Irungu & another v Kikuvi alias Benedicto Peter Vala Kikuvi (Environment and Land Appeal E153 of 2025) [2026] KEELC 3250 (KLR) (28 May 2026) (Judgment)

Irungu & another v Kikuvi alias Benedicto Peter Vala Kikuvi (Environment and Land Appeal E153 of 2025) [2026] KEELC 3250 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELC 3250 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E153 of 2025 EK Wabwoto, J May 28, 2026 Between John Gatune Irungu 1st Appellant Embakasi Ranching Company Limited 2nd Appellant and Benedicto Vala Kikuvi alias Benedicto Peter Vala Kikuvi Respondent (Being an appeal from the Judgment of Hon. Pamela Achieng (Chief Magistrate) delivered on 14th August 2025 in Milimani MCELC No. 1295 of 2020) Judgment 1.This is a first appeal from the judgment and decree of Hon. Pamela Achieng (CM) delivered on 14th August 2025 in Milimani MCELC No. 1295 of 2020. The trial court entered judgment in favour of the Respondent the original Plaintiff), declared him the legal owner of Plot No. P.129B now registered as Nairobi/Block 136/10421, ordered the Appellants to transfer the said parcel to him, issued a permanent injunction restraining the Appellants from interfering with the property and awarded him costs of the suit. 2.Aggrieved, the Appellants lodged the present appeal vide a Memorandum of Appeal dated 18th August 2025, advancing six grounds which they have, in their written submissions, condensed into three principal grounds. 3.As a first appellate court, this court is duty-bound to re-evaluate the evidence on record, draw its own conclusions and consider whether the trial court's findings should be sustained, bearing in mind that it neither saw nor heard the witnesses. The guiding principle remains that articulated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123: an appellate court will only interfere with the findings of fact of a trial court where it is demonstrated that the court acted on no evidence, misapprehended the evidence, applied wrong principles of law, or arrived at conclusions that are plainly wrong. Background to the Dispute 4.The Respondent instituted MCELC No. 1295 of 2020 by way of a Plaint dated 2nd March 2020, in which he claimed to be the lawful allottee and owner of Plot No. P.129B, now registered as Nairobi/Block 136/10421. He averred that:(a)He became a member and shareholder of the 2nd Appellant in 1978 under Share Certificate No. 1930;(b)On or about 28th November 1982, the 2nd Appellant allocated him Plot No. P.129B within L.R. 10904/2, off Komarock Road;(c)He paid all requisite fees including survey, engineering, registration and bonus fees, and a Beacon Certificate was issued to him on 24th January 2002;(d)After years of follow-up with the 2nd Appellant, he discovered that the parcel had been registered in the name of the 1st Appellant as Nairobi/Block 136/10421; and(e)The Appellants' acts were illegal, wrongful and fraudulent, intended to deprive him of his lawfully acquired property. 5.The Respondent sought a declaration of ownership, an order compelling transfer of the parcel to him, a permanent injunction and costs. 6.The Appellants filed substantively identical statements of defence dated 15th August 2024, denying the Respondent's claim and asserting that:(a)The 1st Appellant acquired one share in the 2nd Appellant in 2006, entitling him to a quarter-acre plot;(b)He was allocated Plot No. C.1380 (renumbered V.4662) by surveyor David Nyika in 2006;(c)The allocation was verified by the 2nd Appellant's surveyor, Stephen Maina Karuu, on 14th June 2018, who confirmed the corresponding parcel number as Nairobi/Block 136/10421; and(d)The 1st Appellant was issued with a lease and certificate of lease on 20th November 2019, and is the bonafide owner of the suit property. 7.The Appellants did not file any counterclaim. 8.At the trial, the Respondent testified as PW1 and produced his share certificate, the provisional letter of allotment dated 28th November 1982, the beacon certificate dated 24th January 2002, various payment receipts and a letter dated 4th September 2018 to one Collins instructing him to stop the process of allocating numbers over the parcel pending hearing of the Respondent's grievance. The 1st Appellant called Stephen Maina Karuu, a surveyor employed by the 2nd Appellant, as DW1. The 2nd Appellant testified on his own behalf. 9.After evaluating the evidence, the trial magistrate found that:(a)The Respondent's allocation in 1982 was prior in time, supported by consistent documentation, and remained unrevoked;(b)The 2nd Appellant, as the allocating authority, gave no reasonable explanation for re-allocating the same parcel;(c)Applying Munyu Maina v Hiram Gathiha Maina [2013] eKLR, the 1st Appellant failed to prove the legality of the root of his title; and(d)Upon allocation of P.129B to the Respondent in 1982, the parcel was no longer available for re-allocation to the 1st Appellant in 2006. 