WAWERU MACHARIA VS FRANCIS MURIGU MURAGE

2.    PW1, Samuel Thiongo, an Assistant Director of Land Adjudication and Settlement, Nakuru,   testified that he was the officer in charge and custodian of the scheme's records, which did not show that  Mzee Jomo Kenyatta was an allocating authority or in any other capacity.

3.    He further testified that the official records showed that Plot Nos. 16 and  17 were distinct parcels, and there was  no evidence of consolidation or amalgamation of the two plots.  It was his evidence that the  original allotee of plot 16 was John Kamau Muigai, who executed a charge on the land in October 1973, and later transferred the plot to the 1st Defendant on 6th April, 1976, and  a land Control Board consent  was  issued later  in the same year.

4.    PW1 further testified that plot 17 was also initially held by John Kamau Muigai until it was transferred to the Plaintiff and that the  Plaintiff was the lawful owner according to the department’s  records.  It was his evidence that there was a boundary dispute between 1980 and 1983, which was resolved by each party retaining their specific parcel, and that the issue did not involve the consolidation of  parcels No. 16 and 17 land.

5.    Upon cross-examination by Ms. Njoroge, he admitted that   he  neither had the original application for John Kamau Muigai, nor  the cadastral map or the complete  Moyasset  scheme plan, which were kept in Nairobi. He confirmed that Plot 16 had changed hands through his office, all government dues were paid, and his office had raised no issues at the time of the transfer from the 1st Defendant to the 2nd Defendant.

6.    He stated that the deed plan presented by the defence was outside what they ordinarily did on the settlement  Scheme land. He added that according to his records, the Plaintiff was the fully paid-up and recognized owner of Plot No. 17. PW1 further stated that according to the transfer, the acreage was 36.41 Hectares  and that according to his records, Plot No. 16 is about 50 acres, which is not equivalent to the one on the transfer. He also told the court that the 1st Defendant has a leasehold, while  SFT records refer to  a freehold.

7.     Upon cross–examination by Mr. Ndubi, PW1 stated that the 36 original allottees  of Moyasset Scheme were identified  through plot allocation Committees who made applications, but told the court that he did not have any application submitted by Kamau Muigai.

8.    PW1 confirmed that the loans for Plot Nos. 16 and 17 were repaid in 56 instalments over a period of 28 years, and had a file for each parcel. PW1 further stated that the dispute between Plot Nos 15, 16, and 17 was in respect of a road crossing the 3 parcels.

9.    On re-examination, by Mr. Kagucia,  PW1  explained that the standard SFT (Settlement Fund Trustee) procedure involved creating a physical plan, accounting for public utilities, and then subdividing the remainder for beneficiaries identified by a plot allocation committee.

10.    PW1 stated that the Defendant’s deed plan was an isolated case created with the specific intention of having a title separate from the standard Moyasset Scheme. He added that his Nakuru office did not contain any documentation regarding the amalgamation of Plot Nos. 16 and  17.

11.    He further stated that in the instant case, it appeared to be a case of double titles, and  had neither a record of any title released to the 1st Defendant, nor any  SFT record  amalgamating plots for the 1st Defendant’s benefit.

12.    PW2, Agnes Wangui Waweru, adopted her witness statement dated 7th October, 2022,  as her evidence in chief, and stated that  they occupied the suit land plot No. 17 together with her late husband over 20 years, having first settled there in 1984. It was her evidence that they had been cultivating the land and  buried her son and grandson on the suit land. She also stated that the land was 48 acres, but never constructed any houses on Plot No. 16.

13.    It was her testimony that she left the suit land twice due to ethnic clashes in 1992 and 2007,  and later returned and was assisted by the government to rebuild their houses. She produced original photographs of the plantations and activities on the suit parcel as Pexh. 13r (i) to Pexh.13r(xxviii), a report as  PExh.5(c) and testified that the  2nd Defendant had invaded her land when the case was still  pending before the court. PW2 also relied on the documents that the husband had filed.

