https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4707

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA** **ELC APPEAL CASE NO. E011 OF 2025** **GLADYS WANGECHI NJARAMBA ..........APPELLANT/APPLICANT** **V E R S U S** **NANCY WAIRIMA KINYUA .........................................RESPONDENT** ***(Being an Appeal from the judgment of the Hon Chief Magistrate Court at Nyahururu (Hon E H KEAGO) dated the 30th Day of April 2025 in Nyahururu MC ELC No. 139 of 2017).*** **J U D G M E N T:** The Respondent herein, Nancy Wairima Kinyua filed a suit herein as the Administratrix of the Estate of the late Paul Kinyua Gathigia vide Nyeri High Court Succession Cause No. 395 of 2007. The case was filed by way of a plaint dated 25/9/2015. Those named as Defendants were the 2nd Respondent, Peter Ndiritu Mugo as 2nd Defendant and Benard Githaiga Githui as 3rd Defendant. In the Suit, the 1st Respondent averred that the late Paul Kinyua Gathigia was the original allottee from the 4thRespondent of Title No. NYA/NDEMI/496 hereinafter referred to as the Suit land, after his successful Application and balloting and payment of 10% of the amount required of Kshs. 325/= to the Settlement fund Trustees. Later, the 2nd Respondent purported to cancel the allocation to the late Paul Kinyua Gathigia vide a letter dated 3/12/1993 addressed to PAULINE KINYUA GITHAIGA “c/o D.S.O. P.O. BOX 129 -20300, Nyahururu titled Notice to remedy breach of condition” which was never received or acknowledged or delivered to him or at all followed by another letter dated 25/3/1994 which was similarly wrongly addressed but titled “cancellation of Settlement plot allocation’’ which was never signed by its author and was similarly never delivered to the allotted owner of the suit land. Paul Kinyua Gathaiga is a totally different person from Pauline Kinyua Gathigia. On 23/3/1994 the 2nd Respondent purported to reallocate the Suit land to Peter M Alubale, albeit unlawfully. A Ground status Report dated 30/9/2011 conducted by the 2nd Respondent clearly showed that the 1st Respondent had fulfilled all the conditions for the offer of the plot including taking possession of the suit land as early as 1983 and had paid 10% deposit of Kshs. 325/= on 11/8/1993. A further Ground Report of 28/11/2013 confirmed the details of the above payment. The 2 Ground Status Reports recommended that the Property reverts to its original owner – the 1st Respondent Paul Kinyua Gathigia. The Parcel file at the Nyahururu District Land and Settlement Office does not reveal any Application by the 2nd and 3rd defendants (both of who are herein referred to as Deceased) to be allocated the suit property nor any documents at all in their favour. The 2nd Respondent on 18/2/1997 purported to reallocate the suit land to the 2 people referred to as Deceased i.e., 2nd and 3rd Defendants (in the lower court) which offer was valid for 90 days and within which period the 10% deposit was to be paid and there are no records to show that the offer was accepted or that the initial deposit was paid. On or about 24/3/1997, the 2nd and 3rd Defendants are said to have paid Kshs. 10,732.70 on account of outright purchase of the suit land but without any document of the purchase. The 2nd Respondent hurriedly executed a transfer of land to the 2nd and 3rd Defendants but the 2 did not execute the transfer and a discharge of charge was prepared in favour of the 2nd and 3rd Defendants now 3rd and 4th Respondents who never signed it and the discharge was never registered against the suit land at the Land’s office and the 2 have also never taken possession of the suit land and are strangers to the 1st Respondent. These acts by the 2nd Respondent and the re-allocation of the suit land to the 3rd and 4th Respondents were null and void ab initio and fraudulent the particulars of which were shown by the 1st Respondent. Accordingly, the 1st Respondent prayed for judgment against the Appellant, 2nd, 3rd, and the Respondents jointly and severally as follows: 1. ***A Declaration that the allocation of Title No. NYA/NDEMI/496 to the late Paul Kinyua GATHIGA (Deceased) and now his Estate has not been legally cancelled or terminated and consequently vests in his Estate.*** 2. ***A Declaration that the purported re-allocation/ outright purchase), transfer and discharge of Title No. NYA/NDEMI/496 in the name of the 2nd and 3rd Defendants the (3rd and 4th Respondents) by the 2nd Respondent (1st Defendant) is null and void ab initio.*** 3. ***An order that the 1st Defendant (2nd Respondent) do discharge and transfer Title No. NYA/NDEMI/496 in the name of NANCY WAIRIMA KINYUA as the administrator of all the estate of Paul KINYUA GATHIAGA unconditionally and forthwith.*** 4. ***A permanent injunction do issue restraining the 1st Defendant (2ndRespondent) from allocating, reallocating, transferring, discharging or in any other manner vesting title deed Nyandarua/Ndemi 496 to the 2nd and 3rd (3rd and 4th Respondent s) Defendants by themselves or through their agents, servants, employees and/or any other person claiming title though or order them indefinitely from trespassing, taking possession or in any manner dealing with tele deed Nyandarua/Ndemi/496.