Kanga & another v Bathawab & 3 others (Environment and Land Appeal E071 of 2024) [2026] KEELC 3033 (KLR) (13 May 2026) (Judgment)

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MALINDI** **ELC APPEAL NO. E071 OF 2024** **SHAHIBU ALI KANGA………………………………...1ST APPELLANT** **ALWI ALAWI ALWY …………………………………2ND APPELLANT** **=VERSUS=** **ABDALLA BATHAWAB…………………………...1ST RESPONDENT** **NJERU NJUE COUNTY SURVEYOR LAMU. …2ND RESPONDENT** **COUNTY LAND REGISTRAR, LAMU ………….3RD RESPONDENT** **HON. ATTORNEY GENERAL. ……………………4TH RESPONDENT** ***(Being an Appeal from the Judgment and Decree of the Chief Magistrate's Court at Lamu, (Hon. Martin Wachira, dated and delivered on 20th November, 2024, in Lamu Chief Magistrate's Court, ELC Case No. E002 of 2023)*** **JUDGMENT** 1. The Appellants, Shahibu Ali Kanga and Alwi Alawi Alwy, hereby express their dissatisfaction with the judgment rendered by the Chief Magistrate’s Court in November 2024 at the Lamu Chief Magistrate’s Court, presided over by Hon. Martin Wachira. They formally appeal to this Honorable Court against the portion of the decision dismissing their suit, citing the following grounds for appeal: 2. **The learned Magistrate erred in law and in fact by failing to find that the authority responsible for allocating public land is the National Land Commission, not the County Government of Lamu.** 3. **The learned Magistrate erred in law and fact by failing to find that the National Land Commission confirmed the suit property was allocated to the Appellants rather than the 1st Respondent.** 4. **That the Learned Magistrate erred in law and fact by failing to find that even though the 1st Respondent’s title was issued first in time, the same did not emanate from the National Land Commission, the allocating authority.** 5. **That the Learned Magistrate erred in law and fact by canceling the Appellants' title, even though it was the valid title when all the circumstances are considered.** 6. **That the Learned Magistrate erred in law and in fact in arriving at a decision that was wholly against the weight of the evidence, the law, and justice. As such, the aforesaid decision is unsafe.** 7. Reasons Wherefore: It is proposed to ask this Honorable Court for the following orders: 8. **The appeal herein is permitted by setting aside the Judgment and Decree of the Chief Magistrate’s Court at Lamu, Hon. Martin Wachira, dated and delivered on 20th November, 2024, in Lamu Chief Magistrate’s Court ELC Case No. E002 of 2023, and, in substitution thereof, allowing the Appellants’ suit with costs.** 9. **The costs of this appeal be provided for.** 10. **Any other relief and/or orders that this Honorable Court may deem fit to grant.** 11. The appeal was canvassed through written submissions. I acknowledge with much appreciation the submissions from counsel for the parties, as they went a long way to assist the Court in reaching its verdict on the grievances raised in this appeal. 12. The Appellants hold a freehold title, Lamu/Mokowe Farms II/2312, issued on December 20, 2021, while the 1st Respondent holds a certificate of lease, L.R.No.12852/245, for Grant CR.55920, issued on April 24, 2012. 13. By a plaint dated 6th February, 2023, the Appellants herein sued the 1st Respondent for trespass. The averments in the Plaint were that the Appellants (then Plaintiffs) were the registered proprietors of all that land known as Lamu/Mokowe Farms II/2312, measuring approximately 0.702 Ha and situated in the Mokowe area of Lamu County. The Plaintiffs stated that they had long enjoyed occupation and possession of the said parcel, a right dating back to before registration. 14. The Plaintiffs averred that sometime in the year 2022, the Defendant (1st Respondent herein) encroached upon the said land and erected two semi-permanent structures and a fence. That these activities were without any color of right or permission. 15. The Plaintiffs, after unheeded efforts to resolve the dispute amicably, sued the 1st Respondent herein, seeking injunctive relief against him and/or his agents or proxies, as well as an eviction order against him. 16. In response to the Plaintiffs, the 1st Respondent herein filed a Statement of Defense and Counter-claim dated 6th April 2023, denying the averments in the Plaintiffs' claim. The Statement of Defense, at paragraph 3, asserted that the Plaintiffs' title was acquired fraudulently through dubious, corrupt, and illegal acts committed by the Plaintiffs in collusion with Government officials, specifically the Land Registrar of Lamu and the County Survey Office, particularly Mr. Njeru Njue, then serving as County Surveyor of Lamu County. 17. At paragraph 5 of the Statement of Defense, trespass was denied, and it was further emphasized that the Plaintiffs' title was obtained unlawfully and fraudulently from the parcel of land belonging to the 1st Defendant, known as Grant No. L.R 12852/245 and C.R No. 55920, measuring approximately 1.521 hectares. Specific details of the alleged fraud were outlined in paragraphs 5 (a), (b), and (c) of the Statement of Defense. The 1st Respondent lodged a Counter-claim against the Appellants, as well as against Njeru Njue (County Surveyor of Lamu), the Land Registrar of Lamu, and the Honorable Attorney General. Subsequently, the 1st Respondent amended the Counter-claim to include three additional Defendants: The County Government of Lamu, the Director of Survey of Kenya, and the National Land Commission. 