Tipanko & another v Kamau & 3 others (Environment and Land Case 861 of 2017) [2026] KEELC 1685 (KLR)

2. It is the Plaintifi’s case that the transfers efiected in favour of the 1st, 2nd and 4th Defendants on the 26th January 2015 were fraudulent. The particulars of fraud are given in paragraph 12A of the Amended Plaint as follows: a. The 1st, 2nd, 3rd Defendants fraudulently transferring the suit property to the 4th Defendant knowing a suit contesting ownership is pending where they are parties. (b). The Defendants ignoring the pending suit agajnst them and convening with the 3rd Defendant to transfer the suit property to the 4th Defendant (c). The 2nd and 4th Defendant entering into a mock sale agreement to defraud the Plaintifis. (d). The 2nd, 3rd & 4th Defendant fiaunting all legal procedures as to sell of land and did a mock, transfers of the suit property to defeat the cause of justice (e). The 3rd Defendant efiecting transfers of the suit property to the 4th Defendant knowing the Plaintifis had filed their interest in court and that ownership was contested. (f). The 3rd Defendant without due diligence and knowingly illegally efiecting transfer of the suit property to the 4th Defendant even when the 1 st, 2nd & 4th Defendant s were using questionable and not up to date documents. (g) The 2nd & 3rd Defendant efiecting transfer to the e Defendant even when they did not have the consent to do so as provided for in law. (h) The 4th Defendant having the suit property registered in his name without followiing the legal procedure with the sole intention to defraud the plaintifi (i) The 4th Defendant knowingly and or transferred to his name knowing the pendency of this suit contesting (j) The 4th Defendant fraudulently obtaining title to the suit property without following due procedure 3. Upon being served with the Plaint the 1st Defendant neither entered appearance nor filed defence. 4. The 2nd Defendant filed a statement of defence dated 30th May 2018. It is his case that he bought the land from the 1st Defendant who had acquired the same from Gichui Kimani. Gichui Kimani had acquired from the 1st Plaintifi and her deceased husband whereby all the completion documents had been executed awaiting registration. 5. The 3rd Defendant filed a statement of Defence dated 19th November 2021. The 3rd Defendant denies all the allegations of fraud in the Plaint. He avers that all the transfers were conducted lawfully. 6. It appears that the 4th Defendant did not file a statement of Defence, If he did that is not in the court file. He has however filed witness statement. Evidence Of The Plaintifis 7. PW1 Magdalene Ene Tipanko the 1st Plaintifi herein testified on the 9th November 2023. She adopted her witness statement dated 15th August 2022 as her evidence in chief. She also produced the documents in the Bundle of Documents exhibits in this case. She told the court that her late husband had agreed to sell land to Gichui Kimani who was to pay ten (10) cows. That the said Gichui Kimani only paid one cow which she later returned. It is her case that she looked for the title after her husband passed on but she could not trace it. They pray that the title reverts to her name. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1685/eng@2026-03-18 2

page 2 of 10

8. When cross examined by Mr. Ochich for the 2nd and 4th Defendants, she maintained that they did not sell land to Mr.Gichui Kimani. She stated that she returned the one cow that he had paid as part of the consideration. She also stated that she did not know the 1st Defendant, Nicholas Muya. She denied that she executed any transfer in favour of Gichui Kimani. 9. When cross examined by Mr.Menge for the 3rd Defendant she stated the Mr. Gichui Kimani was to pay ten (10) heads of cattle but instead brought one which she later returned. She further stated that the agreement was oral. It is her case that Mr. Gichui Kimani convinced her late husband to release the title to him. She stated that she has sued the land registrar (3rd Defendant) because the land was transferred without her consent. 10. On re- examination, she reiterated that the tittle deed was in her name and her deceased husband. She reiterated that she did not sell land to the defendants and she did not know them. She further stated that she did not sign any transfer. She stated that her husband left a copy of the Title in the land Registry before his demise as Mr. Gichui Kimani had promised to bring the remaining heads of cattle. 11. PW2, Tipanko Koisenke, the 2nd plaintifi adopted his witness statement dated 26th September 2017 as his evidence in chief. He stated that after the demise of his father in 2011, they started following upon his properties. He further stated that the sale to Mr Gichui Kimani was not completed. It is his testimony that he negotiated with the 1st Defendant to buy back the land because he had documents acquired fraudulently. He stated that he paid the 1st Defendant Kshs2.9 Million but he did not hand over the genuine documents. He said he made a report to the police and the 1st Defendant was later arrested. 12. He stated that from the Green card his parents were the registered owners as at 8th July 2014. He also stated that a restriction that was in place was removed on 26th January 2015 to allow transfers to be efiected in favour of the 1st and 2nd Defendants. He later caused a caution to be placed on 22nd October 2015 but the same was removed on 21st November 2017 to allow the transfer in favour of the 4th Defendant to be efiected. He prays that the prayers on the plaint be allowed. 13. When cross examined by Mr. Ochich for the 2nd and 4th Defendants he stated that he bought back the land from Nicholas Muya (1st Defendant) He stated that he made a report at Ngong police station about this transaction because the 1st Defendant did not give him the genuine documents. He stated that as at 4th September 2014, the title was still in the names of his parents. He Further stated that the said Gichui Kimani could not have transferred the land to the 1st Defendant in 2015 as he was deceased. 14. When cross examined by Mr. Menge for the 3rd Defendant, he admitted that the land was sold to Mr. Gichui Kimani in 1986 but there was no sale agreement or evidence of payment of the purchase price. He stated that the land had been transferred in January 2015 from the late Gichui Kimani to Nicholas Muya then to Peter Waithunguri. He denied that he was involved in the fraudulent transactions. 15. On re- examination, he stated that his parents had intentions of selling to Gichui Kimani but has the process was not complete. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1685/eng@2026-03-18 3

page 3 of 10

He said that by the sale agreement dated 9th July 2014 he was securing the land by paying the 1st Defendant to avoid any dispute. He said he did not participate in the removal of the restriction that had been placed. 16. Number 81159 Police Constable Dobestus Opat attached to DCI Ngong adopted his witness statement dated 2nd February 2024 as his evidence in chief. He stated that the ofice had undertaken investigations on the transaction relating to the said property. He stated that a complaint was received from the plaintifi’s in the year 2014 and on 11th December 2014 a restriction was placed on the title by the DCIO and the Director of Criminal Investigation Ngong restricting further dealings. 17. It is his testimony that the restriction was removed on 26th January 2015 and several transfers efiected. He stated that from the National Registration Bureau he learnt that the Identity Card No. allegedly held by Gichui Kimani did not exist in the Data base. He produced the letter from the Bureau dated 31st January 2014 as an exhibit in this case. He also learnt from Registrar of Birth and Deaths that Gichui Kimani passed on on 8th September 1992. He also got information from the National Registration Bureau that the Identity Cards in the names of Nicholas Muya, Peter Waithunguri belonged to other people. He further stated that the restriction placed on the 22nd October 2015 was removed on 28thNovember 2017 to allow the transfer to the 4th Defendant on 18th January 2018, He said the 1st, 2nd and 4th Defendants ought to be charged with a criminal ofience. It was his conclusion that the transfers efiected in favour of the Defendants were fraudulent and they ought to surrender the titles. He produced the documents as exhibit P8 to P12 respectively 18. When cross examined by Mr Ochich for the 2nd and 4th Defendants he told the court that the criminal case is pending in Ngong Law Courts. He further stated that on 26th January 2015, the green card shows Gichui Kimani transferred to Nicholas Muya who then transferred to Peter Waithunguri. He admitted that there is a transfer duly executed by the 1st Plaintifi and her late husband in favour of Gichui Kimani but that there was none to Nicholas Muya from Gichui Kimani. He also admitted that the 2nd Plaintifi paid Kshs2,998,000/ = to Nicholas Muya (1st Defendant). 19. When cross examined by Mr. Menge for the 3rd Defendant he stated that the has preferred charges against the Defendants. He admitted that the transfers in favour of the defendants were efiected by a Land Registrar. He stated that he could not tell why the restriction was removed on 21st November 2017 or why the earlier restriction was removed. He stated that a caution was placed on 24th February 2018 pending the determination of this suit land and criminal case 20. On re-examination, he stated that the transfer from Tipanko Ole Sironka and Magdalene ene Tipanko to Gichui Kimani was not endorsed by the land Registrar. He also stated that he did not come across any other transfers. He also stated that he did not come across any other transfers. He also stated that he did get all the documents in respect of the transactions and that the identity Card Number do not belong to the Defendants and were meant to mislead. 21. Seketian Ole Sakuda, adopted his witness statement dated 5th December 2021 as his evidence in chief. He stated that he knew Tipanko Ole Sironka who was his neighbour. It is his testimony that in 1986, the said Tipanko told him he was selling land to Gichui Kimani. The consideration was ten (10) cows. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1685/eng@2026-03-18 4