*** 5. ***Costs of the suit plus interest at court rates.*** 6. ***Any other or further relief this court may deem fit and fair to grant.*** On 15/1/2019, the Appellant herein made an Application under certificate of urgency to be joined in the suit as an interested party. Her Ground of the Application was that she was the legal representative of the Estate of the 3rd Defendant (4th Respondent) , Bernard Githaiga Githui who had passed on on 27/7/2009 and who had a legal and equitable interest in the suit land i.e., NYANDARUA NDEMI/496, the subject matter of the suit and who she claimed had been allocated the land by the 1st Respondent and with his family he had been on the suit land in quiet and uninterrupted occupation of the same since the allocation. By this time, judgment in default had already been entered against the 4th Respondent on 17/3/2016 yet the suit was filed in 2015 after the 4th Respondent had already died on 27/7/2009 without disclosing this position/fact. She had limited Grant of Letters of Administration Ad litem having been issued the same by the High court of Kenya at Nyahururu in cause No. 15 of 2018 on 28/8/2018. Having been granted leave on 21/5/2019, Gladys Wanjohi Njaramba filed her Rejoinder and averred that on 18/2/1999, the 2nd Respondent allocated plot n. 496 within Ndemi Settlement Scheme to Peter Ndiritu Muya and Bernard Githaiga Githui after which they paid the outright purchase price to the 2nd Respondent and they were shown the boundary and beacons of the land. The 4th Respondent paid the requisite amount and took possession of the land. The land had already been transferred to the 3rd and 4th Respondents and a discharge of charge issued. The 2 have made massive developments on the suit land. They were therefore granted exclusive possession and and use of the suit land. They therefore prayed that the 1st Respondent’s suit be dismissed with costs. In her counterclaim, Gladys Wangechi Njaramba repeated that on 18/2/1997 the 2nd Respondent allocated plot No. 496 within Ndemi Settlement scheme to Peter Ndiritu Muya and Bernard Githaiga Githui. She accordingly prayed for judgment in the counter-claim against the 1st Respondent for: 1. ***A Declaration that the allocation of L.R. No. NYANDARUA /NDEMI/496 to Peter Ndiritu Muya and Bernard Githaiga Githui (Deceased) by the 2nd Respondent is legal and valid and the same should vest into his Estate and specific performance on the part of the 2nd Respondent to complete the sale and delivery of all that freehold interest as manifested in NYANDARUA /NDEMI/496 to the 4th Respondent and in the alternative this Honourable Court do effect the same.*** 2. ***A permanent order of injunction do issue restraining the Appellant either by herself, her agents, servants and/or anybody whatsoever either claiming in or under her names form evicting, ejecting, encroaching, reoccupying or in any way interfering with the 4th Respondent ’s Possession of the suit Parcel of Land L.R. No. NYANDARUA/NDEMI/496.*** 3. ***Costs of the counter-claim and interest.*** 4. ***Any other or further orders the court may deem fit and just to grant.*** **IN THE ALTERNATIVE**, Judgment be entered in favour of the 4th Respondent for; 1. ***Compensation of the subject plot to the plaintiff namely LR No. NYANDARUA/NDARUA/NDEMI/496 at the current and prevailing market price at the time of the judgment, refund of the purchase price paid by the 4th Respondent since the allocation to date together with interest at court rates until liquidation of the same in full.*** 2. ***General damages for breach of contract.*** 3. ***Such other or further relief as this court may deem just and expedient to grant.*** 4. ***Costs of the counter-claim and interest*** In the Reply to Defence and Defence to the Counter-claim dated 4/9/2019, the 1st Respondent averred that the Suit Property was allocated to her husband, Paul Kinyua Gathiga (Deceased) and at the purported time of the re-allocation, the same was not ripe or fit for re-allocation and therefore the allocation to the 3rd and 4th Respondents was illegal, irregular, null and void and that she and her late husband were in peaceful, quiet, exclusive and uninterrupted possession and occupation of the suit land which has never been interrupted. She further urged that the interested party had no capacity to urge the claims for and on behalf of the 3rd Respondent or at all to which the interested Party urged that her family occupied the suit land as of right having paid for the same and having taken possession thereof with the consent and authority of the late Peter Ndiritu Muya and that she did not urge the claim for and on behalf of Peter Ndiritu Muya and only for the 4th Respondent, Bernard Githaiga Githui. Later on 4/2/2020, the 1st Respondent sought leave to amend the Plaint so that Gladys Wangechi Njaraba would substitute Bernard Githaiga Githui as the 3rd Defendant. On 10/11/2015 the earlier proceedings having been set aside and the matter starting de novo the 1st Respondent, Nancy Wairimu Kinyua commenced her testimony by adopting her statement of 25/9/2015 as her evidence in chief and introducing herself as the wife