https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4976

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT VOI** **ELC CASE NO. E004 OF 2025** **SOLOMON KIPSANG TALLAM** **PLAINTIFF** **-VERSUS-** **JOEL MOMANYI MIGIRO** **1ST DEFENDANT** **MARGARET NDUTA NJUGUNA** **2ND DEFENDANT** **ALFONCE KANDIE** **3RD DEFENDANT** **LAND SETTLEMENT FUND BOARD OF TRUSTEES** **4TH DEFENDANT** **THE CHIEF LAND REGISTRAR** **5TH DEFENDANT** **JUDGMENT** 1. The dispute in this case concerns the ownership of all that parcel of land known as **Title No. Taita Taveta/Lake Jipe/492** measuring approximately 6.8 hectares and situated within the Lake Jipe Settlement Scheme in Taita Taveta County (hereinafter referred to as “the suit property”). The Plaintiff claims the suit property as the allottee thereof under the Lake Jipe Settlement Scheme, while the 1st Defendant claims the same as the registered proprietor, having allegedly purchased it from the 3rd Defendant. 2. The Plaintiff commenced this suit vide a Plaint dated 25th May 2025 which was subsequently amended in the Amended Plaint dated 30th April 2026. In the Amended Plaint, the Plaintiff sought judgment against the Defendants jointly and severally for the following orders: - **a. A declaration that the property known as Land Title No. Taita Taveta/Lake Jipe/492 situated in Taita Taveta County in the Republic of Kenya is lawfully registered in the name of the Plaintiff, Solomon Kipsang Tallam;** **b. A permanent injunction restraining the Defendants jointly and severally, their agents, employees, servants or anyone acting on their behalf from dealing, alienating, disposing, damaging, conducting constructions, trespassing, entering, remaining upon, sub-dividing, advertising for sale, selling, transferring, charging or in any manner whatsoever interfering with the Plaintiff's quiet possession, use and enjoyment of the suit property;** **c. An order of eviction and/or ejectment of the Defendants, their agents, servants, employees or any other person claiming under them from the suit property and demolition of any erections constructed thereon by the Defendants or their agents;** **d. General damages for trespass;** **e. Mesne profits;** **f. Costs of the suit and interest thereon.** 3. The 1st Defendant opposed the suit vide his Statement of Defence dated 30th April 2025 while the 4th and 5th Defendants opposed the suit vide their joint Statement of Defence dated 9th April 2025. The 2nd and 3rd Defendants did not file their respective defences nor submissions and neither did they participate in these proceedings despite being duly served. **The Plaintiff's case** 4. The Plaintiff's case as pleaded in the Amended Plaint is that he acquired the suit property from the Government of Kenya through the Settlement Fund Trustees in consultation with the District Land Adjudication and Settlement Committee, Taita Taveta District, vide a letter of allotment dated 2nd January 1997. The acquisition was conditional upon acceptance of the offer and payment of a 10% deposit, conditions with which the Plaintiff avers he fully complied. 5. The Plaintiff pleaded further that upon fulfilment of the said conditions, the Land Settlement Fund Board of Trustees and the Plaintiff executed a Deed of Transfer conveying the suit property to the Plaintiff on or about 2nd October 2024, together with a Discharge of Charge of even date. However, when the Plaintiff deputized his son, Symon Sang Tallam, to collect the title deed from the Land Registrar, Wundanyi on or about 18th October 2024, he discovered that the suit property had been trespassed upon by the Defendants and that there had been fraudulent attempts to deprive him of his proprietary rights over the same. He pleaded, in particular, that the 3rd Defendant misrepresented facts in acquiring the suit property by presenting National Identification Card Number 4303367 as being his own when the same belonged to the 2nd Defendant, the 3rd Defendant's actual identification card number being 7139376. 6. At the hearing of the Plaintiff's case on 27th October 2025, the Plaintiff called two witnesses. The Plaintiff, **Solomon Kipsang Tallam**, testified as PW1. He adopted his witness statement dated 16th September 2025 and produced the documents in his bundle dated 12th June 2025 as PExhibit 1 to 9. It was his testimony that he was allotted the suit property in 1997 while working at State House, Nairobi as a Communication Officer, that his letter of allotment is dated 2nd January 1997, and that he paid the requisite 10% deposit vide a receipt dated 30th June 1997. 7. On cross-examination by Mr. Oddiaga, learned counsel then appearing for the 1st Defendant, PW1 stated that although the letter of allotment required payment within 90 days, he paid after the lapse of the said period and there was no letter seeking extension of time. He confirmed that he does not hold a title to the land, that he has undertaken some farming thereon, and that one Martin takes care of the land on his behalf. He stated that his name was missing from the list of allottees and that the 3rd Defendant fraudulently inserted his own name in the said list. He testified that he reported the matter to the Directorate of Criminal Investigations through his Advocates. On cross-examination by Ms. Saru, learned counsel for the 4th and 5th Defendants, he confirmed the receipts of payment at pages 15 to 19 of his bundle, with page 19 reflecting Kshs. 65,860/=. On re-examination, he reiterated that he paid the 10% deposit, that he remains in occupation of the land through his caretaker, and that he took possession in March/April 1997. 