Samuel Mbugua Ikumbu, (hereinafter referred to as the plaintiff) has come to this court against the Honorable Attorney General, the Commissioner for Lands and David Mwinzi, (hereinafter referred to as the defendants) asserting that pursuant to the letter of allotment Reference Number 30884/XXXI dated 20th September 2001 the 2ndDefendant signed and allocated the land parcel referred to as Residential Plot B Nakuru Municipality now Known as Nakuru Municipality Block 17/643 and Nakuru Municipality Block 17/644 ( hereinafter referred to as the suit properties) both Measuring approximately 0.4 hectares to the Plaintiff on a consideration of Kshs 10,000/= which the Plaintiff duly paid.
By a letter dated 15th June 2005 or thereabout the 2nd Defendant instructed the Plaintiff to appear in person before the Nakuru District Lands Registrar to execute two lease certificates for Residential Plot B Nakuru Municipality now Known as Nakuru Municipality Block 17/643 and Nakuru Municipality Block 17/644 allotted to the Plaintiff.
The Plaintiff went to the Nakuru District Lands Office where upon he discovered that the lease certificate in respect to Residential Plot B Nakuru Municipality now known as Nakuru Municipality Block 17/643 and Nakuru Municipality Block 17/644 were registered and issued to the 3rd Defendant herein. The Plaintiff avers that the 2nd Defendant by himself, servant and or agents negligently, wrongfully and unlawfully allotted and registered the land parcels afore-stated to the 3rd Defendant.
The particulars of negligence of Commissioner of Lands were stated as follows:-
a. Allotting Residential Plot B now known as Nakuru Municipality Block 17/643 and 644 to the 3rd Defendant while knowing the same had already been allocated to the Plaintiff
b. Recklessly registering land parcels Residential Plot B Nakuru Municipality now known as Nakuru Municipality Block 17/643 and 644 in title without first establishing their status.
c. Failing to keep proper or any proper records of land and land transactions.
d. Allotting and or registering Residential Block B Nakuru Municipality now known as Nakuru Municipality Block 17/643 and 644 to more than one person.
e. Failure and or ignoring to employ reasonable prudence or skill in the performance of its duties.
f. Permitting the matters aforesaid to happen.
In the alternative and without prejudice to anything contained herein the Plaintiff avers that the 3rd Defendant by himself his servant and or agents wrongly and fraudulently caused himself to be allotted the Residential Plot B Nakuru Municipality now known as Nakuru Municipality Block 17/643 and 644 and subsequently caused himself to be registered as the owner of the said parcel.
The plaintiff has particularized the 3rd defendant’s fraud as:-
a. Using false pretence to procure his respective registration as proprietor of land parcel Residential Plot B Nakuru Municipality now known as Nakuru Municipality Block 17/643 and 644.
b. Falsifying title documents purporting the sale to be genuine
c. Knowing or having reason to believe that the suit land had already been allotted to the Plaintiff and proceeding to obtain titles to the said land under title Residential Plot B Nakuru Municipality now known as Nakuru Municipality Block 17/643 and 644.
d. Creating a situation so as he can acquire the Plaintiffs land for free.
The Plaintiff prays for judgment against the Defendants jointly and severally for:-
a. A declaration that the Plaintiff is the lawful allottee of Residential Plot B Nakuru Municipality now known as Nakuru Municipality Block 17/643 and 644.
b. An order for cancellation of title to Residential plot B Nakuru Municipality now known as Nakuru Municipality Block 17/643 and 644 and an Order for rectification of the Land Register.
c. A permanent injunction restraining the 2nd Defendant by himself, his servants and or agents from claiming ownership trespassing and or otherwise interfering with the Plaintiffs Land i.e. Residential Plot B Nakuru Municipality now known as Nakuru Municipality Block 17/643 and 644.
d. Costs and interests of the suit.
1st and 2nd defendants Defence
The 1st and 2nd defendants denied all the allegations by the plaintiff and put him to strict proof thereof. They prayed that the sit be dismissed with costs.
The 3RD DEFENDANT'S DEFENCE
1. The 3rd defendant denies the allegations in the plaint and states that he was issued with a valid certificate of lease to Nakuru Municipality Block 17/643 and Nakuru Municipality Block 17/644 and avers that the same was done lawfully. That the history of his proprietorship of the said parcels started in the year 1998 when the 3rd Defendant was allocated un-surveyed plot No.2 situated within Nakuru Municipality, he then accepted the offer by paying Kshs. 15000 and thereafter it was surveyed as Nakuru Municipality Block 17/211 on survey plan FR No. 245/80 which was then subdivided into un-surveyed plots A and B. The resultant parcels of land came with their own individual letters of allotment which the 3rd Defendant accepted, surveyed (FR no 418/171) and processed leases and certificates of lease issued to him as first registration of the suit parcels. (Nakuru Municipality Block 17/643 and Nakuru Municipality Block 17/644).
The 3rd Defendant contends that there are inconsistencies with the claims made under paragraphs 5 and 6 of the plaints in the following respect;
a) The said letter of allotment dated 20th September 2001 referred to under Paragraph 5 of the plaint seems to grant the Plaintiff a 99-year lease from 1st of June 2001 which is three months before the issuance of the letter of allotment.
b) The total addition of the plaintiff's letter of allotment is also wrong. The alleged single allotment letters purports to have allocated the 2 suit plots and in addition the same was not available for allocation as at 2001.
c) The Part Development Plan attached to the letters of allotment is altered and changed.
d) The plaintiff has not explained what process he undertook to get the two leases for Nakuru Municipality Block 17/643 and Nakuru Municipality Block 17/644).
