https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3504

**REPUBLIC OF KENYA** **IN THE** **ENVIRONMENT AND LAND COURT AT NYAMIRA** **ELCLC No. E013 OF 2024** **JOSEPHINE BOCHABERI MOCHONI** **(Suing as the Legal Administrator of the estate of** **Mochoni Monyenye (deceased) ….……..……….…...........…….... PLAINTIFF** **VERSUS** **ERICK NYASAE ................................................................... 1ST DEFENDANT** **CYRUS MOMANYI ........................................................... 2ND DEFENDANT** **CHIEF LAND REGISTRAR .................................................. 3RD DEFENDANT** **ATTORNEY GENERAL ...................................................... 4TH DEFENDANT** **JUDGMENT** 1. The Plaintiff moved the Court through Plaint dated 4th January 2024 wherein she averred that she was the administrator of the estate of Mochoni Monyenye (deceased) vide Limited Grant of Letters of Administration *Ad Litem* issued on 29th March 2023. That the deceased was the registered proprietor of the parcel of land known as Kisii/Bokeria 1/428, hereinafter the “suit property.” 2. The Plaintiff further averred that she had been in occupation of the suit property to the date of the Plaint and that on 5th January 2023, the First Defendant’s agents descended on the suit property with documents claiming they had been granted permission to invade the property with a view of dispossessing the Plaintiff and her family. 3. Consequently, the Plaintiff prayed for judgment against the Defendants jointly and severally as follows: 4. *A permanent Injunction do issue restraining the 1st and 2nd Defendants by themselves, servants, agents, employees or any other person howsoever from trespassing, cultivating, demolishing, developing, encroaching onto, remaining on and or in any other way whatsoever interfering all that parcel of land known as Kisii/Bokeira 1/428 measuring approximately 0.46Ha and situate at Nyamira County, all belonging to the Plaintiff.* 5. *Cancellation if any title deed or any title document issued in favour of the 1st and 2nd Defendants or any other party other than the Plaintiff herein in respect of all that parcel of land known as Kisii/Bokeira 1/428 measuring approximately 0.46Ha and situate at Nyamira County, all belonging to the Plaintiff.* 6. *Cost of the suit to be borne by the defendants.* 7. *Any other relief that this court may deem just and fit to grant*. 8. The First and Second Defendants filed Statement of Defence dated 24th June 2024 through which they denied the Plaintiff’s allegations and averred that they were joint registered proprietors of the suit property pursuant to a title issued to them on 29th November 2017 and that they had been in possession of the suit property since issuance of their title. They prayed that the Plaintiff’s suit be dismissed with costs. 9. The Third and Fourth Defendants entered appearance through the State Law Office but did not file any Statement of Defence. 10. At the hearing, the Plaintiff testified as the sole witness in respect of her case. She adopted her witness statement dated 4th January 2024 and produced copies of the documents listed as item numbers 1 to 3 in her supplementary list of documents dated 24th February 2025 as her exhibits. 11. She stated that Mochoni Monyenye (deceased) who died in 1982 was her father and the registered proprietor of the suit property. That the suit property was her ancestral land, and she discovered that the First and Second Defendants had obtained title to the suit property in the year 2020 when they noticed people on the land. She added that the deceased did not sell the suit property to the First and Second Defendants. 12. She further testified that David Obaigwa Mochoni who died in 2021 was her brother and became the registered proprietor of the suit property on 10th June 2009 and that she did not know Richard Makori who became the proprietor on 12th January 2016. She also stated that the Land Registrar cancelled the First and Second Defendants’ titles on 25th June 2020 and that she was aware of the cancellation before she filed this case. 13. She further stated that she obtained a certificate of official search dated 4th July 2023 which showed that the deceased was the registered proprietor as of that date and that a caution which she lodged was still on the register. She added that she sued the First and Second Defendants since they were on the suit property, yet it belonged to her father. 14. The Plaintiff’s case was then closed. 15. The First Defendant Erick Nyasae testified as DW1 and adopted a witness statement dated 23rd July 2024, which he jointly signed with the Second Defendant. He produced copies of the documents listed as item numbers 1 to 7 in the First and Second defendants’ list of documents dated 23rd July 2024 as their exhibits. He stated that the purchased the suit property in 2017 from Richard Makori after which they became registered proprietors and that they had been using the land from 2017 to 2024. 16. DW1 further stated that he still had the original of their title to the suit property and that it had never been recalled. He also stated that they conducted a search prior to the purchase and that entries numbers 1 to 7 in the register which included their title were cancelled on 25th June 2020 by the Land Registrar. 17. The First and Second Defendants’ case was thereafter closed. 18. Martin Osano, the Land Registrar Nyamira County testified as DW2 and produced certified copies of the register in respect of the suit property and presentation book for 29th November 2017 to 30th November 2017 as his exhibits. He stated that the register was opened on 16th July 1976 and that Mochoni Monyenye (deceased) was the first registered proprietor. That entry Number 2 dated 10th June 2009 showed that David Obaigwa Mochoni became registered proprietor through succession. He added that he could not trace the required succession forms RL19 and RL7 in support of transmission to David Obaigwa Mochoni. 19. DW2 further stated that entry number 4 pursuant to which title deed was issued to David Obaigwa Mochoni was not signed by the Land Registrar. He added that entry number 5 dated 12th January 2016 was a transfer to Richard Makori while entry number 6 was issuance of title deed to Richard Makori. That entry number 7 dated 29th November 2017 was a joint transfer to the First and Second Defendants. 20. DW2 went on to testify that he located the presentation book which stated that the transfer in favour of the First and Second Defendants was presented for registration on 30th November 2017. He added that no title deed was issued to the First and Second Defendants and that if any was issued, there would be an entry to that effect in the green card or register. 21. He further testified that entry number 8 dated 22nd May 2020 was a caution in favour of the Plaintiff who claimed beneficiary interest while entry number 9 dated 25th June 2020 was a nullification of entries number 1 to 7 under Section 79 (2) of the Land Registration Act. He added that following the nullification, the only entry remaining in the register was entry number 8 and that there was registered owner on the register. 22. DW2 also stated that the Plaintiff’s complaint was that there was no succession could be true since no succession cause number was captured in the register. He added that entry number 1 ought not to have been included in the nullification and that proprietorship should have reverted to Mochoni Monyenye (deceased). He concluded by stating that the defects in entry number 2 affected all other subsequent entries and that Mochoni Monyenye remained the registered owner of the suit property. 23. The Third and Fourth Defendants’ case was then closed. Directions for filing and exchange of written submissions were thereafter given. The Plaintiff filed submissions dated 9th March 2026 while the Defendants did not file submissions. The Third and Fourth Defendants relied on the evidence on record. 24. It was submitted on behalf of the Plaintiff that the title of Mochoni Monyenye (deceased) to the suit property had not been impeached and that the subsequent transfers had been shown to be fraudulent. That there was no title to pass to the First and Second Defendants and that their claim to the suit property was misplaced. The Plaintiff thus urged the Court to grant the reliefs sought. 25. I have carefully considered the pleadings, the evidence and the submissions. The only issue for determination is whether the reliefs sought should issue. 26. There is no dispute that Mochoni Monyenye (deceased) was the first registered proprietor of the suit property pursuant to entry number 1 dated 16th July 1976 in Part B – Proprietorship Section of the register of the suit property. It is also not in dispute that Mochoni Monyenye died in the year 1982. None of the parties has challenged validity of Mochoni Monyenye’s title. 27. The rights of a registered proprietor of land are well settled in law. Such a proprietor is entitled to the rights, privileges, and benefits spelt out under **Article 40** of the **Constitution** which secures protection of right to property and **Sections 24** and **26** of the **Land Registration Act**. 28. **Section 24** of the **Land Registration Act** provides as follows: ***Subject to this Act—*** ***(a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and*** ***(b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease***. 1. **Section 26** of the **Land Registration Act** obligates the Court to accept the certificate of title issued by the Land Registrar as *prima facie* evidence that the person named as proprietor of the land is the absolute and indefeasible owner and the title is not to be challenged except on the grounds specified in the provisos under **Section** **26** **(1) (a)** or **(b)**. Those provisos state that the grounds on which a title can be nullified are fraud or misrepresentation to which the registered proprietor is proved to be a party or where it is shown that the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme. Thus, despite the fortified protection, title to property which is found to have been unlawfully acquired is open to impeachment. 2. The dates and nature of entries in Part B – Proprietorship Section of the register of the suit property are not in dispute. They were well highlighted by the Land Registrar in his testimony. The significant entries are entry numbers 2 and 3 both dated 10th June 2009 which were change of proprietorship to David Obaigwa Mochoni through succession forms RL19 and RL7. Both RL19 and RL7 were forms that were used under the **Registered Land Act** (repealed) for transfer by a personal representative to a person entitled under a will or on an intestacy. The Land Registrar testified that he could not trace the said RL19 and RL7 forms to justify David Obaigwa Mochoni’s proprietorship. 3. I also note that no succession cause number was given against entry numbers 2 and 3. Although entry number 4 states that a title deed was issued to David Obaigwa Mochoni on 26th May 2015, the said entry was not signed by the Land Registrar. 4. According to the register, Richard Makori became registered proprietor by way of transfer on 12th January 2016 through entry number 5. Subsequently, the First and Second Defendants became joint registered proprietors through transfer on 29th November 2017, pursuant to entry number 7. 5. As can be seen in the register and also confirmed by the Land Registrar in his testimony, there is no entry stating that any title deed was issued to the First and Second Defendants. That *lacuna* notwithstanding, the First Defendant testified that they have a title deed. He even produced a copy of the title. 6. The ambiguity in the First and Second Defendants’ title did not end there. Although they were registered as proprietors on 29th November 2017, the land Registrar produced a copy of the presentation book a perusal of which shows that no transfer from Richard Makori to the First and Second Defendants was presented for registration on 29th November 2017. Instead, the presentation book states that a transfer from Richard Makori to the First and Second Defendants was presented for registration on 30th November 2017, after they had already become proprietors. 7. As the Supreme Court held in **Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR)**, title to land is an end product of a process. If the process that was followed prior to issuance of the title or registration as proprietor did not comply with the law, then such a title cannot be held as indefeasible. 8. It is manifest that David Obaigwa Mochoni’s title is not supported by way of evidence of valid transmission. Equally, the First and Second Defendants’ title has major unexplained gaps. The Plaintiff has satisfied the requirements of **Section 26 (1)** of the **Land Registration Act** by establishing that all titles after that of Mochoni Monyenye were acquired illegally and un-procedurally. In those circumstances, the Land Registrar validly effected rectification of the register to nullify David Obaigwa Mochoni’s and the First and Second Defendants’ title. I further note that the First and Second Defendants did not file any counterclaim regarding rectification and nullification. 9. The Land Registrar testified that rectification of the register to nullify entry number 1 was by mistake. As I stated earlier, there is no dispute that Mochoni Monyenye (deceased) was the first registered proprietor of the suit property pursuant to entry number 1. All the parties herein acknowledge his proprietorship and trace their claims to his title. In the circumstances, no injustice will be occasioned by restoring that entry. Logically, the suit property cannot remain without a proprietor. 10. In view of the foregoing, I find merit in the Plaintiff’s case. I enter judgment in favour of the Plaintiff as follows: 11. **Entry number 1 in Part B – Proprietorship Section of the register of parcel number Kisii/Bokeria I/428 is reinstated.** 12. **The registered proprietor of parcel number Kisii/Bokeria I/428 is Mochoni Monyenye.** 13. **A permanent injunction is hereby issued restraining the First and Second Defendants by themselves, servants, and agents from trespassing, cultivating, demolishing, developing, encroaching onto, remaining on and or in any other way howsoever interfering with the parcel of land known as Kisii/Bokeira I/428.** 14. **Each party shall bear own costs**. **Dated, signed, and delivered at Nyamira, this 10th day of June 2026.** **D. O. OHUNGO** **JUDGE** Delivered in the presence of: Mr Bundi for the Plaintiff Mr Sala for the 1st and 2nd Defendants Mr Ondima holding brief for Mr Ndiritu for the 3rd and 4th Defendants Court Assistant: B Kerubo