8. **Symon Sang Tallam** testified as PW2 and adopted his witness statement dated 16th September 2025. On cross-examination, he stated that he began following up on the land on behalf of his father in 2022 owing to the delay in the release of the title, and that on 2nd October 2024 the Ministry of Lands informed him that the land had been allocated to someone else. A search he conducted revealed that the suit property had been registered in the name of the 1st Defendant in 2022. He testified that they paid for the discharge at Ardhi House and that the 3rd Defendant's name was fraudulently entered in the register. On re-examination, he stated that there are no records to confirm how the 1st Defendant acquired the land. **The 1st Defendant's case** 9. In his Statement of Defence dated 30th April 2025, the 1st Defendant denied the Plaintiff's claim in its entirety and averred that the Plaintiff has never owned the suit property, the 1st Defendant being the legitimate legal and registered owner thereof, having been issued with a title deed. He averred that he has never engaged in any fraudulent attempts in his acquisition of the suit property, that the Plaintiff has no rights over the same, and that he has not trespassed onto the Plaintiff's property. He also raised a preliminary objection on jurisdiction on the ground that the value of the subject matter is approximately Kshs. 3,000,000/=, which objection was not prosecuted. 10. The 1st Defendant, **Joel Momanyi Migiro**, testified as DW1 on 11th and 12th June 2026. He adopted his witness statement dated 30th April 2025, relied on his bundle of documents of even date, and produced a copy of his title deed as DExhibit 1 and a certificate of official search as DExhibit 2. It was his testimony that he could not have been registered as proprietor if the title had a problem, that the 3rd Defendant never disclosed any issues with the land, and that the search demonstrated that the land is registered in his name. He testified that the transfer between the Plaintiff and the Settlement Fund Trustees is dated 7th November 2024 and the discharge dated 2nd October 2024, at which time he already held title to the land. It was his further testimony that the Plaintiff did not pay the amounts required under the letter of allotment within the stipulated timelines and only completed payment in 2024. 11. On cross-examination by Mr. Chumo Kibet, learned counsel holding brief for Ms. Chirchir for the Plaintiff, DW1 stated that he bought the land in 2020 for Kshs. 90,000/=. He conceded that he had a sale agreement but had not produced it in court; that he had not tendered any evidence of payment of the purchase price; that he had not produced any transfer document, receipt for payment of registration fees or evidence of payment of stamp duty; that he never obtained any Land Control Board consent or spousal consent before the purchase; and that although he conducted a search before the purchase, he had not produced a copy of the said initial search. He acknowledged that the 3rd Defendant's title appeared to indicate 8th August 2013 which he regarded as an error, though not a major issue. He stated that the 3rd Defendant only showed him a copy of the title deed, a copy of his identification card and his KRA PIN, none of which he had in court. On examination by the Court, he stated that the 3rd Defendant told him that he had been allotted the land but did not disclose when, and that he does not know the 3rd Defendant's current whereabouts. **The 4th and 5th Defendants' case** 12. In their joint Statement of Defence dated 9th April 2025, the 4th and 5th Defendants denied the Plaintiff's claim and put him to strict proof thereof. They averred, without prejudice, that should the Plaintiff prove the allegations against the 1st, 2nd and 3rd Defendants, the 4th and 5th Defendants merely executed their mandate based on the documentation tendered and do not share any liability whatsoever with the 1st, 2nd and 3rd Defendants. 13. The 4th and 5th Defendants called one witness, **Siema Mwanguni**, the Land Registrar, Wundanyi, who testified as DW2 on 12th June 2026 and relied on the bundle of documents dated 9th April 2025, which comprised, inter alia, a copy of the register (green card) for the suit property, demand notices on loan arrears issued to the Plaintiff, a copy of a cancelled title issued to the 3rd Defendant, a payment receipt and a letter of acceptance of offer. It was her testimony that the green card was opened on 8th August 2013 and title issued on the same date in the name of the 3rd Defendant, and that the property was subsequently transferred to the 1st Defendant on 9th September 2022 and a title issued to him on the same date. 14. On cross-examination, DW2 confirmed that before the registration of the 3rd Defendant, the suit property had been allotted to the Plaintiff, who had paid a deposit of 10% to the Settlement Fund Trustees and was to clear the balance. She testified that a title had already been issued to the 3rd Defendant and that is why the Plaintiff could not be registered. She explained that all titles within the Lake Jipe Settlement Scheme were issued on 8th August 2012 and that the indication of 2013 was a typographical error. She confirmed that there was no evidence of payment of stamp duty from the registry in respect of the transfer to the 1st Defendant, and that the only document in the parcel file is the cancelled title deed issued to the 3rd Defendant. She stated that she had seen the Plaintiff's letter of acceptance, though she did not have a receipt in the file confirming that the Plaintiff paid the loan in full. She confirmed that the registry has the transfer and discharge of charge, which were presented by the Plaintiff, and on examination by the Court, that the documents were received from the Land Adjudication Officer. **The Plaintiff's Submissions** 15. The Plaintiff filed his written submissions dated 17th June 2026 . The Plaintiff identified three issues for determination: whether the 1st Defendant is a bona fide purchaser of the suit property; whether the Plaintiff was issued with a lawful letter of allotment and thereafter complied with the terms thereof; and what orders should issue as to costs. 16. On the first issue, counsel for the Plaintiff anchored the applicable burden of proof on Sections 107, 108 and 109 of the Evidence Act and the decision in **Daniel Toroitich Arap Moi v Mwangi Stephen Mureithi (2014) eKLR**. Counsel submitted that the 3rd Defendant did not demonstrate how he acquired the suit property and that the Land Registrar testified that there is no single document in support of any allotment issued to the 3rd Defendant, the register only bearing a title issued to him which is erroneous on the face of it. Relying on the definition of a bona fide purchaser in Black's Law Dictionary, 9th Edition, and the decisions in **Samuel Kamere v Lands Registrar, Kajiado [2015] eKLR** and **Munyu Maina v Hiram Gathiha Maina, Civil Appeal No. 239 of 2009 [2013] eKLR**, counsel submitted that the 1st Defendant failed to produce a single completion or registration document, failed to prove payment of any valuable consideration, and failed to conduct proper due diligence, and consequently could not qualify as a bona fide purchaser for value. Counsel urged the Court to find that the 1st Defendant holds a defective, illegal and invalid title procured through fraud, to cancel the title issued to the 1st Defendant, and to rectify the register to restore the Plaintiff as the registered proprietor. 17. On the second issue, counsel relied on the Supreme Court decision in **Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR)** on the perfection of letters of allotment, and submitted that the Plaintiff complied with all the conditions at the foot of his letter of allotment dated 2nd January 1997 by accepting the offer vide a letter dated 30th June 1997, paying the 10% deposit of Kshs. 4,450/= vide receipt No. BJ363259, servicing the land development loan of Kshs. 41,999.97 advanced by the Land Settlement Fund and clearing the same in full, whereupon he was issued with a Deed of Transfer and Discharge of Charge both dated 2nd October 2024. Counsel further submitted that any failure to meet the loan repayment timelines would have warranted recovery of the loan under Section 174(3) of the Agriculture Act, Cap 318 (repealed) and not revocation of the allotment, and that the allotment was never revoked. On costs, counsel relied on Section 27 of the Civil Procedure Act and submitted that costs follow the event. **The 1st Defendant's Submissions** 18. The 1st Defendant filed his written submissions dated 14th July 2026. Counsel identified three issues for determination: who is the lawful owner of Title No. Taita Taveta/Lake Jipe/492; whether the 1st Defendant is a trespasser; and whether the Plaintiff is entitled to the prayers sought. On the first issue, counsel anchored the 1st Defendant's case on Sections 24, 25 and 26 of the Land Registration Act, 2012 and submitted that the suit property was originally registered in favour of the 3rd Defendant, who later sold it to the 1st Defendant, and that the title deed issued to the 1st Defendant on 9th September 2022 constitutes prima facie evidence that he is the absolute and indefeasible owner thereof, such title being impeachable only on the grounds set out in Section 26(1) of the Act. Relying on **Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR**, **Moses Parantai & Peris Wanjiku Mukuru (suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (Deceased)) v Stephen Njoroge Macharia [2020] eKLR** and **R.G. Patel v Lalji Makanji [1957] EA 314**, counsel submitted that fraud must be specifically pleaded and strictly proved to a standard above the ordinary balance of probabilities, and that it is not permissible to leave fraud to be inferred from the facts. Citing **Tolksdorf v Mwangi & 3 Others [2025] KEELC 848 (KLR)** and **Daniel Otieno Migore v South Nyanza Sugar Company Limited [2018] eKLR** on the principle that parties are bound by their pleadings, and **North End Trading Company Limited v City Council of Nairobi [2019] eKLR** on the want of probative value of unsubstantiated pleadings, counsel submitted that the Plaintiff neither pleaded nor proved fraud on the part of either the 1st or the 3rd Defendant in the acquisition of the suit property. 