https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4174

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI** **ELC CIVIL APPEAL NO. E229 OF 2025** **MARY WANJIKU APPELLANT** **VERSUS** **JOHN KURIA NJOROGE & JOSPHAT KURIA NJOROGE** **(Suing as the Administrators and Legal Representatives of the Estate of** **MONICA WANJIRU KAMARA (Deceased)) RESPONDENTS** ***(Being an appeal from the judgment of Hon. M.A. Otindo (Miss.), Senior Principal Magistrate, delivered on 3rd October 2025 in Milimani Chief Magistrate's Court ELC Suit No. E110 of 2021)*** **JUDGMENT** 1. This is a first appeal from the judgment of the **Senior Principal Magistrate, Hon. M.A. Otindo, delivered on 3rd October 2025 in Milimani CMC ELC Suit No. E110 of 2021**, in which judgment was entered in favour of the Respondents, John Kuria Njoroge and Josphat Kuria Njoroge, suing as the administrators and legal representatives of the estate of their late mother, Monica Wanjiru Kamara, as against the Appellant, Mary Wanjiku (also referred to in parts of the record as Mary Wanjiku Mungu), and Embakasi Ranching Company Limited, who was the 1st Defendant at the trial and is not a party to this appeal. 2. The dispute concerns the ownership of a parcel of land within the Embakasi Ranching Company Limited scheme, presently registered as Nairobi/Block 136/3516. The Respondents' case is that the parcel originated from a plot known as F317-B, allocated as a bonus plot to their late mother in 1992/1993, and later altered to G301-B before its registration as Nairobi/Block 136/3516. The Appellant's case is that the parcel originated from a wholly distinct plot, G301-B, allocated as a bonus plot to one Jane Wanja Kuria in 1984, which she lawfully purchased from Jane Wanja Kuria in 2013, culminating in registration of Nairobi/Block 136/3516 in her own name. **The pleadings and proceedings before the trial court** 1. By a Plaint dated 6th April 2021, the Respondents sought against the 1st Defendant, Embakasi Ranching Company Limited, and the Appellant, sued as the 2nd Defendant: (a) a declaration that their late mother was the lawful and exclusive owner of Plot No. F317-B alias Nairobi/Block 136/3516, an order that the 1st Defendant cancel all parallel documents issued and return the original documents to the Respondents, and a consequential order directing the Ministry of Lands to issue title to the rightful owner; (b) a permanent injunction and consequential order of eviction against the Appellant; (c) general damages; and (d) costs. 2. The Respondents pleaded that their late mother was, in 1992, allocated the suit plot as a bonus plot by the 1st Defendant, that she fenced and occupied it until her death on 28th December 2004, and that around 2018 the Appellant invaded the plot, fenced it off and illegally attempted to allocate herself the same, despite it not being available for allocation. 3. The 1st Defendant filed its Statement of Defence on 19th June 2024, denying the Respondents' claim in its entirety and pleading, materially, that it was the sole allocating authority in respect of parcels within its scheme, that the suit property had been legitimately transferred to the Appellant and belonged to her, that the documents produced by the Respondents were questionable, and, at paragraph 8 of its Defence, that its own records indicated that "Land Parcel No. Nairobi/Block 136/3516 which corresponds with plot No. G301B belongs to Mary Wanjiku Mungu." 4. The Appellant, sued as the 2nd Defendant, filed her Statement of Defence on 16th February 2022, denying the Respondents' claim and pleading that she was the registered owner of Nairobi/Block 136/3516, formerly known as G301B, having purchased the same as a bona fide purchaser for value from Jane Wanja Kuria, the previous owner, pursuant to a contract of sale confirmed by the 1st Defendant. 5. The Respondents filed a Reply to the Appellant's Statement of Defence, joining issue on the Defence and characterising it as a sham and an afterthought. **The evidence at trial** 1. The trial proceeded on the basis of witness statements and oral testimony, taken partly in open court and partly virtually, with the trial court and counsel for the Respondents and the 1st Defendant physically examining the Appellant's original documents in open court on 3rd February 2025. 2. **The Respondents' evidence.** PW1, Josephat Kuria Njoroge, testified that he was the administrator of his late mother's estate; that she was a shareholder of the 1st Defendant holding Share Certificate No. 13824 issued on 21st February 1992, which entitled her to two original plots and two bonus plots, including F317-B; that she was shown the plot by the surveyor, Mr Kanotha, on 17th March 1994, though he himself was not present; and that receipts, including one dated 4th June 1993 and another dated 15th September 2016 for a site visit, were paid in respect of the plot. He stated that a sketch showing the alteration of the plot from F317-B to Block 136/3516 was obtained by him, though he could not say when or from where it was obtained. 