Nganga v Kimani & 2 others (Environment and Land Case Civil Suit E436 of 2021) [2025] KEELC 6391 (KLR)

that he complied with all the terms of the sale and took physical possession of the plot which has been in his possession ever since then. He avers that after the 3rd Defendant started processing titles for the area he learned that the Defendants had unlawfully, corruptly and irregularly obtained a title document for the said parcel of land Plot V 6946 allocated parcel number LR 7082/136/9656 hereinafter referred to as the suit property. It is on this basis that he has filed the suit. 3. The 1st and 2nd Defendants filed a defence in which they denied the contents of the Plaint. They further filed a counterclaim in which they pleaded that they are the legal administrators to the estate of John Gakera Kimani who purchased the suit property from the 3rd Defendant in the counterclaim who issued him with a share certificate number 2489 in 1978. The averred that around the year 1983 their late father and other shareholders balloted and were each allocated a plot. It is their case that during one of their visits to the suit property, they realized it had been encroached upon. They filed a suit against the 3rd Defendant Embakasi Ranching Company to wit Milimani ELC 4053 of 2019. This suit was determined in their favour. The 1st and 2nd Defendant contend that the Plaintifi who is the 1st Defendant in the counterclaim colluded with Embakasi Ranching to fraudulently allocate the suit property to the Plaintifi. 4. The Plaintifi told the court that he was called by his neighbor who notified him that there was a tractor on the suit property. He went to the site with policemen to find three gentlemen two of whom are the 1st and 2nd Defendant. The third person was a surveyor called Mirende. After discussion they agreed to meet at the board on Monday to resolve the issue. It was his evidence that he waited in vain for the Defendants. After they failed to show up he started constructing. 5. Upon cross examination, he stated that he did not know Ruai Hatcheries indicated on his letter of allotment. In re examination he stated that the letter to Ruai Hatcheries was issued by Embakasi the third Defendant. He insisted that he is claiming plot V5946. 6. PW 2 Paul Wanjohi Wahome who confirmed that he is the Plaintifis brother in law produced a witness statement 7. The 1st Defendant Peter Gakeria Kimani told the court that he is a son of John Kimani who passed away. He produced a copy of share certificate which was issued to his late father by the 3rd Defendant. It was his evidence that the receipt his father was issued indicates plot T186 which became C2011 and later 136/9653. According to him these details were confirmed in a site visit carried out in 2018 by the surveyor. The findings by the surveyor were confirmed by the vice chairman of the 3rd Defendant. He stated that he learned that there was construction going on in the suit property. He challenges the documents produced by the Plaintifi and insists that the title he and 2nd Defendant obtained to the suit property was regularly obtained. 8. Counsel for the Plaintifi filed submissions which the court has considered. Arising from the Plaint and Defence and counterclaim, the court distills the following issues for determination; a. Whether the court should issue a declaration that the title deed held by the Defendant purportedly for Plot No V 6946 Ruai now renamed LR NO 7082/136/9656 is fraudulent and invalid b. Whether the court should issue a permanent injunction against the Defendants in respect of Plot V 6946 c. Whether the court should issue a declaration that the documents held by the Plaintifis are invalid https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6391/eng@2025-01-30 2