19. Counsel further submitted that the Plaintiff failed to comply with the mandatory conditions imposed by the Government, pointing to the demand notices issued by the Land Adjudication and Settlement Office, the latest being dated 18th August 2008, and to the Plaintiff's own admission on cross-examination that he only cleared the loan in the year 2024, some 16 years after the last demand notice, as evidenced by the receipt of full payment dated 31st July 2024 and the Discharge of Charge executed on 2nd October 2024. Counsel submitted that the demand notices expressly warned of legal action, including repossession of the land under Section 174(3) of the Agriculture Act, Cap 318 (repealed), and that the first registration of the suit property in favour of the 3rd Defendant is prima facie evidence that the Settlement Fund Trustees exercised their powers thereunder to terminate the Plaintiff's interest for non-payment. Consequently, it was submitted, the 3rd Defendant acquired genuine legal rights over the suit property and passed a good title to the 1st Defendant upon its purchase, and the 1st Defendant therefore holds a valid and indefeasible title. On the second issue, counsel relied on Section 3(1) of the Trespass Act, Cap 294 and submitted that the 1st Defendant, having proved to be the true and legitimate owner of the suit property, cannot be a trespasser thereon and is entitled, pursuant to Article 40 of the Constitution, to exercise his proprietary rights in the manner he deems fit. Counsel accordingly urged the Court to dismiss the suit in its entirety with costs to the 1st Defendant. 20. The 4th and 5th Defendants did not file any written submissions despite being granted an opportunity to do so. Similarly, the 2nd and 3rd Defendants, having neither entered appearance nor filed any defences, did not file any submissions. **Analysis and Determination** 21. I have considered the pleadings, the evidence tendered by the parties and the submissions filed. In my view, the following issues arise for determination in this suit: - **i. Whether the Plaintiff acquired a legitimate proprietary interest in the suit property;** **ii. Whether the registration of the 3rd Defendant and subsequently the 1st Defendant as proprietors of the suit property was lawful, and whether the 1st Defendant is an innocent purchaser for value without notice;** **iii. Whether the Plaintiff is entitled to the reliefs sought; and** **iv. What orders should issue as to costs.** ***Issue No. (i): Whether the Plaintiff acquired a legitimate proprietary interest in the suit property*** 22. The root of the Plaintiff's claim is the letter of allotment dated 2nd January 1997 issued to him by the Government through the Settlement Fund Trustees in consultation with the District Land Adjudication and Settlement Committee, Taita Taveta District. It is now well settled that a letter of allotment does not, by and of itself, confer title upon the allottee; it constitutes an offer which must be perfected through fulfilment of the conditions stipulated therein and ultimately through registration. The Supreme Court of Kenya in **Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR)** stated as follows: - ***“Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling the conditions therein. These conditions include but are not limited to, the payment of a stand premium and ground rent within prescribed timelines. But even after the perfection of an allotment letter through the fulfillment of the conditions stipulated therein, an allottee cannot pass valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter.”*** 23. The question, therefore, is whether the Plaintiff perfected his allotment. The evidence on record establishes the following uncontroverted sequence: the Plaintiff was issued with the letter of allotment dated 2nd January 1997 in respect of Plot No. 492 measuring 6.8 hectares within the Lake Jipe Settlement Scheme; he accepted the offer vide a letter of acceptance dated 30th June 1997; he paid the 10% deposit of Kshs. 4,450/= vide receipt No. BJ363259; the balance of the purchase price was financed through a land development loan of Kshs. 41,999.97 advanced by the Land Settlement Fund and charged against the suit property; the Settlement Fund Trustees issued demand notices to the Plaintiff on 7th November 2003 and 18th August 2008 in respect of the outstanding loan; the Plaintiff cleared the loan in full; and upon such clearance, the Land Settlement Fund Board of Trustees executed a Deed of Transfer and a Discharge of Charge in favour of the Plaintiff, both dated 2nd October 2024. 24. Significantly, the foregoing account was corroborated in material respects by DW2, the Land Registrar, who was the 4th and 5th Defendants' own witness. DW2 confirmed on cross-examination that prior to the registration of the 3rd Defendant, the suit property had been allotted to the Plaintiff; that the Plaintiff had paid the 10% deposit to the Settlement Fund Trustees; that she had seen the Plaintiff's letter of acceptance; and that the registry holds the transfer and discharge of charge presented by the Plaintiff. It was also her evidence that the reason the Plaintiff could not be registered was not any default on his part but the fact that a title had already been issued to the 3rd Defendant. 