14.    Upon cross-examination by Ms Njoroge,  PW2 stated that they lived on Plot No 17 with her late husband,  Waweru Macharia,  for over 20 years, from 1984. She denied claims that the  1st Defendant’s wife  had ever farmed wheat on their portion of the land. She, however, admitted that the original allotee, John Kamau Muigai, never gave her husband a title deed. PW2 further   admitted she neither knew if the 2nd Defendant had a valid title nor had purchased the land from the 1st Defendant.

15.    Upon cross-examination by Mr. Ndubi,  PW2 stated that she was not aware whether there was a dispute between  John Kamau and Francis, and whether the land ever had land Reference No. 9712/3.

16.    Upon re-examination by Mr. Kagucia,  PW2 stated that the 2nd Defendant entered the land during the period when her family had vacated due to ethnic clashes. It was PW2’s testimony that  she was seeking the  cancellation of the 2nd Defendant’s title because he had consolidated Plot 16 and Plot 17 under a single title. She added that the 2nd Defendant was currently cultivating Plot No. 17, which was given to her husband by Mr. Kamau. She further told the court that she has never encroached on  the 2nd Defendant’s parcel.

17.    PW3 Francis Wachira Mwiri,  adopted his witness statement dated 25th April, 2019, and stated that he had been employed  by the Plaintiff  locally to construct houses.

18.    Upon cross-examination by Ms Njoroge,  PW3 confirmed that he built the houses on Plot No. 17 near the river, which was adjacent to both the tarmac road and the river.

19.    On re-examination, by Mr. Kagucia, PW3  stated that  he only knew the Plaintiff as the owner of the suit land and that the houses he had constructed  were  demolished during the ethnic clashes of 2007. He  also stated that he  was not involved in the rebuilding process following the clashes and that he was not aware of the current occupants of the suit parcel.

20.    PW4, John Kamau Muigai, adopted his witness statement dated 25th April, 2019, and testified that he sold Plot No. 17 to the Plaintiff. It was his testimony that he was originally given the land in the Moyasset Settlement Scheme by the Settlement Fund Trustee (SFT)  by  Jomo Kenyatta.  PW4 stated that  he entered into an agreement for the sale of Plot No. 17 with  the Plaintiff, who owns the suit land.

21.    Upon cross-examination by Mr. Ndubi,  he stated that he had visited President Jomo Kenyatta and stated that he was originally given 50 acres  of land, which he sold. He also told the court that in 1976, he gave Plot No. 16 to the 1st Defendant for free as a friend. He confirmed that Plots 16 and 17 were one big plot before the subdivision, and that the  land was not fenced at the time of the sale.  It was his evidence that both the Plaintiff and the 1st Defendant were each entitled to 48 acres each.

22.    PW4 told the court that he was not aware that Francis Murigu had written a letter to amalgamate Plot Nos. 16 and 17, and that he got a title in his name for 100 acres.

23.     Upon cross-examination by Ms Njoroge,  PW4 stated that they used to plant wheat with  Francis,  but later it was the Plaintiff who cultivated the land. He also stated that Waweru told him that someone had  fenced the land.  He confirmed that when he sold the land to the Plaintiff, it did not have a title deed.

24.    Upon re-examination, by Mr Mburu,   PW4 stated that Francis was his business partner in the Kio sawmill and there was no relationship between the sawmill and the plots. He  did not  request an exchange for the land but gave Plot No. 16 to the 1st Defendant as a friend. He confirmed that, within the Moyasset Scheme, he only held  Plot Nos. 16 and 17.

25.    DW1, Edith Njeri Murigo,  adopted her witness statement  dated 3rd July, 2023, as her evidence in chief and  produced her list of documents dated 7th June, 2007  as Dex. No. 1 to 12 and Dex No. 12 to 14. She testified that the land was originally given to John Kamau Muigai, her husband's business partner in a sawmill business. It was her testimony that the two went to the State House in 1976, where Kamau requested an exchange, and he received another parcel while her husband was allocated plot No.  16.

