https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4035

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA** **ELCA NO E017 OF 2025** **HEZEKIAH MUHIA NJOROGE............................................APPELLANT.** **VERSUS** **JAMES MUIGAI MAINA & 3 OTHERS...............................RESPONDENTS.** **JUDGMENT:** In the Plaint dated 30/1/2024, the 1st Respondent filed a suit against the Appellant, the 2nd Respondent and the 3rd Respondent herein praying for orders that: - 1. The Plaintiff (1st Respondent) is the legal owner of all that parcel known and described as L.R. No. NYANDARUA/MAWINGO SALIENT/345 measuring approximately 1.9 Hectares. 2. That the 1st Respondent’s (Appellant’s) Title Deed relating to the same subject parcel of land NYANDARUA/MAWINGO SALIENT/345 be cancelled. 3. That the actions of the Defendant (Appellant) amounts to trespass of L.R. No. NYANDARUA/MAWINGO SALIENT/345 measuring approximately 1.9 Hectares. 4. Costs of the suit and interest herein at Court rates. 5. Any other relief the Court may deem fit to grant. The 1st Respondent based his claim on averments that he is the registered owner of L.R. No. NYANDARUA/MAWINGO SALIENT/345 measuring approximately 1.9 Hectares after he obtained Title to the same which was first registered in the name of his father in the year 2006, when he started cultivating the land, to date. He stated that a few weeks to the filing of this suit, he received calls from friends and family members that there was a person (the Appellant) who had appeared with a Title Deed claiming to be the owner of the land. He did report the matter to both Ol-kalou police station and the Land Registrar Nyandarua/Samburu Counties and the latter promised to call back the Title. This, the 1st Respondent averred, amounted to trespass to his land and was concerned that the Appellant was in the process of sub-dividing and disposing of the said land. On his part, the Appellant filed his statement of Defence and Counter-claim both dated 20/3/2024 in which he said that he was a stranger to the acquisition of a Title Deed to the land by the 1st Respondent and to the 2nd Respondent’s promise to call back the Title from him and equally denied that there was a Report to the police over the dispute herein. He equally denied that he was in the process of sub-dividing and disposing of the suit land L.R. No. NYANDARUA/MAWINGO SALIENT/ 345 but also stated that as the legally registered proprietor of the land, he was at liberty and entitled to undertake any activity on the said land including the sub-division of the same. Admitting and submitting to the jurisdiction of the lower Court to try the suit, the Appellant averred that he was the registered proprietor of the suit land i.e. NYANDARUA/MAWINGO SALIENT/345 measuring 1.9 Hectares having been so registered and issued with a Title Deed on 7/11/2023. He said that at the time the 1st Respondent claims to have got the Title Deed, it was in the name of Settlement Fund Trustees. He says that he also reported the issue of ownership dispute to the DCIO Ol-kalou when he discovered that somebody else was also claiming ownership of the land and was advised to record a statement at Kaptein Police Station which he did. He further said that at the time the land was allocated to him there was no one in physical occupation or use of the subject land. He finally urged that the 1st Respondent’s suit was incompetent, bad in law and an abuse of the Court process as the 1st Respondent’s claim was premised on a sale agreement that does not exist. Further, in the counterclaim the Appellant averred that the suit land was allocated to him by the S.F.T. vide a letter of allotment dated 29/8/2023 and upon receiving the letter of allotment he paid a sum of Kshs. 25,235/- being the prescribed fee for outright purchase to the Land Settlement Fund and the land was then transferred to him vide a transfer instrument dated 18/10/2023. He was shown by an officer from the land Adjudication and Settlement Office, Nyandarua the physical location of the land which was free from cultivation and occupation by anybody and that the 1st Respondent had just began cultivating the land after discovering the Appellant is the legally registered proprietor of the suit land in order to legitimize his (1st Respondent’s) claim before the Court. He says that his Report to Kaptein Police Station and to the DCIO Ol-kalou is still under investigations. He finally averred that the 1st Respondent’s Title Deed is just a mere piece of paper which was obtained through unscrupulous methods and that whoever alleges to have sold the land to the 1st Respondent had no capacity to do so because Settlement Fund Trustees had not transferred the land to the Appellant. Accordingly, he prayed for orders of the Court as follows: - 1. A Declaration that the Appellant is the bona fide absolute registered owner of L.R. No. NYANDARUA/MAWINGO SALIENT/ 345 measuring 1.9 Hectares. 2. A permanent Injunction restraining the 1st Respondent (Plaintiff) whether by himself, his servants and/or agents from entering into, trespassing or interfering in any way with the 1st Defendant’s (Appellants) physical occupation, use, possession and quiet enjoyment of L.R. NYANDARUA/MAWINGO SALIENT/345. 3. Costs of the suit and of the Counter-claim plus interest at Court rates. 4. Any other or better relief the Court may deem just and fit to grant. In the Reply to the Appellant’s statement of Defence and Defence to Counter-claim dated 26/3/2024 the 1st Respondent denied the entire claim in the Appellant’s Counter-claim and re-iterated the contents of the Plaint. And in the Appellant’s Reply to the 1st Respondent’s statement of Defence and Defence to the counterclaim dated 6/4/2024, the Appellant reiterated the averments contained in his Defence and Counter-claim. In the 2nd & 3rd Defendants’ (Respondents’) joint statement of Defence dated 5/6/2024, the 2nd and 3rd Respondents averred that they cannot vouch for the veracity of the averments of the 1st Respondent to which they are strangers, to wit that the 1st Respondent is the registered owner of L.R. No. NYANDARUA/MAWINGO SALIENT/345 measuring approximately 1.9 Hectares and put him to strict proof thereof. They also denied having trespassed on the suit land as claimed under paragraph 6 of the Plaint. They further denied that the 1st Respondent obtained his Title which was registered in the name of his father in 2006. The 2 also denied that the 1st Respondent had tried to reach out to the 2nd Respondent who tried to call back the Title to the land from the Appellant and that the matter was never reported to Ol-kalou Police Station. The 2nd Respondent went on to say that the acts of the 1st Respondent amounted to nothing short of trespass to the land and that the same were not occasioned by the 2nd and/or 3rd Respondents. They also denied that the Appellant was in the process of sub-dividing the land. They finally urged the Court to strike out the suit for being bad in law, ambiguous and premature. This being a first Appeal which is not only concerned about the law but also in analyzing the facts afresh, I had to reproduce the evidence where I observed that the 1st Respondent’s Title Deed of the 1.9 Hectares in NYANDARUA/MAWINGO SALIENT/345 was issued to him on 11/8/2020. The 1st Respondent testified that the land was first registered in the name of his father before 2006 and that he then started cultivating the land. After informing the Land Registrar, Nyandarua of the Appellant’s intrusion, the latter promised to call back the Title. The 1st Respondent through his Advocates, Martin Gathumbi & Co. Advocates wrote to the Land Registrar, Nyandarua on 5/1/2024 applying for the Green card for the suit land. He then wrote several telephone messages to the Land Registrar being concerned that if he had discovered another person had a Title Deed to the said land wondering what would happen if the other person with a similar Title Deed sold the land. The Land Registrar then answered and asked the 1st Respondent not to be worried because he was going “to stop it” Later, the Land Registrar wrote to the 1st Respondent telling him that his Report/complaint was an eye opener and that he had reported strange happenings in his office to the DCI such as destroyed Green cards and that he had closed his office for 2 weeks to go to the bottom of the matter and investigate it. He also said this was not the only missing Green card. He finally said that the office was going to recall that Title (the one with the Appellant) and thanked the Appellant for the information. He said his father, John Maina Muigai, bought the land from one Benjamin. He bought the land through his father because he was living in the United Kingdom. To support his case, the 1st Respondent produced the following documents: 1. A copy of Title registered in the name of JAMES MUIGAI MAINA. 2. A copy of Title registered in the name of MAINA MUIGAI JOSEPH. 3. Photographs showing various developments on the suit property. 4. Photographs during the Plaintiff’s visit on the suit property. 5. A copy of Title Deed registered in the name of HEZEKIAH MUHIA NJOROGE. 6. A letter dated 5th January, 2024. 7. copy of Payment Receipts. 8. Extract conversation between the Plaintiff and the Land Registrar in-charge NYANDARUYA/SAMBURU Counties. 9. 1ST Respondent’s ID Card - both sides passport size photograph. He said on cross-examination that he didn’t know whether his father attended the Land Control Board for Consent and that Samwel Wanjohi King’ori was the first allottee and that there was consent to transfer between himself and his father. Samwel Wanjohi King’ori said that he was a Civil Servant in Nyandarua in the late 1980’s and that the Civil Servants were asked to forward their names to the District Commissioner with a view to being allocated land and the Settlement Fund Trustees allocated him plot No. 345 measuring 5 Acres and he took possession of the land and paid the requisite fees. The land was discharged by the Settlement Fund Trustees and on or about the year 2000 he transferred the allotment letter to Benjamin Maingi Karimi and handed all other ownership documents to him to whom he sold the land. he further said that it cannot be true that the Appellant got allocated the land in 2023 because by then, he was the initial allottee. He said he paid Kshs. 220/- on 23/5/1991 for the transfer and Kshs. 253 for the Discharge of the land and was given a letter of discharge which he produced in Court. There is also the letter dated 29/6/1989 from the Director of Land Adjudication and Settlement addressed to Samwel Wanjohi King’ori indicating that he was allocated plot No. 345 of approximately 2.5 Hectares in Mawingo Settlement Scheme and which letter indicated that he would be issued with a letter of allocation by the District Land Adjudication and Settlement officer, Nyandarua. There is also a letter dated 9/8/1989 from the District Land Adjudication and Settlement Officer, Nyandarua addressed to the Director of Land Adjudication and Settlement indicating that Mr. Samwel Wanjohi King’ori had been shown the boundaries of Plot No. 345 Mawingo Scheme and the latter was allowed to pay Land deposit in order to get Documents for the plot accordingly. He also produced receipts for the payment of fees to the Settlement Fund Trustees for