https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4249

Barake (Suing as the legal representative of the Late Jones Gekara Barake) v Ole Partungas & another (Environment and Land Case 47 of 2024) [2026] KEELC 4249 (KLR) (Environment and Land) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4249 (KLR) Republic of Kenya In the Environment and Land Court at Naivasha Environment and Land Environment and Land Case 47 of 2024 MC Oundo, J July 9, 2026 Between Beatrice Bonareri Gekara Barake (Suing As The Legal Representative Of The Late Jones Gekara Barake) Plaintiff and Santa Ole Partungas 1st Defendant Registrar Of Lands, Naivasha 2nd Defendant Judgment 1.In a Plaint dated 7th October 2020, the Plaintiff herein sought the following orders:i.An order of permanent injunction do issue restraining the Defendant from disposing land parcel Ol Jorai Settlement Scheme Phase I Plot No. 92 now registered and title issued fraudulently to the Defendant as Naivasha/Ol Jorai Phase 1/359 measuring 1.17 Ha, and that there be a declaration that the estate of Jones Gekara Barake is the registered owner of all that parcel of land.ii.Cancellation of the Title Deed No. Naivasha/Ol Jorai Phase 1/359 and revert it back to the estate of Jones Gekara Barake.iii.Costs and interest of the suit (sic) 2.The 2nd Defendant filed its Statement of Defence dated 23rd October 2020, denying the allegations contained in the Plaint, putting the Plaintiff to strict proof, while arguing there was no express or implied implication of illegality, and fraudulent acts on its part; neither had the Plaintiff brought any claim against it in the Plaint, hence it is a pedestrian in the claim herein. 3.That in any event, no acts of illegality, fraud or otherwise had been expressly levelled against it, and that no particulars had been preferred by the Plaintiff against it; hence it had no case to answer in the instant matter. 4.That further, the instant suit herein offended the provisions of Section 13A of the Government Proceedings Act. It thus denied the entitlement of the reliefs sought herein to the Defendant and sought a dismissal of the Plaintiff’s suit with costs. 5.Whereas the 1st Defendant entered Appearance, he did not file any Defence. 6.The parties having complied with the pretrial directions, the matter proceeded for hearing on 5th February 2025 wherein the first witness, PW1 Beatrice Bonareri Gekara, was sworn and testified in the Kiswahili language. She stated that she was a resident of Losiwa village in Kongasis Location, Kiambogo, and worked as a farmer. She confirmed that she had filed the instant suit in court but stated that she did not know the 1st Defendant. She explained that the suit was instituted against the 1st Defendant because he had come to land parcel No. 359 claiming ownership of it, despite the fact that she resided on that specific piece of land. 7.The witness testified that the land initially belonged to her late husband, Jones Gekara Barake, who passed away on 13th February 2012, prompting the family to file a succession cause. She produced her husband's death certificate, which was admitted as Pf exh 1. She further testified that she had filed a succession cause in Nakuru and was granted Letters of Administration ad litem in Nakuru P&A Cause No. 196 of 2020 in the matter of the Estate of Jones Gekara Barake, which she produced as Pf exh 2. 8.According to the witness, the 1st Defendant had ordered her family to vacate the land in the year 2012. This prompted her to seek intervention from the local chief, who subsequently wrote a letter dated 8th May 2012 confirming her ownership of the land. The letter was produced as Pf exh 3. She stated that the chief visited the land, confirmed it belonged to her, and advised her to seek governmental assistance. Similarly, village elders visited the land on 29th May 2012, confirmed her ownership, and authored a letter to that effect dated 29th May 2012, which she produced as Pf exh 4. 9.The witness explained that the land was originally designated as Plot No. 92 when it was allocated to them by the settlement office, but the number was subsequently changed to No. 359. She stated that they moved onto the land in the year 2002, where they built a house and planted trees. She noted that while she could not recall the exact year her late husband first occupied the land, she moved there in 2000, after their marriage. At the time of her arrival, there was already a house and a toilet on the property, and they later planted trees. 10.Continuing her testimony, the witness stated that she visited the lands office, and officials later visited the property and found her in occupation. Upon conducting a search, she discovered that the land had been registered in someone else's name, which prompted the land officials to visit her home. She explained that she went to the lands office because the 1st Defendant kept coming to her home and had even deployed guards (askaris) to evict her, presumably because he intended to sell the land. The lands office informed her that she could only recover the title deed through a court process. 