https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3464

Kigondu & 4 others v Nairobi City County & 6 others (Environment and Land Case 1430 & 657 of 2016 (Consolidated)) [2026] KEELC 3464 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEELC 3464 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 1430 & 657 of 2016 (Consolidated) OA Angote, J June 5, 2026 Between Andrew Giceha Kigondu Plaintiff and Nairobi City County 1st Defendant OMari Idi Omari 2nd Defendant Omari Juma 3rd Defendant Omari Idi Hashii 4th Defendant As consolidated with Environment and Land Case 657 of 2016 Between Omari Idi Omari 1st Plaintiff Omar Juma 2nd Plaintiff Abubakhar Idi Hashil 3rd Plaintiff Omari Idi Hashil 4th Plaintiff and Andrew Giceha Kigondu 1st Defendant Peter Ndegwa Ngugu 2nd Defendant Samsom Owiti 3rd Defendant Judgment 1.Before this court for determination are two consolidated matters, ELC 1430 of 2016 and ELC 657 of 2017 ELC 1430 of 2016 2.Vide a Plaint dated 14th November, 2016, the Plaintiff seeks the following reliefs:i.A declaration that the Plaintiff is absolute proprietor of all that land known as L.R. No. 36/VII/758.ii.An order directing the 1st Defendant to issue the Plaintiff with a lease for L.R. No. 36/VII/758 (Original 36/VII/619/140 situated at Pumwani re-development scheme Nairobi (B6-1D).iii.Costs of the suit. 3.The Plaintiff’s case is that at all material times he was the owner and/or proprietor of all that parcel of land known as L.R No. 36/VII/758, originally L.R No. 36/VII/619/140, situated at Pumwani Redevelopment Scheme Nairobi (B6-1D) (hereinafter the suit property), while the Defendant was the allottee and/or lessor thereof. 4.He contended that since 1969 or thereabouts, and with the consent, authority and approval of the 1st Defendant, he had occupied the suit property measuring approximately 0.0197 together with the building erected thereon and that he enjoyed exclusive possession of the suit property from that time until January 2016, when the 1st Defendant, without any provocation or colour of right, deleted his name from its systems. 5.According to the Plaintiff, on diverse dates, he made applications for registration of L.R No. 36/VII/758 into his name, but the same was frustrated by the 1st Defendant which fraudulently hatched a plan to dispossess and dislodge him from ownership of the suit property by creating bottlenecks and raising imaginary complaints touching on his leasehold interest. 6.In pursuit of the fraudulent motives, he stated, the 1st Defendant has since 24th March 2015, barred him from its systems and thereafter refused to attend to him in relation to the registration of the suit property. He urged that he has been paying rates as required by the by-laws, undertook a survey-re-establishment, issued a deed plan, lease and subsequent registration but the 1st Defendant halted the process without any explanation. 7.The Plaintiff asserted that the 1st Defendant’s actions constitute fraud, the particulars of which include deleting his name from their computer systems without notice or provocation; setting up imaginary and undisclosed complaints against L.R No. 36/VII/758 with a view to grabbing the same; knowingly misrepresenting the truth; intentionally concealing material facts through corruption and fraudulent tendencies to his detriment; and intentionally refusing to issue him with a lease certificate in respect of the suit property. 8.The 1st Defendant filed a defence on 24th May, 2019. It denied the assertions as set out in the Plaint stating that the Plaintiff, without any colour of right and in a move to dispossess it, presented false documents seeking to have the suit property transferred to him. 9.It was averred that in the course of processing the Plaintiffs’ application for registration, it discovered that the documents presented were not ownership documents but merely rental payment statements. This discovery led to the rejection of the application. 10.According to the 1st Defendant, the Plaintiff has at all material times been a tenant in the premises and therefore had no legal basis or entitlement to initiate an application for ownership registration. 11.The 2nd -5th Defendants filed a defence on 24th February, 2019. They denied the allegations set out in the Plaint stating that the Plaintiff was at all material times their tenant and that of their predecessors in title. 12.They asserted that the attempts by the Plaintiff to obtain title over the suit property is fraudulent and an attempt to acquire the same before it could be transmitted to them in the estates of Fatuma Binti Sheikh and Omar Idi Omari. 13.Further particulars of attempted fraud were set out as: the Plaintiff neglecting to pay rent; acquiring a rate or rent card in his name for a rented premises; attempting to falsify records at the 1st Defendant’s office; owning a survey plan; neglecting to include the Defendants in his dealings; and filing this suit without involving them. ELC 657 of 2017 14.Vide the Plaint dated 12th October, 2017, the Plaintiffs herein seek the following reliefs:i.The Defendants do hand over to the Plaintiffs vacant possession of the flats each one occupies on L.R 36/VII/758 or in default be evicted.ii.The Defendants be ordered to pay arrears of rent that will be assessed at the hearing hereof.iii.Costs and interests at court rates. 15.It is the Plaintiffs’ case that they are the registered owners of a leasehold over all that parcel of land known as L.R No. 36/VII/758 on which a housing unit with four two-bedroom flats is erected; that they acquired ownership of the said lease as beneficiaries and trustees of other beneficiaries of the estate of Idi Omari, who was the original lessee and that the Defendants were tenants in the flats erected on the suit premises and have failed to pay rent since May 1999, taking advantage of the prolonged succession cause. 16.Each Defendant, it was urged, owes the estate a sum of Kshs. 164,000 as at January 2011 and has continued to accrue monthly rent arrears at the rate of Kshs 15,000 from January 2011 until payment in full and that the Defendants have become aggressive and failed to acknowledge their rights as their landlords. 