https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5338

**0** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELCL APPEAL CASE NO. E004 OF 2025** **MARGARET JACOB...........................................1ST APPELLANT** **VERONICA NKIROTE........................................2ND APPELLANT** **=VERSUS=** **CONSOLATA NGUGI..............................................RESPONDENT** ***(An Appeal against the Judgment of the Senior Resident Magistrate Court at Nkubu [Hon R Ongira - SRM] dated 16/12/2024 in Nkubu SPMC E & L Case No. E038 of 2023)*** **JUDGMENT** **Introduction** 1. This appeal challenges the Judgment of the Senior Resident Magistrate Court at Nkubu (Hon R. Ongira – SRM), rendered on 16/12/2024 in **Nkubu SPMC E & L Case No E038 of 2023.** The key issue that arose for determination in the said case was whether the transfer of land parcel number **Nkuene/Kathera/2771** into the name of **Consolata Ngugi** (*the respondent*) on 21/11/2019 was procured fraudulently. Invariably, this is also the key question that falls for determination in this first appeal. Before I analyse and dispose the issue, I will outline the background to the appeal; the grounds of appeal; and the parties’ submissions in the appeal. **Background** 1. **Margaret Jacob** - *also identified as* ***Margaret Kathuni Jacob*** (*the 1st appellant*) is mother to: (i) **Veronica Nkirote** (*the 2nd appellant*); and (ii) **Consolata Ngugi** - *also identified as* ***Consolata Ngugi Mwongera*** (*the respondent*). She is the widow of the late **Jacob M’Kirigia M’Rinyiru** *alias* ***Jacob Kirigia Rinyiru*** (*hereinafter referred to as* ***“the deceased”*** *or* ***“the late M’Rinyiru”***) who died on 15/4/2001. The deceased owned land parcel numbers **Nkuene/Kathera/379** and **Abogeta/U-Kiringa/666.** 2. Vide a certificate of confirmation of grant dated 18/6/2018, issued to the 1st appellant in **Meru High Court Succession Cause No 699 of 2012,** each of the two parcels devolved in equal shares to the following members of the deceased’s family: (i) the widow (the appellant); (ii) Simeone Muriungi Kirigia (son); (iii) Timothy Mugambi M’Kirigia (son); and (iv) Joseph Mutwiri Kirigia. There was no express provision for the two daughters of the deceased who are the 2nd appellant and the respondent in this appeal. There was, however, common ground that the portions given to the 1st appellant would subsequently devolve to the two daughters. 3. Pursuant to the said certificate of confirmation of grant, the appellant caused parcel number **Nkuene/Kathera/379** to be subdivided into four equal portions, namely, parcel numbers **2771, 2772, 2773** and **2774**. She conveyed parcel numbers 2772, 2773 and 2774 into the respective names of her three sons who were the identified beneficiaries in the succession cause. On 9/10/2019, she caused parcel number **2771** (*the suit land)* to be registered in her name, initially as administratrix of the estate and subsequently as the beneficiary of the parcel under the certificate of confirmation of grant. She was subsequently issued with a title deed on 16/10/2019. 4. On 27/11/2019, an entry was made in the parcel register transferring the suit land to the respondent as the sole absolute owner. On 17/1/2020, another entry was made in the parcel register denoting issuance of a tittle to the respondent. 5. Vide a plaint dated 5/9/2023, the two appellants challenged the above transfer and title, and contended that the transfer and title were procured fraudulently. They alleged that the 1st appellant held the suit land on behalf of the 2nd appellant and the respondent (*the 1st appellant’s two daughters*). They further contended that subsequent to the 1st appellant obtaining registration of the suit land into her name, she fell ill and was taken to stay with the respondent for three years, adding that during the period of illness and stay with the respondent, the respondent took and kept all her belongings, including the title deed relating to parcel number 2771. The 1st appellant subsequently discovered in 2023 that the respondent had fraudulently caused the suit land to be transferred into her name. She discovered this when the respondent objected to an intended burial of the 1st appellant’s grandson on the suit land. 6. Terming the transfer of the suit land into the respondent’s name as fraudulent, the appellants prayed for, *inter alia*, an order cancelling the said transfer. They also prayed for costs of the suit. 7. The respondent contested the claim through a statement of defence dated 21/9/2023 in which she averred that the 1st appellant was the administratrix of her late father’s estate, adding that “*in the year 2020*”, the 1st appellant *“willingly, freely, voluntarily, without any duress or undue influence transferred the suit land”* to her and a title deed was subsequently issued to her. She denied fraud as particularized in the plaint. She urged the trial court to dismiss the claim. 8. During trial, the 1st appellant testified as PW1 and reiterated her case as summarized above. She denied effecting the impugned transfer and reiterated that it was *“a fraudulent act”* by the respondent, emphasizing that she had her permanent residence on the suit land. 9. The 2nd appellant testified as **PW2**. She adopted her written statement dated 5/9/2023. Her evidence was that the 1st appellant held the suit land in trust for her and the respondent. 10. The Land Registrar [**Merialis Njeru**] testified as **PW5**. She produced the green card relating to the suit land but failed to produce the parcel file which would contain the impugned transfer documents. She contended that the parcel file had been misplaced in the Land Registry and could not be traced. 11. The respondent testified as **DW1** and closed her case. She tendered and relied on the following four (4) documents: (i) Certificate of confirmation of grant issued in Meru High Court Succession Cause No 699 of 2012; (ii) Mutation Form relating to Nkuene/Kathera/379; (iii) Transfer dated 9/10/2019 relating to parcel number Nkuene/Kathera/2771 by way of transmission (*Form RL 7*) from the 1st appellant (*as administrator of the estate*) to the 1st appellant (*as beneficiary under the confirmed grant*); and (iv) Receipts relating to payment of stamp duty. Despite listing the application for consent and the consent relating to the impugned transfer as part of the documents that she intended to produce, she neither included the two documents in her trial bundle nor produced them during trial. 12. In her evidence-in-chief, the respondent reiterated that the appellant signed transfer documents relating to the impugned transfer and denied stealing the title deed. She did not, however, tender the said transfer documetns. In her testimony during cross-examination, she confirmed that during succession relating to the estate of the deceased, parcel number 379 was given to her mother (the 1st appellant) and her three brothers and that she never objected to the distribution of the estate. She urged the trial court to reject and dismiss the claim. 13. Upon receiving submissions, the trial court rendered the impugned Judgment in which it held as follows:- ***“11. The defendant produced before this court copies of the transfer forms for LR Nkuen/Kathera/2771 as D. Exhibit 3, mutation form for LR No Nkuene/Kathera/379, copies of receipts for stamp duty acknowledgement of payments slip for Nkuene/Kathera/2721 as D Exhbiit 4. In my view, the defendant was able to prove the root of her title even if the Land Registrar stated that she couldn’t be able to produce the transfer documetns as there was a misfiling at the Land Registry. In sum, the defendant’s case wasn’t shaky as she supported the same by cogent and credible evidence on how she acquired the suit property from 1st plaintiff. Perhaps if the 1st plaintiff is of the view that she was holding the said land in trust for the 2nd plaintiff and the defendant, then she might consider giving the 2nd plaintiff her share in Abogeta/U-Kiringa/666 in exclusion of the defendant herein who has now received a share from her and her father’s estate.”*** 1. Untimately, the trial court found that the suit by the appellants was unmentorious and dismissed it. Noting that the parites to the suit were close relatives, the trial court ordered that parties were to bear their respective costs of the suit. **Appeal** 1. Aggrieved by the Judgment and decree of the trial court, the appellants brought this appeal through a memorandum of appeal dated 9/1/2025. The memorandum of appeal was amended on 29/10/2025. They advanced the following nine (9) grounds of appeal: 2. ***The Learned Senior Principal Magistrate erred in law and fact in relying on irrelevant facts by dismissing the appellants’ suit despite overwhelming reasons.*** 3. ***The Learned Senior Principal Magistrate erred in law and fact in failing to consider the entire evidence of the Land Registrar on record and its weight of evidence.*** 4. ***The Learned Senior Principal Magistrate erred in law in totally ignoring the fact that the 1st appellant was the beneficiary of the land through a succession cause and was issued a title deed in that regard.*** 5. ***The Learned Senior Principal Magistrate erred in fact and law in totally disregarding the circumstances that led to the transfer of the land.*** 6. ***The Learned Senior Principal Magistrate erred in law by totally disregarding the efforts the appellants took to initiate the authenticity of her signatures in the transfer form but no original transfer form was produced in that regard.*** 7. ***The Learned Senior Principal Magistrate erred in facts and the law by failing to appreciate the suit and thus came up with the unsupported judgment on facts and law.*** 8. ***The Learned Senior Principal Magistrate erred in law and in fact in failing to appreciate aqdequetely or at all that the evidence on record sufficiently proved the appellants’ suit.*** 9. ***The Learned Senior Principal Magistrate erred in law in misapplying the legal criteria for determining a good root of title.*** 10. ***The whole of the judgment was unfounded on any law or fact.*** 11. The appellants urged the court to allow the appeal. **Appellants’ Submissions** 1. The appeal was canvassed through written submissions dated 12/2/2026, filed by ***M/s G. Njoroge & Co Advocates***. Counsel for the appellants submitted only on ground numbers 3, 2, 5 and 8, in the above order. On the contention that the trial court erroneously ignored the fact that the 1st appellant was the beneficiary of the suit land throught succession and had been issued with a title deed, counsel pointed out that the 1st appellant tenderd a certificate of confirmation of grant dated 18/6/2018, adding that the trial court failed to analyze the documents tendered and their legal effect. Counsel further faulted the trial court for failing to be guided by the doctrine of indefeasibility of title and its supremacy. 2. On the contention that the trial court erroneously failed to consider the entire evidence of the Land Registrar and the weight of her evidence, counsel submitted that the appellants made a formal application dated 12/2/2024 seeking to compel the Land Registrar to avail transfer documetns relating to the impugned tranfer to facilitate a forensic analysis of the documents. Counsel observed that despite the court summoning the Land Registrar to avail the documents, she did not avail them. Counsel added that when the Land Registrar eventually attended court and testified as **PW5**, she did not avail the impugned tranfer documents, adding that the respondent similarly failed to tender her copies of the impugned transfer documents. 3. On the allegation that the trial court erroneously disregarded the efftorts the appellants took to “initiate” the authenticity of the 1st appellant’s signature on the transfer form but no original transfer form was produced for that purpose, counsel submitted that the appellants made deliberate efforts to prove that the *“signature appended in the transfer instrument did not belong to the 1st appellant”* and that the registrarion was obtained through fraud or misrepresentation of fact. 4. On the contention that the trial court erred in misapplying the legal criteria for determining a good root of title, counsel submitted that the trial court acknowledged at paragraph 11 of the impugned judgment that the Land Registrar did not produce the transfer documents yet it went ahead to conclude that the respondent had proved the root of her title. Counsel argued that this was an inconsistency. Counsel urged the court to allow the appeal. **Respondent’s Submissions** 1. The respondent filed written submissions dated 24/2/2026 through the firm of ***M/s Kiogora Arithi & Associates.*** Counsel for the respondent identified the following as the three issues that fell for determination in the appeal: (i) Whether the Learned Trial Magistrate erred in her evaluation of the Land Registrar’s evidence; (ii) Whether the appellants discharged the burden of proof of fraud; and (iii) Whether the respondent was the *bona fide* owner of ***Nkuene/Kathera/2771***. 2. On whether the trial court erred in evaluating the Land Registrar’s evidence, counsel submitted that the Land Registrar testified that the respondent’s title was obtained procedurally and no report was made on any irregularity. Counsel further submitted that the fact that the Land Registrar was unable to produce the original transfer forms from the Registry was not proof of fraud. Counsel added that the appellants did not produce any evidence to prove fraud on the part of the respondent. Counsel relied on the pronouncements of the Court of Appeal in the: (i) ***Kuria Kiarie & 2 Others vs Sammy Magera (2018) eKLR; (ii) Vijay Morjaria vs Nansingh Madhusingh Darbar & anor (2000)KLR; and (iii) Ndolo vs Ndolo (2008) 1KLR (G & F) 742.*** 3. Counsel contended that if there was a need to prove forgery, the onus of proof was on the 1st appellant, who was expected to call witnesses to produce fingerprint analysis by the Directorate of Criminal Investigations. Counsel relied on the court’s pronouncement in the case of ***Caroline Wanjiku Ngugi vs Republic (2015)KEHC 854(KLR) and Elizabeth Achieng Nyanya vs republic (2018)eKLR***. 