10.The court entered judgment for the Respondent and granted the reliefs sought. Grounds of Appeal 11.The six grounds in the Memorandum of Appeal may, as the Appellants themselves have done in their written submissions, be conveniently distilled into three:(a)Whether the trial magistrate erred in finding that the Respondent was allocated the suit property by the 2nd Appellant in 1982 (and identified through beaconing on 24th January 2002), against the weight of evidence;(b)Whether the trial magistrate erred in cancelling the registration of the 1st Appellant as the owner of the suit property without evidence of fraud or collusion between the Appellants; and(c)Whether the trial magistrate erred in failing to give due weight to the evidence of the 2nd Appellant as the allocating authority through whom both parties claim, in particular as to the identity of the suit property. Issues for Determination 12.Having considered the record, the grounds of appeal and the rival submissions, the following four issues that fall for determination are:(i)Whether the trial court properly evaluated the evidence and correctly found that the Respondent had proved, on a balance of probabilities, that he is the lawful allottee of Plot No. P.129B (now Nairobi/Block 136/10421);(ii)Whether the trial court erred in cancelling the 1st Appellant's registration in the absence of an express finding of fraud, and whether the law on competing titles was correctly applied;(iii)Whether the absence of a counterclaim by the Appellants has any bearing on the reliefs that the trial court could properly grant; and(iv)Who bears the costs of this appeal. Analysis and Determination (i) Whether the Respondent proved lawful prior allocation of the suit property 13.The Appellants' principal complaint under this head is that the trial court erroneously found that the Respondent was allocated the suit property on 24th January 2002, and that the property in dispute is, in any event, a different parcel from that allocated to the Respondent. They contend that the true identity of the suit property is Plot No. V.4662 corresponding to L.R. Nairobi/Block 136/9117 (which they say is the parcel reflected on the Government Survey Map), and that this is distinct from Plot No. P.129B claimed by the Respondent. 14.I have considered the record. On its face, the trial court did not find that the Respondent was allocated the suit property on 24th January 2002. What the court found, and rightly so on the evidence, is that the Respondent was allocated Plot No. P.129B on 28th November 1982 by virtue of the Provisional Letter of Allotment, and that the beaconing of the parcel was carried out on 24th January 2002, as evidenced by the Beacon Certificate produced by the Respondent. The Appellants' first ground proceeds on a misreading of the trial court's finding. 15.Section 107 of the Evidence Act places the burden of proof on the party who asserts. The Respondent discharged that burden by producing the following documents which were not impeached at trial:(a)Share Certificate No. 1930 issued in 1978;(b)The Provisional Letter of Allotment dated 28th November 1982 in respect of Plot No. P.129B;(c)The Beacon Certificate dated 24th January 2002 confirming the physical demarcation of the plot;(d)Payment receipts dating from 1975, 1976, 1977, 1984, 1990, 1999, 2002 and 2008 evidencing payment of various fees including survey, engineering, bonus and site cost; and(e)A letter dated 4th September 2018 addressed to one Collins instructing him to stop the process of allocating numbers over the parcel until the Respondent's grievance was heard. 16.The 2nd Appellant's witness, DW1, conceded under cross-examination that he had not seen the Respondent's allocation documents and offered no explanation as to how the Respondent's earlier allocation came to be displaced from the 2nd Appellant's records. The surveyor David Nyika, who allegedly allocated the suit property to the 1st Appellant in 2006, was not called to testify. The 1st Appellant's claim that he lost his original allocation documents was supported, at best, by an unproduced police abstract. 17.On the issue of identity, the Appellants' contention that the suit property is V.4662 / Nairobi/Block 136/9117 (and not the parcel allocated to the Respondent) was not pleaded in the statements of defence and only emerged in the written submissions. It is settled that parties are bound by their pleadings and that submissions cannot take the place of evidence: Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR. More fundamentally, the Appellants' own documents fatally undermine this submission. The 2nd Appellant's letter dated 28th May 2019 to the Ministry of Lands and Physical Planning expressly states that John Gatune Irungu is the owner of "Parcel No. NRB Block 136/10421"; the receipt for legal fees attesting the lease, dated 28th November 2019, is in respect of "NAIROBI/BLOCK 136/10421"; and the Non-Member Certificate of Plot Ownership No. 009523 in favour of the 1st Appellant ties Plot No. V.4662 to that very title number. In short, on the Appellants' own pleadings and documents, the title issued to the 1st Appellant in November 2019 is Nairobi/Block 136/10421, which is the very parcel the Respondent claims as having originated from his P.129B allocation of 1982. 18.The trial court was therefore correct to find as a fact that the parties were claiming the same parcel on the ground, and that the Respondent's allocation predated that of the 1st Appellant by some 24 years. Ground 1, as reformulated, fails. (ii) Cancellation of the 1st Appellant's registration without a finding of fraud, and the law on competing titles 19.The Appellants strenuously argue that fraud was not pleaded with the specificity required, that the standard of proof for fraud is higher than the ordinary balance of probabilities and that, in the absence of a finding of fraud, the trial court could not have cancelled the 1st Appellant's registration. They rely on Gichinga Kibutha v Caroline Nduku (Muranga ELC Appeal No. 16 of 2017), Ratilal Gordhanbhai Patel v Lalji Makanji (1957) EA 314 and Koinange & 13 Others v Koinange [1986] KLR 23. 20.The starting point is section 26 of the Land Registration Act. Sub-section (1) renders a certificate of title prima facie evidence that the person named therein is the absolute and indefeasible owner. That presumption is, however, defeasible. It can be displaced on the ground of fraud or misrepresentation to which the person is proved to be a party, or where the certificate has been acquired illegally, unprocedurally or through a corrupt scheme. Sub-paragraphs (a) and (b) of section 26(1) operate disjunctively, not conjunctively. A title may therefore be impeached on the ground of an illegal or unprocedural acquisition without any finding of fraud against the registered proprietor personally. 21.This understanding is well-grounded in binding precedent. In Munyu Maina v Hiram Gathiha Maina [2013] eKLR, the Court of Appeal held:“...when a registered proprietor's root of title is under challenge it is not sufficient to dangle the instrument of title as proof of ownership. He must go beyond the instrument of title and prove the legality of how he acquired it and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register." 22.The Supreme Court reaffirmed this principle in Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), reiterating the position previously stated in Funzi Development Ltd & Others v County Council of Kwale that a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. 23.In the present case, the Respondent's challenge to the 1st Appellant's title was not founded solely, or even primarily, on personal fraud by the 1st Appellant. It was founded on the contention that, by the time the 2nd Appellant purported to allocate the suit property to the 1st Appellant in 2006, the parcel had already been allocated to the Respondent in 1982 and that the earlier allocation had never been revoked or surrendered. Once that challenge was raised, the burden shifted to the 1st Appellant, as the registered proprietor, to demonstrate the legality of his acquisition, including how a parcel already lawfully allocated to another came to be available for re-allocation to him. That burden was not discharged. 24.The principle that priority in time prevails in cases of double allocation is firmly established. In Gitwany Investment Limited v Tajmal Ltd & 3 others [2006] eKLR, the court held that where, by mistake, two titles are issued in respect of the same parcel of land, then if both are apparently regularly issued, the first in time must prevail because, without cancellation of the original, it retains its sanctity. The same principle was applied by the Court of Appeal in Wreck Motors Enterprises v Commissioner of Lands (Civil Appeal No. 71 of 1997) and in Philemon L. Wambia v Gaitano Lusitsa Mukofu & 2 Others [2019] eKLR, where the court, citing Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others [2015] eKLR, held that an allotment of an interest in land is a transaction in rem attaching to and running with a specific parcel of land; and where the first allotment has been made and its terms fulfilled, the parcel ceases to be available for a subsequent allotment to another. 