17.Despite demands, he urged, the Defendants have refused to comply and that there has been no other suit in respect to the same parcel save for Nairobi Rent Restriction Tribunal Case Number 38 of 2012, which was stayed on 23rd February, 2015 following a challenge to the jurisdiction of the Tribunal on matters concerning determination of ownership. 18.The 1st Defendant filed a defence and counterclaim on 5th December, 2017. Vide the defence, save for his description, he denied all the assertions as set out in the Plaint. He explained vide the counterclaim that he is, and has at all material times been the owner and/or proprietor of all that parcel of land known as L.R No. 36/VII/758, originally L.R No. 36/VII/619/140, situated at Pumwani Redevelopment Scheme Nairobi (B6-1D). 19.He contended that since 1969, and with the consent and approval of the Nairobi City County, he occupied the suit property together with the buildings erected thereon and enjoyed exclusive possession until January 2016, when the Nairobi City County deleted his name from its systems without justification. 20.According to the Plaintiff, on diverse dates he made applications for registration of L.R No. 36/VII/758 in his name, but the same was frustrated by the Plaintiffs together with the County due to ulterior motives, and that Nairobi City County has since 24th March, 2015, barred him from its systems and refused to attend to him in relation to the registration of the suit property. 21.He urged that he has been paying rates as required by the by-laws and survey-re-establishment had been done for the issuance of the deed plan, lease and subsequent registration but the County halted the process without any explanation. He further alleged that the Plaintiffs engaged in fraud, the particulars of which included colluding with the Nairobi City County to remove his name from the system, registering fictitious and undisclosed complaints against his parcel, knowingly misrepresenting the true facts, concealing material information through corrupt and fraudulent dealings, deliberately blocking the issuance of the certificate of lease over the suit property, and fraudulently procuring a lease in respect thereof. 22.He seeks vide the counterclaim:i.A declaration that the Plaintiff is the absolute proprietor of all that land known as L.R 36/VII/758.ii.An order revoking and cancelling the Defendants lease for L.R 36/VII/758(Original 36/VII/619/140) situated at Pumwani re-development scheme Nairobi and the said lease be issued to the Plaintiff.iii.Costs of the suit.iv.Any other relief that the court may deem just and fit to grant. 23.The 2nd Defendant filed a defence on 5th December, 2017. He denied the assertions as set out in the Plaint stating that he is not a tenant of the Plaintiffs but a tenant of the 1st Defendant and hence owes the Plaintiffs no rent. He urged that the suit be dismissed. 24.The 3rd Defendant filed a defence on 14th December, 2017. He denied the assertions as set out in the Plaint stating that the original landlady of the suit property was one Fatuma Binti Sheikh and thereafter one Juma Hassan, who introduced himself as the representative of Fatuma Binti Sheikh and collected rent for her. 25.According to the 3rd Defendant, the Plaintiffs have concealed the fact that there have been several cases regarding the suit premises in the Rent Restriction Tribunal to wit, 907 of 1997; 314 of 1998; 172 of 2001 and 38 of 2012; that on 20th November, 2001, the Tribunal ordered rent to be deposited in the Tribunal in Rent Restriction Case No. 314 of 1998 and that he complied and deposited the standard rent of Kshs. 500 per month from 2001 to 2006 with the rent registry, supported by a deposit card. 26.He urged that this court has no jurisdiction to order vacant possession of the suit premises since the matter falls under the Rent Restriction Act, which provides the applicable procedure and circumstances under which the High Court may intervene. He further contends that the Plaintiffs had not complied with the provisions of the Rent Restriction Act so as to warrant intervention by the High Court and denied receiving any notice of intention to sue. 27.The 3rd Defendant further stated that he intends to seek leave of the court to produce a Valuation Report prepared by a qualified valuer who had conducted the valuation but was presently indisposed, thereby rendering the 3rd Defendant unable to access the report at that time. Hearing and Evidence 28.The matter proceeded for hearing on 16th April, 2024. For ease of reference, the court shall refer to the parties in accordance with their respective designations in ELC No. 1430 of 2016. 29.The Plaintiff, Andrew Kigondu, PW1, testified that he is a retired Civil Servant, currently residing in New Pumwani Estate plot no. 36/VII/758. He adopted his witness statement dated 18th July, 2022 as his evidence in chief and produced the documents therein and further list of documents of an even date as PEXB1 and the bundle dated 1st March, 2024 as PEXHB2. 30.PW1 testified that while following up on the processing of a leasehold interest over the suit property, he discovered that his name had disappeared from the Nairobi County Registry records. He explained that whenever he previously made payments, his name would appear in the system together with the relevant account number. However, at some point, his name could no longer be traced in the records, effectively rendering him non-existent in relation to the suit property. 31.He further stated that he had already been scheduled to appear before the City Council for purposes of processing the lease. According to him, the process was never completed because it was halted after his name was removed from the registry records. 32.PW1 further testified that he had undertaken the requisite survey work through one Mr. Matoke of the City Council and that a deed plan had already been processed in his favour at the Survey Plans office. Despite these steps having been undertaken, he never received the lease. 33.PW1 explained that the Defendants subsequently filed a suit which was later consolidated with the present matter. PW1 testified that he had seen the Defendants’ documents, including what he described as the Defendants’ lease over his parcel of land. He maintained that the 2nd to 4th Defendants were complete strangers to him and noted that they were relying on a will allegedly belonging to one Fatuma Binti Sheikh dated 12th November 1976. 34.According to him, the said Fatuma is the same person referenced in Succession Cause No. 1261 of 1989, which formed part of the Defendants’ list of documents and that those documents indicated that Fatuma died on 13th August 1958, while the certificate of confirmation of grant was dated 20th December 1990 and described the property as Nairobi Block 61A. 35.He maintained that the said property bore no relationship whatsoever to his land. PW1 further pointed to what he considered to be inconsistencies in the Defendants’ documents, noting that whereas Fatuma was said to have died in 1958, the will relied upon by the Defendants was dated 12th November 1976. According to him, that discrepancy rendered the documents questionable and confusing. 36.PW1 finally clarified that the property described as I.R. 33892 for L.R. No. 36/VII/761, registered in the name of Juma Omari (deceased), did not belong to him, maintaining that his property was L.R. No. 36/VII/758. 37.During cross-examination, PW1 conceded that the receipt dated 12th February 1968 pre-dates the allotment and explained that the discrepancy was a typographical error. He similarly stated that the receipt bearing the date 1st August 1968, also contained a typographical error. 38.PW1 further explained that the documents reflected his former postal address and asserted that his file at the City Council had long gone missing. He also stated that although the allotment conditions were never availed to him, he complied with the requirements under the tenant purchase arrangement. PW1 also conceded to the existence of proceedings before the Rent Restriction Tribunal, explaining that he had sued Omar Juma after the latter claimed ownership of the premises and asserted that PW1 was occupying his land. 39.According to PW1, the Tribunal found that they were not his landlords. He further testified that he applied for issuance of a lease in 2013, although he had been pursuing the same even before 1989. He stated that he later received a legal notice in 2014 requiring him to clear outstanding rates, which he subsequently paid. 40.During re-examination, PW1 explained that the mother title reflected a term of 99 years commencing on 1st August 1969. He further stated that Entry No. 4 on the title was a certificate of subdivision issued by the Town Clerk. He noted that the plots had already been created and this was the approval. According to him, his plot formed part of those subdivisions as early as 1989. 41.PW1 testified that he had receipts evidencing the payments he made and explained that he had initially applied for the land in November 1968; that the application was received; that he subsequently obtained a positive response dated 16th January 1969 confirming that he had succeeded in the application and that he complied with all the requirements including clearing all the rates. He got the clearance certificate in 2014. 42.DW1 was Abubakar Thuku Idi, the 3rd Defendant herein. He testified that Idi Omar was his father and the second child of Fatma Binti Sheikh; that the 2nd Defendant is their second born, while Juma Omari is his cousin and Omar Hashil his younger brother. He adopted his witness statement in ELC No. 657 of 2017 dated 12th October, 2017 as his evidence in chief and produced the bundle of documents of an even date as DEXB1. In addition, he relied on his witness statement dated 27th February 2019 filed in ELC No. 1430 of 2016 and produced the accompanying documents as DEXB2. 43.According to DW1, the Plaintiff is and has always been their tenant. He explained that L.R. No. 36/VII/758 comprises of a block of flats which had four owners. House B/61A was owned by Fatuma Biniti; B/61B and B/61C are not theirs. He stated that the property in issue, B61D, was owned by their father, Idi Omar 44.He stated that 36/VII/758 is the same property as B/61D, while B/61A corresponds with 36/VII/761. He explained that 36/VII/758 comprises four flats, namely Numbers 4, 8, 12 and 16, with Number 16 being the top-floor unit. He further testified that there are individuals who surrendered their old Pumwani houses under the Pumwani Redevelopment Scheme but were never allocated replacement houses within the scheme. According to him, their father surrendered the old Pumwani house and was thereafter allocated B/61D. 45.He explained that the Nairobi City County had allocated them the houses in 1961 under a tenancy purchase scheme and that the allocation was not free of charge. According to him, their father was the original allottee under the scheme. He further testified that they eventually obtained a lease in 2017 in the names of himself, Omar Idi, Juma Omar and Omar Hashil, and held the property on behalf of the other beneficiaries. 46.PW1 stated that the lease was issued to them in 2017 as beneficiaries of the estate and referred to the certificate of confirmation of grant issued in Succession Cause No. 1261 of 1989 relating to the estate of Fatma Binti Sheikh. He further explained that there were two daughters with Christian names who inherited the property from Idi Omar. According to him, the ownership of the property had never been challenged up to that point. 47.During cross-examination, he testified that they inherited the land from Idi Omar and not from Fatma Binti Sheikh. He stated that although their father had paid for the land, they had not produced any receipts evidencing those payments. 