Mbugua v Kahura & another (Environment and Land Case 508 of 2024) [2026] KEELC 3436 (KLR) (2 June 2026) (Judgment)

Mbugua v Kahura & another (Environment and Land Case 508 of 2024) [2026] KEELC 3436 (KLR) (2 June 2026) (Judgment) Neutral citation: [2026] KEELC 3436 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 508 of 2024 MN Kullow, J June 2, 2026 Between Kinuthia Mbugua Plaintiff and Philip Kairu Kahura 1st Defendant Embakasi Ranching Company Limited 2nd Defendant Judgment 1.The Plaintiff instituted this suit vide a Plaint dated 4th December 2024 seeking the following orders:a.A declaration that the suit land known as Nairobi Block 105/5304 measuring 0.1085 Ha belongs to the Plaintiff.b.Cancellation of the Certificate of Lease in respect of Nairobi Block 105/5304 dated 24th August 2020 issued to the 1st Defendant, Philip Kairu Kahura.c.A permanent injunction restraining the Defendants whether by himself, his employees, agents, assigns and/or any other person acting on their behalf from entering into, cultivating, developing, transferring or in any other manner whatsoever dealing with the suit parcel of land namely Nairobi Block 105/5304.d.The Costs of the suit together with interest at court rates. 2.The Plaintiff’s case is that he is the registered proprietor of all that parcel of land known as Nairobi Block 105/5304, measuring approximately 0.1085 hectares, having acquired the same from the 2nd Defendant, Embakasi Ranching Company Limited. The Plaintiff averred that a Certificate of Lease was issued to him on 15th April 2011, following which he took possession of the suit property and continuously utilized the same for farming activities from the year 2011. 3.It was the Plaintiff’s contention that sometime in March 2023, the 1st Defendant unlawfully entered onto the suit property without his consent, laid claim to ownership thereof, and caused maize to be planted on the land. The Plaintiff further stated that the 1st Defendant threatened his caretaker, wrote “No Trespass” notices on the gate and structures erected on the land, and intimidated his workers. According to the Plaintiff, upon visiting the property, his workers discovered germinating maize seedlings planted under the instructions of the 1st Defendant. 4.The Plaintiff further averred that the dispute was reported at Utawala Police Post and that his workers were subsequently summoned to the police station following allegations by the 1st Defendant that they had uprooted maize seedlings allegedly planted on the land. The Plaintiff denied those allegations and maintained that the 1st Defendant later produced a Certificate of Lease dated 14th August 2020 in his favour, notwithstanding that the Plaintiff already held a prior title issued in the year 2011. The Plaintiff contended that the 1st Defendant’s title was obtained long after his own and could not therefore supersede his proprietary interests over the suit property. 5.The Plaintiff also pleaded that during proceedings in MCELC No. E207 of 2023, it emerged that the 1st Defendant had previously instituted ELC No. 569 of 2015, Philip Kairu Kahura Vs Embakasi Ranching Company Limited & 3 Others, wherein judgment had allegedly been entered in favour of the 1st Defendant. 6.The Plaintiff asserted that despite being the registered owner of the suit property, he was never joined in those proceedings and was thereby denied an opportunity to defend his title. He accused the Defendants of fraud and illegality in procuring a parallel title and judgment over the suit property, and maintained that unless the orders sought were granted, he stood to lose land lawfully acquired and occupied by him since the year 2011. Defence and Counterclaim 7.The 1st Defendant filed a Statement of Defence and Counterclaim in which he denied the Plaintiff’s claim and asserted that he is the lawful proprietor of the suit property known as NAIROBI BLOCK 105/5304. He averred that he acquired a genuine title from the 2nd Defendant, Embakasi Ranching Company Limited, and put the Plaintiff to strict proof of ownership. The 1st Defendant further contended that he had been in occupation and possession of the suit property since allocation thereof on 17th July 1993 by the surveyors of the 2nd Defendant. 8.The 1st Defendant stated that after allocation of the suit property, he fenced the same, developed it and resided thereon peacefully until the year 2015, when unknown persons allegedly invaded the property and destroyed his houses, perimeter wall, cow sheds and latrines. He averred that he reported the incident at Ruai Police Station under OB No. 38/08/06/2015, but no action was taken. He further maintained that in January 2023 he cultivated the land and planted maize, beans, pumpkins and kunde, only for the Plaintiff’s agents or goons to allegedly destroy the crops on 21st April 2023. 9.The 1st Defendant denied the allegations of trespass and intimidation levelled against him and maintained that he merely asserted his rights as the rightful owner of the suit property. He admitted making reports to the police concerning destruction occasioned to the property and claimed that the damage suffered was valued at approximately Kshs. 700,000/=. The 1st Defendant further denied the allegations of fraud pleaded by the Plaintiff and insisted that the process leading to issuance of his title was lawful and undertaken through the 2nd Defendant and the Ministry of Lands. 10.In his Counterclaim, the 1st Defendant pleaded that he became a shareholder of the 2nd Defendant company in the year 1975 and was issued with Share Certificate No. 0053 after fulfilling all the requisite payments and conditions. He averred that by virtue of that shareholding, he was allocated Plot No. 1930 and Plot No. 1930B on 17th July 1993, after which he took possession and commenced developments thereon. He further stated that during a vetting exercise conducted by the 2nd Defendant between 2018 and 2019, all previous titles were nullified and members subjected to fresh verification, following which he was cleared and issued with titles to the parcels in dispute. 11.The 1st Defendant also relied on the decision in ELC No. 569 of 2015, Philip Kairu Kahura Vs Embakasi Ranching Company Limited & 3 Others, wherein, according to him, the Court declared him the bona fide owner of NAIROBI BLOCK 105/5303 and 105/5304. He further stated that he had been paying rates to the Nairobi City County and that Certificates of Lease in respect of the two parcels were issued to him on 14th August 2020. 12.Consequently, the 1st Defendant sought, through the Counterclaim, a declaration that he is the lawful owner of the suit property, a permanent injunction restraining the Plaintiff from interfering with the land, cancellation of any competing registrations, demolition of structures erected thereon by the Plaintiff, and costs of the suit. Hearing 13.The matter proceeded for hearing before this Court, wherein the Plaintiff and his witnesses testified in support of his case of the Plaintiff’s case and produced documentary evidence relating to the ownership and occupation of the suit property. The witnesses were cross-examined by counsel for the 1st Defendant and subsequently re-examined by counsel for the Plaintiff. 14.The 1st Defendant and his witnesses likewise testified in support of the Defence and Counterclaim and produced documentary evidence in support thereof. They were similarly cross-examined by counsel for the Plaintiff and thereafter re-examined. The 2nd Defendant neither entered appearance nor participated in the proceedings despite service. Upon close of the oral hearing, parties were directed to file and exchange written submissions, which they duly complied with. Submissions 15.In his written submissions, the Plaintiff identified the following issues for determination: whether he had established lawful and indefeasible ownership of NAIROBI BLOCK 105/5304; whether the Certificate of Lease issued to the 1st Defendant on 14th August 2020 was null and void; whether the judgment in ELC No. 569 of 2015 could bind him despite not being a party thereto; whether he was entitled to the reliefs sought; and who should bear costs of the suit. Counsel for the Plaintiff submitted that the Plaintiff had proved ownership through a valid Certificate of Lease issued on 15th April 2011, together with supporting conveyancing documents evidencing lawful transfer and registration. 16.The Plaintiff further submitted that under Sections 24, 25 and 26 of the Land Registration Act, his title enjoyed statutory protection as an indefeasible title which could only be impeached upon proof of fraud, illegality or misrepresentation. Reliance was placed on the decisions in Mumbi & Another Vs Kinuthia [2026] KEELC 8 (KLR), Dr. Joseph Arap Ngok Vs Justice Moijo Ole Keiwua & 5 Others, and Mbau Saw Mills Ltd Vs Attorney General & 2 Others [2014] KEHC 4946 (KLR) for the proposition that a registered proprietor’s title takes priority over competing equitable claims and that a subsequent title cannot defeat an earlier lawful registration. Counsel argued that the 1st Defendant’s title, having been issued in the year 2020 while the Plaintiff’s title subsisted, was unlawful and incapable of defeating the Plaintiff’s earlier registration. 17.On the issue of the prior proceedings in ELC No. 569 of 2015, the Plaintiff submitted that the judgment therein could not bind him since he was never joined as a party despite being the registered proprietor of the suit property. Counsel contended that the Plaintiff was thereby denied an opportunity to be heard contrary to the principles of natural justice. Reliance was also placed on the decision in Elijah Makeri Nyangw’ra Vs Stephen Mungai Njuguna & Another [2013] eKLR in support of the argument that a title obtained illegally, unprocedurally or through a corrupt scheme is liable to cancellation. The Plaintiff therefore urged the Court to allow the Plaint and dismiss the Counterclaim with costs. 18.On his part, the 1st Defendant submitted that he is the lawful and bona fide proprietor of the suit property, having acquired the same through lawful allocation by Embakasi Ranching Company Limited dating back to the year 1993. The 1st Defendant identified as issues for determination whether the Plaintiff had proved ownership; whether the 1st Defendant’s Certificate of Lease dated 14th August 2020 was null and void; whether allegations of trespass and intimidation had been proved; whether the judgment in ELC No. 569 of 2015 prejudiced the Plaintiff; and who ought to bear costs. Counsel submitted that the 1st Defendant’s interest originated from his shareholding in the 2nd Defendant company and allocation of plots P1930 and P1930B, which later became NAIROBI BLOCK 105/5304 and 105/5303 respectively. 19.The 1st Defendant further submitted that his Certificate of Lease was lawfully issued after a vetting process undertaken jointly by the 2nd Defendant and the Ministry of Lands, and that the Plaintiff had failed to prove fraud, illegality or procedural impropriety in the acquisition of his title. Reliance was placed on the decisions in Arthi Highway Developers Limited Vs West End Butchery Limited & 6 Others [2015] KECA 816 (KLR), Dr. Joseph Arap Ngok Vs Justice Moijo Ole Keiwua & 5 Others, Mumbi & Another Vs Kinuthia [2026] KEELC, and Ngari & Another Vs Ochengo; Ogut (Third Party) [2023] KEMC 111, for the proposition that a registered title is indefeasible unless fraud or illegality is specifically proved against the registered proprietor. Counsel maintained that the Plaintiff had failed to discharge the burden of proof required under the law. 20.The 1st Defendant also submitted that the allegations of trespass, threats and unlawful interference were unsubstantiated and unsupported by credible evidence. It was contended that any activities carried out by the 1st Defendant on the land, including planting crops and placing boundary markings, were lawful acts undertaken pursuant to his rights as a registered lessee. 21.Counsel further argued that the judgment in ELC No. 569 of 2015 did not prejudice the Plaintiff since the Plaintiff was not a party thereto and no orders therein directly extinguished his alleged interest. Ultimately, the 1st Defendant urged the Court to dismiss the Plaintiff’s suit and allow the Counterclaim with costs. Issues for Determination 22.I have carefully considered the pleadings filed herein, the evidence adduced by the parties and their respective witnesses, the documents produced in evidence, as well as the rival written submissions together with the authorities relied upon by counsel for the parties. In my view, the following issues arise for determination by this Court: -a.Who between the Plaintiff and the 1st Defendant is the lawful and bona fide proprietor of the suit property known as NAIROBI BLOCK 105/5304, and consequently whether the Plaintiff’s claim and the 1st Defendant’s Counterclaim have been proved.b.Whether the parties are entitled to the reliefs sought in the Plaint and Counterclaim respectively.c.Who should bear the costs of the suit and the Counter claim. Analysis and Determination Issue No: Who between the Plaintiff and the 1st Defendant is the lawful and bona fide proprietor of the suit property known as NAIROBI BLOCK 105/5304, and consequently whether the Plaintiff’s claim and the 1st Defendant’s Counterclaim have been proved. 23.The dispute before this Court revolves around competing claims of ownership over the suit property known as NAIROBI BLOCK 105/5304. The Plaintiff asserts ownership on the basis of a Certificate of Lease issued on 15th April 2011, while the 1st Defendant equally lays claim to the same property pursuant to a Certificate of Lease issued on 14th August 2020. Both parties accuse each other of trespass and unlawful interference with the suit property. 24.The starting point in determining disputes relating to ownership of land is the law governing registration of title. Sections 24(a), 25(1) and 26(1) of the Land Registration Act, 2012 provide that registration confers upon a proprietor absolute ownership together with all rights and privileges appurtenant thereto, and that a Certificate of Title shall be taken by Courts as prima facie evidence that the person named therein is the absolute and indefeasible owner, unless it is shown that the title was acquired through fraud, misrepresentation, illegality, unprocedural means or a corrupt scheme. 