Masinde v Waweru & 4 others (Environment and Land Case 121 of 2020) [2026] KEELC 3766 (KLR) (16 June 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CASE NO. 121 OF 2020** **COLLINS NDOMBI MASINDE……………………………..……PLAINTIFF** **VERSUS** **FRANCIS WAWERU…………………………….…………1ST DEFENDANT** **THIKA RIDGE LIMITED………………………………….2ND DEFENDANT** **CHIEF LAND REGISTRAR………………………..………3RD DEFENDANT** **SIDDHORTH N. PATEL…………………………..………4TH DEFENDANT** **DIRECTOR OF SURVEYS………………………………...5TH DEFENDANT** **JUDGMENT** 1. This Court is called upon to resolve one of the most vexing dilemmas in Kenyan land jurisprudence; the co-existence of two apparently valid titles over the same physical parcel of land registered under different statutory regimes. 2. The Plaintiff, Fredrick Mwangi, asserts ownership of **Thika Municipality Block 9/1325 and 9/1326** (derived from Block 9/547 originally allocated to Wilson Kigutu Macharia), while the 2nd Defendant, Thika Ridge Limited, asserts an equally forceful claim to **Land Reference Number 4953/2169 (Grant I.R. 57472)**, tracing its lineage to a grant issued in favour of one Jediel Rufus Kiraithe on 30/12/1992 and thereafter transmitted to Gladys Ndira Kiraithe by assent and ultimately sold to the 2nd Defendant by way of a Sale Agreement dated 12/07/2010, culminating in registration of transfer on 6/03/2012. 3. By an Amended Plaint dated 09/07/2021, the Plaintiff herein sought for Judgment against the Defendants jointly and severally for the following Orders:- 4. **A declaration be and is hereby issued that the Plaintiff is lawfully registered as the proprietor of the properties known as Thika Municipality Block 9/1325 and Thika Municipality Block 9/1326 situated in Kiambu County within the Republic of Kenya.** 5. **A permanent injunction be issued restraining the Defendants either by themselves, their agents or servants or otherwise howsoever from interfering with the Plaintiff’s quiet and peaceful possession and occupation of the suit properties known as Thika Municipality Block 9/1325 and Thika Municipality Block 9/1326 situate in Kiambu County within the Republic of Kenya.** 6. **A permanent injunction against the Defendants prohibiting them whether by themselves, their agents or servants from entering upon, remaining upon, transferring, occupying, leasing, charging, assigning or interfering with the Plaintiff’s quiet possession of the suit properties known as Thika Municipality Block 9/1325 and Thika Municipality Block 9/1326 situate in Kiambu County in default, an eviction order do issue and the Officer Commanding Station, Thika Police Station do ensure compliance.** 7. **A declaration that the Defendants have no legal right or recognizable interest over the properties known as Thika Municipality Block 9/1325 and Thika Municipality Block 9/1326 situate in Kiambu County and any title document they hold is a nullity, null and void.** 8. **Costs of the suit.** 9. In its Statement of Claim, the Plaintiff averred that he is the lawful and registered proprietor of the properties known as Thika Municipality Block 9/1325 and Thika Municipality Block 9/1326, situated within Kiambu County, which were birthed from the lawful subdivision of the original parcel, Thika Municipality Block 9/547. The Plaintiff’s root of title traces back to his claim of a legal purchase in 2009 from the original allottee, Willison Kigutu Macharia, for a consideration of Kshs. 4 million. A transaction the Plaintiff claims was preceded by comprehensive due diligence at the relevant land registries and the verification of the Vendor’s certificate of lease. 10. In the Amended Plaint the Plaintiff claims that since the completion of the payment and the formal registration of the transfer instruments in 2009, he has maintained vacant possession and enjoyed peaceful, uninterrupted occupation of the premises, a status further solidified by the official subdivision approval granted in February 2018 following strict adherence to all statutory and procedural requirements. 11. The cause of action arose on the 2nd and 3rd of December 2020, when the 1st, 2nd, and 4th Defendants, acting through agents and hired goons, committed acts of trespass by forcefully entering the suit properties and destroying a steel gate without any color of right. These unlawful actions were accompanied by attempts to violently evict dozens of the Plaintiff’s employees and contractors, leading to significant property damage and a direct violation of the Plaintiff’s right to quiet enjoyment as protected under Article 40 of the Constitution. 12. That despite the Plaintiff timeously reporting these criminal acts to the Police, the Defendants have remained undeterred, continuing to deploy armed individuals to interfere with the Plaintiff’s proprietary interests and issuing persistent threats to maintain such interference until the Plaintiff yields possession. 13. The Plaintiff avers that the Defendants hold no proprietary interest or legal right over the suit properties and that their continued presence constitutes an illegal and unjustified infringement on his constitutional rights. The Plaintiff’s ownership has been recently re-verified by the Ministry of Lands and Physical Planning through an official search conducted on 30/11/2020, confirming his status as the absolute owner entitled to exclusive possession. Consequently, the Plaintiff is apprehensive that unless this Honourable Court intervenes to restrain the Defendants from further acts of trespass, he shall continue to suffer irreparable loss and damage, be permanently deprived of his use of the land, and face unlawful eviction from properties he has legally acquired and maintained for over a decade. 14. The suit is opposed vide the Amended Defence Statement and Counter-claim filed by the 1st, 2nd and 4th Defendant’s dated 13/09/2021. The Defendants stated that save in so far as the same is merely descriptive of the parties herein, the 1st, 2nd and 4th Defendants deny each and every allegation contained in the Amended Plaint as if the same were set out herein and traversed seriatim and call for strict proof. The 1st, 2nd and 4th Defendants admit the contents of paragraphs 1, 2, 3, and 3A of the Amended Plaint only to the extent that they describe the parties, save to clarify that the 4th Defendant’s correct name is Siddharth N. Patel and their address for service for purposes of this suit is Care of **Kimani & Michuki Advocates**, Ambassador Court, Suite E4, P.O. Box 16604-00100, Nairobi. 15. The 1st, 2nd and 4th Defendants specifically deny the contents of paragraphs 4, 5, 5A, 5B, 5C, 6, 6A, 6B, 7, 8, 9, 10, 11, 12, 13, 14, and 15 of the Amended Plaint and aver that they are total strangers to the claims made against them by the Plaintiff. In response to paragraph 4 of the Amended Plaint, the Defendants state that they are strangers to the properties described as Thika Municipality Block 9/1325 and 9/1326. They aver that they are the lawful owners of Land Reference Number 4953/2169 (I.R. 57472), hereinafter referred to as the ground suit property, which is duly registered in the name of the 2nd Defendant and situated along Garissa Road, Thika, measuring approximately 1.100 hectares. 16. The 2nd Defendant acquired the ground suit property through a Sale Agreement dated 12/07/2010 from Gladys Ndira Kiraithe for a consideration of Ksh 14 million, culminating in the registration of the transfer and issuance of title on 6/03/2012. The Defendants contend that the Plaintiff’s alleged properties and the 2nd Defendant’s ground property are geographically one and the same parcel of land. It is their position that the existence of rival titles over the same parcel under different registration regimes and survey plans is a legal absurdity and untenable. 17. The 2nd Defendant had conducted in-depth due diligence and obtained an official search on 26/05/2010 prior to the purchase, confirming the ownership history under the Registration of Titles Act (now repealed). The 2nd Defendant has enjoyed quiet possession since March 2012 and has consistently paid all land rates and rent to date. No competing claims were ever raised until the Plaintiff's recent actions. On 4/12/2020, unknown armed goons, acting as agents of the Plaintiff, trespassed on the property and blocked construction workers, an act reported to Thika Police Station. 