48.He further explained that they had challenged the Will before the Kadhi’s Court on the issue of the identity of Fatma Binti Sheikh, but clarified that he was not relying on the Kadhi’s Court documents in support of the ownership claim. DW1 also conceded that he did not have any letter similar to that produced by the Plaintiff showing that he had applied for allocation of the land. 49.DW1 also conceded that the receipts adduced do not make reference to the suit land and neither does the proclamation. During re-examination, he testified that he had not seen the Plaintiff’s documents of July 2022, as they were not part of the record at the time he filed his own bundle of documents. He disputed the authenticity and validity of the letters allegedly issued by the Nairobi City Council. 50.DW1 further stated that in 1968, parcel No. 36/VII/758 did not exist. According to him, document no. 1 referred to B/61A and not parcel No. 36/VII/758. He also referred to the order issued in Tribunal Case No. 905 of 1947 dated 18th November 1998 and stated that by then the matter before the Kadhi’s Court was already pending. He explained that the Kadhi’s Court eventually determined the issue of ownership on 21st November 2013. 51.He further testified that the sub-lease issued by the County Government was dated 10th May 2017. According to him, when ELC Case No. 1430 of 2016 was filed, they had neither been sued nor made aware of the existence of the case. 52.DW2 was Gregory Cheruiyot, a surveyor working in the Nairobi County Government in the lands department since 2020. He adopted his statement dated 11th November, 2020 as his evidence in chief and the documents annexed thereto as DEXB1. 53.Briefly, it was his evidence that the 1st Defendant is the successor of the defunct Nairobi City Council which was granted by the President of the Republic of Kenya, L.R 36/VII/619 on the 27th June 1985 to hold as a lease for the term of 99 years commencing the 1st day of August 1969 and that the 1st Defendant only registered a sub-division on the said plot into sub-plots 620 to 761 on 8th November 1989 and commenced sub-leasing of the sub-plots on 28th November 1989. 54.He stated that it is false and misleading for the Plaintiff to allege that he occupied L.R Number 36/VII/758 in 1969 with the consent, authority and approval of the 1st Defendant since at the said time, the said sub-plot was non-existent and that Plot 36/VII/619 had not yet been leased to the 1st Defendant by the Commissioner of Lands hence any consent to occupy any part of the said plot could only have been given by the Commissioner of Lands at the time. 55.According to DW2, on 1st November 2013, the Plaintiff made an application to the 1st Defendant seeking for a sub-lease to be registered in its favour over plot L.R No. 36/VII/758 and that in a bid to ascertain that the Plaintiff was indeed entitled to be registered as such, the 1st Defendant through a letter to the Plaintiff dated 13th November 2013 sought for documents evidencing the Plaintiff’s ownership of the said plot. 56.He stated that the Plaintiff was unable to produce any documentation demonstrating ownership save for rate payment statements, which, in the 1st Defendant’s view, do not constitute proof of ownership. Consequently, the 1st Defendant declined the Plaintiff’s application for registration of the lease in his favour. 57.It was DW2’s evidence that the 2nd -4th Defendants are the lawful proprietors of the suit property and that the Plaintiff has at all material times occupied the premises merely as a tenant under the registered sub-lessee. 58.According to DW2, the Plaintiff’s attempt to procure registration of the suit property in his own name was halted once it was discovered that he had no lawful basis or entitlement to initiate such registration. It was therefore his position that the Plaintiff had no proprietary interest whatsoever in the suit property and that the claims advanced in the Plaint were misconceived, unsupported in law and ought to be dismissed with costs. 59.During cross-examination, DW2 stated that the subdivision scheme covered plots 674 to 761 and confirmed that Plot No. 758, which is the subject of the present dispute, appeared on the map produced before the court. He testified that the map was dated 28th January 1970, which according to him was the date when the survey was undertaken. He further clarified that Plot No. 758 was created in 1974 and not in 1985. 60.DW2 also stated that although the lease in favour of the Defendants was issued in 2017 after the institution of the suit, the dispute before court was principally against the Nairobi City County. He conceded that he did not have documents evidencing ownership of the property by Idi Omari, explaining that the allocation fell under the Tenant Purchase Scheme administered by the then City Council of Nairobi. 61.He further admitted that he had no records showing that the alleged allottee had been interviewed prior to allocation. Finally, he clarified that Abubakar Thuku, the 4th Defendant, was not personally known to him and that the County records did not reflect him as the registered owner of the suit property. 62.He further testified that the City Council was the custodian of the relevant records and maintained that the Plaintiff had not submitted ownership documents in support of his application for a lease. DW2 however acknowledged knowing one S.G. Mwangi and confirmed that the letter dated 13th November 2013 appearing in the Plaintiff’s bundle had indeed been authored by the said officer and addressed to the Plaintiff in relation to an application for a lease over L.R. No. 36/VII/758. According to DW2, the letter confirmed the existence of an application by the Plaintiff for processing of the lease. 63.DW2 further stated that he did not have in his bundle any corresponding application documents lodged by the Defendants. He also acknowledged knowing one Cecilia, an employee of the City Council, and referred to an uncertified letter dated 27th October 2015 appearing in the Plaintiff’s documents. He similarly referred to the letter dated 19th July 2016 authored by Cecilia indicating that the deed plan relating to the suit property was ready for collection by the Plaintiff, although he did not know whether the Plaintiff eventually collected it. 64.He further admitted that he had no proof showing that the complaints allegedly lodged against the Plaintiff’s application were ever heard or determined. He also stated that he was unaware whether the Plaintiff’s name had at any point appeared in the County’s system. 65.He further acknowledged knowing Mr. Matoke, a surveyor employed by the County, and identified the survey plan dated 1st April 2016 appearing in the documents before court which was a resurvey of the existing plot (the disputed plot). He stated that he was unaware of who instigated the re-survey. 66.It was his evidence on re-examination that the records produced by the County included the mother lease and the register reflecting the registered sub-lessees, and that the Plaintiff’s name did not appear among those lessees. He further testified that although the letter dated 27th October 2015 bore the signature of Cecilia, it did not specify the owner of the property in question. He pointed out that the letter dated 19th July 2016 was unsigned. Submissions 67.The Plaintiff’s counsel filed submissions on 3rd March, 2026. Counsel rehashed the Plaintiff’s and the Defendants’ respective cases. Counsel submitted that the Plaintiff had clearly established the root of his title to L.R. No. 36/VII/758 through documentary evidence tracing the allocation process from 1968. 68.After allocation, it was submitted, the Plaintiff consistently made payments required under the tenant purchase scheme, including rents, rates, survey fees, subdivision fees, conveyancing charges, beacon certificate fees and clearance certificate charges and that the Plaintiff also processed the sub-lease by submitting ownership documents to Nairobi City County and paying the requisite registration and lease preparation fees. 69.It was further submitted that the Plaintiff’s survey work for the property was processed by Nairobi City County and forwarded to the Director of Surveys, culminating in the approval of Plan No. F/R 584/177 relating to L.R. No. 36/VII/758; that the deed plan was subsequently collected on behalf of the Plaintiff and that it was only after the deed plan was received by the County that the dispute concerning the property arose. 70.Conversely, it was urged, the 2nd to 4th Defendants failed to establish a credible root of title to the disputed property. It was argued that although DW1 stated that they acquired the land through a beneficial interest arising from succession proceedings relating to the estates of Fatuma Binti Sheikh and Idi Omari, the documents produced did not demonstrate any connection between those estates and the suit property, L.R. No. 36/VII/758 and that the various letters, receipts and documents relied upon by the Defendants referred to different properties, including Plot No. 101, B6/1 Flat, B6/1A, B6(A), B6(D), Flat No. 16-J128B and Nairobi/Block/61A1, none of which were shown to correspond to the disputed parcel. 71.Counsel further pointed to inconsistencies in the Defendants’ evidence, particularly the fact that Fatuma Binti Sheikh was indicated in Succession Cause No. 1261 of 1989 to have died on 13th August 1958, yet the Defendants relied on a will purportedly made by her on 12th November 1976. It was submitted that no documentary evidence, such as allocation records, receipts of payment, ownership documents or conversion records, was produced to demonstrate how Idi Omari acquired ownership of L.R. No. 36/VII/758. 72.It was urged that the Certificates of Confirmation of Grant relied upon by the Defendants could not, by themselves, prove ownership of the disputed property without evidence establishing the deceased’s root of title. Reference was also made to Rent Restriction Tribunal Case No. 905 of 1997, where Juma Omari Hassan was found to have failed to demonstrate entitlement to the premises. 73.Counsel therefore submitted that the lease issued to the 2nd to 5th Defendants on 10th May, 2017 was irregular and ought to be annulled for want of a lawful foundation. It was also stated that the 1st Defendant has filed two statements of defence and the latter one should be struck out. 74.The 1st Defendant’s counsel filed submissions on 17th March, 2026. Counsel submitted that the Plaintiff is not the bona fide lessee of the suit property herein, and that the allotment of the suit property was awarded to Fatima Sheikh, who is survived and represented by the 2nd -5th Defendants, considered to be the de facto and de jure proprietors of the suit property. 75.It was submitted that pursuant to Section 26 of the Land Registration Act, a certificate of title issued by the Registrar, is conclusive evidence that the person so named is the absolute and indefeasible owner and is not liable to challenge except on the ground of fraud or misrepresentation to which the person is a party or where the certificate has been acquired illegally, unprocedurally or through a corrupt scheme. Reliance was placed on Peter Mwangi Mbuthia & Anor vs Samow Edin Osman[2014]eKLR. 76.It was submitted that the Plaintiff is attempting to claim ownership of property whose quiet possession he obtained by virtue of being a tenant who is a licensee rather than a bona fide proprietor a position that is untenable as explained by the Court of Appeal in Abdukrazak Khalifs Salimu vs Harum Rashid Khator & 2 Others [2018]eKLR, and that the receipts presented as evidence of payment are not verifiable. 77.It was maintained that the Plaintiff was never a lessee of the 1st Defendant in respect of the suit property. Counsel submitted that the receipts produced by the Plaintiff showing payment of rates only dated back to the year 2014 and that no rates clearance receipts had been produced for the period from 1970, when the Plaintiff allegedly acquired quiet possession of the suit property. It was further submitted that the said receipts did not constitute title documents and could not amount to prima facie proof of ownership pursuant to Section 26 of the Land Registration Act, 2012. 78.Counsel further submitted that the letters relied upon by the Plaintiff as proof of ownership could not be regarded as authentic; that they conspicuously lacked an authorizing stamp by the signatory, which counsel argued was a standard requirement in public documents issued by the then City Council of Nairobi. 79.Counsel also referred to the receipt dated 18th July 2022, which allegedly showed that the Plaintiff paid Kshs. 4,860 on 10th January, 1969 to the 1st Defendant before he had allegedly been invited for an interview or requested to pay the first deposit through the letter dated 16th January, 1969. 80.The 2nd–5th Defendants’ counsel filed submissions dated 20th April 2026. Counsel submitted that the 2nd–5th Defendants were the lawful registered proprietors of L.R. No. 36/VII/758, tracing their root of title to the Pumwani Redevelopment Scheme commenced in 1969 under which the late Idi Omari was allotted Block B6-1/D, New Pumwani Estate. Counsel submitted that although some early scheme correspondence bore the name of Fatuma Binti Sheikh, the same merely reflected her role in managing the property and collecting rent on behalf of Idi Omari. 81.It was further submitted that L.R. No. 36/VII/758 only came into legal existence upon subdivision of the mother title L.R. No. 36/VII/619 on 28th November 1989. Counsel further relied on Kadhi’s Court Succession Cause No. 41 of 1995, which culminated in the order dated 21st November 2013 appointing the 2nd–5th Defendants as co-administrators of the estate of Idi Omari and identifying the estate property as “L.R. 36/VII/758 Block No. B6-1/D.” 82.It was submitted that the certificate of confirmation of grant issued on 15th May 2014 and the subsequent lease registered in favour of the 2nd–5th Defendants on 10th May 2017 completed a clear and unbroken chain of title supported by court orders, registered instruments and official acts of Nairobi City County. 83.Counsel submitted that the Plaintiff had failed to establish any valid proprietary interest in the suit property; that the Plaintiff’s reliance on an allotment letter, tenant purchase receipts, land rates payments, survey fees, beacon fees, clearance certificates and lease applications could not confer title. 84.It was submitted that the Plaintiff’s documentary evidence is chronologically impossible since every pre-1989 document relied upon referenced L.R. No. 36/VII/758 before the parcel legally existed and that the impugned documents also lacked official signatures and seals ordinarily appearing on authentic Nairobi City Council documents. 85.Counsel submitted that the Plaintiff occupied the suit premises strictly as a tenant and not as a proprietor. In support of that position, reliance was placed on the Property Management Contract dated 16th June 1997 appointing Masterways Properties Ltd as managing agents, the letter dated 18th July 1997 identifying the Plaintiff as a tenant in rent arrears, proceedings before the Rent Restriction Tribunal, and the Plaintiff’s own affidavit in those proceedings admitting payment of rent. Counsel therefore submitted that, by virtue of Section 116 of the Evidence Act, the Plaintiff was estopped from denying the landlord’s title, having consistently represented himself as a tenant before the Tribunal. Analysis and Determination 86.Having considered the pleadings, evidence and submissions on record, the following issues arise for determination:i.Whether the Plaintiff has established a lawful and superior proprietary interest over L.R. No. 36/VII/758 capable of impeaching the lease registered in favour of the 2nd–5th Defendants?ii.Whether the 2nd–5th Defendants have established their claim in ELC No. 657 of 2017 and proved their entitlement to the reliefs sought therein?iii.What are the appropriate reliefs to issue? Whether the Plaintiff has established a lawful and superior proprietary interest over L.R. No. 36/VII/758 capable of impeaching the lease registered in favour of the 2nd–5th Defendants 87.The Plaintiff seeks, inter alia, a declaration that he is the lawful proprietor of L.R. No. 36/VII/758. His case is that he applied for allocation of the suit property under the Pumwani Redevelopment Scheme in November 1968 and was subsequently invited for an interview by the then City Council of Nairobi before being formally allotted the property in March 1969. According to the Plaintiff, he paid the requisite charges under the tenant purchase scheme, including rent, rates, survey, conveyancing, subdivision and beacon certificate fees, and had remained in occupation of the suit property since 1969. 88.He further contended that Nairobi City County processed the survey work and deed plan in his favour and that he subsequently applied for issuance and registration of a lease. However, despite fulfilling the requirements for registration, the County allegedly removed his name from its records, halted the process following undisclosed complaints, and fraudulently colluded with the 2nd -5th Defendants to procure registration of the suit property in their name. 89.Conversely, the 1st Defendant maintains that the Plaintiff was never the allottee or lessee of the suit property and that the documents presented by him during the lease processing were merely rental payment statements and not ownership documents. It is the 1st Defendant’s position that the Plaintiff was at all material times a tenant in the premises and had no legal basis to seek registration of the property in his name. 90.On their part, the 2nd–4th Defendants maintain that they are the lawful proprietors of the suit property, having acquired the same as beneficiaries and trustees of the estate of Idi Omari, whom they describe as the original allottee under the Pumwani Redevelopment Scheme. They maintain that the Plaintiff was merely a tenant occupying one of the flats erected on the property and had never acquired any proprietary interest therein. 91.It is apparent from the foregoing that the dispute before the court revolves around the parties’ competing claims to ownership of L.R. No. 36/VII/758. The court is therefore called upon to interrogate the respective roots of title advanced by the parties and determine whether either claim is supported by credible evidence and a lawful chain of ownership. 92.In undertaking that inquiry, the court is guided by the settled principle that he who alleges must prove. Under Sections 107 (1) and (2) and 109 of the Evidence Act, the burden rests upon the party asserting the existence of a fact or legal right to establish the same, while Section 112 imposes an additional burden in respect of matters especially within the knowledge of that party. 93.In Mumbi M'Nabea vs David M. Wachira [2016] KECA 773 (KLR), the Court of Appeal reiterated that the standard of proof in civil cases is on a balance of probabilities. The court explained that it must evaluate the oral, documentary and other evidence presented by the parties and determine which version of events is more probable than not. 94.It is also notable that allegations of fraud have been expressly pleaded in the matter. In law, such allegations attract a heightened burden of proof, requiring the party so asserting to not only plead the particulars with specificity but also to strictly prove the same to a standard higher than a balance of probabilities, although not as high as beyond reasonable doubt. 95.Speaking to this, the Court of Appeal in Demutila Nanyama Pururmu vs Salim Mohamed Salim [2021] eKLR relying on an earlier exposition by Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR noted thus:“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.” 96.The evidence before the court shows that the 2nd–5th Defendants are the current registered proprietors of L.R. No. 36/VII/758 pursuant to a lease registered on 10th May 2017. The Plaintiff however challenges the validity and propriety of that title and contends that the same was procured through fraud, collusion and manipulation of County records. 97.The impugned lease was issued under the repealed Registration of Titles Act. By virtue of Section 107 of the Land Registration Act, the applicable legal framework governing the same is therefore the repealed Registration of Titles Act. Section 23(1) thereof provided as follows:“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... 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.” 98.The effect of the foregoing provision is that a registered proprietor acquired an indefeasible title subject only to encumbrances, restrictions and conditions endorsed on the register, save where fraud or misrepresentation attributable to the proprietor was proved. 99.The same position is now substantially reflected under Section 26(1) of the Land Registration Act which provides that a certificate of title may only be challenged where it is shown to have been acquired through fraud, misrepresentation to which the person is proved to be a party of through illegality, procedural impropriety or a corrupt scheme. 100.It follows therefore that although the lease held by the 2nd–5th Defendants enjoys statutory protection, such protection is not absolute and may only be interfered with on the grounds set out above. The burden in this regard resting squarely upon the Plaintiff. 101.The court has carefully evaluated the rival roots of title advanced by the parties. The evidence of DW2, the County Surveyor, was particularly material in that regard. DW2 produced the mother title, namely L.R. No. 36/VII/619, which showed that the same was leased to the Nairobi City Council on 27th June 1985 for the unexpired term of 99 years commencing on 1st August 1969. The mother title further reflected approval and registration of subdivision into plots 620–761 on 28th November 1989. 102.That evidence is significant because the Plaintiff’s claim substantially rests on documents dating back to the late 1960s and early 1970s, all expressly referencing plot No. 36/VII/758. These include the letter dated 16th January 1969 inviting him for an interview regarding “HOU.36/VII/758,” the allotment letter dated 6th March 1969, and several receipts dating from 1968 onwards. 103.The difficulty, however, arises from the fact that, according to the mother title and the subdivision records produced by DW2, L.R. No. 36/VII/758 only came into legal existence upon the subdivision and registration of the mother title on 28th November 1989. 104.Although DW2 admitted during cross-examination that the plot had been created in 1974, as reflected in the map produced by the Plaintiff, the position remains that the parcel only acquired legal existence upon registration. Consequently, the Plaintiff’s purported allotment in 1969 predates not only the registration of the parcel, but also its alleged creation in 1974. 105.The Plaintiff attempted to explain some of those inconsistencies as typographical errors. However, the court is unable to accept that explanation as sufficient. The issue is not confined to one isolated receipt or one mistaken date. Rather, the chronology problem permeates the Plaintiff’s documentary trail. 106.Multiple documents produced by the Plaintiff over several years consistently refer to Plot No. 758 long before the subdivision and registration process reflected in the official County records. No evidence was produced to reconcile that inconsistency. 107.The court has equally considered the Plaintiff’s reliance on rates receipts, survey fees, conveyancing charges, subdivision charges, beacon certificate fees and lease processing correspondence. Those documents demonstrate that the Plaintiff actively pursued processing of a lease and that the County entertained his application at various stages. Indeed, DW2 acknowledged the existence of the Plaintiff’s application for a lease and confirmed that certain survey and deed plan processes had been undertaken. 108.However, those processes, without more, did not confer title. As correctly submitted by the Defendants, payment of rates, rent or administrative charges does not by themselves amount to proof of ownership. Equally, an application for a lease does not vest proprietary rights absent proof of lawful allocation and registration. 109.As regards the 2nd - 4th Defendants, it is noted that DW1 made several important concessions during cross-examination, to wit, apart from the documents with respect to succession, they did not have any documentation showing how their father got the property. The documents primarily referenced B61A which they conceded is different from the property in issue herein which correspondents with B61D. 110.DW2 too made several important concessions during cross-examination. He admitted he had no evidence showing that the alleged allottee had been interviewed prior to allocation and no corresponding application documents lodged by the Defendants; and no proof that the complaints allegedly raised against the Plaintiff’s application were ever heard or determined. 