Muriuki alias Njuki Muriuki & 2 others v Mbiti (Environment and Land Case E008 of 2024) [2025] KEELC 7943 (KLR)

Kshs. 700,000/= for Nthawa/Gitiburi/1715 and Kshs. 350,000/= for Nthawa/Gitiburi/1860. They denied transacting with the Defendant over the land and maintained that those transactions, which were carried out without their knowledge were fraudulent and unlawful. They set out the particulars of fraud against the Defendant. 4. The Defendant filed a defence in which he averred that he was registered as proprietor of the land legally through an order issued in High Court Civil Case No. 79 of 2005 and that he did not purchase the suit land as the Plaintifis claimed. He denied the particulars of fraud pleaded against him and stated that the Plaintifis obtained registration of the land fraudulently and that their registration was reversed by the court. He added that the Plaintifis attempted to set aside and appeal against the decree issued in High Court Civil Case No. 79 of 2005 without success and that this case is an attempt to alter the said decree. He urged the court to dismiss the suit with costs. 5. During the hearing, the 1st Plaintifi testified and stated that the Mung’au land was the subject of land adjudication cases with other clans including the Gachuga Clan in or about 1973, and that they were represented by Muthakie Ngariama in the cases. Their clan was awarded the land and upon determination of the cases, the Defendant was appointed by the clan members to distribute the land among the clan beneficiaries. 6. He claimed that the Defendant distributed the land to members of other clans who were not entitled to the land. Consequently, Njoka Rugiri appealed to the Minister vide Appeal Case No. 102 of 1980 complaining about the wrongful distribution of the land by the Defendant. Muthakie Ngariama filed Minister’s Appeal Case No. 101 of 1980 seeking to be reinstated as the clan Chairman in the Defendant’s place. The appeals were heard together and it was ordered that Njoka Rugiri should redistribute the land to the rightful beneficiaries of the Mung’au House. Njoka Rugiri died before completing the redistribution process but his brother, Kirengo Rugiri alias Ngari Rugiri took over the distribution process. He explained that the land had been subdivided into 55 portions. The subdivisions were not cancelled, but that their names replaced the names of the third parties who had been wrongfully allocated the land. That they were awarded the suit land and the 1st Plaintifi got Nthawa/Gitiburi/1715 while the 2nd and 3rd Plaintifis got Nthawa/Gitiburi/1860. 7. He told the court that they were in possession of their respective portions of land. They could not deal with the suit land in 2014, because the Defendant had restricted them. They met in the Chief’s ofice and the Defendant demanded two million shillings from him saying that it was compensation for the money he spent in the disputes involving the land. He urged that that was an unreasonable demand because the disputes which the Defendant was involved in were appeals to the Minister touching on the chairmanship of the clan. He maintained that he did not transfer his share of the land to the Defendant. 8. On cross examination, he stated that he does not live on the suit land and that he was not aware of High Court Civil Case 79 of 2005 and was not a party in the case. He maintained that he was given his share of the land by John Ngari and produced the green cards and oficial searches for Nthawa/Gitiburi/1715 and Nthawa/Gitiburi/1860. He also adduced consents from the land control board (LCB) to partition Nthawa/Gitiburi/1860 dated 8/1/1997 and the LCB consent to correct the name Stephen Nthia to read Stephen Nthia Tebeta dated 8/1/1997. He also tendered a copy of the application for correction of name from Benson Mwaniki to Benson Mwaniki Stephen dated 24/12/1996 and letters dated 24/9/1986 and 9/10/2020 from the Director of Land Adjudication and Settlement. 9. The 2nd Plaintifi testified and supported the 1st Plaintifi’s claim. He was not aware of the High Court case and maintained that Nthawa/Gitiburi/1860 belonged to him, and that it was given to him by the clan leaders. He told the court that he ploughs the land and wishes to bequeath it to his children. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7943/eng@2025-11-12 2

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10. The Defendant gave evidence and stated that he is the registered proprietor of the two parcels of land, and explained that he was registered pursuant to a court order issued in High Court Civil Case No. 75 of 2009 and pursuant to the award through the adjudication process as a member of the Mbuya Clan, Mung’au House. He argued that the Plaintifis do not belong to Mung’au House and that they have no claim over the suit land nor were they awarded the land by any court. 11. He added that the Defendants in High Court Civil Case No. 75 of 2009 appealed to the Court of Appeal in Nyeri but the appeal was dismissed. He denied that the Plaintifis occupied the suit land. He expressed the view that the Plaintifi’s should have included the Land Registrar in the suit if their claim was genuine to explain why their land was transferred without their authority. 12. The Defendant produced copies of the decree issued in High Court Civil Suit No. 75 of 2005; order dated 9/12/2009 issued in High Court Civil Suit No. 79 of 2005; ruling dated 1/2/2012 in the High Court case and the ruling dated 31/3/2014 made in Nyeri Civil Application No. 35 of 2013. He also produced copies of the transfer and receipts for the suit land, letter dated 28/7/2004 from the Ministry of Lands, receipt for title numbers Nthawa/Gitiburi/2425, 1702 to 1706, 1708 to 1709, 1710 and 1715 and an objection against the Adjudication Register. 13. The court directed parties to file and exchange written submissions, which it has considered. The Plaintifis submitted that their registration as proprietors was protected by Section 24(a) of the Land Registration Act and that their proprietorship could not have been cancelled lawfully without due process. They added that their titles would not have been cancelled without their involvement and without a proper order being registered against the suit land. They pointed out that the green cards indicated that the Defendant acquired the suit land for valuable consideration yet on being crossexamined, the Defendant admitted that he did not buy the suit land from the Plaintifis. They urged that the inconsistency in the Defendant’s evidence demonstrated fraud. 14. The Plaintifis argued that the order in High Court Civil Case No. 75 of 2009 through which the Defendant claims to have obtained the suit land was not registered at the lands registry contrary to Section 45 (1) of the Land registration Act which provides that no instrument afiecting any disposition of interest in land shall be registered unless it has been presented in accordance with that Act. They contended that the failure to register the order meant that it had no efiect on their titles. 15. The Plaintifis submitted that the Minister determined the disputes over the clan land and expressly directed that the land be shared by members of the committee and excluded the Defendant for exhibiting bias in the land allocation. That the Defendant could not revisit or override those decisions indirectly through fabricated transfers and that his actions which were contrary to the Minister’s decision were unlawful. 16. The Defendant submitted that the Plaintifis bore the burden of proving fraud against him. That in answer to the allegations of fraud, he had produced copies of the application for registration and consent to transfer issued by the LCB in Siakago which the Plaintifis did not challenge. He added that the Plaintifis did not deny the existence of the order made in High Court Civil case No. 79 of 2009 and that he informed the court that he obtained the transfer of the suit land through the order and decree issued in this case. He maintained that the Plaintifis failed to prove how the fraud was implemented and urged the court to dismiss the suit. 17. The issue for determination is whether the court should grant the reliefs sought by the Plaintifis. The Plaintifis’ claim is that they are the rightful owners of the suit land which originally belonged to the Mung’au House of the Mbuya Clan and which was allocated to them by the clan. They contended that upon finalization of the land adjudication process, Nthawa/Gitiburi/1715 was awarded to the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7943/eng@2025-11-12 3