The 3rdDefendant herein prays that the Plaintiff's suit be dismissed with costs.
The defendant filed a counterclaim averring that at all material times, the parcels of land known as Nakuru Municipality Block 17/643 and Nakuru Municipality Block 17/were exclusively leased to him by the Government of Kenya which issued him with certificates of lease to the same for a period of 99 years. The 3rd Defendant then proceeded to occupy and make use of the suit parcels to date and is still within the 99-year lease term. The Plaintiff illegally, fraudulently, unlawfully, irregularly and without any color of right purported to acquire interests in the suit parcels and inter alia when he knew or ought to have known that the same had been leased to the 3rd Defendant and was not available for alienation. The plaintiff’s fraud is particularized as follows:-
a) Uttering and falsifying documents to acquire leases over the 3rdDefendant's (now the Plaintiff's) parcels of land.
b) Providing false and misleading information to the Ministry of Lands in order to unlawfully acquire leases over the suit parcels belonging to the 3rd Defendant.
c) Providing new documents acquired during the pendency of this suit which are evidence of afterthought and filed with the intention to mislead the court and defeat the 3rd defendants (now Plaintiff) rights.
Plaintiffs Case
The plaintiff testified that in the year 2000, he applied to the Commissioner of Lands to be allocated a plot. On 20th September 2001 he was issued with a letter of allotment Ref. No. 30884/XXXI allotting him Residential Plot B. He acknowledged the Letter of allotment by signing a copy and forwarded it to the Commissioner of Lands. Upon allotment, he immediately took possession of the plot and planted trees and also cultivated the land. In the year 2002, he wanted to pay the stand premium and other charges but his efforts to pay were hampered as there was an embargo on all land transactions at Lands Offices. In the year 2003 he approached the Chief Land Registrar with a view of opening a file and at least pay some amount towards acceptance of the offer. This was allowed on 22nd December 2003 and he sent a cheque for Kshs 10,000/= to the Commissioner of Lands. The payment was not effected for reasons that the original letter of allotment was required. On 13th April 2004, He forwarded the original Letter of Allotment and was allowed to pay vide Bankers Cheque No. 018417 for Kshs 10,000/= dated 22nd December 2003 and I was issued with Receipt No. F 625152 dated 13th April 2004.
On or about April 2005, He was informed by a worker he had employed who was living on the plot that there were people surveying the land and had placed beacons on the land. He visited the Nakuru Lands District Registrar to ascertain who was surveying the land. The Nakuru District Land Registrar informed him that someone had been allocated the land and was in the process of registration.
He travelled to Nairobi Ardhi House and expressed his fears that someone was grabbing his land. After thorough scrutiny, it was discovered that someone had surveyed the plot and sub-divided it into two portions but the records showed that he was the original owner. The Commissioner then issued him with a forwarding letter and two lease certificates to fill and present for registration and execution before the Nakuru District Land Registrar to secure his interest.
The final Block Plan reveal that Titles Nakuru Municipality Block 17/643 and L.R NO. Nakuru Municipality Block 17/644 originated from Nakuru Municipality Block 17/211 but in reality it is Residential Plot 'B' Nakuru Municipality that was sub-divided fraudulently to come up with Nakuru Municipality Block 17/643 and L.R NO. Nakuru Municipality Block 17/644.
According to an official search he conducted at the Nakuru Lands Registry Title Number Nakuru Municipality Block 17/211 belongs to Joseph Thuo Ngeta since 1995 and has never been allocated to any other person and the plot has never been sub-divided. Therefore it was not possible for David Mwinzi to sub-divide Nakuru Municipality Block 17/211 as it did not belong to him at the time of the purported application for consent to subdivide or even before or after the application.
That Residential Plot B now known as Title Number Nakuru Municipality Block17/643 and L.R NO. Nakuru Municipality Block 17/644 and Title Number Nakuru Municipality Block 17/211 are two distinct plots.
On 8th November 2006 he wrote cheque Number 026335 to the Commissioner of Lands to clear his premiums but the file to Titles NAKURU MUNICIPALITY BLOCK 17/643 and L.R NO. NAKURU MUNICIPALITY BLOCK 17/644 could not be traced at the Lands Registry and therefore the cheque was returned to him
He prays for a declaration that he is the lawful allottee of Residential Plot B now known as NAKURU MUNICIPALITY BLOCK 17/643 and L.R NO. NAKURU MUNICIPALITY BLOCK 17/644. He further prays for an order for cancellation of Title to Residential Plot B now known as Titles NAKURU MUNICIPALITY BLOCK 17/643 and L.R NO. NAKURU MUNICIPALITY BLOCK 17/644 and rectification of the Land register.
On Cross –examination by Mr Mutai learned counsel for the 3rd defendant, he states that on payment of the stand premium, he took occupation immediately. He states that his letter of allotment came in 2001. His file was misplaced. His plot number was subdivided illegally.
PW2, Mr Silvestor Musera Osodo a land officer previously an employee of the lands and settlement ministry stated that he used to sign allotment letters. He stated that the letter dated 6th March 2015 had his name but he could not confirm that the signature was his. In the letter he confirmed that the letter of allotment was issued to the plaintiff. He confirmed that the 3rd defendant was his colleague. He confirmed that he wrote the letter dated 6th of March 2015 but letter withdrew his confirmation. He states that there was no application for allocation made by the 3rd defendant and that parcel no 17/211 had no title and that the same was not registered in the names of the 3rd defendant but one Joseph Thuo Ngata. The said witness was categorical that the parcels number 17/643 and 644 originated from 17/211.
