Mbichire v Mwangi & 3 others (Environment and Land Appeal E072 of 2025) [2026] KEELC 4527 (KLR) (16 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC APPEAL NO. E072 OF 2025** **GEOFFREY K. MBICHIRE....................................................APPELLANT** **VERSUS** **MBICHIRE B.S MWANGI........................……….….....1ST RESPONDENT** **EMILIO MURIITHI MURIUKI....................................2ND RESPONDENT** **FAMILY BANK LIMITED.............................................3RD RESPONDENT** **LAND REGISTRAR EMBU COUNTY...........................4TH RESPONDENT** ***(Being an appeal from the Judgement of Hon. Robert G. Mundia (PM) delivered on 02/10/2025 in Embu MELC Case No. E019 of 2021)*** **JUDGMENT** 1. The Appellant herein was the Plaintiff before the trial court wherein he had sued the Respondents vide a Plaint dated 25/03/2021 seeking interalia, a declaration that the transfer of land parcel No. Gaturi/Weru/2230 to the 1st Respondent on 10/01/2008 and subsequent transfer to the 2nd Respondent on 19/10/2020 was and is unlawful, null and void; an order for cancellation of the title deed issued to the 2nd Respondent in respect of the suit land and the reinstatement of the Appellant and the 1st Respondent as the registered owners of the land; and an order for cancellation of the charge registered under entry No. 1 (one) on 09/11/2020 to secure the loan of Kshs. 3,300,000/= advanced by the 3rd Respondent to the 2nd Respondent as well as costs of the suit. 2. The Appellants case was that he and the 1st Respondent, jointly acquired land parcel 2230 measuring approximately 0.010 Ha on 27/07/1995 and were jointly registered as owners in equal shares. He averred that on 24/03/2021, he found the 2nd Respondent, who is a stranger to him, having taken possession of the suit land which prompted him to report the matter to the police. That upon conducting a search at the land registry, he found out that the 1st Respondent had on 10/01/2008 and 19/10/2020 fraudulently and unlawfully carried out transactions relating to the suit land without his knowledge and consent culminating in the transfer of the suit land to the 2nd Respondent. He further alleged that the 2nd Respondent subsequently and unlawfully used the title to the suit property as security to obtain a loan of Kshs. 3,300,000/= from the 3rd Respondent, resulting in the registration of a charge over the property. He set out the particulars of fraud against the 2nd, 3rd and 4th Respondents. 3. The 2nd Respondent filed a defence dated 10/11/2021 and denied the Appellants allegations. He averred that he purchased the suit property for valuable consideration and without any prior knowledge of fraud on the part of the 1st Respondent as alleged and that he followed due process in acquiring the land. He denied the allegations of fraud set out against him. He maintained that he was a bona fide purchaser for value without notice of fraud. 4. The 3rd Respondent filed a defence dated 03/05/2021 and denied the allegations contained in the Plaint and contended that in July 2020, the 2nd Respondent applied for a mortgage facility to finance the purchase of land parcel No. Gaturi/Weru/2230 from the 1st Respondent. That before approving the facility, the 3rd Respondent conducted due diligence, including an official search to confirm the registered owner of the property. They averred that on 14/08/2021, they advanced the 2nd Respondent a banking facility of Kshs. 4,200,000/= comprising a mortgage loan of Kshs. 3,300,000/= and a secured loan of Kshs. 900,000/= payable in monthly instalments. They averred that the facility was secured by the original title deed of the suit property and a legal charge registered over the property in favour of the bank against the 2nd Respondent. They averred that they were a stranger to the fraud alleged by the Appellant and that the 2nd Respondent has been servicing the loan timeously. 5. The 4th Respondent filed a defence dated 10/09/2021 and denied the allegations in the Plaint as well as the particulars of fraud set out against them. 6. When the former suit came up for directions, the parties agreed to proceed with the hearing by way of viva voce evidence. 7. PW1 was Kennedy Mbichire Githinji, the Appellants son. He stated that his father authorized him to represent him in the suit by signing a power of attorney. He adopted the Appellants written statement dated 25/03/2021 as his evidence in chief. He asked that the title issued to the 2nd Respondent be nullified and the title be returned to joint ownership between the Appellant and the 1st Respondent. On cross-examination, he stated that his father told him that he did not give out his share of the suit land. He stated that the 1st Respondent had put up a car wash on the land but that his father had not received any rent from the tenant. He further that the suit land was purchased jointly in 1999 and the 1st Respondent became the sole proprietor in 2008. He denied that the 1st Respondent gave the Appellant Kshs. 100,000/= as consideration for his share or that they attended the Land Control Board. 8. He produced in evidence a title deed issued on 27/07/1995, the green card for land parcel 2230, a letter requesting for the green card, an OB No. 52/24/3/2021 and photographs. 9. DW1 was Mbichire Benard Mwangi, the 1st Respondent. He adopted his written statement dated 13/10/2024 as his evidence in chief. In his statement, he stated that he and the Appellant agreed in 1995 to jointly purchase the suit land for Kshs. 400,000/=, with each expected to contribute Kshs. 200,000/=. He contended that although the Appellant initially paid only Kshs. 50,000/= as a deposit, he failed to pay the balance of his contribution. Consequently, the 1st Respondent settled the outstanding purchase price of Kshs. 350,000/= to complete the transaction, after which the title was processed in their joint names. He stated that despite repeated requests, the Appellant allegedly failed to reimburse the outstanding balance. 