RIZIKI MWINYI MWAKULAGIZWA AND MWANAPILI HAMISI MWINYI VS State Law AND ALI MWINYIKAI CHOMBOLA AND 2 Others

1    The Plaintiffs filed a Plaint dated 11th April, 2022 seeking the following orders;
1)    A declaration that the title deed currently held by the late Kuldip Raj Sondhi in respect to the parcel of land, KWALE/GALU KINONDO/179 is null and void.
2)    A declaration that the parcel of land known as KWALE/GALU KINONDO/179 lawfully belongs to the Plaintiffs.
3)    That the Kwale Land Registrar do revoke, cancel the title deed in the names of Kuldip Raj Sondhi and replace it with the names of the Plaintiffs herein.
4)    That the Kwale Land Registrar do open another green card in the names of the plaintiffs
5)    That a permanent injunction restraining the Defendants, their agents, servants, nominees, employees from entering, remaining or developing or in any way interfering with the parcel of land KWALE/GALUKINONDO/179.
6)    Costs and interest.
7)    Any other relief the Court may deem fit.
2    The plaintiffs aver in the plaint that their father Ali Mwinyi Chombola (deceased) was the registered owner of KWALE/GALUKINONDO/179 (suit property) and who lived therein until his death on 16/06/2011. That on his death they petitioned for a grant of letters of administration in Kadhis Court at Kwale through succession cause number 244 of 2015 and subsequent transmission with the 2nd defendant. That the transmission was successful and they were issued with a title.
3    It is averred that an officer at the 2nd defendant’s office demanded they return the title deed as the plaintiffs were not the rightful owners. They surrendered the title as demanded but retained a copy.
4    That upon applying for a copy of the green card they were surprised to learn that the 1st defendants’ father was the registered owner of the suit property. The plaintiffs aver that the Ist defendant became the registered owner of the suit property by virtue of the gazette notice No.3422 dated 13th May, 2016 published on the authority and instructions of the 2nd Defendant.


5    The Plaintiffs aver that the Ist defendant with the assistance of the 2nd defendant obtained the suit property through fraud, illegal, unprocedural and corrupt scheme in order to dispossess and defeat the beneficial right and interest of the Plaintiffs. The particulars of fraud and illegalities of the 1st and 2nd defendants are enumerated under paragraph 10 of the plaint.
6    It is averred that the 2nd defendant unilaterally cancelled the green card that bore the plaintiffs name and marked it as forged thus defeating their interest. That after the death of Hamisi Mwinyi Mwachambola his family carried out succession cause but were unable to complete the transmission due to the fraudulent acts herein.
7    The plaintiffs aver that the 1st defendant intends to sale the suit property to third parties in his capacity as heir of Kuldip Raj Sondhi. That the 3rd defendant is liable for failure to timely advise the 2nd defendant on the illegal acts of the 1st defendant.
8    It is the plaintiff’s plea that unless the 1st defendants title deed is impeached and or revoked the 1st defendant will continue to harass them on the suit property causing them irreparable loss and damage.
9    The 1st Defendant filed an amended statement of Defence and Counter Claim dated 23rd May 2023. The 1st defendant denies that the plaintiff father was the registered owner of the suit property, existence of a green card in his name or that he lived thereon until he met his death. It is averred that the register in custody of the 2nd defendant is a true reflection of the owner of the suit property. It is admitted that that the 1st defendants’ father was the registered owner of the suit property even before the publication of the gazette notice herein. All the allegations of fraud attributed to the 1st defendant are denied.
10    It is averred that the plaintiffs have no basis upon which to seek impeachment of the title to the suit property and further avers that the estate of the 1st defendant late father have every right to exert ownership rights over the suit property to the exclusion of the plaintiff.
11    The 1st Defendant seeks the following orders in the amended statement of Defence and Counterclaim: -
a) The Plaintiff’s suit be dismissed.
b) An order that the Estate of the deceased the 1st Defendant being executor of the estate of the deceased is the rightful and legal owner of the suit property.
c) A permanent injunction issued against the Plaintiffs either by themselves, their assignees, servants, representatives barring them from interfering with, remaining on, dealing with in whichever manner the suit property.
d) The Plaintiffs be and are hereby ordered to vacate the suit property forthwith.
e) Costs of the suit and Counterclaim.
12    The plaintiffs responded further by reply to amended defence and counterclaim dated 18/07/2023 denying the allegations therein.
13    The Attorney General entered appearance for the 2nd and 3rd defendant through Memorandum of Appearance dated 25/04/2022 filed on 9/5/2022. In their defence dated 22/7/2022 signed by Senior Litigation Counsel Mr. Mwandeje M. Mng’ong’o they denied most of the allegations in the plaint. It is averred that the plaintiffs title deed was recalled because the records reflected the 1st defendant as the rightful owner of the suit property.  That the 1st defendant became owner of the suit property in 22/9/1988 when a title deed was issued. That the Gazette Notice of 13/5/2016 was published in accordance to section 33(5) of the Land Registration Act because of loss of green card. The particulars of fraud itemized in paragraph 10 of the plaint were denied. That the 2nd defendant acted within its mandate to rectify the register.