18. The 1st Respondent herein, in the Counter-claim, averred to be the registered owner of all that parcel of land known as L.R No. 12852/245-Lamu of Grant No. CR 55920 - a leasehold. He further stated that, together with the 1st Appellant, he occupied government land in or around the year 1997, and that they later applied to the government for allocation of the same on a leasehold basis in the year 2010. He further averred that they (he and the 1st Appellant) were issued with allotment letters dated 10th June, 1997. 19. The 1st Respondent further averred that they paid for each parcel of land on January 19, 2011, and that upon payment, the Commissioner of Lands directed the then District Land Officer to conduct a site visit and prepare a report on the ground status to ascertain whether there were occupants and any improvements thereon. It was further averred that the said District Land Officer conducted a site visit, recorded his observations on the ground, and stated that the Physical Planning Officer-Lamu had informed him, by letter, of the existence of a PDP. 20. Further, the 1st Respondent averred that in October 2011, the Commissioner of Lands directed that a Deed Plan be prepared for the two parcels of land. The 1st Respondent then continued to state that the 1st Appellant colluded with the 2nd Respondent herein to re-survey his parcel of land, thereby causing an overlap or double survey, which created or hived off the portion of 0.702 Hectares, which he termed an illegal and fraudulent venture. Particulars of fraud against the Defendants in the Counter-Claim were jointly enumerated. They were essentially rehashed, as they were the same ones stated in the Statement of Defense. Thus, the 1st Respondent sought prayers, inter alia, an order directing the Land Registrar to recall the Title Deed of the parcel of land known as Lamu/Mokowe Farms 11/2312 for cancellation. 21. The Appellants filed a Reply to Defense and a Defense to Counter-Claim on 2nd May, 2023 Notably, it was averred that, contrary to the 1st Respondent’s allegation, the County Government of Lamu conducted the survey and adjudication of the suit property in liaison with the National Government, not by Njeru Njue, and that if Title Deeds already existed over the suit property, no further survey would have been conducted. It was also averred that the 1st Respondent had been tasked with the exercise of “procuring registration of Plots A and B.” The particulars of fraud were strictly denied. 22. The Honorable Attorney General entered an appearance for the 2nd and 3rd Respondents herein and filed a Statement of Defense dated 6th September, 2023, in response to the 1st Respondent's Counter-Claim. The Honorable Attorney General averred that the 2nd and 3rd Respondents herein were not involved in the allocation of the Plots, as the allocation was made by the County Government of Lamu acting in concert with the National Land Commission, and that the Appellants were on the list of beneficiaries for the parcel of Land known as Lamu/Mokowe Farms II/ 2312. The allegations of fraud were denied, and the 1st Respondent herein was put to strict proof thereof. Equally, it was averred that the allegations of fraud were time-barred. 23. The Appellants' suit (main suit) was heard on 15th March, 2024, with five (5) witnesses giving evidence in support of the claim. 24. PW-1 was the 1st Appellant, Shahibu Ali Kanga; PW-2 was Athman Juano Dido; PW-3 was Shee Abdalla Sheemote; PW-4 was Abdalla Abasi Ali. PW-5, who gave evidence on diverse dates, was Njeru Njue. Upon cross-examination regarding the Deed Plan of 19th October, 2011, he stated he could not authenticate it as genuine or fake. He confirmed that Deed Plans are kept by the Director of Survey in Nairobi. On re-examination, he confirmed that the Director of Survey approved the maps for Mokowe Farms. 25. The 1st Respondent's case was heard on 19th September, 2024, with the Defense calling three (3) witnesses. DW-1 was Abdalla Mohamed Said, alias Abdalla Bathawab; DW-2 was Peter Maluki Kimanzi; and DW-3 was Alfred Mwarabu Ndau. 26. DW-1 gave evidence that he had never seen Njeru Njue survey the land. He confirmed that he applied for a grant in 2010 and received a letter of allotment in 1997. Upon cross-examination by Mr. Ojwang for the Attorney General, he confirmed that the Mombasa Land Registry had issued his title and that he had not sued the Mombasa Land Registry. 27. DW-3, Alfred Mwarabu Ndau, a land survey assistant, stated that there was an overlap of 2 maps over the same property, the survey plan for L.R 12852/245 and Land No. Lamu/Mokowe Farms 2314, 2313, and 2312. He confirmed that the Mokowe Farms titles came after regularization by the Department of Land Settlement. That, in fact, beneficiaries must be in occupation to be registered as owners during regularization. 28. Arising from the record of appeal and the parties' submissions, the issues I frame for the determination of this Court are which of the warring parties owns a firmer title than the other, in view of the two conflicting titles that were at the center of the trial in the Lower Court—the issue as to costs. 