Musyoki v Onyambu & 10 others (Environment and Land Case 202 of 2018) [2026] KEELC 204 (KLR)

Nonetheless, on 15/06/2018, the 1st, 5th, 6th and 7th defendants entered it, erected a fence, placed beacons upon it and put up temporary structures. 2. Thus, he stated that the 1st, 5th, 6th and 7th defendants gave the plaintifi documents showing that they owned the plaintifi’s land. An investigation report by an expert surveyor established that this was a case of double registration. To him, there was forgery and collusion by government oficers, as the 1st, 2nd, 3rd, 4th, 5th, 6th, and 7th defendants, in collusion with the 8th, 9th and 11th defendants, have procured another title to the plaintifi’s land, to wit LR No. 2358/9 (IR No. 177873), (“1st, 5th, 6th and 7th defendants land”) delineated in land survey plan no. 234457 issued on 2/04/2001. 3. That it did not end there, as these defendants have since subdivided the 1st, 5th, 6th and 7th defendants' land into 24 portions. He therefore pleaded trespass, irregularity, illegality, and fraud against the 1st, 2nd, 3rd, 4th, 5th, 6th, and 7th defendants, and particularised special damages. He therefore sought the following reliefs against the defendants jointly and severally: a. A declaration that the actions of the 9th defendant, its agents, servants, and any oficers acting under its instructions in purporting to allocate or change the plaintifi’s property from LR No. 2358 to LR No. 2358/09 were unlawful and void. b. A declaration that the following actions of the 8th defendant, her agents, servants and any oficers acting under her instructions were unlawful, null and void: i. Purporting to cancel the registration of the plaintifi as the registered owner of his land. ii. Purporting to issue parallel title documents to the 1st, 2nd, 3rd and 4th defendants on the plaintifi’s land. iii. Purporting to issue parallel title documents to the 1st, 5th, 6th and 7th defendants for LR Nos. 2358/9/5 (IR No. 195229), 2358/9/2 (IR No. 195226), 2358/9/3 (IR No. 195227), 2358/9/4 (IR No. 195228) and LR Nos. 2358/9/19-37. c. A declaration that the actions of the 11th defendant, her agents, servants and oficers, acting under their instructions of purporting to issue two title deed plans over Land Survey Plan No. 234457 on 2/04/2001 and 4/04/2001, were unlawful and null and void. d. A declaration that the plaintifi is the bona fide indefeasible owner of his land and that the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th defendants have no right over the same. e. An order directed at the 8th and 9th defendants for cancellation of the title in the names of the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th defendants and issuance of a new title document in the plaintifi’s name. iv. An order directed at the 8th and 9th defendants for cancellation of the certificates of title in respect of land parcel nos. LR Nos. 2358/9/18-37. f. An order that the 9th defendant correct the error in reference to the plaintifi’s land from LR No. 2358/09 to refiect the correct reference being 2358/9. g. An order directed at the 11th defendant for cancellation of the deed plan issued on 4/04/2001 under land survey no. 23447. h. An order of permanent injunction restraining the 1st, 5th, 6th and 7th defendants, their servants and/or agents or anybody acting through them, from entering and trespassing into, developing, subdividing or erecting any further fixtures or in any manner interfering with or dealing in the plaintifi’s land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/204/eng@2026-01-27 2

