https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3048

Njenga v Ruto (Environment and Land Appeal E023 of 2023) [2026] KEELC 3048 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEELC 3048 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Appeal E023 of 2023 JA Mogeni, J May 20, 2026 Between Peter Kamau Njenga Appellant and Dr Alice Chepkemoi Ruto Respondent (Being an Appeal against the Judgment and Decree of Hon. J.A. Agonda (PM) in Ruiru ELC Case No. E67 of 2022) Judgment 1.This is an Appeal against the Judgment and Decree of Hon. J.A Agonda (PM) dated 14.03.2023 by PM ELC No. E67 of 2022. By the said Judgment, the trial Court found for the Defendant and stated as follows:1.A declaration that the Plaintiff is the absolute proprietor of the suit property L.R. No. Ruiru/Ruiru East Block 3/1924.2.A permanent injunction restraining the Defendant, whether by himself or his servant, agent, and/or otherwise howsoever, from continuing with the unlawful interference and trespassing on the suit property L.R. No. Ruiru/Ruiru East Block 3/1924 by digging trenches therein.3.A permanent injunction restraining the Defendant from interfering with the Plaintiff's quiet use, occupation, title, and quiet possession of the suit property L.R. No. Ruiru/Ruiru East Block 3/1924.4.An order issued lifting the caution placed on L.R. No. Ruiru/Ruiru East Block 3/1924 by the Defendant on 9th September 2021.5.General damages for trespass awarded at Kshs. 100,000/=.6.The costs of the suit and counterclaim awarded to the Plaintiff together with interest thereon. 2.From the record, vide a Plaint dated 19/04/2022 the Respondent sued the Appellant before the trial Court seeking the following reliefs:1.A permanent injunction restraining the Defendant whether by himself or his servant or agent and/or otherwise howsoever from continuing with the unlawful interference and trespassing on the suit property Land Reference No. RUIRU/RUIRU EAST BLOCK 3/1924 moreso digging of trenches on the suit property.2.A permanent injunction restraining the Defendant from interfering with the Plaintiff’s quiet use, occupation title to and quiet possession of the suit property known as Land Reference No. RUIRU/RUIRU EAST BLOCK 3/1924.3.An Order lifting the caution lodged on known as Land Reference No. RUIRU/RUIRU EAST BLOCK 3/1924 by the Defendant on 9th September, 2021.4.General damages for trespass of Land Reference No. RUIRU/RUIRU EAST BLOCK 3/1924.5.Costs of this suit together with interest thereon at such rate for such period of time as tis Honorable Court may deem fit to grant. 3.The Appellant who was the Defendant in the lower Court denied all the averments in the Plaint and instead through his Defence and Counter-claim dated 28/09/2021 pleaded and prayed for Judgment against the Respondent who was the Plaintiff and Defendant in the Counter claim for:1)That the Plaintiff’s suit be dismissed in its entirety. 6)That the Plaintiff’s title over as Land Reference No. RUIRU/RUIRU EAST BLOCK 3/1924 be cancelled. 7)That an order be made transferring the said parcel of land to the Defendants. 8)Costs of both the suit and Counter-claim. 4.The material on record shows that upon a full hearing of the suit at which the parties testified on their behalf, the trial Court believed the evidence of the Respondent. And held that the Appellant entered into a Sale Agreement knowing too well that the purported seller had no title deed for the suit property but went ahead to purchase the suit land and never carried out due diligence to ascertain the registered owner of the suit property. 5.The Court found that the Defendant who is the Appellant was mischievous in claiming to be the proprietor of the suit land which he alleged to have been sold to him by Mwalimu Sukari Investment Company and yet this action was as a result of fraudulent activities to which the Defendant was a party. 6.It was the Court’s finding that it was out of fraud that the Defendant managed to get possession of the suit land when infact the land belonged to the Plaintiff. 7.For the Court, the Plaintiff claimed ownership and she proved that she had purchased the suit property in 2007 at a consideration of Kesh 250,000 as per Sale Agreement dated 21/09/2007 and she produced PExh 1 and PExh 2 as the receipt and title to that effect. She was issued with her title deed on 3/10/2007. Following which she has been in peaceful occupation and possession until January 2022 when according to the finding of the Magistrate the Defendant encroached on to her suit land without her prior knowledge and dug trenches and placed a notice for sale. 8.On the part of the Defendant/Appellant it was his evidence in the Subordinate Court that he filed a Counter-claim praying to be declared the bona fide owner of the suit property. According to him he purchased the suit property in 1983 and that he never obtained a title deed upto 2022. Further that he did not have Sale Agreement between him and Mwalimu Sukari Company Limited. He also testified that the receipt No. 699 DExh 1 which was from the land selling Company has not indicated the suit property on its record. 