Upon cross examination by Mr Mutahi, he reiterated that the two parcels of land came from the parcel no Nakuru Municipality Block 17/211.
PW3, Wilson Kibichy a records officer in the ministry of lands and Public works, housing and urban development states that he is responsible for data management. He was aware that parcel number 17/211 was subdivided to produce 17/643 and 644, He states that the latter parcels are adjacent to each other whereas 17/211 still exists and is in another location as per the Registry Index Map. He states that for a subdivision to be done there must be an original title which is normally extinguished upon subdivision. For subdivision to be done there must be an application for approval by the local authority and the director of land administration. That for the parcels number block 17/643 and 644. Mutation forms should have been prepared for parcel number 17/211. He states that parcels number 17/643 and 644 could not have come from 17/211 as they appear as new grants.
On cross examination by Mr Mutahi, he states that parcels nos 17/643 and 644 appear in the Registry Index Map.
The Attorney General on behalf of the 2nd defendant called Peter Wanyama, the regional surveyor Rift Valley region, Nakuru who states that the land disputed by the two parties is the same on the ground. It is neither fenced nor developed. The suit parcel of land had been planned as residential plot ‘2’ Nakuru Municipality and allocated to the 3rd defendant. The plot had been surveyed as Nakuru /Municipality Block 17/211 prior to the allocation as part the survey plan. He states that after acceptance, the 3rd defendant applied to the commissioner of land to have the parcel subdivided into two plots and letters of allotment were issued to the 3rd defendant for the two subplots. That a survey was carried out for the two subplots and the resultant new numbers were n/m 673 and 674. The RIM was amended and titles to the two parcels of land were issued to the 3rd defendant in the year 2005.
On cross examination by Mr Mutai, he reiterates that parcel number 17/211 was subdivided to create 17/643 and 644 and that parcel number 17/211 was Government Land.
The Attorney General called Gordon Ochieng as the 2nd witness. He states that block17/643 and 644 are a subdivision of 17/211 however, on cross examination, he states that he has never seen the title for parcel number 17/211. He agreed on cross examination that parcel number 17/643 measures 0.2070Ha whereas 17/644 measures 0.2182Ha. The letter of Allotment for plot number B is 0.207 Ha. No subdivision can be done without the consent of the owner.
The 3rd defendant, David Munyao Mwinzi did not testify because he suffered stroke, instead his son Kevin Munyao mwinzi tesfified that states his father was involved in Nakuru CMCC NO. 1376 of 2005 which had similar parties and similar issues as in the present case prior to being dismissed for want of prosecution in 2014. With regards to this suit parcels of land, he states that to the best of his knowledge the said parcels legally belong to the 3rd defendant. His interest over the said parcels started in the year 1998 when he was allocated unsurveyed plot No.2 situated within Nakuru Municipality, He then accepted the offer by paying Kshs. 10,000/= thereafter it was surveyed as Nakuru Municipality Block 17/211 on survey plan FR No. 245/80 which was then subdivided into un-surveyed plots A and B with the approval from the Commissioner of lands.
The resultant parcels of land came with their own individual letters of allotment whose terms he similarly accepted, surveyed on FR No 418/17, the registry index man (RIM) was sealed and signed by the Director of Survey and forwarded to Commissioner of Lands for the preparation of leases. The leases were prepared and certificate of leases registered in his name in Nakuru 2005 which now became the suit parcels. (Nakuru Municipality Block 17/643 and Nakuru Municipality Block 17/644).
His father has been in quiet possession of the suit property since its allotment, survey and subdivision and ultimately the issuance of valid title deeds from the Commission of Lands in June 2005. There has been no dispute from the time of allotment in 1998 up to 2005 August when titles were registered in his name. The plaintiff made several applications to court in Civil suit 1376 of 2005, tried to fraudulently acquire possession of the land through the extraction of fake court orders issued on 18th January 2006 and which were ultimately revoked by the same court on 1st February 2006 vide orders issued on 2nd February 2006.
In an application made by advocates on record dated 18th September 2006 the plaintiff was barred from erecting any structures or depositing any building material on the said parcels vide orders of Hon H.M Nyaga SRM (as he was then) on 17th October 2006 and issued on 7th November 2006. The Plaintiff's claim over this parcels of land is false and his documentary evidence is quite suspect and the same has been confirmed by correspondences from the National Land Commission dated 28th August 2013 and from the Director of Surveys dated 13th September 2013, after his inquiry over the ownership and status of the suit parcels.
On Cross examination by Mr Mbiyu, learned counsel for the plaintiff, he states that his father worked at survey of Kenya as a cartographer. He does not know his father’s colleagues. His father worked at the lands department in his whole life. The suit parcels of land are his property having been subdivided from 17/211. He states that the green card for 17/211 shows the owner as Joseph Thuo Ngata. It was transferred to Nixon Kariuki Thuo. He does not know who is using the land. He does not understand a PDP.
Rival Submissions
Plaintiffs Submissions
The Plaintiff submits that his case is that on 20/9/2001 he was issued by the commissioner of lands with a letter of Allotment Ref No. 30884/ XXX1 for Residential Plot B. He took possession immediately planted trees and has been in active possession to date. He later paid Kshs. 1000/= and was issued with receipt No. F625152 and also paid the sum of Kshs. 87,800/= the amount on the Allotment letter. On 7/7/2005, the Plaintiff conducted an official search and found out that the 3rd Defendant was registered owner of the suit land now known as Nakuru Municipality Block 17/643 and Nakuru Municipality Block 17/644. He filed NAKURU CMCC NO. 1376 OF 2005 but the said suit was dismissed on 7/11/2013 for want of prosecution. That the 2 titles , to wit, Nakuru Municipality Block 17/643 and Block 17/644 originated from Nakuru Municipality Block 17/211. This was according to the 3rd Defendant. The Plaintiff conducted a search on Nakuru Municipality Block 17/211 which showed that the same belongs to Joseph Thuo Ngeta and later Nixon Kariuki Thuo. Title to this parcel was issued on 20/06/1995. The Plaintiff's claim is that the 3rd Defendant fraudulently procured registration of his residential plot B into Nakuru Municipality Block 17/643 and 17/644. The Plaintiff thus prays that a declaration be made that he is an allotee of Residential Plot B and an order for cancellation of titles Nakuru Municipality Block 17/643 and 17/644 and rectification of the land register.
