https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3131

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA** **ELC NO E015 OF 2025** **TABITHA WAMBUI MUNYAO.................................1ST PLAINTIFF** **GEOFFEREY KANIA MUNYAO..............................2ND PLAINTIFF** **VERSUS** **MICHAEL NGOTHO GITAHI....................................DEFENDANT** **JUDGMENT** In the Plaint dated 23/4/2025 the Plaintiffs, the legal representatives of the Estate of Stephen Munyao Kakumia, husband to the 1st Plaintiff and father to the 2nd Plaintiff respectively who is the registered owner of NYANDARUA/OL-KALOU SOUTH/173 sued the Defendant over the said property where they claim to have lived for over 60 years and erected both permanent and temporary structures. According to the Plaintiffs on 15/4/2025 during ungodly hours, the Defendant, without any legal rights, is said to have invaded, trespassed and encroached onto the said parcel of land and commenced the removal of sand and stones and in so doing destroyed property which act was a pure manifestation of illegal acts and the same amounts to trespass, land grabbing and encroachment on the rights of the Plaintiffs and who should be protected by this Court. The two gave as particulars of the illegal unlawful acts, trespass and encroachment on the Plaintiffs’ rights as: 1. Failing to provide and or produce any Notice or Court order warranting the said destruction of property. 2. Commencing the removal of sand and digging of stones. 3. Causing injuries and physical harm to the Plaintiffs. The Plaintiffs further said that the above acts were perpetrated with intention to harm, cause loss and/or incapacitate the Plaintiffs. They therefore prayed for Judgment against the Defendant for: - 1. A permanent injunction restraining the Defendant, his agents and/or servants from carrying out further removal of sand, stones and destruction of properties on the parcel of land NYANDARUA/OL-KALOU SOUTH/173. 2. A permanent injunction restraining the Defendants and/or his agents and/or servants from encroaching, trespassing, constructing, digging and/or in anyway interfering with the Plaintiffs’ parcel of land NYANDARUA/OL-KALOU SOUTH/173 as it forms part of the Estate of Stephen Kakunia Munyao. 3. General damages. 4. Costs and interest of this suit. 5. Any other relief as the Court may deem fit. The plaint was drawn and signed by the first Plaintiff. In his Statement of Defence, the Defendant denies the contents of the Plaint and avers that the Settlement Fund Trustees had allotted the late Munyao Kakunia Plot No. 90 O1 Kalou scheme being L.R NYANDARUA/OL-KALOU SOUTH/90 from which Munyao sold to Samwel Njungi Mundia and the Defendant a portion of 30 Acres at an agreed price of Kshs. 67,500 vide sale agreement dated 29/12/1977 and upon approvals being granted by the Settlement Fund Trustees, the said 30 Acres were transferred after NYANDARUA/OL-KALOU SOUTH/90 was sub-divided into NYANDARUA/OL-KALOU SOUTH/173 and 174 and the Defendant took immediate possession of 173 after the same was transferred to the Defendant and Samuel Njungi Mundia which was later transferred to the Defendant by his co-proprietor on 29/2/1996 and the Defendant was issued with a Title Deed to which parcel of land the Defendant has all along confined his activities. The Plaintiffs therefore do not have any interest whatsoever over L.R No. NYANDARUA/OL-KALOU SOUTH/173. He finally avers that the issue of the ownership of L.R No. NYANDARUA/OL-KALOU SOUTH/173 was the subject matter in Nyandarua J.R No. E005 of 2022 and the Ex parte Applicant in the aforesaid Judicial Review matter is sister to the 1st Plaintiff who has initiated the current proceedings under the names of the Plaintiffs to salvage what they did not achieve. He therefore prayed that the suit be struck out and/or dismissed with costs. In the Reply to Defence dated 16/5/2025 the Plaintiffs re-iterated the contents of the Plaint and further insisted that the late Stephen Munyao Kakunia never sold the suit land to the Defendant or to any other person and that the Defendant has never been registered the proprietor of the land and which has never been a subject matter of any suit at all. The Hearing of the suit commenced on 26/11/2025 when the 1st Plaintiff adopted her Statement dated 26/9/2025 which tallies with the averments aforesaid. He then produced the following documents. 1. Copy of Grant. 