1. This suit was instituted by way of the Plaint dated 30th October 2020. The Plaintiffs claim is that the suit land originally known as Mutomo/UAE/382, exclusively belonged to his late father, one Kitunguu Mukandi, at the time being an unsurveyed parcel of land.
2. On or about 1969, out of benevolence, good neighborliness and exercising all his rights, his deceased father donated part of his land to the public through Kitui County Council as a public utility for development.
3. Thereafter, the local assistant chief, one David Nzainga Mui subdivided the land and awarded several portions to a local women’s’ group by the name Kaweto, football pitch for children, Africa Brotherhood Church and a landless lady by the name Esther Mwinza Kamuti.
4. Later, a land dispute arose between the 1st-3rd defendant’s husband, who is now deceased and Maanzo Malombe relating to the borders of the donated public land and the adjacent parcels of land.
5. The Plaintiff averred that during the hearing of the said dispute, the defunct Kitui County Council misled the tribunal occasioning the parcel of land inclusive of the public land to be awarded to the 1st -3rd defendants’ husband without the involvement of the donor of the said land, the plaintiff’s father.
6. The Plaintiff upon learning of this determination, lodged complaint against the Tribunal’s decision in his capacity as the sole beneficiary of his father’s estate, which resulted in the parcel of land being awarded back to the defunct Kitui County Council.
7. The 1st -3rd defendants’ husband appealed the said decision without involving the Plaintiff, which the Plaintiff claims was a violation of the principles of fair hearing and natural justice as the case was determined against him. He therefore appealed the verdict vide Adjudication Objection 3/2002, which appeal is still pending hearing and determination as the 1st -3rd defendants’ husband died before the matter was heard and substitution was not done.
8. The Plaintiff’s claim is that the 4th and 5th defendant illegally fraudulently, unprocedurally and through a corrupt scheme issued a title deed in the names of the 1st-3rd defendant’s husband, which was later transferred in the names of the 1st -3rd defendants jointly and later subdivided and individual titles in their names were issued.
9. The Plaintiff particularized the claim of fraud and misrepresentation on the part of the 1st-3rd defendants as ignoring the plaintiff’s proprietary rights over the suit land, failing and/or ignoring to follow on the procedure of law, especially the law of succession and, colluding with the 4th defendant to be registered as the owners of the suit land and subdividing it when there is still a pending appeal/ objection, without obtaining consent or obtaining letters of administration.
10. The Plaintiff states that there is still a pending Appeal/Objection in Land Adjudication being Objection No.3/2003 in respect of the suit properties that has never been determined.
11. The Plaintiff prays for the following orders:
a. An order of permanent injunction restraining the 1st-3rd defendants whether by themselves, their servants, agents, workers or any other person claiming under him from entering, trespassing, moving into, seeking to occupy, alienating and/or in any other manner whatsoever from interfering with the plaintiff’s right of ownership, possession, occupation or use of the suit land.
b. A declaration that there is a pending appeal/objection being number 3/2003 in respect to the suit properties.
c. A declaration that the plaintiff herein, Mwikya Kitunguu, is the rightful and legal owner of all that land parcel no. Mutomo/UAE/382 and later subdivided and registered and title deeds issued into names of the 1st -3rd defendants being Mutomo/UAE/680, Mutomo/UAE/681 and Mutomo/UAE/682 and he is thereto as the absolute and indefeasible owner thereof and is further entitled to all rights and privileges belonging or appurtenant thereto.
d. An order for the cancellation of the title deeds issued in the names of the 1st -3rd defendants on 23/6/2020 by the 4th defendant in respect of the suit properties and the plaintiff’s name be reinstated for the said properties in favour of the plaintiff.
e. That the District Land Adjudication and Settlement Officer Mutomo District and then County Land Surveyor be and hereby ordered to conduct a fresh adjudication and demarcation of the disputed suit properties.
f. Costs and interest of this suit.
g. Any other prayer that this Honourable Court may deem fit to grant in the circumstances.