11.The witness further stated that the 1st Defendant had left the title deed with an individual nicknamed 'Onyambu' in Kongasis to find a buyer. It was at this point that she discovered the 1st Defendant had been issued the title deed in 2012. She produced a copy of the title deed for Naivasha/Oljorai Phase 1/359, registered in the name of Santa Ole Partungas, as Pf exh 5. She stated that she approached the court to obtain title to the land so she could continue living on the 1.17-hectare parcel with her children. She affirmed that she had never left the property since she moved there, and that the land was a bush with no one else there besides her husband when she first arrived. She asserted that the 1st Defendant had never lived on the land. While she did not know the exact date on which the land was given to the 1st Defendant, the title deed indicated it was in 2012. She observed that land from the settlement scheme is typically acquired after applying and paying for it. She also requested the court to award her the costs of the suit. 12.During cross-examination, the witness admitted that she found her husband already living on the land and did not know when it was allocated to him. She conceded that she had not produced any documents or receipts proving that her husband had paid for the land, explaining that the land settlement office had not given her any documents and that any receipts her husband possessed had been burnt during clashes. She reiterated that her husband died in 2012, which was around the time title deeds began being issued. 13.When referred to Pf exh 3, the witness admitted that the chief's letter did not feature the plot's reference number. She maintained that the land was plot No. 92 before becoming No. 359, though she did not possess any document to confirm the change. She stated that although settlement officials visited the ground, they did not compile a ground status report. She acknowledged that while she remained in occupation of the land, the 1st Defendant held the title deed, adding that she had placed a caution on the title to prevent the issuance of a green card. 14.During re-examination, the witness clarified that the letters and receipts were destroyed by fire during the 2007 clashes. She reiterated that she moved onto the land in the year 2000. She clarified that the elders' report, produced as Pf exh 4, was written in 2012 and specifically referenced land parcel No. 92. She concluded that she only learned the number had changed when the title deeds were issued. 15.The second witness, Charles Arenchi Okerio, PW2, was sworn and testified in the Kiswahili language. He identified himself as a farmer residing in Oljorai Location within Nakuru County. He stated that he knew PW1 as the widow of the deceased, Jones Barake, but did not know the 1st Defendant. The witness stated that he had recorded a witness statement on 18th July 2024, which he prayed to adopt as his evidence-in-chief. The statement was accordingly adopted by the court. 16.The witness testified that in 2007, he was elected to a committee tasked with accompanying surveyors to show people their pieces of land. On 8th May 2012, he visited Jones Gekara's land in the company of the Chief of Oljorai Location. Upon arrival, they established that the land belonged to Jones Gekara and was designated as Plot No. 92, which had since been renumbered as 359. They then returned to the chief's office, where the chief drafted a letter authorising PW 1 to visit the settlement office to obtain an allotment letter. He noted that the land featured trees, beans, three houses, and a toilet. 17.In response to questions from the Court, the witness stated that Jones Gekara was his neighbour who had moved onto the land in 1996. While he did not know the exact date of Jones' death, he confirmed that Jones had never vacated the land and that his family and wife were still residing there. The witness clarified that he was not a surveyor but had been selected to serve on the committee that worked with a surveyor named Kimathi. He stated he did not know why the chief did not indicate that the land was plot No. 92 in his letter. 18.During re-examination, the witness reiterated that he was not an expert in survey matters. He clarified that, according to his statement, he was working with the surveyor, not the chief, during the 2012 exercise. 19.The third witness, PW3, Bilia Nyabonyi Barake, was sworn in and testified in the Kiswahili language. She stated that she lived in Oljorai and worked as a farmer. She identified PW 1 as the wife of her late son, Jones. She stated that she did not know the 1st Defendant except by name. The witness stated that she had recorded her statement with the advocate but did not know how to read. 20.She testified that they had lived on the Oljorai Scheme No. 359 for many years. She explained that the land initially belonged to the Agricultural Development Corporation (ADC) before they were granted the land under the settlement scheme. She stated that Jones was allocated plot No. 92 by the ADC, and the scheme number was 359. The ADC had given them the land in 2005. The witness added that she was also allocated her own land, parcel No. 265. 21.She stated that the deceased and his wife had lived on the suit land to date. At this point, the witness broke down and prayed that the court would assist them so that the children could remain on the land. 22.During cross-examination, the witness reiterated that Jones was given plot No. 92. She confirmed that she also owned land in the same area but noted that her plot number did not change. She explained that the land was given to them by an individual named Nyangu, who worked at the settlement office.The Plaintiff closed its case. 23.The Defence case commenced with the testimony of Catherine Wachuka, the County Land Registrar, Kericho County, as DW1, who was sworn in and testified in the English language that she was the County Land Registrar for Kericho County and stated that she was aware of the matter. She noted that she had recorded her witness statement during her tenure as the County Land Registrar for Naivasha. The witness prayed to adopt her statement dated 16th July 2021, and the court subsequently adopted it as her evidence-in-chief. 