Makoti v Ntumu (Environment and Land Case E012 of 2023) [2026] KEELC 3146 (KLR) (22 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **ELC NO. E012 OF 2023** **NTEMBE SAIDI MAKOTI…………………………………………………….……. PLAINTIFF** **VERSUS** **MWANAISHA MASUDI NTUMU………………….….…………………….…. DEFENDANT** **JUDGEMENT** **INTRODUCTION** 1. This suit was commenced by way of Plaint dated 27th February, 2023 and filed on 28th February, 2023, seeking the following reliefs: - 2. A permanent injunction restraining the Defendant whether by herself, her servants, agents, family members and/or employees from trespassing onto, wasting, constructing, alienating or otherwise interfering or dealing with the Plaintiff's use and enjoyment of the suit property. 3. Costs of and incidentals to this Suit. 4. Any other or further relief the Honourable Court may deem fit to grant. 5. The Defendant responded to the suit vide a Defence and Counterclaim dated 24th April, 2023. In the said Counterclaim, the Defendant prays for: - 6. A declaration that the Defendant obtained registration of KWALE/DIANI/468 fraudulently. 7. A declaration that the Defendants title purported title was bad, defective, null and void in Law and was incapable of conferring any lawful interest to the Defendant. 8. A declaration that the Defendant is holding KWALE/DIANI/468 in trust for the Plaintiff. 9. A permanent injunction restraining the Defendant, by herself or her agents or servants from selling, alienating, charging, fencing, constructing or in any way interfering with the Plaintiffs quiet possession of the said KWALE/DIANI/468. 10. An order directing the Land Registrar, Kwale District to cancel the registration and title KWALE/DIANI/468 issued to the Defendant. 11. General damages. 12. Costs together with interest. 13. The Plaintiff responded further through Reply to Defence and Defence to Counterclaim dated 15th May 2023 denying the allegations therein and prayed that the Counterclaim be dismissed. **HEARING AND EVIDENCE OF THE PARTIES** **THE PLAINTIFFS CASE** 4 Ntembe Saidi Makoti testified in support of her case as PW1. She adopted her witness statement dated 27th February, 2023 as her evidence in chief and produced the documents in the Plaintiffs List of Documents dated 27/02/2023, Further list dated 26/06/2023 as follows 1. Sale Agreement dated 24th March, 1991 between the Plaintiff and Masudi J. Mwarabaya. 2. Purchase price acknowledgment note dated 20th February 1991 by Mwanaisha Masudi from the Plaintiff. 3. Application for Consent of the Land Control Board dated 1st March 1991. 4. Letter of Consent of the Land Control Board dated 13th March 1991. 5. Copy of Title deed for Plot No. Kwale/Diani/468 together with the current search thereof. 6. Copy of land rates invoice from County Government of Kwale dated 23rd September 2011. 7. Copy of letter dated 20th January 2015 by Ntembe Said Makoti to the District Land Surveyor, Kwale 8. Copy of letter dated 6th March 2015 by Mwanaisha Masudi Ntumu to the District Land Surveyor. 9. Copy of Letter dated 9th March 2015 by the District Surveyor to several plot owners. 10. Copy of letter dated 12th September 2022 by the District Surveyor to several plot owners. 11. Copy of official search dated 29th November 2022. 12. Demand Letter dated 25th January 2023. 13. Building plan together with the approval receipt 14. Receipts for payment of construction materials from several Hardwares 15. Copy of Rates Demand Notice from the County Government of Kwale for Plot Kwale/Diani SS/468 16. Copy of payment receipt from the County Government of Kwale for Plot Kwale/Diani SS/468 17. PW1 testified that she bought land parcel number Kwale/Diani/468 in 1991 from Masudi Mwarabaya the father to the defendant. She claims that her sister one Binti Hamisi Shuga informed her that the daughter (Defendant) needed money and the father would hive off one acre from his piece of land. That PW1 met with the defendant, gave her Kshs. 2,000/- on the strength that her father would sale her the parcel of land when he comes back from Tanzania. The defendant signed an agreement acknowledging receipt of the same. 18. It was her evidence that when Masudi Mwarabaya came back from Tanzania, they met and he agreed to sale her the portion of his land, however, he had an allotment letter to the land and had not paid some dues. Together with Masudi Mwarabaya they went to the land office whereupon she paid the dues. They were then referred to the land registrar. At the lands office he paid Kshs. 50 for an application for Land Control Board Consent and were issued with the letter of consent. 19. PW1 told the court that together with Masudi Mwarabaya appeared before the Msambweni Land Control Board where Masudi confirmed that he wanted to sale the portion of parcel number 442. After the consent they were informed that the excision would be done later and the title would come out after verification less one acre for parcel 442 and her parcel would be number 448 which was indicated in the LCB consent. 20. They then did land agreement in the presence of witnesses who are now deceased. They agreed that she adds Kshs. 13,000 to the Kshs. 2,000 given to the Defendant to make it Kshs. 15,000/-. That the LCB indicated that the consideration in the consent should be indicated as a gift since the title was not yet out. They could not indicate it as a sale. 21. The witness told the court she immediately took possession and got her title deed in 1994 when Masudi Mwarabaya was still alive. That the Defendant started raising issues after her father died. 22. PW1 asserted that parcel number 468 was a result of subdivision of parcel 442 in the same block and are neighbours. She had erected some beacons but when she went back the said beacons had been removed by the Defendant. Her efforts to have the boundary between parcel number 442 and her parcel 468 verified have always been frustrated by the Defendant. 23. On cross examination, PW1 stated that she has never lived in the shamba and neither has the defendant farmed in her shamba. That the land was a settlement scheme but she was never given an offer letter. The offer letter for five acres was given to Masudi Mwarabaya. She admitted he paid the Kshs. 50 and they used to go together to the land offices. That application and consent bore the names of Masudi Mwarabaya. 24. PW1 agreed she never paid stamp duty. That subdivision of parcel number 442 has not yet been done. That Masudi Mwarabaya ought to have had a title before subdivision could be undertaken though she was aware if he had received his title by the time, she received hers in 1994. 