9.He produced an abstract of the register DExh 3 which however did not emanate from Mwalimu Sukari Investment and not from the Ministry of Lands. When cross-examined further he told the Court that the undated letter DExh 4 which he signed in 1993 was from Mwalimu Sukari Investment although it was not addressed to him and does not indicate the plot number since according to him the transfer forms had been lost. He also told the Court that the supporting documents he had produced in Court did not indicate plot No. 1924. 10.Being aggrieved by the said Judgment, the Appellant filed a Memorandum of Appeal dated 29/03/2023 raising the following 16 Grounds of Appeal:1.The learned Chief Magistrate erred in law and in fact by allowing the Respondent’s claim and in dismissing the Appellant’s Counterclaim.2.The learned Magistrate erred in law and in fact by failing to discharge the legal duty placed on trial Court of the first instance3.The learned Magistrate erred in law and fact by failing to properly appraise and consider the entire evidence presented by both parties and thus came to a wrong conclusion on law and fact in respect of ownership of the property known as Ruiru/Ruiru East Block 3/1924 (hereinafter “the property”)4.The learned Magistrate erred in law and in fact by failing to consider that the Respondent did not produce Land Control Board Consent as required by the Land Control Act nor did she produce Transfer of Land to support the transfer of the property to herself and as such her title was null and void ab initio for lack of land control board consent5.The learned Magistrate erred in law and fact by failing to appreciate that the Appellant who was a teacher and a member of Mwalimu Investment Company Limited, paid for the land, balloted for it and was allocated the property and as such the property was therefore not available for allocation or transfer to any other person and in particular to the Respondent who was not a teacher by profession nor a member of Mwalimu Investment Company Limited.6.The learned Magistrate erred in law and fact by failing to consider that the Sale Agreement between Mwalimu Sukari Company Limited and the Respondent had significant gaps was signed by a stranger (B. Machana on behalf of the purported vendor) and was not a proper document that could convey any legal interest in the property.7.The learned Magistrate erred in law and fact by holding that the Respondent’s root title was traceable but failed to appreciate that the Respondent did not produce any transfer of land, stamp duty payment receipts booking form or land control board consent to support the transfer.8.The learned Magistrate erred in law and fact by holding that the Respondent’s root title was traceable but failed to appreciate that the Respondent did not produce any transfer of land, stamp duty, payment receipts, booking form or land control board consent to support the transfer.9.The learned Magistrate erred in law and fact by holding that the Respondent was bona fide owner of the property in the absence of essential documents to support the title deed and failed to appreciate that the Respondent failed to go beyond the title deed and prove the legality of how she acquired the property.10.The learned Magistrate erred in law and fact by holding that Mwalimu Sukari Company Limited was the owner of the property or that it sold the property or that it sold the property to the Appellant and the Respondent without any evidence being led to support his assertion.11.The learned Magistrate erred in law and fact by dismissing the whole of the Appellant’s evidence and by casting aspersions on the genuineness of the Appellant’s documents and attacking his character and thus short changed him, dismissed him offhand, held that his documents were fraudulent without good cause and denied him justice while there was overwhelming evidence that he had acquired the property in 1983, many years before the alleged sale of the property of the Respondent in 2007.12.The learned Magistrate erred in law and fact by introducing strangers to the suit (Brilliant Ventures and Shamba land) while setting out the issues for determination in the suit.13.The learned Magistrate erred in law and fact by coming to the outrageous decision that on the one hand the Appellant had purchased the property but on the other hand holding that the entity that sold the property to the Appellant did not have a good title to the property thus introducing contradictions in the Judgment.14.The learned Magistrate erred in law and fact by granting an order for rectification in the body of the Judgment which order had not been sought by the Respondent.15.The learned Magistrate erred in law and in fact by finding that the Appellant’s Counter-claim had not been specifically proved.16.The learned Magistrate erred in law and in fact by failing to consider all the facts in the case and failed to weigh all the evidence adduced by the Appellant in support of his case and thus arrived at a wrong and erroneous Judgment 11.As a result, the Appellant sought the following reliefs in the Appeal:1)The Appellant's Appeal be allowed. 