111.The foregoing notwithstanding, the Plaintiff still bore the legal burden of establishing a superior and lawful root of title, and of strictly proving the pleaded allegations of fraud, illegality, or procedural impropriety against the Defendants. 112.On the totality of the evidence placed before the court, that burden was not discharged. No evidence was tendered to demonstrate collusion between the 2nd–5th Defendants and County officials in the issuance of the lease, nor was any specific fraudulent act attributable to the Defendants proved to the required standard. Further, the contentions relating to the alleged invalidity of the will fall outside the jurisdictional remit of this court and are therefore not issues for determination herein. 113.The allegations regarding deletion of the Plaintiff’s name from County records, manipulation of the lease process and unlawful procurement of title largely remained matters of suspicion and inference unsupported by cogent evidence. Ultimately, the court is not satisfied that the Plaintiff established a lawful and superior proprietary interest capable of impeaching the lease registered in favour of the 2nd–4th Defendants. Whether the 2nd–4th Defendants have established their claim in ELC No. 657 of 2017 and proved their entitlement to the reliefs sought therein 114.The 2nd–4th Defendants seek vacant possession of L.R. No. 36/VII/758 together with rent arrears on the basis that the Plaintiff and the other occupants were tenants in the premises who defaulted in payment of rent and continue to do so. 115.While the court has already found that the Plaintiff failed to establish a lawful proprietary interest capable of impeaching the lease held by the 2nd–4th Defendants’ lease, that finding alone does not automatically entitle the 2nd–4th Defendants to all the reliefs sought in ELC No. 657 of 2017. The burden still rested upon them to specifically prove occupation of L.R. No. 36/VII/758 by the Plaintiff and the other alleged tenants, the existence of a landlord–tenant relationship, and the particular rent arrears claimed. 116.As regards occupation, the Plaintiff in ELC No. 1430 of 2016 admitted being in occupation of the suit premise. However, difficulties arise as regards occupation by Peter Ndegwa and Samson Owiti. 117.Admittedly, much of the documentary evidence relied upon by the Defendants does not consistently or specifically refer to L.R. No. 36/VII/758 or B6/1D, which they claim is the suit property. The Property Management contract with Masterways Properties Ltd refer to Block B6/1A. Flat No. 16–JI28B. 118.Similarly, the correspondence relating to distress for rent refers generally to “B61,” while the notice to vacate dated 14th August 2001 specifically references B61A. The demand dated 9th July 2021 to Peter Ndegwa and the proceedings in Rent Restriction Tribunal Case No. 905 of 1997 similarly reference B61A. 119.Further, the letter dated 18th July 1997 relating to the alleged rent arrears refers to Block B6/1(A). The proceedings before the Rent Restriction Tribunal, including RRTC No. 38 of 2012, likewise consistently reference B6/1A. The assessment report produced before the court refers generally to “B6 1” without specifically identifying B6/1D or L.R. No. 36/VII/758. 120.That distinction is significant because the evidence before the court shows that the original Pumwani redevelopment units comprised separate blocks and flats identified as B6/1A, B6/1B, B6/1C and B6/1D, each allegedly associated with different occupants or proprietors. DW1 himself testified that B6/1A corresponded with a different parcel from the one claimed by the 2nd–5th Defendants herein which both parties agree is B6/1D. 121.It was incumbent upon the 2nd–4th Defendants to clearly establish that the various descriptions appearing in the documents, including B61, Flat 16–JI28B all referred to the same premises. No clear documentary evidence was tendered to reconcile those varying references. 122.The court is therefore unable to conclusively determine from the evidence presented that Peter Ndegwa and Samson Owiti occupied the specific premises known as L.R. No. 36/VII/758/B6/1D as opposed to other adjoining units within the broader B6/1 block. 123.Further, apart from the assessment report, the 2nd–5th Defendants did not produce tenancy agreements, rent schedules, statements of account, or other cogent evidence demonstrating the precise rent arrears allegedly due from each occupant. Equally absent was evidence showing the specific periods of default or the basis upon which the pleaded sums were computed. 124.The assessment report itself merely assessed standard rent for purposes of the Rent Restriction Tribunal proceedings. It neither constituted proof of ownership nor conclusive proof of the specific rent arrears allegedly payable by the occupants herein. 125.Ultimately, the court finds as follows:i.The Plaint dated 14th November, 2016 in ELC No. 1430 of 2016 is found to be unmerited and is hereby dismissed with no order as to costs.ii.The Counterclaim in ELC 1430 of 2016 dated 5th December, 2017 is hereby dismissed with no order as to costs.iii.The Plaint in ELC 657 of 2016 dated 12th October, 2017 partly succeeds to the extent that;a.An order does hereby issue directing Andrew Kigondu, the 1st Defendant in ELC 657 of 2016, to grant vacant possession of the flat (s) he occupies in L.R 36/VII/758 to the Plaintiffs within 30 days of the judgment herein failure to which the Plaintiffs in ELC 657 of 2016 shall be at liberty to evict him.b.The 1st Defendant in ELC 657 of 2016 to bear the costs of the suit. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 5TH DAY OF JUNE, 2026.O. A. ANGOTEJUDGEIn the presence of:Mr. Osoro for the PlaintiffMr. Obuya for Munyasia for 1st DefendantMr. Mbugua for 2nd – 4th DefendantsCourt Assistant: Tracy