25. She confirmed the offer letter does not confer title and had sub division occurred then parcel number 442 would have been closed. According to the green card, title for parcel 442 was issued on 11/10/2006. That the sale agreement for the year 1991 does not refer to the Kshs. 2,000 earlier paid to the Defendant and the Kshs. 15,000/-. 26. PW1 testified that at issuance of the LCB consent, they had not exchanged any money though they had agreed on the purchase price. On being shown the consent she noted it gives estimated value of the land as Kshs. 25,000/-. 27. The witness told the court she does not know Joseph Gacheru neither did he sell her the land. That Masudi was illiterate thus the use of finger print. The letter from the Districti Officer (1997) only refers to one parcel number 442. That she asked Masudi to verbally acknowledge the Kshs. 2,000/- given to his daughter. 28. **PW2** was **Binti Hamisi Hassan Shuga** who adopted her witness statement dated 27/2/23 as her evidence in chief. She stated that the Defendant went to her in 1992 and told her that her father was in Tanzania and that she needed money to bring him back into the country. That once he comes back into the country, he would sell the land. 29. PW2 stated that she informed the Plaintiff (her sister) knowing that she was in a position to assist. The land belonged to Masudi Mwarabaya. She connected the Plaintiff to the Defendant. She was aware that Kshs. 2,000 was paid and upon Masudis return more money was paid. 30. On cross examination, PW2 testified that the land did not belong to the Defendant. That she is not one of the witnesses to the agreement neither did she participate in the discussions between PW1, the Defendant and Masudi. 31. PW3 was the County Land Registrar Kwale **Mr. Steve Mokaya**. He testified that parcel number Kwale/Diani/442 is a property under Settlement Fund Trust (SFT) registered on 20/3/1992. That on 11/10/2006 it was registered in the name of Mwanasha Masudi Ntumu and title issued on the same date. On 15/12/2008 the title was closed on subdivision into plots 1888 and 1889. Plot 1888 was registered in the name of Mwanasha Ntumu and title issued on the same day. 32. He further stated that plot 468 measuring 0.41Ha. was also registered under SFT on 10/3/1992 and on 22/4/1994 was allocated to Ntembe Makoti and a title issued on the same day. That plot 442 during registration under SFT was 1.7Ha. and nolonger exists since it is closed. That from the green card plot 468 was not a subdivision but a standalone plot done after independence. It is a clean property with no encumbrances. The witness produced the Green Card dated 26/6/2023. 33. On cross examination, PW3 stated that in the parcel file, the first allottee by SFT is Mwanasha Masudi Ntumu. He only has a certificate of acceptance by Masudi Juma and no letter of offer. He confirmed that the offer was accepted through a certificate of acceptance by Masudi Juma. 22 He testified that Parcel number 468 is a first allotment and was a transfer from SFT. That the process of allocation by SFT is that there should be a letter of offer and acceptance. He had neither a letter of offer nor certificate of acceptance for plot 468 he only had a transfer from SFT. That given the direct transfer of 468, it cannot give evidence of a gift or subdivision. 23 PW3 stated that as at the time of the agreement between the Plaintiff and Masudi in 1991 the government had not given the plots to individuals. The offer was in 1978 and the agreement was in 1991, acceptance was in 1978. That the vendor could not transfer the property he had no interest. Any subdivision must be on a registered property. 24 The witness reiterated that he could not confirm the acreage that was given to plot 442 in the absence of a transfer from SFT. Though he had the transfer for 468 in the parcel file he could not confirm the size of the same. On being shown the official search dated 26/5/1997 produced by the defendant he noted plot 442 was as at 30/7/1992 registered to Joseph Gacheru yet the Green card showed the proprietor as Mwanaisha Masudi Ntumu. He affirmed one parcel cannot be registered to three different people at the same time unless there were transfers and which he had not seen. That the figures in the consent and agreement do not tally. 25 Mr. Mokaya conceded that the nature of the missing documents in parcel 468 were available in parcel fie 442. 26 With the above the Plaintiffs case was marked as closed. **DEFENDANT’S CASE** 27 DW1 was **John Mwangi Karanja** land Adjudication and Settlement Officer Kwale with over 18 years experience. The witness informed the court that being in charge, he is the one who keeps the records and had in his custody the preliminary documents for parcels 442 and 468. That according to the records, the first allottee to be given an offer letter was Masudi Juma Mwarabaya. 28 DW1 produced letter of offer dated 7/2/1978 and a miscellaneous receipt dated 1/3/1991 for the loan and which he indicated also served as the discharge. The witness confirmed he had the transfer of land dated 7/2/1978 from Masudi Juma Mwarabaya to Joseph Gacheru who was then issued with a certificate of outright purchase dated 21/3/2012. Which he confirmed was prepared after the death of Masudi Juma Mwarabaya. That the record bore no other document between Joseph Gacheru and Masudi Juma Mwarabaya. 29 Referring to the original list of allottees who were allocated land within the Kwale/Diani settlement scheme block he testified that the Parcel number 442 was allocated to Masudi Mwambiti. That no one by the said name had come out to complain that his land had been taken by Masudi Juma Mwarabaya. He indicated parcel number 468 was first registered to Margaret Mwangola vide a certificate of outright purchase dated 20/01/1998. Though the scheme was established in 1977 documentation came out after allocation. That the record for parcel number 468 bore no certificate of outright purchase by Ntembe Saidi Makoti nor a miscellaneous receipt in her name. 30 According to the DW1, the allocation list had 446 plots and therefore, there cannot be a plot number 468. 31 The witness produced Letter of Offer dated 7th February, 1978 ;Certificate of Acceptance dated 7th February, 1978; Receipt dated 1st March, 1991; Certificate of official search dated 26th May, 1997 ;Letter by D.O Msambweni dated 7th August, 1997 ;Letter from District Land Adjudication & Settlement Kwale dated April, 2002 ;Death Certificate dated 16th May, 2006 ; Letter by D.O Msambweni dated 28th March, 2006; Copy of title dated 15th December, 2008 ; A copy of the green card to parcel No. 1888; Summons and pleadings dated 27th April, 2010 ; Order dated 23rd June, 2014 and Letter from District Land Adjudication and settlement office Kwale dated 13th July, 2015. 