Julius Ndiritu Wambugu (suing as legal representatives of the estate of William Wambugu Kiiru) v Fredrick Mbui Wanjau & 2 others

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAKURU** **ELCLC NO. EO37 OF 2023** **JULIUS NDIRITU WAMBUGU (suing as legal representatives of estate of WILLIAM WAMBUGU KIIRU........................................................................................................................................PLAINTIFF** **VERSUS** **FREDRICK MBUI WANJAU.......................................................................................1ST DEFENDANT** **JOHN NJOGU NDUNGU……………………………………………………….……2ND DEFENDANT** **LAND REGISTRAR NAKURU COUNTY………………………………………….3RD DEFENDANT** **JUDGMENT** 1. By a plaint dated 21st October, 2023, the Plaintiff herein sued the Defendants seeking the following orders: 2. ***A permanent order of injunction restraining the defendants by themselves, their agents, workers, servants and whomsoever claims through them from entering, occupying trespassing and or in any manner interfering with the Plaintiffs use occupation and access to parcel of land known as NAKURU/LANGA LANGA BLOCK 1/196.*** 3. ***A declaration that WILLIAM WAMBUGU KIIRU is the legal proprietor and/or beneficial owner of the leasehold interest comprised in parcel land known as NAKURU/LANGA LANGA BLOCK 1/196 and certificate of lease be issued to the Plaintiff as administrator/legal representative of the estate of WILLIAM WAMBUGU KIIRU.*** 4. ***A declaration that registration and/or transfer of parcel of land known as NAKURU/LANGA LANGA BLOCK 1/196 in the names of the 1st and 2nd defendant was unlawful, fraudulent null and void.*** 5. ***An order directing the 3rd defendant to rectify the Register of Land Parcel No. NAKURU/LANGA LANGA BLOCK 1/196 by cancellation of entries 2,3,4,5 and 6 and the said parcel reverts to WILLIAM WAMBUGU KIIRU*** 6. ***Costs of the suit and interest thereon.*** 7. The defendants despite being duly served with summons to enter appearance and pleadings, neither entered appearance nor filed a defence. The matter therefore proceeded undefended. **PLAINTIFF’S CASE** 1. PW1, Julius Nderitu, who sued as an administrator of the estate of William Wambugu Kiiru, adopted his witness statement dated 27th October, 2023, as his evidence in chief, and produced the list of documents dated 27th October, 2023, as PExb No.1 to 21, and a further list of documents dated 23rd April, 2026 as PExb No.22 2. It was PW1’s testimony that the white card of the suit parcel was opened on 18th August,1971, and the 1st Defendant got the land as per the white card on 15th April,1982. He also stated that the transfer to the 1st Defendant could not have been possible as his father died on 16th August 1971. 3. PW1 further testified that he discovered in 2014 that the land was registered in the name of John Njogu Ndirangu the 2nd Defendant and reported that matter to Bondeni Police Station and was issued with an OB number. PW1 also stated that he filed a restriction at the Land Registry on the 24th July, 2014, which is still in place. He also wrote a letter to the Nakuru Municipal Council not to transfer or give a construction consent as the plot was a site and service plot. 4. According to PW1, he went to the Kenya Human Rights Commission who referred him to the National Land Commission but he did not get any help, and therefore filed the current suit and urged the court to grant the orders as prayed with costs. **PLAINTIFF’S SUBMISSION** 1. Counsel for the Plaintiff filed submissions dated 15th June, 2026, and identified one issue as to whether the Plaintiff has proved his case on a balance of probabilities. Counsel relied on Section 107 of the Evidence Act and submitted that the Plaintiff has discharged the burden of proof and demonstrated that the late William Wambugu Kiiru was lawfully allocated, registered and remained the legal proprietor of Land Parcel No. NAKURU/LANGA LANGA BLOCK 1/196. 2. Mr. Njoroge submitted that any alleged transfer of the suit land was illegal as the late William Wambugu Kiiru died before the register was opened, and the Municipal Council of Nakuru still recognized the deceased as the owner of the suit property by issuing demand notices for land rates. 3. Counsel relied on the case of **Mureithi v Wainaina & 2Others (2022) KEELC 2556(KLR),** and urged the court to find that the Plaintiff has proved his case on a balance of probabilities and allow the orders as prayed in the Plaint plus costs. **ANALYSIS AND DETERMINATION** 1. The issues for determination are as to whether the Plaintiff has proved that the deceased was the lawful owner of the suitparcel of land known as Nakuru/Langa Langa Block 1/196, whether the transfer of the parcel of land to the 1st and 2nd Defendants was unlawful and fraudulent, and whether the Plaintiff is entitled to the orders sought. 2. The Plaintiff gave evidence and produced documents to show how the deceased was the original allottee of the suit parcel of land and the processes of allocation, the lease, the payment receipts, rates demand notices and payment receipts, letters to the National Land Commission, and to the Land Registrar. 