10. The 1st Respondent further stated that in 2001, the Appellant demanded a refund of his contribution after learning that the property might be affected by the Embu–Siakago road expansion. He claimed that he refunded the Appellant Kshs. 100,000/=, being double the amount the Appellant had contributed, whereupon the Appellant executed transfer documents in his favour. He further averred that he developed the property from 2009 by constructing permanent structures and operating a car wash business before selling the property, together with the developments, in 2020. He denied defrauding his brother any part of the suit property and averred that his brother did not deny that they had an agreement and that it was only his nephew one Kennedy Mbichire who was raising issues. He stated that his brother developed dementia and mild Parkinson disease in 2019. 11. DW2, Emilio Muriithi Muriuki adopted his written statement dated 10/11/2021 as his evidence in chief. He stated that he knew the 1st Respondent but only after he sold the suit land to him. He stated that he physically visited the suit land and that the 1st Respondent gave him a copy of the title. That he purchased the land through a banking institution and that upon conducting an official search, it showed that the land was owned by the 1st Respondent. On cross-examination, he stated that the bank conducted due diligence and that on 19/10/2020 the land was transferred to him and he started paying the loan. 12. He produced in evidence, an agreement for sale of land, an official search and bank statements. 13. DW3, Moffat Kinoti Riungu the Branch Relationship Manager Family Bank, Embu Branch testified on behalf of the 3rd Respondent. He stated that they facilitated the 2nd Respondent in purchasing the suit land. He averred that the 2nd Respondent sought to register a charge, they conducted a search which showed the 1st respondent was the registered owner of the suit land. That the Appellant never complained to the bank about the charge. On cross examination, he stated that he conducted an official search and an historical search to confirm the owner of the suit land. That when they did the search, they found that the 1st Respondent was the registered owner of the land and that even the green card did not have anything to raise suspicion. On re-examination, he stated that the bank conducted due diligence and had no reason to be suspicious. He also stated that it was not necessary to do an historic search since the Appellant did not complain. 14. He produced in evidence, a copy of the green card for land parcel Mbeti/Gachuriri/1268 and a copy of the official search. 15. DW4, Zebeda Machaki, the Land Registrar Embu adopted her written statement dated 26/09/2023 as her evidence in chief. On cross-examination, she stated that on entry No. 5 made on 27/07/1995, in the register, the registered proprietor was Mbichire B.S Mwangi and Geoffrey K. Mbichire having acquired the land for Kshs. 30,000/= in equal shares. He stated that entry No. 7 made on 10/01/2008 the land was registered in the name of Mbichire B.S Mwangi. She stated that for a transfer to be issued, the original title deed has to be surrendered which was done. She stated that the transaction took place in the year 2008 whereas she reported to the station in 2024. She stated that she knew the nature of the dispute which was between the two brothers, the Appellant and the 1st Respondent and that being the custodian of land records, she did not see any irregularities in the transfer transaction. 16. She produced in evidence a certificate of official search dated 05/08/2020, a letter of offer dated 14/08/2020, a copy of the title deed and the charge dated 05/11/2020 and a copy of an official search dated 03/11/2020 and 09/11/2020. 17. Upon evaluating the evidence, the trial court found that the Appellant had failed to adduce sufficient evidence to prove the alleged fraud on the part of the Respondents. The Appellants suit was dismissed with costs to the Respondents. 18. The Appellant was aggrieved by the impugned decision and preferred the present Appeal on the following grounds; 19. That the learned Magistrate erred in law and fact in failing to find that the 1st Respondent obtained title to land parcel 2230 fraudulently, illegally and through misrepresentation. 20. That the learned Magistrate erred in Law and in fact by failing to appreciate the provisions of section 26(1) (a) and (b) of the Land Registration Act despite clear evidence of fraud and unprocedural irregularities. 21. That the learned Magistrate misdirected himself by disregarding and failing to reconcile the material evidence adduced by the Appellant which evidence demonstrated that the process of acquisition, transfer, and Registration of the suit land to the 1st Respondent and the subsequent transactions with the 2nd, 3rd and 4th Respondents were null and void. 22. That the learned Magistrate erred in law and fact by failing to properly evaluate and give due weight to the Appellants documentary and oral evidence including land records showing irregularities in the process. 23. That the learned Magistrate erred in law and fact by selectively over relying on the evidence adduced by the 1st Respondent while disregarding inconsistencies, contradictions and material admissions adverse to the Respondents case. 24. The Appellant sought to have the appeal allowed, the judgement of the trial Court set aside and substituted with an order allowing the Appellants lower court case and for costs of the appeal to be provided for. 25. When the appeal came up for directions, the parties agreed to canvass the same by way of written submissions. Only the Respondents filed their submissions. The 1st Respondent submitted that the Appellant had not shown any legal or factual basis to disturb the findings of the trial court. That the evidence on record supports a regular and lawful chain of transactions and the Appellant failed to prove fraud as required by law. They maintained that the appeal was without merit and urged that it be dismissed with costs. 26. The 2nd Respondents submitted that the allegations of fraud levelled against him were not proved to the required standards and that it was the Appellant who was under a duty to produce evidence of fraud as alleged but he failed to do so. They averred that PW1 was not a competent witness on behalf of the Plaintiff as he was not privy to the facts of the case and therefore his case remained speculative and not backed by evidence. 27. The 3rd Respondents on their part submitted that the trial court correctly appreciated both the facts and the law and properly dismissed the suit. They averred that the Appellant did not prove fraud against the Respondents nor did they satisfy the threshold under section 26(1)(a) or (b) of the Land Registration Act as they improperly sought to shift the burden of proof to the Respondents. They urged that the Appeal is devoid of merit and should be dismissed with costs to the 3rd Respondent. 28. I have considered the record of appeal and the parties’ submissions and I find that the only issue for determination is whether the appeal has merit. From the green card relating to the suit land, it is evident that under Entry No. 5, Land Parcel No. Gaturi/Weru/2230 was registered on 27/07/1995 in the joint names of **Mbichire B.S. Mwangi** and **Geoffrey K. Mbichire**, each holding an equal share. The register further shows that under Entry No. 7 dated 10/01/2008, the land was transferred and registered solely in the name of **Mbichire B.S. Mwangi**. Subsequently, on 19/10/2020, the property was transferred to **Emilio Muriithi Muriuki,** the 2nd Respondent, who thereafter charged the property to the 3rd Respondent, Family Bank Limited, to secure a loan facility of Kshs. 3,300,000/=. 29. The 1st Respondent explained that although he had initially agreed with the Appellant to contribute equally towards the purchase price of the suit property, the Appellant only paid Kshs. 50,000/= while he settled the balance of the purchase price. According to him, the Appellant later opted out of the arrangement, requested a refund of his contribution, and after being refunded Kshs. 100,000/=, executed the necessary documents transferring his interest in the property to the 1st Respondent, thereby resulting in the registration of the land in the 1st Respondent's sole name. The Appellant, on the other hand, contended that the transfer of his interest to the 1st Respondent was unlawful and undertaken without his knowledge or consent, thereby rendering all subsequent transactions, including the transfer to the 2nd Respondent and the charge in favour of the 3rd Respondent, null and void. 30. This court is of the view that the 1st Respondent offered an explanation for how he became registered as the sole proprietor. The burden rested squarely upon the Appellant to prove that the registration of the 1st Respondent as the sole proprietor was procured through fraud, forgery, misrepresentation or other unlawful means in order to nullify the transfer of the land to the 2nd Respondent and subsequent charge to the 3rd Respondent. Although the suit was prosecuted through PW1, who testified as the donee of a power of attorney donated by the Appellant, PW1 was not personally involved in or privy to the transaction that culminated in the transfer of the suit property into the sole name of the 1st Respondent on 10/01/2008. The Appellant himself did not also testify to deny executing the transfer documents, attending the Land Control Board, receiving the alleged consideration, or otherwise explain the circumstances under which his interest in the suit property was transferred. There was also no evidence produced to demonstrate that the transfer instruments were forged or that the registration process was done without following due process. The evidence of the Land Registrar was also that she found no irregularity in the transfer of the suit land to the 1st Respondent as a sole proprietor. 31. Consequently, I find that the Appellant failed to discharge the burden of proving that the registration of the 1st Respondent as the sole proprietor of the suit property on 10/01/2008 was procured through fraud, forgery, misrepresentation or any other unlawful means. Having failed to impeach the 1st Respondent's title, there is no legal basis upon which this Court can nullify the subsequent transfer of the land to the 2nd Respondent, cancel the title issued to him, reinstate the Appellant and the 1st Respondent as the joint registered proprietors of the suit property, or invalidate the charge created in favour of the 3rd Respondent. 32. Accordingly, I find this appeal lacking merit and the same is hereby dismissed with costs to the Respondents. 33. It is so ordered **DATED, DELIVERED AND SIGNED AT EMBU THIS 16TH DAY OF JULY, 2026.** **……………………………** **HON.E.C CHERONO** **ELC JUDGE, EMBU** In the presence of; 1. Mr. Andande for the 2nd Respondent-present 2. M/S Gathura H/B for Mr. Orende for the 3rd Respondent-present 3. Mrs Makworo for the Appellant-present. 4. Ruth C/A-present