https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/498

**REPUBLIC OF KENYA** **IN THE MAGISTRATE COURT OF KENYA AT LAMU COUNTY** **COURT NAME: LAMU MAGISTRATE COURT** **CASE NUMBER: MCELC/E008/2023** **CHARITY NKIROTE MAINA VS KOMORA BUTE** **JUDGMENT** 1. Few legal disputes test the integrity of a land registration system more profoundly than one in which several parties stand before the Court, each clutching an apparently valid title to the same parcel of land and each insisting that the law is on their side while the others’ is invalid. This matter presents precisely that predicament. On one hand, the Plaintiff asserts ownership through a leasehold title known as **L.R. No. 12852/243**, issued on 27th January 2020 and allegedly traceable to a Letter of Allotment issued to her late husband on 29th October 1986. On the other hand, the 1st and 2nd Defendants anchor their claim on a freehold title known as **Lamu/Mokowe New Township/1227**, issued on 4th November 2022 pursuant to a government-sanctioned land adjudication and regularization exercise undertaken in 2019 in favor of bona fide occupants of the area. The plaintiff’s lease overlaps several freehold titles and public roads issued during the government-sanctioned land adjudication and regularization exercise undertaken in 2019. 2. The 3rd Defendant filed his defense dated 15th March 2024 seeking for dismissal of the Plaintiff’s suit with costs. The 4th Defendant neither filed their defense nor did they participate in the present proceedings. The 5th and 6th Defendants entered appearance and filed their respective defenses but did not participate in the proceedings. 3. The complexity of this dispute is underscored by the nature and effect of the reliefs sought by the respective parties. Through her Amended Plaint dated 23rd October 2023, the Plaintiff seeks, among other reliefs, a declaration that she is the absolute and lawful proprietor of **L.R. No. 12852/243 as delineated on Land Survey Deed Plan Number 433351** **originally known as UNS. Plot No. 88 Mokowe Town,** , a permanent injunction protecting her alleged proprietary rights, the revocation of the titles issued to the 1st to 4th Defendants, their eviction from the suit property with police assistance, and an award of general and exemplary damages for trespass. 4. Conversely, by their Amended Statement of Defense and Counterclaim dated 14th February 2024, the 1st and 2nd Defendants seek the dismissal of the Plaintiff’s suit, a declaration affirming them as the lawful proprietors of **Lamu/Mokowe New Township/1227**, the cancellation and revocation of the Plaintiff’s leasehold title, and a permanent injunction restraining the Plaintiff from interfering with their possession, occupation, and ownership of the land. 5. The Court is not merely confronted with rival documentary claims to ownership over the land in issue; but in substance is invited to determine which of two competing claims of title, each ostensibly emanating from organs of the State and each claiming legal legitimacy, can survive factual, legal and judicial scrutiny. In undertaking this task, the Court is not called upon to invoke the Solomonic proposal to divide the land, but rather to identify the lawful proprietor by interrogating the root, legality, and procedural integrity of the processes through which the competing titles came into existence. 6. The starting general legal position in law is now reinforced by the Highest court in the land the Supreme court in now famous edict “tracing root of title” so as to ascertain is the legality and propriety of the process by which a title was acquired. 7. Plaintiff’s Issues for Determination 8. Who is the lawful owner of the suit property? 9. Whether the 1st Defendant’s counterclaim is merited? 10. What orders commend themselves herein? 11. 1st and 2nd defendants Issues for Determination; 12. Whose title, between the Plaintiff and the Defendants, was legally acquired? 13. What orders commend themselves in this suit? 14. Who shall bear the costs of the suit? 15. 3rd Defendant Issues for Determination 16. Whether the 3rd Defendant lawfully acquired Land Parcel Lamu/Mokowe Township/1228; 1. Whether the Plaintiff is entitled to the reliefs sought; 2. Who should bear the costs of the suit? 3. Upon distilling the above three sets of issues the core issue that this Court is called upon to unravel in the face of these competing claims is like a modern-day contest reminiscent- though only in principle, of the ancient dilemma that confronted King Solomon. Just as the two women each claimed the same child, the Plaintiff and the Defendants before this Court each lay claim to the same parcel of land or overlapping titles issued under the authority of the State but under different land registration regimes. Each contends that his or her title is the genuine and lawful one while simultaneously impugning the legality and validity of the other. is therefore whose title, between the Plaintiff’s and the Defendants, was legally acquired and valid and which orders issue pursuant to the finding on this core issue? 4. I have keenly considered the evidence tendered by the parties herein as well as the respective submissions. From both sides Section 26 (1)(b) of the Land Registration Act, a title is considered valid and can only be challenged as per the said section which is reproduced hereunder: *26(1) 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, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge except-* 1. *On the grounds of fraud or misrepresentation to which the person is proved to be a party; or b) Where the certificate of title has been acquired illegally un-procedurally or through a corrupt scheme*. 2. That the above provision of law qualifies the doctrine of indefeasibility of title by providing that a certificate of title, though prima facie evidence of ownership, is not immune from challenge where it has been acquired illegally, unprocedural or through a corrupt scheme. In effect, the law shifts the inquiry from mere possession of a title to the integrity of its root, allowing courts to interrogate the process leading to registration and to impeach titles tainted by illegality even where the holder may not be directly implicated in wrongdoing. 3. The Supreme Court of Kenya decision in ***Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023)*** qualified the Court of Appeal findings in in ***Munyu Maina v Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR,*** where the Court held as follows; Where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register. 4. The above position in law placing a positive burden on the registered proprietor to go beyond mere production of the certificate of title and demonstrate the legality, procedural propriety, and good faith underpinning its acquisition. 5. In the present case, it is a contest involving two competing titles and Priority of registration, while relevant, is not in itself conclusive of ownership, and the law imposes upon the claimants the obligation to demonstrate the root and legality of her title once the same is brought into question. 