https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1289

Muchangiru v Waiganjo (Legal representative of Leah Wachu Waiganjo) (Civil Appeal 409 of 2019) [2026] KECA 1289 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1289 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 409 of 2019 F Tuiyott, L Ndolo & AI Hassan, JJA July 10, 2026 Between Njeri Muchangiru Appellant and William Kibera Waiganjo (Legal representative of Leah Wachu Waiganjo) Respondent (Being an appeal from the Judgment of the Environment and Land Court at Thika (L. Mbugua, J.) delivered on 2nd May 2019inELC Case No 414 of 2012 Environment & Land Case 414 of 2017 ) Judgment 1.This appeal proceeds from the judgment of the Land and Environment Court (ELC) at Thika, delivered on 2nd May 2019. In her memorandum of appeal dated 26th August 2019, the appellant raises eight (8) grounds all revolving around the question whether the appellant proved fraud against the respondent. 2.This being a first appeal, we are obligated to re-evaluate and re-appraise the evidence to satisfy ourselves that the ELC arrived at the correct conclusions, with the caveat that we have not had the advantage of a personal encounter with the witnesses. (see Barclays Bank of Kenya Limited vs.Banking Insurance and Finance Union [2026[ KECA 851 KLR and Abok James Odera vs. John Patrick Machira [2013] eKLR). 3.The facts giving rise to the dispute before the ELC are straightforward. The appellant, Njeri Muchangiru (Njeri) and the respondent, Leah Wachu Waiganjo (Wachu), represented by her brother, William Kibera Waiganjo (Kibera) as guardian ad litem, claimed ownership of two parcels of land in Ruiru area acquired through Nyakinyua Investments Limited. 4.At the time the dispute was adjudicated by the ELC, the two parcels were registered in the name of Wachu whose interests were being taken care of by her brother Kibera. Registration of the suit properties was evidenced by two titles being; Ruiru/Ruiru East/Block 2/97 measuring 0.400 hectares and Ruiru/Ruiru East/Block 2/98 also measuring 0.400 hectares. 5.The litigation history of the dispute was eventful; the case was dismissed twice on the same day. When the matter came up for hearing at 9:00 am on 20th November 2018, there was no appearance for any of the parties, leading to an outright dismissal of the case, which included a counterclaim by the appellant. 6.Following subsequent explanation by counsel, the dismissal order was vacated and the suit reinstated for hearing at 2:00 pm on the same day. At 2:00 pm, only the appellant appeared; the respondent’s claim was therefore dismissed and the counterclaim proceeded with leave to counsel for the respondent to cross examine the appellant’s witness. 7.The judgment forming the subject matter of this appeal is therefore based on the counterclaim filed by Njeri on 23rd October 2012 and the reply to defence and counterclaim filed by Kibera on 19th December 2012. 8.The appellant’s case before the trial court was that the titles issued in the name of Wachu were procured through fraud. Testifying on her own behalf, Njeri stated that she became a member of Nyakinyua Investments Limited after acquiring her mother’s share many years ago. She relied on a ballot paper, several receipts dating as far back as 1973 and two share certificates issued in 1991. 9.Njeri made reference to criminal proceedings at Thika Magistrate’s Court in which Wachu and her brother Kibera were charged with fraud. While admitting that these proceedings did not lead to conviction, Njeri sensationally stated that the trial Magistrate had been compromised. However, this allegation was not backed by any evidence. 10.Njeri had also lodged a complaint at the National Land Commission, which was determined in her favour. 11.Averring that the two titles; Ruiru/Ruiru East/Block 2/97 and Ruiru/Ruiru East/Block 2/98 in the name of Wachu were acquired fraudulently, her prayer in the counter claim was for a declaration that the two parcels of land belong to her and hence the titles issued to Wachu ought to be cancelled. She further sought eviction orders against the respondent. 12.On his part, William Kibera Waiganjo asserted that the suit properties were registered in the name of his sister, Leah Wachu Waiganjo, who was said to have had a mental illness since 1989. In support of his case, Kibera produced three receipts issued in 1976, 1977 and 1983, a ballot paper and share certificates issued in 1973 and 1978. The two titles and a green card were also produced. 13.Kibera told the trial court that he and his sister Wachu were in occupation of the suit properties. He added that they were acquitted of the criminal charges and that he had challenged the proceedings before the National Land Commission as it had no mandate over private land. 14.As earlier alluded, this appeal turns on the single question whether the two titles in the name of Leah Wachu Waiganjo being; Ruiru/Ruiru East/Block 2/97 and Ruiru/Ruiru East/Block 2/98 were obtained fraudulently. The two titles were issued in 1988 under the now repealed Registered Land Act. Section 26 of that Act provided as follows:26.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, un-procedurally or through a corrupt scheme. 15.In its decision in Arthi Highway Developers Limited vs. West End Butchery Limited & 6 Others [2015] eKLR this Court affirmed that land ownership documents obtained through fraud can neither confer nor pass valid title. 16.The law is settled that allegations of fraud must be specifically pleaded and proved, with the burden of proof falling on the party making such allegations. The standard of proof is intermediate meaning in between balance of probabilities and beyond reasonable doubt. In its decision in Denis Mukhulo Ochwada & Another vs. Elizabeth Murungari Njoroge and Another (Civil Appeal No 298 of 2014) this Court stated the following:“As regards standard of proof of fraud, the law is quite clear. In R.G Patel vs Leji Makangi the former Court of Appeal for Eastern Africa stated thus: Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required”. 17.Regarding the procedure of acquisition of interest in land at Nyakinyua Investments Limited, the trial court found as follows:“The process of acquisition of such interest in the land entailed; becoming a share holder in the company, the eventual issuance of a share certificate, balloting, making various payments etc.” 18.In an attempt to unravel the ownership wrangles, the trial court went further to state:“The two share certificates of Wachu Waiganjo were issued on 22.11.1973 and 27.11.1978 respectively. Those of Njeri were issued on 13.4.1991 more than a decade later. A receipt availed by Njeri one of 2.9.1983 shows payments of Kshs.600 as survey fee and another of 29.12.1982 shs.600 again for survey fees.William has availed similar receipts (two of them) for shs.600 dated 20.7.1987 for survey fees. It therefore appears that the process of surveying and identification of land must have started in the early 1980’s. It was therefore possible for titles to have been issued thereafter.It has also emerged that Njeri’s interest is derived from her mother’s share which she took over. When she did this, no one knows. Not even herself. What we have are some receipts where the name of Wairimu Mwai is cancelled to give way to the name of Njeri Muchangiru. On the other hand, Leah’s share was not inherited from any one. Looking at the documents of both Leah and Njeri, Leah’s documents with regard to the shareholding in the company came earlier than that of Njeri. What is apparent is that Leah’s rights and interests in the suit parcels are superior to those of Njeri in that her share certificates were issued decades ago in 1973 and 1978 respectively while those of Njeri came by in 1991. Further, Leah has titles to the suit land while Njeri has none. The first title in time prevails” 19.Looking at the record, we find no reason to fault the foregoing findings by the learned trial Judge. Nor can we fault her finding that there was no trace of fraud, misrepresentation or corrupt schemes in so far as the root of the two titles in the name of Leah Wachu Waiganjo is concerned. In truth, the two titles are undergirded by share certificates issued to Wachu seven and ten years before those of Njeri. 20.What is important is that the party alleging fraud against another bears the burden of proof and we have already laid out the threshold in this regard. The appellant in this appeal has not presented any evidence to prove the allegations of fraud in the processing of the subject titles. Indeed, the criminal charges of fraud levelled against Wachu and her brother Kibera were dismissed. 21.Before concluding this judgment, we need to address the issue of the mandate of the National Land Commission, before which the appellant had lodged a complaint regarding the subject matter of this appeal. 22.The trial court, the Environment and Land Court is established under Article 162(1)(2)(b) of the Constitution, as a superior court with the status of the High Court. The jurisdiction of this Court is set out in section 13 of the Environment and Land Court Act, which stipulates that:13.The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. 23.The question before the ELC under this head was whether the National Land Commission had any role in the dispute before the court. The functions and powers of the National Land Commission are set out under sections 5 and 6 of the National Land Commission Act while the power to review grants and dispositions is set out under section 14 of the Act which provides that: 14.(1)Subject to Article 68(c)(v) of the Constitution, the Commission shall, within five years of the commencement of this Act, on its own motion or upon a complaint by the national or a county government, a community or an individual, review all grants or dispositions of public land to establish their propriety or legality. 24.In her judgment, the learned trial Judge mentioned the existence of a separate suit being Thika ELC JR 5/2017 on this very issue. No further particulars were provided but the Judge took issue with an attempt made by the respondent’s counsel to adduce evidence on this issue in final submissions. 25.The operating phrase in section 14 of the National Land Commission Act, which gives power to the Commission to review grants and dispositions is ‘public land’. The question then is whether the National Land Commission can wade into a dispute regarding competing interests in private land. 26.We take the view that the role of the National Land Commission over private land disputes is limited to reviewing the legality of initial grants or dispositions and this was not a question before the trial court. 27.Ultimately, we find that the appellant has failed to prove fraud as against the respondent, as required by law. The result is that the appeal, which was predicated on allegations of fraud, fails and is dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026.F. TUIYOTTJUDGE OF APPEAL.........................................L.M. NDOLOJUDGE OF APPEAL.........................................AHMED ISSACKJUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR