https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4250

Maringa v Kamau & 4 others (Environment and Land Case 53"B" of 2022) [2026] KEELC 4250 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEELC 4250 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Case 53"B" of 2022 JA Mogeni, J May 14, 2026 Between Danson Githinji Maringa Plaintiff and Andrew Mbogo Kamau 1st Defendant David Njoroge Wakana 2nd Defendant Alice Waithera Njuguna 3rd Defendant The Lands Registrar Ruiru 4th Defendant The Attorney General 5th Defendant Judgment 1.The Plaintiff filed a suit vide a Plaint dated 10/03/2022 claiming to be one of the beneficiaries of the Estate of the late Rosebell Wangechi Gichange who died testate on 26/11/2008 domiciled at Langata. That the deceased left a Will (and codicils) which were confirmed by the Milimani Family Division Court on 16th June 2011 in Succession Case No. 1904 of 2010. 2.The Plaintiff claims that the suit property belonging to the late Rosebell Wangechi was transferred unprocedurally to the 1st to 3rd Defendants at the Land Registry at Ruiru. 3.That despite attempts to lodge a caution to stop any further dealings in the suit property known as Ruiru/Kiu Block 3/125, he has not been successful. Necessitating the filing of this suit seeking Judgment against the Defendants for the following orders:a.A permanent injunction do issue restraining the Defendants whether by themselves, their servants, hirelings or their agents or others claiming through or under them from invading, entering upon, occupying, alienating, transferring, leasing, mortgaging or in any way interfering with the land lawfully belonging to the Plaintiff or in any way whatsoever from interfering with the suit land Title No. Ruiru/Kiu Block 3/125.b.A declaration that the suit property belongs to the Plaintiff.c.Loss of user to be computed by the Court.d.Cost of this suit.e.Any other relief that this Honorable Court may deem fit to grant. 4.The 1st to 3rd Defendants never entered appearance despite having been properly served with Summons. The 4th and 5th Defendants entered appearance and filed their documents. On 5/03/2024 the Court granted the Plaintiff leave to serve the 1st, 2nd and 3rd Defendants by substituted service and they confirmed the service during the mention on 23/10/2024. The matter was thus fixed for hearing Plaintiff’s Case 5.The Plaintiff, Danson Githinji Maringa testified as PW1. He adopted his witness statement as evidence in chief and also produced a List of Documents dated 10/03/2022 and a further list dated 25/03/2023 as evidence and exhibits. 6.During the hearing on 28/07/2025 the Plaintiff produced the original Certificate of Lease for the Court to inspect which the Court did. It was his contention that the Certificate of Lease is the original Certificate of Lease and that it has never transferred. 7.Upon cross-examination he stated that he believes that the records were interfered with. This is because when he did a Search, as per entry number 5 it shows interference. Yet he contends that his mother never sold the suit property and that they still have the Certificate of Lease. 8.He told the Court that the 1st Defendant is on the suit property and he has built a residential house. It was his testimony that his mother’s Will is dated 14/11/2003 and his mother passed on in 2008. That he discovered encroachment in 2015. He further stated that his mother could not have willed away the suit property if she had sold it. She purchased the suit property in 1996. 9.With that the Plaintiff closed their case. Defendants’ Case 10.The Land Registrar, Rober Mbuba Mugendi Registration Number 327 testified as DW1. He confirmed that he wrote a witness statement dated 30/10/2023 which he adopted as his evidence and he also produced a bundle of documents filed on even date bearing 28 documents marked as “DW1-Exh 1-30”. 11.On cross-examination he testified that he became a Registrar in 2019 and so he was not based at Ruiru when the transactions took place. He told the Court that the Title of David Njoroge is cancelled as evidenced by the document at page 23 of the 4th and 5th Defendants’ Trial bundle (herein after Defendants). 12.Further that the title for Alice Waithera as per the document at page 37 is also cancelled and also the one for Kahawa at page 47 is cancelled. However, he testified that there is no cancelled title for Rosebell Wangechi (deceased). On further cross-examination he stated that he was not aware that Rosebell’s beneficiaries have original Certificate of Lease which they produced in Court and that he cannot assume that the title produced in Court is genuine although they never verified it at the Land Registrar’s office despite the beneficiaries of Rosebell asking the office to verify it. 13.He told the Court that when an original title is surrendered it is crossed and kept in the file but that the title for Rosebell is not cancelled and neither is it crossed. He emphasized that for every transaction and transfer original title must be surrendered so that it is cancelled. 14.With this the 4th and 5th Defendants closed their case. 15.The parties were directed to file their written submissions. At the time of writing this Judgment only the Plaintiff had filed their submissions dated 10/02/2026. 16.In summary the Plaintiff submits while addressing this Honorable Court, that his claim is rooted in the clear devolution of property following the demise of his mother, Rosebell Wangechi Gichangi, on 26/11/2008. That the Plaintiff’s status as the lawful beneficiary was solidified through the formal succession process in Nairobi Succession Cause No. 1904 of 2010, where the Family Division of the High Court proved the Will and Codicil, subsequently issuing a Confirmed Grant on 16/06/2011 that bequeathed the suit property, Title No. Ruiru/Kiu Block 3/125, to him. 17.That the Plaintiff’s standing to bring this action directly is beyond reproach and he cites the case of Re Estate of Alice Mumuba Mutua (Deceased) [2017] eKLR, where the Court held that once a Grant is confirmed, a beneficiary obtains a vested interest in the bequeathed property. Additionally, he cited the Court of Appeal decision in the case of Kingdom Kenya 01 Limited v The District Land Registrar Narok & 15 Others (Civil Appeal No. 169 of 2014) where it was clarified that upon the lapse of the six-month statutory period provided under Section 83 of the Law of Succession Act, the rights of a beneficiary crystallize, granting them the locus standi to move the Court in their own right to protect their proprietary interests. 18.According to the Plaintiff he submits that the evidence presented reveals a startling and illegal interference with these rights. Despite the Plaintiff being in possession of the original Certificate of Lease and the original lease from the Government of Kenya, a Search at the Ruiru Land Registry uncovered that the property had been unlawfully transferred to strangers. That the Land Registrar, during cross-examination, admitted that while the law requires original titles to be surrendered and cancelled before new ones are issued, he could not explain the missing record of the deceased’s cancelled title or how the 1st, 2nd, and 3rd Defendants came to be registered. 19.The Plaintiff submitted that they lean heavily on Section 26 of the Land Registration Act, which maintains that a Certificate of Title is prima facie evidence of absolute and indefeasible ownership, unless it is proved that the title was acquired through fraud, misrepresentation, or an illegal and unprocedural scheme. That this position is echoed in the case of Elijah Makeri Nyangwara v Stephen Mungai Njuguna & Another [2013] eKLR, which emphasizes that the law is extremely protective of title except where such vices are proven. 20.The Plaintiff’s final submission is that since he has produced the original title documents and the Defendants have failed to offer any legitimate rebuttal with the 1st to 3rd Defendants even failing to enter appearance, he submits to have discharged the burden of proof required under Sections 109 and 112 of the Evidence Act. He therefore prays for a permanent injunction against the Defendants, a declaration of ownership in favour of the Plaintiff, and an order for the rectification of the register to restore the sanctity of the Plaintiff’s inheritance. Analysis and Determination 21.The Plaintiff’s case is anchored on the principle of testamentary succession and the indefeasibility of title. Danson Githinji Maringa, appearing as the personal representative and beneficiary of the late Rosebell Wangechi Gichangi, contends that the suit property, Ruiru/Kiu Block 3/125, was a part of his mother’s estate as established by her Will of 14/11/2003. Following her demise in 2008, the High Court in Succession Cause No. 1904 of 2010 confirmed this distribution. The Plaintiff’s most compelling piece of evidence is the original Certificate of Lease, which he produced in open Court for inspection. He maintains that since the original title document remained in the family’s possession, any purported transfer to the 1st, 2nd and 3rd Defendants must be a product of fraud and procedural interference, as his mother could not have willed away a property she had already sold. 22.On the other hand, the 4th and 5th Defendants, represented by the Land Registrar, offered a defense that inadvertently bolsters the Plaintiff’s claims. While the Registrar produced records suggesting a chain of transfers leading to the current registered owners, his testimony under cross-examination revealed a fatal administrative vacuum. 23.He admitted that standard operating procedure requires the surrender and physical cancellation and crossing out of an old title before a new one is issued. Crucially, he conceded that while previous titles in the history of this land were duly cancelled, the title held by Rosebell Wangechi Gichangi was never cancelled nor surrendered. Furthermore, the Registry failed to verify the authenticity of the Plaintiff’s original title despite being prompted to do so, leaving the Court with a scenario where a "new" title exists in the Registry while the old original remains in the hands of the lawful beneficiary. 24.The legal controversy here is settled by the application of Section 26(1) of the Land Registration Act, which protects the sanctity of title except where it is obtained through fraud or corruption. In Elijah Makeri Nyangwara v Stephen Mungai Njuguna & Another [supra], the Court held that the law is extremely protective of title, but such protection is stripped away if the certificate is acquired illegally, unprocedurally, or through a corrupt scheme. The existence of two parallel titles one in the Registry and one physical original in the Plaintiff's hands is a clear hallmark of such procedural impropriety. 25.Regarding the Plaintiff's right to sue, the Court of Appeal in Kingdom Kenya 01 Limited v The District Land Registrar Narok & 15 Others [supra] established that once a Grant is confirmed and the six-month statutory period under Section 83 of the Law of Succession Act lapses, a beneficiary’s rights crystallize. At this point, the beneficiary has the locus standi to protect their proprietary interests against third-party interlopers. 26.Furthermore, on the burden of proof, the Court looks to Arthi Highway Developers Limited v Westlands Housing Co-operative Society Limited [2015] eKLR, where it was determined that where a party produces the original title and the Registrar cannot explain how a parallel title was created without the surrender of the original, the burden shifts to the person claiming the new title to prove its legitimacy. In this case, the 1st to 3rd Defendants failed to enter appearance or provide any such proof. 27.In considering the prayer for Loss of User, the Court must navigate the delicate balance between the Plaintiff’s proven deprivation of his proprietary rights and the strict evidentiary requirements for awarding special damages under the law. 28.The claim for loss of user is essentially a claim for mesne profits or damages for trespass. It represents the profit or benefit which the person in wrongful possession of the land actually received, or might with ordinary diligence have received therefrom. Under Section 109 of the Evidence Act, the burden of proof lies squarely on the Plaintiff to demonstrate not just the fact of trespass, but the quantifiable loss suffered. 29.In the case of Mount Robbin Limited v Toza (Environment and Land Case 5854 of 2025 [2025] KEELC 5854) the Plaintiff sued for trespass and sought mesne profits after the Defendant occupied and built on their land. The Court explicitly noted that when a person is wrongfully deprived of property, they are entitled to mesne profits for the loss suffered as a result of the wrongful occupation. 30.See also the cases of Duncan Nderitu Ndegwa v KP & LC Limited & Another (2013) eKLR ; Gakuria & another v Mwangi & 4 others (Environment & Land Case 134 of 2021) [2025] KEELC 1014 and Maina v Waweru & 2 Others (Environment and Land Appeal E022 of 2023) [2025] KEELC 791. 31.The Plaintiff testified that he discovered the encroachment in 2015 and that the 1st Defendant has since constructed a residential house on the suit property. This confirms a total loss of possession and user by the lawful beneficiary for approximately eleven (11) years from 2015 to 2026. 32.However, a perusal of the record shows that the Plaintiff did not provide a professional Valuation Report or oral evidence from a Valuer to establish the loss of user value. The Court is, therefore, left in a position where it cannot arbitrarily pick a monthly rental figure without appearing to engage in judicial guesswork. 33.That being said, the Court acknowledges that the Plaintiff has been gravely inconvenienced and deprived of his inheritance. Where special damages of loss of user are not strictly proven, the Court has the discretion to award General Damages for Trespass. 34.In the absence of a specific valuation for mesne profits, the Court leans on the principle established in Maina v Waweru & 2 Others (Environment and Land Appeal E022 of 2023) [2025] KEELC 791 where the Court awarded significant general damages for the invasion of land rights. 35.Given the location of the property in Ruiru, a rapidly developing peri-urban area and the fact that the 1st Defendant has enjoyed the benefit of a residential structure on the land since 2015, a nominal award for loss of user/general damages is warranted to reflect the Court’s disapproval of the illegal alienation. 36.Having carefully considered the pleadings, the oral testimony of the parties, and the exhibits produced, this Court finds that the Plaintiff has proved his case on a balance of probabilities. The presence of the original, uncancelled Certificate of Lease in the Plaintiff’s possession, coupled with the Land Registrar's admission that the deceased’s title was never surrendered or crossed out, leads to the inescapable conclusion that the transfers to the 1st, 2nd, and 3rd Defendants were fraudulent and unprocedural. 37.The 1st to 3rd Defendants, despite being served, chose not to defend their purported interest, thereby leaving the Plaintiff’s evidence uncontroverted. The Registry’s records are clearly tainted by ghost transactions that cannot override a validly Confirmed Grant of Probate and an original government lease. 38.Accordingly, Judgment is hereby entered for the Plaintiff against the Defendants as follows:a.A declaration is hereby issued that the suit property, Title No. Ruiru/Kiu Block 3/125, lawfully belongs to the Estate of Rosebell Wangechi Gichangi (deceased) and, by extension, the Plaintiff as the beneficiary.b.An order of permanent injunction is hereby issued restraining the 1st, 2nd, and 3rd Defendants, their servants, or agents from entering, occupying, or in any way interfering with the suit property.c.An order is hereby issued directing the 4th and 5th Defendants (The Land Registrar and the Attorney General) to cancel all illegal entries in the land register favoring the 1st, 2nd, and 3rd Defendants and to rectify the register to reflect the Plaintiff as the lawful proprietor.d.The 1st, 2nd and 3rd Defendants are hereby ordered to pay the Plaintiff the sum of Kshs 1,500,000/- as general damages for loss of user and trespass, together with interest at Court rates from the date of filing of the suit 10/03/2022 until payment in full.e.Costs of this suit are awarded to the Plaintiff, to be borne by the 1st, 2nd, and 3rd Defendants. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 14TH DAY OF MAY, 2026.………………………MOGENI JJUDGEIn the presence of:Mr. Nyareru for the Plaintiff1st, 2nd, 3rd and 4th Defendants - AbsentMr. Melita - Court Assistant………………………MOGENI JJUDGE