https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1314

Wanyeki (Suing as a representative of the Estate of James Mwangi Wanyeki - Deceased) v Mundia (Civil Appeal E177 of 2024) [2026] KECA 1314 (KLR) (3 July 2026) (Judgment) (with dissent - S ole Kantai, JA) Neutral citation: [2026] KECA 1314 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal E177 of 2024 S ole Kantai, JW Lessit & A Ali-Aroni, JJA July 3, 2026 Between Julie Wanjiku Wanyeki (Suing as a representative of the Estate of James Mwangi Wanyeki - Deceased) Appellant and Patrick Mwangi Mundia Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court at Nyeri (Olola, J.) delivered on 19th July, 2024inELC Case No. 412 of 2014. Environment & Land Case 412 of 2012 ) Judgment 1.This is an appeal from the judgment of the Environment and Land Court at Nyeri (Olola, J.) delivered on 19th July, 2024 in ELC Case No. 412 of 2014. 2.A brief background of the matter is that respondent filed a suit against one Wanyeki James Mwangi (deceased) (hereinafter Wanyeki) via plaint dated 17th August, 2012 and amended on 20th December, 2012 and sought judgment against the appellant thus:a.A declaration that the respondent is entitled to exclusive and unimpeded right of possession and occupation of the suit property an order of vacant possession thereof.b.An injunction restraining the appellant, whether by himself, his servant and/or agents or otherwise however from remaining on continuing in occupation of the suit property.c.An order directing the Land Registrar Nyeri, to remove the restriction registered on 6th February, 2012 and 15th May, 2012 against the title to LR No. Nyeri/Lusoi/35.d.Costs of the suit and interest.e.Any other or further relief as this Honorable court may deem appropriate. 3.The respondent’s case was that he was the registered owner of all that parcel of land known as LR N0. Nyeri/Lusoi/35 (hereinafter referred to as the suit land) having registered it in his name as beneficiary of a gift from his mother Felly Gathoni Mundia (deceased) (hereinafter Gathoni) on or about 9th April, 1998. He then entrusted his agent/servants with the suit land, as he was not living on it. His case was that without his consent, Wanyeki and/or his servants committed acts on the suit land which were inconsistent with his right to absolute ownership of the suit land. The acts included; permitting or causing entry of strangers to the suit land; harvesting natural growing grass; interfering with the respondent’s agents discharge of their authorized acts. That the respondent became aware of Wanyeki’s acts on or about June 2012 when he erected signs at the road frontage of the suit land to the effect that “the land was not for sale.” Upon meeting with him, he admitted entering the suit land and harvesting hay. 4.As a result, the respondent claimed that he suffered loss which included being deprived of the use and quiet enjoyment of the suit land, loss of the suit land’s natural resources harvested by the agents of Wanyeki causing wastage thereof, and inhibition to the respondent’s dealing with the land as the absolute registered owner thereof. 5.Wanyeki caused to be registered against the title of the suit land a restriction on 15th May, 2012, claiming interest over the suit land, which restriction further encumbered the respondent’s absolute proprietorship to the suit land. In addition, the Settlement Fund Trustee (hereinafter SFT) registered a restriction over the suit land, dated 6th February, 2012, restricting any dealing in the land until payment of the SFT loan. The respondent claimed that he thereafter paid the SFT loan in full but the restriction was not removed. 6.On 21st November, 2012 an interlocutory judgment was entered against Wanyeki for failure to enter appearance and file his defence. On 14th March, 2014 a consent was entered by the parties, and the interlocutory judgment and the ex-parte court proceedings were set aside and the suit allowed to start de novo. 7.Wanyeki entered appearance and filed his statement of defence and counterclaim dated 16th April, 2014. In his defence, he denied all the allegation put forth by the respondent. In the counterclaim he claimed that he was the beneficial owner of the suit land formerly known as Plot No. 35 Lusio Scheme from (SFT) and alleged that the respondent fraudulently obtained its registration in his favor. 8.He gave particulars of fraud on the part of the respondent as obtaining registration to parcel number Nyeri/Lusoi/35 while records at the SFT still read his (Wanyeki’s) name; and obtaining registration to parcel number Nyeri/Lusoi/35 while there still existed unsettled amount of loan over the suit land with SFT. 9.Wanyeki thus prayed that the respondent’s suit against him be dismissed; a declaration that the respondent’s title to parcel number Nyeri/Lusoi/35 was fraudulently obtained, the same be cancelled and in its stead a title be issued in his favor upon payment of what is due to the Settlement Trustee’s office. He also sought costs of the suit and of the counterclaim; and any other/further relief that the Honorable court may deem fit and just to grant. 10.The respondent filed a reply to the defence and defence to the counterclaim dated 5th May, 2014. He denied that Wanyeki was the owner of the suit land or a beneficiary of the suit land from SFT. He reiterated that he was the absolute registered owner of the suit land and if any beneficial interest existed therein in favor of Wanyeki, which he h denied, the said interest was extinguished upon the registration of Epaphrus Kaara Kabuga (Epaphrus) as the proprietor of the suit land on 24th November, 1987. He denied that he obtained registration of the suit land in his favor fraudulently and the particulars of fraud as pleaded or at all. He specifically did transverse the particulars of fraud as pleaded as follows:-a.The transferor of the suit land to the respondent and the two previous proprietors thereof were purchasers for value of the suit land.b.The transfer to the respondent was not subject to any subsisting encumbrances.c.No unsettled amount exists against the suit land in favor of the SFT.d.No interest in favor of the SFT existed at the time of the respondent’s registration otherwise the land was free from any encumbrances. 11.The respondent contended that if any fraud was committed in the previous registration of the suit land, which he denied, he was not a party thereto, neither did he have knowledge of the same. In addition, he contended that if any remedy lay in favor of Wanyeki, the same was for indemnity and hence the counterclaim disclosed no cause of action against him. Further, he contended that Wanyeki’s counterclaim was otherwise time-barred and hence prayed that the defence and the counterclaim be dismissed with costs. 12.The matter proceeded by way of viva voce. The respondent testified and called one (1) witness. The respondent’s case was that he was the registered owner of the suit land having been gifted by his deceased mother in 1998. His late mother had bought the same from one John Wambugu Gicha (Wambugu). Immediately his late mother bought it she took possession. The respondent stated that he gave one Antony Muriuki (Muruiki) permission to till the suit land and plant hay. He stated that when he took possession of the suit land there was an incomplete structure owned and put up by one Solomon Mwai (Mwai), the 2nd registered owner, who confirmed that their purchase of the suit land included the structure. There was a natural dam which had dried up 15 years earlier and the land had been was fenced by Solomon. 13.In 2012 he met Wanyeki in the lands office during a transaction when he was selling the suit land to one Karoki. At the time of obtaining the Land Board Consent and signing of the transfer documents, there was no objection raised and no encumbrances and the only persons in possession were himself and Muriuki. Just as they were about to wind up on the transaction, Wanyeki appeared before the Land Registrar who confirmed that the respondent was the registered owner of the suit land. The respondent claimed that nowhere in the land registry did it indicate that Wanyeki was allocated the suit land by SFT. The register indicated that the suit land was discharged to Epaphrus and was clear until 6th February, 2012 and 15th May, 2012 when restrictions were registered against the title. 14.The respondent testified that the suit land had never been farmed as the grass grew naturally on it, nor had any animals grazed therein. 15.The respondent further testified that the DCI in their investigations confirmed that there was no fraud committed as far as his title was concerned. In conclusion therefore he prayed that he be allowed to remain in possession of the suit land, that Wanyeki be permanently restrained from interfering with the suit land and the two (2) restrictions be removed. 