https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4448

**REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MILIMANI LAW COURTS, NAIROBI** **ELCLC E260 OF 2024** **ALI MOHAMED BEREKI ............................................................................PLAINTIFF** **-VERSUS-** **NJAMBA MWIRERI INVESTMENT LIMITED .....................................1ST DEFENDANT THE CHIEF LANDS REGISTRAR ......................................................2ND DEFENDANT** **JUDGEMENT** **The Plaintiff's Case** 1. By a Plaint dated 28th June 2024, the Plaintiff instituted the present suit against the Defendants seeking the following reliefs: 2. A declaration that the 1st Defendant is a trespasser on Land Parcel No. Nairobi/Block/122/479; 3. An order for the immediate eviction of the 1st Defendant from the suit property; 4. A permanent injunction restraining the 1st Defendant from remaining on, occupying or carrying out any activities on the suit property that interfere with the Plaintiff's quiet enjoyment thereof; 5. An order directing the 2nd Defendant to revoke and cancel the lease issued to the 1st Defendant over Land Parcel No. Nairobi/Block/122/479; 6. An order directing the 2nd Defendant to issue the Plaintiff with lawful title documents in respect of Land Parcel No. Nairobi/Block/122/479; 7. General damages for trespass and the unlawful erection of structures on the suit property; 8. Costs of the suit; and any other relief that this Court may deem fit to grant. 9. The Plaintiff's case is that he is a registered member of KENHUT Housing Cooperative Society Limited, having acquired two shares in the Society in 1992. He avers that the Society established a housing scheme on L.R. No. 15370, which was subdivided and allocated to its members. Pursuant to that exercise, he was allotted Land Parcel Nos. Nairobi/Block/122/478 and Nairobi/Block/122/479, as evidenced by his share certificate and letters of allotment. The Plaintiff states that he subsequently sold Nairobi/Block/122/478 and retained Nairobi/Block/122/479, which is the suit property. 10. The Plaintiff further avers that while processing a title for the suit property in December 2014, an official search revealed that the 1st Defendant had unlawfully procured a lease over Nairobi/Block/122/479 and had taken possession of the land without his consent. He contends that the 1st Defendant thereafter commenced construction on the property by erecting structures thereon. Upon discovering the alleged encroachment, the Plaintiff notified KENHUT Housing Cooperative Society Limited, which confirmed through correspondence that he was the lawful allottee of the suit property and had not been deprived of his allocation. 11. The Plaintiff states that he instructed his advocates to issue a demand requiring the 1st Defendant to vacate the suit property and also reported the matter to the Chief Land Registrar, the National Land Commission and other relevant government authorities. He avers that investigations were directed by the National Land Commission and the Ministry of Interior, while the Cooperative Society reaffirmed to the Commissioner of Lands that the Plaintiff was the lawful allottee of Nairobi/Block/122/479 and recommended that title be issued to him. 12. It is the Plaintiff's case that the 1st Defendant fraudulently and through misrepresentation procured registration of a lease over the suit property despite having no lawful interest therein. He particulars the alleged fraud to include falsely presenting itself as entitled to the land, fraudulently procuring allotment documents, causing the lease to be issued in its favour, and unlawfully acquiring the property. The Plaintiff further alleges that the 2nd Defendant acted negligently and recklessly by failing to verify the documents presented before issuing the lease to the 1st Defendant. Consequently, he maintains that the 1st Defendant's continued occupation of the suit property constitutes trespass and has unlawfully deprived him of the use and enjoyment of his land, hence the present suit. The 2nd Defendant's Case 1. The 2nd Defendant entered appearance and filed a **Statement of Defence dated 8th October 2024** in which it denied the Plaintiff's claim save for the description of the parties and the jurisdiction of this Court. It pleaded that it was a stranger to most of the matters pleaded in the Plaint, particularly those relating to the Plaintiff's membership in KENHUT Housing Cooperative Society Limited, the alleged allocation of the suit property, and the dealings between the Plaintiff, the Society and the 1st Defendant. The 2nd Defendant consequently put the Plaintiff to strict proof of those allegations. 2. The 2nd Defendant further denied the Plaintiff's allegations that it had acted recklessly, negligently or unlawfully in issuing a lease over **Land Parcel No. Nairobi/Block/122/479** to the 1st Defendant. It specifically denied the particulars of recklessness and negligence pleaded against it and maintained that the Plaintiff had not established any basis upon which liability could attach to the 2nd Defendant. It also denied having been served with any demand or notice of intention to sue and put the Plaintiff to strict proof thereof. 3. Consequently, the 2nd Defendant prayed that the Plaintiff's suit as against it be dismissed with costs on the ground that it disclosed no reasonable cause of action against the 2nd Defendant. **Hearing** 1. The suit proceeded to hearing, during which the Plaintiff testified as **PW1** and adopted his witness statement dated 28th June 2024 as his evidence in chief. He also produced the documents contained in his List and Bundle of Documents as exhibits. The Plaintiff further called **Dr. Jeremiah Nyatichi** as **PW2**, who likewise adopted his witness statement. The 2nd Defendant did not call any witness, upon the close of the hearing, the Court directed the parties to file written submissions. The Plaintiff and the 2nd Defendant duly complied, while the 1st Defendant neither entered appearance nor participated in the proceedings. **The Plaintiff's Submissions** 1. In his written submissions, the Plaintiff identifies the following issues for determination: whether he established that he is the lawful allottee and beneficial owner of **Land Parcel No. Nairobi/Block/122/479**; whether the lease registered in favour of the 1st Defendant was procured fraudulently, unlawfully and unprocedurally; whether the 1st Defendant is a trespasser on the suit property; whether the 2nd Defendant acted negligently and in breach of its statutory duty in issuing and registering the lease; and whether the Plaintiff is entitled to the reliefs sought in the Plaint. 2. On the issue of ownership, the Plaintiff submits that he discharged the burden of proof by producing his share certificate, letters of allotment, allocation records and correspondence from KENHUT Housing Co-operative Society Limited confirming his allocation of the suit property. He further relies on the evidence of PW2, Dr. Jeremiah Nyatichi, who confirmed that the Plaintiff was the lawful allottee while the 1st Defendant was not a member of the Society. In support of these submissions, the Plaintiff relies on **Wreck Motor Enterprises -Vs- Commissioner of Lands & 3 Others [1997]**, **Nelson Kazungu Chai & 9 Others -Vs- Pwani University [2015]**, and **Arthi Highway Developers Limited -Vs- West End Butchery Limited & 6 Others [2015]**, for the proposition that a valid allotment confers an enforceable proprietary interest deserving of protection. 3. On whether the lease in favour of the 1st Defendant was fraudulently procured, the Plaintiff submits that the particulars of fraud were specifically pleaded and proved through both oral and documentary evidence. He contends that the evidence established that the suit property had already been allocated to him before the impugned lease was issued and that neither Defendant offered any evidence explaining the process through which the 1st Defendant acquired title. 4. The Plaintiff further submits that once the root of title is challenged, the registered proprietor bears the burden of demonstrating the legality of its acquisition. He therefore urges the Court to find that the lease falls within the exceptions under Section 26(1) of the Land Registration Act and is liable to cancellation. In support of this position, reliance is placed on **Kinyanjui Kamau -Vs- George Kamau [2015] eKLR**, **Vijay Morjaria -Vs- Nansingh Madhusingh Darbar & Another [2000] eKLR**, **Munyu Maina -Vs- Hiram Gathiha Maina [2013] eKLR**, **Arthi Highway Developers Limited -Vs- West End Butchery Limited & 6 Others [2015]**, **Daudi Kiptugen -Vs- Commissioner of Lands Nairobi Lands & 4 Others [2015]**, and Sections **26(1), 79 and 80 of the Land Registration Act**. 5. On the remaining issues, the Plaintiff submits that having demonstrated a lawful and superior interest in the suit property, the 1st Defendant's occupation and developments thereon constitute trespass. He further argues that the 2nd Defendant failed in its statutory duty by facilitating the registration of the impugned lease and, despite filing a defence, failed to adduce evidence to rebut the Plaintiff's case. 6. The Plaintiff also submits that uncontroverted and credible evidence ought to be accepted by the Court and that he has discharged the burden of proof on a balance of probabilities. He therefore urges the Court to grant the declarations, cancellation of the lease, eviction, permanent injunction, issuance of title, damages for trespass and costs as prayed. In support of these submissions, the Plaintiff relies on **CMC Aviation Limited -Vs- Crusair Limited [1987] KLR 103**, **Karugi & Another -Vs- Kabiya & 3 Others [1987] KLR 347**, **Shaneebal Limited -Vs- County Government of Machakos [2018] eKLR**, **Section 26 of the Land Registration Act**, **Sections 107 and 109 of the Evidence Act**, and **Article 40 of the Constitution**. **The 2nd Defendant's Submissions** 1. In its written submissions, the 2nd Defendant identifies three issues for determination, namely: whether there was fraud, recklessness or negligence on its part; whether the Plaintiff proved his case to the requisite standard; and whether the Plaintiff is entitled to the reliefs sought. On the first issue, the 2nd Defendant submits that allegations of fraud are quasi-criminal in nature and must not only be specifically pleaded but also strictly proved to a standard higher than a balance of probabilities though lower than beyond reasonable doubt. It contends that the Plaintiff failed to demonstrate any fraudulent conduct, misrepresentation, recklessness or negligence on the part of the 2nd Defendant in the registration of the lease. In support of these submissions, the 2nd Defendant relies on **Ashit Patani & 2 Others -Vs- Dhirajlal V. Patani & 2 Others [2014] eKLR** and **Moses Parantai & Peris Wanjiku Mukuru (suing as the legal representatives of the Estate of Sospeter Mukuru Mbeere (Deceased) -Vs- Stephen Njoroge Macharia [2020] eKLR**. 2. On whether the Plaintiff proved his case, the 2nd Defendant submits that the Plaintiff failed to adduce sufficient evidence demonstrating that the suit property was lawfully allocated to him or that the 2nd Defendant acted unlawfully in registering the 1st Defendant as proprietor. It argues that the official search produced by the Plaintiff showed that the 1st Defendant had been registered as proprietor on 27th December 2012 and that the Plaintiff neither explained the delay in instituting the suit nor demonstrated that the Society had forwarded the necessary registration documents to the Lands Registry before the registration of the 1st Defendant. The 2nd Defendant further submits that the Land Registrar registers documents presented for registration and that the Plaintiff failed to prove fraud, mistake or wrongdoing on the part of the Land Registrar capable of warranting cancellation of the registration. 3. The 2nd Defendant further submits that the burden of proof rests upon the Plaintiff throughout the proceedings and that the Plaintiff failed to discharge that burden. It relies on **Sections 107 and 109 of the Evidence Act** and the decisions in **CMC Aviation Ltd v Crusair Ltd (No. 1) [1987] KLR 103**, **Karugi & Another -Vs- Kabiya & 3 Others [1987] KLR 347**, **Isinya Roses Limited -Vs- Zakayo Nyongesa [2016] eKLR**, **Mumbi M'Nabea -Vs- David M. Wachira [2016] eKLR**, and **Maria Ciabaitaru M'mairanyi & Others -Vs- Blue Shield Insurance Company Limited [2005] 1 EA 280**, for the proposition that the burden of proving the facts pleaded remains with the Plaintiff on a balance of probabilities. Accordingly, it urges the Court to find that the Plaintiff failed to establish fraud, negligence or any other cause of action against the 2nd Defendant and to dismiss the suit with costs. **Issue for Determination** 1. Having considered the pleadings, the evidence adduced, and the rival submissions of the parties, the Court is of the view that the sole issue for determination is: *Whether the Plaintiff has proved his case on a balance of probabilities and is entitled to the reliefs sought in the Plaint.* **Analysis and Determination** 1. The Plaintiff's claim is founded on his assertion that he is the lawful allottee and beneficial owner of **Land Parcel No. Nairobi/Block/122/479**, having acquired the same through KENHUT Housing Co-operative Society Limited. He contends that despite his prior allocation, the 1st Defendant unlawfully procured registration of a lease over the suit property and took possession thereof. The 2nd Defendant, on its part, denies any fraud, negligence or wrongdoing and submits that the Plaintiff failed to prove the allegations pleaded against it. 2. It is trite that he who alleges must prove. Sections 107, 108 and 109 of the Evidence Act place the legal burden upon the party asserting the existence of a fact. In **Karugi & Another -Vs- Kabiya & 3 Others [1987] KLR 347**, the Court of Appeal held that the burden of proof remains with the plaintiff throughout the case and does not lessen merely because the defence has offered little or no evidence. Equally, where fraud is alleged, the law requires that it be specifically pleaded and strictly proved to a standard higher than a balance of probabilities, though not beyond reasonable doubt, as stated in **Vijay Morjaria -Vs- Nansingh Madhusingh Darbar & Another [2000] eKLR** and **Kinyanjui Kamau -Vs- George Kamau [2015] eKLR**. 3. Having carefully considered the evidence on record, the Court is satisfied that the Plaintiff established a consistent chain of entitlement to the suit property. The documentary evidence produced, including the Share Certificate, letters of allotment, allocation records and correspondence from KENHUT Housing Co-operative Society Limited, demonstrates that the Plaintiff became a member of the Society in 1992 and was allocated, among other parcels, **Nairobi/Block/122/479.** This evidence was corroborated by PW2, Dr. Jeremiah Nyatichi, the former Treasurer and current Chairman of the Society, who confirmed that the Plaintiff was the lawful allottee of the suit property and that the 1st Defendant did not feature in the Society's allocation records. Significantly, this evidence was not displaced by any contrary evidence. 4. The Court has also considered the 2nd Defendant's contention that the Plaintiff failed to prove lawful allocation and that no evidence was adduced linking the Chief Land Registrar to any fraudulent or negligent conduct. While the 2nd Defendant filed a Statement of Defence and made detailed submissions, it elected not to call any witness or produce any documentary evidence explaining the process through which the lease in favour of the 1st Defendant was issued. Submissions, however persuasive, do not constitute evidence and cannot take the place of evidence. 5. The official search produced by the Plaintiff confirms that the 1st Defendant became the registered lessee of the suit property on **27th December 2012**. Once the Plaintiff adduced evidence showing a prior allocation by the Society and challenged the legality of that registration, the root of the 1st Defendant's title became a matter requiring explanation. In **Munyu Maina -Vs- Hiram Gathiha Maina [2013] KECA eKLR**, the Court of Appeal held that where the root of a registered proprietor's title is under challenge, it is insufficient to merely rely on the certificate of title; the proprietor must go further and demonstrate the legality of the process through which the title was acquired. In the present case, no such explanation was forthcoming. The 1st Defendant neither entered appearance nor defended the suit, while the 2nd Defendant led no evidence regarding the documentation presented to the Lands Registry or the process that culminated in the registration of the lease. 6. Although the Plaintiff pleaded particulars of fraud against the 1st Defendant, the evidence before the Court more readily establishes that the registration of the lease was unprocedural and unsupported by any demonstrated lawful root of title. Section 26(1) of the Land Registration Act provides that a certificate of title is prima facie evidence of ownership but may be challenged where it is shown to have been acquired through fraud, misrepresentation, illegality, unprocedural means or a corrupt scheme. 7. On the evidence presented, the Court is persuaded that the Plaintiff had acquired a prior beneficial interest in the suit property through the allocation by the Society and that the subsequent registration of the lease in favour of the 1st Defendant has not been shown to have been founded upon any lawful allocation or transfer. Accordingly, that registration cannot enjoy the protection accorded under Section 26(1) of the Land Registration Act. 8. In the circumstances, the Court finds that the Plaintiff has proved, on a balance of probabilities, that he is the lawful allottee and beneficial owner of **Land Parcel No. Nairobi/Block/122/479.** The Court further finds that the lease registered in favour of the 1st Defendant is liable to cancellation, that the 1st Defendant's occupation of the suit property is without lawful justification and therefore amounts to trespass, and that the Plaintiff is entitled to the appropriate declaratory and consequential reliefs. The Court is, however, not persuaded that the evidence adduced establishes personal fraud or negligence on the part of the 2nd Defendant beyond the impugned registration process itself. The reliefs to be granted shall therefore be guided by these findings. **Disposition** 1. In the result, having found that the Plaintiff has proved his case on a balance of probabilities, judgment is hereby entered in favour of the Plaintiff against the Defendants in the following terms: 2. A declaration is hereby issued that the Plaintiff is the lawful allottee and beneficial owner of **Land Parcel No. Nairobi/Block/122/479**. 3. A declaration is hereby issued that the 1st Defendant is a trespasser upon **Land Parcel No. Nairobi/Block/122/479**. 4. An order is hereby issued directing the **2nd Defendant** to cancel the lease registered in favour of the 1st Defendant in respect of **Land Parcel No. Nairobi/Block/122/479**. 5. An order is hereby issued directing the **2nd Defendant** to facilitate the processing and issuance of lawful title documents in respect of **Land Parcel No. Nairobi/Block/122/479** in favour of the Plaintiff, subject to compliance with all applicable statutory requirements. 6. An order of eviction is hereby issued directing the 1st Defendant, its servants, agents or any person claiming under it to vacate **Land Parcel No. Nairobi/Block/122/479** within **ninety (90) days** from the date hereof, in default of which an eviction shall issue in accordance with the law. 7. A permanent injunction is hereby issued restraining the 1st Defendant, its servants, agents or any person claiming under it from entering upon, remaining on, occupying, constructing on, alienating, transferring or in any other manner interfering with the Plaintiff's quiet possession and enjoyment of **Land Parcel No. Nairobi/Block/122/479**. 8. The prayer for **general damages for trespass** is declined. 9. The Plaintiff shall have the costs of the suit together with interest thereon at court rates. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **13th** day of **July, 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Judgement delivered in the presence of: -** **Ms. Anderi** for the Plaintiff **N/A** for the Defendants **Ms. Mwangi** Court Assistant