https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4789

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC COURT NO. E034 OF 2025** NAFATALI M’MBILO IKIMBA ……………………………PLAINTIFF VERSUS ANN KAGENI [sued as the legal representative and administrator of the estate of the JOHN MUTIRIMU IKIMBA - DECEASED]………..1ST DEFENDANT LAND REGISTRAR MERU NORTH …………….………..2ND DEFENDANT THE HON. ATTORNEY GENERAL ………………..……..3RD DEFENDANT **JUDGEMENT** 1. The Plaintiff approached the court *vide* Plaint dated the 24.11.2025, and wherein the same has sought various reliefs. The reliefs are: 2. *An order for permanent injunction be issued restraining the 1st Defendant whether by herself, employees and or servants or otherwise whomsoever from interfering with the Plaintiff’s property by way of transferring, invading, trespassing, cultivating, encroaching, fencing off or carting away and or stopping the Plaintiff from using or developing the suit property number LR No. Nyambene /Antumbetwe – Njoune /1879.* 3. *A declaration that the Plaintiff is the rightful owner of the suit property parcel number LR No. Nyambene /Antumbetwe – Njoune /1879.* 4. *An order directing that the title deed in respect of the suit property parcel number LR No. Nyambene /Antumbetwe – Njoune /1879 issued in favour of the first Defendant be revoked and cancelled.* 5. *An order directing the Land Registrar to issue a fresh title deed to the Plaintiff and register the Plaintiff as the proprietor forthwith.* 6. *Costs of the suit plus interest thereon.* 7. The Plaintiff’s suit is premised on the various assertions. The assertions include: The Plaintiff is the beneficial owner of LR. Number Nyambene/Antubetwe- Njoune/1879 [herein after refereed to as suit property]; the suit property was however, registered in the name of John Mutirimu Ikimba [now deceased]; the registration of the suit property in the name of the deceased was fraudulent; the Plaintiff lodged a complaint with the land adjudication and settlement office; the complaint was however not determined. 8. Furthermore, the Plaintiff posited that the suit property was registered in the name of deceased on the 09.12.1997; the registration of the suit property in the name of the deceased, took place long after the death; the suit property does not belong to the deceased; and the registration of the suit property in the name of the deceased ought to be invalidated. 1. In addition, the Plaintiff has supplied the particulars of fraud; misrepresentation; and illegality. To this end, the Plaintiff has invited the court to find and hold that the impugned registration of the suit property is vitiated by illegalities. 2. The 1st Defendant duly entered appearance, filed a statement of defence; and counter claim. The 1st Defendant posited thus: The Plaintiff is her uncle; the Plaintiff is a brother to John Mutirimu Ikimba [deceased]; the Plaintiff has his own land; the suit property lawfully belongs to the estate of the deceased; the Plaintiff is merely intent on disinheriting the Defendant; the Plaintiff’s claim is misconceived and legally untenable; the Plaintiff has no lawful rights to and in respect of the suit property. 3. The 1st Defendant has thereafter sought various reliefs at the foot of the counter claim. The reliefs are: 4. *An order of permanent injunction restraining the Plaintiff/Defendant himself, his agents, employees and/or anyone acting on their name from interfering in whichever way with the 1st Defendant/Plaintiff’s use and occupation of LR No. Nyambene /Antumbetwe – Njoune /1879.* 5. *An order of eviction of the Plaintiff/Defendant form the 1st Defendant’s/Plaintiffs land LR No. Nyambene /Antumbetwe – Njoune /1879.* 6. *And order directing the OCS Maua Police Station to provide security and ensure compliance of the court orders.* 7. *General damages.* 8. *Costs of the suit.* 9. The 2nd and 3rd Defendants duly entered appearance and filed a statement of defence. The 2nd and 3rd Defendants denied the assertion by the Plaintiff. Moreover, the 2nd and 3rd Defendants have posited that the suit property was lawfully adjudicated in the name of John Mutirimu Ikimba [deceased] during the adjudication process. In addition, it has been posited that the adjudication register [record] was never objected to in accordance with the law. 10. The suit was subjected to the pre-trial conference; and direction[s], whereupon the parties intimated to the court that same had filed and exchange their bundle of documents. Thereafter, the matter was confirmed ready for hearing. 1. The Plaintiff’s case is premised on the evidence of one [1] witness. The witness is Naftali Mbiro Ikimba. The same testified as PW1. 2. It was the testimony of the witness that same is the Plaintiff in respect of the instant matter. In addition, the witness averred that same is conversant with facts of the case. Furthermore, the witness posited that same has since recorded and filed a witness statement dated the 24.11.2025. The witness sought to adopt and rely on the statement as his evidence in chief. In this regard, the witness statement was adopted as the evidence in chief. 1. Additionally, the witness adverted to the plaint dated the 24.11.2025 and which plaint the witness sought to adopt and rely on. In particular, the witness invited the court to grant the reliefs sought thereunder. 1. The witness also referenced the list and bundle of documents dated the 24.11.2025. However, the witness indicated that he did not wish to rely on the documents. In particular, the witness indicated that the documents can be expunged from the record of the court. 2. As a result of the intimation by the Plaintiff, the court proceeded to and expunged the documents at the foot of the list dated the 24.11.2025. To this end, it suffices to state that the Plaintiff did not tender any documents/exhibits. 3. On cross examination by learned counsel for the 1st Defendant, the witness averred that the John Mutirimu Ikimba [deceased] was his brother. The witness further testified that the land in question belonged to him. However, the witness clarified that the land was fraudulently transferred to and registered in the name of the deceased. 4. It was the further testimony of the deceased that even though he [witness] has indicated that the suit property was registered in the name of the deceased by fraud, he has not produced any document to that effect. The witness added that he has been occupation of the land for more than 40 years. 5. On cross examination by learned counsel for the 2nd and 3rd Defendants [Attorney General], the witness averred that he is the one who gathered the land. In addition, the witness testified that he gathered the land in 1972. 1. While still under cross examination, the witness testified that the land in question is ancestral land. In addition, the witness averred that he discovered the fraud pertaining the subdivision of the suit property and the transfer thereof to the deceased in 1988. The witness also averred that by the time he discovered the fraudz, the land was still under adjudication. 2. It was the further testimony of the witness that upon discovering of the fraud, he lodged an objection with the land adjudication. Furthermore, the witness testified that the objection was duly registered by the adjudication department. However, the witness conceded that same has neither tendered the copy of the objection nor any document to that effect. Moreover, the witness intimated that he is not aware of the objection number. 3. The witness further testified that the certificate of title was issued in respect of the property. The witness posited that the certificate of title was issued in the year 1989. Nevertheless, the witness conceded that the subject suit was only filed in the year 2025. 4. With the foregoing testimony, the Plaintiff’s case was closed. 5. The 1st Defendant’s case is premised on the evidence of one witness. The witness is Ann Kageni. The witness testified as DW1. 6. It was the testimony of DW1 [Ann Kageni] that same is the daughter of Jon Mutirimu Ikimba [deceased]. In addition, the witness averred that she is familiar with the Plaintiff. The witness posited that the Plaintiff is her uncle. 7. It was the testimony of the witness that she is conversant with the facts of the case. Moreover, the witness posited that she has since filed a witness statement. To this end, the witness referred to the statement dated the 17.02.2026 and which statement, the witness sought to adopt and rely on as her evidence in chief. Suffice it to state that the witness statement was indeed adopted and constituted as the evidence in chief of the witness. 8. Furthermore, the witness adverted to the list and bundle of documents dated the 17.02.2026. Thereafter, the witness sought to tender and produce the documents as exhibit[s] before the court. The documents under reference were duly tendered and marked as exhibits D1 – D5, respectively. 1. The witness further referenced the statement of defence dated the 17.02.2026. In addition, the witness also referenced the counter claim. Thereafter the witness invited the court to grant the reliefs sought at the foot of the counter claim. 