16.In cross examination the respondent confirmed that the SFT office records showed that Wanyeki was the one allocated the suit land in 1977. He claimed that since Wanyeki was unable to pay, a discharge was made in favor of Epaphrus which amount he paid to SFT at the time the suit land was registered in his name as Epaphrus did not pay either. Lastly, he confirmed that at the time he acquired the suit land, all the previous registered owners were alive and that he even asked Wanyeki to meet with them but he declined. 17.Muriuki corroborated the evidence of the respondent. He testified that Epaphrus had two parcels of land and that he sold to his late father John Magothe Kahumbu (Magothe), one of the parcels, LR. No. Nyeri/Lusio/36. He testified further, that Epaphrus allowed them to continue to occupy and use the other parcel of land, then unregistered land, which is the suit land-LR. No. Nyeri/Lusio/35. He said that Epaphrus sold the suit land to Mwai after he acquired title. Who allowed him to continue to graze his livestock on the suit land as he had no immediate use for it? Mwai fenced the suit land, built a temporary house which he did not complete and a tank as the natural dam on the land had since dried up. Mwai later sold the suit land to Wambugu who allowed them to continue to use the land. 18.Muriuki stated that later in 1996 or there about the late Gathoni was introduced to Wambugu and she purchased the suit land for her son, the respondent. After the purchase, the respondent allowed him to continue to use the suit land on the condition that he did not graze his livestock directly on the land to allow the natural pasture to grow for harvesting as hay. He was also allowed to cultivate crops on the lower part of the suit land. The respondent introduced him [Muriuki] to his caretaker. He testified that he learned from the respondent that Wanyeki was claiming ownership of the suit land. It was his evidence that he had never seen Wanyeki on the suit land prior to the time he laid claim to the suit land. 19.Wanyeki died on 10th September, 2019 before he could testify and he was substituted with his wife and legal representative, Julie Wanjiku (Julie). Four witnesses testified. In a witness statement accompanying the defence, Wanyeki had stated that he was a retired Under Secretary; that on 14th October,1977 he was allocated a piece of land at Nyeri (Plot No. 35) by SFT measuring 150 acres upon making an application. He was required to pay a total sum of Ksh.43,629. He stated that there was a provision in the agreement that he pays half yearly instalment of Ksh.1,702/- for 56 months; that he took possession of the land and developed it by building a house on it, a huge water tank and a dam; that he fenced the land on which he started farming by having cows, goats and sheep on the land and that he was still in possession of the land at the time of making his statement. His daughter Wanjiku and son in law Simon were farming on the land by growing hay on it; that he had received a call on 12th January, 2012 and was informed that there was someone who was claiming the land. Upon investigations he found that the land was actually in the market for sale. 20.His daughter Wanjiku and his son in law Simon Gichoru Muya (hereinafter Simon) each filed a witness statement where they restated the facts as given by Wanyeki in his statement. They confirmed that they occupied the land from 2005 and were carrying out farming activities on it, including rearing cows and goats. In 2012 one Karoki found them on the farm and notified them that he was in the process of purchasing it from the respondent. 21.Wanyeki’s wife Julie, in her evidence reiterated the facts as stated in Wanyeki’s witness statement. She stated that her late husband was allocated the suit land measuring 150 acres in 1977 by the SFT. After the allocation, he was required to pay a total of Kshs.43,629/- and that there was a provision that he could pay the amount in half yearly installments of Kshs.1702/- for fifty- six (56) months. She testified further. that they immediately took possession of the suit land, put up a perimeter fence, built a stone water tank and constructed a dam; put up a three (3) bedroom stone house and houses for their workers. They started farming a variety of crops and also reared different animals such as cows for milk and beef, goats and sheep. She testified that in 2005, their daughter, Wanyeki Wanjiku and her husband Simon, with their consent, began farming on the suit land by growing hay and rearing sheep and cows. 22.Julie stated further, that on 12th January, 2012 she and her husband received a call from Simon informing them that one Karoki had visited the suit land and informed him that he was in the process of purchasing the land from the respondent. Julie said that she and her husband met with Karoki who confirmed that he was in the process of purchasing the suit land and that he had already deposited Kshs.4.7 million towards its purchase. Her late husband obtained the documents of the said transaction and informed Karoki that he was the rightful owner of the land. 23.Julie stated that they later reported the matter to the DCI and her late husband recorded a statement. She contended that her late husband had not been issued with the title deed of the suit land because he had not paid the SFT the full amount of the loan payable to facilitate processing of the same. She testified that later her late husband established that Kshs.323,958/11 was due to the SFT and paid it at the Nairobi office in 2012 after which he applied for issuance of title deed. The SFT acknowledged receipt of payment and issued him with a discharge of charge. Transfer forms were prepared and forwarded to the then District Land Adjudication and Settlement office for registration, however, they declined to register the discharge of charge for reason that there were previous registrations against the same land. That when her late husband visited the lands office at Nyeri, he was informed that the suit land had several encumbrances resulting from purported sales to other persons. Her late husband was advised by their advocate to file a suit against the respondent but the respondent had already moved the court. 24.Julie maintained that her late husband was the rightful owner of the suit land and claimed the purported registration of the land to the respondent was fraudulent and illegal. She therefore prayed that the court orders cancellation of the said registration. 25.Constable Kennedy Lubembe attached to Land Fraud Investigations testified that sometime in April 2019 they received a complaint from Wanyeki (deceased) and his wife Julie over the suit land. After getting Wanyeki’s statement they embarked on investigations. They wrote a letter to Director Land Adjudication and Settlement to find the status of the allocation of the suit land and the Director in his response on 4th November, 2022 gave them a copy of the register and they confirmed that the suit land measuring 150 acres was registered in the name of the late Wanyeki. They were also given a discharge of charge in the name of the late Wanyeki. They were also issued with a copy of the letter by Ag. Director Land Adjudication and Settlement dated 17th January, 2018. Later they did a letter to the Regional Surveyor and they were issued with a survey plan which showed the suit land in its original form. DCI officer visited the suit land and thereon found a timber structure and a caretaker who informed them that the land belonged to the late Wanyeki. There were a number of cows and hay was growing on the suit land and it was fenced. 26.They did another letter to the District Land Registrar who provided them with a Green Card of the suit land and thereon entry no. 12 had a restriction by the respondent. Entry. No. 9 showed that the land was registered on 9th April, 1998 to the respondent. On that note they summoned the respondent and he provided the copy of the title to the suit land in his name and a receipt No. 9204037 dated 2012 for payment of SFT loan on suit land. Constable Lubembe said they found discrepancies in respondent’s documents in that there was no way the respondent could have obtained registration of the suit land in 1998, while the SFT loan was still outstanding and then purport to clear it 14 years down the line. 27.He visited the office of the District Land Adjudication and Settlement Office in Nyeri and confirmed that the suit land was allotted to the late Wanyeki. He was given a copy of the discharge of charge in the name of the late Wanyeki together with receipts in his name. 28.He further testified that on the copy of the Green Card there was an entry in the name of Epaphrus made on 24th November, 1997 and in their investigation they discovered that Epaphrus was the owner of land parcel Nyeri/Lusoi/36 which was land adjacent to the suit land. This was also confirmed in the register at the District Adjudication and Settlement. 29.Constable Lubembe in conclusion testified that their investigations revealed that the late Wanyeki’s claim over the suit land was supported by appropriate documentation. 