32 Upon cross examination by Ms. Jadi, the witness told the court that the Diani settlement scheme was established in 1977 and each allottee was supposed to get five acres. That while for plot number 442 the offer was made to Masudi Juma Mwarabaya in 1978 the same did not indicate the acreage. That acreage is normally indicated in the title deed based on the map. 33 He further testified that the receipt dated 1/3/1991 is for charges and conveyancing fees for plot 442. He detailed the process of allocation being that upon offer and acceptance, the next step is payment and thereafter documentation starts. The allottee will be given a discharge of charge and transfer documents to present to the land’s office. For parcel number 442 there was no discharge of charge but a certificate of outright purchase in the name of Joseph Gacheru. It is also this document that the allottee presents to the land office. 34 That from the record, he did not have the discharge of charge for plot number 442, and could not confirm whether it was discharged or not. 35 That plot 468 was allocated to Margaret Mwangole vide a certificate of outright purchase whom he did not know. He asserted the allotment record ends at plot 446. That while the documents produced show there is plot 468, he could not confirm there could be plots beyond 446. He stated the documents in respect of plot 468 emanated from Nairobi. **36 Mwanasha Masudi Ntumu** testified as DW2 and adopted her witness statement dated 24/4/2023 as her evidence in chief. She stated that plot 442 belonged to her father Masudi Juma Mwarabaya who died in 1997, by which time he already owned the plot. The plot was grabbed by Joseph Gacheru. That on learning about this her father followed up the issue but died before conclusion, so she took up the matter to the end. She went to the District Officer’s (D. O.) in Msambweni to complain where a letter was written to Joseph Gacheru who then promised to return the land. 37 DW2 told the court that every allottee was allocated 5 acres in the settlement scheme including her father. Her father did not sell his land before he died. He was feeble & was taken to Tanzania. He asked her to look for someone who could give them at least Kshs. 15,000. Since she was sick, she was introduced to the Plaintiff by her sister Binti Hamisi. 38 She went to the Plaintiff and was given Kshs. 2,000/- and she signed for it. Thereafter, the sister informed her that the Plaintiff had obtained Kshs. 13,000, on 20/2/1991 she went to see the Plaintiff accompanied by her husband Salim Ali Lukoko. She was asked to go get her father’s national identity card. Her father was still in Tanzania. For this amount, she did not sign by her husband and Hassan signed. Hassan is the brother-in-law to the Plaintiff. 39 DW2 added that her father stayed in Tanzania for five more months. Even though the agreement dated 24/3/1991 states that her father Masudi Mwarabaya signed, that was not true as he was not in the country. That though the identity card number stated in the agreement was supplied by her and she denied her father signed the agreement. 40 She asserted there is no way her father gave the Plaintiff the land as a gift as indicated in the letter of consent. That it is true they were given the money; however, the arrangement was that they would sit and agree once her father came back from Tanzania. But when her father came back and summoned the plaintiff, she never came and her father was very sick at that time. Therefore, the Plaintiff and her father never sat and agreed to sell the land. She told the court they never refunded the money they took from the Plaintiff. 41 She testified that when the Plaintiff went to them, she did not tell them how she got the land. She was not aware whether the Plaintiff was given the land by the government or she bought it. Upon follow up, she was given title for plot 442 which was to be 5 acres but one acre was missing. That ever since her father was allocated the land in 1978, he has never tilled or constructed thereon. 42 On cross examination, she stated that she is not related to the Plaintiff. Her father followed up on the issue of Joseph Gacheru and she took over after her father’s death. She started following up on the issue before the succession matter at the Kadhis Court. 43 DW2 testified that she went to the D.O in Msambweni, Gacheru was called by phone and agreed to return the land. She then went to the land registrar in Kwale where she was given her land title to plot number 442. She admitted to have received Kshs. 2000 but denied that her father signed the sale agreement. That she received the money and not her father. 44 She added that the problem with the Plaintiff started when she brought a land surveyor. She emphasised she does not recognize the plaintiff as the owner of the property. In the property, there are mango trees, coconut trees and cashew nuts which were planted by her father and some by herself. That her father rejected Kshs. 30,000 from the Plaintiff brought by the plaintiff’s brother. 45 She denied that her papers were void because they predated succession since she obtained title in 2016. 46 DW3 was **Ramadhan Abdala Mbeto**. He adopted his witness statement dated 24/4/2023 as his evidence in chief. He stated that Masudi Juma Mwarabaya was his friend. He Masudi became sick, went to Tanzania where he stayed for about five months. He did not know whether Masudi sold the land or not though he indicated there was an arrangement that he would sell the land to the Plaintiff but he is not sure whether they sat down and agreed after he came back. 47 DW3 told the court that when Masudi came back, the Plaintiff was called several times to discuss the issue but she did not come. As regard the agreement dated 24/3/1991, Masudi had not come back from Tanzania. That he was given Kshs. 13,000 by the deceased daughter to send to her father in Tanzania. Masudi could not have executed the said agreement by thumbprint when he was in Tanzania. 48 He conceded in cross examination that he was not a witness to the agreements. That the deceased never received money from the plaintiffs though he admitted money was given. He conceded they had not presented any evidence of forgery. He agreed by the time the deceased came back he knew there were outstanding issues **PLAINTIFF’S SUBMISSIONS** 49 Counsel on record for the Plaintiff identified four issues; Whether the Plaintiff purchased One (1) Acre from one Juma Masudi Mwarabaya in the year 1991 or thereabout; Whether the Plaintiff acquired good title and is the legal registered owner of Plot No. KWALE/DIANI/468 situated at Diani within Kwale County; Whether the Defendant has proved her Counter-claim and What remedies ought to be granted to the Plaintiff in the circumstances? 50 On the first issue, the Plaintiff submits that the sale Agreement dated 24th March 1991 clearly shows that the Defendant's late father sold an acre of his plot No. 442 to the Plaintiff. The Defendant acknowledged receipt of the first payment of Kshs. 2,000/= as per the agreement of 20th February 1991 and the balance thereof cleared as per the agreement of 24th March 1991. Both DW2 and 3 confirmed that money for the sale of the one acre exchanged hands though they have since distanced themselves with the sale. Both DW2 and 3 confirm that they never returned the money advanced to them by the Plaintiff. They however, confirm that after the return of the late Masudi Juma Mwarabaya, the late Masudi and the Plaintiff attempted a discussion on the sale of an Acre of land. The said witnesses were never parties to the said discussion. It was submitted Masudi did sale the one-acre piece of land to the Plaintiff. 51 That the Land Registrar Mr. Mokaya testified and stated that from the records, Plot No.468 was first registered under the Settlement Fund Trust on 10th March, 1992 and on 22nd April, 1994 allocated to the Plaintiff and a title deed issued on the same day. The property was a direct allocation and measured 0.41Ha. That there is no indication that the said property arose from any subdivision as it was a stand-alone property with no encumbrances. 52 It is submitted that the Plaintiff's indicated to Court that they were advised that since Plot No.442 was a settlement scheme, then all the documents would not be indicated as a sale but a gift. The parties were also advised that the excision of the one Acre would be done later and the title deed would come out after verification less the one Acre sold to her from Plot No.442 and new number would be issued as Plot No.468. This is a process that parties were advised at the Lands office and it explains why for Plot No.468 as confirmed from the land's records by the Land Registrar, was indicated as a direct allocation to the Plaintiff. 53 It is urged that the Plaintiff being the legal registered owner of the suit property has a right to enjoy all the rights of a proprietor under Section 25 of the Land Registration Act. That being a first registered owner with a valid title deed then the same amounts to conclusive evidence of proprietorship as per Section 26 of the Land Registration Act. That based on the provisions of Section 7,24,25 and 26(1) of the Land Registration Act, 2012 and Article 40 (1) of the Constitution of Kenya 2010, the Plaintiff has a good title. The Plaintiff is the absolute and legal registered owner of the suit property with indefeasible interest, title and rights vested on her by law. Counsel relied on the case of ***David Peterson Kiengo & 2 others -VS- Kariuki Thuo (2012) eKLR*** 54 That upon purchase and with consent of the late Masudi Mwarabaya, the late Masudi Mwarabaya having put the Plaintiff in possession of the suit property, he created an implied or constructive trust in her favour. Counsel relied on the case ***Macharia Mwangi Maina & 87 others -VS- Davidson Mwangi Kagiri (2011) eKLR.*** 55 On the 3rd issue, the Plaintiff submits that the Plaintiff in the Counter- claim has failed to prove her counter-claim as pleaded. The Plaintiff has failed to prove how Plot No.442 which was registered in the name of Joseph Gacheru Mungai as per the Certificate of outright purchase dated 30th January 1992 was transferred back to her after purportedly being surrendered by Mr. Gacheru. The Plaintiff has failed to prove the procedure followed to have Plot No.442 revert back to her in the year 2006 in the absence of Letters of Administration on behalf of her late father's estate noting that she obtained the Letter's Administration in the year 2009. The copy of green card for plot No. 442 does not indicate the same was at any one point held in the name of the late Masudi Mwarabaya and or was transferred to the Plaintiff by the said Joseph Gacheru. 56 Counsel urged the Defendant failed to prove all the particulars of fraud as alleged. There is no evidence that the Application for consent of the Land Control Board and the letter of consent are a forgery. The Plaintiff has failed to prove that Plot No.442 was subdivided into two portions since there is no evidence of subdivision of the said plot or at all. Reliance was placed in the case of **Central Bank of Kenya Ltd-VS-Trust Bank Ltd & 4 others (1996) eKLR.** 57 it is emphasised that the Plaintiff is the legal registered owner as a first registration without any notice of fraud and/or misrepresentation. Reliance was placed in the case of **Gladys Wanjiru Ngacha -VS- Teresa Chepsaat & 4 others (2012) eKLR**. **DEFENDANT’S SUBMISSIONS** 58 The defendant identified the following issues for determination; Whether the Plaintiff lawfully acquired the suit property; Whether the Deceased could transfer property to the Plaintiff; Whether the Defendant has proved her Counter-Claim? And Who pays costs? 59 On the first issue, the Defendant submits that it is clear the Plaintiff does not know how she acquired the property. The Plaintiff at paragraph 3 of the plaint claims having purchased the suit property but PEX-3 & 4 indicates the Plaintiff having received the property as a gift. On cross-examination, she confirmed that she had no transfer forms ever signed by mzee Masudi. 60 That the scheme to hive out 1 acre from the deceased's land was well planned and it's obvious it involved the Plaintiff and Kwale Land Registry officials. A file was created at the Kwale Lands Registry to accommodate the Plaintiff's 1 acre and show that she had received the land from the Government as an allottee. 61 That when put to task in cross-examination, both the Plaintiff and the Land Registrar were unable to produce any Letter of Offer, Certificate of Acceptance or Discharge in the name of the Plaintiff. What is surprising is that the land registrar would produce a Certificate of Outright purchase in the name of the Plaintiff without any other document in the parcel file. 62 That the dispute herein is one touching on land and Section 3 (3) of the Law of Contract Act requires of contracting parties to reduce the Agreements into writing. Two documents were produced before court which did not meet the criteria of a valid agreement. The first document dated 20th February, 1991 was between parties who were not proprietors of the suit property nor the Plaintiff. 63 it is submitted the document was not a sale agreement. The second document dated 24th March, 1991 equally was not a sale agreement. In any event the document stipulated the Plaintiff would only get, if at all a plot upon the Deceased obtaining title documents. Unfortunately, by the time the Deceased passed on, he still had not acquired a title while the Plaintiff had been registered as the owner of Plot No. KWALE/DIANI/468 alleged to be a subdivision of Plot No. KWALE/DIANI/442. 