page 4 of 10

The said Gichui did not pay the ten (10) cows and he was given back the one cow he had brought. He said that was done in his presence and the other elders. 22. When cross examined by Mr Ochich for the 2nd and 4th Defendants he said he saw one cow. He also stated that he testified in the Criminal Case at Ngong Law Courts. 23. When cross examined by Mr. Menge for the 3rd Defendant he said he saw one cow that had been brought by Gichui Kimani. They had agreed on ten (10) cows. He also stated that the land is occupied by Tipanko’s sons. 24. On re-examination he stated that the had told the court what he knew. 25. PW5 Daniel Sakana Tipanko the 1st plaintifis son adopted his witness statement dated 5th December 2021 as his evidence in chief. When cross examined by Mr. Ochich the 2nd and 4th Defendants, he told the court that his father never sold land to Gichui Kimani. He further stated that he resides on the land. He denied that he knew any of the Defendants. He stated that the title is in his parents names. 26. When cross examined by Mr. Merge for the 3rd Defendants, he stated that he became aware some people were claiming the land in 2010. He said this was his father’s land. He said he met the 2nd Defendant who claimed to have bought the land. He Later learnt that the land had been transferred to some people and PW2 reported the matter to the police. He said they are in occupation of the land. 27. On re-examination he claimed that his family is in occupation of the land and that the land has not been sub-divided. Evidence Of The Defendants 28. The 3rd Defendant called one witness, DW1 Rahab Muthoni, a Land Registrar based at Kajiado West land Registry adopted the witness statement of her colleague, John Matheka dated 23rd April 2025 as her evidence in chief. She also produced the Documents in the Bundle of Documents dated 19th November 2024 as exhibits D1 to D10 respectively. 29. When cross examined by Mr Mariaria for the Plaintifis she stated that the original owners stated that they had not transferred the land to anybody. She stated that the first transfer was on 26th January 2015 to Gichuhi Kimani, then to Nicholas Muya and to Peter Waithunguri. She admitted that the only title issued was to the 2nd Defendant, Peter Waithunguri. 30. She also admitted that several documents were necessary in order to efiect any transfer. she stated that she believed the documents were presented but they were not in the records in the Land Registry. She also stated she did not find any documents in the Land Registry. She further stated that she had no documents that were presented. She stated that Gichui Kimani did not have a title and that the Land Registrar investigated and lifted the restrictions she further stated that the court would decide on the issue of fraud. 31. On re-examination, she stated that a Land Registrar can remove a restriction on instruction from the person who sought that it be placed. She also stated that the original documents may have been taken by Director of Criminal Investigations for forensic purposes. She stated that she did not know the status of the investigations but the criminal case was pending. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1685/eng@2026-03-18 5