HEARING AND EVIDENCE OF THE PARTIES
14    The matter proceeded for hearing on 31/01/2024, 20/09/2024 and 14/11/2024.
15    The 1st Plaintiff testified as PW1, adopted her witness statement dated 11th April 2022 as her evidence in chief and produced the documents in the list of documents of even date as PEX 1 – 8 and list dated 14/07/2023 PEx 9-12.
16    The witness statement largely rehashed the averments in the plaint. She further testified that she was accompanied by her brother when they went to collect their title. Upon surrendering back, the title they waited for the person who took it but they could not find him and went back. They returned thereafter and were asked to identify the said person and they never got back the title. Later her brother died and they did succession for his estate obtained an order dated 10/06/2020 which they presented to the land registrar but never got a title deed. On complaining to the land registrar, they were summoned together with the 1st defendant where both claimed ownership. That when she explained about the adjudication register that showed her father as the owner the registrar referred them to DCI Diani.
17    It was her evidence that her father never sold the land to anyone. That they have been tilling the suit property.
18    On cross examination by Mr. Gathu she stated that her father was not buried on the suit property. He did not give them any documents pertaining the suit property. They knew his land was plot 179 because his father’s brother Saidi Ali Mwakulagizwa occupied plot 178. However, on being shown page 26 of the 1st defendants’ bundle (letter dated 22/11/2010) she confirmed plot 178 belonged to Narriman Khan Brunlenner. She had no document to show her father used to cultivate the land. They did not pay rates though she was aware the 1st defendant did.  She conceded Kuldips title was issued before their title issued in 2015. She stated there were no beacons on the land. She conceded that before her father’s death the land was already in another person’s name and she could not therefore have inherited the same. She told the court they have not constructed anything on the land. They never inquired from neighbors who Peter Gitau was.
19    Cross examined by Mr. Mwandeje State Counsel she clarified that Ali Mwinyi Chombola was her elder brother. She stated she was not born on the suit property except her elder brother and who was not her witness. That when her father died, she was 44 years. That while they were asked to pay for the title at the lands office she could not remember if it was part of her evidence. That while they were given the title, they did not sign for it. While she went to the DCI with her siblings, she did not have the OB before court.
20    The witness further testified that PEX2 starts with entry No.4 and therefore there must have existed previous entries 1-3.
21    With the above the plaintiff’s case was marked as closed.
22    DW1 was Ranjit Sondhi, adopted his witness statement dated 27th April 2023 as her evidence in chief and produced the documents in the list of documents 27/04/2023   as DEx 1 – 11.  It was his evidence that the owner of the suit property was his father which he inherited pursuant to his will. His father acquired the same from Peter Githu Kabiru supported by a transfer dated 19/9/1998. That they have had possession since 1998 but have not developed the same. They have been paying land rates. Beacons were fixed by the ministry of lands surveyor one Mr. Simiyu. That there was loss of green card and he DW1 applied for reconstruction and the process was gazetted vide gazette Notice No. 3422. The green card was reconstructed on 20/7/2016 which bears entry 22/9/88 as his father’s registration and which tallied with the title. He has never allowed the plaintiffs to occupy the property neither did his father.
23    The witness was cross examined by Mr. Kabiaro counsel appearing for the plaintiffs. DW1 stated he did not have the sale agreement between his father and the said Peter Kabiru . He conceded that both Peter Kabiru’s KRA PIN and the seller were missing from the transfer (DW1EX5). He was not familiar with procedure for LCB consent. He stated he got the Land certificate from S.E. Mehta & Sons and had only a single page. On being shown PEX1 Land Adjudication search the witness stated he has never met Mwinyikai Ali Mwakuragizwa. On being shown PEX 9 title dated 20/8/2015 the witness stated he did not have a back page on his father’s title like the one with the plaintiff’s title. He conceded Peter Kabirus title has no back page.
24    The witness insisted his father paid stamp duty as seen on the transfer though he did not have the assessment thereof and receipt for payment. He agreed that if his father bought the land from Peter then there ought to have been an entry reflecting Peter as proprietor on the reconstructed green card. On whether his father conducted due diligence the witness stated that was the responsibility of the lawyer and his agents.
25    Cross examined by Mr. Mwandeje DW1 stated he was at the suit property in 2011 and there was no one in the property. That they had placed surveillance and if anyone tried to squat, they would have known. His father never sold the suit property to anyone.
26    The witness stated the titles to his father and the plaintiffs were 27/28 years apart. That his father was never notified of the succession process. He clarified that entry 5 was in respect of Peter and Sondhi. He pointed that the adjudication search does not indicate the year Mwinyikai became owner of the property.