3. In cross-examination, PW1 conceded that the sketch he relied on bore no date and was not stamped by the 1st Defendant, and that it is the 1st Defendant, as the entity holding the allocation records, that alone knew which plot had been allocated to which member. He confirmed that his family had no interest in Plot G301-B and had not visited the disputed plot for over three decades before their mother's death. 4. PW2, John Kuria Njoroge, testified in similar terms, adopting his witness statement, and confirmed in cross-examination that his claim was solely in respect of Plot F317-B; that all documentation relied upon related to F317-B and not G301-B; that all sketches, maps and allocation documents are held in the custody of the 1st Defendant; and that his own sketch was not authenticated. He was categorical that he did not know Plot G301-B and had not seen the plot allocated to his mother for 32 years, having been shown it, if at all, through his brother. 5. **The 1st Defendant's evidence.** DW1, John Muhia Kanotha, testified that he is a registered land surveyor who has worked for the 1st Defendant since 1982 and was the officer responsible for allocation of plots within the scheme, including the survey of Block 136/3516. He adopted his witness statement dated 30th January 2025 as his evidence-in-chief. 6. In that written statement, DW1 deposed, at paragraph 2, that he was the surveyor who surveyed the area in which "Parcel Number Nairobi/Block 136/3516 falls," but at paragraph 4, in apparent internal inconsistency, that "the allocation of parcel Number Nairobi/Block 105/3516 was done by [him] ... to Mary Wanjiku for Plot Number G301B in 1994." 7. That inconsistency, seized upon by the Respondents at trial as an admission that the Appellant's plot fell outside the suit parcel, was directly and repeatedly addressed by DW1 in his oral evidence. He testified that Certificate No. 13824, relied upon by the Respondents, was not endorsed by any surveyor, and that in the ordinary practice of the 1st Defendant a plot is only treated as allocated once the shareholder is taken to the ground and the beacon certificate is endorsed by the surveyor. He testified that the sketch maps produced by the Respondents "are not our document[s]" and did not originate from the 1st Defendant, and denied that the endorsement appearing on Certificate No. 13824 was his signature. 8. Under cross-examination by counsel for the Respondents, DW1 confirmed that he was "the surveyor who did survey of Block 136/3516 which is allocated block G301B bonus." Under cross-examination by counsel for the Appellant, he was unequivocal: "I confirm plot F317B is not plot G301B, those are different plots. Nairobi Block 136/3516 is from plot G301B, it belongs to Mary Wanjiku Mungu. The sketch maps filed by the plaintiff[s] are not from Embakasi Ranching. They are not our documents." In re-examination, he reaffirmed: "I surveyed parcel no. 136/3516, and not 105/3516. Block 136 is the one in dispute … Two surveyors cannot survey two areas. The sketch maps for F317B [are] not from me." 9. **The Appellant's evidence.** The Appellant, testifying as DW2, stated that she purchased the plot, which she knew as G301-B, from Jane Wanja Kuria in 2013 for Kshs 750,000, paid a further Kshs 70,000 to the 1st Defendant comprising a transfer fee of Kshs 50,000 and a site-visit fee of Kshs 20,000, and was thereafter issued with a non-member share certificate, No. 027215, and later the title now registered as Nairobi/Block 136/3516. This account is corroborated by a letter from the 1st Defendant dated 30th May 2024 confirming that the Appellant, holder of Non-Member Certificate No. 027215, is the owner of Nairobi/Block 136/3516, formerly Plot G301-B, "as per our records." 10. DW3, Jane Wanja Kuria, testified that she was allocated the bonus plot G301-B in 1984, was shown it on the ground by DW1, cultivated it without any adverse claim until she sold it to the Appellant in 2013, and surrendered her original documents to the 1st Defendant upon completion of the sale. **The judgment of the trial court** 1. The trial court framed the issues for determination as: (a) whether Nairobi/Block 136/3516 was allotted to the deceased; (b) whether there was double allocation of the suit property; (c) whether the suit property forms part of the deceased's estate; and (d) whether the Respondents were entitled to the reliefs sought. 