64 it is submitted that the Plaintiff , confirmed not having paid any stamp duty to the piece of land. Stamp duty having not been paid on the alleged transfer; it means the transfer was fraudulent. For a transfer to be valid, an application for transfer and payment of Stamp Duty must be done and in the absence of this, the transfer is void ab-initio. 65 That under Section 26 of the Land Registration Act, fraud is not the only ground that can defeat a certificate of title. The provisions provide for other grounds including the acquisition of a certificate illegally and unprocedurally or through a corrupt scheme. The Plaintiff cannot be considered a bonafide purchaser for 1 acre as no evidence was produced to show that she had paid valuable consideration for the suit property. The Plaintiff in this case has failed to produce any documents granting her the property from the Settlement Fund Trustees and or completion documents. Stamp duty was never paid. Reliance was placed on ***Munyu Maina =Vs= Hiram Gathiha Maina*** *and* ***Wambui =Vs= Mwangi & 3 Others C.A 465/2019 (2021) KECA 144 (KLR).*** 66 It is submitted that the Deceased received the allotment in 1978 and died in 1997, 14th August. At the time of his death, he had not received his title to the property. In fact, the land on 30th July, 1992 had been registered to one JOSEPH GACHERU MUNGAI and this is on record. Evidence was produced showing the efforts the Deceased went through to try get his land recovered from GACHERU and registered to him. He passed on before this could be achieved. 67 That is now settled law that an allotment letter is incapable of conferring interest in land, being nothing more than an offer, awaiting the fulfilment of conditions, stipulated therein. That in the absence of any title registered in the name of the Deceased, the Plaintiff would not have acquired any title as the Deceased had no title to pass over. The letter of allotment held by the Deceased could not confer any proprietary rights to the Deceased neither could he pass over any rights to the Plaintiff. Counsel relied on ***Gladys Wanjiru Ngacha =Vs= Teresa Chepsaat & 4 Others HC Civil Case No. 182/1992 (2008) eKLR; Torino Enterprises Ltd =Vs=Attorney General (2023) Kesc 79 (KLR)*** 68 It is contended that due to the Deceased's illiteracy, the Plaintiff took advantage of him. The Defendant has produced pleadings from other courts where fraudsters had laid claim to the Deceased's land. The Defendant and DW-3 gave evidence on how the Deceased never sold land to the Plaintiff. At the time the Plaintiff alleges to have paid off the Deceased, he was sick in Tanzania. Counsel relied on the case of **Mary Ruguru Njoroge =Vs= John Samuel Gachuma Mbugua & 4 Others (2014) Eklr** **ANALYSIS AND DETERMINATION** 69 I have considered the pleadings filed by the parties herein, the testimonies of the witnesses and the documentary evidence placed before this court. I have also taken time to extensively read and consider the submissions filed on behalf of the parties herein as well as the applicable law. 70 The issues that fall for determination are 1. ***Whether the Plaintiff title number Kwale/Diani/468 was acquired lawfully*** 2. ***Whether the Plaintiffs are entitled to the reliefs sought in the plaint;*** 3. ***Whether the Counter Claim is time barred and if the answer is in the negative*** 4. ***Whether the Defendant is entitled to the reliefs sought in the counter-claim; and*** 5. ***Who is liable for the costs of the suit and the counter-claim?*** **Whether the Plaintiffs title number Kwale/Diani/468 is acquired lawfully** 71 The Plaintiff avers that in 1991 she was approached by the Defendant through PW3 for money where she gave her Kshs. 2,000 on the deceased request on agreement that when the deceased (Masudi Juma Mwarabaya) returns from Tanzania he would sell her one acre of his land parcel number Kwale/Diani/442. She testified that she advanced the said money and the Defendant signed a purchase price acknowledgement note (PEX-2) dated 20th February, 1991. She further stated that when Mzee Masudi Mwarabaya came back from Tanzania, they met agreed and she added him Kshs. 13,000 making a total of Kshs. 15,000/- and a sale agreement was signed (PEX-1) on 24/3/191. 72 The standard of proof in civil cases in this jurisdiction was explained in the case of **M’Bita Ntiro v Mbae Mwirichia & another [2018] eKLR** where the court stated thus *“[…]* ***Obviously, in civil cases, the onus is on the plaintiff or any other claimant to prove the position he or she postulates on a balance of probabilities. This position is anchored in law.’*** 73 It is trite that he who alleges existence of particular fact must prove its existence, this is the burden of proof. The position is enunciated under the provisions of Section 107, 108 and 109 of the Evidence Act as follows: - ***107. Burden of proof*** ***(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.*** ***(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.*** ***108. Incidence of burden*** ***The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.*** ***109. Proof of particular fact*** ***The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.*** 74 Allegations of fraud have been raised against the Plaintiff in the Counterclaim and I must therefore highlight on the standard of proof in cases where allegations of fraud have been raised. 75 In the case of ***Vijay Morjaria Vs Nansingh Madhusing Darba & Ano (2000) eKLR*** the court stated thus; - ***“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 as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.*** 76 Arising from the above a fundamental principle of fraud is that the same must be specifically pleaded and proved. Fraud is also quasi criminal and therefore its standard of proof is slightly higher than that of a balance of probabilities but not beyond reasonable doubt – see the Court of Appeal decision *in* ***Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) vs Stephen Njoroge Macharia [2020] eKLR,*** 77 The Defendant disputes that her father Masudi Mwarabaya sold his land to the Plaintiff. She claims that as at the time of the alleged signing of the sale agreement on 24th March, 1991, her father was in Tanzania. She however confirmed that she received Kshs. 2,000 from the Plaintiff, on understanding that once her father returned, they would agree on the sale of land. This is confirmed by DW3 who stated that he is aware that Kshs. 2,000 was given to the Defendant and also Kshs. 13,000 was given to the Defendant whereat the defendant handed over the money to him to send to her father in Tanzania who had been his friend for a long time. 78 DW2 and DW3 when testifying, maintained that by 24th March, 1991 when it is alleged that the Masudi Mwarabaya signed the sale agreement he was still in Tanzania. DW2 testified that she is the one who provided a copy of Masudi identification card. It noteworthy that DW2 admitted to have received the money but when Masudi returned, the Plaintiff was summoned to discuss the issue of purchase but she never obliged. DW2 also admitted she never returned the money received to the plaintiff. Further DW3 testified that Masudi was very sick he could not have sold his land. 79 The Plaintiff contends that since the Plaintiff has admitted that they received the money, and did not return it, it is enough proof that Mzee Masudi sold the land. They further submit that both DW2 and DW3 were not signatories to the sale agreement therefore they cannot allege that Masudi Mwarabaya did not sign the agreement. 