25.The Plaintiff produced before Court a Certificate of Lease showing that he became the registered proprietor of the suit property on 15th April 2011 after allegedly purchasing the same from the 2nd Defendant. He also produced transfer documents, consent documents and rates payment receipts in support of his claim. The Plaintiff further led evidence that he had been in possession and occupation of the suit property since the year 2011 and had utilized the same for farming purposes. 26.On the other hand, the 1st Defendant testified that his claim to the suit property traces back to his membership and shareholding in Embakasi Ranching Company Limited dating back to the year 1975, and allocation of Plot Numbers P1930 and P1930B in the year 1993. The 1st Defendant relied on Share Certificate No. 0053, allocation documents, evidence of vetting undertaken by the 2nd Defendant, and ultimately a Certificate of Lease issued on 14th August 2020. The 1st Defendant further relied heavily on the judgment in ELC No. 569 of 2015 - Philip Kairu Kahura Vs Embakasi Ranching Company Limited & 3 Others, wherein he contended that his ownership rights over the suit property had already been affirmed by the Court. 27.This Court has carefully considered the competing titles and evidence presented by both parties. It is not in dispute that the Plaintiff’s Certificate of Lease was issued earlier in time than that of the 1st Defendant. The Plaintiff’s title was issued in the year 2011, whereas the 1st Defendant’s title was issued in the year 2020. There was no evidence tendered before this Court to demonstrate that the Plaintiff’s title had ever been revoked, cancelled or impeached prior to issuance of the subsequent title in favour of the 1st Defendant. 28.The Court of Appeal in Wreck Motors Enterprises Vs Commissioner of Lands & Others, Civil Appeal No. 71 of 1997, cited with approval in Gitwany Investment Ltd Vs Tajmal Ltd & 3 Others [2006] eKLR, held that where two competing titles exist over the same property, the title that is first in time prevails, provided it was lawfully acquired. Similarly, in Arthi Highway Developers Limited Vs West End Butchery Limited & 6 Others [2015] eKLR, the Court emphasized that the sanctity of title cannot be used to sanitize titles founded on fraud or procedural irregularities. 29.The Court has also considered the effect of the judgment in ELC No. 569 of 2015 relied upon by the 1st Defendant. Whereas the 1st Defendant contends that the said judgment confirmed him as the lawful owner of the suit property, it is evident from the material placed before this Court that the Plaintiff herein was never joined as a party to those proceedings despite being the holder of an existing Certificate of Lease over the suit property. 30.In the view of this Court, a judgment cannot bind a party who was never accorded an opportunity to be heard, as this would offend the well-established principle of natural justice embodied in the doctrine of audi alteram partem, namely that no person should be condemned unheard, as well as the right to a fair hearing guaranteed under Article 50 of the Constitution. 31.Further, although the 1st Defendant asserted that his allocation dates back to the year 1993, the Court notes that allocation documents and share certificates by themselves do not confer indefeasible ownership where another party already holds a registered title. In Mbau Saw Mills Ltd Vs Attorney General & 2 Others [2014] eKLR, the Court held that allotment rights or preliminary allocation documents cannot override a duly registered title unless the existing registration is first lawfully challenged and cancelled. 32.The burden of proving fraud, illegality or procedural impropriety in the Plaintiff’s acquisition of title rested squarely upon the 1st Defendant pursuant to Section 107 of the Evidence Act. Allegations of fraud must not only be specifically pleaded but must also be strictly proved to a standard higher than a balance of probabilities though not beyond reasonable doubt. This principle was reiterated in Kinyanjui Kamau Vs George Kamau [2015] eKLR. Upon evaluating the evidence on record, this Court finds that the 1st Defendant did not tender sufficient evidence demonstrating that the Plaintiff participated in any fraud, illegality or corrupt scheme leading to issuance of the 2011 title. 33.Consequently, and guided by the doctrine that the first lawful title in time prevails, this Court is satisfied that the Plaintiff established a superior proprietary interest over the suit property. The Plaintiff’s Certificate of Lease issued on 15th April 2011 remains the valid and enforceable title over NAIROBI BLOCK 105/5304, while the subsequent title issued to the 1st Defendant on 14th August 2020, having been issued during the subsistence of the Plaintiff’s title, cannot stand. 