a shareholding certificate in the name of Alice Seroney and the certificate in the name of Alice Seroney was returned to the company. DW2 testified that they were given share certificate and it was stamped at the back. DW2 testified that the share certificate did not have any seal number. DW2 testified that the company had a register and the register is now at the Ministry of land. DW2 testified that the Ministry of lands was sued.
DW2 informed the court that they went to the Tribunal but there is no decision. That his mother bought the land in 1993 and it was a home. DW2 testified that they have lived there until now for thirty-four years and nobody has claimed the land. DW2 prayed that the suit be dismissed.
Upon cross-examination by Mr. Kiprop, DW2 stated that he is the administrator of the Estate of Lucy Ngendo and he did not witness the transaction between Agnes and Lucy. DW2 stated that he did not participate in the transaction. He stated that Agnes was a member of the Kalenjin Enterprises and he does not have a register and he has never requested a register. DW2 stated that he has not called the director of Kalenjin Enterprises and he is not a director. DW2 informed the court that there is a day they were called for a meeting. He stated that he cannot tell the authentication of the share certificate. He stated that his mother bought land and stones. He stated that she bought land that had a building and they went to the Director of Kalenjin Enterprises.
DW2 stated that his mother went before the advocate and he was informed of the same by his mother. DW2 stated that he does not have a clearance certificate. DW2 stated that they have never lived in peace. DW2 was shown PEX 6 and stated that he can see a restriction and this was in 1998. He stated that his mother took title in 2000 and the first title was issued in 1997 in the name of Lucy Ngendo and John Maina. DW2 stated that the criminal case included Mukiror and Alice Seroney and the court did not determine the owner of the land.
Upon re-examination, DW2 testified that he was not a witness in the sale and the share certificate for Alice was returned to the company. He testified that the registration is with the company and the fifth defendant is the Attorney General. DW2 testified that Kalenjin Enterprises are not willing to assist and the office was closed. DW2 testified that he knows a genuine certificate and there was a task force to look into the issue.
DW2 testified that his mother bought land and the evidence was the share certificate. DW2 testified that his mother went to the advocate to establish the position but there was no clearance certificate. DW2 testified that the processing of the title was through the share certificate. He testified that he did not see the receipt. DW2 testified that he did not know of the dispute in 1998 and the tribunal case was in 1970. He testified that the share certificate was in 1997.
Grace Wangare testified as DW3. She testified that Seline Nyambura bought from Alice Seroney and Alice was a shareholder of Kalenjin Enterprises. DW3 testified that she was given a certificate of shares and there is an agreement. She testified that in 1997, a title deed was issued. She testified that the title was in the name of Lucy Ngendo and John Maina Mucheru. DW3 testified that it was registered on 28th January, 2000 and she has a title in the name of John Maina a purchaser which she produced as DEX 7 (b). DW3 testified that the land was divided into five. She testified that her father remained with Dundori/Mugwathi/Block2/893, 894,895 at Muronyi/893. DW3 testified that she has a statement. She testified that she knows John Maina Mucheru who is her husband.
DW3 testified that the pleadings have a typing mistake and the name is not Wachira but Mucheru. The court amended the same to read John Maina Mucheru. The court also adopted her statement as part of her evidence in chief. DW3 testified that her husband bought land Dundori/Mugwathi/Block2/114 and he bought from Seline Nyambura Muiya. DW3 testified that the land is in the name of deceased husband and she knows Seline Nyambura and she bought from Alice Chepkoech Seroney . DW3 testified that Alice was member of Kalenjin Enterprises and she does not have a certificate of shares. DW3 testified that she does not have the registration.
DW3 testified that she has the share certificate in the name of Lucy and Sally and there is no certificate in the name of Lucy and John. She testified that she does not know any issue of a clearance certificate. She testified that her husband dealt with the dispute and her husband sold Block 2/894 to Josphat Karanja and got a title in his name. DW3 produced the title documents as DEX 10. DW3 testified that there was a dispute before the Tribunal She testified that Mukiror had never claimed the land. DW3 prayed that the suit be dismissed.
Upon cross-examination, DW3 stated that she is the legal representative of John Maina and he died in 2001. She stated that she has filed for succession. She stated that she has not brought the grant. She stated that she did not investigate how her husband acquired the land. DW3 stated that they have had disputes and they still have this case.
