https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4167

Mulwa (Suing as Administrator of the Estate of Peter Mulwа) & another v Gedi & 3 others (Environment and Land Case 31 of 2024) [2026] KEELC 4167 (KLR) (1 July 2026) (Judgment) Neutral citation: [2026] KEELC 4167 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case 31 of 2024 EK Makori, J July 1, 2026 Between Richard Mutangili Mulwa (Suing as Administrator of the Estate of Peter Mulwа) 1st Plaintiff Anderson Katambo Mulwa 2nd Plaintiff and Abdisalam Abdullahi Gedi 1st Defendant Dubai Islamic Bank Kenya Limited 2nd Defendant The Land Registrar - Kilifi 3rd Defendant The Attorney General 4th Defendant Judgment 1.The plaintiff, via a plaint dated March 7, 2024, sued the defendants seeking:a.A declaration that Title No. Kilifi/Madzimbani/Mitangoni/54, which was created and registered in favor of the 1st defendant, was procured through an illegal process; that the 1st defendant had no valid proprietary interest in the suit property; and that he could not create any lawful charge over the suit property to secure a loan from a bankb.A declaration that the charge created and registered in favor of the 2nd defendant over Land Title No. Kilifi/Madzimbani/Mitangoni/54 on October 28, 2020, was null and void and ineffectual to confer any valid interest upon the 2nd defendant.c.An order to the Land Registrar, Kilifi Land Registry, to cancel the registration of the 1st defendant as owner of Land Title No. Kilifi/Madzimbani/Mitangoni/54, to cancel the registration of the charge made on October 28, 2020, in favor of the 2nd defendant, and to delete any subsequent entries of charges registered in the encumbrance section of the register of the said title.d.An order to the Land Registrar of the Kilifi Land Registry to register Land Title No. Kilifi/Madzimbani/Mitangoni/54 in the names of the plaintiffs as the absolute owners thereof.e.An order of permanent injunction restraining the 2nd defendant from dealing with the Suit Property in the exercise of any statutory power of sale by virtue of the Charge registered in the encumbrances section of the register of Land Title No. Kilifi/Madzimbani/Mitangoni/54.f.Payment of general damages by the 1st defendant for his fraudulent dealings with the Title No. Kilifi/Madzimbani/Mitangoni/54.g.Costs of this suit and interest thereon at Court rates.h.Any other relief that this Honorable Court may deem just to grant. 2.The 1st defendant filed and served a defense and counterclaim dated March 26, 2024, claiming inter alia: that the plaintiff's suit in the main suit be dismissed with costs to the 1st defendant; and that the plaintiff's counterclaim be allowed against the defendants in the counterclaim jointly and severally as follows:a.A declaration that Plot No. Kilifi/Madzimbani/Mitangoni/54 is duly registered in the plaintiff's name, as outlined in the counterclaim.b.A declaration is issued that the 3rd defendant is to proceed to cancel the Title Deed issued on February 9, 2023, in favor of the 1st and 2nd defendants in the counterclaim.c.A declaration that all Proceedings done without the Plaintiff after 25th April, 2017, and after 9th August, 2019, after the death of Muriuki Mburu, were a nullity, hence null and void, since the said Muriuki Mburu was deceased and since the plaintiff was not involved and/or served.d.A permanent Injunction be issued to restrain the 1st and 2nd defendants by themselves, their Agents, servants, and/or anyone claiming under them from interfering in any manner whatsoever with the plaintiffs' quiet possession and/or usage of the suit land known as Title No. Kilifi/Madzimbani/Mitangoni/54.e.Costs of the counterclaim.f.Any other relief this Honorable Court may deem just to grant. 3.The 2nd, 3rd, and 4th defendants filed their answers and denied the plaintiff's claim herein, with the 2nd defendant's answer dated April 24, 2024, and the 3rd defendant's answer dated April 3, 2024. The plaintiffs denied the 1st defendant's counterclaim in their statement of defense to counterclaim dated April 17, 2024. 4.The 2nd plaintiff, Anderson Katambo Mulwa, testified as PW1, and he adopted his written witness statement dated 7th March 2024 as his testimony in chief. He produced exhibits Nos. 1 to 23 attached to his list of documents dated 7th March 2024 and supplementary list of documents dated 3rd July 2024. 5.The 1st plaintiff, Richard Mutangali Mulwa, testified as PW2 and also adopted his written witness statement dated 7th March 2024 as his testimony in chief. 6.The 1st defendant, Abdisalam Abdullahi Gedi, testified as DW1 and adopted his written witness statement dated 26th March 2024 as his testimony in chief and produced exhibits Nos. 1 to 30 attached to his list of documents dated 5th April 2024. 7.The 2nd defendant called its legal manager, Farida Ghazi, as its witness. She testified as DW2, adopted her written witness statement dated 15th August 2024 as her testimony in chief, and produced exhibits Nos. 1 to 19, attached to the list of documents dated 15th August 2024. 