1. The dispute in this case concerns the ownership of all that parcel of land known as Title No. Taita Taveta/Lake Jipe/492 measuring approximately 6.8 hectares and situated within the Lake Jipe Settlement Scheme in Taita Taveta County (hereinafter referred to as “the suit property”). The Plaintiff claims the suit property as the allottee thereof under the Lake Jipe Settlement Scheme, while the 1st Defendant claims the same as the registered proprietor, having allegedly purchased it from the 3rd Defendant.
2. The Plaintiff commenced this suit vide a Plaint dated 25th May 2025 which was subsequently amended in the Amended Plaint dated 30th April 2026. In the Amended Plaint, the Plaintiff sought judgment against the Defendants jointly and severally for the following orders: -
a. A declaration that the property known as Land Title No. Taita Taveta/Lake Jipe/492 situated in Taita Taveta County in the Republic of Kenya is lawfully registered in the name of the Plaintiff, Solomon Kipsang Tallam;
b. A permanent injunction restraining the Defendants jointly and severally, their agents, employees, servants or anyone acting on their behalf from dealing, alienating, disposing, damaging, conducting constructions, trespassing, entering, remaining upon, sub-dividing, advertising for sale, selling, transferring, charging or in any manner whatsoever interfering with the Plaintiff's quiet possession, use and enjoyment of the suit property;
c. An order of eviction and/or ejectment of the Defendants, their agents, servants, employees or any other person claiming under them from the suit property and demolition of any erections constructed thereon by the Defendants or their agents;
d. General damages for trespass;
e. Mesne profits;
f. Costs of the suit and interest thereon.
3. The 1st Defendant opposed the suit vide his Statement of Defence dated 30th April 2025 while the 4th and 5th Defendants opposed the suit vide their joint Statement of Defence dated 9th April 2025. The 2nd and 3rd Defendants did not file their respective defences nor submissions and neither did they participate in these proceedings despite being duly served.
The Plaintiff's case
4. The Plaintiff's case as pleaded in the Amended Plaint is that he acquired the suit property from the Government of Kenya through the Settlement Fund Trustees in consultation with the District Land Adjudication and Settlement Committee, Taita Taveta District, vide a letter of allotment dated 2nd January 1997. The acquisition was conditional upon acceptance of the offer and payment of a 10% deposit, conditions with which the Plaintiff avers he fully complied.
5. The Plaintiff pleaded further that upon fulfilment of the said conditions, the Land Settlement Fund Board of Trustees and the Plaintiff executed a Deed of Transfer conveying the suit property to the Plaintiff on or about 2nd October 2024, together with a Discharge of Charge of even date. However, when the Plaintiff deputized his son, Symon Sang Tallam, to collect the title deed from the Land Registrar, Wundanyi on or about 18th October 2024, he discovered that the suit property had been trespassed upon by the Defendants and that there had been fraudulent attempts to deprive him of his proprietary rights over the same. He pleaded, in particular, that the 3rd Defendant misrepresented facts in acquiring the suit property by presenting National Identification Card Number 4303367 as being his own when the same belonged to the 2nd Defendant, the 3rd Defendant's actual identification card number being 7139376.
6. At the hearing of the Plaintiff's case on 27th October 2025, the Plaintiff called two witnesses. The Plaintiff, Solomon Kipsang Tallam , testified as PW1. He adopted his witness statement dated 16th September 2025 and produced the documents in his bundle dated 12th June 2025 as PExhibit 1 to 9. It was his testimony that he was allotted the suit property in 1997 while working at State House, Nairobi as a Communication Officer, that his letter of allotment is dated 2nd January 1997, and that he paid the requisite 10% deposit vide a receipt dated 30th June 1997.
7. On cross-examination by Mr. Oddiaga, learned counsel then appearing for the 1st Defendant, PW1 stated that although the letter of allotment required payment within 90 days, he paid after the lapse of the said period and there was no letter seeking extension of time. He confirmed that he does not hold a title to the land, that he has undertaken some farming thereon, and that one Martin takes care of the land on his behalf. He stated that his name was missing from the list of allottees and that the 3rd Defendant fraudulently inserted his own name in the said list. He testified that he reported the matter to the Directorate of Criminal Investigations through his Advocates. On cross-examination by Ms. Saru, learned counsel for the 4th and 5th Defendants, he confirmed the receipts of payment at pages 15 to 19 of his bundle, with page 19 reflecting Kshs. 65,860/=. On re-examination, he reiterated that he paid the 10% deposit, that he remains in occupation of the land through his caretaker, and that he took possession in March/April 1997.
8. Symon Sang Tallam testified as PW2 and adopted his witness statement dated 16th September 2025. On cross-examination, he stated that he began following up on the land on behalf of his father in 2022 owing to the delay in the release of the title, and that on 2nd October 2024 the Ministry of Lands informed him that the land had been allocated to someone else. A search he conducted revealed that the suit property had been registered in the name of the 1st Defendant in 2022. He testified that they paid for the discharge at Ardhi House and that the 3rd Defendant's name was fraudulently entered in the register. On re-examination, he stated that there are no records to confirm how the 1st Defendant acquired the land.
The 1 st Defendant's case
9. In his Statement of Defence dated 30th April 2025, the 1st Defendant denied the Plaintiff's claim in its entirety and averred that the Plaintiff has never owned the suit property, the 1st Defendant being the legitimate legal and registered owner thereof, having been issued with a title deed. He averred that he has never engaged in any fraudulent attempts in his acquisition of the suit property, that the Plaintiff has no rights over the same, and that he has not trespassed onto the Plaintiff's property. He also raised a preliminary objection on jurisdiction on the ground that the value of the subject matter is approximately Kshs. 3,000,000/=, which objection was not prosecuted.