Kshs. 3,229/- and a letter dated 14/11/2014 from the Director of Land Adjudication and Settlement to the Land Adjudication and Settlement Officer, Nyandarua which was to the effect that records in the office showed that the plot No. L.O/331/345 was discharged in favour of one Samwel Wanjohi King’ori. He further produced a loan repayment voucher in favour of Samwel Wanjohi King’ori. On cross-examination, Wanjohi said that the land was allocated to him in 1989 and he paid Kshs. 3,229/- to the Settlement Fund Trustees and a further Kshs. 220/- for transfer on 23/5/1991. He was given discharge of charge on 23/5/1991. He also said that he gave the letter of transfer to Benjamin Karimi and his allotment letter was taken by the Settlement Fund Trustees which canceled it and issued a new one to Benjamin after which he signed the transfer Documents to the said Benjamin to whom he sold the land at Kshs. 200,000/- which he had fenced. Benjamin was then issued with a Title Deed. On cross-examination by Ms. Ademeyon for the state Samwel King’ori said that he was unable to process the Title Deed due to financial challenges. Benjamin Mwangi Karimi, PW3 testified that he bought the suit land from Samwel Wanjohi King’ori who is his cousin in 2000 and the land was transferred to him. He started farming immediately and in 2006 he sold it to the 1st Respondent before he relocated to Nyeri. On cross-examination he said he bought the land at Kshs. 200,000/- and that he was issued with a discharge of charge by the Settlement Fund Trustees, transferred the land to him by giving him another allotment letter and transfer which he took to the land’s office where he left the documents he got from the land’s office in exchange for a Title Deed. When a search was conducted in 2009 the same was in his name. He bought the land when it was fenced and he reinforced the fence. He took immediate possession. He said when buying it, there was no sale agreement executed nor at the time of selling it. On re-examination, Mr. Karimi said that he gave all the documents relating to the land to Joseph Mungai PW4. Joseph Maina Muigai, father to the 1st Respondent testified that he bought the suit land NYANDARUA/MAWINGO SALIENT/345 for Kshs. 700,000/- and obtained a Title Deed. He bought it from Joseph Maina in 2006 before transferring it to his son, the 1st Respondent and on cross-examination he said that the search showed that the land belonged to Benjamin Maingi Karimi before he purchased it and that they executed a written sale agreement. He transferred the land to his son James in 2010, after obtaining consent from the Land Control Board. PW5 – Stephen Mwangi Wachira adduced evidence to the effect that he was invited by the area chief, Mr. Gateri to meet the Appellant herein over the suit land as the latter claimed its ownership. But he declined because he knew the land belonged to his (Wachira’s) nephew, the 1st Respondent. This was on 1/1/2014. Joseph Mwaura, a taxi driver at Captain, Ol-kalou, also testified by first adopting his statement dated 13/3/2024 and said he knew the suit land because every time the 1st Respondent visited the country, he would drive him to the land which he knew and which is about 5 Acres. Francis Ndung’u Njunge, the caretaker of the suit land said that on 4/1/2014 at around 11:00am when the suit land was being, he was told by the area chief that there was another person who had a Title Deed for the suit land. He said he was employed by the 1st Respondent in 2014 and that the Government destroyed the fence and he re-elected it on 3/1/2024. He said that other than the fence there is no other structure on the land. James Mwangi Kuria testified that he was taken to the suit land by Mr. Wachira (PW5) to go and fence the suit land in the year 2006. He said that he knew the 1st Respondent grows various types of crops such as maize and beans every year and that in 2008 he (Kuria) used to grow crops in the land for the 1st Respondent and that he was even shown the beacons to the land. The last 1st Respondent’s witness (PW9) David Wahome Nderitu said he has always known Mr. Wachira, a teacher who is his neighbour and that he knew the suit land belonged to his nephew whom he had never met. He confirmed the land has been used for the last 10 years. He said he knew the land belonged to a nephew to *mwalimu* Wachira. After the close of the 1st respondent’s, case, the Appellant testified by adopting his witness statement of 20/3/2024 as his evidence in chief. He said he is the duly registered proprietor of NYANDARUA /MAWINGO SALIENT/345 measuring 1.9 Hectares which was allocated to him by the Settlement Fund Trustees vide a letter of offer dated 29/8/2023 and the land was transferred to him vide a transfer instrument dated 18/10/2023. He testified that he visited the land in September, 2023 when there was no cultivation or occupation. When he went back in the company of the area chief he was told by the latter that there was someone by the name of Wachira who had been cultivating the land. He then made a Report to both the DCIO, Ol-kalou and at Kaptein police station. He said there is no way the land should have belonged to the 1st Respondent. The Appellant then produced the following documents to shape up his case: - 1. Title Deed for L.R NYANDARUA/MAWINGO SALIENT/345 in the name of Hezekiah Muhia Njoroge. 2. Letter of offer from the Director of Land Adjudication and Settlement Office, Nairobi. 3. Payment receipt for Kshs 25,240/= to the Land Settlement Fund. 4. Discharge of Charge for L.R NYANDARUA/MAWINGO SALIENT/345. 5. Transfer form from the Settlement Fund Trustee. 6. Clearance certificate for loan repayment dated 12/9/2023. 