3. It is on record that the deceased died on 16th August 1971, while the White Card in respect of the suit land was opened on 18th August 1971, which was after the death of the late William Wambugu. From the record, it shows that the 1st Defendant’s name was entered on the White Card on 15th April,1982, which is an anomaly and irregular as the deceased had passed on 11 years ago. 1. The Defendants had been served with summons to enter appearance to come and explain how the suit land was transferred to them but neither entered appearance nor filed a defence. This does not mean that where a case is undefended, the burden shifts, a party who alleges is still under an obligation to prove the facts relied upon as per Section 107 of the Evidence Act and the case of **Charterhouse Bank Limited (Under Statutory Management) vs. Frank N. Kamau, Nairobi CA No. 87 of 2014 (2016) eKLR** where the court stated as follows: “***In Karugi & Another v. Kabiya & 3 Others [1987] KLR 347****, this Court held* ***that the burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. The plaintiff must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgment merely because the defendant has not testified.”*** 1. The 1st Defendant was registered as the proprietor on the 15th April, 1982, and the Plaintiff argued that the registration could not have been lawful as no transfer could have taken place after the death of the deceased. There was no evidence from the white card as to how the transfer was done. Further, there was no evidence of any Succession proceedings or any other person who had authority to transfer the suit property on behalf of the deceased. The Plaintiff pleaded the particulars of fraud and illegalities and gave evidence to prove the same. 2. In the case of **Kinyanjui Kamau vs. George Kamau Njoroge [2015] eKLR** the Court of Appeal held that: ***“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. In the present appeal, there is no such evidence, and the Courts below rightly came to the conclusion that the Appellant had not made out a case for the grant of the orders he sought.”*** 1. On the issue as to whether the Plaintiff is entitled to the orders sought, having found that the Plaintiff has proved that the deceased was the legal allottee and that the registration and transfer by the 1st Defendant was done illegally and unprocedurally, it follows that the Plaintiff is entitled to the declaratory orders sought. 2. **Section 80** of the [***Land Registration Act***](https://kenyalaw.org/akn/ke/act/2012/3) provides: ***(1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake;*** ***(2) The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.”*** 1. The court is empowered under Section 80 of the Land Registration Act to order for rectification or cancellation of the offending entries in the register as was held in the case of **Ngugi v Kamau & another (Environment & Land Case 36 of 2020) [2022] KEELC 2261 (KLR),** as follows: ***“Rectification by Court concerns one that goes to the cancellation or amendments of title, circumstances of which are provided above. This Court agrees with the sentiments of the Court in Kisumu Misc No. 80 of 2008, Republic v Kisumu District Lands Officer & another [2010] eKLR, where the Court held:“it is clear that it is only the Court that can cancel or amend if where the Court is of the view that registration has been obtained, made or omitted through fraud or mistake and only where it is not a first registration”.*** 1. The upshot is that I find that the Plaintiff has proved his case on a balance of probabilities and, make the following specific orders: 2. ***A permanent order of injunction is hereby issued restraining the defendants by themselves, their agents, workers, servants and whomsoever claims through them from entering, occupying trespassing and or in any manner interfering with the Plaintiff’s use occupation and access to parcel of land known as NAKURU/LANGA LANGA BLOCK 1/196.*** 3. ***A declaration is hereby issued that WILLIAM WAMBUGU KIIRU is the legal proprietor and/or beneficial owner of the leasehold interest comprised in parcel land known as NAKURU/LANGA LANGA BLOCK 1/196 and certificate of lease be issued to the Plaintiff as administrator/legal representative of the estate of WILLIAM WAMBUGU KIIRU.*** 4. ***A declaration is hereby issued that registration and/or transfer of parcel of land known as NAKURU/LANGA LANGA BLOCK 1/196 in the names of the 1st and 2nd defendants was unlawful, fraudulent null and void.*** 5. ***An order is hereby issued directing the 3rd defendant to rectify the Register of Land Parcel No. NAKURU/LANGA LANGA BLOCK 1/196 by cancellation of entries 2,3,4,5 and 6 and the said parcel reverts to WILLIAM WAMBUGU KIIRU.*** 6. ***Costs of the suit to be paid by the 1st and 2nd Defendants.*** **DATED, SIGNED AND DELIVERED AT NAKURU THIS 8TH DAY OF SEPTEMBER 2026.** **M. A. ODENY** **JUDGE**