https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1296

Kaminchia & another v Yhiongo & 2 others (Civil Appeal E754 of 2024) [2026] KECA 1296 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1296 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E754 of 2024 JM Ngugi, MN Nduma & M Sila, JJA July 10, 2026 Between Alexander T Kaminchia 1st Appellant Ken Kirigia 2nd Appellant and Geoffrey Mungai Thiongo 1st Respondent Anthony Thairu Mungai 2nd Respondent Chief Land Registrar 3rd Respondent (Being an appeal against the judgment of the Environment and Land Court at Nairobi (E. K. Wabwoto, J.) delivered on 30th April 2024 in Nairobi ELC No. E346 of 2022) Judgment 1.The subject matter of the dispute herein is the land parcel LR No. 21932 (hereinafter referred to as ‘the suit property’) situated in Lang’ata in the City of Nairobi and measuring 0.8 ha. The 1st appellant, Alexander T. Kaminchia, holds a title dated 11th July 1996 issued under the Registration of Titles Act (repealed in 2012 by the Land Registration Act, Act No. 3 of 2012) whereas Geoffrey Mungai Thiong’o and Anthony Thairu Ngugi, the 1st and 2nd respondents, jointly hold a title dated 17th December 2018 issued under The Land Act, Act No. 6 of 2012. The 1st appellant asserts that his title is the genuine one, while on the other hand, the 1st and 2nd respondents jointly contend that it is their title which is legitimate. 2.Through a plaint dated 9th October 2022, filed in the Environment and Land Court at Nairobi, the 1st and 2nd respondents, commenced suit against the 1st appellant and the Chief Land Registrar who was cited as the 2nd defendant. The original plaint was subsequently amended on 31st October 2022, inter alia to include the 2nd appellant (Ken Kirigia) as the 3rd defendant. In the amended plaint, the 1st and 2nd respondents averred that they were allocated the suit land by the Government (through an allotment letter dated 13th March 1996); that they were issued with a Lease dated 12th July 2018; and that they were subsequently issued with a Certificate of Title, I.R No. 203488 registered on 17th December 2018. They pleaded that the validity of their interest has been recognized by the 3rd respondent (Chief Land Registrar) through official search certificates. They further pleaded that they are also recognized by the Nairobi City County as the rateable owners of the suit property. They pleaded that since being allotted the suit property, they enjoyed peaceful and uninterrupted possession until 26th August 2022, when the 1st and 2nd appellants, with armed goons and in the company of police officers, forcefully trespassed into the suit property, laid claim to the same, and caused substantial damage thereon. It was pleaded that there was further invasion of the suit property by the appellants on 5th October 2022 in the wee hours of the morning and attempts made to forcefully evict the agents of the 1st and 2nd respondents from the suit property. Out of fear of being dispossessed, they proceeded to file suit seeking the following orders (slightly paraphrased for brevity) :a.A declaration that they are the lawful registered proprietors of the suit property formerly identified as residential Plot No. XVII- Nairobi and entitled to ownership and peaceful occupation of the same to the exclusion of the defendants.b.A permanent injunction restraining the defendants from interfering with their quiet and peaceful occupation of the suit property.c.A permanent injunction prohibiting the defendants from interfering or dealing with the suit property.d.A declaration that the 1st and 3rd defendants (appellants herein) have no legal right or recognizable interest in the suit property and any title documents they purport to hold are illegal, null and void, and the same to be revoked or cancelled.e.Costs of the suit. 3.The appellants filed a joint statement of defence dated 21st November 2022 which was accompanied by a counterclaim by the 1st appellant.They denied that the 1st and 2nd respondents were the registered owners of the suit property. They asserted that if the 1st and 2nd respondents had any title documents for the suit property, then the same were procured through fraud and misrepresentation. They also denied attempting to enter the suit property as claimed in the plaint and contended that it was them who had been in occupation since 1996 after the suit property got registered in the name of the 1st appellant. They pleaded that the suit property was in fact allotted to the 1st appellant on 12th April 1996; that he complied with the terms of the allotment letter; and that he was issued with a Certificate of Lease on 11th July 1996. They pleaded that they would raise a preliminary objection inter alia that the suit was time barred by dint of Section 7 of the Limitation of Actions Act, Cap 22, Laws of Kenya; that the suit is similarly barred by Section 3 of the Public Authorities Limitation Act, Cap 39, Laws of Kenya; that the amended plaint is incompetent for want of requisite authentication; and that the verifying affidavit is incompetent pursuant to Order 4 Rule 1 (2) as read together with Order 1 Rule 13(2) of the Civil Procedure Rules, 2010. 4.In the counterclaim, the 1st appellant reiterated that it was him who was allotted the suit property and issued with genuine title thereto. He pleaded that on 19th November 2022, the 1st and 2nd respondents trespassed into the suit property and carried out extensive demolition of the perimeter wall and some structures therein. He claimed to have suffered damage as a result, though the particulars of the actual monetary loss were not pleaded in the plaint. He pleaded fraud on both the 1st and 2nd respondent, and against the 3rd respondent, which particulars included the allegation that they connived to generate and issue a fraudulent title to the 1st and 2nd respondents. He asked for the following orders :i.Declaration that he (1st appellant) is the lawful proprietor of the suit property vide a grant registered on 11th July 1996.ii.Declaration that the purported certificate of lease issued to the 1st and 2nd respondents is illegal and was procured through fraud and corrupt practices.iii.The Certificate of Lease of the 1st and 2nd respondents be revoked nullified and cancelled.iv.A permanent injunction to restrain the 1st and 2nd respondents from interfering with the suit property.v.General damages for trespass.vi.Exemplary and aggravated damages for breach of the 1st appellant’s constitutional rights to the suit property.vii.Special damages on account of the illegal demolitions carried out by the 1st and 2nd respondents.viii.Interest on the general, aggravated and exemplary damages at court rates.ix.Costs of the suit and the counterclaim. 5.The 1st and 2nd defendants filed a reply to defence and defence to counterclaim dated 6th March 2023, more or less joining issue with the appellant. 6.The 3rd respondent filed a very brief statement of defence dated 11th January 2023 in which she pleaded to be a stranger to the contents of the plaint. Similarly, she also filed a brief statement of defence to the counterclaim, of even date, wherein she denied the allegations of fraud and misrepresentation against her. 7.Hearing commenced on 3rd October 2023 when the 1st respondent testified as PW-1. He had a pre-recorded witness statement which he adopted as part of his evidence in chief, and produced various exhibits which we will refer to in our analysis. In his witness statement, he stated that through a letter dated 13th February 1996, received on 14th February 1996, they (1st and 2nd respondents) jointly applied to the Government to be allocated the suit property which was then identified as Unsurveyed Residential Plot No. XVII Langata-Nairobi. Through a letter dated 29th February 1996, the Commissioner of Lands informed them that the Government had approved their application, and that they would be supplied with a formal allotment letter. He stated that they were later issued with an allotment letter dated 13th March 1996. The allotment letter required them to communicate their acceptance and make the requisite payments within 30 days. He stated that through a letter dated 18th March 1996, they communicated their acceptance, forwarded a banker’s cheque of Kshs. 540,800/=, and they were issued with a receipt thereof which he exhibited. He averred that they were subsequently directed to pay the survey fees to facilitate the survey of the property, and that the land was afterwards surveyed and assigned LR No. 21932. He claimed that they continuously followed up on the registration of their interest but they were informed that the file had disappeared. He mentioned that in December 2018, they were issued with the Lease documents dated 12th July 2018 for their execution and the same was registered on 2nd December 2018. They were then issued with the Certificate of title IR No. 203488 on 17th December 2018. He averred that the validity of their title was confirmed on numerous occasions by the 3rd respondent, through official search certificates, and that they are also recognized as the rateable owners by the Nairobi City County. He stated that they were remitting both land rates and land rents for the property whenever they fell due. He contended that since allocation, it was them in possession of the suit property, until ‘sometimes in 2022’ when the 1st appellant and his agents, headed by the 2nd appellant, started engaging in acts of violent trespass, and blocked them from developing the property. He narrated that on Friday, 26th August 2022 at about 4.00pm, the appellant, with the aid of armed goons and in the company of police officers, forcefully trespassed into the suit property and caused substantial damage. He claimed that they again invaded the suit property on 5th October 2022 in the wee hours of the morning. In his oral evidence in court, he testified that they made payment for the allocation of the suit property on 18th March 1996. He testified that they erected a mabati (iron sheet) house and fenced the plot with poles. They also put a caretaker who was residing in the premises. He added that they also erected a perimeter wall. 8.During cross-examination, an inquiry was put to him on the address noted in their documents of title, which he said is P.O Box 456 Nakuru. According to him, he did not have an address at the time the land was alloted and this was an address belonging to a family friend. He did not have the banker’s cheque that they used to make payment and what he had was copies of receipts. He maintained that they were allocated the land in 1996 and they got title in 2018. His explanation for the delay was that after allotment, they kept following up on the title, though he did not have any letter to that effect. He testified that he paid for rates and rent ‘about 4 times’ , one being 4th April 2022, and elaborated that they used to pay immediately they got the demand notes. He added that before 4th April 2022, they had not received any demand for rent or rates. He testified that the initial owner of the land was the Ministry of Lands, and that the President and the Ministry of Lands had power to allocate the land in 1996. 9.Re-examined, he insisted that they complied with the terms outlined in the allotment letter, and that they made payment within 30 days thereof, as required. He pointed at two gazette notices that he provided to demonstrate that the postal address they used was in existence at the time. 10.With that evidence the 1st and 2nd respondents closed their case. 11.DW-1 was Vinecencia Juma, a Land Registrar, who testified on behalf of the Chief Land Registrar, the 3rd respondent. She relied on a witness statement in which she elaborated that the suit property was originally known as Unsurveyed Residential Plot No. XVII- Nairobi. According to her, the plot was allocated to the 1st and 2nd respondents, vide the letter of allotment reference number 102949/11/10 dated 13th March 1996, following an application letter of even date. She stated that communication of the request for the allocation was through the letter dated 29th February 1996 from the Commissioner of Lands. She mentioned that the allotment letter required acceptance of the offer and payment of Kshs. 540,800/= within 30 days. She averred that the 1st and 2nd respondents communicated their acceptance through the letter dated 18th March 1996; that they forwarded a banker’s cheque for Kshs. 540,800/= ; and that they were issued with a receipt in acknowledgment thereof. She continued that vide a letter dated 20th March 1996, the Commissioner of Lands informed the Director of Surveys that the 1st and 2nd respondents had formally accepted the offer and requested for survey of the suit property. Upon survey, the land was assigned the description ‘Land Reference Number 21932.’ She was of opinion that according to their records, the 1st and 2nd respondents followed due process in complying with the terms and conditions of the allocation, and a lease was then prepared in their name. A certificate of title, being I.R No. 203488, was issued and registered on 17th December 2018. She asserted that there are no records in their custody indicating allocation and ownership of the land by the 1st appellant. She produced various exhibits to buttress her evidence, which more or less constituted the documents of title of the 1st and 2nd respondents. 12.Cross-examined by counsel for the 1st and 2nd respondents, she testified that she cannot confirm whether the letter dated 28th May 1996 (the letter that the 1st appellant claims to have written applying for allocation) reached their office as it does not bear their stamp. She also pointed out that the payment allegedly made by the 1st appellant, was outside the 30 days indicated in his allotment letter. 13.Cross-examined by counsel for the appellants, she testified that she is only aware of one parcel file in existence in respect of the suit property. She acknowledged that she did not have in her records the cheque by the 1st and 2nd respondents indicating that they actually paid for the allotment of the land. On the documents of the 1st appellant, she reiterated that they have no custody of them, and asserted that the documents she produced (which indicate that the land is owned by the 1st & 2nd respondents) is what is in their records. 14.DW-2 was the 1st appellant. He similarly relied on a pre-recorded witness statement as his evidence in chief. His evidence was that the suit property was hitherto known as ‘Un-surveyed Residential Plot Number XVII-Nairobi’ and it was allocated to him vide a letter of allotment reference number 88767/V/197 (the allotment letter is dated 12th April 1996). He stated that upon being issued with the allotment letter, he signed a letter of acceptance on 28th May 1996 and also made the payments noted in the allotment letter. He mentioned that the Commissioner of Lands demanded that he also makes payment for the rates, which he complied with, by paying rates in the sum of Kshs. 25,744.50/=. The lease instrument was prepared and he was issued with a Certificate of Grant on 11th July 1996. He then took possession of the suit property and erected an assortment of structures. He asserted to have been the one in possession since 1996. He stated that he has been paying land rent and rates and was issued with the requisite clearance certificates. He also had searches to demonstrate ownership of the suit property. He averred that the 1st and 2nd respondents trespassed into the suit property and commenced demolition of his structures. He made a report to the police and the Land Fraud Unit. In court, he testified that he constructed a mabati storage house. 15.Cross-examined, he conceded that his letter of acceptance bears a different postal address from the letter of allotment. He explained that he was working with Kenya Commercial Bank (KCB) as Chief Executive Officer and it is the bank’s address that he used in this instance. He had with him the original allotment letter though he did not have the formal application for allocation of the plot. He could not recall if the allotment letter was forwarded to him and acknowledged that he did not have any forwarding letter for it. He yielded that his letter of acceptance is dated 28th May 1996 which was after 30 days of the allotment letter. He confirmed that as at 30th April 1996 (the date noted in the Deed Plan) he was yet to make payment for the land and neither had he communicated his acceptance. He could see that his allotment letter has a term of 99 years from 1st April 1996 and the title has a term of 99 years from 1st January 1996. The letter of allotment also bore the name ‘Kamichia’ with the letter ‘n’ missing from his proper name ‘Kaminchia.’ He did not see any need to communicate the error, explaining that his title, which was issued on 11 July 1996, has the correct name. He acknowledged not having a search done between 1996 and 2018. He stated that he possessed rent and rates receipts for 1996 – 2018 though he did not have them in court. He was questioned on the photographs that he claimed to have taken of the suit property and he conceded that the certificate for electronic evidence did not indicate when the photos were taken. The inscription in the photos also read the phone ‘infinix note 10’ but the certificate read ‘nokia’ phone. He also conceded that the conditions in his title required him to submit development plans within 6 months of registration which he had not done. 16.Re-examined, he testified that the Government accepted his payment for the allotment despite it being made late and he was issued with title. 17.With that evidence, the appellants closed their case. 18.Counsel were invited to file their final submissions, which they did, and judgment was delivered on 30th April 2024. In his judgment, the learned Environment and Land Court (ELC) judge found that the property was originally held by the Government before its allocation. He expressed that the plaintiffs (1st and 2nd respondents herein) had exhibited their allotment letter dated 13th March 1996 and communicated their acceptance, and compliance with the terms of allotment, vide their letter dated 18th March 1996, which was within the stipulated 30 day period. Regarding the allotment letter of the 1st appellant, he found that it is dated 12th April 1996 and acceptance was made vide his letter dated 28th May 1996, which was outside the stipulated period of 30 days. He was persuaded that the title of the 1st and 2nd respondents is supported by the evidence of DW-1, the Land Registrar. He was of opinion that once a letter of allotment is issued and the terms accepted, the title comes into existence. He placed reliance on the Supreme Court decision in the case of Torino Enterprises Limited vs Attorney General (Petition No. 5 (E006) of 2022 (2023) KESC 79 (KLR) (22 September 2023) (judgment) and the case of Joseph Kamau Muhoro vs The Attorney General & Another (2021) eKLR. He held that once the 1st and 2nd respondents complied with the conditions of the letter of allotment on 18th March 1996, they acquired an interest in the property, and therefore, the property could not have been available for allocation to the 1st appellant on 12th April 1996. On this issue, he relied on the case of Augustine Thuo vs James Maina Thuita & Another (2020) eKLR. He concluded that it is the 1st and 2nd respondents who are the bona fide and legal owners of the suit property. On the allegations of fraud put forth by the 1st appellant, he found that the 1st appellant did not lodge any criminal complaint. He also opined that the 1st appellant did not adduce evidence to controvert that of the Land Registrar and that he had not tendered sufficient evidence to prove the particulars of fraud pleaded against the respondents. He held that DW-1 had testified as an expert witness, and he assessed the principles which the court considers such evidence, making reference to various decisions including the case of Shah & Another vs Shah & Others (2003) 1 EA 290 and Stephen Kinini & Another vs The Ark Limited (2016) eKLR. He held that her evidence could not be disregarded on the argument that the 3rd respondent’s pleadings were not in tandem and were inconsistent with her evidence. Ultimately, he allowed the 1st and 2nd respondent’s suit and dismissed the counterclaim of the 1st appellant with costs. 19.Aggrieved, the appellants lodged this appeal citing 19 grounds. We believe it is sufficient to state that the appellants are aggrieved by the finding that it is the 1st and 2nd respondents who have good title to the suit property, while it is their contention that the 1st appellant availed sufficient evidence that he is actually the one who holds the genuine title. The appellants wish that the appeal be allowed; that the title of the 1st and 2nd respondents be nullified; and for the 1st appellant’s counterclaim to be allowed. 20.The appeal was urged through written submissions and oral highlighting at the hearing thereof. We have considered the submissions made by Mr. Odegi together with Ms. Njoroge, learned counsel, appearing for the appellants; Mr. Odunga together with Ms. Morara, learned counsel, appearing for the 1st and 2nd respondents; and Mr. Motari, learned counsel, appearing for the 3rd respondent. We have taken the submissions of counsel into account before arriving at our decision. 21.This is a first appeal to this court and the duty bestowed upon us is now well settled. In the case of Selle & Another vs Associated Motor Boat Company Limited & Others (1968) EA 123, that duty was elaborated as follows by Sir Clement De Lestang, VP, at page 126 :“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this aspect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 22.This duty was reiterated in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, where the Court expressed itself as follows :“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 23.We are alive to the foregoing mandate as we determine this appeal. 24.The main issue for determination in this case is who between the 1st appellant, on one hand, and the 1st and 2nd respondents on the other hand, holds good title to the suit property. Inevitably this question will need to be answered by a critical analysis of the documentary and oral evidence tendered by the protagonists. We will then need to put the evidence on a scale to determine in whose favour the balance of probabilities tilts. 25.It is common ground that the suit property was hitherto identified as “Unsurveyed residential Plot No. XVII- Langata, Nairobi.” The point of departure is who was the genuine allottee of this land and who met the terms thereof. The 1st and 2nd respondents assert that it is them who were allocated the land and they met the requirements whereas the 1st appellant maintains that it was him who was allocated the land and satisfied the conditions thereof. We will assess the evidence provided by both parties and analyze the opposing positions. 26.We opt to start with an analysis of the oral and documentary evidence presented by the 1st and 2nd respondents who were indeed the plaintiffs before the ELC. Their case is that they became aware that the Government was allocating the suit property, and armed with that knowledge, they applied to be allocated the property through the letter dated 13th February 1996. The letter is addressed to His Excellency Hon. D.T Arap Moi, who was then the President of the Republic of Kenya, through the Commissioner of Lands, and it seeks allocation of ‘Unsurveyed Residential Plot No. XVII- Langata, Nairobi.’ The 1st and 2nd respondents aver that the Commissioner of Lands replied to their application, through his letter dated 29th February 1996, whereupon it is posited that the Government has approved the application, and that a letter of allotment will be issued in due course. That letter has a footnote that the allocation is by His Excellency the President. The 1st and 2nd respondents exhibited a letter dated 13th March 1996 advising that a letter of allotment has been issued to them and acceptance is expected within 30 days. Yet again, that letter bears at the foot that the allocation is by His Excellency the President. The 1st and 2nd respondents exhibited the allotment letter dated 13th March 1996, which is addressed to them through Post Office Box 456 Nakuru. We see that it states that it is a letter of allotment for ‘Uns. Residential Plot No. XVII- Langata- Nairobi’ and it allots the suit properties to the 1st and 2nd respondents for a term of 99 years from 1st April 1996. The particulars of the amounts in the allotment letter, and which were required to be paid within 30 days, are as follows:Stand Premium – Kshs. 450,000/=Rent from 1.4.1996 – 31.12.1996 – Kshs. 67,500/=Conveyancing Fees – Kshs. 1,250/= Registration Fees – Kshs. 250/=Rates – on demand – (no figures indicated) Stamp Duty – Kshs. 19,800/=Survey fees – (no figures indicated)Road and Road Drains (on demand) – (no figures indicated) Others – approval fees – Kshs. 2,000/=Total – Kshs. 540,800/=. 27.The 1st and 2nd respondents contend that they accepted the terms of the allotment letter, through their letter of 18th March 1996, addressed to the Commissioner of Lands. That letter states that they accept the offer, and it is mentioned that there is enclosed a banker’s cheque of Kshs. 540,800/=, being the total of the amount shown in the allotment letter. 28.The next document exhibited by the 1st and 2nd respondents is a receipt No. D361671 dated 18th March 1996 for Kshs. 540,800/=. It is the case of the 1st and 2nd respondents that they were not promptly issued with the lease and certificate of lease for reason that the file at the Lands Registry had gotten lost. They say that they kept following up on the matter until they eventually obtained a lease and Certificate of Lease in the year 2018. They also claim that they paid the requisite rents and rates as required. 29.It is on the basis of the foregoing that they contend that they have good title to the suit property. The evidence of the 1st and 2nd respondents was supported by the Land Registrar, who testified as DW-1. 30.The first issue that strikes us, is that despite asserting that they paid the sum of Kshs. 540,800/= by way of banker’s cheque, that banker’s cheque was never produced as an exhibit. You will not find in the evidence of the 1st and 2nd respondents any elaboration on the particulars of this alleged cheque, such as the date of the cheque, from which bank it was prepared, or the cheque number. The letter purporting to have forwarded the banker’s cheque does not have the particulars of the banker’s cheque at all and neither does the receipt. Indeed, when you look at the receipt, it is impossible to tell whether it is a receipt issued against a cash payment or a banker’s cheque payment, for the receipt does not bear any indication of it being issued against a banker’s cheque. We observe that the 1st and 2nd respondents, and even the 3rd respondents, appear to have kept their documents very meticulously and maintained copies of letters they allege to have exchanged. We wonder how, given this scrupulous archiving of other documents, it could have escaped the 1st and 2nd respondents to keep a copy of this banker’s cheque. If the 1st and 2nd respondents were so punctilious in maintaining their records, we do not see how they could have failed to preserve a copy of the banker’s cheque, which is the very document demonstrating that they paid for the suit property. It has not escaped us, that the 3rd respondent also has no record of such a banker’s cheque. If the 3rd respondent managed to keep all the documents and correspondences from the 1st and 2nd respondents safely in a file, and it is not claimed that there is any document that got lost from the file, it comes as a surprise that the 3rd respondent similarly does not have a copy of the alleged banker’s cheque. Having not seen the banker’s cheque, and there not being any elaboration of its particulars, we are not persuaded, on a balance of probabilities, that there was ever issued any banker’s cheque for purposes of settling the amount in the allotment letter dated 13th March 1996. We must be guided by evidence, and that being the case, there would be absolutely no basis in making a finding that there was ever issued a banker’s cheque for this amount, given that there is no banker’s cheque exhibited, and no endorsement in the receipt that it is issued against a particular banker’s cheque. We must hold, and do hold, that there is no sufficient proof demonstrated that the 1st and 2nd respondents ever presented a banker’s cheque in settlement of the monies noted in the allotment letter of 13th March 1996. 31.The other issue with this allotment letter, which we also find puzzling, is that it seeks no payment for survey fees, yet the land that was being allocated was identified as an unsurveyed residential plot. It will be observed that the part in the allotment letter for survey fees is blank, which is unusual, given the character of the land being allotted. The land was unsurveyed as at 13 March 1996, the date of the allotment letter of the 1st and 2nd respondents, and one would expect that there be included in the allotment letter a fee for survey, which is not the case. 32.Another critical issue that we find perplexing in the case of the 1st and 2nd respondents, is that despite claiming that they made payment on 18th March 1996, they received no lease and no certificate of lease shortly thereafter. Indeed, no lease and no certificate of lease was forthcoming for more than two decades, 22 years to be exact, since the alleged payment was made. The 1st and 2nd respondents, of course, claimed that they were following up on the lease and certificate of lease, and that they were informed that the file at the Lands office was missing. We have no evidence of the file having gone missing or any evidence of any pursuit of the lease or certificate of lease. There is certainly no correspondence to that effect, or anything else before us, to demonstrate that the file was lost, or any attempts were made to follow up on the issuance of the lease and certificate of lease. It is unusual for a person who has paid for allotment of land, not to write a single letter, expressing concern that his lease or certificate of lease is yet to issue. We are, in the circumstances, not persuaded that the 1st and 2nd respondents ever made any follow-ups in order to obtain the lease and certificate of lease and we are not persuaded of the excuse that the file containing the documents of the 1st and 2nd respondents had gone missing. 33.We have also had a careful look at the purported lease and certificate of lease that the 1st and 2nd respondents claim to be supporting their ownership of the suit property. What strikes us is that the lease provides that the lessor is supposedly ‘The County Government of Nairobi.’ Indeed, that lease spells out that: “The County Government ofNairobi in consideration of the sum of Kenya Shillings 450000 by way of stand premium paid on or before the execution hereof HEREBY LEASES to Geofrey Mungai Thiongo and Anthony Thairu Ngugi, hereinafter called the Lessee…” (emphasis ours). 34.The 1st and 2nd respondents were categorical that they were applying for a lease from the Government of Kenya, through the President of the Republic. They never at one time mentioned that they were applying for a Lease from the now defunct City Council of Nairobi, the predecessor of the County Government of Nairobi. The allotment letter does not indicate that the Commissioner of Lands was issuing it on behalf of the City Council of Nairobi or that the resulting lease would be a local government lease. Indeed, the land that was being allotted was not land owned by the City Council of Nairobi for allocation under the Local Government Act (now repealed) regime, but was land belonging to the national Government for allocation under the regime of the Government Land Act (now repealed). This was not a local government lease which would have required an application to, and a grant from, the City Council of Nairobi, but a Government lease from the President through the Commissioner of Lands pursuant to the provisions of the Government Land Act. Section 3 (a) of the Government Land Act, in particular, gave the President certain powers to allocate unalienated Government land within certain confines. We are totally unable to comprehend how the 1st and 2nd respondents now purport to hold a genuine lease, yet the lessor is said to be the County Government of Nairobi and not the Government of the Republic of Kenya. 35.To compound the issue, the Certificate of Title, which flows from the lease, now shows that the lessee is ‘the Government of the Republic of Kenya’. We are unable to reconcile how a lease which indicates the lessor as ‘The County Government of Nairobi’ resulted in a Certificate of Title that now has ‘the Government of the Republic of Kenya’ as lessor. No explanation was ever made on this critically important point. 36.A closer look at that lease also casts doubt as to when, if at all, it was registered. The first page of the lease which bears the Presentation Book and Date received for registration is not indicated and is blank. We nevertheless see a stamp bearing the date 12th July 2018 on the face of that first page. However, when you look at the last page in the lease exhibited by the 1st and 2nd respondents, it states that the date of registration is 17th December 2018. This variation in the dates between 12th July 2019 and 17th December 2018 is not explained at all. In addition, the copy of lease exhibited by the Land Registrar, which she stated is what is in their records, is stamped received on 17th December 2018. We thus ask ourselves what is this other stamp of 12th July 2018 on the face of the first page of the document. Moreover, the copy of lease produced by the Land Registrar is blank on the date of registration. We wonder if the 1st and 2nd respondents simply proceeded to insert a date in the copy of the lease that they exhibited, given that what is purported to be in the registry bears no registration date at all. 37.Another important aspect is the payment of land rates and land rents and the 1st and 2nd respondents did assert that they are the recognized rent and rate payers. We start with payment of land rent. It is trite that land rent is demanded by the lessor and is paid by the lessee. When it comes to long term Government leases, land rent is usually paid annually, and if not paid, the same attracts interest and penalties. Therefore, in a situation where one has not paid land rent annually as scheduled, and has accumulated unpaid land rent, when he eventually proceeds to pay, he will pay the land rent for the year together with accumulated interest and penalties for the unpaid years. If the lease was from the now defunct local authorities, land rent would be paid to the succeeding County Government, as the lessor of the land. We have not seen a single receipt indicating that the 1st and 2nd respondents have paid any land rent to any entity, be it the national or county government. In our earlier analysis, we saw that the Lease purportedly held by the 1st and 2nd respondents shows that it is a lease from the County Government of Nairobi which would mean that the County Government of Nairobi is the lessor. We have not seen any evidence of land rent paid to the County Government of Nairobi or indeed any demand for land rent from the County Government of Nairobi. Neither have we seen any demand for land rent from the national Government addressed to the 1st and 2nd respondents, nor have we seen any payment of land rent by the 1st and 2nd respondents to the national Government. We are, of course, not convinced that the County Government of Nairobi would be lessor and this is buttressed by the fact that when we look at the demand for land rates and rents issued by the County Government of Nairobi, the only charge is for land rates and nil for rent. This is in recognition of the fact that the County Government of Nairobi is not the lessor. But, as we have mentioned above, we see no demand for land rent addressed to the 1st and 2nd respondents from the national Government through the Ministry in charge of Lands. A lessor would demand land rent from the person that he has leased the land to. In this instance, the lessor is the national Government and thus you would expect the Ministry in charge of Lands to demand land rent from the 1st and 2nd respondents if indeed it recognizes them as its lessors. No demand for land rent was ever displayed by the 1st and 2nd respondents and neither did they exhibit any payment of any land rent to any entity. The only reasonable conclusion that one can reach is that the Government does not recognize the 1st and 2nd respondents as lessees of the suit property and that is why the Government has made no demand for land rent from them. 38.Turning to land rates, what the 1st and 2nd respondents exhibited was only a demand for land rates for one year only, that is the year 2022. We have not seen any demand for land rates or any payment for land rates for any other year. If indeed the 1st and 2nd respondents were the recognized rateable owners from 1996, then you would expect that they pay the land rates annually from that year, or they pay accumulated rates for the unpaid years at the time of registration of the lease. When we look at the demand for rates, it only shows rates for the year 2022 and penalties of Kshs. 6,113/= and no elaboration whatsoever as to what these penalties are for. We see no demand for the past years at all. We are not persuaded, in the circumstances of this case, that the display of a one year rates payment, for the year 2022, is sufficient to demonstrate ownership of the suit property since 1996. If at all the 1st and 2nd respondents were being issued with a lease in 2018, you would expect the Land Registrar to demand that they first settle the accumulated land rents and land rates before registration as prescribed by Sections 38 and 39 of the Land Registration Act (which direct the Land Registrar not to register instruments vesting an interest in land before first ascertaining clearance or land rent and rates) but we see nothing of the sort. 39.The 1st and 2nd respondents, in their suit, claimed to have been in possession of the suit property from 1996. They in fact pleaded that they filed suit because the appellants emerged in the year 2022 and attempted to take over possession from them. On the other hand, the 1st appellant also claimed to have been in possession from 1996. We are of the opinion that given our findings above on the genuineness of the title of the 1st and 2nd respondents, it is unnecessary for us to interrogate the issue of possession, for it will not change the finding that the title of the 1st and 2nd respondent is dubious, and the suit before us is not one for adverse possession. 40.The foregoing is sufficient to demonstrate that we are not persuaded as to the genuineness of the title of the 1st and 2nd respondents, and for that reason, the judgment of the Environment and Land Court is one for setting aside. Nevertheless, for completeness of record, we have opted to also analyze the documents of title of the 1st appellant in light of the arguments raised by the respondents over this title. 41.The 1st appellant contends that he was allotted the suit land through a letter of allotment dated 12th April 1996. In their submissions, counsel for the 1st and 2nd respondents urged that this land was not available for allocation for reason that it had already been allotted and paid for by their clients. Counsel referred to a dictum of Odunga J (as he then was) in the case of Republic v City Council of Nairobi & 3 Others (2014) eKLR where he expressed that: -“Once allotment letter is issued and the allottee meets the conditions therein, the land in question is no longer available for allotment since a letter of allotment confers absolute right of ownership or proprietorship unless it is challenged by the allotting authority or is acquired through fraud mistake or misrepresentation or that the allotment was out rightly illegal or it was against public interest. In other words, where land has been allocated, the same land cannot be reallocated unless the first allocation is validly and lawfully cancelled.” 42.We do not contest the above dictum. However, we have already addressed the issue of payment of the monies noted in the allotment letter of the 1st and 2nd respondents dated 13th March 1996 and concluded that there is no proof of payment. We therefore see no issue if the land was allotted to the appellant on 12th April 1996 for that is the day that the 30 days in the allotment letter of the 1st and 2nd respondents lapsed. It cannot be argued that the land was not available for allocation when it has not been proved that the 1st and 2nd respondents met the conditions thereof, in particular, payment of the amounts noted in the allotment letter. 43.We can draw parallels with the decision of the Court of Appeal sitting in Mombasa in the case of Waterfront Holdings Limited v Kandie & 2 others (Civil Appeal 88 of 2019) [2023] KECA 1223 (KLR) (6 October 2023) (Judgment). The brief facts of the case are that both the appellant and 1st respondent claimed title to the same land. The 1st respondent’s case was that he purchased the suit property from one Lemiso. Lemiso claimed that he was issued with an allotment letter on 1st April 1994, and a title on 12th May 1998. On the other hand, the appellant contended that he was issued with a letter of allotment on 6th June 1995; that on June 19, 1995, it made payments of Kshs 311,000/- towards the existing land rents, and procured a certificate of title on July 6, 1995. The title of Lemiso was issued on 12th May 1998. The Environment and Land Court, which heard the case in the first instance, entered judgment for the 1st respondent, inter alia on the basis that the doctrine of ‘first in time’ was in favour of the 1st respondent, given that the allotment to Lemiso had an earlier date; that the burden of proof shifted to the appellant to prove that the 1st respondent’s documents were forgeries, a burden which the appellant failed to satisfy; and that the 1st respondent was the one in possession of the suit property and the appellant only took its containers thereto upon the commencement of the investigations. On appeal, one of the issues that the Court of Appeal pointed out as being significant was the fact that Lemiso did not avail proof of payment of the stand premium. Allowing the appeal, the court pronounced itself as follows:“57.In the matter before us, the 1st Respondent failed to discharge the burden of proving that Lemiso, from whom he claimed his title, met the conditions in the letter of allotment and that by the time the process of re-allotment to the Appellant commenced, he had done so. Accordingly, the re-allotment of and issuance of title of the subject property to the Appellant cannot be faulted and the subsequent issuance of the Certificate of Lease to Lemiso was inconsequential. That title was not based on any letter of allotment, a prerequisite for allotment of un-alienated government land. It follows that the 1st Respondent could not acquire a valid title from Lemiso.” 44.In our case, assuming that there was a genuine allotment to the 1st and 2nd respondents, we do not find it irregular that the suit property was subsequently allotted to the 1st appellant, given the failure by the 1st and 2nd respondents to pay for the allocation. The allotment letter of the 1st appellant required payment of a total of Kshs. 568,990/=. The 1st appellant, unlike the 1st and 2nd respondents, exhibited a banker’s cheque for the sum of Kshs. 568,9990/= in settlement of the amount noted in the allotment letter. He also exhibited a receipt No. D534060 dated 29th May 1996, demonstrating that this banker’s cheque was acknowledged. Importantly, unlike the receipt of the 1st and 2nd respondents, this receipt is endorsed with the banker’s cheque number, thus confirming that it was actually issued against the banker’s cheque. 45.The 1st appellant did state that before his lease could be registered, he was asked to pay land rates to the City Council of Nairobi. He exhibited another banker’s cheque dated 26 June 1996, addressed to the Commissioner of Lands for Kshs. 25,744.50/= in settlement of the land rates. He testified that he was then issued with a lease and certificate of lease. We have seen the Certificate of Title which was exhibited. It is signed on 11th July 1996 by Wilson Gacanja, the Commissioner of Lands, in the presence of the Registrar of Titles. It is properly signed and attested. There is a search dated 20th January 2022 which confirms the existence of this title. There is also an electronic search dated 23rd November 2023, signed by the Acting Chief Land Registrar, yet again confirming the existence of this title. In the submissions of counsel for the 1st and 2nd respondent, it was urged that no searches between the years 1996 and 2018 were exhibited. The practice is that one conducts a search on need basis and one cannot be vilified for not displaying land searches for every year of ownership. 46.Regarding payment of land rent, the 1st appellant produced rent clearance certificates for the years 2020 and 2022. He also produced a receipt dated 19th April 2022, for Kshs. 94,760/=, being payment of land rent. These are critical documents coming from the Government. They demonstrate that the Government recognizes the 1st appellant as the lessee of the suit property and that is why the Government is demanding land rent from him, and receiving and acknowledging payment thereof. We already stated that the 1st and 2nd respondent exhibited nothing in form of a demand for land rent from the Government or any payment thereof. 47.On land rates, it is apparent that the 1st appellant was registered as the rateable owner by the City Council of Nairobi. We have seen a demand for rates issued in 2022, which contains not only the demand for land rates for that particular year, but also demands accumulated land rates of Kshs. 4,099,5450/= and penalties of Kshs. 255,770/=. We have seen the letter dated 2nd August 2022 from the 1st appellant requesting a waiver of some penalties, and another letter of even date from the County of Nairobi City approving the request for waiver. That letter urges the 1st appellant to pay a total of Kshs. 4,303,200/= to cover arrears of rates and the rates for the year. We see that in order to be in the good books of the County of Nairobi City, the 1st appellant paid the sum of Kshs. 4,303,200/=, which payment covered the demand for the year and the accumulated rates for the period in which he had not paid land rates. We have seen nothing of this sort from the 1st and 2nd respondents. Indeed, as we had earlier mentioned, the 1st and 2nd respondents only produced a payment of rates of one year, that is 2022, and our opinion is that they caused this to be generated in order to support the claim that they were the rateable owners. We saw no demand nor any payment or land rates for any other year, even for the year 2018, which is the year that the 1st and 2nd respondents contend to have become registered as proprietors, an aspect that we have already addressed. 48.When you compare the documentation of land rents and land rates displayed by the 1st appellant and that displayed by the 1st and 2nd respondents, it is not in doubt where the balance of probabilities lies. It is certainly in favour of the 1st appellant. 49.There are three other major issues raised by the respondents challenging the title of the 1st appellant. The first is that the allotment letter was paid for after the period of 30 days; the second is that the deed plan was generated prior to the survey of the land; and the third is that the Land Registry does not recognize the title of the appellant. We address these arguments as follows hereunder. 50.On the issue of late payment of the monies in the allotment letter, counsel referred us to several authorities, including the Supreme Court decision in the case of Torino Enterprises Limited V Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment). Counsel specifically referred us to a dictum in the said decision where the Supreme Court expressed itself as follows : -“While the allotment letter is dated December 19, 1999, Renton company limited made the specified payments on April 24, 2001, one hundred and twenty- seven (127) days from the date of the offer. It is not in question that Renton had not complied with the terms and conditions of the allotment letter. Therefore, the letter ought to have been deemed as lapsed at the time it purported to transfer the same to the appellant.”Counsel urged that even assuming the 1st appellant was lawfully allocated the suit property by the Government, his interests thereon lapsed by operation of law at the expiry of the stipulated 30 days, and there was thus no valid interest capable of being registered, or enforced, in his favour. 51.We have considered the above submissions and the Supreme Court decision in Torino Enterprises Limited vs The Attorney General. It is true that generally one needs to comply with the terms of allotment within the period specified. However, there is no law that specifically provides that if an allotment letter is not paid for within the specified period, then that allotment letter is null and void ab initio, and can never be acted upon, or that the Government is completely barred from accepting a late payment. We are not persuaded that in all cases where payment is made late, but unconditionally accepted by the Government before the Government has committed the same land to another person, then no title exists. Each case needs to be looked at depending on its special circumstances. If for example there is no payment by a first allottee within the stipulated time, and the property is then allocated to another person who satisfies the conditions of allotment, the contract between the Government and the second allottee will be completed, and the first allottee cannot now purport to make payment in fulfilment of the terms in the first allotment letter, given that the subsequent allottee will have already met the conditions of allotment and the contract between him and the Government will be complete on acceptance. However, if there is no second allottee, the Government has the prerogative of accepting a late payment, and if it does so, a title that is consequently issued would be a good title as the late offer will have been accepted. This would be akin to a waiver on the part of the Government. 52.We have seen no dictum in the case of Torino Enterprises vs Attorney General where the Supreme Court pronounced that in no circumstances can a late payment by an allottee be accepted. In fact, the ratio decidendi in that case, as we understand it, is that one cannot pass good title by transferring an allotment letter, and that the allotment letter must first be perfected into a title before a proper transfer of the property can be effected. This is what the Supreme Court expressed in the said case:Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling the conditions therein. These conditions include but are not limited to, the payment of a stand premium and ground rent within prescribed timelines. But even after the perfection of an allotment letter through the fulfillment of the conditions stipulated therein, an allottee cannot pass valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter. In Peter Wariire Kanyiri v Chrispus Washumbe & 2 others, Environment and Land Court Case No 603 of 2017; [2022] eKLR, Kemei, J held as follows:“[15].In the case at hand, in the absence of any title registered in the name of the plaintiff, the court is unable to hold that the plaintiff is the registered proprietor of the land. This is because the letter of allotment lapsed within 30 days and the same is of no legal consequences” [Emphasis added].61.While we agree with the general tenor of the learned Judge’s foregoing pronouncement, we remain uncomfortable with his inference that the allotment letter was of no legal consequence solely because it had lapsed after 30 days. We must reiterate the fact that an allotment letter in and by itself, is incapable of conferring a transferable title to an allottee. Put differently, the holder of an allotment letter is incapable of transferring or passing valid title to a third party on the basis of the allotment letter unless and until he becomes the registered proprietor of the land consequent upon the perfection of the Allotment Letter. It matters not therefore that the allotment letter has not lapsed (underlined emphasis ours). 53.It is discernible from the foregoing, that the point that the Supreme Court was pressing, is that an allotment letter is not similar to a title, to make it capable of transferring a proprietary interest. The allotment letter must first be perfected before interest in the property can be conferred. It will in fact be observed that the Supreme Court was uncomfortable with the inference that an allotment letter is of no legal consequence solely because it has lapsed after 30 days which expression we have underscored. 54.We reiterate that Torino Enterprises vs Attorney General was not, in our appreciation, a case where the Supreme Court was specifically interrogating the question whether a late payment of an allotment letter can fail to confer interest in the allotted land if the Government accepts it and issues title thereto. The main issue in Torino Enterprises vs Attorney General was not that the late payment did not confer registrable title, but whether the transfer of an allotment letter could confer property rights. The other aspect in Torino, which is not too dissimilar to what has arisen in this case, and which we canvassed earlier, is that the land in dispute in that case was owned by the City Council of Nairobi but the purported lease issued to the appellant was a lease by the Commissioner of Lands under the Government Land Act. The history of that land was that it was initially owned by Kayole Estates Limited who transferred the land to Nairobi City Council on 21 November 1971. However, the appellant’s predecessor (Renton Company Limited) obtained an allotment letter from the Commissioner of Lands purporting it to be unalienated Government land. The Supreme Court in its judgment, expressed itself as follows on this point:“We find that the defunct Nairobi City Council acquired valid title to the suit property from Kayole Estates ltd through purchase. Where does our finding leave Renton company ltd? It is worthy restating that the said company could only have acquired valid title from the Nairobi City Council, and not the commissioner of lands who had long been divested of authority to allocate the same” (emphasis ours). 55.By the same token, the lease issued to the 1st and 2nd respondent purporting to be from the County Government of Nairobi, cannot hold as the land being allotted was land under the Central Government and the Government Land Act. We need not belabour the point at this stage, as we have exhaustively discussed it, but we deemed it fit to reiterate it, now that the respondents contend that the case of Torino is in their favour, when clearly, it is not. 56.We were at the level of addressing the late payment made by the appellant and we need to get back to it. To settle the issue, it is correct that payment by the 1st appellant was made after the 30 days stipulated in the allotment letter. The Government, however, had the prerogative to accept or reject the late payment. In this instance, the Government accepted the late payment unconditionally thus waiving its right to insist on timely payment. It was therefore not irregular for the Government to issue title to the 1st appellant against the late payment, for it had not committed the land to anybody else who had made good the terms of allotment. The Government did not move to revoke the allotment letter because of the late payment, or issue a subsequent allotment letter to a third party, but instead proceeded to readily accept the late payment and issue title against it. Consequently the 1st appellant was registered as proprietor on 11th July 1996 and was duly issued with a Certificate of Title under the Registration of Titles Act (repealed in 2012 by the Land Registration Act). The title issued under the said Act was protected by dint of Section 23 of the said Act which was drawn as follows :23.