https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5135

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC CASE NO. E015 OF 2021** CORNELIUS MUTHURI MWEGA ………………….………PLAINTIFF ***VERSUS*** STANLEY KAILUTHA ………………………….………1ST DEFENDANT KANYILI FRANCIS ……………………………...……..2ND DEFENDANT BERNARD KIMATHI …………………….………..…..3RD DEFENDANT GEOFFREY ABURUKI …………………………………4TH DEFENDANT JOSEPH MUGAMBI ……………………….…………..5TH DEFENDANT **JUDGMENT** 1. The Plaintiff filed the Plaint dated the 21.04.2021; and wherein same [Plaintiff] has sought reliefs, touching on and concerning ownership/title to LR. No. Ruiri/Rwarera/2247*[hereinafter referred to as the suit property].* 2. The reliefs sought are: 3. ***A declaration that the suit property L R No. Ruiri/Rwarera 2247 in Meru County within Republic of Kenya belongs to the Plaintiff.*** 4. ***An order directing the defendants to remove any structures illegally erected on the Plaintiff’s property No. Ruiri/Rwarera 2247 and in default an order of eviction to issue.*** 5. ***An order of permanent injunction restraining the defendants, their agents, servants or anyone acting on their behalf from entering, cultivating, developing, utilizing, fencing, alienating, selling, constructing or in any other way interfering with the plaintiff’s parcels of land known as LR No. Ruiri/Rwarera/2247 in Meru county within the republic of Kenya.*** 6. ***Costs, interests and any other relied this Honourable Court deems fit to grant.*** 7. The Plaintiff’s claim is predicated on various assertions. The assertions are: The plaintiff entered into a land sale agreement with the executors of the estate of Justus Mbaabu M’Mwithimbu [deceased]; the agreement related to and concerned two plots; the plots were Ruiri/Rwarera plot number[s] 2447 and 750, respectively; the plots in question were still under adjudication; the plots were subsequently registered; the plots culminated into the suit property; the suit property was lawfully transferred to and registered in the name of the plaintiff; and the plaintiff is the registered and lawful proprietor of the suit property. 8. Additionally, the plaintiff has posited thus: The defendants invaded the land in the year 2018; the defendant have no right to and in respect of the suit property; the defendants have resorted to violence and threats of violence to occupy the suit property; the actions of the defendants have deprived the plaintiff of rights to and interest over the suit property; the actions complained of constitute trespass; and the plaintiff has suffered loss and now claims damages. 9. The defendants duly entered appearance and thereafter filed a statement of defence and counter claim. The statement of defence and counter claim is dated the 10.03.2026. The defendants have denied the assertions by and on behalf of the plaintiff. In addition, the defendants have contended thus: The suit property comprises of the portion of land which has been under the occupation of the defendants; the suit land constitutes the ancestral land of the defendants; the defendants have been in uninterrupted occupation of the suit property; Justus Mbaabu Mwithimbu [Deceased] did not own the suit land; the sale between the executors of the estate of Justus Mbaabu Mwithimbu [deceased] did not confer any rights over the suit land; the sale agreement did not vest any rights in the plaintiff; and the Plaintiff’s Certificate of Title was procured illegally. 10. Moreover, the defendants have averred thus: The defendants’ parents were the original occupants of the suit property; the defendants were the ones in occupation of the suit property during the demarcation process; the plaintiff has no rights to the suit property; the certificate of title in favour of the plaintiff was procured illegally and vide fraud; the plaintiff has never been in occupation of the suit property; and the suit property lawfully belongs to the defendants. 11. Furthermore, the defendants have averred thus: The dispute relating to the adjudication process in the area was adjudicated upon by the court of appeal; the court of appeal directed that the adjudication process be undertaken in favour of the persons who already in occupation; the order of the court of appeal was not implemented; the defendants are pursuing the implementation of the orders of the court of appeal; and there was a visitation to the locus in quo; the visitation was undertaken by the Deputy Registrar of the court; and the Deputy Registrar filed a report *vide* ELC Petition Number 3 of 2020. 12. Flowing from the foregoing assertions, the defendants have sought various reliefs *vide* the counter claim. 13. The reliefs are: 14. ***A declaration that the registration of the plaintiff as the proprietor of LR. No. Ruuri/Rwarera/2447 was obtained fraudulently and/or illegally and is thereof null and void.*** 15. ***An order cancelling the title deed issued to the plaintiff in respect of the LR. No. Ruiri/Rwarera/2447.*** 16. ***An order directing the Land Registrar, Meru, to rectify the land register in respect of the LR. No. Ruiri/Rwarera/2447 by cancelling the Plaintiff’s registration as the proprietor; and registering the defendants as lawful proprietors thereof.*** 17. ***A declaration that the defendants are the lawful occupants and beneficial owners of LR. No. Ruiri/Rwarera/2447.*** 18. ***A permanent injunction restraining the plaintiff, his agents, servants, assigns or any person claiming through him from entering upon, interfering with, or in any manner disturbing the defendants’ peaceful occupation, possession and use of LR No. Ruiri/Rwarera/2447.*** 19. ***Costs of this suit and counterclaim.*** 20. ***Any other further relief that this Honourable Court may deem just and fit to grant.*** 21. The subject matter came up for pretrial conference on the 13.05.2026, where upon the advocates for the parties confirmed that same had filed the various documents and witness statements. In addition, the advocates for the parties intimated to the court that the matter was ready for hearing. To this end, the matter was indeed fixed/scheduled for hearing. 