2. On the first issue, the trial court held that the Respondents had tendered documentary evidence of allocation dating to 1992, that DW1 had not produced any rules or procedures to substantiate his assertion that the Respondents' documents were improperly endorsed, and that, as custodian of records, he had not produced records demonstrating that the documents were forged. The court found that the Respondents had discharged their burden of proving that the suit property was first allocated to the deceased. 3. On the second issue, the trial court held, materially, that "the surveyor's testimony clarified that G301B actually corresponds to Nairobi Block 105/3516 and not the suit property," and, applying the principle that as between two titles to the same land the first in time prevails, found that the deceased's 1992 allocation took precedence. 4. On the third issue, the court held that, the deceased having a valid allocation, the suit property formed part of her estate under Section 3 of the Law of Succession Act. 5. The court accordingly entered judgment for the Respondents, declaring them the rightful owners of Nairobi/Block 136/3516, directing the 1st Defendant to cancel all documents issued to the Appellant, directing the Ministry of Lands to rectify the register and issue title to the Respondents, restraining the Defendants from interfering with the Respondents' possession, ordering the Appellant to vacate within 60 days failing which eviction would issue, and awarding costs against the Defendants jointly and severally. **The Appeal** 1. Aggrieved, the Appellant filed a Memorandum of Appeal dated 29th October 2025 setting out twenty-nine grounds, which, without doing violence to their content, may be grouped as follows: (i) That the trial court erred in its evaluation of the evidence on the identity of the suit property, in particular by finding that Plot F317-B corresponded to Nairobi/Block 136/3516 in the face of DW1's evidence that the block in dispute was G301-B (grounds 1–3, 6–9, 25, 28); (ii) That the trial court erred in disregarding DW1's unrebutted evidence that he had not endorsed or authenticated the Respondents' documents, and that the sketches relied upon by the Respondents did not originate from the 1st Defendant (grounds 4, 8–9); (iii) That the trial court failed to appreciate the 1st Defendant's role and status as the sole custodian of allocation records and the allocating authority within the scheme (grounds 2, 7, 20, 24); (iv) That the trial court erred in its treatment of the payments made by the Appellant to the 1st Defendant, characterising an administrative transfer fee as a purchase price, and in disregarding that the Appellant was a bona fide purchaser for value from DW3 (grounds 10–14, 16–19, 21–23); (v) That the trial court erred in shifting the burden of proof and in finding, without evidentiary basis, that the Appellant's title was acquired unprocedurally, contrary to Section 26 of the Land Registration Act (grounds 13, 26–27); (vi) That the trial court erred in cancelling the Appellant's title when no such relief had been specifically prayed for (ground 15); and (vii) That the trial court lacked jurisdiction to determine the matter, by dint of Article 162(2) of the Constitution (ground 29). 1. The Respondents oppose the appeal. In their written submissions filed in this Court, relying on **Wreck Motors Enterprises v Commissioner of Lands and Gitwany Investment Ltd v Tajmal Ltd & 3 Others [2006] eKLR,** they maintain that the deceased's 1992 allocation of F317-B, later Nairobi/Block 136/3516, is first in time and prevails over the Appellant's later, and in their submission unprocedurally obtained, title. They contend that the Appellant's own documents bear no allocation stamp and do not disclose which property she was allocated, and that DW1's witness statement, at paragraph 4, is itself an admission that G301-B corresponds to Block 105/3516 and not the suit property. **The application for additional evidence and the ruling of 29th june 2026** 1. Before this Court could deliver judgment, the Appellant, by a Notice of Motion dated 21st May 2026, sought leave to adduce additional evidence in the form of records obtained from the Ministry of Lands and the Survey of Kenya, which she contended would establish that Plot F317-B and Plot G301-B are distinct and non-overlapping parcels, and that the Respondents' documents were forged. 