Kenya Church of Christ v Mwasaro & 5 others (Environment & Land Case 147 of 2014) [2025] KEELC 1317 (KLR)

Section 24 of the Land Registration Act vests absolute ownership in a registered proprietor, and section 23(1) of the repealed Registration Titles Act rendered the certificate of title conclusive and indefeasible save for fraud to which the proprietor is a party. The DCI investigation recommending forgery charges was never actualised over ten years, and the investigating officer's report was unsigned, undated and lacked statements. DW2 admitted having no evidence that Mwandoto forged the title. Fraud was not distinctly proved as required by Vijay Morjaria.

The burden of proving fraud lay on the defendants under section 109 of the Evidence Act. Following Vijay Morjaria, fraud must be specifically pleaded and distinctly proved and cannot be inferred from facts. Evidence of mango trees, pre-existing structures and failed settlement negotiations does not amount to proof of fraud. The police recommendation to charge Mwandoto and the Land Registrar was never acted upon, and the explanation that Mwandoto could not be traced was a lame excuse since he testified in court.

The defendants claimed through Keya Mbaya or Mrs. Adriano, neither of whom held title, and DW2 admitted the plaintiff held title and that he arrived only in 2006, after the title issued in 2002. Keya Mbaya never testified nor challenged the Commissioner of Lands' allotment to Chrispus Nzano. A presumption of regularity attaches to the issuance of a letter of allotment. The survey report suggested some defendants' structures may lie outside the suit property due to possible boundary misalignment, an issue for the Land Registrar; access is an overriding interest under section 28 of the Land Registration Act.