Chelagat & 2 others v Mwangi (Environment and Land Appeal E048 of 2024) [2026] KEELC 3625 (KLR) (11 June 2026) (Judgment)

Chelagat & 2 others v Mwangi (Environment and Land Appeal E048 of 2024) [2026] KEELC 3625 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELC 3625 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Appeal E048 of 2024 LC Komingoi, J June 11, 2026 Between Dorcas Chhepkorir Chelagat 1st Appellant Oliver Kipchoge Kiplagat (Acting as the personal representative of the Estate Of The Late John Chelagat Cheptoo-Deceased) 2nd Appellant Peter Kimeli Kiplagat (Acting as the personal representative of the Estate Of The Late John Chelagat Cheptoo - Deceased) 3rd Appellant and James Antony Mwangi Respondent (Being an appeal from the Judgment/Decree of Hon. Rose Ombata Principal Magistrate delivered on 3rd September, 2024 in Nakuru MC ELC Case No. 120 of 2019) Judgment 1.This is an appeal arising from the judgment of Honourable Rose Ombata Principal Magistrate, Nakuru delivered on 3rd September, 2024 in Nakuru MC ELC Case No. 120 of 2019. 2.The Appellants filed a Memorandum of Appeal dated 25th September, 2024 appealing against the said judgment on the following grounds:1.That the Learned Magistrate erred in law and fact in failing to find that the respondent had not established that he had lawfully acquired title to land as he did not tender in evidence a valid lease instrument as between himself and the erstwhile Municipal Council of Nakuru.2.That the Learned Magistrate erred in law and fact in failing to cancel the registration of the respondent as the proprietor of the land as his claims of being an innocent purchaser for value from one Kibii Arap Mutai were untenable as he had never acquired any proprietary interest in the land capable of disposition.3.That the Learned Magistrate erred in law and fact in failing to find that the respondent had not lawfully acquired title to the land as no duly executed transfer instrument and evidence of payment of stamp duty under the Stamp Duty Act, Cap. 480 as read with section 46 of the Land Registration Act, Cap. 300 were given in evidence.4.That the Learned Magistrate erred in law and fact in failing to find that the respondent's title to the land was not lawfully acquired as he failed to tender in evidence consent granted by the lessor the erstwhile Municipal Council of Nakuru as required by section 48 of the Registered Land Act, Cap. 300 (repealed).5.That the Learned Magistrate erred in law and fact in failing to find that the respondent’s title was not lawfully acquired as he did not tender evidence of rent and rates clearance certificate to demonstrate compliance with section 21 of the Rating Act, Cap. 267.6.That the Learned Magistrate erred in law and fact in failing to find that the respondent could not acquire any lawful title to the land while the 1st appellant had an overriding interest thereon by virtue of her occupation of the land which was well recognized by section 30 (g) of the Land Act, Cap. 300 (repealed) and which had been confirmed in the ruling declining the interlocutory injunction by the Judge of the Superior Court.7.That the Learned Magistrate erred in law and fact in failing to find that there was no evidence of lawful transactions done as between Kibii Arap Muta and the National Housing Corporation and the respondent could not acquire any title out of the dealings that were a nullity as the mandatory 3 months’ notice under section 18 (1) (ii) of be Housing Act, Cap. 117 was not given to the late John Chelagat Cheptoo- deceased) in order to extinguish his interest in the land by sale.8.That the Learned Magistrate erred in law and fact in granting an injunction where no eviction order was sought against the appellants from the land and in failing to find that the conditions for the grant of the relief were never satisfied.9.That the Learned Magistrate erred in law and fact despite finding that the amended plaint was not dated in accordance with order 8 rule 7 (1) of the Civil Procedure Rules, 2010 in proceeding to enter judgment on it and granting the relief sought.10.That the Learned Magistrate erred in Jaw and fact in failing to find that the allotment of the late John Chelagat Cheptoo was never cancelled, he was the rate payer and thus the bonafide owner of the land.11.That the Learned Magistrate erred in law and fact in misapprehending the evidence as tendered. 3.The Appellants seek orders setting aside the judgment and an order allowing the Appellants counterclaim and dismissing the Respondent’s plaint. They also sought for costs of the present appeal. Brief Facts 4.The Respondent filed a suit against the Appellants vide an amended plaint dated 15th July, 2018 seeking to be declared as the legal owner of land parcel No. NAKURU MUNICIPALITY BLOCK 1/1394, the suit property. He also sought for an order of permanent injunction restraining the Appellants from trespassing and/or interfering with the suit parcel. 5.The Appellants’ vide its Defence and Counter claim dated 30th October, 2017 denied the allegations in the Plaint and averred that the suit property formed part of the deceased’s estate after having been allotted the same by the Municipal Council of Nakuru. In their Counterclaim, they sought for orders to be declared the lawful owners of the suit property together with cancellation of the title issued in the Respondent’s name. 6.At the hearing, the Appellants and Respondent testified and closed their cases. The trial magistrate found that the Respondent had proved his case on a balance of probabilities and proceeded to dismiss the Appellants’ Counterclaim with costs to the Respondent. 7.The Appellants’ being dissatisfied with the judgment lodged the instant appeal before this court. 8.This court on 9th February, 2026 admitted the appeal for hearing and the same was canvassed by way of written submissions. Submissions 9.Counsel for the Appellants filed his submissions dated 8th February, 2025 where he relied on the case of Munyu Maina V Hiram Gathiha Maina (2013) and submitted that the onus was Respondent to confirm the validity of his title which he failed to discharge. 10.It was his submission that the Respondent did not produce the lease instrument between himself and the Municipal Council of Nakuru. He further submitted that the term of lease was to run for 99 years from 1st January, 1986. 11.He went on to submit that the Respondent could only acquire his interest from a lessee who had a lease with the Municipal Council from that 1st January, 1986 and not Kibii arap Mutai as alleged. 12.It was his submission that the Respondent did not produce the transfer instrument and consent forms, further, that Kibii arap Mutai does not feature as the proprietor thus it was impossible for him to convey it to the Respondent. 13.He also submitted that the Respondent did not prove that he made payments of the requisite stamp duty as required. He added that the instruments were registered in breach of Section 46 and 48 of the Land Registration Act. 14.Counsel cited the case of Jedidah Mbare Njonjo V Attorney General & 2 Others (2024) and submitted that the Respondent did not produce the rent and rates Clearance Certificate from the Municipal Council. He relied on Section 21 of the Rating Act. 15.He submitted that the 1st Appellant has been in continued occupation of the suit parcel pursuant to the deceased authority and the administrators of the estate of John Chelagat Cheptoo (deceased). 16.He further submitted that the 1st Appellant had overriding interest on the suit parcel and therefore the Respondent could not have acquired any lawful title thus his instrument is void and a nullity. He cited Section 162(1) of the Land Act. 17.It was counsel’s submission that the police gave evidence to the effect that they carried out their investigations and found that the Respondent had fraudulently acquired the title to the land that belonged to the deceased estate. He relied on Article 40 of the Constitution of Kenya and the case of Edward Ndungu Wambui V Francis Kanyanjua Mwangi & 3 Others (2021) eKLR. 18.He submitted that the Respondent’s acquisition of the land was fraudulent and irregular for the reasons that the allotment of the deceased was never cancelled. He added that the newspaper advertisement could not extinguish the deceased’s entitlement and title to the land as the mandatory 3 months’ notice was never issued to the deceased’s estate as provided under Section 18(1) of the Housing Act. 19.In conclusion, he urged the court to allow the appeal as prayed. 20.Counsel for the Respondent filed his submissions dated 17th February, 2026 where he relied on the case of Central Bank of Kenya Limited V Trust Bank Limited and 4 Others (1996) eKLR. 21.He submitted that the Appellant’s claim that the Respondent forged the lease was refuted by the Land Registrar. He added that the police did not prefer charges against the Respondent. 22.Counsel submitted that from the documentary evidence produced, the Respondent’s title was clean by the fact that he was an innocent purchaser without notice of any defect. He cited the case in Fletcher V Peck 10 U.S 87 (1810) and Section 26(1) of the Land Registration Act. 23.He further submitted that the trial court rightly found that the Respondent proved how the property was initially allotted and later cancelled and issued to Kibii who then sold it to the Respondent. 24.Counsel submitted that the Appellants failed to meet the requirements to prove the necessary conditions of the Allotment Letter. He cited the case of Republic V City Council of Nairobi & 3 Others (2014) eKLR and Joseph N.K Arap Ngók V Justice Moijo Ole Keiyua & 4 Others C.A 60/1997. 25.In conclusion, he urged the court to dismiss the appeal with costs. Analysis and Determination 26.Upon consideration of the materials presented in respect to the Appeal herein including the Memorandum of Appeal and Record of Appeal I have taken the liberty to condense the grounds as raised in the memorandum of appeal to the following three issues which arise for determination:1.Whether the trial magistrate erred in law and fact in finding that the Respondent had proved his case on a balance of probabilities.2.Whether the trial magistrate erred in law and fact in dismissing the Appellants’ Counterclaim.3.Who should bear the costs of the appeal. 27.Being a first appeal, the court relies on a number of principles as set out in Selle and another V Associated Motor Boat Company Ltd and others [1968] 1 EA 123:“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...” 28.Further as was held in the case of Mwangi V Wambugu [1984] KLR 453 that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence. 29.This court has keenly perused the record of appeal and it was the Appellant’s case that the trial magistrate erred in law and fact in failing to find that the Respondent had not lawfully acquired the suit parcel. 30.The Appellants claim that the suit property formed part of the deceased’s estate, John Chelagat Cheptoo therefore the same vested upon his personal representatives. They further claimed that they have been paying rates for the suit parcel and that the Respondent fraudulently had it registered in his name. 31.The Respondent on the other hand contends that the deceased having failed to clear the loan arrears of Kshs. 54,079/= with National Housing Corporation, the suit property was repossessed and allocated to Kibii Arap Mutai. It was his contention that he then purchased the same from Kibii and was later issued with a title on 26th June, 2013. 32.Section 107 of the Evidence Act, Cap 80, states that:“Whosever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 33.Further, Section 108 of the Act states:“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 34.The Appellant’s produced the letter of Allocation dated 26th September 1985 in the name of John Cheptoo P O Box 48081 Nairobi. The Plot allocated was category C Plot No.18 Racetrack Site and service. 35.The Respondent produced a Gazettee notice by the National Housing Corporation in the standard Newspaper dated 25th July 2002, which gave the allottees seven (7) days to pay full arrears in default, the plots would be repossessed. The plot was given as W18 with the arrears given as Kshs54,019.It is my view that this was not sufficient notice for the allottees to clear the arrears. It is also in doubt that all the allottees were able to see the notice in good time. 36.According to the Respondent this is when the plot was offered to Kibii Arap Mutai P O Box 781 Kericho vide a letter of allocation dated 15th October 2003. He was required to pay Kshs150,000/= in total. Kshs54,050 within thirty (30) days and the balance within Ninety (90) days. The plot being offered is W-18.It is not clear whether the initial allottee was notified of the changes in the plot number. 37.According to the 1st Appellant, she has been on occupation of the plot since 30th October 1996. Further that the original allottee, John Cheptoo having passed on, succession proceedings were initiated vide Eldoret CM Succession Cause No. 197 of 2017 whereby the plot was listed as one of the assets of the deceased. It was her case that she has never left the suit property. The Appellants also produced a bundle of Receipts showing that the rates were paid from 26TH September 1985 upto the year 2016. 38.The Respondent relies on the sale agreement between himself and Kibii Arap Mutai dated 16th September 2008 which culminated in the certificate of lease issued on the 26th June 2013. The same is for Nakuru Municipality /Block 1/1394 measuring 0.305 Hectares for a period of 99 years with effect from 1st of January 1986. 39.The land Registrar, Caleb Wanjala Sunguti based at Kabarnet Land Registry produced the documents in respect of Nakuru Municipality /Block 1/1394. He told the trial court that the certificate of lease in the name of James Anthony Mwangi (Respondent) is not dated. Further that the same was not booked for registration and has no receiving stamp. He produced the said certificate of lease as an exhibit. In his opinion the certificate of lease was genuine. 40.DW3 No.75868 Corporal Joseph Mbugua told the court, upon receipt of a complaint from the 2nd Appellant of false registration of the suit property, he sought the documents from the Nakuru Land Registry. He was supplied with copy of Green Card and certificate of lease. He summoned Sally Mungai Mbeche Advocate who is alleged to have certified the certificate of lease. She denied hence the signatures and stamp impression were subjected to analysis by the Forensic Document Examiner. The said Document Examiner came to the conclusion that the said Advocate did not sign the certificate of lease. The Report was produced as exhibit in the case. 41.Section 26 (1) of the Land Registration Act, 2012 provides that :-“(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—(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, unprocedurally or through a corrupt scheme”. 42.It is the Appellants’ case that the Respondent fraudulently acquired the said certificate of lease in his favour. It is trite law that fraud must be specifically pleaded and proved.I am also of the view that the Respondent was required to demonstrate that he had acquired the said certificate of lease procedurally. 