Mulinge v Kalii (Land Case Appeal E005 of 2026) [2026] KEELC 3948 (KLR) (30 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT VOI** **ELC LAND APPEAL NO. E005 OF 2026** **FLORENCE NZILANI MULINGE APPELLANT** **VERSUS** **PHILIP KIOKO KALII RESPONDENT** *(Sued as one of the Legal Representatives and Administrator of the Estate of* ***JONATHAN KALII KILILI****, Deceased)* **(*Being an appeal against the whole of the Judgment of Hon. A.M. Obura (Mrs), Chief Magistrate, delivered on 3rd February 2026 in Voi Chief Magistrate’s Court ELC Case No. E027 of 2022*)** **JUDGMENT** 1. This is a first appeal arising from the judgment of Hon. A.M. Obura (Mrs), Chief Magistrate, delivered on 3rd February 2026 in Voi Chief Magistrate’s Court ELC Case No. E027 of 2022 (“the trial court”). By that judgment, the trial court entered judgment for the respondent who was the plaintiff before it and, in effect, held that the registration of the suit property in the name of the appellant the defendant before it had been procured by fraud, with consequential orders touching the appellant’s title. 2. The appellant, Florence Nzilani Mulinge, being aggrieved by the whole of that judgment, preferred this appeal vide a Memorandum of Appeal dated 12th February 2026, on ten (10) grounds. She prays that the judgment delivered on 3rd February 2026 be vacated altogether, and that the costs of this appeal and of the proceedings in the trial court be awarded to her. 3. As the parties retained their respective designations in their pleadings before the trial court, I shall, in this judgment, refer to Florence Nzilani Mulinge as “the appellant” and to Philip Kioko Kalii, who sued as one of the legal representatives and administrator of the estate of the late Jonathan Kalii Kilili, as “the respondent.” **Background to the appeal** 1. The suit property is all that parcel of land known as Title No. Taita Taveta/Maungu Buguta Settlement Scheme/654, measuring approximately 2.46 Ha (“the suit property”). It lies within the Maungu/Buguta Settlement Scheme, in Buguta Sub-Location, Kasigau Location, within Voi Sub-County of Taita Taveta County, and came to be registered following an adjudication exercise undertaken in respect of that settlement scheme. 2. The respondent’s case before the trial court, as pleaded in the plaint dated 2nd December 2022, was, in summary, that the estate of the late Jonathan Kalii Kilili (who died on 9th April 1995) owned the suit property before adjudication; that during adjudication a dispute arose over its ownership between the respondent and the appellant; that the Buguta Disputes Committee, on 13th March 2009, determined the dispute in his favour; that the appellant nonetheless procured registration of the suit property in her own name on the strength of a letter dated 12th June 1993 purportedly written by the deceased gifting the land to her, which letter was later found to be a forgery; and that the appellant had, for that purpose, fraudulently obtained the identity particulars and a photograph of the deceased and of his family members. The respondent sought, among other reliefs, a declaration that the estate was the lawful owner of the suit property, a declaration that the appellant’s registration was fraudulent, null and void, an order for cancellation of the appellant’s title and registration of the estate (or of the respondent), an order for demolition of any structures, and costs. 3. The appellant denied the claim. In her statement of defence she pleaded, in summary, that she is the registered proprietor of the suit property, holding a Letter of Offer dated 22nd March 2011 and a title deed dated 3rd November 2014; that she had been in possession and cultivation of the land since 1993, together with her late mother; that the adjudication was conducted regularly by Land Adjudication Officers, assisted by the local committee and the village elders; that allocation in the settlement scheme was on the basis of occupation and possession, no document of ownership being required; that she is an elderly and illiterate woman who could neither type nor write the alleged letter; that the respondent is a stranger to the area whose father had long left it; and that the letter dated 12th June 1993 was doctored by the respondent himself. She also raised a preliminary objection on jurisdiction and pleaded that the suit was an abuse of the court process. 