Muruachimba alias Mugo Nyaga v Kagau & 6 others (Environment and Land Case 322 of 2015) [2025] KEELC 8523 (KLR)

2. The Plaintifi’s claim is that the government registered him as the owner of the land known as Gaturi/ Githimu/549 (the suit land) on 6/12/1961. When he conducted a search in 2000, he was shocked to learn that the land had been transferred to the 1st Defendant without his knowledge. On inquiry, he learnt that the land was transferred to the 1st Defendant on 1/9/1975. He pleaded particulars of fraud on the part of the Defendants in getting the 1st Defendant registered as proprietor of the suit land. 3. The Plaintifi claimed that he also learned that after the suit land was subdivided, the 1st Defendant transferred Gaturi/Githimu/9116 to the 4th Defendant and Gaturi/Githimu/9117 to 9120 were transferred to 5th and 6th Defendants. Gaturi/Githimu/9122 to 9126 were transferred to the 7th Defendant. 4. The Plaintifi averred that he reported the claim of fraud to the Kenya Anti-Corruption Authority (KACA) and the Criminal Investigations Department (CID) but the investigations were never completed. He claimed that he would sufier loss because the sanctity of a title was protected by law. 5. The 1st Defendant filed his defence dated 21/9/2015 and denied the Plaintifi’s claim. He denied the particulars of fraud and collusion and claimed that the Plaintifi voluntarily sold Gaturi/Githimu/549 to his father. He averred that as the absolute proprietor of the suit land he had the right to subdivide it. 6. The 1st Defendant indicated that he would take up a preliminary objection to the suit that it was barred by the Limitations of Actions Act and for want of cause of action against the 1st Defendant. 7. The 2nd and 3rd Defendants denied the Plaintifi’s claim in their defence dated 6/11/2015. They averred that the suit ofiended the provisions of the Government Proceedings Act. 8. The suit was heard on 16/7/2025 when the Plaintifi testified. He told the court that the 2nd and 3rd Defendants fraudulently transferred Gaturi/Githimu/549 to the 1st Defendant. He reiterated the contents of the plaint in his witness statement. He produced copies of the register for Gaturi/ Githimu/549 opened on 6/12/1961; search dated 17/5/2002 and the mutation forms for the subdivision of Gaturi/Githimu/549. He also produced copies of the letters dated 24/5/2000 and 18/4/2002 from KACA and CID as well as copies of the demand letters issued to the District Land Registrar on 28/7/2015. The other documents which he tendered in evidence are the certificate of oficial search for parcel Gaturi/Githimu/9115 to 9126. 9. On cross-examination, he stated that he was given Gaturi/Githimu/549 in 1961 but had never lived on the land. He did a search on the parcel of land in 2000. From 1961 to 2000 he did not go to the suit land. After doing the search in 2000, he did not take any action until 2016 when he filed suit. He maintained that he knew where the land was. He later told the court that he went to the land either in 1974 or 1975. 10. On being cross-examined further by the 2nd and 3rd Defendants, he claimed that his signature was forged. He explained that all the children were being given the land by the clan. He was born in 1956 and was given the land in 1961 by the clan during demarcation. He filed suit in 2016 after he learnt how to pursue his land. 11. The 1st Defendant gave evidence and told the court that his late father was introduced to Njeru Ndwiga who was selling land in 1974 and he bought Gaturi/Githimu/549 from Njeru Ndwiga. That he together with his father and brother were registered as joint proprietors of Gaturi/Githimu/549 in 1974. His father and brother transferred their shares in the land to him in exchange for a difierent parcel of land. He maintained that there was no fraud in the transfer of Gaturi/Githimu/549 to his name and his father and brother. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8523/eng@2025-11-26 2

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12. He explained that he had been in occupation of the suit land for over 30 years and had built a home on the land where he lived with his family. He added that he had extensively developed the land, which the Plaintifi had never utilised since 1974 when he took possession of the land. He did not know the Plaintifi but hastened to add that if the Plaintifi discovered the fraud in 2000, he should have filed suit immediately to recover the land. He explained that KACA and the police had never summoned him. He reiterated that the Plaintifi’s rights or interest in Gaturi/Githimu/549 were extinguished in 1966 when he sold the suit land to Njeru Ndwiga. 13. The 1st Defendant produced a copy of the register for Gaturi/Githimu/549, search done on 17/5/2002 and the mutation form for the subdivision of this land. On cross-examination, he told the court that his father carried out the transaction with Njeru Ndwiga and the title was issued with their three names. His father died in 2015 without being sued over the suit land. 14. Dickson Njeru Kagau gave evidence and told the court that he was registered as a joint proprietor of Gaturi/Githimu/549 with the 1st Defendant. He told the court that his brother had been in occupation of the suit land for over 30 years and that he did not know the Plaintifi. 15. On cross-examination, he maintained that Njeru Ndwiga sold the suit land to them. He was not aware that the Plaintifi was a minor in 1966 when the land was transferred to Njeru Ndwiga. He did not utilise the suit land because he transferred it to the 1st Defendant in 1975. 16. Linet Njeri Kimuhu, the Embu Land Registrar gave evidence. She produced copies of the registers for Gaturi/Githimu/1915 to Gaturi/Githimu/9126. On cross-examination, she told the court that the registration of Mugo Muruachimba as the registered owner of Gaturi/Githimu/549 on 6/12/1961 did not indicate that he was a minor and did not state who the guardians were. According to her, this is the practice. She did not have the green card for the original parcel of land being no Gaturi/Githimu/549. 17. On conclusion of the hearing, the court directed parties to file and eschange written submissions. The Plaintifi filed written submissions as did the 2nd and 3rd Defendants. The Plaintifi submitted that under Section 47 of the Land Registration Act, a minor could hold land through a trustee. That he was given the suit land by his clan who appointed three guardians to secure his best interest. He argued that the suit land was sold and transferred without following the legal process. He cited various authorities to support his claim. 18. The 2nd and 3rd Defendants submitted that the Plaintifi had not shown that they were party to the alleged fraud. That at most, the registry acted on documents that appeared valid. They also cited decisions in support of their defence. 19. The issue for determination is whether the Plaintifi has proved his case on a balance of probabilities and whether the court should grant the reliefs sought. The Plaintifi’s claim is that the suit land was registered in his name in 1961 while he was about 6 years old. The land was transferred to Njeru Ndwiga in 1966 in unclear circumstances. It was further transferred to the 1st Defendant and his father and brother on 4/9/1975. 20. The legal position is that the Plaintifi could not have lawfully transferred the suit land to Njeru Ndwiga in 1966 since he was a minor at the time. On the face of it, the suit land was illegally transferred in 1966. Perhaps this occurred because it was not noted in the register that the registered proprietor of the land was a minor. 21. By 1974 or 1975 when the Plaintifi claimed to have gone to the land, he was of age and could have pursued recovery of the suit land. It merged from the Plaintifi’s evidence that he discovered in 2000 that the suit land had been transferred but did not file suit until 2015. Once he discovered in 2000 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8523/eng@2025-11-26 3

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that the land had been unlawfully transferred, he should have moved with alacrity to recover his land. Had he filed suit during the lifetime of the 1st Defendant’s father, the 1st Defendant’s father would have brought on board Njeru Ndwiga to explain how he acquired the suit land in 1966 while it was registered in the name of a minor. 22. What emerges from the evidence adduced is that the Plaintifi is guilty of laches. He took too long to assert his rights over the suit land. His claim is statute barred under the Limitations of Actions Act. It is dismissed with costs to the Defendants. DELIVERED VIRTUALLY AT EMBU THIS 26TH 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/2025/8523/eng@2025-11-26 4

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