27    DW2 was Susan Mueni Land Registrar Kwale. She produced the documents in the list of documents dated 22/7/2022 as DW2 1-24. The witness highlighted the contents of the documents being cancelled green card in the name of Mwinyikai Ali Mwakulagizwa also marked ‘forgery’. Rehashing the entries in the card she stated that while there was a transmission to Ali Mwinyikai Chibola, Hamisi Mwinyikai Mwachimbola and Riziki Mwinyi Mwakulagizwa though the succession cause number is not indicated however there was a Kadhis court order in cause 244/2015 and title issued to them on 20/8/2015. She also rehashed the contents of the green card in favor of Kuldip, the title in Kuldips name and copy of the attendant transfer from Peter Kabiru, copy of Gazette Notice to open the 2nd green card No. 3422 of 2016, RL 19 and RL9 being transfer by transmission, deed of indemnity for the lost green card, adjudication record dated 21/5/1974 in the name of Mwinyikai including correspondences from lawyers. DW2 pointed that there is no entry for cancellation of the 1st defendants title in the parcel file.
28    Upon cross examination by Mr. Kabiaro DW2 testified that Mwinyikai Ali Mwakulagizwa was the original allotee. She confirmed that item 1 of her bundle was a green card whose entry No. 1 tallied with the adjudication record produced, that entries No.2 &3 were as per the transmission process she had outlined to the court which was completed and issued. It was her evidence that the information in the green card is a true reflection as per the parcel file. She stated there were no reasons why the title was marked forgery nor criteria for such marking. There was no record of investigation that could have led to the said mark. That both green cards were opened by A.N. Njoroge and he is the one who cancelled the title because there was no Gazette Notice.
29    The witness outlined the documents required in successful registration of transfer of land. She indicated the transfer in the parcel file was a copy because the documents at the registry were tampered with and removed. There was no transfer from Mwakulagizwa to Peter Kabiru. There was no consent for transfer from Peter to Kuldip. They did not have any document from Peter to Kuldip. She had no Land Certificate for Peter Kabiru. She pointed that based on the 1st page of the green card all the information was in the parcel file and the land registrar did not need any material to reconstruct the file. She stated the entire file for Kuldip was missing. She reiterated that for the plaintiff the green card was opened without a gazette notice and thus the mark forgery.
SUBMISSIONS
30    The parties filed final submissions in support of their cases.
PLAINTIFFS SUBMISSIONS
31    The plaintiffs identified two issues for determination Whether the 1st Defendant lawfully procured the suit property and Whether the Plaintiff is entitled to the remedies sought;
32    It is submitted that the plaintiff’s case that their father was the 1st allottee of the suit property was never controverted and is backed up by the certificate of official search dated 8th February, 2022. DW2 letter from the land adjudication and settlement dated 20th August, 2015), and a copy of the adjudication record dated 21st May, 1974.
33    Referring to the cancelled green card produced by both the plaintiff and DW2 it is submitted that DW2 testified that all the entries on the cancelled green card were genuine as they have been supported by cogent evidence in their custody and there was no reason tendered for the cancellation of the green card. This was supported by DW2 testimony that since she had all the originals to substantiate the transmission, she did not doubt the legitimacy of the entire process. It is therefore submitted the green card was genuine.
34    It was submitted that the gazette notice dated 13/5/2016 was irregular null and void for not meeting the 60 days statutory requirement and other legal requirements for reconstruction of a green card. The registry relied on documents availed by the 1st defendant who were not custodians of land documents. The relevant statutory declarations and indemnity were not produced.  No inquiries were made with the land surveyor, the land administration office or the land adjudication and settlement about the parcel to be fully informed before making a decision that could have serious effect as against the land. The court is referred to the provisions of section 33 of the Land Registration Act and Land Registration General Regulations 2017. That the reconstruction of the green card was to aid the 1st Defendant in irregularly procuring the suit property.
35    On Whether transfer of the suit property from Peter Kibiru to the DW1 was as per the law it is submitted that for the process of transfer of land  to be complete, there must be a duly executed transfer form, the land control board consent, the presence of the copies of the identity cards and copies of the KRA pin certificate, the valuation form application, the stamp duty payment receipt, the copies of the national identity cards/passport for both the vendor and the purchaser and which  were confirmed by DW2 were not in their custody to support the transfer of the suit property from Peter Githu Kabiru to the 1st Defendant. That no land record was produced indicating that Peter Githu Kabiru ever owned the said suit property. It is stated therefore that DW1 procured the suit property through fraud with the assistance of DW2 and DW3.
36    Citing the definition of fraud from Black’s Law Dictionary, the provisions of section 24, and 26 of the Land Registration Act as to prima facie evidence of title and instances for impeaching title therein, requirements for pleading fraud and its standard of proof it is submitted that the Plaintiff wholesomely pleaded and was able to demonstrate fraud and its particulars as highlighted in paragraph 10 of the Plaint.