24.The witness testified that the parcel of land subject to the dispute was Oljorai Phase 1/359. She stated that the property was first registered in the name of Levionka Ole Pantungas on 29th June 2018. It was subsequently transferred to Santa Ole Pantungas by way of transmission on 27th July 2020, following Succession Cause No. 371 of 2019 at the Nakuru Court. She explained that Oljorai Phase I was a settlement scheme and that the original owner of the land was the Settlement Fund Trustees (SFT). The witness then produced a certified copy of the land's Green Card, which was admitted as Df exh 1. 25.Elaborating on the entries within the Green Card, the witness stated that the register was opened on 29th June 2018 for the parcel registered as Naivasha/Ol Jorai Phase 1/359, measuring 1.17 hectares on Map Sheet 3. According to the first entry dated 29th June 2018, the first registered owner was Ole Levionka Ole Pantungas. The second entry showed that he was issued a title deed on 29th July 2018. The third entry recorded the transmission of the land to Santa Ole Pantungas pursuant to Nakuru Court Succession Cause No. 371 of 2019. The fourth entry, dated 27th July 2020, confirmed Santa Ole Pantungas as the lawful beneficiary of the parcel of land. The fifth and final entry recorded the issuance of the title deed to Santa Ole Pantungas on 27th July 2020. 26.During cross-examination by the Plaintiff's counsel, the witness admitted that she would not know whether the land was occupied prior to 2018. She confirmed that the Settlement Fund Trustee was a government entity established after independence and served as the original owner of the land. She explained that the allocation of settlement land involves a rigorous process, and for this specific parcel, the Green Card was opened on 29th June 2018. 27.The witness clarified that a settlement officer is the custodian of the accountability list containing all the original allottees for the Ol Jorai Settlement Scheme. She explained that during the formal transfer process, a discharge of charge/transfer document from the SFT to the allottee, alongside a transfer form, must be generated by the SFT and presented to the Land Registrar to facilitate the issuance of a title deed. She stated that it was possible to obtain such a register. 28.The witness further stated that at the time she was registering the title, she was unaware that there was anyone residing on the land. She noted that she did not see any complaint or letter from the local chief, explaining that the chief's letter was addressed to the SFT rather than the Land Registry. She reiterated that the parcel of land in question was Ol Jorai Phase 1/359 and maintained that before the issuance of the title deed, no individual name was attached to that specific parcel in her registry. The witness emphasized that her role was to register titles based on documents received from the SFT, adding that it was the SFT who would be in a position to know who was physically occupying the ground. 29.During re-examination, the witness clarified that she was not an official from the Land Settlement Office. She pointed out to the court that the Land Settlement Office had not been sued in the instant matter, and that the Land Registrar, Naivasha, had been sued as the 2nd Defendant.The 2nd Defendant then closed its case. 30.The 1st Defendant’s case was also marked as closed and the parties were directed to file written submissions. 31.Subsequently, Plaintiff successfully filed an application seeking to reopen her case for purposes of taking the evidence of the sub-county land adjudication officer Mr Makori Ombaba, who then testified as PW3 to the effect that he was the Land Adjudication and Settlement Officer for Naivasha and Gilgil Sub-counties and stated that he was aware of the matter. That he had received a court order dated 6th February 2026 directing him to visit Ol Jorai Phase 1, Plot No. 359, to confirm the physical occupation of the ground and to provide a status report. 32.The witness stated that he visited the ground on 9th February 2026 and found that Ol Jorai Phase 1 Plot No. 359 was occupied by the Plaintiff, Beatrice Bonareri, and her family, who were present at the time of his visit. He noted the following developments on the property:i.Three old semi-permanent houses.ii.One semi-permanent toilet.iii.Twenty mature blue gum trees.iv.A banana plantation, pyrethrum, Napier grass, and remnants of maize harvested from the previous season. 33.The witness testified that he took photographs during the site visit and attached them to his report. Regarding the official record status, he stated that the office file indicated the plot had been allocated to one Lelionka Ole Partungas, who accepted the offer on 13th August 2018. The allottee paid KSh 2,000/= for the plot, as evidenced by receipt number B5088415, on the same date. The witness noted that, although he did not obtain official information on when the Plaintiff took possession of the land, the structures on site were visibly old. He added that the Plaintiff maintained that the plot had been allocated to her late husband. 34.Explaining the official procedure, the witness stated that once a plot is allocated, the allottee accepts the offer, makes the required payment, and a discharge follows. He noted that allocations for the Ol Jorai scheme were made in the year 2010. He confirmed that he filed his report without specifying the exact date of the Plaintiff's occupation. He highlighted a circular dated 21st January 2015, which mandated that a ground visit must be conducted before a discharge is issued to verify that the allottee is in actual occupation of the land. 35.According to the office documents, the witness observed that Plot No. 359 was yet to be formally discharged. He stated that on 10th September 2019, Lerionka Ole Partungas made a further payment of KSh 14,000/= via receipt number B6378912, after which the records were forwarded to the Director of Lands Adjudication and Settlement in Nairobi on 23rd September 2019 for the preparation of the discharge of charge and transfer documents. However, the witness noted an anomaly in the records, stating that Lerionka had died on 3rd November 2017, and a succession cause was subsequently filed at the Nakuru Chief Magistrate’s Court. Santa Ole Partungas later collected the title deed on 2nd July 2020. 36.The witness further stated that a letter from the area chief dated 8th May 2012 indicated that Jones Barake, the Plaintiff's late husband, owned land in Olosirwa Village. He noted that the Plaintiff had placed a caution on Plot No. 359 on 22nd July 2020. The witness concluded by stating that although a title deed had been issued for the land, there was no record to show that Plot No. 359 was ever discharged by the Settlement Fund Trustees. He prayed to produce his status report and its accompanying annexures as Pf exh 6 (a-s). 37.At the close of the Plaintiff’s case, parties were directed to file their written submissions wherein the State Counsel for the 2nd Defendant indicated that they would rely on the documents filed by the settlement officer.Plaintiff’s submissions. 38.The Plaintiff vide her submissions dated 23rd April 2026, raised the following issues for determination:i.Whether the Plaintiff has proved ownership of the suit landii.Whether the Defendant’s title was fraudulently or irregularly acquired.iii.Whether the Plaintiff is entitled to the reliefs sought. 39.In summary, on the first issue for determination, the Plaintiff submitted that pursuant to the provisions of Section 107 of the Evidence Act, she had discharged her burden through consistent and corroborated evidence demonstrating prior allocation, possession and development of the sui from the year 1996 to date which evidence had been supported by independent witnesses and documentary material including the Chief’s letter and elders’ confirmation. She submitted that the evidence that she had tendered remained uncontroverted. In support of her assertion, she relied on the following decided cases:i.Trust Bank Limited v Paramount Universal Bank Limited & 2 Others [2009] eKLR where the Court of Appeal had emphasized that where a party fails to call evidence in support of its case, the evidence tendered by the opposing party stands uncontroverted and the court is entitled to act on it.ii.Wreck Motors Enterprises v The Commissioners of Lands & 3 Others [1997] eKLR where the Court of Appeal had highlighted that once it is established that the Plaintiff had been allocated the land, the subsequent allocation to the Defendant was null and void. 40.She maintained that she had demonstrated prior allocation and long possession which had not been displaced; hence she had proved that the deceased was the lawful allottee and beneficial owner of the suit land. 41.As to whether the Defendant’s title had been fraudulently or irregularly acquired, she submitted that the 1st Defendant having failed to file a Defence or adduce evidence, the Defendant’s case had collapsed entirely for want of proof. That, in any case, the court-ordered report had established that the suit land had been allocated to a third party and that the 1st Defendant had obtained title after the allottee's death. That the Land Settlement Fund had confirmed the absence of discharge of charge, thus rendering the title procedurally defective. She relied on the decision in Munyu Maina v Hiram Gathiha Maina [2013] eKLR, where it was held that the proprietor must go beyond the instrument and prove the legality of his acquisition of title, and that the 1st Defendant had failed to do so. Furthermore, the Plaintiff’s long-term physical occupation constituted an overriding interest. She further relied on the following decided cases:i.Arthi Highways Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR where the Court of Appeal had emphasized that the law would not protect a title that is acquired through fraud, misrepresentation or illegality.ii.Mbui Makangu v General Mutwiri Mbui [2004] eKLR to highlight that the rights of a person in possession are overriding interests. 42.She thus submitted that the Defendant’s title is incapable of defeating the Plaintiff’s rights. 43.On the third issue for determination as to whether the Plaintiff is entitled to the reliefs sought, she submitted in the affirmative and contended that the provisions of Article 40 (6) of the Constitution deny protection to unlawfully acquired property; hence the Defendant’s title did not enjoy constitutional protection. 44.On costs, she relied on the provisions of Section 27 of the Civil Procedure Act and the decided case of Supermarine Handling Service Ltd v Kenya Revenue Authority [2010] eKLR to the effect that costs follow the event to submit that the Plaintiff was entitled to costs. 