The plaintiff submits that in the case of William Kabogo Gitau v George Thou & 2 others [2010] eKLR, Honourable Kimaru J on addressing the issue of discharging the burden of proof on a balance of probabilities stated:-.
"In ordinary civil cases, a case may he determine in favour of a party who persuades the court that the allegations he has pleaded in his case is more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51%, as opposed to 49% of the opposing party, is said to have established his case on a balance of probabilities. He has established that it is probable than not than the allegations that he made occurred..."
The plaintiff submits that that the evidence on record was clear and concise and that the Plaintiff has proved his case on a balance of probabilities.
Fraud has been defined in Black's Law Dictionary as follows;
"Fraud a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. Fraud is usu, A tort, but in some cases (Esp. when the conduct is willful) it may be a crime,- Also termed intentional fraud.
2. A mispresentation made recklessly without belief in its truth to induce another person to act, A tort arising from a knowing misrepresentation concealment of material facts, or reckless misrepresentation made to induce another to act to his or her detriment, unconscionable dealing; esp., in contract law, the unfair use of the power arising out of the parties' relative position and resulting in an unconscionable bargain."
The plaintiff submits that where fraud is purported then it has not only to be pleaded but also proved. This point is clearly espoused in the case of Insurance Company of East Africa VS The Attorney General , The Municipal Council of MSA, Zaherali Bhadurali Bhanji & Faiza Zaherali Bahadurali [2001] Eelkr, by Honourable P.N Waki J. where he stated:
"But the requirement of Law is that if fraud and/ or misrepresentation are alleged then particulars thereof should be pleaded. Only particulars of loss and damage are pleaded specifically but even these are not borne out by the facts on the ground.
He cited for support O 6 r 8 Civil Procedure Rules and Bullen & Leak & Jacobs, Preceent of Pleadings 13th Edn, page 425- 429. At Pg 427 it is stated by the Authors:
"Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged (Wallingford v Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709, Garden Neptune V Occident al [1989] I Llyod's Rep. 305,308).
The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (Davy v Garret (1878) 7 ch. D. 473 at 489). "General allegations however strong may be the words in which they are stated are insufficient to amount to an averment of fraud of which any court ought to take notice".
And Pg. 428
"Full particulars of any Misrepresentation relied on must be given in the pleading (R.S.C. Order 18 r 12 (1) (a) Any charge of fraud or Misrepresentation must be pleaded with utmost particularity."
The plaintiff submits that in this present case the particulars of fraud were set out in paragraphs 8 and 9 of the Plaint. The Particulars of fraud were proved against the 2nd and 3rd Defendants who did nothing to rebut the claims on fraud. The documents tendered in court by the Plaintiff showed that the 3rd Defendant did not follow the due procedure in acquiring the titles. The law is clear that a certificate of title can be challenged where the same has been acquired fraudulently, un-procedurally or through corrupt practice.
The plaintiff cites Section 26 of The Land Registration Act that states 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 titles has been acquired illegally, unprocedurally or through a corrupt scheme.
The plaintiff relies on the case of Alice Chemutai Too- vs- Nickson Kipkurui Korir & 2 Others [2015]2015 eKLR where hon Justice Sila Munyao as he then was held that:
" It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party; or where it is procured illegally, unprocedurally, or through a corrupt scheme. Where one intends to impeach title on the basis that the title has been procured by fraud or misrepresentation, then he needs to prove that the title holder was party to the fraud or misrepresentation. However, where a person intends to indict a title on the ground that the title has been acquired illegally, unprocedurally, or through a corrupt scheme, my view has been, and still remains, that it is not necessary for one to demonstrate that the title holder is guilty of nay immoral conduct on his part."
I had occasion to interpret the above provisions in the case of Elijah Makeri Nyangwara- vs- Stephen Mungai Njuguna & Another, Eldoret ELC Case No. 609 B of 2012 where i stated as follows:-
'... it needs to be appreciated that for section 26 (1) (b) is to remove protection from 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 vitiation factors. The purpose of section 26 (1) (b) in my view is to protect the real title holder from being deprived of their titles by subsequent transactions. "I stand by the above words and I am unable to put it better than I did in the dictum."'
Additionally, the court in the case of ELIJAH MAKERI NYANGWARA –VS- STEPHEN MUNGAI NJUGUNA & ANOTHER [2013] eKLR, held:
"The evidence in this case puts no one in doubt that the title to the 1st defendant was obtained illegally, unprocedurally or through a corrupt scheme. The documents that conveyed title to him were forged. The title could not therefore have been obtained legally or procedurally. I am satisfied that the provisions of Section 26 (1) (b) have been met and that the title of the 1st defendant is liable to be cancelled. I therefore proceed to cancel the title of the 1st defendant and his registration as proprietor of the suit land. The plaintiff should be registered as owner of the suit land. It is regretful that the 1st defendant was snared by the scheme perpetuated by the 2nd defendant. I sympathise with him but I must ensure that the real title holder is protected and that he is registered as the proper owner of the suit land."