37    Further that the mere fact of holding a title does not in itself limit the power of this court reliance is place on the case of Alberta Mae Gacci – Vs - Attorney General & 4 Others (2006) eKLR where the court is called not to aid crooks.
38    On whether the 1st Defendant has good title of the parcel it is submitted that the protection accorded to the holders of a title deed in section 24 of the Land Registrations Act is removed from the 1st Defendant on the grounds spelt out in section 26 of the same Act. Further, the protection the 1st Defendant enjoyed under Article 40 of the Constitution, 2010 was recalled on the ground of fraud and impropriety. The court is urged to apply the case of Elijah Makeri Nyangwara Vs Stephen Mungai Njuguna & Another, Eldoret ELC Case No. 609 B of 2012.
39    On whether the Ist Defendant acquired good title as the bona fide purchaser of land it is submitted that no evidence was placed before the court that at one point Peter Githu Kibiru was the proprietor of the suit property. That Peter Kibiru could not pass a good title to the 1st Defendant for he (Peter) did not have good title in the first place as per the doctrine of ‘Nemo dat quod non habet'. Reliance is placed on the case of Margaret Mukami Macharia (Adminstrator of the Estate of Esther Wangu Macharia) v Jessie Maina Gitau [2022] eKLR
Respondents Submissions
40    The Respondents submissions are dated 18/2/2025 and identified the main issues a) Whether the Plaintiff’s alleged rights in respect of alleged adjudication ought to defeat the 1st Defendant’s registration.  b) Whether the Plaintiff has proved allegations of fraud against the 1st and 2nd Defendants c) Whether the 1st Defendant has proved its case in the Counterclaim dated 23rd May 2023.
41    The court was invited to first determine the competing nature as between alleged adjudication or allotment produced by the Plaintiff and the Title Deed held by the 1st Defendant. That unproved adjudication should be used to defeat a registered Title which is the instrument conferring actual ownership to a property. It is submitted that no rights in respect of ownership were vested in the Plaintiffs and the Plaintiffs had not acquired a Title Deed before the 1st Defendant’s registration as an owner. That DW2 confirmed that there was no existence of the process of acquisition of the Plaintiffs’ property save vide the succession Order. Reliance is place on among others Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment) and Dr. Joseph N.K. Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others C.A.60/1997 as relied on in the case of Lagat v Kebut (Environment and Land Appeal E021 of 2022) [2023] KEELC 18432 (KLR) (26 June 2023) (Judgment)
42    It is submitted that no particulars of fraud have been proved or substantiated to warrant disturbing the 1st Defendant’s ownership of the subject suit property and/or the invoking of the provisions of Section 24 and 26 of the Land Registration Act in respect to the Title in favour of the 1st Defendant. That the acquisition of the suit property by the 1st Defendant after the Plaintiff failed to meet the conditions and obligations as per the Letter of Offer is not in itself a ground to plead and/or justify fraud.
43    It is urged that the burden of proof lies with the Plaintiff to prove the allegations of fraud on the part of the Defendants which they have failed to prove as required under Section 107 and 109 of the Evidence Act. Having failed to reach the required legal threshold the Plaintiffs claim ought to fail. Reliance is placed on Vijay Morjaria Vs Nansingh Madhusing Darba & Ano (2000) eKLR.
44    That the Plaintiffs failed to produce evidence in support of their case and that having failed to produce the same a presumption arises that the said evidence if produced is unfavourable to the Plaintiffs as held in Timsales Limited V Harun Thuo Ndung’u [2010] eKLR and Ndolo vs Ndolo (2008) 1 KLR (G & F) 742
45    On the counterclaim reference is made to Section 26 of the Land Registration Act which infers that a Certificate of title to be held as conclusive evidence of proprietorship it is submitted that the 1st Defendant produced a certificate of title in the name of his father after lawful transfer from Peter Kabiru as evidence in support of its Counterclaim. This is the root of his title. That no evidence has been tendered to the effect that the 1st Defendant was notified of any fraudulent activities in respect of the property prior to the acquisition and no particulars of fraud have been alleged or pleaded as against Peter Githu Kabiru who sold the property to the 1st Defendant’s father.  Reliance is placed in the case of Daudi Kiptugen Vs. Commissioner of Lands & 4 Others (2015) Eklr
46    It is submitted the Plaintiffs have not produced to prove how the suit property was transferred to them in 2015, who transferred the suit property to them in 2015, who applied for consent to transferred, who ordered for subdivision, who applied for consent to subdivide and who paid the purchase price. There is no evidence that the 1st Defendant who is the registered proprietor since 1988 transferred the suit land to the Plaintiff in 2015 or to anyone else.
