https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4152

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NANYUKI** **ELC APPEAL NO. E001 OF 2024** **JACINTA WAIRIMU KIMANI…………………………1ST APPELLANT** **HASMUKHLAL KHETSHI SHAH…………………..2ND APPELLANT** **LATA HASMUKHLAL SHAH………………………..3RD APPELLANT** **NARESH HIRJI SHAH……………………………….4TH APPELLANT** **DILSUDHA NARESH SHAH…………………………5TH APPELLANT** **VERSUS** **LUCY WANJIRU GACHAI** **(Suing as the administrator of the estate** **of JAMES GACHAI NDUHUI (Deceased…………...RESPONDENT** ***(Being an appeal from the judgement of Hon Kithinji A.R. (CM) delivered at Nanyuki Law Courts on 20.12.2023 in CMELC No. 171* *of 2018 )*** **JUDGMENT** *The Case before the Trial Court* 1. The respondent was the plaintiff while the appellants were the defendants in the case **CMELC 171 OF 2018** filed before the magistrates court at Nanyuki. The respondent instituted the said case vide a plaint dated 27.9.2018 where she pleaded that; pursuant to a sale agreement of 1993, the plaintiff’s husband legally acquired **unsurveyed Commercial C. Plot No 64 –** Nanyuki Municipality (now illegally converted to Title Number **Nanyuki/Municipality Block 8/908**) on or about 1993. That the plaintiff and the deceased took possession of the subject land in 1993 and started cultivating the same and they have been in continuous and uninterrupted possession and occupation of the same. 2. However, on or about 22nd July, 2018 the plaintiff discovered that some persons of Asian origin were having a meeting on her plot. She was to discover that some unknown persons in cahoot with the 1st defendant had processed a lease for her property and converted the same to title **Nanyuki Municipality Block 8/908** which was then transferred to the 2nd-5th defendants. Her claim is that the purported conversion of her commercial plot C 64 within Nanyuki municipality and the transfer of the same was fraudulent, illegal, null and void. 3. The plaintiff therefore prayed for judgment against the defendants in the following terms; **“** 1. **An order of injunction to restrain the Defendants, their servants, workmen, licensees, agents or any other persons acting on their own behalf or on behalf of the defendants from howsoever trespassing, entering, encroaching, remaining in, selling, subdividing, taking over, dispossessing, alienating, reclaiming, fencing, cultivating, charging or further charging and or harassing the plaintiff or interfering with her peaceful entitlement and possession of Unsurveyed Commercial C. Plot No. 64 – Nanyuki Municipality (now illegally converted to Title Number Nanyuki/Municipality Block 8/908).** 2. **An order of inhibition restraining any dealings of any nature whatsoever on Unsurveyed Commercial C. Plot No. 64 – Nanyuki Municipality Block 8/908) without the express approval and consent of the plaintiff.** 3. **An order directed to the Land Registrar Laikipia District or such other officer of the lands department(s) to immediately cancel any Titles/Lease documents and delete any illegal entries made in respect of or in favour of the defendants or any other person and to immediately rectify the register to reflect the plaintiff as the owner of an unencumbered unsurveyed Commercial C. Plot No. 64 – Nanyuki Municipality (Title number Nanyuki/Municiplaity Block 8/908).** 4. **OCS - Nanyuki police station to ensure compliance with any orders issued herein.** 5. **Cost of the suit plus interest.”** 6. The defendants opposed the suit vide their statement of defence dated 26.10.2018 where they deny the claim of the plaintiff, particularly the allegations of fraud. The first defendant pleaded that he was offered **unsurveyed commercial plot number 64, Nanyuki Municipality** in 1994 by the Government, he accepted the offer by paying the required charges, caused it to be surveyed and a valid lease was issued to him. 7. The 2nd -5th defendants averred that they were in the process of developing their plots and had already erected a fence. 8. At the trial, the case of the plaintiff was advanced by 3 witnesses. LUCY WANJIRU GACHAU, the plaintiff testified as PW1. She adopted her witness statement dated 22.9.2018 and a further one dated 8.2.2019 as her evidence. This latter statement was not traceable in the maze of the two records of appeal. She also produced the documents in her list of documents as exhibits 1-18. 9. Her evidence is that on 16.3.1993 her husband purchased the suit plot No. Unsurveyed Commercial C. plot No 64 – Nanyuki Municipality (now illegally converted to Title Number Nanyuki/Municipality Block 8/908) from JANE R. M. NYAGAH who was represented by her husband Benjamin Murungaru Mugo. 10. That they were given the original letter of allotment and they took possession of the plot. Pw1 planted trees and she has been farming on the said plot. But on 22.7.32018 she found some persons of Asian origin holding a meeting on the suit parcel, while on 26.9.2018, she found people digging holes on the said plot, only to later discover that her plot had been converted to title **Nanyuki Municipality Block 8/908** in favour of the 2nd-5th defendants. She reported the matter to the police, of which the persons in close association with the 1st defendant were charged in a criminal case. 11. Pw1 avers that the minutes of the allocation which she availed as an exhibit contained the list of allottees of which Michael Kariuki, the former 1st defendant does not appear in that list. 12. In cross examination, Pw1 stated that the she was not there when the sale agreement was made between her husband and the seller Banjamin Murungaru who was representing his wife, but she has letters of administration for his estate. That upon the purchase, her husband was given the letter of allotment which had been paid for. She contends that she has no lease or title to the suit plot and she did not sue the land Registrar. She reiterated that she reported the matter to the police where criminal charges were preferred concerning plots 909, 908 and 907. She avers that she has been paying rates for the suit plot. She tries to fence the plot in vain as some people keep on removing the fence. 13. PW2 was JANERUSA MUGO. She adopted her witness statement dated 27.10.2021 as her evidence. She identified herself as the wife of Benjamin Murungaru Mugo. She avers that in 1991, she balloted and was allocated the un-surveyed Commercial plot C 64 situated in Nanyuki town and was issued with a letter of allotment on 5.12.1991. That in 1993, they ( herself and her husband) agreed to sell the plot, and since she was staying in Embu, she authorized her husband to undertake the sale. They sold the plot to James Gachau Nduhiu. 14. On cross examination, Pw2 stated that she paid sh 33 000 for the plot after allocation and acceptance. On re-examination, she stated that she was shown the plot on the ground. 15. PW3 is one BENJAMIN MURUNGARU MUGO. He adopted his witness statement dated 27.10.2021 as his evidence, which mirrors that of his wife, Pw2. He added that he was a retired town clerk while James Gachau was his friend. He also stated that the plot was unsurveyed as at the time of allocation but was later surveyed. He avers that he transferred the plot to James at the offices of the municipal council. 16. On cross examination, Pw3 stated that the land was government land, then there was gazettement for alienation of which his wife applied for allocation and she was allocated the suit plot C 64 which they later sold to Gachau. 17. The case of the defendants was advanced by two witnesses. DW1 was JACINTA WAIRIMU KIMANI, who took over her deceased husbands case Michael Kimani Kariuki the 1st defendant. The latter had filed a witness statement dated 26.10.2018 which Dw1 adopted as her evidence alongside her own statement. She also produced 10 documents and 15 other documents as her exhibits. In the statement of Michael Kimani Kariuki, he avers that in 1994, the government offered plots , and he was allocated unsurveyed commercial plot no. 64 in Nanyuki municipality, he accepted the offer and paid sh. 33670. That the plot was then surveyed, RIM was amended and a new grant was issued under the repealed Registered Lands Act as **Nanyuki Municipality Block 8/ 908.** He was issued with a lease and he commenced the payment of rates. He later transferred the plot to the 2nd- 5th defendants. 18. In her own statement, DW1 identifies herself as the legal representative of Michael Kariuki of which her evidence mirrors the contents in the statement of her deceased husband. She was recalled to produce a further list of documents dated 29.6.2023 as exhibits 16 to 20. She avers that her husband decided to sell the land in year 2016. 19. In cross examination, DW1 reiterated that her husband was allocated the plot in 1994, even though she does not have the application and she is not aware of how he did the balloting, but the plot was unsurveyed no. 64 which did not have a C. She dose not know if plaintiffs plot C 64 is the same plot as theirs no.64. That payment of sh 33670 was made and the lease was issued in 2007. She averred that there was a letter from the Commissioner of Lands requesting him to collect the lease. 