https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4637

Kijuvi & another v Mbatia & 5 others (Environment and Land Case 108 of 2019) [2026] KEELC 4637 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELC 4637 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case 108 of 2019 EK Makori, J July 2, 2026 Between Ali Mohammed Kijuvi 1st Plaintiff The Estate Of Hamadi Ali Kijuva Aka Ahmed Bin Ali (Deceased) (Thru Its Administrator) 2nd Plaintiff and Josephine Naisenyi Mbatia 1st Defendant The Estate of Kalume Muhale aka Kalume Muhale Kwanguro (Deceased)(Thru Its Joint Administrators Bahati Saga & Mohamed A Muhale) 2nd Defendant The Registrar of Titles Mombasa 3rd Defendant Director of Surveys 4th Defendant and The Public Trustees 1st Interested Party The Attorney General 2nd Interested Party Judgment 1.Before the Court is the amended Plaint dated April 1, 2021, which seeks the following reliefs:a.That the 3rd Defendant be compelled to cancel and revoke all Certificates of title known as LR NO. MN/III/540, LR NO. MN/III/541, and LR NO. MN/III/542, and to reinstate the original Certificate of title to the suit land known as LR NO. MN/III/167, CR. NO. 4121.b.That the 4th defendant be compelled to cancel and revoke the deed plans dated 27th October 1975 and numbered 97958, 97959, and 97960.c.A permanent injunction against the 1st and 2nd Defendants, restraining them from interfering with, occupying, or transacting in any way regarding the Plaintiffs' quiet possession of the suit property.d.Costs of the suit. 2.The 1st and 2nd Defendants filed an amended Defense dated the 15th day of November, 2021. The 2nd Defendant filed a notice of change of advocates dated 3rd February, 2023, and served it on the Court on the same day. The 2nd Defendant filed their written statement of defense dated 3rd May, 2024, in Court on 17th May, 2024. 3.The 3rd and 4th Defendants and the Interested Parties did not participate in these proceedings. 4.The matter proceeded viva voce, with the Plaintiff and the Defendants each calling two witnesses. 5.The Plaintiffs have brought this suit to claim title to their land, which they allege was fraudulently subdivided into three portions, and to challenge the new titles issued by the Defendants. In a nutshell, the Plaintiffs’ title is LR NO. MN/III/167 CR. NO. 4121, which allegedly was fraudulently closed, and in its place three new subdivisions, LR NO. MN/III/ 540, LR NO. MN/III/541, and LR NO. MN/III/542 was opened. 6.The three impugned titles were registered on June 25, 2002, and the Plaintiffs learned of their existence after conducting a postal search on September 13, 2012. The Plaintiffs then moved the court through Mombasa Petition No. 95 of 2015, Ali Mohamed Kijuvi & another v the Registrar of Titles, Mombasa, and others, seeking to have the three titles revoked. Unfortunately, the Court at Mombasa held that this matter would be best settled through a normal suit, in which the parties would adduce oral evidence and be cross-examined. Plaintiffs aver that in 2019, about seven years after the discovery of the forgeries, the Plaintiffs moved this Honorable Court with the current suit brought by way of plaint, seeking the reliefs already outlined hereinabove. 7.Khamis Mohammed Ali, who testified as PW1, was a member of the Plaintiffs’ family and gave a full history of their relationship with the Defendants regarding the suit land. In his testimony, PW1, relying on his witness statement dated 28th June 2024, presented evidence stating that the 2nd Defendant’s family encroached on the suit land owned by the Plaintiffs’ family. The Plaintiffs’ family lodged a complaint with the then authorities, comprising the Chief’s Office and the District Commissioner’s Office, over the ownership of the suit property. PW1 further stated that both the 2nd Defendant’s family and the Plaintiffs’ family were summoned by the authorities to present the necessary documents regarding the suit property to ascertain the true owner. In his letter dated 21st April, 1995, which PW1 produced as Plaintiffs’ Exhibit No. 19, a vacation notice was issued. 8.8. PW1 also produced a copy of the valuation of the Defendant’s crops, dated January 26, 1995, prepared at the Ministry of Agriculture, Livestock Development, and Marketing. This was marked as Plaintiffs’ Exhibit No. 16. The decision was reached after the District Commissioner heard both parties, and there was evidence that the land belonged to the Plaintiffs. However, in his discretion, the District Commissioner ordered that the Plaintiffs pay the Defendants for their crops on the land before the Plaintiffs could vacate. 