https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4619

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. 267 OF 2019** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_­­\_\_\_\_\_** **JAMES ARTHUR MBOGO - PLAINTIFF** **VS** **ANTHONY KURAKU MWANGI - 1ST DEFENDANT** **CHIEF LAND REGISTRAR - 2ND DEFENDANT** **JUDGEMENT** 1. The Plaintiff instituted this suit against the Defendants vide the Plaint dated 27/7/2019 seeking that Judgment be entered against the Defendants in the following terms; 2. Declaration that the Plaintiff is entitled to exclusive rights and interests of possession and occupation and that he is the rightful legal owner of Nairobi Block 110/649 [Suit land]. 3. Declaration that the Defendant’s title to Nairobi Block 110/649 was fraudulently obtained. 4. An order that the 2nd Defendant do cancel the Title Deed issued to the 1st Defendant in respect of the suit land. 5. An order that the 2nd Defendant do issue ownership title document to the Plaintiff. 6. Vacant possession of the suit land. 7. A permanent injunction restraining the 1st Defendant by himself, this agent and/or his servants from entering, remaining on, disposing of or in any other way dealing with the suit land. 8. A mandatory injunction compelling the 1st Defendant to forthwith return the fixtures erected by the Plaintiff on the suit land or their moneys worth. 9. General damages for trespass. 10. Mesne profits. 11. Costs and interest. 12. Such other or further relief that this Honourable Court may deem fit to grant. 13. The Plaintiff’s case is that he is the legitimate and beneficial owner of the parcel of land known as Nairobi Block 110/649 (formerly Plot Number 431, Thome Farmers No. 1 Ltd), the suit property herein. He avers that he purchased the suit property from the original allottee, Fredrick Mburu Gatome (Nahashon), in 2006 by virtue of his shareholding interest in the said Thome Farmers No. 1 Limited (hereinafter called ‘the company’). 14. The Plaintiff states that upon signing the relevant transfer instrument on 4/2/2009, the Company’s Advocate was tasked with processing title. The Advocate lodged the documents for registration on 6/12/2010 and paid the requisite charges, but no title was processed due to the constant loss of documents, particularly the mother title. He avers that sometime in the year 2014, one Reuben Nasibi unlawfully entered thereon, took possession, and commenced construction. The said Reuben, however, relinquished his claim vide a consent order recorded in ELC No. 715 of 2015. He subsequently took possession in June 2016 and installed a gate in preparation for developing the suit property. However, the 1st Defendant unlawfully destroyed the gate and denied him access. 15. It is the Plaintiff’s assertion that, in his renewed efforts to be registered as the proprietor of the suit property, the Ministry of Lands issued him with a Sub-division Scheme Approval and a Lease dated 26/3/2018. However, when the Lease was presented for registration, the 2nd Defendant declined to register it on the basis that another card was in the system. It was then that he discovered that the Defendants had colluded and fraudulently procured a Title Deed in the name of the 1st Defendant, allegedly issued on 11/11/2008. 16. The particulars of fraud against the 1st Defendant are: misrepresenting himself to land officials as the legal owner of the suit land, colluding with the 2nd Defendant to process a title in his name and backdate it. The 2nd Defendant, on the other hand, is accused of delaying the processing of the title in the Plaintiff’s name, misplacing the transfer documents and the mother title for the Company, thereby frustrating the processing of the Plaintiff’s title, and colluding with the 1st Defendant to process the title even though the Plaintiff’s name was in the Company’s name. On that basis, he seeks the cancellation of the 1st Defendant’s title, which was fraudulently obtained. 17. The Plaintiff contends that, by reason of the Defendants' unlawful action, he has suffered loss and damage, including deprivation of the use and quiet enjoyment of the suit property, destruction of his gate by the 1st Defendant, and denial of his rights and interests in the suit property. **The 1st Defendant’s Defence** 1. In his Statement of Defence dated 23/10/2019, the 1st Defendant asserts that he is the legitimate and beneficial owner of the suit property. He avers that the Plaintiff, being the original allottee of the suit property, never installed a gate and never had possession of it. The 1st Defendant further asserts that after the ballot and allotment of the suit property, he was duly registered and a certificate of lease was issued. 2. The 1st Defendant vehemently denies the particulars of fraud levelled against him and accuses the Plaintiff of fraud. The particulars of fraud are: presenting forged and doctored documents of ownership for registration; colluding with third parties to fabricate an allotment letter and a Sale Agreement in respect of the suit property; and colluding with land officials to tamper with the register, with the intention of defrauding the 1st Defendant. He therefore prays that the suit against him be dismissed with costs. **The 2nd Defendant’s Defence** 1. The 2nd Defendant filed a Statement of Defence dated 4/6/2025, in which he denies all allegations levelled against it and puts the Plaintiff to strict proof. The 2nd Defendant prays that the suit against it be dismissed with costs. **The evidence adduced on trial** 1. At the trial, the Plaintiff, James Arthur Mbogo testified as PW1. He relied on a witness statement dated 10/4/2019 as his evidence-in-chief. He also produced the documents on the List of Documents dated 27/7/2019 marked as P Ex No. 1-19. 2. In cross-examination, the Plaintiff stated that the seller from whom he purchased the suit property held only a share certificate No. 242 and a ballot document entry No. 654. He averred that the property lacked title at the time of purchase. He stated that he conducted due diligence before purchasing the land by verifying the documents with Thome Farmers’ Advocate. In relation to the Sale Agreement dated 19/7/2026 for the purchase of the land, adduced as P Ex 1, PW 1, he averred that he paid the full purchase price as agreed and that the Vendor signed the required documents. He stated that he visited the Offices of the Advocate for the Company in 2009, and she prepared the sale agreement dated 4/2/2009. He confirmed that the Transfer adduced relates to Nairobi/Block 110/649. The transfer was to be registered at the land’s office. He did not obtain a lease or subdivision scheme approval. He confirmed that he was not the original allottee and that his name did not appear in the register of the Company. 3. PW 1 testified that he carried out an official search of the title, dated 23/2/2018. In relation to the Lease dated 26/3/2018, he confirmed that Entry No. 4 thereon contains a restriction on dealings in the property. He stated that he did not secure a second title while aware of the existing title. He averred that he did not enjoin the vendor to the proceedings herein, as there was no problem with the Agreement between them. He asserted that he started the process of procuring a title in 2009, not 2018. He stated that he was not aware when the company was transferring the land to its members. 4. In re-examination, the witness confirmed that his property was plot No. 431, registered under the name of Nahashon in the members’ register. He further stated that the share certificate and the ballot card were in the names of Nahashon and his wife. He testified that the 1st Defendant has share certificate No. 1146, which contains numerous discrepancies. He further stated that the share certificate shows a different plot, 1146. He further stated that the top contains the names of ‘maggugu’, while his share certificate is spelled ‘Magungu’. He further stated that the amounts on the share certificates and the dates are also different. He averred that his title deed was lost at the Lands Office and that he had to execute a second set of documents in the year 2012. He stated that although the Defendant’s Title has an absolute tenure, it has a time limit, which ought not to be the case. He averred that it is not common to make a purchase based on the documents the seller had. He informed the Court that the 1st Defendant’s name is not on the list of members of the company. He maintained that the 1st Defendant presented irregular documents and has used them to interfere with his property. 5. Mary Njeri Mbogo testified as PW 2. She stated that the Plaintiff bought the suit property from Fredrick Nahashon Mburu and that the share certificate and ballot card were in his name. She reiterated the assertions in the Plaint and averred that the Plaintiff has never taken possession of the suit property, as the Plaintiff’s gate was uprooted by the 1st Defendant. She stated that, whereas the 1st Defendant’s name is not in the register of the company, Fredrick’s name is. 6. In cross-examination by counsel for the 1st Defendant, PW 2 stated that the Plaintiff paid the purchase price in instalments. She stated that she could not remember any document being forwarded to the Lands Office. She maintained that the company’s advocate never obtained the Title as agreed, and that the documents lodged by the Advocate at the Lands Office were lost or misplaced. 