4. The matter proceeded to a full hearing. The respondent called four witnesses (PW-1 to PW-4) and the appellant testified and called one witness (DW-1 and DW-2). Numerous documents were produced by both sides, including the Letters of Offer, the title deed, the green card, the certificate of official search, the disputed letter dated 12th June 1993 (DEXH-5), the correspondence relating to the adjudication dispute, the Forensic Document Examiner’s report dated 30th March 2022 (PEXH-15), and the grant of letters of administration ad colligenda bona (PEXH-3). At the conclusion of the trial, the court found for the respondent, hence this appeal. **The grounds of appeal** 1. The Memorandum of Appeal raises ten grounds. Distilled, they amount to the following complaints: that the trial court erred in treating the letter dated 12th June 1993 as the basis of the appellant’s claim and of her registration, and in holding it forged without evidence of the appellant’s authorship, opportunity or motive (grounds 1, 2, 3, 5 and 8); that the trial court applied wrong principles by failing to appreciate the rigorous identification and verification of beneficiaries in occupation under the settlement scheme, and the appellant’s long possession (grounds 6 and 7); that the trial court wrongly elevated the village/disputes committee decision over the letter of the Project Manager which overruled it, and over the higher adjudication authorities (ground 9); and that the trial court erred in holding that the respondent had capacity to sue when no letters of administration had been obtained by him (ground 10). **The submissions** 1. The appeal was canvassed by way of written submissions. I have considered the appellant’s written submissions dated 10th June 2026, filed by Mwinzi & Associates Advocates, and the respondent’s written submissions dated 10th June 2026, filed by Mutinda & Wambura Nthiga Advocates. I have also read the record of appeal in its entirety, including the pleadings, the witness statements and the documentary exhibits. 2. The appellant, consolidating her grounds, argued in essence that the respondent failed to discharge the burden of proving fraud, misrepresentation or corrupt acquisition against her to the requisite standard; that her registration was not procured by the disputed letter at all, since the adjudication process required no documents of ownership, allocation being based on occupation confirmed by the neighbours, the elders and the committee; that no evidence connected her, an elderly and illiterate woman, to the alleged forgery; that the source of the disputed letter was in fact the respondent; that her title is protected by section 26 of the Land Registration Act and Article 40 of the Constitution; and that the trial court ignored the letter of the Project Manager dated 23rd March 2009, which recorded that the committee’s decision to deprive the appellant had been overruled by the District Land Adjudication Officer and the area Member of Parliament. She relied, among others, on **Munyu Maina v Hiram Gathiha Maina [2013] eKLR, Wairimu Mureithi v Consolidated Bank of Kenya Ltd [2014] eKLR, Watt v Thomas [1947] AC 484, and sections 107 and 108 of the Evidence Act.** 3. The respondent framed three issues: whether the trial court erred in holding that he had capacity to sue; whether it erred in finding that he had proved his case to the required standard; and the question of costs. On capacity, he submitted that the grant of letters ad colligenda bona issued on 11th December 1995 in High Court Succession Cause No. 2829 of 1995 (PEXH-3) clothed him with capacity to protect the estate; that, in any event, the trial court had already determined capacity by a ruling delivered on 20th May 2024 dismissing the appellant’s striking-out application, which ruling was never appealed or reviewed; and that the appellant could not now resurrect the issue. On the merits, he submitted that the evidence established that the deceased owned the suit property before adjudication; that the disputed letter, relied on by the appellant as her root of title, was proved a forgery by the forensic report; and that, applying **Munyu Maina v Hiram Gathiha Maina (supra), Dina Management Limited v County Government of Mombasa & 5 others (2023) eKLR and Cosmas Ropaki Kisomba v Caleb Munde Mcharo [2024] KEELC 7423 (KLR),** a registered proprietor whose root of title is impugned must go beyond the instrument and prove the legality of acquisition, which the appellant failed to do. **Analysis and Determination** 1. This being a first appeal, my duty is well settled. I am required to re-evaluate, re-assess and re-analyse the evidence tendered before the trial court, and to arrive at my own independent conclusions, bearing always in mind that I neither saw nor heard the witnesses, and making due allowance for that disadvantage. The locus classicus is **Selle & another v Associated Motor Boat Company Ltd & others [1968] EA 123**, and the principle finds statutory anchorage in section 78 of the Civil Procedure Act. Both parties accepted this to be the applicable standard, the respondent relying additionally on **Peter M. Kariuki v Attorney General [2014] eKLR and the appellant on Watt v Thomas (supra).