8.The 3rd and 4th defendants called two witnesses, Laban Mwanzo, Land Adjudication and Settlement Officer, who testified as DW3, and Josphine Rama, the Land Registrar, who testified as DW4. The defendants produced exhibits Nos. 1 to 14, attached to her list of documents dated 22nd September 2025. 9.From the evidence adduced, there are two Title Deeds registered in respect of the same suit land, that is, Land Title No. Kilifi/Madzimbani/Mitangoni/54. One of the titles was registered in the name of the 1st defendant on 4th April 2017, and the second title was registered on 9th February 2023 in the names of the 2nd plaintiff and the late Peter Mulwa, the deceased. 10.At the close of the plaintiffs’ and the defendants' cases, the court directed the parties’ counsel to file written submissions. I acknowledge receipt of the parties’ submissions with much appreciation, particularly regarding the root of the title, which is the predominant feature in this matter. Counsel cited relevant decisions in this realm, which I will refer to as I discuss the issues for settlement in this matter. 11.Based on the materials and submissions before me, the issues I frame for the decision of this court are: which title is legal and proper, as held by the plaintiffs and the 1st defendant and charged to the 2nd defendant; whether the plaintiffs are entitled to the reliefs sought in the plaint; and whether the 1st defendant is entitled to the reliefs sought in the counterclaim. The issue of costs. 12.Plaintiffs submit that the 2nd plaintiff and the deceased are the lawful owners of the suit land and that the title registered in favor of the 1st defendant was procured through an illegal process and is invalid. Consequently, the charge registered against that title on October 28, 2020, is also invalid and ineffectual to confer any valid interest upon the 2nd defendant in the suit land. 13.Plaintiffs assert that, from the evidence adduced, it is manifest that the plaintiffs' title to the suit land was a product of the land adjudication process under the provisions of the Land Adjudication Act, Chapter 284 of the Laws of Kenya. 14.PW2 testified that after the area was declared an adjudication section, the deceased and one Muriuki Mburu were jointly recorded as owners of the suit land, pending determination of a dispute between them. PW2 produced a copy of the notice establishing the adjudication section and a copy of a temporary plot certificate as Exhibits No. 2 and 4, respectively. 15.Subsequently, the said Muriuki Mburu filed Land Committee Case No. 72, which was decided in his favor on 13th September 2012. The deceased then pursued all the remedies provided for under the Land Adjudication Act, Chapter 284 of the Laws of Kenya, starting with Arbitration Board Case No. 7, which was decided in favor of Muriuki Mburu, followed by Objection Case No. 6 of 2014, which was also decided in favor of the said Muriuki Mburu, culminating in Appeal No. 88 of 2016 to the Minister. The plaintiffs produced copies of the proceedings in the said cases as exhibits No. 7, 8, 9, 10, 11 and 12. 16.Following the decision in the Appeal to the Minister, the deceased filed Petition No. 11 of 2017 at the Malindi ELC, which was decided in his favor. An order of certiorari was issued, quashing the Minister's decision and directing that the Appeal be heard afresh. 17.Plaintiffs contend that the Appeal to the Minister was heard afresh and decided in favor of PW2 and the deceased, and the decision ordered that the suit land be registered in their names. Pursuant to that decision, PW2 and the deceased were registered as owners of the suit land, and a Title Deed was issued. 18.Plaintiffs contend that the sale of the suit property by Mburu Muriuki to the 1st defendant occurred during the pendency of the adjudication process and the ensuing appeals. Therefore, any title arising from those proceedings is a nullity and contravenes the doctrine of lis pendens. See Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another [2015] eKLR and Bernadette Wangare Muriu v National Social Security Fund Board of Trustees & 2 others [2012] eKLR. 19.The plaintiffs submit that the 1st defendant's claim of being an innocent purchaser for value without notice does not constitute a defense, given evidence that he acquired the title unprocedurally or illegally. Section 26(1)(b) of the Land Registration Act No. 3 of 2012 removes protection from an innocent purchaser, rendering his title impeachable if it is obtained illegally, unprocedurally, or through a corrupt scheme. 20.Plaintiffs assert that in the present case, the 1st defendant was at all times aware of the ongoing adjudication process, and it is evident that he participated in the irregular and illegal acquisition of the title. In light of the foregoing, the 1st defendant was not a bona fide purchaser for value without notice. 21.The plaintiffs aver that the mere fact that the 1st defendant holds a title deed to the suit land does not, in itself, prove that the acquisition of the title was legal, because the title is a product of a process, not an end in itself. See Munyu Maina v Hiram Gathiha Maina, Civil Appeal No. 219 of 2000. 22.Regarding the charge by the 2nd defendant, plaintiffs state that it is clearly invalid because, as DW3 testified, at the time of registration of the charge, an order of inhibition issued by the Court in ELC Petition No. 11 of 2017 was in force, forbidding the registration of any dealings with the title to the suit land. PW2 produced evidence showing that a conservatory order staying the implementation of the decision of the Minister in Appeal and an order of inhibition forbidding the registration of any dealings on the suit land, pending determination of the petition, were presented at the land registry for registration. DW3 admitted under cross-examination that at the time of registration of the Charge, the parcel file contained an order of inhibition issued by the Court in ELC Petition No. 11 of 2017, inhibiting the registration of any dealings in the suit land. PW2 produced the order as Exhibit No. 20. The plaintiffs further submit that, given that the title created and registered in favor of the 1st defendant was procured through an illegal process, the Charge created and registered in favor of the 2nd defendant against the title to the suit land on 28th October 2020 was also null and void and ineffectual to confer any valid interest upon the 2nd defendant over the suit land, and that it ought to be canceled as well. 23.Citing the decision in Dina Management Limited versus County Government of Mombasa & 5 Others, [2023] KESC 30 [KLR], the plaintiffs contend that the defendants have argued that, because the 1st defendant's registration as owner of the suit land was first in time, the 1st defendant's title is indefeasible, and that where there are two competing titles, the first in time must prevail. The plaintiffs submit that the defendants' position is based on a misapprehension of the law. The plaintiffs further submit that it does not matter that the 1st defendant's title is alleged to have been first in time. The issue at hand is which of the two titles was lawfully registered. 24.The 1st defendant submits that the title deed he holds was never canceled before the issuance of the second Title to the plaintiffs. There were several proceedings before the Land Adjudication before the issuance of the first Title to the 1st defendant. The proceedings were between the 1st plaintiff’s estate and one Muriuki Mburu, and the latter sold his interest to the 1st defendant. However, he passed away on 9th August, 2019. A decree given on 2nd October, 2020, and issued on 26th November, 2022, in Malindi ELC Petition No. 11 of 2017, was issued in error because the petition had abated as of 7th August, 2020. As per the 1st defendant's Exhibit on pages 67 and 68, the 1st respondent had died on 9th August, 2019. Hence, the said decree and judgment cannot be relied upon in evidence. 25.The 1st defendant maintains that all proceedings after 9th August, 2019, including the proceedings of 8th October, 2021, reflected in plaintiffs' Exhibits Nos. 13, 14, 15, and 16, were conducted in the absence of Muriuki Mburu, who had died on 9th August, 2019. Hence, those proceedings are a nullity in law, since the respondent was deceased and no representative of his estate was present. Hence, the purported decision of 8th October, 2021, by the Panel Chairman/Deputy County Commissioner was a nullity and hence of no legal consequences. 26.The 1st defendant submits that, in light of the above facts, the plaintiffs' suit ought to be dismissed with costs to the 1st defendant, and the counter-claim be allowed as prayed, for the following reasons: The 1st defendant's Title was the first to be issued after the adjudication process. First to issue Title Deed, Rule. It was issued during the lifetime of Muriuki Mburu, who had sold it to the 1st defendant. After his demise, the 2nd Title to the plaintiffs was issued. Proceedings were conducted after his demise, and orders were issued during his lifetime without the enjoinment of his Administrator. Hence, all the said proceedings and/or orders and/or decrees were a nullity in Law. The 1st defendant legally charged his Title Deed to the 2nd defendant. 27.In support of the foregoing submissions, the 1st defendant cites the following decisions: Beatrice Wambui Kiarie and 2 others v Tabitha Wanjiku Ng’ang’a and 9 others [2017] KEELC 173 (KLR); Kenya Medical Supplies Agency (KEMSA) v Mavji Kanji Hirani and 8 others [2018] KECA 485 (KLR); Arthi Highway Developers Limited v West End Butchery Limited and 6 others [2015] KECA 816 (KLR); and Saka v Muraya [2025] KECA 1306 (KLR). 