2. On cross examination by the Plaintiff, the witness testified that by the time her father passed on, she was young. The witness however clarified that she is aware that the suit property belongs to her father. 3. While still under cross examination, the witness testified that following the death of her father, the Plaintiff threatened her mother and the mother of the witness, was forced to move out of the land. In addition, the witness averred that when her mother and herself returned to the land, the Plaintiff threatened to kill them. 4. It was the further testimony of the witness that the Plaintiff has his own land. However, the witness added that the Plaintiff is only keen to disinherit the family of the deceased. 5. With the foregoing testimony, the 1st Defendant’s case was closed. 6. The 2nd and 3rd Defendants did not call any witness. In addition, the 2nd and 3rd Defendants’ case was closed without any evidence being tendered. 7. Following the conclusion of the case, the Plaintiff and the advocates for the partes sought time to file and exchange written submissions. To this end, the court proceeded to and issued directions as pertains to the filing and exchange of submissions. The directions were: The Plaintiff shall file and serve written submissions within 7 days from the date of the directions; and the Defendants shall file and serve written submissions within 7 days from the date of service. 8. The Plaintiff filed written submissions dated the 26.06.2026 and wherein the same has highlighted two [2] key issues. The issues are: The suit land lawfully belongs to the Plaintiff; the suit land was fraudulently sub divided and a portion registered in the name of the deceased; the Plaintiff lodged a complaint/objection with the land adjudication office; and the estate of the deceased does not have any lawful rights to and in respect of the suit property. 9. The 1st Defendant filed written submissions dated the 23.06.2026 and wherein same has highlighted four [4] issues. The issues are: The suit property was lawfully adjudicated to and registered in the name of John Mutirimu Ikimba [deceased]; the adjudication register was never objected to; the Plaintiff herein has no rights to the suit property; and the actions by the Plaintiff amounts to and constitute trespass. 10. The Hon. Attorney General filed written submissions dated the 23.06.2026. The Attorney General has highlighted and canvassed two [2] key issues. The issues are: The adjudication register was never objected to and thus same became complete; and the Plaintiff has neither established nor proven his claim to the suit property. In any event, it has been posited that no evidence has been tendered to prove/demonstrate fraud. 11. Having reviewed the evidence on record [both oral and documentary], and upon consideration of the written submissions by /on behalf of the respective parties, three [3] key issues emerge for consideration and determination. The issues are: Whether the Plaintiff has proved the plea of fraud; Whether the Plaintiff’s suit is prohibited by limitations of actions; and Whether the 1st Defendant is entitled to the reliefs sought *vide* the counter claim. 12. Regarding the first issues, it is imperative to reiterate that the plea of fraud must ordinarily be pleaded and particularized. In addition, it is only where the plea has been particularized, that a party is called upon to tender cogent and plausible evidence to prove fraud. Furthermore, there is no gain saying that fraud requires to be proved to the intermediate standard. This is the standard that lies between the balance of probabilities and the beyond reasonable doubt. 13. To be able to prove fraud, the clamant must substantiate the assertions. It is not enough to make bare statements and thereafter, imagine that a court of law shall proceed and assume that fraud has been proven. Moreover, it suffices to state that proof of fraud cannot be discerned /ascertained by way of inference /implications. 14. Did the Plaintiff prove/establish fraud? The Plaintiff herein made various assertions and allegations. It was incumbent upon the Plaintiff to demonstrate that indeed the suit property lawfully belonged to him. Such assertions ought to have been supported by same semblance of documents. However, it is not lost on me that the Plaintiff did not tender or adduce any documents. In the absence of a document to vindicate the assertion, the Plaintiff’s plea is mounted in *vacuum.* 15. I am afraid that the Plaintiff has not proven /established fraud. The manner in which fraud is to be proven was highlighted in the case of **Kiarie & 2 others v Magera [2018] KECA 467 (KLR).