** 2. At the same time, an appellate court will not lightly disturb the findings of fact of a trial court. It will do so only where such findings are not supported by any evidence, or are based on a misapprehension of the evidence, or where the trial court is shown to have acted on wrong principles in reaching them: **Khalid Salim Abdulsheikh v Swaleh Omar Said [2019] eKLR,** cited by the respondent. It is against that measured standard that I approach this appeal. 3. Having considered the grounds and the rival submissions, I find that three issues fall for determination, namely ; **(i) whether the respondent had capacity to institute the suit;** **(ii) whether the respondent proved his case to the standard required in law; and** **(iii) what orders ought to issue, including as to costs.** **Issue 1: Whether the respondent had capacity to sue** 1. The appellant’s tenth ground assails the holding that the respondent had capacity to sue in the absence of a grant of letters of administration. The respondent met this on two fronts: first, a procedural objection that the issue is spent, the trial court having ruled on it on 20th May 2024 without any appeal or review by the appellant; and second, on the merits, that the grant ad colligenda bona conferred sufficient capacity. 2. I deal first with the procedural objection. With respect, I am unable to accept the submission that the appellant is precluded from raising capacity on this appeal. Capacity to sue, or locus standi, goes to the very competence of the suit. It is a fundamental matter that may be raised at any stage of the proceedings, including on a first appeal from the final judgment, and a court is entitled indeed bound to satisfy itself that the suit before it was competently instituted. That the trial court determined the point at an interlocutory stage, and that the appellant did not separately appeal that ruling, neither converts an incompetent suit into a competent one nor shuts out the appellant from impugning the final judgment on a ground touching the foundation of the suit. The respondent’s characterisation of the ground as an “afterthought” or as “indolence” is therefore not a complete answer. The ground is properly before me. 3. The ground must, however, be determined on its merits. The grant relied upon is a Limited Grant of Letters of Administration ad colligenda bona, issued on 11th December 1995 in High Court Succession Cause No. 2829 of 1995 to Dorcas Kalii, Philip Kalii and Elizabeth Kalii, limited to the purpose of collecting, getting in and receiving the estate, and doing such things as may be necessary for the preservation of the same until further representation be granted. 4. A grant ad colligenda bona under section 67 of the Law of Succession Act is, by its nature, a limited and protective grant. It does not vest in the grantee the full powers of a personal representative to administer and distribute the estate. It is, however, directed precisely at the collection and preservation of estate assets pending the issuance of a full grant. In my considered view, the institution of a suit to protect a parcel of land claimed to form part of the estate, from what is alleged to be a fraudulent alienation, falls within the preservative purpose for which such a grant is made. A grantee who stands by while estate property is, on his case, lost to a stranger could hardly be said to be discharging the duty to preserve. To insist, in such circumstances, that he first obtain a full grant before taking any step to protect the asset would defeat the very object of the limited grant. 5. I therefore find that the grant ad colligenda bona (PEXH-3) conferred on the respondent sufficient capacity to institute and maintain the suit, confined as it was to the protection and recovery of an asset claimed for the estate. The trial court did not err in so holding. Ground 10 accordingly fails, and the first issue is answered in the respondent’s favour. 6. It does not follow, however, that the suit was bound to succeed. Capacity to sue is one thing; proof of the claim is quite another. It is to the latter that I now turn, and it is there that this appeal, in my judgment, turns. **Issue 2: whether the respondent proved his case to the required standard** 1. The appellant holds a registered title to the suit property. By sections 24 and 25 of the Land Registration Act, 2012, registration vested in her the absolute ownership of the land together with all rights and privileges belonging thereto, subject only to the encumbrances noted in the register and the overriding interests. By section 26 of the same Act, the certificate of title is to be taken by all courts as prima facie evidence that she is the absolute and indefeasible proprietor, and her title is not subject to challenge except (a) on the ground of fraud or misrepresentation to which she is proved to be a party; or (b) where the title is proved to have been acquired illegally, unprocedurally or through a corrupt scheme. 