28.The 2nd defendant submits that its case is straightforward and supported by both uncontroverted documentary evidence and oral testimony. By a Facility Letter dated 24th June, 2020, as amended by a Supplemental Facility Letter dated 2nd September, 2020, the Bank extended a financial facility for KES 64,500,000/- to Highrise Commodities Limited. As security for the facility, the 1st defendant, the registered proprietor of the suit property at all material times, executed a Charge dated 9th October, 2020, in favor of the Bank. The charge was duly registered on 28th October, 2020, thereby creating a valid and enforceable security interest in favor of the Bank. 29.Before advancing the facility, the Bank undertook comprehensive due diligence, including verification of the borrower’s corporate status, confirmation of ownership of the suit property through official searches, procurement of Land Control Board consent, valuation of the property, and execution of all requisite security documentation. 30.The Bank’s involvement in the suit property is therefore limited to that of a chargee for value, without notice of any defect in title. The Bank was not a party to any adjudication proceedings, had no notice of any competing claims or disputes affecting the property, or of any fraud about it, and relied entirely on the official land register maintained by the State. 31.2nd defendant asserts that the plaintiffs’ case, insofar as it seeks to invalidate the Bank’s charge, is therefore misplaced. The plaintiffs have not demonstrated any fraud, misrepresentation, illegality, or notice attributable to the Bank. The Bank therefore avers that its charge was lawfully created, remains valid and enforceable, and is fully protected under the Land Registration Act and applicable jurisprudence. 32.Citing the decisions in Arthi Highway Developers Limited v West End Butchery Limited and 6 Others [2015] eKLR and Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna [2013] eKLR, the 2nd defendant asserts that the plaintiffs have not proved fraud against it. 33.The 2nd defendant submits that the doctrine of lis pendens cannot be invoked to defeat its interest. There is no evidence that the Bank had notice of any pending adjudication proceedings or appeal. The Land Adjudication Officer confirmed that the Bank was not a party to such proceedings and had never been notified. Further, no restriction or inhibition was registered against the title to prevent dealings. See Dipa Pulling v Suchan Investments Limited and 3 others [2019] eKLR. 34.The 3rd and 4th defendants submit that the plaintiffs never produced any evidence showing that there were court orders to cancel the initial title issued to the 1st defendant, free of fraud. In addition, section 80 of the Land Registration Act does not confer authority on the Land Registrar to cancel titles. See Kiro v Chief Land Registrar; Gakuo & another (Interested Parties) [2025] KEELC 7705 (KLR). 35.The 3rd and 4th defendants submit that the title initially issued to the late Muriuki Mburu, after exhaustion of the land adjudication process all the way to the decision by the Minister, meant that the 2nd decision by the Minister could not possibly be effected, because a title had already been issued. 36.The 3rd and 4th defendants submit that the alleged conservatory orders were never registered to prevent the issuance of the initial title. The Land Registrar testified that such orders were never served to ensure compliance. 37.The 3rd and 4th defendants conclude that the allegations of fraud were never proved; they were merely alleged and did not meet the standard of proof as set out in Kimathi Kilonzo v Susan Wangari Kiiru and another [2019] eKLR. 38.The core issue in this dispute, as rightly submitted by counsel for the parties, is determining which party—the plaintiffs or the 1st defendant—has established a valid legal interest in the land in question. Both this Court and the Appellate Courts have set guidelines for resolving conflicts over competing interests or title to property. The law now explicitly provides that when a title's validity is in question, the owner must do more than show the title deed; they must also substantiate the origin of their interest and demonstrate that their acquisition was lawful and properly conducted. Each party is responsible for providing evidence of a genuine and lawful root of their title or interest. 39.In Dina Management Limited v County Government of Mombasa & 5 others [2021] KECA 503 (KLR), the Supreme Court, citing the Court of Appeal decision in Munyu Maina v Hiram Gathiha Maina, Civil Appeal No 239 of 2009 [2013] eKLR, affirmed that mere possession of a title deed is inadequate to establish ownership. The title deed itself is subject to challenge; therefore, the registered owner must substantiate the lawfulness of the title, demonstrating that the acquisition was legal, properly formalized, and free from encumbrances—encompassing interests not recorded in the register—and that the title or lease was obtained through a lawful process. Should the procedures preceding the issuance of the title fail to comply with legal requirements, then the title cannot be deemed indefeasible. 40.Further, in Mount Pleasant Limited v Mwangi & 3 others [2025] KEELC 7240 (KLR), this Court (Angote J.) held as follows concerning the issue of two competing titles:“The issue of competing titles remains one of the most enduring and complex challenges within Kenya’s land administration system. A title, the document meant to confer security of tenure has, in many cases, become a source of conflict. 254.As Kiage, JA poignantly remarked in Gathondu (As Administrator of the Estate of the Late Thumbi Kariuki) v Registrar & others [2024] KECA 668 (KLR):“Once upon a time, the holding of a title deed, that treasured document that declared the person named therein as the indisputable owner of the landed property, was a ticket to peace and proprietary security. That it was before a vile mix of greed, rapacity and fraud on one hand and corruption mischief, and tampering of records on the other, increasingly rendered many a title deed worthless papers the holding of which, without more, provided neither certitude nor assurance of safety as courts have had to step in to decipher and determine which among two contending instruments of title is genuine and efficacious. The puzzle of competing title deeds over the same property on the ground in contemporaneous existence is now becoming a contest not of dualities of claims, but, as this case shows, one of multiple contestations, each backed by a title deed.” 255.The Court of Appeal in Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR) emphasized that when the validity of a registered proprietor’s ownership is questioned, it is insufficient for that person to simply produce the title deed as proof of ownership. The proprietor bears the duty to go further and show that process through which the title was obtained, was lawful, procedurally sound, and free from fraud or irregularity. 256.Where the acquisition process leading to the issuance of a title is tainted with illegality or non-compliance with the law, such a title cannot be sustained. This position was affirmed by the Supreme Court in Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), where the Apex Court was categorical that:“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....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.” 257.The Plaintiff submits, and it is indeed the position, that where there are two competing titles, the first in time will prevail. This position was emphasized in the case of Wreck Motors Enterprises v The Commissioner of Lands & 4 others [1997] KECA 284 (KLR), where the court held that:“Where there are two competing titles, the one registered earlier is the one that takes priority.” 258.However, this maxim is only applicable where there are equal equities. In the circumstances, each of the titles has been impugned, and the court is mandated to investigate their roots.” 41.In this matter, both the plaintiffs and the 1st defendant assert that the titles they hold are the result of an elaborate adjudication process. The 1st defendant contends that it acquired the first title in time through a lengthy adjudication process involving the dispute resolution mechanisms laid out in the Land Adjudication Act between the 1st plaintiff’s estate and one Muriuki Mburu, who sold his interest to the 1st defendant. 42.The 2nd title was acquired after the Minister's award was challenged in Malindi ELC Petition No. 11 of 2017, which ordered that the appeal to the Minister be heard afresh, resulting in a second award by the Minister that reversed the 1st appeal to the Minister in favor of the plaintiffs against the deceased Muriuki Mburu. The decision is reported as: Peter Mulwa v Muriuki Mburu & 3 others [2020] KEELC 3 (KLR). The Court held partly that:“Accordingly, the determination by the 2nd Respondent to the effect that the Appeal had been filed outside the stipulated time was rendered without any supporting evidence. It was therefore as submitted by the Petitioner unreasonable, procedurally unfair and violated the Petitioner’s right to appeal as provided under the law. 20.While the Petitioner has urged this Court in light of the foregoing to go ahead and determine the ownership of the parcel of land in dispute in his favour, I am of the view that this Court should not do so given the circumstances and that the dispute resolution process as provided under the Land Adjudication Act ought to be exhausted. 21.Accordingly, the Petition succeeds and I grant all the orders sought therein with the direction that a fresh Ministerial Panel other than that which heard the dispute on 4th April 2017 be constituted to hear and determine the Appeal.” 43.After rehearing the appeal, the Minister, in the 2nd decision dated October 8, 2021, reverted the land to the plaintiffs. 44.As seen from the above, the Superior Courts have clarified that anyone claiming to be a bona fide purchaser for value must prove they have a lawful, enforceable interest. In its decision in Dina Management Limited v County Government of Mombasa & others (supra), the Supreme Court reaffirmed the decision of the Court of Appeal in Samuel Kamere v Land Registrar, Kajiado Civil Appeal No 28 of 2005 [2015] eKLR. It was established that to be considered a bona fide purchaser, one must demonstrate that they obtained a valid and legal title, performed due diligence to identify the legitimate owner from whom they acquired the title, and paid valuable consideration for the property. 45.In this matter, the plaintiffs aver that the title issued to the 1st defendant was procured through fraud or was unprocedurally acquired while appeals to the Minister were pending. 46.As reiterated, the Apex Court has settled the law and principle to the effect that no protection can be afforded to a purchaser with respect to a title whose acquisition and root are marred by illegality and procedural irregularities. See Dina Management Limited v County Government of Mombasa & others (supra). 47.Fraud, illegalities, and improper acquisition of the suit property have been alleged against the defendants. Regarding the standard of proof, it has been established that proving fraud requires a higher standard of evidence than in typical civil disputes. In Fanikiwa Limited & three others v Sirikwa Squatters Group & 17 others (Petition 32 (E036), 35 (E038), & 36 (E039) of 2022 [2023] KESC 105 (KLR)), the Supreme Court explained that fraud, which may occasionally be categorized as a criminal offense depending on the circumstances, must be pleaded and proven with rigor. Moreover, the Court observed that while the civil standard for establishing fraud is not proof beyond a reasonable doubt, it exceeds the balance-of-probabilities standard commonly employed in civil litigation. See also Lanet Hill Company Limited v School Management Committee Lion Hill Primary School & another [2023] KEELC 20098 (KLR). 48.Whereas fraud has been alleged against the defendants, it was not proved, as the record shows that the title issued to the 1st defendant was acquired after the Minister rendered the initial decision. 49.What remains to be decided here is whether the 2nd decision by the Minister, resulting in the issuance of the 2nd title to the plaintiffs, ousts the first title, issued as a result of the initial decision held by the 1st defendant and charged to the 2nd defendant, which was also issued after the Minister's initial decision. 50.The turn of events in this matter regarding the two decisions by the Minister has been summarized in the parties' submissions by counsel and will bear on determining which of the two titles has firmer roots than the other. From the record, a decree given on 2nd October, 2020, and issued on 26th November, 2022, in Malindi ELC Petition No. 11 of 2017, was issued erroneously(sic) because the petition had abated as at 7th August, 2020, as per the 1st defendant's Exhibit on pages 67 and 68. The 1st respondent had died on 9th August, 2019. Hence, as submitted by counsel for the 1st defendant, the said decree and judgment cannot be relied on in evidence in this matter. 51.Further, the proceedings held after 9th August, 2019, including the plaintiffs' Exhibits Nos. 13, 14, 15, and 16, which were proceedings of 8th October, 2021, were held in the absence of Muriuki Mburu, who had died on 9th August, 2019. Hence, those proceedings are a nullity in law, since the respondent was deceased and no representative of his estate was present. Hence, the purported decision of 8t October, 2021, by the Panel Chairman/Deputy County Commissioner was a nullity and hence of no legal consequences. 52.Further letters dated 9th March, 2021; 27th April, 2021; 12th May, 2021; 18th August, 2021; 16th September, 2021; 26th January, 2023; 2nd December, 2020; and 10th December, 2020, as well as the Title issued to the plaintiffs on 9th February, 2023, are nullities because they were issued after the respondent's death and before an Administrator of his Estate was appointed. Therefore, the Court cannot admit them into evidence. See Section 82 of the Law of Succession. 53.In the judgment in Malindi ELC Petition No. 11 of 2017, paragraph 6, the judge noted that the 1st respondent was served but never entered an appearance or a response. This was because, as at 2nd October, 2020, he had died in August, 2019, that is, one year earlier; hence, the suit against him abated on 7th August, 2020. The other proceedings in the plaintiffs' Exhibit Nos. 12 to 19 were all conducted after the demise of the said respondent and are therefore a nullity in law. 54.The decision subsequently rendered by the Panel, in obedience (sic) to the Court's orders, further indicates that the deceased did not attend the proceedings after the summons went unheeded. The proceedings were conducted ex parte following the unsuccessful service of the summons, as the individual had died. 55.The issuance of the 2nd title was unlawful because the earlier title had not been cancelled. Section 79 of the Land Registration Act empowers the Land Registrar to rectify the register and alter title, as held in Republic v Chief Land Registrar & another Ex parte Yosabia Kerubo Manyura [2018] KEELC 1074 (KLR):“… Section 79 of the Land Registration Act, No. 3 of 2012, makes provisions for instances where the Land Registrar can effect rectification of the register. The rectification that a Land Registrar can make does not include cancelling the title of a registered proprietor. Section 79 provides as follows:79. (1)The Registrar may rectify the register or instrument presented for registration in the following cases –a.in formal matters and in the case of errors, mistakes, or omissions not materially affecting the interests of any proprietor.b.In any case and at any time with the consent of all affected parties; orc.If upon resurvey, a dimension or area shown in the register is found to be incorrect, in such case the Registrar shall first give notice in writing to all persons with an interest in the rectification of the parcel.d.For purposes of updating the register;e.For purposes of correcting the name, address or other particulars of the proprietor upon the written application by the proprietor in a prescribed form.(2)No alteration affecting the title of a proprietor may be made pursuant to sub-section (1) without the proprietor’s consent unless-a.the proprietor has by fraud or lack of proper care caused or substantially contributed to the error, mistake or omission; orb.it would for any other reason be unjust for the alteration not to be made.Provided that a written notice of ninety days shall be given to the proprietor of such intention to make the alteration.(3)Upon proof of the change of the name or address of any proprietor, the Registrar shall on the written application of the proprietor, make an entry in the register to record the change.(3A)A person aggrieved by the decision of the Registrar under this Section may apply to the court for any necessary orders.(4)The Cabinet Secretary may by regulations prescribe the guidelines that the Registrar shall follow before rectifying or directing rectification under this Section and without prejudice to the generality of the foregoing, the regulations may provide for –a.The process of investigation including notification of affected parties.b.Hearing of the matters raised; andc.The criteria to be followed in coming up with the decision.” 56.Section 79 clearly delineates that the powers of rectification vested in the Land Registrar are confined to amending errors, mistakes, or omissions that do not substantially impact the interests of any proprietor. The cancellation of a title, however, would unquestionably significantly affect the interests of the registered proprietor. Such a cancellation should be solely authorized by the court, pursuant to Section 80(1) of the Land Registration Act, 2012. Section 80(1) states:“80(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.” 57.The issuance of the 2nd title was thus unlawful; it had the effect of depriving parties who never litigated in Malindi ELC Petition No. 11 of 2017, a category where the 1st and 2nd defendants fall. 58.It is not automatic that the 1st title always prevails. In this scenario, the subsequent proceedings led to the 2nd decision by the Minister, which clearly shows that neither the 1st nor the 2nd defendants were accorded a hearing. In addition, it has been established that the litigator Muruki Mburu, who sold his interest to the 1st defendant, had long since died. In turn, the 1st defendant charged the suit property to the 2nd defendant. 59.Consequently, the plaintiffs’ claim against the defendants is hereby dismissed with costs. 60.The counterclaim by the 1st defendant will succeed to the extent that:a.A declaration that Plot No. Kilifi/Madzimbani/Mitangoni/54 is duly and legally registered in the plaintiff's name, as set forth in the counterclaim.b.An order is hereby issued that the 3rd defendant to cancel the Title Deed issued on February 9, 2023, in favor of the 1st and 2nd defendants in the counterclaim.c.A declaration is hereby made that all proceedings conducted without the participation of the plaintiff after 25th April, 2017, after 9th August, 2019, and following the death of Muriuki Mburu, as well as all decrees and orders issued arising from Malindi ELC Petition No. 11 of 2017, could not impeach the title held by the 1st defendant as charged to the 2nd defendant, owing to the fact that Muriuki Mburu was deceased and the plaintiff in the counterclaim was neither involved nor served.d.A permanent Injunction be issued to restrain the 1st and 2nd defendants in the counterclaim by themselves, their agents, servants, and/or anyone claiming under them from interfering in any manner whatsoever with the plaintiffs' quiet possession and/or usage of the suit land known as Title No. Kilifi/Madzimbani/Mitangoni/54.e.Costs of the counterclaim to the plaintiff in the counterclaim DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN NYERI ON THIS 1ST DAY OF JULY, 2026.E. K. MAKORIJUDGEIn the presence of:Mr. Shujaa for the PlaintiffMr. Omondi for the 2nd DefendantsDenis: Court AssistantIn the absence of:Mr. Omwenga for the 1st DefendantsMr. Munga for the 3rd and 4th Defendants