The plaintiff further contends that in the decision of the Supreme Court delivered on 21st April, 2023 in the case of Supreme Court of Kenya, Nairobi Petition No. (E10) OF 2021, Dina Management Ltd V County Government of Mombasa 75 others (un reported) the supreme court held:
" The procedure for the allocation of alienated land is laid out by the Environment and Land Court in Nelson Kazungu Chai & Others vs. Pwani University [2014] eKLR as follows:
It is trite law that under the repealed Government Lands Acts, a Part Development Plan must be drawn and approved by the commissioner of lands or the Minister for lands before any un-alienated Government land could be allocated. After a Part Development plan (PDP) has been drawn, a letter of allotment based on the approved PDP is then issued to the allotees.
It is only after the issuance of the letter of allotment, and the compliance of the terms therein, that a cadastral survey can be conducted for the purpose of issuance of a certificate of lease. This procedural requirement was confirmed by the surveyor, PW3. The process was also re-stated in the case of Africa Line Transport Co. Ltd Vs. The Hon AG, Mombasa HCCC No. 276 of 2013 where Njagi J held as follows. " Secondly, all the defence witnesses were unanimous that in the normal course of events, planning comes first, then surveying follows. A letter of allotment is invariably accompanied by a PDP with a definite number. These are then taken to the department of survey, who undertake the surveying. Once the surveying is complete, it is then referred to the Director of Surveys for authentication and approval. Thereafter, a land reference number is issued in respect of the plot".
A part development plan (PDP) can only be prepared in respect to Government land that has not been alienated or surveyed..."
The first step is the preparation of the PDP. In the Plaintiff's case, the PDP was approved on 10/11/94 for plot B see PExh 4 & 22 and the letter of allotment was issued on 20/09/2001 ( See PExh 1) and payment on 22/02/2018 ( PExh 23).
For the 3rd Defendant, he says he was allocated unsurveyed plot No. 2 on 7/1/1998. No. PDP was produced; The List of documents No.2 is Part Development Plan for unsurveyed parcel no. 2 but the document itself was missing. No payment receipt for plot No. 2 in the sum of Kshs. 107,930/= was produced by the 3rd Defendant.
The 3rd Defendants statement which was reproduced in the statement of Kevin Munyao Mwinzi was that the 3rd Defendant was allocated unsurveyed Plot No. 2, accepted the offer and paid Kshs 15,000/= (Note the amount on the letter of Allotment was Kshs. 107,930/=) thereafter it was surveyed as Nakuru Municipality Block 17/211 which was then subdivided into unsurveyed plots A and B.
The plaintiff submits that the last piece of evidence is where the fraudulent scheme was hatched. The 3rd Defendant did not produce evidence showing the surveying of plot No. 2 into Nakuru Municipality Block 17/211. The date of the Allotment letters for Plot No.2 is 7/1/1998. Title to Nakuru Municipality Block 17/211 was issued on 20/06/95 to Joseck Thuo Ngete. It was already in existence when the Allotment letter for plot No. 2 was issued. See PExh 27 and 28 (the Green Card and search for the said parcel). That according to the 3rd Defendant Nakuru Municipality Block 17/211 was then subdivided into unsurveyed Plots A and B which gave rise to Nakuru Municipality Block 17/643 and Block 17/644. The 3rd Defendant did not produce photocopy of title to Nakuru Municipality Block 17/211 showing it was ever in his name. In addition, the plaintiff submits that a parcel of land in Kenya that already has a number cannot be sub-divided into unsurveyed plots. The so called unsurveyed Plots A and B did not have any connection to Nakuru Municipality Block 17/211. None was produced in court.
The Green Card for the parcels Block 17/643 and Block 17/644 do not show any connection to Block 17/211. A Green Card gives history of the parcel of land. If the 3rd Defendant could have produced "his" green card for Block 17/211 this history would have been shown.
The plaintiff submits that the 3rd Defendant got a helping hand from his colleagues at the land office. PW2 especially, Mr. Osodo signed the Allotment letter dated 7/ 1/1998 and the letter dated 12/5/1998 produced by the AG as Exh 6 in the list of Documents dated 8/7/2021 and that is why he became hostile to the letter dated 6/3/2015 (PExh 21). The witness also called by the AG , was a colleague to the 3RD Defendant Interestingly the AG attached the letter of Allotment dated 20/09/2001 issued to the Plaintiff. The payment for the plot A and B was 42,450/= each which was less than what was demanded in the Allotment letters.
The plaintiff submits that the Plaintiffs evidence that the 3rd Defendant hatched a scheme to take away his land is true. The 3rd Defendant's evidence is that he was "allocated unsurveyed Plot No. 2 thereafter it was surveyed as Nakuru Municipality Block 17/211 … which was then subdivided into unsurveyed plots A and B." The 3rd Defendant ought to have produced the paper trail to support this evidence. It was crucial to this case.
The fact that the 3rd Defendant and the 1st and 2nd Defendants did not produce any document in support of the surveying of Block 17/211 to plots A and B goes to show that had the evidence or document been produced it would have been unfavorable to them.
In conclusion, the plaintiff submits that there is enough evidence for the court to find that the 3rd Defendant acquisition of parcel Nakuru Municipality Block 17/643 and 17/644 was fraudulent and through a corrupt scheme and we urge the court to find for the plaintiff and grant the orders sought in the Plaint.
Section 80 (1) of the Land Registration Act, 2012, empowers the court to 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. The plaintiff prays for the costs of the suit to be met by the 3rd Defendant.