29. The role of the first appellate court in Kenya (specifically, the High Court handling Magistrates' Court decisions) is to re-assess the evidence, judge witness credibility, and review the legal application. It determines whether the trial court’s verdict was factually and legally justified. Unlike second appellate courts, which typically focus only on legal issues, the first appellate court performs a complete re-examination of the case on paper. It must review the entire trial record, re-assess the evidence, analyze conflicting testimonies, and reach its independent conclusions. 30. The Trial Court, after evaluating the evidence before it and considering the two conflicting titles, a leasehold acquired first in time and a freehold acquired later in time, concluded that although no fraud was proved against the Appellants in the acquisition of title, the agencies that prepared the 2nd title knew, or ought to have known, that the Respondent held another title, yet went ahead and created a title on top of another. He ordered the cancellation of the Appellants' title as having been unprocedurally acquired. 31. Parties extensively submitted on the manner of acquisition and allocation of Government land, the requisite process for acquiring title, and related issues, generally citing various relevant judicial authorities. 32. Mr. Mwanzia, for the Appellant, is of the view that the land held by the 1st Respondent and the lease did not meet the critical stages of allocation and acquisition. He cited relevant authorities, notably **Dina Management Limited v County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR)**, **Torino Enterprises Limited v Hon. Attorney General (Petition 5 (E006) of 2022)**, **Gathondu (As Administrator of the Estate of the Late Thumbi Kariuki) & 3 others v Registrar & 7 others (Civil Appeal E505 & E519 of 2020) (consolidated) [2024] KEСА**., **Nelson Kazungu Chai & 9 Others vs. Pwani University (2014) eKLR**, and **African Line Transport Co. Ltd vs. Attorney General, Mombasa, HCCC No. 276 of 2003 (2007) eKLR.** 33. According to Mr. Mwanzia, for the Appellants, the main point in those authorities regarding the acquisition of the lease held by the 1st Respondent was that the allotment was never perfected; payment was made much later. He produced no PDP, indicating that this area had not been planned or that a PDP had not been issued before allocation. At best, the 1st Respondent's title was infirm. 34. He stated that the title held by the Appellants was issued as a freehold following regularization by the County Government of Lamu and the National Land Commission, supported by evidence. He confirmed that all proper procedures had been followed. 35. He faults the trial Court for canceling his clients' title without making a finding on indemnity, perhaps for the 1st Respondent's, since his clients' title was clean and his clients had not been fraudulent in the acquisition of the land in question. 36. On his part, Mr. Omwancha, for the 1st Respondent, asserts that the trial Magistrate's analysis was sound. After considering the ground report, he found that the Appellants' title overlapped that of the 1st Respondent, which was first in time. He considers the appeal an abuse of the Court's process and maintains that no legal or factual basis has been laid to overturn the findings of the trial Magistrate. 37. I have reassessed and reevaluated the evidence presented to the trial Court. The trial Court framed the issues for determination as follows: whether the Plaintiff's title to Lamu/Mokowe Farms II/2312 was obtained illegally, unprocedurally, and/or through fraud; whether the Plaintiff's title, Lamu/Mokowe Farms II/2312, overlaps the 1st Defendant's land, L.R. No. 12852/245, and, if so, which title should be upheld; whether the Plaintiff has proved his case against the Defendant; whether the counterclaim has been proved; and who bears the costs of the suit. 38. In his analysis of the evidence presented before him, he found that on fraud: ***“It is the defendant who alleged that the title deed issued to the plaintiff was obtained fraudulently, through the collusion with the 3rd to 8th defendants in the counterclaim. The defendant had the burden of conspired said allegations. However, I don't find cogent evidence to prove that the defendant conspired to have the title held by 1st defendant to the counter-claim issued to him. Pw5 Moses Njue, who is also named the 3rd defendant, testified that it is not the 1st defendant alone who was issued with freehold title deeds for Mokowe farms. The evidence shows that the exercise was carried out by the Lamu County Government through the regularization program.”