30.David Maina Githaiga the Assistant Director of Settlement in charge of Nyeri County testified that the suit land was allocated to the late Wanyeki on 14th October, 1977 and a discharge of charge was issued to him on 29th October, 2012. He said that Wanyeki was supposed to pay the SFT loan beginning 30th September, 1980 but there was no indication of when he would finish paying. He denied that the office issued any other discharge of charge over the suit land. 31.Nathan Gioche Gathaiya, the Land Registrar in charge of Nyeri County, testified and produced the records for Plot Nos. Nyeri/Lusoi/35 and 36. He stated that each measured 60 hectares and the respective register was opened on 22nd October, 1979 under the name of SFT. In respect of Nyeri/Lusoi/36 Entry No. 2 showed SFT transferred the land to Epaphrus, which was registered in their record on 6th February, 1987. Epaphrus later transferred the land to one John Magothe Kahumba. 32.In respect of the suit land [Nyeri/Lusoi/35 he testified that he had a certified copy of the Green Card which had 14 entries. The Green Card Entry No. 2 was made on 24th November, 1987 in the name of Epaphrus. Entry No. 3 entered on 11th March, 1988 showed a transfer from Epaphrus to Mwai for Kshs.740,000/-. Entry No. 4 was the land certificate issued to Mwai. With respect to Entry Nos. 2 and 3 he checked the parcel file for the supporting documents for the transfer and found none. Entry No. 5 made on 17th November, 1993 was a transfer from Mwai to Wambugu. Entry No. 6 showed the title was issued to Wambugu for a consideration of Kshs.1.2 million. Entry No. 7 was a transfer made on 27th May, 1996 in favor of Gathoni. Entry No. 8 Gathoni was issued with a title on 27th May, 1996 and the consideration was indicated merely as “sale”. Entry No. 9 made on 9th April, 1998 was a transfer in favor of the respondent and title issued on the same day under Entry No. 10. 33.He noted that there were several disputes pertaining to the suit land and further restrictions registered against it and he was aware that the matter was still under DCI investigations and they provided them with the Green Card, the copy of Discharge of Charge, letter of allocation and receipt for clearance of SFT loan all in favour of Wanyeki. 34.At the close of the hearing, the parties filed their respective written submissions. By the judgment dated and delivered on 19th July, 2024, Olalo, J. found that while it was evident that the late Wanyeki may have initially tried to secure allotment of the suit land, he had certainly failed to fulfil the requirements of the allotment, that of paying the SFT the sum of Kshs.43,629/-. He also found that there was nothing that was placed before the court to demonstrate that any such payments was made and/or that Wanyeki took possession of the property as alleged and made any developments thereon. It was clear that Wanyeki learnt of the respondent’s intention to sell the land and that is when he went back to SFT and enquired on the full amount payable to facilitate the processing of the title. The learned Judge noted that the title had long been processed and had been issued, and the same had exchanged hands severally. In addition, he found that nothing was placed before the court that suggested even remotely that the title issued to Epaphrus in 1987 was fraudulent and/or that the respondent was a party to such fraud and/or misrepresentation. Lastly, he found that the respondent had established his claim on a balance of probabilities and that Wanyeki’s counterclaim lacked merit and accordingly made the orders as follows:-a.The appellant’s counterclaim is hereby dismissed.b.A declaration is hereby made that the respondent is entitled to exclusive and unimpeded right of possession and occupation of the suit property and to vacant possession thereof.c.An order of injunction is hereby issued restraining the appellant, her servants and/or agents from remaining on or continuing in occupation of the suit property.d.The respondent shall have the costs of both the suit and the counterclaim. 35.Aggrieved and dissatisfied with the said judgment, the appellant preferred an appeal to this Court as evinced in the notice of appeal dated 31st July, 2024 and filed on 8th August, 2024. In the memorandum of appeal dated 27th September, 2024, the appellant faults the learned Judge of falling into error for holding:1.that the suit land which was charged to the Settlement Fund Trustees was capable of being transferred without a discharge of charge being first registered;2.that a Green Card is conclusive prove of ownership even when the entries on the Green Card are not supported by any document;3.that a transfer of land does not need to be supported by documentation; 36.The Judge was faulted further on grounds which included the following:4.For disregarding the evidence of the Directorate of Criminal Investigations, the Assistant Director of Settlement in charge of Nyeri County and the Land Registrar of Nyeri County that the suit land belongs to the appellant;5.For holding that the appellant did not pay the charge amount within the time stated in the charge, documents which was not an issue before court;6.For considering irrelevant matters hence arriving at a wrong decision;7.Failing to properly consider and evaluate the evidence before him and arrive at a decision in favor of the respondent; and8.Dismissing the appellant’s counterclaim against the weight of evidence showing that the suit land was allotted to the appellant who was thereafter issued with a discharge of charge; 37.The appellant thus proposes to ask this Court for orders that the appeal be allowed, the judgment delivered on 19th July, 2024 be set aside, and substituted with an order allowing the appellant’s counterclaim dated 16th April, 2024, and costs of the appeal and the primary suit be awarded to the appellant. 38.The appeal was heard on the 28th April, 2025 through this Court’s virtual platform. Present for the appellant were two learned counsel Mr. Mwangi Kibicho who was the lead counsel and Mr. Cornelius Sikuku. There was no appearance for the respondent despite service of the hearing notice to counsel Charles Kingori on the 24th March, 2025. He however filed written submissions dated 20th December, 2024. Mr. Kibicho adopted the appellant’s submissions dated 25thNovember, 2024 and the filed supplementary list and digest of authorities dated 17th January, 2025 which he highlighted before us. 39.This being a first appeal we are duty bound to re-evaluate, re- examine and re-analyse the evidence and reach our own conclusion and then determine whether the conclusions reached by the learned trial Judge should hold. In the case of Kenya Ports Authority vs. Kuston (Kenya) Limited [2009] 2EA 212 this Court espoused that mandate or duty as follows:-“On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” (See Selle vs. Associated Motor Boat Company Ltd [1968] EA 123 and also Abok James Odera t/a A. J. Odera & Associates vs. John Patrick Machira t/a Machira & Co Advocates [2013] eKLR.)" 40.Having considered the evidence adduced before the ELC, submissions by counsel and the cases cited I find that what falls for our determination is who is the rightful owner of the suit property. The appellant claims ownership on the basis of an allocation made to him by the SFT in 1977, a payment receipt for the SFT loan dated 2012 and a discharge of charge issued to him by the SFT upon clearance of the loan owed to it dated 2012. The respondent on the other hand claimed ownership on the basis of title to the suit land registered in his name in 1998 through transmission as a beneficial gift from his mother and a receipt of payment of the SFT loan dated 2012. 41.The appellant’s submission was that the Judge fell into error when he found that the respondent had proved his claim. He urged that the suit land having been registered to SFT as chargee, it was incapable of transfer before the registration of a discharge of charge and payment of the SFT loan by the chargor. He urged that the Judge erred to find that the Green Card was in itself conclusive proof of ownership where it was not supported by the requisite documentation. 42.The appellant’s further submission was that the respondent did not demonstrate how he managed to have the share owned by his mother transferred to him without going through any process known to law. He urged that it was obtained by a process that is the product of a corrupt scheme within meaning of section 26 of Land Registration Act, 2012. 43.The respondent’s counsel on the other hand submitted that the letter of allotment and a charge that the appellant was relying upon were ineffectual, had become void ab initio, had otherwise lapsed, was invalid and was therefore unenforceable. He urged that the appellant did not perfect the allotment from 1977 when it was issued, and neither did he meet the requisite conditions of acceptance of the offer. He took issue with the length of time. For that proposition he relied on several cases including Torino Enterprises LTD vs. AG, Supreme Court Petition No. 5 (E006) of 2022 and Philma Farm Produce and Suppliers vs. AG [2012] eKLR. 44.The respondent’s counsel submitted further, that the appellant was unable to prove fraud as against the respondent and urged that the finding by the Judge to that effect should be upheld. He urged that even if the title was obtained fraudulently, the appellant’s claim should fail as the letter of allotment was invalid. For that proposition he relied on the High Court case of Kaseve Welfare Society vs. Harp Housing Ltd [2020] eKLR. 45.The third point raised by the respondent’s counsel in his submissions was that the appellant’s claim to the suit land was time barred. This is a new ground that was not pleaded in the defence to the counter claim by the appellant, and submitted on by counsel to the respondent. However, no evidence was led in its’ support. The learned Judge did not make any mention of it in his judgment. Having not led any evidence on this point, I consider that the respondent abandoned that ground, and giving submissions on it did not amount to evidence. In the circumstances, that ground cannot be raised on appeal. The Court of Appeal in Kenya Hotels Limited vs. Oriental Commercial Bank Limited [2018] eKLR is spot on. The learned Justices considered governing principles guiding consideration of new grounds of appeal raised on appeal for the first time. It observed:“Where the applicant seeks to introduce an entirely new point, there are well known strictures that seek to ensure firstly, that an appellate court does not, in disguise, metamorphose into a trial court and make first-instance determinations without the benefit of the input of the court from which the appeal arises…Due to these fundamental concerns, the Courts have developed fairly elaborate principles that guide it in determining whether or not to allow a new point on appeal. In Openda v. Ahn, (ca 42/1981) this Court identified some of the principles to include that all grounds of appeal must arise from issues that were sufficiently pleaded, canvassed, raised or succinctly made issues at the trial; that the point sought to be introduced must be consistent with the applicant’s case as conducted in the trial court, not changing it into a totally different case; the matter must have been properly pleaded and the facts in support of the new point must have come out in the trial court.” 46.Similarly, in George Owen Nandy vs. Ruth Watiri Kibe [2016] eKLR, the Court of Appeal rendered itself thus:“In general, a litigant is precluded from taking a completely new point of law for the first time on appeal. The jurisdiction of this Court is not to decide a point which has not been the subject of argument and decision of lower court unless the proceedings and resultant decision were illegal or made without jurisdiction. (See Nyangau v Nyakwara [1986] KLR 712). However, the appellant in the present appeal fully acquiesced and submitted to the jurisdiction of the High Court to decide the case on merit. His conduct can only be interpreted to mean that he understood that the interlocutory judgment had been set aside when the High Court allowed the respondent to file her defence out of time.”I say no more. 47.The dispute before this Court is on the ownership of the suit land. The Courts in Kenya have made it clear that whenever disputes arise regarding ownership to landed property, it is not enough for a title holder to land to wave the title document as proof of ownership, he must show how that title was acquired. The Supreme Court of Kenya in Dina Management Limited vs. County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment) pronounces itself thus:“To establish whether the appellant is a bona fide purchaser for value therefore, we must first go to the root of the title, right from the first allotment, as this is the bone of contention in this matter....The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser." 48.It is not in dispute between the parties that the suit land was registered to SFT as indeed the Green Card for the suit land at Entry No. 1 shows. The Judge also came to the same conclusion that the land was registered to SFT and charged in its favour for a loan given to Wanyeki. The land was allocated to the appellant in 1977 under a charge to SFT for an amount the appellant was required to pay in order to have a discharge of charge issued in his favour by SFT. The discharge of charge was one of the documents required for issuance of title by the Land Registrar. The other documents included a receipt proving payment of the SFT loan. 49.On the respondent’s part, his position was that his mother gave him the land as a gift, and when he turned 18 years old, he registered the suit land in his name through transmission. That was in 1998. It was only in 2012 that he became aware of the appellant’s claim to the suit land, and met him at the Land Office that year. The respondent called a witness, one Muriuki who knew the history of the suit land. His evidence was that one, Epaphrus owned Plot no. 36, which neigboured the suit land. He knew that Epaphrus sold his plot to his father. He said that at some point Epaphrus also owned the suit land and that he sold it to one Mwai that the suit land changed hands severally, landing in the hands of the respondent’s mother and finally the respondent. 50.There is no dispute that the suit land was registered to the SFT. The SFT is a body corporate having a perpetual seal set up under section 167 of the Agriculture Act (cap 318 of the Laws of Kenya now repealed). This Court in Boniface Oredo vs. Wabomba Mukile, Civil Appeal No. 170 of 1989 (unreported) held that:“The interest of the Settlement Fund Trustees is really that of a chargee. It lends money for development to persons to whom it has allocate. Land and the repayment of such money is secured by a charge upon the property..." 51.The evidence adduced in the trial court is clear that the SFT allocated the suit land to Wanyeki, and gave him a letter of allocation to that effect, and charged the suit land as security to the loan. That was on 14th October, 1977. The Assistant Director of Settlement, Nyeri County, DW3, confirmed as much in his evidence and displayed the letter of allocation in court. He said that a discharge of charge was issued to Wanyeki on 29th October, 2012. He stated that Wanyeki was to start payment of the SFT loan on 30th September, 1980, and that there was no date set for completion of payment. He further stated that no other discharge of charge was issued over the suit land, neither did the respondent make any payment to their office [SFT]. That put to doubt whether the respondent’s receipt for payment of the SFT loan was genuine. 52.DW4 the Land Registrar Nyeri produced records of the register over the suit land and testified that it was opened on 22nd October, 1979 and the land was registered to SFT as chargee. He stated that entry no. 2 made on 24th November, 1987 in favour of Epaphrus, and entry no. 3 transfer from Epaphrus to Simon Mwai on 11th March, 1988 were not supported by any documentation, which he confirmed from the parcel file. 53.The evidence of these witnesses is clear that there was a process for registration of land charged to SFT. As the land was charged to SFT, the loan had to be paid to; a receipt and a discharge of charge issued to the allottee upon clearing the loan. As the first registered owner of the suit land as chargee, it was SFT that could discharge the charge over the suit land and issue a discharge of charge to the charger to enable him to obtain title to the suit land from the Land Registrar. That was the proper process through which a legal title could be issued in this respect. That process was not followed because the register at the Land Settlement office still indicated that the land was allocated to Wanyeki and as of 1987 when Epaphrus got title and even up to October, 2012 when Wanyeki paid the same, the loan secured by the suit land was still outstanding. DW4 stated that he received a restriction from SFT on 6th February, 2012, as chargee of the suit land restricting any dealings over the land unless the SFT loan was paid. That meant that in 1987 when Epaphrus purportedly obtained title to the suit land, the SFT loan was still outstanding. It also means that SFT had an interest over the suit land on account of the SFT loan and thus the power to restrict any dealings on the land until the loan was cleared. 54.That leads to the issue of the propriety of the respondent’s title to the suit land. The evidence is clear that when Epaphrus got the title to the suit land, he did not have the necessary documentation to have the title issued to him. He had no receipt for loan payment to SFT, nor the discharge of charge over the suit land from SFT as proof of clearance of the loan owed to SFT. He also had no letter of allocation. These facts were confirmed by the Land Registrar and the Land Settlement Officer, DW4 and DW3. 55.Secondly, and equally important, the allocation to Wanyeki was still subsisting and was not at any time cancelled, explaining how he was able to pay for the SFT loan and to have the discharge of charge issued to him in 2012. That, in effect, meant the suit land was not available for registration by any person other than Wanyeki. 