https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3897

Maingi v Nzyuko & another (Environment and Land Appeal E036 of 2023) [2026] KEELC 3897 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEELC 3897 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Appeal E036 of 2023 NA Matheka, J June 23, 2026 Between Virginia Kathambi Maingi Appellant and Mutie Nzyuko 1st Respondent Sammy Maweu 2nd Respondent Judgment 1.Virginia Kathambi Maingi the Appellant herein being dissatisfied with the judgement of honorable Barbara Ojoo Magistrate dated 8th November 2023 appealed on the following grounds that the learned Trial Magistrate erred in law and fact in deciding the case against the weight of evidence on record. That the learned Trial Magistrate erred in law and fact in failing to make reference to crucial documents tendered by the Appellant in her judgment thereby reaching a wrong decision. That the learned trial magistrate erred in law and fact in failing to make proper point of determination in her judgment thereby causing a miscarriage of justice to the Appellant. That the learned Trial Magistrate erred in law and fact in failing to take into account material facts and in taking into account matters that not ought to be considered thereby reaching a wrong decision in law. That the learned Trial 2.Magistrate in general misdirected herself in the principles applicable for granting of injunctions and failed to consider them as a result whereof there has been a miscarriage of justice. That the learned Trial Magistrate erred in law and fact by misdirecting herself on the issues for determination before her and thereby reached a wrong decision. The Appellants prays that;a.This Honourable Court allows this appeal and set aside the judgment of the Principal Magistrate's Court decision (Barbara Ojoo PM) dated 8th day of November 2023.b.This Honourable Court in the premises do grant an injunction against Respondents either by themselves, their servants and/or agents or otherwise howsoever restraining them from entering, remaining. leasing, charging, pledging, disposing off in any way, transferring, constructing any structures on and dealing with and/or interfering with the Plaintiff's quiet possession of the suit property herein known as Plot Number 72 Athi-River, whose Land Reference Number is 39711/XXV surveyed as Mavoko Block 6/892 pending hearing and determination of this Appeal.c.That the costs for the appeal together with costs for the lower Court in the said suit be awarded to the Appellant. 3.We have considered the grounds of appeal as well as submissions by counsel and the authorities cited. Being a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions. In Selle vs Associated Motor Boat Co. (1968) EA 123, it was expressed thus:An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif -v - Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).” 4.The issues for determination in this matter are as follows;1.Whether or not the Plaintiff/Appellant is the illegal owner of the suit land2.What orders should the court issue? 5.The Land Registration Act is very clear on issues of ownership of land and Section 24(a) of the Land Registration Act provides as follows;Subject to this Act, 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.” 6.Section 26 (1) of the Land Registration Act states as follows;The Certificate of Title issued by the Registrar upon registration … 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… 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; orb.Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 7.PW2, the Plaintiff/Appellant testified in the trial court that she is the registered proprietor of the suit property and produced the title deed PEx1. She produced the letter of allotment dated 11th January 1995 and also annexed documents which were used to process the certificate of lease which was issued on the 5th January 2017. 8.The Defendants/Respondents stated that their ownership of the suit land is by two separate allotment letters. The 1st Respondent/DW1 testified that his late father Michael Nzyuko Mulwa (Deceased) was allocated the land unsurveyed plot number 72 in 1981 and later was issued with an allotment letter dated 24th April 1993. That after the allocation in 1981 his father took possession and opened a garage and built permanent structures which are still there to date. He built his house there and has a single business permit to operate a garage. The 2nd Respondent testified that he was allocated plot No. 62 Bondeni Area Mavoko which is adjacent to plot number 72 on the 22nd September 1993 by Mavoko Town Council. He took possession and has also operates a garage and has constructed rental units. They maintain that the Plaintiff’s allotment letter is a forgery. 9.The Court of Appeal in Munyu Maina vs Hiram Gathiha Maina (2013) eKLR held that;We state that 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. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.” 10.Section 26 of the Land Registration Act which guarantees the concept of indefeasibility of title does not extend to any property that has been found to have been unlawfully acquired. The Court of Appeal in Attorney General vs Torino Enterprises Limited (Civil Application 84 of 2012) (2022) KECA 78 (KLR) (4 February 2022) (Judgment) held that;We have considered the provisions of section 26 of the Land Registration Act (repealed) in light of the provisions of Article 40 of the Constitution which guarantees protection of right to property and it is our considered view that the concept of indefeasibility of title is subject to Article 40 (6) of the Constitution which states that: “The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.” Guided by the provisions of Article 40 (6) of the Constitution, we hold that the concept of indefeasibility or conclusive nature of title is inapplicable to the extent that title to the suit land was unlawfully acquired. See Denis Noel Mukhulo & Another v. Elizabeth Murungari & Another [2018] eKLR.” 11.I have perused the exhibits adduced in this court in great detail and find that the Appellants’ allotment letter is dated 11th January 1995 and her title deed was issued on the 5th January 2017. PW3 a surveyor testified that the Appellant’s allotment was verified by the National Land Commission and ascertained to be genuine. The term of the lease is reviewed backwards to be effective 1st January 1995. The title was issued over twenty years later! No satisfactory explanation has been given for this delay. The Appellant only returned in 2016 to find the Respondents had entered there illegally and constructed buildings. I have carefully perused the documents produced as exhibits by the Respondents. The 1st Respondent’s allotment letter is dated 24th April 1993 for plot number 72 and the 2nd Respondent’s allotment letter is dated 22nd September 1993 for plot number 62. They took possession in 1981 or thereabout and have established garage business and built rental houses. They have been in open and continuous use for a period of over 20 years. The trial magistrate stated in her judgement that;It appears to my mind that this was at best a case of double allocation. The purported letters of allotment however were not accompanied by part Development Plans showing the specific plot allocated to the person named. None of the parties adduced the minutes of the municipal council or allocating committee allocating the plot to the named alottee. These are basic requirements in cases of allotment of public land held under the old municipal councils and now the county government in trust for the community. Indeed taking into account all the steps I have enumerated above; I entertain serious doubt as to the authenticity of the process followed and issuance of the plaintiff’s Certificate of Lease.” 12.I concur and I also find that the Respondents’ allotment letters were issued in 1993 and hence in 1995 when the Appellant was issued with hers the said suit land was not available for allocation. Secondly, the Respondents were in active and open occupation ever since and the Appellant was never in possession of the said land. The Appellant never paid for the allotment in 1995 and only did so on 3rd February 2016 which is over twenty years later. It is not clear how these two plots were amalgamated to produce on title deed. For those reasons I find that the Plaintiff’s certificate of title has been acquired illegally and/or unprocedurally and cannot stand. I find that this appeal is not merited and I dismiss it with costs. 13.It is so ordered. DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 23RD DAY OF JUNE 2026.N.A. MATHEKAJUDGE