https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4635

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MALINDI** **ELC NO. E016 OF 2023** **NGUMBAO KALUME AND HARRISON KATANA (As administrators of the estate of the late Ngumbao Kobe Munga) ………………………………………………………… PLAINTIFFS** **VERSUS** 1. **STEPHEN NGIGI NJUGUNA** 2. **MARTIN MUGO MARINGI** 3. **RUTH WANJIKU MARINGI** 4. **THE LAND REGISTRAR – LAMU** 5. **THE PUBLIC TRUSTEE** 6. **THE ATTORNEY GENERAL……………………DEFENDANTS** **JUDGMENT** 1. The Plaintiffs instituted this suit by a plaint dated 10th August 2023 and amended on 4th May 2024, seeking the following reliefs: 2. **A declaration that the summary certificate in Lamu Succession Cause No. 2 of 2007, which administered the estate of Ngumbao Kalume, was irregular, unlawful, and fraudulent, and therefore null and void ab initio.** 3. **A declaration that the transfer of land, reference number Lamu/Hindi Magogoni/1790, to the 2nd and 3rd Defendants was irregular, unlawful, and fraudulent, and therefore null ab initio.** 4. **An order directing the Lands Registrar, Lamu County, to annul and cancel all title deeds in the register of records emanating from land reference number Lamu/Hindi Magogoni/269 and issue a new title deed in respect of the suit property in the name of the deceased Ngumbao Kobe Munga pending the succession process.** 5. **An order of eviction of the 1st, 2nd, and 3rd Defendants from the suit property** 6. **An order for the demolition of all buildings erected on the suit property.** 7. **An order of permanent injunction restraining the 1st, 2nd, and 3rd Defendants, by themselves, their servants, agents, and/or any persons acting under their authority, from occupying, entering, remaining, and/or in any manner whatsoever from dealing with the suit property.** 8. **Costs of the suit.** 9. **Interest on (g) above at court rates.** 10. The Plaintiffs institute this action on behalf of their deceased father, the late Ngumbao Kobe (“the Deceased”), who passed away on November 1, 2001. The Deceased was issued a certificate of title posthumously for Lamu/Hindi Magogoni/269, encompassing 4.2 hectares and located in Hindi, Lamu County (“the Suit Property”). Around the year 2013, the Plaintiffs became aware that the Suit Property had been acquired and registered in the name of the 1st Defendant through irregular means. Subsequently, the 1st Defendant subdivided the property, transferring the parcel identified as Lamu/Hindi Magogoni/1790 to the 2nd and 3rd Defendants, while retaining the adjacent parcel, Lamu/Hindi Magogoni/1789, which has since undergone additional subdivisions. The Plaintiffs contend that the 1st Defendant obtained the Suit Property through irregular, fraudulent, and unlawful means. 11. The Defendants denied the allegations and prayed that the Plaintiffs’ suit be dismissed with costs. 12. Ngumbao Kalume, who testified as PW1 and adopted his filed statements, asserted that his late father was the registered proprietor of the land parcel known as Lamu/Hindi/Magogoni/269, measuring 4.2 hectares. 13. He stated that the deceased farmed and developed the parcel of land for decades and was allocated the same. Two wives and 10 children survived him. He was posthumously issued the title in 2006 after a thorough adjudication process. 14. That in the year 2014, the 1st Defendant purported to own the land via sale. That the sale was made by his father and witnessed by his brother, Justus Charo Ngumbao. 15. That he was jailed, and after his release and upon obtaining the green card, he noted that the suit property title was issued on August 28, 2008. The suit property had been charged to the SFT. On May 25, 2007, the suit property reverted to the 5th Defendant, and the title was canceled and reissued to the 1st Defendant. It was discharged on November 19, 2012. On June 25, the title was closed vide subdivisions 1789-1790. 16. That plot No. 1790 was further subdivided into plots Nos. 1966–1969, and that plot No. 1968 was subdivided into 4 plots Nos. 3469, 3470, 3469,3470,3471, and 3472. 17. According to the Plaintiff, these subdivisions were the result of the 1st Defendant’s illegal, unlawful, unprocedural, and fraudulent activities in collusion with the 4th and 5th Defendants, aimed at depriving the deceased’s constitutional right to own property. 18. The witness averred that the 2nd and 3rd Defendants benefited from an illegal, unprocedural, and corrupt scheme perpetrated by the 1st Defendant. 19. Stephen Ngige Njuguna, testifying as DW1, adopted his witness statement and averred that the suit property was never registered or owned by the Plaintiffs' father but was instead allotted to one Michael Odhiambo Nyagwa in 1998. Nyagwa later took an SFT loan of Kshs. 50,000/-. He then found the Plaintiffs’ deceased father settling on the land as a squatter. Mr. Nyagwa told him to settle the loan if he was to own the suit property. He became ill and was unable to service the loan. He sold the land to DWI in 2001 for consideration of 40,000/-. He then paid the balance owed to the SFT, including interest. 20. He further stated that when a Taskforce later visited the area, it found that the initial holder, Nyagwa, had transferred the land to the Plaintiffs’ father, who in turn sold his interest to the Plaintiffs’ father. Two titles were initially issued in the names of Nyagwa and the Plaintiffs’ father. Later, the issue was resolved, and the Plaintiffs’ family agreed that their interest would pass to DWI, who had purchased the same before the Plaintiffs’ father's demise. When the issue went to the public trustee and succession was completed, the title then passed to him. 21. He later sold a portion to the 2nd and 3rd Defendants, as confirmed by the evidence of Martin Mugo Maringi, who testified as DW2. 22. In his testimony, the Land Registrar of Lamu produced the entire record showing the entries concerning the suit property and that the final entries show the Public Trustee passed the land to the 1st Defendant. Later, there was a sale to the 2nd and 3rd Defendants. 23. Counsel for the parties filed written submissions after the close of both sides' cases. I appreciate that. These submissions went a long way in assisting the Court in resolving the issues raised in the matter. 24. The issues I frame for the determination of this case are whether the Plaintiffs have proved their case to warrant the issuance of the orders sought in the Plaint and who should bear the costs of this suit. 25. The Plaintiffs' case hinges on fraud. Specifically, the estate of their deceased father was defrauded when the title was passed to the 1st Defendant and later to the 2nd and 3rd Defendants. 26. Plaintiffs submit that the manner in which the 5th Defendant carried out the succession smacks of fraud. It amounted to intermeddling, as at the time of their deceased father's demise, he had not been registered, and therefore his beneficiaries should have been involved. The titles acquired by the 1st Defendant and later by the 2nd and 3rd Defendants were all irregular and ought to be canceled. 27. Plaintiffs submit that their father's title, conveyed via an allotment letter, had not been perfected, and therefore he could not sell his interest. See **Torino Enterprises Ltd v The Attorney General, Petition No. 5 (E006) of 2022**. It follows, then, that under the doctrine of *nemo dat quod non habet*, the 1st Defendant had no good title to pass to the 2nd and 3rd Defendants. 28. The Plaintiff submits that the Public Trustee had no authority to administer their late father's estate. At the same time, there were lawful family members and beneficiaries to undertake that process under the Succession Act. 29. The Plaintiff then proceeds to question the root of the title held by the 2nd and 4th Defendants, alleging it stems from forbidden fruit, citing the decisions in **Dina Management Limited v County Government of Mombasa & 5 Others [SC Pet. No. 8 of 2021**], **Samuel Kamere v Lands Registrar [2015] eKLR**, and **Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR**. 30. The Plaintiffs conclude that the documentation relied on by the 5th Defendant could not form the basis for the 4th Defendant to register the 1st Defendant as proprietor of the suit property, and therefore all the processes undertaken in the whole transaction should be declared null and void ab initio. 31. On the other hand, the 1st Defendant submits that the attack on the titles held by the 1st, 2nd, and 3rd Defendants arises from a succession cause. The Court is invited to invalidate proceedings of a Probate Court, which fall within the province of the High Court. Therefore, this Court has no jurisdiction in the first place. The 1st Defendant cites the decisions in **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48** and **Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012]** on the question of jurisdiction, and holds that when a Court is bereft of jurisdiction, it should down tools. 32. The 2nd and 3rd Defendants, on the other hand, submit that the duo were innocent purchasers for value without notice and that no fraud has been proved against them. In this regard, the 2nd and 3rd Defendants cite decisions of the Court of Appeal in Uganda: **Katende v Haridar & Company Ltd [2008] 2 EA 173** and **Samuel Kamere v Lands Registrar, Kajiado (Civil Appeal No 28 of 2005) [2015] eKLR**. 33. The 2nd and 3rd Defendants contend that the burden of proof rested with the Plaintiffs to establish, by evidence, that the title held by the Defendants is defective, citing **Stephen Wasike Wakhu & Ano v Security Express Limited [2006] eKLR**, in which the Court discussed the provisions of section 107 of the Evidence Act, Cap 80 Laws of Kenya, on the burden of proof. 