https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4366

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC LAND APPEAL NO. E067 OF 2025** **JANE MUTHONI KAMUNYA..............................................APPELLANT** **VERSUS** **DANIEL NJAGI MWANGI.......................………..…....1ST RESPONDENT** **MARGARET WATIRI GICHERU.................................2ND RESPONDENT** **GEORGE NDIRANGU................................................3RD RESPONDENT** ***(Being an appeal from the Judgement of Hon. Robert G. Mundia (PM) delivered on 17/07/2025 in Embu MCL & E Case No. 36 of 2018)*** **JUDGMENT** 1. The Respondents herein were the Plaintiffs before the trial court wherein they had sued the Appellant vide a Plaint dated 19/05/2014 seeking interalia: an eviction order against the Appellant, her family members, servants or employees from land parcel No. Mbeti/Kiamuringa/1430; mesne profits and costs of the suit. 2. The Respondents case was that they are co-owners of the said parcel of land and all the developments thereon having acquired the property through a public auction held on 25/01/2013 where they were declared the highest bidders. They averred that the property was procedurally transferred to them and the Appellant was given 6 (six) months’ notice to vacate the land and in the meantime pay rent at Kshs. 6,000/= per month for 6 (six) months if she was to remain in occupation. They averred that the Appellant adamantly refused to pay rent or vacate from the property giving rise to this suit. 3. The Appellant filed a defence dated 30/06/2014. She denied that the Respondents purchased the suit land and averred that instead, they purchased land parcel No. Mbeti/Kiamuringa/1431 in the public auction. She stated that if the Respondents are the registered proprietors of the suit land then the said registration is unlawful and fraudulent. 4. When the former suit came up for directions, the parties agreed to proceed with the hearing by way of viva voce evidence. 5. PW1, Daniel Ngugi Mwangi adopted their joint written statement dated 19/05/2014 as his evidence in chief. In the statement, he reiterated that together with the 2nd and 3rd Respondents, they co-own the suit land having purchased it from a public auction held on 25/01/2013 and that the purchase price was Kshs. 770,000/=. He averred that the Appellant had provided the suit land as collateral to secure a loan with Consolidated Bank of Kenya and defaulted in servicing the loan causing the land to be sold by the Bank. He stated that the Appellant had failed to vacate the said land and therefore orders of eviction were necessary in the circumstances. 6. On cross examination, he stated that he had never settled on the suit land and neither had his co-Respondents. He stated that he purchased the suit property on 25/01/2013 through a public auction and that a certificate of sale was issued to him by Garam Investors. He also stated that he had a valuation report from a Valuer indicating the value of the suit land. 7. He produced in evidence, a copy of the title deed for land parcel 1430, a demand letter dated 19/10/2012, a mutation form, a letter for correction of register, copy of the title deed for land parcel 1431, a certificate of sale and a copy of Centenary Valuers report. 8. DW1 was Peter Kamunya Mureithi, the Appellants husband, who was appointed the guardian ad litem for the Appellant during the course of proceedings. He stated that he wished for her defence dated 10/06/2024 and her testimony to be considered as his. He stated that the land that was sold by Garam Investments was land parcel 1431. On cross examination, he stated that he used the title for land parcel 1431 to secure a loan where the Appellant was his guarantor. That the property was sold by public auction though the bank did not follow due procedure. On re-examination, he stated that the Respondents acquired land parcel 1431 and that they want to evict the Appellant from land parcel 1430 whose acquisition was not legal. 9. He produced in evidence, a certificate of sale dated 10/03/2012 by Garam Investments, notice of public auction by Garam Investments, Agreement dated 28/08/1997, summons for revocation/annulment of grant in succession Cause No. 188 of 2003 and a demand latter dated 28/07/2012. 10. Upon evaluating the evidence, the trial court found that the Respondents lawfully acquired the suit property through a public auction, a fact that was not disputed by the Appellant's guardian ad litem. The court further found that although there had been confusion in the registration and occupation of parcels Mbeti/Kiamuringa/1430 and Mbeti/Kiamuringa/1431, the District Surveyor confirmed the actual occupation on the ground and recommended rectification of the register. It held that the Appellant failed to prove fraud against the Respondents, noting that the public auction had not been successfully challenged and that the Appellant's application for revocation of grant had previously been dismissed. The court, however, declined to award mesne profits as the Respondents had not demonstrated any loss or that they had ever occupied the suit land. Consequently, the court held that the Respondents were the lawful registered proprietors of parcel Mbeti/Kiamuringa/1430, declared the Appellant's occupation unlawful, and ordered the Appellant to vacate the land within ninety (90) days. 11. The Appellant was aggrieved by the impugned decision and preferred the present Appeal on the following grounds; 12. The Learned trial Magistrate erred in law and fact by failing to make a finding that land parcel No. Mbeti/Kiamuringa/1430 was not the subject of the public sale by Garam Investments Auctioneers. 13. The Learned trial Magistrate erred in law and in fact in failing to make a finding that it was land parcel No. Mbeti/Kiamuringa 1431 which was the subject of the public sale by Garam Investments Auctioneers and not land parcel No. Mbeti/Kiamuringa/1430 as alleged in the Plaint. 14. The Learned trial Magistrate erred in law and fact by finding that the Respondents were the lawful owners of land parcel No. Mbeti/Kiamuringa/1430 instead of land parcel No. Mbeti/Kiamuringa/1431 by virtue of the public sale by Garam Investments. 15. The Learned trial Magistrate therefore erred in law and fact by finding that the Respondents were the lawful owners of land parcel No. Mbeti/Kiamuringa/1430, that they were lawfully entitled to exchange land parcel 1431 with land parcel 1430 which at all material times was registered in the name of Lauraria Wanyaga Njiru. 16. The Learned trial Magistrate erred in law and fact in failing to find and uphold that the exchange transaction between the Respondents and the said Lauraria Wanyaga Njiru was illegal and calculated to defraud the Appellant. 17. The Appellant sought to have the appeal allowed, the judgement of the trial Court set aside and the suit be dismissed with costs to the Appellant. 18. When the appeal came up for directions, the parties agreed to canvass the appeal by way of written submissions. The Appellant filed submissions dated 31/03/2026 through the firm of Eddie Njiru and Company Advocates. 19. They submitted that land parcel 1430 was not the subject of the public auction as the evidence on record shows that the property sold was parcel 1431. That the Respondents failed to produce documentary proof such as notification of sale or memorandum of sale linking parcel 1430 to the auction. They averred that under Sections 107 and 109 of the Evidence Act, the burden of proof lay with the Respondents, but they did not discharge it. The trial court therefore misdirected itself in holding otherwise. On whether the Respondents lawfully acquired parcel 1430, the Appellant argued that the magistrate erred in law by validating their title as the Respondents’ claim was based on the auction of 25/01/2012, but the Appellant consistently maintained that the auction concerned parcel 1431. 20. They averred that while Section 26(1) of the Land Registration Act protects registered titles, it does not shield titles acquired irregularly or through a mistake. They cited the case of Arthi Highway Developers Limited v West End Butchery Limited & Others to support that position. They submitted further that the magistrate erred in relying on a surveyor’s report to justify rectification of the land register as such a report cannot confer proprietary rights or justify alteration of ownership without compliance with the law. They further submitted that Sections 79 and 80 of the Land Registration Act provides that rectification of the register may only be made by the Registrar only in limited circumstances or through court sanction. They maintained that no evidence was produced to show the Appellant consented to the exchange or that lawful process was followed or that a court sanctioned the alteration. They urged that the appeal be allowed as prayed. 21. The Respondents filed submissions dated 13/05/2026 through the firm of Maina Kagio & Company Advocates. They gave a brief history of the dispute. They sated that it was not in dispute that land parcel **1431** was initially registered in the name of the Appellant, who had guaranteed a loan advanced to her husband, Peter Kamunya Muriithi. Upon default, the property was advertised for sale by public auction. The Respondents were declared the highest bidders and duly purchased the land, as evidenced by the Appellant’s own exhibits. That following the sale, they were registered as proprietors but it later emerged that on the ground, the parcel purchased corresponded to **Mbeti/Kiamuringa/1430**, which was registered in the name of Lauraria Wanyaga Njiru. The District Surveyor visited the suit lands confirmed the discrepancy, and advised the Land Registrar to amend the register to reflect the ground position as mandated by law under section 79(1) (a) of the Land Registration Act. As a result, the Respondents became registered owners of parcel 1430, while Lauraria Wanyaga Njiru was registered as proprietor of parcel 1431. Both titles were issued on 12/10/2012. 22. They submitted that the Appellant’s husband subsequently challenged the title issued to Lauraria Wanyaga Njiru in Embu Succession Cause No. 188 of 2003, alleging fraud which suit was dismissed with costs. They averred that, importantly, the sale by public auction and the correction of titles by the Land Registrar have never been successfully challenged in any court. They contended that there was no evidence that their registration in favour of land parcel 1430 was obtained illegally, unprocedurally, or through a corrupt scheme and therefore Section 26 of the Land Registration Act protects their titles, which remain indefeasible. 23. They further submitted that in the Appellants defence dated 30/06/2014, the allegations of fraud set out thereon were not particularly pleaded as required by Order 2 Rule 10(1)(a) of the Civil Procedure Rules. It was their position that the Appellant did not counterclaim or seek a cancellation of their title allegedly obtained by fraud and or unlawfully. That therefore, the Appellant did not prove her case to the required standards. They maintained that there is no basis for the Appellant to be on their land and therefore they should vacate from the said land. 24. Having considered the record of appeal together with the parties submissions, I find that the issue for determination is whether the Respondents are entitled to an order of eviction of the Appellant from land parcel 1430. 25. The Appellant's main contention is that the trial magistrate erred in finding that the Respondents lawfully acquired land parcel Mbeti/Kiamuringa/1430 through a public auction, whereas the evidence allegedly demonstrated that the property sold at the auction was parcel No. Mbeti/Kiamuringa/1431. It is not in dispute that the Respondents acquired land through a public auction following the Appellant's default in servicing the loan secured by the suit property. Equally, it is not disputed that there was confusion regarding parcels Mbeti/Kiamuringa/1430 and Mbeti/Kiamuringa/1431. The evidence before the trial court, particularly the District Surveyor's letter dated 24/08/2012 addressed to the District Land Registrar, established that land parcel No. Mbeti/Kiamuringa/1430 was registered in the name of Lauraria Wanyaga, while parcel No. Mbeti/Kiamuringa/1431 was registered in the names of the Respondents. However, upon visiting the parcels on the ground, the District Surveyor found that the actual occupation was the reverse: Lauraria Wanyaga was in occupation of parcel No. 1431, while the Respondents occupied parcel No. 1430. In light of this discrepancy between the land register and the position on the ground, the District Surveyor recommended that the Land Registrar rectify the register to reflect the actual occupation and settlement of the respective proprietors. 26. The trial court accepted this evidence and found that the Respondents' registration as proprietors of parcel No. Mbeti/Kiamuringa/1430 resulted from the rectification undertaken by the Land Registrar following the Surveyor's findings. Significantly, the Appellant did not place before the court any evidence demonstrating that the rectification process was illegal, unprocedural or undertaken through fraud. While the Appellant alleged fraud, those allegations were neither strictly proved nor supported by any evidence, as required in law. There was equally no evidence that the public auction itself or the subsequent registration of the Respondents had been set aside by any competent court. 27. I also agree with the trial court's finding declining the claim for mesne profits. Although the Respondents established their ownership of the suit property, they admitted that they had never taken possession or occupation of the land and did not demonstrate any actual loss suffered as a consequence of the Appellant's continued occupation. The claim was therefore not proved. 28. In the circumstances, I find no basis for interfering with the trial court's finding that the Respondents are the lawful registered proprietors of land parcel Mbeti/Kiamuringa/1430 and that the Appellant's continued occupation of the property is without lawful justification. The order directing the Appellant to vacate the suit property was therefore properly issued. 29. Therefore, the appeal is hereby dismissed with costs to the Respondents. **DATED, DELIVERED AND SIGNED AT EMBU THIS 09TH DAY OF JULY, 2026.** **HON. E.C. CHERONO** **ELC JUDGE, EMBU** **In the presence of;** 1. Mr. Nyaga H/B for Mr. Maina Kagio for the Respondent 2. Appellant in person-present 3. Ruth – Court Assistant