Mildsteel Engineering Works Limited v Nunda & 3 others (Environment and Land Case E283 of 2022) [2026] KEELC 1885 (KLR)

denied all the averments in the Plaint. They prayed that the Plaintifi’s case be dismissed with costs and interest to the 1st, 2nd and 3rd Defendants. 3. The 4th Defendant also filed a Statement of Defence dated 5/12/2022 and also denied playing any role in the issuance of the Certificates in question. 4. PW1 Miletus Oluoch Odero adopted his witness statement as his evidence in chief. In crossexamination he told the Court that he was Director in the Plaintifi’s Company and that he had authority from the other Directors but he had no authorization produced in Court to support this claim. He testified that the Company bought land from Peter Kilonzo on 5/2/2002 and that they did a search before purchase but the document has not been produced in Court. Upon further crossexamination he then changed and stated that he only went with the seller to the ofice but he did not conduct oficial search. 5. He testified that at paragraph 1 of the Agreement of Sale at line 5 a consent was to be obtained from City Council but that his Advocate never gave him the consent and so it is not produced in Court. Further he stated that he had not transferred the suit property to himself since 2002. 6. It was his testimony that he did not know that the suit property was owned by the 2nd Defendant and that for him he knows that he bought the suit property. He also told the Court that in the Plaint at paragraph it states that the PW1 - Melitus Oluoch Odero and not the Company is the Plaintifi. 7. Upon cross-examination by Mr Sonoiya for the 4th Defendant, he stated that he did not do a search at City Hall. He testified that he bought the suit property from allotment because he knows it has no title. He told the Court that the sale agreement does not bear the seal of the Company and that there is no signature of the purchaser on the sale agreement. He stated that the person who sold the suit property to him is deceased although he did not produce any document to show that his estate is distributed. 8. In re-examination he stated that the vendor used to pay rates as shown in documents at pages 19-23 and that the records at City Hall show the Plaintifi’s name. With that the Plaintifi closed its case. 9. The defence called three witnesses DW2 Virginia Njeri who upon cross-examination stated that the suit property belonged to her husband who was allotted in 1984. She told the Court in re-examination that the 4th Defendant’s letter at page 10 of the bundle attest to the fact that the land was re-allocated back to her in 1994 and that she sold the suit property on 14/04/2021. 10. DW3 Mary Kazira Kirungu testified that she was the registered owner and she was the owner of the suit property but she did not produce documents in Court to support her claim. Except for the plot card at page 13 and 124 of the 4th Defendant bundle. With this the 1st to 3rd Defendants closed their case. 11. DW4 Nicholas Kinoti Muriuki was a witness for the 4th Defendant. He stated that he works for the 4th Defendant as an Ag. Assistant Director Site and Service Schemes and he testified about the system used to allocate plots by the 4th Defendant. He testified that the suit property was first allotted to one David Mukundi (deceased) but that he never met the payment conditions. That the plot was repossessed as per the Memo dated 30/12/1994 and it was reallocated to his widow. The same Memo shows that one Peter Kilonzo had paid some money as at the time of the Memo being written including payment for rent and rates. 12. For the 2nd Defendant he stated that he had not attached any receipts to show payments made. Infact that the Peter Kavila Kilonzo was to pay a difierent sum for allocation of Kshs. 45,000/- and that as at 2023 the 2nd Defendant was willing to pay the Kshs. 45,000/- being what Peter Kavila had paid and she sought a reversion to her but he could not produce any document to show whether the Kshs. 45,000 was paid at all. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1885/eng@2026-02-27 2

