https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3761

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA** **ELCA NO E034 OF 2025** **CHRISTOPHER JBO BICHEGE........................................APPELLANT** **VERSUS** **AGENDI INVESTMENT CO LTD..................................RESPONDENT** **JUDGMENT** The Respondent filed a suit in Ol-kalou Chief Magistrate’s Court being MELC Case No. 002 of 2023. After entering appearance, the Appellant filed a Counter-claim asking for the following Orders: - 1. A Permanent injunction do issue restraining Agendi Investment Co Ltd whether by themselves, their servants, agents and any other person claiming under them from ploughing, planting, cultivating, developing, entering, trespassing into all that land known as NYANDARUA/ MUTONYORA/328 measuring approximately 1 Hectare or interfering in any way with Christopher J.B.O. Bichage’s quiet possession of the said parcel of land. 2. That an order do issue for eviction of Agendi Investment Co. Ltd and its members from all that parcel of land known as NYANDARUA/MUTONYORA/328 measuring approximately 1 Ha 3. The officer commanding Njabini Police Station to oversee the eviction and ensure compliance of the said Orders. 4. Costs of the suit and interest. 5. Any other relief that the Court may deem fit and just. The suit was founded on averments that at all material times to the Counter-claim the Plaintiff in the Counter-claim (the Appellant herein) was the registered owner of all that parcel of land known as NYANDARUA/MUTONYORA/328 measuring 1 Hectare which was allotted to her vide a letter of offer dated 25/1/1993 by the Ministry of lands & urban development and subsequently issued with an allotment letter dated 12/11/1993. He subsequently took possession of the land after satisfying all the conditions stipulated in the letter of allotment. The Appellant then erected a fence around the land and a small *mabati* structure and has since enjoyed peaceful and quiet possession of the same until 2023 when unknown people trespassed into the land without any and/or right and with the intention of forcefully taking the land. The Appellant avers that he took a loan in 11/1/1995 of Kshs. 50,000/= with the suit land as security from the Ministry of Lands and Settlement through Settlement Funds Trustees which he later repaid. He was then issued with a discharge of charge dated 30/5/2023 and a Title Deed on 12/7/2023. He then sold a portion of the land, 0.1 Hectares to one Leah Wambui Ndegwa on 23/8/2023. He complained about the interference of the suit property to the area chief, Assistant County Commissioner, National Land Commission, the Land Registrar and Ethics and Anti-Corruption commission and also to Njabini Police Station without getting any help, only to be served with a Plaint in the suit with the Respondent claiming that she had bought the suit property from him in 1993. He claimed not to have given the Respondent any Consent over use of the suit land. the Respondent and her members have adamantly refused to vacate the suit land. In the Defendant’s Defence and Defence to the Counter-claim, the Respondent specifically in the Defence to the Counter-claim denied all the allegations in the Counter-claim in toto and denied that the Appellant has any Counter-claim whatsoever over the suit land and that the Appellant had sold the suit land to the Respondent in 1993 thereby losing his interest over the same. She said that her members have been in occupation of the land since 1993 and that the same was mutated, sub-divided and distributed to her members who got individual Titles and took possession of the land since 1993 with the full knowledge of the Appellant. The Appellant gave evidence on 20/6/2025 and adopted his statement dated 19/3/2024 as has been shown in his Counter-claim. He reiterated the same in his statement word for word. He then produced: - 1. Sale agreement dated 23rd August, 2023. 2. Loan agreement dated 11th January, 1995. 3. Allotment letter dated 12th November, 1993. 4. Letter of offer dated 25th January, 1993. 5. Title Document dated 12th July, 2023 6. Payment Receipt dated 17th April, 2023. 7. Computer generated loan statement dated 17th April, 2023. 8. Police OB dated 18th October, 2023 and 29th August, 2023. 9. Transfer dated 30th May, 2023. 10. Charge dated 12th November, 1993. 11. Discharge of charge dated 30th May, 2023. 12. Certificate of official search dated 23rd February, 2024. 13. Letters from the Assistant County Commissioner dated 12th October, 2023. He disowned the sale agreement shown to him dated 10/11/1993 and said that the signature on it was not his. On cross-examination by Mr. Machage the Witness said that he was working at Ministry of Lands before moving to Public Works. He said that the beacons on the land had been removed and that he had 4 structures on ¼ of an Acre area of the suit land and the rest of the land was vacant. He said he was not aware the land was sub-divided in 2016 and therefore any map showing the sub- divisions was illegal. He also testified he had not seen the new Titles and that the only person he had sold the land to was Leah Wambui. On re-examination, Mr Osano Bichage said he had reported the trespass to the police and that his allotment of the land has never been cancelled and that in 2024 he had ordered a resurvey. When the Court visited the site on 16/7/2025 it observed that the land had been divided into 2 parts with a path in between each part being 50X100 - 100 plots. Earlier on from the evidence of the Respondent, a Director of the Respondent company, Alex Maina Mbugua testified that the company was registered in 1993 with 3 Directors. He said they bought plot No. NYANDARUA/MUTONYORA/328 at Kshs. 250,000 from the Appellant. Kshs 200,000/- was paid to him while Kshs 50,000/- was paid directly to S.F.T to clear the loan and a transfer was effected in their favour. The members, 20 in number who were crash victims entered the land in 1994, 1995 and 1997. The land was 2.5 Acres. The same was divided into 20 plots. They took possession in 2016 and in August, 2023 the Appellant demanded that they vacate the suit land. The mother Title was surrendered in order to sub-divide the land into 20 plots in 2017. He said that he had the original charge and Sale Agreement. He said in his earlier statement that they settled over 20 people on the land who had now increased due to their families to over 200 people. He then produced the following documents in support of the Respondent’s case: - 1. Sale agreement dated 10/11/1993. 