https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3216

Kasanga v Ongweso & 2 others (Environment and Land Case E044 of 2022) [2026] KEELC 3216 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEELC 3216 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Case E044 of 2022 LC Komingoi, J May 21, 2026 Between Catherine Naisonoi Kasanga Plaintiff and Joash Nyamache Ongweso 1st Defendant The District Land Registrar, Ngong 2nd Defendant Teresia Ngini Kasanga 3rd Defendant Judgment 1.By the plaint dated 25th May, 2023 the plaintiff has filed this suit against the defendants jointly and severally seeking the following reliefs:a.A declaration that the actions of the 2nd Defendant to re-issue the title deed for land parcel No. Ngong/Ngong/29225 on the basis of a forged National ID and forged KRA PIN Certificate and any other forgeries is illegal, null and void ab initio.b.A declaration that the action of the 2nd Defendant to accept the transfer forms for the transfer of land parcel No. Ngong/Ngong/29225 to the 1st Defendant on the basis of a forged ID and KRA PIN Certificate was irregular, fraudulent and illegal ab initio.c.The transfer of land parcel No. Ngong/Ngong/29225 to the 1st Defendant be and is hereby declared fraudulent, illegal, null and void and the same is hereby revoked.d.An order do issue compelling the 2nd Defendant to remove all entries on the land register of land parcel No. Ngong/Ngong/29225 commencing with the re-issuance of the title deed on 21st April 2011 and all subsequent entries thereon and to restore the register and the Plaintiffs title deed as it were before the fraudulent entries.e.An order do issue commanding the 3rd Defendant to immediately vacate the Plaintiff's land parcel No. Ngong/Ngong/29225.f.A permanent injunction do issue restraining the defendants jointly or severally from interfering with the Plaintiff title to or possession of plaintiffs land parcel No. Ngong/Ngong/29225.g.The OCS Ngong Police Station be ordered to supervise the enforcement of prayer5 above.h.The Defendant be ordered to jointly and severally pay the Plaintiff's costs of this suit. 2.The 1st Defendant in opposition to the plaint filed his statement of defence dated 22nd January, 2024. 3.It was the 1st Defendant’s contention that he undertook all the necessary due diligence in acquisition of the suit parcel. He denied any allegations of fraud against him that may have been done by the 3rd Defendant. 4.The 2nd Defendant filed a statement of Defence dated 27th September 2024. It is his case that if there was any registration done regarding the suit parcel, the same was conducted in accordance with the law. 5.Despite service, the 3rd Defendant did not enter appearance, and/or file any Statement of Defence. She did not participate in these proceedings. EVIDENCE OF THE PLAINTIFF 6.PW1,Daniel M. Gutu testified that he is a forensic document examiner with 17 years’ experience. He testified that he previously worked with the DCI for 14 years on the same position. 7.It was his testimony that he was trained and certified by the Regional Forensic Laboratories and National Rikat University in Khartoum Sudan. 8.He further testified that on 21st February, 2024, he received instructions from M/S Wambugu Advocates to verify disputed signatures. He testified that he received the following documents:1.Copy of Sale Agreement dated 13th September, 20102.Transfer forms for LR No. Ngong/Ngong/29225 marked A1, A2 questionnaire documents, A3 specimen signatures of the Plaintiff.3.A4, A5 Replying affidavit dated 14th December, 2021 and verifying affidavit dated 2nd May, 2023. 9.They were required to examine the signatures on questioned documents A1, A2 if they were signed by the same author when compared with those marked A3, A4 and A5. 10.He testified that he did the examination and the signatures were not similar as not made by the same author. He further testified that the questioned signatures were not signed by the Plaintiff. 11.He testified that there were huge disparities amongst the signatures. He produced the Report dated 23rd February 2024 and the Annexures as Exhibit P1 and P2 respectively. 12.On cross examination by the 1st Defendant’s Counsel, he stated that he did not examine the signature of the 1st Defendant. 13.On re-examination he reiterated that the Plaintiff did not sign the sale agreement or transfer. 14.PW2 Catherine Naisonoi, Kasanga adopted her witness statement as her evidence in chief. She also produced the documents in the Bundle of Documents dated 25th May 2023 as Exhibits P4 to P22 in this case. She told the Court that she is the registered owner of a parcel known of LR No.Ngong/Ngong/29225. She told the Court that she did not transfer or sell to any one not even the 1st Defendant. She prays that the land do revert to her name. 15.When cross examined by Mr. Orina for the 1st Defendant, she stated that she got the land as a gift from her mother.She further stated that her mother passed on in the year 2014 and that the 3rd Defendant is her sister. She said she reported the matter to Ngong Police Station when she realized the land was in the 1st Defendant’s name.She stated that the 1st Defendant did not forge the documents. She further stated that the 3rd defendant is in occupation of the suit property. 