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ELCPartially AllowedNot stated in the judgment text provided (ELC suit, Nakuru)· [2025] KEELC 4062 (KLR)

Togom v Sigei (On Behalf of the Estate of the Late David K. Soi) (Environment & Land Case 109 of 2019) [2025] KEELC 4062 (KLR)

Environment and Land Court
27 May 2025
5,568 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Nakuru court cancelled a land owner's rival title and confirmed that only a title tracing an unbroken chain back to government allocation will stand in Kenya.

What this practically means

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Executive summary

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The Plaintiff sued for a permanent injunction, temporary injunction, mesne profits, cancellation of the Defendant's title, costs and interest over land parcel LR No Nakuru/Tinet Sotik Settlement Scheme/925. The Defendant counterclaimed for a declaration that he was the lawful owner, cancellation of the Plaintiff's title, a permanent injunction and costs. The Plaintiff testified through her husband and herself that she purchased the plot from Erastus C. Maina for Kshs 500,000 and was registered in 2006; the Land Registrar (PW3) produced the green card confirming her registration and exposed anomalies in the Defendant's title, which was printed in February 2012 yet purported to have been registered in 2006, and whose name never appeared in the registry. The Defendant claimed allocation in 1997 through the Area Chief and an allocation card, but admitted he held no title and that the Ogiek Welfare Council had informed him of other plots (822, 823 and 121). Applying Hubert L. Martin v Margaret J. Kamar on competing titles and the strict proof of fraud standard, the court held the Plaintiff had traced the root of her title while the Defendant's claim was doubtful. The Plaintiff's suit was allowed and the counterclaim dismissed, but mesne profits were refused as unproved special damage. The court issued a permanent injunction in favour of the Plaintiff, cancelled the Defendant's title, and awarded the Plaintiff the costs of both the suit and the counterclaim. Judgment delivered at Nakuru on 27th May 2025 by M. A. Odeny, Judge.

Key legal issues

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01

Who is the rightful owner of the suit parcel

Holding

The Plaintiff, whose title conforms to the green card and traces its root from government allocation to Erastus C. Maina and then by transfer to her

Reasoning

The Land Registrar produced the certified green card showing the Plaintiff as registered proprietor after Erastus C. Maina. Her title matched the register. The Provincial Appeals Tribunal and the Provincial Administration had also confirmed her ownership. The Defendant's asserted allocation was unsupported, and he was never allocated plot 925 per the Ogiek Welfare Council letter. His title was printed in 2012 yet claimed registration in 2006, an anomaly.

p. 8
02

Whether fraud was proved against either party's title

Holding

The Defendant failed to prove fraud in the Plaintiff's title; the Defendant's own title was doubtful

Reasoning

Fraud must be strictly proved. The Defendant alleged the Plaintiff's husband, a committee member, fraudulently channelled land through Erastus Maina, but adduced no evidence. The Land Registrar found no evidence of fraud in the Plaintiff's title, whereas the Defendant's title showed anomalies (printed 2012 but allegedly registered 2006) and his name never appeared in the registry.

p. 8
03

Whether mesne profits were payable

Holding

Refused for want of proof

Reasoning

Mesne profits are special damages and must be specifically proved by evidence. The Plaintiff led no evidence quantifying or establishing the loss, so the claim failed notwithstanding the success of the main claim.

p. 10

Legal principles established

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  • Where two or more titles are claimed over the same land, the court must investigate the root of title and uphold the title that conformed to procedure and traces its root without a break
  • Allegations of fraud must be pleaded and strictly proved to a standard higher than a balance of probabilities

Court orders

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  1. 1.An order of permanent injunction restraining the Defendant and/or his servants or agents from invading, cultivating, developing, selling, charging, alienating or interfering howsoever with the Plaintiff's quiet possession of land parcel no LR No Nakuru/Tinet Sotik Settlement Scheme/925
  2. 2.An order cancelling the title held by David K. Soi over all that piece of land known as L.R No Nakuru/Tinet Sotik Settlement Scheme/925
  3. 3.The Defendant's counterclaim is dismissed with costs
  4. 4.Costs of the suit are awarded to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSections 24, 26, 80(1)
  • Land ActSection 26
  • Forest Act (Cap 385 Laws of Kenya)Sections 50(2)(c), 52(1)
  • Civil Procedure ActSection 27
  • Constitution of KenyaArticles 2(6), 40
  • International Covenant on Economic Social and Cultural Rights (ICESCR)General Comments 7 and 14 on the right to adequate housing

Cases cited (14)

  • Re; Clement Kipchirchir & 54 others vs Principal Secretary Ministry of lands and Housing, National Lands Commission, Kenya Forest Services and the Attorney General
    ELC Petition No 42 of 2013
  • Re Manase Guyo & 260 others vs Kenya Forest and The Registered Trustees Kipini Wildlife and Botanical Conservancy Trust, The Shimoni Resort vs Registrar of Titles and 5 others
    (2016) eKLR; Mombasa High Court Constitutional Petition No 22 of 2014
  • Samwel D. Omwenga Angwenyi vs National Land Commission & 2 others
    (2019) eKLR
  • Alice Chemutai Too vs Nickson Kipkurui Korir & 2 others
    [2015] eKLR
  • Republic vs Minister for Transport & Communication & 5 others Ex Parte Waa Ship Garbage Collector & 15 others
    Mombasa HCMCA No 617 of 2003 [2006]
  • Dina Management Limited vs County Government of Mombasa & 5 others
    [2023] KESC 30 (KLR)
  • Hubert L. Martin & 2 others vs Margaret J. Kamar & 5 others
    [2016] eKLR
  • Munyu Maina vs Hiram Gathiha Maina
    Civil Appeal No 239 of 2009
  • Leonard Otieno vs Airtel Kenya Limited
    [2018] eKLR
  • Morgan Air Cargo Limited vs Everest Enterprises Limited
    [2014] eKLR
  • Hebert L Martin & 2 Others v Margaret J Kamar & 5 Others
    {2016}
  • Kinyanjui Kamau v George Kamau Njoroge
    [2015] eKLR
  • Ndolo v Ndolo
    [2008] 1 KLR (G&F) 742
  • M'ikiara M'rinkanya & Another v Gilbert Kabeere M'binjiwe
    {1982-1988} I KAR 196
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act); no specific constitutional article invoked for jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Togom v Sigei (On Behalf of the Estate of the Late David K. Soi) (Environment & Land Case 109 of 2019) [2025] KEELC 4062 (KLR)", Case Analysis (2025). Not stated in the judgment text provided (ELC suit, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4062/eng@2025-05-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.