22. The Plaintiff’s case is premised on the evidence of one witness, namely; Cornelius Muthuri Mwega. The witness testified as PW1. 23. It was the testimony of the witness [PW1] that same is the plaintiff in respect of the instant matter. In addition, the witness posited that by virtue of being the plaintiff, same is conversant and familiar with the facts of the case. Moreover, the witness averred that same has since recorded and filed a witness statement dated the 21.04.2021. Thereafter, the witness sought to adopt and rely on the statement as his evidence in chief. In this regard, the witness statement was duly adopted and constituted as the evidence in chief of the witness. 24. The witness further averred that same has also filed a list and bundle of documents dated the 21.04.2021, containing six [6] documents; and which documents, the witness sought to produce before the court as exhibits. There being no objection to the production of the documents, same were duly admitted and marked as exhibits P1-P6, respectively. 25. Additionally, the witness adverted to the plaint dated the 21.04.2021 and the verifying affidavit, sworn on even date. The witness sought to adopt and rely on the contents of the plaint. Moreover, the witness implored the court to grants reliefs sought thereunder. 26. On cross examination by learned counsel for the defendants, the witness averred that his claim pertains to and concerns the suit property, which same purchased vide the sale agreement dated the 08.10.2013. In addition, the witness averred that the sale agreement relates to two plots, namely; plots Nos. 2447 and 750, respectively. Moreover, the witness posited that the two plots, which were the subject of the sale agreement belonged to and were registered in name of Justus Mbaabu Mwithimbu at the time of sale. 27. While still under cross examination, the witness posited that even though the suit properties belonged to and were registered in the name of Justus Mbaabu Mwithimbu, he [witness] did not interact with Justus Mbaabu Mwithimbu at the time of the sale agreement. In addition, the witness averred that the said Justus Mbaabu Mwithimbu, was already deceased. The witness added that the land was sold by the sons of the deceased. 28. It was the testimony of the witness that the sons of the deceased, who sold the land on behalf of the deceased included: Gideon Mwongera Mbaabu; Patrick Muriungi Mbaabu; Phineas Kinyua Mbaabu; Bernard Mutua Mbaabu; and Thuranira Mbaabu. 29. It was the evidence of the witness that the certificate of the title of the two plots was in the name of the deceased. For good measure, the witness averred that the certificate of title, was not in the names of the sons [ the vendors]. Upon being referred to paragraph 3 [a] and [g] of the sale agreement, the witness testified that the said clauses relate to the execution of the sale agreement. In addition, the witness posited that at the time of the sale, same was availed a copy of the certificate of grant. 30. The witness further testified that same was issued with other relevant transactional documents. In particular, the witness averred that same was availed a copy of the transfer instruments [in triplicate] and completed valuation form for purposes of stamp duty. The witness posited that he has produced the various documents before the court. 31. Regarding whether the land control board consent was issued, the witness testified that indeed the consent was issued. Moreover, the witness averred that he attended the land control board, as the purchaser. Besides, the witness posited that Gideon Mwongera Mbaabu, also attended the land control board on behalf of the vendors. 32. As pertains to payment of the purchase price, the witness averred that he did not pay the stakeholder sum/deposit of the purchase price on the date of the execution of the sale agreement. However, the witness clarified that he made payment thereafter. The witness alluded to seven sets of bank statements from ABSA Bank Limited, as evidence of payment of the purchase price. 33. In particular, the witness averred that the bank statements before the court are dated the 13.02.2013; 28.11.2014; and 08.08.2014, respectively. The witness further testified that the monies at the foot of the bank statements were: Kshs. 2,500,000; Kshs. 1,200,000/=; and Kshs. 1,000,000/= only, respectively. The witness indicated that the total sum amounts to Kshs. 4,700,000/= only. 34. Additionally, the witness testified that he paid the balance of the purchase price to the vendors. In any event, the witness averred that the vendors, who were the executors of the deceased [owner of the plots] have never raised any complaint pertaining to non-payment of the purchase price. 35. Regarding whether same paid rates and rents in respect of the suit property, prior to the transfer of same into his name, the witness posited that he did not pay any rents or rates. Moreover, the witness clarified, that the suit property was freehold. In particular, the witness posited that the suit property was not rate able. 36. It was the further testimony of the witness that prior to entering into the sale agreement, same [witness] undertook physical search by visiting the suit property. The witness averred that the suit property was vacant. The witness added that there was no one in occupation of the suit property. In addition, the witness averred that upon the sale of the suit property, same entered upon and took possession of the suit property. 37. While still under cross examination, the witness testified that he proceeded to and erected a foundation on the suit property. It was the further testimony of the witness that the land was lawfully transferred to his name. Moreover, the witness posited that he is not aware of any case or cases which are pending in respect of the suit property. 