of the late Paul Kinyua Gathiga who had been allocated the parcel of land known as NYANDARUA/NDEMI/496 which he was given by the Settlement Fund Trustees. He balloted for the land and was given the same after balloting. He obtained ballot paper No. 496 and paid Khss.329/- being 105/= of the Settlement fees. He never stayed on the land but Nancy did and also built on the suit land. Gathiga died on 1/4/2007. She never saw any Notice from the S.F.T for repossession. She said that her late husband did not have a post office Box at Nyahururu. He was working in Nyeri, Kwa Kwamagu. She said she was aware that the S.F.T attempted to repocess the land in 2013. She went to the SFT offices and was assured the land still belonged to her husband and even as at the time of testifying, the land was still in the name of Gathiga and that the S. F T wanted to give out the land to somebody else. She further testified that S.F.T personnel visited the suit land 3 times. The first time they went to see the land, the second time, she was told by the S F T people that the land should be cultivated, developed and fenced which she did in addition to digging a pit latrine. In 2013 they came back and confirmed that the above condition had been met. The Appellant and the third Defendant have never built on nor lived on the suit land. She produced the following documents to support her case. 1. ***Grant of letters of administration intestate in Nyeri High Court Succession Cause No. 395 of 2007 In the matter of the state of Paul Kinyua Gathiga (Deceased)*** 2. ***Copy of official receipt No. X759316 for 325 dated 11/8/1983*** 3. ***Ballot Paper dated 11/8/1983*** 4. ***Certificate of death of Paul Kinyua Gathiga (deceased)*** 5. ***Letter dated 30/9/1983*** 6. ***Ground and record status report dated 21/11/2013*** 7. ***Ground and record status report dated 28/11/2013*** 8. ***Ground and record status report dated 8/1/2008*** 9. ***Ground and Record Status report Dated 30/9/2011*** 10. ***The official search dated 18/12/2007.*** 11. ***Notice to remedy breach of conditions dated 3/12/1993 received by D L A and Settlement Office on 27/9/1994.*** 12. ***Cancellation of Settlement plot allocation dated 25/3/1994. Received on 27/9/1994 by the D L A and settlement office.*** 13. ***Letter of offer dated 23/3/211994*** 14. ***Letter of officer dated 18/2/1997*** 15. ***Receipt dated 24/3/1997 for Kshs. 10,732/70/=*** 16. ***Letter dated 25/2/1997.*** 17. ***Transfer of land dated 26/11/1997.*** In cross examination by Ms. Wanjeri for the Defendants Mrs. Kinyua said she got married to Gathiga in 1981 and that she was sure her husband never received the repossession Notices. She also said there were women calling her on the phone. She did not know who told her that they were from the owners of the land and that her husband had met all the conditions for owning the land. She said she had been on the land since 1993 and paid all the premiums. Save a small balance demanded by the S F T. The balance to the Settlement Fund was not paid when she discovered that her husband’s name in the S F T documents had been replaced by the names of two women, the 2nd and 3rd Defendants (3rd and 4th Respondents) but that in some S F T documents it is their respective husbands who appeared as owners. She said that her husband did not pay the balance of the purchase price because of sickness. But that she was ready to pay th same. She confirmed that she developed the suit property in 2007. On cross examination by Ms. Njoki Mureithi, the 1st Respondent said that Bernard Githaiga died in 2007 according to the death certificate but that she came to know about that much later. On re-examination this witness said she did not see any other documents for the land save the receipts and ballot paper and would therefore not tell the conditions to the met yet she is the one who was shown the land after her husband died. She further said that none of the 3rd and 4th Respondents ever lived on the land. After the close of the 1st Respondent’s came DW1 Anthony Mureithi, a land Adjudication and Settlement Officer Nyahururu North Sub- County who had worked in that capacity for over 20 years who adopted his statement recorded on 15/8/2012. He said that if an allotee commits a breach of any condition contained in the letter of offer he is issued with a Notice of breach of conditions and given 90 days to respond. This is followed by a letter of cancellation. Then the land is allocated to another person. He said that in this case the 1st Respondent’s husband was issued with a letter of breach of conditions. Thereafter, he was issued with a cancellation Notice. Thus, a letter of allocation was issued to Peter Alubale who did not take it up. Then Nderitu Muya and Bernard Githaiga were given the plot. He said that when his office first visited the land on 18/12/2007 the parcel of land was vacant and uncopied. It had no fence, not cultivated and without a house. Neighbours used it for grazing their animals. During the 2nd visit on 28/11/2018 it was found that there were 2 roomed houses built on tinned iron sheet walls and iron sheets roof. There was a fence of cider posts and barbed wire along the