James Muturi Mwangi (Suing as administrator of the Estate of Joseph Mwangi Kariuki, deceased) v Joseph Munyambu Karega & The Land Registrar, Kiambu

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT THIKA** **ELC E131 OF 2022** **JAMES MUTURI MWANGI** **[suing as an administrator of the** **Estate of JOSEPH MWANGI KARIUKI, Dcd] - PLAINTIFF** **VS** **JOSEPH MUNYAMBU KAREGA - 1ST DEFENDANT** **THE LAND REGISTRAR, KIAMBU - 2ND DEFENDANT** **JUDGMENT** 1. The Plaintiff sued the defendants vide the plaint dated 28/10/22 seeking the following orders; 1. Declaration do issue that the Plaintiff is the rightful owner of the parcel of land known as Ruiru East/Juja East Block 2/3972 [suit land] 2. A permanent injunction restraining the 1st and 2nd defendants, whether by themselves, their agents, their servants and/or assigns, or anybody claiming through them or under them, from alienating, developing, transferring, leasing, charging, or in any manner whatsoever interfering with the Plaintiff's quiet use and possession of the suit land. 3. An order directing the Chief Land Registrar, Kiambu, to issue the Plaintiff with the documents of title to the suit land. 4. A declaration that the title deed purportedly held by the 1st Defendant is false and was fraudulently obtained, or, in the alternative, if the said certificate was issued by the Chief Land Registrar, then it is accordingly unlawful, invalid, null and void 5. A mandatory injunction compelling the 1st Defendant, whether by themselves or their agents, to forthwith deliver up for cancellation by the Chief Land Registrar the title of the suit property within thirty [30] days of the judgment. 6. An order that the Land Registrar do expunge the reference of the 1st Defendant from all the documents, certificate entries and details in respect of the suit property from all records at the Registry of Titles and the Department of Lands. 7. An order for compensation for general damages for breach of the Plaintiff's right to property under Article 40 of the Constitution 8. Costs of the suit. 2. The Plaintiff asserts that he acquired a share in 1986 in Juja Farm 1976 Limited from a member, namely Gachanja Mukora. Along with the shares, he received two titles, namely the suit land and Ruiru/Ruiru East Block 4/T.2715, which were issued to him in 1990. 3. However, the 1st Defendant invaded the suit land and fenced it off without the Plaintiff's consent or knowledge. His continued occupation is illegal and constitutes trespass. He pleaded fraud by the defendants, alleging that another title was issued to the 1st Defendant while he held a valid title to the suit land. 4. The 1st Defendant has denied the claims of the Plaintiff and puts him to strict proof thereof. 5. The 1st Defendant contends that he purchased the suit land, together with another plot, namely Title No Ruiru Juja East Block 4/T.3451, from Peninah Marega on 25/9/1998, under a sale agreement dated the same day. Upon completion of the purchase, he has taken possession of the suit land to date. 6. In June 2013, he was called by officers from the Criminal Investigations Department [CID] Juja offices to address allegations that the land belonged to the Plaintiff. He and the Plaintiff were asked to produce their original documents for verification, but the Plaintiff failed to attend the meeting. The court was urged to dismiss the Plaintiff's claim. 7. The 2nd Defendant also denied the Plaintiff's claim in its statement of defence dated 31/1/2023. 8. At the hearing of the suit, James Muturi Mwangi led evidence as PW1 and relied on his statement dated 28/10/22. Without giving any reasons, he stated that the plaintiff was unable to testify. Born in 1979, he based his testimony on what his father told him and on his own knowledge. He stated that his father purchased shares in Juja Farm Limited for Kshs 35,000/- from Gachanja Mukora, who was a member and allottee of the suit land. 9. Upon payment, he visited the company's offices, where his name was entered in the members' register. He was registered as owner of the suit land on 5/11/1990. 10. However, he did not settle on the suit land, as the area was remote and unoccupied at the time. In 2008, he received information that the 1st Defendant had unlawfully entered the land and fenced it, claiming ownership. 11. A search at the Lands Office indicated that the 1st Defendant was issued with a title on 20/9/2001. That Peninah Marega, who allegedly sold the land to the Plaintiff, is a total stranger to him. That he has never sold the land to the Plaintiff or to any other person, let alone to Peninah Marega. 12. Under intense cross-examination by Mr Mbaabu, Counsel for the 1st Defendant, the witness stated that he did not know the membership or ballot numbers of his father or of Gachanja Mukora. In fact, he was unaware that his father had purchased the suit land from an original member of the company. He was also unaware whether the said vendor had handed over the membership number, ballot, original payment receipts, and other documents in respect of the suit land to his father. 13. He informed the court that a search at the land’s office yielded the name of the first Defendant, not his father, despite his father holding a title to the disputed land. He presented incomplete copies of the title deed. Additionally, he produced a ballot card No. 1738 from the company records, registered in the name of Njoroge Gitau, a neighbour who purchased the land at the same time as his father. He further informed the court that, with the aid of a map of the area, he and his father visited the location to physically identify the land. He was still young at the time and could not recall the details of the map, even if it were brought before him. He also acknowledged that the company's surveyors had not identified the land to his father. 14. He stated that he could not recall whether his father had ever occupied the land or undertaken any developments thereon. He admitted that the 1st Defendant occupies the suit land. He did not inquire from Juja Farm who the true owner of the land was, nor did he seek joinder to the suit or call any witness from the company to testify on his behalf. He confirmed that his father's name does not appear on the green card, as shown by the search dated 6/10/2014 that he obtained from the Lands Registry. He also did not call Gachanja Mukora to testify. 15. DW1- Joseph Munyambu Karega testified and relied on his witness statement dated 25/1/2013 and produced documents marked as DEX No 1-11. 16. He stated that he purchased the suit land, together with another parcel [parcel T.3451], on 25/9/98 from Peninah Marega, and produced a sale agreement dated the same day. He further stated that Peninah handed over her ballot No. 1740 and certificate No. 1705, along with other ownership documents for the suit land. 17. Upon completion, the transfers were registered in his name and a title issued. His due diligence before purchasing the land showed that it was registered in the name of Peninah Marega on 17/11/98, and that the plaintiff's name did not appear in the title records at the Lands Office. 18. During cross-examination, he affirmed that Peninah, the seller of the land, had died and that the sale was witnessed by his wife, Wangari. He indicated that he paid Peninah in instalments totalling Kshs 180,000/-, with the final payment likely made in 1989. Although he did not produce documentary evidence of payment of the purchase price, he asserted that he paid in full and that this is not contested in the current suit. Furthermore, he stated that the plaintiff initiated legal proceedings against him in ELC No. 790 of 2013, where Peninah submitted a statement vehemently denying that the land belonged to the plaintiff. She explicitly confirmed the sale of the land to him. 19. DW2 – Robert Mugendi Mbuba testified and stated that he is the Land Registrar working at Ruiru Land Registry. 20. He stated that the only green card in their custody is the one for the suit land registered in the name of the 1st Defendant, and that there are no documents showing that the Plaintiff was ever registered as an owner of the suit land. He produced the green card and other correspondence, which were marked as PEX No 12. 21. He stated that, because the properties were allocated by Juja Farms Limited, the company is best placed to identify the genuine registered owner, as per its membership register. He informed the court that the company had been wound up, but the official receiver at the Attorney General's office is best placed to verify its current status. 22. Regarding the suit land, he stated that the register was opened on 17 November 1989, and that Peninah Marega was registered as the owner of the land at that time. According to the current green card in his possession and a certified copy presented in court, the 1st Defendant was registered on 20 September 2001. **The written submissions** 1. The Plaintiffs' submissions are dated 12/5/26, and those of the 1st Defendant are dated 5/6/26. The 2nd Defendant failed to file written submissions as directed by the Court. I have read and considered the submissions filed and thank counsel for their diligence and the insights they provide. **Analysis and determination** 1. Having considered the pleadings, the evidence adduced at the hearing, the written submissions, and all material placed before the court, the key issue for determination is whether the plaintiff has proven title to the suit land. 2. It is not in dispute that both the plaintiff and the 1st defendant assert rights over LR No Ruiru East/Juja East Block 2/3972. The land in question clearly pertains to the same physical area. Consequently, this is a case of double titling for the same parcel of land. Under the laws of our country and the Commonwealth in general, a parcel of land is entitled to a single title only. 3. This court, like many others before it, reiterates that double titling of land is illegal. The sanctity of title under sections 24, 25 and 26 of the Land Registration Act must be preserved. As held in numerous decisions, including Wreck Motors Enterprises v Commissioner of Lands [1997] eKLR, a subsequent title over land already lawfully registered is null and void ab initio. It is trite law that fraud cannot defeat a registered proprietor's rights. The consequences of fraud in a budding economy like ours are grave, as innocent purchasers are dispossessed of their land, litigation increases, and public confidence in land administration is eroded. I hold that only one valid title can subsist over a parcel of land. 4. The court is therefore called upon to determine who the genuine and legitimate owner of the suit land is between the plaintiff and the 1st Defendant. 5. The Plaintiff asserts that it holds title to the suit land, having purchased it from one Gachanja Mukora, and faults the 1st Defendant's acquisition of the land on grounds of fraud by the Defendants. Fraud has been pleaded and itemised, and the question the court will inquire into is whether the Plaintiff has proven fraud in the strict sense. 6. According to Black’s Law Dictionary, 10th Edition at page 775, fraud is defined as a knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment. 7. In the case of Vijay Morjaria Vs. Nansingh Madhusingh Darbar & Another [2000] eKLR, Tunoi, JA. (as he then was) stated as follows: “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.” 1. In the case of R. G. Patel Vs. Lalji Makanji (1957)EA 314, the Court stated thus:- “Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.” 1. The old adage that he who asserts must prove has been codified in the Evidence Act, Sections 107-109 as follows; ### “107. Burden of proof. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. Incidence of burden. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. Proof of particular fact. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 1. The Burden of proof therefore lies with the plaintiff to prove entitlement to title. 2. The 1st defendant, on the other hand, contends that he is the registered owner of the suit land, having purchased it from Peninah Marega, one of the original members of Juja Farm Limited. He further contends that, upon completion of the purchase, he took possession of the land, fenced it, and has remained in possession to date. He urged the court to find the plaintiff's case unmeritorious and dismiss it. 3. In resolving a case of duplication of title and registers, courts look into the root of each title to determine who the rightful owner is. It is not enough to have a title; the process of acquisition must comply with the law. On the root of title, the 1st Defendant relied on the case of Hubert Martin & 2 Others Vs Margaret J. Kamar & 5 Others (2016) eKLR, where the Court stated as follows: “A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain.” 1. On the basis of the above principles, I will now examine the documents relied on by the parties to guide the court in answering the key issue for determination. 2. DW1 led evidence that the Plaintiff failed to attend the meeting convened by the Directorate of Criminal Investigations, Thika, to verify the documents of title. PW1 casually explained the Plaintiff's absence at the hearing and stated that he was not in a position to testify. It is unclear why the Plaintiff did not assert title to the suit land at trial. Accordingly, PW1’s evidence fell within the hearsay prism. PW1 insisted that he was young and unable to authenticate the transaction between his father and the said Gachanja Mukora. He was even unaware of how his father acquired the land. Furthermore, he relied on a copy of an incomplete title in his testimony, and in the absence of the original or a certified certificate of title, the authenticity of his title cannot be ascertained. 3. He failed to produce any sale agreement, any evidence that Mukora was a member of the land-buying company, any evidence that he balloted for the land, any payments, or a clearance certificate issued by the land-buying company. Unwittingly, he supported the 1st Defendant's case by producing a search showing that the land is registered in the 1st Defendant's name. He also informed the court that, at no time, was his father shown the land's beacons by the company surveyor, and that, armed with a map he could not recognise or recall during the hearing, they went to the area in person to look for the land in vain. He added that the Plaintiff never took possession of the land and that the 1st Defendant remains in possession to date. 4. DW2 – the Land Registrar was categorical that there was no evidence of registration in the form of a land register, also known as a green card or file, for the title the Plaintiff claims to hold. According to his records at the Lands Office, the land is registered in the name of the 1st Defendant. This explains why, when the Plaintiff sought to lodge a caution on the suit land in 2010, the application was rejected because no land register records supported his claim to ownership. The Plaintiff has not explained why he failed to challenge the Land Registrar's decision to decline registration of the caution. 5. In the absence of any supporting documents, to wit: the vendor's membership certificate, ballot, clearance certificate from the company, and sale agreement, the court is unable to find that the Plaintiff has proven title to the suit land. 6. The 1st defendant produced a green card [title register] opened on 17/11/1989 in the name of the Government of Kenya. On the same date, the land was registered in the name of Peninah Marega (ID No. 3087151/66), and a title was issued. The land measures 1.300 hectares. This land record aligns with the search produced by the plaintiff and dated 6/10/2014. It also aligns with the record in the land register, marked as DEX No. 12. 7. The Plaintiff's evidence was that Peninah Marega was a member of Juja Farm Limited, holding membership certificate No. 1705 and ballot No. 1740 in the name of P W Marega. The company membership register produced by the 1st Defendant corroborates these details and aligns with the sale agreement of 25/9/1998, the membership register, and the green card. The Plaintiff also produced a registration receipt for payment of registration fees for her title at the Lands Office. Together with the entries on the green card, this shows that the Lands Office issued Peninnah a title deed in 1989. 8. According to the letter dated 16/1/23 from the Chief, the details of Peninah's membership and ballot were confirmed, and they agree with the membership register. 9. PW1 led evidence and produced a ballot for 1738, which, according to the members' register, belongs to one Njoroge Gitau, not the plaintiff. 10. The comprehensive analysis indicates that, apart from the incomplete copy of the title provided by the plaintiff, there is no other evidence linking the title to either the plaintiff or Gachanja Mukora, whom the plaintiff claims sold him the land. It is also noted that neither Gachanja nor the officials of the land-buying company were called to testify on the plaintiff's behalf. Consequently, the plaintiff's case is weak and unsubstantiated. 11. Conversely, the Plaintiff has not contested the evidence provided by the 1st Defendant. The 1st Defendant's ownership remains uncontested and is substantiated by documents held by the previous vendor of the land to the 1st Defendant, the ballot, membership records, the land register, and the 1st Defendant's continuous possession from 1989 to the present. **Final disposal orders** 1. In the end, the court finds that the plaintiff has not proven fraud on the part of the defendants. The purported title held by the plaintiff is null and void and has no legal effect. To prevent any further mischief, it stands cancelled. 2. The plaintiff's case is unmerited. It is dismissed with costs to the defendants. 3. Orders accordingly **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9th DAY OF SEPTEMBER 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered virtually in the presence of:** 1. Ms Sala for the Plaintiff 2. Mr Mbaabu for the 1st Defendant 3. N/A for the 2nd Defendant 4. CA- Mr Amos