38. Upon being referred to document number 6 at the foot of the defendants list and bundle of documents, the witness averred that the document is a copy of the report by the deputy registrar of the court, relating to the visitation of the suit property. However, the witness clarified that the visitation arose out of a different matter. Furthermore, the witness testified that he is not a party in the matter, wherein the visitation was ordered. The witness also added that he was neither notified of the visitation nor was he involved during the visitation. 39. It was the further testimony of the witness that the defendants, have trespassed onto the suit property. The witness averred that the defendants are in occupation of a portion of the suit property. In addition, the witness testified that as a result of the trespass, same lodged complaint with the police. Furthermore, the witness posited that the defendants have since been arrested and charged with a criminal offence. 40. Regarding the document number 4 at the foot of the defendants list and bundle of documents, the witness averred that the document is a letter from the sub county land adjudication and settlement officer – Buuri Sub County. The witness added that the letter references various plots, including plots numbers 2447 and 750. In addition, the witness averred that the letter indicates that Stanley Kairutha occupies part of 2247. The witness also averred that the letter indicates that Bernard Kimathi is also in occupation of part of plot 2447. Besides, the witness testified that the letter indicates that plot number 750 is occupied by Geoffrey Amburuki [the 5th defendant]. 41. On further cross examination, the witness testified that the letter in question, is dated the 01.10.2018. Be that as it may, the witness reiterated that he is the one who was in occupation of the land. 42. On re-examination, the witness testified that the land was sold to him by the sons of Justus Mbaabu Mwithimbu. Moreover, the witness clarified that at the time of the sale, Justus Mbaabu Mwithimbu, was already deceased. Nevertheless, the witness averred that the sons, who sold the land were already issued with the certificate of confirmation of grant. To this end, the witness averred that same was availed a copy of the grant. 1. It was the further testimony of the witness that the vendors [who included sons of Justus Mbaabu Mwithimbu] had the capacity to sell the suit property. In addition, the witness posited that same paid the entire purchase price. In any event, the witness averred that the vendors, have never raised any issue about the payments/non-payments of the purchase price. 2. Regarding occupation of the suit property, the witness testified that upon the purchase of the suit property, same constructed a two bedroomed house on the suit property. However, the witness posited that the house in question was demolished/pulled down by the defendants. In addition, the witness testified that he reported the incident to the police vide OB No. 07/12/10/2016. 3. It was the further testimony of the witness that the house which was demolished by the defendants, was in a portion of the suit property. However, the witness clarified that he is still in occupation of the suit property, save for the portion that is occupied by the trespassers. 4. Regarding the report relating to the visitation, which was undertaken by the deputy registrar, the witness averred that the report does not relate to the subject matter. Moreover, the witness clarified that he was not party to the visitation of the suit plot, by the Deputy Registrar. 5. With the foregoing testimony, the plaintiff’s case was closed. 6. The defendants’ case is premised on the evidence of one witness. The witness was Geoffrey Amburuki. The witness testified as DW1. 7. It was the testimony of the witness that same is the 4th defendant. To this end, the witness averred that same is therefore conversant with the facts of the case. In addition, the witness testified that same has since recorded a witness statement dated the 19.03.2026. Thereafter, the witness sought to adopt and rely on the contents of the statement, as his evidence in chief. In this regard, the witness statement was thereafter adopted and constituted as the evidence in chief of the witness. 8. It was the further testimony of the witness that same has also filed a list and bundle of documents dated the 19.03.2026. The witness thereafter sought to tender and produce the documents, as exhibits before the court. In the absence of any objection to the production of the documents, same were admitted and marked as exhibits D1 to D6, respectively. 9. Additionally, the witness referenced the statement of defence and counter claim dated the 10.03.2026; and the verifying affidavit attached thereto. The witness thereafter invited the court to grant the reliefs in terms of the counter claim. 10. On cross examination by learned counsel for the plaintiff, the witness testified that same entered on the suit plot sometime in the year 1998. The witness averred that he has been in occupation of the suit plot for more than 20 years. In addition, the witness averred that before he came to reside on the suit land, same was staying at his ancestral home in Tigania East. 11. It was the further testimony of the witness that same has recorded and filed a witness statement. Moreover, the witness posited that he has indicated that the suit land, is his ancestral land. In addition, the witness averred that he inherited the land from his father. Nevertheless, the witness conceded that he has not indicated the name of his father, in the witness statement. 12. The witness further testified that he is representing the rest of the defendants. Moreover, the witness averred that the rest of the defendants also inherited portions of the suit property from their fathers. Be that as it may, the witness conceded that the rest of the defendants, have equally not indicated the names of their fathers in the witness statements. 13. While still under cross examination, the witness testified that he has not brought to court any document to show that the suit land, ever belonged to his father. In addition, the witness admitted that he has also not produced any grant of letters of administration to authorize him to act, for and on behalf of his father. 14. Regarding the acreage of the land being claimed by him, the witness averred that he is not familiar with the acreage. In any event, the witness posited that the land is yet to be surveyed. In addition, the witness averred that he is waiting for survey, to be done before the size of the land, he is claiming can be ascertained. 15. It was the further testimony of the witness that he has been in occupation of the land for 50 years. Moreover, the witness posited that the defendants have extensively developed the land. However, the witness admitted that he has not brought any evidence to show the developments that same have undertaken on the suit property. 16. Regarding case number ELC Petition No. 3 of 2009, the witness averred that the plaintiff was not a party to the said suit. In addition, the witness posited that the petition in question, was heard and determined. The witness conceded that the petition was dismissed. 17. With regard to the case before the court of appeal and consent arising therefrom, the witness testified that he was not a party to the said matter. In addition, the witness admitted that the plaintiff herein was also not a party to the matter at the court of appeal. 18. Regarding the report filed by the deputy registrar, the witness clarified that the report arose from ELC Petition Number 3 of 2020. The witness however, admitted that the plaintiff herein was not a party in the said petition. The witness also conceded that the plaintiff was not present during the visitation to the locus in quo. 19. On further cross examination, the witness testified that he has averred that the plaintiff procured and obtained title by fraud. However, the witness admitted that he is aware that certificates of titles, are ordinarily issued by the Chief Land Registrar /Land Registrars. Be that as it may, the witness conceded that he has not sued the Chief Land Registrar. 20. Regarding whether the defendants have trespassed onto the land in question, the witness averred that same have not trespassed onto the suit property. Moreover, the witness posited that they [defendants] have not used force /violence to enter onto the suit property. However, the witness admitted that the defendants have been arrested and charged with a criminal offence. In particular, the witness referenced Exhibit P3. The witness clarified that the charge at the foot of exhibit P3, relates to assault. 21. It was the further testimony of the witness that same was also arrested and charged with a criminal offence in the month of May, 2026. Nevertheless, the witness clarified that the defendants, himself included, have not been found guilty of any criminal offence. 22. On re-examination, the witness testified that the plaintiff has never been in occupation of the suit property. Upon being referred to the report by the Deputy Registrar [exhibit D4] the witness averred that the report is dated the 23.01.2024. In addition, the witness posited that the report confirms that it is the defendants, who are in occupation of the suit property. 23. It was the further testimony of the witness, that the suit property was previously occupied by their [defendants’] parents. Nevertheless, the witness admitted that their parents did not acquire any documents or titles in respect of the suit property. Be that as it may, the witness maintained that the suit property is there ancestral land. 24. With the forgoing testimony, the defendants’ case was closed. 25. Following the conclusion of the hearing, the advocates for the parties sought directions as pertains to the filing and exchange of written submissions. To this end, the court proceeded to and issued directions. The directions were: The Plaintiff to file and serve written submissions within 14 days from the date of the directions; the defendants shall file and serve written submissions within 14 days from the date of service; and the plaintiff shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 26. The plaintiff filed and served written submissions dated the 24.06.2026. The plaintiff has highlighted and canvassed three [3] key issues. The issues are: Whether the plaintiff is the bona fide owner of LR No. Ruiri /Rwarera/2247 [the suit property]; whether the plaintiff is entitled to the reliefs sought; and whether the defendants are entitled to orders sought *vide* the counter claim. 27. The Defendants filed written submissions dated the 07.07.2026 and wherein same has canvased four [4] key issues. The issues are: Whether the plaintiff’s title to the suit property is liable to impeachment; whether the plaintiff was a bona fide purchaser for value without notice; whether the defendants have established adverse possession and entitlement to the reliefs sought vide the counter claim; and whether the plaintiff is entitled to the reliefs sought *vide* the plaint or otherwise. 28. Having reviewed the pleadings filed; the evidence tendered [both oral and documentary]; and upon consideration of the submissions by /on behalf of the parties, four [4] key issues emerge for determination. The issues are: Whether the plaintiff has established/proved rights to or entitlement in respect of suit property; whether the defendants have proved fraud to the requisite standard or otherwise; whether the defendants have any rights; interest; and entitlements to the suit property or otherwise; and what reliefs [if any] ought to issue. 29. Regarding the first issue, namely; whether the plaintiff has established/proved rights to or entitlement in respect of suit property, it is imperative to reiterate that the plaintiff bears the burden of proving that same is the lawful and legitimate owner of the suit property. In an endeavor to prove ownership; or title to the suit property, the plaintiff is obligated to tender and place before the court credible evidence underpinning the process leading to the issuance of the certificate of title. 