2. Copy of official search 3. Copy of Green Card. 4. Copy of certified letters from the Ministry of lands and public works, housing and urban development. 5. Copy of Forensic documents. On cross-examination by Mr Kairu, Tabitha said that her husband Munyao who was residing with her in Munyeki died in 2008 having been given 65 Acres by S.F.T being Plot No. 90 Ol-kalou South and that when he requested S.F.T to be allowed to sell part of the land, he was not allowed and therefore did not sell it although he had already sub-divided the land into 173 & 174. He said he was not aware her husband had sold part of the land whose Title Deeds were issued on 28/7/1979 long before her husband died in 2008. She admitted that the J.R case was taken to Court by her younger sister Elizabeth, Wangari Njungi on her behalf. On re-examination Tabitha said that the suit land is 33 Acres and that the Respondent never trespassed onto the land when her husband was alive and that her husband never told her he had sold the land nor has she ever told anyone to file suit on her behalf. PW2 – a Document examiner, Mr Emmanuel Karisa Kenga who had been instructed by Tabitha testified and said that the transfer forms dated 7/1/1978 were not in his Respect. He said his work was made difficult because he did not get the specimen signature of the Defendant. The Defendant, DW1 Michael Ngotho Gitahi testified by adopting his Statement of 26/9/2025 where he also repeated the averments in his Defence that the S.F.T had allotted one Munyao Kakunia plot No. 90 Ol-kalou Scheme also known as L.R No. NYANDARUA/OL-KALOU SOUTH/90. By a sale agreement dated 29/12/1979 Munyao Kakunia sold a portion of 30 Acres to him and Samwel Njungi Mundiua at an agreed purchase price of Kshs 67,500/- and the same was paid in due course after which Munyao transferred the 30 Acres to him which was a sub-division of L.R No. NYANDARUA/OL-KALOU SOUTH/90 and which became NYANDARUA/OL-KALOU SOUTH / 173. The same was transferred to him and Samwel Njungi Mundia on 28/7/1979 before Mundia transferred his share thereon to the Defendant on 29/2/1996 where he has confined all his activities ever since. He then said that contrary to what the 1st Plaintiff said, the Plaintiffs have not put up a home on the land but its him who has developed the said land. He then produced the following documents. 1. Copy of Judgment 2. Sale agreement 3. Copy of letter. 4. Copy of Green Card. 5. Copies of transfer and application for registration of transfer. 6. Copy of Title Deed. 7. Copy of application for Land Control Board Consent. 8. Copy of letter of consent. 9. Copy of transfer form. 10. Copy of title deed NYANDARUA/OL-KALOU SOUTH/173. When cross-examined by Mr. Luchele for the Plaintiffs, Mr Gitahi said that he knew Munyao Kakunia since 1978/1979 when he sold the suit land to him and that he has all along been on the suit land where stones have been excavated from. Having heard both parties and also having received their written submissions, I decided first and foremost to look at the Judgment in ELCLC Miscellaneous No. 9 of 2023 where the younger sister to the 1st Plaintiff was the *Ex parte* Applicant. The Respondents were Nyandarua Land Registrar, Peter Njungi Kainamia, John Mwangi Kainamia, Peter Muraya Kainamia and the Defendant herein, Michael Ngotho Gitahi where Elizabeth sought a Judicial Review order of Mandamus to compel the Land Registrar, Nyandarua and the holders of the Title Nos. NYANDARUA/OL-KALOU SOUTH/173 and 174 to return the said Titles to the late Munyao Kakunia and expunge any other claimants’ names from the land register. The trial Judge observed that it was not easy to ascertain with any reasonable precision the substantive grounds upon which the Application for Judicial Review was based from the Applicant’s pleadings and Affidavits because the Application was poorly drafted and incoherent. The Court went ahead to say: - “....................... what the Court can glean from the statutory statement is that the Applicant was pleading that the Deceased was the legitimate owner of both parcel Nos. 173 and 174 which were once part of Plot No. 90 and that he had been defrauded of his land by the 2nd to 5th Respondents....” The learned Judge further held that “........................The Court has also considered the Applicant’s (Elizabeth’s/1st Plaintiff’s sister’s) claim to parcel No.173. The Applicant has challenged the sale of the said parcel by the Deceased and given various reasons why she thought the same was impossible. The same was said to have taken place in 1977 during the lifetime of the Deceased. There is no evidence on record to demonstrate that the deceased had challenged the transaction with the 5th Respondent (the Defendant herein) between 1979 and the time of his demise in 2008 or thereabouts....................... Judicial Review proceedings are not the appropriate mode of challenging an *inter vivos* sale transaction which was said to have taken place more than 47 years ago. A party challenging a sale transaction can only properly do so through a normal suit where oral evidence can be taken and tested through cross-examination for the Court to determine where the truth lies.............. the Application against the 5th Respondent is also untenable. As a result, the Court finds and holds that the Applicant has not made out a case for the grant of the Judicial Review orders sought........................” The Honourable Mr Justice Y. M. Angima threw the determination of the ownership of the suit land to the arena of the normal Civil Jurisdiction of the ELC. Apparently, there was also Nyandarua ELC No. 99 of 2023 which nobody seems to have brought the proceedings thereof to the attention of this Court and I will therefore disregard it and proceed to determine this case from its merits because without the proceedings of the earlier case I am not able to determine whether this case is *res judicata* or not although this matter appears to have been determined in an earlier suit in favour of the Defendant herein. But to avoid not taking chances, I will dissever the evidence produced before me. There is a sale agreement dated 29/12/1979 between the late Munyao Kakunia on one had and Samuel Njungi Mundia and Michael Ngotho Gitahi (the Respondent) on the other. The same is for the sale of 30 Acres out of Plot No. 90 situate at South Ol-kalou Scheme together with all the buildings and improvements being thereon for the consideration of Kshs 67,500/=. The same was executed by all the three before one P.M.K. Kamau L.L.B (LONDON), Advocate. The same had been preceded by a letter dated 30/12/1977 by the Director of Settlement indicating that the Ministry of Lands and Settlement had no objection to the sub-division of the land and sale of one of the portions because. “........................your plot is large enough to accommodate this request…………….......” Mr Kakunia was accordingly directed/advised by the said Director of Settlement to make a formal Application for sub-division and sale to Nyandarua Land Control Board. The Title to the 26.5 Hectares i.e. L.R. NYANDARUA/OL-KALOU SOUTH/90 according to the Green Card was first issued to the Settlement Fund Trustees of Box 30450 Nairobi on 13/8/1974. The second entry was in the name of Munyao Kakunia ID No. 21845/ Machakos of Ol-kalou at Kshs. 8,000/- and a land Certificate was issued on 5/5/1977. The same was then closed on the same date on sub-division to Nos. 173 and 174. There is also a copy of transfer of land dated 7/1/1978 between Munyao Kakunia for NYANDARUA/OL-KALOU SOUTH/173 as Transferor and Njungi Mundia & Michael Ngotho Gitahi for Kshs. 25,000 both of P.O Box 36075, Nairobi as Transferees. The Application for registration of the transfer was presented to the land’s office on 28/7/1979 and the land certificate for the same issued the same day. Then followed an Application for transfer between the two i.e. Njungi Mundia and Michael Ngotho Gitahi. The letter of Consent was granted on 28/12/1995 the consideration being indicated as Kshs 30,000/-. The transfer was then executed on 28/2/1986 between Njungi Mundia and Michael Ngotho Gitahi as Transferors and Michael Ngotho Gitahi as Transferee and the Title Deed was issued in the name of Michael Ngotho Gitahi. Although the Plaintiffs under paragraph 49 of the Reply to Defence claim that the alleged sale was fraudulent, they have not given any particulars of fraud. This then leads me to the sanctity of Title under sections 24,25 and 26 of the LandRegistration Act. **Section 24** of the **Land** **Registration Act 2012,** gives the registered proprietor absolute rights over land, it provides: ***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*** Further, this Title is protected under Section 26 of the same Act which provides: (***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.*** In the instant case, the Plaintiffs never put up a case of fraud attributable to the Defendant. Although the Plaintiffs under paragraph 4 of the Reply to Defence claim that the alleged sale was fraudulent, they have not given any particulars of fraud.Section 26 of the **Land Registration Act 2012** provides that: (***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.*** As was held in the case of **Esther Ndegi Njiru & Another =vs= Leonard Gatei [2014] eklr**: ***“the law is extremely protective of title and provides only two instances for challenge of title. The first is where the title is obtained by fraud or misrepresentation to which a person must be proved to be a party. The second is where the certificate of title has been acquired through a corrupt scheme”.*** Section 80 (1) of the **Land Registration Act No. 3 of 2012** provides as follows: ***“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.”*** But such allegations must go beyond imaginations. They must be proved. In **RG PATEL VS LALJI MAKANJI (1957) EA, 314** the court expressed itself as follows: *“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require prove beyond reasonable doubt, something more than a mere balance of probabilities is required”* Given the seriousness of the allegations, the onus was on the Plaintiffs to provide evidence to the Court of the alleged fraud which evidence must meet the standard of proof as was underscored by the Court of Appeal in Central Bank of Kenya Limited v Trust Bank Limited & 4 Others**[1996] eKLR**as being beyond that of a balance of probabilities but not beyond reasonable doubt. In that case, the Court rendered itself as follows: **“The appellant has made vague and very general allegations of fraud against the respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the appellant in this case than in an ordinary civil case.”** In the case of **Urmila w/o Mahendra Shah v Barclays Bank International Ltd & another [1979] eKLR***,* the Court of Appeal took the view that the onus to prove fraud in a matter is on the party who alleges it. Similarly, in cases where fraud is alleged, it is not enough to simply infer fraud from the facts. Evidence of especially high quality and strength is required to prove fraud in land cases. It is a daunting and burdensome task to prove fraud in any civil case. In the instant case, the Plaintiffs needed to not only plead and particularize the fraud, but also lay a basis by way of credible evidence upon which the Court would make a finding that indeed there was fraud in the transaction leading to the transfer and registration of the suit land in the name of the Defendant. Fraud is a quasi-criminal charge which must, as already stated, not only be specifically pleaded but also proved on a standard though below beyond reasonable doubt, but above balance of probabilities. However, from the evidence tendered in Court, the Plaintiffs did not prove fraud at all. No evidence was tendered to this end by the said Plaintiffs at least to verify their allegations. I find no iota of fraud, misrepresentation, unprocedural deportment and/orcorrupt scheme in the way the land was acquired by the Defendant right from the sub-division of L.R NYANDARUA/OL-KALOU SOUTH/90 into L.R NYANDARUA /OL-KALOU SOUTH/173 &174. Then how L.R NYANDARUA /OL-KALOU SOUTH/173 measuring 30 Acres was transferred to the Defendant and Samuel Njungi Mundia and finally transferred to the Defendant by his co-proprietor on 29/2/1996 and the Defendant issued with a Title Deed. In all these transactions, including sub-division, it has been shown that consent of the land control Board was sought and obtained and transfer forms appropriately filled and presented to the Land’s office for registration. Consideration was paid and I find that the suit property L.R NYANDARUA /OL-KALOU SOUTH/173 legally and lawfully belongs to the Defendant. In the absence of evidence that any malpractices were involved, I am unable to impeach the Defendant’s Title Deed in respect to L.R. NO. NYANDARUA /OL-KALOU SOUTH/173 nor do I find that it was acquired illegally, fraudulently or through misrepresentation, unprocedurally or through a corrupt schemeand the Plaintiffs then accordingly fail in their claim over the parcel of land No. L.R NYANDARUA /OL-KALOU SOUTH/173. This suit is therefore dismissed with costs to the Defendant. **Judgment read and delivered at Nyandarua this 21st Day of May 2026.** **MUGO KAMAU** **JUDGE** **In the Presence of: -** **Court Assistant: Samson.** **Plaintiffs’ Counsel: Mr. Luchemi.** **Defendant’s Counsel Ms. Rotich.**