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d. Whether the court should issue an order restraining the Plaintifi and 3rd Defendant from interfering with 136/9656 9. I will address the issue of documentation held by both parties first. It is common ground that the Plaintifi does not have a title. He has other documentation which he insist entitle him to a title which the 3rd Defendant has in collusion with the 1st and 2nd Defendants denied him. We will shortly scrutinize his documentation. On the other hand the 1st and 2nd Defendants have a title to LR 7082/136/9656 which the Plaintifi seeks to have cancelled. 10. Section 26 of the Land Registration Act provides …. “The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 11. The courts have had occasion to give judicial interpretation on the approach that a court should take when a title is under challenge. The Court of Appeal in Munyu Maina v Hiram Gathiha Maina Civil Appeal No. 239 of 2009 [2013] eKLR, held that where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register. 12. Similarly, in the case of Funzi Development Ltd & Others v County Council of Kwale, Mombasa Civil Appeal No.252 of 2005 [2014] eKLR the Court of Appeal, stated that: “ ...a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot on the basis of indefeasibility of title sanction an illegality or gives its seal of approval to an illegal or irregularly obtained title.” 13. This court therefore has the task of interrogating each of the documents presented by both parties herein who are contesting ownership. The Plaintifi produced three documents as captured in the list of documents namely a copy of share certificate from Embakasi Ranching Company, a copy of non member share certificate and copy of the OB number. The shareholder certificate has the name of Rual Hatcheries and Hardware as the agent. It refers to an allocation letter s/ 2510/06 which together with other documents was to be collected. It is not evident just by looking at the document who was to collect the documents and from whom. It also has the number V 5946 on it. In addition there is an indication of cash of 32000. The date on this important document is not clear. The second document produced by the Plaintifi is the non member certificate. This is dated 25th October 2013 and has the name of the Plaintifi. It acknowledges receipt of Ksh 32000. The last document is a police abstract. 14. The question that the court asks itself is whether these documents and the evidence by the Plaintifi have confirmed to the court that he is entitled to a declaratory order of ownership in respect of Plot V6946. It is not disputed that the suit property initially belonged to the 3rd Defendant. It is also a matter of public notoriety that land owned by the company can be acquired by the shareholders. It is also possible for shareholders to sell their land to third parties In this case the Plaintifi does not claim to have acquired the suit property either as a shareholder or from a shareholder. He claims he acquired https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6391/eng@2025-01-30 3

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it as a non member. The Plaintifi does not explain how if he acquired the property as a non member the document he has produced has the name Ruai Hatcheries on it. He does not explain how this document bears the number 5946 instead of 6946. He does not give other evidence that would support his case such as who in the company he dealt with, where they carried out the dealings, witnesses who were there when the transaction was taking place etc. 15. There are many gaps in the Plaintifis case, it is not the responsibility of the court to fill up the gaps in a parties case. 16. Regarding the title held by the 1st and 2nd Defendants, they too produced their documents which this court will proceed to consider. They produced a copy of a share certificate in the name of John Gakeria Kimani issued by the 3rd Defendant, they also produced receipts for shareholder survey fees and civil engineering fees, they further produced a receipt for Kshs 20000 which included other items including an abstract. They further produced a site visit report. Lastly a certificate in the name of Peter Gakera Kimani and Naftally Ngugi Gakera. 17. I have considered these documents and have no doubt in my mind that John Gakeria Kimani was a shareholder of the 3rd Defendant. As to the plot that he was allocated the 1st and 2nd Defendant only produced a receipt for various items including survey and abstract from Embakasi Ranching Company in which it is indicated plot T186 and plot T 187. They also produced a surveyors note that confirmed that T 187 is 136/ 9656. I therefore find that plot T187 was allocated to the deceased John Gakeri Kimani. Does this then mean that the title by the 1st and 2nd Defendant should be upheld? 18. The answer is an emphatic no. It is a matter of record that the John Gakeri Kimani died on 10th June, 2012. The 1st and 2nd Defendants were only granted a limited grant of letters of administration ad litem to file suit on 25th April, 2019. It would appear that they used the letters of administration ad litem to transfer the property into their names. This is illegal and fiys in the face of Section 55 of the Law of Succession Act which places restriction on distribution of the estate of a deceased before confirmation. I therefore order that the title in the name of the 1st and 2nd Defendant is to be cancelled. Given that the court was informed that a separate suit had been determined in favour of the estate I will make no further findings on the issue. 19. On the question of the permanent injunction, I find that given my findings on the documents by the Plaintifi he is not entitled to the orders sought. 20. In the end the court makes the following orders a. The certificate of lease in the name of the 1st and 2nd Defendant should be cancelled and necessary modification made to the register b. Each party is to bear their own costs for the suit CONCUSIONS JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 30TH DAY OF JANUARY 2025 JUDY OMANGE JUDGE In the presence of: Mr. Gakera for Plaintifi No Appearance for Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6391/eng@2025-01-30 4

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Court Assistant Meryline https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6391/eng@2025-01-30 5

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