45.In summary, she submitted that the Plaintiff’s case was supported by consistent, uncontroverted evidence and an official report exposing the illegality in the Defendant’s title. That, on the other hand, the 1st Defendant had failed to rebut the instant case; thus, his title cannot stand. 46.She thus prayed that the Honourable Court be pleased to issue a declaration that the estate of the late Jones Gekara Barake is the lawful owner of Plot No. 92 now known as Naivasha/Ol Jorai Phase 1/359, order cancellation of the said title, grant permanent injunction restraining the 1st Defendant from interfering with the suit land and award costs of the suit to the Plaintiff. Determination. 47.I have considered the evidence adduced, the written submissions by learned Counsel, the authorities cited and the applicable law. Briefly, the Plaintiff's case, while acting as the administrator of the estate of her late husband, Jones Gekara Barake, was based on a claim of lawful ownership of the land parcel currently registered as Naivasha/Ol Jorai Phase 1/359 measuring 1.17 hectares, where she asserted that the 1st Defendant, Santa Ole Partungas, fraudulently and irregularly acquired the title deed to the property in 2020. 48.She anchored her case on the facts that the land originally belonged to the Agricultural Development Corporation (ADC) as part of a government settlement scheme. Her late husband was allocated the land originally designated as Plot No. 92 in 1996. 49.When she married the deceased and moved onto the land in the year 2000, the family built three semi-permanent houses, a toilet, planted 20 mature blue gum trees, established a banana plantation, and actively farmed food crops such as beans, pyrethrum, Napier grass, and maize. They had lived there continuously and uninterrupted for over 24 years. 50.She explained that official allocation letters and payment receipts were destroyed by fire during the 2007 post-election violence. However, her long-term possession was corroborated by local village elders, a neighboring farmer PW 2, and her mother-in-law (PW 3). 51.That in 2012, when the 1st Defendant first attempted to force the family off the property, the Plaintiff sought assistance from the local administration. The area chief and village elders visited the land, confirmed it belonged to the Plaintiff's family, and issued formal letters in May 2012 recognising their ownership. 52.A court-ordered ground inspection conducted on 9th February 2026, by the Land Adjudication and Settlement Officer (PW 3) officially verified that the Plaintiff and her family were in actual physical occupation of the land. The officer noted that the houses were visibly old, confirming long-term habitation. 53.However, the Land Settlement Office records revealed a major contradiction: the land registry showed the plot was allocated to one Lelionka Ole Partungas, who allegedly accepted the offer and made a payment on 13th August 2018. The records further revealed that Lelionka had already died a year prior, on 3rd November 2017. 54.According to government circulars, a "discharge of charge" document could not be issued by the Settlement Fund Trustees (SFT) without a mandatory ground visit to ensure the allottee is in physical occupation. The Land Officer confirmed that Plot No. 359 was never formally discharged by the SFT. That a succession cause was filed, and the 1st Defendant (Santa Ole Partungas) managed to get the title registered via transmission and collected the deed on 2nd July 2020. And left it with a local broker to try and sell the land. 55.That because the 1st Defendant failed to file a defence or tender any evidence to justify how he acquired the title, the Plaintiff’s claim was that his title enjoys no legal protection for which the court ought to grant her the prayers sought in her Plaint, with costs. 56.The 2nd Defendant's case was built on a technical, procedural, and statutory defence, arguing that the Land Registry acted entirely within the law based on documents provided to them, and that they have no part in the underlying land ownership dispute. The land, Naivasha/Ol Jorai Phase 1/359, was originally part of a government settlement scheme owned by the Settlement Fund Trustees (SFT) wherein the Land Registry opened the official Green Card for the property on 29th June 2018, registering Ole Levionka Ole Pantungas as the first absolute owner based on official transfer documents received from the SFT and a title deed was legally issued to him on the same day. 57.Following the death of the first owner, the land was transferred to the 1st Defendant (Santa Ole Partungas) via transmission on 27th July 2020, backed by a valid court order from Nakuru Succession Cause No. 371 of 2019. The registry acted legally by executing a court order. That if there were irregularities in how the land was allocated, the fault lies with the Land Settlement Office / Settlement Fund Trustees (SFT), who are the custodians of the master allocation lists. Because the SFT was never sued by the Plaintiff, the Land Registrar was a mere innocent bystander in the suit with no case to answer. 58.They also argued that the Plaintiff’s suit was fatally defective for non-compliance with Section 13A of the Government Proceedings Act and therefore the suit against the office of the Land Registrar cannot stand and they should be exempted from the dispute and dismiss the Plaintiff's suit against them with costs. 