page 5 of 10

32. D.W.2, Peter Waithunguri the 2nd Defendant adopted his witness statement dated 30th May 2018 as his evidence in chief. He also produced the documents in the bundle dated 30th May 2018 as exhibits D1D14 respectively. He stated that he had been charged with a criminal ofience at Ngong Law Courts. His co- accused is Nicholas Muya. He said he sold the land to the 4th Defendant, Bernard Njeru Ndonga. 33. When cross examined by Mr. Mariaria for the plaintifi’s he told the court that he bought the land from Nicholas Muya who had all the documents. He admitted that as at 26th July 2014 the land was registered in the names of Tipanko Ole Sironka and the 1st Plaintifi. He said that he presented the original title to the Land Registrar who efiected the transfer. He said he was not aware of any dispute. 34. On re-examination, he stated that the transfer to Gichui Kimani had been executed by the original owners. He said the Land Registrar saw it fit to efiect the transfers in one day. 35. DW3, Bernard Njeru Ndonga, adopted his witness statement dated 18th July 2018 as his evidence in chief. He also produced the documents in his Bundle of Documents as exhibits in this case. He said he was later called by the Director of Criminal Investigations Ngong where he went and recorded a statement. He said he is one of the accused persons in the criminal case at Ngong Law Courts. 36. When cross examined by Mr. Mariaria for the plaintifis, he stated that he bought the land on 29th November 2017. He admitted that there is a mistake as to who the seller is in the sale agreement. He said his title was issued on 18th January 2018. He said he did not pay the purchase price. He said he was not a party to any fraud. He stated that he was no longer interested in the land. 37. On examination he stated that he was genuinely buying the land from the 2nd Defendant. He further stated that he learnt the history of the land from the Criminal case. He said he has not paid the purchase price. 38. At the close of the oral testimonies, parties tendered final written submissions 39. It appears the plaintifis did not file their final written submissions. The 2Nd And 4Th Defendants Submission. 40. The 2nd and 4th Defendants, submitted that the Plaintifis had failed to establish a valid cause of action against them. Their core argument rests on the undisputed fact that the Plaintifis voluntarily disposed of their interest in land parcel Kajiado/Ntashart/316 to the family of Gichuhi Kimani (deceased) as far back as 1986, as evidenced by a transfer document dated 18th November 1986 and that PW1, confirmed this in her testimony. 41. The 2nd and 4th Defendants maintained that their respective transactions were procedurally sound, that no documents were forged, and that the Registrar of Lands (DW3) corroborated the regularity of the transfers under examination. The only concern raised by the Plaintifis regarding the defendants' acquisition was the speed of the transfers, which the Registrar's evidence adequately addressed and dispelled. 42. The defendants submitted that the threshold for granting a mandatory injunction is considerably higher than that for a prohibitory injunction, as established in Kenya Breweries Limited v. Washington Okeyo (2002) EA 109, and afirmed in Malies Unissa Karim v. Edward Oluoch Odumbe (2015) eKLR. Such relief is only available in special circumstances, none of which the Plaintifis demonstrated. It was submitted that the Plaintifis failed to prove ownership of the subject property and equally failed to substantiate the particulars of fraud pleaded in their Amended Plaint. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1685/eng@2026-03-18 6