The 1st-3rd Defendants’ Statement of Defence
12. The 1st -3rd defendants denied the allegations in the Plaint particularly that they had any part in the irregularities, fraud and misrepresentation attributed to them and put the plaintiff to strict proof thereof.
13. They instead stated that their husband Mwangangi Ivuti transferred his land title number Mutomo/Uae/382 to his three wives (the 1st-3rd defendants respectively) during his lifetime after winning the ownership dispute against the plaintiff and the said land was procedurally and subsequently divided into three parcels, Mutomo/Uae/680, Mutomo/Uae/681, Mutomo/Uae/682, with each widow getting their respective share.
14. The 1st -3rd defendants state that their titles are free from encumbrances and that the plaintiff is only moved by greed and speculation as the said alleged appeal in Kitui Land Adjudication is non-existent.
4th, 5th and 6th Defendant’s Statement of Defence
15. The 4th, 5th and 6th Defendant’s denied the allegations against them in their statement of defence and put the plaintiff to strict proof thereof.
16. They stated that if any adjudication and registration was done, the same was done procedurally and within the confines of the law, as they prayed that the Plaintiff’s suit be dismissed with costs.
The Hearing of the Suit
17. The hearing of the suit started on 8th March 2023 when the Plaintiff gave his evidence by adopting his witness statement dated 30th October 2020 and his bundle of documents of even date.
18. In his witness statement, he reiterated the contents of his Plaint, that in the year 1969, the area where the suit land is was unsurveyed and his father, Kitunguu Mukandi donated part of his parcel of land to the public through the now defunct Kitui County Council as a public utility.
19. Thereafter, the local assistant chief, one David Nzainga Mui subdivided the donated parcel of land and awarded several portions to different persons and entities.
20. After all this had been done, a land dispute arose regarding a totally different parcel of land between the 1st-3rd defendant’s husband, who is now deceased and Maanzo Malombe relating to the borders of the donated public land and the adjacent parcels of land.
21. The Plaintiff averred that during the hearing of the said dispute, the defunct Kitui County Council misled the tribunal occasioning the parcel of land inclusive of the public land to be awarded to the 1st -3rd defendants’ husband.
22. The Plaintiff upon learning of this determination, lodged complaint against the Tribunal’s decision in his capacity as the sole beneficiary of his father’s estate, which resulted in the parcel of land being awarded back to the defunct Kitui County Council.
23. The 1st -3rd defendants’ husband appealed the said decision to the Adjudication Board case 5/2002, without involving the Plaintiff. The decision reverted the parcel of land Plot No.382 Uae Adjudication Section to the 1st -3rd defendants’ husband.
24. The Plaintiff therefore appealed the verdict vide Adjudication Objection 3/2003, which appeal is still pending hearing and determination.
25. The Plaintiff states that the 4th defendant then illegally, fraudulently, unprocedurally and through a corrupt scheme issued Title deed of the Land Parcel Mutomo/Uae/382 measuring approximately 11.02Ha to David Mwangangi Ivuti, the 1st -3rd Defendants’ husband.
26. The Plaintiff approached the 1st Defendant, who was aware of the history of the Land Parcel and she concurred that the suit land indeed belonged to the Plaintiff’s father and agreed with the other wives (2nd and 3rd defendants), requesting the Plaintiff to sell the suit property to them, together with other residents, who paid a substantial amount of part payments.
27. He stated that he thereafter learnt that some younger members of the 1st -3rd defendants’ family visited the 4th defendant’s land board to legalize the same and have the land subdivided and a title issued individually in the 1st -3rd defendants’ names. A meeting by the Land Control Board was held on 29/8/2019 with this view was held, but the same was not attended by the 1st Defendant/Respondent. A meeting by the Aombe (Nzoka Kaemi) Divisional and Locational Clan Committee as well as held on 12/10/2019 with the same view of partitioning the suit land in the 1st -3rd defendants’ name, without their involvement.
28. On 3/3/2020, the Plaintiff, through his advocates issued a letter to the 4th Defendant, requesting them to enter a restriction, and another letter on 6/8/2020 requesting them to cease any alterations on the title but the same was ignored and disregarded.
