REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
ELC APPEAL NO E062 OF 2024
PETER MUIRA KIPKIRUI (Suing as an administrator of the estate of the late KIPKEORI MUYILA-DECEASED) ……………………………........................................................... .................................................................APPELLANT
VERSUS
ADIJAH ALI ABDI............................................................................................................................................1 ST RESPONDENT
SIMON KIMWE GATHI ………………………………………………………..............................................2 ND RESPONDENT
THE DISTRICT LAND REGISTRAR, NAKURU…………………………….….........................................3 RD RESPONDENT
JUDGMENT
1. This appeal arises from a Judgment delivered on 30 th October 2024, by Hon. Prisca Nyota (SRM) in Nakuru CMELC No. E179 of 2022. The Appellant, aggrieved by the said Judgment, lodged a Memorandum of Appeal dated 1 st November, 2024 and listed the following grounds;
1. That the Learned Trial Magistrate erred in law and fact in holding that the Appellant did not prove his case on a balance of probabilities.
2. That the Learned Trial Magistrate erred in law and fact in holding that the Appellant did not prove fraud against the Respondents despite clear evidence to that effect.
3. That the Learned Trial Magistrate erred in law and fact in holding that the 1 st and 2 nd Respondents held a clear title capable of protection under the law despite evidence to the contrary.
4. That the Learned Trial Magistrate erred in law and fact in holding that the 1 st and 2 nd Respondents did not obtain title deed to the suit land by misrepresentation despite evidence on record to the contrary.
5. That the Learned Trial Magistrate erred in law and fact in failing to properly analyse the evidence adduced by the Appellant and exhibited bias against the Appellant.
6. That the Learned Trial Magistrate erred in law and fact in refusing to uphold the provisions of Article 159 of the Constitution and relied on technicalities in denying the Appellant justice contrary to the clear provisions of the Constitution of Kenya.
7. That the Learned Trial Magistrate erred in law and fact in holding that the 1 st and 2 nd Respondents did not obtain the title deed to the suit land by corrupt means despite evidence on record.
8. That the Learned Trial Magistrate erred in law and fact in failing to consider the Appellant's submissions and arrived at a wrong decision.
9. That the entire judgment was arrived at on consideration of wrong principles and ought to be set aside.
2. The 1 st and 2 nd Respondent filed Notice of Cross-Appeal dated 11 th November, 2025, on the following grounds;
a) THAT the Learned Magistrate erred in law and fact by failing to appreciate the preposition by the 1 st & 2 nd Respondents herein and, going by the circumstances in this case that the court may nevertheless have ordered and or obliged to issue orders of eviction prayed for by the respondent in the counterclaim for purposes of having finality in the judgment of the court.
b) THAT the Learned Magistrate erred in law and fact by failing to appreciate the preposition by the 1 st & 2 nd Respondents herein and going by the circumstances in this case that the court may nevertheless have ordered and or obliged to issue orders of eviction prayed for by the respondent in the miscellaneous application Nakuru CM Misc App Case E265/2022 OS Adijah Ali & Another versus Jane Wairimu & Another for purposes of having finality in the judgment of the court.
c) THAT the Learned Magistrate erred in law and fact in failing to make a finding on the 1 st & 2 nd Respondent’s claim for eviction orders despite sufficient evidence being adduced and not controverted.
d) THAT the Learned Magistrate erred in law and fact by omitting to issue orders of eviction prayed for and proved.
e) THAT the Learned Magistrate erred in law and fact in failing to consider and determine all the prayers pleaded by the 1 st & 2 nd Respondent thereby occasioning a miscarriage of justice.
f) THAT the Learned Magistrate erred in law and fact in issuing a judgement that was irregular, incomplete and against the weight of evidence in respect to the prayers of eviction thereby occasioning a miscarriage of justice
3. A brief background to this Appeal is that the Appellant filed a Plaint dated 14 th November,2022, against the Defendants seeking the following orders;
a) A declaration that the Plaintiff herein, the late Kipkeori Muyila is the legal and rightful owner of all that parcel of land known as Naivasha/Kiambogo/2007 formerly known as Plot No. 2007.
b) A permanent injunction restraining the 1 st and 2 nd Defendant by himself, his agents and or servants from entering, demolishing the Plaintiff’s property, trespassing, entering, evicting and or dealing in any manner whatsoever with the parcel of land known as Naivasha/Kiambogo/2007 formerly known as Plot No. 2007.
c) An order directing the Land Registrar, Nakuru, the 3 rd Defendant herein to cancel the title deed in favour of the 1 st and 2 nd Defendant dated 11 th June, 2020.
d) Costs of this suit
4. The 1 st and 2 nd Defendants filed a statement of defence dated 25 th January, 2023, and later filed an amended defence and counterclaim dated 18 th September,2023, seeking the following orders: -
a) A declaration that the 1 st and 2 nd Defendant (now Plaintiffs) ADIJA ALI ABDI and SIMON KIMWE GATHII are the legal and rightful owners of parcel of land known as NAIVASHA/KIAMBOGO/2007.
b) A permanent injunction restraining the Defendant and his families PETER MUIRA KIPKIRUI, JANE WAIRIMU KIPKURUI, NJUGUNA KAHUGIA, LUCY NJOKI KIPKURUI, PAULINE KIPKURUI,JANE WAIRIMU KIPKURUI & LYDIA WAMBUI MUIRA by themselves , their agents and or servants from entering , trespassing, cultivating, tilling, selling, disposing of, evicting, leasing, mortgaging, charging or dealing with or in any way interfering with the counterclaimants parcel of land known as NAIVASHA/KIAMBOGO/2007.
c) An order of eviction do issue against the Defendants and his families PETER MUIRA KIPKURUI, JANE WAIRIMU KIPKURUI, NJUGUNA KAHUGIA, LUCY NJOKI KIPKURUI, PAULINE KIPKURUI, JANE WAIRIMU KIPKURUI & LYDIA WAMBUUI MUIRA and those who claim interest and their agents or servants to be effected by the area chief Kiambogo as well as the OCS Elementaita Police Station.
d) Mesne Profits.
e) Costs of the suit.