3rd Defendants Submissions
The 3rd defendant submits that the Certificates of Lease held by the 3rd Defendant over Nakuru Municipality Block 17/643 and Nakuru Municipality Block 17/644 are valid, lawfully issued, and indefeasible. The evidence tendered at trial overwhelmingly demonstrates that the root of the 3rd Defendant's titles complies with all the procedural and statutory requirements applicable at the time of acquisition. The 3rd defendant cites that case of Wreck Motors Enterprises v The Commissioner of Lands & Others [1997] eKLR where the court held that payment of the requisite fees and acceptance of the allotment creates a binding contractual relationship between the allottee and the Government, entitling the allottee to further processing of title. Following the acceptance, the land was surveyed and designated as Nakuru Municipality Block 17/211 under FR No. 245/80. It is not in dispute that Mr. Mwinzi later applied to subdivide the parcel into Plots A and B, an application which PW2 confirmed he approved vide his letter of 12th May 1998. The survey was duly undertaken under FR No. 418/17 and the Registry Index Map (RIM) sealed by the Director of Surveys. The process strictly complied with the survey requirements under the Survey Act (Cap 299) and the Registered Land Act (Cap 300) (repealed), which governed the area and period in question.
According to the defendant, each of the subdivisions was issued with its own letter of allotment. The Commissioner of Lands thereafter prepared leases which were registered in June 2005. This process is consistent with the procedure outlined in sections 27, 28 and 30 of the Registered Land Act (repealed) regarding the effect and registration of leases and the rights they confer. Once the Certificates of Lease were registered, they became conclusive evidence of proprietorship under the Registered Land Act. He refers to Section 27(a) and 28 of the former Registered Land Act provided:
“27 (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 appurtenant thereto.”
“28. The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration… shall not be liable to be defeated except as provided in this Act…”
The 3rd defendant further cites the Court of Appeal dicta in Joseph Arap Ng'ok v Justice Moijo ole Keiuwa & Others [1997] eKLR where the emphasized that a certificate of title issued under the Registered Land Act is prima facie evidence of proprietorship and can only be challenged on grounds of fraud or misrepresentation to which the registered proprietor is proved to be a party. No such evidence was adduced against the 3rd Defendant.
He argues that the Supreme Court in Isaac Gathungu Wanjohi & Another v Attorney General & 6 Others [2012] eKLR reiterated that where the process of allocation and registration is demonstrated to have followed the law, the resultant title is protected and cannot be defeated on the basis of a competing allotment unless fraud or illegality is proved.
The defendant argues that no evidence of fraud and illegality has been demonstrated. The defendant ultimately submits that there is no legal or evidential basis upon which the 3rd Defendant's Certificates of Lease may be cancelled. The titles were procedurally issued, consistently maintained, and have not been impeached in accordance with the strict standards applicable to registered titles. The Plaintiff has entirely failed to prove any lawful claim to the suit parcels. The burden of proof lies with the Plaintiff, pursuant to section 107(1) of the Evidence Act, which provides:
“Whoever desires any court to give judgment as to any legal right… dependent on the existence of facts which he asserts must prove that those facts exist.”
According to the 3rd defendant, the Plaintiff's case rests on an alleged letter of allotment purportedly issued to him in 2001. However, the authenticity and legality of this document were directly and decisively rebutted by the testimony of PW2, the very officer alleged to have confirmed its authenticity. PW2 was categorical that he did not sign, issue, or authorize the letter dated 6th March 2015 (PMFI 21). He explained that at the time, he was stationed in Mombasa, not Nairobi and therefore could not have authored the document.
The 3rd defendant heavily relies on the decision of the Court of Appeal in the case of Funzi Island Development Ltd & 2 Others v County Council of Kwale & 2 Others [2014] eKLR where it was held that where an allotment letter is not verified by the issuing authority and is not supported by evidence of acceptance and payment of requisite fees, the allottee acquires no recognizable or enforceable legal interest in the land. In the present matter, the Plaintiff:
a) Did not prove acceptance of the alleged allotment,
b) Did not prove payment of stand premium or ground rent within the stipulated time,
c) Did not produce evidence of survey instructions or processing of title.
The 3rd defendant argues that on cross-examination the Plaintiff attempted to make payment in 2018, more than 17 years after the purported allotment. By that date, however, the suit parcels had already been surveyed, subdivided, leased, and registered as Nakuru Municipality Block 17/643 and 17/644 in June 2005 in favour of the 3rd Defendant's father. He further argues that a letter of allotment cannot supersede a registered title, as reaffirmed in Arthi Highway Developers Ltd –v- West End Butchery & Others [2015] eKLR.
He argues that the law is settled that a letter of allotment does not confer ownership. In Jaj Super Power Cash and Carry Ltd v Nairobi City Council & Others HCCC No. 1729 of 2001, the Court held:
“A letter of allotment is no more than an invitation to treat. It does not constitute title to land.”
The 3rd defendant contends that the Plaintiff failed to call any officer from the Ministry of Lands to authenticate his letter of allotment in the year 2001 whereas the 3rd Defendant's allotment was the first in time having been issued in the year 1998. The only officer who testified (PW2) denied its authenticity. The burden of proof placed upon him by sections 107–109 of the Evidence Act was therefore not discharged. PW3's testimony and the Registry Index Map (PExh 33) did not support the Plaintiff's claim. On the contrary, when confronted with FR No. 418/171 (PExh 34), he confirmed that Block 17/211 was lawfully subdivided into the two suit parcels, consistent with the 3rd Defendant's documentary trail.
The 3rd Defendant, through his Amended Counterclaim dated 30th October 2025, seeks a declaration of ownership of the suit parcels, Cancellation of the Plaintiff's purported letter of allotment and a permanent injunction restraining interference with the suit parcels. He argues that he has demonstrated that he holds valid, indefeasible Certificates of Lease issued under the Registered Land Act (repealed).
Under section 24(a) and 25(1) of the Land Registration Act, registration vests in the proprietor:
“absolute ownership… together with all rights and privileges appurtenant thereto.”
These provisions entitle the 3rd Defendant to peaceful possession, occupation, and use of the property without disturbance.
As the rightful proprietor, the 3rd Defendant is entitled to a declaration under section 13(7)(a) of the Environment and Land Court Act, which empowers the Court to make declaratory orders regarding land rights.
He is similarly entitled to permanent injunctive relief. The principles governing the grant of a permanent injunction were set out in Kenya Power & Lighting Company Ltd v Sheriff Molana Habib [2018] eKLR, where the Court held that a permanent injunction issues where a party's right has been fully established and violation is either ongoing or imminent.
In conclusion, the 3rd defendant submits that the evidence adduced, the applicable law and established jurisprudence all point unmistakably to the following:
a) The 3rd Defendant's Certificates of Lease over Nakuru Municipality Block 17/643 and 17/644 were lawfully issued and remain valid and indefeasible;
b) The Plaintiff failed to prove any legal or factual basis for his claim and relied on an unauthenticated, disowned, and legally ineffective letter of allotment;
c) The Plaintiff's attempt to claim land already lawfully allocated, subdivided, leased, and registered in the name of the 3rd Defendant is untenable in law;
The 3rd Defendant has proved his Counterclaim to the required standard and his counterclaim ought to be allowed in its entirety.
As regards the costs of these proceedings, the 3rd defendant places reliance on the case of Republic -vs- Rosemary Wairimu Munene, Ex-Parte Applicant –vs- Ihururu Dairy Farmers Co-operative Society Ltd, where the court held as follows:-
"The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event...It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.
It therefore follows that it is only fair and just that the costs of these proceedings be awarded to the 3rd Defendant.
Analysis and Determination
The dispute before me revolves on the parcel number 17/643 and 17/644. Originally either un-surveyed Plot no 2 or un-surveyed plot number b. The parcels of land are neither fenced nor developed. The main issue is the root of the two parcels of land and whether they were created fraudulently and illegally on the plot allocated by the commissioner of lands to the plaintiff. Let us start with the plaintiff’s case. The plaintiff, Samuel Mbugua Ikubu gave evidence that he was issued with a letter of allotment on the 20th of September 2001 vide ref no 30884/xxxi for residential plot NO B in Nakuru Municipality which he produced as evidence. The plaintiff further produced a PDP Ref No R7/94/28. According to the allotment letter, the PDP was attached. The letter of allotment indicated that the area of the land was 0.4 Hectares. The letter of allotment indicated the term of the lease was to run for 99 years from the 1st of June 2001. The same indicated the stand premium as Ksh72, 000 whereas the annual rent was Ksh 14.400. The total amount to be paid was Ksh 87,800 which the plaintiff paid. The acceptance and payment was to be made within 30 days failure of which the offer was to be considered having lapsed. The Letter of Allotment had a rider that if the plot was still un-surveyed the allottee was to ensure that in case of building, the the works were to be contained within the boundaries of the plot. Some of these documents were equally produced by the 1st and 2nd defendants implying that they are documents generated by the Commissioner of Lands. They are signed by the commissioner of lands and produced by the commissioner of lands. However the defendants referred to them as forgeries and illegally obtained. When the plaintiff attempted to have a lease registered by the commissioner of lands, he was informed that it was impossible because the land was registered in the names of the 3rd defendant.
On the issue of the authenticity and legality of the letter of allotment issued on 20th September 2001, the 3rd defendant argues the authenticity and legality of this document were directly and decisively rebutted by the testimony of PW2, the very officer alleged officer to have confirmed its authenticity. PW2 was categorical that he did not sign, issue, or authorize the letter dated 6th March 2015. He explained that at the time, he was stationed in Mombasa, not Nairobi and therefore could not have authored the document. I listened carefully to Mr Osodos evidence and demeanor he initially accepted having authored the letter and accepted that the signature was his. He appeared at pains to explain the import of the letter and ultimately made an about turn until he was declared a hostile witness. He appered scared of something until the court gave an adjournment. His evidence cannot be trusted. I do find that the letter of allotment issued to the plaintiff and the PDP accompanying the same was authentic and legal as the same is executed by the commissioner of lands. The defendants did not call a document examiner to demonstrate that the same was not authentic. It was the defendants’ duty to prove the assertion that the document was a forgery.
Turning back on the letter issued to the 3rd defendant, the same is dated 21st December 1998 in respect of un-Surveyed plots NOs A and B in Nakuru Municipality. Each plot measured 0.207 Hectares and the leases were to run for 99 years from the 1st of January 1999. The stand premium to be paid was Ksh 40,000 each and the total for each was Ksh 54,460. The sub-total for the two plots was Ksh 108,920 which the 3rd defendant did not pay. The 3rd defendant paid Ksh 15,000 for both. The same terms and conditions in the plaintiff’s letter of allotment were in the 3rd defendant’s letter of allotment.
