Ndoro v Ngithi (Suing as the legal representative of the Estate of the Late Muturi Mbiti) & 2 others (Environment and Land Appeal E033 of 2024) [2025] KEELC 8545 (KLR)

Chief Land Registrar for registration and issuance of title deeds, the Land Adjudication Oficer Mbeere fraudulently deleted those names and inserted the Appellant’s name in the records. He averred that on 6/5/1996, the Land Registrar Mbeere registered the suit land measuring about 4.1 hectares in the Appellant’s name and issued him with a title deed on 2/8/2017. 3. The 1st Respondent averred that he has been in exclusive occupation and possession of the suit land both before and after adjudication and that in March 2018, he saw the Appellant taking some unknown people round the suit land with the possible intention of disposing of the land. He pleaded particulars of fraud against the Appellant, the 2nd and 3rd Respondents. He averred that he discovered the fraud and dishonesty perpetrated by the Appellant, the 2nd and 3rd Respondents in March 2018 upon conducting a search at the registry and placed a caution on the land. He contended that Section 26 of the Limitation of Actions Act absolves him from the provisions of section 4 (1) and 7 of the Limitation of Actions Act as the registration of the Appellant as the proprietor of the suit land was evidently fraudulent and criminal. 4. The Appellant filed a defence and averred that the registration of the 1st Respondent and the other named parties in the adjudication register was made on the basis that they were trustees of the Appellant’s Gekara Clan. He denied committing fraud and averred that the suit land was transferred to his name by the Gekara Clan with the 1st Respondent’s approval and participation. He denied that the 1st Respondent had been in actual occupation of the suit land. He contended that being a first registration, his title is indefeasible and not subject to any overriding interests. He urged that the 1st Respondent’s suit be dismissed with costs and the caution on the suit land be removed. 5. The 2nd and 3rd Respondents and the Hon. Attorney General filed a joint defence and denied that they participated in any fraud. They averred that the suit land is duly adjudicated, surveyed and registered in the Appellant’s name as a first registration efiected on 6/5/1996. They raised a preliminary objection on the grounds that: the suit was brought in breach of Section 13 and 13A of the Government Proceedings Act; the suit ofiends Section 7 and 26 of the Limitation of Actions Act and that the suit is brought against sections 26 and 29 of the Land Adjudication Act. The record shows that the preliminary objection was withdrawn by the Hon Attorney General vide a notice of withdrawal dated 5/3/2019 received in court on 7/3/2019. 6. During the hearing, the late Muturi Mbiti told the court that the person who cancelled their names from the adjudication register did not indicate the date or countersign against the cancellation. They did not indicate the remarks or the reason for inserting the Appellant’s name. He asserted that they did not transfer or sell the suit land to the Appellant. He maintained that he had been in actual occupation and use of the land since it was adjudicated and allocated to them in 1972 and that they did not bother to collect the title deed as there was no dispute over the ownership and registration of the land. He denied that the Appellant owned the land or had set foot on it. 7. He argued that the land had never been clan land and that any ownership dispute was resolved by the Land Committee during the process of Adjudication in Land Committee Case No. 26 of 1972 between his counterpart, the late Muchungu Mwangage and Maringa Mutunge where his counterpart was awarded the land and caused it to be registered in their joint names. He averred that Maringa Mutunge did not appeal against that decision. He denied that they were registered as trustees for the Gekara Clan. 8. On cross examination, he stated that the suit land was adjudicated in 1972 and that he got one more property from the Gekara Clan, that is, Embu/Mavuria/216 which measures about 3 acres. He had not built on the land but used it to graze. He produced copies of the adjudication register for the suit https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8545/eng@2025-11-19 2

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land, proceedings and decision in Land Committee Case No. 26 of 1972, copy of the green card for the suit land, demand letter and the reply to the demand letter. 9. The 1st Respondent called Nyaga Muchungu as a witness. He stated that he is the son of the late Muchungu Mwangange who was the adjudicated co-owner of the suit land alongside the late Mutugi Ngiciani and the 1st Respondent. He averred that his father had other land parcels which had been allocated and adjudicated in his name being numbers 220, 221, 222, 223, 224, 225 and 229 after he won Land Committee Case No. 26 of 1972 during the adjudication process in respect of Mavuria Land Adjudication Section. He averred that the suit land was awarded to his late father by the Committee and that there has been no dispute or case concerning the land parcels awarded to his father. 10. He averred that they discovered in March 2018 that the Appellant had been registered as the proprietor of the suit land. In his view, this was done fraudulently for his late father and the co-owners never sold or transferred the suit land to him. On cross examination, he stated that the parcels of land that his late father was allocated were not clan land. He denied that his late father and the 1st Respondent allocated land to the family and did not allocate land to the other beneficiaries. 11. Jerevasio Kithaka alias Kithaka Mutugi also testified as the 1st Respondent’s witness. He stated that he is the eldest son of the late Mutugi Ngiciani, one of the co-owners of the suit land and that the land was allocated to them after adjudication. He maintained that they never sold or transferred the suit land to anyone. He stated that the distance between the suit land and his home is about 300 metres and that it is the late Muturi Mbiti who has been in actual occupation of the land after his co-owners died. 12. On cross examination, he stated that the Appellant belonged to his family and Gekara Clan. He denied that his late father and the co-owners were registered as Clan representatives. He stated that the three were to use the suit land for grazing. 13. The Appellant stated that in 1970, when the suit land was being adjudicated, the Gekara Clan allocated land to its members. That according to the Clan, each house was to get each a piece of land which was to be given to the first born son. He stated that within the family of Njiru Ngiciani, who had two wives, the first wife’s son was allocated a portion of land, while the son of the second wife, being himself, was excluded from the allocation. 14. Further, that the suit land was originally set aside by the clan because it was rocky and was designated for grazing, and that it was therefore registered in the name of the 1st Respondent and his co-owners. He averred that after his household was left without any land allocation, the clan allocated him the suit land as no other land remained. That when he came of age, he obtained a title deed over the suit land, and it was at that point that the 1st Respondent lodged a caution claiming ownership of the land. 15. On cross examination, he stated that he was allocated the land by the Clan in 1972 when he was 12 years old after the finalization of the case before the Land Committee. He does not live on the suit land because the Gekara Clan had preserved it for herding. He maintained that the 1st Respondent and his co-owners were registered as trustees. His father complained to the Clan that one of his household had not been allocated land and that is when the suit land was allocated to him. He explained that the Clan took the minutes to the Land Registry and he was registered as the owner of the land. He maintained that there was no fraud perpetrated in registering the land in his name. 16. He produced copies of the title deed for the suit land, Clan Minutes dated 22/7/1977, oficial search, reply to a demand letter dated 4/4/2018 and green cards for land parcels Embu/Mavuria/214 and 231. 17. The Appellant called Antony Muturi Ngiri to testify. He stated that he was the secretary of the Gekara Clan and was responsible for recording the names of persons to be allocated land, as well as the names https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8545/eng@2025-11-19 3

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of the trustees for the suit land appointed by the Clan. He produced Minutes of the Gekara Clan. He explained that the Clan distributed land to 17 households, giving one parcel to each family. 18. On cross examination, he stated that the suit land was allocated to the 1st Respondent and his co-owners and those were the names he recorded. He did not have any document to show that the suit land was subsequently granted to the Appellant and did not know how the Appellant got the title over the suit land in 1996. On further cross examination, he stated that in his written statement he indicated that the suit land was initially registered in the names of three individuals, but their names were later replaced with that of the Appellant, because the three had only been representatives of the Clan who defended the Clan cases. He stated that he delivered the minutes to the Lands Ofice to facilitate the transfer of the suit land to the Appellant. 19. In its judgment, the trial court considered the issue of jurisdiction raised by the Appellant at the submissions stage, where he contended that the suit was time-barred under Section 7 of the Limitation of Actions Act. Upon evaluating the evidence, the court held that Section 26 of the Act was applicable, noting that the 1st Respondent only became aware of the fraud in March 2018. Consequently, the court found that the cause of action accrued at that point, rendering the suit well within time. 20. On the merits, the court found that the 1st Respondent proved that he and the two deceased co-owners were the rightful original allottees of parcel no. 226. That the minutes the Appellant relied on in fact supported the 1st Respondent’s case. The court observed that the Appellant did not produce evidence proving he was allocated the land by Gekara clan, and his own witness testified that no such proof existed. The court cited Munyu Maina versus Hiram Gathiha Maina Civil Appeal No. 239 of 2009 where it was held that where the root of title is challenged, the registered proprietor must demonstrate the legality of its acquisition. Applying that principle, the trial court found that the Appellant failed to discharge that burden and allowed the 1st Respondents claim. 21. The Appellant raised 10 grounds of appeal and urged that the trial court allowed the 1st Respondents claim despite evidence to the contrary and failed to apply the proper standard of proof required. He argued that the trial court erred by considering irrelevant matters and hearsay evidence in favour of the 1st Respondent, resulting in the wrongful decision against him. He faulted the trial court for closing the 2nd and 3rd Respondent’s case without considering that their evidence was crucial in determining whether or not there was proof of fraud. He urged that the court failed to consider that forensic evidence was necessary to prove the 1st Respondent’s claim and did not consider or adequately appreciate his submissions and the authorities cited in support of his case. He invited the court to set aside the judgment of the trial court and order a retrial of the suit. He sought the costs of the appeal. 22. The appeal was canvassed through written submissions. The Appellant submitted that in R.G Patel versus Lalji Makenji (1957) EA 314 it was held that allegations of fraud must be strictly proved and that although the standard of proof may not be heavy as to require proof beyond reasonable doubt, proof of more than a balance of probabilities is required. He submitted that the 1st Respondent failed to prove that there was fraud and that his evidence was not conclusive. He submitted that the title to the suit land showed that he owns the suit land. 23. He submitted that the suit land was originally clan land, and when the clan realized that one household had been overlooked, it was agreed the land would be held in trust for that household, and the Appellant was to be registered as the owner. He averred that throughout the adjudication process, no one protested, and even during the closure of the adjudication register, no claim of fraudulent allocation was made. He maintained that the adjudication process was lawful and unchallenged. He emphasised that the suit was determined without evidence from the Land Registrar Mbeere and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8545/eng@2025-11-19 4

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the Adjudication Oficer, who were best placed to answer questions relating to adjudication, the adjudication register and any other documents relating to the suit land. 24. It was submitted that the trial Magistrate relied on the 1st Respondent’s evidence and applied the wrong standard of proof. Further, that the 1st Respondent did not prove collusion or fraud by the Appellant, the 2nd Respondent, or the 3rd Respondent. He maintained that the 2nd Respondent simply carried out his lawful duties under Section 14 of the Land Registration Act. 25. The 1st Respondent submitted that, there was overwhelming evidence to show that the transfer of the suit land to the Appellant was both unprocedural and marred with illegality. He pointed out that the trial court noted that after cancellation of the initial land owners of other land parcels that is 227 and 228, there were signatures countersigning and indicating the dates the cancellation was done in the Adjudication Register. That on the last column saved for remarks for the two parcels, it was clearly indicated that the parcels of land were transferred and there was reference to a particular folio and case number including a signature and date indicating when the remarks were made. 26. He submitted that the trial court found it unusual and improper that for the suit land, there the cancellation was not countersigned nor was there a date to indicate when the cancellation was done. That in addition to that, there were no remarks on the last column and it was not indicated whether it was a transfer or how the land came to be registered in the Appellant’s name. He submitted that during trial, he discharged his burden of proof by producing valid documents and oral evidence to prove that indeed he was registered as a co-owner of the suit land since the adjudication process was completed in the early 1970’s. He maintained that the Appellant failed to produce compelling evidence to counter his. 27. Further, he submitted that the 2nd and 3rd Respondents did not ventilate their position before the trial court and did not file witness statements in accordance with the court’s directions. They did not give evidence and the court marked their case as closed on 7/2/2024. He maintained that it was irregular for the Appellant to name the Land Registrar and the Land Adjudication Oficer as parties in this appeal. He argued that the Appellants’ submission that the case should be sent back for retrial lacked basis. 28. The 2nd and 3rd Respondents supported the Appellant’s position that the trial court failed to consider their evidence which they aver was crucial in determining the allegations of fraud. They submitted that the 1st Respondent did not prove fraud occasioned by them. They relied on Kinyanjui Kamau versus George Kamau (2015) eKLR where it was held that fraud must be pleaded and strictly proved. They maintained that the Land Registration Act, 2012 embodies the principle and doctrine of indefeasibility of title unless fraud or misrepresentation to which the proprietor is a party is proved. 29. They submitted that the 2nd Respondent was performing his duties under Section 14 of the Land Registration Act, and that there was nothing out of the ordinary that would have made the Registrar stop the registration. They contended that the 1st Respondent failed to prove fraud yet he who alleges must prove as was held in Central Bank of Kenya v Trust Bank Limited and 4 others (1996). They maintained that the Appellant’s title was lawfully registered. They cited Munyu Maina v Hiram Gathiha Maina [2013] eKLR, where it was held that when the root of title is challenged, the proprietor must prove the legality of acquisition, which they averred, the Appellant did. They urged that the appeal be allowed. 30. The issue for determination is whether the learned Magistrate erred in finding in favour of the 1st Respondent and ordering rectification of the register and cancellation of the Appellant’s name as proprietor of the suit land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8545/eng@2025-11-19 5

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31. It is trite law that allegations of fraud must be specifically pleaded and strictly proved. In this case, the trial court examined the documentary evidence produced by the parties and in particular, the adjudication register for the suit land and made material factual findings. In particular the trial court found that the adjudication record for the suit land showed that the land was originally registered in the names of the three co-owners, Muturi Mbiti, Muchungu Mwangange and Mutugi Ngiciani and that the subsequent cancellation and insertion of the Appellant’s name was not recorded in the a manner similar to the other rectifications. 32. It showed that for the other parcels of land particularly land parcels 227 and 228, the reasons for cancellation of titles for the previous registered owners were given in the remarks section. This contrasts with the suit land where there were no remarks or reasons given for the cancellation of the registration of the three co-owners. The court also notes that the interest of the three co-owners was registered as “this plot is the property of the Clan Gekara. Registered men are clan representatives (reserved for grazing). The Appellant’s argument that the land may have been held by the 1st Respondent and the co-owners in trust for the Clan may hold some truth. 33. The Appellant’s case rested largely on clan minutes and the assertion that the suit land was allocated to him by the Gekara Clan since he had not been allocated land. However, from the minutes he produced, which are written in Kimbeere, the suit land is recorded against the three co-owners. Moreover, the Clan secretary who was called by the Appellant testified that he recorded the minutes and conceded under cross-examination that he did not have any document to prove that the land was subsequently given to the Appellant by the Clan and that he did not know how the Appellant obtained the title in 1996. The Appellant failed to demonstrate the circumstances under which he was registered as proprietor of the suit land. 34. It is well established that when a root of title is challenged, the registered proprietor bears the burden of proving the legality of their acquisition. The Appellant was required to show through evidence that the change in the register was lawful and regular. He did not discharge that burden and the trial court’s findings that the cancellation of the 1st Respondent’s name and his co-owners and subsequent registration of the Appellant as the proprietor of the suit land was irregular and unlawful. 35. The Appellant and the 2nd and 3rd Respondents argued that the trial court erred by closing their case without giving them a chance to testify. The record shows that the Land Adjudication Oficer was stood down on 4/8/2021 when the suit was set for further defence hearing due to the absence of a witness statement. An adjournment was granted and the witness was directed to file a statement. 36. When the matter next came up for defence hearing on 7/2/2024, the 2nd Respondents counsel sought an adjournment on grounds that the oficer was not available to testify. The court noted that the witness had not filed his statement. It is at that stage that the court marked the 2nd and 3rd Respondents’ case as closed. The 2nd and 3rd Respondents did not appeal against that decision, and there is no indication that they sought review or otherwise challenged the court’s directions. In the circumstances, the Learned Magistrate cannot be faulted for her findings particularly since the Respondents were granted the opportunity to file their documents but failed to do so. 37. On the totality of the evidence, this court finds that the trial court did not err in arriving at the conclusion that the registration of the Appellant as proprietor of the suit land was irregularly and illegally undertaken. 38. The appeal lacks merit. It is dismissed with costs to the 1st Respondent. DELIVERED VIRTUALLY AT EMBU THIS 19TH DAY OF NOVEMBER 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8545/eng@2025-11-19 6

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K. BOR JUDGE In the presence of: Mr. James Mwatsuma for the 2nd and 3rd Respondents Diana Kemboi-Court Assistant No appearance for the Appellants and the 1st Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8545/eng@2025-11-19 7

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