5. The matter was heard, and the Learned Magistrate dismissed the Appellant’s suit.
6. The Appellant’s case in the trial court was that his father occupied the suit land in the 1980s and remained in such possession with his family until the time of his death. In support of his case, the Appellant produced the oldest records he could lay his lands on after stating that the late Kipkeori Muyila lost his documents when his house erected on the suit land got burnt in 1990. The Appellant produced a receipt for Kshs. 625 paid to S.F.T on 28 th April 1987 for plot No.2007.
7. It was further the Appellant’s case that after receiving a notice to vacate in July, 2020, he discovered that the 1 st and 2 nd Respondents had fraudulently procured a title deed on 11 th June, 2020, from the 3 rd Respondent, which necessitated the filing of the case.
APPELLANT’S SUBMISSIONS
8. Counsel for the Appellant filed submissions dated 31 st March, 2026, and listed two issues for determination;
a) Whether the trial court erred in law and fact in holding that, the Appellant did not prove his case on a balance of probabilities.
b) Whether the Respondent proved their counterclaim on a balance of probabilities.
c) Whether the trial court erred in law and fact in holding that the Respondent's title to the suit land was issued lawfully.
d) Whether the judgment of the trial court should be set aside.
9. Counsel submitted that while both parties claim Naivasha/Kiambogo/2007, the Appellant remains in actual physical possession, whereas the Respondents hold the title deed. Counsel further submitted that the Appellant’s family has maintained continuous, uninterrupted occupation of the suit land since the 1980s under a valid allocation, whereas the Respondents' predecessor was neither allocated nor settled on the property.
10. Counsel further submitted that the trial court erred in finding that the Appellant’s suit lacked merit, while it was on record that the Respondents processed a title deed when they had a dispute over the suit land.
11. Mr Waiganjo cited Article 67(1) & (2) of the Constitution of Kenya , the National Land Commission is mandated to investigate all land issues, whether private or public, and make appropriate recommendations.
12. According to counsel, the Respondents failed to demonstrate how they got the transfer of the suit land and yet the Appellant’s family had already paid. Further that the Respondent’s allocation documents were altered, and no valid, registered discharge or transfer executed for the suit land was produced to justify the issuance of the title. Counsel relied on Section 26 of the Land Registration Act and Article 40 of the Constitution , t and submitted that the Respondent’s title cannot be protected by the law as it was obtained unlawfully, unprocedurally or through a corrupt scheme.
13. Mr. Waiganjo relied on the cases of Munyu Maina v Hiram Gathiha Maina [2013] eKLR and M’Mugwika M’Rugongo v Settlement Fund Trustee & another [2022] eKLR, and submitted that the Respondents had a duty to prove that they had a clean title to the suit land, which they failed to discharge.
14. Counsel cited Article 10 of the Constitution , urging the court to apply national values and principles of governance, including equity, fairness, and justice, in favour of the Appellant, who has occupied and developed the suit land for decades, over the Respondents who acquired a title deed under dubious circumstances.
15. Counsel further relied on the case of Arthur Matere Otieno v Dorina Matsanza [2003] eKLR , where a title issued pursuant to an unprocedural reallocation was cancelled, and urged the court to allow the Appeal and dismiss the cross- Appeal with costs.
RESPONDENT /CROSS-APPELLANT’S SUBMISSIONS
16. Counsel for the Respondent filed submissions dated 14 th April, 2026, and identified the following issues for determination;
a) Whether the Appellant proved ownership of the suit property, Naivasha/Kiambogo/2007?
b) Whether the 1 st and 2 nd Respondents proved ownership of the suit property;
c) Whether fraud or misrepresentation was proved?
d) Whether the 1 st and 2 nd Respondents’ cross-appeal is merited.
17. On the issue as to whether the Appellant proved ownership of the suit property, Naivasha/Kiambogo/2007, counsel submitted that there was no documentary evidence demonstrating that the Settlement Fund Trustees (SFT) ever allocated the suit property to the Appellant's deceased father, and particularly, the Appellant failed to produce either a letter of allotment, letter of offer, or title document as proof of allocation and ownership.
18. It was counsel’s submission that although the Appellant alleged that the allotment letter was destroyed in a fire, no mandatory supporting evidence was tendered, such as an Occurrence Book (O.B.) extract or Police Abstract as evidence of the alleged loss of such a critical document.
19. Counsel relied on the cases of Kenya Akiba Micro Financing Ltd v Ezekiel Chebii & 14 Others [2012] eKLR , Chege (Suing as Legal Representative of the Estate of Margaret Muthoni Chege - Deceased) v Land Settlement Fund Board of Trustees & 2 Others [2024] KEELC 95 (KLR) , and Wreck Motors Enterprises v Commissioner of Lands & 3 Others [1997] eKLR , and submitted that a party alleging the loss or destruction of a vital allocation document bears the burden of proving both its prior existence and loss, therefore without an allotment letter, there is no legal basis to claim land or allege misrepresentation or fraud at all.
20. Mr. Koome further submitted that material contradictions and irreconcilable descriptions regarding the land such as variations between parcel numbers, scheme names, and local administration letters cast doubt on the identity of the suit land, and relied on the case of Mary Njeri Mungai v Teket Ole Munitet & Another (2018) KEELC 2231 (KLR) , where the court held that where there is a discrepancy in land numbering or description, the party asserting ownership must explain elaborately through tangible evidence the conversion, renumbering or amalgamation, failing which the court cannot safely conclude that the parcel claimed is the same parcel allegedly allocated.