16.On cross examination by Ms. Aluoch for the 2nd Defendant she stated that the Land Registrar effected transfer in favour of the 1st Defendant and that the Land Registrar did not commit any fraud. 17.On re-examination, she reiterated that she did not give the 3rd Defendant permission to transfer the land neither did she give her the legal documents. The 3rd Defendant therefore did not have capacity.She also stated that the 1st defendant participated in the fraud though the 3rd Defendant is the one on the suit property. She prays that the title do revert to her name. 18.PW3, Elizabeth Tuga Yego, a representative of the Commissioner Domestic Taxes of Kenya Revenue Authority told the court that Kenya Revenue Authority PIN No.A00xxxx3Q was not registered in their system. She produced the affidavit together with the screen shot as exhibits P19. 19.When cross examined by Mr.Orina for the 1st Defendant, she told the court that only one Kenya Revenue Authority PIN was verified and that the one for the 1st Defendant was not verified. 20.PW4, Mahmud Dida Diba the Chief of Embulbul Location stated that he knew the Plaintiff and the 3rd Defendant well.He said he got a report that the 3rd Defendant had sold the plaintiff’s land to the 1st Defendant. He further stated that he summoned the parties to his office but they could not agree. He stated that the 3rd Defendant was charged with an offence before Kibera Law Courts. He also stated that he involved the elders who told the 1st Defendant that he had been misled. 21.On cross examination by Mr. Orina for the 1st Defendant, he told the court that he got a complaint from the plaintiff. He summoned the 1st Defendant, who went to his office. He admitted that the 1st Defendant was not charged with any criminal offence.On cross examination by Ms Achola for the 2nd Defendant he told the Court that he could not recall if the Land Registrar testified in the Criminal case. 22.On re-examination, he told the court the land belongs to the plaintiff and it is in his area of jurisdiction. 23.PW5 Filbert Liwa, a finger print officer told the court that the identity card number used in the transaction did not belong to the Plaintiff. He produced the Report as exhibit P23. 24.On cross examination by Mr. Orina for the 1st Defendant, he told the Court that he did not receive the identity Card for Joash Nyamache Ongweso (1st Defendant) for analysis. He further stated that the Identity Card used on the transaction belonged to Teresia Ngini Kasanga. Evidence of the Defendants 25.DW1 Joash Nyamache Ongweso adopted his witness statement dated 22nd January 2024 as his evidence in chief. He also produced the documents in his Bundle of Documents dated 22nd January 2024 as exhibits D1 to D8 respectively. He stated that he followed due process in acquiring the suit property. He further stated that he has not been charged with any Criminal offence. He prays that the Plaintiff’s suit be dismissed with costs. 26.On cross examination counsel for the Plaintiff, he told the court that the 3rd Defendant was in occupation of the suit property.When shown a photograph in the transfer of land form, he confirmed the same belongs to the 3rd Defendant. 27.He admitted that he had never met the Plaintiff before. He stated that he was not aware the Identity Card used in the transaction was not genuine. He further stated that he forwarded the documents to his Advocate who undertook the transaction and that he paid Kshs. 650,000/= as the purchase price in cash. 28.He also stated he did a search at the Land Registry and confirmed the land belonged to Catherine Naisonoi Kasanga. He admitted that he has put up a home on a different portion from where the 3rd Defendant lives. He denied that he bought land from a fraudster and reiterated that he has not been charged with any Criminal offence. 29.On cross examination by counsel for the 2nd Defendant, he told the Court he bought land from the Catherine Naisonoi Kasanga for Kshs650,000/=. They entered into a sale agreement and forwarded all the documents to the Land Registry, whereupon a title deed was issued in his name. 30.On re-examination, he told the court the Plaintiff’s Identity Card was presented by the seller. That his documents were genuine. He also stated that the 3rd Defendant is not a stranger but a sister to the Plaintiff. 31.DW2, Festus Murimi the Land Registrar, attached to Ngong Land Registry, adopted his witness statement dated 30th July 2024 as his evidence in chief . He also produced the exhibits in his Bundle of Documents as exhibits in this case. 32.On cross examination by counsel for the Plaintiff, he admitted that there were anomalies on the documents, which were not counter signed by the Land Registrar. In reference to a transfer form from Catherine Naisonoi Kasanga to Joash Nyamache Ongweso, he admitted a diligent Land Registrar would not effect such a Transfer. He also stated there was no consent from the Land Control Board validating the said transfer. He stated the Plaintiff’s documents were not on the parcel file. He confirmed that a restriction had been registered pending investigation of the transfer from Catherine Naisonoi Kasanga to Joash Nyamache Ongweso. He also stated that he had no report from the Directorate of Criminal Investigation regarding the said complaint. 