Mwema v Ngunjiri & another

4. She further alleged that the entry and occupation by the 1st Defendant was facilitated by the 2nd Defendant, which fraudulently re-allocated the suit property to the 1st Defendant and issued him with a dierent plot number despite having previously sold and transferred the land to her. According to the Plainti, the said acts amounted to fraud and collusion, resulting in her unlawful dispossession and violation of her proprietary rights. 5. In response, the 1st Defendant led a Statement of Defence in which, save for matters expressly admitted, he denied all the allegations contained in the Plaint. He admitted only the descriptive averments relating to the parties and denied that the Plainti is the lawful owner of the suit property. The 1st Defendant contended that he is the lawful and registered proprietor of the land, which he identied as Plot No. V.17074, now registered as Nairobi/Block 136/10999, having been issued with a Certicate of Lease by the Nairobi District Land Registry on 29th March 2019. He further denied the allegations of trespass and asserted that his ownership was lawful and valid. 6. The 1st Defendant further averred that he purchased the suit property from the 2nd Defendant in the year 2017, following which he took possession and has been in open, continuous, exclusive and uninterrupted occupation of the land. He denied the Plainti’s claim that she purchased the property earlier or that any valid transfer was eected in her favour, terming those allegations as false and misleading. 7. The 1st Defendant also denied all allegations of fraud and particulars of trespass pleaded against him, maintaining that he was a bona de purchaser for value without notice and that he carried out all transactions diligently and lawfully. He therefore prayed that the Plainti’s suit be dismissed with costs and further challenged the jurisdiction of this Court to entertain the matter. Hearing & Evidence a. Plainti ’s Case 8. The matter proceeded for hearing on 19th May 2025, with the Plainti, Veronicah Ndunge Mwema, testifying as PW1. She adopted her written witness statement dated 5th October 2023, together with her list of documents, as her evidence in chief. PW1 testied that she purchased the suit property in 1999 from Kawethei Investment Company, which had earlier acquired the land from the 2nd Defendant, Embakasi Ranching Company Limited. She stated that the property was initially known as Plot No. P 927 and that upon completion of the transfer and payment of all requisite fees, the land was registered in her name and assigned the new plot number C 2608. 9. PW1 further testied that after acquiring the suit property, she took possession, fenced it, carried out developments including construction of a pit latrine, and engaged in agricultural activities, while making regular visits to the land. She stated that in or about the year 2020, she discovered that the 1st Defendant had entered the suit property and commenced construction thereon. 10. Upon confronting him, the 1st Defendant claimed to have purchased the land from the 2nd Defendant and produced documents bearing a dierent plot number, which PW1 asserted demonstrated a fraudulent re-allocation of her land. PW1 testied that a site visit conducted in the company of ocials from the 2nd Defendant and a surveyor conrmed that the suit property belonged to her and had been irregularly re-allocated to the 1st Defendant. She further stated that despite the surveyor’s report placing any dealings on the land on hold, the 1st Defendant proceeded to complete construction on the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18565/eng@2025-12-19 2

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b. Defendant’s Case 11. On the defence side, the 1st Defendant, Peter Gitonga Ngunjiri, testied as DW1. He adopted his written witness statement dated 13th November 2023, together with the documents annexed thereto, as his evidence in chief. DW1 testied that he is the lawful and registered owner of the suit property known as Nairobi/Block 136/10999, which he stated was previously identied as Plot No. V.17074 and also referenced as C 2608. He testied that he purchased the property from the 2nd Defendant, Embakasi Ranching Company Limited, in the year 2017, following which the land was transferred to him after complying with all procedural requirements. 12. DW1 further testied that he was issued with a Certicate of Lease by the Nairobi District Land Registry on 29th March 2019, and that at the time of purchase and registration, there were no encumbrances, cautions, or competing claims over the suit property. He stated that he has been in open, continuous, exclusive, and uninterrupted possession of the land since 2017, during which period he carried out substantial developments including construction of a residential house, erection of a perimeter wall and gate, and planting of trees. DW1 denied all allegations of fraud and trespass leveled against him by the Plainti, asserting that he is a bona de purchaser for value without notice and urged the Court to dismiss the Plainti’s suit with costs. Submissions a. The Plainti ’s Submissions 13. The Plainti led written submissions in which she reiterated that she is the bona de purchaser for value of the suit property, having acquired it in 1999, and that the subsequent allocation and registration in favour of the 1st Defendant amounted to fraud and trespass. Counsel submitted that the evidence demonstrated a case of double allocation by the 2nd Defendant and urged the Court to apply the doctrine of rst in time, rst in right. 14. Reliance was placed on, inter alia, Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR on the doctrine of estoppel, Gitwany Investment Limited v Tajmal Limited & 3 Others [2006] eKLR, and Maalim v Alio & Another [2024] KEELC 3944 (KLR) on priority of competing interests. It was further submitted that the Plainti had proved fraud and trespass on a balance of probabilities and that the Certicate of Lease held by the 1st Defendant was therefore null and void. 15. On the applicable law, the Plainti submitted that the principles governing grant of injunctive relief, as set out in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, had been satised, arguing that she had established a prima facie case, demonstrated irreparable harm, and that the balance of convenience tilted in her favour. Counsel also cited Salim v Cooperative Bank of Kenya Ltd & 2 Others [2024] KEELC 852 (KLR) on fraud in land transactions. The Plainti framed the issues for determination as whether the 1st Defendant exercised due diligence before purchase, whether fraud was established, whether the Plainti was entitled to the reliefs sought, and who should bear the costs of the suit. She urged the Court to allow the suit as prayed and award costs to her. b. The Defendant’s Submissions 16. The 1st Defendant led written submissions in which he urged the Court to dismiss the Plainti’s suit in its entirety. Counsel submitted that the 1st Defendant is the lawful, registered, and indefeasible proprietor of Title No. Nairobi/Block 136/10999, having purchased the property from the 2nd Defendant in 2017 through a diligent and lawful process. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18565/eng@2025-12-19 3

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17. It was argued that the Plainti failed to prove her alleged ownership, having neither called witnesses from Kawethei Investment Company nor tendered conclusive evidence tracing a valid root of title. The 1st Defendant submitted that the evidence showed he conducted due diligence, paid all requisite fees, obtained clearance from the 2nd Defendant’s surveyor, and was lawfully issued with a Certicate of Lease on 29th March 2019, after which he took possession and carried out substantial developments on the land. 18. On the law, the 1st Defendant submitted that he met the threshold of a bona de purchaser for value without notice, relying on Katende v Haridar & Company Limited [2008] 2 EA 173, and that his title was protected under Section 26 of the Land Registration Act. Counsel further argued that allegations of fraud must be specically pleaded and strictly proved, citing Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR and Kinyanjui Kamau v George Kamau [2015] eKLR, and submitted that the Plainti had failed to discharge this burden. 19. It was contended that the Plainti did not meet the threshold for grant of injunctive relief as set out in Giella v Cassman Brown & Co Ltd [1973] EA 358, and that the balance of convenience favoured the 1st Defendant, who was in occupation and possession. The 1st Defendant identied the key issues as whether he was a bona de purchaser, whether fraud was proved, whether the Plainti was entitled to the reliefs sought, and who should bear costs, and prayed that the suit be dismissed with costs. Analysis and Determination 20. Upon consideration of the pleadings, the evidence on record and the submissions led by the parties, the issues that arise for determination are: a. Whether the Plainti has proved lawful ownership of the suit property known as Plot No. C 2608; b. Whether the 1st Defendant trespassed onto the suit property; and c. Whether the Plainti is entitled to the reliefs sought. 21. The Plainti’s case is that she purchased the suit property in the year 1999 from Kawethei Investment Company, which had earlier acquired the land from the 2nd Defendant, Embakasi Ranching Company Limited. She testied that the land was initially identied as Plot No. P 927 and was later transferred to her and renumbered as C 2608, after which she took possession and exercised rights of ownership. 22. In support of her claim, the Plainti produced documents tracing the history of the suit property from the 2nd Defendant through Kawethei Investment Company to herself. She also relied on evidence showing that she took possession of the land, fenced it and carried out developments thereon prior to the dispute. The 1st Defendant’s case is that he purchased the same land from the 2nd Defendant in 2017 and was subsequently issued with a Certicate of Lease in respect of Nairobi/Block 136/10999 in March 2019. He contended that he is a bona de purchaser for value and denied any allegation of fraud or trespass. 23. The law on proof of ownership of land is settled. Section 26(1) of the Land Registration Act provides that a certicate of title shall be taken as prima facie evidence of ownership, subject only to challenge on grounds of fraud, misrepresentation, or illegal or unprocedural acquisition. 24. In Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna & Another [2013] eKLR, the Court held that a title may be impeached where it is shown that it was acquired through fraud or through an illegal or unprocedural process. Where competing claims exist, the Court must interrogate the root of title. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18565/eng@2025-12-19 4

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25. This Court is guided by the reasoning in Caroline Awinja Ochieng & Another v Jane Anne Mbithe Gitau & 2 Others [2015] eKLR, that ownership of unregistered or informally registered land is established by tracing a consistent and unbroken chain of documentary evidence leading to a good root of title. 26. In the present case, the Plainti demonstrated that her interest in the suit property arose long before the alleged purchase by the 1st Defendant. The evidence shows that the 2nd Defendant had already disposed of the suit property to the Plainti and therefore lacked capacity to lawfully re-allocate the same land to the 1st Defendant. 27. The Court nds that the subsequent allocation and registration in favour of the 1st Defendant amounted to a double allocation, which could not defeat the Plainti’s prior interest. Applying the principle of rst in time, rst in right, the Plainti’s claim takes priority. 28. Trespass is dened in Black’s Law Dictionary as an unlawful entry upon land belonging to another. Section 3 of the Trespass Act criminalises entry upon private land without the consent of the lawful owner. 29. In Rhoda S. Kiilu v Jiangxi Water & Hydropower Construction Kenya Limited [2019] eKLR, the Court held that trespass occurs where a person intrudes upon land in the possession of another without lawful justication, and that trespass is actionable per se. 30. The evidence before Court shows that the 1st Defendant entered the suit property and constructed permanent structures thereon without the Plainti’s consent and despite notice of her claim. The Court therefore nds that the 1st Defendant trespassed onto the Plainti’s land. 31. Having found that the Plainti is the lawful proprietor of the suit property and that trespass was proved, the Court is satised that the Plainti is entitled to the reliefs sought. Final Orders For the foregoing reasons, the Court nds that the Plainti has proved her case on a balance of probabilities. Consequently, the Plaint dated 25th August 2023 succeeds and judgment is entered for the Plainti against the Defendants as follows: a. A declaration be and is hereby issued that the Plainti is the lawful and bona de owner of the suit property known as Plot No. C 2608, Embakasi. b. A permanent injunction be and is hereby issued restraining the 1st and 2nd Defendants, whether by themselves, their servants, agents or any other person acting on their behalf, from entering, occupying, trespassing upon, constructing on, selling, transferring, alienating, or in any manner whatsoever interfering with the Plainti’s quiet possession and proprietary rights over the suit property known as Plot No. C 2608, Embakasi. c. An order of vacant possession be and is hereby issued directing the 1st Defendant to vacate and hand over vacant possession of the suit property known as Plot No. C 2608, Embakasi, to the Plainti forthwith. d. In default of compliance with order (c) above, eviction orders shall issue and be enforced with the assistance of the Ocer Commanding Station (OCS), Embakasi Police Station. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18565/eng@2025-12-19 5

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e. Costs of the suit are awarded to the Plainti against the Defendants jointly and severally. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 19TH DAY OF DECEMBER, 2025. MOHAMMED N. KULLOW JUDGE Judgement delivered in the presence of: Mr. Kinuthia H/B for Mr. Kahugi for the Plainti Ms. Ranoda for the Defendant Philomena W . Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18565/eng@2025-12-19 6

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