2. By a Ruling delivered on 29th June 2026, this Court dismissed that application. Applying Order 42 Rule 27 of the Civil Procedure Rules and the conjunctive conditions restated by the Supreme Court in **Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 4 Others [2018] eKLR and Attorney General v Zinj Limited [2021] KESC 63 (KLR), drawing on Ladd v Marshall [1954] 1 WLR 1489 and Wanje v Saikwa (No. 2) [1984] KLR 275,** the Court found that the Appellant had not demonstrated that the evidence could not, with reasonable diligence, have been obtained and placed before the trial court; that the documents, being uncertified and requiring authentication by officers of two separate State departments, were not shown to be apparently credible; and that no substantial cause had been made out for reopening a concluded evidentiary record on the eve of a reserved judgment. 3. This judgment is accordingly rendered strictly on the record as it stood before the trial court. Nothing in it is founded upon, or influenced by, the additional material that was the subject of the dismissed application, and the allegations of forgery advanced in support of that application form no part of the reasoning that follows. **The duty of the first appellate court** 1. The duty of a first appellate court is settled. In **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, the Court of Appeal for East Africa held that a first appellate court must reconsider the evidence, evaluate it afresh and draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses and making allowance for that disadvantage; it will not ordinarily interfere with a finding of fact unless that finding is based on no evidence, or on a misapprehension of the evidence, or the trial court is shown demonstrably to have acted on wrong principles. This Court approaches the present appeal on that footing. **Issues for Determination** 1. Having considered the record of appeal, the grounds of appeal and the rival submissions of the parties, the following six issues commend themselves for determination: **(i) Whether the trial court had jurisdiction to hear and determine the suit;** **(ii) Whether the trial court correctly identified the suit property, Nairobi/Block 136/3516;** **(iii) Whether a case of double allocation was established and, if so, whether the first-in-time principle was correctly applied;** **(iv) Whether the Appellant’s title is impeachable under Section 26 of the Land Registration Act, 2012;** **(v) Whether the Respondents discharged the burden of proving their case on a balance of probabilities;** **(vi) Whether the order cancelling the Appellant’s title was properly granted; and** **(vii) What orders ought to issue, including as to costs.** **Analysis and Determination** 1. **Whether the trial court had jurisdiction.** I dispose first of the jurisdictional ground. The trial magistrate exercised the jurisdiction of the Environment and Land Court conferred on subordinate courts under Section 9 of the Environment and Land Court Act, 2011 as read with Section 26 of the Magistrates' Courts Act, 2015, and exercised at the Milimani Commercial Court by a magistrate gazetted to hear matters of this nature, subject to the applicable pecuniary limits. No basis has been laid, by way of evidence or submission, for the assertion that the pecuniary or subject-matter jurisdiction of the trial court was exceeded. This ground fails. 2. **Whether the trial court correctly identified the suit property.** The heart of this appeal, and indeed of the suit, is a single question of fact: does Nairobi/Block 136/3516 emanate from Plot F317-B, as the Respondents contend, or from Plot G301-B, as the Appellant contends? Every other issue in the case is downstream of the answer to that question. 3. Having re-evaluated the record, I am satisfied that the trial court fell into error in its resolution of this question, for the reasons that follow. 4. First, the trial court's finding that "the surveyor's testimony clarified that G301B actually corresponds to Nairobi Block 105/3516 and not the suit property" does not, with respect, accurately reflect the whole of DW1's evidence. It is correct that DW1's written statement of 30th January 2025 contained, at paragraph 4, a reference to "Nairobi/Block 105/3516" in connection with the allocation to Mary Wanjiku Mungu of Plot G301-B a reference which sits uneasily against paragraph 2 of the very same statement, in which DW1 deposed that he was the surveyor of the area in which "Parcel Number Nairobi/Block 136/3516 falls." That internal inconsistency was not permitted to stand unexplained; it was tested, both in cross-examination and re-examination, and DW1 resolved it unambiguously and repeatedly in favour of Block 136/3516, confirming in cross-examination by the Respondents' own counsel that he was "the surveyor who did survey of Block 136/3516 which is allocated block G301B bonus"; stating under cross-examination by the Appellant that "Nairobi Block 136/3516 is from plot G301B, it belongs to Mary Wanjiku Mungu"; and affirming in re-examination that "I surveyed parcel no. 136/3516, and not 105/3516. Block 136 is the one in dispute." 