56.I must mention one more point, about who was in occupation of the suit land or who was utilizing it. The evidence by Muriuki for the respondent testified that Epaphrus had given him permission to utilize the suit land and that all those who owned the suit land after Epaphrus sold it allowed him to cut hay from the land and not to grace animals or till it. That was contrary to the evidence of Julie, Wanjiku, Simon and Wanyeki’s statement in that regard. While Julie and her family stated they moved into the land in 1987, fenced it, built houses, dug a dam, bought water tanks and reared farm animals and utilized the land up to 2019 when DCI started their investigations. 57.Constable Lubembe was an independent witness. In his evidence testified that he visited the suit land in 2019 and that the person’s he found on the ground was a Caretaker who told him the land belonged to Wanyeki. He said he found animals grazing on the land, and hay growing on it and buildings on the land. The respondent had no presence on the land. Indeed, after he filed the suit he filed an application to restrain the appellant from entering the land. Further, in his plaint, one of his prayers was for eviction of the appellant. All these show the appellant was the person in actual occupation of the suit land all along, as the appellant and his witnesses stated both in their statements and in evidence. 58.The learned Judge, making reference to section 26 1(a) and (b) of the Land Registration Act, found that ‘nothing was placed before me to suggest even remotely that the title issued to the said Epaphrus Kaara in 1987 was fraudulent and or the Plaintiff {respondent herein) was a party to such fraud and or misrepresentation.’ 59.This Court differently constituted in the case of Caroget Investment Limited vs Aster Holdings Limited & Others Civil Appeal No 82 of 2018, dealing with authentication of title had this to say of section 26 of the Land Registration Act:“This section has been the subject of interpretation in numerous cases. It gives an absolute and indefeasible title to the owner of the property. This presumption of indefeasibility and conclusiveness of title is rebuttable only by proof of fraud or misrepresentation, and only if it is proved that the buyer was involved in such fraud or misrepresentation. “ 60.This Court in Munyu Maina vs. Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR, stated that:“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." [Emphasis added] 61.Section 26 of Land Registration Act, 2012 provides:“26.(1)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; orb.where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme…” 62.The exception under section 26 (1)(a) and (b) of the Land Registration Act is disjunctive. That means that whereas under sub-section (a) title can be challenged on grounds of fraud or misrepresentation to which the person is proved to be a party’. Likewise, under sub-section (b) the title will be subject to challenge where it is shown that the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. It was therefore not enough under section 26 for there to be no evidence of fraud or misrepresentation. The Judge stopped short of considering whether the respondent’s title was impeachable under sub-section (b) of section 26(1) by considering the legality of the title by considering whether its acquisition was legal, formal and free. 63.The very construction of section 26 (1)(a) makes it imperative that where the title is challenged on the grounds of fraud and misrepresentation, it should be proved that the title holder must have been a party to the said fraud or misrepresentation. However, for section 26 (1)(b) to be operative it is not necessary that the title holder be shown to have been a party to the factors vitiating the title, that is of it having been obtained illegally, unprocedurally or through a corrupt scheme. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme; even where the title holder had not contributed to these vitiating factors. 64.The evidence before court was that the respondent’s root of title to the suit land was acquired illegally, unprocedurally or through a corrupt scheme. There is no other way of explaining how Epaphrus got title to the suit land without the requisite documentation, before clearing the SFT loan, without a discharge of charge and while all the records indicated the land was allocated to Wanyeki. To put it differently, Epaphrus by-passed SFT the first registered owner of the suit land and the only party that could have authorized the issuance of title to him, obtained the title without a letter of allocation from SFT, and without paying the SFT loan. I must say that there is no way Epaphrus or any other title holder after him could have paid the SFT loan as the loan had not been given to them. For him to pay it, the allocation to Wanyeki should have first been canceled. The cancellation should have been reflected in the Land records, both at the Land Adjudication and Settlement Office and the Land Registry. Before such cancellation, the land remained allocated to Wanyeki and was therefore not available for transfer to anyone else. That Epaphrus obtained title without a letter of allocation, without a discharge of charge and before the SFT loan was cleared is clear proof that the title was obtained through a process that was illegal, unprocedural and that could only have been through a corrupt deal. 65.That leads to the inevitable finding that the root title to the suit land was not acquired legally, formally or free from other interests. I find that the respondent did not prove the legality of the title and neither did he show that the acquisition was legal, formal and free from any encumbrance. Inevitably, Epaphrus had no good title to the suit land and he could definitely not have passed a good title to Mwai. Additionally, Mwai and all those in line after him had no good title to pass to anyone. The respondent had no good title to the suit land, and what he has is impeachable under section 26 (1)(b) of the Land Registration Act. 66.I identify with the remarks by the retired Chief Justice Maraga in Republic vs. Minister for Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collector & 15 Others Mombasa HCMCA No. 617 of 2003 [2006] 1 KLR (E&L) 563 he stated as follows:“Courts should nullify titles by land grabbers who stare at your face and wave to you a title of the land grabbed and loudly plead the principle of the indefeasibility of title deed…” 67.Having considered the evidence adduced before the trial court, the submissions by counsel and the cases cited and the law, I find that the respondent’s case had no merit and ought to have been dismissed. I make the following orders:1.The appellant’s appeal is merited and is allowed;2.The judgment of dated 19th day of July 2024 (Olola, J) be and is hereby set aside in its entirety;3.The appellant’s counter claim is allowed and judgment entered as prayed;4.The appellant shall have the costs of the suit before the Environment and Land Court and of the counter claim;5.The appellant will have the costs of this appeal.Dated and delivered at Nyeri this 3rd day of July, 2026J. Lesiit………………….…………… Judge Of AppealI certify that this is a true copy of the originalSignedDeputy RegistrarIn The Court Of Appeal At Nyeri(Coram: Kantai, Lesiit& Ali-aroni,JJ.A.) Civil Appeal No. E177 OF 2024BetweenJulie Wanjiku Wanyeki(Suing as a representative of the Estate of James Mwangi Wanyeki (Deceased) AppellantAndPatrick Mwangi Mundia Respondent(Being an appeal from the Judgment and Decree of the Environment and Land Court at Nyeri (Olola, J.) delivered on 19th July 2024 in ELC Case No. 412 of 2014).......................................Judgment Of Ali-Aroni,JA 1.I have had the benefit of reading in draft the judgment of my sister Lesiit JA, which I fully agree with. A title deed is not a shield for absolute ownership; it collapses if the root of title was obtained fraudulently or illegally. It is now trite, as seen in the cited decisions below, that a certificate of title cannot cure an unlawful acquisition. Once the root is ‘rotten’, the title is void ab initio. 2.Here we have two competing interests. One through a title traceable to Ephantus Kaara Kabuga (‘Erastus’), who is said to have had the title transferred to himself in 1987, and whose root is not traceable to the previous owner, the Settlement Fund Trustee (SFT). The other is through an allocation of the suit property by SFT to Wanyeki James Mwangi (deceased) (husband of the appellant), with a charge created against the property by SFT, paid, and the title discharged in favour of the deceased, with records traceable at SFT. 3.In its judgment in favour of the respondent, the trial court had this to say of the root of his title:“…while indeed it was not clear how the property had ended up in the hands of the saidEphantus Kaara Kabuga in 1987…“… in the circumstances of this case, nothing was placed before me to suggest even remotely that the title issued to the said Ephantus Kaara Kabuga in 1987 was fraudulent and/that the plaintiff was a party to such fraud and/or misrepresentation.” (Emphasis added) 4.The finding of the trial court was in itself contradictory and against the weight of the evidence before it. The respondent’s own witness, PW1, attested to the irregularity and fraudulent conduct of Erastus in relation to the suit property. The Land Registrar testified that there were no records showing the transfer of the suit property from SFT to Ephantus. Further, the evidence from SFT was that their dealings with the suit property involved only the deceased and that Ephantus had been allocated the adjacent property. Further, the discharge of the charge prepared by SFT against the suit property upon payment of its dues was in favour of the deceased, not Ephantus. Equally, the DCI's evidence confirmed that no documents were available to them on how Ephantus acquired the title in his name. The evidence on record showed that Ephantus had no good title to pass to any third party, and the pattern continued as the title changed hands several times, culminating in the respondent’s mother. She, too, did not acquire a good title and had none to pass to the respondent, who, in turn, had no right to evict anyone from the suit property. 5.In the circumstances of the case, therefore, it was not enough for the respondent to wave his title, since it was under challenge. He needed to disprove the claim that it was not obtained legally and prove the legitimacy or correctness of the title, even though he did not obtain it directly from Ephantus. He did nothing towards meeting this legal obligation. On the other hand, the appellant specifically pleaded acts of fraud and proved the same. (see Arthi Highway Developers Limited vs. West End Butchery Limited & 6 Others [2015] eKLR). 6.There are a litany of cases regarding titles obtained illegally and/or fraudulently. Woe unto a litigant if the source of the title is tainted with fraud and irregularity. In Munyu Maina vs. Hiram Gathika Maina [2013] KECA 94 (KLR), this Court held;“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.”In Funzi Island Development Limited & 2 Others vs. County Council of Kwale & 2 Others [2014] KECA 882 (KLR), the Court observed:“...a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot, on the basis of indefeasibility of title, sanction an illegality or give its seal of approval to an illegal or irregularly obtained title.”The Supreme Court in Dina Management Ltd vs. County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), held that:“Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held asindefeasible.The first allocation having been irregularly obtained, HE Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co (1993) Ltd, who in turn could pass to the appellant” 7.In the end, I totally concur with the well-reasoned judgment of Lesiit JA and the orders therein granted.Dated and delivered at Nyeri this 3rd day of July, 2026.Ali-aroniJudge Of AppealI certify that this is a true copy of the original.Deputy Registrar.In The Court Of Appeal At Nyeri(Coram: Kantai, Lesiit & Ali-Aroni,JJ.A.) Civil Appeal No.E177 of2024BetweenJulia Wanjiku Wanyeki AppellantAndPatrick Mwangi Mundia Respondent(Being an appeal from the Judgment of the Environment and Land Court of Kenya at Nyeri, J.) dated and delivered on 19th July, 2024 in E.L.C. Case No. 412 of 2014.) Dissenting Judgment Of Kantai, JA. 1.In a plaint (which was amended) filed at the High Court of Kenya at Nyeri (later transferred to the Environment and Land Court at Nyeri) the respondent Patrick Mwangi Mundia claimed in the main that he was the registered owner of the parcel of land known as L.R. Nyeri/Lusoi/35 (hereafter the suit land); that without his consent the defendant (Wanyeki James Mwangi) who died during the proceedings and was replaced by his widow, Julie Wanjiku Wanyeki – the appellant herein) had been committing acts on or about the suit land which were inconsistent with his absolute ownership of the land – permitting or causing entry of the suit land by strangers, harvesting naturally growing grass; interfering with the respondent’s agents discharge of their authorized acts; that on or about 22nd June, 2012 the said defendant had erected signs at the suit land indicating “The Land is not for Sale” thus inhibiting the respondent’s dealing with the suit land. He claimed that he became registered as owner of the suit land as a gift from his mother on or about 9th April, 1998 pursuant to which he entrusted an agent to take care of the land. As particulars of fraud, the respondent stated that he had been deprived of the use and quiet enjoyment of the suit land; that the defendant’s misuse of the suit land’s natural resources had caused waste and thus the defendant’s acts had caused inhibitions to his dealings with the suit land as the absolute registered owner of the same. For all that he prayed that a declaration be made that he was entitled to the exclusive and unimpeded right of possession and occupation of the suit land and an order be made for vacant possession; an injunction be issued restraining the defendant whether by himself or agents from remaining on or continuing in occupation of the suit land, an order directing the Land Registrar, Nyeri to remove the restrictions registered on 6th February, 2012 and 15th May, 2012 against the title of the suit land and costs of the suit be awarded to him. 2.In a witness statement filed with the plaint the respondent explained how in the year 1998 his deceased mother had gifted him the suit land after he had completed college; that she had informed him that she had purchased the suit land which she had reserved for him; that she had showed him the vacant land which was far from their home; and since he was still young it is she who facilitated transfer of the land and gave him the title deed in his name. He further stated that his late mother had by then allowed some people to cultivate the lower part of the suit land and after college he went to Nairobi to do business and he entrusted a neighbour to keep watch over the land with permission to cut grass for hay. Sometime in 2011, he received information that strangers were harvesting grass on the land. Upon further enquiries he was told that the strangers had been sent by a person who claimed to be the owner of the land. When later that year he decided to sell the suit land the same person who ended up being the defendant placed restrictions on the land causing the sale to fall through. That is how the dispute ended up in court. 3.There was a witness statement by one Anthony Muriuki Magothe a son to one John Kagothe Kahumbu – (deceased) who stated that in the year 1995 he accompanied his late father to the Lusoi area in Nyeri looking for land to buy. He went to the home of one Epaphrus Kaara Kabuga who owned a large tract of land. In 1997 that person sold the suit land to his father. In 1996 the respondent’s mother Gathoni Mundia visited the land with her son (the respondent) and purchased the same and that remained the position until 2012 when the respondent informed him that he wanted to sell the land. That is when he received information that the appellant’s husband had laid claim to the land. 4.The claim was resisted by the defendant in a statement of defence and counterclaim where he claimed that he was the owner of the suit land “…though the same is currently in the names of the plaintiff by apparent fraud.” He averred that he had placed a restriction on the suit land to protect his interest until the dispute was settled. In the counterclaim he claimed to be the beneficial owner of the suit land from Settlement Fund Trustees; that the respondent had fraudulently obtained registration of the suit land in his favour and in particulars of fraud he claimed that the respondent had obtained registration of the suit land while the record and Settlement Fund Trustees had his name as the owner; that the respondent had obtained registration of the suit land when there existed an unsettled amount of money between the defendant and Settlement Fund Trustees; that the respondent had effected registration of the suit land at land registry without any authority and clearance from the office of Settlement Fund Trustees. He therefore prayed for cancellation of the title held by the respondent; that he be allowed to clear with Settlement Fund Trustees and the title be issued in his favour. 5.There was a response to defence and defence to counterclaim where the defendant’s allegations were denied. 