** The Court of Appeal stated thus: ***‘The law is clear and we take it from the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” [Emphasis added].The same procedure goes for allegations of misrepresentation and illegality. See Order 2 Rule 4 of the Civil Procedure Rules.*** ***26.As regards the standard of proof, this Court in the case of Kinyanjui Kamau vs George Kamau [2015] eKLR expressed itself as follows;-“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: “...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases...”*** ***...In cases where fraud is alleged, it is not enough to simply infer fraud from the facts."*** 1. I now wish to address the second issue. The issue relates to whether the Plaintiff’s suit is barred by limitation. It was the Plaintiff’s case that same discovered the fraud pertaining to the adjudication and registration of the suit property in the year 1988. In addition, the witness posited that certificates of title were issued in 1989. 1. Be that as it may, the Plaintiff conceded that the subject suit was only filed in the year 2025. It is instructive to note that the cause of action being canvassed by the Plaintiff is one of fraud. Suffice it to state that a cause of action for fraud ought to be commenced/mounted within three years from the date of accrual or discovery. [See **section 4 [1] of the** **Limitation of Actions Act , Chapter 22 Laws of Kenya**.] 2. Bearing in mind, the evidence by the Plaintiff, namely; that the fraud [if at all] was discovered in 1988, it then means that the Plaintiff ought to have filed the civil proceedings [if any] within three years. The three years’ timeline lapsed on or about the year 1991. In this regard, there is no gainsaying that the current suit was filed outside the prescribed timelines. 3. To my mind, the Plaintiff is non-suited. Where a suit is prohibited by limitations, the cause of actions is extinguished. In such a scenario, the party whose cause of action is extinguished, cannot approach a court of law to partake of any rights. Furthermore, the Court of Law is also prohibited from taking cognizance of such a suit. 4. In the case of **Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR)** ,the Court of Appeal highlighted the legal implication[s] and effect of limitation. The court stated thus: ***‘The law of limitation of actions is intended to protect Defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending Plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest. Special provision is made for infants and for the mentally unsound. But, rightly or wrongly, the Act does not help persons like the applicant who, whether through dilatoriness or ignorance, do not do what the informed citizen would reasonably have done.*** 1. The last issue for consideration is whether the Defendant has proved her counter claim. To begin with, the 1st Defendant tendered evidence to show that the suit property was demarcated and adjudicated in the name of John Mutirimu Ikimba [deceased]. In addition, evidence was tendered that the adjudication of the suit property, in the name of the deceased was never objected to. For good measure, no evidence of objection was tendered**.** 1. Additionally, there is no gainsaying that upon the adjudication of the suit property in the name of the deceased, the title documents would no doubt, be issued in the name of the adjudicated owner. The mere fact that the adjudicated owner had passed on by the time of issuance of Titles, does not negate the issuance of title in his [deceased’s] name**.** Land adjudication and registration, is a process. There is an established sequence; and protocol to be followed. 2. I hasten to state that the issuance of the certificate of title in the name of Jonh Mutirimu Ikimba, long after his death [1997], does not affect the fact that he had been adjudicated as the owner. The issuance of the certificate of title arose from the documentation underpinned by the adjudication register and records. 1. Insofar as the suit property belonged to and was registered in the name of John Mutirimu Ikimba [now deceased], it suffices to states that the suit property now forms part of his estate. The suit property is by law vested in the legal administrator/administratix. Simply put, the suit property now vests in the 1st Defendant. 2. At this juncture, it suffices to reference the provisions of Section 79 of the **Law of Succession Act, Chapter 160, Laws of Kenya**. The section provides thus: **79. Property of deceased to vest in personal representative** ***The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.