20. She further stated that plaintiffs document at page 166 was a letter requesting the Land Registrar to hold registration of parcels 908 and 909. She affirmed that her husband sold the suit land in year 2016. That the land is not developed and she does not know who takes care of the same. 21. In re-examination, Dw1 stated that no one was arrested in the criminal case for plot 908 and that her husband was not part of the criminal case. 22. DW2 is NARESH HIJI SHA, the 4th defendant. He adopted the witness statement of Hasmuklala Khetshi Sha, the 2nd defendant as his evidence and he produced the documents in their list as exhibits. In the aforementioned witness statement, it is stated that in year 2016, the defendants set out to buy the suit plot, they did a search at lands office and established that the title belonged to the seller who produced all the relevant documents. Then they bought the parcel, a transfer was effected and they were issued with a lease certificate on 22.2.2018. He avers that they are innocent purchasers for value as they conducted due diligence. 23. In his oral evidence, Dw2 stated that the defendants bought the suit plot from Michael Kariuki, of which they did a search and found that the title was under his name. 24. In cross examination, Dw2 reiterated that they had a sale agreement with Kariuki, they did a search which is not in court and that there was nothing in writing. He does not know who was the initial allottee of the suit plot. That they tried to fence, but they were stopped by a court order. They have been paying land rent. They do not have a counterclaim. 25. In the judgment delivered on 20.12.2023, the trial court reached the conclusion that the 1st defendant acquired the suit-land fraudulently, and proceeded to allow the claim of the plaintiff. *The Appeal* 1. The defendants, now the appellants filed a joint Memorandum of Appeal dated 18.1.2024 where they raised 5 grounds of appeal set out as follows; **“** 1. **The Learned Magistrate erred in law in failing to analyse deeply the evidence adduced before him thus making a wrong decision.** 2. **Although the parties had framed issues which could guide the court, the Learned Magistrate ignored all of them.** 3. **The Learned Magistrate failed to address himself on the issue of innocent purchaser for value without notice.** 4. **The Learned Magistrate allowed himself to be influenced in his judgment by criminal proceedings in which the parties herein were not involved and even those involved were not convicted.** 5. **The Learned Magistrate found there was fraud committed although no sufficient evidence was adduced to that effect.”** 6. They pray that the appeal be allowed with costs. 7. The appeal was heard by way of written submissions. The submissions of the 1st Appellant are dated 7.4.2026. She avers that the trial court ought to have been guided by the fundamental principle of law that the legal burden of proof rests with the claimant and remains constant throughout the trial as was set out in the case of **Alice Wanjiru Ruhiu V Messiac Assembly of Yahweh (2021)eKLR.** To this end the 1st appellant submits that the respondent did not proof a superior proprietary interest in the suit property to that of Michael Kariuki. 8. She argues that Michael Kariuki was allotted the suit property in 1994, accepted the offer by paying the requisite sum, the plot was processed through the lands office, the lease instrument was prepared and he was eventually issued with a certificate of lease on 14.8.2009. That in contrast the allotment letter of 1991 which the respondent relied upon required acceptance and payment within 30 days of which that period lapsed on 15.1.1992, thus the respondent was required to give cogent evidence that the allotment letter remained valid, was revived and extended. 9. This far the 1st appellant relies on the cases of **Joseph N. K. Arap Ng;ok V Moijo Ole Keiwua & 4 Others (1997)KECA 1 (KLR), Torino Enterprises Limited V Attorney General (2023) KESC 79** and **Doshi V Chemutut & 7 Others (Civil Appeal E020 of 2023) (2025) KECA 776 (KLR)** to buttress the point that a letter of allotment by itself does not amount to a title and that a title arises only after compliance with the conditions in the allotment letter and subsequent issuance of the registrable instruments. 