2. Receipts issued by the S.F.T. 3. A copy of the Title Deed to the disputed land. 4. A copy of the search Certificate. 5. Demand letters. 6. Replies to the Demand Letter. 7. K.R.A. PIN Certificate. 8. Certificate of Registration of the Company. 9. Charge. 10. Mutation Form. 11. Area Map. 12. List of beneficiaries. 13. Title Deed – 3 in number for 3 members. On cross-examination by Mr Michira for Appellant, Mr. Mbugua said that Agendi Investment Co. Ltd was registered on 10/5/1996. He said that the original Title Deed together with other Documents got burnt in the Respondent’s office. On re-examination, Alex said that although it is the Respondent who paid the Kshs. 50,000/- to S.F.T, the receipt for the same was issued in the name of the Appellant. The same is dated 6/2/2007. The case having been closed, the Learned Trial Magistrate observed that the Appellant did not plead fraud on the part of the Respondent meaning that he was not questioning the manner in which the Respondent’s members sub-divided the land and obtained Titles and the fact that the Respondent on the other hand had produced a Sale Agreement dated 10/11/1993 between themselves and the Appellant and that the Respondent had by 1993 not yet been registered until 1996 and that none of the Parties had produced the Green card for the suit land nor called the Land Registrar to clear the air over the ownership of the suit land and that the testimony of both parties was riddled with half-truths and outright lies which were exposed when the Court visited the suit land. The Appellant, according to the learned Trial Magistrate, could not explain how all the receipts, original Charge with his signature and other documents got into the hands of the Respondent if he had not sold the land to her. He also gave lies because as he had said that only ¼ Acre had been occupied, when the Court visited the scene it observed that there were old structures, more than 5 years or so old and half of the land had residential homes some permanent and that the other half was being utilized for farming. She concluded that it must have been the Appellant who handed over the original Charge to the Respondent after which the land was sub-divided and sold/allocated to her members. The learned Trial Magistrate lamented that the land Registrar was not joined as a party to the suit in spite of there being clear evidence of corrupt Deals at the Land Registry that led to the Respondent’s members owning Title Deeds and later the Appellant being issued with a Title Deed which has the effect of extinguishing the earlier Title Deed issued to the Respondent’s members. The Trial Magistrate accordingly dismissed both the claim in the Plaint as well as that in the Counter-claim and decided that each party shall bear its own costs. Being dissatisfied with the Decision of the Court the Appellant appealed against the Decision on the Counter-claim for the following orders: - 1. That the Appeal be allowed. 2. That the Judgment and Decree of the subordinate Court dated 12/11/2025, dismissing the Counter-claim be set aside and that Judgment be entered for the Appellant as prayed for in the Counter-claim dated 19/3/2024, together with costs of the Appeal and the costs below. The Memorandum of Appeal dated 16/11/2025 gave the following as the grounds of the Appeal: - **1. THAT** the Learned Trial Magistrate erred in law and in fact by dismissing the Appellant’s Counterclaim despite finding that the Respondent (Plaintiff) had failed to prove its case on a balance of probabilities. **2. THAT** the Learned Trial Magistrate erred in law by failing to uphold the Appellant’s title as indefeasible under Sections 24, 25, and 26 of the Land Registration Act, 2012, having made a specific finding that the Respondent had failed to plead or prove fraud, misrepresentation, or illegality on the part of the Appellant. **3. THAT** the Learned Trial Magistrate erred in law and fact by shifting the burden of proof to the Appellant to "call the Land Registrar" to explain the issuance of the title, contrary to Section 107 of the Evidence Act which places the burden of proving illegality on the party alleging it. **4. THAT** the Learned Trial Magistrate misdirected herself on the applicable law regarding the doctrine of "first in time", by prioritizing the Respondent’s members’ titles—which were products of an illegal subdivision of the Appellant’s land—over the Appellant’s root title, thereby ignoring the principle that an illegal transaction cannot confer a valid title (ex turpi causa non oritur actio). **5. THAT** the Learned Trial Magistrate erred in law and fact by inferring a valid transaction between the Appellant and the Respondent, while simultaneously acknowledging the evidence that the Respondent Company was not incorporated until 1996, three years after the alleged transaction in 1993, thereby creating a contract with a non-existent entity. **6. THAT** the Learned Trial Magistrate erred in law and fact by failing to find that the Respondent and its members are trespassers, despite the Appellant producing a