10. The 1st Defendant, Joel Momanyi Migiro , testified as DW1 on 11th and 12th June 2026. He adopted his witness statement dated 30th April 2025, relied on his bundle of documents of even date, and produced a copy of his title deed as DExhibit 1 and a certificate of official search as DExhibit 2. It was his testimony that he could not have been registered as proprietor if the title had a problem, that the 3rd Defendant never disclosed any issues with the land, and that the search demonstrated that the land is registered in his name. He testified that the transfer between the Plaintiff and the Settlement Fund Trustees is dated 7th November 2024 and the discharge dated 2nd October 2024, at which time he already held title to the land. It was his further testimony that the Plaintiff did not pay the amounts required under the letter of allotment within the stipulated timelines and only completed payment in 2024.
11. On cross-examination by Mr. Chumo Kibet, learned counsel holding brief for Ms. Chirchir for the Plaintiff, DW1 stated that he bought the land in 2020 for Kshs. 90,000/=. He conceded that he had a sale agreement but had not produced it in court; that he had not tendered any evidence of payment of the purchase price; that he had not produced any transfer document, receipt for payment of registration fees or evidence of payment of stamp duty; that he never obtained any Land Control Board consent or spousal consent before the purchase; and that although he conducted a search before the purchase, he had not produced a copy of the said initial search. He acknowledged that the 3rd Defendant's title appeared to indicate 8th August 2013 which he regarded as an error, though not a major issue. He stated that the 3rd Defendant only showed him a copy of the title deed, a copy of his identification card and his KRA PIN, none of which he had in court. On examination by the Court, he stated that the 3rd Defendant told him that he had been allotted the land but did not disclose when, and that he does not know the 3rd Defendant's current whereabouts.
The 4th and 5th Defendants' case
12. In their joint Statement of Defence dated 9th April 2025, the 4th and 5th Defendants denied the Plaintiff's claim and put him to strict proof thereof. They averred, without prejudice, that should the Plaintiff prove the allegations against the 1st, 2nd and 3rd Defendants, the 4th and 5th Defendants merely executed their mandate based on the documentation tendered and do not share any liability whatsoever with the 1st, 2nd and 3rd Defendants.
13. The 4th and 5th Defendants called one witness, Siema Mwanguni , the Land Registrar, Wundanyi, who testified as DW2 on 12th June 2026 and relied on the bundle of documents dated 9th April 2025, which comprised, inter alia, a copy of the register (green card) for the suit property, demand notices on loan arrears issued to the Plaintiff, a copy of a cancelled title issued to the 3rd Defendant, a payment receipt and a letter of acceptance of offer. It was her testimony that the green card was opened on 8th August 2013 and title issued on the same date in the name of the 3rd Defendant, and that the property was subsequently transferred to the 1st Defendant on 9th September 2022 and a title issued to him on the same date.
14. On cross-examination, DW2 confirmed that before the registration of the 3rd Defendant, the suit property had been allotted to the Plaintiff, who had paid a deposit of 10% to the Settlement Fund Trustees and was to clear the balance. She testified that a title had already been issued to the 3rd Defendant and that is why the Plaintiff could not be registered. She explained that all titles within the Lake Jipe Settlement Scheme were issued on 8th August 2012 and that the indication of 2013 was a typographical error. She confirmed that there was no evidence of payment of stamp duty from the registry in respect of the transfer to the 1st Defendant, and that the only document in the parcel file is the cancelled title deed issued to the 3rd Defendant. She stated that she had seen the Plaintiff's letter of acceptance, though she did not have a receipt in the file confirming that the Plaintiff paid the loan in full. She confirmed that the registry has the transfer and discharge of charge, which were presented by the Plaintiff, and on examination by the Court, that the documents were received from the Land Adjudication Officer.
The Plaintiff's Submissions
15. The Plaintiff filed his written submissions dated 17th June 2026 . The Plaintiff identified three issues for determination: whether the 1st Defendant is a bona fide purchaser of the suit property; whether the Plaintiff was issued with a lawful letter of allotment and thereafter complied with the terms thereof; and what orders should issue as to costs.
16. On the first issue, counsel for the Plaintiff anchored the applicable burden of proof on Sections 107, 108 and 109 of the Evidence Act and the decision in Daniel Toroitich Arap Moi v Mwangi Stephen Mureithi (2014) eKLR . Counsel submitted that the 3rd Defendant did not demonstrate how he acquired the suit property and that the Land Registrar testified that there is no single document in support of any allotment issued to the 3rd Defendant, the register only bearing a title issued to him which is erroneous on the face of it. Relying on the definition of a bona fide purchaser in Black's Law Dictionary, 9th Edition, and the decisions in Samuel Kamere v Lands Registrar, Kajiado [2015] eKLR and Munyu Maina v Hiram Gathiha Maina, Civil Appeal No. 239 of 2009 [2013] eKLR , counsel submitted that the 1st Defendant failed to produce a single completion or registration document, failed to prove payment of any valuable consideration, and failed to conduct proper due diligence, and consequently could not qualify as a bona fide purchaser for value. Counsel urged the Court to find that the 1st Defendant holds a defective, illegal and invalid title procured through fraud, to cancel the title issued to the 1st Defendant, and to rectify the register to restore the Plaintiff as the registered proprietor.
17. On the second issue, counsel relied on the Supreme Court decision in Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) on the perfection of letters of allotment, and submitted that the Plaintiff complied with all the conditions at the foot of his letter of allotment dated 2nd January 1997 by accepting the offer vide a letter dated 30th June 1997, paying the 10% deposit of Kshs. 4,450/= vide receipt No. BJ363259, servicing the land development loan of Kshs. 41,999.97 advanced by the Land Settlement Fund and clearing the same in full, whereupon he was issued with a Deed of Transfer and Discharge of Charge both dated 2nd October 2024. Counsel further submitted that any failure to meet the loan repayment timelines would have warranted recovery of the loan under Section 174(3) of the Agriculture Act, Cap 318 (repealed) and not revocation of the allotment, and that the allotment was never revoked. On costs, counsel relied on Section 27 of the Civil Procedure Act and submitted that costs follow the event.
