https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3197

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIVASHA** **ELCL APPEAL NO E015 OF 2025** **JANE NJOKI GECHURE…………………………………........…………..APPELLANT VERSUS** **PATRICK MICHANJO……………………………..…..........……..1ST RESPONDENT** **TRANSITIONAL AUTHORITY (sued on behalf of** **NAIVASHA MUNICIPAL) ………....................................…..2ND RESPONDENT** *(Being an appeal from the judgment of the Chief Magistrate at Naivasha delivered by Honorable N.S. LUTTA Chief Magistrate dated the 30th July 2025 in Naivasha MCELC No.61 of 2018- Jane Njoki Geshure (suing as the legal Administrator of the Estate of JAMES GICHURE KIONGA) vs Patrick Michanjo)* **BETWEEN** **JANE NJOKI GESHURE (Suing as the legal administrator** **of the estate of the late** **JAMES GICHURE KIONGA- DECEASED….................................…PLAINTIFF** **VERSUS** **PATRICK MICHANJO……………………………..…...............…..1ST DEFENDANT** **TRANSITIONAL AUTHORITY (sued on behalf of** **NAIVASHA MUNICIPAL) ……….......................................…..2NDDEFENDANT** **JUDGMENT.** 1. Before me for determination on Appeal is a matter which was heard and determined by Hon. N S Lutta, Chief Magistrate in MCELC No. E061of 2018wherein, upon considering the evidence of both parties, vide his Judgement delivered on 30th July, 2025, the Trial Court dismissed the Plaintiff’s suit with costs, for lack of merit. 2. The Plaintiff /Appellant, being dissatisfied with the said Judgement, has now filed the present Appeal based on the following grounds in her Memorandum of Appeal: * 1. That the learned trial Magistrate erred in law and fact by disregarding the Appellant’s evidence of both PW1 and PW2 that the transfer form produced by the Respondent related to a different individual with a different identity card number. 2. That the learned trial Magistrate erred in law and fact by upholding the Respondent’s defence despite clear discrepancies in the sale agreement and transfer form produced. 3. That the learned trial Magistrate erred in law and fact in not finding that PW1’s evidence was not challenged. 4. That the learned trial Magistrate erred in law and fact in not finding that the evidence on fraud, attributed on the part of the Respondent, as raised by the Appellant, was proved. 5. That the learned trial Magistrate in arriving at the decision failed to properly analyze the documents adduced by the Appellant. 6. That the learned trial Magistrate erred in law and fact in failing to have any regard to the principle of substantive justice when dealing with the suit. 3. The Appellant thus prayed for the following orders: * 1. The present Appeal be allowed with costs. 2. The Judgement delivered on 30th July, 2025 be set aside and the Court be pleased to enter judgement in favour of the Appellant by issuing a declaration that residential Plot No. 681 Site and Service Scheme Kabati solely belongs to the Plaintiff and the transfer of the suit plot done by Naivasha Municipal to the 1st Respondent be forthwith nullified and the 1st Respondent does give vacant possession of the suit plot. 3. That the Appellant be re-issued by the Naivasha Municipal with an Allotment Letter for Plot No. 681 Site and Service Scheme Kabati. 4. Cost of the appeal be provided for. 4. Both the 1st and 2nd Respondents did not file their respective responses to the Appeal, which was disposed of by way of written submissions as summarized herein. **Appellant’s Submissions.** 1. In her submissions dated 27th March 2026, the Appellant, suing as the legal administrator of the estate of the late James Gichure Kionga, filed a land suit in 2013 regarding residential plot No. 681 Site and Service Scheme Kabati. On 30th July 2025, the trial court dismissed the suit with costs. Aggrieved, the Appellant filed this first appeal to review the entire evidence afresh. 2. She framed the core issue of her Appeal as; Whether the Appellant proved the case on the balance of probabilities and, if so, whether she was entitled to the prayers sought. 3. The Appellant then grounded her submissions on the decided case of **Gitobu Imanyara & 2 Others v Attorney-General [2016] eKLR**, emphasizing that, as the first appellate court, the court was mandated to review the entire evidence afresh and reach its own conclusion, bearing in mind that it had not seen or heard the witnesses. 4. She submitted that the late James Gichure Kionga testified as PW1 (before his passing) and established that he had bought the plot from the initial allottee, Joseph Kagotho Kenja, on 14th August 1986. This evidence was supported by testimony from the Naivasha Sub-County administrator (PW2). 5. He testified that his official name was James Gichure Kionga as per his ID No. 0471547 and fiercely denied ever meeting the Respondent, signing any transfer forms, or going by the name ‘James Gichure Kioge.’ He pointed out that the ID number used on the Respondent's sale agreement being No.9222913, was completely fabricated and not his. That there had been no cross-examination, because the Respondent failed to attend court during this testimony, the Appellant's evidence remained entirely unchallenged. 6. She relied on the provisions of Sections 107, 108 and 109 of the Evidence Act, as well as on the decided case of **William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526,** where the Court discussed the test required in civil cases to prove a case on a balance of probabilities, and on the decision in the case of **Palace Investment Limited v Geoffrey Kariuki Mwenda & Another [2015] eKLR**, where the Court of Appeal cited Denning J’s discussion on the burden of proof in civil cases in the case of **Miller v Minister of Pensions (1947) 2 ALL ER 372,** to submit that the burden of proof was on the Appellant to prove that the said plot was her property and that she did not sell or transfer it to the Respondent.The Appellant argued that the original Plaintiff had fully discharged his burden under Section 107 of the Evidence Act by proving his initial valid ownership and denying the sale. The burden then shifted to the Respondent under Sections 109 and 112 of the Evidence Act to prove a legal root of transfer. Since the facts regarding where he obtained these fraudulent documents were within his knowledge, he had to explain them, but he failed to do so. 7. The Appellant argued that the Respondent's documents were obvious fabrications and that the trial Magistrate failed to interrogate them. That whereas the Respondent's documents claim he bought the land from a ‘James Gichure Kioge’ with ID No. 9222913, he had failed to offer any proof that this person was the same as the Appellant, James Gichure Kionga, of ID No. 0471547. 8. That the Respondent's paperwork listed the original owner's ID as a 10-digit number, 20213917/67, whereas the Appellant proved that the real Joseph Kagotho Kenja had an 8-digit ID, 8287624/70, noting that 10-digit IDs did not even exist in Kenya in 1995. The Appellant further submitted that there were signature mismatches. She relied on the provisions of Section 14 (1) (j) of the Registration of Persons Act on the offences of false misrepresentation, forgery, and mutilation with regard to IDs to argue that the vendors' signatures and the Naivasha Municipal Council Town Clerk's signatures on the conflicting documents were starkly different in appearance. 9. The Respondent admitted he had been summoned by the Municipal Council regarding the plot dispute, but chose to continue developing the land anyway. The Appellant submitted that the trial Magistrate erred fundamentally in law and fact by ignoring these significant identity and fraudulent discrepancies, which the appellate court should address. 10. What had been in dispute was whether the Appellant had sold and transferred the suit plot to the Respondent, not whether the Appellant had bought the same from the original allottee, Joseph Kagotho Kenja. The Appellant had adduced unchallenged evidence that he neither sold nor transferred the suit plot to the Respondent. It was her contention that, having discharged his burden of proof pursuant to section 107 of the Evidence Act, the burden had shifted to the Respondent to prove how he had acquired the suit plot from the late James Gichure Kionga. 11. That the Respondent had acquired the plot by unlawful means hence the Appellant was entitled to the judgement that had been sought in the Plaint. 12. It was her submission that the Appellant had proved the case before the trial Magistrate on a balance of probabilities thus the trial Magistrate had erred in law and fact and law in dismissing the Appellant’s suit. She thus urged the Court to set aside the trial court’s judgement and enter judgement in favour of the Appellant as prayed in the Plaint. **1st Respondents' Submissions.** 1. The 1st Respondent, in his submissions dated 11th March 2026, summarized the factual background of the matter before taking issue with the fact that the original owner of the subject suit property, for known and unknown reasons, was never called to court to testify and prove to the court as to how the suit property was his. He argued that even formal proofs get dismissed hence one could not claim that he was not cross-examined and as such his/her evidence stood unrebutted. That indeed, the Respondent had clearly illuminated to the court how he had purchased the subject suit property and called two defence witnesses, including a register officer from the Naivasha sub-county registry, who buttressed his evidence. 2. That indeed, the witness from the sub-county registry had confirmed that all authentication had been done and that all land rates had been paid up to date. He contended that it was not the work of the court to assist an indolent litigant on issues of ID’s that had been raised since no expert witness was ever called to support the said position. That indeed, the Appellant’s last and only recourse was to seek compensation from the 2nd Respondent, if any, but not to try and cook evidence on ownership. In support of the foregoing, he placed reliance on the decided case of **Sidi & Another -vs- Mwero & Another Elc No. 182 /2020 (Mombasa).** **Analyses of the evidence.** 1. The Court of Appeal in **Paramount Bank Limited vs. First National Bank Limited & 2 Others (Civil Appeal 468 of 2018) [2023] KECA 1424 (KLR),** where the court held as follows; *“A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. A first Appellate Court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. While considering the scope of section 78 of the Civil Procedure Act, a first Appellate Court can appreciate the entire evidence and come to a different conclusion.”* 1. The summary of the core dispute is that James Gichure Kionga (now Deceased), the Plaintiff/Appellant herein, instituted a suit against Patrick Njogu Michanjo and Transition Authority on behalf of Naivasha Municipal as the 1st and 2nd Defendants respectively, in Naivasha MCELC No. 61 of 2018, formerly Nakuru ELC Case No. 428 of 2013 vide a Plaint dated 18th June 2013, wherein he sought the following orders; * 1. A declaration that Residential Plot No.681 Site & Service Kabati (suit plot) solely belongs to the Plaintiff, and the transfer of the suit plot done by the Naivasha Municipal to the 1st Defendant be forthwith nullified, and the 1st Defendant shall give the vacant possession of the suit plot. 2. An order that the Plaintiff be re-issued by the Naivasha Municipal with an allotment letter for Residential Plot No. 681Site and Service Scheme Kabati. 3. Costs of the suit. 2. Subsequent to the filing of the suit, the 1st Defendant/Respondent filed his Statement of Defence dated 5th May 2014, denying the contents of the Plaint and putting the Plaintiff to strict proof. He contended that on or about 8th August 2001, he had bought Plot No. 681 site/service extension from one James Gichure Kionge, and that upon being cleared at the Municipal Council of Naivasha, the same was transferred into his name. That he had purchased the suit plot in the year 2001 and had extensively developed the same. He thus prayed that the Plaintiff’s suit be dismissed with costs and interest thereon. 3. The 2nd Defendant, on the other hand, vide its Statement of Defence dated 10th September, 2013, also denied the contents of the Plaint, putting the Plaintiff to strict proof, arguing that it was a stranger to the Plaintiff’s allegations since it had only come into being upon the commencement of the Transition to the Devolved Government Act, 2012. That its mandate, as provided for under the provisions of Schedule 6 of the Constitution and the Devolved Government Act, 2012, did not extend to overseeing private property transactions of individual citizens, like the case herein. 4. It had thus contended that it was not a proper and necessary party in the instant suit since it had not been in existence in February 2011 when the alleged transfer had taken place. That was not the custodian of land records, and its mandate did not extend to managing or overseeing the transfer of private land; thus, the orders sought in the Plaint could not be enforced against it. That the Plaint as had been drawn did not disclose a reasonable cause of action against it, was bad in law and should be struck out and dismissed with costs. 5. Subsequently, the case had proceeded for hearing wherein James Gichure Kiange, the Plaintiff herein, testified as PW1 to the effect that he lived in Ngara, Nairobi, and worked as a realtor. He informed the court that he had sued the Defendant for taking his property, Plot 681 Site and Service Kabati/Naivasha, which he had purchased from Joseph Kagotho on 14th August 1986, for Ksh 15,000/= under a sale agreement witnessed by a Mr. Mbugua, produced as Pf exh1. 6. He testified that he had viewed the plot, observed the beacons, and conducted due diligence at the former Municipal Council Town Clerk's office. He stated that he had been issued an allocation letter dated 15th May 1982, signed by Kariuki Chotara, which he produced as Pf exh 2, along with a letter of allotment from the Commissioner of Lands dated 1st September 1993, issued to Joseph Kagotho, produced as Pf exh 3. He added that special conditions and a Part Development Plan (PDP) were attached. 7. The Plaintiff further stated that in November 1995, he requested a transfer at the Town Clerk’s office. He noted that he possessed a copy of the transfer form capturing their correct details, indicating that the vendor’s ID was 8287624/70 and his own ID was 0471547. He produced the transfer form as Pf exh 4, noting that some copies remained with the Municipal Council. He stated that he had paid Ksh 4,175/= for transfer fees and Ksh 600/= for consent, and subsequently received a statement of payment of rates and other charges on 6th November 1995, produced as Pf exh 5, alongside two receipts produced as Pf exh 6(a) and 6(b). He also paid Ksh 5,980/= on 23rd January, 1992, for administration costs and a plan, produced as Pf exh 7. 8. He explained that because he intended to develop the land, he continued to pay rates. He received a letter dated 7th March, 2000, instructing him to collect an allotment letter, though it had been sent out with his name misspelt as ‘Kiage.’ He testified that when he went to collect the letter on 23rd March, 2000, it was withheld from him, and he was instructed to pay Ksh 3,710/= instead. He stated that he paid for the rates and a clearance certificate, receiving a statement of rates and a clearance certificate worth Ksh 840/=. He produced these documents as Pf exh 8, 9, and 10. He pointed out a discrepancy in Pf exh 8, noting that the property was described as Plot 681 Site and Service Scheme Extension, whereas the word ‘extension’ did not appear in Pf exh 2. He emphasized that he was never actually given the final allotment letter. 9. The Plaintiff further testified that he paid rates on 9th August, 2005, but was later informed by the Municipal Council in June 2011 that the plot belonged to Patrick Njogu. He admitted that when he paid the rates in August 2005, they were already in Patrick Njogu's name, but he had failed to notice the name change at the time. He produced those receipts as Pf exh 11(a) and 11(b). He stated that he instructed his advocate to write to the Municipal Council on 8th April, 2011 (Pf exh 12), and received a response dated 10th May, 2011 (Pf exh 13). 10. The Plaintiff strongly denied ever transferring the property to anyone. He recounted that he was asked to forward his documents to the Town Clerk and that they met with the Planning Engineer there. He stated that he had never met the Defendant, whom he did not know. After being referred to the police, he instructed his counsel to take legal action. He produced a copy of his national identity card, Pf exh 14, to prove that his real ID number was 0471547, maintaining that the plot belonged to him. 11. He explicitly denied signing the transfer form dated 9th November, 1994, which was attached to the Defendant’s documents. He pointed out that the details listed for Joseph Kagotho Kenja differed from his own Pf exh 1, as the ID number on the Defendant's transfer form was 20213917/67. He noted that while the postal address on that transfer form was listed as Box 2055, Nakuru, his address was Box 1752, Nakuru. That the ID number, signatures, and names were outright forgeries. He stated that Kagotho's signature on the Defendant’s paperwork was completely at variance with the genuine signature in Pf exh 4. 12. The Plaintiff dismissed the Defendant’s certificate of plot, alleging it was a forgery and stating he had never met a Francis Okango. He denied going to the plot on 1st August, 2001, and denied ever giving the Defendant the letter addressed to the Commissioner of Lands, which bore his (Plaintiff's) address. He highlighted a physical discrepancy, noting that the Defendant’s paperwork claimed an acreage of 0.026 Hectares, whereas his actual plot measured 0.025 Hectares. 13. He reiterated that the allocation letter dated 15th May 1982, filed by the Defendant, was vastly different from his own, as his authentic copy lacked a stamp and did not contain the word ‘extension.’ He declared all the Defendant’s documents to be forgeries, maintaining that he held the original letter of allotment. The Plaintiff stated that the Defendant had aggressively commenced development on the plot despite knowing that an active court case was pending. He asserted that the Defendant's father used to work for the Municipal Council, which was how the Defendant managed to grab his plot. Concluding his testimony, the Plaintiff stated that he had never sold the plot, that he wanted it returned to him, and that he prayed for a court declaration of ownership and an eviction order against the Defendant. 14. The second witness for the Plaintiff, PW 2, Mr Kingori Mwangi, stated that he was the Sub-County Administrator for Naivasha. He informed the court that he had received a summons relating to Plot Number 681, Site and Service Scheme, Kabati. 15. He testified that according to the records, the property had initially been allocated to Joseph Kagotho Kenja and was later transferred to James Gichure Kionga on 9th November, 1995. He confirmed that he possessed the official transfer letter and noted that the vendor’s identity card number was 8287624/70, while the purchaser’s was 0471547/63. He further testified that both parties had signed the transfer form. Having examined the transfer form filed by the Defendant, the witness stated that it related to an entirely different person and that the identity card number listed on it was different. 16. Under cross-examination, the witness stated that he had worked in Naivasha for one year and four months. He acknowledged that although the property had been sold to the Plaintiff in 1986, the formal transfer was not effected until 9th November, 1995, adding that he did not know why the transfer process had taken so long. He concluded by admitting that their current records indicated the owner of the plot was Patrick Michajo. 17. There was no re-examination by counsel, who subsequently informed the court that it was the close of the Plaintiff's case. 18. The first witness for the defence, DW1, Ms. Elizabeth Wangui Mwangi, testified that she hailed from Naivasha and worked with the County Government of Nakuru as the Naivasha Sub-County Administrator, a position she had held since 2015. 19. She testified that, following a request made, she had obtained documents for Joseph Kagotho Kenja, the original allottee of Scheme Site and Service Scheme Extension 681. She explained that the plot was later transferred to James Gichure Kionga on 9th November, 1995, and subsequently transferred to the Defendant, Patrick Njogu Michajo, on 31st July, 2001, with official approval granted on 1st August, 2001. She outlined the standard transfer procedure, which required the seller to present themselves to the office so that a surveyor and a planner, along with the records officer in charge of rates and the sub-county, could verify the authenticity of the origin documents. She added that, once established, the surveyor would visit the ground to confirm the plot, that payment for the transfer and rates would be completed, and that certified copies would be submitted to their office. She emphasized that a legitimate transfer could not be executed without following this specific process. She further noted that the Defendant was up to date with his record payments and produced copies of the records, which she compared with the originals, marked as Df exh 1(a) and 1(b). She concluded her primary testimony by declaring that the legitimate owner of the plot was the Defendant, Patrick Michajo. 20. Under cross-examination, the witness stated that she maintained copies of all transfer documents. Upon being shown Pf exh 4, she stated that she could vouch for its authenticity, though she did not know who had signed it. She noted that it displayed the original allottee's name and identity card number, but reiterated that she could not confirm who signed it, even though it listed the names and signatures of the transferee and purchaser. Upon being shown Pf exh 5, she acknowledged it contained a receipt for various payments. However, regarding Pf exh 6(a) and 6(b), she stated she could not confirm whether the receipts originated from her office, as she had never seen them before, and they were missing from their official records. Looking at the transfer form she had produced, she stated that the original owner was James Gichure. She pointed out that the allotment letter produced by the Defendant recorded Joseph Kagotho Kenja’s identity card number as 20213917/67, with a signature next to it, as well as the transferee’s identity card number and signature. She noted that these documents were filed on the same day. She affirmed that she held the original documents and had presented the office’s position to the court. She confirmed having the transfer forms from James Gichure to Patrick Michajo, adding that the documents were signed, that a total payment of Ksh 6,800/= had been made on 1st August, 2001, and that the receipts were in her possession. She further claimed that James Gichure had been physically present when the plot was shown to the purchaser, though she did not know the identity of the surveyor who went to the scene. 21. Under re-examination, the witness stated that she had provided all the relevant documents to the court. 22. The second witness for the defence, DW2, Mr Patrick Njogu Michanjo, testified that he lived in Viwandani in Naivasha and was a businessman. He stated that he knew James Gichure Kionga, who had sold to him Plot 681 in 2001 for a cash payment of Ksh 125,000/=. 23. He testified that they had visited the municipal council together to confirm the status of the land before executing a sale agreement drafted by an advocate. He added that he paid the outstanding rates, after which James Gichure surrendered all the relevant documents to him. The Defendant stated that he took possession of the plot in 2001, obtained an approved construction plan, and commenced building. He maintained that no one had raised any issues throughout that time, allowing him to complete construction by the year 2011, and that he resided there and owned rental houses on the plot. He recalled a time when he received a letter from the Municipal council indicating there was a complaint regarding ownership; however, when he visited the council offices with his documents, the opposing party had nothing to show. 24. The Defendant noted that the Plaintiff subsequently filed a case in Nakuru in 2013. He mentioned that in 2016, the Plaintiff accompanied CID officers to the property, but after he showed them his paperwork, he was never charged with any criminal offence. He produced the following documents in evidence; * 1. Copies of receipts for rent payment. 2. A copy of Sale Agreement dated 1st August 2001. 3. A copy showing the Physical Planning of the Plot. 4. Copies of Letters from Municipal Council of Naivasha dated 8th June 2011 and 10th May 2011. 5. A copy of a letter of Transfer from Joseph Kagotho Kenja to James Gichure Kioge. 6. A copy of certificate showing plots. 7. A copy of letter of transfer from James Gichure Kioge to Patrick Njogu Michanjo. 8. A copy of letters of allotment. 9. A copy of map showing the developments made in the land. 10. Copies of photographs showing the developments made in the land. 25. He testified that the Plaintiff's allegations were untrue, that he had genuinely acquired the land through the Nakuru Municipal Council, and that the council had executed all the transfer documents. He highlighted that, as the matter proceeded, the Plaintiff had omitted the Nakuru Municipal Council as a Defendant. He noted that he had stayed on the land for over 24 years and argued that while the Plaintiff was seeking an allotment letter, the issuing authority, the Nakuru Municipal Council, was not even a party to the legal proceedings. 26. Under cross-examination, the Defendant stated that he had seen the Plaintiff's statement but insisted that the Plaintiff was the very person who had transferred the land to him and that his denial was untrue. He asserted that he possessed the relevant sale agreement that captured the parties’ names and their identity card numbers. He acknowledged that Pf exh 14 had been produced in court but stated he did not know its veracity. He reiterated that the transfer was executed in the vendor’s physical presence and that he held all relevant original documents, including the allotment letter. He noted that the plot originally belonged to Joseph Kagotho Kenja, whose identity card number was 20213917/67. He denied the allegation that his documents were forgeries, repeating that all transactions were openly conducted at the Nakuru Municipal Council. Having stayed on the land for over 25 years, he stated that he did not understand why the dispute had not been raised much earlier. He denied ever refusing to visit the municipal council. He observed that the original allotment letter read ‘James Gichure Kioge’ and stated that the signatures on the transfer form tallied. He maintained that all documents were properly executed and that the Plaintiff himself had shown him the land before surrendering the paperwork upon receiving the purchase price in cash. 27. Under re-examination, the Defendant noted that the Registrar of Persons had not come to court to contest the identity documents in question, and that no report from a handwriting expert had been tendered to the court. He concluded by reiterating that he had paid valid consideration money for the plot. 28. The third witness for the defence, DW3, Mr Joseph Kingori Rotumo, testified that he hailed from Naivasha and was a businessman. He stated that he had recorded and filed his witness statement and wished to rely on it as his primary evidence. 29. Under cross-examination, the witness stated that he was physically present when the Defendant purchased the land, though he admitted he did not know the vendor well. He testified that he had gone to the Municipal Council offices when the ownership dispute arose, where the Defendant produced all his documents and successfully proved his ownership. He confirmed that he had seen the sale agreement but admitted that he had not personally examined the parties’ national identity cards. He added that the Plaintiff had handed over all the original documents to the Defendant at the time. 30. Under re-examination, the witness stated that he was the Defendant’s neighbour. He testified that the Defendant had constructed on the land and that there had been absolutely no dispute regarding the property for over 10 years. He concluded by stating that all the documentation had been processed and verified by the Nakuru Municipal Council, which officially confirmed that the land belonged to the Defendant. The Defence then closed its case. **Determination.** 1. I have considered the record of appeal, the evidence in the trial court, the holding of the trial Magistrate, the written submissions of learned Counsel for the Appellant, the authorities cited and the applicable law. Conscious of my duty as the first Appellate Court in this matter, as it is trite of me, the summary of the parties’ case is as follows: 2. The late James Gichure Kiange Kionga purchased Plot No. 681 Site and Service Scheme Kabati/Naivashafrom its original allottee, Joseph Kagotho Kenja, on 14th August 1986, for Ksh 15,000/= via a sale agreement witnessed by a Mr Mbugua. Before buying, the Plaintiff verified the root of title at the Municipal Council, confirming a 1982 allocation letter signed by Kariuki Chotara, and a 1993 Letter of Allotment from the Commissioner of Lands issued to Kagotho. In November 1995, the Plaintiff formally processed the transfer at the Town Clerk’s office, where he paid Ksh 4,175/= in transfer fees and Ksh 600/= for consent, which transfer form officially captured the real identities of both parties as Joseph Kagotho Kenja of ID No. 8287624/70 as the vendor and the Plaintiff of ID No. 0471547 as the purchaser. 3. That subsequently, in March 2000, the Council summoned the Plaintiff to collect his formal allotment letter, but his name was misspelt as ‘Kiage’ instead of Kiange/Kionga. He paid the required rates/clearance fees, but the Council ultimately withheld the document. He continuously paid land rates. In June 2011, the Municipal Council shocked him by revealing that the plot had been registered in the Respondent's (Patrick Njogu) name since August 2005. The Plaintiff admitted he accidentally paid rates in August 2005 without noticing that the Council had already fraudulently changed the name on the receipts to Patrick Njogu. 4. The Plaintiff denied ever selling the land or executing any documents in favour of the Respondent. He then proceeded to point out discrepancies in the Respondent’s paperwork, to the effect that the Respondent’s sale agreement showed the vendor as ‘James Gichure Kioge’ of ID No. 9222913, listed the original owner’s ID as 20213917/67, the plot size as 0.026 Ha and featured a ‘Scheme Extension’ stamp whereas his original title showed the size of 0.025 Ha with no such extension or stamp. 