26.     It was DW1’s evidence that they were allocated one plot, which was Plot No. 16 measuring 36.41 Hectares, and not two separate parcels as claimed by the Plaintiff.  She stated that the suit land was transferred to her late husband in 1976. She further testified that her late   husband repaid the    SFT loan, the survey fees, and land rates to the Municipal Council of Nakuru. DW1 testified that her late husband sold the land to the 2nd Defendant in 2004.

27.    Upon cross-examination by Mr Mburu,  DW1  confirmed that the husband sold the property to the 2nd Defendant after the transfer to her late  husband had been finalized. She admitted that there was a transfer of Plot No. 17 from John Kamau Muigai to the Plaintiff and that she  never lived on the property.

28.    On re-examination, by Ms Njoroge, DW1 stated that plot No. 17 was missing from the official area list, and the acreage listed in the area list was consistent with the acreage provided in the title deed. Further, there were no structures on the land during the time her family was utilizing it.

29.    DW2, Peter Njuguna Gitau adopted his witness statement dated 19th March, 2018,  as his evidence in chief and  produced his list of documents dated 19th April, 2018, as Dex No. 1 to 8. It was  DW2’s testimony that he purchased the suit property from the 1st Defendant  vide  a sale agreement dated 22nd December, 2004, at a consideration of Kshs. 9 million, after conducting   a search at the Ministry of Lands  in Nairobi on 19th February 2004, before purchase.

30.    He testified that they got an order in CM’s Civil Case No. 303 of 2003, restraining the Plaintiff from interfering with the suit land. He further stated that after payment of  the purchase price, the 1st Defendant paid all the necessary fees and a transfer was effected in his name  on 15th August 2013. He testified that  he was the lawful owner of the suit land, having purchased the same procedurally  and was currently in possession of the land

31.    Upon cross-examination by Ms. Njoroge,  DW2 stated that he did his due diligence and confirmed that the land belonged to Francis Murigu, the 1st Defendant.

32.    DW2 admitted that the specific plot No LR No. 9712/3 was not indicated in the sale agreement, further that he neither had the consent to transfer  nor a transfer document from the 1st Defendant to himself. It was his testimony that he pays land rates to the county, but did not file any receipts to prove these payments. He further stated that the area list actually included both Plot No. 16 and Plot No. 17.

33.    Upon re-examination by  Ms. Bosibori, DW2  stated that IR No. 15970/20 found in his agreement matched the information in the application for registration. He added that the 1st Defendant (DW1) confirmed that he did not owe them any money for the purchase.

34.    DW3, Eliab Kamau, the Deputy Director of the Directorate of Land and Settlement in Nairobi,  produced the initial area list from the Directorate of Survey and a letter dated 31st October, 1983, and testified that the survey was conducted under the Registration of Titles Act (RTA) and was completed in 1983,  but the official scheme map no longer used the old plot numbers and  identified LR No. 9712/3 as a single parcel.

35.    It was his testimony that plot No. 17 did not exist in the official Area List, and that the  letter which referred to Plot No. 7912/3 was a clerical error. He added that the correct series for the area was 97 and not 79. DW3 confirmed that the  parcel measured 36.41 hectares, which acreage tallied with the figures provided by the Surveyor. He testified that the original allottee transferred Plot No. 16 as a gift to the 1st Defendant.DW3 testified that once the SFT loan is fully repaid, the department discharges the property, at which point it becomes private property.

36.    Upon cross-examination,  DW3  confirmed that the transfer document dated 3rd July 2001 from John Kamau Muigai to the Plaintiff for Plot No. 17 bore an official stamp from the Nakuru Settlement office. He was referred to the demand letter dated 15th February, 2012 addressed to the Plaintiff, and  stated that the officer in Nakuru who signed the notice did not have the authority to sign on behalf of the Director in Nairobi.