6.In a witness statement accompanying the defence the defendant stated that he was a retired Under Secretary; that on 14th October,1977 he was allocated a piece of land at Nyeri (Plot No. 35) by Settlement Fund Trustees measuring 150 acres after he had made an application and he was to pay a total sum of Ksh.43,629. He stated that there was a provision in the agreement that he pays half yearly instalments of Ksh.1,702 for 56 months; that he took possession of the land and developed it by building a house on it, a huge water tank and a dam; that he fenced the land on which he started farming by having cows, goats and sheep on the land and that he was still in possession of the land. His daughter Wanjiku and son-in-law Symon were farming on the land by growing hay on it; that he had received a call on 12th January, 2012 and was informed that there was someone who was claiming the land. Upon investigations he found that the land was actually in the market for sale. In his own words:“At this juncture I did not have a title to the land because I had not paid the Settlement Fund Trustees the full amount payable to facilitate processing of the title. Indeed, no title had been issued in respect of the land. I then established that Ksh.323,958.11 was due and payable to the Settlement Fund Trustees. I paid this amount at their Nairobi offices and applied for issuance of the title to me…” 7.He stated further that Settlement Fund Trustees (SFT) acknowledged that the land belonged to him and they accepted his payment and after that SFT issued him a discharge of charge and a transfer but that when he took the said documents to the District Land Adjudication and Settlement offices they declined to register the discharge of charge and transfer for reason that there was a previous registration of the same documents. When he visited the Lands Office Nyeri, he found that the suit land had several encumbrances resulting from sales. When he decided to file suit he found that the respondent had already sued him thus his defence and counterclaim. According to him, the suit land belonged to him and the registration of the same to the respondent was fraudulent and illegal. 8.His daughter Wanjiku filed a witness statement where she restated the facts stated by her father that she occupied the land with her husband and they were carrying out farming activities on the same. This was reiterated by his son-in-law Symon Gichoru Muya who also filed a witness statement. 9.The appellant also filed a witness statement after her husband had died. She restated how the suit land was allocated to her husband in 1977 by SFT; that they had taken possession of the land and developed it and her daughter Wanjiku started occupying the land with permission in 2005 and how her late husband received information in 2012 of the suit land being offered for sale. They reported the matter to the Criminal Investigations Directorate for investigations. She stated the suit land belonged to her family because SFT had accepted payment of the balance. 10.Hearing commenced before Ombwayo, J. and the suit was concluded by Olola, J., who in the judgment delivered on 19th July, 2024 found in favour of the respondent. The Judge dismissed the defendant’s counterclaim and issued a declaration that the respondent is entitled to exclusive and unimpeded right of possession and occupation of the suit property and to vacant possession thereof. The Judge issued an order of injunction restraining the defendant his servants and/or agents from remaining on or continuing in occupation of the suit land and gave costs of the suit and counterclaim to the respondent. 11.Those are the orders that have provoked this appeal by the appellant through the Memorandum of Appeal drawn for her by her lawyers M/s J.K. Kibicho & Company Advocates where 12 grounds of appeal are set out. This may be summarized as follows: that the Judge erred in law and fact by holding that the suit land which was charged to SFT was capable of being transferred without a discharge of charge being first registered; that the Judge erred in law and fact by holding that a Green Card is conclusive proof of ownership even when the entries of the Green Card are not supported by any documentation; that the Judge erred in law by holding that a transfer of land does not need to be supported by documentation; that the Judge erred by disregarding evidence of Criminal Investigations Department, the Assistant Director of Settlement in charge of Nyeri County and the Land Registrar of Nyeri; that the Judge should have held that the suit land belongs to the appellant; that the Judge considered an issue that was not before the court; that the Judge erred in law and fact by upholding the respondent’s fraudulently acquired title on the basis that the suit land had changed hands severally. In other grounds, the Judge is said to have erred by considering irrelevant matters and arriving at a wrong decision; that the Judge had not considered evidence before him to arrive at a decision in favor of the appellant; that the Judge erred in law and fact by dismissing the appellant’s counterclaim against the weight of the evidence showing that the suit land was allocated to the appellant who was thereafter issued with a discharge of charge; that the Judge had erred in law and fact by finding that the respondent had proved his case on a balance of probabilities despite cogent evidence pointing to the contrary. In the penultimate ground the Judge is said to have erred in law and fact by arriving at a decision not supportable in law or in evidence on record and in the last ground it is said that the decision of the Judge is based on faulty application of the facts and the law. 12.It is proposed that the appeal be allowed and the judgment appealed from be set aside and be substituted with an order allowing the appellant’s counterclaim. 13.I have summarized the case and the witness statements which were adopted at the High Court because it is our duty as the first appellate court to re-consider the evidence and analyze it ourselves and reach our own conclusions on facts and the law – see Nairobi Bottlers Limited vs. Imbuga (Civil Appeal E661 of 2022) [2024] KECA 434 (KLR) where this Court held:“Our mandate in a first appeal as donated by rule 31 of the Court of Appeal Rules, 2022 is to re- appraise the evidence and to draw inferences of fact; to retry the case. That mandate has been the subject of various judicial pronouncements in such cases as Nicholas Njeru vs. Attorney General & Others [2013] eKLR where it was stated: ‘[In] a first appeal, we are required to re-evaluate the evidence and arrive at our own independent findings and conclusions of the matter.” 14.When the appeal came up for hearing before us on 28th April, 2025 the appellant was represented by learned counsel Mr. Mwangi who appeared with Mr. Shikuku. There was no attendance by the respondent and we allowed the appeal to be urged being satisfied that the respondent had been served with a hearing notice through his lawyers on 24th March, 2025. 15.Learned counsel for the appellants submitted that the Judge had erred in holding that charged land could be transferred without a discharge of charge. According to counsel it was incumbent upon the court to establish when the charge to SFT was discharged as transfer could not be effected without the land being discharged. Counsel submitted that a Green Card was not conclusive evidence of ownership of land. According to counsel the Land Registrar who was called as a witness had produced evidence in respect of a different parcel of land. 16.I have considered the record of appeal and submissions made and the law. 17.At the hearing before the Environment and Land Court both the appellant and respondent adopted the witness statements which I have already summarized in this judgment. The appellant called other witnesses in the case including Constable Kennedy Lubembe, an officer with Criminal Investigations Department. The officer had received a complaint from the appellant’s husband and had investigated the case. His findings were that the suit land was allocated to the defendant by SFT. He had received a copy of green card from the District Land Registrar, Nyeri which showed that there was an entry by the defendant placing a restriction on the suit land. The green card further showed that the suit land was registered on 9th April, 1998 to the respondent. When he visited the offices of District Land Adjudication and Settlement, Nyeri, he confirmed that the suit land had been allotted to the appellant’s husband James Mwangi Wanyeki. He also obtained a copy of the discharge of charge in favour of the said person. When he revisited the Land Registrar’s office, he was given a copy of the green card for the suit land which showed that the owner of the land was Epaphrus Kaara Kabuga. According to him, obtaining title to land is a process and the documents showed to him by James Mwangi Wanyeki were supported by evidence to show that he was the rightful owner of the land. 18.David Maina Githaiga who testified for the appellant on behalf of Director of Settlement testified that the suit land was allocated to James Mwangi Wanyeki on 14th October, 1977. There was a discharge of charge issued to that person on 29th October, 2012. 