Nicholas Munyiri Muinami & another v John Kamau Wandutu & 4 others [2019] KEELC 3147 (KLR)

The letter from the Chief Land Registrar confirmed Muinami Mianya as first proprietor, but both families claimed that name. The Court found it more probable that the Plaintiffs' father and his brothers had sold the land to Wandutu Mianya, since Muinami Mianya lived in the Rift Valley, never asserted ownership, sought only shelter on the land during the Emergency, and never claimed it during his lifetime. No independent witness from the Lands Office testified.

Fraud must be strictly proved to a standard higher than a balance of probabilities, and the burden lay on the Plaintiffs under Sections 107 and 109 of the Evidence Act. No evidence from the Lands Office was adduced. Since Wandutu Mianya was likely the true owner by purchase, there was nothing wrong in registering the land in his name. The subdivisions were approved and new titles issued, vesting the Defendants with indefeasible titles under Sections 24, 25 and 26(1) of the Land Registration Act.

The Court held in the alternative that even if Muinami Mianya owned the land, he went back to the Rift Valley in 1959 and never claimed it until his death in 1987, while Wandutu Mianya remained in open, continuous and actual possession. Time ran from the 1958 registration. However, since title No.486 was closed on subdivision in 1986, the Court could not declare the Plaintiffs' interest extinguished by adverse possession over it.

The Green Card produced by the Plaintiffs showed a caution lodged by Wandutu on 19th March 1971. There was no evidence from the Land Registrar or Lands Office explaining why the caution was placed, and the Court could not determine its purpose beyond recording its existence.