30. It is important to underscore that the issuance of a certificate of title, by and of itself, does not guarantee that the bearer of the certificate of title is the legitimate owner of the subject land. Suffice it to state that where the certificate of title is under challenge, it behooves the holder of the title, to verify the root to the title. 31. In the case of **Presbyterian Foundation v Kibera Siranga Self Help Group Nursery School [2023] KECA 371 (KLR),** the Court of Appeal reaffirmed the position that was highlighted in the case of **Munyu Maina versus Hiram Gathiha Maina [2013]eKLR** and stated thus: ***The best evidence of ownership of immovable property is the title deed to it and that is why the question of the root of title is important. Root of title is the deed to which title to a property is ultimately traced to prove that the owner has good title. Accordingly, when there are competing interests as in this case, the parties are required to give evidence of title starting with a "good root of title." A good root of title and an unbroken chain of ownership is required. To be a good root of title, a document must satisfy each of the following requirements:*** ***(a) it must deal with or show the origin of the ownership of the whole legal and equitable interest in the land in question;*** ***(b) it must contain a recognizable description of the property;*** ***(c) it must not contain anything that casts any doubt on the title.*** 1. Has the plaintiff proved the root of his title to the suit property? The plaintiff testified before the court and adduced evidence thus: The suit property comprises of what was previously plot numbers 2447 and 750; the two plots belonged and were registered in the name of Justus Mbaabu Mwithimbu; Justus Mbaabu Mwithimbu is deceased; the estate to Justus Mbaabu was succeeded by his sons; the sons were appointed as the administrators/executors of the estate; the executors of the estate [Gedion Mwongera Mbaabu and Patrick Muriungi Mbaabu] entered into a sale agreement with the plaintiff; the sale agreement was reduced into writing; the sale agreement was fully executed by the parties thereto; the plaintiff paid the consideration; the suit property was thereafter transferred to and registered in the name of the plaintiff; and the plaintiff was duly issued with a certificate of title. 1. Additionally, the plaintiff testified thus: The plots which were being sold by the executors of the estate of Justus Mbaabu Mwithimbu [deceased] did not have titles at the time of the sale; the plots were still subject to adjudication; the adjudication process had been concluded; the adjudication records confirmed the ownership status of the plot in question; the plots in question was thereafter transferred to the plaintiff; the plaintiff was issued with a letter of confirmation of ownership; and the adjudication process, which birthed the suit property has never been challenged or impeached. 2. It was the further testimony of the plaintiff that after the suit plots were transferred to and registered in his name at the adjudication, the records were later transmitted for purposes of registration; and the same was ultimately issued with a certificate of title over and in respect of the suit property. 3. It was also the testimony of the witness that the same paid the entire purchase price to and in favour of the vendors. In any event, the witness posited that the vendors [the executors of the estate of Justus Mbaabu Mwithimbu] have never complained about the payments or none payment of the purchase price. 4. My understanding of the testimony of the plaintiff is to the effect that what now comprises the suit property, was previously subject to the adjudication and demarcation process. In addition, I hear the plaintiff to be stating that the plots, which birthed the suit property, were adjudicated in favour of Justus Mbaabu Mwithimbu [now deceased]. 5. Furthermore, the plaintiff has also posited that upon the death of Justus Mbaabu Mwithimbu, two of his sons, namely; Gideon Mwongera Mbaabu and Patrick Muriungi Mbaabu, were constituted as the executors of the estate. Besides, the witness averred that the two executors entered into a sale agreement dated the 08.10.2013, whereupon the two plots [plots number 2447 and 750] were sold to the plaintiff. Besides, the plaintiff averred that at the time of the sale, the plots were still under adjudication and that after the sale, the plots were transferred and registered in his name. To this end, the plaintiff referenced the letter of confirmation dated 26.08.2019. 6. Though the defendants had attempted to attack the sale agreement, that was deployed to sell the suit property to the plaintiff, there is no gain saying that the defendants cannot be heard, to question or query, whether or not the purchase price was fully paid. The defendants were not party to or privy to the sale agreement. The defendants are busybodies as pertains to the payments or non-payment of the purchase price. 7. It is common ground that the defendants herein are not acting for and on behalf of the estate of Justus Mbaabu Mwithimbu [deceased]. Moreover, it is not lost on me that the executors of the estate, who sold the suit property, have not complained about the purchase price. Surely, the contention by the defendants’ counsel that the there was no evidence of full payments of the purchase price, is erroneous and misses the point. 8. There was also the contention that the suit property was the subject of objection before the land adjudication and therefore, Justus Mbaabu Mwitimbu did not acquire a valid title. Nevertheless, it is apparent that the only objection which was filed relates to plot number 4037. [See exhibits D3], which was tendered by the defendants. 9. Suffice it to state that objections, are ordinarily lodged against designated plots or parcel numbers. To this end, an objection relating to plot number 4037, cannot affect or impact upon plots numbers 2447 and 750, which are the ones which birthed the suit property. Moreover, it is apparent that the objection number 3068, which is the objection that touched on plot number 4037, was dismissed. 10. Other than the foregoing, the defendants also sought to impeach the plaintiff’s title on the basis of a letter dated 01.10.2018 by the sub county land Adjudication officer – Imenti North/Imenti South/Meru Central and Buuri sub counties. However, the said letter merely indicated that a party, the defendants not excepted, ought to have filed objections. Moreover, the said letter intimates that the various properties, including plots 2447 and 750, respectively, were already registered. 1. My reading of the letter dated the 01.10.2028 [exhibit D4] drives me to the conclusion that there was no valid objection, that was ever lodged against plots numbers 2447 and 750. The question that does arise is, How does that letter negate[s] the plaintiff’s title. 2. In addition, the defendants also contended that suit property was affected by the consent of the court of the appeal. However, it is not lost on me, that when DW1 [Geoffrey Amburuki] testified, same conceded that neither the plaintiff nor the defendants, were parties to the court of the appeal matter. 3. This is what DW1 stated while under cross examination by learned counsel for the plaintiff: “I ***have also indicated that in 2014 there was a case at the court of the appeal. I have not alluded to the details of the case in terms of case number. I am familiar with the case at the court of appeal. I was not a party to the case at the court of appeal. The plaintiff was also not a party at the court of appeal***” 1. I am afraid, the reference to and invocation of the consent by the court of appeal, does not help the defendants’ case. The defendants were not parties thereto. The orders therein do not relate to the defendants. In any event, the orders if any, that were issued by the court of appeal, would also not affect the plaintiff or his predecessors in title, who were not parties to the said case. 2. Notwithstanding the foregoing, and for the sake of academic arguments only, it is evident that the consent recorded before the court of appeal did not give any one land. On the contrary, the consent decreed that the adjudication process was to proceed from where it had reached and the parties thereto, were at liberty to lodge objections [if any], in accordance with the **Land Adjudication Act**, **Chapter 284, Laws of Kenya.** 3. I have gone to great lengths to ascertain, the validity of the objections that have been mounted against the plaintiff. Sadly, I have not discerned any credible basis, to impugn the certificate of title in favour of the plaintiff. I wish to add that the plaintiff’s title is a product of the adjudication and demarcation process, which was not objected to. In any event, no objection can be lodged *vide* the court proceedings. 1. In a nutshell, I am convinced that the plaintiff has tendered and placed before the court credible evidence speaking to the process, leading to the issuance of the certificate of title in his name. Quite clearly, the plaintiff bought the rights of the adjudicated owners of what is now, the suit property. 2. I wish to turn to the second issue, namely; whether the defendants proved fraud to the requisite standard? The defendants had contended that the plaintiff procured and obtained the title of the suit property *vide* fraud. Moreover, the defendants ventured forward and supplied the particulars, of fraud. 3. It is trite and established that whosoever impleads fraud, the defendants not excepted, are obligated to tender and produce plausible evidence, to support the plea of fraud. In addition, it is settled that fraud must be proved to the satisfaction of the court. Simply put, the applicable standard for proving fraud is the intermediate standard. 4. In the case of **Kiarie & 2 others v Magera [2018] KECA 467 (KLR),** the Court of Appeal reiterated the obtaining legal position pertaining to the standard of proof applicable to claims of fraud. 5. The court stated thus: **The law is clear and we take it from the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” [Emphasis added].The same procedure goes for allegations of misrepresentation and illegality. See Order 2 Rule 4 of the Civil Procedure Rules.** **26.As regards the standard of proof, this Court in the case of Kinyanjui Kamau vs George Kamau [2015] eKLR expressed itself as follows;-“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: “...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases...”...In cases where fraud is alleged, it is not enough to simply infer fraud from the facts."** 1. Have the defendants satisfied the threshold? To begin with, it is common ground that what comprises the suit property, was the subject of the adjudication and demarcation process. No evidence was tendered to show that these defendants lodged any objection, to challenge the demarcation of the land to Justus Mbaabu Mwithimbu [now deceased]. 2. Additionally, the defendants are aware that the suit property, previously belonged to Justus Mbaabu Mwithimbu [deceased]. If there were any fraud, then it behooved the defendants to implead the estate of Justus Mbaabu Mwithimbu. However, there is no gain saying that the estate of Justus Mbaabu Mwithimbu [deceased] has not been impleaded or joined in the subject suit. Quite clearly, the plea of fraud is premature and misconceived. 1. I also wish to point out that there is no way the plaintiff, would have transferred the suit property, to his name without the land adjudication department and the land registry. It then means that if there was any fraud, the designated government offices [if any] ought to have been joined. The same has not been joined even though, allegations of fraud, have been bandied around. 2. Furthermore, it is also worth stating that though the defendants, have raised the plea of fraud, the defendants have not tendered before the court any documents, to anchor their claim of ownership. Surely, one cannot be defrauded of what he/she does not own. 3. I am afraid that the totality of the evidence that was tendered by the defendants, falls short of the established threshold, for proving fraud. Notably, the holding in the case of **Doshi v Chemutut & 7 others [2025] KECA 776 (KLR),** suffices in respect of the instant matter. 4. The Court of Appeal stated thus: **“Apart from the omission to plead fraud, nor particulars of fraud against the named defendants, Mr. & Mrs. Walker, were provided. In the often-cited decision of this Court in the case of Vijay Morjaria v Nansingh Madhusingh Dabar & Another [2000] eKLR, Tunoi, JA. stated that:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”** 1. Next is the issue of whether the defendants have established any rights, interest, or entitlements over the suit property. The defendants have laid a claim to the suit property on various perspectives. I shall examine the perspectives sequentially. 2. Firstly, the defendants have posited that what comprises of the suit property was their ancestral land. However, during cross examination, DW1 testified and stated that he [DW1] and the rest of the defendants came to the land in 1998. Moreover, the witness averred that before coming to the suit land, same was residing at their ancestral land in Tigania East. 3. This is what DW1 stated: “***I entered onto the land in 1998. Before the year 1998, I was staying/residing at home. My home is at Tigania East. Tigania East is my ancestral home/place. I have recorded that the suit property was ancestral land. I have indicated that my ancestral land is Tigania East.”*** 1. I do not wish to belabor the point. The evidence tendered by DW1 is inherently contradictory. He says that his ancestral land is at Tigania East. He asserts that before coming to the suit land, he was staying at his ancestral place. How then, can he contend that the suit land is ancestral land. To my mind, DW1 and by extension the defendants, cannot speak from both sides of the mouth. They must choose one stand point. However, the point is that the testimony on record is inconsistent; and inherently, contradictory. 1. The other aspect that has been deployed to claim the land relates to the decision of the court of appeal. However, while dealing with issue number one, I pointed out that the defendants were not parties to the court of appeal matter. In any event, the consent before the court of appeal, did not give any one land. The court of appeal merely reaffirmed the position that the land in question need to be dealt with, in accordance with the land adjudication process. 2. The defendants have also anchored their claim on the basis of occupation of the suit land. It was contended that the defendants have been in occupation of the suit land for more than 50 years. In addition, it was posited that the defendants have undertaken extensive developments on the suit property. I am not sure how; the defendants have computed 50 years. However, the testimony of DW1 speaks [if at all] of occupation commencing in 1998. 3. I concede that I am not a good mathematician. However, the duration between 1998 to 2021, when the suit was filed, does not work to 50 years. Be that as it may, it is acknowledged that what comprises of the suit property, was the subject of adjudication and demarcation process. So, if the defendants were in occupation, then same ought to have pursued their claims and Interests, during the adjudication and demarcation process. 4. There is no gain saying that the rights, which the defendants are seeking to canvass, ought to have been canvassed before the land adjudication officers, for purposes of ascertainment of the interest [if any]. The land adjudication process did not discern any interest in favour of the defendants. The bottom line is, the defendants have no right to the suit property. 5. Moreover, I wish to add that occupation by and of itself, without any colour of rights over the land in question, cannot confer /bestow any title, to the occupants. To my mind, the occupation of the suit property, cannot be deployed to give the defendants title. 6. Finally, the defendants have also argued that same have acquired title to the suit property, on the basis of adverse possession. However, I beg to point out that the claim of adverse possession, has only been raised vide the submissions by learned counsel for the defendants. Adverse possession was not pleaded. Moreover, it is trite that submissions, cannot be used to sneak in a new cause of action, which was not pleaded. 7. In the case of **Moi v Muriithi & another [2014] KECA 642 (KLR),** the Court of Appeal highlighted the position in the following manner: ***Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.*** 1. The defendants cannot be heard to prevaricate from one position to the other. The defendants must choose their cause of action. The defendants cannot oscillate between fraud and adverse possession. 2. Notwithstanding, the foregoing, I also wish to point out that a party cannot on one hand, be heard to challenge the title of the adverse party by fraud, while on the other hand, propagating the plea of adverse possession. The two causes of action are mutually inconsistent. The two causes of action, cannot be driven in the same vehicle. 3. In the case of **Wanyama & another v Nyuki & 8 others (Registered Trustees of Methodist Church in Kenya) [2026] KECA 261 (KLR),** the court of appeal highlighted the position in clear terms. 4. The court stated as hereunder: ***“In our view, this assertion is peripheral, and falls on the wayside for the reason******that a party cannot mount a claim for adverse possession and, at the same time, challenge the validity of a title. The presumption is that, at the time when a party approaches the court to assert a claim of adverse possession, there is no question surrounding the title’s ownership, as there is already a known registered owner to the suit property. In so holding, we are persuaded by the decision of the ELC at Malindi in Haro Yonda Juaje vs. Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) KEHC 6665 (KLR) where it was held: the decision of the Minister.”*** ***“[29]One cannot succeed in a claim for adverse possession before conceding that indeed the registered proprietor of the land is the true owner of the said land. It does not lie in the mouth of a claimant to aver that the title held by the registered proprietor was fraudulently acquired and then claim the same parcel of land under the doctrine of adverse possession. If the Plaintiff's averment is that the title which was issued to the Defendant was fraudulently acquired, then his cause of action would be for the rectification of title by cancellation pursuant to the provisions of Section 143 of the Registered***[***Land Act***](https://kenyalaw.org/akn/ke/act/2012/6)***and not adverse possession. He cannot use the doctrine of adverse possession to go around*** ***28.In the same vein, the ELC at Nairobi in Njue vs. Matiabe & 3 others (2023) KEELC 17361 (KLR) rightly emphasised that:“The moment the person claiming adverse possession contests and impugns the validity of the registered proprietors title, the claim for adverse possession is defeated and thus becomes legally untenable. In such a situation, the claimant is at liberty to pursue a cause of action for fraud or better still, trust, which causes of action are antithetical to and cannot co-exist with a claim for adverse possession.”*** 1. My answer to issue number three [3] is to the effect that the defendants, have been approbating and reprobating as pertains to the nature of their claims to the suit land. Nevertheless, the defendants have no recognizable interests on the suit property. 2. The last issue that falls for consideration is the reliefs to be granted. The plaintiff contended that the actions by /on behalf of the defendants, have deprived same of the suit property. In particular, the plaintiff posited that the offensive actions constitute trespass. I agree. 3. The plaintiff is the registered owner of the suit property. By virtue of being the registered owner of the suit property, the plaintiff is entitled to absolute and exclusive occupation. It then means that if a third party, the defendants not excepted, are on the land, without the plaintiff’s consent, then the actions of the third party amounts to trespass. 4. In the case of **Church Commissioners for Kenya of the Anglican Church of Kenya v Wayuga [2024] KECA 1048 (KLR),** the Court of Appeal supplied the definition of trespass and the acts constituting trespass thus: “***Trespass is described under the***[***Trespass Act***](https://kenyalaw.org/akn/ke/judgment/keca/2024/1048/aknkeact196248)***Cap 294 to mean “any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof”. On the other hand, a continuing trespass is defined in Jowitt’s Dictionary of English Law 2nd Edition (page or paragraph?) as follows:-“A continuing trespass is one which is permanent in its nature; as where a person builds on his own land so that part of the building overhangs his neighbor’s land”.In Black’s Law Dictionary 8th Edition (page or paragraph?), a continuing trespass is defined as:-“A trespass in the nature of a permanent invasion on another’s rights, such as a sign that overhangs another’s property.” Finally, in Clerk & Lindsel on Torts 16th Edition, paragraph 23 - 01, it is stated that:-“Every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues.”*** 1. On the other hand, the defendants sought to be declared as the owners of the suit property. The defendants raised diverse claims. The defendants impleaded fraud. Thereafter, the defendants went to adverse possession. Whichever the cause of action, that the defendants were canvassing, or propagating, none was proved. 2. I have no hesitation in my mind, in finding and holding that the defendants have no claim to the suit property. None was established. And none can be declared. **Conclusion** 1. The Plaintiff approached the court seeking to be declared as the owner of the suit property. The plaintiff was obligated to tender credible evidence to buttress his claim. Suffice it to state that the plaintiff indeed, adduced evidence to vindicate his claims and entitlement to the suit property. 2. On the other hand, the defendants canvassed a counter claim, on the basis of fraud. However, the defendants failed to tender cogent, plausible or credible evidence. It is instructive that a party can only accrue positive orders from a court of law, on the basis of evidence. Absent evidence, the plea collapses to the ground. **Final Orders:** 1. Flowing from the foregoing analysis, the final orders that commend themselves to the court are: 2. ***The Plaintiff’s suit be and is hereby Allowed.*** 3. ***A declaration be and is hereby issued that the Plaintiff is the lawful and legitimate owner of L R No. Ruiri/Rwarera/2247 [the suit property].*** 4. ***The defendants be and are hereby directed to vacate and hand over vacant possession of the suit property within 90 days from the date hereof.*** 5. ***In default by the defendants to vacate the suit property in line with clause [c] hereof, the plaintiff shall be at liberty to evict the defendants and to demolish any structures constructed thereon. In this regard, an eviction order shall issue.*** 6. ***In the event of eviction being carried out by the plaintiff, the costs incurred shall be certified by the deputy register and be recovered from the defendants.*** 7. ***There be and is hereby issued an order of permanent injunction to restrain the defendants either by themselves, agents, servants, employees, or anyone acting under their instructions from entering upon or in any other way interfering with the plaintiff’s right to the suit property.*** 8. ***Costs of the suit be and are hereby awarded to the Plaintiff.*** 9. ***Costs of the counter claim are equally awarded to the Plaintiff.*** 10. ***The Costs in terms of [g] and [h] shall be agreed upon and in default be taxed in the conventional manner.*** 11. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU ON 30TH DAY OF JULY, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE.** In the presence of: Court Assistant: Zakayo Mr. Elias Mutuma for the Plaintiff Mr. Maranya for the Defendants