https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3490

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CIVIL SUIT NO. E041 OF 2021** **BETWEEN** **RHINE FORWARDERS LIMITED …………………………..………..PLAINTIFF** **VERSUS** **JOSEPH WANJAU MWANGI ……………...………………...1ST DEFENDANT** **SHAR V. DHAYALAL …………………………...……………2ND DEFENDANT** **AND BY COUNTERCLAIM** **JOSEPH WANJAU MWANGI ……………...………………….1ST PLAINTIFF** **SHAR V. DHAYALAL ………………………...…………………2ND PLAINTIFF** **VERSUS** **RHINE FORWARDERS LIMITED …………………………......1ST DEFENDANT** **JUDGMENT** 1. As we begin with this judgment, for ease of reference, we will refer to the parties as per the plaint rather than the counterclaim. The plaint dated 22 April 2021 shows that the plaintiff filed this case against the defendants, claiming that on or around 12 April 2021, they trespassed onto the plaintiff's land, **Mavoko Town Block 93/2 (****“****Block 93/2”),** in Machakos County. It states that this act prevented the plaintiff from peacefully enjoying its property, and it prays for the following orders: - 2. ***A permanent injunction restraining the defendants, either by themselves, agents, employees, servants and proxies from trespassing, interfering, destroying vegetation, subdividing, alienating, beaconing, evicting, obtaining consent to transfer, disposing, wasting, threatening, allowing both wildlife and domestic animals to enter and/or dealing in any way with Mavoko Town/Block 93/2 located within the county of Machakos.*** 3. ***Costs of this suit.*** 4. Upon service, the defendants filed an amended defence and counterclaim dated 16 September 2022, with the 2nd defendant granting the 1st defendant authority to plead under **Order 1, Rule 13** of the **Civil Procedure Rules (CPR).** The defence mainly consisted of denials and challenged the plaintiff to provide strict proof of its averments. Additionally, it accused the plaintiff of being a land grabber who aimed to dispossess the defendants of their land, **L.R. No. 21891/2,** situated in Mavoko Municipality, Machakos County, and claimed that the plaintiff had no rights to it. 5. In the counterclaim, they explained that **Block 93/2** and **L.R. No. 21891/2** refer to the same parcel of land on the ground. They provided a chronology of how they came to acquire **L.R. No. 21891/2** and mentioned that strangers interfered with it on or about 20 March 2021, prompting them to report the issue to the Athi River Police Station. They also claimed that the plaintiff, in collusion with lands officials, tampered with the deed file of **L.R. No. 21891/2** and that the plaintiff was using illegal and forged documents to try to take their land. They prayed to the court for the following reliefs: - 6. ***That the plaintiff's suit be dismissed with costs.*** 7. ***That the defendant's certificate of lease for Title Number Mavoko Town Block 93/2 be revoked.*** 8. ***The defendants be awarded costs of this suit with interest.*** 9. Accordingly, having considered the pleadings and the evidence presented by the parties during the hearing on the merits and issues as outlined in the defendants’ filed submissions dated 30 May 2025, it is the considered view of this court that the issues that arise for determination are: **a)** **whether parcel no. pleaded by the defendants, and that referenced in evidence were at variance,** and **b)** **whether the plaintiff proved the defendants were trespassers.** Having outlined the issues to be decided, this court will now summarise the parties’ evidence on the identified issues. 10. The case moved forward to a hearing on 17 February 2025, where Denny Kilia Ndwi, the plaintiff’s director **(PW1)** and the 1st defendant **(DW1)** testified. Following the court's summons to government officials as independent witnesses, Mark Mungai Wangeri, a deputy chief land registrar **(DW2),** and Nancy Mireri **(DW3)** also testified. Their evidence consisted of witness statements (except for DW2 and DW3), oral testimonies, and produced documents. 11. PW1 informed the court that the plaintiff owned **Block 93/2,** as evidenced by the certificate of lease and search certificate dated 5 September 2018 **(Pex. 3 & 5).** He contended that while preparing to subdivide and beacon **Block 93/2,** the defendants trespassed and interfered with it, claiming ownership. He argued that the defendants could not prove legitimate acquisition of the property, as the company that supposedly sold the disputed landto the defendants did not exist at the time. He also rejected allegations that the plaintiff’s title was forged, noting that any investigations into the title of **Block 93/2** were improperly conducted and that the defendants’ documents show inconsistencies. 