5. The Plaintiff asserted that the Respondent's father used to work for the Municipal Council, which allowed him to manipulate internal registry files and grab the plot. 6. His witness, the Naivasha Sub-County Administrator, confirmed that the plot was initially allocated to Joseph Kagotho Kenja and legally transferred to James Gichure Kionga on 9th November, 1995. He verified that the signatures and ID numbers 8287624/70 for Kagotho and 0471547/63 for the Plaintiff on the historical transfer form were authentic and matched. He concluded by stating that the transfer form filed by the Respondent, related to an entirely different person with a completely different ID number. 7. The Defence case, on the other had been as follows: The Defendant, Patrick Njogu Michanjo’s case was that he was an innocent purchaser who has openly occupied and developed the property for over two decades after purchasing the same in 2001, from James Gichure Kionga, whom he personally knew, for a consideration of Ksh. 125,000/= in cash after both parties had physically gone to the Municipal Council to verify the property's status, cleared outstanding land rates, and executed a formal sale agreement drafted by an advocate. The vendor had voluntarily surrendered all original documents, including the original allotment letter, to him. Both the Municipal Council and the CID had vindicated him when the Plaintiff lodged a complaint. His evidence was supported by that of Mr Joseph Kingori Rotumo, who witnessed the sale and handing over of the original land documents by the vendor to the Defendant, as well as the review of the paperwork and official confirmation by council officials, that the land belonged to the Defendant 8. Ms. Elizabeth Wangui Mwangi, also an Naivasha Sub-County Administrator, confirmed that the official registry records held by the Nakuru County Government showed that the original allottee for the plot described as ‘*Scheme Site and Service Scheme Extension 681*’ was Joseph Kagotho Kenja, who transferred the same to James Gichure Kionga on 9th November 1995. A second transfer was effected from James Gichure to the Defendant, Patrick Njogu Michajo, on 31st July 2001, and was officially approved by the council on 1st August 2001, after a total transfer fee of Ksh 6,800/= was paid. The historical receipts produced by the Plaintiff did not exist in the county’s official registry records. 9. It is trite that allotment letters do not confer a proprietary right to land but are only a right to receive property or to be allocated on complying with the terms and conditions stated therein, and therefore ought to be determined in accordance with the ordinary rules of contract. Litigants who base their interest in land on an allotment letter, as in this case, must provide the allotment letter, together with a part development (PDP) plan from the Commissioner of Lands. The claimant must also have proof that they complied with the conditions set out in the allotment letter, including payment of the stand premium and ground rent within the specified timeline. A beacon certificate would also add some weight to the transaction. 10. The Supreme Court in the case of **Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment)** at paragraphs 60 and 63 had observed as follows: " *So, can an allotment letter pass good title? It is settled law that an allotment letter is incapable of conferring interest in land, being nothing more than an offer, awaiting the fulfilment of conditions stipulated therein. In* ***Dr Joseph NK Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others CA 60/1997*** *[unreported]; and* ***in Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others HC Civil Case No 182 of 1992; [2008] eKLR,*** *the superior courts restated this principle as follows:* *“It has been held severally that a letter of allotment per se is nothing but an invitation to treat. It does not constitute a contract between the offerer and the offeree and does not confer an interest in land at all ” [Emphasis added].* …….*Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling the conditions therein. These conditions include but are not limited to, the payment of a stand premium and ground rent within prescribed timelines. But even after the perfection of an allotment letter through the fulfillment of the conditions stipulated therein, an allottee cannot pass valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter.’* 1. In the instance case, because an allotment letter is legally categorized as a mere revocable offer/invitation to treat rather than an interest in land, neither the Appellant/Plaintiff nor the Respondent/Defendant can claim to hold absolute ownership or an indefeasible registered title. The radical title of Plot No. 681 still sits squarely with the lessor (the County Government of Nakuru). 2. Consequently, I find the matters arising for determination herein to be; 3. Who holds the overriding, legitimate equitable interest (the better claim to the offer)? 4. Whether the Defendant’s 2001 allocation was anchored on identity theft and fraud. 5. Whether a Holder of an Allotment Letter Can Lawfully Maintain an Action for Trespass and Eviction Against a Third Party. 6. Before I proceed to make my determination, I must point out that whereas the 1st Respondent filed their submissions, the same cannot be considered by the court in the absence of a response to the Appeal which is a foundational pleading as was held by the Supreme Court in **Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR,** where the court held as follows; *‘’A Replying Affidavit is the principal document wherein a respondent’s reply is set and the basis of any submissions and/or List of Authorities that may be subsequently filed. Absence this foundational pleading, the Replying Affidavit, it follows that even the Written Submissions purportedly filed by the 1st Respondent on 17th August, 2018 are of no effect. Curiously, we further note that even the said Written Submissions are not dated, though this possibly might not have been fatal had the foundational document, the Replying Affidavit, been in order. From a perusal of the Written Submissions, it is clear to us that they are substantially based and relies on the undated and unsworn Replying Affidavit. Also, there are no Grounds of Objection raising any specific points of law of any preliminary or jurisdictional nature. The upshot is that as the 2nd and 3rd Respondents had categorically stated that they do not oppose the application, the Court will be excused for therefore deeming the application as being unopposed entirely.’’