page 6 of 10

43. On ownership the defendants invoked Section 26 of the Land Registration Act, arguing that the 4th Defendant, as the registered proprietor, holds an absolute and indefeasible title that can only be disturbed on grounds of fraud, misrepresentation, or irregular acquisition. The burden of proving such grounds, under Sections 107 and 109 of the Evidence Act, lies squarely on the Plaintifis, a burden they failed to discharge. 44. On the allegations of fraud, the defendants submitted that the Plaintifis' fraud allegations, as particularized in paragraph 13 of the Amended Plaint, were not proved to the required standard. The defendants relied on Vijay Morjaria v. Nanvingh Madhusigigh Dabar & Another (2000) eKLR, Christopher Ndaru v. Esther Mbadi Kagina & Another (2016) eKLR, and Moses Parantai & Another v. Stephen Njoroge, all of which afirm that fraud cannot be inferred from facts alone but must be founded on credible, cogent evidence. 45. Regarding the prayer for a permanent injunction, the defendants submitted that such relief under Sections 1A, 3 and 3A of the Civil Procedure Act is only available upon proof of a subsisting right. Since the Plaintifis have neither established ownership nor proved fraud, there is no right capable of protection by way of permanent injunction, as contemplated in Mburu v. Kibara & 3 Others [2023] KEELC 22529. 46. As such, the suit should be dismissed with costs in favour of the 2nd and 4th Defendants. 47. It appears the 3rd Defendant did not file their final submissions. ANALYSIS AND DETERMINATION 48. I have considered the pleadings, the evidence on record and the written submission’s and the authorities cited. The issues for determination: i. Whether the transfers efiected on the 26th January 2015 to the Defendants were fraudulent? (ii) Are the plaintifi’s entitled to the reliefs sought in the Amended plaint? (iii) Who should bear the costs of the suit? 49. It is the 1st plaintifi’s case that the sale to Mr Gichui Kimani was not completed because he paid by availing only one cow instead of ten as agreed. It is her testimony that she returned the one cow. This was confirmed by PW4 Seketian Ole Sakuda a neighbour who stated that Gichuhi Kimani took back the one cow. 50. The 1st Plaintifi stated that the agreement was oral while she says she is the one who returned the one cow to Gichui Kimani. stated that Tipanko Ole Sironka was present when the one cow was returned. I find this to be a contradiction. 51. There is a transfer of land dated 18th November 1986 duly executed by afixing of thumbprints by the 1st plaintifi and her late husband. P.W.1 also told the court her late husband gave the original title to Gichui Kimani to take to the Kajiado Land Registry. It is her testimony that she looked for it after her husband’s demise but she could not find it. 52. It is my view that the sale to Gichui Kimani was completed hence the transfer in his favour. P.W.1 may not be telling the court the truth about all she knows regarding this transaction. In my view, the plaintifis have not tendered any evidence to contradict this transfer. The fact that the 2nd plaintifi (PW2) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1685/eng@2026-03-18 7

page 7 of 10

was willing to buy the land back from the 1st Defendant is because they knew the land had been sold to Gichui Kimani. 53. As to whether Gichui Kimani presented the transfer for registration is a mystery, Gichui Kimani is said to have passed on, in 1992. It appears there is a letter of consent from Oloilaser Land Control Board approving the sale to Gichui Kimani on the 4th December 1984. I am aware that the registration and subsequent issuance of title could be efiected at a later stage as long as the transfer had been duly executed. 54. In my view the beneficiaries of the estate of Gichui Kimani are the ones entitled to follow up on the title. It is not clear what transpired. 55. I have gone through the copy of the Green card for the suit property. It is curious to note that the suit property was registered in the name of Gichui Kimani on the 26th January 2015. The same is said to be a sub division of Kajiado /Ntashart/187. The same ought to have refiected the name of the original owners before the transfer to the said Gichui Kimani. Entries No. 1 to 3 are missing. On the same day the transfers were efiected to Nicholas Muya Kamau and Peter Waithunguri simultaneously and finally title deed issued to Peter Waithunguri, the 2nd Defendant. 56. It is clear from the entries that this was fraudulent. Gichui Kimani was already deceased in 2015 and could not efiect any transfer. There was a restriction placed in the year 2014 but the same removed. 57. D.W.1 the Land Registrar could not explain how this could happen. She did not produce any parcel file to confirm the documents that had been presented before registration. Her claim that the documents could have been surrendered to Director of Criminal Investigations for investigation purposes was neither here nor there. She did not produce any register or inventory to show that the document had been handed over to the Director of Criminal Investigations. Her claim that he believed the documents were presented cannot stand. This Court relies on the evidence presented not belief. I find that the 3rd Defendant was negligent in efiecting these transfers. One can even conclude that there was collusion between the ofice and the defendants. 58. The restrictions were removed suspiciously before these transfers were efiected. Even after the Director of Criminal Investigations started investigating the matter, the restriction was removed to allow the transfer to be efiected in favour of the 4th Defendant. One cannot rule out the fact that there was collusion between the 1st and 2nd Defendants and the Ofice of the 3rd Defendant. Enough said. 60. Under Section 26 (1) of the Land Registration Act, the title of a registered properties is prima facie evidence that the proprietor is the absolute and indefeasible owner of the land and subject to any encumbrances, easements, restriction and conditions contained or endorsed in the certificate. Such title may however be challenged on the ground of fraud or misrepresentation to which the proprietors is proved to be a party and or where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. Section 26 (1) provides: “ (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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1685/eng@2026-03-18 8

page 8 of 10

in the certificate, and the title of that proprietor shall not be subject to 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.” 61. The 2nd Defendant claims to have bought the Land from the 1st Defendant who had all the Documents. The 1st Defendant despite service neglected to enter appearance, file defence and participate in these proceedings. It is not clear how he acquired the land from Gichui Kimani. He squandered the opportunity to defend his title. As stated earlier the transfer were efiected fraudulently. 62. PC Dobestus Opat, told the court that the Identity Card Numbers and other details used to efiect the said transfers belonged to other people other than the 1st and 2nd Defendant’s. This is why he has preferred charges against them. In the case of Elijah Makori Nyang’wara -vs- Stephen Mungai Njuguna & Another (2013) eKLR the court held that: “…….. the law is extremely protective of title and provides copy only two instances for challenge of title. The first is where the titles obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired through a corrupt scheme…..” It is not clear how the 1st defendant acquired the title. 63. The 2nd Defendant could not have acquired good title for the reasons given herein above and so does the 4th Defendant . The title in the 4th Defendants name is impeachable. Infact the 4th Defendant admitted that he did not pay the purchase price. The sale agreement shows that he was the vendor while the 2nd Defendant was the purchaser. The transfer executed shows the same, which confirm that the 3rd Defendant was negligent in efiecting such a transfer with such glaring mistakes. Infact, these series of transactions reek of fraud. 64. The land was purportedly transferred to the 4th Defendant during the pendency of this suit against the doctrine of lis pendens There is no explanation as to why the second restriction was lifted. In the case of Funzi Island Development Ltd & 2 others -vrs- County Council of Kwale & 2 Others (2014) KECA 882 KLR the Court of Appeal stated thus:“ A Court of Law Cannot on the basis of indefeasibility of title sanction an illegality or give its seal of approval to an alleged or irregularly obtained title” I am guided by the above authorities in finding that the transfers efiected in favour of the Defendants were fraudulent and cannot stand. 65. I find that the particulars of fraud against the Defendants have been proved. The upshot of the matter is that I find that the transfers efiected on the 26th November 2015 in favour of the 1st and 2nd Defendants and subsequently to the 4th Defendant on the 18th January 2018 were fraudulent and cannot stand. 66. It therefore follows that the plaintifis are entitled to the reliefs sought in the Amended plaint. As stated earlier, the beneficiaries of the estate of Gichui Kimani are entitled to follow up on the title. They did not participate in these proceedings. They can file a separate suit against the plaintifis if they so wish. 67. I find that the plaintifis have proved their case as against the Defendants on a balance of probabilities. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1685/eng@2026-03-18 9

page 9 of 10

68. Accordingly, judgment is entered for the plaintifis as against the Defendants jointly and severally as follows: a. That a declaration is hereby issued that the title deed in the name of the 4th Defendant was fraudulently obtained. b. That a declaration is hereby issued that the 1st plaintifi is the legitimate owner of all that land known as Kajiado/Ntashart/316. c. That the 3rd Defendant is hereby directed to cancel all entries on the Green card showing the Defendants as the owners and to rectify the register by inserting the name of the 1st plaintifi within sixty (60) days from the date of this judgment. d. That the 3rd defendant is hereby directed to cancel the title deed in the name of the 4th Defendant and to register it in the name of the 1st plaintifi. e. That a permanent injunction is hereby issued to restrain the 4th defendant his servants, and or agents from interfering with the land known as Kajiado/Ntashart/316 f. That the costs of the suit be borne by the Defendants. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 18TH DAY OF MARCH 2026. L KOMINGOI JUDGE In presence of :Mr Mariaria for the plaintifis No appearance for the 1st, 3nd Defendants Mr Ochich for the 2nd, 4th Defendants. Court Assistant : Nelima https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1685/eng@2026-03-18 10

page 10 of 10