7. It was her testimony that parcel LR No. 30/1 was subdivided. That plot No. 110/649 was a subdivision of LR No. 30/1 and that it existed in the year 2006. That it could not have been created in 2016. She could not tell whether the Letter dated 29/7/2016 was a forgery. In reference to the Lease dated 26/3/2018, she stated that parcel No. 110/649 was pursuant to a surrender. That the Lease is in favour of the Plaintiff and was booked for registration but did not go through because there was another title. That they were not aware of the 1st Defendant’s title until after they conducted a search. It was then that they lodged a restriction, as evidenced by entry No. 4 of the official search. 8. During cross-examination by counsel for the 2nd Defendant, PW2 reiterated her assertion that the Plaintiff bought the property in 2006 but completed payment in 2009, and that the delay was due to the consistent loss of documents at the lands office. Regarding alleged fraudulent dealings on the land, she stated that although they reported it, she could not adduce any evidence in support. 9. In re-examination, the witness confirmed that she was present when the Agreement was executed and that the restriction was intended to prevent the 1st Defendant from selling the suit property using forged documents. 10. Esther Wangechi Kariuki, the Managing Director of the Company, testified as PW 3. She relied on her Witness Statement dated 30/8/2025 as her evidence in chief. She produced the documents listed in the Plaintiff’s List of Documents dated 30/8/2025, marked as P Ex Nos. 20-28. She confirmed that the Share Certificate was in the name of Fredrick Mburu Nahashon, who sold it to the Plaintiff. She further testified that the company never gave any documents to the 1st Defendant, who is a stranger to the company. She also stated that, whereas the land was allocated in 1988, the 1st Defendant’s certificate is dated 1992. She averred that there was a moratorium between 2019 and 2023. She informed the Court that the 1st Defendant surrendered documents for verification. 11. In cross-examination by counsel for the 2nd Defendant, she testified that a committee comprising the company’s officials and officials from the Ministry of Lands was formed to verify the titles. She further averred that the documents for the suit property were submitted by the Plaintiff. She also stated that the suit land was reported as having suspected fraudulent titles. However, upon verification, the land was cleared in favour of the Plaintiff, as evidenced by the Letter dated 14/8/2025. 12. During cross-examination by counsel for the 1st Defendant, she stated that the Plaintiff has been cleared as the legitimate owner of the suit property. She also stated that she became a shareholder in the company in 2023. 13. In re-examination, it was her evidence that the suit property was re-verified following suspected fraud. She stated that the documents held by the 1st Defendant were not legitimate, that the 1st Defendant’s share certificate was not genuine, and that the verification report on Nairobi/Block 110 was adopted in December 2023, when the moratorium was lifted. It was her evidence that transfers were carried out by the company after allottees surrendered their documents, with new certificates issued and later titles. She further stated that although Nahashon (now deceased) sold his share to the Plaintiff, he had not surrendered his documents to the company. She averred that the company is in the process of issuing a new share certificate to the Plaintiff. 14. She stated that Block 110 was subdivided in 1987, and by 1988 all the lands had been balloted and allocated. Titles were being processed by the company’s advocate, Ms. Dorcas Nanjero. One was supposed to surrender the Share certificate and the Ballot card to the advocate for title processing. Regarding the membership register, PW 3’s testimony was that Nahashon appears as member No. 654 thereon and No. 431 in the original register. On the other hand, the 1st Defendant does not appear anywhere in the register. She maintained that the Plaintiff owns the suit property. 15. With that, counsel closed the Plaintiff’s case. 16. Counsel for the 1st Defendant closed his case without calling any witness. 17. Equally, counsel for the 2nd Defendant closed his case without calling any witness. **The written submissions** 1. At the close of the hearing, the Court directed the parties to file their respective written submissions. The parties complied. The Plaintiff’s submissions are dated 17/12/2025, whereas the 1st and 2nd Defendants’ submissions are dated 11/2/2026 and 19/2/2026, respectively. **The Plaintiff’s submissions** 1. **The Plaintiff identified three issues for determination. The first is whether the Plaintiff is the lawful and legitimate owner of the suit property. The Plaintiff contends that he is the lawful and legitimate owner, having acquired title from Fredrick Mburu Nahashon (Deceased), an original shareholder and allottee of the Company. The Plaintiff relies on two sale agreements dated 19/7/2006 and 4/2/2009, together with the original ballot card, share certificate, the company register, and an official clearance certificate issued by the Company after verification of the documents. It is submitted that these instruments establish an unbroken chain of title from the original allottee to the Plaintiff, and that there is no evidence that the deceased ever sold the property to any other person. The Plaintiff therefore asserts that he has proved his ownership on the balance of probabilities and is entitled to the protection of the law.** 2. **The second issue for determination, according to the Plaintiff, is whether the title deed held by the 1st Defendant in respect of the suit property was irregularly and illegally acquired. The Plaintiff submits that the 1st Defendant’s title was irregularly and illegally acquired, as the 1st Defendant is not a member of the Company and does not appear in its membership register. The Plaintiff points to the absence of a ballot card, transfer instrument, or any supporting documentation for the processing of the 1st Defendant’s title. Additionally, the Company’s witness testified that the 1st Defendant’s share certificate contains glaring discrepancies and is not genuine. The Plaintiff further relies on a Task Force Report indicating that the suit property was under investigation for suspected fraud. It is contended that the 1st Defendant failed to testify or call any evidence in support of his title, leaving the Plaintiff’s evidence uncontroverted and the defence allegations merely speculative.** 3. **On the Burden of Proof and the Indefeasibility of Title, the Plaintiff relies on the established principle that a registered proprietor whose root of title is challenged must go beyond the instrument of title and show that the acquisition process was lawful. Citing Kiptanui & another v Ngetchi & 3 Others (2025) eKLR and Munyu Maina –vs- Hiran Gathiha Maina (2013) eKLR, the Plaintiff argues that the 1st Defendant has failed to discharge this burden. The Plaintiff further invokes Sections 24, 25, and 26 of the Land Registration Act, 2012, emphasising that although a certificate of title is prima facie evidence of ownership, it is not indefeasible if it has been acquired illegally, unprocedurally, or through fraud. The Plaintiff contends that the 1st Defendant’s title cannot be protected under Article 40 of the Constitution, as it was procured through collusion with the 2nd Defendant and without any lawful basis.** 4. **Regarding the Defendants’ conduct and the evidentiary gaps, the Plaintiff notes that the 1st Defendant neither testified nor called any witnesses, and failed to honour a notice to produce the Identity Card cited in the impugned title for scrutiny. The 2nd Defendant, the Chief Land Registrar, filed a belated defence but adduced no evidence to support the impugned title. The Plaintiff submits that the registration process was shrouded in secrecy and mystery, and that the 2nd Defendant’s office actively contributed to the fraudulent scheme by losing or misplacing crucial documents. In the absence of any substantive defence or explanation from either Defendant, the Plaintiff argues that the allegations of fraud and irregularity remain uncontroverted and must be deemed proven.** 5. **The final issue is whether the Plaintiff is entitled to the orders sought in the Plaint. The Plaintiff reiterates the prayers sought in the Plaint. The Plaintiff submits that he has tendered cogent and consistent evidence, corroborated by witnesses and documentary exhibits, and that his case has been proved on the balance of probabilities, thereby entitling him to the reliefs sought.** **The 1st Defendant’s Submissions** 1. The 1st Defendant identified two issues for determination. The first is whether the Plaintiff holds a valid or lawful claim over the suit property, Nairobi/Block 110/649, capable of challenging the 1st Defendant’s Title. The 1st Defendant argues that the Plaintiff’s suit is fundamentally flawed and cannot be sustained. He further contends that the Plaintiff's entire case is predicated on a Sale Agreement dated 19/7/2006 with one Fredrick Mburu Wahome. He avers that, because the Vendor did not possess a Title Deed for the property at the time of the agreement, he lacked the proprietary rights necessary to transfer ownership. He further avers that this foundational defect renders the Sale Agreement void ab initio, and that any subsequent agreement is similarly incurably bad, as a void act cannot form the basis for a valid claim. 2. He further submits that the Plaintiff's conduct is tainted by illegality and bad faith. He asserts that the Plaintiff pursued this claim while fully aware of the 1st Defendant's valid Title, seeking to fraudulently procure his own Title and to lodge a restriction over the property. This conduct violates the principle that he who comes to equity must come with clean hands, and the Court will not lend its aid to a party whose cause of action arises from an immoral or illegal act. Consequently, the Plaintiff lacks the requisite locus standi to challenge the 1st Defendant's Title, as his actions are founded on a violation of the law. 3. The 1st Defendant further submits that the Plaintiff's suit is also fatally defective for want of privity of contract. There is no direct dealing or contractual nexus between the Plaintiff and the 1st Defendant. The 1st Defendant was not a party to the impugned Sale Agreement, and the Plaintiff has failed to establish any legal relationship, such as being a shareholder of the Company, that would entitle him to sue the 1st Defendant. A contract cannot be enforced by or against a third party, and this lack of privity is a fundamental bar to the Plaintiff's claim. 4. The last issue, according to the 1st Defendant, concerns the appropriate remedy available to the Plaintiff, if any. The 1st Defendant submits that the Plaintiff's entire case is misconceived, incompetent, and fatally defective, having failed to establish a lawful claim over the suit property that could challenge the 1st Defendant's indefeasible title. He asserts that the only remedy, if any, available to the Plaintiff would be to seek a refund of the monies he paid to the seller, not a claim against the 1st Defendant. In the premises, the 1st Defendant submits that the Plaintiff's suit should be dismissed with costs, as he has failed to prove his case on a balance of probabilities. **The 2nd Defendant’s submissions** 1. The first issue for determination, according to the 2nd Defendant, is: who is the bona fide owner of the suit property. The Plaintiff alleged that he is the legitimate owner of the suit property, having bought it from Fredrick Mburu Gatome in 2006, who was the original allottee from the company by virtue of his shareholding interest in the company. It is averred that the Plaintiff signed the relevant transfer document on 4/2/2009, and the processing of the title was left to the company’s advocates. That the Plaintiff would later take possession and, in June 2016, installed a gate in preparation for the development of the suit property. These assertions were supported by evidence and the testimony of 2 witnesses. That, despite filing a list of documents in support of the 1st Defendant’s case, a witness was not called. That the Plaintiff produced a certificate from the company, issued on 28/7/1979, in the name of Fredrick Mburu Nahashon, who sold the property to James Arthur Mbogo. However, the Plaintiff produced an undated transfer, which raises the question of whether the same really took place. It is submitted that the burden of proof on the issue lies with the Plaintiff. The 2nd Defendant submits that, looking at the evidence tendered before this Court, the Plaintiff came about the property way earlier than the 1st Defendant. The Court however has to address itself to the legality of the acquisitions as alleged by the Plaintiff and the 1st Defendant. 2. The second issue is whether there was fraud or illegality on the part of the 2nd Defendant in delaying the processing of the title in the name of the Plaintiff, and whether there was any collusion. The 2nd Defendant submits that the Plaintiff tendered no evidence to suggest that the issuance of the title and the subsequent transfer in favour of the 1st Defendant were obtained through fraud, illegally, unprocedurally, or by a corrupt scheme. It is alleged that the Plaintiff failed to prove the alleged fraud to the required standard. Reliance is placed on the Court of Appeal case of Kuria Kiarie & 2 Others –vs- Sammy Magera [2018] Eklr. It is argued that the Plaintiff never bothered to report the dealing she suspected the 1st and the 2nd Defendants had with regard to the suit property, thereby buttressing the argument that fraud was not at all proven against the 2nd Defendant. We pray that, in the interests of justice, the Court does consider the same. **Analysis and Determination** 1. Considering the pleadings filed in this case, the evidence adduced and the respective submissions of the parties, the Court is of the view that the issues for determination in this case are; - 2. Whether the 1st Defendant has lawful title over the suit property. 3. Whether the Plaintiff has proven ownership rights over the suit property. 4. Which reliefs should the Court issue **Whether the 1st Defendant has lawful title over the suit property** 1. As stated earlier, the Defendants filed their respective statements of defence denying the allegations levelled against them in the Plaint. However, at the hearing, the Defendants were required, as much as the Plaintiff, to adduce evidence to prove their pleadings. Pleadings are mere allegations. They do not prove an allegation that can lead to the entry of judgment unless the allegation or claim is undefended and is a claim for liquidated demand. 2. That said, the Plaintiff, however, bears the onus of proving his case against the Defendants, whether or not the Defendants adduce evidence. 3. That the burden of proof was on the Plaintiff to prove is not in doubt. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: “Whoever desires any Court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.” 1. The two provisions were dealt with in Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that: “As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 1. Returning to the first issue, the 1st Defendant asserts that he is the legitimate and beneficial owner of the suit property. He avers that after the ballot and allotment of the suit property, he was duly registered and a certificate of lease was issued. In his Witness Statement, he avers that he was a member of the company, held one share, and was issued with a share certificate No. 1146 dated 7/8/1992. He further avers that he thereafter acquired title in his name on 11/11/2008. As earlier noted, the 1st Defendant’s assertions have not been substantiated. 2. Under Section 26 of the Land Registration Act, a Court takes a certificate of title as prima facie evidence that the person named as the proprietor of the suit property is the absolute and indefeasible owner, except where ownership is challenged on the basis of fraud or misrepresentation. It provides as follows: “(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or 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 where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 2. Where the validity of a certificate of title has been challenged, it is not enough to wave a certificate or title as proof of ownership. A person must therefore establish the root of his title. This position has been upheld by the Supreme Court in the case of Dina Management Limited vs County Government of Mombasa & 5 Others [2023] KESC 30 (KLR) as follows: “As held by the Court of Appeal in Munyu Maina v Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR, where the registered proprietor’s root 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. It was therefore essential for the 1st Defendant to adduce evidence to establish the root of his title. In any case the Company, through PW 3 denied issuing such documents to the 1st Defendant. The witness categorically averred that the 1st Defendant’s name does not appear in the Company’s register. It is therefore my finding that the 1st Defendant failed to prove the root of title in his favour. The registration of title in his name is unsupported and is therefore irregular. It is therefore null and void. **Whether the Plaintiff has proven ownership rights over the suit property** 1. Through his pleadings and evidence, the Plaintiff laid a factual foundation of how he obtained ownership of the suit property. 2. In Lucia Wambui Kariuki & Another vs Grace Wanjiru & Another [2022] eKLR, the Court considered the question of ownership of land through a land buying company. The Court stated as follows: “It is not in dispute that the suit land originated from Githunguri Constituency Ranching Company Limited, a cooperative Company owned through membership. It incorporated Kenyans of all walks of life in the quest to acquire land and so it was basically a land buying company which acquired large chunks of land at the advent of Independence from the white settlers who were folding up their agricultural activities to return to their native countries. The members pay a membership fee to join and acquire shares in the company. The shareholding was critical as it was the basis of allocation of land. One would then be issued with a share certificate and various receipts for all manner of payments that was demanded for by the company. At the right time, the land would be surveyed by the land buying company and subdivided into smaller portions according to the number of its members and to cater for common utilities as and when desired by the membership. Membership was therefore denoted by the share certificate. The company would maintain a register of members indicating their details, the share certificate number, plot number and such other details as may be peculiar to the membership. Allocation of land would be through balloting. Members would then be issued with a ballot denoting the plot number balloted for. The instruments required to process the title therefore would be the share certificate, the ballot, the payment receipts and the clearance certificate by the company informing the Land Registrar that the holder of these documents is the rightful proprietor of the land. The ballot number must agree or correspond with the land reference number as shown on the Registry Index map, which denotes the land on the ground.” 1. Justice Onguto (as he then was) in the case of Danson Kimani Gacina & Another –vs- Embakasi Ranching Company Ltd [2014] eKLR stated that: “The law on unregistered land, unlike on registered land, is slightly unclear. Proof of ownership in the case of the former is found in documentary evidence which lead to the root of title. There must be shown an unbroken chain of documents showing the true owner. Once proof of ownership is tendered then the holder of the documents is entitled to the protection of the law. There is no doubt that such proof will be on a balance of probabilities but the Court must be left in no doubt that the holder of the documents proved is the one entitled to the property.” 1. To establish ownership of the land, the Plaintiff presented a copy of a share certificate in favour of the Sale Agreement from the Original allottee, one Fredrick Mburu Nahashon (Share Certificate No. 242), Ballot Card, Transfer of land and receipt in his name, the Company’s Membership Register, the Original Plot Owners Register, relevant pages of the verification report on Block 110, and a clearance Certificate for Nairobi Block 110/649 in his name. PW 3 confirmed that the documents held by the Plaintiffs were issued by the company, which was aware of the sale between him and the Original allottee, and that the company is processing a title in the name of the Plaintiff. 2. Having carefully considered the pleadings by the parties, the evidence adduced and the relevant provision of law, the Court finds and holds that the Plaintiff has proved his case on the required standard of balance of probabilities. He therefore has ownership rights with respect to the suit property. **Which reliefs should the Court issue** 1. The Plaintiff sought numerous reliefs. Based on the Court’s finding that the Plaintiff proved his case to the required standard, the prayers a-f sought in the Plaint are granted as prayed. 2. The Plaintiff has sought a mandatory injunction compelling the 1st Defendant to forthwith return the Plaintiff's fixtures erected on the suit land, or their monetary value. The wording of this prayer lacks specificity, as it neither identifies the fixtures nor quantifies their value. The prayer is therefore rejected. 3. The Plaintiff also prays for general damages for trespass. Section 3 (1) of the Trespass Act, Cap 294 provides that: "Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.” 1. Thus, trespass is an intrusion by a person into the land of another who is in possession and ownership. 2. The issue that arises is: what is the measure of it? This question was answered by E. Obaga J in the case of Philip Ayaya Aluchio -vs- Crispinus Ngayo [2014]eKLR where it was held as follows: “The Plaintiff is entitled to general damages for trespass. The issue which arises is as to what is the measure of such damage? It has been held that the measure of damages for trespass is the difference in the value of the Plaintiff’s property immediately after the trespass or the costs of restoration, whichever is less See Hostler – VS – Green Park Development Co. 986 S. W 2d 500 (No. App. 1999).” 1. In this case, the Plaintiff has not adduced evidence of the property's value before and after the trespass. This makes it difficult to assess the general damages. 2. In Nakuru Industries Limited v S S Mehta & Sons [2016] eKLR where the Court faced such a similar situation it was held as follows: “A similar situation pertains in the present case. The exact value of the land before and after the trespass is not proved. However, I have found the Defendants did trespass onto the Plaintiff’s land and conduct some excavation. For this reason, I award the Defendant damages in the amount of Ksh 500,000/= (five hundred thousand only) plus interest and costs of this suit from the date of this judgment until payment in full.” 1. In the case of Willesden Investments Limited vs. Kenya Hotel Properties Limited NBI H.C.C. NO. 367 of 2000 (a case cited by the Plaintiff), the Court stated that; “There is no mathematical or scientific formula in these types of cases and that the guiding factors are the circumstances in each case. It is my considered view that K.Sh. 10 000 000 is a reasonable award for general damages”. 1. I have considered that the Plaintiff erected a gate which was destroyed by the 1st Defendant. I have also considered the length of trespass that the 1st Defendant subsisted on the suit land despite demand to hand over the property to the Plaintiff. The 1st Defendant stated in his Witness Statement that he has taken possession of the suit property. I am of the view that an award of Kshs. 1,500,000/= in general damages is sufficient. 2. The Plaintiff has also sought an award of mesne profits. This Court is alive to the legal requirement that mesne profits, being special damages, must not only be pleaded but also proved, as shown by the provisions of Order 21, Rule 13 of the Civil Procedure Act. See the case of Karanja Mbugua & Another vs. Marybin Holding Co. Ltd [2014] eKLR. 3. In the case **Peter Mwangi Msuitia & Another Vs Samow Edin Osman (2014) eKLR**, the Court of Appeal held as follows: “As regards the payment of mesne profit, we think the Applicant has an arguable Appeal. No specific sum was claimed in the Plaint as mesne profit and it appears to us prima facie, that there was no evidence to support the actual figure awarded...” 1. In Nakuru Industries Ltd -vs- S.S. Mehta and Sons (2016) eKLR, it was held that mesne profits constitute a form of special damages that must be specifically pleaded and strictly proved. 2. No evidence was led by the Plaintiff as to the specific amounts of mesne profits. It follows, therefore, that the Plaintiff has failed to meet the criteria for an award of mesne profits. Consequently, the prayer for mesne profits is rejected. 3. Lastly, on the issue of costs, the general rule is that costs follow the event in accordance with Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. This was the holding in Hussein Janohamed & Sons v Twentsche Overseas Trading Co. Ltd (1967) EA 287.The Plaintiff having emerged the winner in this case, I see no reason to deny him costs. **Final Orders for disposal** 1. In light of the foregoing analysis, the Plaintiff’s claim partially succeeds. Consequently, I enter judgment for the Plaintiff as against the Defendants as follows; 2. A declaration is hereby issued that the Plaintiff is entitled to exclusive rights and interests of possession and occupation and that he is the rightful legal owner of Nairobi Block 110/649. 3. A declaration is hereby issued declaring that the Defendant’s title to Nairobi Block 110/649 was fraudulently obtained. It stands cancelled null and voided. 4. An order is hereby issued directing the 2nd Defendant to cancel the Title Deed issued to the 1st Defendant in respect of the suit land. 5. An order is hereby issued directing the 2nd Defendant to process and issue ownership title document to the Plaintiff. 6. The 1st Defendant is hereby directed to vacate the suit property and grant the Plaintiff vacant possession of the suit land, within 30 days, in default to be evicted forthwith in line with the provisions of the law. For avoidance of doubt eviction orders do ensue. 7. A permanent injunction is hereby issued restraining the 1st Defendant by himself, this agent and/or his servants from entering, remaining on, disposing of or in any other way dealing with the suit land. 8. The Plaintiff is awarded General damages trespass in the sum of in the sum of Kshs. 1,500,000/=. 9. Interest on (g) above at Court rates from the date of this judgment 10. Cost of the suit to the Plaintiff to be paid by the 1st Defendant. 71It is so ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 13TH DAY OF JULY 2026 VIA MICROSOFT TEAMS** **J G KEMEI** **JUDGE** **Delivered Virtually in the Presence of**: 1. Ms. Njambi H/B for Mr. Mburu for the Plaintiff 2. Mr. Njeru for 1st Defendant 3. N/A for 2nd Defendant 4. CA – Ms Kendi