25. The 1st Defendant sought to impugn the Plaintiff's allotment on the ground that the Plaintiff did not comply with the payment timelines stipulated in the letter of allotment, having paid the deposit after the lapse of the 90-day period and having cleared the loan only in 2024. Indeed, PW1 candidly admitted on cross-examination that his payment of 30th June 1997 fell outside the 90-day window. However, that admission does not, in my view, avail the 1st Defendant. The Settlement Fund Trustees, being the offeror, accepted the Plaintiff's late payment without demur, proceeded to advance him a land development loan secured against the suit property, issued demand notices to him in 2003 and 2008 calling for repayment of the said loan, accepted his repayments culminating in full settlement, and ultimately executed a Deed of Transfer and Discharge of Charge in his favour. This course of conduct is wholly inconsistent with any suggestion that the allotment had lapsed. The offeror, by its conduct, waived strict compliance with the payment timelines and affirmed the allotment as subsisting. I also note the Plaintiff's submission, which I find merited, that the remedy available for default in the repayment of a settlement loan was recovery of the loan under Section 174(3) of the Agriculture Act, Cap 318 (repealed) and not forfeiture of the allotment. The 1st Defendant, on his part, submitted that the first registration of the suit property in the name of the 3rd Defendant is itself prima facie evidence that the Settlement Fund Trustees exercised their power under Section 174(3) of the Agriculture Act to terminate the Plaintiff's interest for non-payment. That submission is, with respect, untenable. Section 174(3) provides that upon termination of the defaulter's interest, the interest shall vest in the Settlement Fund Trustees, who may thereupon take possession of the land. It makes no provision for the vesting of the terminated interest in a third party. Had the Settlement Fund Trustees exercised that power, one would have expected to find, at the very least, some record of the termination and of a fresh allocation of the suit property to the 3rd Defendant. Instead, DW2, the Land Registrar, was categorical that there is not a single document in the parcel file in support of the 3rd Defendant's registration, and it was her further evidence that the reason the Plaintiff could not be registered was not the termination of his interest but the fact that a title had already been issued to the 3rd Defendant. Moreover, the conduct of the Settlement Fund Trustees after the demand notices, in accepting the Plaintiff's repayments culminating in full settlement and ultimately executing the Deed of Transfer and Discharge of Charge in his favour, is wholly irreconcilable with any suggestion that they had terminated his interest. The exercise of the power of termination under Section 174(3) cannot be presumed or inferred from the mere fact of a stranger's registration; it must be demonstrated by evidence, and none was tendered. There is no evidence whatsoever that the allotment to the Plaintiff was ever revoked, recalled or cancelled. 26. The position I have taken finds firm support in the recent decision of the Court of Appeal in **Alexander T. Kaminchia & Another v Geoffrey Mungai Thiong’o & 2 Others, Nairobi Civil Appeal No. E754 of 2024 [2026] KECA 1296 (KLR)** where a similar contention was advanced, on the strength of the Supreme Court decision in **Torino Enterprises Limited v Attorney General (supra)**, that a payment made outside the period stipulated in a letter of allotment extinguished the allottee’s interest by operation of law. The Court of Appeal rejected that contention and expressed itself as follows: - ***“It is true that generally one needs to comply with the terms of allotment within the period specified. However, there is no law that specifically provides that if an allotment letter is not paid for within the specified period, then that allotment letter is null and void ab initio, and can never be acted upon, or that the Government is completely barred from accepting a late payment. We are not persuaded that in all cases where payment is made late, but unconditionally accepted by the Government before the Government has committed the same land to another person, then no title exists. Each case needs to be looked at depending on its special circumstances… However, if there is no second allottee, the Government has the prerogative of accepting a late payment, and if it does so, a title that is consequently issued would be a good title as the late offer will have been accepted. This would be akin to a waiver on the part of the Government.”*** 27. In arriving at that holding, the Court of Appeal drew parallels with its earlier decision in **Waterfront Holdings Limited v Kandie & 2 Others (Civil Appeal 88 of 2019) [2023] KECA 1223 (KLR)**, in which the party claiming through the first allottee failed to discharge the burden of proving that the said allottee had met the conditions in the letter of allotment by the time the process of re-allotment to a subsequent allottee commenced, with the consequence that the re-allotment and the issuance of title to the subsequent allottee could not be faulted. The converse obtains in the instant case. It is the Plaintiff, the first and only allottee, who demonstrated fulfilment of the conditions of his allotment, which fulfilment the Settlement Fund Trustees affirmed by their own conduct; and there was no evidence whatsoever of any allotment or re-allocation of the suit property to the 3rd Defendant or to any other person who had satisfied the conditions of allotment. The suit property was therefore never committed to any second allottee, and nothing stood in the way of the perfection of the Plaintiff’s interest through the acceptance of his payments and the execution of the Deed of Transfer and Discharge of Charge in his favour. 