Upon re-examination, DW3 testified that they done succession and her husband was given a shareholder certificate. She testified that the share certificate was returned and she has no share certificate in her husband’s name. She testified that she was not there and the title was processed by a person whom she does not know. She testified that she does not know where the documents are and her husband did not go to the Tribunal. She testified that she does not know whether her husband investigated and Mukiror has claimed the land.
Plaintiff’s Submissions
Counsel for the Plaintiff filed submissions dated 29th January, 2026 and identified the following issues for determination:
a. Whether the Plaintiff is the lawful owner of land parcel Dundori/Mugwathi Block 2/114 (now Dundori/Mugwathi Block 2/892. 893. 894 and 895)?
b. Whether the Defendants lawfully acquired title to the suit property?
c. Whether the registration and subsequent subdivision of the suit property in favour of the Defendants was fraudulent, illegal and/or unprocedural?
d. Whether the Plaintiff is entitled to the reliefs sought in the amended Plaint?
e. Who bears the costs?
On the first issue, counsel submitted that the Plaintiff has proved on a balance of probabilities that he is the lawful owner of land parcel Dundori/Mugwathi Block 2/114 now subdivided into Dundori/Mugwathi Block 2/892. 893, 894 and 895. Counsel relied on Sections 24 9a), 25 (1) and 26 (1) of the Land Registration Act and the following cases: Munyu Maina vs Hiram Gathiha Maina [2013] eKLR, Makeri Wreck Motors Enterprises vs The Commissioner of Lands 7 Others [1997] eKLR and Elijah Nyang’wara vs Stephen Mungai Njuguna [2013] eKLR.
On the second issue, counsel submitted that the Defendants failure to demonstrate a lawful acquisition process coupled with the unexplained removal of a caveat and immediate subdivision of the suit property leads to the conclusion that the registration and subdivision were fraudulent, illegal and unprocedural. Counsel urged the court to find that the titles held by the Defendants are impeachable and liable to cancellation.
On the third issue, counsel asked the court to grant the reliefs sought in the amended plaint. On the fourth issue, counsel submitted that costs of the suit are awarded at the discretion of the court and while the court has an absolute and unfettered discretion to award or not award them, that discretion must be exercised judicially. Counsel relied on the cases of Jasbir Singh Rai and 3 others vs Tarlochan Singh Rai and 4 others [2014] eKLR and Republic vs Communiaction Authority of Kenya and another ex-parte Legal Advice Centre aka Kituo Cha Sheria [2015] eKLR.
1st, 2nd And 3rd Defendants Submissions
Counsel for the 1st, 2nd and 3rd Defendants filed submissions and identified the following issues for determination:
a. Whether the Plaintiff proved ownership of the suit property?
b. Whether the Defendants’ titles were fraudulently and unlawfully acquired?
c. Whether the Plaintiff’s claim is statute barred?
d. Whether the Plaintiff is entitled to the orders sought?
On the first issue, counsel submitted that the Defendants have demonstrated the root of their title through the testimony of the original owner (PW1), sale agreements, share transfer evidence, issuance of title, subdivision and long possession. Counsel submitted that the Plaintiff on the other hand has failed to demonstrate any registrable interest. Reliance was placed on the following cases: Wreck Motors Enterprises vs The Commissioner of Lands & Others [1997] eKLR, Joseph Arap Ng’ok vs Justice Moijo Ole Keiwua & 4 others [1997] eKLR and Munyu Maina vs Hiram Gathiha Maina [2013] eKLR.
On the second issue, counsel submitted that the Defendants titles originated from a transaction confirmed by the original owner being PW1, the titles were issued by the Land Registrar and the Plaintiff did not call the Land Registrar to demonstrate irregular issuance. Counsel submitted that the dispute concerns private land between private individuals and therefore the National Land Commission had no jurisdiction to purport to determine ownership of private land subject to active court proceedings. Reliance was placed on the case of Republic vs National Land Commission ex parte Holborn Properties Ltd [2016] eKLR.
On the third issue, counsel submitted that evidence shows that the Defendants and their predecessors took possession in 1983 and were issued with title deeds in 1997/2000 whereas the Plaintiff filed the present suit in 2014. Counsel submitted that it is trite that any claim for recovery of land ought to have been brought within twelve years under the Limitation of Actions Act.
On the fourth issue, counsel submitted that the Defendant have demonstrated a clear claim of ownership from the original owner. Counsel asked the court to dismiss the Plaintiff’s suit with costs to the 1st, 2nd and 3rd Defendants and that the Defendant’s titles to Dundori/Mugwati Block 2/892, 893, 894 and 895 be upheld as lawful and valid. Reliance was placed on the case of Arthi Highway Developers Ltd vs West End Butchery Ltd & 6 others [2015] eKLR.