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i. An order of mandatory injunction does issue to the 1st, 5th, 6th and 7th defendants directing them to demolish all the structures, buildings and fences on the plaintifi’s land at their own cost. j. An order of mandatory injunction stopping the 1st, 5th, 6th and 7th defendants, or any other person claiming under them, whether as employees, servants and/or agents, from further acts of ingress, occupation, development, alienation, selling, charging, mortgaging, dealing, and or doing anything else on the plaintifi’s land. k. An order of eviction against the 1st, 5th, 6th and 7th defendants and any person claiming under them and/or their servants and/or employees and/or agents. l. Special damages together with interest. m. General damages for trespass and mesne profits together with interest. n. Costs of the suit together with interest. o. Any other relief that this honourable court may deem fit to grant. 4. Upon service, the 2nd to 7th defendants filed a defence dated 8/01/2024, denying the plaintifi’s assertions and putting him to strict proof. They denied that the plaintifi had ever been the registered owner of the defendants’ land. Further, the 1st, 2nd, 3rd, and 4th defendants (“original owners”) acquired the title document pursuant to a letter of ofier dated 18/10/2000 from the Commissioner of Lands, for which they paid the requisite charges. 5. Although the IR Nos for the plaintifi’s land difiered from that of the defendants, the Chief Land Registrar had authenticated the defendant’s IR No as genuine and maintained that the plaintifi had never been in occupation of the disputed parcel of land. To them, the plaintifi was the fraudster. 6. Further, it was submitted that the survey plan for LR No. 2358/9 was undertaken on 30/03/2000, and the plots were surveyed and title documents issued on 2/08/2000. It was argued that it was not tenable for the plaintifi to be issued land before it had been surveyed and the title numbers registered. Further, the plaintifi’s allotment was issued on a Saturday, and the title document on a Sunday, both days when government ofices were closed. It was also submitted that some of the documents produced by the plaintifi were fictitious. 7. In response, the 8th and 10th defendants submitted a defence dated 4/07/2019, albeit erroneously filed in the High Court. The defence consisted of denials, asserting that they were strangers to the assertions and challenged the plaintifi to provide strict proof. Issues for Determination 8. Having considered the pleadings and the evidence presented by the parties during the hearing on the merits and issues as outlined in the plaintifi’s filed submissions, it is the considered view of this court that the issues that arise for determination are: which of the two confiicting title documents should be upheld and whether the 1st, 5th, 6th and 7th defendants have trespassed onto the disputed land. Having outlined the issues to be decided, this court will now summarise the parties’ evidence on the identified issues. Hearing and Evidence 9. The matter eventually proceeded to a hearing on 10/01/2025, during which the plaintifi (PW1) and 3rd defendant (DW1) gave evidence. Their evidence included witness statements, oral testimonies, and various documents they tendered in support of their cases. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/204/eng@2026-01-27 3

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10. In his testimony, the plaintifi produced several documents elucidating the origin of her title, namely: an allotment letter issued on 20/02/1999 for LR No. 2358/9, Machakos Municipality. The requisite payments for the ofier made on 16/10/2001 in the amount of Kshs. 138,000/-. A copy of the relevant bankers' cheque towards payment dated 28/08/2001. A certificate of title for the grant, IR No. 90885, LR No. 2358/9, on Land Survey Plan No. 234457, with a deed, plan No. 234457, dated 2/04/2001, issued to the plaintifi. This certificate of title was executed by the Commissioner of Lands on 23/12/2001 and registered on 30/12/2002. He conducted an oficial search over his land; nonetheless, the oficial search he received from the land’s ofice on 29/07/2018 shows that it was not responded to. 11. On 15/06/2018, he reported to the police and was issued an OB No. He also tendered copies of several photographs to demonstrate acts of encroachment. He also produced certificates of title for IR No. 195229, LR No. 2358/17, issued on 7/03/2018 in the 1st defendant’s name; IR No. 195228, LR No. 2358/16, issued on 7/03/2018 in the 5th defendant’s name; IR No. 195226, LR No. 2358/14, in the 7th defendant’s name, issued on 7/03/2018; and IR No. 195227, LR No. 2358/15, in the 6th defendant’s name, issued on 7/03/2018. He also produced an expert report dated 27/08/2018, prepared by a licensed surveyor. 12. He was questioned about these documents; he averred that he left the Ministry of Lands in 2006. As a land surveyor, he understood that a survey was conducted before a title deed was issued and that an allotment letter could be obtained before a survey plan was prepared. He did not have the survey plan for the disputed parcels with him. He was also unable to explain why some documents were issued to him on a weekend, despite his employment at the Ministry of Lands at the time. 13. As for the 3rd defendant, he gave a chronology of the 2nd to 7th defendants' land by producing the following documents: an allotment letter was issued to the 1st to 4th defendants on 18/10/2000. The requisite payment for the ofier was made on 27/01/2011, in the amount of Kshs. 150,008/-. He also produced several documents of correspondence between it and government oficers, from 2017 to 2022, seeking clarification on the deed plan no. 234457 and whether it was in respect of LR No. IR No. 177873, which was in the afirmative. The deed plan shows it was issued on 4/04/2001. He produced a survey plan which afirmed the date of issuance of the deed plan. Submissions 14. After the hearing concluded, and at the request of the parties, they were to argue their respective cases through written submissions. Nonetheless, only the law firm of Ms Musyoka Murambi & Co. Advocates, representing the plaintifi, filed its dated 3/09/2025. Therefore, in its analysis and determination, the judgment will carefully consider the arguments presented in the rival submissions. Analysis and Determination 15. The issues previously identified will be addressed collectively. On the first issue, it is now settled law that when a title deed is in question, a party must demonstrate the chain of acquisition, including all the steps and procedures involved. It is insuficient to merely waive a title deed and assert that it is indefeasible and that one is an absolute proprietor. This court associates itself with the Court of Appeal decision of Funzi Island Development Limited & 2 others v County Council of Kwale & 2 others [2014] KECA 882 (KLR) that stated: “ a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot, on the basis of indefeasibility of title, sanction an illegality or give its seal of approval to an illegal or irregularly obtained title.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/204/eng@2026-01-27 4