80 The question that arises is whether Masudi Mwarabaya did sell a portion of the land parcel 442 to the plaintiff. The sale agreement has been impugned by the Defendant on the basis that the vendor did not execute the same since he was in Tanzania on the said date. DW3 testified on being shown the agreement dated 24/3/1991 and was categorical that the deceased was still in Tanzania then as he was the one who took the money to Tanzania a month later. DW2 stated her father stayed in Tanzania for a further 5 months. 81 DW2 and DW3 testified that it was agreed that the issue of land sale would be discussed once Masudi returned from Tanzania, that is also proved by the acknowledgement note dated 20th February, 1991. The Defendant has maintained that, that meeting was never held and that the Plaintiff was summoned on several occasions but did not show up. The Plaintiff has not produced evidence that indeed she met the deceased before the sale agreement was signed. It is not enough that the DW2 admitted that money was given and was not returned. 82 Additionally the Plaintiff (PW1) admitted on cross examination that the sale agreement dated 24/3/1991 was entered before the money was given. If that is the case, then the unanswered question is; when was the money received if not at the signing of the agreement? This bolsters the Defendant contention that the sale agreement was not signed by the deceased Masudi Mwarabaya. 83 This court is not persuaded that the deceased signed the agreement dated 24/03/1991. 84 Assuming that the agreement dated 24th March, 1991 was signed by the deceased and assuming it was oral and which enjoys the exemption by dint of section 3(7) of the Law of contract Act and in view of the clear admission by DW2 that money was received and never returned and that a sale was to be negotiated upon her fathers return as evidenced by her own acknowledgement dated 20/2/ 1991 the court must then consider the legality of the title registered in the name of the plaintiff. 85 The Plaintiff produced in evidence a copy of the title deed in respect of parcel Kwale/ Diani/468 registered in the name of Ntembe Saidi Makoti issued on 22/04/1994. The existence of this parcel file was confirmed by DW3 Mr. Mokaya and the attendant Green Card he produced. 86 The above title was issued under the Registered Land Act (now repealed). The effect of such registration is expressed in the following provisions of the Land Registration Act; - 87 Section 24 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.*** 88 While section 25 provides ***(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—*** ***(a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and*** ***(b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.*** ***(2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.*** **89** Section 26 (1) 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.*** 90 The legality of the Plaintiff title has been put into question by the defendant on the following grounds; - a) Forging a purported transfer with intention to procure herself to be registered as the owner of a portion of the Plaintiff’s property, while she knew very well that there had been no sale nor gift. b) Procuring the Land Registrar to create records to accommodate the forged purported transfer by gift and a new registration of the suit property being KWALE/DIANI/468. c) Presenting the forged transfer by way of gift to the Kwale District Land Registrar and procuring herself to be registered and be issued with a title deed knowing too well that her actions were fraudulent. d) Misrepresenting that she was the legitimate owner of KWALE/DIANI/468 and the title she was holding was genuine facts she knew were not true. e) Knowingly and with intent to defraud sub-dividing the suit property into two portions. 91 It behoved the plaintiff therefore to defend the root of her title and demonstrate she was not involved in the fraud or that she followed the due process in acquiring the said title deed. 92 In the case of **Ngachulot v Sondang (Environment & Land Case 26 of 2023) [2025] KEELC 4330 (KLR) (9 June 2025) (Judgment)** the court held thus; - *“[…]* ***I think I have said enough that the title held by the plaintiff had come under attack by the defendant both through the statement of defence and the counterclaim, followed by the evidence in support of DW1. The evidential burden was, therefore, upon the plaintiff to show that his title deed and the process leading to the acquisition was regular, formal, and procedural”****.* 93 In **Binns & another v Baya & 3 others (Environment and Land Case 33 of 2014) [2024] KEELC 542 (KLR) (5 February 2024) (Judgment)** it was held that; - *“****It is important to note that the root of a title is very key in establishing the real owner of a suit property where there are several claims to the same property”*** 94 In the case of ***Munyu Maina v Hiram Gathiha Maina [2013] eKLR****,* the Court of Appeal held that once the root of a title is challenged, the registered proprietor must go beyond the instrument of title and demonstrate the legality of its acquisition. 95 Together with a copy of the title for parcel number Kwale/Diani/468 issued on 22nd April, 1994, PW1 produced Application for Consent of the Land Control Board dated 1st March 1991 and Letter of Consent of the Land Control Board dated 13th March 1991. 96 The court perused the above documents keenly and also drew guidance from normal conveyance practice where ordinarily the sale agreement, transfer will always predate the application and consent of the LCB. It would appear that the said application was done 23 days before the alleged signing of the sale agreement and the letter of consent was issued 11 days before the signing of the impugned agreement. If the application for consent was made before the terms of the sale were agreed upon including the purchase price and acreage, it is not clear how the applicant knew the value to indicate and the acreage of the land being sold. 97 Assuming that plot 468 was a direct allocation from SFT, it does not make sense why PW1 would require a consent to transfer one (1) acre from plot 442, in view of the letter of consent produced herein. Clearly, she would not require LCB consent. The green card for plot number 468 was opened in 1992 and was first registered in the name of SFT who is alleged to have transferred the same to the Plaintiff and a title deed issued to her. No evidence was adduced that the plaintiff complied with the conditions of the allotment letter, no acceptance of the offer, no receipt for payment for transfer or even discharge of charge and the transfer forms. 98 Back to the assumption that the agreement dated 24th March, 1991 was signed by the deceased. The last clause of the agreement reads, verbatim*, “****Sehemu hiyo itatolewa mara tu title deed itakapo tolewa****”* meaning the portion would be hived off once Masudi got his title to his parcel number 442. The green card for parcel 442 was opened on 10th March, 1992 and a land title issued on 11th October, 2006. This is 12 years after the Plaintiff received her title deed. If the agreement is genuine then that would be in itself contrary to the agreement. 99 The Plaintiff alleges that she bought her land from Masudi Mwarabaya at Kshs. 15,000, however, she has produced a copy of a letter of consent that gives the value as Kshs.25,000/-. It is further indicated that the transfer was a gift and not purchase. Which position should this court believe? A gift or purchase? The Plaintiff explained that when they went for the consent, they were informed that it should be indicated as a gift since it was a settlement scheme and the deceased had no title. This is a misrepresentation in my view involving the plaintiff and the LCB officials. 100 PW1 further testified that; she was informed by the Land Control Board that her parcel number would be 468 after subdivision of plot number 442. PW3 the Land Registrar Kwale when cross examined pointed that a subdivision can only be done on a registered land. Plot number Kwale/Diani/442 had not been registered by 13/3/1991 when the consent was granted neither had it been registered as at the time the sale agreement was allegedly entered between the deceased and the Plaintiff. It therefore suffices to say that plot No. 468 is a result of subdivision of a non-existent parcel of land. 101 Through her submissions, the plaintiff has now changed tune, she claims that she obtained the land through direct allotment from the Settlement Fund Trust as averred by the Kwale land registrar during his testimony. Moreover DW1 the Land Adjudication Officer Kwale, attested that the list of allottees only contains 446 parcels and the parcel No. 468 is non-existent. See DEX-8. 102 DW1 evidence was that there are no other documents in his possession in respect to parcel number, 468 apart from the certificate of outright purchase dated 20/01/1988 (DEX-4) in the name of Margaret Wuganga Mwangola. The parcel file contained no certificate of outright purchase in the name of the Plaintiff. Considering as at 20th January, 1988 the land had been directly allocated to Margaret Wuganga Mwangola, it is not clear to this court at what point the allocation changed and moved to the Plaintiff and how she became the registered proprietor thereof . PW3 evidence is that the parcel file for plot No. 468, contained no transfer forms from Margaret Mwangola to the Plaintiff, no receipt for payment of stamp duty and consent to transfer which he emphasised were very pertinent documents for purposes of a transfer. The Court is in agreement with this position for the reason that it is the transfer instrument that confers the interest from the transferor to the transferee. 103 All the foregoing point to the fact that the plaintiffs title is marred with misrepresentations and irregularities. It is clear from the entire evidence there was no gift of the property from the deceased to the Plaintiff. It has been urged that the plaintiff did not prove forgery or fraud against the plaintiff. A look at the provisions of section 26 (1)(b) does not require proof that the title holder knew or was involved in the fraud. This clarification was addressed in the case of ***Alice Chemutai Too v Nickson Kipkurui Korir & 2 others [2015] eKLR*** the Court expressed itself thus: - ***It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be party; or where it is procured illegally, unprocedurally, or through a corrupt scheme. Where one intends to impeach title on the basis that the title has been procured by fraud or misrepresentation, then he needs to prove that the title holder was party to the fraud or misrepresentation. However, where person intends to indict a title on the ground that the title has been acquired illegally, unprocedurally, or through a corrupt scheme, my view has been, and still remains, that it is not necessary for one to demonstrate that the title holder is guilty of any immoral conduct on his part. I had occasion to interpret the above provisions in the case of Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & Another, Eldoret ELC Case No 609 B of 2012 where I stated as follows: - “…it needs to be appreciated that for Section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent titleholder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally, or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions. “I stand by the above words and I am unable to put it better that I did in the said dictum.”*** 104 The Plaintiff relies on the provisions of Section 7, 24, 25 and 26 of the land registration Act to buttress that she is the absolute and legal registered owner of the suit property with indefeasible interest, title and rights vested on her by law. Reliance is also placed on Article 40 (1) of the Constitution of Kenya 2010. I have already discussed that a title is capable of being impeached for the reasons already cited fraud and misrepresentation or through a corrupt scheme and irregularities. 105 It is not enough for a person to dangle a title and claim indefeasibility, they must prove that the legal procedures were followed in acquiring the same and it was beyond impeachment. 