7. O.B number 03/04/07/2024. He said he was given the land by the Settlement Fund Trustees as an alternate land. He testified that he applied for the land in writing and that his Title had not been cancelled. He asked the Court to declare him the owner of the suit land. He further adduced evidence to the effect that he was barred by the 1st Respondent’s people from using it. On cross-examination by Mr. Gathendi for the 1st Respondent he testified that it is in 2002 that he learnt that the land had no owner after which he applied for it. He also admitted that he had another parcel of land in the neighbourhood which he had got in a similar way, of applying for it and that he did not know that his Title had been recalled by the Land Registrar but that he has never used the land. He said that it was the office of the Settlement Fund Trustees in Nyahururu that had sent him to Nairobi to apply for the suit land. He said that it was not true that somebody else had been allocated the land in 1989. On cross-examination by Ms. Adomeyon for the 2nd and 3rd Respondents, the Appellant said that he unsuccessfully applied for the land the first time but succeeded on the second Application after he was called and told to apply for the same. He said he paid Kshs. 9,000/- for Stamp Duty. On re-examination, the Appellant said he had paid Kshs. 23,240/- to the Settlement Fund Trustees and that he had not seen the Green card in respect of the land and that some young men prevented him from occupying the land claiming it belonged to the 1st Respondent. Eliab Muchiri Kamau, a Deputy Director Land Adjudication & Settlement stationed at Nairobi testified that the land was allocated to Samwel Wanjohi King’ori in 1989. He accepted the offer and was documented as the owner. The said King’ori gave the letter of acceptance on 9/8/1989 and later paid Kshs. 3,229/- on 13/3/1991. He said that the Settlement department cleared the allottee but that the clearance process was not completed and that the Director of settlement did not append his signature to the letter. He said that the letter cancelled itself after the expiry of 90 days. He then produced the following documents showing that the Appellant applied for the suit land and was given the same: - 1. Offer letter of 1989 – D exh 1. 2. Confirmation letter dated 9/8/1989 – D exh 2. 3. Clearance form LO/331/345/4 – D exh 3. 4. Uncompleted settler clearance certificate – D exh 4. 5. Request for ground status report of 14/11/2016 – D exh 5. 6. Ground status Report dated 25/11/2016 – D exh 6. 7. Application letter - D exh 7. 8. Notice to remedy breach – D exh 8. 9. Cancellation of plot allocation - D exh 9. 10. Letter of offer dated 29/8/2023 – D exh 10. 11. Settler payment receipt dated 31/8/2022 – D exh 11. 12. Settler clearance Report dated 17/8/2023 – D exh 12. 13. Receipt voucher dated 31/8/2023 – D exh 13. 14. Forwarding letter to county dated 30/10/2023. On cross-examination by Mr. Gathumbi, the officer said that Mr. Samwel King’ori was not discharged and that even the response to Samwel dated 25/11/2016 was doubted by his office. He said he had nothing to show that any letter of cancellation reached Samwel and that he doesn’t know how the Appellant came to know of the existence of the suit land. He held that the letter from their Nyahururu office shows that as at 2016 there was no discharge of charge for the parcel of land and that there was need to recall the 2nd Title. He finally admitted that he had no Demand letter to Mr. Samwel Wanjohi. On cross-examination by Ms. Mungai, the officer said that the Nairobi office knew the land to belong to the Appellant and that a discharge had been forwarded to him on 30/10/2023 and that by that date the cancellation of the land to the first allottee had been effected. He further said that there was nothing to show that Samwel Wanjohi and the person he sold the land to even appeared before the Settlement officer to sign the transfer forms to the new owner. He also said that the Land Report done on 7/10/2023 was not in the file. And on re-examination by Ms. Ademeyon, he said that there is no limit to the properties one can be given by the Settlement Fund Trustees. Stephen Waithaka Githinji, Land Registrar, Nyandarua testified that land parcel No. NYANDARUA/MAWINGO SALIENT/345 was registered as belonging to the Settlement Fund Trustees on 14/3/1990. It was transferred to the Appellant on 7/11/2023 and a Title Deed issued. He produced: - 1. Receipt for payment of stamp duty and registration of 7/11/2023. 2. RIM for the parcel. 3. Discharge of charge. 4. PIN certificate. 5. Payment slip of 10/10/2023. 6. Letter dated 30/11/2023. 7. Letter dated 25/1/2024. 8. Letter dated 26/1/2024. 9. Letter dated 24/1/2024. On cross-examination by Mr. Gathumbi for the 1st Respondent, the witness said he had recalled the Title Deed belonging to the Appellant after advice from the Director of the Settlement Fund Trustees to enable him decide the issue of ownership. He said he had only one Green card, for the Appellant and that there were other Green cards for the Appellant in his safe custody for other parcels. He also said that the land is claimed by 2 people. He also said that he wrote to the Appellant asking him to surrender the Title Deed but he hadn’t do so. He said that once the Settlement Fund Trustees issued the discharge, that office can’t reclaim the land. On cross-examination from Ms. Mungai, this witness said that it is possible to present documents and get the Title the same day. He said they did not see the supporting documents from James Mungai, the 1st Respondent. He finally said that the entry of ownership for the Appellant was cancelled on 