33.On cross examination by Counsel for the 1st Defendant, he told the court that the documents forwarded to the Land Registry were from one Catherine Naisonoi Kasanga. He also stated that the title deed issued to the 1st Defendant is a valid title on the face of it. 34.At the close of the oral testimonies, Parties tendered final written submissions. The Plaintiff’s Submissions 35.Counsel for the Plaintiff filed his submissions dated 26th November, 2025 and identified the following issues for determination:a.Whether the re-issuance/replacement of the title deed by the 2nd Defendant to the 3rd Defendant was unlawful, illegal, null and void.b.Whether the transfer from the 3rd Defendant to the 1st Defendant was unlawful, illegal, null and void.c.Whether the Plaintiff should be granted the reliefs sought.d.Whether eviction orders should issue against the 3rd Defendant.e.Who should bear the costs of this suit. 36.On the first issue, it was his submission that the Plaintiff’s evidence that she never lost her title. He further submitted that the 2nd Defendant was complicit in the fraud and publication and issuance of the replacement title based on forged documents. 37.Counsel relied on Section 33 of the Land Registration Act and the case of Republic V Kisii County Land Registrar & Another; SBM Bank (Kenya) Limited (Exparte); Kebisa & another (Interested Parties) (Miscellaneous Application) 1 of 2020) [2023] (KLR). 38.He submitted that where a title deed is lost, the proprietor may apply for issuance of a new title but only after he has availed evidence that the same is lost or destroyed. He also submitted that the 2nd Defendant did not avail any evidence of loss of the said title. He added that there was no police abstract, statutory declaration, publication in the local dailies. 39.Counsel submitted that the ID number did not correspond to the Plaintiff’s ID number already in the file. He submitted that the replacement of the title was fraudulently done. He cited the case of Estate of Mugo Wamaru (Deceased) (Succession Cause 701 of 2022) [2023] KEHC 2043 (KLR) 40.On the second issue, it was his submission that the transfer to the 1st Defendant was unlawful as evidenced from the evidence of PW1 as well as the Land Registrar. He relied on Section 26 of the Land Registration Act and submitted that the process through which the title transitioned to the 1st Defendant was fraudulent. 41.It was his submission that the Land Registrar deliberately ignored mandatory documents necessary to lawfully effect a valid transfer. He relied on the case of Choi & 3 Others V Goldstein Group Services Limited & 2 Others (Environment and Land Case 1073 of 2014) [2025] KEELC 7234 (KLR). 42.On the third issue, while submitting in the affirmative, counsel argued that all the 5 witnesses that testified supported the fact that the replacement title and the subsequent transfer to the 1st Defendant was procured through fraud. He added that the Land Registrar effected the transfer without the LCB consent and an incomplete transfer form. He cited Section 80 of the Land Registration Act. 43.On the fourth issue, he submitted that the 3rd Defendant was served with the summons to enter appearance but failed to do so. He submitted that she did controvert the Plaintiff’s claim. 44.It was his submission that the 3rd Defendant had illegally occupied the suit property which evidence was corroborated by the 1st Defendant. He submitted that the Plaintiff was therefore entitled to the relief of eviction sought. 45.On the final issue of costs, counsel urged the court to order that the Defendants bear the costs of this suit. The 1st Defendant’s Submissions 46.Counsel filed his submissions dated 23rd February, 2026 where he gave a background of the case and identified two issues for determination:i.Whether the Plaintiff proved fraud against the 1st Defendantii.Who should bear the costs of the suit. 47.On the first issue, he submitted that it was not in dispute that the 3rd Defendant was in occupation of the suit parcel and that the Plaintiff and 3rd Defendant are sisters. 48.He relied on the Court of Appeal case of Kinyanjui Kamau V George Kamau Njoroge [2015] eKLR and submitted that despite the Plaintiff’s allegation of fraud, no evidence was tendered to prove the same. He submitted that the Plaintiff instead adduced expert evidence on how the 3rd Defendant fraudulently forged her ID and KRA pin. 49.It was his submission that none of the Plaintiff’s witnesses led evidence that suggested that the documents adduced by the 1st Defendant were forged and/or fraudulently obtained. He relied on the case of Associated Electrical Industries Ltd V William Otieno 2004 KEHC 982 (KLR) 50.He submitted that the Plaintiff failed to prove fraud against the 1st Defendant and therefore she was not entitled to the reliefs sought. He added that the suit property was procured through misrepresentation of the 3rd Defendant to the 1st Defendant. 