47    That one property cannot have two valid title deeds the alleged title by the Plaintiffs is questionable and inadmissible and the Court is urged uphold the 1st Defendants tittle as the valid title. The court is referred to Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura Vs Attorney General & 4 others (2017) eKLR and Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others [2016] eKLR,
48    No submissions were filed on behalf of the 2nd and 3rd defendant.
ANALYSIS AND DETERMINATION
49    Having carefully considered the pleadings, testimonies and submissions of the parties the issues that arise for determination are;
1)    Who owns the suit property as between the Plaintiffs and, the 1st Defendants?
2)    Whether the Plaintiffs are entitled to the reliefs sought in the plaint;
3)    Whether the 1st, Defendant is entitled to the reliefs sought in their counter-claim; and
4)    Who is liable for the costs of the suit and the counter-claim?

50    The plaintiff’s case is that the suit property belongs to their father Mwinyikai Ali Mwakulagizwa following adjudication. After their father’s death sometime in the year 2011 her elder brother Hamisi Mwinyikai Chombola then petitioned the Kadhis court for a grant of letters of administration which was issued on 12/8/2015 pursuant to which they carried out a transmission of the suit property which was registered on 20/08/2015 (entry No. 3 of green card). On issue of the title in their names one of the employees at the land registry demanded its return citing reasons of documentation which they did but retained a copy. They never got their title back. Later the plaintiffs elder brother died they instituted succession Petition No. 134 of 2020 for replacement of his name with his daughter the 2nd plaintiff. This is when they realized the 1st defendant was the owner of the suit property having obtained it fraudulently with the assistance of the 2nd defendant since her deceased father never sold the same or gifted it to any person.
51    The plaintiff adduced before court Copy of Search from the department of  adjudication dated 8/02/2022, Copy of Certificate of search dated 25/3/2021, Copy of Certificate of death for Mwinyikai Ali Mwakulagizwa,Letters from area chief Diani Location dated 20/12/2021, Copies of grant of administration issued at the Kadhi Court dated 12/8/2015 and 10/6/2020, demand letter dated 16/2/2022, Gazette Notice No. 3422 dated 13/5/2016, affidavit of names dated 10/7/2023, Letter to the Executive Officer Kwale law court dated 12/7/2023 , Certified copy of Order from Kadhis court dated 13/7/2023, Copy of ID for Riziki Mwinyi Mwakulagizwa.
52    The 1st Defendant on its part states that the land belonged to his late father Kuldip who acquired it through transfer from the previous registered owner Peter Githu Kabiru. The father obtained title deed on 22/9/1988 and has been registered owner since then until his demise in the year 2021.The suit property has never belonged to the plaintiffs in their capacities as the representatives of their father or to their father during his lifetime. The title issued to the plaintiffs was as a result of a mistake by the 2nd defendant for which his father played no part.  That his father was paying rates and the plaintiffs were in occupation illegally thus the counterclaim.
53    The 1st defendant adduced in evidence Copy of title deed dated 22/9/1998 in the name of Kuldip Raj Sondhi, Copy of Land Certificate dated 19/12/1977 of previous owner Peter Githu Kabiru, Letter dated 23/9/1988 forwarding  the original title deed and instrument of transfer from HC Mehta & Sons Limited to Kuldip Raj Sondhi, Instrument of transfer dated 19/9/1988 for the suit property from Peter Githu Kabiru to Kuldip Raj Sondhi and deed plan, Copies of Rates Receipts from 2007 to 2020, Letter dated 27/5/2008 regarding installation of beacons, Letter from Ministry of Lands dated 22/11/2010 regarding boundary identification, deed of indemnity dated 5/5/2023 in respect of the loss of green card, Gazette Notice published on 13/5/2016 for lost green card in respect of the suit property and letter dated 28/07/2016 from CM advocates forwarding a certified excerpt of the replaced green card.
54    From the foregoing clearly this is a dispute involving two parties, each asserting ownership over the suit property.
55    What is the evidentiary burden that each one of them must discharge to substantiate their individual claims? Sections 107, 109 and 112 of the Evidence Act provide the answer to this question.
56    Section 107 provides as follows:
“(1) 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.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
57    Sections 109 states as follows:
“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
58    Section 112 states as follows; -
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”
59    Allegations of fraud have been raised against the 1st defendant and the 2nd defendant and I must therefore highlight on the standard of proof in cases where allegations of fraud have been raised.
60    In the case of Vijay Morjaria Vs Nansingh Madhusing Darba & Ano (2000) eKLR the court stated thus; -
“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.
61    Arising from the above a fundamental principle of fraud is that the same must be specifically pleaded and proved. Fraud is also quasi criminal and therefore its standard of proof is slightly higher than that of a balance of probabilities but not beyond reasonable doubt – see the Court of Appeal decision in Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) vs Stephen Njoroge Macharia [2020] eKLR,
62    Two titles have been presented before this court in respect of the Kwale/Galu Kinondo/179. The 1st defendant title is dated 22nd September 1988 registered pursuant to the Registered Land Act Chapter 300 of the Laws of Kenya and title dated 20/8/2015 registered pursuant to the Land Registration Act 2012. It is trite that one parcel of land cannot have two titles.