15/2/2024 after the Settlement Fund Trustees recommended it and that directions are being awaited for the Court or for Director, Settlement Fund Trustees. The Trial Magistrate then delivered Judgment declaring that the 1st Respondent, James Muigai Maina is the lawful owner of the suit property No. NYANDARUA/MAWINGO SALIENT/345 and that the Title Deed registered in the name of the Appellant, Hezekiah Muhia Njoroge, be cancelled and the register be rectified to reflect the same. She also granted the costs of the suit to the 1st Respondent. The Trial Magistrate’s Judgment was as follows: - “The procedure for allocation of public land was not followed. There was no advertisement so that all qualified persons can apply and be vetted. I say this because the 1st Defendant already had other parcels of land from SFT while there are thousands of Kenyans who are landless so those Kenyans should be give an equal opportunity to the Defendant to own land………………It is not for individuals to go to the land’s office asking whether there is land for allocation. If there is any vacant land, it must be advertised for allocation and I say loud and clear that the advertisement must be yonder the office of the Directorate of Land Adjudication and Settlement and Ardhi house in general for all Kenyans and especially the landless to have an opportunity to apply for it. Again, there must be a proper way of allocating land. Quoting Mugo J. in the aforestated case, “.....As a public servant working in the Lands Office, one is supposed to work like a banker who is surrounded with money all over but looks at that money only as paper. At the end of the working day, he picks his bag, goes to queue at the boarding stage, boards a “matatu” only to take a simple meal with his family in the evening courtesy of his monthly salary, having left all the money in his place of work. When he needs a loan from the bank, he applies for it like any other person. A land officer should also look at all the documents in his office as people’s documents of which he is a steward. In any case any land is available for allotment, like a bank officer, he should apply for it and in order to qualify for it like any other Kenyan.” The Plaintiff wasn’t given Notice stating the breach rather none has been produced in Court and even if it were there is no prove he was served with the said Notice and given time to remedy…………..The law is clear in as far as possession of a Title Deed is concerned. It is trite law that when ownership of property is disputed, it is not enough for the title holder to dangle an instrument of title and expect the Court to affirm it as sacred. One must establish the root of the title and that the same was acquired legally and validly since whereas title is conclusive evidence of proprietorship, the same can be challenged on the basis of fraud, illegality, or acquisition of the said title through a corrupt scheme……..In the case of Munyu Maina vs Hiram Gathiha Maina, Civil Appeal No. 239 of 2009 the Court held that: - “..........Where a party’s certificate of title is under challenge, it is not enough to wave the instrument of title as proof of ownership but prove the legality of how he acquired the title…………..”. Section 26(1) (a) & (b) of the Land Registration Act, 2012 guides me on the need to protect the sanctity of a title deed but limits me where there is darkness: - “ the certificate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer of transmission by the proprietor shall be taken by all Courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except:- 1. On the ground of fraud or misrepresentation to which the person is proved to be a party; or 2. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. The proviso to this sacred section has been brought out clearly in this case. There are so many particulars of fraud, illegal procedures in the transfer of the title in respect to L.R No. Nyandarua/Mawingo.345 ranging from failure, mischief by the Director , Land and Adjudication and Settlement in wrongly repossessing a land from a person who had committed no breach of conditions of the allocation of land, and one to whom discharge of charge had been issued after he paid fully for the parcel of land and title processed in his favour and failure to serve him with a notice before the repossession in order to aid and suit a colleague’s selfish and self-centered interests and self-aggrandizement. The 1st Defendant must have hatched a fraudulent scheme and successfully executed it with the connivance of some officials at the Lands Office and others in Land Adjudication and Settlement office, Nairobi. The equity maxim goes like ...equity will not suffer a wrong to be without a remedy…………………Therefore, besides fraud, acquisition of land through illegality, misrepresentation, unprocedurally or through a corrupt scheme would lead to its cancellation………….Any title that is found to have been unlawfully acquired, like the one given to the 1st Defendant in respect to parcel No. L.R No. Nyandarua/Mawingo/345 cannot be protected……………….Consequently, my hands are tied and it is indeed my duty to do only one singular thing. Which is? To get recourse to Section 80 of the Land Registration Act, 2012 as follows: - (1) Subject to sub-section (2) the Court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. Sub-section (2) of the Act. (2) The register shall not be rectified to affect the title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.” The Plaintiff has proved his case to the required standards against the three Defendants and I hereby enter Judgment against them jointly and severally. The 1st Defendant has failed to prove his Counter-claim so the Counter-claim is dismissed with costs………….The upshot of this is that I hereby make a declaration that the Plaintiff James Muigai Maina is the lawful owner of the suit property i.e. L.R Nyandarua /Mawingo Salient/345………The title deed registered in the name of the Hezekiah Muhia Njoroge to be cancelled and the register to be rectified to reflect the same…………The Plaintiff will also have the costs of this case to be borne by the Defendants.” The 1st Respondent having been dissatisfied with the lower court Decision appealed to this Court with the following prayers: - 1. This Appeal be allowed and the Trial Court’s Judgment be set aside in its entirety. 