21. According to counsel, the deposit receipt does not show full settlement of the purchase price or allocation, and counsel relied on the case of Chege [2024 (supra) , where the court was categorical in a situation where an individual had made a deposit which was not enough to prove ownership and that occupation alone cannot be deemed to be a foundation of a proprietary claim.
22 . Counsel cited the cases of Henry Wambega & 733 Others v Attorney General & Another (2020) eKLR and Kenga v Leshao & 18 Others [2026] KEELC 633 (KLR) , where the court held that mere occupation or settlement, unbacked by a formal allocation and full payment, cannot confer proprietary rights or defeat registered ownership protected under Article 40 of the Constitution of Kenya, 2010 . Counsel stated that prolonged inaction by the Appellant’s deceased father to pursue formal title is persuasive and constructive evidence that he knew the land was not his.
23. Mr Koome faulted the Appellant for misleading the Court on a material fact relating to the possession and occupation of his deceased father, as the death certificate and the document filed by the Appellant during the petitioning for ad litem affirmed their residence to be elsewhere other than Kiambogo Gilgil subcounty. Counsel relied on the case of Anyona v Wells Oil Limited & 2 Others [2023] KEHC 26833 (KLR) on the requirement for consistency between pleadings and evidence.
24. Counsel further submitted that the Appellant, relying on the chief’s letter granting him permission to clear or utilize the suit land, cannot be equated to a letter of allotment or any instrument conferring an interest in land, and cited the case of Naman v Muthuri & 2 Others [2026] KEELC 13 (KLR ) , where the court held that a chief’s letter ranks far below an instrument in legal hierarchy, hence cannot possibly create or transfer ownership rights over land.
25. On the issue as to whether the 1 st and 2 nd Respondents proved ownership of the suit property, counsel submitted in the affirmative and stated that the Respondents produced a complete and unbroken chain of ownership documents in respect of Title No. Naivasha/Kiambogo/2007, namely: a Letter of Allotment, Receipt for 10% deposit, stamp duty and fees dated 16/01/2002, SFT debtor receipt dated 26/04/2004, Discharge of Charge, Transfer under the Land Settlement Scheme, Title Deed, and Official Search.
26. Counsel further submitted that the Respondents also produced the succession proceedings under the Law of Succession Act (Cap 160) in Nakuru High Court Succession No. 355 of 2011 (Estate of Gathii Kimwe) where a grant was issued relating to the land in question, and relied on Section 24 and Section 25 of the Land Registration Act. Counsel therefore argued that the 1 st and 2 nd Respondents’ title remains valid and lawful and indefeasible in law.
27. Regarding the third issue, as to whether the Appellant proved fraud and misrepresentation, counsel submitted that the burden of proving fraud rests strictly on the party alleging and relied on Sections 107–109 of the Evidence Act and the established standards in the cases of Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR , Kirugi & Another v Kabiya & 3 Others [1987] KLR 347 , Emfil Limited v Registrar of Titles Mombasa & 2 Others [2014] eKLR , Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR , and Kuria Kiarie & 2 Others v Sammy Magera [2018] eKLR . Further, fraud and misrepresentation are serious allegations that must be specifically pleaded and strictly proved to a standard higher than a balance of probabilities, though lower than beyond reasonable doubt.
28. It was Mr. Koome’s submission that without summons to official record keepers from the Land Registry or SFT, or documentary proof such as green card entries, allocation registers, SFT payment records, or forensic reports, allegations of fraud were not proved. Furthermore, under Sections 26(1)(b) and 80 of the Land Registration Act , official government records enjoy a presumption of authenticity and correctness as articulated in the cases of Wreck Motors Enterprises (supra) , Republic v Registrar of Titles ex parte David Gachiri Githongo [2014] eKLR , and Ndule v Fiolabchem Company Limited & 2 Others [2026] KECA 86 (KLR) .
29. Counsel further relied on the cases of Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR , Charles Karathe Kiarie & 2 Others v Administrators of the Estate of John Wallace Mathare [2013] eKLR , and Derry v Peek (1889) 14 App Cas 337 , and submitted that an isolated deposit receipt does not confer title, displace official records, or serve as a basis for inferring misrepresentation. It was counsel’s position that the decisions relied upon by the Appellant, such as Malewa Farmers Coop Society v SFT, Munyu Maina v Hiram Gathiha Maina, and Arthur Matere Otieno v Dorina Matsanza , are legally distinguishable or support the Respondents' position. Further, the findings by the National Land Commission were issued without proof of service of investigation inquiries, confirmatory confirmation by the Settlement Fund Trustee office to confirm ownership to the National Land Commission, and no written communication to all the players; hence, they cannot override established titles.
30. On the cross–appeal by the 1 st and 2 nd Respondents, counsel submitted that the Trial Magistrate erred in failing to grant the eviction orders sought in the counterclaim and in the miscellaneous application ( Nakuru CM Misc App Case E265/2022 OS Adijah Ali & Another versus Jane Wairimu & Another), despite the Respondents adducing uncontroverted evidence, and urged the court to dismiss the Appeal and grant eviction orders, and costs.
31. It was counsel’s submission that the Respondents’ counterclaim was supported by official government records, therefore proved their case on a balance of probabilities as opposed to the Appellant’s case; therefore, the trial Court correctly evaluated evidence in respect of ownership of the suit property, but the Court erroneously failed to grant eviction orders, which warrants the interference of the Court’s verdict.
