https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3219

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLA E009 OF 2025** **JOHN MUGO NJERU ……………………………….……………...…………APPELLANT** **VERSUS** **CRYSUNTHUS KINYUA KANGU…………………………………..…..1ST RESPONDENT** **VINCENT KIMANI CHEGE………………..……………………………2ND RESPONDENT** ***(Being an Appeal from the Judgment and Decree of the Chief Magistrate’s Court at Murang’a Delivered by the Hon. P N Maina, Chief Magistrate on 14th December, 2023)*** **JUDGMENT** 1. In the Memorandum of appeal dated 30-4-2024, the Appellant seeks the following orders. 2. **That this appeal be allowed.** 3. **The order cancelling the Appellant’s title deed number Makuyu /Makuyu/Block 2/1064 be set aside together with all consequential orders.** 4. **That the costs of this appeal be borne by the Respondents.** 5. The same memorandum of appeal contain twelve(12) grounds of appeal. They read as follows. The learned trial magistrate erred in law and in fact:- 1. **in holding that the 1st Respondent had been the 1st registered owner of the suit land where there was no such proved evidence;** 2. **by disregarding the evidence on record that the Appellant was the bona fide owner of the suit land as borne by the evidence on record;** 3. **in holding that the Respondents have proved any particulars of fraud against the Appellant contrary to the evidence on record;** 4. **in making orders for cancellation of the title of the suit land without legal and factual basis for doing so;** 5. **in disregarding the legal principle that registration of a person as a proprietor of land vests in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;** 6. **in holding that the suit land had an earlier registration when no evidence to that effect was adduced in court by the Land Registrar Murang’a and not withstanding that the existing records show the registered owner is the Appellant;** 7. **in holding that the 2nd Respondent was the genuine owner of the property when the purported transfer documents could not be authenticated as genuine by production of official booking form, evidence of stamp duty payment and other statutory requirements as required by the law;** 8. **in cancelling the Appellant’s title when no evidence had been adduced and corroborated to prove any fraud by the Respondent as required by Section 26(1) of the Land Registration Act;** 9. **in relying on a dubious list of members of Gathaite Farmers Society produced by the 1st Respondent contrary to the evidence on record which showed that the 1st Respondent could not explain where he got the list from which was different from the list produced by the Appellant which had been confirmed and authenticated by the Assistant County Commissioner Makuyu Division, as the genuine members list of Gathaite Farmers Co-operative Society;** 10. **in failing to find that the Appellant’s title was genuinely re-issued after the original one could not be traced;** 11. **in failing to hold that no documents were produced in court to prove that there was any sale transaction between the 1st and 2nd Respondents in respect of the suit property and** 12. **by determining the issue of ownership of the suit land against the weight of evidence on record and applicable legal principles.** 13. The facts of the case according to the Respondents who were the Plaintiffs in the lower court are as follows. Firstly, the 1st Respondent was the first registered owner of the suit. He got registered on 5-6-1991. Secondly, in March 2006, he sold the suit land to the 2nd Respondent after obtaining the consent of the Land Control Board. Thirdly, when the Respondents’ visited the Murang’a Land Registry to process the title deed, they found that the suit land had been registered in favour of the Appellant. All this happened without their knowledge or consent. Fourthly the Respondents did not sell or transfer the suit land to the Appellant so the Appellant must have used fraud to obtain registration as owner of the suit land. In the plaint dated 20-12-2016, the Plaintiffs alleged several particulars of fraud on the part of the Appellant. Finally, the first Respondent occupied the suit land in the year 1991 until 2006 when he sold it to the 2nd Respondent. He was a member of Gathaite Farmers Cooperative Society that owned the land before transferring it to the 1st Respondent. 1. The facts of the case according to the Appellant who was the Defendant in the lower Court case are as follows. One, the Appellant was allocated the suit land by the Government after he applied to be allocated land. He was issued with a title deed and he never sold the land to the Respondents or any other person. Secondly, the Respondents cautioned his land and in the year 2011 and 2017, they went to the Land Registrar’s office in Murang’a for a caution hearing. The caution was not lifted and it is still in place. Finally, the 2nd Respondent is member No. 1063 in the Gathaite Farmers’ members list that was declared a forgery by the Deputy County Commissioner. 2. In his judgment dated 14-12-2023, the learned trial magistrate found in favour of the Respondents. The reasons for finding the way he did are to be found at pages 7 and 8 of the judgement. They include the 1st Respondent proving that he was a member of Gathaite Farmers Co-operative Society and his being issued with a title deed for the suit land on 5-6-1991; confirming registration through a certificate of official search dated 16-3-2006; the Appellant’s list produced in evidence relating to a different parcel known as Kakuzi/Kirimiri/Block (5) Kianjugu United Company Limited and not the suit land; Appellant’s title deed being issued a second time without him following the law of the re-issue which includes gazette notice of the loss and other reasons. 3. Counsel for the parties filed written submissions dated 31-3-2026 and 14-5-2026 respectively. The issues identified are as follows. 4. **Whether the 1st Respondent proved lawful ownership of the suit property.** 5. **Whether the Appellant’s registration was lawfully acquired.** 6. **Whether fraud and/or irregularities were proved against the Appellant.** 7. **Whether the orders of cancellation of titles were justified.** 8. **Whether the judgement was against the weight of evidence.** 9. I have carefully considered the entire record of appeal, the grounds of appeal, the written submissions by learned counsel for the parties as well as the law cited therein. This being a first appeal the court has a duty to reconsider and re-evaluate the evidence of the trial court afresh, draw its own conclusion, and make its own independent judgment, while bearing in mind that it neither saw nor heard the witnesses testify and should therefore give due allowance for that disadvantage. See **Selle vs. Associated Boat Co. Ltd [1968] E.A. 123.** 10. On the first issue, I find that 1st Respondent was rightfully found to be the lawful owner of the suit land. The 1st Respondent was able to trace his ownership to the original owners of the land, Gathaite Farmers Co-operative Society. The Appellant has no such claim. He traces his title to some unnamed and unknown Government officials in the office of the Provincial Commissioner and District Commissioner in Nyeri and Murang’a. It is not explained how such officials could allocate land that did not belong to them to the Appellant or any other person. The first Respondent also has a title deed that was issued on 5-6-1991 while the Appellants title deed was issued in the year 2010. There are many other instances but these two will suffice. This finding covers the second issue as well. 11. Regarding the third issue, I find that fraud and irregularities were proved against the Appellant. Fraud is obvious because the Appellant was never a member of Gathaite Farmers Company Limited and he did not buy the suit land from a member of the land buying and selling company. His title deed was acquired through a dubious process which is not supported by any documents like gazette notice, Land Control Board consent, sale agreement and the title deed for the seller. It is my finding that fraud was proved to the standard in the case of **Ndolo vs. Ndolo, Civil Appeal No. 128 of 1995.** The holding in this case was that where fraud is pleaded the standard of proof is higher than on a mere balance of probabilities but not as high as beyond reasonable doubt as in criminal cases. 12. Having made the above two findings, there is no way that the Appellant’s appeal can stand. I therefore find the findings made by the lower court were based on credible and cogent evidence adduced by the Respondents. The Appellant’s defence had **no merit**. In conclusion, I **dismiss** the Appellant’s appeal with costs to the Respondents. **It is so ordered.** **Dated, Signed and Delivered virtually at Murang’a this 25th day of May, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistant – Jackline.** **Appellant’s Counsel – Mr. Gaita.** **Respondent’s Counsel – Mr. Onderi.**