valid Certificate of Title (DEX-5), a Discharge of Charge (DEX-11), and evidence of loan repayment (DEX-6), which remained uncontroverted. **7. THAT** the Learned Trial Magistrate erred in law and fact by relying on her visit to the locus in quo to determine ownership based on the existence of "old structures", thereby elevating unauthorized occupation over registered proprietorship, contrary to the Limitation of Actions Act and the Land Registration Act. **8. THAT** the Learned Trial Magistrate erred in Law and in fact by failing to exercise her judicial duty to determine the dispute with finality, stating she had "no power to perform magic", and consequently failed to grant the eviction orders sought in the Counterclaim despite the Appellant establishing a superior title. **9. THAT** the Learned Trial Magistrate erred in Law and fact by ignoring the weight of the documentary evidence tendered by the Appellant, specifically the original Charge and Discharge of Charge, which proved the land was encumbered and could not have been legally transferred to the Respondent in 1993 as alleged. The Respondent did not cross-appeal. The rights of a proprietor are enshrined under Section 25 of the Land Registration Act which states that a certificate of Title issued to a proprietor shall be taken as prima facie evidence that the named proprietor is the absolute and indefeasible owner subject to such encumbrances, easements restrictions and conditions endorsed on the Title. It gives an absolute and indefeasible Title to the owner of the property. The Title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of Title bestowed upon the Titleholder under the Act. “………….The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto……………” [Appurtenant](https://www.lawinsider.com/dictionary/appurtenant) to is derived from the Norman French word which means to belong to, anything corporeal or incorporeal which is an incident of, and belongs to some other thing as principal, an addition to, adjoining to, enjoyed with, an adjunct of, usually occupied with or attached to a more important thing and passing with it upon sale, transfer, or conveyance. As was held in the case of **Esther Ndegi Njiru & Another =vs= Leonard Gatei [2014] eklr**: ***“the law is extremely protective of Title and provides only two instances for challenge of Title. The first is where the Title is obtained by fraud or misrepresentation to which a person must be proved to be a party. The second is where the certificate of Title has been acquired through a corrupt scheme”.*** It is trite law that once a person is registered as a proprietor of land, he is to enjoy all rights and privileges appurtenant thereto. | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | Section | | 26 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…. “ | | | | | In Solomon Omwega Omache & another –v- Zackery O. Ayieko & 2 others (2016) e KLR it was stated that the court has the duty to uphold the sanctity of the records from the Lands office. Section 80 (1) of the **Land Registration Act No. 3 of 2012** 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.”*** But such allegations must go beyond imaginations. They must be proved. In **RG PATEL VS 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 proof beyond reasonable doubt, something more than a mere balance of probabilities is required”* Given the seriousness of the allegations, the onus was on the Appellant to provide evidence to the Court of the alleged fraud which evidence must meet the standard of proof as was underscored by the Court of Appeal in Central Bank of Kenya Limited v Trust Bank Limited & 4 Others**[1996] eKLR**as being beyond that of a balance of probabilities but not beyond reasonable doubt. In that case, the Court rendered itself as follows: **“The Appellant has made vague and very general allegations of fraud against the respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the appellant in this case than in an ordinary civil case.”** In the case of **Urmila w/o Mahendra Shah v Barclays Bank International Ltd & another [1979] eKLR***,* the Court of Appeal took the view that the onus to prove fraud in a matter is on the party who alleges it. Similarly, in cases where fraud is alleged, it is not enough to simply infer fraud from the facts. The position that emerges is that evidence of especially high quality and strength is required to prove fraud in land cases. It is a daunting and burdensome task to prove fraud in any civil case. In the instant case, the Appellant needed to not only plead and particularize the fraud, but also lay a basis by way of credible evidence upon which the Court would make a finding that indeed there was fraud in the transaction leading to the transfer and registration of the suit land in the names of the Respondent’s members. Fraud is a quasi-criminal charge which must, as already stated, not only be specifically pleaded but also proved on a standard though below beyond reasonable doubt, but above balance of probabilities. However, from the evidence tendered in Court, the Appellant did not prove fraud at all. No evidence was tendered to this end by the Appellant at least to verify her allegations. In the absence of evidence, I am therefore unable to impeach the Respondent’s members’ Title Deeds in respect to L.R. NO. NYANDARUA/MUTONYORA/328 and the sub-divisions emanating therefrom or even find that it was acquired fraudulently and the Appellant then accordingly fails in his claim over the parcel of land No. L.R. NO. NYANDARUA/MUTONYORA/328. Costs to the Respondent. Judgment **dated and delivered at Nyandarua this 18th Day of June, 2026.** **MUGO KAMAU** **JUDGE** **In the Presence of: -** **Court Assistant: Samson** **Appellant’s Counsel: Mr.. Mr. Seneti and Mr. Mandela.** Respondent’s Counsel: Mr. Machage.