perimeter wall. The author of the Rreport, John Welangai reported that there was a pit latrine and that the land had been partly planted. About 1 ½ Acres had been planted with a mix of maize and peas. And the rest of the land was used for grazing. There were 2 cows. He said that the development was by Nancy Wairima Kinyua, the 1st Respondent. He reported that the initial allotee, Paul Kinyua paid Kshs. 325/= vide receipt number X759316 dated 11/8/1983 being land deposit and conveyance. He said that why Paul Kinyua Gathigia was not given the letters of ownership is because he did not take possession of the land which was a breach of conditions. He said that the Notice of breach of conditions was issued same dated 31/12/1993. The cancellation then followed, dated 25/3/1994. The letter of offer to the 2nd allotee was dated 23/3/1994. He further said that there was no cancellation because the allottee did not take the offer. But there was a recommendation by the Trustees that the land reverts to the original owner whose children were willing to pay for it. Mr. Mureithi said that the fees the allottee pays is at market value of the land and that the land according to the records in the office was never discharged. He then produced the following documents. 1. Grant of letters of administration intestate in Nyeri High Court Succession Cause No. 395 of 2007 In the matter of the state of Paul Kinyua Gathiga (Deceased) 2. Copy of official receipt No. X759316 for 325 dated 11/8/1983 3. Ballot Paper dated 11/8/1983 4. Certificate of death of Paul Kinyua Gathiga (deceased) 5. Letter dated 30/9/1983 6. Ground and record status report dated 21/11/2013 7. Ground and record status report dated 28/11/2013 8. Ground and record status report dated 8/1/2008 9. Ground and Record Status report Dated 30/9/2011 10. Notice to remedy breach of conditions dated 3/12/1993 received by D L A and Settlement OfficeR on 27/9/1994. 11. Cancellation of Settlement plot allocation dated 25/3/1994. Received on 27/9/1994 by the D L A and settlement office. 12. Letter of offer dated 23/3/211994 He finally testified that the discharge of charge was not from his office and did not bear the signature of the transferee nor official stamp and the designation of the person certifying it. On cross examination by Mr. Siglai for the 1st Respondent Mr. Muriithi said he never saw any letter of offer to Mr Gathiga for plot No. 496 but that he was the original allotee who did not accept the offer but paid Kshs. 325 and that he did not know whether the allottee ever balloted for the land. He said that he had no evidence of the letter reaching its addressee and a copy was not even in their records. He said he did not have documents to show that the original allotee did not take possession of the land and that in the body of the letter there was nothing to show whether the land was ever visited. He could not confirm that the original allottee was ever served and that it was the District Land Adjudication officer who was supposed to serve the letters (Notices). He also admitted the letters were addressed to the wrong person and were therefore never to take effect. He equally confirmed there were no minutes of the cancellation and no evidence of the cancellation being communicated to the Minister. Further, the witness said that there was nothing to show that the second allotee, Alubage had applied for the plot. There was similarly nothing to show that Nderitu and Githaiga had applied for the plot and that on the face of the letter, the same was not served. On further cross -examination by Mr. Siglai the witness said that the letter of 1997 was valid for 90 days after which it would be cancelled without further Notice. There was no letter of acceptance. The 2 did not accept the offer. They did not also pay the 10% deposit and the offer was not cancelled after 90 days. He said that the copy of discharge and transfer to the two was not witnessed by his office. The transfer therefore had a problem. The transferee had not signed it and he did not have the original of the discharge or transfer and he could not tell whether the two documents were sealed or not and none of the 2 documents was presented to the Land Registrar. On cross examination by Ms. Mureithi, Anthony confirmed the discharge of charge was in their office. He said that the 3rd and 4th Respondent’s letters of offer were never cancelled, They were shown the beacons and boundary and that they would not have paid if they had not accepted the offer. They had not breached any condition. On re-examination, Mr. Mureithi said that the counter-claim by the Interested Party should be dismissed and that the same should revert back to the initial allottee, Paul Kinyua Gathigia. DW2 Gladys Wangechi Njaramba adopted her statement of 19/8/2019 as her evidence in chief where she repeated the averments in her Defence and counter-claim as the legal representative of the Estate of Bernard Githaiga Githua. She said that on 10/2/1997 the 2nd Respondent allocated plot No. 496 within Ndemi Settlement Scheme to Peter Ndiritu Muya and Bernard Githaiga Githui who paid the outright purchase price to the 2nd Respondent. The said latter allottees had done due diligence and ascertained that the ownership of the suit land had not been given to anybody else. It was absolute to the two. She said that they exclusively occupy the land today. She then produced the following documents: 1.A Copy of letters of Administration Ad litem dated 28th September, 2018. 2. A copy of Certificate of Death issued on 17th December, 2007. 3. A copy of Certificate of Death issued on 26th June, 2018. 4. A copy of a letter dated 30th July, 2018. 5. A copy of letter of Offer dated 18th February, 1997. 6. A copy of letter dated 25TH February, 1997 by the District L.A & Settlement Office. 7. A copy of Receipt dated 24th March, 1997. 8. A copy of Transfer form dated 26th November, 1997. 9. A copy of Discharge of Charge. 10. A copy of an Affidavit dated 16th April, 2015. On cross -examination by Mr. Siglai for the 1st Respondent the Appellant said that the late Bernard Githagia was his brother-in-law, since he had married her sister Dianna Mumbi Githaiga Githui who had 4 children together, although one of them had passed on. She said her sister had died. She said she cannot recall the parcel No. of the land. She said she was on the land in 2022 and previously when her sister died in 2014. She said she did not have an allotment letter and would not tell whether the 90 days period for the validity of the offer were met nor whether in default though the offer was cancelled. She said that it is time the ownership documents to Mr. Githaiga were not signed. She further confirmed that the 1st Respondent was using the land which she started when this case was filed in court. Therein was a semi-permanent structure and toilets. On cross examination by Ms. Wanjohi, the witness said that Bernard Githaiga was her brother-in-law and that although Bernard was staying on the suit land, she was not staying on the suit land. She said she dd not know the requirements of the SFT and that the first allottee had a letter of allotment. She said she was aware the SFT recommended that the 1st Respondent be registered the owner of the land which had not been registered in favour of any of the parties save the SFT. On re-examination by Ms. Njoki Mureithi the witness said that nobody objected to her taking out letters of administration to represent the late Bernard Githaiga in this case. She said that the letter of offer has never been cancelled. But that she could not understand why Bernard had never got a transfer of Title. After the close of the case a judgment was delivered on 30/4/2025 by the Honourable E H Keago in favour of the 1st Respondent as follows. a). A Declaration be and is hereby issued that allocation of title Deed No Nyandarua/Ndemi/496 to the late Paul Kinyua Gathiga (deceased) and now his estate has not been legally cancelled and merited and consequently vests in the estate. b) A declaration be and is hereby issued that the purported re-allocation/outright purchase/transfer and discharge in respect of title No Nyandarua/Ndemi/496 in the names of 2nd and 3rd defendants by the 1st defendant is null and void ab initio. c) An order that the 1st defendant do discharge and transfer title No Nyandarua/Ndemi/496 in the name of Nancy Wairima Kinyua as the administrator of all the estate of Paul Kinyua Gathiga (deceased) unconditionally and forth with is hereby declined she fully complies with the requisite requirement of allotment. d) A permanent injunction do issue and is hereby restraining the 1st defendant from allocating, re-allocating, transferring, discharging or in any other manner vesting title deed Nyandarua/Ndemi 496 to the 2nd and 3rd defendants in perpetuity and to restrain the 2nd and 3rd defendants by themselves or through their agents, servants, employees and/or any other person changing title though or order them indefinitely from trespassing, taking possession or in any manner dealing with title deed NYANDARUA NDARUA/NDEMI/496. e) A declaration that the allocation of LR NYANDARUA ndarua/Ndemi 496 to Peter Ndiritu Matu and Bernard Githaiga Githui (deceased) by the 2nd defendant is legal and valid and these should vest into his estate and specific performance other part of the 2nd defendant to complete the sale and delivery of all that vests the Interest as manifested in Nyandarua/Ndemi/496 to the plaintiff and in the alternative this Honorable court do effect the same be and is hereby declined. f) A permanent order of injunction does issue restraining the 1st defendant either by herself, her agent, servants and/or anybody whatsoever either changing in or order her names from and/or changing in or order their names from evicting, ejecting, encroaching, occupying or in any way interfering with the plaintiff's possession of the suit parcel of land LR No Nyandarua/Ndemi/496 be and is hereby declined. g) Compensation of the subject plot to the plaintiff namely LR No Nyandarua/Ndemi/496 at the current and prevailing market price at the time of the judgment herein and the purchase price paid by the plaintiff since the allocation to date together with interest at court rates limited requisition of the same in full. h) General damages for breach of contract. i) Costs of the suit and counterclaim are awarded to the plaintiff. The Learned Trial Magistrate crystallized the following issues for determination: 1. Whether the Plaintiff has been able to prove that the allocation of L.R No. NYANDARUA/NDEMI 496 has not been legally and lawfully cancelled. 