Ndungu v Ngugi & 2 others

the property further and then continued staying thereon and his possession was uninterrupted. Mr. Wachira was issued with a Discharge of Charge in 2009. But to his surprise, the Plainti discovered in 2012 after carrying out a search of the land that one David Ngugi Mwangi had a Title Deed for the land which he got fraudulently, unlawfully and through misrepresentation which then ought to be cancelled by this Court. 4. He listed the particulars of fraud against the 1st and 2nd Defendants as follows: a. Knowingly obtaining Title Deed for Nyandarua/Mutonyora/233 without any consideration and or any evidence of proof of ownership. b. Misleading and obtaining transfer of Nyandarua/Mutonyora/233 by false pretense. c. Misleading the Nyandarua District Land Registrar to register the Title Deed for Nyandarua/ Mutonyora/233 in favour of David Ngugi Mwangi (deceased). d. Obtaining registration of the suit land by corrupt and or unfair means. e. Sub-dividing the suit property with full knowledge that the land does not belong to them. f. Acting in a manner that would infringe on the right of the Plainti herein currently in occupation and possession of the suit property. 5. Upon the death of the said David Ngugi Mwangi, husband to the 1st Defendant, the 1st and 2nd Defendants led Succession Cause No. 725 of 2012 in which they included the suit land as part of the Deceased’s Estate. They then sub-divided the land and transferred a portion thereof to the 3rd Defendant allegedly as payment for a debt owed by the Deceased and that explains why the 3rd Defendant is a party in this suit. 6. On 14/9/2015, the 3 Defendants led a Statement of Defence dated the same day and denied the Plainti’s claim as contained in his Plaint. They denied that the late David Ngugi Mwangi was at the material time the registered proprietor of the suit property and that the sale agreement between the Plainti and Pacrasio Muthengi Wachira dated 22/7/2008 was a simulated forgery. They further averred that David Ngugi Mwangi and the 1st Defendant were in occupation and control of the suit land from the year 2002 and the Deceased was issued with the Title Deed in 2004 which had been allocated to him by the Settlement Fund Trustees which facilitated the issuance of a Title Deed to the Deceased on 15/4/2004 by the Land Registrar, Nyahururu after due diligence and that no fraud was involved. The particulars of fraud are equally denied. 7 They are quick to aver that after the death of the late David Ngugi Wachira, the 1st and 2nd Defendants moved the Court in Nakuru High Court Succession Cause No 725 of 2012 for letters of Administration which were not only publicly granted but also conrmed on 4/4/2014. suit premises formed part of the Deceased’s Estate. The grant was never contested nor appealed against. There were no Applications for Revocation, Annulment And/or Rectication. 8. The Defendants aver that the Plainti should have challenged the legality of the Title Deed issued to the late David Ngugi Mwangi on 15/4/2004 during his lifetime. 9. Before the hearing of the suit, the 3rd Defendant died on 10/2/2023 and was substituted with Cecilia Wanjiru Parmuant (his widow). She recorded her Statement on 10/5/2024. 10. The 1st and 3rd Defendants were allowed to le another Defence in place of the earlier one when it was discovered that the proprietor of the rm of Advocates, Waikenya & Co. Advocates who had led the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18348/eng@2025-11-12 2

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earlier one dated 14/9/2015 did not have a Practicing Certicate at the time of ling the Defence. The latter one is dated 4/12/2020 and led in Court 3 days later, on 7/12/2020. 11. The 2nd Defendant seems to have been left out in this Defence and thereafter she stopped appearing in Court. The reasons are not clear. Her Advocate, Ms. Gachiengo Gitau& Co. Advocates were served with the Hearing Notice of 5/2/2023 but neither the 2nd Defendant nor her Advocate turned up in Court on the said date and the case proceeded without her since an Adavit of service had been led in Court. 12. Stanley Njoroge was the 1st witness for the Plainti. He is a Settlement Ocer in the Ministry of Lands and Physical Planning. He testied that the genuine and lawful allottee of the suit property i.e. Nyandarua/Mutonyora/233 is one Pancrasio Mathenji Wachira. The latter’s name appears in the Scheme’s Register. He was issued with a Discharge of Charge on 3/11/1009. The Land Register also contained a Chief’s letter addressed to the area District Ocer requesting for a restriction to be placed on the Land Register and that David Ngugi Mwangi does not appear anywhere as owner or allottee of the said suit land. 13. PW2 – Gabriel Karanja Ndung’u adopted his statement dated 30/7/2014 as his evidence in chief. He testied that the suit land belonged to him having bought the same from Pancrasio Mathenji Wachira and to buttress his case, the Plainti produced the following documents. 1. Copy of Sale Agreement dated 22/7/2008. 2. Copy of allotment letter dated 11/9/1995 3. Copy of Discharge of Charge dated 29/7/2009. 4. Copy of transfer of land dated 3/11/2009. 5. Copies of photographs. 6. Copy of ocial search dated 9/8/2012. 7. Copy of Title Deed dated 15/4/2004. 8. Copy of letter dated 23/5/2013 9. Copy of letter dated 27/6/2013 10. Copy of letter dated 3/3/2014 11. Copy of rectied certicate of conrmation of grant dated 4/4/2014. 12. Copy of Application for consent of land control board dated 22/1/2014 13. Copy of letter of consent dated 23/1/2014. 14. Copy of mutation form dated 13/2/2014. 15. Copy of letter dated 10/6/2014 16. Copy of letter dated 2/7/2014 17. Copy of letter dated 15/7/2014 18. Copy of letter dated 7/10/2014 19. Copy of Application for consent dated 26/2/201 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18348/eng@2025-11-12 3

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14. He repeated the words in his statement dated 30/7/2014 which were in tandem with the contents of his comprehensive Plaint. He said that he is still in occupation of the suit property since 22/7/2008 having developed it extensively. He testied that he paid the sum of Kshs. 370,000/- by installments in respect of the 2 ½ Acres suit land. He further said that none of the Defendants has ever been on the suit land. The Title Deed in the name of the late David Ngugi Mwangi was obtained before the Discharge of charge of the suit land. It was issued on 15/4/2004. The land was discharged on 29/7/2009 and the transfer eected on 3/11/2009. 15. On cross-examination by Mr Mutiso for the 1st and 3rd Defendants, Mr. Ndung’u said that when he bought the land, it did not have a Title Deed. 16. Cecilia Wanjiru Parmuatt then took to the witness stand after the Plainti closed his case and while adopting her written statement dated 15/5/2024, she introduced herself as the uncle of the Late Parmuatt Francis Looremetta who is the 3rd Defendant with a limited grant of letters of Administration issued for purposes of presenting this case. He testied that the late Ngugi Mwangi i.e. the 1st Defendant’s husband was a friend to her late husband and that the 2 have been in physical and actual occupation of the said land since 2000 without any interruption whatsoever and that on 21/2/2006 the late Loormette entered a gentleman’s agreement with the late Ngugi Mwangi where the former advanced the latter a loan of Kshs. 350,000/- and Mr. Mwangi presented the Title Deed for the suit land to Mr. Loormetta as security for the advanced loan. The 2 agreed that should Mr. Mwangi be unable to pay the loan he was to formally transfer the suit land to Mr. Loormetta and the default clause was nally eected. A suit was led being Civil suit No 194 of 2011 for the recovery of the loan but David Ngugi Mwangi died before the matter was determined. But the late Francis Looremetta was named a beneciary in Nakuru High Court Succession Cause No. 725 of 2012 and his share shown in the schedule of distribution. Ms. Parmuat concluded her evidence by saying that when the late Loormetta and the late Mwangi went to the land’s Oce to have the land transferred from the latter to the former, the land Registrar conscated the Title Deed and the transfer could not take place. 17. The witness then produced the following documents: 1. Copy of Agreement between David Ngugi Mwangi & Parmuant Francis Looremetta. 2. Letter from the Ministry of Interior & Coordination of National Government dated 14th April, 2014. 3. Letter from Parmount Francis Loormetta addressed to David Ngugi Mwangi dated 14th December, 2009. 4. Letter of consent dated 23rd January, 2014. 5. Mutation form dated 18th February, 2014. 6. Rectied Certicate of Conrmation of Grant. 7. Forensic document examination Report dated 24th November, 2015. 8. Letter from the Ministry of Lands, Housing & Urban Development dated 2nd July, 2014. 9. Copy of Title with respect to Nyandarua/Mutonyora/233 in the name of David Ngugi Mwangi. 10. Copy of a letter dated 11th January, 2011 from the oce of Provincial Administration & Internal Security. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18348/eng@2025-11-12 4

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11. Copy of David Ngugi Mwangi’s death certicate, and 12. Letter from the Chief-Murungaru Sub location dated 24th April, 2013. 18. On re-examination by Mr. Waiganjo for the Plainti, Mrs. Parmuant said that she could not tell how the late David Ngugi Mwangi had obtained the land which originally belonged to the S.F.T. She further said that she or her late husband never sued the Land Registrar Nyandarua, for conscating the Title Deed in respect of the suit land. she also admitted that she normally doesn’t visit the suit land which is occupied by a number of people whom she doesn’t know and that even Susan Nyambura, the 1st Defendant relocated elsewhere. 19. On re-examination from Mr. Muturi for the Defendants, the witness said that the Agreement of 23/1/2008 between her husband and the late Mwangi talked of a debt and not sale of land. 20. After the close of the Defendants’ case occasioned by failure to produce other witnesses who did not appear in Court, the Court retired to write this Judgment. 21. The Plainti has been able to satisfy this Court how he got the suit land. He bought the 1 Hectare land from one Pancrasio Mathenji Wachira vide Sale Agreement dated 22/7/2008 for Kshs. 370,000 which payment was acknowledged by the said Mr. Wachira. The sale agreement is the 1st document produced by the Plainti. The late Wachira had got the land from the S.F.T having applied for it on 2/8/1995. The land was allocated to him and communicated to him vide a letter dated the 11/9/1995 addressed to the Director of Land Adjudication and Settlement, Nairobi. Although the Discharge of Charge dated 29/7/2009 does not indicate the name of the transferee, the signature on the part of the transferee is that of the late Wachira as appears in the sale agreement referred to above and the Identity Card No. 2568549 is the same as the one in the sale agreement attributed to him. 22. The transfer of the parcel of land dated 3/11/2009 shows that the land is Pancrasio Mathengi Wachira’s who also paid the sum of Kshs. 400/= still for the suit land according to the Transfer /Discharge of charge on 3/11/2009. Mr. Wachira also paid a further Kshs. 2,800/= on 16/3/2011 for the same land. But interestingly, the Certicate of Ocial Search dated 9/8/2012 shows that the land was given to David Ngugi Mwangi on 15/4/2004 and the Title Deed issued the same day, long before the Discharge of Charge. 23. Land in a Settlement Scheme such as this one has its origin from the Settlement Fund Trustees. A letter of allotment is issued by the Trustees after the Ascertainment of the land. Then a Discharge of Charge is sent to the allottee together with a Transfer. It is then that the Land Registrar issues a Title Deed to the allottee. There is a Title Deed for 1 hectare in Nyandarua/Mutonyora/233 issued to David Ngugi Mwangi I.D No. 11523302 on 15/4/2004. The origin of the same has not been established. It seems to have fallen from heaven to the late Mwangi whereas the Plainti has shown how the land was allotted to his Vendor, the late Wachira and who sold the land to him, the Defendants seem to belong to the class that believes that all you need to show on ownership of a parcel of land is only to wave a Title Deed and claim that the land belongs to you. 24. It is trite law that when ownership of property is disputed, it is not enough for the Title holder to dangle an instrument of Title and expect the Court to down its tools. One must establish the root of the Title that the same was acquired legally and validly since whereas Title is conclusive evidence of proprietorship, the same can be challenged on the basis of fraud, illegality, or acquisition of the said https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18348/eng@2025-11-12 5

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Title through a corrupt scheme. In the case of Munyu Maina Vs Hiram Gathiha Maina, Civil Appeal number 239 of 2009 the court held that: “ where a party’s certicate of title is under challenge, it is not enough to wave the instrument of title as proof of ownership but prove the legality of how he acquired the title”. 25. Section 26(1)(a) &(b) of the Land Registration Act, 2012 guides me on the need to protect the sanctity of a Title Deed but limits me where there is darkness: “ The certicate 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 certicate, 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 certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 26. The proviso to this sacred Section has been brought out clearly in the monkeyshines and tomfooleries in this case. There are so many particulars of fraud, illegal procedures in the acquisition of the Title in respect to L.R. NO. Nyandarua/Mutonyora/233. 27. In the absence of showing how the late David Ngugi Mwangi got a Title Deed to the suit land long before the Discharge of Charge, one can only draw only conclusion as to how the Title Deed was obtained, fraud. 28. In the premises it is the Decision of this Court that on a balance of Probabilities, the Plaintis’ case is proved and consequently, my hands are tied and it is indeed my duty to do only one singular thing. Which is? To get recourse to Section 80 of the Land Registration Act, 2012 as follows: 1. 29. Subject to subsection (2), the court may order the rectication of the register by directing that any registration be cancelled or amended if it is satised that any registration was obtained, made or omitted by fraud or mistake. This Court accordingly enters Judgment in favour of the Plainti as prayed for in the Plaint. JUDGMENT DATED AND SIGNED AT NYANDARUA THIS 12TH DAY OF NOVEMBER, 2025. MUGO KAMAU JUDGE In the presence of: C/A Samson. Ms. Wangari for the Plainti. N/A for the Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18348/eng@2025-11-12 6

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