*** 1. Whether the Plaintiffs’ title, Lamu Mokowe Farms II/2312, overlaps the 1st Defendant's land, L.R. No. 12852/245, and, if so, which title should be upheld he found: ***”Shahibu Ali Kanga admitted in paragraph 11 of the statement of defence to counterclaim that there were two allotment letters but stated that they were pegged on verbal agreement between the two as regards procuring the registration of the said properties. Abdalla Bathawab claimed that Shahibu Ali Kanga sold his part of the land known as plot A to Abubakar Muhdhar Shee. Shahibu Ali Kanga admitted in his statement of defence to counter claim that he sold part of his land but said he only sold 2.5acres of the alleged plot A. According to survey report dated 10th October 2017, it is clear that L.R No.12852/245 and L.R No.12852/244 are distinct parcels which do not overlap. My view based on the evidence is that the plaintiff (Shahibu Ali Kanga) and defendant (Abdalla Bathawab) were allocated plot no A and B through letters of allotment dated 10/6/1997. Thereafter, the defendant (Abdalla Bathawab) followed up and was issued with a leasehold certificate of title, L.R. No. 12852/245 - Lamu, of Grant CR 55920. It is not clear whether the plaintiff followed up on his part of the plot marked A and obtained a title from Lamu County to the same. However, he now holds a freehold title LAMU/MOKOWE FARMS II/2312 which he claim was issued through land regularization by the County Government of Lamu. According to the ground report filed by the defendant (Abdalla Bathawab) dated 23d May 2024, it is clear that land no LAMU/MOKOWE FARMS II/2312 and some other freehold titles overlaps leasehold titles LR No.12852/245 and L.R No.12852/244. The report confirmed that the plaintiff's freehold title is located where the defendants land is on the ground. Therefore, issue number three is answered in the affirmative that the plaintiff's title Lamu Mokowe Farms II/2312 overlaps the 1st defendant's land L.R No.12852/245.”*** 1. He concluded that, in view of the overlap, there can never be two titles over the same land: ***“Having found that the two titles overlap, the court must determine which of the two title documents should stand. The law on registration of land in Kenya does not envisage a situation where two different titles over land can be issued over the same land. Before issuing a new title over a land where another title already exists, the earlier title issued must be or ought to be cancelled first.”*** 1. Guided by the decisions in **Gitwany Investment Ltd v Tajmal Ltd & 3 Others (2006) eKLR and Wreck Motors Enterprises v The Commissioner of Lands and Others, Civil Appeal No. 71 of 1997**, he concluded that when there are two legally(sic) acquired titles, the first in time prevails. He shifted the blame to government agencies that create a later title over the former, leading to chaotic titling. 2. The trial Court found that the Plaintiffs’ title, Lamu Mokowe Farms II/2312, had been allocated from an existing title held by the 1st Defendant and that the 1st Defendant had not encroached on the Plaintiffs’ land. The allocation failed to consider the 1st Defendant's rights over land already allocated to him. The Plaintiffs produced minutes of a Mokowe Land Committee meeting held on 08/10/20. The trial Court concluded that the 1st Defendant was not present at the meeting and, as such, was not heard concerning his claim to ownership of the suit property. 3. On the counter-claim, the trial Court found that LR No. 12852/245 is the legitimate title and should stand. That the order canceling the title deed for Lamu Mokowe farm II/2312 was appropriate referring to Section 80(1) of the Land Registration Act No. 3 of 2012, which provides that: ***"Subject to subsection (2), the court may order the rectification of the register by directing that any registration be canceled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake."*** 1. In his view, the title deed for Lamu Mokowe farm II/2312 was made/issued by mistake, not by the Plaintiff, but by the agencies involved in the allocation and registration process. 2. Evaluating the evidence on record and the history of the two titles, the one held by the 1st Respondent is a leasehold. He obtained it through an allocation process and was finally issued a lease. There was much exasperation during the trial about the 1st Respondent's late compliance in perfecting the allotment and the subsequent issuance of a lease to him, which was true, but he perfected it anyway. 3. A PDP was mentioned at the trial and was said to serve as the basis for the allotment and the issuance of the lease. It was for PW5, Mr. Njue, to disapprove the displayed PDP, since it originated from their department, rather than to say he could not confirm whether it was authentic or fake. In addition, a ground report found the 1st Respondent to be fully settled on the suit property. It noted an overlap arising from the subsequent creation of the second survey and title. This should not have happened before the existing title was extinguished. 4. The regularization process seems to have created an overlap with several other titles within the Mokowe area. It was not well guided; it ought to have extinguished the existing titles first. 5. I will then find that the Appellants, having been allocated title on top of an existing one, were subject to an irregular and unprocedural process, as correctly held by the trial Court. 6. In case of any indemnity, it is the Appellants and not the 1st Respondent to pursue the same. 7. For the foregoing, it is my finding that the appeal has no merit. It is dismissed with costs. **Dated, signed, and delivered virtually in Nyeri on this 13th day of May, 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Ms. Gatimu for the Appellant** **Dennis: Court Assistant** **In the Absence of:** **Mr. Omwancha for the 1st Respondent** **Mr. Ojwang for the 2nd and 4th Respondents**