Rebecca Wanjiruwarui v Wachira Gichegu [2021] KEELC 1552 (KLR)

The green cards showed the suit land derived from parcel 573, itself derived from parcel 147 originally registered to the Kirinyaga County Council. The circumstances of transfer to the defendant were not indicated; the defendant alleged purchase but produced no documents. The plaintiff's claim of clan allocation rested on hearsay evidence from PW2, as the clan elders who allegedly made the allocation were not called as witnesses. The plaintiff therefore failed to prove the land was family or clan land before registration, that her deceased husband was entitled to be registered, or that the defendant held it in trust.

PW2, the area in-charge of the nyumbakumi, testified that it was the clan elders who informed him the suit land was clan land. Although the plaintiff produced a letter dated 28th August 2013 from the elders, none of those elders were called to testify. The court found the evidence suspicious and held it to be hearsay and inadmissible, undermining the plaintiff's claim that the land was allocated to the defendant by the clan.

The court acknowledged that the plaintiff's case was primarily based on her long possession and occupation of the suit land since 1999. However, absent evidence that the land was clan land held in trust for her deceased husband, Section 26 of the Land Registration Act, 2012 protects the defendant as absolute and indefeasible proprietor, subject only to challenge on grounds of fraud, misrepresentation, or illegal/unprocedural acquisition.