https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3287

Kaipei & another (Suing as the administrators of the Estate of Gideon Ntauti Kaipei Karei) v Kisoso & 3 others (Environment and Land Case E049 of 2021) [2026] KEELC 3287 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELC 3287 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Case E049 of 2021 MD Mwangi, J May 28, 2026 Between Saya Ene Kaipei & William Kaipei Ntauti (Suing as the administrators of the Estate Of Gideon Ntauti Kaipei Karei) Plaintiff and Mukaampa Leleta Kisoso 1st Defendant The Principal Land Registration Officer, Kajiado Land Registry 2nd Defendant Ministry of Lands, Housing And Phyiscal Planning 3rd Defendant The Attorney General 4th Defendant Judgment Introduction 1.The suit herein was commenced by way of a Plaint dated 26th July 2021, both Plaintiffs being the duly appointed administrators of the estate of the late Gideon Ntauti Kaipei Karei, who died on 1st July 2011. 2.It is the Plaintiffs’ case that the deceased, Gideon Ntauti Kaipei Karei, was the registered owner of Land Title No. KJD/Kaputei-Central/555, measuring approximately 93.71 hectares (231.46 acres). The Plaintiffs aver that they were utterly shocked to discover that the 1st Defendant had laid claim to ownership of part of the said parcel and had allegedly obtained a title known as L.R. No. KAJIADO/Kaputei-Central/892, which portion was allegedly excised from the original title fraudulently. 3.According to the Plaintiffs, records obtained from the Kajiado Land Registry revealed that Land Parcel No. KJD/Kaputei-Central/555 had been fraudulently subdivided into two parcels, and a portion thereof, now known as Title No. KJD/Kaputei-Central/892, was fraudulently transferred to the 1st Defendant without the Plaintiffs’ knowledge or consent. The Plaintiffs stated that upon discovering this fraudulent transaction in 2018, they approached the County Government of Kajiado seeking intervention and requesting that a restriction be placed over the said property. Subsequently, the County Government of Kajiado issued a letter dated 19th November 2018 to the Registrar of Lands, Kajiado, requesting that a restriction be placed against dealings over the said parcel. 4.The Plaintiffs further averred that they immediately applied for a Grant of Letters of Administration Ad Litem for purposes of challenging the alleged fraudulent transfer of the deceased’s property to the 1st Defendant, and that the said grant was issued by the High Court at Kajiado on 24th September 2020, thereby enabling them to institute the present suit. They also lodged a formal complaint at Kajiado Police Station under OB No. 33/15/10/2020 regarding the said fraudulent transfer. 5.The Plaintiffs maintain that they have never sold nor transferred the suit property to any person and that the 1st Defendant’s actions constitute a deliberate and fraudulent attempt to dispossess them of their late father’s estate. They assert that they have known no other home except the suit property and that their proprietorship rights, including the right to quiet possession and enjoyment, are exclusive, indefeasible, and incapable of challenge by the 1st Defendant or any other party. 6.It was further averred that on diverse dates since the discovery of the alleged fraud, the 1st Defendant, without colour of right, entered upon the suit property, utilized armed intruders, cleared vegetation, and grazed cattle thereon in violation of the Plaintiffs’ rights. The Plaintiffs describe these actions as illegal, unlawful, and criminal, intended to unlawfully deprive them of possession of the suit property. 7.The Plaintiffs contend that unless restrained by an order of injunction, the 1st Defendant will continue his unlawful activities and may alienate or dispose of the property to unsuspecting third parties, thereby occasioning irreparable loss and damage that cannot be compensated by an award of damages. They assert that the matter is urgent, and due to the imminent danger of losing the property, the statutory notice of intention to sue could not be issued. 8.The Plaintiffs averred that the cause of action arose within Kajiado County, which is within the jurisdiction of this Honourable Court, and that no other suit is pending between the same parties over the same subject matter. 9.In light of the foregoing, the Plaintiffs seek judgment against the Defendant in the following terms:A.A declaration that the subdivision and subsequent transfer of land parcel No. KJD/Kaputei-Central/892 to the 1st Defendant is unlawful, fraudulent, null and void and of no legal consequence.B.An Order directed to the 2nd and 3rd Defendant to cancel the title issued to the 1st Defendant and revert land parcel KJD/Kaputei-Central/892 in the name of the Estate of Gideon Ntauti Kaipei Karei.C.An order of permanent injunction restraining the Defendant, whether acting by himself, agents, servants, employees, security personnel, contractors and/or by any other persons whatsoever, from entering upon, trespassing upon, taking over, excavating, damaging, constructing on, developing, marketing, offering for sale, selling, transferring, charging or in any other manner howsoever from interfering with the Plaintiffs' quiet enjoyment, possession and proprietorship rights of that property known as Land Reference Number KJD/Kaputei-Central/892 situate in Kajiado County.D.Cost of the suit against the 1st Defendant and interest thereon at court rates from the date of Judgment until settlement thereof in full.E.Any other relief that this Honourable Court may deem fit and just to grant in the circumstances of the case. 10.The 1st Defendant entered appearance and subsequently filed a Statement of Defence and Counterclaim dated 18th January 2022 and amended on 14th July 2023. In his Defence, the 1st Defendant generally denied each and every allegation contained in the Plaint other than what he specifically admitted. 11.He asserted that he is the registered owner of Land Reference No. Kajiado/Kaputiei-Central/892, having purchased the same from the late Gideon Ntauti Kaipei Karei, and was duly issued with a title deed on 27th March 2003 by the Land Registrar, Kajiado. The Defendant therefore denied the Plaintiffs’ contention that he unlawfully or fraudulently obtained the said parcel from Land Title No. KJD/Kaputei-Central/555, or that he has any claim to the latter property. He contended that he holds a good and valid title to Kajiado/Kaputiei-Central/892, issued lawfully by the Government. 12.The Defendant denied that there was any fraudulent subdivision of the original property as alleged by the Plaintiffs, stating that the Plaintiffs have not pleaded or particularized any act of fraud attributable to him or to any public officer. He therefore put the Plaintiffs to strict proof of the alleged fraud and denied any irregularity in the subdivision process or at the Land Registry. 13.The 1st Defendant further denied that any restriction or caveat was properly placed upon his land, terming the attempts by the Plaintiffs and the County Government of Kajiado to lodge restrictions as malicious and irregular, adding that such attempts did not bear any legal fruit and that his title remains unencumbered. 14.With regard to the Plaintiffs’ averments that they lodged a complaint at Kajiado Police Station under OB No. 33/15/10/2020, the Defendant expressly denied ever being summoned by any police authority concerning the suit property and challenged the Plaintiffs to prove otherwise. 15.The Defendant also denied that the Plaintiffs or their family have ever occupied or constructed any home upon LR No.Kajiado/Kaputiei-Central/892, maintaining that the Plaintiffs have never been registered as owners thereof and cannot therefore claim any proprietary rights over it. The Defendant further denied the Plaintiffs’ allegations that he unlawfully entered upon LR No. KJD/Kaputei-Central/555 or that he used armed gangs to invade or intimidate the Plaintiffs. He contended instead that it is the Plaintiffs who have forcefully and illegally invaded his property, grazing cattle thereon and using violence to assert false claims of ownership. He averred that the allegations that he hired armed gangs are false, unfounded, and malicious, and that it is the Plaintiffs who have resorted to unlawful means to gain entry onto his property. 16.Consequently, the Defendant prayed that the Plaint and the entire suit be dismissed with costs as against him. 17.In addition to his Defence, the 1st Defendant filed a Counterclaim against the Plaintiffs, reiterating his ownership and lawful possession of Kajiado/Kaputiei-Central/892, having been issued with a title deed on 27th March 2003 by the Land Registrar, Kajiado. He maintained that he had peacefully and quietly occupied and utilized the property until after the demise of the late Gideon Ntauti Kaipei Karei, when the Plaintiffs and other family members allegedly began interfering with his property, trespassing, and forcibly entering upon it. 18.The 1st Defendant averred that despite his efforts to prevent the Plaintiffs’ interference, they have continually invaded and trespassed upon his land, compelling him to report the matter to the police under OB No. 09/21/07/2021. He asserted that there have been no previous or pending proceedings between himself and the Plaintiffs in respect of the same property, and that this Honourable Court has the requisite jurisdiction to determine the counterclaim. He further averred that he had issued the Plaintiffs with a notice of intention to sue, but they failed or neglected to respond or make good his claim. 19.In view of the foregoing, the 1st Defendant (as Plaintiff by way of Counterclaim) prays for judgment against the Plaintiffs jointly and severally in the following terms:(a)A declaration that the 1st Defendant (Plaintiff by way of counterclaim) is the bonafide registered owner of Land Reference Number Kajiado/Kaputiei-Central/892.(b)An Eviction Order directed to the Plaintiffs (Defendants by way of counterclaim) ordering them forthwith to vacate the 1st Defendant’s (Plaintiff by way of counterclaim) parcel of land namely L.R. No. Kajiado/Kaputiei-Central/892.(c)A permanent injunction restraining the Plaintiffs (Defendants by way of counterclaim), their families, kin, agents, employees, servants or anyone claiming under the plaintiffs from trespassing upon, ingressing into, cultivating, selling, disposing of, or in any other manner interfering with the 1st Defendant’s (Plaintiff by way of counterclaim) quiet possession and ownership of Land Reference Number Kajiado/Kaputiei-Central/892.(d)An order directing the Officer Commanding Station (OCS), Mashuru Police Station, to oversee the implementation of these orders.(e)Costs of the suit.(f)Any other relief that this Honourable Court may deem fit and just to grant. 20.The Plaintiffs filed a Response to the Defendant’s Amended Statement of Defence and Defence to Counterclaim dated 31st January 2024. In the said response, the Plaintiffs generally denied all the allegations contained in the 1st Defendant’s Amended Defence and Counterclaim, save where expressly admitted. 21.In specific reply to the 1st Defendant’s contention that he is the lawful registered owner of Land Reference No. Kajiado/Kaputiei-Central/892, having purchased it from the late Gideon Ntauti Kaipei Karei and having been issued with a title deed on 27th March 2003, the Plaintiffs averred that at no time has the 1st Defendant furnished this Honourable Court with any valid proof of transfer documents evidencing a lawful sale or conveyance from the late Gideon Ntauti Kaipei Karei to himself. The Plaintiffs further stated that the 1st Defendant’s alleged ownership could only be the end product of a fraudulent transaction, citing the 1st Defendant’s failure to produce proper instruments of transfer. They reiterated that the burden of proof rests on the 1st Defendant to demonstrate that he lawfully acquired title to the suit property. 22.In response to the 1st Defendant’s denial that any restriction or caveat was placed on the suit land, the Plaintiffs reaffirmed that they had indeed produced before this Honourable Court a copy of the green card relating to KJD/Kaputei-Central/555, which clearly shows that a restriction was registered by the Registrar of Lands, Kajiado, upon the request of the County Government of Kajiado vide letter dated 19th November 2018. 23.In reply to the assertion that the Plaintiffs have never occupied or possessed Land Reference No. Kajiado/Kaputiei-Central/892, and that they are the ones who invaded his land and grazed cattle thereon, the Plaintiffs reiterated that they have at all material times been in possession of the ancestral property belonging to the estate of their late father, and that it is the 1st Defendant who has trespassed upon their land causing disturbance, destruction of vegetation, and environmental degradation. 24.The Plaintiffs maintained that the 1st Defendant cannot validly claim to be a bona fide owner of the suit property because his title, being rooted in fraud, confers no legal protection under the law, and therefore his continued presence on the land amounts to trespass. Consequently, the Plaintiffs prayed that their suit be upheld in its entirety and that the 1st Defendant be condemned to pay general damages for trespass. 25.In their Defence to the 1st Defendant’s Counterclaim, the Plaintiffs maintained that the 1st Defendant has never lawfully possessed or occupied the property and that his alleged title has been defeated for want of proof of valid acquisition. The Plaintiffs further contended that the 1st Defendant has, in fact, invaded their land and caused destruction of the environment and obliteration of vegetation, and therefore cannot turn around to claim the protection of the law. 26.The Plaintiffs expressly denied the 1st Defendant’s allegations that it was them who interfered with his property after the demise of their father or that they have ever been in unlawful occupation. They stated that they are strangers to the allegations of trespass contained in the 1st Defendant’s Counterclaim, putting him to strict proof thereof. 27.The Plaintiffs went further to assert that the 1st Defendant is a stranger and a trespasser to the suit property, and that by reason of his illegal and fraudulent actions, he lacks the locus standi to institute or maintain a counterclaim as a proprietor. They argued that his purported counterclaim offends the doctrine of ex turpi causa non oritur actio. The plaintiff prayed that the 1st Defendant’s counterclaim be dismissed with costs. 28.The 1st Defendant proceeded to file a Reply to Defence to Counterclaim dated 14th August 2024. In the said reply, the 1st Defendant generally denied each and every allegation contained in the Plaintiffs’ Defence to Counterclaim, save where expressly admitted. Specifically, in response to the Plaintiffs’ assertion that he had never been in possession of the suit property and that his claim of title had been defeated for want of valid acquisition, the 1st Defendant reiterated the contents of paragraph 11 of his Amended Counterclaim, insisting that he is the lawful registered proprietor of Land Reference No. Kajiado/Kaputiei-Central/892, having acquired it from the late Gideon Ntauti Kaipei Karei for valuable consideration and having been issued with a valid title deed on 27th March 2003. 29.Further, in response to the Plaintiffs’ averments that he had invaded the suit land and caused destruction, and that he lacked locus standi to institute the counterclaim, the 1st Defendant reiterated the contents of paragraphs 12 to 14 of his Amended Counterclaim, maintaining that it is, in fact, the Plaintiffs who unlawfully entered and interfered with his peaceful possession of the property following the demise of the original owner. He restated that the Plaintiffs’ continued occupation amounted to trespass, for which he reported to the police and was issued with OB.NO. 09/21/07/2021. 30.The 2nd, 3rd and 4th Defendants did not enter appearance despite issuance and service of summons to that effect. Analysis of Evidence Plaintiffs’ Evidence 31.The Plaintiffs’ case was supported by the oral testimony of two witnesses, namely Saya Ene Kaipei (PW1) and William Kaipei Ntauti (PW2). PW1 testified on oath and in Maasai (as interpreted by the court assistant, Mr. Mpoye). She averred that she is a resident of Ilmungush in Mashuru sub-county and is the widow of the late Gideon Ntauti Kaipei Karei, from whom she and her family derive their interest in the suit property. She stated that the dispute before court concerns land that rightfully belonged to her late husband but which the 1st Defendant has since attempted to take over. PW1 reiterated that her late husband was a member of Erankan Group Ranch and that the land in issue, Land Reference No. Kajiado/Kaputiei-Central/555, was allocated to him through his membership in that group ranch. 32.She further stated that her husband, now deceased, never informed her that he had sold, transferred, or otherwise disposed of the land to any other person. She emphasized that the family remained in occupation of the land until the 1st Defendant began asserting ownership and taking possession thereof after her husband’s death. PW1 expressed that the 1st Defendant’s acts of fencing, constructing structures, and asserting ownership were unlawful and amounted to interference with the family’s land. 33.PW1 confirmed that the family had obtained a copy of the green card in respect of the suit property and produced it as part of their exhibits, asserting that the register reveals a restriction placed by the Registrar of Lands, Kajiado upon the request of the County Government of Kajiado restricting further dealings and subdivision. This document was produced among PE1–PE7. 34.In cross-examination, PW1 conceded that she was unaware of the precise parcel number of the land her family occupies but maintained that it belonged to her late husband. She admitted that the original title is in possession of the 1st Defendant, adding that her late husband had voluntarily handed it over to him for reasons unknown to her. She stated that she was not aware that the title initially issued by the group ranch may have been jointly registered in the names of her late husband and the 1st Defendant, nor was she aware of any subsequent subdivision of the original parcel. 35.When shown a mutation form appearing in the 1st Defendant’s bundle of documents, PW1 confirmed that it bears the signatures of both her late husband and the 1st Defendant. However, she stated that her late husband never explained why he executed such a document, nor was she aware of any lawful transfer process or sale agreement between them. She further testified that although her family has a title in the name of her late husband being Land Parcel No. Kajiado/Kaputiei-Central/892, she does not know when it was issued or its acreage. 36.PW1 acknowledged that compensation for wayleave by KETRACO for transmission lines passing through the land was made to the 1st Defendant, and neither she nor her late husband lodged a complaint at the time. She admitted that the family only took up the matter after her husband’s demise, when her adult children began making inquiries about the land. While alleging that the transfer to the 1st Defendant was fraudulent, PW1 admitted that she had not tendered any documentary evidence to prove fraud or forgery, nor was she aware of any police investigations or charges against the 1st Defendant in that regard. 37.She further testified that a restriction was indeed registered on Parcel No. Kajiado/Kaputiei-Central/893, but not on Parcel No. 892, which stands in the 1st Defendant’s name. She stated that she has not subdivided her family’s portion of land and confirmed that the 1st Defendant’s house stands on a distinct portion, upon which no formal protest was made at the time it was erected. 38.Upon re-examination, PW1 clarified that she came to court because her husband’s land was being interfered with unlawfully. She maintained that her husband never co-owned the land with the 1st Defendant, and that the latter’s actions of fencing and erecting structures during the COVID-19 pandemic period constituted the genesis of this dispute. She reiterated that she had not been shown any title document for the original Parcel No. 555 indicating joint ownership between her husband and the 1st Defendant. 39.The second witness, PW2 – William Kaipei Ntauti, testified in Kiswahili. He identified himself as the first-born son of the late Gideon Ntauti Kaipei, who passed away on 1st July 2011. He stated that his late father was the owner of land parcel Kajiado/Kaputiei-Central/555, measuring approximately 220 acres. PW2 told the court that he had never seen a title deed for the land and was unaware that it had ever been co-owned or sold to any other person. 40.He testified that following the death of his father, the 1st Defendant, one Mr. Mukaampa, emerged claiming to have purchased part of the said land and proceeded to fence it off. When the family inquired about any sale agreement or proof of purchase, the 1st Defendant allegedly admitted that there was no written agreement and that no witnesses were present during the alleged transaction. PW2 was not aware of any payment made for the purported sale or of any Land Control Board consent sanctioning such sale or transfer. 41.He further testified that the family lodged a complaint with the police regarding the 1st Defendant’s interference with their land, and an Occurrence Book (OB) number was issued, which was part of the plaintiffs’ exhibits. They also reported the matter to the Land Registrar’s Office. PW2 denied knowledge of any communication between the County Government of Kajiado and the Ministry of Lands in relation to the land. 42.He maintained that the family only became aware of the 1st Defendant’s claim after their father’s death and that the police had advised both parties to refrain from interfering with each other’s respective portions pending resolution. PW2 recalled that during the pendency of this case, the 1st Defendant returned to the land accompanied by his six sons, fenced it off, and in the process blocked the plaintiffs’ access to the main road. Subsequently, PW2 was arrested on allegations of destroying the fence. 43.He disputed the mutation form produced by the 1st Defendant, stating that although it bore his late father’s thumbprint, the latter was literate and usually signed documents, not thumb-printed them. He insisted that any subdivision or sale, if at all, was irregular and unlawful. 44.During cross-examination, PW2 stated that he had never personally seen the title deed for parcel Kajiado/Kaputiei-Central/555, nor did he know in whose names it was registered. He confirmed that he was eighteen years old in 2003. He acknowledged that titles Kajiado/Kaputiei-Central/892 and 893 were issued in 2003, but maintained that there was no valid partition or transfer that could have given rise to those parcels. 45.He identified a letter from the County Government of Kajiado to the Principal Land Registrar dated 19th November 2018 (produced as part of the plaintiffs’ exhibits), which requested the registration of a restriction over parcel 892 on grounds that the land had been sold without the family’s consent. Although he confirmed that the 1st Defendant had a title deed in his name, he emphasized that the plaintiffs had not seen any evidence of lawful transfer. 46.PW2 further stated that the mutation form contained both a signature and a thumbprint, allegedly representing his father and the 1st Defendant respectively, but questioned its authenticity. He denied having any evidence of collusion between the Land Registrar and the 1st Defendant but maintained that the 1st Defendant had wrongfully acquired title. 47.Upon re-examination, PW2 reaffirmed that there was no lawful subdivision or transfer of the suit property. He reiterated that the letter from the County Government dated 19th November 2018 supported their position that parcel 892 was irregularly obtained. He insisted that his late father could sign documents and would not have used a thumbprint, suggesting that the mutation form relied on by the 1st Defendant was questionable. 48.PW2 maintained that KETRACO’s compensation for the wayleave was paid after his father’s death, and the 1st Defendant was the recipient of that compensation. He confirmed that the 1st Defendant began constructing on the disputed land around 2012–2013, and during the COVID-19 period he attempted to fence off the area completely. The plaintiffs thereafter filed this suit seeking restoration of their ownership and protection from the 1st Defendant’s interference. The plaintiffs then closed their case. 49.The 1st Defendant, Mukaampa Leleta Kisoso (DW1), testified in Kiswahili. His testimony revolved around his asserted ownership of Land Parcel No. Kajiado/Kaputiei-Central/892 (Parcel 892), which he claimed arose from the subdivision of Land Reference No. Kajiado/Kaputiei-Central/555 (Parcel 555). 50.DW1 stated that he and the late Gideon Ntuati Kaipei Karei had originally co-owned Parcel 555 prior to its subdivision. He testified that his current parcel, Parcel 892, resulted from that subdivision. According to him, he had been in uninterrupted possession of the land for approximately eighteen (18) years, having fenced and occupied it even before the death of the late Gideon Ntuati. 51.He further stated that there existed a KETRACO power transmission line passing through his parcel and that he was duly compensated for the same by KETRACO, asserting that this compensation was evidence of his ownership. He emphasized that there had been no objection to his compensation and no disputes between himself and the late Ntuati during the latter’s lifetime. He also produced a bundle of documents dated 14th August 2024, which the Court marked as DEX 1–3. 52.During cross-examination, DW1 maintained that he purchased the land from the late Gideon Ntuati for Kshs. 600,000/=, but admitted that no written sale agreement was ever executed to formalize the transaction. He stated that the sale was witnessed by Ntuati’s wife, though she was not called as a witness in these proceedings. He acknowledged that he had not presented any documentary proof of the payment before the Court. 53.When questioned on the process of acquisition, DW1 stated that the transaction occurred before the dissolution of the Group Ranch, and as such, they did not involve the Land Control Board. He reiterated that Title No. 555 was initially registered in two names—his and that of the late Ntuati, arising from the group ranch allocation. He maintained that this was permissible, as a group ranch could allocate a parcel to two members as joint proprietors, and that it was common for members to hold more than one parcel. 54.He confirmed that his signature appears on the mutation form relating to the subdivision of Parcel 555 but stated that he did not know whose impression appeared above his signature. He also maintained that he was present with the late Ntuati when the mutation form was executed and denied any suggestion that he had coerced or tricked the deceased into signing it. 55.On the issue of police involvement, DW1 admitted that he had reported members of the late Ntuati’s family to the police for what he termed as destruction of his property and interference with his land, though he did not produce an OB number or any supporting police documentation. He denied allegations that he used the police to intimidate the deceased’s family or to coerce them into withdrawing this suit, insisting that his reports were legitimate complaints about trespass and property damage. 56.He denied knowledge of Parcel No. 607, which had featured in other proceedings, and rejected any suggestion that he had other pending disputes concerning fraudulent acquisition of land. He also denied ever boasting of having “pocketed” the Land Registrar at Kajiado, as alleged by the Plaintiffs. 57.Under re-examination by his counsel, Mr. Wachira, DW1 clarified that both he and the late Gideon Ntuati were members of the same group ranch and that the group ranch committee approved the joint ownership reflected in the title. He reiterated that he fenced and took possession of his parcel during the lifetime of Ntuati, and that no member of Ntuati’s family objected at the time. He emphasized that his title deed (DEX 1) indicates an easement in favour of KETRACO, further confirming his ownership. 58.He concluded by affirming that he did not compel the late Ntuati to append his left-hand thumbprint on the mutation form and that the transaction between them was consensual and lawful. DW1 closed his case without calling any additional witnesses. 59.On 6th November 2025, the Court, suo moto, called the Land Registrar, Kajiado, to testify and provide clarity on the registration history and dealings concerning the suit property. 60.Upon cross-examination by the parties, the Land Registrar, Rosemary Mwangi, provided further clarification regarding the official records held at the Kajiado Land Registry concerning the disputed parcels. 61.When cross-examined by counsel for the Plaintiffs, the Registrar was questioned extensively on the mutation form dated 23rd October 2002, which facilitated the subdivision of the parent parcel, Land Reference No. KJD/Kaputei-Central/555. She acknowledged that the mutation form bore both a signature and a thumbprint. However, she testified that she could not personally ascertain whether the late Gideon Ntauti Kaipei Karei was literate or why a thumbprint was utilized instead of a signature, noting that the registry relies on the statutory forms as prepared and presented by the licensed surveyor. She further testified regarding the procedural requirements for subdivision at the time, stating that the documents presented for the subdivision of parcel 555 and the subsequent issuance of titles met the registration threshold as per the registry's records. 62.Regarding the restriction sought by the County Government of Kajiado vide the letter dated 19th November 2018, the Registrar clarified under cross-examination that while the registry received communication requesting a restriction, the official register reflects that a restriction was only successfully entered against Land Reference No. KJD/Kaputei-Central/893, which is the parcel registered in the name of the deceased. She maintained that no such restriction, caveat, or caution was ever registered against the 1st Defendant’s parcel, Land Reference No. KJD/Kaputei-Central/892. 63.During cross-examination by counsel for the 1st Defendant, the Registrar reaffirmed the contents of the original Green Card for the parent title. She confirmed to the court that prior to the subdivision in 2002, the register explicitly indicated that Land Reference No. KJD/Kaputei-Central/555 was held under joint proprietorship as tenants in common by both the late Gideon Ntauti Kaipei Karei and the 1st Defendant, Mukaampa Leleta Kisoso. Analysis of Submissions 64.The Plaintiffs, through their written submissions, urged the Court to find that the 1st Defendant’s acquisition of Land Reference No. Kajiado/Kaputiei-Central/892 (the suit property), measuring approximately 46 hectares, was fraudulent and unlawful. They sought, inter alia, declarations nullifying the subdivision and transfer of Land Reference No. Kajiado/Kaputiei-Central/555 (the mother property), cancellation of the title issued to the 1st Defendant, reversion of the same to the estate of the late Gideon Ntauti Kaipei Karei, a permanent injunction restraining interference with the suit property, and costs of the suit. 65.In their background summary, the Plaintiffs narrated that the deceased was the sole registered proprietor of the mother property measuring approximately 93.71 hectares. Upon his death on 1st July 2011, the Plaintiffs—his spouse and son—discovered that the 1st Defendant had fraudulently obtained title to a portion thereof, namely parcel No. 892, without their knowledge or consent. They contended that records from the Kajiado Land Registry revealed that the subdivision and subsequent transfer were fraudulent. Following this discovery, they lodged a complaint with the County Government of Kajiado in 2018, leading to a restriction being placed on the property. They subsequently obtained a Grant of Letters of Administration ad litem on 24th September 2020 for purposes of instituting the present proceedings, and reported the alleged fraud to the police under OB No. 33/15/10/2020. 66.The Plaintiffs submitted that following the fraudulent acquisition, the 1st Defendant unlawfully entered the suit property, engaged intruders to intimidate them, cleared vegetation, and grazed cattle on the land, thereby violating their proprietary rights. 67.On the legal analysis, the Plaintiffs placed reliance on several authorities to restate the standard of proof in civil cases, emphasizing that their burden was to prove their case on a balance of probabilities. They cited authorities including Nyaga v Attorney General (2023) and Palace Investment Ltd v Geoffrey Kariuki Wenda & Another (2015), underscoring that the requisite standard is attained where the court finds it more probable than not that the Plaintiffs’ version of events is true. 68.They further relied on Sections 107 and 109 of the Evidence Act, and judicial pronouncements such as Raila Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others (2017), to argue that the burden of proof rests upon the party alleging fraud, and that they had sufficiently discharged that burden. 69.On the question of limitation, the Plaintiffs invoked Sections 7 and 9(2) of the Limitation of Actions Act, arguing that the present action, being one for recovery of land, was instituted within ten years of the deceased’s death and therefore within the twelve-year limitation period prescribed by statute. 70.The Plaintiffs maintained that the deceased was the sole registered proprietor of the mother property, relying on the testimonies of PW1 (Saya Kaipei) and PW2 (William Kaipei) who both affirmed that the property was allocated solely to the deceased by the Erankau Group Ranch, which under its rules could not allocate one parcel of land to multiple individuals. They contrasted this with the 1st Defendant’s inconsistent testimony, noting that he initially confirmed that the land belonged to the deceased but later claimed joint ownership. This contradiction, they argued, rendered his evidence unreliable. 71.On the issue of fraudulent subdivision, the Plaintiffs submitted that neither PW1 nor PW2 had any knowledge of the subdivision and that the mutation form bearing the deceased’s thumbprint was procured through fraud, coercion, and misrepresentation. They argued that the deceased was literate and ordinarily signed documents, and that the use of a thumbprint demonstrated manipulation by the 1st Defendant. They therefore urged the Court to find that the subdivision of parcel 555 into parcels 892 and 893 was fraudulent, unlawful, and void. 72.Regarding the alleged sale, the Plaintiffs submitted that under Section 3(3) of the Law of Contract Act, all contracts for the sale of land must be in writing and signed by the parties in the presence of an attesting witness. The 1st Defendant, having failed to produce any written agreement, witnesses, Land Control Board consent, or proof of payment, could not lawfully claim ownership. They further invoked Section 26 of the Land Registration Act, asserting that while a certificate of title is prima facie evidence of ownership, it is impeachable where the same is obtained by fraud, misrepresentation, illegality, or a corrupt scheme. They cited Munyu Maina v Hiram Gathiha Maina (Civil Appeal No. 239 of 2009) and the Supreme Court decision in Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), which collectively held that indefeasibility of title cannot stand where the acquisition process was illegal or irregular. 73.In their view, the 1st Defendant’s shifting narrative—alternating between alleged purchase and alleged joint ownership—betrayed dishonesty and further confirmed that the title was fraudulently acquired. They pointed to the absence of proof of purchase, consent, or consideration and argued that the 1st Defendant’s possession after the deceased’s death was indicative of unlawful entry and fraudulent acquisition. 74.The Plaintiffs also alleged harassment and intimidation, maintaining that the 1st Defendant hired armed gangs to invade the land and used police officers from Mashuru Police Station to arrest PW2 in an attempt to coerce the family into withdrawing the suit. They argued that these acts constituted interference with their proprietary rights and justified the grant of a permanent injunction. 75.Furthermore, the Plaintiffs contended that the 1st Defendant had a reputation of fraudulent dealings, citing his involvement in ELC Case No. 55 of 2020 – Apureti Kaipei Karei v Mukaampa Leleta Kisoso & 2 Others, concerning another disputed parcel (KAJIADO/Kaputei-Central/571), which was similarly challenged for fraudulent acquisition and is now pending appeal. They argued that this pattern of conduct demonstrated the Defendant’s propensity to take advantage of vulnerable persons. 76.In conclusion, the Plaintiffs submitted that they had proven their case on a balance of probabilities and were therefore entitled to the reliefs sought. They relied on Section 80 of the Land Registration Act, which empowers the court to order rectification of the register where fraud is proven, and urged the Court to direct cancellation of the 1st Defendant’s title and re-registration of the suit property in the name of the deceased’s estate. 77.On costs, they invoked Section 27 of the Civil Procedure Act and the Supreme Court decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR, urging that costs follow the event to compensate the successful litigant. They also relied on Kenya Power & Lighting Co. Ltd v Sheriff Molana Habib [2018] eKLR on the nature of permanent injunctions, to support their plea for a permanent injunction against the 1st Defendant and his agents. 78.In summation, the Plaintiffs maintained that the totality of the evidence and legal authorities demonstrated that the subdivision and transfer of parcel 555 to create parcel 892 in favour of the 1st Defendant was fraudulent, that the title was unlawfully obtained, and that the deceased’s estate remains the rightful owner of the suit property. They accordingly prayed that the Court grants all the reliefs sought in the Plaint. 79.The 1st Defendant filed written submissions dated 14th July 2023 in defence of his ownership of Title Number Kajiado/Kaputiei-Central/892, and in support of his amended counterclaim. 80.In the introductory part, counsel for the 1st Defendant reiterated the factual basis of the case — that the plaintiffs, as administrators of the estate of the late Gideon Ntauti Kaipei Karei, allege that the 1st Defendant fraudulently obtained registration of Title No. Kajiado/Kaputiei-Central/892. The 1st Defendant emphasized that he is the undisputed registered proprietor of the parcel, having been issued with the title deed on 6th November 2002, and that the deceased himself never raised any objection or claim during his lifetime. He noted that the plaintiffs only began raising issues following the demise of the deceased, which, in his view, casts doubt on the bona fides of their claim. 81.On the issue of limitation, the 1st Defendant’s submissions centered on Sections 7 and 9(2) of the Limitation of Actions Act (Cap 22). He submitted that the plaintiffs’ claim was hopelessly time-barred, arguing that the cause of action arose when he was registered as proprietor on 6th November 2002. By his computation, the statutory period of twelve years for recovery of land lapsed on 6th November 2014, yet the plaintiffs only instituted the suit in 2021, well outside the limitation period. He contended that even if the plaintiffs alleged fraud, they neither pleaded nor proved when the alleged fraud was discovered, making reliance on Section 26 of the Act untenable. Consequently, he urged that the plaint be struck out as statute-barred. 82.Turning to the question of the subdivision of Title Number Kajiado/Kaputiei-Central/555, the 1st Defendant submitted that the plaintiffs’ assertion of sole ownership by the deceased lacked evidentiary foundation, since no green card or title was produced showing that Parcel No. 555 was registered exclusively in the deceased’s name. He relied on the mutation form dated 23rd October 2002, which was duly signed by both himself and the deceased, to demonstrate that the subdivision giving rise to parcels Kajiado/Kaputiei-Central/892 and 893 was lawful and consensual. This mutation, produced as part of DEX 1–3, was registered and remains unchallenged. The defendant argued that it is illogical for the plaintiffs to assail his title without first impeaching the validity of the mutation from which it emanated. 83.Counsel faulted the plaintiffs for failing to particularize fraud as required by law, citing Mohamed Aden Ali & 2 Others v Mohamed Mohamud Kassim [2012] KEHC 2992 (KLR), where the court underscored that allegations of fraud must be strictly proved and supported by concrete particulars. He further cited Koinange & 13 Others v Koinange (Civil Suit No. 66 of 1984) and Central Bank of Kenya Ltd v Trust Bank & 4 Others [1996] eKLR, to reinforce that general or vague allegations of fraud are insufficient, and that the burden of proof in such cases is higher than on a balance of probabilities. The defendant thus submitted that the plaintiffs’ failure to subject the mutation to forensic scrutiny, or to prove that the deceased’s thumbprint thereon was obtained through coercion, fatally undermined their case. 84.Regarding the validity of Title Number Kajiado/Kaputiei-Central/892, the 1st Defendant submitted that the late Gideon Ntauti Kaipei Karei freely sold him a portion of land and that his registration was a legitimate culmination of that sale. He pointed out that the deceased never challenged the transaction or the defendant’s occupation of the land during his lifetime, suggesting that the sale was consensual and complete. The plaintiffs’ complaint, he argued, arises merely from dissatisfaction with the deceased’s decision to dispose of part of his property without consulting them, as evidenced by the letter dated 19th November 2018. The 1st Defendant argued that there was no legal requirement for the deceased to obtain the consent of his children or heirs before selling his own property. 85.He further contended that Section 3(3) of the Law of Contract Act—which requires land sale agreements to be in writing—was not applicable, since the transaction occurred before the amendment came into force on 1st June 2003. By that date, the sale between himself and the deceased had been completed, and registration effected on 6th November 2002, with the title deed issued on 27th March 2003. Consequently, the absence of a written agreement could not invalidate the transaction. 86.The 1st Defendant also invoked Section 26 of the Land Registration Act, which accords indefeasibility to a registered title unless obtained through fraud or misrepresentation to which the proprietor is proved to be a party. He submitted that no such fraud or misrepresentation was established against him, and the extract of the green card produced in court confirms his lawful registration as proprietor of Parcel No. 892. 87.On the plaintiffs’ allegations of harassment, the 1st Defendant dismissed them as baseless, observing that no evidence was adduced to show intimidation or unlawful interference with the plaintiffs’ family. He argued that the plaintiffs’ attempt to invoke Section 55(1) of the Evidence Act to impugn his character was misguided, and that reliance on a prior judgment which had, in fact, found him to be credible was self-defeating. He quoted portions of that earlier judgment where the court expressly described him as a truthful witness, thereby undermining the plaintiffs’ effort to portray him as a fraudulent individual. 88.In conclusion, the 1st Defendant urged the court to find that the plaintiffs had failed to discharge the burden of proof on their allegations of fraud and illegality, and that their suit was time-barred and without merit. He further prayed that his amended counterclaim dated 14th July 2023 be allowed, that he be declared the lawful proprietor of Kajiado/Kaputiei-Central/892, and that the plaintiffs’ suit be dismissed with costs. 89.Following the testimony of the Land Registrar, the court granted the parties leave to file supplementary submissions to address the new evidentiary developments. 90.In their supplementary submissions, the Plaintiffs assert that the subdivision process was marred by procedural irregularities which inherently invalidate the 1st Defendant's title. They rely on the Land Registrar's revelation during cross-examination that the initial subdivision docket for Kajiado/Kaputei/555 lacked crucial foundational documents, specifically an Identity Card, a KRA PIN, and the mother title itself. Furthermore, the Plaintiffs contend that the execution of the mutation form was defective, noting that it was not duly signed on the second page and that the deceased's alleged thumbprint was merely affixed to the final page of the document. Invoking the "root of title" principle and the Court of Appeal's holding in Arthi Highway Developers Limited v West End Butchery Limited & 6 Others, the Plaintiffs argue that a certificate of title acquired through an illegal or procedurally defective process cannot be sanctified by mere registration, thus stripping the 1st Defendant of the defense of indefeasibility of title. Consequently, they submit that the defective transfer process cannot confer valid proprietary rights and ultimately pray for the title to be reconstructed and for costs to be awarded in their favor. 91.Conversely, the 1st Defendant's supplementary submissions vigorously defend the legality of the registration process and underscore the Plaintiffs' failure to substantiate their allegations of fraud. The 1st Defendant highlights the Registrar's sworn confirmation that the mutation form was properly lodged, registered, and endorsed by the registrar on 6th November 2002, and that it was signed on the last page by all proprietors. This process, he argues, led to the regular and proper creation of the registers for parcels 892 and 893 upon subdivision. Regarding the missing foundational documents, the 1st Defendant points to the Registrar's explanation that the supporting documents were unavailable strictly due to the ongoing digitization processes within the Kajiado Land Registry office. 92.The 1st Defendant further argues that it is trite law that fraud must be specifically pleaded and proven, yet the Plaintiffs completely failed to discharge their evidentiary burden of proving that the thumbprint on the mutation form was not attributable to the deceased. Additionally, the submissions highlight that following the subdivision, the deceased willingly collected the title deed for his portion and lived for years without ever raising a claim of disentitlement, lack of consultation, or fraud. Finally, the 1st Defendant asserts that the Plaintiffs' new prayer to "reconstruct" the title is procedurally misplaced as it was never pleaded in their original Plaint. Grounding his claim on a traceable and documented root of title, the 1st Defendant prays that the court upholds his title, dismisses the Plaintiffs' suit with costs, and allows his counterclaim in totality Issues for Determination 93.Having carefully considered the pleadings, the oral and documentary evidence adduced by the parties, the testimony of the Land Registrar, and the written submissions, the Court distills the following fundamental issues for determination:a.Whether the Plaintiffs’ suit is statute-barred by operation of the Limitation of Actions Act (Cap 22).b.Whether the deceased, Gideon Ntauti Kaipei Karei, was the sole registered proprietor of the mother title, Land Reference No. KJD/Kaputei-Central/555, prior to its subdivision in 2002.c.Whether the Plaintiffs have discharged the evidentiary burden of proving that the 2002 subdivision process and the subsequent issuance of Title No. KAJIADO/Kaputei-Central/892 to the 1st Defendant was fraudulent, unlawful, or fatally defective.d.Whether the 1st Defendant’s title to Land Reference No. KAJIADO/Kaputei-Central/892 enjoys the protection of indefeasibility under Section 26 of the Land Registration Act.e.Whether the Plaintiffs are in unlawful occupation of the suit property, and consequently, whether the 1st Defendant has established his Counterclaim to warrant orders of eviction and a permanent injunction.f.What final orders should issue regarding the respective prayers in the Plaint and the Counterclaim, and who shall bear the costs of the suit. Analysis and Determination a. Whether the Plaintiffs’ suit is statute-barred by operation of the Limitation of Actions Act (Cap 22). 94.The first issue that commends itself for determination is the 1st Defendant’s preliminary defense that the Plaintiffs’ suit is time-barred. The 1st Defendant contends that having been registered as the proprietor of Land Reference No. KAJIADO/Kaputei-Central/892 on 6th November 2002 and issued with a title deed on 27th March 2003, the twelve-year statutory period for the recovery of land lapsed in 2015. Consequently, he argues that the present suit instituted in 2021 offends the provisions of the Limitation of Actions Act. 95.Conversely, the Plaintiffs anchor their claim on fraud. They assert that the subdivision and subsequent transfer of the suit property were done clandestinely and fraudulently, behind the back of the deceased, Gideon Ntauti Kaipei Karei. Crucially, they aver that this fraudulent scheme was completely concealed from the family and was only discovered in 2018 when they conducted a search at the Kajiado Land Registry following the 1st Defendant's entry onto the land. 96.The general rule regarding the limitation period for the recovery of land is espoused under Section 7 of the Limitation of Actions Act (Cap 22), which provides verbatim:“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person." 97.Ordinarily, the computation of time would commence from the date the cause of action arose, in this case, 2002 or 2003, which would indeed render a 2021 suit out of time. However, the law provides a statutory shield for litigants where a cause of action is concealed by fraud. Section 26 of the Limitation of Actions Act is instructive on this point. It provides verbatim as follows:“Where, in the case of an action for which a period of limitation is prescribed, either— (a) the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or (b) the right of action is concealed by the fraud of any such person as aforesaid; or (c) the action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it..." 98.It is a cardinal principle of law that in allegations of fraud, time does not begin to run until the fraud is actually discovered or could, with reasonable diligence, have been discovered. The Plaintiffs' core pleading is that the deceased’s thumbprint on the mutation form was either manipulated or forged, and that the resultant subdivision to create Parcel 892 was an act of concealed fraud. 99.The 1st Defendant bears the burden of demonstrating that the deceased or the Plaintiffs were aware of this alleged fraud earlier than 2018 to trigger the limitation clock. While the Land Registrar testified to the existence of the mutation and the joint register, the essence of the Plaintiffs' claim is that these very records were the product of a fraudulent enterprise that was successfully hidden from them. The Plaintiffs provided uncontroverted testimony that they only became aware of the Defendant's claim to a distinct title in 2018, prompting them to seek the intervention of the County Government of Kajiado, which subsequently authored the restriction request letter dated 19th November 2018. 100.In applying the provisions of Section 26 of the Limitation of Actions Act to the facts pleaded and the evidence adduced by the Plaintiffs regarding their discovery of the anomaly, the limitation clock remained paused until 2018. The cause of action effectively crystallized upon the discovery of the alleged fraud. 101.Computing the twelve-year statutory period from the year of discovery in 2018, the institution of this suit in 2021 was done well within the permissible legal timelines. 102.I therefore find and hold that the Plaintiffs’ suit is not statute-barred. The objection on limitation of actions raised by the 1st Defendant fails, and the Court shall proceed to determine the substantive merits of the dispute. b. Whether the deceased, Gideon Ntauti Kaipei Karei, was the sole registered proprietor of the mother title, Land Reference No. KJD/Kaputei-Central/555, prior to its subdivision in 2002. 103.Having dispensed with the preliminary issue of limitation, the Court now turns to the foundational factual dispute upon which the Plaintiffs' entire cause of action rests: the historical ownership of the parent parcel, Land Reference No. KJD/Kaputei-Central/555. 104.The Plaintiffs, both in their pleadings and through the oral testimonies of PW1 (Saya Ene Kaipei) and PW2 (William Kaipei Ntauti), vehemently asserted that the late Gideon Ntauti Kaipei Karei was the exclusive and sole registered owner of the mother title, measuring approximately 93.71 hectares, having been allocated the same by the Erankan Group Ranch. They posited that because he was the sole owner, the 1st Defendant’s subsequent acquisition of a portion of that land (Parcel 892) could only have been the result of a fraudulent excision. 105.The 1st Defendant (DW1), conversely, testified that the mother title was never solely owned by the deceased. He maintained that from its inception, the group ranch allocated and registered the land to both himself and the deceased as joint proprietors. 106.Under Sections 107 and 109 of the Evidence Act (Cap 80), he who asserts must prove. The burden squarely lay upon the Plaintiffs to prove, on a balance of probabilities, that the deceased was the sole registered proprietor of Parcel 555. To discharge this burden, the Plaintiffs relied exclusively on their oral testimonies. However, during cross-examination, concessions were made. PW1 admitted that she had never seen the original title document for Parcel 555 and was unaware of whose names were actually on it. Similarly, PW2 conceded that he was only eighteen years old at the time of the subdivision in 2003, had never personally seen the title deed for Parcel 555, and did not know in whose names it was formally registered. 107.Oral assertions of ownership cannot supplant the official documentary records held by the State. In matters of land proprietorship, the register is the ultimate mirror of ownership. To settle this impasse, the Court takes cognizance of the independent, expert, and documentary evidence tendered by the Land Registrar, Rosemary Mwangi, who testified under a court summons. 108.The Land Registrar produced the original Green Card for Land Reference No. KJD/Kaputei-Central/555. Her sworn testimony unequivocally dismantled the Plaintiffs' narrative. She testified that according to the official registry records, Parcel 555 was first registered on 26th November 1999. Crucially, the register explicitly indicated that the property was held under joint proprietorship by two individuals. Those two registered proprietors were: Gideon Ntauti Kaipei Karei (the deceased) and Mukaampa Leleta Kisoso (the 1st Defendant). The Plaintiffs did not produce any official search, title deed, or green card to contradict the Land Registrar's records. It is a fundamental tenet of our land tenure system that the official land register is prima facie evidence of the matters contained therein. The Plaintiffs' reliance on oral history and family assumptions cannot override the strict documentary reality of the Kajiado Land Registry. 109.The revelation that the 1st Defendant was a registered co-owner of the mother title fundamentally shifts the complexion of this dispute. It negates the Plaintiffs' core theory that a "stranger" invaded their father's exclusive property and fraudulently excised a portion of it. Rather, the documentary evidence proves that the 1st Defendant held a registered, legal, and equal interest in the parent parcel from the very date of its first registration in 1999. 110.I therefore find and hold as a matter of fact and law that the deceased, Gideon Ntauti Kaipei Karei, was not the sole registered proprietor of the mother title, Land Reference No. KJD/Kaputei-Central/555. The official registry records conclusively prove that prior to its subdivision in 2002, the said parcel was jointly owned by the deceased and the 1st Defendant as tenants in common in equal shares. The Plaintiffs have failed to discharge their burden of proving exclusive ownership by the deceased. c. Whether the Plaintiffs have discharged the evidentiary burden of proving that the 2002 subdivision process and the subsequent issuance of Title No. KAJIADO/Kaputei-Central/892 to the 1st Defendant was fraudulent, unlawful, or fatally defective. 111.Having established that the parent parcel was jointly owned by the deceased and the 1st Defendant, the Court must now scrutinize the legality of the 2002 subdivision that split the property into Parcel 892 and Parcel 893. The gravamen of the Plaintiffs' case is that the subdivision was a fraudulent enterprise, particularly alleging that the mutation form was forged because it bore a thumbprint instead of the deceased's signature. Furthermore, in their supplementary submissions, the Plaintiffs asserted that the process was procedurally defective due to the absence of certain foundational documents in the registry's docket. 112.The burden of proof in civil proceedings is anchored on Section 107(1) of the Evidence Act (Cap 80), which provides verbatim:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist." 113.When a litigant's claim is founded on allegations of fraud, the evidentiary burden becomes significantly more stringent. Fraud is a serious and quasi-criminal imputation. The courts have consistently held that it is not enough to merely make sweeping allegations of fraud; such allegations must be specifically pleaded, particularized, and strictly proven by the party asserting them. 114.On this strict standard of proof, I place reliance on the celebrated holding of the Court of Appeal for Eastern Africa in the classic case of Ratilal Gordhanbhai Patel v. Lalji Makanji [1957] EA 314, where the Court authoritatively stated:“Allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required." 115.This position was further cemented by the Court of Appeal in Vijay Morjaria v. Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA (as he then was) pronounced verbatim:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts." 116.Guided by these robust jurisprudential principles, the Court turns to evaluate the evidence tendered by the Plaintiffs. The Plaintiffs’ allegation of fraud rests almost entirely on the assertion by PW2 (William Kaipei Ntauti) that his late father was literate, ordinarily signed documents, and would not have appended a thumbprint on the mutation form dated 23rd October 2002. 117.To satisfy the strict standard of proof required for fraud or forgery, it was incumbent upon the Plaintiffs to adduce cogent, independent evidence demonstrating that the thumbprint was not that of the deceased. The most prudent evidentiary route would have been the production of a forensic document examiner's report or testimony from a handwriting/fingerprint expert. The Plaintiffs offered no such expert evidence. They also failed to call any witnesses who were present during the execution of the mutation to rebut the 1st Defendant's direct testimony that he and the deceased executed the document together. The Court cannot deduce or infer fraud merely from the Plaintiffs' subjective belief that their father preferred a signature over a thumbprint. The Plaintiffs thus failed to strictly prove the allegation of forgery. 118.Turning to the Plaintiffs' supplementary argument that the subdivision was "fatally defective" due to missing documents, they placed heavy reliance on the Court of Appeal's holding in Arthi Highway Developers Limited v. West End Butchery Limited & 6 Others. They argued that because the Land Registrar admitted during cross-examination that the initial subdivision docket lacked an Identity Card, a KRA PIN, and the mother title, the resulting title was incurably defective. 119.While it is true that a title founded on an illegal or procedurally defective process cannot be sanctified by registration, the facts of the present case are distinguishable. The Land Registrar, Rosemary Mwangi, provided a credible, sworn explanation for the absence of these specific supporting documents. She testified that the mutation form was indeed lodged, registered, and duly endorsed by the land registrar on 6th November 2002, and that the missing supplementary documents (IDs and PINs) in the physical file were unavailable due to the ongoing digitization and record-reorganization processes at the Kajiado Land Registry. 120.The absence of an ID copy in a physical registry file over two decades after a transaction, which was expressly attributed by the custodian of those records to administrative digitization processes, does not equate to an unlawful or defective conveyance process. The Registrar confirmed that the statutory threshold for subdivision at the material time was met. The Plaintiffs cannot weaponize a registry's administrative housekeeping to invalidate a subdivision that yielded distinct titles for both the 1st Defendant (Parcel 892) and the deceased (Parcel 893), especially when the deceased lived for nine years post-subdivision without contesting the process. 121.I therefore find and hold that the Plaintiffs have failed to discharge the strict evidentiary burden required to prove that the 2002 subdivision and the issuance of Title No. KAJIADO/Kaputei-Central/892 were tainted by fraud, forgery, or fatal procedural irregularities. The subdivision process remains legally sound and valid. d. Whether the 1st Defendant’s title to Land Reference No. KAJIADO/Kaputei-Central/892 enjoys the protection of indefeasibility under Section 26 of the Land Registration Act. 122.Having found that the Plaintiffs failed to prove that the subdivision of the mother title, Land Reference No. KJD/Kaputei-Central/555, and the subsequent issuance of Title No. KAJIADO/Kaputei-Central/892 were tainted by fraud, forgery, or procedural illegality, the Court must now determine the legal status of the 1st Defendant’s title and whether the same enjoys the statutory protection accorded by the law. 123.The legal regime governing title to registered land in Kenya is founded upon the doctrine of indefeasibility of title. The central statutory provision in this regard is Section 26(1) of the Land Registration Act, No. 3 of 2012, which provides verbatim:“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 124.The import of the foregoing provision is that once a person is registered as proprietor and issued with a title deed, the law clothes that title with sanctity and protection unless the party seeking to impeach it discharges the burden of proving one of the statutory exceptions set out under paragraphs (a) or (b) above. 125.The jurisprudence of the superior courts has consistently affirmed this principle. In Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna & Another [2013] eKLR, Mutungi J. stated:“The law is extremely protective of title and provides only two instances for challenge of title. The first is where the title is acquired by fraud or misrepresentation to which the person is proved to be a party. The second is where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 126.Similarly, the Court of Appeal in Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR observed:“It is trite that under the Torrens System, the title of a registered proprietor is indefeasible unless acquisition of the same is tainted with fraud or illegality to which the proprietor is proved to have been a party.” 127.The Plaintiffs invited this Court to find that the 1st Defendant’s title falls within the statutory exceptions under Section 26(1)(a) and (b). However, as already determined under Issue (c), the Plaintiffs failed to strictly prove fraud, forgery, illegality, or procedural impropriety in the acquisition of the title. 128.Firstly, the official registry records produced by the Land Registrar conclusively established that the 1st Defendant was not a stranger to the mother title. He was, from the inception of the register in 1999, a co-proprietor together with the deceased. This finding fundamentally weakens the Plaintiffs’ theory that the Defendant clandestinely invaded and excised land belonging exclusively to the deceased. 129.Secondly, the mutation form that facilitated the subdivision of Parcel 555 into Parcels 892 and 893 was confirmed by the Land Registrar to have been duly lodged, endorsed, and registered. Although the Plaintiffs questioned the authenticity of the deceased’s thumbprint, no forensic evidence was tendered to establish forgery or coercion. Mere suspicion, conjecture, or familial dissatisfaction cannot suffice to impeach a registered title. 130.Thirdly, the conduct of the deceased himself is highly instructive. The evidence before Court demonstrates that the subdivision occurred in 2002, and the deceased lived until 2011 — approximately nine years thereafter. During that entire period, there was no evidence that he ever lodged a complaint with the Land Registrar, the police, the courts, or any administrative authority alleging fraud, coercion, or wrongful deprivation of land. On the contrary, the evidence shows that the deceased occupied Parcel 893 while the 1st Defendant occupied Parcel 892 peacefully and without contest. 131.Equally significant is the evidence regarding KETRACO compensation. PW1 admitted that compensation relating to the wayleave passing through Parcel 892 was paid directly to the 1st Defendant and neither the deceased nor the Plaintiffs challenged the same at the material time. Such conduct is inconsistent with the assertion that the 1st Defendant was a fraudulent interloper. 132.The Court must also underscore that allegations of fraud cannot be founded upon shifting family assumptions after the death of a proprietor. The law protects registered interests and legitimate transactions from retrospective invalidation merely because heirs or beneficiaries later become dissatisfied with the deceased’s dealings during his lifetime. 133.I further take cognizance of the holding in Munyu Maina v Hiram Gathiha Maina [2013] eKLR, where the Court of Appeal stated:“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. The proprietor must go beyond the instrument and demonstrate the legality of how he acquired the title.” 134.In the instant matter, the 1st Defendant satisfactorily explained the root of his title. He demonstrated that: he was a registered co-owner of the mother title; the subdivision was formally processed through a registered mutation; distinct titles were subsequently issued to both parties; and he has remained in possession of Parcel 892 for over two decades. 135.The Court therefore finds that the root of the 1st Defendant’s title was fully traced and legally accounted for. Accordingly, I find and hold that the 1st Defendant’s title to Land Reference No. KAJIADO/Kaputei-Central/892 was lawfully acquired and enjoys the full protection of indefeasibility under Section 26 of the Land Registration Act. The Plaintiffs have failed to establish any legal basis upon which the said title may be impeached. e. Whether the Plaintiffs are in unlawful occupation of the suit property, and consequently, whether the 1st Defendant has established his Counterclaim to warrant orders of eviction and a permanent injunction. 136.Having found that the 1st Defendant is the lawful and indefeasible proprietor of Land Reference No. KAJIADO/Kaputei-Central/892, the Court must now determine whether the Plaintiffs’ continued occupation and interference with the said parcel amounts to trespass, and whether the reliefs sought in the Counterclaim are merited. 137.The law relating to trespass to land is settled. Trespass consists of any unjustifiable intrusion by one person upon land in the possession of another. Importantly, trespass is actionable per se, meaning that proof of actual damage is unnecessary once unlawful entry or interference is established. 138.In Clerk & Lindsell on Torts, 18th Edition, trespass is defined as:“Any unjustifiable intrusion by one person upon land in the possession of another.” 139.The Court of Appeal in Park Towers Limited v John Mithamo Njika & 7 Others [2014] eKLR stated:“Where trespass is proved, a party need not prove that he has suffered any specific damage or loss to be awarded damages because trespass is actionable per se.” 140.Similarly, in M’Mukanya v M’Mbijiwe [1984] KLR 761, the Court held:“Trespass is an infringement of the right to possession of land. The proper plaintiff in an action for trespass is the person who has possession.” 141.Section 24(a) of the Land Registration Act further provides:“The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”Further, Section 25(1) provides verbatim:“The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act…” 142.The cumulative effect of these provisions is that the registered proprietor enjoys exclusive possessory rights over the land and is entitled to protection from unlawful intrusion. 143.The evidence before Court establishes that following the death of the deceased, the Plaintiffs began interfering with Parcel 892 and disputing the 1st Defendant’s occupation thereof. DW1 testified that the Plaintiffs repeatedly entered onto his land, grazed cattle thereon, interfered with his possession, and destroyed fencing erected around the property. PW2 himself admitted during evidence that he had been arrested following allegations of destruction of the Defendant’s fence. 144.Notably, the Plaintiffs did not establish any independent legal right entitling them to occupy Parcel 892. Their entire claim was predicated upon the contention that the Defendant’s title was fraudulent. Having failed to prove fraud or illegality, the legal consequence is that the Plaintiffs lack any lawful proprietary interest in Parcel 892. 145.The Court must emphasize that heirs or beneficiaries of a deceased person cannot lawfully appropriate land registered in another person’s name merely because they believe the deceased ought not to have parted with it during his lifetime. Such conduct amounts to trespass. 146.The Plaintiffs’ continued interference with the suit property therefore constitutes an infringement of the 1st Defendant’s proprietary and possessory rights. 147.On the prayer for eviction, the Court notes that eviction is a drastic but lawful remedy where occupation is unlawful. Section 152E of the Land Act provides:“No person shall unlawfully occupy private, community or public land.” 148.Further, Section 152G of the Land Act empowers the Court to issue eviction orders against unlawful occupiers. 149.Given the Court’s finding that the 1st Defendant is the lawful proprietor of Parcel 892 and that the Plaintiffs have no recognizable legal interest therein, the Court is satisfied that the 1st Defendant has established a proper basis for an eviction order. 150.On the prayer for a permanent injunction, the principles governing the grant of such relief are well settled. In Kenya Power & Lighting Company Limited v Sheriff Molana Habib [2018] eKLR, the Court stated:“A permanent injunction is granted upon the hearing of the suit and upon the merits being determined, where the court finds that the plaintiff has established a legal right which has been infringed and which deserves protection in perpetuity.” 151.The 1st Defendant has demonstrated that: he is the lawful registered proprietor; the Plaintiffs have interfered with his possession; and absent intervention by the Court, such interference is likely to continue. The Court is therefore satisfied that the threshold for a permanent injunction has been met. 152.Accordingly, I find and hold that the Plaintiffs are in unlawful occupation and interference with Land Reference No. KAJIADO/Kaputei-Central/892, and the 1st Defendant has proved his Counterclaim on a balance of probabilities. f. What final orders should issue regarding the respective prayers in the Plaint and the Counterclaim, and who shall bear the costs of the suit. 153.Having carefully analyzed the pleadings, evidence, applicable law, and submissions by the parties, the Court reaches the inescapable conclusion that the Plaintiffs have failed to prove their claim against the Defendants on the required standard. 154.The Plaintiffs failed to establish: that the deceased was the sole proprietor of Parcel 555; that the subdivision creating Parcel 892 was fraudulent or unlawful; that the 1st Defendant procured his title through fraud, illegality, or a corrupt scheme; or that the title held by the 1st Defendant is liable to cancellation under Section 26 of the Land Registration Act. Accordingly, the Plaintiffs’ suit is devoid of merit and is hereby dismissed in its entirety. 155.On the Counterclaim, the Court is satisfied that the same has been proved on a balance of probabilities. On costs, the general rule under Section 27(1) of the Civil Procedure Act is that costs follow the event unless the Court, for good reason, orders otherwise. The provision states:“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid…” 156.The Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR held:“The general rule is that costs follow the event and the successful party should ordinarily be awarded costs unless, for good reason, the court directs otherwise.”No sufficient reason has been advanced to deny the successful party costs. 157.Consequently, the Court makes the following final orders:A.The Plaintiffs’ suit dated 26th July 2021 is hereby dismissed in its entirety.B.Judgment is hereby entered in favour of the 1st Defendant on the Counterclaim.C.A declaration is hereby issued that the 1st Defendant, Mukaampa Leleta Kisoso, is the lawful and bona fide registered proprietor of Land Reference Number KAJIADO/Kaputei-Central/892.D.An eviction order is hereby issued directing the Plaintiffs, their family members, servants, agents, employees, and/or any person claiming under them to vacate Land Reference Number KAJIADO/Kaputei-Central/892 within ninety (90) days from the date hereof, failing which eviction shall issue forthwith without any further reference to this court and in accordance with the law.E.A permanent injunction is hereby issued restraining the Plaintiffs, their families, kin, agents, servants, employees, and/or any person claiming through them from trespassing upon, entering, cultivating, grazing upon, fencing, selling, disposing of, alienating, or in any other manner whatsoever interfering with the 1st Defendant’s quiet possession, occupation, and ownership of Land Reference Number KAJIADO/Kaputei-Central/892.F.The Officer Commanding Station (OCS), Mashuru Police Station, shall supervise and provide security during the enforcement and implementation of the eviction orders herein should the need arise.G.The Plaintiffs shall bear the costs of the suit and the Counterclaim together with interest thereon at court rates from the date of assessment until payment in full. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 28TH DAY OF MAY 2026M.D. MWANGIJUDGEIn the virtual presence of:Mr. Mutua h/b for Mr. Manwa for the PlaintiffsMr. Karwanda h/b for Mr. Wachira Maina for the 1st DefendantN/A by the 2nd – 4th DefendantsCourt Assistant: AlexM.D. MWANGIJUDGE