Ngugi v Platinum Stac Estates Limited & 6 others

1) The Plaintiff sued the Defendants vide a Plaint dated 21/12/2022 and an amended Plaint dated the 27/11/2023 and filed on even date seeking the following orders:a) A declaration that the Plaintiff is the bona-fide and legal owner of Land Parcel No. RUIRU EAST BLOCK 1(GITHUNGURI) 792 also known as RUIRU EAST BLOCK 1 (GITHUNGURI) T. 792 b) That a permanent injunction be issued as against the 1st, 2nd and 3rd and 4th Defendants whether by themselves, assigns, relatives, employees, servants or anyone else claiming through them from trespassing, laying any claim, disposing, constructing, developing or depositing any building materials or in any other manner interfering with the Plaintiffs RUIRU EAST BLOCK 1 (GITHUNGURI) 792 also known as RUIRU EAST BLOCK 1(GITHUNGURI) T.792 c) That the honorable Court do issue an eviction order to the 1st, 2nd, 3rd and 4th Defendants by themselves, assigns, relatives, employees, servants or anyone else claiming through it land parcel No. RUIRU EAST BLOCK 1 (GITHUNGURI) 792 also known as RUIRU EAST BLOCK 1(GITHUNGURI) T.792 and demolition order of the supervision illegal and structure demolition thereon order of with the the illegal structure thereon with the supervisions of RUIRU OCS or the area in charge provincial administrations. ELC NO. E004 OF 2023 2|Page

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d) That the land registrar be ordered to cancel the Defendants title deeds and all entries on land parcel No. RUIRU EAST BLOCK 1(GITHUNGURI) T.792 and the subsequent green card ordered closed. e) Cost and interests of the suit. 2) The Plaintiff avers that she is a member of Githunguri Constituency Ranching Company Limited and that she is the absolute registered owner of land parcel No. RUIRU EAST BLOCK 1 (GITHUNGURI) 792 also known as RUIRU EAST BLOCK 1(GITHUNGURI) T.792 (hereinafter called the “suit land”). That she had a Lease Certificate processed in her favour way back on 12/05/2008 but had to surrender the same at Ruiru Land’s office for the processing of a free hold title deed and the same was issued on 23/08/2019. 3) 2nd Defendant being member No 1740 and the owner of plot No 1144 having been allocated on the 10/1/1989. That a title was issued in her favour on the 6/12/2013. 4) The Plaintiff averred that the 1st, 2nd, 3rd and 4th Defendants illegally started laying claim over the suit land and equally proceeded to construct a residential plot on the land thus taking possession of the land. 5) The Plaintiff denies having sold the land and neither does she co-own it with the 1st, 2nd, 3rd, 4th, 6th and 7th Defendants. Further that despite the 7th Defendant having been served he did not enter on record. ELC NO. E004 OF 2023 3|Page

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6) That the act of trespass by the Defendants has caused damage due to putting up illegal structures and building a permanent house these acts being fraudulent. 7) The particulars of fraud on the part of the Defendants are stated as:a) Encroaching or invading the Plaintiff’s parcels of land without consent, permission or authority; b) Building a residential house thereon without the Plaintiff’s authority or permission; c) By the 1st, 2nd, 3rd, and 4th Defendants failing to explain how they received or got themselves as the owners of the suit plot; d) Claiming ownership of the suit land despite having evidence of knowledge that it acquired the same fraudulently or from people without authority or incapable selling; e) By the 5th Defendant approving construction of residential/dwellings houses contrary to the law of physical planning; f) Claiming ownership from people who are not members of Githunguri Ranching; g) By the 6th and 7th Defendant purporting to owner the suit land without the requisite documents from the Company being share receipts, balloting receipts, share certificate amongst other documents; ELC NO. E004 OF 2023 4|Page

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h) By the 6th Defendant not being in the register of the Company yet laying claim on the land thereby defrauding the Plaintiff of the land since she is the bona-fide owner of the same; i) By the 5th Defendant without any investigation, justification and unprofessionally issuing the 6 th, 7th and 1st Defendant with title thereby double allocating the land. 8) On their part the 1st, 2nd, 3rd, and 4th Defendant filed a joint Statement of Defence and Counter-claim 21/12/2023, and claimed that the suit filed by the Plaintiff was frivolous since the 1st Defendant is the owner of the suit property known as RUIRU EAST BLOCK 1/ T.792. They denied being aware of the suit property registration No. RUIRU EAST BLOCK 1 (GITHUNGURI)792 also known as RUIRU EAST BLOCK 1(GITHUNGURI) T.792 which they stated does not exist on paper nor on the ground. 9) They (1st, 2nd, 3rd and 4th Defendants) averred that they are the registered owners of RUIRU EAST BLOCK 1/T.792 measuring 0.0511 Ha. both on paper and on the ground which they state the 2nd Defendant acquired from the 7th Defendant who is the vendor of the suit property on 10/05/2019 having conducted due diligence at a cost of Kesh 17,300,000 as the purchase price paid in full. The suit property was transferred and issued to the 7th Defendant Vematech Holdings Limited on 20/07/2018. ELC NO. E004 OF 2023 5|Page