18. The Defendants contend that the 2nd Defendant is a bona fide purchaser for value and that the Plaintiff’s title could only have been acquired through fraud, illegality, and a corrupt scheme. The Plaintiff's suit is bereft of merit, grounded in malice, and intended to economically disenfranchise the 2nd Defendant. The Defendants shall seek leave to issue a Third-Party Notice to the Director of Surveys to be enjoined in this suit to assist the Court in determining the root of this title conflict. 19. The 1st, 2nd and 4th Defendants reiterate the contents of the Statement of Defence above and plead in Counterclaim against the Plaintiff. The 2nd Defendant is the registered owner of Land Reference Number 4953/2169 (I.R. 57472) and holds an indefeasible title acquired through a transparent legal process. After the successful transfer in 2012, the 2nd Defendant took possession and enjoyed quiet occupation until August 2020 when competing claims arose during the construction of a perimeter fence. 20. That on 4/12/2020, the Plaintiff and his agents trespassed upon the property, halting construction works. Subsequently, the 1st and 2nd Defendants were served with interim Court orders on 8th and 9th December 2020, which were obtained through the Plaintiff’s non-disclosure of material facts and misdirection of the Court. This has resulted in the 2nd Defendant being economically disenfranchised, with construction works at a standstill and equipment inaccessible on-site. The Defendants contend they are entitled to mesne profits and damages for the duration of the Plaintiff’s unlawful interference. 21. The 1st, 2nd and 4th Defendants pray for Judgment against the Plaintiff for: 22. **A declaration that Land Reference Number 4953/2169 (I.R. 57472) is the sole and legitimate title document over the suit property, with the 2nd Defendant, Thika Ridge Limited, being the bona fide owner of the same.** 23. **A declaration that the purported issuance of Title Numbers Thika/Municipality Block 9/1325 and Thika/Municipality Block 9/1326 over the suit property in favour of the Plaintiff was fraudulent, illegal, wrongful, null and void for all purposes.** 24. **An order cancelling Title Numbers Thika/Municipality Block 9/1325 and Thika/Municipality Block 9/1326 issued to the Plaintiff.** 25. **The eviction of the Plaintiff, his agents, servants, heirs, or any other person claiming through him from Land Reference Number 4953/2169 (I.R. 57472).** 26. **A permanent injunction restraining the Plaintiff from trespassing, remaining, interfering, and/or dealing with Land Reference Number 4953/2169 (I.R. 57472) in any manner whatsoever.** 27. **General damages for trespass.** 28. **Mesne profits.** 29. **Costs of the suit and of the Counterclaim.** 30. **Interest on prayers (6) and (7) above at Court rates.** 31. **Such other orders, declarations, and reliefs as this Honourable Court may deem fit to grant in the ends of justice.** 32. The Plaintiff filed a reply to 1st, 2nd and 4th Defendants’ Amended Statement of Defence & Counter Claim dated 3/11/2021. In the reply the Plaintiff averred in response to paragraphs 5, 6, 7 and 68 of the Amended Statement of Defence that the suit property at the time of allocation to Wilson Kigutu Macharia was known as Thika Municipality Block 9/547 and the same was duly registered in his name and a title issued in his favour. 33. The Plaintiff denies contents of the other paragraphs and reiterates the content of paragraphs 4, 5, 5A, 5B, 5C, 6, 7 and 8 of the Amended Plaint. 34. The Plaintiff denies the content of the 1st, 2nd and 4th Defendants Amended Counter Claim and states that as at 2009 the suit property was lawfully registered in his favour and thus no valid transaction could have occurred transferring the same to the 2nd Defendant as purported. He reiterates that the titles to the two parcels are validly registered and since he followed due process. He denies acts of trespass and fraud and that the Defendants have no any valid claim to the land. 35. The Plaintiff thus prays that the 1st, 2nd and 4th Defendants’ Amended Statement of Defence and Counter-Claim dated 13/09/2021 be struck out and Judgment entered for the Plaintiff as prayed in the Amended Plaint. 36. At the same time, the 3rd and 5th Defendants also filed their Defendants’ Statement of Defence dated 21/03/2025. They averred that save what is hereinafter expressly admitted, the 3rd and 5th Defendants deny the allegations of facts in the Amended Plaint dated 9/07/2021 as if the same were herein set out verbatim and traversed seriatim. The 3rd and 5th Defendants admit the descriptive contents of paragraphs 1, 2, 3, and 3A of the Amended Plaint dated 9/07/2021. 37. The 3rd and 5th Defendants aver that they are strangers to the contents of paragraphs 4, 5, 5A, 5B, 5C, 6, 6A, and 6B of the Amended Plaint and put the Plaintiff to strict proof thereof. In further response to the Plaintiff's claim, the 3rd and 5th Defendants state that the suit property, specifically Land Reference 4953/2169 (Grant I.R. 57472), was issued on 30/12/1992 and duly registered to Jediel Rufus Kiraithe on 8/01/1992 as a New Grant. The said land measures approximately 1.100 Hectares and is situated within Thika Municipality, Kiambu County, being a leasehold interest for a term of 99 years with effect from 1/09/1992. 38. The 3rd and 5th Defendants further aver that on 2/06/1999, a Grant of Letters of Administration of the Estate of the late Jediel Rufus Kiraithe (Deceased) was issued to Gladys Ndira Kiraithe and Christine Njeri. The 3rd and 5th Defendants maintain that their roles in the registration and survey of land are strictly governed by the Land Act, the Land Registration Act, and the Survey Act, and they deny any allegations of impropriety or illegality in the discharge of their statutory mandates regarding the suit properties. 39. Thus the 3rd and 5th Defendants pray that the Plaintiff’s suit be dismissed with costs to the 3rd and 5th Defendants. **Plaintiff’s Case** 1. In the Amended Plaint dated 09/07/2021, the Plaintiff claims to be the lawful and registered proprietor of the properties known as Thika Municipality Block 9/1325 and Thika Municipality Block 9/1326 situated in Kiambu County. That the property known as Thika Municipality 9/547 was allocated to Wilson Kigutu Macharia by the Government of Kenya and once he complied with allotment conditions, he attained registration and the Plaintiff later purchased the property known as Thika Municipality 9/547 from Wilson Kigutu Macharia at a consideration of Kesh. 4 million on or about the year 2009. That before purchase he did due diligence which confirmed that Wilson Kigutu was the owner and he, Wilson supplied him with copies of the allocation documents and the Certificate of Lease confirming ownership. 2. That the Plaintiff applied and got approval for subdivision of the property known as Thika Municipality 9/547 into two parcels in or about February 2018 giving rise to the suit properties. That on or about 2nd and 3rd December 2020 the 1st, 2nd and 4th Defendants hired goons who trespassed and caused damage on the suit property and destruction. On the strength of those pleadings, the Plaintiff claims the prayers sought in the Plaint and seeks the Court’s intervention. 3. During the hearing, PW1 - Joel Kusimba testified as the Plaintiff’s witness and adopted his witness statement. He stated that he is a business man and the property manager of the Plaintiff. That he filed a Power of Attorney dated 9/02/2020 and he also produced the documents contained in the bundle of documents filed on 4/12/2020 and a supplementary list filed on 10/03/2022 all marked **“PExh 1-17”**. 4. Upon cross-examination he told the Court that the Plaintiff had employed him to manage his properties. That he is aged 48-50 years old but suffers from a disease of forgetfulness. He told the Court that the Plaintiff purchased the land from Wilson Kigutu Macharia in 2009 since the land was allocated to Macharia on 30/1/1997. He testified forwarding a cheque through a letter at page 55 as required in the Letter of Allotment of Kesh 37,750 and the agreement for sale dated 29/1/2009 at page 57 which show the Plaintiff bought the land at Kesh 4 million. 