59.Based on the above summary, I find the issues arising for determination as being:i.Whether the 1st Defendant’s title deed (Naivasha/Ol Jorai Phase 1/359) was acquired fraudulently, irregularly, or illegally?ii.Whether the Plaintiff’s long-term, uninterrupted physical occupation and development of the land since the year 2000 established an overriding interest?iii.Is the suit procedurally incompetent or fatally defective against the 2nd Defendant?iv.Who should bear the final costs of the lawsuit? 60.On the first issue for determination, as to whether the 1st Defendant’s title deed No. Naivasha/Ol Jorai Phase 1/359, was acquired fraudulently, irregularly, or illegally, the law is very clear on the position of a holder of a title deed in respect of land. Indeed, Section 26(1) of the Land Registration Act provides as follows:“The Certificate of Title issued by the Registrar upon registration, to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all counts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of the proprietor shall not be subject to challenge, except –a.On the ground of fraud or misrepresentation to which the person is proved to be a partyb.Where the Certificate of Title has been acquired illegally un-procedurally or through a corrupt scheme 61.As may be observed, the law is extremely protective of title and provides only two instances for the challenge of title. The first is where the title is obtained by fraud or misrepresentation, to which the person must be proved to be a party. The second is where the certificate of title has been acquired illegally, unprocedurally, or through a corrupt scheme. 62.The purpose of Section 26 (1)(b) is to remove protection from an innocent purchaser or title holder. It means that the title of an innocent person is impeachable if it was obtained illegally, unprocedurally, or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The aim of Section 26 (1)(b) is to protect the true title holders from losing their titles due to subsequent transactions. 63.Indeed, the Court of Appeal in the case of Munyu Maina vs. Hiram Gathiha Maina [2013] eKLR, had held as follows:“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.” 64.In this case, the Plaintiff challenged the 1st Defendant’s title to the suit parcels of land, No. Naivasha/Ol Jorai Phase 1/359, asserting that the land originally belonged to the Agricultural Development Corporation (ADC) as part of a government settlement scheme, wherein her late husband was allocated the land originally designated as Plot No. 92 in 1996. She moved onto the land in the year 2000, and established her matrimonial home therein wherein they have lived to date. 65.That in 2012, when the 1st Defendant first attempted to force the family off the property, the Plaintiff sought assistance from the local administration. The area chief and village elders visited the land, confirmed it belonged to the Plaintiff's family, and issued formal letters in May 2012 recognising their ownership. Upon conducting a search, she discovered that the land had been registered to the 1st Defendant, who had been issued a title deed for Naivasha/Oljorai Phase 1/359 in 2012 and had left it with an individual nicknamed 'Onyambu' in Kongasis to find a buyer for the land. 66.Fraud is a serious matter which must be proved to the required standard. In Fanikiwa Limited & 3 others v Sirikwa Squatters Group & 17 others (Petition 32 (E036), 35 (E038) & 36 (E039) of 2022 (Consolidated)) [2023] KESC 105 (KLR) (15 December 2023) (Judgment), the Supreme Court had observed as follows:“…However, it is trite law that fraud which, depending on the circumstances is recognized as a criminal offence, must be pleaded and strictly proved. In addition, although the standard of proof of fraud in civil matters is not proof beyond reasonable doubt, it is higher than proof on a balance of probabilities as required in other civil claims.’’ 67.Although the Plaintiff did not distinctly plead the facts on which fraud was alleged against the 1st Defendant, yet, the evidence of the official Land Adjudication and Settlement Office (PW3) was to the effect that the plot was allocated to one Lelionka Ole Partungas, who allegedly accepted the offer and paid KSh 2,000 on 13th August 2018. However, official records confirm that Lelionka Ole Partungas died on 3rd November 2017, and that the land was transferred to Santa Ole Pantungas by way of transmission on 27th July 2020, following Succession Cause No. 371 of 2019. 68.The Legal Implication was that a deceased person lacks legal capacity to personally accept a government land offer, make payments, or have a primary title registered in his name as a living allottee in 2018. Because the primary root of the title, which was its registration of the deceased in 2018, was grounded on a fundamental falsehood, the subsequent transmission of that title to the 1st Defendant (Santa Ole Partungas) in 2020 via a succession cause was equally tainted and void. 69.Secondly, the evidence of the County Land Registrar (DW 1) was that Ol Jorai Phase 1 is a government settlement scheme originally owned by the Settlement Fund Trustees (SFT). That, according to standard land settlement procedures, before a title deed could be legally issued to an allottee, the SFT must issue a Discharge of Charge document once all conditions and payments are met. The Land Settlement Officer explicitly testified that Plot No. 359 had never been formally discharged by the Land Settlement Fund and therefore, the Land Registry issued a title deed without the statutory green light from the actual custodians of the settlement scheme, making the issuance procedurally defective and illegal. 