6. Guided by Section 26(1)(b) of the Land Registration Act and the holding in Munyu Maina v Hiram Gathiha Maina, the Plaintiff is required to go beyond the mere production of her title deed and establish that the process leading to its acquisition was lawful, procedural, and free from fraud or illegality. 7. The plaintiff submitted that in the absence of impeachment of her title through laid down doctrines, then the Plaintiff’s title being the first in time retains its prima facie validity and protection. 8. The evidence of the plaintiff captured in her witness statement dated 23rd October 2023 is that she is the legal registered proprietor entitled to peaceful enjoyment and exclusive possession of the parcel of Land known as Land reference 12852/243 as delineated on land Survey Plan Number 433351 comprising and measuring approximately 0.1401 Hectares. The Plaintiff produced a copy of certificate of title dated 27 January 2020 (Exhibit 8) in the list of documents dated 18 July 2023. It is her case that she acquired the suit property which was originally known as un-surveyed plot no. 88 Mokowe being as an inheritance from her late husband Johnson Justus Maina who died intestate on 10 January 2015. That her late husband’s estate lawfully acquired proprietary rights over the suit property through a letter of allotment issued by the then Department of Lands on 29th October 1986, which constituted the foundational basis of the title. The allotment was expressly subject to specified conditions, including the payment of a cumulative stand premium and other charges amounting to Kenya Shillings Three Thousand Eight Hundred and Sixty-Six and Seventy Cents (Kshs. 3,866.70). That she duly paid as per Receipt Serial No. B 395132 dated 19th February 1988 produced in evidence by Elias Muthoni Kaburu, the Deputy Director, Land Administration. That this is full compliance with the terms of allotment. Her submission is that payment of charges outside the stipulated timelines in the letter of allotment does not in law invalidate the Plaintiff’s root of title, particularly in the absence of any formal revocation of the allotment. 9. The plaintiff further submitted relying on the testimony of the Deputy Director of Land Administration that those payments are routinely accepted outside the prescribed timelines, thereby demonstrating an administrative practice that does not treat time as of the essence in a manner that automatically extinguishes rights. That therefore once such payment is received and acknowledged by the allocating authority, it operates as a waiver of strict compliance and affirms the allotment. Crucially, there is no evidence that the Commissioner of Lands ever exercised the right of re-entry, repossession, or cancellation of the allotment, which are the legally recognized mechanisms for terminating such interests. In the circumstances, the Plaintiff’s rights, having crystallized upon acceptance of payment, remained intact and could not be defeated merely on account of delay. That having perfected the letter of allotment by paying the charges required and the same having been accepted then by law he was entitled to rights of the suit property prior to, during and after issuance of the title. She cited Justice Warsame (as he then was) in Rukiya Ali Mohamed -vs- David Gikonyo Nyambacha & Another (Kisumu HCCA No. 9 of 2009) when he held: “Once an allotment letter is issued and the allottee meets the conditions herein, the land in question is no longer available for allotment since a letter of allotment confers (an) absolute right of ownership or proprietorship unless it is challenged by the allotting authority or is acquired through fraud, mistake or misrepresentation, or that the allotment was outrightly illegal or it was against the public interest. 10. That there is no evidence that the late Johnson Justus Maina was allotted the suit property by fraud, misrepresentation or mistake. She sought reliance on reasoning of Justice Mwangi Njoroge in the case of **Gerishom Ndege Erima -vs- Trans Nzoia County Land Adjudication & Settlement Officer & Another; Maronda Nicholas Ongera (2020) eKLR** where he held that; “It therefore follows that where land has been validly allocated, the same land cannot be reallocated unless the first allocation is validly and lawfully cancelled. Consequently, when the Petitioner was allocated the land sometimes in 1984, he acquired a legal interest and therefore the respondents could not just reallocate the same to the interested party unprocedural as is this case.” 11. That Upon demise of the original allottee was Johnson Justus Maina who died domiciled in Kenya on 10 January 2015 that the Plaintiff Petitioned for letters of Administration in Mpeketoni succession cause number 5 of 2017. That she was issued with grant of letters of Administration on 10 October 2017, which was later confirmed on 17 April 2018. She produced the said documents as Exhibit 1 and Exhibit 2 in the list of documents dated 18 July 2023. 12. She relied on the Deputy Director of Land Administration and the County Land Registrar, both of whom confirmed that a letter of allotment constitutes part of a deceased person’s estate and may properly be administered through succession proceedings. That upon transmission, the allotment can lawfully confer ownership rights to the administrator or beneficiary, establishing that the Plaintiff was entitled to inherit and assert proprietary rights over the suit property in her capacity as legal heir. 13. She questioned the Defendants’ claim of being in long occupation of the suit property and that they are beneficiaries of process allegedly undertaken by the County Government. That no documentary evidence has been tendered to demonstrate the genesis of the title deeds they rely upon and that the court is being invited to validate ownership based on unexplained and unsubstantiated titles without any disclosure of how the adjudication process was conducted, by whom, and whether requisite statutory procedures such as issuance of notices to existing land owners were complied with. That witnesses who testified on behalf of defendant merely stated that they had known him for a long period of time without confirming his occupation of the suit land; 14. She countered the Defendants claim using the holding in **Dina Management Limited v County Government of Mombasa & 5 Others,** where the Supreme Court affirmed that the sanctity of title is not absolute and that a party must go beyond mere production of a title deed to demonstrate the legality and procedural propriety of its acquisition whenever the root of title is placed in question. 15. That the Plaintiff’s title relies on the testimony of the Deputy Director of Land Administration, being the allocation and registration file being File No. 118532 relating to Plot No. 88 Mokowe Township, now known as L.R. No. 12852/243 measuring approximately 0.1401 Ha. The documents produced, which were all original records, comprehensively traced the history of the suit property from its initial allocation to the eventual issuance of a certificate of title. 16. That she has outlined the evidentiary chain from the Letter of Allotment dated 29th October 1986 issued in favor of Johnson J. Maina, together with the Part Development Plan (PDP), special conditions, and survey documentation. This was followed by evidence of compliance with the allotment terms through payment receipts, including Receipt No. B395132 dated 19th February 1988, and subsequent correspondence from the Commissioner of Lands authorizing the Director of Survey to undertake the requisite survey. Further documentary proof included land rent payments, authentication slips, survey instructions, deed plan No. 433351, and ultimately the preparation and forwarding of the lease culminating in the issuance of title in favor of Charity Nkirote Maina as the administrator of the estate pursuant to Succession Cause No. 4 of 2017 and the confirmed grant dated 17th April 2018. 17. That the Deputy Director confirmed that all original documents were present in the file and that the same sufficiently established the root and traceability of the Plaintiff’s title. 18. That Deputy Director further clarified that the suit land was planned Government land and was therefore not available for adjudication. That this directly discredits any competing claims founded on an alleged adjudication process. The Court should also take note that the SPRO card (yellow card), a critical primary record in land allocation, was produced as part of the Plaintiff’s documentary evidence by the Deputy Director of Land Administration. This squarely rebuts the assertion by the Land Administrator, Lamu County, that no such record existed. The existence and production of the SPRO card further fortifies the authenticity and procedural regularity of the Plaintiff’s title. 19. She responded that the delay in payment of stand premium was adequately explained that the Commissioner of Lands has always exercised administrative discretion to accept late payments and that such delay does not extinguish an allottee’s rights, particularly where, as in the present case, the Commissioner never exercised the right of re-entry. Indeed, the payments were accepted, processed, and acted upon, culminating in survey, planning, and eventual issuance of title. That similarly, the absence of a formal letter of acceptance within 30 days cannot defeat the allotment, as the conduct of the allottee particularly the making and acceptance of payments and continued processing of the title constitutes sufficient evidence of acceptance, thereby satisfying the requirements of contract formation within the meaning of the Government Lands Act (Cap 280) (repealed). 20. That the transmission of the property to her through succession was lawful and proper and cited the Deputy Director that property under allotment forms part of the estate of a deceased person and may be transmitted to an administrator without the need for a separate transfer process. She noted that the Deputy Director acknowledged that any purported overlap arising from adjudication would be irregular, noting that planned and alienated land ought not to be subjected to adjudication and any such occurrence would be abnormal and could only arise through omission or commission. That as such the Defendants’ claim is founded on an illegitimate and procedurally flawed process. 21. That she produced a title deed and laid bare the entire root of title, demonstrating a clear, unbroken, and lawful chain from allotment to registration, in full compliance with the principles articulated in Dina Management Limited v County Government of Mombasa & 5 Others. 22. That it is Defendants, who have failed to offer any comparable evidence to explain the origin of their alleged interests. She pleaded that her title stands on firm legal and evidentiary ground and is deserving of this Court’s protection. That the Defendants title deeds even if validly issued by the County Government of Lamu the Land Registrar, the Lamu County Land Administrator, and the Deputy Director of Land Administration were all in agreement that the suit land was not available for adjudication and in such circumstances, the doctrine of priority first in time must prevail in the Plaintiff, favor and that she holds the only legally recognizable interest in the suit property. Citing pleadings of the Attorney General Statement of Defense concedes that the Defendants’ parcels of land encroach upon and overlap the Plaintiff’s parcel and the same finding is independently corroborated by the County Surveyor’s Report dated 27th September 2023. 23. That the County Surveyor attempted to explain this anomaly by stating that the overlap was not detected earlier due to the absence of the relevant survey plan in the County records; however, this explanation only serves to underscore administrative failure, as the survey plan was readily available at the Land Administration Office in Nairobi, where matters relating to leases had not been fully devolved. This lapse demonstrates clear indolence and lack of due diligence on the part of the County authorities, which directly resulted in the double allocation. 24. That in the premises, any purported title held by the Defendants, even if assumed to be validly issued, is subordinate to the Plaintiff’s prior and properly established title, and cannot defeat her proprietary rights. 25. **1st and 2nd Defendant submissions** 26. The 1st and 2nd defendants’ submissions are that answer to the question as to who is the lawful owner of the suit property, lies in Section 24 of the Land Registration Act which provides as follows: “*The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”* 27. That further, Section 25(1) of the Land Registration Act provides: “The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of the court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all the privileges and appurtenances belonging thereto, free from all other interest and claims whatsoever, but subject….” 28. That these provisions vest on the registered owner of land the rights and privileges and provide for instances when the rights can be taken away. That the registration of a person as the owner of the land and the certificate of title held by such person as a proprietor of a property is conclusive proof that he/she is the owner of the property. They however appreciated that the registration of such a title is not absolute as the same may be impeached under certain circumstances as provided by Section 26(1) of the Land Registration Act which provides that: *“The certificate issued by the registrar upon registration, or to a purchaser of land upon transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as the proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and condition 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; or (b) Where the certificate of title has been acquired illegally, unprocedural or through a corrupt scheme.”* 29. That the Plaintiff is holding a leasehold title while the 1st and 2nd Defendants hold freehold title. They submitted that the only way to establish the lawful owner of the suit property is to establish the root of each title. **The Supreme Court in Dina Management Ltd. v County Government of Mombasa & 5 others [2023] KESC 30 (KLR)** settled the question of indefeasibility of title to the effect that if the process that was followed in the issuance of title did not comply with the law, such a title cannot be indefeasible. 30. That the Plaintiff alleges that her title emanates from a Letter of Allotment dated 29th October 1989 issued in favor of her late husband, Johnson J. Maina yet the deceased allottee neither complied with nor fulfilled the conditions in Letter of Allotment within the prescribed period or at all. That there is no formal written acceptance of the offer and the alleged payments were made long after the lapse of the prescribed period. That as a consequence the offer contained in the said Letter of Allotment lapsed by operation of law for non-compliance and no proprietary interest capable of crystallizing into a valid title accrued to the deceased. It is the submission of the 1stand 2nd defendant that any title purportedly founded upon the said allotment is devoid of a lawful basis and is therefore incapable of conferring a valid interest in the suit property. 31. They submitted that administrative practice mentioned in testimony of the Deputy Director of Land Administration, Mr. Elias Muthoni Kaburu, that as a matter of practice, the Department does not ordinarily reprimand allottees for failure to comply with the conditions contained in Letters of Allotment cannot override the law. 32. They submitted that the conditions stipulated in a Letter of Allotment are constitute mandatory and legally binding terms of the offer. That the compliance with such conditions is a prerequisite to the crystallization of any proprietary interest in the allotted land. According to them where an allottee fails to satisfy the conditions within the prescribed period, the offer lapses and becomes incapable of conferring any legal or equitable interest capable of being protected by the Court. 33. They cited case of Torino Enterprises Ltd vs. Attorney General (2023) KESC 79 (KLR), the Supreme Court at Paragraph 60 of its judgment stated as follows: “Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling the conditions therein. These conditions include but are not limited to, the payment of a stand premium and ground rent within prescribed timelines.” 34. Further they cited case of Ali Mohamed Dagane vs. Hakar Abshir & 3 others [2021] KEELC 3604 (KLR), where the ELC Court in Garissa held that, in order for an allotment letter to become operative, the allotee was required to comply with the conditions set out therein including the payment of stand premium and ground rent within the prescribed period. The Court further cited with approval the decision in Mbau Saw Mills Ltd V Attorney General for and on behalf of the Commissioner of Lands) & 2 others [2014] eKLR, where it was held that: “I have considered the evidence on record and the submission of the parties and do find that a letter of allotment was issued to Mr. Joseph K. Mugambi on 21/10/1971 with a condition to accept the offer within 30 days. He did not do so and thereafter the offer lapsed 30 days after it was made in accordance with the allotment letter. Having failed to accept the offer as stipulated in the letter of allotment Mr. J.K. Mugambi did not acquire interest in the un-surveyed lorry depot and therefore had no interest to transfer to the plaintiff. This court holds that a letter of allotment does not confer any property rights to a person unless there is acceptance and payment of the stand premium and ground rent. In the letter dated 17/6/1988 which was written about 17 years after the allotment letter was issued, the Commissioner of Lands confirmed that the plot was allocated to Joseph M. Mugambi in 1971 for lorry depot. However, the plot had neither been paid for nor an acceptance of the offer in the allotment letter made. The implication of this letter was that the allottee had not complied with the terms of the allotment letter and therefore the offer had lapsed. The offer having lapsed, the allottee Mr. Joseph M. Mugambi did not have any interest to transfer to the plaintiff and therefore all transactions between the allottee and the plaintiff were a nullity in law.” 35. It is the 1st and 2nd defendants’ submissions that the Plaintiff's purported title is riddled with irregularities and inconsistencies that render it liable to cancellation and/or revocation. A perusal of the Certificate of Confirmation of Grant dated 17th April 2018 reveals that the Plaintiff presented herself as the sole beneficiary of the deceased's estate. However, one of the Plaintiff’s witnesses in these proceedings was the Plaintiff's daughter, whom she had with the deceased, and during cross-examination, the Plaintiff admitted that she and the deceased were blessed with four (4) children. They questioned how the Plaintiff could lawfully represent herself as the sole beneficiary of the estate while other beneficiaries existed and were known to her. 36. That the leasehold title was ultimately issued in the Plaintiff's sole name as a beneficiary of the estate rather than in her capacity as the administrator or personal representative thereof. That this raises serious questions regarding the propriety, legality and procedural regularity of the process through which the title was obtained, thereby casting doubt on the validity of the Plaintiff's claim to exclusive ownership of the suit property. 37. According to the 1st and 2nd defendants, the suit property was erroneously and unlawfully included in the Certificate of Confirmation of Grant. That at the time of his death, the deceased had neither acquired nor been issued with a valid title to the property. His purported interest in the suit property was founded solely upon a Letter of Allotment whose conditions had not been complied with and proprietary interest had not his crystallized so as to form part of his estate for purposes of succession. That no legal interest in the suit property could lawfully pass to the beneficiaries of the estate and the inclusion of the suit property in the Certificate of Confirmation of Grant was founded on a mistaken assumption that the deceased possessed a transmissible interest therein. 38. That it is settled in law that an allotment letter has been held not to be capable of conferring an interest in land, being nothing more than an offer, awaiting the fulfilment of the conditions stipulated therein by the offeree. In the case of ***Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others 182/1992 (Nyeri); and in Dr. Joseph N.K. Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others C.A.60/1997*** the Court of Appeal held as follows: “It has been held severally that a letter of allotment per se is nothing but invitation to treat. It does not constitute a contract between the offeror and the offeree and does not confer interest in land at all. It cannot thus be used to defeat a title of a person who is the registered proprietor of the said parcel of land.” 39. That in the Torino Case the Supreme Court stated at Paragraph 60 - 61 as follows: “But even after the perfection of an allotment letter through the fulfillment of the conditions stipulated therein, an allottee cannot pass valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter. 40. In ***Peter Wariire Kanyiri v Chrispus Washumbe & 2 others (2022) KEELC 1531 (KLR), Kemei, J*** held as follows: “In the case at hand, in the absence of any title registered in the name of the plaintiff, the court is unable to hold that the plaintiff is the registered proprietor of the land. This is because the letter of allotment lapsed within 30 days and the same is of no legal consequences” [Emphasis added]. While we agree with the general tenor of the learned Judge’s foregoing pronouncement, we remain uncomfortable with his inference that the allotment letter was of no legal consequence solely because it had lapsed after 30 days. We must reiterate the fact that an allotment letter in and by itself, is incapable of conferring a transferable title to an allottee. Put differently, the holder of an allotment letter is incapable of transferring or passing valid title to a third party on the basis of the allotment letter unless and until he becomes the registered proprietor of the land consequent upon the perfection of the Allotment Letter. It matters not therefore that the allotment letter has not lapsed.” 41. That it follows that the Plaintiff's registration as the proprietor of the suit property was procured through misrepresentation and/or mistake and is therefore not entitled to the protection afforded to registered titles under the law. These circumstances point to a registration that was obtained on the basis of erroneous, incomplete and misleading information thereby vitiating the validity of the title. As a consequence, the Plaintiff's title falls squarely within the exceptions contemplated under Section 26(1)(a) and (b) of the Land Registration Act, which permits the Court to impeach a certificate of title where it is shown that the same was acquired through fraud, misrepresentation, illegality, unprocedural means or a corrupt scheme. 42. They also questioned how the Plaintiff's deceased husband came to be allocated the suit property in the first place, considering that there is no evidence that he ever resided, occupied or carried on any activities in Mokowe where the suit property is situated. The Plaintiff herself confirmed during her testimony that she and the deceased resided in Mpeketoni. More importantly, during cross-examination, she candidly admitted that neither she nor the deceased had ever taken possession of, occupied or developed the suit property from the time of the alleged allocation in 1986 to date. Despite the prolonged inactivity, the Court will take judicial notice that it is one of the conditions of the allotment that the allottee has to develop the land within 6 months but this was never done. 43. That the documentary evidence produced by the Deputy Director of Land Administration, particularly the Lease Data Forms A and B, reveals that following the issuance of the Letter of Allotment in 1986, nothing transpired in relation to the suit property for over three decades. The records only show activity in or about the year 2019 when the lease verification process was undertaken. The verification of the lease was conducted on 14th and 15th of November 2019 and execution of the lease was conducted on the same day. 44. That the year 2019 when the Plaintiff’s lease was being processed, coincides with the period when land in Mokowe was being surveyed, adjudicated and allocated to bona fide occupants, a process that culminated in the issuance of titles to the Defendants and other occupants. The timing of the Plaintiff's efforts to process the lease raises legitimate concerns that the process was hurriedly revived and pursued for the purpose of defeating the adjudication and allocation exercise that was already underway. 45. The Plaintiff has not placed any material before the Court to show that the deceased ever asserted ownership over the suit property during his lifetime. No claim was lodged, no development undertaken, no rent paid, no occupation established and no steps taken to perfect the alleged allotment. Even after the Defendants were issued with titles, the Plaintiff neither lodged objections during the adjudication process nor registered any caution, restriction or encumbrance against the Defendants' titles. 46. The circumstances surrounding the processing of the Plaintiff's title also cast doubt on its propriety. The Plaintiff admitted in her evidence-in-chief that the then Land Registrar in Lamu had entered into an arrangement with her to be excised a portion of the land. That admission, coupled with the sudden processing of the lease during the adjudication period, gives rise to a reasonable inference that the Plaintiff may have received undue advantage through persons within the land administration system. 47. That in the circumstances, no prudent or diligent land officer acting lawfully and in good faith would have proceeded to process and issue the lease in favor of a person who had never occupied, possessed or developed the property. The failure to take into account the actual position on the ground further demonstrates the irregular and unprocedural manner in which the Plaintiff's title was procured. 48. That for the title jointly held by the 1st and 2nd Defendants, the evidence on record demonstrates that the same was acquired lawfully, regularly and through a transparent government-sanctioned adjudication and settlement process. The Defendants' entitlement to the suit property did not arise from speculative claims or dormant documentation but from their long-standing occupation, possession and development of the land over many years. The evidence shows that they were recognized as bona fide occupants during the adjudication exercise and were consequently allocated the property through the lawful process established by the County Government. 49. The 1st and 2nd Defendants are husband and wife who have established their permanent matrimonial home on the suit property. They have constructed permanent structures thereon and reside on the land together with their children and family members. Their occupation is open, continuous and well known to the local community. 50. The developments undertaken on the property are visible manifestations of their commitment to the land and are wholly consistent with the conduct of genuine proprietors. 51. That Article 62(2) of the Constitution vests the management of public land in the relevant public authorities on behalf of the people. In furtherance of that constitutional mandate, the County Government undertook a process of surveying, adjudicating and settling deserving occupants who had genuinely occupied public land. The 1st and 2nd Defendants were among the beneficiaries of that exercise and were duly issued with title after satisfying the requisite criteria. Their root of title is therefore clear, traceable and free from any taint of illegality, fraud or procedural impropriety. 52. In contrast to the Plaintiff's claim, the 1st and 2nd Defendants' title is supported by actual possession, occupation and development of the land. The Court should also take into account that the suit property constitutes the Defendants' family home and the only known residence of their children. To deprive them of the property would occasion immense hardship, displacement and irreparable prejudice not only to the Defendants but also to their innocent children who have known the suit property as their home. In the circumstances, both the law and the interests of justice demand that the Defendants' title be upheld and protected. 53. That evidence adduced by the witnesses of the 1st and 2nd Defendants, lends further credence to the legitimacy of the Defendants' claim to the suit property. Both witnesses testified that they have known the 1st and 2nd Defendants for many years as their neighbors and confirmed that the Defendants have been in open, continuous and uninterrupted occupation of the suit property for a considerable period. The witnesses confirmed that throughout their years of association to the land, they had never seen or encountered the Plaintiff or her deceased husband on the suit property, nor were they aware of any claim being asserted by them over the land. 54. That this Court ought to extend protection to the Defendants' title, not only because it was lawfully acquired, but also in order to preserve the integrity and sanctity of titles issued pursuant to the County Government’s adjudication and settlement program. The evidence before the Court demonstrates that the Plaintiff's purported leasehold title is incompatible with the current survey records and mapping of Mokowe New Town. 55. That the Plaintiff's title overlaps multiple registered parcels, namely Plot Nos. 1227, 1228, 1231 and 1232 and further encroaches onto a public road reserve. Such glaring inconsistencies underscore the irregularity of the Plaintiff's title and render it incapable of co-existing with the current cadastral framework established through the adjudication process. 56. That wider public interest implications of this matter cannot be ignored. The adjudication and settlement exercise undertaken by the County Government was intended to regularize occupation, secure tenure and bring certainty to land ownership within Mokowe and other areas. Upholding the Plaintiff's claim, despite the numerous defects surrounding her title, would undermine the credibility of that process and cast doubt upon thousands of titles issued to beneficiaries through the same exercise. It would potentially open a pandora’s box to speculative and unsubstantiated claims by persons seeking to challenge settled ownership long after titles have been issued and communities have been established. 57. That following the issuance of titles, Mokowe has experienced increased certainty in land ownership and greater social stability. The County Government has since proceeded to implement similar settlement programs in other areas. In those circumstances, the Court should be reluctant to disturb a completed adjudication process on the basis of a title whose origin, validity and survey foundation are seriously in question. 58. That to uphold the Plaintiff’s title would not only prejudice the Defendants and their family but would also erode public confidence in government-led settlement programs and the security of titles issued thereunder. The interests of justice, public policy and certainty in land administration therefore militate in favor of upholding the Defendants' title and dismissing the Plaintiff's claim. 59. On the question as to whether the 1st and 2nd Defendants Prosecuted their Counterclaim the Plaintiff's contended that the 1st and 2nd Defendants failed to prosecute their Counterclaim is misconceived and unsupported by the record. The Counterclaim was properly pleaded and formed part of the issues for determination before the Court. That throughout the trial, the 1st and 2nd Defendants actively participated in the proceedings, tendered evidence in support of their claim to the suit property and called witnesses namely; Nassoro Issa Hussein and Musa Sigirso Boba, whose testimony was specifically directed at establishing the validity of the 1st and 2nd Defendants’ title and the factual basis of the Counterclaim. Those witnesses were subjected to cross-examination by the Plaintiff's counsel, thereby affording the Plaintiff a full opportunity to challenge the Defendants' case. 60. They submitted that a Counterclaim is in the nature of a cross suit and may be proved through the evidence adduced by the Defendants and their witnesses during the hearing. The law does not require a separate or parallel hearing for a Counterclaim where evidence relevant to the issues raised therein has already been placed before the Court. In the present case, the 1st and 2nd Defendants led evidence demonstrating their long-standing occupation of the suit property, the developments undertaken thereon, the circumstances under which their title was issued and the irregularities surrounding the Plaintiff's title. Such evidence goes directly to the reliefs sought in the Counterclaim and cannot be ignored merely because it was presented in the course of defending the Plaintiff's suit. In the circumstances, it cannot be said that the Counterclaim was abandoned or left unprosecuted. That the 1st and 2nd Defendants placed sufficient evidence before the Court in support of both their Defense and Counterclaim and the Court is therefore properly seized of all the issues raised therein and ought to determine the Counterclaim on its merits. 61. **The 3rd Def submissions** are that the land parcel known as Lamu/Mokowe Township/1228, measuring approximately 0.39 Hectares, was acquired by the 3rd Defendant through the land adjudication process. That during the land adjudication process, the adjudication area was mapped by the County Physical Planning Office. Mr. Patrice Lumumba, the County Director for Physical Planning, testified that several committees were involved before the adjudication exercise commenced, including the local Land Adjudication Committees, whose role was to assist officers in identifying and confirming the inhabitants of the area. That Mr. Lumumba testified that the Plaintiff’s Leasehold Property (L.R. No. 12852/243) was not indicated in the land records at the time of adjudication and further that the Plaintiff did not lodge any complaints with the Land Adjudication Committee during or after the adjudication process. That PW2 testified that, despite attending the adjudication exercise, she did not lodge any complaints on behalf of the Plaintiff (PW1) during the exercise. 62. That although PW1 stated in her evidence-in-chief that the Land Adjudication Committee recognized the Deceased’s proprietary rights in the Leasehold Property during regularization, she did not produce any evidence to prove these allegations. 63. That the 3rd Defendant benefited from the adjudication process as of a local inhabitant. That the adjudication and subsequent registration were neither objected to nor contested at any stage. Consequently, he was issued with a certificate of title upon conclusion of the adjudication process. 64. That Mr. Elias Muthoni Kaburu, the Deputy Director for Land Administration, testified that the purported extension of allotment letters the plaintiff relies on was not anchored in law but an administrative practice. That Mr. Kaburu admitted that, upon payment of the requisite fees, the allottee is required to engage a land surveyor to undertake a survey of the plot. The Registry Index Map and survey details are then forwarded to the National Land Commission (NLC) for preparation of lease documents. Critically, Mr. Kaburu failed to state when the survey was undertaken, and he was not aware whether the allottee took possession of the property. **Courts determination.** 1. The starting point is to interrogate the root of each of the competing claims i.e., the plaintiff on the one hand and the 1st and 2nd and 3rd defendant on the other. 2. **The Root of Title of Plaintiffs title.** I have keenly looked at background leading to the plaintiff’s title. There is no dispute that the Plaintiff trace her claim from a Letter of Allotment dated 29th October 1986 issued in favor of her late husband, Johnson J. Maina. The Deceased made full payment in 1988, well outside the mandatory 30-day period stipulated in the allotment letter. The late payment was not supported by any letter of extension or any other legal instrument safe for the oral testimony of Mr. Elias Muthoni Kaburu, the Deputy Director for Land Administration. Taking the allotment letters terms, the offer for the Leasehold Property lapsed on 29th November 1986. Nothing happened until year 2019 and it’s during the same period on 14th and 15th of November 2019 and execution of the lease was conducted on the same day. Notably it is in the year 2019 the land in Mokowe was being surveyed, and allocated going per evidence. 3. The processing of the lease just at the same time the land regularization was ongoing in Mokowe would lead to a hat it was likely being done to defeat any land processes that were ongoing in Mokowe at same time. 4. Having found that it is not in dispute that the allotee the deceased neither complied with nor fulfilled the conditions stipulated in Letter of Allotment dated 29th October 1986 issued in favor of her late husband, Johnson J. Maina therein within the prescribed period and there being no contest that there is no formal written acceptance of the offer within the stipulated time, and that the payments were made after the lapse of the prescribed period then the authority in ***Torino Enterprises Ltd vs. Attorney General (2023) KESC 79 (KLR),*** is relevant. The Supreme Court at Paragraph 60 of its judgment stated as follows: “*Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling the conditions therein. These conditions include but are not limited to, the payment of a stand premium and ground rent within prescribed timelines.”* 5. Further in the case of ***Ali Mohamed Dagane vs. Hakar Abshir & 3 others [2021] KEELC 3604 (KLR),*** the ELC Court in Garissa held that, in order for an allotment letter to become operative, the allotee was required to comply with the conditions set out therein including the payment of stand premium and ground rent within the prescribed period. The Court further cited with approval the decision in Mbau Saw Mills Ltd V Attorney General for and on behalf of the Commissioner of Lands) & 2 others [2014] eKLR, where it was held that: “*I have considered the evidence on record and the submission of the parties and do find that a letter of allotment was issued to Mr. Joseph K. Mugambi on 21/10/1971 with a condition to accept the offer within 30 days. He did not do so and thereafter the offer lapsed 30 days after it was made in accordance with the allotment letter. Having failed to accept the offer as stipulated in the letter of allotment Mr. J.K. Mugambi did not acquire interest in the un-surveyed lorry depot and therefore had no interest to transfer to the plaintiff. This court holds that a letter of allotment does not confer any property rights to a person unless there is acceptance and payment of the stand premium and ground rent. In the letter dated 17/6/1988 which was written about 17 years after the allotment letter was issued, the Commissioner of Lands confirmed that the plot was allocated to Joseph M. Mugambi in 1971 for lorry depot. However, the plot had neither been paid for nor an acceptance of the offer in the allotment letter made. The implication of this letter was that the allottee had not complied with the terms of the allotment letter and therefore the offer had lapsed. The offer having lapsed, the allottee Mr. Joseph M. Mugambi did not have any interest to transfer to the plaintiff and therefore all transactions between the allottee and the plaintiff were a nullity in law.”* 6. Guided by the above cited authorities, the reasonable and inevitable finding is that the offer contained in the said Letter of Allotment lapsed by operation of the facts on face of the letter and by operation of law for non-compliance within the terms and conditions therein. 7. The court notes that the deceased never took possession of the Leasehold Property and neither did he develop it. There is no evidence that the Plaintiff paid annual land rent over the years since 1986 util 2020 when the accumulated land rent dating back to 1986 was paid. 8. I am persuaded that the timing of the Plaintiff's processing of the lease raises rebuttable presumption reasonable if not suspicions that the process was hurried revived and pursued for the purpose of defeating the and allocation exercise that was already underway in Mokowe. 9. While the Deputy Director of Land Administration, Mr. Elias Muthoni Kaburu, in Court stated that, as a matter of practice, the Department does not ordinarily penalize allottees for failure to comply with the conditions contained in Letters of Allotment, however this administrative benevolence cannot override the law more so in this circumstances where there is a competing claim and title over the same .There must be a purpose why the conditions are stipulated in a Letter of Allotment and the letter of allotment itself provides to the effect where an allottee fails to satisfy the conditions within the prescribed period, the offer lapses. 10. A lapsed offer is incapable of conferring any legal or equitable interest capable of being protected by the Court where another claim is lodged by a 3rd party. The situation perhaps may have been different were it not for the rival claim. 11. There is some key observation highlighted by the defendants that plaintiff’s lease indicates a commencement date of 1st March 1986, yet the Letter of Allotment upon which it is founded was not issued until 29th October 1986. This apparent anomaly was not adequately addressed by the plaintiff,. In law and logic, a lease cannot emanate from an allotment that had not yet been made. This certainly supports the defendants claim about inconsistency of plaintiffs claim and lends credence to the Defendants' contention that in totality the lease was irregularly and unprocedural procured and is therefore liable to impeachment under Section 26 of the Land Registration Act. 12. I fully concur with the 1st and 2nd defendants’ case and submissions that no proprietary interest capable of crystallizing into a valid title accrued to the deceased while he lived and none can while he is deceased in view of the particular circumstances of this case as highlighted in this judgement. 13. If indeed there was a valid Plaintiff's leasehold interest in existence, I believe it would have been noted recognized during the survey, adjudication and allocation exercise undertaken in Mokowe as was conceded by the County Physical Planner, Mr. Patrick Lumumba who indicated that genuine and duly recognized leasehold interests encountered during the exercise were respected and excluded from allocation to beneficiaries and occupants. Deputy Director confirmed that all original documents were present in the file. 14. I concur that the most reasonable inference to be drawn from the evidence is that the Plaintiff's lease was either non-existent in the official records at the material time or was processed and introduced into the system in a manner that escaped the scrutiny of the officers undertaking the adjudication exercise. 15. Crucially, the Deputy Director confirmed that all original documents including the SPRO card (yellow card), which is a critical primary record in land allocation produced as part of the Plaintiff’s documentary evidence by the Deputy Director of Land Administration were present in the file. He clarified that the suit land was planned Government land and was therefore not available for adjudication or allocation. 16. The above confirm the land in issue was not available for allocation under the process driven by the county government of Lamu . 17. The fact of the Plaintiff presenting herself as the sole beneficiary of the deceased's estate is irrelevant. The real issue if however, that the suit property was erroneously and unlawfully included in the Certificate of Confirmation of Grant yet at the time of his death, the deceased had neither acquired nor been issued with a valid title to the property therefore no proprietary interest had his crystallized to justify inclusion in the estate for purposes of succession. I find that the inclusion of the suit property in the Certificate of Confirmation of Grant was founded on a mistaken assumption of law and facts that the deceased possessed a transmissible interest therein. 18. In the case of Gladys ***Wanjiru Ngacha v Teresa Chepsaat & 4 others 182/1992 (Nyeri); and in Dr. Joseph N.K. Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others C.A.60/1997*** the Court of Appeal held as follows: “It has been held severally that a letter of allotment per se is nothing but invitation to treat. It does not constitute a contract between the offeror and the offeree and does not confer interest in land at all. It cannot thus be used to defeat a title of a person who is the registered proprietor of the said parcel of land.” 19. In the Torino Case above the Supreme Court stated at Paragraph 60 - 61 as follows: *“But even after the perfection of an allotment letter through the fulfillment of the conditions stipulated therein, an allottee cannot pass valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter.* 20. In Peter Wariire Kanyiri v Chrispus Washumbe & 2 others (2022) KEELC 1531 (KLR), Kemei, J held as follows: “*In the case at hand, in the absence of any title registered in the name of the plaintiff, the court is unable to hold that the plaintiff is the registered proprietor of the land. This is because the letter of allotment lapsed within 30 days and the same is of no legal consequences” [Emphasis added].* 21. I need not say much but to find that the interrogation of root of the plaintiff’s title show that this title is indeed impeachable and actually has been impeached. **1st , 2nd , 3rd and 4th defendant’s root of title .** 1. As a consequence of the findings in paragraph 87,88,89 and 90 above the suit land was not available for adjudication or allocation or such related processes. Any as such titles issued from or stemming from this process are found unprocedural and not valid titles irrespective of the genuineness of the beneficiaries of the titling program. This anomaly shows why as captured in County Surveyor’s Report dated 27th September 2023 there is evident overlap of titles. The County Surveyor’s attempt to explain this anomaly and overlap that it was not detected earlier due to the absence of the relevant survey plan in the County records cannot hold as the survey plan was available at the Land Administration Office in Nairobi as was stated by Deputy Director of Land Administration. 2. Whether the Plaintiff can be indemnified sought, I find that this plaintiff was never entitled to the property by way of transmission from the word go. The lease she holds is not legal nor regular. The claim for indemnification is not available to her as she can’t benefit from an illegal or irregular process. 3. The same case applies to the defendants’ titles on a land that was not available for allocation . The defendants’ titles are impeached under Section 26 1 b) as the certificate of title as it was acquired illegally, unprocedural hence illegally, Section 26(1) creates specific, limited exceptions where such title may be impeached, namely: a) Where the title was obtained through fraud or misrepresentation to which the registered proprietor is proved to be a party; or ***b) Where the certificate of title was acquired illegally, unprocedural, or through a corrupt scheme.*** **Orders issued** 1. A declaration is hereby issued that all freehold interest in Title Numbers Lamu/Mokowe New Township/1227, 1227, 1228, 1231 and 1232 in respect of or to the extent that they overlap the leasehold Land reference number 12852/243 as delineated on Land Survey Deed Plan Number 433351 which was not available for adjudication or allotment as it was already a planned government land at time of processing these titles were obtained irregularly, unprocedural and therefore invalid and are hereby revoked/cancelled. 2. A declaration is hereby issued that the leasehold interest in Certificate of Title No. CR. 74353 for Land Reference No. 12852/243 as delineated on Land Survey Deed Plan Number 433351 in favor of the plaintiff is hereby declared as having been obtained irregularly, unprocedural and therefore invalid and is hereby revoked/cancelled. 3. A declaration is hereby issued that the leasehold interest in Certificate of Title No. CR. 74353 for Land Reference No. 12852/243 as delineated on Land Survey Deed Plan Number 433351 reverts to the Government of Kenya through the National Land Commission as per relevant constitutional and statutory mandate. This judgment be served upon the National Land Commission for appropriate action. 4. A permanent injunction be issued restraining the Plaintiff , the 1st, 2nd , 3rd and 4th defendants whether by themselves, servants, agents, employees or any person claiming under or through them or otherwise howsoever, from entering, remaining on, selling , transferring or in any other way interfering with or encroaching on the government land in paragraphs 101 and 102 above. 5. Each party to bear own costs as none is substantively successful. Judgment Read, Delivered and Dated at Lamu Law Courts in open court this …26th ....day of …....June ........... 2026 at…10.30am **P.W. Wasike** **Principal Magistrate** In the presence of Mr. Maina for plaintiff Mr. Munim for the 1st and 2nd defendants Other defendants absent