63    How should a court be guided when faced with a situation such as the above.
64    The Court of Appeal in Megvel Cartons Limited vs Diesel Care Limited & 2 Others (Civil Appeal 70 of 2018) [2023] KECA 184 (KLR) (17 February 2023) (Judgment) cited the case of Hubert L. Martin & 2 Others vs Margaret J. Kamar & 5 Others [2016] eKLR, which guided thus:
“A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.”
65    According to the Plaintiff their ownership stems from their father Mwinyikai Ali Mwakuragizwa whom they alleged was the first allotee. They produced a letter from the Ministry of Lands and Physical Planning Department of Land Adjudication dated 8/02/2022 in respect of Plot No. 179 Galu Kinondo Adj Section. The same confirms that at the time of demarcation the plot was recorded in the names of Mwinyikai Ali Mwakuragizwa. It is signed by the Land Adjudication and Settlement Officer Matuga/Msambweni/Lunga Lunga Sub-Counties.
66    The 2nd defendant (DW2) produced a letter from the Ministry of Lands and Physical Planning Department of Land Adjudication dated 20/8/2015 from Kwale Msambweni District Land adjudication & Settlement Officer confirming the above information and adjudication record dated 21/5/1974 A 654179 (page 8) which contained the same information.
67    The plaintiffs did not produce a title deed in the name of their father Mwinyikai Ali Mwakuragizwa. However, DW2 produced a copy of green card showing the entry No. 1 of 15/11/74 in the name of Mwinyi Ali Mwakuragizwa. This card is crossed and has remarks ‘forgery’. The card further reveals it was opened under section 60 (2)(3) of the LRA No. 3 of 2012.
68    The 1st Defendants title is anchored firstly on the title of Peter Githu Kabiru dated 19/12/77. DW1 produced the documents listed in his list of documents dated 27/4/2023. These are Copy of Title Deed dated 22/9/1998; Copy of Land Certificate dated 19/12/1977; Letter dated 23/9/1988 from HC Mehta & Sons Ltd;Transfer dated 19/9/1988; Rates receipts 2007 – 2020;Rates Clearance certificates; Letter dated 27/5 /2008 from Ministry of Lands;Deed of indemnity dated 5/5/2023;Gazette Notice of 13/5/2016 and Letter dated 18/7/2016.
69    It was incumbent upon both parties to defend the root of their titles.
70    The court notes that no title document was issued in the name of Mwinyikai Ali Mwakuragizwa. However, what is clear from the documents produced by the Land Registrar, 1st defendant title (Part A as shown in page 37 of the 2nd defendants’ bundle) and plaintiff (green card marked forgery) is that the 1st edition of the parcel register for the suit property was opened on 15/11/74.
71    The above therefore connotes there must have been someone issued with title at this point and that is why a parcel file was opened. The date of opening of the register clearly corresponds with the adjudication record indicating the land was first recorded to Mwinyikai  Ali Mwakuragizwa. This also tallies with the entry showing that he was the first registered owner of the suit property in the green card marked forgery.
72    It has been urged by counsel for the 1st defendant the adjudication record relied upon should be equated to a letter of allotment whose conditions were not fulfilled and therefore no title passed to the plaintiffs. I would respectfully differ with this proposition because I had no evidence before court that the property was a settlement scheme. The process of Land Adjudication is synonymous with community land. This is buttressed by the preamble to the Land Adjudication Act Cap 284 which reads that it is; -
“An Act of Parliament to provide for the ascertainment and recording of rights and interests in community land... and for purposes connected therewith and purposes incidental thereto.”
73    The 1st defendant also had to defend the root of his title. It was his evidence that his deceased father Kuldip purchased the land from the Peter Githu Kabiru. Next it was incumbent upon DW1 to explain the root of Mr. Kabirus title and how it was acquired because this is the root of the defendant’s father’s title. I have already outlined the documents produced in support of the 1st defendant’s case.
74    I have already noted that the parcel file was opened in 1974 and therefore the title issued in 1977 cannot have been the 1st title issued with regard to the suit property. In fact, based on part B of the title issued to the 1st defendants’ father theirs was the 4th and 5th entry meaning there were previous holders of the same.
75    Assuming Peter Kabirus title was entry 2 and 3 of the register there would still exist entry 1 which can only have been the entry at demarcation. The DW2 confirmed in cross examination that there was no transfer from Mwinyikai Ali Mwakuragizwa to Peter Kabiru. I have already pointed that it is only the adjudication record in favor of Mwinyikai Ali Mwakuragizwa that tallies with the 1st opening of the register on 15/11/74.