* 1. Having said so, to determine whether the Plaintiff validly accepted the initial allotment offer and crystallized a protected equitable interest (a *chose in action*, or a transferable legal right to sue for property possession), we must apply the principles of contract law to the administrative process of land allocation. For an allotment letter to transform into an enforceable equitable interest, the allottee must demonstrate absolute compliance with the terms of the offer. An analysis of the Plaintiff’s (PW1) and the Sub-County Administrator’s (PW2) evidence reveals that the Plaintiff successfully fulfilled these requirements. 2. It is in evidence that the initial 1982/1993 allotment of the Plot was offered to Joseph Kagotho Kenja. On 14th August, 1986, Kagotho assigned his contractual rights under that allotment to the Plaintiff via a written sale agreement. Because the allotment letter, being a chose in action, can be lawfully assigned for value, the sale agreement placed the Plaintiff in the shoes of the original allottee/offeree. 3. The critical moment of contractual crystallisation occurred in November 1995 when the Plaintiff approached the custodian of the land, the Municipal Council of Naivasha, to formally perfect the contract and paid the official Transfer Fees of Ksh 4,175/=, the Consent Fees of Ksh 600/**=** and executed the official Municipal Council Transfer Form. 4. By accepting these payments and executing the official transfer forms, the Municipal Council formally acknowledged the assignment of the offer from Kagotho to the Plaintiff. At that exact moment, a binding bilateral contract was sealed. The Plaintiff had performed his side of the bargain. The Council’s remaining obligation was purely administrative: to issue the formal paperwork and facilitate the execution of the ultimate lease. This performance crystallised a robust equitable interest that the law protects. 5. The Plaintiff’s evidence had been supported by the evidence of PW2, a custodian of records, who confirmed that the official records explicitly showed the plot was lawfully transferred to James Gichure Kionga on 9th November 1995. The ID numbers and signatures of the parties on the 1995 transfer form matched the authentic identities of Kagotho and the Plaintiff, confirming that, as far as the creating authority (the Council) was concerned, the Plaintiff was the legally recognized holder of the executory contract from 1995 onward. 6. The 1st Defendant's argument that because the Plaintiff paid rates in 2005 on a receipt that bore the 1st Defendant's name, the Plaintiff had waived his rights goes to prove that the Plaintiff consistently intended to maintain his contract with the Council by paying land rates. The fact that the names on the receipt template were swapped without the Plaintiff's immediate knowledge does not mean the Plaintiff voluntarily surrendered his equitable interest. 7. I find that since the Plaintiff performed his duty as required of him by law, this gave him a vested legal right to demand the land, maintain an action for possession, and block the Council from creating any subsequent valid interest over the same plot. 8. On the second issue as to whether the Respondent’s 2001 allocation was anchored on identity theft and fraud, fraud is a serious matter which must be proved to the required standard. In **Fanikiwa Limited & 3 others v Sirikwa Squatters Group & 17 others (Petition 32 (E036), 35 (E038) & 36 (E039) of 2022 (Consolidated)) [2023] KESC 105 (KLR) (15 December 2023) (Judgment),** the Supreme Court had observed as follows: “…*However, it is trite law that fraud which, depending on the circumstances is recognized as a criminal offence, must be pleaded and strictly proved. In addition, although the standard of proof of fraud in civil matters is not proof beyond reasonable doubt, it is higher than proof on a balance of probabilities as required in other civil claims*.’’ 1. I have no doubt in my mind that the Original Plaintiff represented by the Appellant herein had distinctly pleaded the facts on which fraud was alleged against the 1st Respondent as per paragraph 7 of his Plaint. The next step, however, was for him to prove those allegations to the required standard, that the 1st Respondent effected the transfer of the suit Plot into his name illegally, as it is settled law that fraudulent conduct must be distinctly alleged and distinctly proved. 2. The Appellants' contention was that he never sold the suit Plot to the 1st Respondent, whom he never knew, and further that the documents the 1st Respondent used to transfer the suit property were obtained fraudulently. 3. To determine whether the documents of transfer and identity cards used to register the property to the 1st Respondent in 2001 are forgeries, we must weigh the evidence under the standard of proof where allegations of fraud or forgery carry a higher degree of probability and must be strictly pleaded and proved 4. An analysis of the evidence from both sides reveals a stark conflict between blatant documentary anomalies and a fatal lack of forensic proof. The Plaintiff and the first Sub-County Administrator (PW2) raised serious, specific discrepancies that strongly suggested the 2001 transfer documents were manufactured: 5. Whereas the Plaintiff proved his name is James Gichure Kionga, a holder of ID No. 0471547, the 1st Respondent’s 2001 sale agreement and transfer forms, on the other hand, reflected the vendor as James Gichure Kioge, a holder of ID No. 9222913. Section 14 of the Registration of Persons Act is to the effect that an identity card is unique to an individual and therefore any person who *obtains or attempts to obtain another identity card* commits a crime under Section 14 (1)(i) of the Act. The Respondent offered no evidence to show that the Plaintiff ever held two separate IDs or used the surname "Kioge." A physical presentation of a completely different name and ID number on the root transfer document was therefore a powerful indicator of identity theft and forgery. Either someone impersonated the Plaintiff to sell the land, or a fictitious identity was entirely manufactured. 6. From the evidence adduced, the original transfer in 1995 was from Joseph Kagotho Kenja to the Plaintiff, who captured Kagotho's ID No. as 8287624/70. However, the allotment and transfer documents produced by the 1st Respondent listed Kagotho’s ID as 10-digit number 20213917/67. 