ANALYSIS AND DETERMINATION
32. The court is cognizant of its role as a first Appellate Court whose duty is to re-evaluate, re-assess and reanalyze the extract on the record and come up with its own conclusion with reasons, as was held in the case of Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR . Based on the Memorandum of Appeal, the cross-appeal and the parties’ submissions, the issues for determination are as follows;
a) Whether the Appellant proved that the 1 st and 2 nd Respondents title to Land Parcel No.Naivasha/Kiambogo/2007 was obtained through fraud, misrepresentation or unlawful means?
b) Whether the trial Court properly evaluated the evidence before dismissing the Appellant’s suit and upholding the Respondent’s title
c) Whether the Respondents’ Cross-Appeal seeking eviction has merit.
33. On the issue as to whether the Appellant proved that the 1 st and 2 nd Respondents' title to Land Parcel No.Naivasha/Kiambogo/2007 was obtained through fraud, misrepresentation or unlawful means , it was the Appellant’s case that the suit property, Land Parcel No.Naivasha/Kiambogo/2007 belonged to his deceased father following the allocation in the 1980s and that his family has remained in occupation at all material times. He further contended that the Respondent’s title was fraudulently and unlawfully acquired as they failed to explain how they became registered proprietors.
34. The Appellant faulted the Trial Court for finding that the Appellant’s suit lacked merit and yet the Respondents got their title while there was a pending dispute in respect of the suit land and shifted the burden of proof to the Respondents to prove that they had a clean title. It is trite that he who alleges must prove, and it was incumbent upon the Appellant to prove that he was the rightful owner of the suit land and that the Respondents had acquired it through fraud and misrepresentation. The Appellant relied on long occupation of the suit land but failed to prove how his family acquired the suit land. Was it a claim of lawful acquisition or adverse possession?
35. The Appellant had claimed that his documents were burnt, but there was no evidence to show that they had reported such loss or taken any steps to get assistance. A notice to vacate the suit land triggered the case, but the Appellant did not endeavour to present his best foot forward to prove ownership of the suit land.
36. It was the Respondents’ case that the Appellant neither produced documentary evidence to prove allocation of the suit land to his deceased father nor the alleged letter of allotment, official records from the Settlement Fund Trustee or the Land Registry demonstrating that the suit property had been allocated to his family. The Respondents argued that they produced the allotment letter, payment receipts, discharge documents, transfer instruments, title deed and official search confirming how they became registered proprietors.
37. Sections 107 and 108 of the Evidence Act place the legal and evidential burden squarely upon the party who asserts the existence of fraud, as the court does not presume fraud; it must be demonstrated through credible and cogent evidence. In the case of Central Bank of Kenya Ltd v Trust Bank Ltd & 4 Others [1996] eKLR, the Court of Appeal pronounced itself as follows:
“Fraud must be specifically pleaded and strictly proved. Although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”
38. Based on the evidence, the Appellant has not demonstrated that the Respondent's title was obtained through fraud or misrepresentation or other unlawful means. Allegations of fraud require cogent and credible evidence.
39. The Court of Appeal case of Munyu Maina – versus – Hiram Gathiha Maina , Civil Appeal number 239 of 2009)(2013)KECA 94 held as follows:
“We state that when a registered proprietor’s root of title is under challenge: it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that it is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”
40. The Respondents relied on official land records, an allotment letter, payment receipts, discharge of charge documents, transfer instruments, title deed and official search which, if not impeached, are presumed regular. This shows that the Respondents demonstrated how they acquired the suit property.
41. On the second issue as to whether the trial Court properly evaluated the evidence before dismissing the Appellant’s suit and upholding the Respondent’s title, Counsel for the Appellant argued that the trial court failed to analyze the evidence, disregarding submissions, relying on technicalities contrary to Article 159 of the Constitution. Further, the trial court neither looked at the history of occupation nor interrogated the legality of the Respondent's acquisition of title.
42. From the record and the evidence adduced together with the Judgement of the trial court, it is evident that the trial court evaluated the material evidence and therefore did not misdirect itself on the applicable legal principles. The findings of the trial court were supported by evidence before it; hence, there would be no reason to interfere.
43. On the third issue as to whether the Respondents’ Cross-Appeal seeking eviction has merit, the Respondents contended that having successfully defended the suit and counterclaim, the trial court ought to have granted the eviction order sought against the Appellant and his family, and failure to determine the prayer rendered the judgment incomplete and denied them the full benefit of the court’s findings.
44. It was incumbent upon the court to deliberate and make a finding on the counterclaim for eviction, and failure to do so was an anomaly, as was held in the case of City Finance Limited & 2 others v Nyanja Holdings Limited & 3 others [2026] KECA 106 (KLR), as follows:
“We are unable to accept that submission. While it is true that the learned Judge made extensive findings on the accounts and on the Bank’s conduct, those findings did not obviate the need for a clear and express determination of the counter-claim as a pleaded cause of action. A counter-claim is not an incidental appendage to a suit; it is a substantive claim, which must be determined on its own terms. Where a court reaches findings that would defeat a counter-claim, it must still say so plainly and reach clear consequential conclusions. The absence of such determination leaves the judgment internally incomplete and the parties without finality on issues squarely placed before the court.”
45. The Respondents having tendered evidence in support of the counterclaim, it would be prudent to grant the order of eviction as the Appellant had failed to prove any fraud against the Respondents in the acquisition of their title. The court, having upheld the Respondents' ownership of the suit land, should have gone further to determine the issue of eviction of the Appellant as claimed in the counterclaim.
46. The upshot is that the Appellant’s appeal is hereby dismissed with costs to the Respondents and the Cross Appeal allowed as prayed. The Appellant is to vacate the suit land within 60 days, failure to which an eviction order to issue.
18
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
ELC APPEAL NO E062 OF 2024
PETER MUIRA KIPKIRUI (Suing as an administrator of the estate of the late KIPKEORI MUYILA-DECEASED) ……………………………........................................................... .................................................................APPELLANT
VERSUS
ADIJAH ALI ABDI............................................................................................................................................1 ST RESPONDENT
SIMON KIMWE GATHI ………………………………………………………..............................................2 ND RESPONDENT
THE DISTRICT LAND REGISTRAR, NAKURU…………………………….….........................................3 RD RESPONDENT
JUDGMENT
1. This appeal arises from a Judgment delivered on 30 th October 2024, by Hon. Prisca Nyota (SRM) in Nakuru CMELC No. E179 of 2022. The Appellant, aggrieved by the said Judgment, lodged a Memorandum of Appeal dated 1 st November, 2024 and listed the following grounds;
1. That the Learned Trial Magistrate erred in law and fact in holding that the Appellant did not prove his case on a balance of probabilities.
2. That the Learned Trial Magistrate erred in law and fact in holding that the Appellant did not prove fraud against the Respondents despite clear evidence to that effect.
3. That the Learned Trial Magistrate erred in law and fact in holding that the 1 st and 2 nd Respondents held a clear title capable of protection under the law despite evidence to the contrary.
4. That the Learned Trial Magistrate erred in law and fact in holding that the 1 st and 2 nd Respondents did not obtain title deed to the suit land by misrepresentation despite evidence on record to the contrary.
5. That the Learned Trial Magistrate erred in law and fact in failing to properly analyse the evidence adduced by the Appellant and exhibited bias against the Appellant.
6. That the Learned Trial Magistrate erred in law and fact in refusing to uphold the provisions of Article 159 of the Constitution and relied on technicalities in denying the Appellant justice contrary to the clear provisions of the Constitution of Kenya.
7. That the Learned Trial Magistrate erred in law and fact in holding that the 1 st and 2 nd Respondents did not obtain the title deed to the suit land by corrupt means despite evidence on record.
8. That the Learned Trial Magistrate erred in law and fact in failing to consider the Appellant's submissions and arrived at a wrong decision.
9. That the entire judgment was arrived at on consideration of wrong principles and ought to be set aside.
2. The 1 st and 2 nd Respondent filed Notice of Cross-Appeal dated 11 th November, 2025, on the following grounds;
a) THAT the Learned Magistrate erred in law and fact by failing to appreciate the preposition by the 1 st & 2 nd Respondents herein and, going by the circumstances in this case that the court may nevertheless have ordered and or obliged to issue orders of eviction prayed for by the respondent in the counterclaim for purposes of having finality in the judgment of the court.
b) THAT the Learned Magistrate erred in law and fact by failing to appreciate the preposition by the 1 st & 2 nd Respondents herein and going by the circumstances in this case that the court may nevertheless have ordered and or obliged to issue orders of eviction prayed for by the respondent in the miscellaneous application Nakuru CM Misc App Case E265/2022 OS Adijah Ali & Another versus Jane Wairimu & Another for purposes of having finality in the judgment of the court.
c) THAT the Learned Magistrate erred in law and fact in failing to make a finding on the 1 st & 2 nd Respondent’s claim for eviction orders despite sufficient evidence being adduced and not controverted.
d) THAT the Learned Magistrate erred in law and fact by omitting to issue orders of eviction prayed for and proved.
e) THAT the Learned Magistrate erred in law and fact in failing to consider and determine all the prayers pleaded by the 1 st & 2 nd Respondent thereby occasioning a miscarriage of justice.
f) THAT the Learned Magistrate erred in law and fact in issuing a judgement that was irregular, incomplete and against the weight of evidence in respect to the prayers of eviction thereby occasioning a miscarriage of justice
3. A brief background to this Appeal is that the Appellant filed a Plaint dated 14 th November,2022, against the Defendants seeking the following orders;
a) A declaration that the Plaintiff herein, the late Kipkeori Muyila is the legal and rightful owner of all that parcel of land known as Naivasha/Kiambogo/2007 formerly known as Plot No. 2007.
b) A permanent injunction restraining the 1 st and 2 nd Defendant by himself, his agents and or servants from entering, demolishing the Plaintiff’s property, trespassing, entering, evicting and or dealing in any manner whatsoever with the parcel of land known as Naivasha/Kiambogo/2007 formerly known as Plot No. 2007.
c) An order directing the Land Registrar, Nakuru, the 3 rd Defendant herein to cancel the title deed in favour of the 1 st and 2 nd Defendant dated 11 th June, 2020.
d) Costs of this suit
4. The 1 st and 2 nd Defendants filed a statement of defence dated 25 th January, 2023, and later filed an amended defence and counterclaim dated 18 th September,2023, seeking the following orders: -
a) A declaration that the 1 st and 2 nd Defendant (now Plaintiffs) ADIJA ALI ABDI and SIMON KIMWE GATHII are the legal and rightful owners of parcel of land known as NAIVASHA/KIAMBOGO/2007.
b) A permanent injunction restraining the Defendant and his families PETER MUIRA KIPKIRUI, JANE WAIRIMU KIPKURUI, NJUGUNA KAHUGIA, LUCY NJOKI KIPKURUI, PAULINE KIPKURUI,JANE WAIRIMU KIPKURUI & LYDIA WAMBUI MUIRA by themselves , their agents and or servants from entering , trespassing, cultivating, tilling, selling, disposing of, evicting, leasing, mortgaging, charging or dealing with or in any way interfering with the counterclaimants parcel of land known as NAIVASHA/KIAMBOGO/2007.
c) An order of eviction do issue against the Defendants and his families PETER MUIRA KIPKURUI, JANE WAIRIMU KIPKURUI, NJUGUNA KAHUGIA, LUCY NJOKI KIPKURUI, PAULINE KIPKURUI, JANE WAIRIMU KIPKURUI & LYDIA WAMBUUI MUIRA and those who claim interest and their agents or servants to be effected by the area chief Kiambogo as well as the OCS Elementaita Police Station.
d) Mesne Profits.
e) Costs of the suit.