19.The last witness called by the appellant was Nathan Gioche Gathaiya, the Land Registrar in charge Nyeri County. He had records of the suit land and an adjacent parcel Land of LR. No. Nyeri/Lusoi/36. In respect of the suit land he produced a certified copy of green card which showed 14 entries. The green card was opened on 2nd October, 1979 in the name of SFT. It measured 60 hectares. Entry No. 2 was made on 24th November, 1987 in the name of Epaphrus Kaara Kabuga. Entry No. 3 of 11th March, 1988 showed a transfer from Mr. Kabuga to Solomon Mwai Githegi for Ksh.40,000. Entry No. 4 was the Land Certificate issued to Solomon. Entry No. 5 made on 17th November 1993 was a transfer from Solomon to John Wambugu Gicha. Entry No. 6 showed the title was issued to the said person for a consideration of Kshs.1.2 million. Entry No. 7 was a transfer made on 27th May, 1996 in favour of Felly Gathoni Mundia. Entry No. 8 showed that the said Gathoni was issued with a title the same day and consideration was indicated as “sale”. Entry No. 9 made on 9th April, 1998 was a transfer in favour of Patrick Mwangi Mundia (the plaintiff). It showed that the title was issued the same day under Entry No. 10. He testified that there had been several disputes pertaining to the suit land; his office had received restrictions on 6th February, 2012 for no dealings on the land unless a loan in favour of SFT was paid. That restriction was registered on the same date. Entry No. 12 was a restriction registered on 15th May, 2012 that there should be no dealings on the suit land pending conclusion of investigations by the Criminal Investigations Department. Entry No. 13 made on 19th August, 2016 lifted restriction No. 11 through a letter by National Land Commission. Entry No. 14 was removal of restriction No. 12 which was lifted through a court order. He further testified that one of the disputes regarding the suit land was through a letter dated 3rd December, 2012 from District Land Adjudication and Settlement Officer addressed to his office informing him that the suit land had never been discharged to Mr. Mwangi James Wanyeki because the loan had not been repaid and the title should revert to SFT. According to him, his office did not deal with allocation of SFT land “…I do not know how they do it.” 20.The Judge (Olola, J.) found that the respondent had produced a copy of green card in respect of the suit land, a Certificate of Official Search issued on 14th November, 2011 as well as a copy of the title deed which was in his name. The appellant on the other hand produced a copy of the allotment letter dated 14th October, 1977 in her husband’s name together with a charge issued by SFT dated 1st February, 1978. She also produced a copy of a receipt issued to her husband by SFT indicating that on 13th December, 2012 he had paid Ksh.345,334 to SFT. She also produced discharge of charge dated 29th October, 2012 issued to her late husband. 21.The appellant had testified before the Judge that the discharge of charge could not be registered as the suit property had since been transferred to other parties. 22.The Judge observed at paragraph 32 – 36 (inclusive) of the judgment:“32.I have taken a keen look on the testimonies of the witnesses as well as the exhibits placed before the court. It was interesting to note that while the documents produced by the defendant purport to indicate that the suit property was allocated to the late James Mwangi Wanyeki on 14th October, 1977 and that the same was charged to him on 1st February, 1978 by the Settlement Fund Trustees, there was nothing on record to indicate that the fund had owned the suit property at the time.33.In his list of documents dated 5th February, 2015 as filed in court on 6th February, 2015 the defendant has listed as number 3, a copy of the Green Card for the suit property. That Green Card is similar in content to the one produced by the plaintiff as Pexh. 1 as well as the one produced by the Land Registrar Nyeri (DW 4). The said Green Card indicates that the suit property was registered in the name of Settlement Fund Trustees on 22nd October, 1979 and not before. It was therefore, not clear how the Settlement Fund Trustees (SFT) could have charged the property in the name of the defendant’s husband in 1978.33.Perhaps more significantly, that Green Card does not have the name of the original defendant herein. All the records produced by the parties as well as the Land Registrar appear to suggest that the suit property was transferred from the Settlement Fund Trustees on 24th November, 1987 to one Epaphrus Kaara Kabuga. On 11th March, 1988 that property was transferred to one, Solomon Mwai Gathegi, who subsequently transferred it one, John Wambugu Gicha, on 17th November, 1993. That Green Card further indicates that on 27th May, 1996 the property was transferred to the plaintiff’s mother, Felly Gathoni Mundia, who subsequently transferred it to the plaintiff on 9th April, 1998.34.While the defendant contended that the transfer into the plaintiff’s name was fraudulent, I was unable to find any evidence of such fraud on the part of the plaintiff. While indeed it was not clear how the property had ended up in the hands of the said Epaphrus Kaara Kabuga in 1987, it was evident from the records held at the Lands Office and from the testimony of PW 2 that the said Kabuga was the initial owner of the land before it passed down to the others.35.It was further evident to me that while indeed the late James Mwangi Wanyeki may have initially tried to secure allotment of the suit property, he had certainly failed to fulfil the requirements of the allotment. A copy of the charge dated 1st February, 1978 clearly indicates that he was required to pay to the Settlement Fund Trustees the sum of Kshs.43,629 in 56 consecutive half-yearly installments of Kshs.1,702 effective 30th September, 1980. That would mean that the defendant had some 4½ years to make the payment.” 23.The Judge found that there was nothing that was placed before the court to demonstrate that payment had been made to SFT as required or that the defendant had taken possession of the suit property. The Judge found that it was only after the defendant had learnt of the respondent’s intention to sell the suit land that he had gone to SFT and enquired on the full amount payable. Title had since been processed, issued and changed hands several times. The situation before the Judge was that the respondent held a title to the suit land while the appellant’s claim was based on an allotment letter that had been given to her husband by SFT. 24.This Court had had occasion to deal with situations where one party holds a title while the other holds an allotment letter. In Wreck Motor Enterprises vs. Commissioner of Lands & 3 Others [1997] eKLR, this is what this Court said in relation to the ownership of landed property:Title to landed property normally comes into existence after issuance of a letter of allotment,meeting the conditions stated in such a letter and actual issuance thereafter of title document pursuant to provisions held. See Dr. Joseph N.K. Arap Ng'ok v Justice Moijo ole Keiwua & 4 Others, Civil Application No. NAI.60 of 1997 (unreported). Sections 23(1) of the Registration of Titles Act reads as follows:-"Section 23 (1) 25.The certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misinterpretation to which he is proved to be a party."Section 26 of the Land Registration Act 2012 is to the following effect:(1)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; orb.where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.(2)A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.” 26.The Supreme Court of Kenya in considering a similar situation had this to say in Dina Management Limited vs. County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021 [2-23] KESC 30 (KLR) (Constitutional and Human Rights) 21 April 2023: 27.To establish whether the appellant is a bona fide purchaser for value therefore, we must first go to the root of the title, right from the first allotment, as this is the bone of contention in this matter.… The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser.” 28.That Court quoted with approval this Court’s decision in Munyu Maina vs. Hiram Gathiha Maina Civil Appeal No. 239 of 2009 [2013] eKLR 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 an instrument that is in challenge and therefore, the registered proprietor must go beyond the instrument and prove 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.” 29.The situation before the trial Judge was a contest between a title holder and the appellant who held an allotment letter. Conditions in that allotment had not been met on time at all. But in the process the land was allotted, title issued and title had changed hands several times. The appellant’s claim had no basis in law and the Judge reached the correct finding in dismissing the counterclaim. 30.Having reached that conclusion, I do not need to examine each ground of appeal which are addressed in the finding that I have reached. I find no merit in this appeal which I dismiss with costs to the respondent. 31.As the majority are of a contrary opinion the final orders are as proposed by Lesiit, JA. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.S. ole KANTAI………………………….…..JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR