https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4624

Bigogo v Nyangosi & 2 others (Environment and Land Case 23 of 2021) [2026] KEELC 4624 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4624 (KLR) Republic of Kenya In the Environment and Land Court at Kisii Environment and Land Case 23 of 2021 AA Omollo, J July 9, 2026 Between Ronald Ondabu Bigogo Plaintiff and Timothy Okemwa Nyangosi 1st Defendant The Land Registrar Kisii 2nd Defendant The National Land Commission 3rd Defendant Judgment 1.Vide a plaint dated 25th November, 2021, the plaintiff sued the three defendants claiming that the 1st defendant had unlawfully and illegally caused his name to be registered as the owner of L.R No. Kisii Municipality, block 1/648, for a leasehold interest of 99 years, w.e.f 1/7/1995. He blames the 2nd Defendant for breaching its statutory duty. 2.The particulars of illegality on the part of the 1st Defendant were listed as follows:a.Acquiring a certificate of lease over the suit land without a letter of allotment.b.Acquiring a certificate of lease over the suit land without a lease instrument.c.Acquiring a defective title over the suit property with adequate notice.d.Failing to follow all the laid down processes and procedures in the acquisition of the suit parcel of land.e.Depriving the plaintiff of his land through a well-choreographed scheme of land grabbing. 3.The particulars of breach of statutory duty pleaded against the 2nd defendant;i.Creating a fictitious register without a lease instrument from the 3rd Respondent.ii.Failing to liaise with the 3rd Respondent in confirming the true ownership of the suit parcel of land before creating a green card in favour of the 1st defendant.iii.Unlawfully and irregularly issuing a certificate of lease/title deed of the suit property to the 1st defendant.iv.Generally failing to act with transparency and accountability in its dealings with the 1st defendant resulting in issuing a fatally defective title to the 1st defendant. 4.The Plaintiff prayed for judgment to be entered against the Defendants jointly and severally for orders:a.A declaration that the Plaintiff is the rightful owner of all that leasehold interest in land parcel no. Kisii Mun/Block I/648 for a period of 99 years w.e.f 1/6/86.b.A declaration that the 1st defendant’s title document over land parcel no. Kisii Municipality/Block I/648 is fatally defective having been created and registered unlawfully and illegally without due process of law, hence null and void and an order of mandatory injunction do issue compelling the 2nd defendant to cancel all entries currently in existence purporting to lead to and/or indicating the 1st defendant as the owner thereof.c.An order of mandatory injunction do issue compelling the 3rd defendant to issue the plaintiff with a lease instrument for land parcel no. Kisii Municipality/Block I/648 for a period of 99 years w.e.f 1/6/86.d.An order of vacant possession to be issued against the 1st defendant and for payment of Mesne profits w.e.f 2015.e.Costs and interest at court rates. 5.The 1st Defendant filed a statement of defence on 24th January 2022 denying the claim. He stated that the Plaintiff’s suit does not raise any triable issue known in law, averring that the suit is an experimental escapade to see whether he (the Plaintiff) can obtain the orders sought. The Plaintiff replied to this defence on 22nd July, 2022, reiterating the contents of his plaint. 6.The 2nd defendant entered appearance on 14th January, 2022, with a statement of defence dated 18th October, 2023 also denying the claim. 7.At the close of the pleadings, the plaintiff relied solely on his testimony. He adopted his written statement filed on the 26th November, 2021 and a list of documents of even date. The Plaintiff stated that in 1986, while he was doing business in Kisii, he applied to the Commissioner of Lands for an allocation of an unsurveyed plot within Kisii Municipality to put up a residence. He was allocated one vide a letter of allotment dated 6th June 1986. 8.The Plaintiff said he was allocated plot 104 “J” measuring 0.0336ha, marked red in the attached plan No. 31002/XX/93A. That the letter of allotment listed the premiums he was to pay, and he visited the Department of Lands and paid Kshs. 1,518 for the stand premium, and was issued with receipt No. 188157. 9.He continued that he paid rates over the years as he followed up on processing of his lease document. It is his evidence that the plot was finally surveyed on 18th October, 1990 and given registration number Kisii municipality block 1/648. The witness further stated that he was asked to pay Kshs. 202 for a certificate of registration, and he complied. 10.Further, the Plaintiff avers that in 2011 he received a letter from the Town Clerk of Kisii advising the Commissioner of Lands to assist him in obtaining a lease instrument for his plot. He added that he fell ill and, due to his advancing age, was unable to keep up with the processes. Therefore, he sent his son in October 2021 to pay the rates, only to discover that the property was now in the name of the 1st Defendant. He asserted that the documents used by the 2nd Defendant to register the 1st Defendant were defective because he was still in possession of the original documents. 11.The Plaintiff produced several documents in support of his case, inter alia, an allotment letter dated 6th June, 1986; a receipt for the payment of stand premiums; a letter of allotment dated 18th October 1990 for plot J; and a receipt dated 17th January 1991. Additionally, the Plaintiff produced demand notes for rents and rates issued to him as Pex 5a-c; a receipt dated 3rd July 1995 of Kshs. 1,120 as annual rent for unsurveyed plot J; and a payment request for UNS 1985/104 (Pex 5e-j) 12.Further, he produced as ex. 6 (a) - Receipt dated 28th July 1986 for Kshs. 400/= being payment of stand Premium for Plot 104 (unsurveyed), 6 (b)- Receipt dated 28th July 1986 for Kshs. 163.30/= being payment of Annual Rent for Plot 104 unsurveyed, 6 (c) Receipt dated 21st January 1991 for Kshs. 1,400/= as Plot Rent for Plot No. J.; 6 (d) - Receipt dated 21st January 1991 for Kshs. 200/= for Clearance Certificate for Plot No. J Nyanchwa. 6 (e) - Clearance Certificate for Plot No. J, Nyanchwa dated 21st January 1991 (apparently issued on payment of 6d above). 13.It is the plaintiff’s testimony that he is the original allottee of the land now known as Kisii Municipality/Block I/648 after he was first allocated the property in 1986 as an unsurveyed Plot No. 104. The allocation was amended by hand to Plot “J”, and he was subsequently issued with a replacement letter of allotment for plot J. He asserts that following a survey the plot eventually became known as Kisii Municipality/Block I/648. 14.The plaintiff testified that when, he sent his son to inspect the property and discovered that it had been registered in another person’s name. He therefore applied and obtained a certified copy of the lease register (white card), which showed that the land had first been registered in the name of Ezra Nyakundi Mose who transferred to Aloys Mataya and subsequently to the 1st defendant, Timothy Okemwa Nyangosi. He maintained that he had never dealt with either Ezra Nyakundi Mose or Aloys Mataya Moseti, from whom the 1st defendant claimed to have purchased the property. According to him, the 1st defendant failed to demonstrate how the earlier proprietors acquired title since he didnot produce evidence of compliance with the conditions contained in their allotment documents. 15.During cross-examination, the plaintiff acknowledged that the original allotment letter referred to Plot No. 104, which had been altered to Plot “J”, but explained that both descriptions referred to the same unsurveyed plot. He testified that the survey was conducted after he received verbal notification from the Municipal Council, during which the beacons of his plot were pointed out to him. He relied on the Municipal Council’s letter of 30th May 2011 as confirmation that Plot “J” had become Kisii Municipality/Block I/648. Although he never received a lease from the Commissioner of Lands, he maintained that his documents remained on record with both the Municipal Council and the Lands Registry. 16.The plaintiff admitted that several of his payment receipts and rate demand notices referred to either Plot No. 104 or Plot “J” rather than to Block I/648. He explained that these references related to the same parcel at various stages before and after the survey. He further acknowledged a discrepancy between the acreage shown in his allotment letters and that reflected in the title register, but insisted that they referred to the same property. He attributed his delay in pursuing the matter to prolonged illness and financial constraints, including the cost of his children’s education. 17.The plaintiff conceded that he had not sued the earlier registered proprietors because he did not know them and only became aware of the persons involved after obtaining the white card. He admitted that the 1st defendant was in possession of the property, whom he found on the ground. He further stated that the white card did not show the lease instrument issued to the first registered proprietor or any transfer to the 1st defendant, and that he had not seen evidence of payment of rates by the earlier registered proprietors. In his view, these omissions demonstrated irregularities in the registration process. 18.When questioned by the court regarding the existence of two allotment letters, the plaintiff explained that the second allotment letter dated 18th October 1990 expressly cancelled the first allotment letter issued on 6th June 1986. He testified that he complied with the conditions in both allotments and paid the required charges. However, during further cross-examination, he admitted that he could not immediately produce evidence of payment of the outstanding balance of Kshs. 672 or proof that payment had been made within the 30 days stipulated in the second allotment letter. He nevertheless maintained that the subsequent issuance of a clearance certificate confirmed that he had complied with the allotment conditions and that his allotment had never been cancelled through any lawful process. 19.The 1st and 2nd Defendants called a total of three witnesses with the 1st Defendant testifying as DW1 on 12th May, 2025. He adopted his written witness statement dated 21st January, 2022 as his evidence in chief. DW1 stated that he purchased the property Kisii, Mun. Block 1/648 from Aloys Mataya Moseti and produced the sale agreement dated 2nd May 2014 as Dex-1. 20.He stated that before buying the land, he conducted a search which he produced as Dex 2. A copy of the allotment letter to Ezra Mose dated 14th July 1995 was produced as Dex 4, and a copy of the certificate of lease in favour of Aloys Mataya Moseti as Dex 5. The witness said he has been paying demand rates to the County Government and produced a rates clearance certificate dated 4th July, 2014 as Dex 6 and 7. DW1 added that he has developed the property with a storeyed building. The 1st Defendant contended that there was no nexus between plot No. 104 or plot J and his plot Block 1/648. He added that even their sizes are not the same. 21.During cross-examination, DW1 said he had no evidence that Ezra complied with the terms of the allotment, but asserted that he had been shown a certificate of lease, implying compliance. He admitted that the transfer form he produced lacked a date, except for the year 2014, and that it also lacked a date of receipt at the Lands Registry. He imputed the omission to the Lands Office. The witness affirmed that he had not produced any receipt for payment of stamp duty. 22.DW1 was further cross-examined by Mr Nyamweya, learned counsel for the Plaintiff, and he reiterated that he did a search before penning down the agreement. He admits that the allotment letter states the land has already been surveyed. He affirms that the letter is blank for the County on whose behalf the allotment was made, and that the plan number was also not indicated. He confirmed that the size of the land on the lease is stated as 0.0263 ha while the search and green card read 0.0263 acres. 23.DW1 admitted that the Vendor did not provide him with the lease document, nor did he receive the National Land Commission consent issued to Aloys (Vendor). He was also not given receipts for payment of rates, stating he was satisfied with the certificate for rates clearance. He did not make any third-party claim against Aloys Mataya Moseti because he was satisfied with the documents the Vendor had supplied to him. Asked about the letter dated 30.5.2011 (Pex8), the witness said it does not speak to the lease to Ezra. 24.In re-examination, DW1 stated it is the Land Registrar who made the mistake on the size of the land as the letter of allotment refers to 0.0263 ha. He further stated that he had produced a letter of consent from the land control board. 25.The 2nd Defendant’s witness Ms Harriet Oswera testified on 5th June, 2025. DW2, Ms Oswera Cecilia Harriet, the County Land Registrar, Kisii, testified that she had served as Land Registrar since 2021 and was responsible for registering land documents. Upon receiving a witness summons in relation to the suit property, Kisii Municipality/Block 1/648, she examined the parcel file but found it completely empty, with no supporting documentation. Owing to the absence of records, her office wrote to the Director of Land Administration requesting any documents relating to the parcel. She produced the letter dated 12th May 2025 requesting the records. 26.She stated that the Director of Land Administration responded by letter dated 3rd June 2025, indicating that the parcel had been allotted to Agnes M. Nyangara by a letter of allotment dated 2nd January 1998, but that the allottee had failed to accept the offer, causing it to lapse. The Director further stated that no other records relating to the parcel could be traced. 27.The witness testified that, according to the information received from the Director of Land Administration, the suit property had never been allocated to anyone after Agnes Nyangara failed to take up the offer. She examined the plaintiff’s allotment letters dated 6th June 1986 and 18th October 1990 and observed that they referred to unsurveyed residential plots and did not mention Kisii Municipality/Block 1/648. She also examined the allotment letter issued to Ezra Nyakundi Mose dated 14th July 1995, which referred to Block 1/648. Still, she stated that no such document had been received in their office. 28.DW2 explained the normal process of land registration, stating that once land is allotted, lease documents are forwarded from Nairobi to the Land Registrar for registration. She testified that her office had no forwarding letter, lease, or any registration documents relating to the suit property. Although she was shown the white card, she could not confirm that it originated from the Kisii Lands Registry because the registry had no corresponding register or supporting records. 29.During cross-examination by counsel for the 1st defendant, DW2 acknowledged that the acreage reflected in the allotment letter for Agnes Nyangara and in the 1st defendant’s certificate of lease was the same. She also stated that the signature appearing on the certificate of lease resembled that of a former Land Registrar, D. D. Omol. Nevertheless, she maintained that she could not confirm whether the Kisii Lands Registry had issued either the certificate of lease or the official search, as the registry had no supporting records. 30.Under cross-examination by the plaintiff, DW2 maintained that it was the position of the Land Registry that no lease had been issued to the 1st defendant through its office and that no lease had ever been received for registration. She reiterated that the parcel file remained empty and that the registry possessed no documents establishing either the plaintiff or the 1st defendant as the registered proprietor of the suit property. She further testified that the Director of Land Administration supplied only the allotment letter issued to Agnes Nyangara, and no other documents relating to the parcel. 31.The witness admitted that the plaintiff’s allotment letters predated the allotment letter issued to Agnes Nyangara but stated that she could not authenticate the plaintiff’s allotment documents. She explained the payment requirements under allotment letters. She noted that the allotment letter to Agnes Nyangara bore no Kisii Land Registry stamp, just as the allotment letter to Ezra Nyakundi Mose did not. She observed that one of the plaintiff’s allotment letters carried a Kisii Land Registry stamp, although she could not verify its authenticity. She also confirmed that she had not been shown any evidence of compliance with the allotment letter issued to Ezra Nyakundi Mose. 32.DW2 further testified that, when confronted with competing claims to land ownership, it was standard practice for the Land Registry to seek clarification from the Director of Land Administration. She acknowledged that the white card produced by the plaintiff bore the Kisii Land Registry stamp and had been certified as a true copy by a former Land Registrar, Mr Stephen Mokaya. However, she could not explain how the document had been issued when no corresponding records existed in the parcel file. She also confirmed that the registry had no documentation evidencing the creation of any lease or the transfer of the suit property from Ezra Nyakundi Mose to Alloys Mataya Moseti, and subsequently to the 1st defendant. 33.In re-examination, DW2 reiterated that her office had requested certified copies of all documents from the Director of Land Administration but had not asked the Director to compare the parties’ respective documents. She stated that the Director of Land Administration was the custodian of lease documents, whereas the Land Registrar was not involved in the survey process. She was unaware of any meetings or minutes held before the issuance of the allotment letters. 34.DW3, Gordon Odeka Ochieng, the Director of Land Administration in the Ministry of Lands, testified that he received a request from the Kisii Land Registrar to verify the records relating to parcel Kisii Municipality/Block I/648. He stated that upon retrieving the relevant correspondence file (File No. 243578), he found only one letter of allotment dated 2nd January 1998 issued to Agnes M. Nyangara. He informed the Land Registrar by a letter dated 3rd June 2025 that although the allotment had been made to Agnes Nyangara, she neither accepted the offer nor paid the requisite charges within the stipulated 30 days. According to the terms of the allotment letter, the offer therefore lapsed and the land reverted to the Government. He produced the Ministry’s response letter and the carbon copy of the allotment letter as exhibits. 35.It was his further evidence that the Ministry had no record of any subsequent allocation of the plot after the lapse of the offer to Agnes Nyangara. He explained that once an allotment lapses, the land becomes available for reallocation, although the National Land Commission is responsible for confirming the availability of public land for allocation. 36.During cross-examination, DW3 acknowledged that he did not have documents showing how Block I/648 was created, including the Part Development Plan (PDP), survey records, allocation committee minutes, or the authority to allocate the land. He stated that the Directorate of Surveys would ordinarily hold such records, the District Commissioner’s office, or other relevant offices, and not in the correspondence file he had produced. He nevertheless insisted that the documents in his custody were sufficient to establish that the only allotment recorded by his office was the one made to Agnes Nyangara. 37.DW3 also explained the procedure for allocation of Government land during the relevant period, stating that allotment letters were then issued by the Commissioner of Lands and that failure to comply with the conditions of the allotment within the prescribed period automatically caused the offer to lapse without the need for a formal letter declining the offer. He confirmed that the allotment letter in favour of Agnes Nyangara contained such a condition. 38.When shown the 1st defendant’s Certificate of Lease, DW3 stated that it was not a document originating from the Directorate of Land Administration but from the Lands Registry. Although the acreage corresponded with that in Agnes Nyangara’s allotment letter, he testified that if the certificate of lease was genuine, it ought to have been supported by a corresponding letter of allotment. He confirmed that his office had no record of any lease or allotment in favour of the 1st defendant and described the certificate of lease as unsupported by records from his office. 39.DW3 further testified that his office had no records relating to earlier allotments allegedly made to Ronald Bigogo Ondabu in 1986 or 1990, nor did it possess records of payments, cancellation letters, or correspondence said to have been issued by the Municipal Council. He stated that, in the absence of such records in the Ministry’s files, he could not authenticate them and doubted their authenticity. 40.On re-examination, DW3 clarified that the absence of survey documents in his office did not mean they did not exist, but only that they had not been requisitioned from the Directorate of Surveys. He also stated that the allotment letters produced in favour of Ronald Bigogo Ondabu related to unsurveyed plots and that he had not been shown any official records linking those plots to Kisii Municipality/Block I/648. He maintained that the only records held by the Directorate of Land Administration concerning the suit property were those relating to the 2nd January 1998 allotment to Agnes Nyangara. 41.The last witness Douglas Makori testified pursuant to summons by the Court. He testified as DW4 on 2nd March, 2026 by producing his report dated 2nd December, 2025. He stated in his report that according to their records, plot 104 measures 0.0336ha and was allotted to the Plaintiff on 1/6/1986 by the Commissioner of Lands. He also stated that plot 104 is as marked in the survey plan number 31002/XX/93A. DW4 added that they did not have any minutes from the plot allocation committee (P.A.C) of 14/3/1986. He said that they did not have any records of plot Kisii Mun block 1/648 and he did not check with the Department of Physical Planning. Submissions: 42.The plaintiff submits that he is the lawful owner of land parcel Kisii Municipality/Block 1/648, having acquired it through a lawful allocation process by the former Municipal Council of Kisii. He argues that his ownership documents are authentic and can be traced from the allocating authority, unlike those relied upon by the 1st defendant, whose title was disowned by the Land Registrar for lack of any supporting lease documents in the land registry. 43.According to the plaintiff, he was first allocated the property through an allotment letter dated 6th June 1986, whose conditions he duly fulfilled. That allotment was later replaced by another allotment letter dated 18th October 1990, which expressly cancelled the earlier one. He complied with the terms of the second allotment as well. The property, initially described as Unsurveyed Plot No. 104J, was subsequently surveyed and designated as Kisii Municipality/Block 1/648. In 2011, the Municipal Council requested the Commissioner of Lands to issue a lease to the plaintiff, demonstrating that the council recognised him as the rightful allottee. However, before the lease could be issued, the plaintiff discovered that the 1st defendant had been registered as proprietor. 44.The plaintiff further submits that the National Land Commission did not contest his claim, having entered appearance without filing a defence. He relies heavily on the evidence of the Land Registrar, who testified that the parcel file for the suit property was empty and that inquiries made to the Director of Land Administration did not produce any lease documents in favour of the alleged original proprietor, Ezra Nyakundi Mose. According to the plaintiff, this evidence completely undermined the 1st defendant’s claim to ownership. 45.Regarding the allotment letter issued to Agnes Nyangara in 1998, the plaintiff contends that it was never collected, had material omissions, and expressly stated that the Government would not accept liability where there had been a prior commitment. He argues that his 1986 allotment constituted the prior commitment contemplated in that disclaimer and therefore took precedence over any later allocation. He invokes the equitable principle that the first allotment in time prevails over subsequent allocations. 46.The plaintiff also relies on the evidence of the County Land Administrator (DW4), who was summoned by the court to investigate the root of title. The administrator’s report concluded that the suit property had been allocated to the plaintiff and that his documents were the only ones traceable in the official records. By contrast, neither the 1st defendant’s documents nor the allotment allegedly issued to Agnes Nyangara could be traced to the Municipal Council, leading the plaintiff to submit that they were not genuine documents issued by the allocating authority. 47.Finally, the plaintiff challenges the 1st defendant’s assertion that he was an innocent purchaser for value. He points out that although the 1st defendant claimed to have purchased the property from Alloys Moseti, he did not institute third-party proceedings against the alleged vendor to explain the source of the title. The plaintiff argues that this omission casts doubt on the alleged sale and suggests either that the transaction never occurred as claimed or that the 1st defendant knowingly assumed the risk of acquiring a defective title. He therefore urges the court to find that he has proved his case and to grant the reliefs sought in the plaint. 48.The 1st Defendant submits that the Plaintiff failed to establish any legal or factual basis for his claim over land parcel Kisii Municipality/Block I/648. The Defendant argues that although the Plaintiff relied on letters of allotment issued in 1986 and 1990, those documents related to Plot No. 104 “J” and Unsurveyed Residential Plot “J”, not the suit property. Further, the Plaintiff admitted that he did not comply with the conditions in the 1990 allotment letter by failing to pay the balance of the stand premium within the prescribed period, resulting in the offer lapsing. The Defendant therefore contends that the Plaintiff never acquired any enforceable interest in the suit property. 49.The 1st Defendant further submits that the Plaintiff’s documentary evidence was inconsistent. The receipts, demand notices and payment records produced all related to Plot “J” or Plot No. 104 rather than the suit property. Although the Plaintiff testified that he conducted an official search in 2010, he failed to produce the search certificate or identify the registered proprietor disclosed therein. The Defendant also points to discrepancies in acreage, noting that the Plaintiff’s documents referred to 0.0336 hectares, whereas the white card for the suit property reflected 0.0263 hectares. According to the Defendant, these inconsistencies demonstrate that the Plaintiff failed to establish any nexus between Plot “J” and Kisii Municipality/Block I/648. 50.The 1st Defendant also argues that the Plaintiff failed to prove any illegality or fraud on his part. During cross-examination, the Plaintiff was unable to explain the alleged unlawful acquisition of the land or specify when he discovered any fraud. The Defendant maintains that even officials from the Ministry of Lands who testified were unable to establish any connection between the Plaintiff’s allotment documents and the suit property. Conversely, the Land Registrar confirmed the authenticity of the title documents held by the 1st Defendant and recognised the signature appearing on the certificate of lease. 51.On the issue of ownership, the 1st Defendant submits that the suit property was lawfully allocated to Ezra Nyakundi Mose, who complied with all the conditions of the allotment by paying the requisite charges. A lease was thereafter prepared and registered, culminating in the issuance of a certificate of lease. The property was subsequently transferred to Aloys Mataya Moseti, who in turn lawfully transferred it to the 1st Defendant after obtaining all the necessary consents. The Defendant contends that each transfer was undertaken procedurally and in accordance with the law, thereby conferring a valid and indefeasible title upon the 1st Defendant. 52.The Defendant relies on sections 24, 25 and 26 of the Land Registration Act, arguing that registration vests absolute ownership in the registered proprietor and that a certificate of title is prima facie evidence of ownership unless fraud, misrepresentation, illegality or procedural impropriety is proved. In support of this proposition, the Defendant cites the decision in Kiplagat Shelisheli Mutarakwa v Joseph Rotich Kones [2018] eKLR, where the court held that a registered proprietor who produces a title deed and official search is presumed to be the lawful owner unless the title is successfully impeached. Analysis and Determination: 53.I have read the pleadings, the evidence adduced and the submissions rendered. The issue which comes out for determination is whether the Plaintiff has proved to the required standards that the plot allotted to him as number 104 and or J is one and the same as the plot registered as Kisii Municipality Block 1/648 hence it was not available to allocated again to the persons who subsequently passed on the interest to the name of the 1st Defendant. 54.The Plaintiff presented evidence claiming ownership of the suit property in the form of an allotment letter issued to him and dated 6/6/1986 allocating unsurveyed plot No. 104. On the face of this letter, plot 104 is crossed out in ink, and the letter “J” is handwritten on it. On the face of the document, it is not indicated when and who did this crossing. The Plaintiff also produced a payment receipt of Kshs. 1,518 as stand premium and rent for plot 104. He went further to produce (ex. 3) another letter of allotment dated 18th October, 1990 allocating him unsurveyed plot “J”. He made a payment of Kshs. 202 on 17/1/1991. 55.In the plan attached to the Plaintiff’s letter of allotment, plot number 104 sits opposite plot “J”, signifying they are two distinct plots. However, in his written statement, he stated that the two refer to one plot, noting that on 29/07/1986, the town treasurer had received a letter of allotment for plot 104 “J”. The letter in question from the town treasurer to the Plaintiff was referenced: “payment of stand premium and land rent – uns plot no 104.” It does not mention plot “J” at all. 56.Confirming plot J and 104 were distinct are separate demand note for property rates and rents for plot “J” dated June 1995. A receipt confirming payment of the monies demanded issued on 3rd July, 1995 to the Plaintiff was attached to this demand note. There are also copies of demand notes from the County Council dated September, 2008, January 2009 and July 2015, all in respect of plot number 104. 57.In explaining the two letters, the Plaintiff referred the court to page 2 of the allotment letter of 18th October, 1990 with typed words thus;“This letter hereby cancels my letter of allotment ref 31002/XX of 6th June 1986.” 58.The inference drawn is that this latter letter cancelled the Plaintiff’s interest in plot 104 on 18th October 1990. Yet the records from the allocating authority (the County Council) still showed the Plaintiff as the Owner of the two plots (104 and J). In his submissions, counsel for the Plaintiff refer to the Plaintiff’s plot as 104 J when there is no such plot. 59.The Plaintiff has produced evidence affirming he was allocated a plot whether 104 or J. More importantly, is whether the Plaintiff answered the question raised by the 1st Defendant; the nexus of plot J or 104 J to L.R No Kisii Municipality block 1/648. 60.Going by the Plaintiff’s evidence, his answer to the question is premised on the content of the letter dated 30th May 2011from the Town Clerk to the Commissioner of Lands which read thus;“Re: Issuance of Lease Kisii block 1/648Kindly refer to the above subject and your letter of allotment dated 18.10.1990. The council would appreciate your assistance to issue Ronald Ondabu Bigogo with lease instruments to secure the captioned property.” 61.A plain reading of this letter indicates that it was a request to assist the Plaintiff in obtaining a lease for his plot J, which the Town Clerk assumed was now registered as Kisii Block 1/648. In order to obtain the lease document, the Plaintiff was required to demonstrate that he did pay for the surveying of the plot. I have perused the copies of receipts produced, he paid for surveying of plot 104 on 29/7/1986. This was credited for plot “J” as the receipt number B188157 is minuted in the allotment of 18/10/1990. After crediting the previous payment, there was an outstanding balance of Kshs 672 which the Plaintiff admitted he had not paid. 62.For the 1st Defendant, he produced a letter of allotment dated 1995, which allotted the suit property to Ezra Nyakundi Mose. However, the 1st Defendant did not have receipts confirming the allottee paid the stand premiums, stating the vendor (Alloys Mataya) availed only the letter. He had a certificate of lease in his name and a green card showing the history of the previous. He contended the two plots are different because his plot size is 0.0263 ha while the Plaintiff’s documents show his plot was 0.0336 ha. 63.Sections 109 and 112 of the Evidence Act provide that:109.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....112.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving. 64.The Court of Appeal was faced with a scenario of two different titles for the same parcel of land in the case of Mbarak v Freedom Limited (2024) KECA 160 (KLR) (23 February 2024) (Judgment) where they stated thus;“How two title numbers are said to relate to the same property remains unexplained. We have not been told how this can be in light of the glaring disparity in the original numbers, which ordinarily remains unaltered except, perhaps, by reason of irregularity or other misdealing or infractions in the management of, or mis-dealings in, records relating to the suit property. Yet those who ought to have explained these puzzling eventualities, such as the County Land Registrars and District Surveyors, did not testify in that regard or otherwise feature as parties to the proceedings leading to the impugned judgment.” 65.In this case, the Land Registrar and the Director, Land Administration, testified, but their evidence did not resolve the matter as they stated that they did not have records of the competing documents. This court was left to compare the documentary evidence produced by either side to determine whether the plot claimed by the Plaintiff is the same as the plot occupied and registered in the name of the 1st Defendant. 66.There is no dispute that the Plaintiff does not hold a title to the plot allocated to him. He did not produce any evidence of a survey of the plot, as it had been allocated as unsurveyed. He did not present a ground survey report to corroborate his assertion that plot “J” or plot 104 occupies the same ground position as plot L.R Kisii Mun Block 1/648. Further, the Plaintiff’s documents show a larger area of land allocated than the title document held by the 1st Defendant, despite a discrepancy in the green card, which states 0.0263 acres instead of 0.0263 ha in the allotment letter and certificate of lease. 67.Instead, the Plaintiff chose to attack the authenticity of the title held by the 1st Defendant, arguing it was fraudulently acquired. Again, it was the Plaintiff's burden to prove the alleged fraud. The standard of proof in fraud cases is set at a higher balance than the standard of probabilities. The Court of Appeal in the case of Kinyanjui Kamau v George Kamau [2015] eKLR expressed itself as follows: -“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: “...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely, proof on the balance of probabilities. In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.” 68.In his endeavour to establish fraud, the Plaintiff placed considerable weight on the evidence of the Land Registrar and the Director of Land Administration (DW2 and DW3). The two stated that they had no record of the history of the title held by the 1st Defendant. According to DW3, the only letter of allotment in their file was the one issued to Agnes Nyangara, which was never collected; hence, the offer was deemed to have lapsed. 69.It is noteworthy that both witnesses’ records bear no document allocating the suit plot or any plot to either the Plaintiff or the 1st Defendant. The Land Registrar (DW2) also stated that their parcel file was empty. However, in cross-examination, she admitted that the signature on the green card (pex. 9b) looks familiar, as that of a Land Registrar who worked in the Lands Office, Kisii, before her. There was also a certificate of official search dated 29th April 2014, issued by the Lands Office to the 1st Defendant. The witness (DW2) also said she had interacted with the signature of the Land Registrar D.D. Omol, who signed the certificate of lease, and the signature on the impugned document looked like his. 70.There is no evidence that the 1st Defendant’s documents were forged. Rather, they did not have records, although DW2 was recognising some of the signatures appearing on the 1st Defendant’s title documents. In my opinion, DW2's and 3’s evidence was inconclusive and demonstrated poor record-keeping, which resulted in the present dispute. 71.Additionally, the Plaintiff submitted that DW4’s report proved that he was the allottee of the suit plot. The report mentions the Plaintiff had been allocated plot 104 in 1986 and ends there. The report does not have records on the change of plot allocated in 1990 from 104 to “J”. As I have stated hereinabove, plot 104 and J were distinct as shown in the attached. Further, DW4 did not know whether block 1/648 exists because they donot have records of the same yet there was evidence of demand rates from the county County Government. I find the evidence of DW4 not useful to the Plaintiff’s case. 72.In his submissions, the Plaintiff argued that Agnes may have declined to take the offer after becoming aware the land was already allocated. This presumption would be lie if the Director Land Administration had records of allocation to the plot to the Plaintiff or if the Plaintiff availed evidence linking his plot “J” to the suit plot. The presumption of Agnes declining the letter of allotment for plot Kisii Municipality Block 1/648 would be in favour of Ezra Mose who was allotted the plot in 1995 as is and not in favour of the plaintiff who held allotment for plot “J”. Thus, I hold that the Plaintiff has not proved the fraud alleged. 73.Further, the 1st Defendant on his part produced as Dex 3 a copy of letter of allotment dated 14th July, 1995 allocating the suit land described as Kisii Mun Block 1/648 measuring 0.0263 ha to Ezra Nyakundi Mose. He also produced a letter of consent obtained from the Land Control Board (Kisii Municipality) dated 26th May, 2014 granting consent to transfer the suit land to him from Alloys Mataya Moseti. This contradicts the Plaintiff's allegation that he acquired his title without a letter of allotment. Finally, the 1st Defendant produced an undated transfer form executed between him and Alloys Mataya Moseti transferring the land to him. 74.The dispute was between the 1st Defendant and the Plaintiff, not with Alloys Mataya Moseti. Hence, the failure to join Alloys Mataya Moseti as a 3rd Party did not weaken the 1st Defendant’s case in defending his title. From the 1st Defendant’s documents, the lease document is missing from the allocation process. He also did not produce evidence of payment of the statutory charges, such as stamp duty and registration fees. 75.In the circumstances, should the court cancel the 1st Defendant’s title as urged by the Plaintiff, based on the absence of records held by the 2nd Defendant concerning the suit land? He did not adduce evidence to show that the 1st Defendant was complicit in or influenced the missing records. 76.The 1st Defendant was in possession and stated to have developed the suit property. The Plaintiff did not give evidence of having taken possession at any given time. Therefore, I adopt the doctrine of seisin to find in favour of upholding the title of the 1st Defendant. I am guided by the Court of Appeal decision in Bandi v Dzomo & 76 Others [2022] KECA 584 (KLR) stating the following principles:“It is trite law that all titles to land are ultimately based upon possession in the sense that the title of the man seised prevails against all who can show no better right to seisin. Seisin is a root of title. The 1st, 2nd and 3rd respondents being in possession of the suit land have a better right to the same as against the appellant. The maxim is that possession is nine-tenths ownership.” 77.The result is I dismiss the Plaintiff’s case as not proved. However, considering the circumstances of this case, I exercise my discretion by making an order that each party to bear their respective costs. DATED, SIGNED AND DELIVERED AT KISII THIS 9TH DAY OF JULY, 2026.A. OMOLLOJUDGE