7. As PW1 rightly pointed out, 10-digit national ID numbers did not exist in Kenya in 1995, and therefore, a document dated in 1995 bearing a 10-digit ID format that was only introduced years later by the Registrar of Persons is an absolute chronological impossibility, making that root document an undeniable forgery. 8. The Plaintiff further pointed out that whereas the authentic root documents showed the area of the suit plot as 0.025 Hectares without any extension, the 1st Respondent's paperwork, on the other hand, claimed the same measured 0.026 Hectares and introduced the phrase ‘Scheme Extension.’ This shifting of acreage suggests that the bad actors did not just forge signatures; they manipulated the technical maps within the Municipal Council's planning registry to artificially expand or recreate the plot profile to facilitate the fraudulent allocation. 9. While DW1, the 2015 Administrator, vouched for the presence of the 2001 transfer in the current file, PW2, the Administrator at the time of summons, explicitly looked at the 1st Respondent's transfer form and testified under oath that it related to an entirely different person whose ID number was different from the true historical chain. 10. However, despite these glaring discrepancies, the 1st Respondent's defence introduced significant legal and evidentiary hurdles that weakened the Plaintiff’s claim of forgery. Under Section 48 of the Evidence Act, when a court has to form an opinion upon the identity of handwriting or signatures, the opinions of persons specially skilled in handwriting (experts) are relevant facts. The Plaintiff asserted that his signature and Joseph Kagotho's signatures were forged and at variance, but he failed to call a forensic handwriting expert or an officer from the Registrar of Persons to tender a report verifying the forgery or verifying that ID No. 9222913 was fraudulent. 11. On a strict evaluation of the facts, the documents used in 2001 are highly likely to be forgeries. The presence of a 10-digit ID in 1995, a completely wrong ID number for the Plaintiff, and a sudden change in the plot’s acreage from 0.025 Ha to 0.026 Ha cannot be explained away as simple administrative typos. They point to a classic ‘inside job’ where registry files were manipulated. 12. The trial magistrate dismissed the suit because the Plaintiff committed tactical litigation errors. By failing to call a handwriting expert to legally cement the forgeries and by failing to sue the Municipal Council, the custodian who allowed these corrupt entries, the Plaintiff left a legal backdoor wide open. The trial magistrate, I find, erred in treating the matter before it as a simple case of varied signatures, in which it was mandatory for an expert to spot microscopic differences. On the contrary, this was a case of absolute identity divergence. The Plaintiff proved his ID was 0471547 (James Gichure Kionga). The transfer document used an entirely different name and ID: 9222913 (James Gichure Kioge). 13. From the anomalies pointed out herein, fraud was apparent on the face of the documents. No expert was required to prove that the 1st Respondent’s documents were forgeries when they contained an anachronism that defies time itself. Indeed when the Plaintiff stood in the witness box and stated under oath, *"I never transferred my property to anyone, I never sold the plot, I have never met the Defendant, I do not know the Defendant, I never met Francis Okongo, I never signed this form, my ID is different, I have the original letter of allotment ………and his father used to work at the council and grabbed my land,"* the 1st Respondent’s advocate did not cross-examine him on those points because the 1t Respondent failed to attend court that day. 14. It is a fundamental principle of evidence that failure to cross-examine a witness on a crucial matter signifies an acceptance of that witness’s version of reality, or at least leaves that evidence uncontradicted. Once the Plaintiff gave uncontradicted testimony that his identity was stolen, the burden of proof shifted squarely to the 1st Respondent under Section 112 of the Evidence Act to prove exactly from whom he bought the land. The 1st Respondent failed to prove that "Kioge" and "Kionga" were the same person, that the ID No. 9222913 and ID No. 0471547 belonged to the same person (Plaintiff) who had sold him land or that the original allottee Joseph Kagotho Kenja was the bearer of a 10-digit of ID number, 20213917/67 and not an 8-digit ID, 8287624/70. 15. In conclusion, I find that the 1st Respondent’s 2001 allocation was not a case of administrative error, negligent record-keeping, or a simple typo, the presence of a non-existent 10-digit ID format from 1995, a completely falsified ID number for the vendor, a mutated surname, and an altered plot size altogether constitute overwhelming proof of a premeditated, fraudulent scheme anchored on identity theft. Because the 2001 transfer was born of fraud, it is a legal nullity that cannot pass any valid contractual or equitable interest to the 1st Respondent, and instead renders his purported contract void ab initio, in line with the maxim *fraus omnia corrumpit* (Fraud unravels everything). 16. In the end, I find that the Appellant’s Appeal succeeds, the trial court's judgement is herein set aside and substituted with the following orders: 17. The Appellant’s 1995 possessory and contractual rights are senior and superior to the 1st Respondent’s illegal allotment occupation of the suit Plot No.681 site and service scheme Kabati. 18. A declaration order is hereby issued confirming the Plaintiff as the sole legitimate allottee of Plot No.681 site and service scheme Kabati. 19. The 1st Respondent shall vacate forthwith from Plot No.681 site and service scheme Kabati within 30 days upon delivery of this judgment, and in default, he shall be evicted in accordance with the law. 20. The Plaintiff’s legal Administrators shall approach the National Land Commission to officially issue her the allotment letter and process his lease. 21. Costs of both the Appeal and the trial court suit are awarded to the Appellant. **Dated and delivered via Microsoft Teams at Naivasha, this 28th day of May 2026.** **M.C. OUNDO** **ENVIRONMENT & LAND COURT – JUDGE**