34.Accordingly, this Court finds and holds that the Plaintiff has proved his claim on a balance of probabilities, while the 1st Defendant has failed to prove the Counterclaim to the required standard. Issue No:2 Whether the parties are entitled to the reliefs sought in the Plaint and Counterclaim respectively. 35.Having found that the Plaintiff is the lawful and bona fide proprietor of the suit property known as NAIROBI BLOCK 105/5304, it follows that the Plaintiff is entitled to the protection accorded to a registered proprietor under the provisions of the Land Registration Act, 2012. The evidence placed before this Court demonstrates that the Plaintiff acquired and registered his interest over the suit property in the year 2011, and that the said title remained valid and subsisting at the time the 1st Defendant procured a subsequent Certificate of Lease in the year 2020. Consequently, this Court is satisfied that the Plaintiff has established a basis for the declaratory and injunctive reliefs sought in the Plaint. 36.The Court further finds that the Certificate of Lease issued to the 1st Defendant on 14th August 2020 cannot stand in law, having been issued during the subsistence of the Plaintiff’s earlier title. As was held in Gitwany Investment Ltd Vs Tajmal Ltd & 3 Others [2006] eKLR, where two competing titles exist over the same parcel of land, the title first in time prevails, provided it was lawfully acquired. In the present case, there was no evidence demonstrating that the Plaintiff’s title had been cancelled, revoked or impeached before issuance of the subsequent title to the 1st Defendant. The inevitable consequence is that the later title issued to the 1st Defendant is liable to cancellation. 37.Equally, the Court is persuaded that the Plaintiff established acts of interference and trespass by the 1st Defendant upon the suit property. The evidence tendered showed that the 1st Defendant entered upon the land, caused crops to be planted thereon, placed “No Trespass” markings on structures erected on the property and asserted ownership adverse to that of the Plaintiff. Such actions amounted to interference with the Plaintiff’s quiet possession and proprietary rights over the suit property. The Plaintiff is therefore entitled to a permanent injunction restraining the Defendants, their agents or servants from entering, cultivating, transferring, developing or in any manner whatsoever interfering with the suit property. 38.On the other hand, having found that the Plaintiff holds the valid and superior title to the suit property, the Court finds that the 1st Defendant’s Counterclaim is devoid of merit. The prayers seeking declarations of ownership, cancellation of the Plaintiff’s title, eviction orders and demolition of structures erected on the suit property cannot issue in favour of the 1st Defendant. The Counterclaim is therefore for dismissal in its entirety. Issue No:3 Who should bear the costs of the suit and the Counterclaim 39.Under Section 27 of the Civil Procedure Act, costs follow the event unless the Court for good reason orders otherwise. In the present case, the Plaintiff has substantially succeeded in his claim, while the 1st Defendant’s Counterclaim has failed. The Court finds no reason to depart from the general principle that costs follow the event. Accordingly, the Plaintiff shall have the costs of the suit and the Counterclaim. Disposition 40.In the end, this Court finds that the Plaintiff has proved his case on a balance of probabilities and accordingly enters judgment in favour of the Plaintiff against the Defendants jointly and severally in the following terms:-a.A declaration be and is hereby issued that the Plaintiff is the lawful and bona fide proprietor of the parcel of land known as NAIROBI BLOCK 105/5304 measuring approximately 0.1085 Ha.b.An order be and is hereby issued cancelling the Certificate of Lease dated 14th August 2020 issued in favour of the 1st Defendant, Philip Kairu Kahura, in respect of NAIROBI BLOCK 105/5304.c.A permanent injunction be and is hereby issued restraining the Defendants, whether by themselves, their agents, servants, employees and/or any person acting under their authority, from entering upon, cultivating, developing, transferring, alienating or in any manner whatsoever interfering with the Plaintiff’s quiet possession and ownership of NAIROBI BLOCK 105/5304.d.The 1st Defendant’s Counterclaim is hereby dismissed in its entirety.e.The Plaintiff shall have the costs of the suit together with costs of the Counterclaim and interest thereon at Court rates.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 2ND DAY OF JUNE, 2026.MOHAMMED N. KULLOWJUDGEJudgment delivered in the presence of: -Ms. Abuga for the PlaintiffMr. Nyamweya for DefendantPhilomena W. Court Assistant