25.Applying these principles to the facts of this case, once it was established that Plot No. P.129B had been allocated to the Respondent in 1982, that the Respondent had paid the requisite dues and that the allocation had been physically demarcated by beacons in 2002, the parcel was, in law, no longer available for allocation to the 1st Appellant in 2006. The 1st Appellant's title, however regularly its administrative trappings may appear, suffers from a fatal defect at the root: it was issued in respect of a parcel that the allocating authority had no capacity to allocate afresh, the earlier allocation never having been revoked or surrendered. That is an illegality and an unprocedural acquisition within the meaning of section 26(1)(b) of the Land Registration Act, and the title is accordingly impeachable on that ground, regardless of whether personal fraud is or is not established against the 1st Appellant. 26.I am also fortified in this conclusion by the failure of the Appellants to produce material evidence within their exclusive possession. The 2nd Appellant did not produce any extract of its allocation register to demonstrate when or how the Respondent's allocation was cancelled. It did not call surveyor David Nyika, the very person said to have allocated the parcel to the 1st Appellant in 2006. As was held in Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 Others [2012] eKLR, where a party has custody or control of evidence and fails to produce it, the court is entitled to draw an adverse inference that the evidence, if produced, would have been adverse to that party. 27.Ground 2, as reformulated, must also fail. The cancellation of the 1st Appellant's registration is sustainable not on the basis of any unproved allegation of personal fraud, but on the basis that the 2nd Appellant lacked the capacity to make a valid second allocation in 2006, having already validly allocated the parcel to the Respondent in 1982. The acquisition was unprocedural within the meaning of section 26(1)(b) of the Land Registration Act. Absence of a counterclaim 28.Although not pressed as a stand-alone ground of appeal, an aspect of the third ground touches on the trial court's failure to give "due weight" to the 2nd Appellant's status as the allocating authority and the 1st Appellant's resultant title. To the extent this complaint is in substance an invitation to this court to recognise and uphold the 1st Appellant's title on the merits, it must fail for the additional reason that the Appellants did not file any counterclaim. 29.The Appellants' defences were purely traversive. They neither sought a declaration that the 1st Appellant is the lawful owner of the suit property, nor any affirmative relief validating the lease of 20th November 2019. As was observed in Nairobi City Council v Thabiti Enterprises Ltd [1995-1998] 2 EA 231, a court should not grant a counterclaim unless pleaded, for strange results would follow if a judge were free to determine issues not properly before him. The trial court was, in the circumstances, properly seized only of the Respondent's claim and could not have made affirmative findings vindicating the 1st Appellant's title in the absence of a counterclaim inviting that exercise. (iv) Whether there is a basis for appellate interference 30.Applying the test in Selle v Associated Motor Boat Co. Ltd (supra), I find that the learned trial magistrate correctly identified the issues in controversy, exhaustively evaluated the documentary and oral evidence and arrived at conclusions firmly supported by the evidence and consistent with binding authority. No misdirection of fact or law has been demonstrated, nor has it been shown that the conclusions reached were plainly wrong. There is accordingly no basis upon which this court, sitting as a first appellate court, may legitimately interfere with the findings below. The trial court’s decision was sound both in law and on the evidence, the appeal is devoid of merit and the same is dismissed with costs to the Respondent. Final orders 32.For the foregoing reasons, this Court makes the following orders:(a)The appeal is hereby dismissed in its entirety.(b)The judgment and decree of the Chief Magistrate's Court in Milimani MCELC No. 1295 of 2020 delivered on 14th August 2025 is upheld and affirmed.(c)The Appellants shall jointly and severally bear the costs of this appeal, to be paid to the Respondent. DATED, SIGNED AND DELIVERED VIRTUALLY this 28TH day of MAY 2026.E. K. WABWOTOJUDGEIn the presence of:Ms. Irungu h/b for Ngata Kamau for the Appellants.Ms. Isika for the Respondent.Court Assistants; Mary Ngoira and David Ngoosa.