https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3686

Ndung’u (Suing as Legal Representative of Deceased Cipriano Ndung’u John Gatune alias Cipriano Ndung’u Gatune) v Chief Land Registrar & another (Sued as the Legal Representative of Samson Waweru Gitau-Deceased) (Land Case E001 of 2023) [2026] KEELC 3686 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3686 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Land Case E001 of 2023 MN Gicheru, J June 16, 2026 Between Paul Maina Ndung’U Plaintiff Suing as Legal Representative of Deceased Cipriano Ndung’u John Gatune alias Cipriano Ndung’u Gatune and Chief Land Registrar 1st Respondent Esther Njeri Waweru 2nd Respondent Sued as the Legal Representative of Samson Waweru Gitau-Deceased Ruling 1.The Plaintiff seeks the following reliefs against the two Defendants both jointly and severally as per the amended plaint dated 28-8-2023.a.A declaration that the acts of the Defendants in respect to the suit property Loc.17/Kamahuha/644 was fraudulent, unlawful and unprocedural and the 1st Defendant be directed to cancel all entries in the register pertaining to the suit land as from 2008 and insert the name of Cipriano Ndung’u Gatune as the proprietor.b.A declaration that the title deed of the suit land issued in the name of Samson Waweru Gitau on 7-11-2008 and the insertion of the name of Samson Gitau Waweru in the green card records was illegal, fraudulent and invalid and hence the same should be cancelled and the Court do declare Cipriano Ndungu Gatune as the legitimate owner of the suit land property and confer him absolute proprietorship.c.An order directing the 1st Defendant to cancel the title deed of the suit land and rectify the green card records by cancelling the names of Samson Waweru Gitau and Samson Gitau Waweru respectively and issue the title deed in the name of the deceased Cipiriano Ndung’u John Gatune forthwith.d.An order of permanent injunction restraining the Defendants by themselves, their agents or any other person claiming through them from alienating, selling, trespassing, wasting or claiming possession or in any other way interfering with the Plaintiff’s peaceful possession/occupation of the suit land.e.Costs and interest of the suit to be borne by the Defendants.f.Any other remedy that this Court deems fit and just to Grant. 2.The Plaintiff’s case is as follows. Firstly, he is a son of the late Cipiriano Ndung’u John Gatune also known as Cipiriano Ndung’u Gatune and brings this suit the legal representative of the estate of his father. Secondly, he is in occupation of the suit land, Loc.17/Kamahuha/644 which measures 0.89Ha. The land was purchased by the Plaintiff’s father from Samson Waweru. Upon purchase, the family of Cipriano took possession and started cultivating the suit land. Currently, the family of the Plaintiff has permanent buildings on the suit land. The late Cipriano is also buried on the suit land. Thirdly, Samson Gitau Waweru got registered as the owner of the suit land fraudulently. This was in the year 2008 after the death of Cipriano in the year 2005. The registration was through change of name. Samson Gitau could not own land in the area where the suit land is situated because he is from Ndorome which is far away from Kamahuha. He attended the burial of Cipriano Ndung’u on the suit land and he did not complain or claim the land at the time. It is only after the death of Cipriano that Samson Gitau appeared and claimed the land. Fourthly, the Plaintiff alleges several particulars of fraud on the part of the first and second Defendants. These particulars include the following.a.Failure to exercise the diligence while registering the name Samson Gitau Waweru in the place Samson Waweru.b.Processing a title deed without ascertaining the proper identities of the parties.c.Pitting the Plaintiff against the Defendants while aware of the irregular and unlawful transfer of the suit land.d.The 1st Defendant presenting himself as the rightful owner of the suit land when he was not entitled to it.e.Presenting forged documents to obtain registration for the suit land.f.Failure to disclose to the land registry that the suit land was occupied by the family of Cipriano.g.Illegally acquiring the title deed for the suit land.Fifthly, Cipriano first bought L.R. No. 492 from Mathew Gachere Kamau. The purchase price was Kshs. 400/=. The witness was John Gatune who was Cipriano’s father. After purchase Cipriano fenced L.R. No. 492. The suit land No. 644 was owned by Samson Waweru. It is adjacent to L.R. No. 492. Samson Waweru was from the area but he was unable to utilize it. He asked Mathew Gachere if he could get a buyer for the land. Gachere introduced Samson Waweru to Cipriano. It is then that Cipriano bought the suit land from Samson Waweru. Again John Gatune, Cipriano’s father witnessed the sale agreement between his son and Samson Waweru. Sixthly, Samson Waweru Gitau is not the owner of the suit land. He used to work at Murang’a District Hospital where he dressed wounds. Nobody has ever seen him on the land. He is not to be confused with Samson Waweru from Muthithi who sold the suit land to Cipriano. They are two different individuals. Finally, the family of Cipriano filed case No. 179 of 2017 at Murang’a ELC against both Samson Waweru and Samson Gitau Waweru seeking to be declared the owners of the suit land through adverse possession. The claim failed because the Court found that one cannot lay a claim for adverse possession and then allege that the title of the registered owner is unlawfully obtained. 3.In support of the case, the Plaintiff filed the following evidence.i.Witness statements by the Plaintiff, Peter Mburu Ndungu, Basirio Kamande Gitau, James Njogu Muchugia and Fredrick Muiruri.ii.Copy of title deed for the suit land.iii.Copy of registrar for the suit land.iv.Copy of certificate of official search for the suit land.v.Copy of judgment in ELC 179 of 2017.vi.Copies of photographs showing building on the suit land and Cipriano’s grave.vii.Other relevant material. 4.In her written statement dated 16-10-2023, the second Defendant avers as follows. One, her deceased husband, Waweru Gitau did not obtain the suit land by fraud. Two, there is no evidence that the Plaintiff or his father purchased the suit land as alleged in the Plaint. Three, the green card is clear as to who owns the suit land. Four, no evidence of fraud has been adduced by the Plaintiff. Five, this suit is malicious, vexatious and an abuse of the court process because a similar suit over the suit land, ELC 179 of 2017 was heard and dismissed by this Court. Finally, the suit is time barred under the Limitation of Actions Act since the alleged sale took place in 1968, 55 years ago and this delay is not explained.For the above and other reasons, the 1st Defendant prays for the dismissal of the Plaintiff’s suit. 5.In support of her defence, the second Defendant filed the following evidence.a.Witness Statement by the 2nd Defendant.b.Copy of judgment in ELC 179 of 2017.c.Copy of amended originating summons dated 9-12-2008.d.Copy of register for the suit land.e.Witness statement by Fredrick Muiruri Manyeki. 6.The 1st Defendant filed a written statement of defence dated 17-9-2024 in which the Plaintiff’s claim is generally denied. Secondly, in 1961, the suit land was registered in the name of Samson Waweru. Thirdly on 7-11-2008, an entry was made in the register in the name of Samson Waweru Gitau due to rectification and a title deed issued. Fourthly, the 1st Defendant adds that the registration of the suit property in favour of Samson Waweru Gitau was based on documents presented at the land registry. Finally, the 1st Defendant believed that the documents presented were all genuine. It prays that the Plaintiff’s suit be dismissed. 7.In support of its defence, the 1st Defendant filed the following evidence.(i)Witness Statement by E.M. Mputhia, Land Registrar.(ii)Copies of register for L.R. No. Loc.17/Kamahuha/644, ID for Samson Waweru Gitau, receipt Nos. 1984985 and 1008635, letters by Chief Kamahuha dated 1-11-2007 and 4-9-2008, letter of consent dated 25-9-2008, copy of affidavit for rectification of name dated 2-9-2008 and other relevant documents. 8.At the trial on 8-6-2025, 1-12-2025 and 24-2-2026 a total of six (6) witness testified. They included the Plaintiff and his three (3) witnesses, the Land Registrar and the 2nd Defendant. The evidence adduced by the Six(6) witnesses is in similar terms to the pleadings and evidence filed by the parties. None of the witnesses deviated from what is pleaded by the party calling him/or her as a witness. 9.The Counsel for the 2nd Defendant filed written submissions dated 16-3-2026 while the Plaintiff’s counsel’s submissions are dated 7-5-2026.Only the Plaintiff’s counsel identified issues for determination. The 2nd Defendant’s counsel did not identify any issues.The issues identified are as follows.i.Who is in occupation of the suit land.ii.Whether the suit is res judicata.iii.Whether the registration of the 2nd Defendant as the owner of the suit land is fraudulent.iv.Whether the names Samson Waweru Gitau and Samson Gitau Waweru refer to one and the same person.v.Whether the Plaintiff is entitled to the orders sought.vi.whether the Limitation of Actions Act applies in this case. 10.I have carefully considered all the evidence adduced in this case by both sides including the witness statements, the documents and the testimony at the trial. I have also considered the written submissions, the law cited and the issues raised therein. I find that the identified issues will resolve the dispute. I make the following findings on the issues identified. 11.Regarding the first issue of occupation, it is the Plaintiff’s family in occupation and this occupation dates back to the year 1968. I believe the evidence of the three witnesses about occupation and this evidence is not disputed by the Defendants. I find that it is the Plaintiff’s family in occupation of the suit land. 12.It is my finding that this suit is not res judicata because in Murang’a ELC 179 of 2017, the issue in contention was whether the Plaintiffs Virginia Njeri Ndung’u and Peter Mburu Ndungu were entitled to the suit land through adverse possession. The Court held as follows in paragraph 22 of the Judgment dated 11-3-2021,in part.“The Plaintiff has averred that the 2nd Defendant by fraud registered himself as owner by passing himself as the 1st Defendant through a change of name. Fraud is a serious charge and it must be proved to a standard higher than in Civil Cases…Ordinarily, one who seeks to establish title by adverse possession must acknowledge the title of the paper owner. Where a claimant in adverse possession challenges the title of the paper owner, the challenge destroys the claim of adverse possession. Both cannot co-exist in one claim. It is either one or the other but not both.”In this suit, the claim by the Plaintiff is not based on adverse possession. The doctrine of res judicata under Section 7 of the Civil Procedure Act does not apply at all. 13.As for the third issue, I find that the registration of the husband of the second Defendant Samson Waweru Gitau as the owner of the suit land is fraudulent for the following reasons. One, the late Samson Waweru Gitau never claimed the suit land in the lifetime of Cipriano Ndung’u Gatune. He only surfaced after the death of Cipriano Ndung’u. If he was the owner of the suit land, he would not have let Cipriano occupy it for 40 years from 1968-2008 before claiming ownership. Why did he let Cipriano occupy the land, build on it and be buried on it without raising any claim thereto. I find that it is because he did not own the land. Two, unlike the family of Cipriano which explains how it acquired the land through purchase, the 2nd Defendant’s husband has no such explanation. Nobody can explain how he acquired the suit land. He neither purchased nor inherited the land. Three, there is evidence from James Njogu Muchugia that there were two people named Samson Waweru. One of them sold the suit land to the late Cipriano and the other, the registered owner of the suit land worked at Murang’a District Hospital as a wounds dresser. He was a student of Cipriano and a classmate of the witness, PW 3. He is the one who became registered as the owner of the suit land through change of name. The name of the registered owner change from Samson Waweru to Samson Gitau Waweru. This evidence is uncontroverted by any evidence from the defence. To acquire land by change of name is to acquire land fraudulently. The second Defendant’s husband’s failure to acquire the suit land through purchase, inheritance, gift, allocation by state, exchange or any other lawful means smacks of fraud. This is especially so because it is unexplained. 14.The above finding covers the fourth issue. The names Samson Waweru and Samson Gitau Waweru refer to two(2) different people. The former is from Muthithi and the latter from Kamahuha. The former is the one who sold the suit land to Cipriano and the latter fraudulently got registered as the owner of the suit land through change of name.Further to the above, I find that fraud against Samson Gitau Waweru and those claiming through him has been proved to the Standard set in the case of Ndolo vs. Ndolo Civil Appeal No. 128 of 1995, whose ratio decidendi is that because fraud is a serious accusation, the standard of proof is higher than the ordinary civil standard of a mere balance of probabilities. 15.It is my finding that the Plaintiff and his family are not seeking to recover land within the meaning of Section 7 of the Limitation of Actions Act which provides as follows.“An 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.”In this case, the Plaintiff and his family are not seeking to recover the suit land. They have had it since 1968. What they seek is registration only. Section 7 of the Limitation Act does not apply to this case. 16.Finally on the fifth issue, I find that the Plaintiff is entitled to the orders sought. I enter judgement as prayed for in the amended plaint dated 28-8-2023 in terms of prayers a, b, c, d and e.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 16TH DAY OF JUNE, 2026.M.N. GICHERU JUDGE.Delivered online in the presence of; -Court Assistants– Jackline and AntonyPlaintiff’s Counsel – Mr Momanyi1st Defendant’s Counsel - Mr Mwambonu2nd Defendant’s Counsel – Mr Karuga