Rinkanya v Chief Lands Registrar & 3 others; Directorate of Criminal Investigation

d. Interests on (c) at Courts’ rates; e. Any appropriate Injunctive relief; f. Costs of this suit; and g. Other remedies this Honourable court may deem t. 2. The Plainti’s case, as averred in the Plaint, is that he is the bona de registered proprietor of all that parcel of land known as KJD/Kitengela/4462 (hereinafter referred to as "the Suit Property"). He pleads that he acquired ownership of the Suit Property in the year 1993 from one Simon Kamau Njau (now deceased) for a consideration of Kshs. 125,000, which was duly paid and acknowledged. 3. The Plainti states that in the year 2015, he undertook a routine search at the Kajiado Land’s Registry (managed by the 3rd Defendant) to ascertain the status of the Suit Property. The results of the said search revealed that the Suit Property had been fraudulently transferred to the 1st Defendant sometime in the year 1998. 4. Aggrieved by these ndings, the Plainti avers that he reported the matter to the 3rd Defendant and subsequently to the Interested Party (Directorate of Criminal Investigation), specically Ocer an ocer named Ndegwa of DCI Kajiado, who recorded statements and commenced investigations. 5. It is the Plainti’s contention that despite presenting the original title to the 2nd and 3rd Defendants and despite the lapse of ve (5) years since the commencement of investigations, the matter remains unresolved. The Plainti further contends that an application to register a Restriction over the Suit Property made in 2018 was ignored by the Lands’ Registry ocials. 6. Consequently, the Plainti particularizes fraud on the part of the Defendants, citing inconsistent entries in the Green Card, the necessity of applying for a restriction, and manifest reluctance by the registry ocials to resolve the dispute. He avers that he has suered anguish and lack of use of the Suit Property due to the actions of the Defendants. 7. The 1st Defendant, Georey Mwaura Njoroge, though duly served with the summons to enter appearance and the pleadings herein, did not enter an appearance, nor le a defence, or otherwise participate in these proceedings in any way. 8. The 2nd, 3rd, and 4th Defendants (hereinafter referred to as "the State Defendants") entered appearance and led a joint Statement of Defence dated in the year 2022. In their defence, they generally denied the allegations set out in the Plaint, save for the descriptions of the parties. 9. Specically, the State Defendants vehemently denied that the Plainti is or ever was the registered proprietor of the suit property known as Kajiado/Kitengela/4462 and put the Plainti to strict proof thereof. They further denied the allegations of fraud and the particulars of fraud set out in the Plaint, asserting that they exercised due diligence in their duties. 10. In the alternative, and without prejudice to their general denial, the State Defendants averred that if the suit property was indeed registered in the name of the 1st Defendant, such registration was based on documents presented to the 2nd and 3rd Defendants’ oces which were believed to be genuine. They contend that they performed their statutory duties as prescribed by law and without any unprofessionalism. 11. Further, the State Defendants pleaded that should the Court nd them culpable for the registration of the 1st Defendant, they would seek indemnity against the 1st Defendant under Order 1 Rule 24 of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18606/eng@2025-12-18 2

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Civil Procedure Rules. They aver that any loss suered by the Plainti was due to the misrepresentation of the 1st Defendant, for which he should be held solely liable. 12. Consequently, the 2nd, 3rd, and 4th Defendants prayed that the Plainti’s suit against them be dismissed with costs. Analysis of Evidence 13. At the hearing of this suit, the Plainti, Fredrick Gitonga Rinkanya, testied as PW1. He adopted his witness statement dated 1st April 2020 as his evidence-in-chief and produced a list of documents dated 9th April 2020 which were marked as Exhibits ‘PE 1 to 6’ as listed. 14. It was the Plainti's testimony that he is the bona de owner of the suit property, KJD/Kitengela/4462, having purchased the same from one Simon Kamau Njau in the year 1993. Crucially, the Plainti produced the original title deed issued on 23rd June 1993 in his name. He testied that he has remained in possession of the suit property and even constructed a structure thereon. 15. The Plainti’s evidence was that in 2015, intending to fence the land, he conducted a search at the Kajiado Lands Registry only to discover that the property had been transferred to the 1st Defendant, Georey Mwaura Njoroge, on 2nd December 1998 (Entries No. 4 and 5). He categorically stated that he does not know the 1st Defendant, has never met him, and never entered into any sale agreement or transaction to transfer the suit property to him. He further averred that he never surrendered his original title to the Registry to facilitate any such transfer. 16. On cross-examination by the State Counsel, the Plainti maintained that he paid the requisite stamp duty through his advocate (now deceased) and took possession immediately after the purchase in 1993. He explained that his inability to produce the initial sale agreement was due to the demise of his former advocate but maintained that the process was procedural. He further testied that upon discovering the irregularity in 2015, he lodged a restriction on the title and reported the matter to the Directorate of Criminal Investigations (DCI), though the outcome of those investigations remains unknown to him. He claried that he halted further developments on the land due to the apprehension caused by the discovery of the parallel title. 17. The 1st Defendant did not enter appearance nor oer any evidence in rebuttal. 18. The 2nd and 3rd Defendants called one witness, Rosemary Mwangi (Land Registrar, Kajiado Central and South), who testied as DW1. She adopted her witness statement dated 23rd May 2022 and produced the Green Card for the suit property. 19. DW1 conrmed from the Green Card that the Plainti was indeed registered as the proprietor on 23rd June 1993 (Entry No. 2). She further conrmed that the records reect a transfer to the 1st Defendant on 2nd December 1998. However, in a signicant admission during her testimony, DW1 stated that she was unable to trace any supporting documents in the parcel le that would ordinarily legitimize such a transfer. Specically, she could not nd the application for Land Control Board consent, the consent itself, valuation for stamp duty forms, stamp duty receipts, spousal consent, or the surrendered original title from the Plainti. 20. DW1 further testied that the Green Card contains an annotation after Entry No. 6 indicating “Fraud Suspected,” which she stated was entered out of an abundance of caution. She also noted Entry No. 7, a restriction placed pursuant to a letter by the Chief Land Registrar. 21. During cross-examination by Counsel for the Plainti, DW1 admitted that while the Registry generally presumes documents presented for registration are genuine, the absence of the supporting https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18606/eng@2025-12-18 3

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documents in the parcel le coupled with the Plainti’s retention of the original title suggested an irregularity. She candidly admitted that, from the records, "there is an element of fraud." Analysis of Submissions 22. At the close of the hearing, the Plainti led his written submissions dated 28th August 2025. The Plainti identied four main issues for determination: whether the Plainti lawfully acquired the suit property; whether the registration of the 1st Defendant was fraudulent; whether the Defendants are liable for loss and damage; and whether the Plainti is entitled to the reliefs sought. 23. On the rst issue, the Plainti submits that he is the undisputed proprietor of land parcel KJD/ Kitengela/4462, having purchased the same from the late Simon Kamau Njau in 1993. Counsel for the Plainti relies on the original Title Deed produced in court and Entries No. 2 and 3 of the Green Card as conclusive evidence of registration and lawful possession. 24. Placing reliance on Sections 24 and 25 of the Land Registration Act, the Plainti argues that he was clothed with absolute ownership rights, including the right to quiet possession. To buttress this position, the Plainti cites the Supreme Court decision in Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 39 (KLR), which armed that a properly registered title is indefeasible unless obtained through fraud. 25. Regarding the 1st Defendant’s title, the Plainti submits that the registration in 1998 was procured through fraud. Counsel points out that the 1st Defendant did not participate in the proceedings to explain how he acquired the title. 26. The Plainti relies heavily on the testimony of the Land Registrar (DW1), who admitted that the parcel le was missing, meaning the underlying instruments (transfer forms, consents) could not be veried. The Plainti argues that his continued possession of the original title is irreconcilable with a lawful transfer to the 1st Defendant. 27. Citing the case of Gitwany Investment Limited v Tajmal Limited & 2 Others [2006] eKLR, the Plainti submits that where two titles exist for the same land, the title earlier in time prevails, while the subsequent one is invalid. Further reliance is placed on Arthi Highway Developers Limited v West End Butchery Limited & 6 Others, where the Court of Appeal held that fraud vitiates title even under the principle of indefeasibility. The Plainti contends that the 1st Defendant did not obtain a transfer from the registered proprietor but through fraudulent means, rendering the transfer null and void. 28. On the standard of proof, the Plainti submits that while allegations of fraud must be strictly proved, the standard is not "beyond reasonable doubt" but rather higher than a mere "balance of probabilities." The Plainti cites Orleny & Another v National Bank of Kenya [2024] KEHC 6002 (KLR) to argue that he has discharged this burden by showing the absence of transfer documents and the existence of parallel titles. 29. Finally, regarding loss and damage, the Plainti submits that he has been deprived of the right to develop his land since discovering the fraud in 2015. He argues that the uncertainty surrounding the title caused him nancial loss and emotional strain, violating his constitutional right to property under Article 40. Consequently, he prays for general damages, the cancellation of the 1st Defendant's title, and costs of the suit. 30. None of the defendants duly led their submissions within the prescribed timelines. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18606/eng@2025-12-18 4

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Issues for Determination 31. Having considered the pleadings, the evidence on record, and the submissions by counsel, this Court frames the following issues for determination: I. Whether the Plainti is the valid and absolute proprietor of land parcel KJD/Kitengela/4462; II. Whether the registration of the 1st Defendant as the proprietor of the suit property was fraudulent, unprocedural, and illegal; and III. What reliefs is the Plainti entitled to? Analysis and Determination 32. The gravamen of the Plainti’s case is that the registration of the 1st Defendant, Georey Mwaura Njoroge, as the proprietor of Land Parcel Number KJD/Kitengela/4462 was procured through fraud. The Plainti contends that he never transferred the suit property to the 1st Defendant and that the entries in the register are a result of fraudulent procedural machinations. 33. The law regarding the pleading and proof of fraud is stringent. It is not sucient to merely allege fraud; the specic acts constituting the fraud must be particularized in the pleadings. On this requirement, the Court of Appeal in Vivo Energy Kenya Limited v. Maloba Petrol Station Limited & 3 Others, Civil Appeal No. 21 of 2014; [2015] eKLR, delivered itself thus: “ Where fraud is alleged, it must be specially pleaded and particulars thereof given. That is what is required by Order 2 rule 10 of the Civil Procedure Rules, 2010....” 34. This position was reiterated in the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows: “ It is well established that fraud must be specically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 35. In the instant case, the Court nds that the Plainti complied with these requirements. In paragraph 7 of the Plaint, the Plainti specically particularized the fraud, citing inter alia the existence of a parallel title, the lack of consideration, and the unprocedural nature of the registration. 36. Having settled the issue of pleadings, the Court turns to the standard of proof. Allegations of fraud are grave and carry serious consequences. Consequently, the standard of proof required to establish fraud is higher than that in ordinary civil litigation. As was held in Central Kenya Ltd v. Trust Bank Limited & 4 Others, Civil Appeal No. 215 of 1996; [1996] eKLR, the appellate court determined: “ The appellant has made vague and very general allegations of fraud against the respondents. Fraud and conspiracy to defraud are very serious allegations. The onus of prima face proof was much heavier on the appellant in this case than in an ordinary civil case.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18606/eng@2025-12-18 5

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37. Similarly, regarding the standard of proof, this Court in the case of Kinyanjui Kamau vs George Kamau [2015] eKLR, expressed itself as follows: “ …It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: “...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.” 38. Guided by the authorities cited above, has the Plainti discharged this "heavier onus"? This Court answers in the armative. The evidence on record reveals a glaring and unexplained anomaly: the Plainti holds the original title deed/certicate of tile issued in 1993, yet the 1st Defendant was registered as proprietor in 1998. 39. The Land Registrar (DW1), in a candid admission, testied that the parcel le for the suit property is missing and that there are absolutely no documents to support the 1st Defendant’s registration. There is no instrument of transfer, no Land Control Board consent, no evidence of stamp duty payment, and no surrender of the Plainti’s original title. 40. While fraud should not be inferred lightly, the total absence of the statutory documents required to eect a transfer, coupled with the Plainti’s retention of the original title, points irresistibly to the conclusion that the 1st Defendant's title was procured unprocedurally. The 1st Defendant, having been served, failed to appear to oer any defence or explanation for his title. His silence, in the face of such damning evidence from the Registrar, is telling. 41. Accordingly, this Court imputes fraud against the 1st Defendant. A title that appears on the register without any underlying legal foundation or documentation cannot be allowed to stand to the detriment of a registered proprietor who holds a valid title. The 1st Defendant’s title is a product of fraud and is hereby declared null and void. 42. I must be quick to point out that under section 26 of the Land Registration Act, fraud is not the only ground upon which a tile maybe impeached. Where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme, it may be challenged. The evidence of the Land Registrar discloses that the 1st Defendant’s title was obtained illegally and unprocedurally without adherence to statutory requirements. 43. The Plainti has sought general damages for the inconvenience and anxiety caused by the Defendants’ actions. The Court recognizes that the Plainti’s proprietary rights under Article 40 of the Constitution were interfered with, as he was unable to develop or deal with the land since discovering the fraud in 2015. 44. However, the Court notes that the Plainti was not dispossessed of the suit property and remained in occupation throughout the dispute. The loss suered was primarily the anxiety of the cloud on his title rather than the loss of the land itself. 45. In the circumstances, I am inclined to award nominal damages to vindicate the Plainti’s rights. I therefore award the Plainti nominal damages in the sum of Kshs. 200,000/= (Kenya Shillings Two Hundred Thousand Only). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18606/eng@2025-12-18 6

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46. In the upshot, the Plainti has proved his case on a balance of probabilities. Judgment is hereby entered for the Plainti against the Defendants jointly and severally in the following terms: a. A Declaration is hereby issued that the transfer of Land Parcel Number KJD/Kitengela/4462 and the registration of the same in the name of the 1st Defendant, Georey Mwaura Njoroge, was irregular, unlawful, fraudulent, and therefore null and void ab initio. b. AN ORDER is hereby issued directing the 3rd Defendant (Land Registrar, Kajiado) to cancel the registration of the 1st Defendant from the title of land Parcel Number KJD/ Kitengela/4462 and to rectify the register to revert ownership to the Plainti, Fredrick Gitonga Rinkanya. c. General Damages of Kshs. 200,000/= are awarded to the Plainti, payable by the 1st Defendant with interest at court rates from the date of this judgement until payment in full. d. THE COSTS of this suit are awarded to the Plainti against the 1st Defendant. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 18TH DAY OF DECEMBER 2025. M.D. MWANGI JUDGE In the virtual presence of: Mr. Nelson Matheka for the Plainti N/A by the Defendants Court Assistant: Mpoye https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18606/eng@2025-12-18 7

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