5. The matter was heard, and the Learned Magistrate dismissed the Appellant’s suit.
6. The Appellant’s case in the trial court was that his father occupied the suit land in the 1980s and remained in such possession with his family until the time of his death. In support of his case, the Appellant produced the oldest records he could lay his lands on after stating that the late Kipkeori Muyila lost his documents when his house erected on the suit land got burnt in 1990. The Appellant produced a receipt for Kshs. 625 paid to S.F.T on 28 th April 1987 for plot No.2007.
7. It was further the Appellant’s case that after receiving a notice to vacate in July, 2020, he discovered that the 1 st and 2 nd Respondents had fraudulently procured a title deed on 11 th June, 2020, from the 3 rd Respondent, which necessitated the filing of the case.
APPELLANT’S SUBMISSIONS
8. Counsel for the Appellant filed submissions dated 31 st March, 2026, and listed two issues for determination;
a) Whether the trial court erred in law and fact in holding that, the Appellant did not prove his case on a balance of probabilities.
b) Whether the Respondent proved their counterclaim on a balance of probabilities.
c) Whether the trial court erred in law and fact in holding that the Respondent's title to the suit land was issued lawfully.
d) Whether the judgment of the trial court should be set aside.
9. Counsel submitted that while both parties claim Naivasha/Kiambogo/2007, the Appellant remains in actual physical possession, whereas the Respondents hold the title deed. Counsel further submitted that the Appellant’s family has maintained continuous, uninterrupted occupation of the suit land since the 1980s under a valid allocation, whereas the Respondents' predecessor was neither allocated nor settled on the property.
10. Counsel further submitted that the trial court erred in finding that the Appellant’s suit lacked merit, while it was on record that the Respondents processed a title deed when they had a dispute over the suit land.
11. Mr Waiganjo cited Article 67(1) & (2) of the Constitution of Kenya , the National Land Commission is mandated to investigate all land issues, whether private or public, and make appropriate recommendations.
12. According to counsel, the Respondents failed to demonstrate how they got the transfer of the suit land and yet the Appellant’s family had already paid. Further that the Respondent’s allocation documents were altered, and no valid, registered discharge or transfer executed for the suit land was produced to justify the issuance of the title. Counsel relied on Section 26 of the Land Registration Act and Article 40 of the Constitution , t and submitted that the Respondent’s title cannot be protected by the law as it was obtained unlawfully, unprocedurally or through a corrupt scheme.
13. Mr. Waiganjo relied on the cases of Munyu Maina v Hiram Gathiha Maina [2013] eKLR and M’Mugwika M’Rugongo v Settlement Fund Trustee & another [2022] eKLR, and submitted that the Respondents had a duty to prove that they had a clean title to the suit land, which they failed to discharge.
14. Counsel cited Article 10 of the Constitution , urging the court to apply national values and principles of governance, including equity, fairness, and justice, in favour of the Appellant, who has occupied and developed the suit land for decades, over the Respondents who acquired a title deed under dubious circumstances.
15. Counsel further relied on the case of Arthur Matere Otieno v Dorina Matsanza [2003] eKLR , where a title issued pursuant to an unprocedural reallocation was cancelled, and urged the court to allow the Appeal and dismiss the cross- Appeal with costs.
RESPONDENT /CROSS-APPELLANT’S SUBMISSIONS
16. Counsel for the Respondent filed submissions dated 14 th April, 2026, and identified the following issues for determination;
a) Whether the Appellant proved ownership of the suit property, Naivasha/Kiambogo/2007?
b) Whether the 1 st and 2 nd Respondents proved ownership of the suit property;
c) Whether fraud or misrepresentation was proved?
d) Whether the 1 st and 2 nd Respondents’ cross-appeal is merited.
17. On the issue as to whether the Appellant proved ownership of the suit property, Naivasha/Kiambogo/2007, counsel submitted that there was no documentary evidence demonstrating that the Settlement Fund Trustees (SFT) ever allocated the suit property to the Appellant's deceased father, and particularly, the Appellant failed to produce either a letter of allotment, letter of offer, or title document as proof of allocation and ownership.
18. It was counsel’s submission that although the Appellant alleged that the allotment letter was destroyed in a fire, no mandatory supporting evidence was tendered, such as an Occurrence Book (O.B.) extract or Police Abstract as evidence of the alleged loss of such a critical document.
19. Counsel relied on the cases of Kenya Akiba Micro Financing Ltd v Ezekiel Chebii & 14 Others [2012] eKLR , Chege (Suing as Legal Representative of the Estate of Margaret Muthoni Chege - Deceased) v Land Settlement Fund Board of Trustees & 2 Others [2024] KEELC 95 (KLR) , and Wreck Motors Enterprises v Commissioner of Lands & 3 Others [1997] eKLR , and submitted that a party alleging the loss or destruction of a vital allocation document bears the burden of proving both its prior existence and loss, therefore without an allotment letter, there is no legal basis to claim land or allege misrepresentation or fraud at all.
20. Mr. Koome further submitted that material contradictions and irreconcilable descriptions regarding the land such as variations between parcel numbers, scheme names, and local administration letters cast doubt on the identity of the suit land, and relied on the case of Mary Njeri Mungai v Teket Ole Munitet & Another (2018) KEELC 2231 (KLR) , where the court held that where there is a discrepancy in land numbering or description, the party asserting ownership must explain elaborately through tangible evidence the conversion, renumbering or amalgamation, failing which the court cannot safely conclude that the parcel claimed is the same parcel allegedly allocated.