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See also Sections 24, 25 and 26 of the Land Registration Act regarding circumstances under which a title deed can be challenged.” 16. Our courts are rich in jurisprudence on the issue of double allocation, and this court resonates with them: In Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), that the plaintifi relied upon, the Supreme Court afirmed the well-cited decision of Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR), and held: “ Where the registered proprietor’s root title was under challenge, it was not enough to dangle the instrument of title as proof of ownership. It was the instrument that was in challenge, and therefore, the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal, and free from any encumbrance, including interests which would not be noted in the register…Under the repealed Government Lands Act (GLA), a PDP had to be drawn and approved by the Commissioner of Lands or the Minister for Lands before any unalienated Government land could be allocated. After a PDP had been drawn, a letter of allotment based on the approved PDP was then issued to the allottees. It was only after the issuance of the letter of allotment and the compliance with the terms therein that a cadastral survey could be conducted for the issuance of a certificate of lease.” In a more recent Court of Appeal decision of Gathondu (As Administrator of the Estate of the Late Thumbi Kariuki) & 3 others v Registrar & 7 others [2024] KECA 668 (KLR), the court stated thus; “ Kenyan courts can no longer content to perch on the branch of simply accepting titles as conclusive, incontestible and indefeasible; or the concomittant argument that in the face of two or more competing titles, the first in time automatically prevails. It is not enough to wave an instrument of title or rest easy on the former rock of chronological primacy. What must now be established by he who would prevail is the solidity of the root of title. No fiowery foliage, absent a sturdy and settled root speaking to a regular and legal process preceding the product that is the title, will avail the holder.” Moreover, a similar position was taken in the well-cited persuasive decision of Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others [2016] KEELC 1092 (KLR), thus: “ 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. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.” 17. It is a well-established legal principle that he who alleges must prove. Consequently, this court will now scrutinise the evidence to establish the chain of acquisition of the disputed land by the plaintifi and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/204/eng@2026-01-27 5

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the 2nd to 7th defendants, thereby determining which party established and proved the origin of her title to the required standard. In doing so, the court will be guided by the aforementioned case law. We will now start with the plaintifi's case. 18. The plaintifi’s allotment letter was dated 20/02/1999, a Sunday when government ofices do not operate. The ofier was to be accepted within 30 days, and the stipulated payment was Kshs. 132,178/-. These amounts, together with the accrued land rent, all amounting to Kshs. 138,000/-was paid by a banker’s cheque dated 28/09/2001, and a receipt was issued by the Commissioner of Lands on 16/10/2001, approximately two years after the issuance of the allotment letter. These payments were obviously made out of time. 19. From the evidence, there are no records acknowledging acceptance of the ofier. More concerning is that the certificate of title raises more questions than it answers. It is perplexing that the document could have been executed on a Sunday by the Commissioner of Lands, an action that clearly shows the Commissioner was not working that day. The deed plan date also does not match the date referenced on the survey map. The plaintifi’s deed plan shows it was dated 2/04/2002, yet the survey map shows that a deed plan was issued on 4/04/2002, a date that tallies with the deed plan possessed by the 2nd to 7th defendants. 20. Most of the documents held by the plaintifi, allegedly executed by the Commissioner of Lands, demonstrate a pattern of execution on non-working days. The only logical conclusion, therefore, is that the plaintifi exploited his privileged position as a surveyor within the Ministry of Lands to fabricate documents to obtain the purported certificate of title, if at all one exists in his favour. 21. The oficial searches from the Ministry of Lands demonstrate that the Lands Ofice may not have records pertaining to the plaintifi’s land. This is because neither the oficial sections of these certificates of oficial searches show that they were sealed, dated, and signed by the land registrar, nor that they were collected by the plaintifi or his agent, which clearly indicates that the plaintifi is not the registered owner of his land. This was further buttressed by the expert report, which stated that the expert was unable to trace the deed files. This may explain why the 2nd to 7th defendants never bothered to counterclaim against the plaintifi’s land or seek cancellation of such title. 22. The plaintifi’s evidence also heavily relied on his payment of land rates; nonetheless, such documents could not dispel the root of his title, if at all he has one. Regarding the expert report, which was duly signed and dated by a licensed land surveyor, this court finds that it does not assist in establishing the root of the title, as this expert did not search records held by various government ofices concerning the lands of the plaintifi and the 2nd to 7th defendants. Consequently, this court finds it unreliable to this extent, and the conclusion reached is derived from an excerpt of the report that clearly states thus: “ Where any information on the existing titles is mentioned, as we have no chance to peruse the title, such information has been proved by client and we cannot accept any responsibility should such information prove to be inaccurate.” 23. Of significance, this report goes further and states as follows on the absence of deed files in the Lands Ofice for the plaintifi’s and 2nd to 7th defendants’ land in the following manner, referencing IR Nos 90885 and 177873: “ …we were unable to obtain oficial searches from the central land registry because the deed files could not be traced from there.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/204/eng@2026-01-27 6

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24. We will now turn to the 2nd to 7th defendant’s documents. Similar to the plaintifi, the payments for the allotment letter were made belatedly. In this case, payment was made on 27/01/2011, approximately eleven years following the issuance of the allotment letter on 18/10/2000. Additionally, there is no record of the plaintifi's acceptance. Notably, the relevant deed plan issued by the Director of Survey on 4/04/2001 mirrors survey map F/R176/140, which illustrates that this deed plan was issued on that date. 25. The correspondence issued by the 3rd defendant shows that the Chief Land Registrar, in response to an application dated 23/03/2017 submitted by the defendants, declined to register their documents. Consequently, these defendants’ counsel was compelled to seek confirmation of certain details from the Director of Survey, who verified that “ deed plan number 234457 was issued for land reference number 2358/9.” 26. Relying on this letter dated 15/06/2015, the defendants' counsel subsequently addressed a letter to the Chief Land Registrar on 22/06/2017, stating, “ In view of the comments of the Director of Survey… Kindly confirm that the Certificate of Title is authentic and can be used to resubmit the documents for registration.” 27. It was based on the strength of this letter from the Director of Survey that the Chief Land Registrar proceeded, and this is apparent from the Chief Land Registrar’s letter of 23/06/2017 to these defendants’ counsel, where he states, “ In view of the comments entered thereon and letter from the director of survey of 15th June 2017… we would like to confirm that the certificate of title is authentic and can be used to resubmit the document for registration.” These letters were never challenged or displaced by the plaintifi. 28. Accordingly, upon comparison of the histories of the two parcels of land, and afirmation of ownership, this court is inclined to favour that of the 2nd to 7th defendants, as this court has been unable to verify that the plaintifi was ever the registered owner of his land as he alleges. Moreover, even assuming this court is wrong, the documents he holds, allegedly issued on weekends, particularly the allotment letter and certificate of title, are all forgeries, as government oficers could not have signed them. 29. As for the 2nd to 7th defendants, the various government oficers have afirmed the legitimacy of their title documents. The only disruption in the sequence was that the ofier was accepted outside the stipulated time by several years. However, there was no record that, during this interval, the ofier was rescinded and replaced with another ofier made to a difierent third party. Furthermore, the delayed acceptance was recognised, thereby facilitating the fulfilment of subsequent legal procedures. Ultimately, this court concludes and finds that the 2nd to 7th defendants’ title documents should be maintained. 30. Section 26 of the Land Registration Act grants the registered owner an indefeasible and absolute title to the land. These defendants presented evidence of ownership for their land. Having demonstrated lawful ownership and acquisition, they are entitled to undisturbed possession, with their rights and interests safeguarded under Sections 24 and 25 of the Land Registration Act. 31. In balancing the competing claims, this court finds that the 2nd to 7th defendants possess a valid title, whereas the plaintifi does not. It appears that the plaintifi’s certificate of title (if it exists at all) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/204/eng@2026-01-27 7

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was obtained through illegality, corruption, fraud, or there was an error by the Land Registry. The defendants did not counterclaim, and it emerged that the plaintifi had never occupied the disputed land. 32. Ultimately, in the circumstances, this court finds the plaintifi did not prove his case on a balance of probabilities. His case is dismissed. It is settled law that costs follow the event, and the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 10th defendants shall have the costs of this suit. Judgment accordingly. DELIVERED AND DATED AT MACHAKOS THIS 27TH DAY OF JANUARY, 2026. HON. A. Y. KOROSS JUDGE Judgment delivered virtually through Microsoft Teams Video Conferencing Platform. In the presence of; Ms. Kanja - Court Assistant. Mr. Njeri for Plaintifi. Mr. Gichabe for 2nd to 7th Defendant. No appearance for other parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/204/eng@2026-01-27 8

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