29. Thereafter, on 31/8/2020 and 4/9/2020, the Plaintiff conducted a search on the suit property and found that the suit property was sub-divided into individual titles in the 1st, 2nd and 3rd defendants’ names, which titles the Plaintiff states were acquired illegally, fraudulently, unprocedurally, through a corrupt scheme as at all material times the land was subject to the adjudication process.
30. The 1st-3rd defendants are now moving into, seeking to occupy, alienating, subdividing, beaconing and fencing the suit land, with a view of evicting him, notwithstanding his age and health. He sought the Court to grant him his prayers as prayed for in the Plaint.
31. On cross-examination, the Plaintiff stated that his father had a case over the suit land with Mwangangi Ivuti, the husband to the 1st-3rd defendants which only went up to the objection stage, where the land was awarded to Mwangangi Ivuti. He appealed to the Minister, but the same was not heard.
32. He further stated that the defendants do not use nor cultivate on the land but that they graze their animals there because the Court issued an order stopping the use of the land.
33. PW 2 Ruth Kiema also gave evidence, adopting her witness statement dated 21st October 2022. Therein she had stated that she is the 3rd wife of Kiema Mutunga, who is now deceased. PW 2 states that she and her husband moved to Uae/Mutomo parcels of land in the early 1960s, where they lived together until his demise and the family still lives there to date, having constructed a permanent house therein.
34. She stated that her parcel of land borders that which belongs to the Plaintiff’s father, whose boundaries were marked using sisal, stating that the suit land belongs to the Plaintiff’s father.
35. PW 2 further stated that the Plaintiff’s father donated his part of his portion of land to the public and gave it to the County Council of Kitui. The community constructed the Kawetu Dam thereon and some was donated to ABC Church which constructed thereon. That Mwangangi and Maanzo had a land dispute where Mwangangi took a parcel of land which belonged to the Plaintiff’s father. Maanzo, her late husband was never called as a witness in the said dispute. She does not know how the land got to be in the 1st -3rd defendants' names.
36. In cross-examination, PW 2 stated that survey people already came to their area, but she did not know the Land Reference number of the suit property.
37. PW 3, David Nzangu Mui also gave his testimony adopting his witness statement dated 21st October 2022 as his evidence in chief.
38. He stated that he settled in Uae in 1944, where they carried on livestock keeping and farming. In 1975, he was the area assistant chief and he recalled that the suit property belonged to the plaintiff’s father, which he donated to the public. The said parcel of land was demarcated and boundaries set thereon. The community constructed the Kawetu Dam thereon and some was donated to ABC Church which constructed thereon.
39. There was no dispute on the suit parcel at the time. Thereafter, the Plaintiff approached him and informed him that the 1st -3rd defendants’ husband had grabbed his father’s land and possessed all the public land which the plaintiff’s father had donated.
40. Upon cross-examination, PW 3 stated that he retired as Assistant Chief in 1992. He could not remember when survey was done, but at the time, the Plaintiff’s father had died. He did not remember the Land Reference Number of the suit parcel and stated that the Church that was constructed is still there.
41. PW 4 Sylvester Singi adopted his witness statement dated 21st October 2022 as his evidence in chief as well as the bundle of documents included together with the list of the same date
42. In his statement, he confirmed knowing the parties to this case. He knew that the suit land belongs to the Plaintiff. He purchased a parcel of land 50 x 100 feet from the plaintiff, which the 3rd defendant witnessed and he paid her Ksh.1, 000/= as a witness as required by Kamba custom (Usuu).
43. His parcel was surveyed and beaconed in the presence of the Plaintiff and the 3rd defendant. He thereafter constructed a temporary structure.
44. The Defendants case commenced with DW 1 Beatrice Vivi Mwangangi, the first Defendant who adopted her witness statement and bundle of documents and further bundle of documents as her evidence in chief. She stated that after the objection proceedings, her late husband Mwangangi Ivuti transferred his land title number Mutomo/Uae/382 to her and the 2nd and 3rd defendants as his wives, with each widow getting their respective share.