10. The 1st appellant further submitted that the conclusion made by the trial court that the title issued to Michael Kariuki was fraudulently acquired was wrong as the same was not supported by any evidence. That it was not enough for the court to infer fraud from suspicion or from surrounding controversy since fraud has to be specifically pleaded and strictly proved. The appellant cited the case of **Vijay Morjaria V Nansingh Madhusingh Darbar & Another (2000) eKLR (Supra)** to support the aforementioned averment. 11. The submissions of the 2nd – 5th appellants are dated 7.4.2026. They argue that the trial court erred in accepting the respondents assertions at face value, and that the said court failed to address the issues framed by the parties. To this end, the appellants contend that they had demonstrated that they are the registered proprietors of the suit property yet the trial court did not consider whether they qualified to be bona fide purchasers. To buttress this point the appellants relied on the cases of **Hajji Abdu Nasser Katende V Vithalidas Haridas & Co Ltd (2008) E.A. 173** and **Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura V Attorney General & 4 Others (2017) KECA 698 (KLR).** 12. The appellants argue that in tandem with the provisions of Section 26 of the Land Registration Act, their certificate of title is prima facie evidence of ownership which could only be impeached on grounds of fraud or illegality to which the registered proprietor is proved to be a party. That the trial court failed to apply this statutory test and therefore arrived at an erroneous conclusion. They argue that there was no documentary proof from the land registry nor expert or forensic evidence demonstrating any irregularity in the registration of the title in favour of these appellants. To buttress this point the appellants relied on the cases of **Vijay Morjaria V Nansingh Madhusingh Darbar & Another (2000) eKLR (Supra)** and **re Estate of Elizabeth Chelimo Too alias Elizabeth Chelimo Sirma (Deceased) (Succession Cause 23 of 2023) (2024) KEHC 5895 (KLR) (24 May 2024) (Ruling).** 13. The submissions of the respondent are dated 18.3.2026. they argue that the real issue in controversy between the parties before the Trial Court and in the Appeal relates to the ownership of the suit plot unsurveyed commercial C. Plot No 64 Nanyuki Municipality (illegally registered as Title Number Nanyuki/Municipality Block 8/908). She avers that the 2nd to 5th appellants did not plead or claim to be innocent purchasers of the suit property before the trial court and therefore they cannot advance such a claim in this appeal. Thus the facts of this case are dissimilar to the facts in the case of **Lawrence P. Mukiri Mungai, Attorney of francis Muroki Mwaura Vs Attorney General & 4 Others (2017) KECA 698 (KLR)** in which the claimant had a valid title. 14. It is further argued that the 2nd to 5th appellants cannot just dangle an instrument of title and claim to have indefeasible rights over the same when there is overwhelming evidence that its root was tainted with extreme fraud. To this end, it is argued that these appellants did not avail a sale agreement, they did not show how and to whom they paid monies for the land and they had no transfer documents executed or registered at lands office. They also did not have any single receipt for payment of stamp duty or any other registration charges. 15. Citing the case of **Arthi Highway Developers Ltd V West End Butchery Ltd & 6 Others Civil Appeal No. 246 of 2013** the respondent argues that a fraudulent title holder cannot pass a valid title to another person. That if the root of the title is bad, all subsequent transactions are equally invalid. 16. Other cases relied upon by the respondent to buttress the point that a title obtained fraudulently cannot be protected include **Makeri Nyang’wara V Stephen Mungai Njuguna & Another (2013)eKLR, Chemey Investment Limited V Attorney General & 2 Others (2018)eKLR** and **Dina Management Ltd Vs County Government of Mombasa & 5 Others (2021) eKLR.** 17. This being a first appeal, the court reminds itself of its primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the evidence and then determine whether the conclusions reached by the learned magistrate are to stand and give reasons either way as was held in the case of **Selle and Another Versus Associated Motor Boat Company Ltd & Others [1968] Ea 123,** **Abok James Odera t/a A.J Odera & Associates Vs John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR.** 18. I have duly considered the record including the pleadings, the evidence tendered, the grounds raised in the memorandum of appeal and the rival submissions. It is noted that after the filing of the memorandum of appeal, the 2nd- 5th appellants parted ways with the 1st appellant in terms of legal representation whereby each side filed their own Record of Appeal. The one by the 1st appellant is dated 10.9.2025 while the one by the 2nd-5th appellants is dated 18.10.2025. 19. Before delving into the determination of the matter, I must point out that the two records of appeal are jumbled up, so much so that it is extremely difficult to navigate through the maze of what has been filed as a record. For instance, DW2, one Naresh Hiji Shah, adopted the witness statement of Hasmukhlala Khetshi Shah as his evidence, however, this statement was not in their record of appeal, it was traced in the record of the 1st appellant. Some documents are wrongly paginated, others have no pagination, while others are filed repeatedly. Further, irrelevant documents have been filed, while primary documents like the pleadings which ordinarily and pragmatically should be filed at the beginning of the record are banged somewhere in the middle of the record. As for documentary evidence, they are haphazardly thrown around, of which some documents are not legible. 20. Just to give another example of this mess, the 2nd – 5th appellants items No. 12 is the defendants’ statement of Defence to be found at pages 231 – 241. However, the actual pages 231 – 241 contains the appellants’ documentary evidence and not the pleading! The end result is a set of a messy bulky record of appeal. Nevertheless the court will soldier on in analysing the evidence. 21. The respondent is tracing her claim to an allotment of the suit plot in 1991 to Pw2, whereby, the latter sold the said plot to James Gachau, the deceased husband of the respondent. On the other hand, the 1st appellant avers that the suit parcel was allocated to her deceased husband in year 1994 and he then sold the same to the 2nd- 5th defendant. The crux of the matter relates to the root of the title. Put it differently, how the suit parcel was acquired becomes the primary issue for consideration so as to determine who has the legitimate claim to the suit land as between the protagonists. 22. In the Court of Appeal case of **Munyu Maina-Vs- Hiram Gathina Maina (2013) eKLR,** the court outlined the following principle regarding the duty of the holder of an impeached title: **“When a registered proprietor’s proof of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership; the registered proprietor must go beyond the instrument and prove the legality on how he acquired the title and show that the acquisition was lawful, formal and free from any encumbrances”** 1. In **Daudi Kiptugen v Commissioner of Lands & 4 Others [2015] eKLR** the court stated that: **“…the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process, the title itself cannot be a good title.”** 1. On the side of the respondent she produced a letter of allotment issued on 5.12.1991 to Jane Nyaga, Pw2 indicating that the suit plot **Commercial C PLOT NO.64** was allotted to her. In the plaintiffs further list dated 7.8.2023 is the list of allotees where the name of Jane Nyaga is to be found aligned to plot 64. Both Jane , PW2 and her husband, PW3 have given an account of how they embarked on selling the suit plot to James Gachau, the deceased husband of the respondent. 2. This far, the respondent has given a plausible account of her claim, tracing the roots of the suit plot to the 1991 allocation to Pw2, Jane Nyaga. 3. On the other hand, the letter of allotment to Michael Kariuki for unsurveyed plot **Commercial plot 64** was issued on **27.10.1994** (see page 87 in the Record of the 2nd-5th appellants). However, such an allocation was unlawful as the plot in question, despite removing the C, was not available for allocation, the same having been allocated to Pw2 much earlier. What more, the appellants have not availed any document to show that Michael Kariuki was in the list of allottess of the plots. 4. I therefore find that the title issued to Michael Kariuki on **4.8.2009** has no roots. What more, it is apparent that even before this title was issued, a red flag had been raised whereby vide a letter of **16.10.2008**, the Chief Land Registrar, one T.N.Mburu wrote to the District Land Registrar Nanyuki with instructions to put on hold the registration of titles Nanyuki Municipalitry Block **8/907, 908 and 909** and return the same back to await further communication. The District Land Registrar complied vide his letter of **17.10.2008.** In another letter of **19.10.2009,** the Chief Land Registrar is complaining to the District Land Registrar regarding issuance of a certificate of lease for parcel 63. In his response thereof vide the letter of 28.10.2009, the District Land Registrar affirmed that the said lease, **“together with others”** were recalled back and that he personally brought them on **17.10.2008**, adding that there were no records of the green cards or white cards in their registry for the said parcels. 5. It goes without saying that the suit parcel was one of the discussed **“other parcels”** in view of the letter of **16.10.2008** from the Chief Land Registrar. The registration of the title on **4.8.2009** in favour of Michael Kariuki has not been explained, since the entity with the mandate to carry out such a task (the Chief Land Registrar) had put on hold registration of the suit parcel. It follows that the aforementioned registration of the suit parcel in favour of Michael Kariuki was irregular and unlawful. 6. The speed at which the transfer was effected from the 1st to 2nd -5th appellants is another tell tale sign that this was yet another questionable transaction. Michael Kimani Kariuki made the offer to sell the suit parcel to the 2nd -5th appellants on **14.1.2016**, which means that other crucial transactions were done thereafter including the sale agreement. However, like the quintessential magic word “ *abracadabra”*, the title in the name of the 2nd-5th appellants was issued barely two weeks later on **2.2.2016!.** 7. In the case of **Chemey Investment Limited v Attorney General & 2 others [2018] eKLR**, the Court of Appeal had this to say in regard to a speedy land transaction in a case where even government buildings were condemned in record time; **“Such hurried and manipulated exercises must never be confused with efficient service to the public”.** 1. At this juncture, I pose the question; just when did the 2nd-5th appellants proceed to accept the offer, conduct due diligence, execute the sale agreement, the transfer and lodge the documents for registration? As it were, the 2nd-5th appellants have not even availed any documents to indicate how they set out to buy this land in a record two weeks or thereabout. They cannot therefore claim to be innocent purchasers. 2. Still in **Chemey Investment Limited v Attorney General & 2 others supra**, the Court stated that; **“Decisions abound where courts in this land have consistently declined to recognise and protect title to land, which has been obtained illegally or fraudulently, merely because a person is entered in the register as proprietor. See for example Niaz Mohamed Jan Mohamed v. Commissioner for Lands & 4 Others [1996] eKLR; Funzi Island Development Ltd & 2 Others v. County Council of Kwale (supra); Republic v. Minister for Transport & Communications & 5 Others ex parte Waa Ship Garbage Collectors & 15 Others KLR (E&L) 1, 563; John Peter Mureithi & 2 Others v. Attorney General & 4 Others 5 Others [2006] eKLR; Kenya National Highway Authority v. Shalien (2017) eKLR; Arthi Highway Developers Masood Mughal & Limited v. West End Butchery Limited & 6 Others [2015] eKLR: Munyu Maina v Hiram Gathiha Maina [2013] eKLR and Milan Others v. City Council of Nairobi & Others Kumarn Shah & , HCCC No. 1024 of 2005.The effect of all those decisions is that sanctity of title was never intended or understood to be a vehicle for fraud and illegalities or an avenue for unjust enrichment at public expense”.** 1. Similarly in the case at hand, I find that the title issued to Michael Kariuki, and by extension the 2nd-5th appellants was unlawful and cannot be protected by this court. Parties have made heavy weather regarding the criminal proceedings, but the same do not in any way affect the final finding of this court, that the title held by 2nd – 5th appellants has been impeached. 2. In the end, I find no reason at all to disturb the decision of the trial court. Thus this appeal is hereby dismissed with costs to the respondent. **DATED, SIGNED AND DELIVERED AT NANYUKI THIS 2ND DAY OF JULY 2026 THROUGH MICROSOFT TEAMS.** **LUCY N. MBUGUA** **JUDGE** **In the presence of:** **Nancy Mwangi – C/A** **Sanjay for 2nd – 5th appellants** **Mwangi Maingi for 1st appellant** **Kirimi for respondent**