106 In **Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment) Neutral citation: [2023] KESC 30 (KLR)** the Supreme Court of Kenya held thus “***As we have established above, before allocation of the unalienated Government Land, there ought to have been processes to be followed prior. Further, we cannot, on the basis of indefeasibility of title, sanction irregularities and illegalities in the allocation of public land. It is not enough for a party to state that they have a lease or title to the property. In the case of***[***Funzi Development Ltd & others v County Council of Kwale***](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/882)***, Mombasa Civil Appeal No 252 of 2005 [2014] eKLR the Court of Appeal, which decision this court affirmed, stated that:“...a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot on the basis of indefeasibility of title sanction an illegality or gives its seal of approval to an illegal or irregularly obtained title.”*** 107 Speaking to article 40 of the Constitution the Supreme Court of Kenya in the above decision held thus; - **[*111] Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution.’*** 108 The process leading to the acquisition of plot No. 468 by the Plaintiff is marred with illegality and procedural impropriety, any title obtained as a result of such illegality and impropriety cannot benefit from the protection of the law. This leads me to arrive at the inescapable conclusion, that the title number 468 is null and void and therefore ripe for cancellation. **Whether the Defendant’s counterclaim is time barred** 109 The Plaintiff submits and avers that the Defendant’s Counterclaim is time barred the cause of action having occurred in 1994 when she obtained her title. Further that assuming the cause of action arose in 2006 when the Defendant obtained a land title to the plot, the matter would still be time barred. The DW1 informed the court during her testimony, she was not aware that the Plaintiff owned the property until the year 2015 when the Plaintiff purported to bring surveyors for boundary identification and verification. 110 Section 7 of the Limitation of Action Act provides *‘****No action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.’*** 111 If the Defendant claims to have learnt of the Plaintiff claim to the land in 2015 as indicated in the letter dated 9th March, 2015 from the District Land Surveyor and the plaintiff testified in cross examination that the 1st beacon survey was in the year 2015, it then follows the Defendant is still within time to bring her claim to recover the land. 112 It is trite that where a suit is based on fraud then limitation does not run. Section 26 (a) and (c) of the Limitation of Actions provides; - (26) Where, in the case of an action for which a period of limitation is prescribed, either: a. the action is based upon the fraud of the Defendant or his agent, or of any person through whom he claims or his agent; or b. the right of action is concealed by the fraud of any such person as aforesaid; or c. the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it:” 113 Time starts running from the time the fraud is discovered – see the case of ***Justus Tureti Obara Vs. Koipeitai (2014) eKLR****.* 114 It is therefore the finding of this court that the Counterclaim is not time barred. **Whether the Defendant has proved her counterclaim on a balance of probabilities** 115 I think my discussions on the legality of the title and the finding that the title is marred with illegalities and misrepresentation will apply to whether the defendant has proved the allegations in the counterclaim. I will therefore not belabour the point save to conclude that the Defendant has proved her Counterclaim on a balance of probabilities. 116 It has been urged that the Plaintiff has failed to prove the procedure followed to have Plot No.442 revert back to her in the year 2006 in the absence of Letters of Administration on behalf of her late father's estate noting that she obtained the Letter's Administration in the year 2009. The copy of green card for plot No. 442 does not indicate the same. This is locus standi 117 Firstly, I think the Plaintiffs claim is for parcel number 468 which claim has failed. While it is true the property was initially allocated to the deceased father no title ever came out in the name of the deceased. The title came out in the name of the Defendant and therefore never became the free property of the deceased to necessitate the taking out of a grant in respect of the estate of her father with regard to this specific property. **Whether the Plaintiffs are entitled to the reliefs sought in the plaint;** 118 Having come to the conclusion that the plaintiff title was illegally and unprocedurally obtained it follows therefore that the plaintiff is not entitled to the orders sought in the plaint. **Whether the Defendant is entitled to the orders sought in the Counterclaim and or what orders commend in the circumstances of the case; -** 119 I have already made a finding that the Defendant counterclaim must succeed for the reasons already stated and I therefore see no reason to deny the reliefs sought in the counterclaim. However, I must quickly add that the prayers for general damages must be declined for the reason that counsel for the counter-claimer did not lead any proposals in this regard. 120 With regard to costs the same are at the discretion of the court and in view of the circumstances of the case each party shall bear its own costs of this litigation. 121 Judgement is therefore entered for the Plaintiff in the Counterclaim as against the Defendant in the Counterclaim in the following terms;- 1. ***The Plaintiff Ntembe Saidi Makoti has failed to prove her case on a balance of probabilities and the suit is hereby dismissed with no orders as to costs.*** 2. ***A declaration be and is hereby issued that the Plaintiff Ntembe Saidi Makoti obtained registration of KWALE/DIANI/468 illegally and unprocedurally and the same is null and void*** 3. ***An order be and is hereby issued recalling to this Court for purposes of cancellation the original title No. Kwale/Diani/468*** 4. ***An order be and is hereby issued directing the Land Registrar, Kwale County to cancel the registration and title KWALE/DIANI/468 issued to the Plaintiff Ntembe Saidi Makoti and a new title be reissued in the name of Mwanaisha Masudi Ntumu.*** 5. ***A permanent injunction be and is hereby issued restraining the Plaintiff Ntembe Saidi Makoti by herself or her agents or servants from selling, alienating, charging, fencing, constructing or in any way interfering with the parcel KWALE/DIANI/468.*** 6. ***Each party shall bear their own costs of the main suit and counterclaim*** Judgement dated signed and delivered this 22nd Day of May 2026 **HON. LADY JUSTICE A.E DENA** **JUDGE** Judgement delivered virtually through Microsoft teams Video Conferencing Platform; - **In the presence of:** Ms. Jadi for the Plaintiff No appearance for the Defendant Mr. Daniel Disii– Court Assistant.