2. the Appellant’s Counter-claim before the trial Court be allowed. 3. The Appellant be awarded costs of the Appeal and of the lower Court with interest. The Appellant’s grounds of Appeal are as follows: - 1. The Learned Trial Magistrate erred in law and in fact by failing to consider the evidence adduced by the Defence thereby arriving at an erroneous determination. 2. The Learned Trial Magistrate erred in law and in fact by greatly misapprehending the facts of the case. 3. The Learned Trial Magistrate erred in law and in fact by stating that the 1st Respondent testified that he was issued with a discharge of charge despite the fact that the 1st Respondent never testified to this fact. 4. The Learned Trial Magistrate erred in law and in fact by making a determination based on misleading and erroneous facts which were outside the scope of the evidence adduced before the Court. 5. The Learned Trial Magistrate erred in law and in fact by entering the arena of a litigant instead of maintaining neutrality and impartiality which is required in an adversarial system when determining the suit. 6. The Learned Trial Magistrate erred in law and in fact by accusing the Appellant of corruption and collusion with officials working in the office of the Land Registrar, Nyahururu to cause disappearance of the Plaintiff’s documents despite there being no evidence to that effect. 7. The Learned Trial Magistrate erred in law and in fact in upholding the 1st Respondent’s Title despite there being no evidence demonstrating the root of his Title Deed. 8. The Learned Trial Magistrate erred in law and in fact by ordering cancellation of the Appellant’s Title Deed in respect to parcel No. L.R. NYANDARUA/MAWINGO SALIENT/345 notwithstanding the fact that the grounds for cancellation of Title Deed were neither pleaded nor proved by the 1st Respondent as required under the law. 9. The Learned Trial Magistrate erred in law and in fact by failing to consider the Appellant’s final submissions while making a determination. 10. The Learned Trial Magistrate erred in law and in fact by entering Judgment against the Appellant based on pre-conceived notions and mistaken facts about him which were highly prejudicial to the Appellant’s case. 11. The Learned Trial Magistrate erred in law and in fact by declaring the 1st Respondent as the lawful owner of parcel No. L.R. NYANDARUA/MAWINGO SALIENT/345 despite the fact that there was no single sale agreement, transfer forms and consent from the Land Control Board between the 1st Respondent and the purported sellers confirming the alleged sale. 12. The Learned Trial Magistrate erred in law and in fact by entering Judgment against the Appellant based on unfounded and baseless corruption allegations against him and officials working in the Land Registrar’s office at Nyahururu and in the office of the Director of Land Adjudication and Settlement thereby creating a bias against him in making a determination. 13. The Learned Trial Magistrate erred in law and in fact by making determination against the weight of the evidence presented. Having gone through the evidence adduced in Court and having compared the documents from all the parties in this Appeal, I realize that the suit land was first registered in the name of the Settlement Fund Trustees and later transferred to James Mungai Maina, the 1st Respondent herein who has explained that he bought the same from his father, Joseph Maina Mungai in 2006 at Kshs. 75,000/-. The said land had been bought by his father because he was in the United Kingdom. When his son came back in 2006, the father transferred the land which had been registered in his name to his son in 2010. His father had bought the land in 2006 from Benjamin Maina Karimi who testified as much. Karimi had bought the land from Samwel Wanjohi King’ori, his cousin. Samwel Wanjohi King’ori testified and was able to demonstrate by use of documents that he was allocated the land by the Settlement Fund Trustees in 1989. An invoice voucher is shown dated 13/3/1991. The allotment letter to this effect is dated 29/6/1989 from the Director of Land Adjudication and Settlement, Mr. A.F Osman and copied to the permanent Secretary lands and Settlement, and the District Commissioner, Nyandarua and the District Land Adjudication and Settlement Officer, Ol-kalou. It is addressed to Mr. King’ori of P.O Box 62729, Nairobi and the District Land Adjudication and Settlement Officer, Nyandarua. It shows the subject property to be Plot No. 345, Mawingo Scheme. In the letter of 14/11/2016 produced by the Land Adjudication and Settlement Deputy Director, Mr. Eliab Muchiri Kamau an officer on behalf of the Director of Land Adjudication and Settlement Mr. Philip Abonyo writes to their office in Nyahururu confirming that Records held in the office showed that the plot was discharged in favour of one Samwel Wanjohi King’ori and therefore the evidence of Mr. Muchiri Kamau, that the Director refused to discharge the charge in favour of or transfer to the said Mr. King’ori