2)The Judgment delivered on 14/03/2023 by Hon. J.A Agonda be set aside in its entirety. 3)The Court do enter Judgment in favour of the Appellant against the Respondent as prayed in the Appellant’s Counter-claim filed in the Magistrate’s Court. 4)The costs of the Appeal be awarded to the Appellant. 12.Legally, this Court as a first Appellate Court has a duty to analyze, reconsider and re-evaluate the entire evidence on record so as to satisfy itself as to the correctness or otherwise of the decision of the trial Court. The principles which guide a first Appellate Court were summarized in the case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 at page126 as follows:“… Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression on the demeanor of a witness is inconsistent with the evidence in the case generally.” 13.In the case of Kapsiran Clan v Kasagur Clan [2018] eKLR Obwayo J summarized the applicable principles as follows:a.First, on first Appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;b.In reconsidering and re-evaluating the evidence, the first appellate Court must bear in mind and give due allowance to the fact that the trial Court had the advantage of seeing and hearing the witnesses testify before her; andc.It is not open to the first appellate Court to review the findings of a trial Court simply because it would have reached different results if it were hearing the matter for the first time. 14.When the Appeal was listed for directions, it was directed that it shall be canvassed through written submissions. The parties were consequently granted timelines within which to file and exchange their respective submissions. The record shows that the Appellant filed written submissions dated 18/04/2025 whereas the Respondent’s submissions were dated 16/01/2026. Written Submissions 15.The Appellant contends that the trial Court erred in law and fact by failing to recognize his prior and superior claim to the property, which he acquired in 1983 as a member of Mwalimu Investment Company Limited. He argues that as a teacher who balloted for and was duly allocated the land, the property was not available for subsequent transfer to the Respondent in 2007. Citing Selle & Another v Associated Motor Boat Limited & Others (1968) EA 123, the Appellant invites the Court to re-evaluate the evidence, asserting that the Respondent was ineligible to purchase the land as she was not a teacher and failed to follow the internal allocation procedures established for the Mwalimu Farm Project. 16.Furthermore, the Appellant submits that the Respondent’s title is fundamentally defective and void ab initio. He points out significant legal gaps, including the lack of Land Control Board consent required under Section 6 of the Land Control Act, the absence of a valid Transfer of Land document under Sections 37 and 43 of the Land Registration Act, and a failure to prove payment of stamp duty. Relying on Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR), the Appellant argues that the Respondent cannot merely "dangle" a title deed to prove ownership when the root of that title is challenged by evidence of a fraudulent or irregular acquisition process. 17.Finally, the Appellant maintains that the trial Magistrate improperly shifted the burden of proof onto him and ignored the inconsistencies in the Respondent's case, such as a Sale Agreement signed by a stranger and conflicting signature. He asserts that the doctrine of a bona fide purchaser for value cannot protect the Respondent because she failed to conduct proper due diligence, which would have revealed his prior interest. Referencing the Supreme Court’s decision in Dina Management Ltd v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), the Appellant concludes that the Court must look at the legality of the entire acquisition process, which in this instance, was marred by procedural illegalities that vitiate the Respondent's claim. Respondent’s Submissions 18.The Respondent maintains that the trial Court was correct in declaring her the absolute owner of the property under Sections 24, 25, and 26 of the Land Registration Act, No. 3 of 2012. She asserts that her title is indefeasible, having acquired it through a legitimate purchase from Mwalimu Sukari Company Limited in 2007 for Kshs 250,000. To support this, she produced a valid Sale Agreement, a payment receipt, and a duly registered title deed issued on 3/10/2007. Relying on the Supreme Court's decision in Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 39 (KLR), she argues that a Certificate of Title serves as prima facie evidence of ownership that can only be challenged by strictly proven fraud or illegality thresholds, she claims the Appellant failed to meet. 19.A central pillar of the Respondent’s Defense is that the Appellant’s claim is barred by the Statute of Limitations. Under Section 7 of the Limitation of Actions Act (Cap 22), any action to recover land must be brought within twelve (12) years of the right accruing. The Respondent points out that while the Appellant claims to have bought the land in 1983, he only lodged his Counterclaim in 2022 fifteen (15) years after the Respondent took possession and nearly thirty (30) years after his alleged right of action would have expired. Consequently, she argues the trial Magistrate correctly found that the Court was divested of jurisdiction to entertain the Appellant's stale claim, as affirmed in Edward Moonge Lengusuranga v James Laniayura & Another [2019] eKLR. 20.Finally, the Respondent submits that the Appellant failed to discharge the burden of proof required by Sections 107 and 108 of the Evidence Act (Cap 80). She notes that the Appellant’s documents, such as a ballot for Plot No. 1190, do not actually correspond to the suit property, Block 3/1924, and that he admitted to having no Sale Agreement or title deed. Furthermore, the Respondent argues that the Appellant’s new complaints regarding Land Control Board consent and stamp duty are impermissible afterthoughts raised for the first time on Appeal, citing Kabogo v Gitau [2025] KECA 193 (KLR). She urges the Court to focus on the substance of the transaction over minor clerical irregularities, as established in Karanja v Maleli [1983] KLR 42, and uphold the original Judgment. Analysis and Determination 21.This is a first Appeal arising from the Judgment of the Subordinate Court, which fundamentally grappled with the claim of proprietorship to the suit property between a party holding a formal title deed and a party claiming a prior equitable interest through historical allocation. The Appellant seeks to overturn a decision of the trial Court which stripped him of possession and confirmed the Respondent as the absolute owner of the parcel known as Ruiru/Ruiru East Block 3/1924. 22.This Court, sitting as a first Appellate Court, is guided by the timeless principle in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, which mandates this Court sitting as an Appellate Court to re-evaluate the evidence and reach its own conclusions, while remaining cognizant of the fact that as a Judge in appellate position I did not have the advantage of seeing the witnesses' demeanor. 23.To resolve this dispute, the Court identifies the following five issues to be central to the determination:a.Whether the Respondent proved a valid and legal root of title to the suit property.b.Whether the Appellant proved a valid and enforceable interest in the suit property capable of overriding a registered title.c.Whether the trial Court properly appraised the evidence and the burden of proof.d.Whether the failure to produce a Land Control Board consent and secondary transfer documents renders a registered title void ab initio.e.Whether the trial Court erred in its assessment of the evidence and the awarding of damages for trespass. 24.The Appellant’s grievance is anchored on a first in time logic. He posits that having balloted for and purchased the land in 1983 from Mwalimu Sukari Investment Company, the property was not available for sale to the Respondent in 2007. He attacks the Respondent’s title as a shell lacking the necessary documentation of a Land Control Board consent and a formal transfer form. To him, the Magistrate was blinded by the glitter of a title deed while ignoring the historical reality of his 1983 acquisition. This position finds strong support in the Supreme Court’s landmark decision in Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), where the Court held:“The constitutional protection of the right to property under Article 40 is not an absolute right ... for a person to be entitled to the protection, the property must have been acquired legally. Therefore, a person who acquires land through an illegal process cannot seek the protection of the Court." 25.Conversely, the Respondent stands on the bedrock of indefeasibility of title. She presented a Sale Agreement from 2007, receipts of payment, and, most crucially, a Certificate of Title issued on 3/10/2007. Her position is that she has been in quiet possession for fifteen years until the Appellant emerged from the shadows of history to dig trenches on her land. She argues that the Appellant’s claims are nebulous, supported by documents that do not even reference the specific plot number in question. The Respondent rests her case on the sanctity of the title deed under Sections 24, 25, and 26 of the Land Registration Act. She claims to be an innocent purchaser for value. 26.The Appellant has argued like it was upheld in Arthi Highway Developers Limited v West End Butchery Limited & 6 Others (2015), the Court of Appeal stated that the Appellant was not a bona fide purchaser. It reasoned that the Appellant's documents of share transfer were marred with forgeries and never bound the Respondents in any way. These documents were subsequently used by fraudsters to sell the suit property to the Appellant who then sub-divided it into different parcels. If the Respondent's acquisition lacked these basic instruments of conveyance, her title, though dangled before the Court, remains a shell without a legal core. 27.However, the Respondent argues that, the Appellant’s evidence suffered from a fatal disconnect. He produced a ballot for Plot No. 1190, but the suit property is Block 3/1924. Thus, the Appellant failed to provide a nexus between the two. Under Section 107 of the Evidence Act, the burden of proof lay squarely on the Appellant to prove his Counterclaim. As the Court of Appeal stated in Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR):“When a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership... but the person challenging it must also show a superior right that is recognizable in law." 28.In the Counter-claim, the burden of proof shifted heavily to the Appellant once the Respondent produced her title. In Lawrence P. Mukiri Mungai, Attorney of Elizabeth Waguthi Gachiri v. Wycliffe Mwilaia & 14 Others [2018] eKLR, the Court of Appeal held:“A registered proprietor of land ... is entitled to all the rights and privileges belonging to an owner. The burden of proving that such registration was obtained through fraud or misrepresentation lies squarely on the person who alleges it." 29.Critically, the Appellant’s own evidence was his undoing. He admitted to having no Sale Agreement, and his receipts did not mention Plot 1924. In the case of Kitur v Dodhia & 4 Others (Environment & Land Case 65 of 2013) [2025] KEELC 416 (KLR), delivered on February 6, 2025. The Court emphasized that a validly issued title deed holds superiority over claims based merely on balloting or allotment by a land-buying company, especially when the claimants failed to secure legal registration for a prolonged period. 30.In conclusion and having re-evaluated the record with the eyes of a first Appellate Court, I am persuaded that Respondent proved she is the absolute proprietor. The Appellant failed to present clear and or convincing evidence that the title was obtained through fraud. A title deed is the end-all of land ownership in Kenya unless the process of its birth is proven to be a sham. 31.As a matter of fact, the Appellant’s claim of ownership from 1983 remained a floating interest that never landed on the registry. His failure to secure a title or even a specific Sale Agreement for Plot 1924 for nearly four decades is a fatal case of laches. He cannot now seek to cancel a title held by a party who has been in possession since 2007. 32.Furthermore, the Appellant failed to prove that Plot 1190 and Block 3/1924 are the same entity. Without this link, his claim of prior allocation remains speculative and cannot override a registered title. 33.Additionally, the Appellant’s claim is effectively smothered by the passage of time. Having failed to seek registration or challenge the Respondent’s occupation since 2007 until 2022, his claim is barred by Section 7 of the Limitation of Actions Act. 34.The lack of a physical Land Control Board consent in the trial record does not, by itself, invalidate a registered title. In the absence of evidence that the Land Registrar was bribed or misled, the presumption of regularity of official acts applies. In fact, none of the parties made any attempt to call the Land Registrar as a witness. 35.I also note that while the missing Land Control Board consent as stated by the Appellant, these issues were not specifically pleaded as fraud at the trial level. An Appellate Court is hesitant to invalidate a title based on afterthoughts not tested in cross-examination. 36.The Appellant’s act of digging trenches on land registered to another, without any Court order, constitutes an act of trespass since the Respondent holds the only valid registered title. The Respondent is therefore entitled to an award of trespass. 37.Accordingly, I make the following orders:i.The Appeal is hereby dismissed in its entirety for lack of merit.ii.The Judgment and Decree of the Subordinate Court dated 14/03/2023 is affirmed.iii.General Award for trespass of Kshs. 100,000/= is reasonable and proportionate to the psychological and physical interference with the Respondent’s quiet enjoyment.iv.Additionally, the Appellant shall pay the costs of this Appeal to the Respondent.Orders Accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 20TH DAY OF MAY, 2026..........................MOGENI JJUDGEIn the presence of:Mr. Mwaura for the AppellantMs. Gekoe holding brief for Mr. Ochieng for the RespondentMr. Melita - Court Assistant.........................MOGENI JJUDGE