(1)The certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party.(2)A certified copy of any registered instrument, signed by the registrar and sealed with his seal of office, shall be received in evidence in the same manner as the original. 57.Without prejudice to our finding that no genuine title was ever issued to the 1st and 2nd respondents, having issued title to the 1st appellant under the Registration of Titles Act, the Government could not issue a second title to the 1st and 2nd respondents in 2018, more than 20 years later, to overlap the already existing title in favour of the 1st appellant. 58.The other point raised by counsel for the 1st and 2nd respondents regards the survey of the land vis-à-vis the time of the allotment, the payment thereof, and the issue of title. It was questioned how come the deed plan is dated 28th April 1996 yet the payment of the land was made on 29th May 1996 and it was submitted that survey could not have preceded the payment. It is true that the deed plan is dated 28th April 1996. A deed plan would of course be the product of a survey. The survey in our case was conducted through survey plan F/R No. 300/9. We observe that this survey plan was authenticated on 22nd April 1996.A careful analysis of that survey plan, will disclose that it was not a specific survey for this one parcel of land only, but was one survey for the parcels LR Nos. 21923-21940. It is apparent that the Government opted to combine the survey of several parcels of land rather than undertake an individual survey of each parcel of land in that vicinity. The allotment letter to the appellant was issued on 12th April 1996, prior to the survey, and it already outlined payment of Kshs. 1,250/= as survey fees. It would appear that the Government made the decision to proceed with the survey of the suit property alongside the other plots in that series without necessarily waiting for this payment. Again, there is nothing illegal or irregular in this, the probability being that the Government found it convenient to survey several parcels of land at the same time. That being the case, the argument that the title of the 1st appellant is irregular because payment was made after the deed plan was already drawn falls on its face, as it is clear to us that the Government embarked on a one-off survey of several parcels of land within the same vicinity. 59.The last major issue raised is that the title of the 1st appellant is not recognized by the Chief Land Registrar. It is indeed true that DW-1, a Land Registrar, testified that the records they have in their registry are those of the 1st and 2nd respondents, and they have none in favour of the 1st appellant. That may be significant evidence, but a Land Registrar’s evidence is not always conclusive proof of genuine ownership of title. The evidence of a Land Registrar must be seen in light of the other available evidence. The stark reality is that owing to rampant fraud, it may happen that false records are planted in the Land Registries and genuine records uprooted therefrom, so as to make it appear that the fraudster is the holder of the genuine title. What the court needs to do is assess the evidence of the Land Registrar alongside other evidence and come to an independent determination after giving due regard to the whole of the evidence presented. If that were not the case, all that a fraudster would need to do is to conspire with a rogue land officer to plant his false records in the registry, and having only the false records in his custody, a Land Registrar may affirm that the fraudster’s title is the genuine one, and by that word alone, disentitle a genuine title holder of his land. A court has to have in mind that the Land Registrar is a custodian of records and he could be in custody of false documents of title. That is why it is important for the court to analyse the evidence of the Land Registrar together with other evidence and reach its own conclusion on the person that the totality of the evidence points at being the genuine title holder. It is more or less similar to the manner in which the court assesses expert evidence. In Ndolo v Ndolo (Civil Appeal 128 of 1995) [1996] KECA 209 (KLR) (10 May 1996) (Judgment) the Court elaborated that :…as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say"-“Because this is the evidence of an expert, I believe it." 60.Flowing from the above, this court is not bound by the opinion of the Land Registrar, that it is the title of the 1st and 2nd respondents which is the proper title. The totality of the evidence provided brings us to the inescapable conclusion that it is the 1st appellant who is actually the genuine title holder of the suit land and that the purported title of the 1st and 2nd respondents is a fraud. At the very least, between the title of the 1st appellant and the 1st and 2nd respondents, we find that the better title is that of the 1st appellant. 61.We therefore allow this appeal. We set aside the decision of the learned judge of the Environment and Land Court delivered on 30th April 2024 that declared the 1st and 2nd respondents as the legitimate title holders of the suit property. The 1st appellant had a counterclaim seeking various declaratory orders and general damages for trespass. We issue a declaration that the 1st appellant is the lawful and legitimate proprietor of the suit land. We issue orders that the purported title of the 1st and 2nd respondents is not a genuine title and the same is hereby nullified. We order the Chief Land Registrar to proceed to cancel and expunge the purported title of the 1st and 2nd respondents from the records of the Land Registry. We further order the Chief Land Registrar to reconstruct the land records and register, using the documents provided by the 1st appellant, which demonstrate the 1st appellant as the title holder. We order the 1st and 2nd respondents to deliver immediate vacant possession of the suit property to the 1st appellant and issue an order of permanent injunction barring the 1st and 2nd respondents or anybody claiming under their purported title, from entering, being upon, utilizing, developing, or in any other way interfering with the 1st appellant’s possession of the suit property. In his counterclaim, the 1st appellant had a prayer for special damages, but no proof of the same was provided, and we make no orders as to special damages in his favour. He however had a claim for general damages for trespass which are in the discretion of court. We are moved to make an award of Kshs. 1,000,000/= in favour of the 1st appellant against the 1st and 2nd respondents jointly and/or severally, as general damages for trespass, the same to attract interest at court rates from the date of the judgment of the ELC until settlement in full. The appellant shall also have the costs of the suit before the ELC and the costs of this appeal against the 1st and 2nd respondents. We so order. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026JOEL NGUGI………………………………………………………JUDGE OF APPEALNDUMA NDERI………………………………………………………JUDGE OF APPEALMUNYAO SILA………………………………………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR