Kabirochi (Suing as the legal representative/administrator of the Estate of the Late Kabirochi Kathagana) v Mwangi & 4 others (Environment and Land Case 9 of 2018) [2026] KEELC 4098 (KLR) (30 June 2026) (Judgment)

Kabirochi (Suing as the legal representative/administrator of the Estate of the Late Kabirochi Kathagana) v Mwangi & 4 others (Environment and Land Case 9 of 2018) [2026] KEELC 4098 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELC 4098 (KLR) Republic of Kenya In the Environment and Land Court at Embu Environment and Land Case 9 of 2018 A Kaniaru, J June 30, 2026 Between Zipporah Rwamba Kabirochi (Suing as the legal representative/administrator of the Estate of The Late Kabirochi Kathagana) Plaintiff and John Waweru Mwangi 1st Defendant Julia Muthoni Nganga Murega 2nd Defendant Elizabeth Njeri Mwangi 3rd Defendant Peter John Mwangi 4th Defendant John Waweru Karungari 5th Defendant Judgment 1.The disputants in this case – Zipporah Rwamba Kabirochi (suing as the legal representative/administrator of the estate of the late Kabirochi Kathagana) and John Waweru Mwangi, Julia Muthoni Nganga Murega, Elizabeth Njeri Mwangi, Peter John Mwangi and John Waweru Karungari - are disputing over ownership of land parcel No. Nthawa/Riandu/905, which is now said to be subdivided into land parcels No’s Nthawa/Riandu/6309, and Nthawa/Riandu/6311. Zipporah Rwamba, as plaintiff, impleaded the others who are shown as 1st, 2nd, 3rd, 4th and 5th defendants, vide a plaint dated 28/2/2018. She alleged that there was fraudulent change of ownership, which was detrimental to the estate of her late husband and objectionably beneficial to the defendants. 2.She averred that her late husband Kabirochi Kathagana was the first registered owner of land parcel No Nthawa/Riandu/905 having been registered as such on 11.01.1978 and a title deed issued to him on 09.03.1978. That her late husband charged the title to land parcel No. 905 with Barclays Bank of Kenya on 19.02.1979 as security for a loan which he obtained from the said bank. She averred that sometime in the year 1979, the husband borrowed Kshs. 100,000/- from the late Peter John Mwangi to clear the loan with the bank and gave him the title to land parcel 905 after it was discharged by the bank to hold it as security for the said Ksh. 100,000/-. The agreement was that the late Peter would release the said title to her husband once he had paid the Kshs. 100,000/-. 3.She averred that the late Peter John Mwangi secretly caused land parcel No. 905 to be registered in his name on 21.12.1979 allegedly after purchasing it for Kshs.130,000/- and he was issued with a title deed on 27.12.1979. She contended that the actions were unlawful, illegal, unprocedural and void ab initio as her late husband did not transfer the said land parcel to him. She set out the particulars of fraud against the late Peter John Mwangi. It is on those grounds that she seeks;a.A declaration that the registration of land parcel No. Nthawa/Riandu/905 in the names of Peter John Mwangi on the 21.12.1979 was fraudulent, improper, unlawful, null and void ab initio.b.A declaration that the subdivision of land parcel No Nthawa/Riandu/905 into land parcels No. Nthawa/Riandu/6309, 6310 and 6311 and subsequent registration into the names of the 2nd to 5th Defendant's was unlawful, illegal and void ab initio.c.That the land registrar Mbeere be ordered to cancel the registration of land parcels No. Nthawa/Riandu/6309, 6310 and 6311 and the same revert to the initial land parcel No. Nthawa/Riandu/905 in the names of Kabiruchi Kathagana.d.Costs of the suit and any other relief that the Court deems fit to grant. 4.The Defendants filed a joint amended statement of defence dated 08.11.2018. They averred that the late Peter John Mwangi purchased the suit land from the Plaintiff’s late husband for a consideration of Kshs. 130,000/- and that due process was followed in the purchase. They averred that after the death of Peter Mwangi, they commenced succession proceedings and obtained grant of letters of administration to his estate without the Plaintiff’s objection and the suit land was subdivided to his dependants. They averred that neither the Plaintiff’s husband who died in early 2000’s, nor the Plaintiff brought up any proceedings against the late Peter Mwangi for wrongful acquisition of the suit property. They urged that the suit be dismissed with costs. 5.The Plaintiff filed a reply to the joint amended defence and reiterated the contents of her plaint. 6.The suit proceeded for hearing on 22.09.2021 where the Plaintiff testified as PW1. She adopted her witness statement dated 28.02.2018 as her evidence in chief. She produced in evidence: the green card for land parcel 905, grant of letters of administration and there copies of official searches for land parcels 6309-6311 as Plaintiff’s Exhibits 1, 2, 3 (a, b, c) respectively. She testified that her late husband gave the title to land parcel 905 to the late Peter so that he could settle a loan of Kshs. 100,000/- that they had taken with the bank on their behalf. She stated that the late Peter was to give the title back to her late husband once they had finished paying him off. 7.She stated that they gave the late Peter the title once they collected it from the bank since they had used it as security for the loan, and that they signed an agreement to that effect, but her documents were burnt by her late son who was mentally unstable. She testified that her husband did not transfer the land to the late Peter and that once she learnt that he had transferred it to himself, she placed a restriction on the land that she later removed. 8.On cross examination, she stated that the late Peter gave them the Kshs. 100,000 and they paid it to the bank. That the agreement was that the late Peter was to keep the title until they refunded him the Kshs. 100,000/-. She stated that she was not aware that on the same day they paid the bank Kshs. 100,000/- was the same day the land was transferred to the late Peter. She further stated that her husband died in the year 2001 and that before he died, he would say that the land was his and that the late Peter should have given it back. She stated that they only cultivate the land but live elsewhere. 9.The Land Registrar Mbeere North, Isaac Njiru testified as PW2. He testified that land parcel 905 was first registered in the name of Kabiruchi Kathagana on 11.01.1978 on a first registration. He charged the land to Barclays Bank of Kenya for Kshs. 40,000 and the charge was discharged on 21.12.1979. He stated that a further charge was registered on 07.01.1980 in favour of KCB Bank to secure a sum of Kshs. 80,000 advanced to Peter Mwangi, and that the said charge was subsequently discharged on 14.10.1987. He further stated that Peter Mwangi had been registered as the proprietor on 21.12.1979, and that on the same date the first charge was discharged, the transfer of the suit land was effected, and a title deed was issued to him.’ 10.He stated further, that the registration stayed on record until 01.12.2002 when the administrators of the estate of the late Peter Mwangi became registered owners vide High Court Succession Cause No. 2916 of 2002 and on 01.12.2006 the land was registered in names of the beneficiaries. He stated that a restriction was later placed on the resultant subdivisions of land parcel 905. 11.On cross-examination, he stated that it is possible to register multiple transactions in one day and that the consideration that was paid for the suit land was Kshs. 130,000/=. He stated that he could not get the records that facilitated the transfer of the suit land to the late James Mwangi because it was a long time ago, about 43 years ago, and at that time, Siakago registry was not there. He stated that he did not note any anomaly in the records he had with him and that nothing showed that the original owner brought any complaint related to the land to the Lands office. 12.On re-examination, he stated that if a property is charged, the Land Control Board can only proceed with the consent of the chargee or chargor. He stated that a charge can transfer property where a charge still exists which happens when there is default in payment. 13.The 2nd Defendant Juliah Muthoni Nganga Murega testified as DW1. She adopted her written statement as her evidence in chief. She produced in evidence a copy of the green card for land parcel 905, a copy of the certificate of confirmation of grant for the estate of the late Peter John Mwangi, a mutation form, a certified copy of a sketch plan, a copy of an official search dated 03.11.2015, a copy of a receipt in dated 03.11.2015, a copy of the green card for land parcels 6309, 6310 and 6311, copies of the titles to land parcels 6309-6311 and a bundle of photographs as Defendant’s Exhibits 1 to 14 respectively. 14.She testified that she knew the Plaintiff well as she met her in the year 2006 and that they visited her with her siblings. She stated that she was the contact person regarding the suit property and that the photos she produced were taken in January 2018, which show that they had access to the suit land. She averred that there are no structures on the suit land or anyone occupying it. On cross examination, she stated that she had no evidence that the suit land was purchased for Kshs. 130,000/- and that they got the information from the green card of the suit land. She further stated that she did not witness the parties’ transactions nor did she know about the title being used as security for the said Kshs. 100,000/-. 15.The 1st Defendant, John Waweru Mwangi testified as DW2. He adopted his written statement as his evidence in chief. He testified that it was not true that he was given the title to the suit land to give to the Plaintiff. He stated that the land was only being utilized for farming. 16.The parties agreed to file written submissions. The record shows that only the Plaintiff filed their submissions which are dated 13.06.2024. It was submitted that the Defendants never produced any document to show how their father was registered as the proprietor of the suit land. That the green card indicates that he bought it for Kshs. 130,000/- but there was no evidence of how he bought it from the Plaintiff’s late husband. She averred that it was her evidence that her husband never sold the land and therefore the burden was on the Defendants to prove that he sold it to their father in accordance with section 107 of the evidence Act. 17.She urged the Court to consider that there was fraud, particularly as no explanation had been provided as to how the land was discharged and transferred on the same date as the consent of the Land Control Board could not have been obtained on the same day. She submitted that section 26(i) of the Land Registration Act states that a title may be defeated where it was obtained by fraud or misrepresentation as is the case herein. She urged that the suit be allowed. She proffered the case of Nelius Muthoni Thegetha v Julius Ndungu Mwangi & Anor (2020) Eklr in support of her submissions. 18.I have considered the pleadings as filed, the evidence tendered during hearing, and the written rival submissions. I find that the issue for determination is whether the Plaintiff has proved, on a balance of probabilities, that the registration of land parcel No. Nthawa/Riandu/905 in the name of the late Peter John Mwangi, and its subsequent subdivision and transfer to the Defendants, was obtained through fraud, illegality, or unprocedural means so as to warrant cancellation of the resultant titles and reversion of the land to the estate of Kabiruchi Kathagana. 19.It is well established that fraud is a serious allegation, and the party making the claim must not only plead and particularize it but must also prove it to a higher standard than the usual standard of proof on a balance of probabilities in civil cases. This standard is still lower than the criminal law threshold of beyond reasonable doubt. See the cases of Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR and Kinyanjui Kamau vs George Kamau [2015] eKLR. 20.In this case, the Plaintiff’s case is that her late husband, Kabiruchi Kathagana, never sold or transferred land parcel No. Nthawa/Riandu/905 to the late Peter John Mwangi, and that the registration of the said parcel in his name on 21.12.1979 was therefore fraudulent, unlawful and unprocedural. She further challenges the subsequent subdivision and transfer of the land to the Defendants as being tainted by the same illegality. On their part, the Defendants maintain that the late Peter John Mwangi lawfully purchased the suit land from the Plaintiff’s late husband for valuable consideration of Kshs. 130,000/-, and that the transfer was duly effected in accordance with the law. 21.From the evidence on record, and in particular the green card for the suit land, it is not in dispute that Kabiruchi Kathagana was the first registered proprietor of the suit land. The green card further shows that the property was transferred to the late Peter John Mwangi on 21.12.1979 for a consideration of Kshs. 130,000/- and a title deed issued to him on the same day. It is also evident that on the same date, the charge in favour of Barclays Bank Ltd over the suit property was discharged on behalf of the Plaintiff’s husband, and the suit land was simultaneously transferred to the late John Mwangi. The Plaintiff has heavily relied on this coincidence to allege fraud. She maintained that the land was not sold, but rather handed over to the late John Mwangi as security for a sum of Kshs. 100,000 advanced by him to assist in settling the outstanding bank loan, with the understanding that the title would be returned upon repayment of the said amount. 22.The Court is of the view that the burden of proof lay with the Plaintiff under section 107 of the Evidence Act to demonstrate, with cogent evidence, that the transfer was fraudulent or unlawful. Apart from her oral testimony, the Plaintiff did not produce any documentary evidence of the alleged agreement or of the arrangement under which the title was said to have been held as security for repayment of Kshs. 100,000/-. Her explanation that the documents were destroyed in a fire while noted, leaves her case largely uncorroborated. 23.On the other hand, the testimony of the Land Registrar (PW2) confirms that the official land records show a complete chain of transactions leading to the registration of Peter John Mwangi as proprietor. The register does not reflect any anomaly, or irregularity at the time of registration. It further shows that the property was subsequently transmitted through succession proceedings to the Defendants, which culminated in subdivision of the suit land and issuance of title to the beneficiaries of the late Peter Mwangi. 24.Under section 26(1) of the Land Registration Act, a certificate of title is prima facie evidence of ownership and can only be challenged on the grounds of fraud or misrepresentation to which the person is proved to be a party; or where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. In this case, no evidence was adduced to demonstrate that the late Peter John Mwangi or the Defendants participated in any fraudulent conduct. The Court also takes note that no challenge was raised by the Plaintiff or her late husband during his lifetime against the registration of the late Peter John Mwangi, despite the alleged dispute dating back to 1979. This further weakens the Plaintiff’s claim. 25.It also seems clear to me that the plaintiff got to know of the alleged fraud sometimes in February year 2010 (see paragraphs 17 of the plaint). That is when she decided to lodge a restriction on the land register. This case was filed in the year 2018, some eight (8) or so years later. In the case of Javed Iqbal Abdul Bahman -vs- Another -vs- Benard Alfred Wekesa Sambu & Another: CA No. 11 of 2001 (Kwach, Bosire, and Owuor JJA’s, as they then were) it was held, inter alia, that in a claim on the basis that registration was done by way of fraud, the time starts running when the said registration is discovered and the limitation period is three (3) years. 26.In the matter under consideration, the plaintiff was therefore wrong to wait for more than three (3) years before filing her claim which is based on fraud. The claim in my view is caught up by the Limitation of Actions Act (Cap 22), which, at Section 4 (2), states that actions based on torts have a limitation period of three (3) years. Fraud is a category of torts. 27.In the circumstances, I find that the threshold required to prove fraud has not been met. 28.Accordingly, I find that the Plaintiff has failed to prove her case on a balance of probabilities. The suit is therefore dismissed with costs to the Defendants. JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KITUI THIS 30TH DAY OF JUNE, 2026 PURSUANT TO NOTICE DATED 17/6/2026.A. KANIARUJUDGE - ENVIRONMENT & LAND COURT, KITUIIn the presence of;Court Assistant – MusyokiPlaintiff – AbsentDefendant - AbsentM/s Kamotu for M/s Muthoni Ndeke for PlaintiffMola for the Defendants