*** 1. To my mind the 1st Defendant, by virtue of being the legal representative of the estate of the deceased, has authority over the suit property. In this respect the 1st Defendant is chargeable with the protection of the suit property, for and on behalf of the other beneficiaries. 2. Towards this end, the 1st Defendant is therefore entitled to absolute rights over the suit property. Where a 3rd party, the Plaintiff not excepted, enters onto the suit property without the permission of the 1st Defendant, then the 1st Defendant is entitled to an eviction order. 3. Without belaboring the point, I come to the conclusion that the Plaintiff herein has no lawful rights to or interests over the suit property. Instructively, the actions by /on behalf of the Plaintiff constitutes and amount to trespass. 4. In the case of **Church Commissioners for Kenya of the Anglican Church of Kenya v Wayuga [2024] KECA 1048 (KLR**), the Court of Appeal highlighted the key ingredients underpinning trespass**.** The court stated as here under: **“*Trespass is described under the***[***Trespass Act***](https://kenyalaw.org/akn/ke/judgment/keca/2024/1048/aknkeact196248)***Cap 294 to mean “any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof”. On the other hand, a continuing trespass is defined in Jowitt’s Dictionary of English Law 2nd Edition (page or paragraph?) as follows:-“A continuing trespass is one which is permanent in its nature; as where a person builds on his own land so that part of the building overhangs his neighbor’s land”.In Black’s Law Dictionary 8th Edition (page or paragraph?), a continuing trespass is defined as:-“A trespass in the nature of a permanent invasion on another’s rights, such as a sign that overhangs another’s property.” Finally, in Clerk & Lindsel on Torts 16th Edition, paragraph 23 - 01, it is stated that:-“Every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues.”*** 1. Simply put, the Plaintiff is a trespasser onto the suit property. The Plaintiff cannot therefore be allowed to continue the offensive activities. On the contrary, it suffices to state that the 1st Defendant is entitled to partake of and benefit from the property rights in accordance with the provision **Article 40 [3] of the Constitution, 2010; as read together with Section[s] 24 and 25 of the Land Registration Act, 2012 [2016].** **Conclusion:** 1. The Plaintiff was enjoined to tender and place before the court credible evidence to prove fraud. However, the Plaintiff did not do so. On the contrary, the Plaintiff only made bare assertions, without substantiation. The law does not rely on speculations or hypothesis. Notably, a party chargeable with burden of proof must tender evidence in line with the **Section 3[2] of the Evidence Act.** 2. The Plaintiff failed to discharge the burden of proof. The Plaintiff cannot therefore partake of the reliefs that were sought *vide* the Plaint. In this regard, I find and hold that the Plaintiff’s case is devoid of merits. 3. Conversely, the 1st Defendant has proven her case. In any event, there is no gainsaying that the 1st Defendant is bestowed with the rights to the protect the estate of the deceased by virtue of **Sections 79 and 82 of the Law of Succession Act.** **Final orders:** 1. In the premises, the final orders that commend themselves to the court are: 2. ***The Plaintiff’s suit be and is hereby Dismissed.*** 3. ***Judgment be and is hereby entered in favour of the 1st Defendant in the following terms:*** 4. ***The Plaintiff be and is hereby ordered to vacate and hand over vacant possession of the suit property within 90 days from the date hereof.*** 5. ***In default to vacate and hand over vacant possession in terms of [a], the 1st Defendant shall be at liberty to evict the Plaintiff. In this regard, an eviction order shall issue.*** 6. ***There be and is hereby granted an order of permanent injunction to restrain the Defendant, his agents, servants, employees and or any person claiming under him from remaining on, entering upon, interfering with and or in any other manner dealing with the suit property.*** 7. ***Costs of the suit are awarded to the Defendants.*** 8. ***Costs of the counter claim are awarded to the 1st Defendant only.*** 9. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU THIS 13TH DAY OF JULY, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE.** In the presence of**:** Court Assistant: Zakayo Mr. Bundi Muthamia for the 1st Defendant/Counter Claimer Ms. Miranda Senior Litigation Counsel for the 2nd and 3rd Defendants. Naftali Mbiro Ikimba - Plaintiff present in person.