37.    DW3 confirmed the existence of a boundary dispute involving Plot Nos. 15, 16, and 17, and  stated that Plot No. 17 ceased to exist in 1983 following the final survey. He added that because the plot was no longer in the official Area List by that time, it was not possible to transfer it in 2002. He admitted that Plot No. 16 and 17 were consolidated into LR No. 9712/3, and that  Moyasset Scheme list originally showed John Kamau Muigai as the owner of both Plot Nos. 16 and 17.

38.    According to  DW3, land with an active SFT loan could not be transferred without the direct involvement and consent of the SFT, further that his office did not have records of any payments made by the Plaintiff to John Kamau Muigai, as the Plaintiff was not  considered an official allottee since there was no record of a transfer in his favor within the Nairobi files.

39.    DW3 confirmed that his records showed that the 1st Defendant had paid the SFT loan for LR No. 9712/3 and that the transfer was officially registered in his favor.

40.    On re-examination,  DW3  stated that Plot No. 17 was not in existence in 2001, and that the  transfer document dated 4th July, 2001 emanated from the settlement office in Nakuru. He confirmed that the officer who signed the demand Notice worked in their office, and that there was no relationship between 7912/3 and LR No. 9712/3.

41.    Counsel for the Plaintiff filed submissions dated 11th November, 2025,  and identified the following issues for determination:

42.    On the first issue, counsel submitted that a valid and enforceable agreement for the sale of plot 17 existed, whether in the original oral form or as a written agreement.  Counsel further submitted that it is trite that prior to the amendment of the Law of Contract Act in 2002, there was no strict requirement for the sale of land to be in writing, so long as the validity of the sale was proved.

43.     It was Mr. Mburu’s submission that  in this case,  the sale transaction was validated by the events that took place thereafter such as:

44.    Counsel  relied on Section 38(2) (b) of the Land Act and the case of Maiyebei v Chesebe (Environment and Land Appeal E022 of 2023) [2025] KEELC 5294 (KLR) (10 July 2025) (Judgment),  and submitted that the subject matter in the agreement was described as a portion of L.R NO 9712/3 measuring approximately 48 acres, He further submitted that the portion referred to in the written agreement was plot No.17, of which PW1 produced the crucial documents like application for LCB consent, consent to transfer,  and transfer.

45.    According to counsel, John Kamau Muigai and the Plaintiff (Deceased) engaged in a lawful sale transaction with the knowledge and approval of the Settlement Officers; as a result, the  Plaintiff(Deceased) replaced John Kamau Muigai as the legitimate allottee of Plot No. 17.

46.    Counsel relied on Sections 107 (1) (2), 109, and 112 of the Evidence Act and the Court of Appeal case in Mumbi M’nabea V David M. Wachira [2016] eKLR, and  submitted that PW1 testified that the records in the Settlement  Department did not show that plots 16 and 17 were amalgamated, giving rise to L.R NO. 9712/3.

47.    It was counsel’s submission that the 1st Defendant’s assertion that he was given the suit land in 1976 by the late Mzee Jomo Kenyatta was a concocted story intended to deny the Plaintiff his property, which he acquired from PW4 at a consideration.

48.    On the second issue,  as to whether the amalgamation of Plot Nos 16 and 17 and registration of the 2nd  Defendant as the proprietor of the resultant  L R No 9712/3 was illegal fraudulent and irregular, counsel  submitted in the affirmative and  stated  that the initial list of settlers of Moyasset Scheme showed that John Kamau was the original allottee of plot  No. 16 and 17 measuring 48 acres each.

49.    He submitted that the amalgamation of the plots was done without the knowledge of PW4 and the  original allottee. It was his submission that the 1st Defendant (Deceased) colluded with officers of the Settlement Office to deny the Plaintiff his suit parcel.

50.    He added that there was defiance of the Director of settlement orders vide the letter dated 19th August, 1987, which admitted that there was an error in the consolidation of the two plots.

51.    On the third issue,  counsel submitted that having established that the amalgamation of the plot  Nos. 16 and 17, and the transfer by the SFT to the 1st Defendant was irregular, it follows that the 1st Defendant did not obtain a good title that could subsequently be transferred to the 2nd Defendant.