12. To support these alleged discrepancies against the defendants, he referred to a CR12 from the Registrar of Companies **(Pex. 5),** showing that Tropical Nectar Limited of registration no. CPR/2013/109130 **(“Nectar 1”),** which is the first registered owner of **L.R. No. 21801/2**, was registered on 12 July 2012. Additionally, there was a letter from the director of surveys **(Pex. 8)** stating that the deed plan attached to the grant appeared to be an office copy, which normally would not be released to a client or used to prepare a grant. 13. On cross-examination, he informed the court that Machakos County had sold the plot to the plaintiff, but the application and allocation letters were not available in court. He stated that the disputed land was owned by the plaintiff, a company in which he acquired shares in 2012. He maintained that when he acquired shares in the plaintiff, the plaintiff contracted a gentleman named Musembi to take undisclosed documents to the lands office for the purpose of processing the lease certificate. 14. When the 1st defendant took the stand, he shared that the defendants had acquired **L.R. No. 21801/2** from Alfred Muema Kioko back in March 2002, following a sale agreement dated 21 March 2002 **(Dex.2).** He explained that payment was made through cheques **(Dex.3),** and the transfer was properly completed, as shown by the registration of transfer, the certificate of title, and the search certificate **(Dexs.1, 5 & 13),** along with the payment of stamp duty **(Dex.7).** 15. He also mentioned that in March 2021, concerns arose when new beacons appeared on the land. This led to an official search, which uncovered that the plaintiff's documents had been inserted into the deed file, raising suspicions of possible fraud, especially since the certificate of title that was placed therein was embossed with the word *“forgery”* **(Dex. 14).** The defendant stated that government officials had confirmed through correspondence that the plaintiff's documents were forgeries **(Dex. 16, 17, 18).** Additionally, he asserted that Tropical Nectar Limited **(“Nectar 2”)** of registration no. 30277 was registered on 13 August 1985, as shown by the certificate of registration and CR12 (**Dex. 19 & 20).** 16. His evidence was unshaken during cross-examination, and he further stated that, notwithstanding that the agreement for sale was not executed by the 2nd defendant, the 2nd defendant was later invited to join the project prior to registration, due to having the finances required for property development. Concerning the signatures at entries 3 and 4 of the certificate of title for **L.R. No. 21801/2**, he stated that he was not aware whether the dates and signatures were the same or who made the entries. 17. **DW3** informed the court that a copy of the certificate of title of **L.R. No. 21801/2 (IR No. 69345)** was obtained, but the original was missing and that documents had been plucked off from the deed file. He stated that from the copy, he traced the mother title **(LR No. 21801, IR No. 69022),** which was a new grant from which **L.R. No. 21801/2** emanated upon subdivision. He informed the court that he had established that the mother title was issued to Tropical Nectar Ltd, as evidenced by a certified copy of the title **(Dex. 24).** 18. Upon subdivision and surrender **(Dex. 25),** **L.R. No. 21801/2** was registered on 30 April 1996. The entries in the mother title showed that it had been subdivided, with entry no. 2 recording a surrender of a road **(LR No. 21801/1).** There were four subdivisions in total, and entry no. 3 showed that a certificate of title for **L.R. No. 21801/2** was issued to Tropical Nectar Ltd under **Section 70** of the **Registration of Titles Act** **(RTA)** for 2.024 hectares for a term of 99 years from 1 December 1995. Entry no. 3 related to the parcel currently before the court **(IR No. 69345 LR No. 21801/2).** He maintained that the Directorate of Criminal Investigations (DCI) was conducting ongoing investigations into the circumstances of the removal of documents from its records on **IR No. 69345 LR No. 21801/2**. 19. DW4 informed the court that **Block 93/2** was not in her records, as the Machakos land registry never had such a registration. Also, she was a stranger to **Pex. 8.** 20. At the conclusion of the hearing, the court directed the parties to file written submissions, and the defendants’ law firm on record, **Ms. Thuita Kiiru & Co. Advocates,** filed their submissions dated 30 May 2025. Significantly, the plaintiff’s counsel on record has not filed its submission at the time of penning this judgment, despite an extension of time. If it is filed at all, this court will consider it filed out of time, and it shall automatically stand struck out. Having said that, we now address the issues identified earlier in chronological order. 21. ***Whether the parcel no. pleaded by the defendants, and that referenced in evidence were at variance,*** 22. This issue was not addressed in the defendants’ submissions; however, pursuant to **Order 4, Rule 3 of the Civil Procedure Rules (CPR),** when the subject matter of the suit concerns immovable property, such as land, the plaint or counterclaim, as applicable, must include a description of the property sufficient to identify it. The defendants’ pleadings met this legal requirement, as they stated that their land was registered under **L.R. No. 21891/2** and was within Mavoko Municipality. It is this particular land that they stated had been trespassed upon by strangers, and in which the plaintiff forged documents in order to grab it. 23. Nonetheless, no evidence was led by a witness on **L.R. No. 21891/2.** Notwithstanding it was undisputed evidence that the parties disputed over the same parcel of land on the ground, all documents serving to substantiate, prove, or demonstrate the defendants' interest in the disputed land were related to **I.R. 69345 L.R. No.** **21801/2,** which could be traced to the mother title. This is evident from the certificate of title, which indicates that the defendants were registered as joint tenants as of 17 July 2002, as well as the mother title, which shows the defendants' land was a subdivision thereof, the sale agreement, application for transfer, land rates and rent payments, clearances, and correspondence. 24. To this court’s mind, this was obviously a case of misdescription of the defendant’s suit property, where they mistyped one digit by describing their land as **L.R. No. 21891/2** instead of **21801/2.** However, the defendants never moved the court to amend the pleadings as envisaged under the legal framework of **Order 8, Rules 3** and **5,** which permits this court to allow parties to amend their pleadings at any stage before judgment, as the object of such amendments is to enable the parties to present their case so that the real question in controversy can be determined. 25. It has been resounded by our courts that it is trite law that parties are bound by their pleadings, and courts are restrained from entering into the arena of litigation. In the case of **Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] KESC 31 (KLR),** the Supreme Court of Kenya quoted with approval, the following excerpt from the decision of the Supreme Court of India in **Arikala Narasa Reddy vs. Venkata Ram Reddy Reddygari & Another**, **Civil Appeal Nos. 5710-5711 of 2012 [2014] 2 S.C.R**.,where the court held; ***“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…’’*** 1. Similarly, in the **Court of Appeal decision of Galaxy Paints Company Ltd v Falcon Guards Ltd [2000] KECA 215 (KLR),** it held: - ***9.It is trite law, and the provisions of O.XIV of the Civil Procedure Rules, are clear that issues for determination in a suit generally flow from the pleadings, and unless pleadings are amended in accordance with the provisions of the Civil Procedure Rules, the trial court, by dint of the provisions of O.XX rule 4 of the aforesaid Rules, may only pronounce judgment on the issues arising from the pleadings or such issue as the parties have framed for the court's determination.*** ***10.In Gandy v Caspair [1956] EACA 139 it was held that unless the pleadings are amended, parties must be confined to their pleadings. Otherwise, to decide against a party on matters which do not come within the issues arising from the dispute as pleaded clearly amounts to an error on the face of the record. And in Fernandes v People Newspapers Ltd [1972] EA 63 Law Ag VP said:*** ***“A civil case is decided on issues arising out of the pleadings. No allegation of negligence against the appellant has ever been made, and it was not open to the court to find negligence on his part.” “*** 1. Flowing from the above, this court finds that the defendants have failed to adduce any evidence establishing their ownership of **L.R. No. 21891/2** and further finds that any claim pertaining to this specific parcel of land fails. 2. ***Whether the plaintiff proved the defendants were trespassers?*** 3. In dealing with this issue, it is essential to delineate the pertinent legal and jurisprudential framework on trespass. **Article 40** of the **Constitution** recognises that every person has the right to acquire and own property of any kind and in any location within Kenya. The protections and limitations governing such land rights are set out in **Sections 24, 25,** and **26** of the **Land Registration Act,** which define land rights, privileges, appurtenances, liabilities, and interests. **Section 26(1)** thereof provides for the sanctity and the indefeasibility of title to immovable property, which sustains only in the absence of fraud, misrepresentation or other unlawful conduct in its acquisition. 4. Concerning the tort of trespass, the relevant provisions of the law are contained in the **Land Act** and the **Trespass Act,** which specifically stipulate: **Section 152A o**f the **Land Act**: ***“A person shall not unlawfully occupy Private, Community or Public Land.”*** **Section 3 (1)** of the **Trespass Act**: ***“any person who without unreasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on private land without the consent of the occupier thereof shall be guilty of an offence.”*** 1. **Section 2** of the **Trespass Act** clarifies that private landincludes land owned or occupied by anyone under a freehold title, a certificate of ownership, or a lease. Concerning prevailing jurisprudence, the recent Court of Appeal decision in **Mohamed v Board of Management Pentrose Community School & another [2026] KECA 501 (KLR)** affirms the definition of trespass as follows: ***“24.The textbook Clerk & Lindsell on Torts (21st Edition) at page 1345, specifies that trespass occurs where there is entry onto another person’s land without the consent of the owner or without lawful justification. So that, for trespass to be established, there must be a physical entry onto the land of another, and such entry must be without the permission of the landowner or without any reasonable or lawful excuse.*** ***25.In the case of Church Commissioners for Kenya of the Anglican Church of Kenya vs Wayuga (Civil Appeal 111 of 2018) [2024] KECA 1048 (KLR), this Court held that;“Trespass is described under the***[***Trespass Act***](https://new.kenyalaw.org/akn/ke/act/1962/48)***Cap 294 to mean “any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof…”*** 1. In response to the trespass allegation, the defendants submitted evidence asserting that they were not trespassers but rather the owners of the disputed land, as evidenced by documents regarding their title **(LR. No. 21801/2).** The plaintiff also referenced these documentary evidence. Guided by the Court of Appeal decision in **Chumo Arap Songok v David Kibiego Rotich [2006] KECA 106 (KLR),** this court finds that the parties canvassed the issue of the root of title for **Block 93/2** and **21801/2** and ownership through the evidence presented, and additionally, the defendants also raised this issue in their submissions. 2. When faced with similar circumstances on the root of title in trespass claims and affirming the well-cited decision of **Odd Jobs vs Mubia [1970] EA 476,** the recent binding Court of Appeal decision in **Mohamed v Board of Management Pentrose Community School & another [2026] KECA 501 (KLR)** stated thus: - ***“ 42.The above cited authorities are unequivocal that, where there are competing claims to property, a party claiming ownership must not only demonstrate their proprietary interest, but also that their interest is founded on a good root of title, failure to which, a court of law cannot on the basis of indefeasibility of title ignore or disregard a title that was obtained illegally, irregularly or un-procedurally.*** ***43.Having found as we have, we consider the Appellant’s complaint that the trial Judge determined unpleaded issues to be unfounded and unjustifiable. We say this because, the 1st Respondent having challenged her title, the burden shifted to the Appellant to demonstrate that her title and its root were lawful, thus rendering it a material issue for consideration by the learned Judge, prior to determination of the question of trespass. See*** ***Odd Jobs vs Mubia [1970] EA 476. For this reason this issue lacks merit.”*** 1. On this issue of root title, our courts are rich in jurisprudence, and this court resonates with them. In **Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR),** the Supreme Court affirmed the well-cited decision of **Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR),** and held: - ***“Where the registered proprietor’s root title was under challenge, it was not enough to dangle the instrument of title as proof of ownership. It was the instrument that was in challenge, and therefore, the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal, and free from any encumbrance, including interests which would not be noted in the register…Under the repealed Government Lands Act (GLA), a PDP had to be drawn and approved by the Commissioner of Lands or the Minister for Lands before any unalienated Government land could be allocated. After a PDP had been drawn, a letter of allotment based on the approved PDP was then issued to the allottees. It was only after the issuance of the letter of allotment and the compliance with the terms therein that a cadastral survey could be conducted for the issuance of a certificate of lease.”*** 1. In a more recent Court of Appeal decision of **Gathondu (As Administrator of the Estate of the Late Thumbi Kariuki) & 3 others v Registrar & 7 others [2024] KECA 668 (KLR),** the court stated thus; ***“Kenyan courts can no longer content to perch on the branch of simply accepting titles as conclusive, incontestible and indefeasible; or the concomittant argument that in the face of two or more competing titles, the first in time automatically prevails. It is not enough to wave an instrument of title or rest easy on the former rock of chronological primacy. What must now be established by he who would prevail is the solidity of the root of title. No flowery foliage, absent a sturdy and settled root speaking to a regular and legal process preceding the product that is the title, will avail the holder.”*** 1. It is a well-established legal principle that he who alleges must prove. Consequently, this court will now scrutinise the evidence to establish the chain of acquisition of the disputed land by the plaintiff and the defendants, thereby determining which party established and proved the origin of the title to **Block 93/2** and **L.R. No. 21801/2** to the required standards. In doing so, the court will be guided by the aforementioned case law. 2. Since each party questioned the validity of the other’s title documents to **Block 93/2** and **L.R. No. 21801/2**, the evidentiary burden shifted to the holder of a title document to establish that the title he possessed was acquired lawfully, procedurally, and without any illegality within the meaning of **Section 26(1)(b)** of the **Land Registration Act.** It is undeniable that simply producing a title document does not definitively prove ownership if the title's root is contested. The registered owner must show, beyond the existence of the certificate of title, that his acquisition process was lawful and properly conducted from the beginning. 3. We now proceed to examine **Block 93/2.** Aside from the lease certificate and search certificate, there was no documentary evidence to elucidate the manner of its acquisition. PW1 testified that the property was purchased from the county government by the plaintiff's previous shareholders, and that he continued with the registration process upon acquiring shares in the plaintiff. Significantly, this lease certificate was the end product of a process, and the plaintiff was required to show that the process followed prior to its issuance complied with the law. 4. However, he failed to produce documents that would ordinarily support such a lease certificate, such as the part development plan (PDP), allotment letter, proof of payment of various requisite fees, survey plan, lease agreement, agreement for sale of shares in the plaintiff or other relevant documentation. Further, there was no record demonstrating that **Block 93/2**, registered in 2018 following the enactment of the **Land (Allocation of Public Land) Regulations,** complied with the stipulated conditions therein. 5. Flowing from this, it is evident that the root of **Block 93/2,** which is registered land, has not been substantiated, and it appears that it just emerged from thin air, and PW1 was at pains to explain how it came to be. Therefore, this court must hold and find that the plaintiff failed to discharge the origin of its title to the requisite standards. This finding is corroborated by **Pex. 8**, which stated: - *“On 31st May 2021 we wrote a letter to the land registrar Machakos to confirm the authenticity and registration status of* *Mavoko Town Block93/2. The land registrar confirmed that there is a whitecard in respect of Mavoko Town Block93/2.According to that white card the property is registered in the name of Rhine Forwarders Limited and a certificate of title is purported to have been issued on 5th September 2018. Other than the said white card there were no any other document to support registration of the same.”* 1. As for **L.R. No. 21801/2,** from undisplaced evidence, it arose from the mother title upon its subdivision and was registered in the name of Tropical Nectar Limited on 23 May 1996. Albeit Nectar 1 and 2 having the same names, it emerged from corroborated evidence that they were registered on different dates and have different registration nos, with the defendants rebutting the plaintiff’s allegations by showing that Nectar 2, the original owner of **L.R. No. 21801/2,** was registered on 13 August 1985 as per the certificate of incorporation and CR12. In other words, Nectar 1 and 2 were distinct companies. 2. Respecting the root of the title of **L.R. No. 21801/2,** the 1st defendant demonstrated that he acquired it through an agreement for sale for a consideration of Kshs. 550,000, from Alfred Kioko Muema, the previous registered owner, to whom Nectar 2 had transferred **L.R. No. 21801/2** to. 3. From supported evidence, he paid the requisite consideration, facilitated the transfer of the **L.R. No. 21801/2** to his name and that of the 2nd defendant, settled the stamp duty, and completed the transfer to their names, as evidenced by the certificate of title. Even without the transfer document being produced, the defendants submitted their application for registration to establish that the transfer had been remitted for registration. This history is corroborated by a letter from the assistant chief land registrar to the DCI, which confirmed that, according to the Land Integrated Management System (LIMS), the details of the consideration and transfer were recorded in its records. 4. The plaintiff challenged the root of title of**L.R. No. 21801/2,** stating that the director of survey’s signature in the deed plan annexed to **L.R. No. 21801/2** was different from the deed plan from the director of survey. Nonetheless, this line of evidence could not stand in the absence of an expert report from a document examiner. It also questioned why the certificate of title over **L.R. No. 21801/2** was in the names of the defendants, yet the agreement was in the name of one of them, but this was rebutted by the 1st defendant, who stated that even if this was indeed true, he voluntarily nominated the 2nd defendant as a joint tenant since he intended to help develop **L.R. No. 21801/2**, hence the registration. There was nothing illegal in such a nomination. Relating to the documents on demand notices, the land rent assessment slip, and the payment of land rates and rent, all issued after the certificate of title was registered in the defendants’ names and questioned by the plaintiff, this court finds that they do not go to the root of the title. 1. Additionally, upon the plaintiff’s then counsel writing to the director of surveys on 22 July 2021 to confirm whether the deed plan no. 204256, dated 29 March 1996, for **L.R. No. 21801/2** originated from its office, the director of surveys, in **Pex. 8**, did not deny that it did not originate from its office but stated as follows: *“The deed plan attached strangely produced a grant I.R. 69345 appears to be an office copy which was supposed to be kept by the office and not released to a client. Therefore it is irregular to prepare a grant”* 1. Armed with this letter, the plaintiff has challenged the defendants’ title to **L.R. No. 21801/2**. However, this communication from the director of surveys was not conclusive, as he stated that it “appears” to be an office copy, which, in this court’s view, meant he did not have absolute certainty. Had the director of surveys been called to testify, he might have laid this uncertainty to rest, but unfortunately, he was not. 2. In balancing the competing claims of **Block 93/2** and **L.R. No. 21801/2** and ascertaining the root of title, this court finds that the defendants possess a valid title to the disputed land. For the purposes of the trespass claim, it finds that the defendants are in lawful occupation of the disputed land, whereas the plaintiff is not. In the absence of any pleading and particularisation of fraud, misrepresentation, illegality, corruption, fraud, or allegation of irregularity over **Block 93/2** and **L.R. No. 21801/2,** tothe required standards, this court finds that the title document for **Block 93/2** is not a candidate for impeachment in these proceedings as sought in the counterclaim. 3. This court concludes by recommending that the DCI does proceed with the investigations previously initiated regarding the conduct of the individuals alleged to have been involved in the transactions concerning the registration of **Block 93/2** and committing the act of unlawfully removing documents from the deed file of **L.R. No. 21801/2**, and urges this office to take appropriate action based on the evidence uncovered. 4. In the end, guided by law and judicial precedents, and anchored on the foregoing findings and reasons, this court determines that the plaintiff’s claim and the defendant’s counterclaim are both for dismissal, with each party bearing their respective costs. Judgment accordingly. **Delivered and Dated at Machakos this 9th day of June, 2026.** **HON. A. Y. KOROSS** **JUDGE** **09.06.2026** **Judgment delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Ms. Kanja Court Assistant. Mr. Owuocha for plaintiff. No appearance for the defence