5. He told the Court that the Plaintiff bought 3 acres at Kesh 3. 5 million but that he was not present when the land was purchased and also that he had no evidence of payment of the amount referred to. He stated that he was not aware if a deposit was paid and neither did he have a transfer from Macharia to the Plaintiff additionally he testified not being aware of stamp duty payable nor whether clearance was issued. 6. According to him, the Plaintiff took possession of the land in 2009 -2020 when the hooligans invaded the land although the Plaintiff is still in possession up till now. He testified that though the Plaintiff was farming on the land and had put up a perimeter wall he had no evidence of these activities neither the approval for development of godowns. He told the Court that the land was subdivided into parcel 1325 and 1326 although he told the Court that he is not conversant with the process of subdivision. Further that although at subdivision the original title must be surrendered to the Land’s Office, he had no evidence of surrender of the original title. 7. He told the Court that he had not paid rent/rates although he has managed the property since 2010 and that he filed a complaint before the Police when the land was invaded and the Police advised him to file a civil suit. That the title for 4953/2169 was issued in January 1995 and the title was registered on 30/12/1992. 8. Upon re-examination he stated that Mr Macharia complied with the allotment conditions as shown at page 56 of the Plaintiff’s bundle and that the application letter was acknowledged on 30/1/1997. According to him the Plaintiff paid Kesh 4 million but that the addendum is not part of the bundle. He pointed the Court to the title of the Plaintiff at page 61 and that he was not aware of any restriction on the suit property. 9. He confirmed there being subdivision to the suit property with approvals as shown on pages 65 - 66 leading to issuance of titles in October 2020 as shown at page 22 and 26. The Police OB is at page 12 of the Plaintiff’s bundle. Furthermore, it was his case that the title document at page 14 of the 1st and 2nd Defendant’s bundle is not known to him. That the Plaintiff’s title has not been impeached. 10. With this the Plaintiff closed his case. **Defendant’s Case.** 1. In their Amended Statement of Defence and Counter-Claim dated 13/09/2021, the Defendants deny that the Plaintiff is the registered owner of the suit property and that 2nd Defendant is the lawful owner of the suit property having acquired it pursuant to a Sale Agreement dated 12/07/2010 between the Directors of the 2nd Defendant and Gladys Ndira Kiraithe over property Land Reference Number 4953/2169 (IR 57242) for a consideration of Kesh 14,000,000. That this led to a title being issued in the name of the 2nd Defendant on 6/03/2012. 2. That the 2nd Defendant conducted due diligence and obtained official search dated 26/05/2010 and that the title issued to the 2nd Defendant under the Registration of Titles Act (now repealed) confirms ownership. Following the registration that the 2nd Defendant has enjoyed quiet possession since March 2012 and has been paying all the rent/rates on the property annually since 2013 to date. And that there has been no claim to the suit property until the institution of the instant suit. 3. That the 1st, 2nd and 4th Defendants made a report to Thika Police Station following an act of trespass and obstruction of their workers from the suit property on 4/12/2020 and according to them these were agents and/or servants of the Plaintiff since the instant suit was filed on the same date. 4. According to the 1st, 2nd and 4th Defendants there is an absurdity relating to the suit property since the Plaintiff and the 2nd Defendant each hold a rival title document registered under different land registration regimes for the same parcel of land on the ground. Thus, leading to the Defendants concluding that the Plaintiff acquired title to the suit property through fraud, illegality and through a corrupt scheme. That is why they filed a Counter-claim. 5. Siddhartan N. Patel testified as DW-1 adopting his witness statement dated 1/02/2021 and a list of documents of even date with 12 documents marked as **“DW1-Exh 1-12”**. 6. Upon cross-examination however document No. 4 and 8 were marked for production by the author and the photographs were to be produced subject to the witness filing a Certificate of Electronic Evidence which he did. He told the Court they bought the suit property from one Gladys Kirathe for Kesh 14 million on 12/07/2010 by his Company known as Thika Ridge Limited owned by his brother and himself. He produced a Sale Agreement at page 24 of his bundle which indicate the purchasers as himself and his brother and not Thika Ridge as the purchaser. 7. He further testified that there is no document where they appointed Thika Ridge as transferee but that the title he had presented is in the name of Thika Ridge Ltd and not in his and his brother’s name. He also stated that he did not have the original document of transfer and that the document produced at page 42 is not dated and it is in the name of Gladys Kiraithe and Thika Ridge Ltd. 8. At the same time, he testified that the document at page 42 shows that it was lodged at the Land’s Office on 6/03/2012 and it shows a receiving stamp for 8/04/2011 and another stamp dated 5/05/2011 and also one for 21/12/2010. That at page 43 of the bundle there is no coloured photograph on transfer document. 9. It was his testimony that they purchased the land to do development and before the transaction they did due diligence but they never established how Gladys Kiraithe acquired the suit property. Further, that at page 17 there is entry No. 3 and it indicates that Gladys was a beneficiary of the Estate of Jadiel Rufus Kiraithe (Deceased). Yet according to DW1 they did not obtain any Grant Documents showing that the Court had confirmed a Grant in her favour. 10. That the title at page 14 shows that Jadiel Rufus Kiraithe was the owner and that the President of Kenya granted the land to him. He stated that though there is a Deed Plan at page 16 and at page 17 the Deed Plan supports issuance of title on 8/07/1992, he testified that he had never seen a Letter of Allotment in favour of Jadiel Rufus Kiraithe, nor the original document of the land or the letter of acceptance and neither the payment of the land. 11. That whereas there was condition 9 that states that the Grantee shall not sell, transfer, change possession of the land except with prior permission of the Commissioner of Land he told the Court that no such permission had been filed in Court. The emails filed at page 74 relate to the suit property which state that the suit property was acquired on 23/03/2016 yet it was his evidence that they bought the suit property on 12/07/2010. 12. According to the information at page 104 dated 18/01/2021 the Land Registrar Thika wrote a letter to the Director of Land Administration and pointed out that there are two correspondence filed CF 319572 and CF 320499. He also stated that he had not filed any correspondence report to show that the Plaintiff was fraudulent or that records were forged. 13. When he was cross-examined by **Mr Kamau** Counsel for the 3rd and 5th Defendant, he told the Court that he has his original title but he never brought it to Court. He testified having done due diligence including a search and that he visited the suit property although he could not remember when but he told the Court they never found any one on the suit property. 14. That the letter of the Registrar at page 104 dated 18/01/2021 sought guidance but this was not given. He testified to being still in possession of the land and that they are in the process of doing a boundary wall. He told the Court that he had never made attempts to correct the title. 15. When re-examined, he reiterated that they purchased the suit property with his brother since they are the owners of Thika Ridge. According to him the transfer was lodged on 6/12/2012 and it was stamped. That he undertook a search on 26/05/2011 and the transfer was registered on 6/03/2012. That the emails he referred to at page 74 were written by his Manager **Mr Chitwa**. 16. He told the Court that he did not have the CR12 in Court and that he did not produce it and neither did he produce a Resolution stating that Ridge Thika Ltd should purchase the suit property. 17. DW-2 Amos Ilavonga Shibutse testified as the Land Surveyor and produced the survey report dated 7/06/2017 and he stated that the suit property as per his report produced as DW Exhibit 12 relates to the suit property which measures 2.72 acres. 18. Upon cross-examination by Counsel for 3rd and 5th Defendants he stated that he was a registered Surveyor number 2078 but that he had no Practicing Certificate but that it could be obtained from the portal online. He stated that he received instructions from DW1 to verify beacons of the suit property vis-à-vis the official map from Survey of Kenya. He however did not file the instruction letter or email in Court. 19. He stated that he visited the suit property in 2017 but could not remember when exactly and he found the suit property vacant but people were planting flowers in front of the suit property. The official map according to him is FR No. 234/10 and that from the map he noted that several beacons were missing though the parcel had been surveyed to cadastral standard and registered. 20. He testified receiving a Deed Plan from DW1 and then he visited the offices of the 5th Defendant and he procured a map which is Survey Plan No. FR No. 234/10 and that parcels 1325 and 1326 appear to be subdivision of the parcel that was there. That from the map he produced which is at page 100 he sees all beacons on the two plots 1325 and 1326. 21. He pointed in his testimony to two new beacons being A and B from map 100 and stated that there is a relationship between the FR 624/164 and FR 324/10 since the two plans make reference to the two distinct beacons. 22. On further cross-examination by Mr Ndegwa he reiterated that his two-pager report at page 70 and 71 does not bear his professional qualifications and that he has no Practicing Licence for the year he did the report. He added that registered surveyors have no Practicing Certificates. Additionally, he stated that there are no attachments to his report, no Deed Plan, no survey plan, no photographs and that the report is not signed and neither is there a stamp on the report. Infact there is no relationship between DW2 and Maps Survey Kenya Ltd and the top cover indicates that the client is Chitani Jani and not Thika Ridge Ltd. Furthermore, there is also no letter of instruction from 2nd Defendant to Map Surveys Ltd. 23. He stated that he cannot remember when he visited the suit property and neither is this indicated in the report and in the report, he has not indicated the registered owner of the suit property and there is also no letter in the report to Survey of Kenya to purchase a map neither is there a receipt from Survey of Kenya attached. And from the report there is no indication that he ever visited the Land Registrar’s Office. Further, at Page 100 he stated that he was doing a report for LR 493/2169 but what appears in his report is for LR 1326 and LR 1325 and the same document at page 100 indicates that these are originals of 547 and there is no mention of LR 493/2169 in the report. 24. Upon re-examination, he reiterated that he is a registered surveyor and that he visited Parcel LR No 4953/2169 and that the annexure at page 72 bears his name and it also bears the stamp of Map Surveys of Kenya 25. According to DW2, FR 624/164 was registered on 12/10/2018 and this was after he had done his survey report on 7/06/2017. Thus, the survey plan at page 100 would not have been possible to verify because of the dates. He stated that he had no ID from the Institution of Surveyors of Kenya (ISK) as a registered surveyor and that the document at page 72 is a copy and the original was not produced in Court. 26. With that the Counsel for the 1st, 2nd and 4th Defendants closed their cases. 27. DW3 - George Gichere Gitonga testified on behalf of the 3rd and 5th Defendants. A Land Registrar working at the Ministry of Lands since 2021. He adopted his witness statement and produced 38 documents as exhibits, **“DW3-Exh 1-38”**. 28. On cross-examination he stated that the owner of LR 4953/2169 is grant number 57472 and current registered proprietor is 2nd Defendant having purchased from Mrs Kiraithe who had it transferred to Gladys Ndire Kiraithe as beneficiary of Mr Kiraithe who transferred to 2nd Defendant. That before transfer there was a Letter of Allotment from Jadiel Kiraithe dated 8/09/1992 which he accepted on 12/11/1992 as seen at page 34 of the 3rd and 5th Defendant’s bundle. 29. According to DW3 the property was transferred by way of Assent on 2/07/1999. From Gladys Kiraithe to Thika Ridge it was transferred on 6/03/2012 as shown at page 23. And at pages 25-26 there is a Clearance Certificate dated 22/12/2012 and there was a Letter of Consent dated 10/08/2010.That the title at page 22 relates to LR Thika Municipality Block 9/1325 which belongs to a Mr Masinde and Block 9/1326. 30. It is DW3’s testimony that these records were not in Nairobi Registry but in Thika. That at page 53 of the Plaintiff’s Bundle there is a Letter of Allotment issued in favour of Wilson Kigutu Macharia and it relates to Thika Municipality Block 9/547 dated 4/03/1997. That the Letter of Allotment as appearing at page 33 is dated 8/09/1992 but it is for un-surveyed plan. At page 37 there is a letter written to the Commissioner of Lands from Survey of Kenya and at page 39 there is instructions given to the Surveyor. According to him the records held at Ministry of Lands show that the 2nd Defendant is the owner of the suit property. Paragraph 12 of the witness denies any conversion of the suit property. 31. On cross-examination by Counsel for the Plaintiff, he stated that he was not aware of any letter from Thika Registry denying existence of the Plaintiff’s Land Documents. He stated that at page 64 of the DW3’s bundle it shows the subdivision of parcel 1325 and 1326 and at page 65, 66 and 67 of the Plaintiff’s Trial Bundle there is an approval to the Plaintiff to subdivide the land and it has not been disowned and he confirmed that this is the final approval. He told the Court that he had no official letter to show it is a forgery or that it is disowned. 32. In fact, he stated that there is no official letter stating that the records of the Plaintiff are a forgery. At page 64 of DW3 Trial Bundle there is a survey plan which he produced and it is approved, examined and duly authenticated. 33. The letter at page 104 dated 18/01/2021 authored by the Land Registrar Thika and addressed to Director Land Administration and copied to Chief Land Registrar seeking clarification for leases Block 9/1325 and 1326 which is in the custody of the Thika Land Registry and it provides Parcel file numbers - CF 319572 and CF 320499 and the letter in response to a complaint sent from the 2nd Defendant was not responded to and since 2021 the ownership records as captured in the letter have not been found to be fraudulent. 34. He further testified that at page 68 of the DW3’s bundle there are certificate of official search generated by the Chief Land Registrar. The proprietorship section shows the name to be Collins Ndombi Masinde and it shows Certificate of Lease was issued. The searches are dated 7/02/2024 for both. There is a restriction on both searches and the reason is that there is existence of parallel title. 35. It was his confession that the records are in his custody although he did not file them. That from his records he has not filed any certified documents showing that Thika Municipality Block 9/547 is owned by Francis Mwangi. Also, he stated that he has not filed any document to show that Francis Mwangi is laying claim to parcels owned by the Plaintiff. That the Application for Consent to the Commissioner of Lands is dated 3/08/2010 and the application is by Gladys Ndira Kiraithe for parcel 4953/2169 and the parcel is indicated as developed as at 2010. 36. At page 123 of the 1st, 2nd and 4th Defendants’ bundle the Sale Agreement indicates that LR 4953/2169 was sold with all the developments. Yet at page 101 there is a public compliant stating that when DW7 wanted to develop the property unknown people trespassed. The photographs produced at page 185 to 190 show that there is no development on the suit property. He then told the Court that he then does not know who is lying when there are documents stating the suit property for DW1 is developed and the Sale Agreement also stated that it was sold with developments. 37. He also pointed out the Letter of Allotment produced by DW1 at page 33 is dated 8/09/1992 and the acceptance period was 30 days and the letter of acceptance of the purported Allottee is dated 12/11/1992 and the receipts paying the stand premium are dated 12/11/1992 which is more than 30 days and the offer had lapsed yet there is no fresh Letter of Allotment. 38. DW3 further stated that he confirms that the purported allottee for the Letter of Allotment dated 8/09/1992 applied for allotment from government and there is no reason filed in Court for such Allotment. That from the documents he had filed there is no filed document to show the Plaintiff acquired fraudulently the suit property nor any report from DCI. 39. On re-examination, he stated that from the documents he has no materials to confirm conversion. That the 1st record they have is for LR 4953/2169 but that he has no records of the Plaintiff referred to at page 53 of the trial bundle. The document at page 33 of the DW3 bundle is a Letter of Allotment. That at page 32 it gives a 30 days’ notice but the Grant was issued still since the Commissioner of Lands has discretion. 40. He stated that he has not come across the report at page 101 from DCI and he according to him the photographs at pages 185-194 were not within his records. He further stated that there appears to be two registration one under RTA and one under RLA. That IR Grant 57472 in respect of transfer entry No. 6 registered on 6/03/2012. Also, Thika Municipality Block 9/547 which was a claim by one Fredrick as per the plot on Letter of Allotment at Page 53 of the Plaintiff’s bundle and page 72 DW3’s bundle. According to DW3, the bundle for 1st, 2nd and 4th Defendants at page 100 show that Block 1325 and 1326 have a relationship with Block 547. But in respect of Certificates of Leases it was his testimony that there is a letter at page 104 and that it did not elicit any records from their office relating to the two CFs. 41. He testified not having come across any records of the Plaintiff being an owner of Block 9/547 and so the subdivision letters at page 65 and 66 for subdivision of the Block for Collins do not point to authentic subdivision. According to DW3, the document at page 39 of their bundle makes reference to LR 4953/2169 and refers to locality as Thika Municipality and it relates to the document at page 37 dated 21/12/1992 it indicates it is a grant to JR Kiraithe. At page 40 the indent is 144926/7 just as the reference at page 39 and the Deed Plan is 168939 and is the same Deed Plan at page 8 of the DW3’s bundle. 42. With that the 3rd and 5th Defendants closed their case. 43. At this point Counsel for the Plaintiff asked the Court that the records of the Court should have the name Fredrick Mwangi and not Francis Mwangi which the Court approved and directed that in typing proceedings the name Francis Mwangi to be amended to read Fredrick Mwangi. 44. The parties were directed to file their written submissions. The Plaintiff filed two sets of submissions dated 10/02/2026 and supplementary submissions dated 30/03/2026. While the 1st, 2nd and 4th Defendants filed theirs dated 19/03/2026. A scan of the CTS did not land me on any submissions filed by the 3rd and 5th Defendants despite the directions issued 19/11/2025 giving parties 30 days each to file their submissions from the date of the directions and from the date of service. 45. I have considered the submissions filed, the pleadings and all Affidavits. **Analysis and Determination** 1. Having analyzed the pleadings, the witness testimonies (PW1, DW1, DW2, and DW3), documentary evidence and written submissions the central issues for determination by this Court are: 2. *Which party holds the superior and indefeasible title to the suit property;* 3. *Whether either party's title was procured through fraud, illegality or a corrupt scheme so as to vitiate its registration;* 4. *Whether the Plaintiff is entitled to the declaratory and injunctive reliefs sought in the Amended Plaint; and* 5. *Whether the 2nd Defendant is entitled to the reliefs sought in the Counterclaim.* 6. Before examining the evidence adduced by each witness with the specificity that justice demands, it is appropriate to set out the governing legal framework. 7. Title to land in Kenya is primarily regulated by the Land Registration Act, No. 3 of 2012, which consolidates earlier registration statutes. Section 24 of the Land Registration Act provides that the registration of a person as proprietor of land vests in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. Section 25 further buttresses this by providing that the rights of a proprietor, whether acquired on first registration or subsequently, 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, free from all other interests and claims whatsoever. 8. This is the doctrine of indefeasibility of title, which is the cornerstone of the Torrens system of registration that Kenya has adopted. The Supreme Court of Kenya gave authoritative pronouncement on this doctrine in the landmark decision of **Gabriel Mbui Rukenya v Murugi Waitherero & 2 Others [2021] eKLR**, where it was held that the registration of title is the act that confers indefeasibility, and that a party who challenges a registered title bears the burden of demonstrating, by cogent and convincing evidence, that the title was procured through fraud, misrepresentation or illegality. 9. It is well settled that indefeasibility is not absolute; Section 26 of the Land Registration Act carves out an exception where a certificate of title may be challenged and set aside on the ground that it was obtained by fraud or misrepresentation to which the registered proprietor was a party, or where the certificate of title was obtained by mistake. The Court of Appeal of Kenya in **Elijah Makeri Nyangw'ara v Stephen Mungai Njuguna & Another [2013] eKLR** authoritatively held that fraud must be pleaded and strictly proved and cannot be inferred or presumed from mere suspicious circumstances; it must be established by clear, unequivocal and cogent evidence. 10. Similarly, the Environment and Land Court in **Munyu Maina v Hiram Gathiha Maina [2013] eKLR** restated this principle holding that 'a party who alleges fraud must plead with particularity the nature and particulars of the fraud alleged and prove the same to the required standard. 11. **Black's Law Dictionary, 11th Edition**, defines fraud as ***'a knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment.'*** 1. Halsbury's Laws of England, 5th Edition, Volume 42, at paragraph 101, states that the essence of fraud in land registration is the deliberate and dishonest dealing with land so as to deprive a prior owner of his rights. Professor H.W.O. Okoth-Ogendo in his seminal work, **Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya (ACTS Press, 1991),** noted that the parallel existence of title systems in Kenya arising from the colonial land tenure regimes has historically generated intractable disputes of the kind now before this Court. It is equally important to note that the doctrine of bona fide purchaser for value without notice was lucidly discussed in the case of **Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR.** Following **Arthi Highway**, the Supreme Court of Kenya has further clarified in **Dina Management Limited v County Government of Mombasa & 5 Others (2023**) that a *bona fide* purchaser is not protected if the title was obtained irregularly or through illegal allocation. 2. In many decisions the Court has held that a bona fide purchaser for value without notice is one who pays a fair and reasonable price, who has no knowledge of any defect in the vendor's title, and who has done all that a reasonable man of business would have done to satisfy himself that he is buying good title. Both the Plaintiff and the 2nd Defendant claim the protection of this doctrine, and it is the specific evidence of each witness that must ultimately determine whose claim is better founded in law and fact. 3. The Plaintiff's sole witness was PW1, Joel Kusimba, who testified as the Plaintiff's property manager pursuant to a Power of Attorney dated 9/02/2020. The Court has carefully and critically examined PW1's evidence and finds it severely wanting in material particulars that go to the root of the Plaintiff's claim. PW1 candidly acknowledged at the outset that he was not present at the time of the alleged purchase of the original parcel Thika Municipality Block 9/547 in 2009 and that he had no personal knowledge of the terms of that transaction. This admission is of profound significance. The Plaintiff himself did not testify, and no explanation was offered for this conspicuous omission apart from stating that he is suffering from forgetfulness and no evidence was presented before the Court to lend credence to this claim. 4. It is a settled principle of evidence in Kenya that where a party's case depends on material facts peculiarly within their own knowledge, the failure of that party to testify exposes them to the adverse inference contemplated by Section 143 of the Evidence Act, Cap. 80, Laws of Kenya. The Court of Appeal in **Joho & Another v Shahbal & 2 Others [2012] eKLR** confirmed that where a party relies on matters exclusively within their own knowledge and fails to testify, the Court may draw an adverse inference against them. 5. Regarding the alleged purchase price of Kesh 4 (Four) Million, PW1 produced a Sale Agreement dated 29/01/2009 appearing at page 57 of the Plaintiff's bundle; however, when pressed during cross-examination, he confirmed that he had no evidence of actual payment, no receipts, no bank transfer documents, and no evidence of stamp duty payment. He further confirmed that he had no transfer instrument executed between Wilson Kigutu Macharia and the Plaintiff. 6. The absence of a transfer document is fatal to the Plaintiff's claim to have been lawfully registered as proprietor, because under the Registration of Titles Act (then applicable) and under the Land Registration Act, title passes only upon registration of a transfer, not upon mere agreement. In the case of [**Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana**](https://indiankanoon.org/doc/43747466/) **(2012) 1 SCC 656,** often cited in later Rulings like **Ramesh Chand (D) Thr. Lrs. Vs. Suresh Chand And Anr***.* the Indian Supreme Court discussed the legal status of an agreement for sale and its failure to confer title. It held unequivocally that 'an agreement for sale does not confer title; title vests only upon registration of the transfer. 7. The Court held that an agreement to sell does not transfer property ownership, stating: ***“16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property... A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts... An agreement to sell ... does not satisfy the requirements of Section 54 of the Transfer of Property Act, 1882.”*** 1. On the question of subdivision, PW1 testified that approval for subdivision of Block 9/547 into the suit parcels 9/1325 and 9/1326 was obtained in February 2018 as shown at pages 65 and 66 of the Plaintiff's bundle. He further testified that new titles in respect of the subdivided parcels were issued in October 2020 as shown at pages 22 and 26 of the Plaintiff's bundle. However, PW1 was unable to produce evidence that the original title for Block 9/547 was surrendered to the Land’s Office prior to subdivision as required by law, testifying that he had no such evidence of surrender of the original title. 2. This gap is material because under the Land Registration Act, the subdivision of a parcel requires the surrender and cancellation of the parent title as a precondition to the issuance of new titles for the subdivided portions. PW1 also conceded that no land rent or rates had been paid in respect of the suit property since 2010 when he began managing the property, and he had no evidence of actual possession such as development approvals for the godowns he alluded to or proof of farming activities on the land. 3. The DW3 - Land Registrar confirmed that no records at the Registry linked the Plaintiff or Wilson Kigutu Macharia to Block 9/547 in any way, and that he had not come across any records of the Plaintiff being an owner of that block, thus casting grave doubt on the authenticity of the subdivision letters at pages 65 and 66 of the Plaintiff's bundle. 4. The evidence of DW1, Siddharth N. Patel, a Director of the 2nd Defendant, similarly attracted significant scrutiny from the Court. DW1 testified that the 2nd Defendant purchased Land Reference Number 4953/2169 from Gladys Ndira Kiraithe for the sum of Kesh 14 (Fourteen) Million pursuant to a Sale Agreement dated 12/07/2010, and that title was eventually registered in favour of Thika Ridge Limited on 6/03/2012. However, DW1's evidence was riddled with troubling inconsistencies. Critically, DW1 admitted that the Sale Agreement at page 24 of his bundle names him and his brother as the purchasers in their personal capacities, not Thika Ridge Limited, and that there is no board resolution or other corporate authority authorising Thika Ridge Limited to purchase the property. No CR12 was produced in Court. The transfer document at page 42 of the 1st, 2nd and 4th Defendants' bundle was not dated, and DW1 could not produce the original transfer document. 5. These are not trivial omissions; they raise serious questions about the regularity of the transaction by which Thika Ridge Limited came to be registered as proprietor. Furthermore, DW1 acknowledged that during the due diligence exercise, no grant documents confirming that a Court had confirmed the Letters of Administration in favour of Gladys Ndira Kiraithe were obtained. This is a significant lapse because the land had been registered in the name of the estate of the late Jediel Rufus Kiraithe, and Gladys Ndira Kiraithe's authority to sell derived entirely from her capacity as administratrix of that estate. 6. The Grant of Letters of Administration at page 64 of the Plaintiff's bundle shows that Gladys and one Christine Njeri were granted Letters of Administration on 2/06/1999, yet DW1 confirmed that no Confirmation of Grant was obtained. Under Section 83 of the Law of Succession Act, Cap. 160, a personal representative may not sell or transfer property forming part of the estate without obtaining Confirmation of the Grant under Section 71 of the same Act. The failure to verify this fundamental prerequisite means that DW1's claim of thorough due diligence rings hollow. 7. There is also the matter of the Letter of Allotment at page 33 of the DW3 bundle dated 8/09/1992 in respect of the land subsequently granted to Jediel Rufus Kiraithe. The Letter of Allotment required acceptance within 30 days; however, the letter of acceptance is dated 12/11/1992, which is more than the permitted acceptance period. DW3 sought to explain this away by stating that the Commissioner of Lands retained discretion to issue a grant notwithstanding the lapse of the acceptance period, but no formal extension of time was produced. 8. Furthermore, the Sale Agreement at page 123 of the 1st, 2nd and 4th Defendants' bundle described the suit property as sold together with all developments; yet the photographs at pages 185 to 190 of the same bundle and DW1's own testimony that he visited the property and found it vacant are wholly inconsistent with this representation. DW3 was candidly unable to explain who was being untruthful as between the documented representation of development and the photographic evidence of vacancy. 9. The evidence of DW2, Amos Ilavonga Shibutse, the Land Surveyor, was the weakest of all the evidence led in this matter. His survey report at pages 70 and 71 of the Defendants' bundle was unsigned, unstamped, bore no professional qualifications, had no attachments whatsoever — no Deed Plan, no survey plan, no photographs and no letter of instruction from the 2nd Defendant. His report was ostensibly prepared for a client named Chitani Jani, not Thika Ridge Limited, a discrepancy for which no satisfactory explanation was given. 10. DW2 conceded that he had no valid Practising Licence for the year in which he conducted the survey, and he could not recall when he visited the suit property. Perhaps most damning of all, his report at page 100 references parcels 1325 and 1326 while purporting to verify LR 4953/2169; the survey plan FR 624/164 which he sought to rely upon was only registered on 12/10/2018, which was after the survey report dated 7/06/2017, making it factually impossible for him to have verified the beacons using a plan that did not yet exist at the time of his purported survey. 11. The Court utterly disregards DW2's evidence as unreliable and professionally deficient. The evidence of DW3, George Gichere Gitonga, Land Registrar, was the most cogent and balanced evidence in this matter. DW3 confirmed from official Ministry of Lands records that the registered proprietor of LR 4953/2169 Grant I.R. 57472 is the 2nd Defendant, Thika Ridge Limited, having been transferred from Gladys Ndira Kiraithe by registration on 6/03/2012. He further confirmed that there appears to be two registration systems operating simultaneously, one under the Registration of Titles Act and one under the Land Registration Act and that the Thika Land Registry issued a letter dated 18/01/2021 to the Director of Land Administration and the Chief Land Registrar seeking guidance on the parallel file numbers CF 319572 and CF 320499 which relate to the Plaintiff's parcels, but no response to that letter has been received to date. 12. DW3 also confirmed that as at the date of his testimony, no official document had been produced by any arm of government declaring the Plaintiff's title to be a forgery, and no DCI report to that effect had been filed in Court. He confirmed that a Search conducted on 7/02/2024 in respect of Thika Municipality Block 9/1325 showed Collins Ndombi Masinde as proprietor, and that both searches bore a restriction noting the existence of a parallel title. These admissions by DW3, a government official with custody of the official records, are material. They establish that as at the time of this Judgment, neither of the competing titles has been formally declared fraudulent through any administrative or government process. **Determination** 1. Having carefully evaluated the evidence as set out above, this Court now turns to the analytical task of determining which party holds the superior title. 2. Where two titles co-exist over the same parcel of land by reason of different registration regimes, the principle of *prior tempore, potior jure* meaning he who is first in time is stronger in right is one of the guiding tenets, though it must always be read subject to the overriding requirement of the good faith acquisition. The Court of Appeal authoritatively stated in **Dina Management Limited v County Government of Mombasa & 5 Others [2021]eKLR,** a decision subsequently affirmed by the Supreme Court, that ***'Where there exist competing claims to land and competing titles, the Court must carefully examine the root of title and the chain of transactions to determine which title is more regular, more authentic and better grounded in law.'*** 1. The root of the 2nd Defendant's title traces to a Presidential grant of a 99-year lease issued in favour of Jediel Rufus Kiraithe on 30/12/1992, a grant that was duly processed through the Commissioner of Lands and for which a corresponding Deed Plan number 168939 and Survey Plan FR 234/10 exist in the official records of the Survey of Kenya. These records were produced in Court and are corroborated by DW3's official testimony. The root of the Plaintiff's title purports to trace to a Letter of Allotment in favour of Wilson Kigutu Macharia issued on 4/03/1997, some five years after the Presidential grant had already been issued to Jediel Rufus Kiraithe in respect of the very same parcel. The Government cannot lawfully allocate land that has already been allocated; to do so would constitute a patent illegality. As the Environment and Land Court held in **Samuel Kamau Macharia v Kenya Commercial Bank Limited & 2 Others [2010] eKLR,** ***'It is axiomatic that where a title has its origins in an illegal act of the Government itself, such as the double allocation of public land, the title so derived is tainted from inception and cannot confer the protection of indefeasibility upon the holder thereof.'*** 1. Similarly, in the case of **Chebril (Suing as the Administrator of the Estate of Asha Jabril) v Jediel Kirimi Rutere & 5 Others (2023) KEELC 22318 (KLR**) the Court held that ***'a subsequent allocation of land that had already been lawfully granted to another person is void ab initio for want of capacity in the allocating authority.'*** 1. It follows, therefore, that the Letter of Allotment dated 4/03/1997 in favour of Wilson Kigutu Macharia if it does indeed relate to the same physical parcel as LR 4953/2169 was issued without lawful authority and is void at law. The allocation to Macharia took place five years after the Presidential grant to Kiraithe, and on the evidence before this Court, there is no record at the Land’s Registry of Block 9/547 being linked to any separate, distinct parcel of land that did not already form part of the area covered by the Grant I.R. 57472. DW3, the Land Registrar, confirmed in his testimony that he had not come across any records of the Plaintiff or Wilson Kigutu Macharia in relation to Block 9/547 within the Thika Registry, and that from the official records, the 2nd Defendant is the owner of the suit property. This testimony is powerful evidence against the Plaintiff's claim. 2. Turning to the question of fraud, this Court is alive to the principle enunciated by the Court of Appeal in **Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [supra]**, where the Court stated that: ***'fraud is a serious allegation that must not be lightly made, but once made, must be investigated with rigor, for the integrity of the land registration system depends on the Courts refusing to countenance titles born of fraudulent or corrupt dealing.'*** 1. The 1st, 2nd and 4th Defendants allege that the Plaintiff's title was acquired through fraud and a corrupt scheme. However, fraud cannot be presumed merely because two titles exist over the same parcel. The Defendants have not produced a DCI report, no official government letter of cancellation, and no forensic examination of the Plaintiff's documents. DW3 himself conceded that no official document had been filed establishing the Plaintiff's records to be forgeries. On the other hand, serious irregularities attend the 2nd Defendant's own chain of acquisition: the Sale Agreement naming individuals rather than the corporate entity that was eventually registered; the absence of a board resolution; the undated transfer document; the failure to confirm the grant of Letters of Administration before purchasing from an administratrix; and the representation in the Sale Agreement of a developed property that the photos show was in fact vacant. 2. These are not hallmarks of a pristine bona fide transaction. Nevertheless, the Court is guided by the Supreme Court of Kenya's binding pronouncement in **Arthi Highway Developers Limited v West End Butchery Limited & 6 Others** (Supreme Court Petition No. 38 of 2016) where it was held that: ***'The burden of proving fraud lies on the party who alleges it, and that burden is a heavy one, requiring proof on a balance of probabilities by clear and cogent evidence.'*** 1. Neither party has discharged that burden convincingly against the other. The resulting position is that this Court must determine the matter on the basis of the relative strength and antiquity of title. The 2nd Defendant's title has its genesis in a Presidential grant of 1992, documented in official Survey of Kenya records, corroborated by an official Deed Plan existing in the public registry, and supported by a chain of transmission from Kiraithe to Gladys Kiraithe by assent on 2/07/1999 and thence to Thika Ridge Limited on 6/03/2012 each step of which is recorded in the Lands Registry and confirmed by DW3. 2. The Plaintiff's chain, on the other hand, commences with an allocation in 1997 to a third party over a parcel that was already the subject of a Presidential grant, and the Plaintiff's own acquisition is unsupported by any transfer instrument, any evidence of payment, any stamp duty receipts, or any evidence of possession prior to 2009. The PW1 himself admitted to having no evidence of actual payment of the purchase price and no evidence of the stamp duty clearance. As **Halsbury's Laws of England, 5th Edition, Volume 77, paragraph 346**, states: ***'Where title depends upon a chain of registered transactions, the integrity of each link in the chain is fundamental; a break in the chain, or a link forged without legal authority, vitiates the title derived therefrom.'*** 1. On the totality of this evidence, the 2nd Defendant's title, while not without procedural blemishes, is grounded in a prior, lawful Presidential grant of 1992 that is authenticated by official survey records and corroborated by the Land Registrar. The Plaintiff's title, derived from a 1997 allocation over land already granted, is fundamentally compromised at its root and the Plaintiff has been unable to produce primary transactional documentation establishing the lawfulness of his own acquisition in 2009. **Disposal Orders** 1. Upon a careful and holistic evaluation of all the pleadings, the oral testimony and documentary evidence adduced at trial, and the written submissions filed by the parties, this Court arrives at the following final determination. The Plaintiff has failed to establish, on a balance of probabilities, that he is the lawful registered proprietor of Thika Municipality Block 9/1325 and 9/1326 entitled to the relief sought. 2. The evidence of his sole witness, PW1, was materially deficient: there was no transfer instrument from the alleged vendor Wilson Kigutu Macharia to the Plaintiff, no evidence of actual payment of the purchase price, no stamp duty payment evidence, no rent or rates payment records, no surrender of the original title upon subdivision, and no records at the Land’s Registry linking the Plaintiff or his predecessor in title to Block 9/547. 3. In contrast, the 2nd Defendant has established, through the official records produced by DW3, that the root of its title is a Presidential grant issued in December 1992 to Jediel Rufus Kiraithe over the same parcel a grant that predates by five years the allotment relied upon by the Plaintiff's alleged predecessor in title. The subsequent 1997 allocation to Wilson Kigutu Macharia over already-granted land was void *ab initio,* incapable in law of founding any valid title. While the 2nd Defendant's own acquisition is attended by procedural irregularities warranting concern, those irregularities do not displace the fundamental priority and validity of the 1992 Presidential grant that forms the bedrock of its title. 4. The Plaintiff's suit therefore fails and is dismissed. The 2nd Defendant's Counterclaim, which seeks cancellation of the Plaintiff's titles and eviction, partially succeeds insofar as the Plaintiff's titles are shown to be derivatives of a void root allocation. The Court grants declaratory relief in favour of the 2nd Defendant but declines to grant general damages and mesne profits as claimed, the Defendants having equally failed to adduce reliable evidence quantifying or establishing the losses alleged. 5. The Court is guided in this regard by the case of **Peter Mwangi Mbuthia & Another v Samow Edin Osman [2014] eKLR**. where the Court held that; ***'A claim for mesne profits must be supported by cogent evidence of the rental value of the property during the period of trespass; a bare claim unsupported by valuation evidence will not be entertained.'*** 1. Before I conclude I would like to make one last observation as was held in **Elizabeth Wambui Githinji & 2 Others v Attorney General & 3 Others [2019] eKLR**. That Land Registrar’s office had become a facilitator of fraud rather than a custodian of public records. Like in the case at hand the registry has been used as a conduit of producing double titles of one piece of land. The Land Registrar in the instant case cannot hide behind the cloak of the office when their actions point to outright professional negligence or active participation in fraud. It is not clear why there are two titles to the same piece of land issued by the same office. This issue even with the decision I have made has not been resolved. 2. This outcome of two titles is not a mistake of the system but rather the result of officials aiding and abetting unscrupulous individuals. I therefore castigate the Land Registrar’s office and condemn them to pay the cost of this suit and the Counter-claim. It is not enough that they came to testify and in fact failed to explain why there are two titles which DW3 stated are not products of fraud. So, then who issued these authentic titles from the Registrar’s Office fully signed by the said office. As Courts we must begin the painful journey of holding accountable these officers personally requiring that they pay for the costs and loss from their own pockets. The era of “***It was not me***” the famous song by Shaggy are long gone. The actions by the Land Registries violate the constitutional right to property under **Article 40**. 3. This Court accordingly makes the following final orders: 4. ***The Plaintiff's Amended Plaint dated 9/07/2021 is hereby dismissed in its entirety with costs to the 1st, 2nd and 4th Defendants.*** 5. ***A declaration is hereby issued that Land Reference Number 4953/2169 (Grant I.R. 57472) registered in favour of the 2nd Defendant, Thika Ridge Limited, is the superior, lawful and valid title to the suit property, having its root in a Presidential grant issued on 30/12/1992, which title enjoys priority over any subsequent allocation or registration derived therefrom.*** 6. ***A declaration is hereby issued that the allocation to Wilson Kigutu Macharia of Thika Municipality Block 9/547 by way of a Letter of Allotment dated 4/03/1997 was made over land already lawfully granted and was therefore void ab initio and incapable of founding any valid title.*** 7. ***A declaration is hereby issued that Title Numbers Thika Municipality Block 9/1325 and Thika Municipality Block 9/1326, issued in derivation from the said void allocation, are null, void and of no legal effect.*** 8. ***An order is hereby issued directing the Chief Land Registrar and the Land Registrar, Thika, to cancel and rectify the register in respect of Title Numbers Thika Municipality Block 9/1325 and Thika Municipality Block 9/1326 within ninety (90) days of the date of this Judgment, and to lift the restriction presently noted on both titles upon such cancellation.*** 9. ***An order of eviction is hereby issued against the Plaintiff, his agents, servants, employees, assignees and any person claiming through him, from Land Reference Number 4953/2169 (Grant I.R. 57472).*** 10. ***A permanent injunction is hereby issued restraining the Plaintiff, whether by himself, his agents, employees, servants or any person acting under his authority or on his behalf, from trespassing upon, entering, remaining upon, transferring, charging, subdividing, assigning or in any manner whatsoever interfering with Land Reference Number 4953/2169 (Grant I.R. 57472).*** 11. ***The 2nd Defendant's prayer for general damages for trespass and mesne profits is declined for want of sufficient evidential foundation.*** 12. ***As this is a case of double allocation resulting from the 3rd and 5th Defendants' negligence, the said Defendants shall bear the costs of the Suit and the Counter-Claim. The State is strongly cautioned to sanitize its registries and the Land Registrar’s put on alert that the Court will start directing that they personally bear responsibilities of glaring anomalies such as the one noted of double allocation.*** 13. ***The Officer Commanding Station, Thika Police Station, shall ensure compliance with this order upon certification by the Plaintiff of his vacation, or in default within sixty (60) days of the date of this Judgment.*** It is so ordered. **DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS ON THIS 16TH DAY OF JUNE 2026*.*** **…………………………** **MOGENI J** **JUDGE** **In the presence** of Mr. Ndegwa for the Plaintiff 1st, 2nd, 3rd, 4th and 5th Defendants - Absent Ms. Lillian - Court Assistant **…………………………** **MOGENI J** **JUDGE**