45. She stated that the said titles are free from any encumbrances as they are not subject to any lawful caveat as she stated that the plaintiff is being moved by greed and speculation.
46. DW 1 stated that to her knowledge, there was no appeal filed against the objection before the Land Adjudication and Settlement officer challenging the award of the suit land to her husband. That the disputes that touched on the mother title number Mutomo/Uae/382 were fully resolved in favour of the 1st, 2nd and 3rd defendants’ late husband before the land was transferred and subdivided in their names.
47. On cross-examination, DW 1 stated that she is the 1st wife of Mwangangi Ivuti. Because of advanced age, she stated that she could not remember how her husband acquired the suit land. She confirmed that there was a dispute between her husband and other parties over the suit land and that she participated in the hearing of the dispute.
48. DW 2 Lydia Muthanga Mwangangi stated that she is the 2nd wife of Mwangangi Ivuti (Deceased) and also adopted her witness statement, dated 8th July 2022.
49. Her statement is that after the objection proceedings, her late husband Mwangangi Ivuti transferred his land title number Mutomo/Uae/382 to her and the 1st and 3rd defendants as his wives, and the same was subdivided into three parcels being Mutomo/Uae/680, Mutomo/Uae/681 and Mutomo/Uae/682 with each widow getting their respective share.
50. DW 3 Diana Muthini Mwangangi adopted her witness statement dated 16/10/2023 as evidence, where she had reiterated the statements of the 1st and 2nd defendants, her co-wives. She further stated that the Objection case number 3 of 2003 lodged in respect to Land Parcel Number 382 Uae Adjudication Section by Mwikya Kitunguu against her late husband Mwangangi Ivuti, was heard and determined in their favour on 14th August 2003. At the time of hearing, their late husband was then deceased, therefore they nominated his half-brother Kisiu Ivuti to represent him.
51. After the Objection was heard and determined, the Land Adjudication Officer directed the demarcation officers to replace the name of Mwangangi Ivuti with that of his three widows, which was done and their names were inserted in the Adjudication Record after the Objector failed to appeal to the Minister.
52. When the title deed for the property was issued in their joint names, they proceeded to apply for sub-division of the suit land and title numbers Mutomo/Uae/680, Mutomo/Uae/681 and Mutomo/Uae/682 were created, with each widow getting their respective title.
53. On cross-examination, she confirmed that she could not read, and did not remember when she got married but recalled that her husband died in March 2003. She knew there was a case regarding the suit land. She also recalled the names of the owners of the parcels of land bordering her parcel of land.
54. She stated that it was her children who were involved in sub-dividing the suit parcel, which resulted in her acquiring title in her name. She denied that anyone bought a portion of the suit land and denied being a witness to any such agreement.
55. DW 4 Isaac Kithuku Nguti adopted his witness statement dated 7th July 2022. He stated that David Mwangangi Ivuti accommodated his brother in law from Voo location by the name Maanzo Malombe, the Plaintiff’s father and gave him a portion to cultivate and live in.
56. When Maanzo Malombe married a 2nd wife, Mwangangi Ivuti gave him notice to vacate the land he had given him and he obliged and went to live in a nearby area.
57. When land adjudication was declared in Uae area, the local community wanted the area that Mwangangi Ivuti had given to Maanzo Malombe to be given to the County Council of Kitui, when the said Maanzo Malombe learned of this, he lodged a claim that was dismissed.
58. Upon learning of this claim, Mwangangi Ivuti reclaimed his land from the County Council of Kitui and the land adjudication officers reverted it to him and no other claim was raised.
59. Later on, the Plaintiff attempted to revive the case on behalf of his late father Maanzo Malombe, the case was dismissed and the land remained for Mwangangi Ivuti. That Mwangangi Ivuti and his 3 wives appeared before the close of land adjudication officers and the land was transferred to his three widows before the close of the Land Adjudication register for the area.
60. On cross-examination, DW 4 stated that the defendants are his aunts and he knew their deceased husband, Mwangangi Ivuti.
61. He further stated that Mwangangi Ivuti wrote a will for the suit land to go to his three wives. This was the close of the 1st -3rd defendants’ case.
62. DW 5, Ali Hussein Chemasuet, the land adjudication and settlement officer at Mutomo adopted his witness statement dated 20th May 2024 as well as the bundle of documents dated 17/5/2024 and amended on 20/5/2024 as his evidence in chief.
63. In his statement, he confirmed that Objection Number 3 of 2003, which was lodged by the Objector Mwikya Kitunguu, the Plaintiff herein for plot number 382 Uae Adjudication Section was heard on 18th June 2003. The deceased Mwangangi Ivuti was represented by his half-brother, Kisiu Ivuti. He stated that during the said proceedings, none of the parties availed a witness.
64. DW 5 summarized the parties’ statements during the objection proceedings, indicating that there was a case decided by the District officer at Kitui Law Courts, where it was ordered that Maanzo Malombe vacate the suit property because it belonged to David Mwangangi Ivuti.
65. The witness stated that he visited the suit property on 15th July 2003 to verify the claims made by both parties and discovered that there are no actual developments made by either of the parties on the suit land. He saw a playing field, an African Brotherhood Church, a mall earth dam and two shops, one belonging to Kilunda Kamuti and the other to the Respondent, David Mwangangi Ivuti as well as a temporary structure for one Esther.
66. From the documents and the site visit, DW 5 concluded that the Objector filed the proceedings instead of the defunct Kitui County Council for the suit property to revert back to them. His statement is that the Plaintiff cannot legally advocate on behalf of the defunct county council, since the suit land was already donated to it by David Mwangangi Ivuti. These were the reasons he gave for dismissing the objection. He granted the objector the right to appeal within 60 days and replaced the name of David Mwangangi Ivuti with the names of the 1st -3rd defendants.
67. Upon cross-examination by the Plaintiff’s Counsel, DW 5 stated that he was not the one who recorded the decision in the Objection, this was done by his predecessor. He also stated that there was no document to show that authority to represent Mwangangi Ivuti was given to Kisiu Ivuti. He stated that they normally request the area chief to write a letter to confirm the wives of the deceased, which letter they did not produce. He also acknowledged that they did not have letters of administration for the deceased.
68. On cross-examination by counsel for the 1st -3rd defendants, DW 6 stated that under the Land Adjudication Act, letters of administration are not necessary in order to proceed.
69. DW 6 Joseph Njagi, the District Land Registrar, Kitui Lands Registry adopted his statement dated 17th May 2024, in which he had stated that according to the records in their offices, Land Reference Number Mutomo/Uae/382 was first registered on 6th June 2007 in the joint names of the 1st -3rd defendants, having common ownership with each having a third of undivided shares.
70. On 23rd June 2020, the Title was closed for sub-division and new resultant titles were created, that is; Mutomo/Uae/680 in the name of Lydia Muthanga Mwangangi, Mutomo/Uae/681 in the name of Beatrice Vivi Mwangangi and Mutomo/Uae/682 in the name of Diana Muthini Mwangangi all as first registrations. However, Mutomo/Uae/681 was later transferred to Petronilah Maria Mulwa on 23rd June 2022.
71. DW 6’s statement therefore is that there has never been any land register opened by their office in favour of the Plaintiff and the allegations of the Plaintiff claiming cancellation of his name from the land register are untrue.
72. DW 6 was cross-examined by counsel for the Plaintiff, who referred him to page 111 of their bundle of documents, where the letter addressed to the Lands office was received on 12th May 2024 and a receipt of Ksh.1000/= was issued. It was noted that the letter was done before subdivision and that there is no record of a restriction having been registered as requested. He acknowledged that the letter was not responded to.
73. On cross-examination by Counsel for the 1st -3rd Advocates, the Land Registrar noted that there were no records indicating that an appeal to the Minister had been filed with respect to Land Parcel 382 Uae Adjudication Section.
74. The Plaintiff’s submissions and those of State Counsel for the 4th -6th Defendants are not on the e-filing CTS platform nor in the Court file.
The 1st ,2nd and 3rd Defendants’ Submissions
75. Counsel for the 1st, 2nd and 3rd defendants submitted that the Plaintiff has failed to prove his case against the defendants, being that his claim that there was an appeal pending to the Minister in adjudication was dispelled.
76. It was submitted that this was confirmed by the 4th -6th defendants’ case, when the Land Adjudication officer and land registrar testified on this and produced evidence.
77. It is their conclusion that the Plaintiff has no reasonable cause of action and prayed that the suit be dismissed with costs.
Analysis and Determination
78. The Plaintiff has brought this suit against the defendants, claiming that the suit property was registered in the names of the 1st-3rd defendant, while there was a pending appeal in the adjudication process, which he states was a fraudulent and unprocedural registration.
79. The Court has considered the pleadings filed, the evidence adduced and the submissions on record. The Plaintiffs Counsel filed a statement of issues for determination dated 18th November 2022. The court is of the view that the issues stated may be consolidated as follows
A) Whether there exists a pending appeal/objection in Uae Adjudication section being appeal/objection No 3 /2003 Mutomo in respect of the suit land.
B) Whether the registration of Land Parcel Number Mutomo/Uae/382 in the names of the 1-3rd Defendants and subsequent subdivision was done illegally, fraudulently, unprocedurally and/or through a corrupt scheme.
C) Whether the Plaintiff is entitled to the orders sought.
D) Who will bear the costs of this suit?
80. On the first issue, the Plaintiff claims that during land adjudication in the UAE adjudication section, a dispute arose between the 1st-3rd defendant’s husband, and Maanzo Malombe relating to the borders of the donated public land and the adjacent parcels of land. The Plaintiff averred that during the hearing of the said dispute, the suit parcel of land was awarded to the 1st -3rd defendants’ husband without the involvement of the donor of the said land, the plaintiff’s father who had donated the land to the defunct Kitui County Council.
81. The Plaintiff lodged a complaint against the Tribunal’s decision, which resulted in the parcel of land being awarded back to the defunct Kitui County Council.
82. The 1st -3rd defendants’ husband appealed the said decision to the Adjudication Board case 5/2002, without involving the Plaintiff, which he claimed was a violation of the principles of fair hearing and natural justice as the case was determined against him. The decision reverted the parcel of land Plot No.382 Uae Adjudication Section to the 1st -3rd defendants’ husband, Mwangangi Ivuti (deceased).
83. The Plaintiff claims that he thereafter appealed the verdict vide Adjudication Objection 3/2003, which appeal is still pending hearing and determination as the 1st -3rd defendants’ husband died before the matter was heard and substitution was not done.
84. In support of his case, the Plaintiff exhibited the proceedings before the Land Committee case number 5/2001 relating to land parcel number 382. The final decision of the committee was that the suit parcel of land was awarded to Kitui County Council. The Plaintiff further exhibited his Memorandum of Objection against the decision of the committee. In the said Memorandum he stated that an appeal to the Adjudication Board was lodged against the Committee decision and the Adjudication Board reverted the land to Mwangangi Ivuti the husband to the 1-3rd Defendants in this case.
85. He further exhibited Land Adjudication Summons requiring him to appear for hearing of an Objection to Adjudication Register for land parcel number 382.
86. The Plaintiff claims that the Objection was not heard and that the suit property was registered in the name of the deceased without following due procedure.
87. On the other hand, the defendants state that the Objection case number 3/2003 was heard and determined in favour of Mwangangi Ivuti (Deceased), and the suit property was registered in the names of the 1st, 2nd and 3rd defendants jointly as his beneficiaries. The land was later subdivided and titles were issued in their individual names.
88. The 1-3rd Defendants exhibited Land Objection proceedings with regard to the suit land number 382 being objection case number 3/2003 and the decision thereof. The said case is shown to have been heard by the Land Adjudication Officer Philip M. Muli and a decision rendered on 14th August 2003.
89. From the documents exhibited by DW 5, the Land Adjudication and Settlement officer at Mutomo as Plaintiff Exhibit 4, it was confirmed that Objection Number 3 of 2003 for plot number 382 Uae Adjudication Section, was heard on 18th June 2003 and decision was rendered on 14th August 2003. The deceased Mwangangi Ivuti was represented by his half-brother, Kisiu Ivuti.
90. The proceedings show that the Objector was Mwikya Kitunguu the Plaintiff herein while the Respondent was David Mwangangi who was then deceased. The objector testified and was cross-examined by the Respondent’s representative and by the Land Adjudication Officer. The Respondent’s representative also testified and was cross-examined by the Objector and the Land Adjudication Officer. The Land Adjudication and Settlement Officer made his findings and rendered a decision where he found no reason to allow the objection and consequently, the objection was dismissed with costs. The Plaintiff was informed of his right of appeal within 60 days from the date of delivery of the decision.
91. DW 5 stated that the Plaintiff did not appeal, therefore the registration process proceeded according to the adjudication register as recorded.
92. From the forgoing narration of the evidence adduced, the court finds that the objection case No. 3 /2003 was heard and determined by the court Adjudication & Settlement Offices Uae Adjudication Section and decision rendered on 14th August 2003. The court further finds that the Plaintiff did not produce any evidence that he appealed the decision of the Land Adjudication and Settlement Officer in the Objection case number 3/2003. He did not produce a memorandum of appeal to the Minister nor a receipt indicating that he paid for the appeal as provided under Section 29 of the Land Adjudication Act. The said section allows for appeals against the decision by the Land Adjudication and Settlement Officer within sixty days of the said appeal. It states that;
“Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by—
(a) delivering to the Minister an appeal in writing specifying the grounds of appeal; and
(b) sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final”
93. Section 27 provides for finalization of adjudication register, subject to appeals to the Minister and states that;
(1) The adjudication officer shall from time to time alter the adjudication register to conform with any determinations of objections under section 26 of this Act.
(2) If the adjudication officer considers that to alter the adjudication register would incur unreasonable expense, delay or inconvenience, he may, instead, recommend to the Minister that compensation be paid and the Minister may make such payment of compensation out of moneys provided by Parliament as he thinks fit.
(3) When all objections have been determined and the time for appeal under section 29 of this Act has expired, the adjudication officer shall send the adjudication register to the Director of Land Adjudication together with particulars of all determinations of objections and the Director shall—
(a) alter the duplicate adjudication register accordingly; and then
(b) certify on the adjudication register and on the duplicate adjudication register that it has become final subject to the outstanding appeals; and
(c) forward the adjudication register to the Chief Land Registrar together with a list of the appeals.
94. From the foregoing provisions of the law, when the decision of the Land Adjudication and Settlement Officer was made on 18th August 2003, the Plaintiff had sixty days within which to lodge an appeal to the Minister. When the Plaintiff did not file the said appeal, the correct procedure was to follow the provisions of Section 27 (3) where the adjudication Officer was to send the adjudication register to the Director of Land Adjudication together with particulars of all determinations of objections and the Director was then obliged to alter the duplicate adjudication register according to the decision arrived at in the objection.
95. In the present case the register would be amended to show the owner David Mwangangi Ivuti and as replaced by Beatrice Vivi Mwangangi, Lydia Muthanga Mwangangi and Diana Muthini Mwangangi. Further to this the Director was to certify on the adjudication register and on the duplicate adjudication register that it has become final subject to the outstanding appeals; and forward the adjudication register to the Chief Land Registrar together with a list of the appeals.
96. Since in this case there was no appeal filed to the Minister, the Chief Land Registrar was under an obligation to act in accordance with Section 28 which provides that upon receiving the adjudication register under section 27 of this Act, the Chief Land Registrar is to cause registrations to be effected in accordance with the adjudication register.
97. On the second issue, the Plaintiff contends that the 1st -3rd Defendants’ titles should be cancelled by the 4th defendant and replaced with his name because they were issued fraudulently, unprocedurally and through a corrupt scheme.
98. Section 26 Land Registration Act No.3 of 2012 under Section 26(1) which provides that:
“(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”
99. However, in my opinion, the Plaintiff has not discharged his burden of proof to show that the 1st – 3rd Defendants acquired their titles fraudulently, through misrepresentation, illegally, unprocedurally or through a corrupt scheme. This is as provided under Section 107 (1) of the Evidence Act which states that;
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
Sub-section (2) provides that
“When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
100. The 1st-3rd Defendants have shown through evidence that they obtained their title deeds after their husband was awarded the same through the land adjudication process. The 4th-6th Defendants have also shown through evidence that the land adjudication process as set out in this Judgment was followed and as a result the 1st-3rd Defendants were issued their title deeds.
101. The Plaintiff herein failed to follow the land adjudication dispute resolution process to the end by filing an appeal to the Minister after the decision of the Land Adjudication and Settlement Officer was rendered. The Plaintiff cannot bypass that process and bring the same dispute to court without having exhausted the procedure laid down by the law.
102. Legal authorities abound that hold that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process. This was well set out in the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR, which was relied upon by State Counsel, where the Court of Appeal held that: -
“… In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observed without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions....”
103. The court finds that the particulars of fraud claimed by the Plaintiff were not proven as is required by the law. It was held by the Court of Appeal in the case of Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000]eKLR that:
“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts 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 as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts. See Davy v Garrett (1878) 7 Ch. D 473 at 489.”
104. In the end the court finds that the titles to Land parcel no. Mutomo/UAE/382 later subdivided into Mutomo/UAE/680, Mutomo/UAE/681 and Mutomo/UAE/682 remain indefeasible as registered.
105. In the case of Willy Kipsongok Morogo v Albert K. Morogo [2017] eKLR: where the court found that:
“Section 26 provides that the certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—on the ground of fraud or misrepresentation to which the person is proved to be a party where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
The evidence on record shows that the suit parcel of land is registered in the names of the plaintiff and therefore the plaintiff is entitled to the protection under sections 24, 25 and 26 of the Land Registration Act 2012.”
106. The other contention that the Plaintiff raised is that Mwangangi Ivuti (deceased) was represented by Kisiu Ivuti, half-brother to the deceased, who died before the Objection proceedings were completed. They contend that succession proceedings to his estate were not taken up and that he had no legal personal representative to represent him in the objection proceedings. Section 13(5) of the Land Adjudication Act CAP 284 provides that:
“Where several persons claim separately as successors of a deceased person, and one or more of those persons attend, his or their attendance shall be taken to be the attendance of all the successors unless the adjudication officer otherwise directs.”
107. The Court of Appeal in the case of Dominic Musei Ikombo v Kyule Makau [2019] eKLR stated that in proceedings under the Land Adjudication Act, one does not require Letters of Administration in respect of a deceased claimant. That court stated that:
“Our view is that proceedings conducted under the Land Adjudication Act are not strictly speaking akin to proceedings under the Civil Procedure Act. The District commissioner acting on behalf of the Minister has wide latitude to conduct the proceedings in a manner that meets the substantive ends of justice. Section 13 of the Land Adjudication Act talks of “guardian” or “representative according to African Customary Law”. It does not refer to legal representatives. The strict rules of civil litigation as relates to capacity to sue and be sued do not apply to proceedings before the committee or the minister. It is not therefore necessary for a person appearing on behalf of a family or clan where the head of the family or clan has died to possess letters of administration in respect of a deceased claimant. The parties therefore had locus standi to appear before the adjudication committee, lack of letters of administration notwithstanding.”
108. The court concludes that the Plaintiff has failed to prove his case on a balance of probability and the claim herein has no merit and the following order is made;
1) The suit herein is hereby dismissed
2) Costs of the suit are awarded to the Defendants
Read, delivered and signed at Nyeri this 30th Day of January 2025.
Judgement read virtually in the presence of-
Ms. Kendi: Court Assistant
No appearance for the Plaintiff.
No appearance for the 1st-3rd Defendants.
Ms. Wanjiru for the Attorney General for the 4th - 6th Defendants.
HON. LADY JUSTICE L. G. KIMANI
JUDGE