2. It follows, and by virtue also of section 107 of the Evidence Act, that the burden lay squarely on the respondent, as the party asserting fraud and seeking to impeach a registered title, to bring his case within one of those two exceptions. Where fraud is alleged, the law requires not only that its particulars be specifically pleaded as they were, at paragraph 14 of the plaint but also that they be strictly proved. The standard of proof of fraud in civil proceedings, while not the criminal standard of proof beyond reasonable doubt, is higher than the ordinary balance of probabilities and is something more than a mere preponderance. Allegations of fraud cannot be left to inference, suspicion or conjecture; they must be established by cogent evidence. 3. I gratefully adopt the principle, pressed by the respondent and stated in Munyu Maina v Hiram Gathiha Maina (supra), and reaffirmed by the Supreme Court in Dina Management Limited v County Government of Mombasa & 5 others (supra), that where the root of a registered proprietor’s title is challenged, it is not enough merely to dangle the instrument of title; the proprietor must go beyond the instrument and demonstrate the legality and regularity of the acquisition. But this is a two-edged sword. It presupposes that the party impugning the title has first laid an evidential foundation putting the root of title genuinely in issue, and it equally requires the impugning party to trace and prove the superiority of his own claim from its root. As the respondent’s own authority, Cosmas Ropaki Kisomba v Caleb Munde Mcharo (supra), enjoins, the court faced with two competing interests must investigate both from their respective roots. I proceed to do precisely that. **The settlement scheme and the basis of allocation** 1. It is common ground that the suit property lies within the Maungu/Buguta Settlement Scheme, being land held by or through the Settlement Fund Trustees and the subject of an adjudication exercise. The character of the land is significant. In a squatter settlement scheme of this kind, allocation is not made by reference to anterior documentary titles; it is made to those found in actual occupation and possession of the respective portions, whose occupation is verified and confirmed by the local committee, the village elders and the neighbouring occupiers, under the supervision of the Land Adjudication and Settlement Officers. 2. The evidence on this point, far from being in dispute, was substantially common to both sides. PW-4 testified that during the picking exercise he stood on his land as directed, and confirmed on cross-examination that the land officers visited the land, that they did not initially know who owned which plot, that everyone was asked to stand on his or her plot, that boundaries were set and registration done in the presence of and with the confirmation of the neighbours, and that the process was completed and allotment letters issued. The appellant (DW-1) gave evidence to the same effect, namely that the survey was done by the Land Officers for all the neighbours in the presence of the village elders and the committee, who were tasked to verify who actually owned the land on the ground. DW-2 likewise spoke of the elders and committee who confirmed occupation. 3. Critically, the respondent’s own witnesses confirmed that no document of ownership was required of anyone during the adjudication; what was required was occupation, verified on the ground. That being so, the very foundation of the respondent’s theory that the appellant “procured” her registration “by use of” the forged letter dated 12th June 1993 is, on the evidence, unsound. If no document was required for registration, the disputed letter cannot have been the instrument by which registration was obtained. On the evidence of both sides, the appellant was registered because she was the person found in occupation, whose occupation was confirmed by the neighbours, the elders and the committee, and not because she produced any letter. **The disputed letter and its connection or want of connection to the appellant** 1. I do not lose sight of the Forensic Document Examiner’s report dated 30th March 2022 (PEXH-15), produced in evidence. The examiner’s opinion, properly understood, was a narrow one: that the questioned signature on the disputed document, compared with the known signatures of the deceased, had been made by a different author. For the purposes of this appeal, I am content to accept that the letter dated 12th June 1993 was not genuinely signed by the deceased and was, in that sense, a forgery. 2. But a finding that the letter is a forgery does not, without more, prove the respondent’s case. The respondent had to establish, to the heightened standard, that it was the appellant who forged or procured the forgery, and that she used it to obtain her registration. On both limbs the evidence falls short. 