52.     Mr Mburu submitted that had the 2nd Defendant conducted a comprehensive due diligence into the ownership of the suit parcel, he would have established that  the Plaintiff (Deceased) was the rightful owner of the portion measuring 48 acres LR 912/3 originally plot 17, further that the  2nd Defendant did not adduce evidence to  show that he  paid  valuable consideration  for the suit land. Counsel relied on the Court of Appeal case of Samuel Kangethe V Land Registrar [2015] eKLR and Section 26 of the Land Registration Act.

53.    On the fourth issue,  counsel  relied on the case of Republic V Land Registrar, Muranga & Another [2024] eKLR and submitted that from the evidence tendered by PW1, PW2, and PW4 they confirmed that the Plaintiff was the beneficial owner of plot number 17.

54.    It was counsel’s submission that the  Plaintiff, having proved his case, he is entitled to the reliefs sought in the plaint, and relied on the case of  Kenya Power & Lighting Co. Limited V Sheriff Molana Habib [2018] eKLR.

55.    Counsel for the 1st Defendant filed submissions dated  3rd December 2025 and gave a brief background to the  suit land and the evidence adduced. Counsel relied on Section 3 of the Law of Contract Act and  submitted that the Plaintiff maintained in her pleadings and evidence that her late husband entered into an oral agreement  with John Kamau Muigai in 1982 who sold him plot No. 16 and during the hearing  she produced an agreement dated 6th  March 1990 for purchase of 48 acres being a portion of  L R No 7912/3 together with the buildingsand improvements therein  at a consideration of kKhs. 192,000/

56.     Counsel further submitted that the final settlement lists produced by PW3  clearly show  that  Plot No. 17 does not exist on the area list and that the Plaintiff did not adduce  any evidence to show that Plot Nos. 16 and 17 were amalgamated  to create parcel No. LR No 9712/3 measuring 58.87 Hectares

57.     Ms. Njoroge submitted that the application for consent from the land Board by John Kamau to  Francis Murage  could not be accurate as it is the Settlement  Fund Trustees who apply  to the land Board to transfer upon payment of the dues owed to SFT.

58.    Counsel relied on Section 26 of the Land Registration Act and the cases of R. G Patel v. Lalji Makanji [1957] EA 314, Musonga vs Nyati{1984]KLR 425 and Katende Vs Haridas and Company Limited[2008]E.A 173, Vijay Morjaria vs Nansingh Madhusingh Darbar & Anor [2000] eKLR,  and  submitted that the Plaintiff has not established the allegation of fraud against the 1st Defendant and urged the court to dismiss the case with costs.

59.    Counsel for the 2nd Defendant filed his submissions dated 25th November, 2025 and identified two issues for determination:

60.    On the first issue, as to whether the Plaintiff is entitled to the reliefs sought,  counsel  relied on Section 26 of the Land Registration Act and the case of Tabitha Kinyanjui & Another V Stephen Kinyanjui Mburu, Nakuru ELC 159 of 2012, and submitted that the Plaintiff has not established the allegation of fraud against the defendants

61.    He submitted that the failure by the Plaintiff to sue the Settlement Fund Trustee, who was a key player in the entire process, renders the Plaintiff’s claim of fraud unfounded and unsubstantiated.  Counsel further  submitted that there was no evidence that there existed two separate allotment letters for plot numbers 16 and 17, as they were one parcel.

62.     Mr Ndubi relied on the case of Torino Enterprises Limited V Attorney General (Petition 5 [E006 of 2022] (2003) KESC (KLR) and submitted that John Kamau Muigai had not paid anything in the form of loan repayment as a borrower to have acquired proprietary rights of plot No. 17.

63.     It was counsel’s submission that the  Plaintiff took advantage of the status quo orders by occupying the land locking out the 1st Defendant as the registered owner of the land, and relied on the case of Civil Appeal No. 83 of 2016, Cooperative Bank of Kenya Ltd V Patrick Kangethe Njogu & Others.