70.Lastly, the Land Settlement Office highlighted a mandatory Ministry circular dated 21st January 2015 which strictly dictated that before any discharge document or title could issue, a mandatory ground visit was a must to verify that the allottee was in actual physical occupation of the land. Had this circular been followed, the settlement office would have discovered two things: first, that the alleged allottee was deceased, and second, that the Plaintiff and her family had been in open, exclusive occupation of the land since the year 2000. Ignoring this directive constitutes a severe procedural irregularity that invalidates the root of the title. 71.Because the Plaintiff challenged the root of the title, the evidentiary burden shifted to the 1st Defendant to prove that the allocation to the deceased Lelionka in 2018 was clean and lawful. The 1st Defendant failed to file a Statement of Defence, failed to cross-examine the Plaintiff's witnesses, and failed to tender any evidence. Since the 1st Defendant failed to call evidence, the Plaintiff’s evidence stands uncontroverted, and the court accepts the Plaintiff's narrative that the title was obtained surreptitiously and without colour of right. 72.The Court of Appeal in the case of Munyu Maina vs. Hiram Gathiha Maina [2013] eKLR, held as follows:“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.” 73.In Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment), the Supreme Court observed as follows:“Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible…Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired….” 74.I find that the 1st Defendant’s title deed to Naivasha/Oljorai Phase 1/359, cannot enjoy the constitutional protections of property rights under Article 40 of the Constitution. Because it was generated for a deceased person, skipped the mandatory SFT discharge process, ignored ground verification protocols, and actively sought to dispossess a historical occupant, the title deed was acquired irregularly, illegally, and constructively through fraud, and is therefore a prime candidate for cancellation by the court. 75.On the second issue for determination as to whether the Plaintiff’s long-term, uninterrupted physical occupation and development of the land since the year 2000 established an overriding interest? 76.Section 30(g) of the Registered Land Act, Cap 300 (now repealed) provided that the rights of a person in possession or actual occupation were overriding interests as follows:“Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted in the register (a) the rights of a person or actual occupation of land to which he is entitled in right only by such possession or occupation, save where inquiry is made of such person and the rights are not disclosed” 77.The Supreme Court in the case of Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) (28 December 2023) (Judgment), while deciding on whether a constructive trust can be imported into a land sale agreement to defeat a registered title, held as follows:‘’…While sections 25, 26 and 28 of the Land Registration Act recognize that the rights of a registered proprietor of land are absolute and indefeasible, these are only subject to rights and encumbrances noted in the register and overriding interests. The overriding interests include trusts. In our view, and in the absence of any limitation as to the trusts, this includes constructive trusts. Applying the provisions of article 24 of the Constitution therefore, the limitation of the right to property is provided under law, and includes a constructive trust.We have found that the doctrines of equity are part of our laws by virtue of section 3 of the Judicature Act. And while the Constitution entitles every person to the right to property at article 40, this right is not absolute. Article 24 provides that a right cannot be limited except by law. We have also established that, while sections 25 and 26 of the Land Registration Act provide for the rights of a proprietor and that the certificate of title is conclusive evidence of proprietorship, section 28 provides that the registration is subject to overriding interests. One of these overriding interests is trust, which includes constructive trust.We have also established that constructive trusts can arise in various circumstances, including in land sale agreements. Trust is an equitable remedy which is an intervention against unconscionable conduct. Where the circumstances of the case are such that it would demand that equity treats the legal owner as a trustee, the law will impose a trust. It is imposed by law whenever justice and good conscience require it. On this issue and for the reasons given above, we therefore find that a constructive trust can be imported into a land sale agreement to defeat a registered title.”(my emphasis) 78.The courts have consistently held that a registered title cannot be used as a shield to arbitrarily evict historical occupants who have acquired equitable rights through long possession. From the above finding, it is trite that the law supports the importation of a constructive trust where required by equity and good conscience that defeats the claim of the registered proprietor under the framework of the Land Registration Act and the Constitution where the Supreme Court reaffirmed that the rights of a person in actual possession of land are overriding interests that cannot be easily extinguished by the mere issuance of a certificate of title to a third party. 