The 1st Defendant's Submissions
18. The 1st Defendant filed his written submissions dated 14th July 2026. Counsel identified three issues for determination: who is the lawful owner of Title No. Taita Taveta/Lake Jipe/492; whether the 1st Defendant is a trespasser; and whether the Plaintiff is entitled to the prayers sought. On the first issue, counsel anchored the 1st Defendant's case on Sections 24, 25 and 26 of the Land Registration Act, 2012 and submitted that the suit property was originally registered in favour of the 3rd Defendant, who later sold it to the 1st Defendant, and that the title deed issued to the 1st Defendant on 9th September 2022 constitutes prima facie evidence that he is the absolute and indefeasible owner thereof, such title being impeachable only on the grounds set out in Section 26(1) of the Act. Relying on Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR , Moses Parantai & Peris Wanjiku Mukuru (suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (Deceased)) v Stephen Njoroge Macharia [2020] eKLR and R.G. Patel v Lalji Makanji [1957] EA 314 , counsel submitted that fraud must be specifically pleaded and strictly proved to a standard above the ordinary balance of probabilities, and that it is not permissible to leave fraud to be inferred from the facts. Citing Tolksdorf v Mwangi & 3 Others [2025] KEELC 848 (KLR) and Daniel Otieno Migore v South Nyanza Sugar Company Limited [2018] eKLR on the principle that parties are bound by their pleadings, and North End Trading Company Limited v City Council of Nairobi [2019] eKLR on the want of probative value of unsubstantiated pleadings, counsel submitted that the Plaintiff neither pleaded nor proved fraud on the part of either the 1st or the 3rd Defendant in the acquisition of the suit property.
19. Counsel further submitted that the Plaintiff failed to comply with the mandatory conditions imposed by the Government, pointing to the demand notices issued by the Land Adjudication and Settlement Office, the latest being dated 18th August 2008, and to the Plaintiff's own admission on cross-examination that he only cleared the loan in the year 2024, some 16 years after the last demand notice, as evidenced by the receipt of full payment dated 31st July 2024 and the Discharge of Charge executed on 2nd October 2024. Counsel submitted that the demand notices expressly warned of legal action, including repossession of the land under Section 174(3) of the Agriculture Act, Cap 318 (repealed), and that the first registration of the suit property in favour of the 3rd Defendant is prima facie evidence that the Settlement Fund Trustees exercised their powers thereunder to terminate the Plaintiff's interest for non-payment. Consequently, it was submitted, the 3rd Defendant acquired genuine legal rights over the suit property and passed a good title to the 1st Defendant upon its purchase, and the 1st Defendant therefore holds a valid and indefeasible title. On the second issue, counsel relied on Section 3(1) of the Trespass Act, Cap 294 and submitted that the 1st Defendant, having proved to be the true and legitimate owner of the suit property, cannot be a trespasser thereon and is entitled, pursuant to Article 40 of the Constitution, to exercise his proprietary rights in the manner he deems fit. Counsel accordingly urged the Court to dismiss the suit in its entirety with costs to the 1st Defendant.
20. The 4th and 5th Defendants did not file any written submissions despite being granted an opportunity to do so. Similarly, the 2nd and 3rd Defendants, having neither entered appearance nor filed any defences, did not file any submissions.
Analysis and Determination
21. I have considered the pleadings, the evidence tendered by the parties and the submissions filed. In my view, the following issues arise for determination in this suit: -
i. Whether the Plaintiff acquired a legitimate proprietary interest in the suit property;
ii. Whether the registration of the 3rd Defendant and subsequently the 1st Defendant as proprietors of the suit property was lawful, and whether the 1st Defendant is an innocent purchaser for value without notice;
iii. Whether the Plaintiff is entitled to the reliefs sought; and
iv. What orders should issue as to costs.
Issue No. (i): Whether the Plaintiff acquired a legitimate proprietary interest in the suit property
22. The root of the Plaintiff's claim is the letter of allotment dated 2nd January 1997 issued to him by the Government through the Settlement Fund Trustees in consultation with the District Land Adjudication and Settlement Committee, Taita Taveta District. It is now well settled that a letter of allotment does not, by and of itself, confer title upon the allottee; it constitutes an offer which must be perfected through fulfilment of the conditions stipulated therein and ultimately through registration. The Supreme Court of Kenya in Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) stated as follows: -
“Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling the conditions therein. These conditions include but are not limited to, the payment of a stand premium and ground rent within prescribed timelines. But even after the perfection of an allotment letter through the fulfillment of the conditions stipulated therein, an allottee cannot pass valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter.”
23. The question, therefore, is whether the Plaintiff perfected his allotment. The evidence on record establishes the following uncontroverted sequence: the Plaintiff was issued with the letter of allotment dated 2nd January 1997 in respect of Plot No. 492 measuring 6.8 hectares within the Lake Jipe Settlement Scheme; he accepted the offer vide a letter of acceptance dated 30th June 1997; he paid the 10% deposit of Kshs. 4,450/= vide receipt No. BJ363259; the balance of the purchase price was financed through a land development loan of Kshs. 41,999.97 advanced by the Land Settlement Fund and charged against the suit property; the Settlement Fund Trustees issued demand notices to the Plaintiff on 7th November 2003 and 18th August 2008 in respect of the outstanding loan; the Plaintiff cleared the loan in full; and upon such clearance, the Land Settlement Fund Board of Trustees executed a Deed of Transfer and a Discharge of Charge in favour of the Plaintiff, both dated 2nd October 2024.
24. Significantly, the foregoing account was corroborated in material respects by DW2, the Land Registrar, who was the 4th and 5th Defendants' own witness. DW2 confirmed on cross-examination that prior to the registration of the 3rd Defendant, the suit property had been allotted to the Plaintiff; that the Plaintiff had paid the 10% deposit to the Settlement Fund Trustees; that she had seen the Plaintiff's letter of acceptance; and that the registry holds the transfer and discharge of charge presented by the Plaintiff. It was also her evidence that the reason the Plaintiff could not be registered was not any default on his part but the fact that a title had already been issued to the 3rd Defendant.