34. The 2nd and 3rd Defendants contend that they conducted due diligence in purchasing the suit property and that their title cannot be impeached. 35. The 4th and 6th Defendants, in their submissions, like the other Defendants, averred that the Plaintiffs failed to prove aspects of fraud attributed to the Defendants, beyond merely pleading them. 36. As correctly submitted by the Defendants, to impeach a title, it must fall within the confines of Article 40(6) of the Constitution and Section 26(1)(a) and (b) of the Land Registration Act. That is, it must be on the grounds of fraud, irregularity, or corruption. 37. On the preliminaries, the Plaintiffs’ case rests on a Succession Cause, namely **Lamu Succession Cause No. 2 of 2007**. As submitted by the 1st Defendant, the Plaintiffs ought to have challenged the manner in which the Succession Cause was handled, and the ELC cannot, at this stage, question those proceedings through a review or appeal; hence, this Court's jurisdiction is improperly invoked. 38. On the merits of the Plaintiffs' suit, there are joint and several allegations of fraud against the Defendants. When fraud is pleaded, it must be specifically proved. See **Kuria Kiarie & 2 Others v Sammy Magera [2018] KECA 467 (KLR)**, where the Court of Appeal sitting at Nairobi held as follows regarding the pleading of fraud and its standard of proof: ***“The next and only other issue is fraud. The law is clear, and we take it from the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where 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.” [Emphasis added]. The same procedure goes for allegations of misrepresentation and illegality. See Order2Rule 4 of the Civil Procedure Rules. As regards the standard of proof, this Court in the case of Kinyanjui Kamau vs George Kamau [2015] eKLR expressed itself as follows;*** ***“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & F) 742, wherein the Court stated that:*** ***“...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases...”...In cases where fraud is alleged, it is not enough to simply infer fraud from the facts."*** 1. In **Arthi Highway Developers Limited v West End Butchery Limited & 6 Others, 2015 KECA 816 (KLR)**, the Court of Appeal held the following on fraud: ***“It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. One of the authorities produced before us has this passage from Bullen & Leake& Jacobs, Precedent of pleadings 13thEdition at page427:*** ***“Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged (Wallingford v Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709, Garden Neptune V Occident [1989] 1 Lloyd’s Rep. 305, 308). The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see Lawrence v Lord Norreys (1880) 15 App. Cas. 210 at 221). It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (Davy v Garrett (1878)7 ch. D. 473 at 489). “General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any court ought to take notice”. see Insurance Company of East Africa vs. The Attorney General&3 Others Hccc 135/1998. Whether there was fraud is, however, a matter of evidence.”*** 1. The Plaintiffs allege that the acquisition of the title through the Succession Cause, as conducted by the 5th Defendant; the acquisition by the 1st Defendant; the sale to the 2nd and 3rd Defendants; and the registration by the 4th Defendant were all fraudulent. However, a review of the evidence shows that the Plaintiffs' father had long since relinquished his rights in the suit property to the 1st Defendant before his demise. 2. DW2, Boaz Juma Oketch, the Lands Registrar, explained the entries in the register and the transfer of the property title from the 1st Defendant to the 2nd and 3rd Defendants. The property involved was a mutation of Lamu/Magogoni/269, and the Green Card showed no adverse entries. As the official custodian of land records, the Registrar confirmed that the records were legitimate and that the entries on the Green Card matched the Defendants' statements. 3. The allegations of fraud or impropriety in the acquisition of the suit property by the 1st, 2nd, and 3rd Defendants were unsubstantiated. They lacked the basic legal and evidentiary support necessary to persuade this Honorable Court to find in favor of the Plaintiffs. 4. Consequently, the Plaintiffs' suit is dismissed, with costs. **Dated, signed, and delivered virtually at Nyeri on this 2nd day of July 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr. Muthethia for the Plaintiff** **Mr. Omwancha for the 1st Defendant** **Mr.Chadienya for the 2nd and 3rd Defendants** **Denis - Court Assistant** **In the absence of:** **Mr. Munga for the 4th and 6th Defendants**