4. On whether the respondent was the bona fide owner of **Nkuene/Kathera/2771**, counsel submitted that the respondent was a beneficiary of the suit land pursusant to the orders in Meru High Court Succession Cause No 699 of 2012 and the 1st appellant was holding the land in trust for the respondent and the 2nd appellant. Counsel argued that the respondent followed the right procedure in obtaining the suit land. Counsel relied on the pronouncement of the Court of Appeal in the case of ***Arthi Highway Developers Limited v West End Butchery & 6 Others (2015) eKLR***. Counsel urged the court to reject the appeal. **Analysis and Determination** 1. The court has read and considered the original record of the trial court; the record filed in this appeal; the grounds of appeal; and the parties’ respecdtive submissions. The appellants listed nine (9) grounds of appeal. In their subsequent written submissions, they argued only four (4) grounds. The arguments on the four grounds revolve around one issue;- whether the appellants proved that the respondent procured registration of land parcel number Nkuene/Kathera/2771 into her name fraudulently. Before I analyse and dispose the issue, I will briefly outline the principle that guides this court when exercising appellate jurisdiction. I will also outline the prevailing jurisprudence on proof of fraud. 1. The task of a first appellate court was summarized by the Court of Appeal in the case of ***Susan Munyi v Keshar Shiani (2013) eKLR*** as follows: ***“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”*** 1. The principle was similarly outlined in ***Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR*** as follows: ***“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reason either way.”*** 1. In ***Elizabeth Kamene Ndolo v George Matata Ndolo [1996] eKLR,*** the Court of Appeal outlined the following threshold which a party alleging fraud must satisfy: ***“We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities. But the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases.”*** 1. In ***Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR*** the Court of Appeal outlined the following principle relating to the threshold which must be satisfied by a party alleging fraud: *“****It is well-established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts. See Davy v Garrett [1878] 7 Ch. D 473 at 489.”*** 1. In ***Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR***, the Court of Appeal outlined the following as the threshold that a party alleging fraud must meet: “***It is the law that any allegation of fraud must be pleaded and strictly proved……..To succeed in the claim for fraud, the appellant needed to not only plead and particularize it, but also lay a basis by way of evidence, upon which the court would make a finding.”*** 1. Did the appellants satisfy the above threshold? From the evidence presented to the trial court by the appellants, it was clearly established that pursuant to a certificate of confirmation of grant issued on 18/6/2018 **in Meru High Court Succession Cause No 699 of 2012**, the 1st appellant was on 9/10/2019 registerd as the proprietor of the suit land and was subsequently issued with a title on 16/10/2019. The Land Registrar who testified as **PW5** confirmed the above factual position. The respondent too confirmed that at all material times, the 1st appellant was the lawful registered proprietor of the suit land. What was in contest was the appellants’ allegation that, unknown to the 1st appellant, the respondent fraudulently procured a transfer of the suit land from the name of the 1st appellant into her name. 2. The 1st appellant testified as PW1. Her testimony was that soon after she obtained registration of the suit land into her name as a beneficiary of the estate of her late husband, she fell sick and her daughter [the respondent] took her to live with her in her house [in her daughter’s house]. She lived there for three years while undergoing treatment. She added that during her period of sickness and stay in the respondent’s house, the respondent took her belongings, including the title deed relating to the suit land, to keep for her. It was her evidence that she subsequently learnt that during that period, the respondent procured the transfer of the suit land into her name. The 1st appellant was emphatic that she did not transfer the suit land to the respondent. She asserted that she held the suit land for the ultimate benefif ot the 2nd appellant and the respondent [*her two daughters*]. She dnied being privy to the impugned transfer and termed it as an act of fraud by the respondent. 3. Given the above evidence, the court is satisfied that, at that point, the 1st appellant discharged her burden of proof and the burden of proof shifted to the respondent to demonstrate how she procured registration of the suit land from the name of the 1st appellant into her name. At that point, it was not enough for the respondent to wave or dangle the impugned title as proof of legitimate registration. She was required to tender evidence proving that the 1st appellant transferred the suit land to her. Indeed, not too long ago, the Supreme Court of Kenya emphasized in ***Dina Management Limited v Couinty Governent of Mombasa & 5 others (Petition 8 (E010) of 2021 (2023) KESC 30(KLR)*** that once a party challenging the legitimacy of a title discharges the burden of proof, it is not enough for the holder of the challenged title to wave the same title as proof of its legitimacy. The Supreme Court stated thus:- ***“As held by the Court of Appeal in Munyu Maina v Hiram Gathiha Maina Civil Appeal No. 239 of 2009 [2013] KLR, where the registered proprietor’s root of title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.”*** 1. Did the respondent prove the legitimacy of her title? First, the respondent did not tender any evidence relating to the consent of the Land Control Board authorizing the impugned transfer which allegedly took place on 27/11/2019. She did not tender any documentary evidence relating to the impugned tranfer and registration. She did not tender any evidence relating to payment of stamp duty relating to the impugned transfer. She did not tender any evidence relating to presentation of the instrument of transfer relating to the impugned registration. 2. The court has looked at the four documents which the respondent produced and relied on as proof of the legitimacy of the impugned registration. Defence Exhibit No 1 was a copy of the certificate of confirmation of grant in Meru High Court Succession Cause No 699 of 2012. The said certificate merely supported the appellants’ case that the 1st appellant was an equal beneficiary of land parcel number Nkuene/Kathera/379. It also supported the appellants’ case that pursuant to the said certificate, parcel number 379 was subdivided into parcel numbers 2771, 2772, 2773 and 2774 and that parcel number 2771 devolved to the 1st appellant. It is clear from the certificate of confirmation of grant that the respondent was not a direct beneficiary of the estate. 3. Defence Exhibit No 2 was the Mutation Form relating to the above subdivision. The said exhibit does not speak to the question of the legitimacy of the subsequent transfer of the suit land from the name of the 1st appellant to the name of the respondent, which took place on 27/11/2019. 4. Defence Exhibit No 3 was Form LR 7 which was a transfer of the suit land from the appellant as the administratrix of the estate [the personal representative] to herself [to the appellant] as the beneficiary [person entitled] on intestacy. In law, it is described as a transfer by transmission. It was registered by the Land Registrar on 9/10/2019. It clearly related to the registration of the 1st appellant as the proprietor of the suit land. It did not relate to or speak to the impugned registration of the respondent which took place on 27/11/2019. Regrettably, the trial court mistook this particular transfer as the transfer that conveyed the suit land to the respondent. That was a grave error on the part of the trial court. 5. Lastly, Defence Exhibit No 4 was a receipt relating to payment of stamp duty. It was issued by Stanbic Bank on 9/10/2019 and related to a transfer to a beneficiary. The transferor was **Margaret Kathuni Jacob** (the 1st appellant). The transferee was, similarly, **Margaret Kathuni Jacob** [the 1st appellant]. Clearly, this receipt related to the transfer (transmission) registered on 9/10/2019 which conveyed the suit land to the 1st appellant as a beneficiary of the estate of her late husband. It had nothing to do with the impugned transfer. 6. What clearly emerges from the evidence on record is that, no iota of evidence was tendered by the respondent to show that the 1st appellant transferred the suit land to her. Put differently, no evidence was tendered by the respondent to dislodge the evidence tendered by the appellants. 7. Consequently, having re-evaluated the evidence that was tendered to the trial court in the context of the grounds of appeal which were canvassed before this court, the court comes to the finding that the appellants properly proved that the transfer of land parcel number **Nkuene/Kathera/2771** from the 1st appellant to the respondent was procured fraudulently and was illegal. The result is that this appeal succeeds. 8. On costs, although parties to this appeal are close relatives, it is clear that the respondent sought to defraud the appellants. For this reason, she will bear costs of the appeal and costs of the suit in the trial court. **Disposal Orders** 1. In the end, this appeal succeeds and is allowed in the following terms:- 2. ***The Judgment of the trial court in Nkubu SPMC E & L Case No E038 of 2023 is set aside wholly and is replaced with orders allowing the appellants’ (plaintiffs’) suit in terms of prayers (a), (b) and (c) of the plaint.*** 3. ***Costs of the said suit shall be borne by the respondent/defendant, Consolata Ngugi.*** 4. ***The respondent [Consolata Ngugi] shall bear costs of this appeal.*** **DATED, SIGNED AND DELIVERED AT MERU THIS 17TH DAY OF** **AUGUST, 2026** **B M EBOSO [MR]** **ELC JUDGE**