The issue raised by the plaintiff in respect of this letter of allotment is that the same was not genuine. Mr Gordon Ogolla, a senior officer from the Ministry of lands concurred with his colleagues, Mr Wanyama and Mr Osodo that the two allotment letters were created from a subdivision of Block 17/211. What boggles my legal mind is how un-surveyed plot can be created from a parcel of land that has been alienated, lease created and title issued. This is an impossibility in land law. The land officials who appeared before me gave evidence that parcel number Bock 17/ 211 was re-planned to create plot number A and B but produced no evidence of re-planning. The root of the 3rddefendants title is being challenged. The supreme Court of Kenya held in Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment) that
“As we have established above, before allocation of the un-alienated Government Land, there ought to have been processes to be followed prior. Further, we cannot, on the basis of indefeasibility of title, sanction irregularities and illegalities in the allocation of public land. It is not enough for a party to state that they have a lease or title to the property”
In the case of Funzi Development Ltd & others v County Council of Kwale, Mombasa Civil Appeal No 252 of 2005 [2014] eKLR the Court of Appeal, which decision the Supreme Court of Kenya affirmed, stated that:
“...a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot on the basis of indefeasibility of title sanction an illegality or gives its seal of approval to an illegal or irregularly obtained title.”
In this matter, the 1st and 2nd defendants called witnesses who stated that the un-surveyed plots of land were created after the subdivision of parcel number 17/211. The commissioner of lands allocated the two plots to the 3rd defendant. Evidence was tendered to this court to the effect that the parcel of land block17/211 is still in existence in the names of Joseph Thuo Ngeta. I have perused the certificate f official search for Nakuru MN Block17/211 dated 19th April 2012 produced in this court and do find that the same was registered in the name of Joseph Thuo Ngeta on the 20th June 1995 and therefore not available for alienation by the commissioner of lands. It evident that the parcel of land is in existence on a different location. Mr Joseck Thuo Ngeta was issued with a title on the 14th of July 1995. It is trite that the government of Kenya cannot alienate land twice and that any second alienation of land by the government is an illegality. This court finds that an allotment letter cannot be issued in respect of land that has already been alienated. According to section 2 of the Government Lands Act (Repealed), the following is the definition of unalienated land;
“unalienated Government land” means Government land which is not for the time being leased to any other person, or in respect of which the Commissioner has not issued any letter of allotment.
Section 3 of the Physical Planning Act, Cap 286 of the Laws of Kenya defines unalienated land in similar fashion.
The court of appeal in High Court Civil Appeal No. 288 of 2010, Kipsirgoi Investments Limited vs Kenya Anti-Corruption Commission relied on section 2 of the Government Lands Act and Section 3 of the Physical Planning Act when it found that the suit property was planned as an open space and held that the subsequent lease under section 3 of the GLA was irregular as the land was already alienated.
Under section 3 of the Government Lands Act (Repealed), it states;
3. The President, in addition to, but without limiting, any other right, power or authority vested in him under this Act, may—
(a) subject to any other written law, make grants or dispositions of any estates, interests or rights in or over un-alienated government land;
The act further states;
The powers of the President under this paragraph are delegated to the Commissioner in the following cases only (Cap. 155 (1948), Sub. Leg.)—
(a) for religious, charitable, educational or sports purposes on terms and conditions in accordance with the general policy of the Government and the terms prescribed for such purpose by the President;
In James Joram Nyaga & Another v the Hon. Attorney General & Another [2007] eKLR, the court, in reference to sections 3 and 7 of the Government Lands Act stated;
The above section clearly limits the power of the Commissioner to executing leases or, conveyances on behalf of the President and the proviso to the section specifically limits the power to alienate unalienated land to the President. We find and hold that the Commissioner of Lands had no authority to alienate the disputed plot to the Applicants as he purported to do vide the letter of 18th December, 1997. That was the preserve of the President. It follows that the Commissioner of Lands could not have made any grant under the Government Lands Act Cap 280 Laws of Kenya nor could he pass any registerable title under the Registration of Titles Act Cap 281 Laws of Kenya.
It is very clear that the land in dispute on the ground does not originate from 17/211. It is still un-surveyed and un-alienated government land. The land allocated to the 3rd defendant originated from 17/211 which had already been alienated for private use therefore it could not be deemed un-alienated. The 2nd defendant therefore had no authority in law to make the alienation and therefore no interest could be conferred upon the 3rd defendant. The 3rd defendant did not procedurally obtain title as the block17/211 was alienated private land. Section 26 states as follows; -
“(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.
(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original”.
This court finds that the 3rd defendant together with the 2nd defendant were engaged in a high scheme of corruption to deprive the plaintiff of his lawfully allotted plot no B and went to the extent of purporting to create two un-surveyed plots A and B from an existent parcel of land Block 17/211 and super-imposed it on land that had been allocated to the plaintiff and thereafter blocked the plaintiff from registering a lease in respect of his allotment. The upshot of the above is that the plaintiff has proved his case on a balance of probabilities that the 3rd defendant’s title was illegally obtained. This court makes a declaration that:-
a. A declaration that the Plaintiff is the lawful allottee of Residential Plot B Nakuru Municipality now known as Nakuru Municipality Block 17/643 and 644.
b. An order for cancellation of title to Residential plot B Nakuru Municipality now known as Nakuru Municipality Block 17/643 and 644 and an Order for rectification of the Land Register.
c. A permanent injunction restraining the 2nd Defendant by himself, his servants and or agents from claiming ownership trespassing and or otherwise interfering with the Plaintiffs Land i.e. Residential Plot B Nakuru Municipality now known as Nakuru Municipality Block 17/643 and 644.
d. Costs and interests of the suit.
On the counter-claim, I do find that the defendants have not proved that the allotment letter issued to the plaintiff was fraudulently issued. Whereas the plaintiff has proved that the 3rd defendant obtained his allotment through a fraudulent and corrupt scheme. The counter claim is dismissed with costs.