Analysis and Determination
The issues for determination are:
a. Whether the Plaintiff is the lawful owner of land parcel Dundori/Mugwathi Block 2/114 (now Dundori/Mugwathi Block 2/892. 893. 894 and 895)?
b. Whether the Defendants’ titles were fraudulently and unlawfully acquired?
It is the Plaintiff’s case that he is the beneficial proprietor of the parcel of land known as DUNDORI/MUGWATHI BLOCK 2/114 (now known as DUNDORI/MUGWATHI BLOCK 2/892, 893,894 and 895. The Plaintiff averred that there exists a company known as Kalenjin Enterprises Limited, a company buying large tracts of land and selling them to its registered members in small portions.
It is the Plaintiff’s case that in the year 1987, he bought shares from members of the said company known as Cheptum Chepsom, Kiptoo Chemjor and Komen Rerimoi and the said company registered him as the holder of those shares which upon registration was equivalent to 4.5 acres of land.
The Plaintiff averred that the Plaintiff paid to the 4th Defendant Ksh 1,375/= being title deed processing fee for parcel of suit land and he was required to pick the title deed after two weeks. The Plaintiff averred that he went to the 4th Defendant’s offices to take the title deed to the suit land but to his surprise the 4th Defendant informed him that the title had been registered in the name of the 1st and 2nd Defendants. The Plaintiff went on to list the particulars of fraud on the part of the 1st, 2nd, 3rd, 4th and 5th Defendants.
It is the 1st, 2nd and 3rd Defendant’s case that they are the registered owners of all those parcels of land known as Dundori/Mugwathi Block 2/892, Dundori/Mugwathi Block 2/893, Dundori/Mugwathi Block 2/894 and Dundori/Mugwathi Block 2/895 which parcels are as a result of subdivision of all that parcel of land known as Dundori/Mugwathi Block 2/114 initially owned by Lucy Ngendo Njoroge and Sally Nyambura Mugo.
It is the 1st, 2nd and 3rd Defendant’s case that they have been in continuous and exclusive possession of the said properties since 1983 and as such the Plaintiff is not entitled to the orders sought. The 1st, 2nd and 3rd Defendant’s denied the particulars of fraud as pleaded by the Plaintiff.
It is the 4th and 5th Defendants case that all of the 4th Defendant’s actions have not been fraudulent and they have been undertaken procedurally and within the law.
Fraud has been defined in Black’s Law Dictionary 11th Edition as;
“A knowing misrepresentation or knowing concealment of material facts made to induce another to act to his or her detriment.”
It is an established principle of law that a claim based on fraud must be specifically pleaded and strictly proved. The Court of Appeal in the case of Vijay Morjaria Vs Nansingh, Madhusingh Darbar & another [2000] eKLR held thus;
“It is well established that fraud must be specifically pleaded and the particulars of fraud alleged must be stated on the face of the pleading. The act alleged to be fraudulent must of course be set out and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved and it is not allowable to leave fraud to be inferred from the facts.”
The Plaintiff in the amended plaint dated 1st April, 2019 listed the particulars of fraud on the part of the 1st, 2nd and 3rd Defendants as follows:
a. Obtaining title when they knew or ought to have known that the suit parcel was allocated to them.
b. Failing to make full disclosure to the relevant authorities that the suit parcel belonged to the plaintiff.
c. Obtaining title document without consent of the plaintiff.
d. Further obtaining the subdivision of the parcel of land DUNDORI/MUGWATHI BLOCK 2/114 into four portions DUNDORI/MUGWATHI BLOCK 2/892, 893, 894 and 895.
e. Obtaining the titles for parcels of land DUNDORI/MUGWATHI BLOCK 2/892, 893. 894 and 895 in their names.
The Plaintiff listed the particulars of fraud on the part of the 4th and 5th Defendants as follows:
a. Registering the suit land DUNDORI/MUGWATHI BLOCK 2/114 in the names of the 1st and 2nd defendants although the records at the 4th Defendants registry indicate that the plaintiff had paid for the fees required to process title in his name.
b. Failing to register the suit lands in the name of the plaintiff.
c. Facilitating and/or permitting further subdivisions of DUNDORI/MUGWATHI BLOCK 2/114 into four portions DUNDORI/MUGWATHI BLOCK 2/892, 893, 894 and 895.
d. Registering the title documents of parcels of land into four portions DUNDORI/MUGWATHI BLOCK 2/892, 893, 894 and 895 in the names of the 1st, 2nd and 3rd Defendants.
