Mulinge & another (Suing as the Administrator of the Estate of Sadique Makewa - Deceased) v Nthiwa & 3 others; Muthama (Intended Interested Party) (Environment and Land Case 256 of 2017) [2025] KEELC 6928 (KLR)
The bottom line
#A Makueni court cancelled two land titles it found illegally issued, confirming that a title deed alone does not prove lawful ownership.
What this practically means
#Executive summary
#Key legal issues
#Trespass to land
Plaintiffs proved title but defendants 1 and 2 are not trespassers because the titles to parcels 350 and 3144 were illegally issued; no evidence of trespass on parcels 216 and 3140; the 4th Defendant, though her claim failed, is a trespasser on parcel 293
To establish trespass, the plaintiff must prove right to immediate and exclusive possession. Title carries legal possession, but here the titles to 350 and 3144 were found to have been illegally issued to the deceased, so the 1st and 2nd Defendants cannot be trespassers. PW2's allocation was itself marred by illegalities. No evidence of trespass on 216 and 3140.
Illegality/fraud in issuance of title
Titles to parcels 350 and 3144 were illegally issued; PW2's alleged repossession and reallocation was undocumented and procedural requirements were not followed; letter of offer postdated the title for 3144
The District Officer's letter confirmed allocation to Peter Mutua Ndala and Peter Masoa. No evidence showed notice, cancellation of first allocation or repossession proceedings. PW2's evidence on dates was contradictory and untruthful. The letter of offer for 3144 (2002) postdated the title (1999), which is illogical.
Adverse possession
The 1st Defendant failed to prove 12 years' continuous adverse possession; disputes and proceedings interrupted possession, and time runs only from registration in 1999
Possession must be peaceful, open and continuous for 12 years. The record shows the property was subject of disputes from the early 1990s to 2014, interrupting any possession. Further, adverse possession runs only against registered title, computed from 29th January 1999 when the title was issued.
Rectification of register under Section 80 LRA
Having found the titles illegally obtained, the court ordered cancellation and rectification in favour of the estates of the original allottees
Section 80(1) permits rectification where registration was obtained by fraud or mistake. Since the certificates of title for 350 and 3144 were obtained illegally and are null and void, they are impeachable and were cancelled.
Legal principles established
#- Fraud must be specifically pleaded and distinctly proved; it cannot be left to be inferred from facts
- Allegations of fraud must be proved to a standard higher than a balance of probabilities though not beyond reasonable doubt
- A registered proprietor may be required to prove the legality of acquisition of title beyond the instrument
- Land once allocated cannot be reallocated unless the first allocation is validly cancelled; repossession in a settlement scheme requires notice to the defaulter
- Adverse possession runs only against a registered title, computed from registration
Court orders
#- 1.A declaration is hereby issued that the 4th Defendant is not the legal owner of land parcel No. Makueni/Kinyambu/293
- 2.A declaration is hereby issued that the title deed for land parcel No. Makueni/Kinyambu/3144 issued in favor of Sadique Makewa Mulei, deceased, was illegally issued
- 3.The registration of Sadique Makewa Mulei as the proprietor of land reference number Makueni/Kinyambu/3144 is hereby cancelled, and the land registrar shall rectify the register to enter the name of the estate of Peter Mutua Ndala as the registered proprietor thereof
- 4.A permanent injunction restraining the Plaintiffs, their servants, agents, and or assigns from interfering with the 1st Defendant's occupation of the property known as Makueni/Kinyambu/3144
- 5.A declaration that the title deed for Makueni/Kinyambu/350 issued in favour of the late Sadique Makewa Mulei was illegally issued and the same be registered in the name of the estate of Peter Masoa Muindi
- 6.Plaintiffs' suit dismissed with respect to parcels 350, 3144, 216 and 3140
- 7.4th Defendant's claim dismissed
- 8.Each party to bear its own costs
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya 2010 and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulinge & another (Suing as the Administrator of the Estate of Sadique Makewa - Deceased) v Nthiwa & 3 others; Muthama (Intended Interested Party) (Environment and Land Case 256 of 2017) [2025] KEELC 6928 (KLR)", Case Analysis (2025). Not stated in the judgment (Environment and Land Court suit, Makueni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6928/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.