5. A trial court is entitled to prefer one part of a witness's evidence over another, but where it does so it must give reasons, particularly where, as here, the part preferred is a single reference in a written statement that the witness himself corrected on oath, under cross-examination from both sides, without demur. The judgment gives no reasons for preferring the isolated reference to Block 105/3516 over DW1's sworn and repeatedly reaffirmed oral testimony. That, in my view, amounts to a misapprehension of the evidence of the kind that entitles this Court, sitting as a first appellate court, to interfere. 6. Second, and reinforcing this conclusion, the trial court did not engage at all with the pleaded position of the 1st Defendant, Embakasi Ranching Company Limited, which is the entity that, on the evidence of all parties, allocated the plots within the scheme and remains the custodian of the allocation records. At paragraph 8 of its Statement of Defence, the 1st Defendant pleaded, in terms, that "the records held by the 1st Defendant indicate that Land Parcel No. Nairobi/Block 136/3516 which corresponds with plot No. G301B belongs to Mary Wanjiku Mungu." That position is corroborated by the 1st Defendant's letter of 30th May 2024, confirming that the Appellant, holder of Non-Member Certificate No. 027215, owns Nairobi/Block 136/3516, "formerly ... Plot No. G301B ... as per our records." 7. It is difficult to see what greater weight could be given to any single item of evidence in a dispute of this nature than the pleaded and documented position of the very entity that carried out the original allocation and holds the records by reference to which the identity of every plot in the scheme is to be ascertained. The Respondents' own witnesses, PW1 and PW2, each confirmed in cross-examination that it is the 1st Defendant alone that knows which plot was allocated to which member, and that all sketches and documents relating to allocation are in its custody. The trial court's judgment does not address this evidence at all, still less explain why the Respondents' sketches, which DW1 testified were not documents of the 1st Defendant and which PW2 conceded were unauthenticated and undated, were preferred over the 1st Defendant's own pleaded and documentary position. 8. Third, the Respondents' documentary case for F317-B does not itself sit easily with a claim to Nairobi/Block 136/3516. Share Certificate No. 13824 shows an allocation, by way of two bonus plots, of P4052-B and F317-B; the corresponding receipts and site-visit records are, on their face, referable to those two plots and not, in terms, to Block 136/3516. The endorsement said to identify the block number is found only on the reverse of a receipt, which DW1 disowned as not bearing his signature, and on sketches which he testified were not documents of the 1st Defendant at all. Weighed against the 1st Defendant's own contemporaneous records and pleaded position, and DW1's sworn testimony, I am unable to find that this evidence was sufficient to discharge the burden resting on the Respondents. 9. **Double allocation and the first-in-time principle.** It follows that the trial court's application of the first-in-time principle was built on an unsound foundation. The maxim that, as between two titles issued in error over the same parcel, the first in time prevails, presupposes that there are indeed two competing allocations of the same land. On my re-evaluation of the evidence, the Respondents did not establish, on a balance of probabilities, that Plot F317-B and Plot G301-B are one and the same parcel, still less that both were, in error, mapped onto Nairobi/Block 136/3516. The weight of the evidence DW1's sworn testimony, uncontradicted in its essential thrust despite the isolated inconsistency in his written statement, and the 1st Defendant's own pleaded and documented position supports the Appellant's case that Block 136/3516 originates from G301-B, allocated to Jane Wanja Kuria in 1984 and sold to the Appellant in 2013, and that F317-B is a distinct plot which the Respondents did not establish to be the suit property. 10. Even had a case of double allocation been made out, it bears noting that Jane Wanja Kuria's allocation of G301-B is deposed to have occurred in 1984, some years before the deceased's allocation of F317-B in 1992/1993. On the trial court's own reasoning, the first-in-time principle, properly applied, would not obviously have assisted the Respondents. 11. **Section 26 of the Land Registration Act and the allegation of an unprocedural acquisition.