25. The 1st Defendant sought to impugn the Plaintiff's allotment on the ground that the Plaintiff did not comply with the payment timelines stipulated in the letter of allotment, having paid the deposit after the lapse of the 90-day period and having cleared the loan only in 2024. Indeed, PW1 candidly admitted on cross-examination that his payment of 30th June 1997 fell outside the 90-day window. However, that admission does not, in my view, avail the 1st Defendant. The Settlement Fund Trustees, being the offeror, accepted the Plaintiff's late payment without demur, proceeded to advance him a land development loan secured against the suit property, issued demand notices to him in 2003 and 2008 calling for repayment of the said loan, accepted his repayments culminating in full settlement, and ultimately executed a Deed of Transfer and Discharge of Charge in his favour. This course of conduct is wholly inconsistent with any suggestion that the allotment had lapsed. The offeror, by its conduct, waived strict compliance with the payment timelines and affirmed the allotment as subsisting. I also note the Plaintiff's submission, which I find merited, that the remedy available for default in the repayment of a settlement loan was recovery of the loan under Section 174(3) of the Agriculture Act, Cap 318 (repealed) and not forfeiture of the allotment. The 1st Defendant, on his part, submitted that the first registration of the suit property in the name of the 3rd Defendant is itself prima facie evidence that the Settlement Fund Trustees exercised their power under Section 174(3) of the Agriculture Act to terminate the Plaintiff's interest for non-payment. That submission is, with respect, untenable. Section 174(3) provides that upon termination of the defaulter's interest, the interest shall vest in the Settlement Fund Trustees, who may thereupon take possession of the land. It makes no provision for the vesting of the terminated interest in a third party. Had the Settlement Fund Trustees exercised that power, one would have expected to find, at the very least, some record of the termination and of a fresh allocation of the suit property to the 3rd Defendant. Instead, DW2, the Land Registrar, was categorical that there is not a single document in the parcel file in support of the 3rd Defendant's registration, and it was her further evidence that the reason the Plaintiff could not be registered was not the termination of his interest but the fact that a title had already been issued to the 3rd Defendant. Moreover, the conduct of the Settlement Fund Trustees after the demand notices, in accepting the Plaintiff's repayments culminating in full settlement and ultimately executing the Deed of Transfer and Discharge of Charge in his favour, is wholly irreconcilable with any suggestion that they had terminated his interest. The exercise of the power of termination under Section 174(3) cannot be presumed or inferred from the mere fact of a stranger's registration; it must be demonstrated by evidence, and none was tendered. There is no evidence whatsoever that the allotment to the Plaintiff was ever revoked, recalled or cancelled.
26. The position I have taken finds firm support in the recent decision of the Court of Appeal in Alexander T. Kaminchia & Another v Geoffrey Mungai Thiong’o & 2 Others, Nairobi Civil Appeal No. E754 of 2024 [2026] KECA 1296 (KLR) where a similar contention was advanced, on the strength of the Supreme Court decision in Torino Enterprises Limited v Attorney General (supra) , that a payment made outside the period stipulated in a letter of allotment extinguished the allottee’s interest by operation of law. The Court of Appeal rejected that contention and expressed itself as follows: -
“It is true that generally one needs to comply with the terms of allotment within the period specified. However, there is no law that specifically provides that if an allotment letter is not paid for within the specified period, then that allotment letter is null and void ab initio, and can never be acted upon, or that the Government is completely barred from accepting a late payment. We are not persuaded that in all cases where payment is made late, but unconditionally accepted by the Government before the Government has committed the same land to another person, then no title exists. Each case needs to be looked at depending on its special circumstances… However, if there is no second allottee, the Government has the prerogative of accepting a late payment, and if it does so, a title that is consequently issued would be a good title as the late offer will have been accepted. This would be akin to a waiver on the part of the Government.”
27. In arriving at that holding, the Court of Appeal drew parallels with its earlier decision in Waterfront Holdings Limited v Kandie & 2 Others (Civil Appeal 88 of 2019) [2023] KECA 1223 (KLR) , in which the party claiming through the first allottee failed to discharge the burden of proving that the said allottee had met the conditions in the letter of allotment by the time the process of re-allotment to a subsequent allottee commenced, with the consequence that the re-allotment and the issuance of title to the subsequent allottee could not be faulted. The converse obtains in the instant case. It is the Plaintiff, the first and only allottee, who demonstrated fulfilment of the conditions of his allotment, which fulfilment the Settlement Fund Trustees affirmed by their own conduct; and there was no evidence whatsoever of any allotment or re-allocation of the suit property to the 3rd Defendant or to any other person who had satisfied the conditions of allotment. The suit property was therefore never committed to any second allottee, and nothing stood in the way of the perfection of the Plaintiff’s interest through the acceptance of his payments and the execution of the Deed of Transfer and Discharge of Charge in his favour.
28. In the premises, I find and hold that the Plaintiff perfected his allotment through the fulfilment of the conditions stipulated in the letter of allotment dated 2nd January 1997, and that upon the execution of the Deed of Transfer and Discharge of Charge dated 2nd October 2024, the Plaintiff acquired a legitimate proprietary interest in the suit property and became entitled to be registered as proprietor thereof.
Issue No. (ii): Whether the registration of the 3rd Defendant and subsequently the 1st Defendant as proprietors of the suit property was lawful, and whether the 1st Defendant is an innocent purchaser for value without notice
29. The 1st Defendant's case rests on the certificate of title issued to him on 9th September 2022 and the protection accorded to a registered proprietor under Sections 24, 25 and 26 of the Land Registration Act, 2012. Section 26(1) of the said Act provides that the certificate of title issued by the Registrar shall be taken by all courts as prima facie evidence that the person named as proprietor is the absolute and indefeasible owner, and that the title 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.
30. It is equally well settled that where the root of a registered proprietor's title is under challenge, it is not enough for the proprietor to dangle the instrument of title as proof of ownership. The Court of Appeal in Munyu Maina v Hiram Gathiha Maina, Civil Appeal No. 239 of 2009 [2013] eKLR held as follows: -
“Where the registered proprietor's root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.”