DW1 testified that Dundori/ Mugwathi Block 2/114 was her land and she sold the land to Lucy Ngendo. She testified that she has a sale agreement which the court marked as DEX1. DW1 testified that she bought the land from Kalenjin Limited and she was a shareholder. DW1 testified that she has the receipts and she produced DEX2. DW1 stated on cross-examination that she is one member of Kalenjin Enterprises and she was given a receipt to show that she was a member. DW1 stated that she does not have the certificate of shareholding. She stated that she showed Lucy Ngendo the receipt and she was given a certificate of shareholding in her name. It was incumbent upon DW1 to prove that she was a shareholder of Kalenjin Enterprises Limited and that she bought the land from the same company as alleged.
The Plaintiff on the other hand has tendered documentary evidence in form of copies of share certificates issued by Kalenjin Enterprises to Cheptum Chepsom, Kiptoon Chemjor and Komen Kerimoi and these are the shares that he stated in his evidence that he purchased from these members. The Plaintiff further exhibited copies of the sale agreements he entered with the three members of the company. On account of the three bought shares, the Plaintiff was allocated plot number 114. The company issued a confirmation vide a document dated 15th August, 2014 signed by Elijah K Chelaite who was the Chairman of Kalenjin Enterprises Ltd.
The Plaintiff tendered in evidence a receipt No D682898 issued to him by the Department of Lands dated 25th August, 1997 for Ksh 1,375 on account of registration, search fees, opening of register, attestation and stamp duty in respect of DUNDORI/MUGWATHI BLOCK 2/114. Rift Valley Enterprises subsequently on 24th August, 1997 issued the Plaintiff with the members clearance certificate No. 852 for plot DUNDORI/MUGWATHI BLOCK 2/114 to enable the Plaintiff pay for the processing of the title which he did the very next day.
The Plaintiff has exhibited a search certificate for land parcel Dundori/Mugwathi Block 2/114 issued on 17th December, 1998 which showed that the 1st and 2nd Defendants were the registered owners on 18th November 1993 and a title deed issued to them on 6th August, 1997.
Section 24 (a) of the Land Registration Act, 2012 provides:
24. Subject to this Act:
(a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and
Section 25 (1) provides:
(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—
Section 26 (1) provides:
(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
In the case of ELIJAH MAKERI NYANGWARA v STEPHEN MUNGAI NJUGUNA & another [2013] eKLR the court held as follows:
"…it needs to be appreciated that for Section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions."
This court has looked at the evidence adduced and finds that the Plaintiff was lawfully allocated land parcel Dundori/Mugwathi Block 2/114. He properly paid for the processing of the title for the land and should have been issued with title to the specific parcel of land. The records of Rift Valley Enterprises Ltd (Kalenjin Enterprises Ltd) who were the owners of the land show that the suit property was allocated to the plaintiffs as shown in the abstract of their register and the clearance certificate issued to the plaintiff. The 1st and 2nd Defendant’s registration as the owners was either illegally or fraudulently obtained and no good title passed to them. I find that the Plaintiff has proved his case on a balance of probabilities and I therefore issue the following orders:
1. That the plaintiff is hereby declared to be the valid and lawful owner of land parcel Dundori/Mugwathi Block 2/114 (now subdivided into land parcels Dundori/Mugwathi Block 2/892, 893,894 and 895.
2. The registration of the 1st, 2nd and 3rd defendants as the owners of land parcels Dundori/Mugwathi Block 2/892, 893, 894 and 895 being resultant subdivisions from land parcel Dundori/Mugwathi Block 2/114 is hereby declared null and void.
3. The Land Registrar is hereby ordered to cancel the registration of land titles Dundori/Mugwathi Block 2/892, 893, 894 and 895 and to restore land title Dundori/Mugwathi Block 2/114 in the register and to register the plaintiff, Kipkwony Muriror as the owner thereof.
4. The 1st, 2nd and 3rd defendants are ordered to vacate from land parcel Dundori/Mugwathi Block 2/114 (now known as Dundori/Mugwathi Block 2/892, 893, 894 and 895 within sixty (60) days of being served with the decree herein failing which an eviction order to issue on application by the plaintiff.
5. The Deputy Registrar of the Court is hereby authorized to execute any necessary and appropriate documents to effectuate this judgment.
6. The costs of the suit are awarded to the Plaintiff as against the 1st, 2nd and 3rd Defendants.