is untrue. There is a letter of clearance of loan in favour of Mr. King’ori dated 13/3/1991 in respect to loan No. 331/345. All these documents were available at Ol Kalou offices of the Settlement Fund Trustees. It is only on 25/11/2016 when the Nyandarua North office of the Land and Adjudication and Settlement Officer said that they could not trace the documents in respect to the suit property. I believe the same were plucked out of the file just as the documents at the Land Registry, Nyandarua. There is no way Samwel Wanjohi King’ori and Benjamin could have been given a Title Deed without these documents, especially the discharge of charge and transfer from the Director of Land Adjudication and Settlement who confirmed that he had these documents in his file. Even assuming that these documents were not available at the District office as long as the Director of Land Adjudication has confirmed in the letter dated 14/11/2016 that the land had been discharged in favour of Samwel Wanjohi King’ori, the ownership of the suit land was settled and what remained was for the parcel of land to be transferred to Mr. King’ori. The land having been given to Mr. King’ori, neither the Appellant nor the 2nd and 3rd Defendants’ witness Mr. Kamau has shown to the Court that this land was even repossessed and reallocated to the Appellant 34 years later, in 2023. There is even no letter of Demand and Notice of repossession from the land Adjudication and Settlement Director, and for what reasons. It has been confirmed that the land had been paid for in full and by 2016, several years before it was allegedly allocated to the Appellant the person on the ground, the Land Adjudication and Settlement Officer, Nyandarua North confirmed that the land was being cultivated. What other requirement had the allottee failed to fulfil to warrant any repossession? The Land Registrar, Nyandarua and Samburu Counties, Mr. S. W. Githinji also in a letter dated 26/1/2014 says: “...................it is noted that the issued Title Deed dated 7/11/2023 (to the Appellant) is not clear and therefore should be surrendered before the County Land Registrar, Nyahururu/Samburu Counties within 30 days from the date of this letter……….......”. In the Ground Status of the property dated 7/10/2023 the suit land is reported by the Land Adjudication and Settlement Officer, Nyandarua North sub-county as being partially fenced with some cultivation going on and half of the land covered with plain grass. I am at pains therefore to figure out where the witness procured by the 2nd and 3rd Respondents got the information he brought to Court that the plot was unfenced and that the 1st Respondent had lost his rights to the property. The Appellant himself, the area chief as well as the 2nd and 3rd Respondent’s witness confirmed that when they visited the land they found it cultivated and were even repulsed by young men and told that the land belonged to somebody else, the 1st Respondent (and not the Appellant). I am also concerned just as I was in **Nyandarua** **ELC Appeal Case No. E018 of 2024, Stephen Njenga Mwangi & another -VS – Hezekiah Muhia Njoroge** where the Appellant herein was the Respondent in that case that if any parcel of land in a Settlement Scheme were found to be vacant and repossessed, then the Settlement Office ought to allocate it to a needy person after a proper way of selection following an advertisement to that effect is done. Here, the Appellant claims that he was told by the Settlement office in Nyandarua that the suit property had no owner and that he should go to the Director of Land Adjudication and Settlement for allocation. This is not proper. The appeal for allocation should be made public followed by fair allotment and if the properties are many or not, there ought to be balloting. What the Appellant ought to have done is to make an Application for land generally or for any available land without specifying the one he wanted. It was upon the Director of Land Adjudication and Settlement to decide which one to give him, if at all, among other allottees. The Appellant has even told the Court that he has another parcel of land in the neighbourhood. The Appellant testified that he got a number of parcels of land in the said locality in the same manner as this one. By identifying a parcel of land and reporting that it had no owner and being advised to apply for it and the Applications were all unvaryingly successful. Having received information that there was a dispute in relation to the suit land, what has the Director done to resolve it? I am also concerned that a person in the station of DW1, Muchiri Kamau can stand in the witness box and claim that the Title offer to the 1st Respondent cancelled itself. This is unprofessional. As I said in **Nyandarua** **ELC Appeal Case No. E018 of 2024, Stephen Njenga Mwangi & another -VS – Hezekiah Muhia Njoroge** above, if repossession has to be done after allocation is found not to have met the required fulfillment, the allottee must be properly informed beforehand and given time to fulfill the pre-requisite conditions. I hope the said Mr. Kamau never meant that after the allocation cancels itself, the allottee will also inform himself that it has been so cancelled. On issues to do with land and bearing in mind Article 40 of the Constitution of Kenya, 2010- the right to property, everything must be done transparently and for anybody, including the 1st Respondent, who it has been shown had already paid for the land and given a Title Deed which nobody has impeached or shown that it was acquired fraudulently, such a person should not be denied his rights of ownership of the property. The 1st Respondent