51.On the final issue, he urged the court to order that the 3rd Defendant bears the costs of the suit. The 2nd Defendant’s Submissions 52.Counsel filed her submissions dated 19th February, 2026 and identified two issues for determination;a.Whether the 2nd Defendant acted within its statutory mandate and whether the Registrar owes a duty to authenticate documents presented for registrationb.Who should bear the costs of the suit 53.On the first issue, he submitted that the Plaintiff’s claim that re-issuance of the title by the 2nd Defendant was fraudulently done was anchored on the assertion that the Registrar either failed to detect or ought to have detected the alleged forgery. 54.He submitted that the 2nd Defendant testified that in ordinary discharge of its statutory functions, it relies on certified copies of ID presented during registration and proceeds to register the same. 55.He added that the Registrar does not conduct forensic interrogation or independent authentication of the documents. It was his submission that he/she was only duty bound to register land according to the documents presented before him and not any other variation. 56.He relied on Section 107 of the Evidence Act and the case of Vijay Morjaria V Nasingh Madhusingh Darbar & Another [2000] eKLR and Kinyanjui Kamau V George Kamau [2015] eKLR. He submitted that the Plaintiff has not demonstrated that the 2nd Defendant had knowledge of any alleged forgery participated in or colluded with any party or that it acted outside its statutory mandate. 57.On the final issue he submitted that the Plaintiff failed to prove liability on the part of the 2nd Defendant and therefore urged the court to dismiss the suit with costs. Analysis and DeterminationThis court has considered the pleadings, the evidence on record, the written submissions, and the authorities cited. The issues for determination are:i.Whether the Plaintiff has proved fraud against the Defendants.ii.Whether the Plaintiff is entitled to the reliefs sought in the plaint dated 25th May, 2023iii.Who should bear the costs of the suit? i. Whether the Plaintiff has proved fraud against the Defendants 58.It was the Plaintiff’s case that she was the lawful registered owner of LR No Ngong/Ngong/29225and a title deed issued to her on 12th November, 2002. It was her testimony that the 1st Defendant in collusion with the 2nd and 3rd Defendants fraudulently caused the suit property to be transferred to himself. 59.Section 107 of the Evidence Act provides:“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.” 60.Section 109 of the same Act provides:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.” 61.It is this court’s view that the onus lies on the Plaintiff to prove the same having pleaded the particulars of fraud under paragraph 5 of her plaint. 62.It was her case that she never authorized the 3rd Defendant to sell the suit parcel to the 1st Defendant. She called expert witnesses who corroborated her testimony. PW1 a document examiner confirmed that the signatures on the transfer forms did not conform to that of the Plaintiff. 63.PW3 an officer with the Kenya Revenue Authority testified that the KRA pin number A003924883Q used for the transfer of the suit parcel to the 1st Defendant was not authentic. PW5 an officer with the National Registration Bureau also produced a report (PEX 23) which confirmed that the ID number used by the 3rd Defendant was fraudulent and did not belong to the Plaintiff. 64.Notably, the evidence of the expert witnesses was not challenged by the Defendants. It was the 1st Defendant’s case that he has been in quiet possession of the suit parcel for five years until 2015 when he discovered that the person he had dealt with in acquisition of the suit parcel was the Plaintiff’s sister, the 3rd Defendant. 65.The 1st Defendant contends that there was no evidence by the Plaintiff which suggested that any of the documents produced by him were fraudulently obtained. 66.DW2, the Land registrar testified that they relied on Advocates to authenticate copies of Identity Card and the Kenya Revenue Authority Pin submitted when registering He also confirmed that the documents that were used to apply for the re-issuance of the title deed was incomplete and admitted that the err was no consent from Land Control Board for the transfer of the suit parcel. That notwithstanding, the 2nd Defendant nonetheless proceeded to register the title. 67.The 2nd Defendant argued that it only acted within the confines of its statutory mandate and that the Land Registrar was not required to authenticate identity documents beyond the certified copies presented. 68.The Court of Appeal in Mombasa, Civil Appeal No. 312 of 2012- Emfil Limited Vs Registrar of Titles Mombasa & 2 others [2014] eKLR held as follows:“Allegations of fraud are allegations of a serious nature normally required to be strictly pleaded and proved on a higher standard than the ordinary standard of balance of probabilities”. 69.Section 26 (1) of the Land Registration Act provides that;“The certificate of title issued by the registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restriction and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge.Except-a.On the ground of fraud or misrepresentation to which the person is proved to be a party; orb.Where the certificate of title has been acquired illegally, un procedurally or through a corrupt scheme " 70.Further, in RG Patel V Lalji Makanji (1957) EA 314 the court expressed itself as follows:“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require prove beyond reasonable doubt, something more than a mere balance of probabilities is required” 71.It is this court’s view that from the evidence adduced, it is not in dispute that the whole exercise in the title being transferred to the 1st Defendant was fraudulent. It is a fact that the Plaintiff went deeper in proving the allegations of fraud against the Defendants and this could be seen from the evidence by the experts whose evidence remained unshaken. 72.It is my opinion that the threshold of proof of fraud and/or participation of the same on the part of the Defendants was met as the same was proved to the required standard. 73.In addition, in as much as the 1st and 2nd Defendant disputed that they were not involved in any of the fraudulent acts, the marks of fraud were left all over. It was quite unfortunate that the 3rd Defendant never testified on any of the fraud allegations despite the 1st Defendant blaming her for the same. 74.In the case of Alice Chemutai Too V Nickson Kipkurui Korir & 2 others [2015] KEELC 151 (KLR) the court held as follows:“It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party; or where it is procured illegally, unprocedurally, or through a corrupt scheme. Where one intends to impeach title on the basis that the title has been procured by fraud or misrepresentation, then he needs to prove that the title holder was party to the fraud or misrepresentation.” 75.Section 80 (1) of the Land Registration Act provides as follows:“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.” 76.Consequently, the 1st Defendant’s title herein was certainly procured through a fraud. It is this court’s view that the 1st Defendant therefore holds a title that was fraudulently acquired and his title is thus impeachable under the provisions of Section 26 (1) (b) of the Land Registration Act. (ii) Whether the Plaintiff is entitled to the relief sought in the plaint dated 25th May, 2023 77.The upshot of the above is that having established that the Plaintiff proved fraud, it is this court’s view that she is entitled to the prayers sought in the plaint. 78.This court proceeds to order the cancellation of the title in the 1st Defendant’s name. That the 2nd Defendant should proceed to cancel the entry in the register indicating that the 1st Defendant is proprietor. 79.In conclusion, I find that the Plaintiff has established her case on a balance of probabilities as against the Defendants jointly and severally. 80.Accordingly, judgment is entered in favour of the plaintiff as against the Defendants jointly and severally as follows: -a.That a declaration be and is hereby issued that the action of the 2nd Defendant to re-issue the title deed for Land known as LR No. Ngong /Ngong/29225 on the basis of forged National Identity Card and Kenya Revenue Authority PIN Certificate is illegal, null and void ab initiob.That a declaration be and is hereby issued, that the action of the 2nd Defendant in accepting transfer forms for the transfer of land known as LR.No.Ngong/Ngong/29225 to the 1st Defendant was irregular, fraudulent and illegal ab initio.c.That a declaration be and is hereby issued that the transfer of Land known as LR No Ngong/Ngong/29225 was fraudulent, illegal null and void and the same is hereby revoked.d.That the 2nd Defendant is hereby directed to remove all entries on the Land Register of LR No. Ngong/Ngong/29225 commencing with the reissuance of the title deed on 21st April 2011 and all subsequent entries thereon and to restore the register and the Plaintiff’s title deed within sixty (60) from the date of this judgment.e.That an order is hereby issued directing the 3rd Defendant to vacate the suit property forthwith in default the Plaintiff do use lawful means to evict her.f.That an order of permanent injunction is hereby issued restraining the Defendants from interfering with the Plaintiff’s title to and/or possession of the suit property, LR No.Ngong/Ngong/29225.g.That the OCS Ngong Police Station is hereby ordered to support the enforcement of prayer Number (e) above.h.That the 3rd Defendant do bear costs of the suit. JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 21ST DAY OF MAY 2026.L KOMINGOIJUDGEIn presence of :-Mr Eredi for the PlaintiffMs Adhiambo for Mr. Orina for the 1st DefendantMs Mbatiany for Ms Wanjiru for the 2nd DefendantNo appearance for the 3rd DefendantCourt Asssitant : Derick/Irene