43.In the case of Munyu Maina Vs Hiram Gathiha Maina (2013) eKLR the court of appeal stated thus;“We have stated that when a registered proprietor’s root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register” 44.It is my view that the Respondent was not able to demonstrate how he acquired the suit property. I agree with the Appellants’ submissions that he did not produce a certificate of lease between himself and the Municipal Council of Nakuru. An examination of the certificate of lease he produced showed that the same was for 99 years, with effect from 1st January 1986. This means the Respondent could only acquire his interest from a lessee who had a lease from the Municipal Council of Nakuru. He did not produce a lease in the name of Kibii Arap Mutai. He did not produce the transfer and consent forms. It is clear that Kibii Arap Mutai does not feature as a proprietor on the register of the land for him to convey to the Respondent.There is no evidence that Stamp Duty was paid as required by the Stamp duty Act (Cap 450 Laws of Kenya) and Section 46 of the Land Registration Act. 45.In a nutshell, the Respondent did not prove on a balance of probabilities that he had acquired the suit property procedurally.In the case of Jedidah Mbare Njonjo Vs Attorney General and 2 Others (2024) eKLR the Court of Appeal stated thus;“It is also instructive to note that the evidence of the 3rd respondent has glaring gaps on how she acquired her title. In her admission, she never produced a copy of the transfer signed between herself and the 2nd respondent. She also failed to produce the receipt for payment of the stamp duty and the receipts for the transfer fees. Therefore, although she alleges that she is an innocent purchaser for value, it is evident that she did not even demonstrate how she acquired the title. Without a signed transfer form and receipts for stamp duty and transfer fees, one wonders how the 3rd respondent obtained her title. The title is not supported by any other document and it is hanging in the air, so to speak. We think, the circumstances herein, manifestly demonstrate the 2nd respondent may not-be innocent. The facts, evidence and her admission show that the veil of innocence has been removed.” 46.I also agree with the Appellant submissions that the Respondents did not produce a rates clearance certificate to show that Kibii Arap Mutai had paid the due rates by the time he was selling to the Respondent. The Respondent stated that he was registered as the proprietor on the 26th June 2013 but by 2017, the details in the Municipal Council of Nakuru still had the allottee as James Cheptoo . This is how the Administrator was able to continue paying the rates. It is not in dispute that the 1st Appellant has been on the suit property for many years. What due diligence did the Respondent conduct before purchasing the same? 47.I find that all the anomalies herein above, in respect of the certificate of lease relied on by the Respondents leads to one conclusion. That it was fraudulently acquired.The plot allottee to James Cheptoo was C-18 Race track Site and Service. The Appellants were able to demonstrate that they met the conditions and continued paying rates upto the year 2016.The Respondent failed to demonstrate that indeed the said Kibii Arap Mutai met the conditions before disposing the same to him. 48.I am not satisfied that the Respondent can defend the root of his title . He produced a letter of Allocation dated 15th October 2003 but no other evidence to confirm there was compliance with the conditions.In the case of Mbau Saw Mills Ltd Vs Attorney General & 2 others (2014) eKLR the court stated thus:“In order for an allotment letter to become operative, the allottee was required to comply with the conditions set out therein including the payment of stand premium and ground rent within the prescribed period” 49.In conclusion I find that the learned trial magistrate erred in finding that the Respondent had proved his case on a balance of probabilities.She also erred in dismissing the Appellants’ counterclaim. 50.The upshot of the matter is that I find merit on this Appeal and the same is allowed. 51.The final disposal orders are: -a.The Appeal is allowedb.Judgment delivered on the 3rd September 2024 by Honorable Rose Ombata, Principal Magistrate is hereby set aside.c.The Respondent’s case is dismissed.d.The Appellants’ counter claim is allowed hence;(i)a declaration is hereby issued that Nakuru Municipality/Block1/1394 initially designated as Racetrack site and service plot No 18 category C is the property of the estate of the late John Chelagat Cheptoo (Deceased) by dint of the law of Succession Act and did vest on his personal representatives upon death.e.That the Land Registrar is hereby directed to cancel the title in the names of the Respondent and be substituted with the registration of the Estate of John Chelagat Cheptoo (Deceased) within sixty (60) days from the date of this judgment.f.That each party do bear own costs. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 11TH DAY OF JUNE 2026.L KOMINGOIJUDGEIn presence of :-Mr Kiprop for the AppellantsNo appearance for the RespondentCourt assistant : Derrick/Irene