https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4064

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT ELDORET** **ELC CASE No. 325 OF 2016** **LILIANCHEPKOECH LAGAT** …………………………………… **PLAINTIFF** **VERSUS** **LEAH CHEBESA** ……………………………………………. **1ST DEFENDANT** **SAMUEL TANUI KETER** …………………………………. **2ND DEFENDANT** **THE COUNTY LANDS UASIN GISHU** …………………. **3RD DEFENDANT** **THE ATTORNEY GENERAL** …………………………….. **4TH DEFENDANT** **JUDGMENT:** 1. This suit was commenced by way of a Plaint dated 8th November, 2016 and amended on 16th February, 2017. In the said Plaint, the Plaintiff seeks the following reliefs against the Defendants:- 2. An order for permanent injunction restraining the Defendant (sic) by himself, his servants and/or agents from interfering, trespassing, intermeddling and/or in any other manner dealing with the Plaintiff’s use, possession and/or ownership of all that Land Parcel Number ELDORET MUNICIPALITY/BLOCK 6/449 or thereabout. 3. Declaration that the Plaintiff is the bonafide registered owner of Land Parcel Number ELDORET MUNICIPALITY/BLOCK 6/449 or thereabout. 4. The Defendants fraudulent title be cancelled accordingly and records at the Lands office expunged. 5. Cost of the suit. 6. Any other order the court may fit (sic) to grant. 7. The Plaintiff claims that she is the legitimate and bonafide registered owner of all that parcel of land known as Eldoret Municipality/Block 6/449 (the suit property herein). The Plaintiff averred that she had full and vacant physical possession thereof pursuant to purchase without notice of any defect in title. The case according to the Plaintiff is that the 1st Defendant encroached into and unlawfully occupied the suit property without the Plaintiff’s knowledge. The Plaintiff averred that she received a letter from the 1st Defendant accusing her of trying to trespass into the 1st Defendant’s land. 8. The Plaintiff avers that she discovered after filing suit that the 1st Defendant was registered as the owner of the suit land on 1st September, 2016 and that she transferred it to the 2nd Defendant on 7th September, 2016. The Plaintiff averred that she had never authorised the Defendants to deal with the suit land in any manner without her consent or authority. The Plaintiff claims that the 1st Defendant has on several occasions threatened to displace her from the suit land. The Plaintiff accused the 1st Defendant of colluding with officers of the 3rd Defendant to fraudulently register the land in her name, and she set out the particulars of the alleged fraud. 9. The Plaintiff averred that a search with the Interested Party (sic) had yielded no positive results as regards the grant of a lease in favour of the 1st and 2nd Defendants. The Plaintiff asserts that she had established with the office of the Lands Secretary that for a rent clearance certificate to be valid, it must be signed by the lands Secretary, Internal Audit Controller and the Chief Accountant. The Plaintiff thus claims that the 1st and 2nd Defendants’ title is a product of forgery and manipulation of records, born of connivance with staff at the County Lands Office, Eldoret, the 3rd Defendant herein. The Plaintiff therefore prayed for judgment in the terms set out above. 10. The 1st and 2nd Defendants filed a joint Amended Statement of Defence dated 26th May, 2017 opposing the Plaintiff’s claim. The 1st and 2nd Defendants denied the allegation that the Plaintiff is the legitimate bonafide and registered owner of the suit property. They asserted that the 1st Defendant is the registered owner of the land, and holds a Certificate of Lease issued on 1st September, 2016. 11. The 1st and 2nd Defendants averred that the 1st Defendant was issued with a letter of allotment on 22nd April, 1997 which she accepted and paid the requisite fee on 1st September, 2016 and thereafter, she was issued with the aforesaid Certificate of Lease. That the 1st Defendant sold the suit land to the 2nd Defendant’s father, who was then issued with a Certificate of Lease on 7th September, 2016. They denied the claim that the 1st Defendant had encroached into the land, and assert that the Plaintiff has never owned the land. 12. The 1st and 2nd Defendants denied serving any letter on the Plaintiff, and averred that an order of injunction cannot be issued against them as the land is currently registered to the 2nd Defendant’s father. The 1st and 2nd Defendants denied that they had no consent or authority to deal with the land, as well as the alleged fraud and collusion and the particulars of fraud pleaded in support thereof. The 1st Defendant denied threatening to or attempting to displace the Plaintiff from the suit land. The 1st Defendant averred that the Plaintiff had never been registered as the owner of the suit land. 13. The 1st and 2nd Defendants denied conniving with any officers of the 3rd Defendant to fraudulently disposess the Plaintiff of her land. They alleged that the suit is bad in law, actuated by malice and meant to abuse court process and ought to be struck out. They claimed that the suit is unsustainable as it is based on fraudulent claims and they also set out the particulars of the said fraud on the part of the Plaintiff. They denied the allegation that their titles were forged and pointed out that no report had been made to the police of the said forgery. The 1st and 2nd Defendants asked that the Plaintiff’s suit be dismissed with costs to the Defendants. 14. The 3rd Defendant on its part filed an undated Statement of Defence on 16th May, 2019. They equally denied that the Plaintiff was the legitimate bonafide and registered owner of the suit land. The 3rd Defendant averred that the 1st Defendant was issued with a letter of allotment on 22nd April, 1997 which she accepted and was later issued a Certificate of Lease, making her the owner of the land. That the 1st Defendant then sold the land to the 2nd Defendant’s father, who now holds a Certificate of Lease issued on 7th September, 2016. The 3rd Defendant denied knowledge of the occupation of the land or the purported encroachment. 15. The 3rd Defendant further denied that its office colluded to fraudulently register the land in the 1st Defendant’s name, as well as the particulars of fraud set out in the Plaint. The 3rd Defendant denied the allegations of forgery or manipulation of records and connivance by its staff, and added that it only acted per its statutory and constitutional duties. That all registrations regarding the suit property were done in good faith, upon certifying that the necessary completion documents availed were duly executed and on complying with all procedures. The 3rd Defendant averred that it could not therefore be faulted, and prayed that the Plaintiff’s suit be dismissed with costs. **Hearing and Evidence:** *The Plaintiff’s Case;* 1. The Plaintiff’s case was heard on 9th February, 2021. The Plaintiff herself testified on oath in support of her case as PW1, and adopted her witness statement dated 07.10.2020 as her evidence in-chief. PW1 told the court that she is a real estate dealer. PW1 testified that she bought the suit land in 2012 and did a search at the Lands Office. That thereafter, she entered into a sale agreement dated 27.10.2012, which she produced as PEXb1. PW1 produced a Rent Clearance Certificate and a Rates Clearance Certificate as PEXb2 & 3 respectively. PW1 testified that the seller signed a Transfer Form, which she produced as PMFI4. 2. PW1 testified that she did a valuation and paid stamp duty, and she produced the valuation form and stamp duty payment receipt as PEXb5(a) & (b). Thereafter, she got a Certificate of Lease that she produced as PEXb6. PW1 said that she put up a billboard to sell the land, but later received a letter from E.K. Melly Advocates that the land did not belong to her, which letter she marked as PMFI7. PW2 claims that her billboard was removed. She stated that she did another search and the land was still in her name, and she produced it as PEXb8. That she later conducted another search on 01.10.2020 and discovered that the land was now registered to Philip Agui Tanui, and this was produced as PEXB9. She Prayed for judgment as per the Plaint. 3. On cross-examination by Mr. Mathai, PW1 testified that she bought the land and paid for it in full, although she had no proof of full payment. PW1 explained that the seller had a letter of allotment and a copy of a lease, although she had not produced it in court. She reiterated that she had conducted a search on 08.10.2013, which she had also not produced in court. PW1 explained that the Rent Clearance Certificate was issued before they entered the agreement for sale. PW1 clarified that she does not occupy the suit property, but someone had taken possession during the pendency of the case. 4. PW1 was then cross-examined by Mr. Odongo and she testified that she bought the land in her name for KShs. 1,200,000/-. That she paid KShs. 1,000,000/- in cash through a lawyer, and she later completed payment of KShs. 200,000/-, but she had no acknowledgment. She asserted that she knew the process and procedure of buying and selling land. She told the court that the land is in West Indies, Eldoret and the title is a leasehold. PW1 acknowledged that the process of leaseholds start from Nairobi, to the District where titles are issued. PW1 testified that she was not given a transfer form. 5. PW1 testified that she got her title on 11.03.2013, and she admitted that she got it before the transfer. PW1 further admitted that she did not get a consent from the Eldoret Municipality. PW1 did not know who was using the land. PW1 could not tell how her seller, Selina, got the suit land. PW1 claimed that she was unaware the Defendants had allotment letters. 6. On being re-examined, PW1 testified that she did not sell the land to Philip Agui. This marked the end of PW1’s testimony and the close of the Plaintiff’s case. *The 1st & 2nd Defendants’ Case;* 1. On the part of the 1st and 2nd Defendant, Philip Agui Tanui testified on oath as DW1, and adopted his witness statement dated 05.06.2017 as his evidence-in-chief. DW1 stated that he had authority to testify on behalf the 1st Defendant and produced the authority to testify as DEXb1. DW1 testified that he purchased the suit property from Leah Cheseba and Josphat Kemboi Murei for KShs. 2,000,000/-, which he paid in full, and he produced the sale agreement dated 23.11.2004 as DEXb2. 2. DW1 testified that he had an acknowledgment from Leah Chesesa Murei. DW1 testified that he did not know the Plaintiff and clarified that he was the one in possession. DW1 testified that he had filed a List of Document dated 31.05.2017 with 27 documents and a second list dated 01.06.2017 with 4 documents. DW1 produced the said documents as his exhibits in the order they appear, save that document nos. 1-19 were marked as DMFI1-19 whereas document nos. 31-37 were produced as DMFI31-37. 3. DW1 was cross-examined by Mr. Angu and he testified that he did not have a sale agreement since it was stolen. DW1 testified that he entered the agreement in 2016 but could not recall when he paid the first instalment. DW1 explained that he used to pay through Barclays/Absa Bank. He told the court that the 1st Defendant did not give him any letter of allotment, but only showed him a lease document. DW1 testified that he paid all the amounts that were required under the letter of allotment, but had no receipt in court or any pay-in slip from Absa Bank. 4. DW1 says that he has been paying rates since he bought the land. DW1 testified that his agreement was witnessed by Elijah Kipsang and Josphat Murei. DW1 was referred to DMFI19 and he testified that he had never gone to the National Land Commission (NLC). DW1 claims that he conducted a search in 2016. DW1 further stated that he did not know that the Plaintiff purchased the suit property from Selina Jepkorir Kiptoo. DW1 denied buying a non-existent plot. At the end of his testimony, DW1 was not re-examined. 5. Josphat Kipkemboi Murei testified as DW2 and he adopted his witness statement dated 05.06.2017 as his evidence-in-chief. He told the court that Leah Chebesa is his wife. DW2 explained that the land had initially been given to 7 persons, being himself, his brother Daniel Busienei, Jona Bett, Leah Chebesa Murei, Mary Busienei and Ruth Koskei. That the suit property was on subdivision given to Leah Chebesa Murei. DW2 testified that his wife had initially sold the land to Evans Kiago, but his money was refunded. DW2 testified that his wife was given a letter of allotment, and made the requisite payments upon which she was issued a receipt. 6. On cross-examination by Mr. Angu, DW2 testified that he had nothing to show he was married to Leah Cheseba. DW2 could not tell if there was an allotment letter issued to the 7 persons and he did not have the Registry Index Map to show the subdivision of parcel no. 449. He conceded that per their Defence, they had pleaded that the land had been registered to them on 01.09.2016. DW2 clarified that they were given the allotment letter in 1992 and paid the amount of KShs. 77,000/- the same year. He however conceded that the payment was actually made on 09.03.2016 at Nairobi. DW2 claims that he had a Power of Attorney from his wife. DW2 testified that the 7 persons were given 3½ acres and they each got ½ an Acre. DW2 confirmed that the Lease (DMFI19) was issued at Eldoret Land Registry. 7. DW2 was re-examined and he reiterated that the payment of the KShs. 77,000/- was done at Nairobi and the Lease equally issued from Nairobi. DW2 testified that they sold parcel no. 449 to Philip Agui. 8. The 1st Defendant, Leah Chebesa, testified as DW3. She adopted her witness statement dated 13.12.2019 as her evidence-in-chief and relied on the documents dated 31.05.2017. DW3 testified that she was issued with a letter of allotment dated 22.04.1997 by the Commissioner of Lands which she produced as DEXb1 and the PDP as DEXb 27. She testified that under the letter of allotment she was required to pay KShs. 77,430/-. DW3 testified that she was never notified by the Commissioner of Lands that her allotment had been cancelled. 9. DW3 told the court that she paid the KShs. 77,430/-vide bankers cheque of 09.03.2016 and was issued with a receipt no. 4385569 and she produced them as DEXb2 and 3 respectively. DW3 claims that she wrote a letter accepting the offer which she produced as DEXb4 as well as her ID card as DEXb5. DW3 testified that the Director of Surveys wrote to the Chief Land Registrar vide letter dated 18.07.2016 regarding the amendment of the RIM with respect to the suit property, which she marked as DMFI6. 10. DW3 also presented a letter dated 30.06.2016 from Highland Surveyors requesting amendment of the RIM, receipt no. 363 and a beacon certificate for plot no. B5 dated 08.09.1995 which were marked DMFI7, 8 & 9 respectively. DW3 produced a police abstract showing that the original letter of allotment was lost as DEXb10. DW3 explained that the Chief Lands Registrar forwarded the Lease over the suit property to the District Land Registrar vide letter dated 15.08.2016 and she produced it as DEXb11. 11. DW3 also presented a letter dated 12.04.2016 from the National Land Commission to the Director of Surveys Nairobi referring to her letter of allotment, which was marked as DMFI12. DW3 also brought receipt no. 9517151 dated 22.06.2016 for KShs. 1,900/- for amendment of the RIM that was marked as DMFI13. DW3 also had receipt no. 4493376 of 05.09.2016 for KShs. 1,000/- for transfer of lease and receipt no. 4493253 of 31.08.2016 for registration of the Lease to the suit property which she produced them as DEXb 14 and 15 respectively. 12. DW3 testified that she had proof of payment of Land Rent, being receipt no. 518819 for KShs. 162,200/- alongside a Rent Payment Request that she produced as DEXb16 & 17. The 1st Defendant also produced as DEXb18 a Payment from KRA showing payment of the KShs. 162,200/-. DW3 testified that she was issued with a Lease in her name for 99 years from 01.05.1997 which she produced as DEXb19. DW3 presented a transfer of Lease for the suit property from herself to Philip Agui Tanui dated 07.09.2016 alongside a Certificate of Lease in the name of Phillip Agui, and she produced them as DEXb20 and 21. 13. DW3 was cross-examined by Mr. Angu and told the court that she did not know the Plaintiff and neither had she authorised Philip Agui to sign documents for her. DW3 denied the statement dated 13.12.2019 even though it is in her name. She confirmed that she was married to Josphat Kipkemboi Murei, but had no evidence of the said marriage. She said that she was one of the 7 people originally allocated the land, but her original letter of allotment was lost. DW3 testified that in 2004, her husband decided to sell the land without her authority to one Mr. Mibei. DW3 asserted that the suit land belongs to her and that she has never sold it. DW3 confirmed that they had indeed refunded Evans Keago Makina Mobisa. She insisted that she did not instruct her husband to sell the land in 2016. 14. DW3 was referred to the letter accepting the offer and said that the signature thereon was not hers. As to the stand premium, DW3 testified that she paid KShs. 60,000/- 0n 31.12.1997 but she misplaced the cheque payment. DW3 testified that she was neither given a lease nor did she go to the Lands Office to look for title. Further that she did not instruct any one by the name Mr. Agui to get title for her. DW3 denied being issued with a Certificate of Lease or that she sold the land to Philip Agui Tanui. DW3 claimed that she knew nothing about the Plaintiff’s documents dated 07.10.2020. She reiterated that the land was hers but she was never issued with a title. She testified that she did not know the title number issued to Philip Agui Tanui. 15. On cross-examination by Mr. Kwame and she stated that she did not know and had never met anyone by the name Philip Agui Tanui. She told the court that she was yet to get title for that land. DW3 further denied signing the transfer marked as DEXb20. She confirmed that the ID was hers but the photographs on the transfer was not hers and was forged. She confirmed that the land was transferred to Philip Agui Tanui vide the said transfer, but she did not know about it. She denied being served with summons and claimed that she was unaware she had been sued by the Plaintiff. 16. DW3 faulted the Registrar from transferring the land without seeing the owner. She claimed that she had learnt the year before that the land had been transferred. DW3 admitted that she had never reported to police, but she had been told to come to court as the court is the one that investigates forged titles. DW3 stated that she had no document to show that documents in her name were forged. She explained that the land is near the Indian crematorium but she did not know who is currently occupying it. DW3 further confirmed that she has never used the land. 17. When she was re-examined, DW3 testified that she did not recall adopting her statement dated 13.12.2019. DW3 testified that the only letter of allotment she has is the one dated 22.04.1997. DW3 pointed out that there was no letter of allotment for Selina Jepkorir Kiptoo, from whom the Plaintiff claims to have purchased the land, thus it is not clear how Selina obtained documents in her name. This marked the close of the 1st and 2nd Defendant’s case. *The 3rd and 4th Defendant’s Case;* 1. Diana Agunda, a Land Registrar Uasin Gishu, testified as DW4. DW4 explained that the first registered owner of the land was Leah Chebesa Murei who was issued with a title on 01.09.2016. That vide Transfer dated 02.09.2016, Leah Chebesa transferred the land to the current owner Philip Agui Tanui, who was registered on 07.09.2016. DW4 produced two green cards as 4th Defendant’s EXb1 (a) & (b). DW4 testified that the transfer of lease was drawn by Gicheru & Co. Advocates and was attested by an advocate known as Elias Kemboi Melly. DW4 produced the Lease and Transfer of Lease as 4th Defendant’s EXb2 & 3. She produced a copy of the Lease to Leah Chebesa as 4th Defendant’s EXb4. She averred that the transfer was valid as the supporting documents are there. 2. DW4 was cross-examined by Mr. Angu and she testified that the land is not normal as it has two conflicting green cards. That the first green card is in the name of Philip Agui Tanui, who got a transfer from Leah Chebesa Murei. DW4 clarified that the value on the transfer is KShs. 1,000,000/- and the stamp duty paid was KShs. 40,000/-. DW4 states that she does not have a Rent Clearance Certificate. DW4 stated that the first entry on Philip Agui’s green card was made on 01.09.2016. 3. DW4 told the court that the second green card in the name of Lilian Chepkoech Lagat was opened on 10.01.2002 and was created 14 years before the 1st Defendant’s green card was opened. DW4 affirmed that the Plaintiff’s title was never recalled, thus the Plaintiff has a right to come to court and complain. She testified that the process for the land starts with physical planning and then goes to the Land Administration, who forward the Lease documents for registration. DW4 urged that it is only the Land Administration who can tell who the lease document had been issued to. 4. On cross-examination by Mr. Mathai, DW4 asserted that they are the custodians of the parcel files. She told the court that she could not find documentation in the parcel file to support the green card from Salina Jepkorir Kiptoo to the Plaintiff. Further, that there was no correspondence from the Plaintiff that the parcel file disappeared. DW4 confirmed that there was a Lease issued to Leah Chebesa who transferred it to Philip Agui Tanui. DW4 reiterated that the Land Administration has to confirm who the Lease was issued to. She further testified that according to the documents, the Lease was issued to Leah Chebesa. At the end of her cross-examination, DW4 was not re-examined. This marked the close of the 3rd and 4th Defendants’ case. **Submissions:** 1. At the close of the hearing, the court invited the Parties to file their final written submissions. In compliance, the Plaintiff filed submissions dated 4th March, 2026. The 1st and 2nd Defendants filed joint Submissions dated 13th March, 2026 whereas the 3rd and 4th Defendants’ submissions are dated 23rd April, 2026. *The Plaintiff’s Submissions;* 1. After summarising the background of the case, Counsel for the Plaintiff submitted that the Defendants’ claim is founded on a fatally defective root of title. That as a consequence, no proprietary interest could lawfully arise from the allotment, and any lease or transfer founded upon it is equally invalid. Counsel further argues that the agreement dated 18.01.2016 is of no probative value as it concerns third parties unrelated to the Plaintiff’s claim and is based on an unsupported allotment lacking a PDP. 2. Counsel contends that the transactions undertaken by the Defendants between August & September 2016 disclose a coordinated effort to defeat the Plaintiff’s interest in the suit property. Counsel further submitted that the existence of two green cards relating to the same parcel is proof enough of manipulation of the land register. In the circumstances, Counsel maintains that the Defendants’ claim is riddled with procedural irregularities and inconsistencies, which render the transaction void ab initio, incapable of passing valid title. 3. Counsel submits that the Plaintiff is a bona fide purchaser for value without notice, having lawfully acquired the suit land vide a sale agreement dated 27.10.2012 for KShs. 1,200,000/-. Counsel contends that prior to the acquisition, the Plaintiff conducted due diligence. Counsel further argued that the Plaintiff acted in good faith and without notice of any defect in the title. Counsel claimed that DW4 confirmed that the Plaintiff’s documents were regular and that no complaint of fraud had been lodged against the title. That she satisfies all the legal requirements of a bona fide purchaser for value without notice and is entitled to the protection of the law. Reliance is placed on ***Katende vs Haridar & Company Limited (2008) 2 EA 173*** and ***Wreck Motors Enterprises vs The Commissioner of Lands & Others***. 4. Counsel submits that the Plaintiff legally obtained proprietorship of the suit property, and was issued with a Certificate of Lease, as supported by the documentary evidence on record. Counsel contends that by virtue of Sections 24, 25 and 26 of the Land Registration Act, the Plaintiff acquired absolute ownership rights upon registration, which are indefeasible except on proof of fraud, misrepresentation, or illegality attributable to the registered proprietor. Counsel contends that no evidence has been adduced linking the Plaintiff to any fraud, irregularity, or corrupt scheme. 5. Counsel submitted that any alleged deficiencies or mutilation of registry records cannot be visited upon the Plaintiff. Counsel relied on ***Arthi Highway Developers Limited vs West End Butchery Limited & Others***, ***David Peterson Kiengo & 2 Others vs Kariuki Thuo***, and ***Elijah Makeri Nyangwara vs Stephen Mungai Njuguna***, where the courts affirmed that a title lawfully acquired through due process is protected and cannot be impeached absent strict proof of fraud attributable to the proprietor. 6. Accordingly, Counsel maintains that the Plaintiff’s title was lawfully acquired, regularly processed, and is entitled to the full protection of the law. Counsel submits that the Defendants have failed to impeach the Plaintiff’s title as contemplated under Section 26(1) of the Land Registration Act. Counsel argued that the mere existence of a parallel or competing title does not, in law, invalidate a duly registered interest without proof of a superior and lawful root. 7. Counsel further submits that the Plaintiff has demonstrated a clear and traceable chain of title supported by evidence, whereas the Defendants’ alleged title lacks a lawful and verifiable root. Reliance is placed on ***Munyu Maina vs Hiram Gathiha Maina*** and ***Republic vs Land Registrar Taita Taveta & Another ex parte Ngombari***. Counsel further contends that the Defendants’ lease, allegedly issued by the County Government of Uasin Gishu, is fatally defective as Article 62(2) of the Constitution vests authority in the National Land Commission to allocate public land. Accordingly, Counsel maintains that the Defendants’ title is incapable of impeaching the Plaintiff’s valid, indefeasible, and properly registered interest in the suit property. *The 1st and 2nd Defendants’ Submissions;* 1. On the other hand, Counsel for the 1st and 2nd Defendant denied the contention that the Plaintiff is a bona fide purchaser for value and without notice of defects. Counsel submitted that the Plaintiff had conceded that she had no proof of payment of the full amount of the purchase price under the purported agreement. Counsel submitted that the Plaintiff had further acknowledged that she did not possess any executed transfer documents from Selina Jepkorir Kiptoo in her favour and neither did she produce any consent to transfer issued to her. Counsel argues that the Plaintiff was unable to confirm whether Selina Jepkorir Kiptoo had been lawfully allocated the land through a letter of allotment that led to her registration as proprietor. 2. Counsel argued that the Plaintiff had produced a title issued to Selina Jepkorir Kiptoo on 11.03.2013, thus she bore the onus of proving that Selina had good title to pass to her. Counsel cited ***Ali Mohamed Dagane (Granted Power of Attorney by Abdullahi Muhumed Dagane, suing on Behalf of the Estate of Mohammed Haji Dagane) vs Hakr Abshir Abdullahi Ibrahim Gure, Shaye Abdi Kusow & Sambul Ali Bulugho (2021) KEELC 3604 (KLR)***, ***Nelson Kazungu Chai & 9 Others vs Pwani University (2014) eKLR***, ***African Line Transport Co. Ltd vs The Hon AG, Mombasa HCCC No. 276 of 2013***, ***Torino Enterprises Ltd vs Hon. Attorney General Petition No. 5 (E006) of 2022*** and ***Dina management Ltd vs County Government of Mombasa & 5 Others Petition 8 (E010) of 2021 (2021) KESC 30 (KLR)***. Counsel concluded that Selina Jepkorir had no good title to pass to the Plaintiff. 3. As to the alleged fraud, Counsel for the 1st and 2nd Defendants submitted that fraud must be specifically pleaded and proved. Counsel submitted that the Plaintiff failed to adduce evidence that the Defendants unlawfully obtained the letter of allotment or that it was not fabricated or was not authentic. Counsel submitted that the Defendants produced the title and demonstrated that the registration process was undertaken in line with laid down procedures, and the Plaintiff had not tendered evidence to challenge the authenticity of their title. Counsel thus argued that the allegations of fraud remain unsubstantiated and were not proved to the required standard as against the Defendants. Counsel relied on ***Vijay Morgaria vs Nansingh Madhusingh Darnar & Another (2000) eKLR*** and ***Kinyanjui Kamau vs George Kamau (2015) eKLR***. 4. In turn, Counsel for the 1st and 2nd Defendants submitted that the Plaintiff’s title was procured without the requisite supporting documents and relied on documents that were unlawfully issued. Counsel urged that this rendered the Plaintiff’s title irregular and incapable of conferring any proprietary interest in the suit land. Counsel claimed that the Land Registrar’s evidence and official records support the registration of the suit land in favour of the 2nd Defendant. Counsel submitted that the Plaintiff had failed to discharge the burden of proof on a balance of probabilities and was therefore not entitled to the reliefs sought. Counsel further relied on ***William Kabogo Gitau vs George Thuo & 2 Others (2010) eKLR***. *The 3rd and 4th Defendants’ Submissions;* 1. The Attorney General appearing for the 3rd and 4th Defendant submitted that although the Plaintiff alleged that she lawfully acquired the suit property by purchasing from Selina Jepkorir Kiptoo, her evidence did not support her claim. Counsel argued that the Plaintiff’s testimony contradicted her pleadings and witness statement. Counsel pointed out that the Plaintiff was unable to explain the root of her title or the process through which the suit property was acquired. Counsel argued that the inconsistencies in the Plaintiff’s case undermined the credibility of her claim. Further, that they demonstrated her failure to discharge the burden of proving her interest in the suit property as required under Sections 107, 109 and 112 of the Evidence Act. 2. Counsel for the 3rd and 4th Defendant further submitted that where ownership of land is disputed, a claimant must establish not only the existence of a title document but also the legality of its acquisition. Relying on ***Munyu Maina vs Hiram Gathiha Maina (2013) eKLR***, ***Kaende vs Haridar (Supra)***, and ***Elijah Makeri Nyangwara vs Stephen Mungai Njuguna (2013) eKLR***, Counsel contended that the Plaintiff had failed to demonstrate a lawful root of title or establish that she is a bona fide purchaser for value without notice. 3. In addition, the Attorney General submitted that the Plaintiff failed to prove the allegations of fraud and illegality pleaded against the Defendants. Counsel urged that allegations of fraud must be specifically pleaded and strictly proven. Counsel argued that the burden rested on the Plaintiff to demonstrate that the Defendants procured registration of the suit property through fraud, misrepresentation, illegality or unprocedural means. Counsel asserts that the Plaintiff failed to produce any evidence linking the Defendants to forgery, falsification of records or any fraudulent conduct, thus her allegations remained unsupported by evidence. 4. Counsel further submitted that the Plaintiff had failed to establish either the alleged fraud or a lawful proprietary interest in the suit land. That none of the grounds through which a registered title can be impeached under Section 26(1) of the Land Registration Act have been demonstrated in the presence case. The Attorney General argued that the Plaintiff had failed to establish that she is entitled to the declaratory or injunctive reliefs sought or the order of cancellation. Counsel asked this court to dismiss the suit in its entirety. Counsel cited ***Kinyanjui Kamau vs George Kamau Njoroge (2015) eKLR***, ***Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi (2013) eKLR*** and ***Evans Nyakwana vs Cleophas Bwana Ongaro (2015) eKLR***. **Analysis and Determination:** 1. I have considered the pleadings, the witness testimonies and the evidence tendered by the respective parties, and have identified the following as the issues arising for determination:- 2. *Who is the current registered owner of the suit property herein?* 3. *Whether the Plaintiff acquired any lawful title to the suit property.