31. The starting point is the root of the 1st Defendant's title, which is the registration of the 3rd Defendant as the first proprietor of the suit property. The evidence of DW2, the Land Registrar, on this aspect was telling. She testified that the only document in the parcel file is the cancelled title deed issued to the 3rd Defendant, and that there is no document whatsoever in support of any allotment to the 3rd Defendant. This stands in stark contrast to the position of the Plaintiff, whose letter of allotment, letter of acceptance, payme
[...truncated]
2. The Plaintiff commenced this suit vide a Plaint dated 25th May 2025 which was subsequently amended in the Amended Plaint dated 30th April 2026. In the Amended Plaint, the Plaintiff sought judgment against the Defendants jointly and severally for the following orders: -
a. A declaration that the property known as Land Title No. Taita Taveta/Lake Jipe/492 situated in Taita Taveta County in the Republic of Kenya is lawfully registered in the name of the Plaintiff, Solomon Kipsang Tallam;
b. A permanent injunction restraining the Defendants jointly and severally, their agents, employees, servants or anyone acting on their behalf from dealing, alienating, disposing, damaging, conducting constructions, trespassing, entering, remaining upon, sub-dividing, advertising for sale, selling, transferring, charging or in any manner whatsoever interfering with the Plaintiff's quiet possession, use and enjoyment of the suit property;
c. An order of eviction and/or ejectment of the Defendants, their agents, servants, employees or any other person claiming under them from the suit property and demolition of any erections constructed thereon by the Defendants or their agents;
d. General damages for trespass;
e. Mesne profits;
f. Costs of the suit and interest thereon.
3. The 1st Defendant opposed the suit vide his Statement of Defence dated 30th April 2025 while the 4th and 5th Defendants opposed the suit vide their joint Statement of Defence dated 9th April 2025. The 2nd and 3rd Defendants did not file their respective defences nor submissions and neither did they participate in these proceedings despite being duly served.
The Plaintiff's case
4. The Plaintiff's case as pleaded in the Amended Plaint is that he acquired the suit property from the Government of Kenya through the Settlement Fund Trustees in consultation with the District Land Adjudication and Settlement Committee, Taita Taveta District, vide a letter of allotment dated 2nd January 1997. The acquisition was conditional upon acceptance of the offer and payment of a 10% deposit, conditions with which the Plaintiff avers he fully complied.
5. The Plaintiff pleaded further that upon fulfilment of the said conditions, the Land Settlement Fund Board of Trustees and the Plaintiff executed a Deed of Transfer conveying the suit property to the Plaintiff on or about 2nd October 2024, together with a Discharge of Charge of even date. However, when the Plaintiff deputized his son, Symon Sang Tallam, to collect the title deed from the Land Registrar, Wundanyi on or about 18th October 2024, he discovered that the suit property had been trespassed upon by the Defendants and that there had been fraudulent attempts to deprive him of his proprietary rights over the same. He pleaded, in particular, that the 3rd Defendant misrepresented facts in acquiring the suit property by presenting National Identification Card Number 4303367 as being his own when the same belonged to the 2nd Defendant, the 3rd Defendant's actual identification card number being 7139376.
6. At the hearing of the Plaintiff's case on 27th October 2025, the Plaintiff called two witnesses. The Plaintiff, Solomon Kipsang Tallam , testified as PW1. He adopted his witness statement dated 16th September 2025 and produced the documents in his bundle dated 12th June 2025 as PExhibit 1 to 9. It was his testimony that he was allotted the suit property in 1997 while working at State House, Nairobi as a Communication Officer, that his letter of allotment is dated 2nd January 1997, and that he paid the requisite 10% deposit vide a receipt dated 30th June 1997.
7. On cross-examination by Mr. Oddiaga, learned counsel then appearing for the 1st Defendant, PW1 stated that although the letter of allotment required payment within 90 days, he paid after the lapse of the said period and there was no letter seeking extension of time. He confirmed that he does not hold a title to the land, that he has undertaken some farming thereon, and that one Martin takes care of the land on his behalf. He stated that his name was missing from the list of allottees and that the 3rd Defendant fraudulently inserted his own name in the said list. He testified that he reported the matter to the Directorate of Criminal Investigations through his Advocates. On cross-examination by Ms. Saru, learned counsel for the 4th and 5th Defendants, he confirmed the receipts of payment at pages 15 to 19 of his bundle, with page 19 reflecting Kshs. 65,860/=. On re-examination, he reiterated that he paid the 10% deposit, that he remains in occupation of the land through his caretaker, and that he took possession in March/April 1997.
8. Symon Sang Tallam testified as PW2 and adopted his witness statement dated 16th September 2025. On cross-examination, he stated that he began following up on the land on behalf of his father in 2022 owing to the delay in the release of the title, and that on 2nd October 2024 the Ministry of Lands informed him that the land had been allocated to someone else. A search he conducted revealed that the suit property had been registered in the name of the 1st Defendant in 2022. He testified that they paid for the discharge at Ardhi House and that the 3rd Defendant's name was fraudulently entered in the register. On re-examination, he stated that there are no records to confirm how the 1st Defendant acquired the land.
The 1 st Defendant's case
9. In his Statement of Defence dated 30th April 2025, the 1st Defendant denied the Plaintiff's claim in its entirety and averred that the Plaintiff has never owned the suit property, the 1st Defendant being the legitimate legal and registered owner thereof, having been issued with a title deed. He averred that he has never engaged in any fraudulent attempts in his acquisition of the suit property, that the Plaintiff has no rights over the same, and that he has not trespassed onto the Plaintiff's property. He also raised a preliminary objection on jurisdiction on the ground that the value of the subject matter is approximately Kshs. 3,000,000/=, which objection was not prosecuted.
10. The 1st Defendant, Joel Momanyi Migiro , testified as DW1 on 11th and 12th June 2026. He adopted his witness statement dated 30th April 2025, relied on his bundle of documents of even date, and produced a copy of his title deed as DExhibit 1 and a certificate of official search as DExhibit 2. It was his testimony that he could not have been registered as proprietor if the title had a problem, that the 3rd Defendant never disclosed any issues with the land, and that the search demonstrated that the land is registered in his name. He testified that the transfer between the Plaintiff and the Settlement Fund Trustees is dated 7th November 2024 and the discharge dated 2nd October 2024, at which time he already held title to the land. It was his further testimony that the Plaintiff did not pay the amounts required under the letter of allotment within the stipulated timelines and only completed payment in 2024.
11. On cross-examination by Mr. Chumo Kibet, learned counsel holding brief for Ms. Chirchir for the Plaintiff, DW1 stated that he bought the land in 2020 for Kshs. 90,000/=. He conceded that he had a sale agreement but had not produced it in court; that he had not tendered any evidence of payment of the purchase price; that he had not produced any transfer document, receipt for payment of registration fees or evidence of payment of stamp duty; that he never obtained any Land Control Board consent or spousal consent before the purchase; and that although he conducted a search before the purchase, he had not produced a copy of the said initial search. He acknowledged that the 3rd Defendant's title appeared to indicate 8th August 2013 which he regarded as an error, though not a major issue. He stated that the 3rd Defendant only showed him a copy of the title deed, a copy of his identification card and his KRA PIN, none of which he had in court. On examination by the Court, he stated that the 3rd Defendant told him that he had been allotted the land but did not disclose when, and that he does not know the 3rd Defendant's current whereabouts.
The 4th and 5th Defendants' case
12. In their joint Statement of Defence dated 9th April 2025, the 4th and 5th Defendants denied the Plaintiff's claim and put him to strict proof thereof. They averred, without prejudice, that should the Plaintiff prove the allegations against the 1st, 2nd and 3rd Defendants, the 4th and 5th Defendants merely executed their mandate based on the documentation tendered and do not share any liability whatsoever with the 1st, 2nd and 3rd Defendants.
13. The 4th and 5th Defendants called one witness, Siema Mwanguni , the Land Registrar, Wundanyi, who testified as DW2 on 12th June 2026 and relied on the bundle of documents dated 9th April 2025, which comprised, inter alia, a copy of the register (green card) for the suit property, demand notices on loan arrears issued to the Plaintiff, a copy of a cancelled title issued to the 3rd Defendant, a payment receipt and a letter of acceptance of offer. It was her testimony that the green card was opened on 8th August 2013 and title issued on the same date in the name of the 3rd Defendant, and that the property was subsequently transferred to the 1st Defendant on 9th September 2022 and a title issued to him on the same date.
14. On cross-examination, DW2 confirmed that before the registration of the 3rd Defendant, the suit property had been allotted to the Plaintiff, who had paid a deposit of 10% to the Settlement Fund Trustees and was to clear the balance. She testified that a title had already been issued to the 3rd Defendant and that is why the Plaintiff could not be registered. She explained that all titles within the Lake Jipe Settlement Scheme were issued on 8th August 2012 and that the indication of 2013 was a typographical error. She confirmed that there was no evidence of payment of stamp duty from the registry in respect of the transfer to the 1st Defendant, and that the only document in the parcel file is the cancelled title deed issued to the 3rd Defendant. She stated that she had seen the Plaintiff's letter of acceptance, though she did not have a receipt in the file confirming that the Plaintiff paid the loan in full. She confirmed that the registry has the transfer and discharge of charge, which were presented by the Plaintiff, and on examination by the Court, that the documents were received from the Land Adjudication Officer.
The Plaintiff's Submissions
15. The Plaintiff filed his written submissions dated 17th June 2026 . The Plaintiff identified three issues for determination: whether the 1st Defendant is a bona fide purchaser of the suit property; whether the Plaintiff was issued with a lawful letter of allotment and thereafter complied with the terms thereof; and what orders should issue as to costs.
16. On the first issue, counsel for the Plaintiff anchored the applicable burden of proof on Sections 107, 108 and 109 of the Evidence Act and the decision in Daniel Toroitich Arap Moi v Mwangi Stephen Mureithi (2014) eKLR . Counsel submitted that the 3rd Defendant did not demonstrate how he acquired the suit property and that the Land Registrar testified that there is no single document in support of any allotment issued to the 3rd Defendant, the register only bearing a title issued to him which is erroneous on the face of it. Relying on the definition of a bona fide purchaser in Black's Law Dictionary, 9th Edition, and the decisions in Samuel Kamere v Lands Registrar, Kajiado [2015] eKLR and Munyu Maina v Hiram Gathiha Maina, Civil Appeal No. 239 of 2009 [2013] eKLR , counsel submitted that the 1st Defendant failed to produce a single completion or registration document, failed to prove payment of any valuable consideration, and failed to conduct proper due diligence, and consequently could not qualify as a bona fide purchaser for value. Counsel urged the Court to find that the 1st Defendant holds a defective, illegal and invalid title procured through fraud, to cancel the title issued to the 1st Defendant, and to rectify the register to restore the Plaintiff as the registered proprietor.
17. On the second issue, counsel relied on the Supreme Court decision in Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) on the perfection of letters of allotment, and submitted that the Plaintiff complied with all the conditions at the foot of his letter of allotment dated 2nd January 1997 by accepting the offer vide a letter dated 30th June 1997, paying the 10% deposit of Kshs. 4,450/= vide receipt No. BJ363259, servicing the land development loan of Kshs. 41,999.97 advanced by the Land Settlement Fund and clearing the same in full, whereupon he was issued with a Deed of Transfer and Discharge of Charge both dated 2nd October 2024. Counsel further submitted that any failure to meet the loan repayment timelines would have warranted recovery of the loan under Section 174(3) of the Agriculture Act, Cap 318 (repealed) and not revocation of the allotment, and that the allotment was never revoked. On costs, counsel relied on Section 27 of the Civil Procedure Act and submitted that costs follow the event.
The 1st Defendant's Submissions
18. The 1st Defendant filed his written submissions dated 14th July 2026. Counsel identified three issues for determination: who is the lawful owner of Title No. Taita Taveta/Lake Jipe/492; whether the 1st Defendant is a trespasser; and whether the Plaintiff is entitled to the prayers sought. On the first issue, counsel anchored the 1st Defendant's case on Sections 24, 25 and 26 of the Land Registration Act, 2012 and submitted that the suit property was originally registered in favour of the 3rd Defendant, who later sold it to the 1st Defendant, and that the title deed issued to the 1st Defendant on 9th September 2022 constitutes prima facie evidence that he is the absolute and indefeasible owner thereof, such title being impeachable only on the grounds set out in Section 26(1) of the Act. Relying on Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR , Moses Parantai & Peris Wanjiku Mukuru (suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (Deceased)) v Stephen Njoroge Macharia [2020] eKLR and R.G. Patel v Lalji Makanji [1957] EA 314 , counsel submitted that fraud must be specifically pleaded and strictly proved to a standard above the ordinary balance of probabilities, and that it is not permissible to leave fraud to be inferred from the facts. Citing Tolksdorf v Mwangi & 3 Others [2025] KEELC 848 (KLR) and Daniel Otieno Migore v South Nyanza Sugar Company Limited [2018] eKLR on the principle that parties are bound by their pleadings, and North End Trading Company Limited v City Council of Nairobi [2019] eKLR on the want of probative value of unsubstantiated pleadings, counsel submitted that the Plaintiff neither pleaded nor proved fraud on the part of either the 1st or the 3rd Defendant in the acquisition of the suit property.
19. Counsel further submitted that the Plaintiff failed to comply with the mandatory conditions imposed by the Government, pointing to the demand notices issued by the Land Adjudication and Settlement Office, the latest being dated 18th August 2008, and to the Plaintiff's own admission on cross-examination that he only cleared the loan in the year 2024, some 16 years after the last demand notice, as evidenced by the receipt of full payment dated 31st July 2024 and the Discharge of Charge executed on 2nd October 2024. Counsel submitted that the demand notices expressly warned of legal action, including repossession of the land under Section 174(3) of the Agriculture Act, Cap 318 (repealed), and that the first registration of the suit property in favour of the 3rd Defendant is prima facie evidence that the Settlement Fund Trustees exercised their powers thereunder to terminate the Plaintiff's interest for non-payment. Consequently, it was submitted, the 3rd Defendant acquired genuine legal rights over the suit property and passed a good title to the 1st Defendant upon its purchase, and the 1st Defendant therefore holds a valid and indefeasible title. On the second issue, counsel relied on Section 3(1) of the Trespass Act, Cap 294 and submitted that the 1st Defendant, having proved to be the true and legitimate owner of the suit property, cannot be a trespasser thereon and is entitled, pursuant to Article 40 of the Constitution, to exercise his proprietary rights in the manner he deems fit. Counsel accordingly urged the Court to dismiss the suit in its entirety with costs to the 1st Defendant.
20. The 4th and 5th Defendants did not file any written submissions despite being granted an opportunity to do so. Similarly, the 2nd and 3rd Defendants, having neither entered appearance nor filed any defences, did not file any submissions.
Analysis and Determination
21. I have considered the pleadings, the evidence tendered by the parties and the submissions filed. In my view, the following issues arise for determination in this suit: -
i. Whether the Plaintiff acquired a legitimate proprietary interest in the suit property;
ii. Whether the registration of the 3rd Defendant and subsequently the 1st Defendant as proprietors of the suit property was lawful, and whether the 1st Defendant is an innocent purchaser for value without notice;
iii. Whether the Plaintiff is entitled to the reliefs sought; and
iv. What orders should issue as to costs.
Issue No. (i): Whether the Plaintiff acquired a legitimate proprietary interest in the suit property
22. The root of the Plaintiff's claim is the letter of allotment dated 2nd January 1997 issued to him by the Government through the Settlement Fund Trustees in consultation with the District Land Adjudication and Settlement Committee, Taita Taveta District. It is now well settled that a letter of allotment does not, by and of itself, confer title upon the allottee; it constitutes an offer which must be perfected through fulfilment of the conditions stipulated therein and ultimately through registration. The Supreme Court of Kenya in Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) stated as follows: -
“Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling the conditions therein. These conditions include but are not limited to, the payment of a stand premium and ground rent within prescribed timelines. But even after the perfection of an allotment letter through the fulfillment of the conditions stipulated therein, an allottee cannot pass valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter.”
23. The question, therefore, is whether the Plaintiff perfected his allotment. The evidence on record establishes the following uncontroverted sequence: the Plaintiff was issued with the letter of allotment dated 2nd January 1997 in respect of Plot No. 492 measuring 6.8 hectares within the Lake Jipe Settlement Scheme; he accepted the offer vide a letter of acceptance dated 30th June 1997; he paid the 10% deposit of Kshs. 4,450/= vide receipt No. BJ363259; the balance of the purchase price was financed through a land development loan of Kshs. 41,999.97 advanced by the Land Settlement Fund and charged against the suit property; the Settlement Fund Trustees issued demand notices to the Plaintiff on 7th November 2003 and 18th August 2008 in respect of the outstanding loan; the Plaintiff cleared the loan in full; and upon such clearance, the Land Settlement Fund Board of Trustees executed a Deed of Transfer and a Discharge of Charge in favour of the Plaintiff, both dated 2nd October 2024.
24. Significantly, the foregoing account was corroborated in material respects by DW2, the Land Registrar, who was the 4th and 5th Defendants' own witness. DW2 confirmed on cross-examination that prior to the registration of the 3rd Defendant, the suit property had been allotted to the Plaintiff; that the Plaintiff had paid the 10% deposit to the Settlement Fund Trustees; that she had seen the Plaintiff's letter of acceptance; and that the registry holds the transfer and discharge of charge presented by the Plaintiff. It was also her evidence that the reason the Plaintiff could not be registered was not any default on his part but the fact that a title had already been issued to the 3rd Defendant.
25. The 1st Defendant sought to impugn the Plaintiff's allotment on the ground that the Plaintiff did not comply with the payment timelines stipulated in the letter of allotment, having paid the deposit after the lapse of the 90-day period and having cleared the loan only in 2024. Indeed, PW1 candidly admitted on cross-examination that his payment of 30th June 1997 fell outside the 90-day window. However, that admission does not, in my view, avail the 1st Defendant. The Settlement Fund Trustees, being the offeror, accepted the Plaintiff's late payment without demur, proceeded to advance him a land development loan secured against the suit property, issued demand notices to him in 2003 and 2008 calling for repayment of the said loan, accepted his repayments culminating in full settlement, and ultimately executed a Deed of Transfer and Discharge of Charge in his favour. This course of conduct is wholly inconsistent with any suggestion that the allotment had lapsed. The offeror, by its conduct, waived strict compliance with the payment timelines and affirmed the allotment as subsisting. I also note the Plaintiff's submission, which I find merited, that the remedy available for default in the repayment of a settlement loan was recovery of the loan under Section 174(3) of the Agriculture Act, Cap 318 (repealed) and not forfeiture of the allotment. The 1st Defendant, on his part, submitted that the first registration of the suit property in the name of the 3rd Defendant is itself prima facie evidence that the Settlement Fund Trustees exercised their power under Section 174(3) of the Agriculture Act to terminate the Plaintiff's interest for non-payment. That submission is, with respect, untenable. Section 174(3) provides that upon termination of the defaulter's interest, the interest shall vest in the Settlement Fund Trustees, who may thereupon take possession of the land. It makes no provision for the vesting of the terminated interest in a third party. Had the Settlement Fund Trustees exercised that power, one would have expected to find, at the very least, some record of the termination and of a fresh allocation of the suit property to the 3rd Defendant. Instead, DW2, the Land Registrar, was categorical that there is not a single document in the parcel file in support of the 3rd Defendant's registration, and it was her further evidence that the reason the Plaintiff could not be registered was not the termination of his interest but the fact that a title had already been issued to the 3rd Defendant. Moreover, the conduct of the Settlement Fund Trustees after the demand notices, in accepting the Plaintiff's repayments culminating in full settlement and ultimately executing the Deed of Transfer and Discharge of Charge in his favour, is wholly irreconcilable with any suggestion that they had terminated his interest. The exercise of the power of termination under Section 174(3) cannot be presumed or inferred from the mere fact of a stranger's registration; it must be demonstrated by evidence, and none was tendered. There is no evidence whatsoever that the allotment to the Plaintiff was ever revoked, recalled or cancelled.
26. The position I have taken finds firm support in the recent decision of the Court of Appeal in Alexander T. Kaminchia & Another v Geoffrey Mungai Thiong’o & 2 Others, Nairobi Civil Appeal No. E754 of 2024 [2026] KECA 1296 (KLR) where a similar contention was advanced, on the strength of the Supreme Court decision in Torino Enterprises Limited v Attorney General (supra) , that a payment made outside the period stipulated in a letter of allotment extinguished the allottee’s interest by operation of law. The Court of Appeal rejected that contention and expressed itself as follows: -
“It is true that generally one needs to comply with the terms of allotment within the period specified. However, there is no law that specifically provides that if an allotment letter is not paid for within the specified period, then that allotment letter is null and void ab initio, and can never be acted upon, or that the Government is completely barred from accepting a late payment. We are not persuaded that in all cases where payment is made late, but unconditionally accepted by the Government before the Government has committed the same land to another person, then no title exists. Each case needs to be looked at depending on its special circumstances… However, if there is no second allottee, the Government has the prerogative of accepting a late payment, and if it does so, a title that is consequently issued would be a good title as the late offer will have been accepted. This would be akin to a waiver on the part of the Government.”
27. In arriving at that holding, the Court of Appeal drew parallels with its earlier decision in Waterfront Holdings Limited v Kandie & 2 Others (Civil Appeal 88 of 2019) [2023] KECA 1223 (KLR) , in which the party claiming through the first allottee failed to discharge the burden of proving that the said allottee had met the conditions in the letter of allotment by the time the process of re-allotment to a subsequent allottee commenced, with the consequence that the re-allotment and the issuance of title to the subsequent allottee could not be faulted. The converse obtains in the instant case. It is the Plaintiff, the first and only allottee, who demonstrated fulfilment of the conditions of his allotment, which fulfilment the Settlement Fund Trustees affirmed by their own conduct; and there was no evidence whatsoever of any allotment or re-allocation of the suit property to the 3rd Defendant or to any other person who had satisfied the conditions of allotment. The suit property was therefore never committed to any second allottee, and nothing stood in the way of the perfection of the Plaintiff’s interest through the acceptance of his payments and the execution of the Deed of Transfer and Discharge of Charge in his favour.
28. In the premises, I find and hold that the Plaintiff perfected his allotment through the fulfilment of the conditions stipulated in the letter of allotment dated 2nd January 1997, and that upon the execution of the Deed of Transfer and Discharge of Charge dated 2nd October 2024, the Plaintiff acquired a legitimate proprietary interest in the suit property and became entitled to be registered as proprietor thereof.
Issue No. (ii): Whether the registration of the 3rd Defendant and subsequently the 1st Defendant as proprietors of the suit property was lawful, and whether the 1st Defendant is an innocent purchaser for value without notice
29. The 1st Defendant's case rests on the certificate of title issued to him on 9th September 2022 and the protection accorded to a registered proprietor under Sections 24, 25 and 26 of the Land Registration Act, 2012. Section 26(1) of the said Act provides that the certificate of title issued by the Registrar shall be taken by all courts as prima facie evidence that the person named as proprietor is the absolute and indefeasible owner, and that the title 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.
30. It is equally well settled that where the root of a registered proprietor's title is under challenge, it is not enough for the proprietor to dangle the instrument of title as proof of ownership. The Court of Appeal in Munyu Maina v Hiram Gathiha Maina, Civil Appeal No. 239 of 2009 [2013] eKLR held as follows: -
“Where the registered proprietor's root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.”
31. The starting point is the root of the 1st Defendant's title, which is the registration of the 3rd Defendant as the first proprietor of the suit property. The evidence of DW2, the Land Registrar, on this aspect was telling. She testified that the only document in the parcel file is the cancelled title deed issued to the 3rd Defendant, and that there is no document whatsoever in support of any allotment to the 3rd Defendant. This stands in stark contrast to the position of the Plaintiff, whose letter of allotment, letter of acceptance, payme
[...truncated]