21. According to counsel, the deposit receipt does not show full settlement of the purchase price or allocation, and counsel relied on the case of Chege [2024 (supra) , where the court was categorical in a situation where an individual had made a deposit which was not enough to prove ownership and that occupation alone cannot be deemed to be a foundation of a proprietary claim.
22 . Counsel cited the cases of Henry Wambega & 733 Others v Attorney General & Another (2020) eKLR and Kenga v Leshao & 18 Others [2026] KEELC 633 (KLR) , where the court held that mere occupation or settlement, unbacked by a formal allocation and full payment, cannot confer proprietary rights or defeat registered ownership protected under Article 40 of the Constitution of Kenya, 2010 . Counsel stated that prolonged inaction by the Appellant’s deceased father to pursue formal title is persuasive and constructive evidence that he knew the land was not his.
23. Mr Koome faulted the Appellant for misleading the Court on a material fact relating to the possession and occupation of his deceased father, as the death certificate and the document filed by the Appellant during the petitioning for ad litem affirmed their residence to be elsewhere other than Kiambogo Gilgil subcounty. Counsel relied on the case of Anyona v Wells Oil Limited & 2 Others [2023] KEHC 26833 (KLR) on the requirement for consistency between pleadings and evidence.
24. Counsel further submitted that the Appellant, relying on the chief’s letter granting him permission to clear or utilize the suit land, cannot be equated to a letter of allotment or any instrument conferring an interest in land, and cited the case of Naman v Muthuri & 2 Others [2026] KEELC 13 (KLR ) , where the court held that a chief’s letter ranks far below an instrument in legal hierarchy, hence cannot possibly create or transfer ownership rights over land.
25. On the issue as to whether the 1 st and 2 nd Respondents proved ownership of the suit property, counsel submitted in the affirmative and stated that the Respondents produced a complete and unbroken chain of ownership documents in respect of Title No. Naivasha/Kiambogo/2007, namely: a Letter of Allotment, Receipt for 10% deposit, stamp duty and fees dated 16/01/2002, SFT debtor receipt dated 26/04/2004, Discharge of Charge, Transfer under the Land Settlement Scheme, Title Deed, and Official Search.
26. Counsel further submitted that the Respondents also produced the succession proceedings under the Law of Succession Act (Cap 160) in Nakuru High Court Succession No. 355 of 2011 (Estate of Gathii Kimwe) where a grant was issued relating to the land in question, and relied on Section 24 and Section 25 of the Land Registration Act. Counsel therefore argued that the 1 st and 2 nd Respondents’ title remains valid and lawful and indefeasible in law.
27. Regarding the third issue, as to whether the Appellant proved fraud and misrepresentation, counsel submitted that the burden of proving fraud rests strictly on the party alleging and relied on Sections 107–109 of the Evidence Act and the established standards in the cases of Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR , Kirugi & Another v Kabiya & 3 Others [1987] KLR 347 , Emfil Limited v Registrar of Titles Mombasa & 2 Others [2014] eKLR , Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR , and Kuria Kiarie & 2 Others v Sammy Magera [2018] eKLR . Further, fraud and misrepresentation are serious allegations that must be specifically pleaded and strictly proved to a standard higher than a balance of probabilities, though lower than beyond reasonable doubt.
28. It was Mr. Koome’s submission that without summons to official record keepers from the Land Registry or SFT, or documentary proof such as green card entries, allocation registers, SFT payment records, or forensic reports, allegations of fraud were not proved. Furthermore, under Sections 26(1)(b) and 80 of the Land Registration Act , official government records enjoy a presumption of authenticity and correctness as articulated in the cases of Wreck Motors Enterprises (supra) , Republic v Registrar of Titles ex parte David Gachiri Githongo [2014] eKLR , and Ndule v Fiolabchem Company Limited & 2 Others [2026] KECA 86 (KLR) .
29. Counsel further relied on the cases of Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR , Charles Karathe Kiarie & 2 Others v Administrators of the Estate of John Wallace Mathare [2013] eKLR , and Derry v Peek (1889) 14 App Cas 337 , and submitted that an isolated deposit receipt does not confer title, displace official records, or serve as a basis for inferring misrepresentation. It was counsel’s position that the decisions relied upon by the Appellant, such as Malewa Farmers Coop Society v SFT, Munyu Maina v Hiram Gathiha Maina, and Arthur Matere Otieno v Dorina Matsanza , are legally distinguishable or support the Respondents' position. Further, the findings by the National Land Commission were issued without proof of service of investigation inquiries, confirmatory confirmation by the Settlement Fund Trustee office to confirm ownership to the National Land Commission, and no written communication to all the players; hence, they cannot override established titles.
30. On the cross–appeal by the 1 st and 2 nd Respondents, counsel submitted that the Trial Magistrate erred in failing to grant the eviction orders sought in the counterclaim and in the miscellaneous application ( Nakuru CM Misc App Case E265/2022 OS Adijah Ali & Another versus Jane Wairimu & Another), despite the Respondents adducing uncontroverted evidence, and urged the court to dismiss the Appeal and grant eviction orders, and costs.
31. It was counsel’s submission that the Respondents’ counterclaim was supported by official government records, therefore proved their case on a balance of probabilities as opposed to the Appellant’s case; therefore, the trial Court correctly evaluated evidence in respect of ownership of the suit property, but the Court erroneously failed to grant eviction orders, which warrants the interference of the Court’s verdict.
ANALYSIS AND DETERMINATION
32. The court is cognizant of its role as a first Appellate Court whose duty is to re-evaluate, re-assess and reanalyze the extract on the record and come up with its own conclusion with reasons, as was held in the case of Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR . Based on the Memorandum of Appeal, the cross-appeal and the parties’ submissions, the issues for determination are as follows;
a) Whether the Appellant proved that the 1 st and 2 nd Respondents title to Land Parcel No.Naivasha/Kiambogo/2007 was obtained through fraud, misrepresentation or unlawful means?
b) Whether the trial Court properly evaluated the evidence before dismissing the Appellant’s suit and upholding the Respondent’s title
c) Whether the Respondents’ Cross-Appeal seeking eviction has merit.
33. On the issue as to whether the Appellant proved that the 1 st and 2 nd Respondents' title to Land Parcel No.Naivasha/Kiambogo/2007 was obtained through fraud, misrepresentation or unlawful means , it was the Appellant’s case that the suit property, Land Parcel No.Naivasha/Kiambogo/2007 belonged to his deceased father following the allocation in the 1980s and that his family has remained in occupation at all material times. He further contended that the Respondent’s title was fraudulently and unlawfully acquired as they failed to explain how they became registered proprietors.
34. The Appellant faulted the Trial Court for finding that the Appellant’s suit lacked merit and yet the Respondents got their title while there was a pending dispute in respect of the suit land and shifted the burden of proof to the Respondents to prove that they had a clean title. It is trite that he who alleges must prove, and it was incumbent upon the Appellant to prove that he was the rightful owner of the suit land and that the Respondents had acquired it through fraud and misrepresentation. The Appellant relied on long occupation of the suit land but failed to prove how his family acquired the suit land. Was it a claim of lawful acquisition or adverse possession?
35. The Appellant had claimed that his documents were burnt, but there was no evidence to show that they had reported such loss or taken any steps to get assistance. A notice to vacate the suit land triggered the case, but the Appellant did not endeavour to present his best foot forward to prove ownership of the suit land.
36. It was the Respondents’ case that the Appellant neither produced documentary evidence to prove allocation of the suit land to his deceased father nor the alleged letter of allotment, official records from the Settlement Fund Trustee or the Land Registry demonstrating that the suit property had been allocated to his family. The Respondents argued that they produced the allotment letter, payment receipts, discharge documents, transfer instruments, title deed and official search confirming how they became registered proprietors.
37. Sections 107 and 108 of the Evidence Act place the legal and evidential burden squarely upon the party who asserts the existence of fraud, as the court does not presume fraud; it must be demonstrated through credible and cogent evidence. In the case of Central Bank of Kenya Ltd v Trust Bank Ltd & 4 Others [1996] eKLR, the Court of Appeal pronounced itself as follows:
“Fraud must be specifically pleaded and strictly proved. Although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”
38. Based on the evidence, the Appellant has not demonstrated that the Respondent's title was obtained through fraud or misrepresentation or other unlawful means. Allegations of fraud require cogent and credible evidence.
39. The Court of Appeal case of Munyu Maina – versus – Hiram Gathiha Maina , Civil Appeal number 239 of 2009)(2013)KECA 94 held as follows:
“We state that when a registered proprietor’s root of title is under challenge: it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that it is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”
40. The Respondents relied on official land records, an allotment letter, payment receipts, discharge of charge documents, transfer instruments, title deed and official search which, if not impeached, are presumed regular. This shows that the Respondents demonstrated how they acquired the suit property.
41. On the second issue as to whether the trial Court properly evaluated the evidence before dismissing the Appellant’s suit and upholding the Respondent’s title, Counsel for the Appellant argued that the trial court failed to analyze the evidence, disregarding submissions, relying on technicalities contrary to Article 159 of the Constitution. Further, the trial court neither looked at the history of occupation nor interrogated the legality of the Respondent's acquisition of title.
42. From the record and the evidence adduced together with the Judgement of the trial court, it is evident that the trial court evaluated the material evidence and therefore did not misdirect itself on the applicable legal principles. The findings of the trial court were supported by evidence before it; hence, there would be no reason to interfere.
43. On the third issue as to whether the Respondents’ Cross-Appeal seeking eviction has merit, the Respondents contended that having successfully defended the suit and counterclaim, the trial court ought to have granted the eviction order sought against the Appellant and his family, and failure to determine the prayer rendered the judgment incomplete and denied them the full benefit of the court’s findings.
44. It was incumbent upon the court to deliberate and make a finding on the counterclaim for eviction, and failure to do so was an anomaly, as was held in the case of City Finance Limited & 2 others v Nyanja Holdings Limited & 3 others [2026] KECA 106 (KLR), as follows:
“We are unable to accept that submission. While it is true that the learned Judge made extensive findings on the accounts and on the Bank’s conduct, those findings did not obviate the need for a clear and express determination of the counter-claim as a pleaded cause of action. A counter-claim is not an incidental appendage to a suit; it is a substantive claim, which must be determined on its own terms. Where a court reaches findings that would defeat a counter-claim, it must still say so plainly and reach clear consequential conclusions. The absence of such determination leaves the judgment internally incomplete and the parties without finality on issues squarely placed before the court.”
45. The Respondents having tendered evidence in support of the counterclaim, it would be prudent to grant the order of eviction as the Appellant had failed to prove any fraud against the Respondents in the acquisition of their title. The court, having upheld the Respondents' ownership of the suit land, should have gone further to determine the issue of eviction of the Appellant as claimed in the counterclaim.
46. The upshot is that the Appellant’s appeal is hereby dismissed with costs to the Respondents and the Cross Appeal allowed as prayed. The Appellant is to vacate the suit land within 60 days, failure to which an eviction order to issue.
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