Nyale & 2 others v Director of Surveys & 2 others (Environment and Land Case E063 of 2025) [2026] KEELC 434 (KLR)

in farming activities; that some of these people, depending on their exposure, had allotment letters issued by the government of Kenya and some have processed title documents for their portions. The 1st plaintifi holds 2 letters of allotment. The 2nd plaintifi also has a letter of allotment. They pursued those letters of allotment and they were processed into the titles now held and which now are threatened by the Acts of the defendants. 4. The plaintifis state that it has come to their attention that the 1st defendant has produced a new survey map dated and approved in 2025 for the Kibokoni Sabaki area in which he has created a Settlement Scheme that overlaps and overtakes the suit properties. The basis of the 1st defendant’s action is that the Director of Land Adjudication and Settlement and the Director of Land Administration have given him the information that the suit properties were not available for allocation as new grants to the plaintifis herein. Therefore, the 3rd defendant gave notice, in Kenya Gazette of 23rd May 2025, of intention to rectify land register by cancellation of the titles to the suit properties. It is alleged that the defendants failed to give the plaintifis and a prior information before issuing the Kenya Gazette notices, contrary to the principles of natural justice. They were also not informed of the basis upon which the Director of Land Adjudication and Settlement and the Director of Land Administration determined that the suit properties were not available for titling to the plaintifis. The applicants have taken up the issue in writing, with letters being written to the Director of Surveys and the Chief Land Registrar, but no response has been given. 5. The respondents opposed the application through the sworn afidavit of Mike Sego Manyarkiy Principal Land Registrar in Charge of Mombasa Lands Ofice. The deponent states that parcel number 20099 was allocated to Paul Njoroge Mutari for 99 years from 1st November 1998 in consideration of 7,000/= shillings by way of stand premium and annual rent of Kenya shillings 400/=. A lease was registered over the said land, and later it was transferred to William Githuka the 2nd plaintifi for Kenya shillings 3, 000,000/-. Parcel number 20100 was granted to William Githuka and a lease was registered on the parcel and was later transferred to William Ithuka and John Macharia Nderitu as tenants in common. Parcel number 20098 was allocated to George M. Nyale and a lease was registered; that the contents of the internal memo which was shared to both the Director of Service and Director of Land Administration and the letter dated 25th March 2025 by the Chief Land Registrar indicated that the suit premises were part of the land reserved for Kibokoni Settlement Scheme which scheme was fully occupied by squatters, who are to be settled on the same land; that it could not be understood how the applicants acquired the said parcels and therefore a directive was issued for their titles to be recalled and cancelled unless they were cleared by the Settlement Fund Trustees; that that was the basis on which the Gazette Notice Number 6615 of 23rd May 2025 was published, inviting the proprietors of parcel number CR 84859 to come to the deponent’s ofice together all their necessary registration documents for verification as to whether indeed the said parcels were allocated to the applicants while they were still part of the land reserved for the Settlement Scheme. Instead of obeying the notice the plaintifis filed this suit. 6. The 1st plaintifi also swore a supplementary afidavit dated 22nd October 2025. The deponent states that when land adjudication and settlement oficers visited the area, they confirmed that the plaintifis’ plots are not within the squatter zone. 7. He also deponed that the land set aside for squatters is over 300 acres and the suit parcels are not part of the squatter scheme. It is also stated that 3rd respondent does not have any power in law to cancel the plaintifi’s titles vide the Kenya gazette notice. 8. The applicant filed submissions dated 28th October 2025. I have considered the contents of those submissions. Citing Kuria Greens Limited Versus Registrar of Titles and Another 2011 KEHC 4290 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/434/eng@2026-01-28 2

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KLR cancel for the plaintifi submitted that it is only a court of law with competent jurisdiction that has the power to cancel and or revoke a title document; that under sections 79 and 80 of the Land Registration Act the Land Registrar may only rectify the register or any instrument presented for registration in certain limited number of cases; that the plaintifis have established a prima facie case with probability of success. The plaintifis’ counsel cited Kelmas Investments Limited Versus Attorney General 2018 eKLR Republic Versus Chief Land Registrar and Another Ex parte Yosabia Kerubo Manyura 2018 EKLR and Isaac Gathungu Wanjohi and Another Versus Attorney General & 6 Others 2012 eKLR regarding the limited nature of the powers of the Land registrar under Section 79 in the light of Article 40 of the Constitution which safeguards property rights. It was also submitted that the plaintifis had proved that they would sufier irreparable loss and damage if the injunctive orders sought are not granted; that also the balance of convenience tilts in favor of granting the orders sought. Analysis and Determination. 9. I have considered the application before court. the respondents admit that there are titles that were issued to the plaintifis. Title to land in Kenya can not be cancelled willy-nilly. The due process of law has to be followed in doing so. The usual process is to come to a court of law and established that the title was validly or illegally obtained. the court tries the claims of both parties and comes up with a declaration as to validity of title. 10. In the present case the plaintifis have demonstrated that they hold title and the fact that the defendants admit that such titles exist and were issued by the government is crucial. The provisions of the law in Sections 25-26 of the Land Registration Act provide as follows: 25.(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject— (2) (a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and (b) to such liabilities, rights and interests as afiect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee. 26.(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— (2) (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. A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/434/eng@2026-01-28 3

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11. Considering the indefeasibility of title as provided for above, and the circumstances in which title can be declared illegal and liable to be cancelled, the actions of the respondents are likely to prejudice the plaintifi’s right to fair trial regarding the validity of their titles and I am of the view that they have established a prima facie case. 12. If this court fails to maintain the status quo as it is now and the titles are cancelled the defendants may take the titles away from the plaintifi and thus deny them land which they have been living on for long periods and developed and thus, in my opinion, that may occasion the plaintifis irreparable harm. 13. In the foregoing, I find that it is necessary to issue the orders ought if only to examine the merits of the plaintifis’ suit. Consequently, I dispose of the application dated 10/6/2025 by issuing the following orders: a. The respondents shall maintain the status quo of the suit properties known as LR No 20098 Malindi (CR 84859) LR number 20099 Malindi (CR 84814) and LR Number 20100 Malindi (CR 84815) prevailing as at the date of the issuance of this order both on the ground and in the land register pending the hearing and determination of the suit; b. The parties shall file and serve their trial bundles, witness statements and lists of witnesses and documents, the plaintifis within 21 days and the defendants within 42 days, the timelines running concurrently, and the matter shall be listed for mention for pretrial on 24/3/2025; c. The costs of the application shall be in the cause. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 28TH DAY OF JANUARY 2026. MWANGI NJOROGE, JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/434/eng@2026-01-28 4

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