64.    On the final issue of costs, counsel relied on Section 27 of the Civil Procedure Act and the case of Republic V Rosemary Wairimu Munene Ex parte Applicant V Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review application no. 6 of 2014., and urged the court to dismiss the Plaintiff’s suit with costs.

65.    The issues for determination  that arise from the pleadings are as follows.

66.    This is a case where the transactions started with friendships, business partners working together to the extent of offering to give land  for free in the spirit of brotherhood and friendship. The history of the parcel of land started in the 1970’s when land was still plenty and the Settlement Fund Trustee was settling the landless through identification in settlement Committees and being given loans whereby the land was charged and only discharged upon payment of the loan.

67.    The evidence in this case is captured above, including the submissions by counsel. On the first issue as to whether the Plaintiff is the rightful owner of  that portion of land  (originally Plot No. 17) measuring approximately 48 acres out of parcel of land comprising Land Reference No. 7912/3, the question that must be answered is whether Plot No 17 exists.

68.     It is not in dispute that the initial list of settlers of Moyasset Scheme showed that John Kamau  Muigai was the original allottee of plots  No. 16 and 17, measuring 48 acres each. In fact, John Kamau Muigai was the one who brought the other parties into the picture of acquiring land in this settlement scheme.

69.    The documents produced by the Plaintiff bear the name of John Kamau and Francis   Murigo and the transfers that were done in respect of Plot No. 16. From the onset it is important to note that PW1, an Assistant Director   Land and  Settlement Nakuru, testified that the official records showed that Plot No. 16 and   17 were distinct parcels, and there was  no evidence of consolidation or amalgamation of the two plots.  It was his evidence that the  original allotee of plot 16 was John Kamau Muigai, who executed a charge on the land in October 1973, and later transferred the plot to the 1st Defendant on 6th April, 1976 and  a land Control Board consent  was  issued later  in the same year.

70.    PW1 further testified that plot 17 was also initially held by John Kamau Muigai until it was transferred to the Plaintiff,  who was the  lawful owner according to  the department’s  records.  It was his evidence that there was a boundary dispute between 1980 and 1983, which was resolved by each party retaining their specific parcel, and that the issue did not involve the consolidation of  parcels No. 16 and 17 land.

71.     The evidence of PW1 established that plot John Kamau had been allotted Plot Nos. 16 and 17, which he later sold  plot No 17 to the Plaintiff and gave the 1st Defendant plot No 16.

72.     The evidence of PW1 was crucial as it emanated from the Settlement Office, which had the records of the transactions in respect of the suit land. PW1 told the court that  they did not have any documentation  in respect of the amalgamation of the plot. Nos 16 and 17.

73.    PW2, on the other hand, stated that they have stayed on plot No. 17 for the last 20 years, apart from the intermittent absence due to ethnic clashes during the 1992 and 2007 elections. How did the defendants allow the Plaintiff to bury her son and grandson on Plot No. 17 if they were laying claim to it? Where were they or their caretaker when the burial took place, and there is no evidence  of resistance or an order to stop the burials or to exhume the bodies? Burying a body  on a disputed land or otherwise does not prove ownership.

74.    The documents produced in support of the Plaintiff’s case in respect of the transaction that led to the acquisition of the suit land point towards a legal beneficial interest in the suit land. The Plaintiff and the 1st Defendant were to share the land measuring 48 acres each, and, surprisingly, the land was later amalgamated or consolidated to give the 1st Defendant a larger parcel of land, which he subsequently sold to the 2nd Defendant. It follows, therefore, that the evidence that Plot Nos 16 and 17 were 48acres each for the plaintiff and the  1st Defendant, who decided to sell the whole parcel to the 2nd Defendant.

75.     PW4 ‘s testimony was crucial as he was the surviving party in the original transaction as the Plaintiff and the 1st Defendant, whom they dealt with, are deceased. His evidence was corroborated by the evidence of PW1 and  DW3 Eliab, the Deputy Director of Land and Settlement, Nairobi, who stated that the original allottee  transferred plot No 16 to the 1st Defendant as a gift,  which is what John Kamau said

76.    John Kamau, the original allottee,  stated that  plot Nos 16 and 17 were  initially one big parcel which was later subdivided, and that the Moyasset scheme list originally showed that John Kamau  Muigai.

77.     It should be noted that the Plaintiff is only interested in a portion measuring 48 acres out of  L R No 9712/3 and not the whole portion and more particularly the original plot No. 17, which they have been in possession of.   He is not claiming Plot No 16, which is a portion of L R No 9712/3,  which was lawfully given to the 1st defendant, who sold to the 2nd defendant.

78.    On the 2nd issue on the legality of the amalgamation of plot Nos. 16 and 17, having found that Plot Nos 16 and 17 were originally distinct, were allocated to John Kamau Muigai, who later gave Plot No. 16 as a gift to the 1st defendant. If there was any amalgamation or consolidation, then the same was done without the knowledge of the Plaintiff. There are several correspondences in respect of a boundary dispute between  Plot Nos, 15, 16, and 17,  and the relevant parties are John Kamau Muigai, Francis  Murigu the 1st Defendant, and Gideon Thuo.

79.    In a letter dated  11th October 1985, Njogu & Co Advocates wrote to the Director  of Settlement  about the apparent consolidation of Plot Nos. 16 and 17 into parcel No L R No. 9712/3 measuring about 36.41 hectares.  Each parcel was approximately 48 acres. The Advocate wrote a letter requesting that the completion of the  deed plan be  withheld  until the anomaly  has been resolved to the satisfaction  of the parties involved.

80.    The Director of Settlement replied to the  letter dated 11th October 1985 vide a letter dated 19th August 1987 whereby he stated “that he had already discussed the matter with the client and accepted that L R No. 7912/3 should be subdivided into two equal portions in accordance with the enclosed copy of the development plan at his expense so that eventually Francis Murigu Murage becomes the owner of plot No. 16 and your client the owner of Plot No. 17.”

81.    From  the  correspondences, it is clear that the Director of Settlement admitted that  there was a mistake in the consolidation and ordered that the two plots be subdivided equally for John  Kamau Muigai and   Francis Murigu at their own costs. This is an anomaly, which was never corrected, leading to the 1st defendant acquiring a title to the two parcels of land without first subdividing.

82.    In the case of Elijah Makeri Nyangwara –Vs- Stephen Mungai Njuguna & Another [2013], the Court held that;

83.     The 1st Defendant obtained his title unprocedurally, knowing that he was not entitled to the two parcels of land, namely Plot No. 16 and 17. He was only entitled to one plot No. 16. He was aware of the correspondence from the Director of Settlement on the issue that the plots had been consolidated by error but went ahead and procured a title for the whole parcel It is also telling that the 1st Defendant went ahead and sold the land to the 2nd defendant without disclosing that a portion of the land did not belong to him.  Waving of a title for the whole parcel of land does not make it indefeasible as if the same was acquired illegally or through corrupt schemes, then Section 25,  and 26 of the Land Registration Act come to aid and correct the anomaly.

84.    In the case of Dina Management Ltd vs County Government of Mombasa & Another[2023] KESC 30 (KLR),  the court held that a title is not an end in itself but rather the culmination of a legally sound process. The mere fact that an individual’s name appears on a green card does not, in and of itself, validate the integrity of their title, particularly in cases where the court is called upon to investigate the root of ownership.

85.    The court is empowered under Section  80(1) of the Land Registration Act  to cancel  a title which was  procured unprocedurally. The Section  provides as  follows:

“(1) Subject to subsection (2), the Court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.

86.     I have considered the pleadings, the  evidence on record, the submissions by counsel, and find that the Plaintiff has established his case on a balance of probabilities and proceed to make the following determination:

a)    A declaration is hereby made  that the amalgamation of plot  Nos. 16 and 17 Moyasset Scheme  was illegal and unlawful.