28. In the premises, I find and hold that the Plaintiff perfected his allotment through the fulfilment of the conditions stipulated in the letter of allotment dated 2nd January 1997, and that upon the execution of the Deed of Transfer and Discharge of Charge dated 2nd October 2024, the Plaintiff acquired a legitimate proprietary interest in the suit property and became entitled to be registered as proprietor thereof. ***Issue No. (ii): Whether the registration of the 3rd Defendant and subsequently the 1st Defendant as proprietors of the suit property was lawful, and whether the 1st Defendant is an innocent purchaser for value without notice*** 29. The 1st Defendant's case rests on the certificate of title issued to him on 9th September 2022 and the protection accorded to a registered proprietor under **Sections 24, 25 and 26 of the Land Registration Act, 2012. Section 26(1)** of the said Act provides that the certificate of title issued by the Registrar shall be taken by all courts as prima facie evidence that the person named as proprietor is the absolute and indefeasible owner, and that the title 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. 30. It is equally well settled that where the root of a registered proprietor's title is under challenge, it is not enough for the proprietor to dangle the instrument of title as proof of ownership. The Court of Appeal in **Munyu Maina v Hiram Gathiha Maina, Civil Appeal No. 239 of 2009 [2013] eKLR** held as follows: - ***“Where the registered proprietor's root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.”*** 31. The starting point is the root of the 1st Defendant's title, which is the registration of the 3rd Defendant as the first proprietor of the suit property. The evidence of DW2, the Land Registrar, on this aspect was telling. She testified that the only document in the parcel file is the cancelled title deed issued to the 3rd Defendant, and that there is no document whatsoever in support of any allotment to the 3rd Defendant. This stands in stark contrast to the position of the Plaintiff, whose letter of allotment, letter of acceptance, payment receipts, loan records, demand notices, Deed of Transfer and Discharge of Charge are all on record and were acknowledged by the Registrar. The register itself bears anomalies which DW1 himself admitted: the title issued to the 3rd Defendant indicates 8th August 2012 whereas the green card indicates that the register was opened and title issued on 8th August 2013, a discrepancy which DW2 attributed to a typographical error, and the first entries on the proprietorship section are missing. The Plaintiff further adduced evidence, which was not controverted, that in one of the transactions relating to the suit property the 3rd Defendant presented National Identification Card Number 4303367 as his own when the same in fact belongs to the 2nd Defendant, the 3rd Defendant's identification card number being 7139376. The 2nd and 3rd Defendants, despite due service, elected not to participate in these proceedings and offered no explanation for these glaring irregularities. 32. In evaluating the state of the register and the evidence of the Land Registrar, I am guided by the approach commended by the Court of Appeal in **Alexander T. Kaminchia & Another v Geoffrey Mungai Thiong’o & 2 Others (supra)**, where the Court underscored that the evidence of a Land Registrar, though significant, is not conclusive proof of genuine ownership of title and must be weighed together with all the other available evidence. The Court stated as follows: - ***“…a Land Registrar’s evidence is not always conclusive proof of genuine ownership of title. The evidence of a Land Registrar must be seen in light of the other available evidence. The stark reality is that owing to rampant fraud, it may happen that false records are planted in the Land Registries and genuine records uprooted therefrom, so as to make it appear that the fraudster is the holder of the genuine title. What the court needs to do is assess the evidence of the Land Registrar alongside other evidence and come to an independent determination after giving due regard to the whole of the evidence presented… A court has to have in mind that the Land Registrar is a custodian of records and he could be in custody of false documents of title. That is why it is important for the court to analyse the evidence of the Land Registrar together with other evidence and reach its own conclusion on the person that the totality of the evidence points at being the genuine title holder.”*** 33. Applying that approach to the present case, the register admittedly bears a title in the name of the 1st Defendant and, before him, the 3rd Defendant. The entries in the register cannot, however, be viewed in isolation. The Land Registrar’s own testimony was that there is not a single document in the parcel file supporting the 3rd Defendant’s first registration, and that the only documents held in the registry in respect of the suit property, being the transfer and the discharge of charge, are those presented by the Plaintiff. When the entries in the register are weighed against the totality of the evidence, including the Registrar’s corroboration of the Plaintiff’s allotment, acceptance and payments, the impugned entries emerge as precisely the kind of unsupported record against which the Court of Appeal sounded caution, and this Court, making its own independent determination on the whole of the evidence, finds that they do not reflect the true position on the ownership of the suit property. 