is said to be living in the United Kingdom and I believe that the Appellant had gathered this information. But luckily, the 1st Respondent had left his people guarding the land. Courtesy of his vigilance. I will not pen down before reprimanding officials at the lands office who in order to aid the Appellant made sure that the Green card for the suit land and the parcel file are not available. But this did not help him much. Truth is able to come out even in darkness. The christening of the 1st Respondent’s Title Deed to the suit land NYANDARUA/ MAWINGO SALIENT/345 a piece of paper has been found to be baseless. This is a case where Mordecai becomes Harman and vice versa. There is no way you can superimpose a Title over another one. The Mawingo Scheme is an old scheme which was established in 1963 and registered in March 1988 with 340 settlers in an acreage of 4890.7 Hectares and therefore, the suit land must have been allocated to someone in the 1960s. The alleged allotment of 2023 must no doubt have been a “reallocation”. Should it have been found that for whatever reason the 1st Respondent had already lost ownership of the suit land, then the land should have first been repossessed before being reallocated to any other person, such as the Appellant. Unless this is done there would be confusion and convoluted conflict all over. To avoid this, the case of **Nyandarua** **ELC Appeal Case No. E018 of 2024, Stephen Njenga Mwangi & another -VS – Hezekiah Muhia Njoroge** laid down an elaborate procedure for this to be achieved as follows: 1. There must be a Notice preceding the repossession. 2. The Notice must be quite clear and unequivocal as to the reason(s) for the repossession. 1. The Demand must be communicated in the most effective way in order to ensure that the land owner has received the Demand and to avoid doubts, personal service is to be preferred. 2. The Demand Notice should be detailed enough to indicate the parcel Number and if the reason for repossession is non-payment of a loan, premiums or any other payments, the specific amount of the loan must be correctly indicated. 1. The property owner must be given reasonable time to pay up and redeem the property. 2. The defaulting party must also be invited to make proposals on how to clear the outgoings. 3. The Decision of the Director of adjudication and settlement on repossession must be in writing and communicated to the land-owner in writing as well. 4. Under Article 35 (i) of the Constitution of Kenya, 2010 the land owner is entitled to the written Decision that repossesses his land and if the same is by a committee or group of people, the minutes of the meeting. A Title deed is only “prima facie evidence” of ownership, not conclusive proof. Meaning, holding a Title doesn’t automatically make you the owner if it was issued illegally. There are 2 Title Deeds for the suit land. Both are from the same land Registry. My singular duty is to determine which one was genuinely and regularly issued. Certainly, the first in time unless shown to have been acquired illegally must be the genuine one. The second one can only be genuine if it is shown that the first one had been cancelled after being repossessed and legally so and then lawfully reallocated to the holder. In case of double allocation, the first Title unless shown to have been acquired fraudulently and unlawfully or irregularly must be given effect to. You have to cancel the illegally obtained one. No fraud was pleaded against the 1st Respondent nor was any proved. Under Article 40(6) of the Constitution of Kenya, 2010 no one can deprive a Title holder of property unless the acquisition is meant for public purposes, subject to adequate compensation. But if your Title was obtained fraudulently, Article 40(6) doesn’t protect it. A Title obtained by way of illegal allocation, forgeries, or as a double allocation by officials of the allocating authority such as that of the Appellant must be cancelled. The 1st Respondent’s is a Title Deed that was passed from one generation of the original owner who had a good Title who passed it to a subsequent buyer who later passes it over to yet another buyer even long before the Appellant claims to have been allocated the same by the Settlement Fund Trustees. It is unimaginable. I'm also persuaded that the 1st Respondent’s people must have resided on and taken possession of the same, intermingled with the community around to the extent that when the Appellant attempted to take it away, the neighbours deterred him. The 1st Respondent 's Title is accordingly unimpeachable. It is hereby so maintained. What happens to the Appellant's Title? The same was irregularly obtained and section 80 of the L.R.A. becomes automatically applicable to the said Title. Section 80 of L.R.A. provides that: (1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. (2) The register shall not be rectified to affect the title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default. In this case, the Appellant not only had knowledge of the fraud in consequence of which the cancellation is sought but also substantially contributed to it by causing a Title Deed to be issued to him when an earlier Title was already in existence. The upshot of the above is that I am unable to upset the well-reasoned Judgment of the Honourable J. Nthuku, Senior Principal Magistrate dated 6/8/2025 and the Appeal herein fails in its entirety with costs to the 1st Respondent. **Judgment read and delivered at Nyandarua this 1st Day of July 2026.** **MUGO KAMAU.** **JUDGE.** **In the Presence of: -** **Court Assistant: Samson.** **Appellant’s Counsel: Mr. Chege.** **Respondent’s Counsel: Mr. Gathumbi.**