3. As to authorship, there was no evidence connecting the appellant to the making of the document. The appellant is, on the unchallenged evidence, an elderly and illiterate woman who can neither read, write nor type, while the disputed letter is a typed document. The respondent’s narrative that the appellant travelled to the family home in Mbitini, Makueni, obtained the identity cards and a photograph of the deceased and of his family members, and used them to fabricate the letter was, as the appellant rightly submitted, wholly unsupported by any evidence as to how, when or in what circumstances an alleged stranger could have obtained such confidential documents, or as to how an illiterate person could have produced a typed letter. The maker of the forensic report, IP James Mutuma, did not himself testify; the report was produced by another officer (PW-3), and in any event it spoke only to whose signature appeared on the document, not to who authored or typed it. The internal discrepancies in the identity-card numbers recited in the letter, while they cast doubt on its authenticity, point as readily to the respondent or to some third hand as to the appellant. Indeed, the appellant’s case supported by her production of two differing versions of the “12th June 1993” letter said to have emanated from the respondent’s side in the criminal proceedings was that the document originated with the respondent himself, a possibility the respondent did not dispel. 4. As to use, I have already found that registration in the scheme did not turn on documents. The respondent’s own evidence places the disputed letter not at the point of registration but at the later dispute and appeal stage, where the appellant is said to have produced it before the area Member of Parliament and the Assistant Minister. A document deployed in an administrative appeal is not, for that reason, the instrument by which a title was procured. The chain the respondent needed to forge from the forgery, to the appellant’s hand, to her registration was, on the evidence, broken at every link. 5. I should add that the pendency of the criminal charge of forgery against the appellant (Voi Criminal Case No. E461 of 2022) does not assist the respondent. The record contains only a charge sheet; the outcome of that prosecution was not placed before the trial court. A charge is not a conviction, and a civil court must make its own findings on the civil standard. The respondent could not, and cannot, lean on an unresolved prosecution to discharge his burden in these proceedings. **The committee decision and its overruling** 1. There remains the respondent’s heavy reliance on the decision of the Buguta Disputes Committee of 13th March 2009 (PEXH-7), which determined the dispute in his favour, and the related correspondence (PEXH-6 and PEXH-8). As the appellant submits, and as is borne out by the parties’ accounts of the impugned judgment, the trial court founded its conclusion in significant part on the proposition that the respondent had “won” the dispute before the committee. 2. This was, with respect, a misapprehension of the evidence. The record contains the letter of the Project Manager, Maungu/Buguta Settlement Scheme, Mr. Dan M.N. Kalamba, dated 26th March 2009 (referred to by the appellant as the letter of 23rd March 2009, and appearing at page 148 of the record). That letter states, in terms, that the committee’s decision to deprive the appellant of her right “was overruled by the District Land Adjudication Officer and the Area MP,” and it directed that no activity take place on Plot No. 654 until letters of offer were issued. In the hierarchy of the adjudication process, the village or disputes committee is subordinate to the Land Adjudication and Settlement Officer and to the statutory appeal machinery. The committee determination on which the respondent relied was thus not the final word within the process; it was expressly overruled by a higher authority. 3. In elevating the overruled committee decision and treating it as dispositive, while paying no regard to the Project Manager’s letter that quashed it, the trial court acted on a misapprehension of the evidence and applied wrong principles. The appellant’s subsequent Letter of Offer dated 22nd March 2011, and her registration in 2014, are entirely consistent with the committee’s decision having been overruled and with the adjudication ultimately having gone in her favour as the occupier. Ground 9 of the appeal is, in my judgment, well taken. **Whether the deceased’s ownership before adjudication was established** 1. The respondent’s case rested ultimately on the premise that the deceased owned the suit property before adjudication, so that it ought to have devolved upon his estate. I am not satisfied that this premise was established. PW-1 conceded on cross-examination that his father had bought land “from somebody” but that there was “no written agreement,” and that he held no agreement relating to the plots said to have been bought. PW-2 spoke of a purchase from residents of the area, but again no sale agreement or other instrument was produced. More tellingly, PW-2 admitted that the estate has “no crops or development on the land currently,” and the weight of the appellant’s evidence including that of a retired Assistant Chief of Buguta and a long-serving village elder was that the deceased had left the area in the early 1990s, well before adjudication, and that it was the appellant who was found in occupation and cultivation when the scheme came to be adjudicated. 2. An admission by the appellant and her witnesses that the land had, in years past, been associated with or occupied by the deceased does not establish a subsisting proprietary entitlement capable of transmission to his estate. This was settlement scheme land, and entitlement under it followed occupation at the time of adjudication. The deceased having long abandoned the area before the scheme was adjudicated, and the estate never having been in possession, the respondent did not prove that the estate held any registrable interest in the suit property which the appellant’s registration could be said to have defeated. The historical narrative, however genuinely held, was no substitute for proof of entitlement. **Conclusion on the second issue** 1. Drawing these threads together, the respondent did not prove, to the standard the law requires, that the appellant’s title was procured by fraud or misrepresentation to which she was a party, or that it was acquired illegally, unprocedurally or through a corrupt scheme. The forged letter, taken at its highest, was neither shown to be the appellant’s handiwork nor shown to have been the means of her registration; the committee decision relied upon had been overruled within the adjudication process; and the estate’s anterior ownership was not made out. The appellant, by contrast, demonstrated a root of title consistent with the regular operation of the settlement scheme occupation, verification on the ground, a Letter of Offer and, ultimately, a title deed. Her title is protected by section 26 of the Land Registration Act and by Article 40 of the Constitution, and it has not been impeached. 2. It follows that the trial court erred in finding that the respondent had proved his case to the required standard, and in entering judgment for him with consequential orders against the appellant’s title. Those findings were based on a misapprehension of the evidence and on the application of wrong principles, and this court is entitled to interfere. The second issue is answered in the appellant’s favour, and the appeal succeeds on grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9. **Issue 3: What orders ought to issue, including as to costs** 1. Costs are in the discretion of the court under section 27 of the Civil Procedure Act, and ordinarily follow the event. The appellant has succeeded in this appeal and is, prima facie, entitled to her costs of the appeal. 2. As regards the costs of the trial court, I have weighed the discretion more finely. While the respondent’s suit has failed, the matter was a genuine and not frivolous contest over land within a settlement scheme, attended by a forged document whose authorship was never satisfactorily resolved and around which the appellant’s own claim was, at the adjudication stage, partly built. In those circumstances, and doing what I consider just, I am of the view that each party should bear its own costs of the proceedings before the trial court, while the costs of this appeal should follow the event. **Final orders** 1. In the result, and for the reasons given above, I make the following orders: 2. **The appeal is allowed.** 3. **The judgment and decree of the trial court (Hon. A.M. Obura (Mrs), Chief Magistrate) in Voi Chief Magistrate’s Court ELC Case No. E027 of 2022, delivered on 3rd February 2026, are hereby set aside in their entirety.** 4. **In substitution therefor, the respondent’s (plaintiff’s) suit in Voi Chief Magistrate’s Court ELC Case No. E027 of 2022 is dismissed.** 5. **For the avoidance of doubt, any order for the cancellation of, or for the alteration of the register in respect of, Title No. Taita Taveta/Maungu Buguta Settlement Scheme/654 is vacated, and the registration of the appellant, Florence Nzilani, as proprietor thereof stands.** 6. **The respondent shall bear the costs of this appeal.** 7. **Each party shall bear its own costs of the proceedings in the trial court.** **JUDGMENT DELIVERED, DATED and SIGNED at VOI this 30th day of June, 2026.** **E.K. WABWOTO** **JUDGE** **In the presence of:** **N/A for the Appellant** **Ms. Wambura for the Respondent** **Court Assistant; Joseph Letisia**