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1st Plaintifi, the late Njeru Ndathi, the late Jafeth Mathagu, and the late Ngari Njue, while Nthawa/ Gitiburi/1860 was awarded to the 2nd and 3rd Plaintifis. 18. The Defendant on the other hand, claims that the suit land were awarded to him pursuant to an order issued in High Court Civil Case No. 79 of 2005. The Plaintifis produced green cards for the two parcels of land, which show that they were registered as proprietors on 19/10/1994. The green cards show that subsequently, the Defendant was registered as proprietor on 24/11/2014, with the entries showing that he paid Kshs. 700,000/= and Kshs. 350,000/= as consideration Nthawa/Gitiburi/1715 and Nthawa/ Gitiburi/1860 respectively. 19. The Defendant stated in evidence that he did not purchase the suit land and contended that his registration was efiected pursuant to the decree and order issued in High Court Civil Case No. 79 of 2005. The court has examined the decree and orders and notes that the decree directed that the allocations made over the parcels in that suit, which included the suit land, were to be revoked and the land would revert to the Plaintifi in that case (the present Defendant) for re-allocation. The order also authorized the Executive Oficer to execute the requisite documents to give efiect to the decree. 20. The court notes certain peculiarities in the circumstances of this land dispute. It is not clear which specific allocations were revoked by the High Court decree and whether the Plaintifis were among the parties afiected by that order. Secondly, the green cards for Nthawa/Gitiburi/1715 and Nthawa/ Gitiburi/1860 do not refiect that the Defendant’s registration was pursuant to a court order. Instead, they show that the registration was done based on a sale for valuable consideration. Thirdly, the order of the High Court directed that the land was to revert to the Defendant for purposes of re-allocation, but not as the absolute proprietor of the land. 21. The court has looked at the letter produced by the Plaintifis from the Chief, Gitiburi Location dated 9/10/2020 addressing the restriction placed over Nthawa/Gitiburi/1715. In that letter, the Defendant is recorded as having stated that he was not aware of the sum of Kshs. 700,000/= but that he knew that he had spent approximately Kshs. 754,000/= in various transactions that he undertook on behalf of the Mbuya Clan during his tenure as Chairman. The Defendant asserted that he would not issue any land to anyone unless he was paid a sum of Kshs. 2,000,000/=. 22. Under section 24(a) of the Land Registration Act, the registration of a person as the proprietor of land vests in that person absolute ownership of that land together with all rights and privileges appurtenant to the registration. Section 26(1) of the Act provides that such title can only be challenged on grounds of fraud or misrepresentation to which the person is proved to be a party, or where the title has been acquired illegally, unprocedurally, or through a corrupt scheme. 23. The evidence tendered by the Plaintifis demonstrates that the Plaintifis were registered as proprietors in 1994 and that their titles were later cancelled and registered in the Defendant’s name in 2014 pursuant to an alleged purchase which the Defendant has denied. 24. The Defendant asserted that he acquired title over the suit land pursuant to a High Court order but in that order, the Defendant was not granted absolute ownership of the suit land but the order was for reallocation of the land to the rightful beneficiaries from the clan. The Defendant did not demonstrate that the Plaintifis were not among the rightful beneficiaries of the clan. 25. On a balance of probabilities, the inconsistencies in the manner in which the Defendant was registered as proprietor of the suit land support the Plaintifis’ claim that the alteration of the register was done illegally and unprocedurally and is liable to challenge under Section 26 of the Land Registration Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7943/eng@2025-11-12 4

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26. The court allows the Plaintifis’ claim and grants prayers (a) and (b) of the plaint dated 8/4/2024. The Plaintifis are awarded the costs of the suit. DELIVERED VIRTUALLY AT EMBU THIS 12TH DAY OF NOVEMBER 2025. K. BOR JUDGE In the presence of: Ms. M. Ndeke holding brief for Ms. R. Njeru for the Plaintifis Mr. Fundi Kimanzi for the Defendant Court Assistant - Diana Kemboi https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7943/eng@2025-11-12 5

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