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10) That to enhance the validity of the vendor’s title deed the Defendants averred that there was an official search of the suit property dated 10/04/2019 which confirmed Vematech Holdings Limited as the registered proprietor of the suit property, which confirmed both the title and the size of the suit property. From the official search the Defendants also requested the green card which showed that the suit property was first registered on 15/01/2003 to the Government of Kenya and on the same day it was transferred to Pauline Wangui Kimunyo. 11) That a Letter of Consent from the Land Control Board was issued on 14/05/2019 following an application dated 25/04/2019 allowing the sale of the suit property from Vematech Holdings Limited to the 2 nd Defendant which was then registered from the 7th Defendant to Anne Nyambura Kamau on 12/06/2019 after paying stamp duty of Kesh 692,040.00. That a search at Ruiru Land’s Office dated 6/09/2019 confirmed that the 2nd Defendant was the registered proprietor. 12) It is the averment of the 2 nd Defendant that on 21/12/2020 the 2nd Defendant transferred her interest in the suit property to the family Company Platinum Stac Estates Limited where she is a shareholder with her two children, 3 rd and 4th Defendants. 13) That on 21/12/2020 the 1st Defendant was registered as the absolute proprietor of the suit property thus the Plaintiff’s ELC NO. E004 OF 2023 6|Page

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claim is for parcel RUIRU EAST BLOCK1(GITHUNGURI)792 while the 1st Defendant’s title deed is for RUIRU EAST BLOCK 1/T.792 and there is no evidence to prove that the two title numbers relate to the same parcel of land. 14) It is the contention of the Defendants that since they were not parties to MCL&E No. 83 of 2020 they cannot be influenced by the outcome despite their being proprietors of the suit property in the year 2020. 15) At the same time the 1st Defendant reiterated the averments in the joint Statement of Defence in the Counterclaim and stated that having been registered as the absolute proprietor of RUIRU EAST BLOCK 1/T.792 and this was confirmed vide the Certificate of Official Search dated 26/10/2022. Being the registered proprietor of the suit property the 1st Defendant sought; and obtained approval of Development Permission Change of User from the County Government of Kiambu and commenced construction. 16) That at the time of filing of the suit the construction was at the 2nd floor. Further that the Land Registrar, Ruiru did issue two green cards and confirmed that there are two separate titles referring to two different areas namely RUIRU EAST BLOCK 1/T.792 and RUIRU EAST BLOCK1(GITHUNGURI)792 the latter being registered in the Plaintiff’s names. 17) Based on the issues raised by the 1st Defendant, it accuses the Plaintiff of fraud and illegal attempt to deprive it ELC NO. E004 OF 2023 7|Page

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of its land. The particulars of fraud and illegality have been itemized as: a) Obtaining a questionable title deed namely Ruiru East Block 1(Githunguri)792 also known as Ruiru East Block 1(Githunguri)T. 792. b) Fabricating false documents namely lease and title deeds registered as Ruiru East Block 1(Githunguri)792 also known as Ruiru East Block 1(Githunguri)T.792. c) Presenting false document to the Court and Lands Registry to the effect that she was the one eligible to be registered as absolute proprietor of the suit property d) Deceiving the Lands Registrar into believing that she was actually the owner of the suit property namely Ruiru East Block 1/t.792 e) Concealing Registrar material regarding facts the from status the of Land the suit property f) Misrepresenting herself to the Courts and lands office as the Bonafide owner of the suit property namely Ruiru East Block 1/T.792 g) Processing and obtaining Title deeds for Ruiru East Block 1 (Githunguri)792 also known as Ruiru East Block 1/T.792 registered in the names of the 1st Defendant ELC NO. E004 OF 2023 8|Page

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h) Unlawfully asserting rights of ownership of plot no. Ruiru East Block 1/T.792 registered in the names of the 1st Defendant. 18) The 1st Defendant avers that the block of plots on the same line as the 1st Defendants are all registered with a “T” meaning it connotes town plots and not with “Githunguri” as alleged. So the Plaintiff has no right to claim the suit property. Thus the 1st Defendant in the Counter-claim prays for: 1. A declaration that the 1st Defendant is the lawful and rightful registered owner of LR No. Ruiru East Block 1/T792 at the Land Registry Ruiru and on the Ground and that the Plaintiff is a Trespasser of the same. 2. That this Honorable Court do issue a Permanent injunction restraining the Plaintiff whether by itself, its agents encroaching upon trespassing upon or and/or servant from harassing, evicting, in manner any other whatsoever interfering with the plot of land known as LR No. RUIRU EAST BLOCK 1/T.792. 3. Compensatory Damages for loss of use and income of the suit property from the date of filing. 4. Damages in terms of payment of the Loan interest and costs calculated at Kesh 746,369 ELC NO. E004 OF 2023 9|Page

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per month from the date of institution of the suit until the determination herein. 5. That the 1st Defendant be awarded the costs of the suit and the Counter-claim. 19) The 5th Defendant/Respondent filed a Statement of Defence dated 01/02/2023 and denied all the averments in the Plaint and stated that the Land Registrar does not approve construction of residential/dwelling houses since that is the work of the Physical Planning Department of the County Government and not the Ministry of Lands. It is the 5 th Defendant’s prayer that the suit against the 5 th Defendant be dismissed with costs. Plaintiff’s Case 20) PW 1 Jane Wambui Ngugi, relied on her Witness Statement dated 21/12/2022, as her evidence in chief. She also produced her List of Documents of even date in support of her case. The documents contained in the said Lists of Documents as PExb (a)- (s). PW 1 testified that she was allocated the suit property Ruiru East Block 1 (Githunguri)792 also known as Ruiru East Block 1/T.792 by Githunguri Constituency Ranching Company Ltd. 21) That her lease was processed on 12/05/2008 and that she was issued with a freehold title on 23/08/2019. That she discovered that the 1st, 2nd, 3rd and 4th Defendants had started construction on her suit property in December 2022 and she reported ELC NO. E004 OF 2023 to the Police. That officials from Githunguri 10 | P a g e

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Constituency Ranching Company Limited assured her that the suit property belonged to her since some titles carried the “T” and others did not but what matters was the block number and in her case it was Block Number 1. 22) On cross examination, PW1 testified that there was no “T” in her title although her lease document bore the letter “T”. She stated that the green card which she produced as her documents at page 137 bore her name. That the title for the 1st Defendant produced at page 51 was issued on 21/12/2020 and the register was opened on 15.1.2003 with the first registered person being Pauline Wangui Kimunyo. The next person to purchase the suit property was Vematech and lastly Stac Estate Limited. 23) She testified that although the plot was hers she had no green card and that the green cards produced at pages 92101 show that each bore the letter “T” like T 784, T785 and T797. 24) Upon further cross-examination by Counsel for the 5 th Defendant Ms. Ndundu, she testified that she had a Share Certificate produced at page 23 No. B2406 and it was for 100,000 shares which translate to ¼ of an acre and the transfer was for Certificate No. 4226. She stated that it was her father who balloted for the Share Certificate although she did not know his Share Certificate number. 25) She also told the Court that at page 21 she had produced receipts which show that she paid for the plot. That the first ELC NO. E004 OF 2023 11 | P a g e

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receipt show that it was for transfer of Quarter No. 96 which was ¼ share of the plot but she also stated that she did not have the Share Certificate of the said plot No. 96. 26) She further testified that the Certificate of Lease at page 24 is for parcel No. Ruiru East Block 1/T.792 Githunguri and that it is for Jane Wangui Ngugi dated 12/05/2008 and that this is the document that was used to process her title. That she was told that letter “T” was removed because the plots were not for Town area. 27) She testified that she had presented a surrender document in Court. That she sued Vematech, Ruiru Registrar and AG in a matter she filed in the Magistrate’s Court being SPM MCLE No. 83 of 2020 and that in the said suit it was parcel RUIRU EAST BLOCK1 (Githunguri)792 that she was fighting for. Further that the Judgment indicate that the title for the said suit property has been cancelled. She further told the Court that she used to plough the suit property although she did not have title to the said property. 28) On re-examination, she testified that her ballot is R/W No. 96 but that on her List of Documents it shows as R/W 98. She referred to the document at page 38 and stated that the register at that page show the ballot as No. 96. Further that the transfer of Share Certificate No. 4426 was from her father and her Certificate of Lease showed her title to be EAST BLOCK T. 792. From her evidence she stated that she took her ELC NO. E004 OF 2023 12 | P a g e

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lease to Githunguri Ranching Company although she has no surrender document to support her averment. 29) She told the Court that her father gave her his shares and she continued to pay for them and that she paid Kesh 50,000 but that she had no document to support her assertion and claim for making the payment. 30) PW 2 John Maina Mburu adopted his Witness Statement dated 9/04/2024 as his evidence in chief. He stated that he is the Chairman of Githunguri Ranching Constituency Company Limited. 31) the Upon cross examination, he testified that he has been Chairman of Githunguri Ranching Company since 12/09/2009. That the title for Pauline Kamau Njoroge was issued before he became the Chairman. He further stated that he is the one who issued the clearance on 23/08/2019 and that the 2nd Defendant had been issued with the title on 12/06/2019. 32) He testified that the clearance was issued two months after the title had been issued. He also told the Court that he had a plot almost 7 plots from the subject property to which he produced its green card which is at page 88 of the 1 st Defendant’s bundle it refers to parcel No. Ruiru East Block 1/T 782. He stated that the building on the suit property is what was constructed by the Defendants. He also told the Court that he never brought Jane to Court and neither has he met the 2nd Defendant. ELC NO. E004 OF 2023 13 | P a g e

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33) On further cross-examination he stated that he had not filed any document to show who was the owner of Share number 4226. He also stated that he could not recall the Share Certificate number of the father of the Plaintiff. That the Plaintiff became a Shareholder in 1989 and that she was on the ballot register but not on the membership register. 34) He testified that although there was auditing of the ballot register the alterations made were not counter-signed by the parties that did the audit. He told the Court that Certificates of Lease were issued by the Ministry of Lands as they referred to the allottees of Githunguri Ranching Company Limited. Further that the Plaintiff’s lease was processed in 2007 and that it had letter “T” when she surrendered the Certificate of Lease for title processing. 35) He told the Court that initially titles had letter “T” shown on the title document but this was changed because it was giving members difficulty in securing loans. It was his testimony that this was done upon the advise by the Registrar Ministry of Lands. He however did not have a letter from the Ministry or minutes recorded between the Ministry and Githunguri Ranching to support his claim. He stated that the Company issued two Clearance Certificates but he was not aware that the Defendant had a title. 36) On re-examination he testified that the plot with or without letter “T” refer to the same suit property. That plots started getting letter “T” but the maps lacked support from ELC NO. E004 OF 2023 14 | P a g e

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Survey of Kenya who then advised Githunguri Ranching to remove the letter “T”. He stated that he issued another clearance because between 1990-2012 processing of titles was through Commissioner of Lands so it was not the Githunguri Ranching Company dealing with registration of titles except for issuance of Clearance Certificate which introduced the allottees to the Ministry. 37) He stated that the area where the suit parcel is situate is a freehold and not leasehold area. He confirmed to the Court that balloting cannot happen without a Share Certificate and so the Plaintiff’s father transferred the Share Certificate to the Plaintiff which enabled her to then ballot. 38) Further, he stated that before 2012 one had to get a Clearance Certificate from Githunguri Ranching Company Limited and then they had to take it to the District Land Registrar, and finally to the Commissioner for Lands. However, after 2012 the Green Cards would be opened in the name of the Land Companies and they would process title on behalf of the Company. 39) It was his testimony that he had never issued a title in the name of the Defendants. With that the Plaintiff closed her case. Defence Case 40) DW 1 Chiira Chris adopted his Witness Statement as his evidence in chief. Upon cross-examination he testified that he oversaw the agreement between the 1st and 7th Defendants. ELC NO. E004 OF 2023 15 | P a g e

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He stated that he realized, there was a title in the name of the Plaintiff and raised the issue with the Advocate of Vematech. By the time of raising the concern, a deposit of Kesh 1,073,000 had been paid. He however told the Court that he was not aware that the property belonged to Githunguri Ranching Company Limited. 41) On cross-examination, he stated that he transferred the suit property from Vematech to Ann Nyambura the 2 nd Defendant. The suit property was valued at Kesh 17,300,000 and the document lodged at the Ministry of Lands for transfer is for a consideration of Kesh 5,000,000 as per the bundle document at page 36 of the 5 th Defendant’s bundle. At the same time he stated that he did the transaction between Ann Nyambura and Platinum which was for a consideration of Kehs 8,000,000 and they also paid stamp duty of Kehs 720,040. 42) On re-examination he testified that he became aware of another title in May 2019 and raised the issue with the Advocate of the seller as per his letter at page 39 of the Defendant’s bundle and also the letter to the Land Registrar Ruiru at page 40 of the bundle. There was also a letter to DCI as at page 41 where the DCI confirmed through the letter that investigations show that the suit property is a freehold parcel. 43) As at the dates indicated above, Jane the Plaintiff did not have a title since the register to her title was only opened on 23/08/2019 and the sale transaction took place 2 months before which was in May. ELC NO. E004 OF 2023 16 | P a g e

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44) DW 2 - Peter Mwai Gathiru adopted his witness statement dated 11/04/2024 as his evidence in chief. He was not cross-examined. 45) DW3 - Ann Nyambura Kamau adopted her witness statement as her evidence in chief and stated that she was a business lady and that she formed the 1 st Defendant as a Company and incorporated Nicholas 3 rd Defendant and Stacy 4th Defendant who are her children into the Company. She also adopted her List of Documents as exhibits, DW Exhibits 1-4. 46) Upon cross examination she stated that she bought the suit property from Vematech and that she transacted with one Patricia but she was not aware of her whereabouts. She testified that when she was doing construction she was served with a Court order although she was not aware that there was a third party who had a claim to the suit property. 47) She testified that she never met Pauline the 6 th Defendant and that she also did not know about Githunguri Ranching Company Limited. Upon further cross-examination she told the Court that she bought the suit property from the 7th Defendant on 10/05/2019 and that ever since the purchase she has never contacted Pauline. She also stated that she has filed her Counter-claim in which she sought payment for the loan she borrowed from Kenya Commercial Bank (KCB) although the letter from KCB does not show that it is written ELC NO. E004 OF 2023 17 | P a g e

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to her but to Ankam and not Platinum although it refers to the suit property. 48) When she was re-examined she stated that she did due diligence and she has supported this with the List of Documents produced containing a search and the green card issued on 24/04/2019. With this the 1 st to 4th Defendants closed their case. 49) DW 5 Robert Mogendi Mbugua the Land Registrar Ruiru, Number 327 testified that he prepared a witness statement dated 3/04/2024 which he adopted as his evidence in chief and a List of Documents of even date as exhibits for DW5Exh 7-69. 50) Upon cross-examination by Counsel for the Plaintiff Mr Kanyi, he testified that they undertook a site visit which led them to the same plot being referred to as Ruiru East Block 1/T 792 and Ruiru East Block 1/792. That this block refers to ownership of Githunguri Ranching Company Limited and that whenever there is a problem the Registrar’s office refer to the allocating Company. 51) He testified that he did not have any documents showing Pauline Wangui Kimunyo as an allottee. That he is supposed to have a transfer allocation of the land signed by Commissioner of Lands and that he did not have it. Further he stated that back in 2003 the process of clearance was always done by the Company which would initiate the clearance process, clear a member and transfer for allocation would be ELC NO. E004 OF 2023 18 | P a g e

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signed by Commissioner of Lands on behalf of Government of Kenya. 52) DW5 further stated that the Commissioner of Lands would then forward the transfer to the District Land Registrar for execution by the allottee and subsequently the registration of title and issuance would take place. This means that in their records they would have the transfer allocating the land. 53) It is his testimony that the Plaintiff’s title was cleared by Githunguri Constituency Ranching Company Limited and they have her copy of Clearance Certificate and the transfer. That the said clearance bears a name, ID, her postal address, parcel number but it has no letter “T” it has a block number, ballot number being R/W No. 000096 and the parcel is registered as East Block 1 Githunguri/792. 54) According to the testimony of DW5 he stated that at registration time, it is the Clearance Certificate and transfer that guide the Land Registry and not parcel number nor ballot. 55) He stated that the Plaintiff’s title was registered on 23/08/2019. He also stated that for this block of land there is no record of Certificate of Lease and that surrender of title affect mainly leasehold titles. He directed the Court to consider the report filed by the surveyor at pages 69 of the DW5’s bundle which pointed to RUIRU EAST BLOCK 1 T and ELC NO. E004 OF 2023 19 | P a g e

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RUIRU KIU BLOC 2 T and RUIRU WEST BLOCK 1 which are all owned by Githunguri Ranching Company Limited. 56) Further, he testified that there are 2 titles in dispute and the one that came first in time was RUIRU EAST BLOCK 1 T.792 and it was registered in 2003 to Pauline Wangui Kimunyo of ID 5612755. He stated that he had the transfer from Pauline to Vematech and that Pauline was allocated the land from the Government of Kenya. 57) He stated that all the transfer records are at the Land Registry and there is no doubt that the documents are genuine. He further testified that the meaning of letter “T” in the title means that the parcels fall in two different blocks even the filing is in two files and two binders which are separate. That according to him these are two distinct and separate titles. He confirmed that the Land Registry of Ruiru issued green cards for T792, T793, T785, T784, T786, T788, T789, T790, T791, T792, T793, T796, and T798 which are all in the letter “T” binder. That the green card for the Defendant is in the binder for letter “T” and the one for the Plaintiff is in the binder without the letter “T”. 58) On re-examination he testified that the first registered owner of the suit property is the Government of Kenya which would allocate the land on behalf of Githunguri Ranching Company Limited. According to him, the allotment from Government of Kenya to Pauline does not have the transfer allocating the land to Wangui but for her name to be in the ELC NO. E004 OF 2023 20 | P a g e

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Register it means that she was allocated the same. Also the fact that the Registrar entered the transfer it means they had site of the transfer in their records. With that DW5 closed their case. 59) After the close of the case the parties were issued with directions on filing and exchange of written submissions. 60) The Plaintiff filed his submissions dated 23/04/2025 through the Law Firm of Kanyi Kiruchi & Co Advocates. He identified the following as the issues that needed determination:a) Whether the Plaintiff is the bona fide of Githunguri Constituency member Ranching Company Ltd? b) Whether the Plaintiff has proven root of her title deed? c) Whether the 6th Defendant had anything to sell to the rest of the Defendants? d) Whether the 2nd, 3rd and 4th Defendants are innocent purchaser for value without notice? e) Whether the Plaintiff has proven her case. f) Who should bear the costs of this suit? 61) He submitted that the Plaintiff was the bona fide owner of the suit property RUIRU EAST BLOCK 1 (GITHUNGURI) 792 also known as RUIRU EAST BLOCK 1(GITHUNGURI) T.792 having acquired it through shares and balloting through Githunguri Ranching Company. That the Defendants were not ELC NO. E004 OF 2023 21 | P a g e

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able to present any evidence to show that they were ever members of Githunguri Ranching Company. That they therefore obtained the documents they were waving before the Court fraudulently. 62) He also submitted that the Plaintiff presented all documentation from Githunguri Ranching Company including the receipts and that the PW2, Chairman of Githunguri Ranching Company corroborated the evidence presented by the Plaintiff. 63) In her submissions the Plaintiff relied on the cases of Esther Ndegi Njiru & Another vs Leonard Gatei [2014]eKLR, James Njoroge Gitau vs Lucy Chepkurui Kimutai [2018]eKLR, Hubert L. Martin & 2 Others vs Margaret J. Komar & 5 Others [2016]eKLR, Munyu Maina vs Hiram Gathiha Maina (2013)eKLR. Sabina Akinyi Masogo (Suing as the Administrator and Personal Rep to the Estate of Dominic Masogo Umaya vs Joseph Agola Adundo And District Land Registrar Bondo(2023), Lawrence Mukiri v. Attorney General & 4 Others [2013) eKLR and William Kabogo Gitau -VsGeorge 64) Thuo & 2 Others [2010] 1 KlR 526. It was her humble submission that she had proved her case on a balance of probability and that the 6 th Defendant was never a member of Githunguri Ranching Company and so it is not clear how she can claim to have gotten the land yet she was not allotted by Githunguri Ranching. This makes the ELC NO. E004 OF 2023 22 | P a g e

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title being waived by the 2nd - 4th Defendants to be without roots. 65) On their part the 2nd to 4th Defendants filed submissions dated 6/05/2025 by the law firm of Mbichire & Co. Advocates and they identified the following to be their main issue for determination as; Which title is legitimate and represents the suit property in dispute? 66) The Defendants submitted and reiterated the historical background of how they acquired the suit property as enumerated in the Counter-Claim. They averred that the dispute between the parties is easily distinguishable as RUIRU EAST BLOCK 1/T.792 had its parcel/registry file opened and issued in 2003 and it is registered in the 1 s t Defendant’s names while RUIRU EAST BLOCK 1(Githunguri)792 had its parcel/registry file opened and issued in 2019 is registered in the Plaintiff’s names. 67) They submitted that despite the Plaintiff claiming to be a member of Githunguri Ranching Company, PW2 presented records that had been altered to try and push that narrative but which had not been counter-signed by the officials. Further that whereas the Plaintiff’s entire claim is based on records from Githunguri Constituency Ranching Company whose current Director testified as PW2, it emerged in Court that the Plaintiff was not a member and that she has acquired the Share Certificate from her father. 68) That the Plaintiff presented and relied on a Share ELC NO. E004 OF 2023 23 | P a g e

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Certificate dated 20th December 1989 for a ¼ plot of land while the suit property is 1 /8 of an acre. Her claim for acquisition of the suit property is reflected in a Clearance letter issued by Githunguri Ranching Co, Transfer forms and a Title deed from Lands Registry all issued on the same day being the 23rd August 2019. 69) being In the submissions the 1st Defendant states that PW2 the Chairman of Githunguri Ranching Company presented copies of forms purporting to reflect register of membership. The documents which bore alterations were not counter-signed and or certified as were the documents certified on 17 th April 2019 before issuance of a Clearance Certificate and transfer in favour of the Plaintiff. This shows that there was an act of tampering with the documents. 70) The 1st Defendant submits that PW2 was not able to dispute that the titles referred to separate plots and that the Defendants title bearing a “T” fell within the town area just next to his own parcel of land. That as a matter of fact and surprisingly a perusal of the Green cards of the Defendant’s title matched all “T” plots including his own green card originally issued and allotted by the Government of Kenya while the Plaintiff’s title remarkably had Githunguri Ranching Co. as the original title holder/allotee. That variance meant that indeed, the Plaintiff title could and cannot represent the suit property on the Ground in the middle of a “T” neighborhood. ELC NO. E004 OF 2023 24 | P a g e

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71) That the Plaintiff title having been processed and issued on the 23 rd August 2019, cannot by any means override three-four titles whose history emanate in the dates of 15/1/2003, 20/7/2018, 12/6/19 and 21/12/20. Further, that the original allottee being the Government of Kenya would not be required to prove whether Githunguri Constituency Ranching Co issued a Clearance Certificate or not if the Plaintiff’s Advocates arguments are to be adopted. Similarly the Registrar was categorical that registries do misplace documents however, he testified that the misplacement cannot mean, that the documents of transfer did not exists as is the case for Jane Wangui. 72) The Defendants relied on the cases of Crystal Investments Limited v Elme & 3 Others (Environment & Land Case 110 of 2019) [2024] KEELC 567 (KLR) (8 February 2024) (Judgment), Gitwany Investment ltd vs. Tajmal Ltd & 3 Others (2006) eKLR. Mccloy v Kiniaru & Another (Environment & Land Case 39 of 2021) [2023] December KEELC 22566 (KLR) (13 2023) (Judgment), and Kamau James Njendu v Serah Wanjiru & Another [2018] eKLR, among others. 73) On the issue of fraud it was the 1 st Defendant’s submission that the rights of a registered proprietor are provided for under Section 26 of the Land Registration Act 2012 which provides that title of the registered ELC NO. E004 OF 2023 25 | P a g e

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proprietor can only be challenged on the ground of fraud or misrepresentation to which the person is proved to be a party or where the certificate has been acquired illegally, unprocedurally or through a corrupt scheme. 74) The 1st Defendant submits that fraud has to be proved and that in their counter-claim they have accused the Plaintiff of fraud and attempting to deprive the Defendant of its lawful, rightful and bona-fide ownership to the suit property using claims that are false and unsupported. That Section 107 of the Evidence Act provides that the burden of proof is upon he who asserts. The Plaintiff having acquired a title in 2019 after the Defendants’ title had been in existence since 2003 cannot shift the burden of proof by introducing Githunguri Ranching Company Limited. 75) They further submit that Section 107 of the Evidence Act provides that the burden of proof lies on the one who asserts. The Plaintiff having acquired a title in 2019 after the Defendants title had been in existence since 2003, cannot seek to shift the burden of proof by introducing Githunguri Ranching in the case. 76) The Defendants further relied on the cases of Civil Appeal No. 86 Of 1999, Hannah Wangui Ithebu Vs Joel Ngugi Magu & Anor, ELC No. 747 of 2007, Paul Muira & Anor Vs Jane Kendi Ikinyua (Supra,), ELC Civil Case No. 169 Of 2008, Lawrence P.Mukiri Vs A.G & Ors, and the case of Katende v Haridar and Company Limited ELC NO. E004 OF 2023 26 | P a g e

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(supra). The 1st Defendant concludes by submitting that the 77) Plaintiff’s claim lies with Githunguri Ranching to show her the ¼ plot since the suit property in question occupies 1/8 of an acre. Further that the Plaintiff is thus not entitled to prayers sought in the Plaint and that the Plaintiff be restrained from encroaching/trespassing onto the 1 st Defendant’s plot. Analysis and Determination 78) This Court has perused the pleadings and the annexures thereto and from the analysis of evidence, pleadings, testimonies and submissions, this Court is alive to the controversies surrounding the ownership of the suit land. What is not in dispute is: i. A site visit report following the Court order of 5/07/2023 where all parties were represented and the findings thereon ii. The Plaintiff is the registered proprietor of Ruiru East Block 1 (Githunguri)792 iii. The 1st Defendant claims to be the registered proprietor of Ruiru East Block 1/T.792 iv. There are two titles referring to the plots which are separate and distinct v. The 1st Defendant has a sale agreement executed between itself and 10th May 2019 between itself and the 7th Defendant over the suit property. ELC NO. E004 OF 2023 27 | P a g e

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79) The right to own and acquire property in Kenya is a Constitutional right to be enjoyed by all persons. It is hinged on Article 40 of the Constitution of Kenya, 2010 which provides as follows; “(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property(a) of any description; and (b) in any part of Kenya. (2)Parliament shall not enact a law that permits the State or any person(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or (b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4). (3)The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or ELC NO. E004 OF 2023 28 | P a g e

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(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that (i) requires prompt payment in full, of just compensation to the person; and (ii) allows any person who has an interest in, or right over, that property a right of access to a Court of law.…” 80) Further, a title holder enjoys statutory protection by dint of Section 26 (1) (b) of the Land Registration Act which provides: “The certificate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer … shall be taken by all Courts as prima facie evidence proprietor of indefeasible proprietor that the person named as the land is the absolute and owner … and the title that shall not be subject to of challenge, except – a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” ELC NO. E004 OF 2023 29 | P a g e

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81) This Court is therefore to protect the proprietary rights of both the Plaintiff and the 2nd Defendant and in so doing protects the torrens system of Land Registration in Kenya. It is trite law that no land can have two titles. 82) In a land dispute where both the Plaintiff and Defendant claim the same plot despite two titles referencing separate parcels, the Court will need to determine the validity of each title and the ownership of the disputed plot. The Court will consider evidence presented by both parties, including the sequence of events surrounding the issuance of the titles, any transactions related to the land, and the overall history of ownership. 83) This Court directed the parties under the leadership of the Deputy Registrar to visit the suit property and a report was filed in Court dated 12/07/2023. The Land Registrar, Ruiru assisted the Court and the parties present to check the green cards which were in two bundles. 84) With the assistance of the Land Registrar, Surveyor and the parties it was confirmed that the parties who went for site visit were standing on RUIRU EAST BLOCK 1 (GITHUNGURI)/T.792. The report indicates that the Court explained the purpose of the visit which was to establish whether RUIRU EAST BLOCK 1 (GITHUNGURI)/T.792 and RUIRU EAST BLOCK 1 (GITHUNGURI)/792 are different or are the same. The findings as captured by the Site Visit report were:- ELC NO. E004 OF 2023 30 | P a g e

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1. The Ruiru District Surveyor had the area map. She explained thata) The property on which they stood and all the properties which lie between the superhighway and the Railway line (on the Right side of the super highway when one is coming from Thika general direction facing the Nairobi general direction are town plots. Those are the plots whose title numbers have a T. b) The properties across the road i.e. the side where Zetech College is (on the left side of the superhighway when one is coming from Thika general direction facing the Nairobi general direction are the ones whose title deeds do not have a T. c) That on the opposite side of the super highway across from where the team were- where the title numbers do not have a T there is no Title Deed No. Ruiru East Block 1 (Githunguri)/792. It does not exist. d) The areas map does not indicate the use of the land therefore it could not assist in differentiating RUIRU EAST BLOCK 1 (GITHUNGURI)/T.792 from RUIRU EAST BLOCK 1 (GITHUNGURI)/792. 85) Further, the Land Registrar Ruiru had the original bundles containing the green cards for both the town Plots (with a T) and the other plots (without a T). He assisted the ELC NO. E004 OF 2023 31 | P a g e

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Court and the parties to check the green cards in the two bundles and they made the following observations: a) The plots with letter “T” are town plots which are on the side where the Court was standing; b) The plots without letter “T” are the ones on the opposite side of the road; c) There was a green card for RUIRU EAST BLOCK 1 (GITHUNGURI)/T.792 and it was in the name of Anne Nyambura Kamau; d) There was a green card for RUIRU EAST BLOCK 1(GITHUNGURI) 792 in the bundle for the ones without letter “T” and it was in the name of Jnae Wangui Ngugi; e) In the bundle of green cards with letter “T” there were a few green cards with title numbers without letter “T”; f) In the bundle of green cards with T there were few green cards with title numbers without a T and some were indicated sheet No. 2 while others were not indicated the sheet number; g) The suit property is occupied by the 1st Defendant. 86) Now having reviewed the pleadings, the evidence adduced in Court and all the annextures and having considered the submissions made by the parties the issues that arise for determination are:- ELC NO. E004 OF 2023 32 | P a g e

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1. Whether there was double allocation of the suit land and the legal effect thereof? 2. Who was the bona fide owner of the suit property? 3. Who bears the cost of the suit? 87) On the first issue, it is not in dispute that both the Plaintiff and the 1 - 4 th Defendants (herein Defendant)hold ownership documents to RUIRU EAST BLOCK 1/T.792 and RUIRU EAST BLOCK 1 (GITHUNGURI)/792 each with supporting documentation in form of Sale Agreement, Allotment Letters, receipts of payments for Share Certificate, among others. 88) EAST The Plaintiff identifies the suit property as LR RUIRU BLOCK 1 (GITHUNGURI)/792 and the Defendant identifies it as RUIRU EAST BLOCK 1 (GITHUNGURI)/T.792. 89) So essentially the Plaintiff and the Defendants have both laid claim to the suit property albeit with a slight difference in the numbers one has a letter “T” in its registration. Now, while the Plaintiff contends that she has produced in evidence a title document that indicates that she is the registered proprietor of L.R RUIRU EAST BLOCK 1/T.792 also known as RUIRU EAST BLOCK 1 (GITHUNGURI)/792 the 2nd Defendant has contended and has produced in evidence a title deed that shows that the 7th Defendant she is the registered owner of RUIRU EAST BLOCK 1/T.792 which was later transferred to the 2nd Defendant and then to the 1 st Defendant. The Defendants ELC NO. E004 OF 2023 33 | P a g e

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do not lay claim at all to RUIRU EAST BLOCK 1 (GITHUNGURI)792. 90) While the Land Reference Numbers would appear different, from the evidence adduced, there is no doubt in the Court’s mind that the suit property originated from Githunguri Constituency Ranching Company Limited. So the question then would be who is the bonafide owner of the said parcel of land? This is what this Court must determine. 91) The Surveyor when the Court visited the site clarified that the plot in the town where the parties visited was one bearing the letter “T” whereas the plot outside the town was the one without the letter “T”. This was also made clear by the evidence of DW5 Robert Mugendi the Land Registrar. From these facts by the Surveyor and Registrar it is clear that the Plaintiff and the Defendants are claiming different plots and there certainly is confusion on the location of RUIRU EAST BLOCK 1 (GITHUNGURI)/792. Similarly from the evidence of the Plaintiff her plot measures ¼ of an acre as per the allotment documents produced in Court and corroborated by PW2, the Chairman of Githunguri Ranching Company Limited. 92) The Defendants’ suit property is a freehold title measuring 0.0511 hectares. The Plaintiff’s title document is a Certificate of Lease. Which goes contra the evidence of DW5 who stated that the suit property in the town where the Court visited is freehold granting absolute ownership to the owners. ELC NO. E004 OF 2023 34 | P a g e

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93) The Plaintiff despite these glaring differences testified that she is the bonafide proprietor of the suit property and so this being the case the Court must of necessity examine the registration documents. The issue of duplication of titles has been a source of dispute in this country for a while and Courts have more than once expressed itself on the matter. 94) In resolving a case of duplication of title and registers Courts look into the root of each title to determine who the rightful owner is. It is not enough to have a title but the process of acquisition of the same must be one that accords with the law. On the root of title the Court in the case of Hubert Martin & 2 Others Vs. Margaret J. Kamar & 5 Others (2016)eKLR; where the Court stated as follows:“A Court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain.” 95) The Court of Appeal while dealing with the same matter of duplicated titles in the case of Wreck Motors Enterprises Vs. Commissioner of Lands (1997) stated as follows; ELC NO. E004 OF 2023 35 | P a g e

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“…. like equity keeps teaching us first in time prevails.” 96) in The decision of the Court of Appeal above is exceptional that there must be absence of fraud illegality or unprocedural processes save for mistake. 97) Bearing in mind the Court of Appeal’s decision, I now consider the instant case. In this case I am not persuaded that it is actually a case of duplicated titles because the report of the surveyor clearly stated that the titles with letter “T” in the registration were in the Town area which is the case for the title of the Defendants. The Land Registrar confirmed that whereas there was a misplacement of the Letter of Allotment for Jane Wangui Kimunyo, but there was evidence that she was allotted the title and that is the person who sold the same suit property to the 7th Defendant Vematech who in turn sold it to 2nd Defendant and then to the 1st Defendant. 98) For the Plaintiff, her claim is for ¼ an acre which is not the acreage for the suit properties with letter “T” in their registration because they measure only 1/8 of an acre. Clearly her claim is misplaced it lies with Githunguri Ranching Company who need to show her the exact location of her land as was testified by the Land Registrar and the Surveyor. Again the Plaintiff’s land is a lease and the document she presented in Court to support her claim is a Certificate of Lease which does not lend credence to the suit property visited by the ELC NO. E004 OF 2023 36 | P a g e

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Court since the documents shared by the Land Registrar and the Surveyor showed that the suit parcels are freehold. 99) I am therefore not persuaded that this is a case for double allocation but more about mis-identification of the parcel of land belonging to the Plaintiff. It would be useful for Githunguri Ranching Company Limited in consultation with the Land Surveyor to provide assistance to the Plaintiff in identifying the suit property allocated to her since she has the title document conferring her the said suit property being RUIRU EAST BLOCK 1 (GITHUNGURI)/792. 100) Therefore, this Court finds and holds that the 2 nd Defendant is the bonafide owner of the suit property. The Plaintiff had sought for a permanent injunction, cancellation of title and an order for eviction against the 1 st, 2nd, 3rd and 4th Defendants and costs of the suit. However, the Court has found and held that the 1st and 2nd Defendants and by extension the 3rd and 4th Defendants are the bonafide owners of the suit property and are thus the absolute and indefeasible owners and are entitled to all the rights and privileges appertain to the suit property as provided by Sections 24 and 25 of the Land Registration Act 2012. 101) the Consequently, the Court finds that the prayers sought by Plaintiff in her claim dated 27/11/2023 are not merited and the same are dismissed. ELC NO. E004 OF 2023 37 | P a g e

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102) The 1st Defendant on its part has sought for a Declaration that their title is the legitimate one, a permanent injunction against the Plaintiff, compensatory damages for the loss of use and income for the property and damages for the loan and costs of the suit and Counter-claim. 103) The Counter claim dated 21/12/2023, succeeds and is therefore merited. 104) Having carefully considered the pleadings by the parties, the evidence adduced and the relevant provisions of law, the Court finds and holds that the Plaintiff has failed to prove her case on the required standard of balance of probabilities and therefore her claim dated 21/12/2022 is dismissed entirely. 105) The Court further finds and holds that the 1 st, 2nd, 3rd and 4th Defendants has proved their case on the required standard of balance of probabilities in the Counterclaim and thus holds that the said Counterclaim is merited and the same is allowed in the following terms:i. That a declaration be and is hereby issued that the 1st Defendant is the lawful and rightful registered owner of LR No. Ruiru East Block 1/T792 at the Land Registry Ruiru and on the Ground and that the Plaintiff is a trespasser of the same. ii. That a Permanent injunction do and is hereby issued restraining the Plaintiff whether by itself, ELC NO. E004 OF 2023 its agents and/or servant from 38 | P a g e

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encroaching trespassing upon harassing, evicting, upon or in any other manner whatsoever interfering with the plot of land known as LR No. RUIRU EAST BLOCK 1/T.792. iii. Given the circumstances of this case each party shall bear their own cost of the suit and the Counter-claim. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 2ND DAY OF JULY 2025 VIA MICROSOFT TEAMS. ………………………… MOGENI J JUDGE In the presence of: Mr. Kanyi for the Plaintiff Mr. Mbichire for the 1st, 2nd and 3rd Defendants 4th, 5th, 6th and 7th Defendants – Absent Mr. Melita – Court Assistant ………………………… MOGENI J JUDGE ELC NO. E004 OF 2023 39 | P a g e

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