Cyrod Holding Limited v Marite & 4 others (Environment and Land Case E011 of 2022) [2026] KEELC 3746 (KLR) (18 June 2026) (Judgment)

Cyrod Holding Limited v Marite & 4 others (Environment and Land Case E011 of 2022) [2026] KEELC 3746 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3746 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Case E011 of 2022 LC Komingoi, J June 18, 2026 Between Cyrod Holding Limited Plaintiff and Elizabeth Mpae Marite 1st Defendant Margaret Marite 2nd Defendant Muchiri Marite 3rd Defendant Museveni Marite 4th Defendant Daniel Marite 5th Defendant Judgment 1.By the plaint dated 7th February 2022, the Plaintiff has filed this suit against the Defendants jointly and severally seekinga.A permanent injunction restraining the defendant, their agents or any other person claiming through then from trespassing on Kajiado/Kaputiei North/1244.b.Eviction of the defendants and demolishing of any structures on the land.c.Mesne profits. 2.Upon being served with copies of Plaint, and summons to Enter Appearance, the Defendants filed a statement and counterclaim dated 7th April 2022.In their counterclaim they seek the following reliefs:a.A Declaration that the Plaintiffs in the counter-claim are the absolute owners of the whole of that parcel of land known as LR No. Kajiado/Kaputiei North/ 1244 by transmission and or adverse possession;b.An Order of Mandatory Injunction restraining the Defendants in the counter-claim by themselves, their agents or servants from entering, interfering, transacting, transferring, leasing, occupying using or in any other way interfering with the Plaintiffs' (in the counter-claim) quiet possession and enjoyment of the suit parcel of land registered and known as Kajiado/Kaputiei North/ 1244.c.An order directing the 3rd Defendant to cancel all excisions, transfers, registration made in favour of the 1 st and 2nd Defendants and substitution thereof be made in favour of the Plaintiffs in the CounterClaim.d.Special and general damages; ande.Costs of this suitf.Any other relief this court deems fit and just to grant. 3.The Plaintiff filed a reply to defence and defence to counterclaim dated 26th April 2022. 4.The 2nd Defendant in the counterclaim filed a defence to the counterclaim and preliminary objection on the grounds that the Plaintiffs in the Counterclaim lack the locus standi to institute this suit. 5.The 3rd and 4th Defendants to the Counterclaim filed a statement of Defence to the counterclaim dated 20th February 2023. Evidence Of The Plaintiff 6.PW1, Rodrick Muhoro Ngugi a director of the Plaintiff adopted his witness statement as his evidence in chief. He also produced the documents in the Bundle of Documents dated 30th November 2022 as exhibits P1 to P6 respectively. He told the court they bought the suit property but when they went to take possession the Defendants became violet and threatened them. 7.When cross examined by Mr. Ondigi for the defendants he stated they bought the suit property from Enkanasa Limited. He said he was relying on the sale agreements dated 11th August 2021 and 28/10/2021. He further stated that he did due diligence before purchasing the suit property. He stated that he visited the land and it was vacant. He did not see any animals grazing. He obtained consent from the land control Board which he handed over at the Land Registry. It was his testimony that the defendants sold the land in 1988. 8.He further stated that the structures may have been put up later. 9.PW2, Mercy Wangari Muhoro adopted her witness statement dated 8th April 2022 as his evidence in chief. She stated that she is one of the directors of the Plaintiff. 10.When cross examined by Mr. Ondigi for the 1st Defendant, she stated that they exchanged the suit property with thirty (30) acres of land in Namanga and houses at Ongata Rongai. She stated that they visited the land in December 2021. She said the land was vacant and that the 3rd and 4th Defendants have not lived on the land since 2006. 11.She confirmed that she got consent form the Land Control Board before the transfer was effected in the Plaintiff’s favour.She also stated that the Defendants prevented them from entering the suit property. 12.On re-examination, she stated that the Defendant’s home was not within the suit property. She stated that the defendants were violet and that Cyrod Holdings Investment Limited is their company. 13.This marked the close of the plaintiff’s case. Evidence Of The Defendants 14.DW1, Peter Muchiri Marite adopted his witness statement dated 7th April 2022 as his evidence in chief. He also produced the documents in the Bundle dated 7th April 2022 as exhibits D1,D2 in this case. 15.When cross examined by Mr. Itaya for the Plaintiff, he told the Court that they moved to Kajiado/Kaputiei North /1244 in the year 2008. He stated that his father showed them the land. He denied that Enkanasa Limited have been on the land. He also stated that the structures were old but the iron sheets had been changed since they were blown away in the year 2020. 16.He stated that his father never transferred the land. It was also his testimony that the Plaintiffs did not show them the title deed and that they were not violent towards them (Plaintiff)He stated that he resides on the suit property and also keeps livestock. 17.On re-examination, he maintained that he has been on the suit property since 2008. He denied that Stephen Kirunyu and Margaret Kirunyu went to look for land. 18.DW2, Elizabeth Mpae Marite adopted her witness statement dated 7th April 2022 as her evidence in chief. She told the court that she does not reside on the suit property, but her sons do reside thereon. She further stated that her sons had been on the land for sixteen (16) years and no one has tried to evict them. 19.When cross examined by Counsel for the Plaintiff, she stated that her three sons reside on the land. She stated that her husband did not sell the land. She denied that Peter Muchiri built the house in the year 2021. She stated that she could not move from Kajiado/Kaputiei North/1243 as she is the mother. 20.On re-examination she stated that she resides on the adjacent parcel, Kajiado/Kaputiei North /1243 but her sons moved to the suit property sixteen (16) years ago. She stated that her sons have put up homes on the suit property and that she did not know Enkanasa Limited before this suit. She did not know that they had claimed the land.This marked the close of the 1st – 5th Defendant case. 21.DW3, Rosemary Wamuyu Mwangi the Land Registrar Kajiado Central Land Registry adopted her witness statement dated 23rd October 2023 as her evidence in chief. He produced the documents in the Bundle as D1 and D2. When cross examined by Mr.Ondigi for the Defendant’s, she stated that Kajiado/Kaputiei North/817 was subdivided to give rise to 1243 and 1244 respectively. 22.It was her testimony that the Kajiado/Kaputiei North/1244 was never subdivided again and that the registered proprietor is the plaintiff. She stated that she did not have the parcel file in court but the Green card. She could not confirm if the consent from the Land Control Board was on the parcel file. 23.When cross examined by Mr. Chege, she stated that the land was transferred from Wanjiru Properties to Enkanasa Limited on 17th May 2021 and later to the Plaintiff. 24.At the close of oral testimonies parties tendered final written submissions. The Plaintiff’s Submissions 25.They are dated 25th November 2025. They raise four issues for determination: -i.Who is the lawful owner of the suit property Kajiado/Kaputiei North/1244ii.Whether the Defendants have trespassed on the suit property?iii.Whether the Defendants acquired the suit property by transmission and/or in the alternative adverse possession?iv.Who bears costs? 26.Counsel submitted that the Plaintiff is the lawful registered owner of the suit property Kajiado/Kaputiei North/ 1244 having purchased the same from Enkanasa Limited pursuant to the sale agreement dated 11th August 2021. That thereafter the certificate of title was issued on 11th November 2021. 27.It is submitted that the Defendant’s case is that the suit property belongs to the father and that it resulted from the sub-division of his larger parcel Kajiado/Kaputiei North/817 28.It is further submitted that the Deceased ceased being the registered owner of the suit property as far as back as 16th December 1988, after which it changed hands several times before being transferred to the Plaintiff on the 11th November 2021. Further that the Defendants’ claim of inheritance or beneficial entitlement is inconsistent with the official land record and supported by evidence. Reliance is placed on section 26 of the Land Registration Act and the case of Wakaimba Vs Registrar & 3 others (2025) KEELC 1058 (KLR) 29.It is submitted that the Defendant’s have failed to demonstrate any fraud, misrepresentation, illegality, or unprocedural acquisition attributed to the Plaintiff. 30.Counsel further submitted that the Green card tendered shows that the Defendant’s deceased father ceased being the registered owner of the suit property on 16th December 1988 long before his demise hence the claim to the suit property by transmission collapses entirely. 31.It is submitted that one cannot claim adverse possession while at the same time challenging the title of the current registered owner over the suit property. Reliance is placed on the cases of Karan Vs Onyango & Another (2024) KEELC 6456 (KLR); Omollo Vs Nyamunga (2025) KEELC 120 (KLR), which cited with approval Gabriel Mbui Vs Mukindia Maranya (1993) eKLR. 32.It is submitted that the Defendant’s alleged occupation arose from a family arrangement which automatically negates the element of hostility. The Defendant’s have also not demonstrated continuous, uninterrupted occupation for 12 years against any specific registered owner. 33.Finally, it is submitted that the Defendants claim is untenable for failing to comply with Order 37 Rule 7 of the Civil Procedure Rules which requires that the claim be brought by Originating Summons and supported by an affidavit with a certified extract of the title to the land in question.It prays that the counterclaim be dismissed and the Plaintiffs claim be allowed. The Defendants’ Submissions 34.They are dated 11th December 2025. They raise five (5) issues for determination:-i.Whether the Counterclaim have the requisite locus standi to bring the counterclaim concerning the estate of the late Moses Marite.ii.Whether the plaintiff is the lawful proprietor of the suit property, or whether its title is liable to be impeached on grounds of fraud and/or illegality.iii.Whether the Defendants are trespassers on the suit property.iv.Whether the Defendant/Counterclaimants have established a superior right to the suit property through: -a.Transmission from the estate of Moses Marite (deceased): and/orb.Adverse possessionv.Who should bear the costs of this suit? 35.It is submitted that the Defendants’ primary claim is rooted in adverse possession, a right accrued in the personal capacities through open, continuous and hostile possession since 2007. That this claim is independent of the administration of the deceased’s estate. 36.It is also submitted that the Defendants’ claim is based on a customary trust and beneficial ownership. The late Moses Marite held the suit property for the benefit of his family. Reliance is placed on the case of James N Kiarie Vs Geoffrey Kinuthia & Another (2012) eKLR. 37.Counsel further submitted that the title in favour of Enkanasa Limited was fraudulent and illegal and the Plaintiff should not benefit from it. 38.It is submitted that the Defendants have specifically placed and particularized fraud and illegality in the acquisition of the Plaintiff’s title.Further that, the Defendants have discharged this burden through their sworn testimony which remains uncontroverted. The Plaintiff has not produced any evidence to show how its predecessor in title in Enkanasa Limited legitimately acquired the land from the original owner, Moses Marite or his legitimate successors. Reliance is placed on the case of Gitwany Investment Limited Vs Tajmal Limited & 3 Others (2006) eKLR. 39.It is submitted that the evidence of the Land Registrar was that there were no transfer forms in the file in respect of the purported transfers. That the plaintiff’s title is impeachable under Section 26 1(a) and (b) of the Land Registration Act, and ought to be cancelled. 40.It is submitted that the Defendants are not trespassers as they have been in open, continuous and with the intention to possess. 41.It is submitted that the land was held by the deceased for himself and his family. Reliance is placed on the case of James N Kiarie Vs Geoffrey Kinuthia (supra) . 42.Counsel further submitted that the Defendants’ claim has met the criteria for a claim of adverse possession. That this right is enforceable against the current holder of the title, the plaintiff. Reliance is placed on the cases of Geoffrey Kipserem Kosgei Vs Simion Kimaru Mugun (2022) eKLR; Chepkwony Vs Malenya (2021) KECA 47 (KLR) . 43.They pray that the Plaintiff’s suit be dismissed and that the counterclaim be allowed as prayed. The 2Nd Defendant’s (enkanasa Limited) Submissions. 44.They are dated 10th December 2025. Counsel submitted that the Plaintiff’s (in the counterclaim) lack the locus standi to sue the 2nd Defendant 45.It is submitted that the counterclaim is incompetent. Reliance is placed on the cases of Daniel Njuguna Mbugua Vs Peter Kiarie Njuguna & 2 others; In the matter of the estate of Geoffrey Maitamei Lonina (Deceased) (2012) eKLR. 46.It is submitted that Enkanasa Limited had a proper title to the suit property issued on 17th May 2021 hence it had a proper title to transfer to the Plaintiff. That this was confirmed by the Land Registrar. It prays that the counterclaim be dismissed with costs. 47.The 3rd and 4th Defendant’s (to the counterclaim), submissions are dated 10th February 2026. They raise three issues for determination.a.Whether the plaintiff in the counterclaim have proved ownership of the suit parcel.b.Whether the Plaintiffs have proved fraudulent transfer of the suit parcelc.Whether the Court can issue orders against a party who is not party to these proceedings. 48.It is submitted that the Defendant’s have not proved their claim for ownership of the suit parcel and that the deceased did not sell the suit property.Reliance is placed on the case of Michael Wanjohi Mathenge Vs Lydiah Nyaguthii Agatha & Another (2007) Eklr. 49.It is also submitted that the Defendants have a duty of proving the allegations made in their pleadings to the standard of proof required in allegations of fraud. Reliance is placed on the case of Gichinga Kibutha Vs Caroline Nduku (2018) eKLR.They pray that the Defendants claim be dismissed with costs to the 3rd Defendant (in the counterclaim) Analysis And Determination 50.I have considered the pleadings, the evidence on record, the written submissions and the authorities cited. The issues for determination are: -i.Who is the lawful owner of the suit property Kajiado/Kaputiei North/1244?ii.Are the Defendants entitled to the reliefs in the counterclaim?iii.Who should bear cost of the suit? 51.It is the Plaintiff’s case that it is the registered owner of the suit property. That it purchased the same from Enkanasa Limited on the 11th August 2021. PW1 produced the sale agreement dated 11th August 2021 as an exhibit in this case. He also produced a title issued on the 11th November 2021. 52.Section 26 of the Land Registration Act provides as follows:-“(1)(1) The certificate of title Issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed In the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.(2)A certified copy of any registered instrument, signed by the Registrar and sealed With the Seal of the Registrar, shall be received in evidence in the same manner as the original. " 53.The 2nd Defendant (Enkanasa Limited) in the counterclaim confirmed that it passed a good title to the Plaintiff in the main suit.DW3, the Land Registrar confirmed that Enkanasa Limited had a proper title, which it lawfully transferred to the Plaintiff. She told the Court that the Plaintiff is the registered owner of the suit property. 54.It was also her testimony that the entries in the Green card confirm the suit property had changed hands severally before it was transferred to the Plaintiff. She confirmed that the last time the Deceased (the Defendants’ husband and father respectively) was the registered owner was on the 16th December 1988. 55.It is the Defendants’ claim that the Plaintiff’s title was obtained through fraud. It is trite law that fraud must be specifically pleaded, particularized and proved. In the case of Gichinga Kibutha Vs Caroline Nduku (2018) eKLR the court stated thus:-“…. It is clear that in order for the Appellant to successfully challenge the title of the Respondent, he must on appropriate standard proof that: -a.The title to Makuyu/Kiriani Block1/208 was obtained, produced and/or transferred to the Respondent by fraud: andb.The Respondent was a party to the fraud.Section 107 of the Evidence Act Cap 80 of the laws of Kenya states that; -"Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts existIt is, therefore, settled law that in civil cases, a party who wishes the court t9 give a judgment or to declare any legal right dependent on a particular fact or sets of facts, that party has a legal obligation to provide evidence that will best facilitate the proof of the existence of those facts. The party must present to the court al/ the evidence reasonably available on a litigated factual issue.It goes without saying that a party is bound by their own pleadings and the evidence they adduce in court. The purpose of pleadings is to ascertain with clarity the matters on which parties disagree and points of agreement so as to ascertain matters for determination.The allegations of fraud in particular called for detailed evidence to reach the threshold of proof. I am well alive to the case of Koinange and 13 others Vs Koinange (1986) KLR 23 where the court restated the cardinal precept of the law of evidence that he who alleges must prove it. In the cases of Ratilal Gordhanbhal Patel V. Laiji Makanji [1957) EA 314 and Uimila Mahindra Shah Vs Barclays Bank International and Anor (1979) KLR the courts have stated that Fraud has everything to do with one's state of mind and intentions, and not the outcome of actions and that the standard of proof for fraud is very high beyond the usual standard of balance of probabilities in civil cases approaching but below proof beyond reasonable doubt.I have subjected the pleadings and evidence together with the submissions made by counsel on behalf of the Appellant to fresh analysis. I am satisfied that in order for the Appellant to successfully defeat the title to Makuyu/Kiriaini Block 1/208 issued to the Respondent he ought in the Lower court to:-a.have particularized his claim on fraud with sufficient detail;b.given evidence on the threshold stated above to show that the Respondent by herself and/or with others procured the title to Makuyu/Kiriaini Block 1/208 fraudulently.In the instant appeal, the Lower Court after hearing the Appellant gave Oral evidence found that the Appellant made very generalized allegations of fraud and did not prove his ownership or entitlement to Makuyu/Kiriaini Block 1/208.Guided by the principles and law stated above. / do not find anything to cause me to disturb the Lower Court's finding on the Appellant's claim based on fraud"'Finally, this Court held that:-'...In all the above cases the Court was moved to grant the Plaintiffs prayers on solid proof of the claims. Likewise, the Appellant was bound to proof his claim on fraud against the Respondent. / have held elsewhere in this judgment set out the law on proof of fraud claims andfound that the Appellant did not proof his claim”. 56.I am not convinced that the Defendants have proved that the title held by the Plaintiff was fraudulently obtained. 57.I therefore find that the Plaintiff has proved that it is the lawful owner of the suit property Kajiado/Kaputiei North/1244. 58.It is the Defendants’ Claim that they are entitled to the suit land by virtue of being the heirs of the Deceased, Peter Marite or in the alternative by dint of adverse possession. 59.I agree with the Plaintiff’s and the Defendants’ (in the Counterclaim) submissions that the Defendants lack the Locus Standi to bring any claim on behalf of the estate of the Deceased as they have no grant of letters of Administration hence the claim fails. 60.I also find their claim by dint of adverse possession cannot stand. In the case of Karan Vs Onyango & Another (2024) KEELC 6456 (KLR) the court stated thus:“44.In claims of adverse possession, a claimant must first concede to the legality of the title held by the registered owner as to do otherwise would be legally unsustainable. In arriving at this, I adopt the holding of Haro Yonda Juaje v Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) eKLR which was cited by the Court of Appeal decision of Catherine Koriko & 3 others v Evaline Rosa [2020] eKLR where the court stated: -"In Haro Yonda Juaje Vs Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) eKLR it was stated:"(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 Plaintiffs 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 and not adverse possession. He cannot use the doctrine of adverse possession to go around the decision of the Minister." 61.I am not satisfied that the 2nd – 5th Defendants have been on the land for the last sixteen (16) years and have put up their homes. DW1 confirmed that new iron sheets were put in the year 2020. This confirms PW1’s testimony that they were chased away from the land. The said structures must have been put up in the year 2021, after the Plaintiff had purchased the suit property. The Defendants’ counterclaim is dismissed. 62.The Plaintiff seek mesne profits. These must be specifically pleaded and proved. The Plaintiff has not done the same. I decline to award any mesne profits. 63.In conclusion I find that the Plaintiff has proved it’s case against the Defendants on a balance of probabilities. 64.Accordingly, judgment is entered in favour of the Plaintiff as against the Defendants jointly and severally as follows:-a.That an order of permanent injunction is hereby issued restraining the defendants by themselves, their agents and or servants and any other person claiming under them from trespassing on the Plaintiff’s suit parcel Kajiado/Kaputiei North/1244.b.That the Defendants are hereby ordered to vacate the suit property Kajiado/Kaputiei North/1244 within sixty (60) days from the date of this judgement In default the Plaintiff do use lawful means to evict them at their expense.c.That costs be borne by the 1st- 5th Defendants. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 18TH DAY OF JUNE 2026.L.KOMINGOIJUDGEIn presence of: -Mr. Itaya for the PlaintiffMs. Achola for the 1st – 5th Defendants: presentNo appearance for the 2nd – 4th Defendants (in the Counterclaim)Court Assistant: Derrick/ Irene