Mungai v Mwangi & 2 others (Environment and Land Case E019 of 2021) [2025] KEELC 8521 (KLR)

4. He averred that the 2nd Defendant altered the register for the suit land without following due procedure and without the requisite documents, and that the registration of the 1st Defendant was done in an unlawful, irregular, unprocedural and fraudulent manner, and that those actions were perpetrated by the 1st and 2nd Defendants. He set out the particulars of fraud against the 1st and 2nd Defendants. He urged that the 1st and 2nd Defendant’s actions unlawfully deprived him of his proprietorship of the suit land. 5. The 1st Defendant filed a defence which was amended on 4/7/2022 and denied the Plaintifi’s claims. She stated that that she is the Plaintifi’s wife, that the suit land is matrimonial property and that she has spousal rights over land. She stated that on or about 4/10/1998, she purchased Mbeti/ Gachoka/1509 and 1510 together with the Plaintifi from Jason Mungai Kaburu for Kshs. 555,000/ =. That they subdivided Mbeti/Gachoka/1510 into Mbeti/Gachoka/2851 and 2852 following which they disposed of Mbeti/Gachoka/2851. 6. She averred that she contributed money towards the purchase of Mbeti/Gachoka/2852 and had greatly developed the land having lived there since 2000. She claimed that they got Mbeti/Gachoka/2852 registered in their joint names. She contended that the Plaintifi was aware that the suit land was jointly owned and her registration as a joint owner was by virtue of the fact that she is the Plaintifi’s wife. She was opposed to her name being removed from the register of the suit land and maintained that she had equal rights in the land. 7. The 2nd and 3rd Defendants filed a defence and denied the Plaintifi’s claims. They stated that if at all the 1st Defendant was registered as a joint proprietor, that was done procedurally and in accordance with the law. They denied that they colluded with the 1st Defendant to illegally and fraudulently transfer the suit land to her and further denied the particulars of fraud outlined by the Plaintifi against them. 8. The Plaintifi filed a reply to the 1st Defendant’s defence and denied that the 1st Defendant was his wife or that the suit land was matrimonial property. He denied that the 1st Defendant contributed to the purchase of the suit land or that the land was purchased jointly. He explained that the 1st Defendant had been living on the suit land with his permission as he was assisting her on humanitarian grounds when she was in distress. He argued that that occupation did not confer any rights of ownership on the 1st Defendant. The Plaintifi also filed a reply to the 2nd and 3rd Defendant’s defence and reiterated that the fraudulent registration of the 1st Defendant was done in collusion by the 1st and 2nd Defendants. 9. During the hearing, the Plaintifi Philip Mugui Mungai testified that he bought the suit land from Jason Kaburu Mungai and that time it was part of parcel no. 1510. He stated that he bought the land to assist Jason Kaburu to pay a loan with AFC and that they entered into a sale agreement, which the 1st Defendant was not a party to. That he subdivided parcel number 1510 into two, parcel numbers 2851 and 2852 which were solely registered in his name. On or about 2013 or 2014, he learned that there had been transactions on the suit land that included the addition of the name of the 1st Defendant without his authority. That he realized that had happened when he got sick and wanted to sell a portion of that land. 10. Further, he stated that he wrote to the Land Registrar enquiring how the 1st Defendant got to be registered as a joint proprietor but got no response. He explained that the suit land had two houses on it, a maisonette and a semi-permanent house which serves as a store which he built by himself. He stated that the 1st Defendant lives in the maisonette, and that she entered the land in 1999 after he gave her a place to stay in good faith. He stated that he knew the 1st Defendant in 1998 when she was working at AFC Bank and that at that time, she used to stay in a small room in Blue Valley and had defaulted in https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8521/eng@2025-11-24 2

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paying rent. He took her in with her children. At the time, she was earning a net pay of Kshs. 11,569.55 as a clerk at AFC and with the little earnings, she was not in a financial position to pay for the land. 11. He denied that Rosaline Nyambura and the late Mary Wanjiru Mwangi, the 1st Defendant’s daughters were his children. He brought up Rosaline Nyambura because she was staying in the same compound as him but denied paying for her education. He confirmed during cross examination that the birth certificate of Rosaline Nyambura shows that he is her father and the 1st Defendant is shown as the mother. He argued that the birth certificate was not genuine and denied that he lived with the 1st Defendant in the same house as husband and wife. 12. The Plaintifi denied signing any consents or transfer forms to make the 1st Defendant a joint owner of the suit land. He stated that from 2014, he fell sick and was admitted in the hospital several times because he is diabetic. He did not have the documents to prove that. That the 1st Defendant took advantage of his sickness and forged his signature to get registered as a joint proprietor of the suit land. He stated that he has a wife whom he married in 2012 and that he stopped living on the suit land around that time. 13. The Plaintifi produced copies of the green card and two title deeds for the suit land, a bundle of correspondence to the Land Registrar, letter from the Attorney General forwarding the notice of intention to sue, Notice of intention to sue and letter from AFC to Jason Mungai Kaburu. He also tendered in evidence copies of the sale agreement dated 4/10/1998, application for consent to the Land Control Board and the letter of consent, letter dated 16/11/1998 from the Plaintifi to AFC and mutation form. The other documents produced were copies of the 1st Defendant’s pay slips, a bundle of receipts, oficial search of the suit land, eulogy and photographs of the developments on the suit land. 14. The 1st Defendant, Mary Wanjiru Mwangi testified that the Plaintifi is her husband and that she is still married to him. That they got married under Kikuyu Customary Law in 1997 and lived together up to 2013. She stated that she had one child by the Plaintifi whom she conceived in 1998 in the course of marriage and who was born on 2/3/1999. That unfortunately the child did not live for long and she buried him under a burial permit that she produced in evidence. She further stated that she had six other children when she met the Plaintifi and that he married her with that knowledge. She explained that the Plaintifi is not the biological father of Rosalyne Nyambura but he agreed to be her stepfather and her birth certificate bears his name as the father. She stated that she is a joint owner of the suit land. That together with the Plaintifi she purchased parcel numbers 1510, 1509 and 1507 from Jason Gakuru Mungai. 15. She explained that the transactions were undertaken with Gakuru’s daughter, Naomi Wanjiru Githae who had his power of attorney, as Gakuru was sick and bedridden. She stated that she was present when they bought the parcels of land. She recalled that they took Kshs. 98,000/= in cash to the family of Gakuru in Naro Moru and paid the rest of the money to AFC because the seller had borrowed a loan from there. She confirmed that she was working with AFC at the time. After buying the parcels of land, they settled on parcel no. 1510 in 1999. Part of parcel no. 1510 was sold and they remained with the other portion that is parcel no. 2852, which she jointly owned with the Plaintifi. 16. When she went to the Lands Ofice, she found a restriction registered against the suit land and when she talked to the Plaintifi he wrote a letter to remove the restriction and they were registered as joint owners of the land. She stated that it was the Plaintifi that signed that letter and that she never forged any documents in order to be registered as a joint owner of the suit land. She was emphatic that everything was done oficially. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8521/eng@2025-11-24 3

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17. She urged that she had lived on the suit land from 1999 to date and that the Plaintifi left their house in the year 2013 when he remarried. She stated that their relationship was good during their marriage. She stated that she had made a lot of improvements to the suit land, that she constructed two dams and planted banana stems. She stated that she was the one who completed construction of the house. 18. On cross examination, she stated that the Plaintifi paid the loan to AFC and Jason Mungai transferred the land to the Plaintifi. There was communication between the Plaintifi and AFC but no letter was written to her during that period of correspondence. She confirmed that the sale agreement for land parcel 1510 and 1509 showed the purchaser of the land as the Plaintifi and her name does not appear there. She stated that she did not pay consideration of Kshs. 250,000/= as shown in the register of the suit land to the Plaintifi to become registered as a joint owner as they were husband and wife. She got her name added to the register with the Plaintifi’s consent and that the Plaintifi attended the Land Control Board and signed the transfer in her name. She denied that she took advantage of the Plaintifi’s admission in hospital. 19. The 1st Defendant produced copies of the mutation form for the suit land, sale agreement dated 4/10/1998, acknowledgement slip, loan repayment document form AFC and a bundle of letters written by the Plaintifi. She also produced copies of KRA receipts, certificate of oficial search and a letter from the Chief to the Land Registrar. The other documents produced included Rosalyne Nyambura’s birth certificate, photographs of the suit land, the 1st Defendant’s ID and KRA Pin Certificate, the Plaintifi’s identity card a burial permit for Mary Wanjiru Mwangi and photographs. 20. Several documents were only marked for identification including, a transfer form for land parcel 2852, application for consent of the Land Control Board and the consent, and a copy of a valuation requisition for stamp duty. 21. Rosaline Nyambura testified that the Plaintifi was her stepfather and that his name appears on her birth certificate. She denied that the birth certificate was forged. She stated that when she was joining university, she needed a birth certificate. She testified that the Plaintifi and the 1st Defendant used to live happily as husband and wife and that the Plaintifi deserted their home and remarried in 2013. When he left is when he started mistreating and frustrating her mother. She stated that her school fees was paid by her two parents. 22. The Land Registrar, Margaret Mutai testified that she did not have documents to show how the 1st Defendant’s name was inserted in the register for the suit land. That during the period that the transaction complained of took place, there was a difierent Registrar serving in the Kiritiri Lands Registry and that it was they who could explain how the transaction took place. She stated they had incomplete records on the suit land. They only had the green card of land which showed that before the 1st Defendants name was entered in the register, the Plaintifi was the original owner of the land, a copy of which she produced. 23. The court directed parties to file and exchange written submissions, which it has considered. Only the Plaintifi and the 1st Defendant filed their submissions. The Plaintifi submitted that the Land Registrar confirmed that there were no documents to support the registration of the 1st Defendant as a joint proprietor of the suit land and that Sections 36 and 37 of the Land Registration Act required proof of transfer, which was absent. He submitted that Sections 24, 25 and 26 of the Land Registration Act provide that registration vests absolute ownership in the registered proprietor, but such title may be challenged where it is obtained through fraud, misrepresentation, illegality, unprocedural means or a corrupt scheme. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8521/eng@2025-11-24 4

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24. He submitted that the registration of the 1st Defendant as a joint proprietor was irregular, unprocedural, fraudulent and illegal and did not confer any proprietary rights to her. He submitted that the 1st Defendant admitted that there was a restriction on the land before the transfer. He denied removing the restriction and urged that its removal without his knowledge or consent was fraudulent. He averred that the absence of transfer forms and letter of consent further demonstrated fraud. He submitted that he never intended to add the 1st Defendant’s name as proprietor. He denied that the alleged customary marriage to the 1st Defendant. 25. Further, he submitted that the certified copy of the register of the suit land showed an entry indicating consideration of Kshs. 250,000/= was paid yet the 1st Defendant admitted that she did not pay any consideration. The entry was therefore questionable as it raised doubts as to whether the 1st Defendant purchased the land or it was gifted to her. He pointed out that some of the documents in the 1st Defendant’s trial bundle were not produced and averred that he had demonstrated that the 1st Defendant’s name was unlawfully and fraudulently inserted in the register. He concluded that under Section 80 of the Land Registration Act, the court may rectify the register by cancelling a registration obtained by fraud or mistake and urged the court to allow his suit. 26. The 1st Defendant submitted that the Plaintifi failed to prove fraud. She submitted that Section 26 of the Land Registration Act provides that a certificate of title is prima facie evidence of ownership unless acquired by fraud, misrepresentation, illegality, or through a corrupt scheme. Additionally, that Section 107 of the Evidence Act places the burden of proof on the person alleging fraud. She argued that the Plaintifi failed to demonstrate how her registration was illegal, while she had produced documents including the consent dated 27/9/2013 from the land control board and copies of the transfer, which in her view demonstrated that the proper procedure was followed. 27. In addition to that, she explained that they wrote a letter to the Land Registrar to have their names jointly added in the title deed. She urged that Section 23(2) of the Land Registration Act provides that a registered proprietor may apply to the Registrar to be included in the register. She argued that the 1st Defendant applied to have her name included in the register and she followed due process. She submitted that it was not for her to prove that the proper procedure was followed but it was for the Plaintifi to show how the fraud was conducted. That no investigations were carried to warrant the Plaintifi to make the accusations of fraud and the Plaintifi did not file a criminal case. 28. The 1st Defendant argued that the dispute arose from a marital relationship gone sour and the Plaintifi wants to settle scores by having her deregistered from the suit land. That she produced evidence including pictures, burial permits, and birth certificates indicating that they were married, and that the suit land was acquired during that period making it matrimonial property. 29. She averred that the Plaintifi was aware when she applied to be joined as a joint owner and is only denying that due to their broken relationship. She remains in occupation of the land with her family, residing in one of the houses constructed together with the Plaintifi. She was emphatic that her name was properly placed on the register as a joint owner and the case should be dismissed with costs. 30. The issue for determination is whether the Plaintifi’s suit has merit. It is not in dispute that the Plaintifi was the registered proprietor of land parcel Mbeti/Gachoka/2852 prior to the registration of the 1st Defendant as a joint proprietor. What is in dispute is whether the registration of the 1st Defendant as a joint proprietor of the suit land was procured through fraud. The Plaintifi claimed that the 1st Defendant’s registration was efiected unlawfully, irregularly, and without the requisite documents. The 1st Defendant on her part contended that a transfer signed by the Plaintifi existed as well as consent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8521/eng@2025-11-24 5

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of the Land Control Board showing that the transfer followed due process. Those documents were marked for identification but were not produced in evidence. 31. The court notes that vide the letter dated 14/10/2013, the Plaintifi requested the Provincial Land Valuer, Embu District, to place a restriction against the suit land. By another letter dated 6/1/2014, he requested the removal of the restriction and the registration of himself and the 1st Defendant as joint proprietors. The letters were not controverted by the Plaintifi nor did he deny that he authored them. 32. It is trite law that allegations of fraud must not only be pleaded, but must also be proved to a standard higher than a balance of probabilities, although not as high as proof beyond reasonable doubt. In the present case, the 1st Defendant produced evidence showing that due process was followed in her registration as a joint proprietor of the suit land. The Plaintifi did not lead any evidence to prove that those documents were forged. The Plaintifi failed to prove fraud to the requisite standard. 33. The Plaintifi’s claim is dismissed. Each party will bear its costs. DELIVERED VIRTUALLY AT EMBU THIS 24TH DAY OF NOVEMBER 2025. K. BOR JUDGE In the presence of: Diana Kemboi- Court Assistant No appearance for the parties https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8521/eng@2025-11-24 6

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