79.The Evidence of the Land Adjudication and Settlement Officer (PW 3) officially verified that the Plaintiff had constructed three semi-permanent houses, a toilet, and planted 20 mature blue gum trees, a banana plantation, pyrethrum, and crops, which developments served as "constructive notice" to the whole world, including the 1st Defendant and the Land Registrar. In land law, a party cannot claim to be an innocent purchaser or a bona fide title holder if they failed to look at the ground and notice that someone else had established a permanent matrimonial home there for decades. Her overriding interest remained unbroken because the 1st Defendant never took physical possession to displace the Plaintiff. 80.Under the doctrine of adverse possession derived from Section 7 of the Limitation of Actions Act, uninterrupted, exclusive, and non-permissive occupation of land for a period exceeding 12 years effectively extinguishes the legal title of the registered owner. The Plaintiff has occupied the land for over 24 years from 2000 to the 2024–2026 court proceedings, far surpassing the statutory 12-year threshold. 81.I find that the Plaintiff's continuous, exclusive, and open occupation and development of the land for over two decades meets all the legal requirements of an overriding interest under Section 28(h) of the Land Registration Act. This interest effectively binds the land, overrides the 1st Defendant's defective certificate of title. 82.On the third issue for determination as to whether the suit was procedurally incompetent or fatally defective against the 2nd Defendant, the provisions of Section 13A of the Government Proceedings Act provide as follows:‘’No proceedings against the Government shall lie or be instituted until after the expiry of a period of thirty days after a notice in writing in the prescribed form have been served on the Government in relation to those proceedings.(2)The notice to be served under this section shall be in the form prescribed in the Third Schedule to this Act and shall include the following particulars—(a)the full names, description and place of residence of the proposed plaintiff;(b)the date upon which the cause of action is alleged to have accrued;(c)the name of the Government department alleged to be responsible and the full names of any servant or agent whom it is intended to join as a defendant;(d)a concise statement of the facts on which it is alleged that the liability of the Government and of any such servant or agent has arisen;(e)the relief that will be claimed and, so far as may be practicable, the value of the subject matter of the intended proceedings or the amount which it is intended to claim.(3)The provisions of this section shall not apply to such part of any proceedings as relates to a claim for relief in respect of which the court may, by virtue of proviso (i) to section 16(1), make an order declaratory of the right of the parties in lieu of an injunction.’’ 83.The Statutory Requirement: Section 13A mandates that no civil action can be instituted against the Government or a public officer in their official capacity unless a mandatory 30-day statutory notice has been served upon the Attorney General or the respective government department before filing the suit. 84.Since there was no proof by the Plaintiff that she had served this 30-day notice prior to October 2020, the suit against the 2nd Defendant was procedurally incompetent and fatally defective. However, the 2nd Defendant’s argument was that they were mere innocent bystanders because the Land Registry only acted as an administrative conduit for documents generated by the Settlement Fund Trustees (SFT) cannot defeat the suit automatically for the misjoinder or non-joinder of parties. 85.This is because the Plaintiff is seeking the cancellation of Title Deed No. Naivasha/Ol Jorai Phase 1/359 and a rectification of the land register. Under the Land Registration Act, 2012, only the Land Registrar holds the statutory power to open Green Cards, issue titles, alter the register, or implement a court order for cancellation and therefore, while the registry may not have committed the fraud, they are a necessary party for the execution of the court’s ultimate remedies. 86.Consequent to the findings above, judgment is hereby entered for the Plaintiff against the 1st Defendant in the following terms:i.A declaration is hereby issued that the estate of the late Jones Gekara Barake is the lawful allottee and beneficial owner of all that parcel of land originally known as Ol Jorai Settlement Scheme Phase I Plot No. 92, now registered as Naivasha/Ol Jorai Phase 1/359 measuring 1.17 Hectares.ii.The County Land Registrar, Naivasha, shall within 30 days of this Judgement, cancel the Title Deed issued in respect of Land Parcel No. Naivasha/Ol Jorai Phase 1/359 currently held in the name of Santa Ole Partungas, and to rectify the Land Register/Green Card to reflect the Estate of Jones Gekara Barake as the lawful proprietor.iii.An order of Permanent Injunction is hereby issued restraining the 1st Defendant, his agents, servants, and/or any person claiming under him from selling, transferring, charging, disposing of, or in any other manner interfering with the Plaintiff’s quiet possession and occupation of Land Parcel No. Naivasha/Ol Jorai Phase 1/359.iv.Costs of this suit are awarded to the Plaintiff, at a lower scale to be paid by the 1st Defendant. DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAIVASHA, THIS 9TH DAY OF JULY 2026.M.C. OUNDOENVIRONMENT & LAND COURT– JUDGE