* 4. *Whether the 1st Defendant acquired any lawful title to the suit property* 5. *Whether the 1st Defendant had any lawful title or interest in the suit property to pass to the 2nd Defendant* 6. *Whether this court should grant the reliefs sought in the Plaint;* 7. *Who shall bear the costs of the suit herein?* 8. **Who is the current registered owner of the suit property herein?** 9. This suit concerns the ownership of parcel of land known as Eldoret Municipality/Block 6/449 (the suit property herein). Both the Plaintiff and the 2nd Defendant have laid claim to the suit property. They have each accused the other party of illegally and fraudulently obtaining title to the land. 10. That being the case, each party bore the burden of proving that, first, they acquired their title lawfully. In discharging this burden, each party must go beyond producing the title document and establish the root of their title as was underscored in the case of ***Munyu Maina vs Hiram Gathiha Maina (2013) KECA 94 (KLR)***, where the Court of Appeal held that:- ***“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.”*** 1. The term root of title was recently defined by the Court of Appeal in ***Presbyterian Foundation vs Kibera Siranga Self Help Group Nursery School (2023) KECA 371 (KLR)***. In the case, the Court also set out the elements of a good root of title where there are competing interests, holding that:- ***“22. We will next address the pertinent issue regarding the existence of two titles in respect of the same parcel land. The best evidence of ownership of immovable property is the title deed to it and that is why the question of the root of title is important. Root of title is the deed to which title to a property is ultimately traced to prove that the owner has good title. Accordingly, when there are competing interests as in this case, the parties are required to give evidence of title starting with a ‘good root of title’. A good root of title and an unbroken chain of ownership is required. To be a good root of title, a document must satisfy each of the following requirements: (a) it must deal with or show the origin of the ownership of the whole legal and equitable interest in the land in question; (b) it must contain a recognizable description of the property; (c) it must not contain anything that casts any doubt on the title.”*** 1. From the outset, the ownership of the suit property is highly contested with two separate claims, both claiming to be legitimate. The first step therefore is determine who is the current registered owner of the suit property. When it comes to ownership of land, Section 26(1) of the Land Registration Act provides that:- ***26. Certificate of title to be held as conclusive evidence of proprietorship*** ***(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—*** ***(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or*** ***(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.*** 1. The registered owner of the suit property herein therefore must be one whose name appears on the title thereto issued by the Registrar. The Plaintiff’s claim arises from the alleged purchase from Selina Jepkorir Kiptoo. As proof of her ownership of the suit property, the Plaintiff produced the Certificate of Lease and the Certificate of Official Search dated 08.10.2013. Nothing else shows that the land was at the time registered in her name. Aside from that, she has the valuation form and proof that she paid stamp duty on the transfer from Selina Jepkorir Kiptoo. 2. The Defendants’ claim on the other hand arises from an alleged allotment, which upon acceptance title was processed in favour of the 1st Defendant. The 1st Defendant then transferred the suit property to the 2nd Defendant’s father, who was issued with a title to the land. 3. The Land Registrar testified in this case as DW4. However, instead of clearing the air on the issue of ownership, her testimony seems to have brought even more confusion. She told this court that there were in fact two green cards in the parcel over the suit property. In the first green card, the first registered owner was Leah Chebesa, the 1st Defendant, who was issued with title on 01.09.2016. Leah Chebesa transferred the land to Phillip Agui Tanui. 4. As to the second green card, DW4 has confirmed that it is in the name of Lilian Chepkoech and was opened on 10.01.2002, 14 years before the Defendants’ green card. Even though DW4 said that she had no documents supporting the Plaintiff’s title, she also clarified that the Plaintiff’s title has never been recalled. 5. In essence therefore, there is in existence two separate titles over this same suit property, out of which the court is to determine the one which is genuine. In ***Hubert L. Martin & 2 Others vs Margaret J. Kamar & 5 Others (2016) KEELC 1092 (KLR)***, the court held as follows:- ***“A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder. With the nature of case at hand, I will need to embark on investigating the chain of processes that gave rise to the two titles in issue as it is the only way I can determine which of the two titles should be upheld.”*** 1. There being two titles and two green cards over the suit property herein, the court is obliged to conduct an investigation to figure out whether anyone of them is genuine and can be upheld. 2. **Whether the Plaintiff acquired any lawful title to the suit property.** 3. The Plaintiff’s claim is alleged to arise from an agreement for sale dated 27.10.2012 between herself and one Daniel Kiprono as purchasers, and Salina Jepkorir Kiptoo as the Vendor. The Plaintiff has claimed that she is a bona fide purchaser for value and without notice of any defects in the title. The ***Black’s law Dictionary, 9th Edition at Page 1355*** defines a bona fide purchaser as:- ***One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.”*** 1. Similarly, the Court of Appeal in Uganda in ***Katende vs Haridar & Company Ltd [2008] 2 EA 173***, defined a bonafide purchaser for value as follows:- ***“For the purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine he must prove that:*** ***1. He holds a certificate of title;*** ***2. He purchased the property in good faith;*** ***3. He had no knowledge of the fraud;*** ***4. He purchased for valuable consideration;*** ***5. The vendors had apparent valid title;*** ***6. He purchased without notice of any fraud; and*** ***7. He was not party to the fraud.”*** 1. In the present suit, there is no doubt that the Plaintiff herein holds a title to the suit property. The Plaintiff’s claim however falls short of the requirement that the buyer must have paid valuable consideration. She claims that she paid the entire consideration of KShs. 1,200,000/- stated in the said agreement produced before this court. While the Agreement for Sale indicates that the Plaintiff paid KShs. 1,000,000/- at the time of execution, there is no evidence to show that the Plaintiff paid the KShs. 200,000/- being balance of the purchase price. 2. There is no transfer produced before this court showing that Salina Jepkorir Kiptoo indeed transferred the land the to the Plaintiff. That aside, no transfer in favour of the Plaintiff was found in the parcel file to the suit property. She cannot thus claim to have properly purchased the property without any proof of full payment of the consideration and without proof of transfer to qualify her as a bona fide purchaser for value without notice of defects. 3. As to good faith and knowledge of fraud, this court notes that there is no evidence that the Plaintiff had direct knowledge of or participated in the fraud. However, even where a party claims to be a bona fide purchaser, they are not precluded from the requirement of proving the root of their title. This was affirmed by the Supreme Court, in the case of ***Dina Management Limited vs County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) (2023) KESC 30 (KLR)***. In that case, the superior court stated that, for a court to establish whether a party is a bona fide purchaser for value, the court must first establish the root of the title right from the first allotment. The court went on to find that:- ***“111. Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under article 40 of the Constitution. The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser.”*** 1. In this case, the Plaintiff insists that she purchased the land from Salina Jepkorir Kiptoo. After purchase, the Plaintiff has told this court that she then obtained a Valuation for stamp duty and paid the requisite stamp duty amount of KShs. 40,000/-. The Plaintiff produced the KRA Stamp Duty Declaration and Assessment Pay-In-Slip as well as a deposit slip from the National Bank of Kenya for payment of the said amount. 2. As proof of ownership by the Vendor, the Plaintiff produced a bundle of Rates Payment Request from the Municipal Council of Eldoret and later the County Government of Uasin Gishu in the name of Salina J. Kiptoo, as well as a Land Rent Clearance Certificate. Thereafter, the Plaintiff claims that she was registered as proprietor of a 99-year Lease over the suit property commencing on 01.01.1999. She was then issued with a Certificate of Lease dated 10.01.2002. 3. However, from the said documents, it is unclear how the said Salina Jepkorir Kiptoo came to own the land in the first place. There is no letter of allotment issued in favour of the said Salina Jepkorir Kiptoo. In addition, the Land Registrar told this court that she did not find the documentation supporting the transfer of the land from Salina Jepkorir Kiptoo to the Plaintiff herein. In ***Dina Management Limited vs County Government of Mombasa & 5 others (Petition)***, the Supreme Court underscored that:- ***“110. Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible. The first allocation having been irregularly obtained, HE Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co (1993) Ltd, who in turn could pass to the appellant.”*** 1. The Plaintiff did not have any document showing the root of her title or the process applied in acquiring title to the suit land. Without any supporting documentation from the Plaintiff or the Land Registrar, who is the custodian of all land records, it can only be assumed that the legitimate procedure for obtaining title was not followed to produce the Plaintiff’s title. 2. The Plaintiff’s title, from the look of things, was plucked from the air without any documents or compliance to the due process of the law. The Plaintiff informed the court that she would call Salina Jepkorir Kiptoo to testify on her behalf, but she failed to do so. Perhaps if she had done so, the matter of where her title emanated from would have been cleared. 3. While the Plaintiff’s title to the suit property was never recalled or cancelled, and the a green card still exists at the Land Registry confirming the said title, there is no evidence to give credit to the root of the said title. As a result, this court cannot find that the Plaintiff acquired any legal title to the suit land. 4. **Whether the 1st Defendant lawfully acquired title to the suit property** 5. On their part, the 1st and 2nd Defendant claim that the land was allocated to the 1st Defendant vide letter of allotment dated 22.04.1997. The 1st Defendant is said to have accepted the offer and paid the amount required in the letter of allotment. They produced the said allotment, the acceptance letter, as well as Bankers Cheque and receipt for payment of the money. They claim that the PDP was then amended and produced correspondence attesting to this. Thereafter, the Ministry of Lands sent the Lease for the land to the District Land Registrar vide letter dated 15.08.2016. The Lease was registered on 01.09.2016 and she was issued with a Certificate of Lease. 6. After the land was transferred to her, the 1st Defendant is said to have sold the land to the 2nd Defendant’s Father, Philip Agui Tanui, vide transfer instrument dated 02.09.2016. The transfer to the 2nd Defendant’s father was registered on 07.09.2016, and he was issued with a Certificate of Title on the same date. Both the transfer and the Certificate of Title were produced before this court, but there was no agreement for sale. 7. The 1st Defendant’s Letter of Allotment was made to her on 22nd April, 1997. The offer advanced vide the said letter was to be accepted within thirty (30) days, alongside a banker’s cheque for the stand premium and other charges calculated at KShs. 77,430/-. The said amount was paid vide bankers cheque No. 090149 dated 09.03.2016, which was 19 years after the money fell due. Having failed to accept the offer within the required time, the offer made to the 1st Defendant lapsed. 8. In contrast, the 1st Defendant herself testified that she only paid KShs. 60, 000/- on 31.12.1997. Even though this payment was done in 1997, it was made way past the 30 days period, and she only made part payment of the total amount calculated in the letter of allotment. The question then is what is the effect of a letter of allotment that has not been perfected. 9. It is common knowledge that a letter of allotment only conveys an offer, that must be accepted. For the letter to become valid, the recipient must meet strict conditions such as paying a stand premium and ground rent within prescribed timelines. In ***Torino Enterprises Ltd v Attorney General (Petition 5 (E006) of 2022) (2023) KESC 79 (KLR)***, the Supreme Court had this to say on this issue:- **“58. *… It is settled law that an allotment letter is incapable of conferring interest in land, being nothing more than an offer, awaiting the fulfilment of conditions stipulated therein. In Dr Joseph NK Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others CA 60/1997 [unreported] and in Gladys Wanjiru Ngacha v Teresa Chepsaat & 4 others HC Civil Case No 182 of 1992 (2008) eKLR, the superior courts restated this principle as follows:*** ***‘It has been held severally that a letter of allotment per se is nothing but an invitation to treat. It does not constitute a contract between the offerer and the offeree and does not confer an interest in land at all…’*** ***59. …*** ***60. Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling the conditions therein. These conditions include but are not limited to, the payment of a stand premium and ground rent within prescribed timelines.”*** 1. While it is not clear how the land landed in the hands of Lilian Jepkoech Lagat, it is clear that by the time the land was registered in her favour on 11.03.2013, the offer to the 1st Defendant made vide the letter of allotment dated 22.04.1997 had long lapsed. Having so lapsed, the 1st Defendant had acquired no recognisable legal or equitable interest in the suit property. 2. In addition, aside from the letter of allotment issued in 1997 and the letter of acceptance which is undated, all the other documents and correspondences relied upon by the 1st and 2nd Defendants are dated after 2016. At this point in time, the offer under the letter of allotment aforesaid had already lapsed. Moreover, there was already a register opened on 10.01.2002 in favour of Salina Jepkoech Kiptoo and title issued to her, and later on transferred to the Plaintiff as is evident in the first green card. 3. As matters stand, however, the Land Registrar acknowledges the existence of the two green cards and never said anything to the effect that the green card opened in favour of Salina Jepkoech Kiptoo was fake, forged or created fraudulently. The Land Registrar further confirmed that the green card opened in favour of the said Salina Jepkorir Kiptoo and later to the Plaintiff was opened first, and to be specific, that it was opened 14 years before the one in favour of the 1st Defendant. The said green card has never been cancelled or closed. 4. If the 1st Defendant had purchased the suit land from Salina Jepkorir Kiptoo, then the entries showing such purchase would have been entered in the register and her title cancelled as required under Section 31(2) of the said Act which further provides that:- ***Where the disposition is a transfer, the certificate shall, when produced, be cancelled, and in that case a new certificate may be issued to the new proprietor.*** 1. The 1st Defendant did not purchase the land from the said Salina Jepkorir Kiptoo. There is also no indication that the register opened in favour of Salina Jepkorir Kiptoo and transferred to the plaintiff and titles issued thereunder were either recalled or cancelled. According to the records at the Land Registry, therefore, there are two titles, emanating from two registers relating to one parcel of land, none of which can be linked to the other. 2. The existence of the two titles relating to the same parcel of land is contrary to Section 30(2)(a) of the Land Registration Act, which provides that:- ***(a)only one certificate of title or certificate of lease shall be issued in respect of each parcel or lease*** 1. Going by the evidence placed before the court, I have no doubt that the Defendants roots of title would have otherwise been more believable. However, it is tainted by the fact the parcel file already had an existing title and register at the time the 1st Defendants register/green card was opened on 01.09.2016 and a title issued to her. 2. Despite the fact that the Plaintiff’s existing title was itself questionable, without it being recalled and cancelled alongside its register first, no new title ought to have been issued over the same suit property. The 1st Defendant’s title was in and of itself illegal to begin with, and once more, could not have conferred any title to the 2nd Defendant’s father. 3. For the above reasons, this court finds that the Defendants did not prove the root of the title issued to the 1st Defendant on 01.09.2016, from which the 2nd Defendant’s father’s title emanates. As a result, the same cannot be allowed to stand. 4. **Whether the 1st Defendant had any lawful title or interest in the suit property to pass to the 2nd Defendant** 5. As explained from the start, the 2nd Defendant’s claim over the suit property herein arises from the alleged transfer from the 1st Defendant to his father. This court having found as it did under the previous issue, the next question therefore is whether the 1st Defendant could pass any valid title in the suit property to the 2nd Defendant’s father. 6. On this issue, it is trite that a person cannot give a better title than what he has, except in rare cases such as, a sale under an order of court, transfer of negotiable instrument to a holder in due course. This principle is underscored in ***St Thomas Academy Limited vs Githumu Kangema Limited and Others (2024) KEELC 7025 (KLR)***, where the court held that:- ***“62. With regard to the first issue, the main challenge is that of the principle of nemo dat quod non habet which comes into play. The said principle is embodied in Section 23 of the Sale of Goods Act which stipulates as follows:*** ***‘23(1) Subject to the provisions of this Act where goods were sold by a person who is not the owner thereof and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.’*** ***63. The nemo dat principle means one cannot give what he does not have. This principle is intended to protect the title of the true owner. The rationale behind this principle is that whoever owns the legal title to property holds the title thereto until he or she decides to transfer it to someone else. Accordingly, an unauthorized transfer of the title by any person other than the owner generally has no legal effect, which means the owner continues to hold the title to the property while the person who received the invalid title owns nothing.”*** 1. The *nemo dat* principle underscore the rule that one cannot give what they do not have. The rationale behind this principle is that whoever owns the legal title to property holds the title thereto until they decide to transfer it to someone else. The principle is intended to protect the title of the true owner by ensuring that they are not dispossessed of that interest without their consent or express authority, and it also ensures that no one can sell land that does not belong to them. 2. To begin with, the 1st Defendant’s title has been voided earlier in this decision, for reason that it was not procedurally acquired. If the 1st Defendant did not hold a valid title to the suit property, then she held no title or interest in the land that could be transferred to the 2nd Defendant’s father. In any event, the law is clear that once the original acquisition is found to lack legality, the title to subsequent owners even if innocent cannot be protected. 3. Furthermore, this Court is not satisfied that the suit property was procedurally and regularly transferred to the 2nd Defendant’s father. There are glaring evidential gaps that have failed to satisfy the validity of the transaction, such as lack of evidence of the sale itself, and inconsistencies in the payments of the purchase price. 4. There is no agreement for sale between the 1st and 2nd Defendant. What has been produced before this court is an acknowledgement note dated 7th September, 2016 indicating that the 1st Defendant and her husband, Josphat Kipkemboi Murei, had received the amount of KShs. 2,000,000/- from the 2nd Defendant. However, the acknowledgement slip is not signed personally by the 1st Defendant. It appears to have been signed **for** her by her husband, who for the record is not the registered owner of the land, and neither does he hold a power of attorney to authorise him to dispose of the land. 5. The document produced as authority for Josphat Kipkemboi Murei to deal with the land is one dated 29.03.2004 titled **“Authority To Sell Form”**. This document is drawn on the letterhead of an entity known as Mibelines Properties. There is no clear indication of any relationship between the 1st Defendant as the registered proprietor of the land and the said Mibelines Properties. That aside, although the Form purports that Leah Chebesa, the 1st Defendant, gave authority to sell the land, it is once more not signed by Leah Chebesa. It is signed by the same signature that signed for her on the above-mentioned acknowledgment note, which is her husband, Josphat Kipkemboi Murei. 6. Josphat Kipkemboi Murei, not being the registered owner of the suit property, could not authorise the sell thereof by a third party. In any event, the only legal way to authorise the sale of land by a party other than the registered owner is through a power of attorney. Josphat Kipkemboi Murei testified as DW2 and claimed that he had a Power of Attorney from his wife. However, none has been placed before his court to show that the 1st Defendant authorised the said sale, or allowed her husband to receive any money on her behalf from the alleged sale of the land. 7. It is not surprising therefore that the 1st Defendant in her cross-examination by Mr. Angu denied knowing or selling the land to the 2nd Defendant. She denied authorising anyone to sell the land for her or even that she instructed the same Mr. Angu to process the title deed for the land. According to the 1st Defendant, while she was allocated the land, she never processed the title thereto or instructed anyone to do so on her behalf. The 1st Defendant appears to be unaware that the land has a title in the first place. The 1st Defendant was consistent in her assertions when she was cross-examined by Mr. Kwame for the Attorney General. 8. Moreover, Philip Agui Tanui claimed he purchased the land for KShs. 2,000,000/-. However, none of the copies of the transfer from the 1st Defendant to the 2nd Defendant were placed before this court indicate the consideration paid over the land. 9. It is irrelevant that the 1st Defendant and thereafter the 2nd Defendant’s father took possession of the suit property, or that they paid the requisite rent and rates. For the foregoing reasons, this court must therefore conclude that the Defendants failed to establish that the 2nd Defendant’s father lawfully acquired any interest or title to the suit property. 10. **Whether this court should grant the reliefs sought in the Plaint;** 11. What the Plaintiff seeks from this court is a declaration that she is the bonafide registered owner of the suit property and cancellation of the Defendants’ title. The Plaintiff also asks for a permanent injunction restraining the Defendants from trespassing into or otherwise interfering with the Plaintiff’s ownership, possession and use of the land. 12. This court has however found that the Plaintiff did not acquire any legal title to the suit property since she failed to establish the root thereto. It follows therefore, that the Plaintiff has no proprietary interest on the land capable of being protected by the injunction sought. In the same vein, she is not entitled to the declaration that she is the owner of the suit property herein. 13. In equal measure, the court has also found that the 1st and 2nd Defendant did not prove the root of their title. Owing to this unusual outcome as regards the registration of the suit property herein, the next question is whether the court having found as it has on the validity of the titles held by both the Plaintiff and 2nd Defendant, what would be the appropriate orders to issue as regards the suit property herein? 14. Notably, the Plaintiff did ask that the 1st and 2nd Defendants’ title be cancelled. Having found that the root of the said title is defective, the same can neither be deemed to be valid, nor protected under law. In such an instance, the court is guided by Section 80 of the Land Registration Act, which provides for cancellation of title where registration is unlawfully obtained. It states: ***80. Rectification by order of Court*** ***(1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.*** ***(2) The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.*** 1. It is evident that the 1st Defendant could not have obtained a title to land that was already registered in another person’s name without either having colluded with officers at the Lands office to do so, or through fraud. As already determined above, the issuance of title to the 1st Defendant was illegal in the first place and such a title could not have been legally transferred to the 2nd Defendant’s father. 2. At the very least, the issuance of the said title while a previous register and title existed for the same parcel of land, was done by mistake. For this reason, this court is convinced that there is need to revoke the said title, and the register under which it was issued. 3. At the same time, the Plaintiff has also not proved the root of her title. Although the 1st and 2nd Defendants did allude to fraud on the part of the Plaintiff and even pleaded the particulars thereto, there is however no counterclaim seeking cancellation of her title. Despite this, if the law is to be followed, where the root of title is not proved for the Plaintiff’s title, it too cannot be left to stand. 4. This court is guided under Section 3A of the Civil Procedure Act to exercise its inherent powers to make such orders as may be necessary for the ends of justice. As held by the Court of Appeal in ***Kenya Power & Lighting Company Limited vs Benzene Holdings Limited t/a Wyco Paints (2016) KECA 73 (KLR)***, this inherent jurisdiction is a residual intrinsic authority which the court may resort to in order to put right that which would otherwise be an injustice. ***“Section 3A of the Civil Procedure Act appears to have been introduced to augment the provisions of section 3, vesting in the courts inherent power to make any orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Of course this power has now been broadened by the introduction in 2009 of overriding objective in sections 1A and 1B and in 2010 by Article 159 of the Constitution.*** ***The extent of inherent powers of the court was eloquently explained by the authors of the Halsbury’s Laws of England, 4th Edn. Vol. 37 Para. 14 as follows;*** ***‘The jurisdiction of the court which is comprised within the term “inherent” is that which enables it to fulfil itself, properly and effectively, as a court of law. The overriding feature of the inherent jurisdiction of the court is that it is part of procedural law, both civil and criminal, and not part of substantive law; it is exercisable by summary process, without plenary trial; it may be invoked not only in relation to the parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in litigation between the parties; it must be distinguished from the exercise of judicial discretion; it may be exercised even in circumstances governed by rules of court. The inherent jurisdiction of the court enables it to exercise control over process by regulating its proceedings, by preventing the abuse of the process and by compelling the observance of the process ... In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them. …’*** ***This inherent jurisdiction is a residual intrinsic authority which the court may resort to in order to put right that which would otherwise be an injustice.”*** 1. It is situations like the one before me that call for the exercise of the inherent powers of the court. The Plaintiff did claim that a letter of allotment had been issued to Salina Jepkorir Kiptoo, her predecessor in title. The said allotment was however not produced before this court, and as stated, she did not appear before this court to testify in support of her interests on the land. 2. I note that the Registrar who testified as DW4 only stated that she had no documents to support the transfer in favour of the Plaintiff. She did not shed any light on the legality of the interests previously held by the said Salina Jepkorir Kiptoo. Since she is not a party to the suit herein, the court is not at liberty to pronounce itself on matters that concern her and any interest she has or may have held on the land. 3. Consequently, therefore, this court will exercise its inherent jurisdiction to only direct a cancellation of the Plaintiff’s title. As regards the register opened in favour of the said Salina Jepkorir Kiptoo, this cancellation will only affect the entries made in favour of the Plaintiff herein to the extent that the land will revert to the registration of Salina Jepkorir Kiptoo. 4. Regarding the issue of occupation, at present, since none of the parties herein has established a good root of title, and their said titles have been cancelled, it follows that as at the delivery of this decision, neither the Plaintiff nor the 1st and 2nd Defendants have any rights or interest to entitle them to be or to remain on the land. 5. **Who shall bear the costs of the suit herein?** 6. Turning to the issue of costs, Section 27 of the Civil Procedure Act directs the Court on the issue of costs, and Subsection (1) thereof provides as follows:- ***27. Costs*** ***(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:*** ***Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.*** 1. As a rule therefore, the successful party is always entitled to costs of the suit except in exceptional circumstances. Despite bringing this suit, the Plaintiff herein failed to prove her case to the required standard. The 1st and 2nd Defendants equally failed to protect their interests in the suit land. The Court will therefore not award either the Plaintiff or the 1st and 2nd Defendant any costs. 2. On the other hand, as the custodian of records, the 3rd Defendant ought to have cleared the air regarding the ownership of the land in dispute herein. The 3rd Defendant however spectacularly failed in this regard as the existence of two green cards can only have been possible from collusion by its officers. In that case, the 3rd Defendant is also not entitled to the costs of the suit. The same fate shall befall the 4th Defendant, who is an adviser of the Government, and therefore the 3rd Defendant as a government agency. 3. Owing thereto, there shall be no orders as to costs. **Orders:-** 1. In the circumstances, and for the reasons given above, the court makes the following final determinations: 2. A declaration be and is hereby issued that the Certificates of Title held by the Plaintiff and the 2nd Defendant in respect of all that Land Parcel Number ELDORET MUNICIPALITY/ BLOCK 6/449 in Uasin Gishu County, are null and void. 3. That accordingly, any and all registration and/or title documents currently held by the Plaintiff and/or the Defendants and all records at the Lands office relating thereto be expunged and cancelled, and the land shall revert back to ownership and registration by Salina Jepkorir Kiptoo. 4. There shall be no order as to costs. 5. Orders accordingly. **DATED**, **SIGNED** and **DELIVERED** virtually at **ELDORET** on this **2ND** day of **JULY**, **2026** vide Microsoft Teams. **HON. C. K. YANO** **ELC, JUDGE** In the virtual presence of:- Mr. Mathai for 1st & 2nd Defendants. Ms. Otuma holding brief for Mr. Angu for Plaintiff. Mr. Kwame for 3rd & 4th Defendants. Court Assistant - Laban.