9.After the valuation process, the Plaintiffs paid the District Officer the compensation for the 2nd Defendant’s crops. Plaintiffs’ Exhibit No. 17 is an acknowledgment by the then District Officer, Mr. K. K. Arap Too, dated 30th March, 1995, admitting receipt of Kshs 20,500 from the Plaintiffs as compensation for the 2nd Defendant’s crops. Immediately after receiving the compensation, the District Officer wrote to the area chief, in a letter dated 30th March, 1995, instructing him to notify the 2nd Defendant’s family to collect their compensation. This was Plaintiff’s Exhibit No. 18. Plaintiff's Exhibit No. 21 was a letter dated 14th December, 1995, from the then District Officer to the Chief, instructing him to remind the 2nd Defendant to collect their compensation money. Plaintiffs’ Exhibit No. 20 was a letter dated 25th July, 1995, from the District Commissioner to the O.C., Kijipwa Police Station, requesting that the Defendants/squatters be charged with trespass, as efforts to have them vacate peacefully had been unsuccessful. 10.PW1 further stated that the purported titles being possessed by the Defendants were fraudulently acquired. He averred that it was his late aunt who initiated the subdivision of the land into three portions and even instructed the firm of Hime & Zimmerlilin to do so. He produced Exhibit No. 24, which was the letter dated 18th July, 1974, from Hime & Zimmerlin surveyors, submitting the subdivisions. The subdivision was intended to distribute the suit land among the Plaintiffs’ extended family. However, along the way, they differed on the mode of distribution and had to abandon everything and, in fact, approached the Kadhi’s Court to address the succession matter. He produced Exhibit 5, being a copy of the Plaint filed at the Malindi Kadhi’s Court, Civil Case No. 47 of 1993, Ali Mohammed Kijuvi & Anor v Fatima Binti Suleiman, to prove that they indeed sought redress at the Kadhi’s Court. Exhibit No. 6 was a copy of the Court Order dated 17th February, 1994, obtained at the Malindi Kadhi’s Court, indicating how the Court had distributed the suit land (Plot 167/III/MN/MTWAPA) into six pieces instead of the earlier three portions. 11.The Plaintiffs assert that the Defendants hijacked the subdivisions initiated by Hime & Zimmerlin surveyors and processed three titles to those subdivisions, which are now the impugned LR NO. MN/III/ 540, LR NO. MN/III/541, and LR NO. MN/III/542. PW1 produced Exhibits No. 7 and 8 as the deed plans and Certificates of title created by the Defendants. 12.PW1 further produced Exhibit No. 9, a transfer instrument dated 27th August, 1998, allegedly transferring the suit land from the Plaintiffs to the Defendants. PW2, Peter Omwenga, an advocate of the High Court of Kenya, who is identified as the advocate who signed and witnessed the transfer dated 27th August, 1998, categorically denied ever witnessing such a transfer. Exhibit No. 10 was the advocate’s letter dated 19th September, 2012, addressed to the Plaintiffs’ advocates, denying the execution of that transfer. 13.Josphine Mbatia, who testified as the DW1, adopted her statement dated 20th May 2020 and a list of documents of even date. She stated that she is a co-administrator of the Estate of James Lee Mbatia Wanjui and holds this property in trust for his Estate. She averred that her husband was a bona fide purchaser for value who had no knowledge of nor participated in any fraud. The Plaintiff should not be found to have contrived fraud, and insofar as the said allegations have not been proven against the Estate at the time he purchased the property, the case against the 1st Defendant does not lie. The transfer to her was merely a consequence of the purchase. She had no privity to the contracts of purchase. Any remedy against the 1st Defendant lies in damages, if at all, but not in cancellation or deregistration. She produced her letters of administration, copies of assents, and copies of transfer and agreements to bolster her claim. 14.4. She testified that there is no indication that, at the time James Lee Mbatia Wanjui bought the properties in 1999, he had any knowledge of encumbrances, dealings, or other third-party claims. The subdivisions occurred in 1998, and James Lee Mbatia Wanjui bought the land in 1999. The first claim came before the court in 2015, in Petition No. 95 of 2015, 16 years later. The Plaintiffs herein lost the Petition. They immediately filed this suit, which has since run its course. 15.She averred that no particulars of fraud have been specifically pleaded against the 1st Defendant or the Estate, and none have been proven against the 1st Defendant, nor, in fact, against the other Defendants. Any allegation of fraud must fail. By the time this suit was filed in 2020, the Deceased had purchased the land more than 21 years earlier. Save for the thesis of fraud, the entire suit fails on the grounds of laches and limitation of actions. 16.The 2nd Defendants called one witness, Mohammed A. Muhale, as DW1. DW1 adopted his statement dated 3rd May, 2024, into evidence in chief. DW1 also produced the list of documents dated 3rd May, 2024, as 2nd Defendant’s Exhibit 1-10, and the further list of documents dated 29th October, 2024, which was filed the same day as 2nd Defendant’s Exhibit 11-12. 17.According to this witness, a transfer document was lawfully executed between the vendors and one Kalume Muhale Kwanguro, as seen in PExh 12. A transfer of the suit property led to the creation of a subdivision, and new certificates of title were issued to Kalume Muhale Kwanguro. The 2nd Defendants, being the administrators of the Estate of Kalume Muhale Kwanguro, produced the list of documents dated 3rd May 2024 in support of their case. He tendered evidence showing the steps taken and the payments made to the relevant government authority regarding the suit property. That Kalume Muhale Kwanguro legally acquired possession of the suit property and was therefore the bona fide owner. 18.Counsel for the parties filed written submissions in this matter, which I have considered. 19.The issues I frame for this Court's determination are whether the Plaintiffs have proved their case on a balance of probabilities to warrant the orders sought and who should bear the costs of the suit. 20.20. The Plaintiffs assert that plots 540, 541, and 542 were duly and legally registered following appropriate procedures. Consequently, the Plaintiffs have petitioned the Honorable Court to nullify these documents on the grounds of fraudulent registration. Substantial evidence indicates that the parties were summoned by the then District Commissioner, who carried out a thorough investigation into the dispute and concluded that the Defendants were merely squatters on the contested land. The District Commissioner also mandated compensation for the crops and the Defendants' eviction from the premises. The Defendants did not contest these findings. Moreover, the Defendants admitted in their amended defense that the Plaintiffs have the land in question but have leased portions thereof to third parties. The legitimacy of a title can only be confirmed by examining the process by which it was obtained; presenting a title deed alone is insufficient to claim ownership. One must further demonstrate the manner in which the title was acquired. It is undisputed that the land in question was initially registered as LR. No. 167/III/MN CR No. 142. The Defendants' documents acknowledge that the Plaintiffs were the original proprietors of the said land. Even the transfer document submitted in court, dated 27th August 1998, affirms that the Plaintiffs were the original owners of the land before it was transferred to the Defendants. The matter under dispute is whether the land was legally transferred to the Defendants. See Munyu Maina v Hiram Gathina Maina (2013) eKLR, Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR). 21.Plaintiff submits that this matter has not been defeated by laches and delay, as the current suit seeks to cancel titles 540, 541, and 542, which were purportedly registered on 25th June, 2002. Plaintiffs state that they became aware of these titles during a 2012 search of the property. See copies of the Postal Search dated 13th September, 2012, as Exhibit 14. Immediately upon learning that the title to their land had changed to read the Defendants’ names, they moved the Court vide Mombasa ELC Petition Number 95 of 2015, Ali Mohamed Kijuvi & Another v The Registrar of Titles, Mombasa & Others. The Court dismissed the suit, noting that it was not the best forum to resolve the issues. The Court advised that a civil suit be filed, which culminated in the institution of the current suit in 2019, seven years after the discovery of the fraud. Being a land matter, the matter was to be filed within 12 years of discovering the fraud, in accordance with the provisions of Section 7 as read together with Section 26 of the Limitation of Actions Act. 22.1st Defendant submits that, pursuant to the history as laid out by the 2nd Defendants (Mohammed A. Muhale and Bahati Saga), it is proper to comment that the Plaintiffs invaded this land in 1966; the 2nd Defendants' ancestors have been on the land since well before the 1930s, and a grandfather was buried on the land in 1954. By 1974, Said Salim Muhale held the Original Title and had processed the land. The Plaintiffs have not shown that they have ever had the Original Title they claim interest in, nor when Said Salim Muhale obtained it to his possession illegally. There is no claim based on theft or dispossession of the Original Title at all. When Kalume Muhale dealt with the subdivisions in 1998, he had the Original Title with him. There is no allegation that, at any point, this title left the Plaintiffs' possession irregularly or fraudulently. The subdivisions were then registered in 2002 in favor of the 1st Defendant’s Estate. 23.1st Defendant asserts that the Plaintiffs have not, in this claim and in the prior Petition, informed the court of the exact date they discovered "fraud," which second-guesses their claim. 24.2nd Defendant submits that the Plaintiffs have no locus standi to sustain this suit, that grant ad litem is limited to a specific purpose, namely the institution or prosecution of a suit, and that one Ali Mohammed Kijuvi was issued a grant ad litem on 8th September, 2008, as seen in PExh 1. DExh 12 shows the petition for a letter of administration ad litem by one Ali Mohammed Kivuli. On page 2, form 19, paragraph 5, it states as follows: “I am seeking a grant of representation to the deceased on the grounds of proceeding with a civil case, CMCC NO. 504 of 2004.” 25.Ali Mohammed Kijuvi was subsequently issued a grant ad litem on 8th September, 2008, for the sole purpose and limited to the litigation of case No. CMCC 504 of 2004. The grant ad litem served its purpose in CMCC No. 504 of 2004 and could not therefore be used in any other case without a full grant being obtained by Ali Mohammed Kijuvi. PW2 confirmed in cross-examination that no full grant, either intestate or testate, has been filed for the Estate of Hamadi Ali Kijuvi. Further, the Plaintiffs have not adduced any documentary evidence showing that Ali Mohammed Kijuvi obtained a full grant for the Estate of Hamadi Ali Kijuvi. As such, Ali Mohammed Kijuvi had no locus standi to institute the present suit as an administrator for the Estate of Hamadi Ali Kijuvi. 26.2ND Defendant asserts that having established that one Ali Mohammed Kijuvi had no locus standi, it follows that the grant ad litem issued to Khamis Mohamed Ali on 6th October 2020 serves no purpose and is therefore null and void. Further, Khamis Mohamed Ali obtained a grant ad litem for the Estate of Ali Mohammed Kijuvi, and the amendment to the description of the 2nd Plaintiff’s estate is therefore wrong, improper, and misplaced. Khamis Mohamed Ali is not an administrator of the Estate of Hamadi Ali Kijuvi, but is the administrator of the Estate of Ali Mohammed Kijuvi. 27.The 2nd Defendant questions the Plaintiffs' capacity in this matter and the ownership chronology, and concludes that the Plaintiffs have not presented any documentary evidence, such as a birth certificate, a deed poll, a national identification card, or even a death certificate, to prove that Hamadi Ali Kijuvi was also known as Ahmed Bin Ali. 28.That, under Sections 107 and 109 of the Evidence Act, the burden of proof fell squarely on the Plaintiffs to prove that one Hamadi Ali Kijuvi was also known as Ahmed Bin Ali. What the Plaintiffs did was to impose the name Ahmed Bin Ali on Hamadi Ali Kijuvi in drafting the title of their pleading in the Plaint filed in this Court. Further, PW2 has not clearly provided any link or a better explanation of how Hamadi Ali Kijuvi is the same person as Ahmed Bin Ali. 29.Like the 1st Defendant, the 2nd Defendant submits that fraud has not been proven against the Defendants or at all. 30.Without going into issues such as locus standi and limitations on actions, the Plaintiffs’ case is premised on fraud. The Defendants, whether jointly or severally, occasioned the subdivision of the suit property by fraud, depriving the Plaintiffs of ownership. 31.When fraud is pleaded, it has to be specifically proved. See Kuria Kiarie & 2 Others v Sammy Magera [2018] KECA 467 (KLR), where the Court of Appeal sitting at Nairobi held as follows with regard to pleading fraud and its standard of proof:“The next and only other issue is fraud. The law is clear, and we take it from the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” [Emphasis added]. The same procedure goes for allegations of misrepresentation and illegality. See Order2Rule 4 of the Civil Procedure Rules. As regards the standard of proof, this Court in the case of Kinyanjui Kamau vs George Kamau [2015] eKLR expressed itself as follows;“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & F) 742, wherein the Court stated that:“...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases...”...In cases where fraud is alleged, it is not enough to simply infer fraud from the facts." 32.In Arthi Highway Developers Limited v West End Butchery Limited & 6 Others, 2015 KECA 816 (KLR), the Court of Appeal held the following on fraud:“It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. One of the authorities produced before us has this passage from Bullen & Leake& Jacobs, Precedent of pleadings 13thEdition at page427:“Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged (Wallingford v Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709, Garden Neptune V Occident [1989] 1 Lloyd’s Rep. 305, 308). The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see Lawrence v Lord Norreys (1880) 15 App. Cas. 210 at 221). It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (Davy v Garrett (1878)7 ch. D. 473 at 489). “General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any court ought to take notice”. see Insurance Company of East Africa vs. The AttorneyGeneral&3 Others Hccc 135/1998. Whether there was fraud is, however, a matter of evidence.” 33.The Plaintiffs assert that the individuals who carried out the transfer dated August 27, 1998 (PExh 9) had died in the 1960s and 1970s. PW1, in his sworn statement, contends that the stamp and signature on PExh 9 are unfamiliar to him. 34.The Plaintiffs have not produced any documentary evidence showing that the persons who signed the transfer document (PExh 9) had passed away in the 1960s and 1970s. The allegations that the signatories on the transfer document had passed away remain unproved. 35.The Plaintiffs have not tendered any documentary evidence showing that the Defendants forged the vendors' signatures in the transfer document in PExh 9. The Defendants were not privy to the transfer dated 27th August 1998, and therefore it cannot be implied that the Defendants committed any acts of fraud. 36.Further, the Plaintiffs have not presented any documentary evidence against the Estate of Kalume Muhale, also known as Kalume Muhale Kwanguro, of any acts, commission or omission of fraud on the transfer document dated 27th August 1998. 37.PW1 confirmed he was admitted to the bar on 19th January 1993. The transfer document was executed and witnessed on 27th August 1998. PW1’s letter was written on 19th September 2012, addressed to the firm of Khaminiwa Advocates. The time difference between the transfer being executed and PW1’s letter being written is fourteen (14) years. PW1 confirmed that he did not make any report to the police regarding the stamp and signature on the transfer document. 38.A fourteen (14) year time difference is not a short time frame. The memory can barely recall what transpired after fourteen (14) years. As such, PW1 has not presented any cogent reasons that the stamp and signature do not belong to him. Further, having failed to report the matter to the police, given that PW1 is an advocate, PW1’s statement cannot be relied upon as to the fact that the stamp and signature are forgeries. 39.A transfer document was lawfully executed between the vendors and one Kalume Muhale Kwanguro, as seen in PExh 12. A transfer of the suit property was effected, resulting in its subdivision, and new certificates of title were issued to Kalume Muhale Kwanguro. The 2nd Defendants, being the administrators of the Estate of Kalume Muhale Kwanguro, produced a list of documents dated 3rd May 2024 in support of their case. The evidence tendered shows the steps taken and the payments made to the relevant government authority in relation to the suit property. Thus, the procedural law had been adhered to. 40.There is no doubt that Kalume Muhale Kwanguro legally acquired possession of the suit property and was therefore the legal bona fide owner. 41.On the other hand, the Plaintiffs have failed to meet the burden of proof required under Sections 107 and 109 of the Evidence Act. Fraud is a matter of evidence, and the Plaintiffs have not tendered any tangible evidence against the Defendants, nor have they met the standard for proving fraud. 42.There is no evidence in testimony to suggest that either the Deceased or the Administrator engaged in any clandestine dealings during the purchase of the land, which was conducted under the 2002 sale agreement between Lee Mbatia and Kalume Muhale, both of whom are now deceased. Lee Mbatia died on 21 August 2003, and Kalume Muhale died on 22 July 2004, as documented in the record. The Assents derive from the succession of the Deceased vendor. The 1st Defendant endorsed these to effect the transfers, which were completed on 16 February 2012. There is no indication that the aforementioned documents were obtained through fraudulent means. Furthermore, there is no evidence that the three deed plans were ever commissioned or paid for by the Plaintiffs’ predecessor. 43.The Plaintiffs affirmed that Kalume Muhale registered the three deed plans on 25 June 2002. His transfers were dated 6 May 1998. Refer to the facts detailed in paragraphs 22 to 28 of their previous Petition dated 28 November 2012, submitted by the Plaintiffs herein. 44.In a nutshell, the sequence of events as narrated by the Plaintiffs, their standing in this matter, and the laches and delays comprise the Plaintiffs' suit and led to their failure to prove their case against the Defendants. 45.Consequently, the Plaintiffs’ suit is hereby dismissed, with costs. 46.Whereas a counterclaim is on record, it was never prosecuted. It is not specific. Therefore, I make no findings concerning the same. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NYERI ON THIS 2ND DAY OF JULY 2026.E. K. MAKORIJUDGEIn the Presence of:Mr. Yose for the PlaintiffMr. Akanga for the 1st DefendantMs.Kyalo for the 2nd DefendantDenis - Court AssistantIn the absence of:Mr. Ojwang, for the 3rd and 4th Defendants, as well as the 1st and 2nd Interested Parties.