** Section 26(1) of the Land Registration Act, 2012 provides that a certificate of title is taken by all courts as prima facie evidence that the person named as proprietor is the absolute and indefeasible owner, and that such title is not subject to challenge save on proof of fraud or misrepresentation to which the proprietor is a party, or proof that the title was acquired illegally, unprocedurally, or through a corrupt scheme. 12. The Plaint does not plead fraud against the Appellant, whether in the particularised terms ordinarily required of such an allegation or otherwise; it pleads, at its highest, that the Appellant "illegally attempted to allocate herself" the property. No particulars of any illegality, still less of fraud or collusion, were pleaded against the Appellant, and none were proved. The suggestion, developed only in the Respondents' submissions at trial and on appeal, that the 1st Defendant and the Appellant colluded to alter the plot numbers, is a serious allegation that finds no proper pleading and no evidential foundation in the record; it rests on inference from documents which DW1, the very officer said to have made the alteration, disowned on oath. 13. The unchallenged evidence is that the Appellant paid the purchase price to Jane Wanja Kuria, paid the requisite transfer and site-visit fees to the 1st Defendant, was shown the plot on the ground, and was issued with a non-member share certificate and, ultimately, a title. No evidence was led to show that this process was corrupt, unprocedural, or tainted by misrepresentation to which the Appellant was a party. In those circumstances, Section 26 of the Land Registration Act operates in the Appellant's favour, and the trial court's finding that her title was "unprocedurally" acquired is not supported by the evidence on record. 14. **Burden of proof.** It was for the Respondents, as plaintiffs at trial, to prove their case on a balance of probabilities: **Kirugi & Another v Kabiya & 3 Others [1987] KLR 347.** For the reasons given above, I find that the trial court, in holding that the Respondents had discharged that burden, misapprehended the weight and effect of the evidence, in particular DW1's oral testimony taken as a whole and the 1st Defendant's own pleaded position. On a fresh evaluation, I am satisfied that the Respondents did not discharge the burden of proving that Nairobi/Block 136/3516 forms part of their late mother's estate. 15. **The relief of cancellation of title.** Given the foregoing findings, it is unnecessary to determine at length the Appellant's further complaint that the trial court granted an order cancelling her title in the absence of a specific prayer to that effect. I would only observe, in passing, that a relief of that gravity, which touches directly on a registered proprietor's indefeasible interest, ought ordinarily to be the subject of a clear and specific prayer, supported by pleaded particulars of fraud or illegality, rather than inferred from a more general prayer for cancellation of "parallel documents." **Conclusion** 1. For the reasons set out above, I find that the trial court misapprehended and misapplied the evidence on the central question in this suit the identity of the parcel now known as Nairobi/Block 136/3516 by preferring an isolated and internally inconsistent reference in a witness's written statement over that same witness's sworn and repeatedly reaffirmed oral testimony, and by failing to engage at all with the pleaded and documented position of the 1st Defendant, the very entity responsible for the original allocation and custody of the relevant records. On a fresh evaluation of the whole of the evidence, I am satisfied that the Respondents did not discharge the burden of proving that the suit property forms part of their late mother's estate, and that the Appellant's registered title to Nairobi/Block 136/3516 stands unimpeached. The appeal accordingly succeeds. **Final orders** 1. For the reasons set out above, this Court makes the following orders: **(i) The appeal is allowed.** **(ii) The judgment and decree of the Senior Principal Magistrate, Hon. M.A. Otindo, delivered on 3rd October 2025 in Milimani CMC ELC Suit No. E110 of 2021, is hereby set aside in its entirety.** **(iii) In substitution therefor, it is ordered that the Respondents' suit as against the Appellant, filed vide Plaint dated 6th April 2021, be and is hereby dismissed.** **(iv) It is hereby declared that the Appellant, is the lawful and registered proprietor of all that parcel of land known as Nairobi/Block 136/3516.** **(v) The costs of the appeal and the costs of the suit before the trial court shall be borne by the Respondents.** **DATED, SIGNED and DELIVERED VIRTUALLY this 6th day of July 2026.** **E.K. WABWOTO** **JUDGE** **In the presence of:** **Ms. Wahito for the Appellant.** **Mr. Mwaniki for the Respondents.** **Court Assistant: David Ngoosa.**