34. It is trite that allegations of fraud must be specifically pleaded and strictly proved, the standard of proof being higher than the ordinary balance of probabilities though not beyond reasonable doubt. See **Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR** and **R.G. Patel v Lalji Makanji [1957] EA 314**. These authorities were also relied upon by the 1st Defendant, whose principal submission was that the Plaintiff neither pleaded nor proved fraud on the part of the 1st or 3rd Defendants. Having carefully perused the record, I find that this submission is not borne out by the pleadings. The particulars of fraud and misrepresentation, including the presentation by the 3rd Defendant of an identification document belonging to the 2nd Defendant, were expressly pleaded in the Amended Plaint dated 30th April 2026. On the evidence, the suit property was at all material times allotted to the Plaintiff, who was servicing a settlement loan charged against it; the 3rd Defendant was nonetheless registered as first proprietor without a shred of documentation in the parcel file supporting his registration; the register bears unexplained anomalies including missing entries; and the 3rd Defendant employed an identification document belonging to another person. Even if the totality of this evidence were considered insufficient to attribute fraud to any particular Defendant within the meaning of **Section 26(1)(a) of the Land Registration Act,** it establishes beyond peradventure that the first registration of the 3rd Defendant was undertaken illegally and unprocedurally within the meaning of **Section 26(1)(b) of the Act**, which ground, as the courts have repeatedly held, does not require proof that the registered proprietor was himself a party to the illegality. A registration which has no documentary foundation whatsoever in the land registry, effected over land already allotted to and charged in favour of another, cannot be said to have been procedurally obtained. 35. I now turn to the 1st Defendant's claim to be an innocent purchaser for value without notice. The ingredients of that defence were set out by the Court of Appeal in **Samuel Kamere v Lands Registrar, Kajiado [2015] eKLR** where it was held that in order to be considered a bona fide purchaser for value, a party must prove that they acquired a valid and legal title, that they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title, and that they paid valuable consideration for the purchase of the suit property. 36. Measured against that standard, the 1st Defendant's case collapses on its own evidence. On cross-examination, DW1 conceded that he purchased the suit property from the 3rd Defendant in 2020 for a consideration of Kshs. 90,000/= for a parcel measuring 6.8 hectares, yet he produced neither the sale agreement, nor any evidence of payment of the purchase price, nor any transfer instrument, nor any receipt for registration fees, nor evidence of payment of stamp duty an omission independently confirmed by DW2, who testified that there is no evidence of stamp duty payment in the registry. He obtained no Land Control Board consent and no spousal consent. He claimed to have conducted a search prior to the purchase but did not produce it. He claimed to have verified the 3rd Defendant's identity from his identification card and KRA PIN and to have been shown a letter of allotment, yet none of these documents was availed to the Court. He admitted noticing the erroneous date on the face of the 3rd Defendant's title but did nothing about it. In short, there is no evidence before this Court of a valid sale, of valuable consideration, or of any meaningful due diligence. 37. In any event, and as the Supreme Court affirmed in **Dina Management Limited v County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR)**, the defence of a bona fide purchaser for value is unavailable where the root of the title is itself invalid, for a vendor with no valid title has nothing to pass to a purchaser. The 3rd Defendant's registration having been found to be illegal and unprocedural, he held nothing capable of being transferred to the 1st Defendant. The maxim *nemo dat quod non habet* applies with full force. The second issue is accordingly answered in the negative: the registration of the 3rd Defendant and subsequently the 1st Defendant was unlawful, and the 1st Defendant is not an innocent purchaser for value without notice. ***Issue No. (iii): Whether the Plaintiff is entitled to the reliefs sought*** 38. Having found that the Plaintiff perfected his allotment and acquired a legitimate proprietary interest in the suit property, and that the registrations of the 3rd and 1st Defendants were unlawful, the consequential question is the appropriate relief. **Section 80(1) of the Land Registration Act** empowers this Court to order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that the registration was obtained, made or omitted by fraud or mistake. The protection accorded under Section 80(2) to a proprietor in possession who acquired the land for valuable consideration without knowledge of the omission, fraud or mistake is unavailable to the 1st Defendant, who, as found above, has proved neither valuable consideration nor an acquisition untainted by the irregularities apparent on the face of the register. 39. I note that prayer (a) of the Amended Plaint seeks a declaration that the suit property is lawfully registered in the name of the Plaintiff. As matters stand, the register reflects the 1st Defendant as proprietor and the Plaintiff has never been registered. The appropriate relief, which is encompassed within the prayers sought and the Plaintiff's submissions, is a declaration of the Plaintiff's entitlement to the suit property coupled with cancellation of the impugned entries and rectification of the register, together with a direction to the 5th Defendant to give effect to the Deed of Transfer dated 2nd October 2024 by registering the Plaintiff as proprietor and issuing a title deed to him. 40. As regards the prayer for a permanent injunction, the same follows the declaration of the Plaintiff's proprietary rights and shall issue. On the prayer for eviction, PW1 testified that he remains in occupation of the suit property through his caretaker, one Martin, while DW1 asserted in his witness statement that it is he who is in occupation. Given the competing assertions, an order shall issue requiring the 1st Defendant, his agents, servants and any persons claiming under him to vacate the suit property and deliver vacant possession within a stipulated period, in default whereof eviction may issue. 41. On the prayers for general damages for trespass and mesne profits, the Plaintiff pleaded that the Defendants trespassed onto the suit property and commenced constructions thereon. However, beyond the general assertions in the pleadings and witness statements, no cogent evidence was tendered at the trial of the nature, extent or duration of any developments or constructions undertaken by the Defendants, of any profits derived by them from the suit property, or of any quantifiable loss suffered by the Plaintiff. Mesne profits, being in the nature of special damages, must be specifically pleaded and strictly proved, which was not done. As for general damages for trespass, the 1st Defendant submitted, on the strength of **Section 3(1) of the Trespass Act, Cap 294 and Article 40 of the Constitution,** that being the true and legitimate owner of the suit property he cannot be a trespasser thereon. That submission rested entirely on the validity of the 1st Defendant's title, and it falls away with the finding that the said title was unlawfully acquired and holds no protection under the law. That notwithstanding, while trespass is actionable per se, the Plaintiff's own evidence was that he has remained in occupation through his caretaker and has continued farming the land. Taking into account the totality of the evidence, I decline to award mesne profits. I however find that the acts of the 1st and 3rd Defendants in procuring registration over the Plaintiff's land and asserting rights thereover constituted an actionable interference with the Plaintiff's rights for which a modest award of general damages is merited. Doing the best I can in the circumstances, I assess general damages at Kshs. 200,000/= payable by the 1st and 3rd Defendants jointly and severally. ***Issue No. (iv): What orders should issue as to costs*** 42. **Section 27 of the Civil Procedure Act** provides that costs follow the event unless the Court, for good reason, orders otherwise. The Plaintiff has succeeded in his claim. The mischief in this case was occasioned principally by the 1st, 2nd and 3rd Defendants. The 4th and 5th Defendants, while cited as the statutory bodies within whose registries the impugned registrations occurred, participated in the proceedings, availed the record, and their witness materially assisted the Court in establishing the true position. In the circumstances, the Plaintiff shall have the costs of the suit as against the 1st and 3rd Defendants jointly and severally. There shall be no order as to costs as against the 2nd, 4th and 5th Defendants. **Final Orders** 43. In conclusion, and flowing from my findings hereinabove, final judgment is hereby entered in favour of the Plaintiff against the Defendants in the following terms: - **i. A declaration be and is hereby issued that the Plaintiff, Solomon Kipsang Tallam, is the lawful allottee of and is entitled to be registered as the proprietor of all that parcel of land known as Title No. Taita Taveta/Lake Jipe/492;** **ii. The registration of the 3rd Defendant as proprietor of Title No. Taita Taveta/Lake Jipe/492 and the title deed issued pursuant thereto, and the subsequent registration of the 1st Defendant as proprietor and the title deed issued to him on 9th September 2022, be and are hereby cancelled, and the register shall be rectified accordingly.** **iii. A permanent injunction be and is hereby issued restraining the Defendants jointly and severally, whether by themselves, their agents, employees, servants or anyone acting on their behalf, from dealing, alienating, disposing, damaging, conducting constructions, trespassing, entering, remaining upon, sub-dividing, advertising for sale, selling, transferring, charging or in any manner whatsoever interfering with the Plaintiff's quiet possession, use and enjoyment of Title No. Taita Taveta/Lake Jipe/492;** **iv. The 1st Defendant, his agents, servants, employees and any persons claiming under him shall vacate and deliver vacant possession of the suit property within Sixty (60) days from the date of this judgment, in default whereof an order of eviction shall issue;** **v. The 1st and 3rd Defendants shall jointly and severally pay the Plaintiff general damages assessed at Kshs. 200,000/= together with interest thereon at court rates from the date of this judgment until payment in full;** **vi. The prayer for mesne profits is declined;** **vii. The Plaintiff shall have the costs of the suit as against the 1st and 3rd Defendants jointly and severally. There shall be no order as to costs as against the 2nd, 4th and 5th Defendants.** **It is so ordered.** **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 31ST DAY OF JULY 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of: -** **Ms. Chrichir for the Plaintiff.** **N/A for the Defendants.** **Court Assistant; David Ngoosa.**