76    For me therefore the root of title must start at the adjudication process. The Land Adjudication process is very robust.  The land adjudication officer is under section 26A of the Act required to forward to the Director of land adjudication a final adjudication register in regard to all parcels that have no objections for transmission to the chief land registrar for purposes of registration. Under the provisions of section 27 of the Act the adjudication officer is mandated to alter the adjudication register from time to time to conform with any determinations of objections under section 26 of the Act and the Director of Adjudication is required to forward the adjudication register together with a list of appeals lodged under section 29 of the Act to the Chief Land Registrar. The Chief Land Registrar under section 28 of the Act is required to give effect to the adjudication register through registration whereof individual titles are issued in terms thereof save in respect of parcels where an appeal has been preferred to the Minister where a restriction is required to be placed.
77    Section 28 provides thus: -
28. Upon receiving the adjudication register under section 27 of this Act, the Chief Land Registrar shall cause registration to be effected in accordance with the adjudication register. Provided that, where the land is affected by an appeal under section 29 of this Act, a restriction shall be made and registered in respect of that land expressed to endure until the determination of the appeal, and on such determination the register shall if necessary be altered in accordance with the determination.
78    The Court had no evidence linking Mr. Kabirus title to the 1st registered owner of the land at the opening of the register in 1974. I also had no adjudication record showing that Peter Kabiru underwent the land adjudication process or bought the land from Mwinyikai Ali Mwakuragizwa and his consent to have the adjudication record changed. I had no evidence to show that there was an objection lodged by Peter Kabiru which was sustained and changes made to the register accordingly.
79    DW1 indicated in cross examination that he was given the title by S.E. Mehta & Sons and that his father had lawyers. But I don’t think this would suffice in view of the above. Basically, in my view and from the totality of the evidence before this court the title to Peter Kabiru had no history and or root at all.
80    The Plaintiffs crave that the 1st defendants title must be impeached because it was illegal, unprocedural and through a corrupt scheme. That it was obtained without a transfer from the plaintiffs; Transferring the property to himself without adhering to the requisite procedure of filling the transfer forms, obtaining the land control board consent. Using an unorthodox means to acquire the suit property. Falsely advertising in the Kenya Gazette that his green card is lost. Causing his name to be entered in the register of the 2nd Defendant as the owner of the property.
81    The legal framework and circumstances under which a title may be impeached was aptly stated in the case of Rosemary Wanjiru Njiraini v Officer In Charge of Station, Molo Police Station & another [2017] eKLR -
‘17. It has been the law, and it still is the law, that the Certificate of Title issued to a person is prima facie evidence, that the said person holds title to the land noted therein. In the pre-2012 land regime, this was provided for in Section 28 of the Registered Land Act and Section 23 of the Registration of Titles Act which were drawn as follows: -
RLA S.27. Subject to this Act -
(a)     the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;
(b)     the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied and expressed agreements, liabilities and incidents of the lease.
RTA S.23 (1) The certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party.
(2) A certified copy of any registered instrument, signed by the registrar and sealed with his seal of office, shall be received in evidence in the same manner as the original.
18. The current law is in Section 26 of the Land Registration Act, 2012, which provides as follows: -
26. (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.
82    DW1 testified that he did not take part in the fraudulent acts as particularized. His father bought land from the previous owner. However based on the provisions of section 26 (1) (b) he need not have participated provided that there are irregularities seen in the acquisition of the title. In this regard the court is guided by the holding in the case of Elijah Makeri Nyangwara Vs Stephen Mungai Njuguna & Another, Eldoret ELC Case No. 609 B Of 2012 the court stated as follows: -
" ... it needs to be appreciated that for Section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions."
83    This court has already made a finding that Peter Kabirus title had no root at all. On this basis alone the title issued to the 1st defendants’ father cannot stand. The true owners and who is the owner at adjudication must be protected. It is trite that during demarcation the interests are ascertained. The adjudication officials and the relevant committee walk the area and record the names based on where one is found to be in occupation and which is synonymous with the plaintiffs’ case that the land belonged to their father. This has been corroborated by the extract of the adjudication register. It has also been corroborated by the 1st defendants’ pleadings where at paragraph 17,18,19 and 19 where it is averred that the plaintiffs are in occupation of the suit property and their continued occupation amounts to trespass including the prayer for their eviction. 
84    It is trite that a party is bound by its pleadings and I find support in the Mwinyihaji -vs- Mwebeyu & Another 2025 KECA 858 [KLR]; David Sironga Ole Tukai Vs Francis Arap Muge and Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR
85    Moreover, there were emerging issues that cast a further doubt on the above title. There was no sale agreement supporting the transfer from Peter to Kuldip the 1st defendants’ father which DW1 conceded he did not have.
86    Additionally the courts further review of the document of ownership produced revealed that Peter Kabirus document is a Land Certificate while the 1st defendants was a title deed both issued under the regime of the Repealed Registered Land Act.  I have noted the plaintiff’s submission in this regard under paragraph 46 a land certificate only issues where the interest involved is a leasehold interest. In the present case freehold title is what ought to have issued and not a land certificate. There was no explanation as to when the conversion happened.
87    Clearly all the above are vitiating factors that support the need for cancellation of the title and reverting it to the true owner who is Mwinyikai Ali Mwakuragizwa. Nothing comes out of an illegality.
88    The court has noted the gaps pointed with regard to the registration of the title issued to the plaintiff pursuant to transmission from Succession proceedings. However, based on the analysis, this court has looked at the root of title vis the process of land adjudication and who is the true owner and arrived at the conclusion that the true owner of the suit property is the Mwinyikai Ali Mwakuragizwa as recorded at adjudication.
89    I’m further emboldened by the case of Chumo Arap Songok v. David Kibiego, CA No. 141 of 2004 (Nakuru) where it was held that a court of law is not powerless in the face of an illegality and is duty bound to correct the illegality and to do substantive justice
90    In Wachira Karani v Bildad Wachira [2016] KEHC 6334 (KLR) Mativo J had this to say; -
“The court is not powerless to grant relief when the ends of justice and equity so demand, because the powers vested in the court are of a wide scope and ambit. The inherent power, as observed by the Supreme Court of India in Raj Bahadur Ras Raja vs Seth Hiralal has not been conferred on the court; it is a power inherent in the court by virtue of its duty to do justice between the parties before it”
91    The upshot of the foregoing is that the Plaintiffs stand in a better position. They have provided sufficient evidence to prove their claim on ownership by dint of their father Mwinyikai Ali Mwakuragizwa as at adjudication. I am inclined to find that the Plaintiffs have discharged the burden of proving their case on a balance of probabilities as required in law.
92    The counterclaim must therefore in view of the above findings fail.
93    Are the Plaintiffs entitled to the orders sought or what orders should issue in the circumstances.
94    The plaintiff craves that the Land Registrar revokes, cancel the title in the name of the 1st defendant’s father.  Having come to the forgoing conclusion then the parcel register for the suit property must be rectified.
95    Section 80 of the Land Registration Act empowers the court to rectify the land register and provides: -
80. Rectification by order of Court
(1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.
(2) The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.

96    The court has been invited to order for the opening of a green card in the names of the plaintiffs. Having determined that the true owner of the land is Mwinyikai Ali Mwakuragizwa, then  it is my considered view that the entry in favor of Peter Githu Kabiru  must be cancelled and all subsequent entries emanating from the title issued to Peter Githu Kabiru including the reconstructed register made pursuant to the Gazette Notice herein must be cancelled and a register be opened in the name of Mwinyikai Ali Mwakuragizwa (deceased). The implication of this will be that the entry in respect of the plaintiff’s title dated 20/8/2015 shall be canceled.
96    As concerns the prayers for a permanent injunction I will not belabor the point. The true ownership of the suit property having been determined by this court after hearing the parties then the orders of permanent injunction are warranted in favor of the estate of Mwinyikai Ali Mwakuragizwa (deceased).
97    On costs of the suit, Section 27 of the Civil Procedure Act provides that: -
27. Costs
(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.

98    Costs, therefore, generally follow the event, and are awarded at the discretion of the court as provided under the above section. The principle that costs follow the event, as explained in Jasbir Singh Rai & 3 others vs Tarlochan Signh Rai & others (2014) eKLR, is not intended to penalize the losing party, but to compensate the successful party for the trouble taken in prosecuting or defending the case.
99    The upshot of the foregoing is that judgement is entered for the plaintiffs against the defendants as follows
1)    A declaration that the title deed held by the late Kuldip Raj Sondhi in respect to the parcel of land, KWALE/GALU KINONDO/179 is null and void.
2)    The 1st defendants counterclaim is dismissed.
3)    A declaration that the parcel of land known as KWALE/GALU KINONDO/179 lawfully belongs to Mwinyikai Ali Mwakuragizwa (deceased).
4)    That the Kwale Land Registrar do revoke, cancel the title deed in the names of Peter Githu Kabiru, Kuldip Raj Sondhi and the title in the names of the plaintiffs and replace them with the name of Mwinyikai Ali Mwakuragizwa (deceased).
5)    That the Kwale Land Registrar do open another green card accordingly.
6)    That a permanent injunction issues  restraining the 1st defendant their agents, servants, nominees, employees from entering, or in any way interfering with the parcel of land KWALE/GALU KINONDO/179.
7)    Costs and interest.

Orders accordingly


Judgement dated signed and delivered this  6th  Day of  May 2026

Judgement delivered virtually through Microsoft teams Video Conferencing Platform; -
In the presence of:
Mr. Kabiaro for the Plaintiff
Mr Gathu   for the 1st Defendant
No appearance for the 2nd and 3rd Defendant
Ms. Asmaa Muftah – Court Assistant.