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13. At page 24 of the bundle he stated that there is a Beacon Certificate issued to Peter Kavila yet the plot diverted back to Mukundi in 1994. He then stated that the Plaintifi paid Kshs. 12,000/- by the time the plot reverted back to Mukundi. 14. On further cross-examination by Counsel for the 1st to 3rd Defendants Mr Maranga, he told the Court that the Allotment Letter for Peter Kilonzo show that he was to pay a total of Kshs. 45,000/- within 5 years which ended in 1997 from 1992. That by the time he got the letter in 1994 he had a balance of Kshs. 32,000/- and that the receipt produced at page 19 show that Peter paid Kshs. 30,000/- which indicate that it was plan fee. 15. When re-examined he stated that the County ascertained that Mr Mukundi was dead by the time they reallocated the suit property to the 2nd Defendant. He however stated that they had not produced any document about Mr. Mukundi’s death in Court. He testified that if one does not conclude the payment of an allotted plot, they forfeit it. That the 1st Letter of Allotment was in 1985 and the 2nd letter was in 1992. He concluded by stating that he had not come across any payments by the Plaintifi nor has he received any payments from them. That he has never dealt with Mild Steel. With this the 4th Defendant closed its case. 16. The parties were directed to file their submissions which they did. The Plaintifi filed its submissions dated 9/09/2024, the 1st to 3rd Defendants filed theirs dated 7/02/2025 and the 4th Defendants submissions were dated 15/01/2025. Submissions 17. Counsel for the Plaintifi submitted that it has produced documents to show that money was paid to the 4th Defendant by the late Peter Kavila. That at the same time the Plaintifi has produced Allotment Letter dated 15/10/1992, a sale agreement dated 5/02/2002, rates receipts and beacon certificates dated 17/12/2008. That the Plaintifi’s Company entered into an agreement with the later Peter Kavila Kilonzo. 18. The Plaintifi has relied on two cases Danson Kimani Gacina & Another vs Embakasi Ranching Company Ltd [2014]eKLR and Caroline Awinja Ochieng & Another vs Jane Anne Mbithe Gitau & 2 Others [2015]eKLR. He submitted that the Plaintifi had proved its case as being a bona fide purchaser. 19. According to the Plaintifi’s Counsel, neither the 1st, 2nd, 3rd and 4th Defendants could produce any documents to prove that they had fulfilled conditions for allotment of the suit property since there were no documents to prove their claim. 20. Counsel for the 1st Defendant submitted that the Plaintifi though claiming to represent the Plaintifi Company did not produce any Certificate of Incorporation nor a letter authorizing him to represent the Company. Further that without presenting the Certificate of Incorporation of the Plaintifi’s Company, the Plaintifi was also not able to produce evidence to prove its existence. That he confirms that Peter Lukas Kavila Kilonzo died long ago before transferring any interest to it. 21. The 1st Defendant submitted that the Plaintifi did not disclose that Peter Kavila had died in 2002 before transferring the suit property to the Plaintifi. Infact that the Plaintifi did not disclose this critical fact and it only came out in cross-examination. Thus the Counsel for the 1st Defendant submits that the Plaintifi required Letters of Administration to have capacity to sue on behalf of the said Peter Kavila. 22. On the Plaintifi pleading on behalf of the Company it is submitted that the Plaintifi has not provided any evidence to show that he is authorized by the Company and therefore he has breached the provisions of Order 4 (2) of the Civil Procedure Rules. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1885/eng@2026-02-27 3

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23. The 1st, 2nd and 3rd Defendants have relied on among others the cases of Mayfoy vs United Africa Company [196 I] 23all ER, Dunlop Pneumatic Tyre Co. Ltd vs Selfridge & Co Ltd [1915], and Civil Appeal No. E013 of 2021 Mark Otanga Otiende vs Dennis Oduor Aduol eKLR among others. 24. Counsel submitted that the 1st, 2nd and 3rd Defendants’ transactional documents, being the Memo from 4th Defendant. receipt for payment of plan fees, receipt showing payment of legal fees and ground rent are prima facie proof of ownership of Plot No. LR No. B5-105 Kayole, and that the documents were procedurally issued. They submitted that the transaction was above board and that the 2nd Defendant followed the due process preceding the acquisition. 25. The witness on behalf the 4th Defendant submitted that this is an unregistered land whose history of ownership has revolved around Allotment Letter from the 4th Defendant. He further submitted that Peter Kavila from whom the Plaintifi’s claim to the suit property originates failed to meet the conditions of the Allotment Letter allegedly from the 4th Defendant. Thus he could not have passed good title to the Plaintifi. Further that the said Peter Kavila was dead by the time this matter was filed without transferring the suit property to the Plaintifi. Therefore that the Plaintifi’s case fails due to the legal requirement on meddling of the estate of a dead person. 26. He relied on the cases of Caroline Awinja Ochieng & Another vs. Jane Anne Mbithe Gitau & 2 Others [supra], and Supreme Court in Petition No. 5 (E006) of 2022-Torino- Enterprises vs. TheHon. Attorney General. And he submits that based on documentary evidence tendered by the 4th Defendant in this case, the Plaintifi’s claim to the suit property fails woefully in law and fact. Further, that the Plaintifi has also not produced any documents to show their ownership of the land, and if any, the alleged documents hold no weight against those produced by the 1st, 2nd and 3rd Defendants. Analysis and Determination 27. Having considered the pleadings of the parties, testimonies, evidence and submissions filed herein, there is only one issue that calls for determination and that is whether the Plaintifi or the 3rd Defendant is the legal owner of the suit property. 28. The Plaintifi herein filed this suit seeking to assert his right to property over Plot No B5-105, which he claims he purchased from one Peter Kilonzo Kavila who was allotted by the 4th Defendant. 29. The Plaintifi filed this Plaint contemporaneously with an Application for injunction against the Defendants whereby the Court heard the Application and vide a Ruling dated 23/05/2023 the Court allowed the Application for injunction against the Defendants on the ground that the Plaintifi had met the threshold for granting the said orders prayed for. 30. The Plaintifi testified that he entered into a written sale agreement with Peter Lukas Kavila Kilonzo on 5/02/2012 hence he is the owner of the suit land. He did not call any witness to corroborate his evidence and urged the Court to grant the orders as prayed. 31. The Defendants gave evidence and stated the suit land belongs to them as the person who allegedly sold the suit land to the Plaintifi had no good title to pass and further that Peter Lukas Kavila Kilonzo passed on in 2022 before signing transfer to the Plaintifi. 32. Sections 107, 109 and 112 of the Evidence Act provide that: “ 107. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1885/eng@2026-02-27 4

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1) Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 109. The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 33. It was the duty of the Plaintifi to persuade this Court that his suit is merited by adducing evidence to meet the burden of proof, which is on a balance of probability. 34. In determining the above issue, it would perhaps be appropriate to first state that tracing ownership of unregistered land is dependent on tracing the root of title. Unlike registered land where ownership is domiciled and founded in the register of titles, ownership of unregistered land and the ascertainment or confirmation thereof involves the intricate journey of wading through documentary history. 35. The simple reason is that unregistered titles exist only in the form of chains of documentary records. The Court has to perform the delicate task of ascertaining that the documents availed by the parties are not only genuine but also lead to a good root of title minus any break in the chain. It is the delivery of deeds or documents which assist in proving not only dominion of unregistered land but also ownership. The deeds must establish an unbroken chain that leads to a good root of title or title paramount. A good compilation of the documents or deeds relating to the property and concerning the claimant as well as any previous owners leading to the title paramount certainly proves ownership. It is such documents which are basically ‘the essential indicia of title to unregistered land’’: per Nourse LJ in Sen v Headley [1991] Ch 425 at 437. 36. The documents in my view are limitless. It could be one, they could be several. They must however establish the claimant’s beneficial interest in the property. Examples of the deed or documents include, at least in the Kenyan context: sale agreements, Plot cards, Lease agreements, Allotment Letters, payment receipts for outgoings, confirmations by the title paramount, notices, et al. 37. The instant case is no exception. It is for the Court to interrogate the evidence, especially documentary evidence and ascertain who between the two antagonists that is to say the Plaintifi on the one hand and the 3rd Defendant on the other hand, is the true owner of the suit plot. For the Court to conduct this rather wearisome and intricate task, it is proper that the documents unless otherwise agreed are produced in their original form or format. 38. To reiterate that statement stated herein, ownership of unregistered land and the ascertainment or confirmation thereof involves the intricate journey of wading through documentary history. Although, the 4th Defendant denies that any Letter of Allotment was issued to the Plaintifi for LR PLot No. B5-105 Kayole and that the Allotment Letter issued to Peter Lukas Kavila Kilonzo was recalled and re-issued to the 2nd Defendant the widow of the late David Mukundi when it turned out he was not able to pay the required fees. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1885/eng@2026-02-27 5

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39. In practice, Letters of Allotment are issued subject to meeting conditions set out therein and among the conditions to be met is payment of rates and rents subject to the property being allocated. The 4th Defendant testified and corroborated the 2nd Defendant’s claim to the suit property. He stated that in a Memo dated 30/12/1994 the 2nd Defendant was reinstated on the plot and Peter Kilonzo was ofiered another plot. 40. That the 2nd Defendant sold the suit property to the 3rd Defendant, Mary Kazira Kirungu. He produced a Search Certificate, a letter from Nairobi Metropolitan to Mary Kazira dated 14/04/2021, Memo dated 30/121994, Application for Allotment dated 30/08/1985, Letter of Allotment and plot cards for plot No. B5-105 Kayole to corroborate the testimony of the 2nd and 3rd Defendants. 41. The Plaintifi has presented on its part information that does not corroborate the claim staring with the Plaint showing that it is a Company with the claim and having the description of it showing it is a male adult. 42. The Sale Agreement required the Council to be notified that the vendor had transferred his rights to the purchaser and no evidence was provided to show that this was done. The 4th Defendant who is the one who allotted the suit property denied knowing or even dealing with the Plaintifi. 43. No evidence was presented to show that the Company is in existence, through presentation of CR 12, there was no authorization from the Company to appoint PW1 to represent the Company. In the end I am not able to see root of title from the evidence presented by the Plaintifi. 44. In the case of Stephen Mburu & 4 Others vs Comat Merchants Ltd & Aor [2012] eKLR, Kimondo J held that: “... from a legal standpoint, a Letter of Allotment is not a title to property. It is a transient and [is] often a right or ofier to take property.” 45. From the evidence adduced and the documents on record, I am convinced that Virginia Njeri Kungu was allocated the suit property and she claims to have subsequently sold the suit property to the 3rd Defendant Mary Kazira Kirungu although the trail for this is not clearly presented. What I am however clear about is that the Plaintifi has not presented information that shows the root of title to itself. 46. In the case of Republic vs City Council of Nairobi & 3 Others (2014) eKLR, Odunga, J. had this to say about land that has already been allotted: “ Once Allotment Letter is issued and the allottee meets the conditions therein, the land in question is no longer available for allotment since a letter of allotment confers absolute right of ownership unless it is challenged by the allotting authority or is acquired through fraud, mistake or misrepresentation or that the allotment was out rightly illegal, or it was against public interest. In other words, where land has been allocated, the same land cannot be reallocated unless the first allocation is validly and lawfully cancelled.” 47. In conclusion, noting that the Plaintifi has failed to discharge the burden of proof to establish his case, this Court dismisses the Plaintifi’s suit with costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 27TH DAY OF FEBRUARY 2025 VIA MICROSOFT TEAMS. ……………………… MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1885/eng@2026-02-27 6

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In the presence of:Mr. Maranga for 1st, 2nd and 3rd Defendants No appearance for the Plaintifi No appearance for the 4th Defendant Melita - Court Assistant ……………………… MOGENI J JUDGE ELCC No. E283 OF 2022 4 | Page https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1885/eng@2026-02-27 7

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