2. Whether the Plaintiff has been able to prove that the purported re-allocation to the 2nd and 3rd Defendants was null and void. 3. Whether the 1st Defendant can be ordered to discharge and transfer Title No 496 Nyandarua/Ndemi to the names of all of the Plaintiff. 4. Whether the interested party has been able to prove that the allocation of the suit land to the 2nd and 3rd party following due process. 5. Whether the Plaintiff or interested party has been able to establish a case for a permanent injunction. The Trial Court then summed up the reasoning of the judgment to. The 2nd Respondent did not address the Notices to the 1st Respondent, Paul Kinyua Gathigia but to Pauline Kinyua Gathaigia who are two different people and using the wrong address. There were no minutes for repossession and re-allocation and therefore there was no legal or further re-allocation or repossession and that therefore the court found that the alleged repossession and the alleged re-allocation were illegal for noncompliance with the law and thereby nullified the subsequent re-allocation. The prayer by the 1st Respondent that the 2nd Respondent do sign the discharge of charge in favour of the 1st Respondent was declined until such time that the 1st Respondent shows that it is the 1st Defendant who is in occupation. On the interested party’s position on proprietorship, the court observed that the 3rd and 4th Respondents had not taken possession of the suit land for Respondents has taken possession of the suit land for a period of over 28 years. The allotment letter required that they take possession and develop the property. No evidence of the same was availed to the court and therefore even assuming the allocation was lawful which is not case, the 2 would still have breached the terms and conditions of allotment. The allocation of the suit land to the 3rd and 4th Respondents was found by the learned Trial Magistrate to be unlawful. The Honourable Trial Magistrate summed up the judgment as that both parties made some payments to the 2nd Respondent. The 1st Respondent paid upon a proper allotment while the 3rd and 4th Respondents made payment upon the illegal allotment and the claim of permanent injunction in favour of the 1st Respondent was proved and granted by the Court. The Court also dismissed the claim by the Appellant for compensation on the basis that any claim for compensation premised on an illegality will not succeed since the 2nd Respondent did not follow the proper procedure in repossession and the Appellant didn’t ensure that the proper procedure had been followed before they were allocated the suit land in any event where there was no buyer/seller relationship. Being dissatisfied with this Judgment the interested party (Appellant) filed a memorandum of Appeal for orders: - 1. The learned magistrate’s Judgment delivered on 30/4/2025 be set aside and the Appeal be allowed. 2. Costs of this Appeal to the Appellant. The same is dated 28/5/2025 and was grounded on the following: - **1. THAT** the learned Trial Magistrate erred in law and fact by finding in favour of the 1st Respondent while the claim was clearly statutory time barred. **2. THAT** the learned Trial Magistrate erred in law and fact by issuing orders against the 2nd and 3rd Defendants when it was very clear that both of them were long deceased before the matter was instituted and that the 1ST Respondent (plaintiff) despite that knowledge never regularized the suit. **3. THAT** the learned Trial Magistrate erred in law and fact by holding that the 1st Respondent s had proved their case and that finding that the allocation of Title No.NYANDARUA ndarua/Ndemi/496 to the late Paul Kinyua Gathigia had not been legally cancelled and merited. **4. THAT** the learned Trial Magistrate erred in law and fact by holding that the allocation of the subject parcel of land to the 1st Respondent was still valid despite evidence that the conditions set by the Settlement Fund Trustees were never met since 1983 to the date the judgment was delivered and subsequently the SFT demanded that **Paul Kinyua Gathigia (Deceased)** remedy the breach of conditions vide the **Notice to Remedy Breach of Conditions**, the demands by the SFT were never complied with and therefore the SFT terminated and cancelled the allotment to **Paul Kinyua Gathigia (Deceased).** **5. THAT** the learned Trial Magistrate erred in law and fact by failing to appreciate that the estates of the 2nd and 3rd defendants were the legal and absolute owners of the suit parcel of land having been allocated in the year 1993, fulfilled all the conditions set out by the Settlement Fund Trustees and consequently took possession and even transfers had been signed and discharged. **6. THAT** the learned Trial Magistrate erred in law and fact by holding that the 1st Respondent had been in occupation of the subject parcel of land since allocation of the same in 1993 while it was very clear from the evidence that SFT conducted several Ground Reports to ascertain the position of the suit land and that the first ground visit made on the suit land in 2008 found the land vacant and unoccupied, a second ground visit was conducted in 2013 and SFT officers found a newly constructed two roomed house which had been constructed of tin iron sheet walls and GSI roofing. **7. THAT** the learned Trial Magistrate erred in law and fact by holding that the subject parcel of land could not have been allocated to the 2nd and 3rd Defendants herein even after the SFT followed the requisite process of repossession as enumerated by section 33(1) of the **Agricultural Finance Corporation Act, 1991 (Cap 323)** and that upon repossession of the suit land, it was within the mandate of the SFT to enter into such contracts as it deemed necessary. **8. THAT** the learned Trial Magistrate erred in law and fact by failing to appreciate that the 2nd and 3rd defendants had been allocated the land legally and procedurally and that they had fulfilled all the conditions set by the SFT and therefore their estates were the rightful owners of the suit land. **9. THAT** the learned Trial Magistrate erred in law and fact by issuing an order of permanent injunction in favour of the plaintiff while it was clear that the 1st Respondent only constructed an iron sheet house on the suit land in 2013 after she lodged a complaint with the SFT and upon realizing that they intended to carry out a ground assessment and further failed to appreciate that the 1st Respondent hadn't taken possession since the year 1983 when the land was allocated to her. **10. THAT** the learned Trial Magistrate erred in law and fact by in dismissing the appellant's defence and counter-claim despite the overwhelming evidence on record. **11. THAT** the learned Trial Magistrate erred in law and expressed total bias against the Appellant and disregarded her pleadings, evidence in the lower court as well as the submissions filed on her behalf I find that the learned trial magistrate properly brought out the issues herein and also rightly analyzed the evidence adduced by the parties in the suit together with the evidence of the land Adjudication and Settlement Officer, Nyandarua North Sub-county Mr. Anthony David Mureithi and what is now left for me to do is to address the Appellant’s issues in the Appellant’s Memorandum of Appeal. Evidence was adduced that during the preparation of the second Ground Report, the 1st Respondent’s people were on the ground. This means that the 1st Respondent was in occupation of the land and service could have been personally affected upon her or her people on the suit land. In Thananga -Vs- Nyagah & 2 Others (Environment & Land Case No. 100 of 2023 [2023] elc 22011 ( Klr) ( 30 November 2023) ( JUDGEMENT), the Court held as follows:- “……….*The Court is thus of the opinion that in the absence of any evidence of service of the requisite notices upon the 3rd Defendant the purported repossession and sub-division of Plot 588 was irregular, unlawful and of no legal consequences and did not extinguish the 3rd Defendant’s interest over Plot 588…….……………....”* In the present case, these malpractices were in view of the fact that there was another allotee in waiting, the Appellant. How was he identified for purposes of allotment? Even assuming it was opportune to repossess and reallocate the suit land, which was in any case not lawfu,l was the suit property advertised for purposes of re-allotment?. There are so many particulars of fraud and illegal procedures in the acquisition of the land in respect to L.R. NO. NYANDARUA/ NDEMI/496 by the Appellant, ranging from the mischief by the Director, Land and Adjudication and settlement in wrongly repossessing a land from a person who had committed no breach of conditions of the allocation letter of the land and failure to serve him with a Notice before the repossession in order to aid and suit the Appellant’s selfish and self-centered interests and self aggrandisement. In any case the 2nd Respondent did not produce any document such as the letter of allotment to show what those conditions were. The Appellant must have hatched a fraudulent scheme and successfully executed it with the connivance of some officials at the Lands office, in particular Adjudication and Settlement directorate. A registered proprietor only enjoys the statutory protection of Title or proprietorship of land as long as he can show that the Title was acquired procedurally. The 1st Respondent is said to have defaulted in the payment of the unquantified loan yet the Demand letter was sent through the District Land Adjudication and settlement officer and to the wrong person and the dispatcher and/or author of the Demand Notice and the letter of reallocation did not bother to find out whether that officer ever received the letter and if so, whether the same or its contents were indeed conveyed to the initial property owner and when. Having failed to discharge the duties of the Directorate of Land Adjudication and settlement office properly, the 2nd Respondent now urges the Court to justify the misnomers, malpractices and unprofessional conduct of his office that are characterized by greed and gourmandizing. It is not for individuals to go to the Land’s office asking whether there is land for allocation as was the case with the Appellant. If there is any vacant land, it must be advertised for allocation and I say loud and clear that the advertisement must be beyond the office of the Directorate of Land Adjudication and settlement and Ardhi house in general. This is to enable all Kenyans and especially the landless to have an opportunity to apply for it. Again, there must be a proper way of allocating land. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | Article 40 of the Constitution of Kenya, 2010: | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | (1) | Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property— | | | | | | --- | --- | --- | --- | | (a) | of any description; and | | | | (b) | | in any part of Kenya. | | | | (2) | Parliament shall not enact a law that permits the State or any person— | | | | | --- | --- | --- | | (a) | to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or | | | (b) | | to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27(4). | | | | | | | | | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | (3) | The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation— | | | | | --- | --- | --- | | (a) | results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or | | | (b) | | is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that— | | | | | --- | --- | --- | | (i) | requires prompt payment in full, of just compensation to the person; and | | | (ii) | | allows any person who has an interest in, or right over, that property a right of access to a court of law. | | | | | | (4) | Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land. | | | | | --- | --- | | (5) | …………………………………………………………………………… | | (6) | The rights under this Article do not extend to any property that has been found to have been unlawfully acquired. | | None of the sub-Articles above was applied when repossessing the land from the 1st Respondent. However, sub-Article (6) is applicable to the Appellant’s Title. For one to lose land through repossession, 1. There must be a Notice preceding the repossession. 2. The Notice must be quite clear and unequivocal as to the reason(s) for the repossession. 3. The Demand must be communicated in the most efficient way in order to ensure that the land owner has received the Demand and to avoid doubts personal service is to be encouraged and preferred. 4. The Demand Notice should be detailed enough to indicate the parcel Number and if the reason for repossession is non-payment of a loan, premiums or any other payments, the specific amount of the loan must be correctly indicated. 5. The property owner must be given reasonable time to pay up and redeem the property. 6. The defaulting party must also be invited to make proposals on how to clear the outgoings. 7. The Decision of the directorate must be in writing and communicated to the land-owner in writing as well. Consequently, my hands are tied and it is indeed my duty to do only one singular thing. Which is? To get recourse to Section 80 of the Land Registration Act, 2012 as follows: - 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. Subsection (2) of the Act, “(2*) The register shall not be rectified to affect the title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, 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”* This proviso cannot also protect the Appellant. Reason, he is not in possession. In fact, one of his prayers was for vacant possession against the Appellant. It had already been allocated to the 1st Respondent who he wanted to dispossess. The Appellant was aware that the 1st Respondent was never served with any Notice of repossession. And, from her own evidence, the Appellant cannot claim that the deceased she represented was not an active participant in these maneuvers and intrigues. Finally, the evil and corrupt practice demonstrated above by the Appellant is not an isolated case in the directorate of Adjudication and Settlement and must be nipped in the bud otherwise innocent Kenyans who have no access to the documents at the directorate will always be dispossessed by some hawk-eyed public servants working in the said department who are able to tell who has not gone to pick his Title Deed. Accordingly, I am unable to upset the well-reasoned Judgment of the Honourable E. H. Keago, Chief Magistrate dated 30/4/2025 and the Appeal herein fails in its entirety with costs to the 1st Respondent. And for the avoidance of doubt, the suit property i.e. L.R NYANDARUA/NDEMI/496 belongs to the Estate of PAUL KINYUA GATHIGIA and should be registered in the name of the Administrator(s) of the said Estate to be held in trust for the beneficiaries of the late PAUL KINYUA GATHIGIA. The 1st Respondent will get the costs of the suit against the Appellant and the 2nd Respondent in addition to the costs awarded in the lower Court. **Judgment dated and signed at Nyandarua this 8th day of July, 2026.** **MUGO KAMAU** **JUDGE** In the presence of: Samson……. C/A Ms. Mureithi.….…… for the Appellant Mr. Sigilai….….……. for the Appellant