Omar v Rotich

entering upon, cultivating upon, transferring, occupying, leasing, charging, assigning or interfering with the Plaintiffs quiet possession of all that parcel of land known as Njoro/Ngata Block 27/20 situated in Nakuru, in default of compliance an eviction order do issue and which order should be enforced by the Officer Commanding Station, Menengai Police Station. c) A declaration that the Plaintiff is entitled to ownership and occupation of all that parcel of land known as Njoro/Ngata Block 27/20 situated in Nakuru to the exclusion of the Defendants herein. d) A declaration that any title documents held by the 1 st and 2nd and 4th Defendants relating to the property known as Njoro/Ngata Block 27/20 is invalid, null and void. e) Costs of the suit. 2. The 1st and 2nd Defendants filed a Statement of Defence dated 14 th October, 2022, to the Amended Plaint dated 7 th July 2021, and denied the averments in the Plaint and urged the court to dismiss the Plaintiff’s claim with costs and declare the 1st Defendant as the lawful allotee of the suit land. 3. The 3rd Defendant filed its Statement of Defence dated 11 th August, 2021 while the 5th Defendant filed its Statement of Defence dated 27th May, 2022 where they denied the contents in the Amended Plaint. 4. The 4th Defendant filed his Further Amended Statement of Defence and Counterclaim dated 3rd February, 2022 where he averred that he acquired NAKURU-ELC/15/2021-JUDGMENT

page 2 of 68

the suit parcel from the 5th Defendant and sought the following orders: a) A declaration that THOMAS KIPROP KIRUI the Plaintiff to the Counterclaim/4th Defendant is the lawful owner of the property comprised in Title Number LR 13287/34 (IR 40236/14). b) A declaration that the 1st Defendant to the Counterclaim/Plaintiff can espouse his claim respecting the purported land parcel number Njoro/Ngata Block 27/20 whenever it exists but such a claim should not be laid on the Plaintiff to the Counterclaim/4 th Defendant’s land parcel number LR 13287/34 (IR 40236/14). c) A declaration that the Plaintiff to the Counterclaim/4 th Defendant’s parcel number LR 13287/34 (IR 40236/14) is not parcel number Njoro/Ngata Block 27/20 if at all the latter parcel exists. d) A permanent injunction restraining the 1 st Defendant to the Counterclaim/Plaintiff himself, his servants, agents and or any other person acting at the Plaintiff’s behest from interfering with the Plaintiff to the Counterclaim/4th Defendant’s land parcel number LR 13287/34 (IR 40236/14). e) That the 1st Defendant to the Counterclaim/Plaintiff bears the costs of this suit and counterclaim. PLAINTIFF’S CASE 5. PW1 Omar Mohamed Omar adopted his witness statement dated 25th August, 2021, as his evidence in chief and testified that he is the owner of L.R No. 13287/34, and which he purchased on 12 th May, 2004 from Francis Bor Changwony at a consideration of Kshs. 12 million, that he paid through his advocate, Joseph Rioba, which amount Francis Bor NAKURU-ELC/15/2021-JUDGMENT

page 3 of 68

acknowledged receipt of in the sale agreement. He stated that he took possession thereof in May 2004, kept animals and planted maize but vacated it on 10th March, 2021, when goons invaded the property. 6. It was PW1’s evidence that after conducting due diligence, he established that Francis Bor Changwony applied for allocation of 24 acres from the 5th Defendant, ADC vide a letter dated 13th February, 1999, which PW1 produced as Pex. No. 8. PW1 further testified that Francis Bor Changwony paid the purchase price of Kshs. 40,720 to ADC for the allocation and was issued with a receipt by Lands Limited, and a transfer was subsequently registered by the 3rd Defendant conveying the interest from ADC to Francis Bor Changwony culminating in the issuance of a Grant No. IR 47995 dated 7th July, 1989, which he produced as Pex. No 6. 7. PW1 produced the title dated 10th March 2020 as Pex No.1 and further produced a certificate of official search dated 12 th February, 2021 which was marked PMFI-2, and photographs at Pages 6 – 8 of the destruction of the gate on the suit property as PMFI-3(a) – (e). PW1 also stated that his advocates wrote a letter to the DCI Nakuru dated 18th February 2021, which he produced as PExh.4, and a transfer dated 30th June, 1989 between the 5th Defendant and Francis Bor Chepkwony for LR No. 1328/34 as PExh.5. 8. PW1 further produced documents in the bundle at pages 53 to 74 as Pex. No. 9 to 16, and testified that at page 24 of the bundle a certificate of title issued to Francis Bor Changwony under entry No. 2, was a transfer to PW1 vide Presentation Book No. 1569 of 24 th August, 2005. He NAKURU-ELC/15/2021-JUDGMENT

page 4 of 68

further testified that entry No. 3 was a surrender to the Government of Kenya pursuant to a conversion which entry is dated 15 th October, 2019. He also referred to page 50 of the bundle, a letter of consent between the 5th Defendant and Francis Bor Changwony dated 12 th June, 1999, and produced as Pex. No. 7. 9. It was PW1’s further testimony that Francis Bor Changwony executed a transfer dated 13th July, 2004, got a consent from the Nakuru Land Control Board dated 22nd July, 2004 to transfer L.R No. 13287/34 from Francis Bor to himself and subsequently PW1 was registered by the 3rd Defendant as the owner of the suit land on 24 th August, 2005 after assessment and payment of stamp duty. 10. According to PW1, he remained in occupation uninterrupted until 2 nd February, 2021 when the 1st and 2nd Defendants tried dispossessing him without any justification, which prompted him to lodge a complaint with the Directorate of Criminal Investigations (DCI) and later filed the current suit where the court granted orders of injunction against the 1 st and 2nd Defendants but there were threats on his life and that of his workers, which forced him to relinquish possession. 11. PW1 therefore urged the court to grant the orders as prayed in the Amended Plaint with costs. 12. Upon cross-examination by Ms. Shirika, PW1 stated that he had sued the 3rd Defendant the Chief Land Registrar as he was in a better position to NAKURU-ELC/15/2021-JUDGMENT

page 5 of 68

explain what transpired in the transaction as the custodian of land records. 13. Upon further cross-examination by Mr. Murimi, for the 4 th Defendant, PW1 confirmed he bought the suit property on 12 th May, 2004 from Francis Bor Changwony at a consideration of Kshs.12Million. He stated that the search document showed that Francis Changwony was the owner of the suit land. 14. It was PW1’s evidence that he paid the said amount in cash through their lawyer Joseph Rioba, and that the advocate had Kshs.7 million from other transactions but admitted that he did not have the evidence of payment of Kshs.7 million. PW1 further stated that he paid Kshs.5 million cash in the lawyer’s office but did not have the Bank statement in court. It was his testimony that Mr. Francis Bor Changwony was deceased and that he took possession of the suit land after the sale agreement and vacated on 10 th March, 2021. 15. He further stated that the court order of 19th May, 2021 showed that the 4th Defendant was in occupation and that he had surrendered the title for conversion on 15th October, 2019 and got a new title on 10th March, 2020. 16. PW1 confirmed that he took possession of the suit property in 2004 but did not seek conversion until 2019, and explained that Francis Bor Changwony (deceased) had been allotted this parcel of land by the 5 th Defendant which held the mother title and had documents in respect of the suit land. PW1 also confirmed that his parcel No. LR No. 13287/34 was a subdivision of the mother title LR No. 13287 with 164 entries in the NAKURU-ELC/15/2021-JUDGMENT

page 6 of 68

mother title, and admitted that Francis Bor Changwony (deceased) was not in the entries. 17. PW1 admitted that Entry No. 14 was for the 4 th Defendant parcel No. 13287/34 which was the suit land before conversion and that Entry No. 160 was to John Rotich LR No. 16672/35, and that the transfer referred to survey plan No. 122715 while the certificate of title referred to survey plan No. 139444. PW1 was referred to page 24 of the bundle and stated that there was a charge to KCB on 17th June, 1991 and a further charge on 15th April, 1994, second charge on 4th May, 1995 and discharge of charge on 19th July, 2012. 18. It was PW1’s further testimony that the 4 th Defendant was compensated for easement in respect of his parcel of land but that he could not confirm that it was the same as LR No. 13287/34. He added that the valuation documents showed that the 4th Respondent was the owner of the suit land. PW1 also admitted that the 4th Defendant paid stamp duty on 19th July, 2012, but could not confirm the authenticity of the documents that he did not have knowledge of. He also stated that he could not confirm the document dated 16th June, 2021 on the petition against conversion of the titles. PW1 stated that he paid stamp duty when he bought the land but did not have the receipt in court. 19. On cross-examination by Ms. Kyalo for the 1 st and 2nd Defendants, PW1 stated that he was born on 16 th December, 1975 and that he bought the suit land in 2004 and that there were structures on the suit land when he took possession where he kept animals and planted maize but did not have evidence for the above activities. PW1 stated that the letters from ADC NAKURU-ELC/15/2021-JUDGMENT

page 7 of 68

dated 2nd May, 1989 were authentic. It was PW1’s testimony that he paid the purchase price cash to Advocate Joseph Rioba but did not have the receipts in court. PW1 admitted that he was not in possession of the suit land since he vacated in March 2021, after goons invaded the land. 20. On cross-examination by Mr. Karumpu, PW1 stated that they paid money through Joseph Rioba Advocate who was not a witness in the matter. He added that the land conversion was a process initiated by the Lands office. 21. PW1 admitted that the letter by the 5 th Defendant dated 27th April, 1989 addressed to Francis Bor Changony did not have the land parcel number and that the letter dated 23rd May, 1989 from Francis Changony to the Managing Director of the 5th Defendant showed a Banker’s cheque No. 12404 of Kshs.40,720/= and a receipt by Lands Ltd for Kshs.40,720/=. 22. On re-examination, by Mr. Rapando, PW1 stated that Lands Ltd was an affiliate of the 5th Defendant and further testified that he conducted a search on the suit parcel but was not able to confirm the authenticity of the entries of the 2nd Defendant’s documents in the mother title. 23. PW1 stated that he had not been shown the actual remittance to the 4 th Defendant, and that the actual survey plan No. was 122715 for title No. 13287/34 having been registered on 17th July, 1999. PW 1 further stated that he paid the purchase price as shown on the transfer at page 70 of the bundle. PW1 stated that the DCI report dated 27th August, 2021 found that his documents were genuine, and further that there was no report from the Ministry of Lands that his documents were not genuine. NAKURU-ELC/15/2021-JUDGMENT

page 8 of 68

DEFENCE CASE 24. DW1, (3rd Defendant) Edwin Munoko Wafula, the Land Registrar adopted his witness statement dated 11th August, 2021 as his evidence in chief and produced a list of documents dated 11th August, 2021, as Dex. No. 1. The witness was stood down to bring the parcel file. 25. DW2 (2nd Defendant) Daniel Kipkirui Ngerechi testified that he had the authority to give evidence on behalf of the 1st Defendant and adopted his witness statement dated 14th October, 2022, as his evidence in chief. He also produced his list of documents dated 14 th October, 2022, as Dex. No. 1 to 4. 26. Upon cross-examination by Ms. Shirika, for the 3rd Defendant, DW2, stated that he had no evidence against the Land Registrar, but stated that the Land Registrar colluded with the Plaintiff. DW2 admitted that he had not written to the Land Registrar regarding the complaint and that the documents were with ADC who are the custodians. He further stated that the land was allocated to John Rotich but he was not aware of the documents that were used to register John Rotich’s interest. 27. Upon cross-examination by Mr. Murimi, who referred DW2 to a letter dated 6th June, 1994 from the 5th Defendant where he stated that John Rotich was allocated the suit land by the 5 th Defendant. He further stated that he was not aware that the 5th Defendant had issued another title and that the grant No. was 40236/1, LR No. 13287 and that Entry No. 160 was an allotment to John Rotich. He added that LR No. 16672/35 measuring 4.2 hectares was approximately 10 acres. NAKURU-ELC/15/2021-JUDGMENT

page 9 of 68

28. DW2 further stated that the case before the court was for LR No. 13287/34, and that there was no evidence that it was allocated to John Rotich. He stated that Entry No. 14 was a transfer to the 4 th Defendant for LR No. 13287/34 and that the 4th Defendant has been cultivating maize on the land. 29. It was DW2’s evidence that John Rotich is not in occupation of the suit land as he has a different parcel of land where he resides. DW2 stated that the 1st Defendant reportedly consented to the offer in a letter dated November 7, 1988. DW2 further pointed to a February 6, 1990, letter from ADC, which allegedly stated the purchase price for the land would be shared later and requested a payment of Kshs. 18,940.00 to start the title paperwork. 30. Upon cross-examination by Mr. Karumpu, DW2 stated that parcel No. 13287/34 was allocated to John Rotich by the 5 th Defendant, but was not privy to any other allocation to the 1st Defendant. DW2 further stated that he neither knows how the Plaintiff’s and the 4 th Defendant’s claims arose. DW2 further stated that he came across the documents of allotment from the 4th Defendant and added that John Rotich followed the procedure for allocation of the land. 31. On cross-examination by Mr. Rapando, DW2 stated that he was testifying on behalf of the 1st Defendant John Rotich vide a power of Attorney which he had not produced in court. He admitted that the 1 st Defendant neither had transfer documents, a title, a consent from the Land Control Board, NAKURU-ELC/15/2021-JUDGMENT

page 10 of 68

nor evidence of payment of stamp duty. 32. DW2 further stated that he was only claiming an interest on behalf of the 1st Defendant, and confirmed that the letter dated 31st October, 1988, being the purchase document did not mention any LR No. He also admitted he neither had the original nor a certified copy in court. 33. DW2 stated that he did not have the application for allocation of the parcel by the 1st Defendant John Rotich who was a Provincial Forest Officer Rift Valley who wrote a letter dated 7 th November, 1988 on a government letterhead but did not mention the suit property. He stated that the letter dated 6th February, 1990 communicated the purchase of LR No. 13287/34 but failed to mention the purchase price. DW2 admitted that he had not filed any documents to show that Kshs.18,940/= was remitted to ADC, the 5th Defendant. He stated that John Rotich denied that he swore the replying affidavit on 15th March, 2021 but that it was sworn by an advocate whom he had not instructed. It was his evidence that he had not lodged any complaint against the lawyer. 34. It was DW2’s testimony that the 5 th Defendant was aware that the 4th Defendant fraudulently got his name in the allocation register. Further, when DW2 was referred to the letter dated 31st October, 1988, and he stated that the parcel referred to measured 25 acres. DW2 further stated that he neither had any sale agreement between John Rotich and ADC, the 5th Defendant nor any payment receipts. He also stated that he was not aware whether John Kibet Rotich had authority to write a letter on behalf of the 5th Defendant. NAKURU-ELC/15/2021-JUDGMENT

page 11 of 68

35. On re-examination by Ms. Kyalo, he stated that there was an entry in favour of John Rotich, and further that the letter dated 6th February, 1990, did not have the LR number but referred to the previous letters of allocations and the owner of the suit property was John Rotich. 36. DW3 (3rd Defendant) Patrick Oyalo, stated that he is a businessman but was previously a Police Officer based at DCI office in Rongai sub-county, Nakuru County. He testified that he conducted investigations over the suit property and produced the Report that was forwarded to the Attorney General vide a letter dated 26th August, 2020 contained in the 3rd Defendant’s supplementary list of documents dated 27th August, 2021. He produced the report as Dexh. No. 1 3rd Defendant). 37. Upon cross-examination by Ms. Kyalo, he admitted that the report was not dated, but had interviewed the Plaintiff, 4th Defendant and Fredrick Mutai. He admitted that he had interviewed neither John Bett nor Daniel Kipkirui. He stated that he got the documents from the 5 th Defendant and the records Officer Okinyo. (Witness stood for further cross-examination.) 38. Mr. Edwin Munoko Wafula was recalled where he adopted his witness statement dated 11th August, 2021, as his evidence in chief, and testified that the parcel No. in dispute is Njoro/Ngata Block 27/20, whereby the deed file had a copy of the title that was kept in the registry. He explained that Njoro/Ngata Block 27/20 before conversion from RTA to RLA, was IR No. 47995, and the proprietor was the Plaintiff who surrendered the NAKURU-ELC/15/2021-JUDGMENT

page 12 of 68

document. 39. DW1 produced certificate of title as Dex No. 1, the surrender document as DexNo.2 and the original title as 3 rd Defendant’s Dex No. 3. He also produced a copy of Rent clearance certificate for IR No. 27995 issued to Francis Bor Changwony and dated 13th July, 2004 as 3rd Defendant’s Dex.4. 40. He further produced a copy of the transfer document dated 13 th July, 2004 in respect of IR No. 47995 from Francis Bor Changwony to the Plaintiff as 3rd Defendant’s Dex. No. 5. He testified that he had the parcel file with the green card in respect of Njoro Ngata Block 27/20 and that the registered owner was the Plaintiff. 41. He stated that Entry No. 1 dated 10th March, 2020 was to the Government of Kenya, No. 2 to the Plaintiff and No. 3 was the title deed issued, which he produced as 3rd Defendant’s Dex. No.6. DW1 further produced the transfer document dated 14th February, 2020 of the suit land from County Government of Nakuru to the Plaintiff and registered on 10 th March, 2020 as 3rd Defendant’s Dex No.7. He stated that he was not aware of any documents which showed that the land registry had issued the suit land to two different people and produced the forwarding letter addressed to the District Land Registrar dated 6th March 2020 forwarding the lease document of the suit land as Dex No.8. He also stated that the registered owner of the suit land is the Plaintiff Omar Mohammed Omar. 42. Upon cross-examination by Mr. Karumpu, DW1 stated that the purpose of NAKURU-ELC/15/2021-JUDGMENT

page 13 of 68

conversion was to decentralize the land registry as the land was in the Central Registry in Nairobi. He further stated that there is no provision for conversion for purposes of facilitating a fraudulent transaction. It was his evidence that it is the owner of the land who surrendered the original title, and that Francis Bor Changwony was the previous proprietor. He added that the surrendered title was kept in the deed file and that when a parcel had more than 2 titles, they had to investigate. 43. Upon cross-examination by Mr. Murimi, he confirmed that he had never worked at the Nakuru Land Registry and that the deed files were normally kept in the Central Registry Nairobi. He also stated that he got the said deed file at the Nakuru Land Registry and that the land was initially owned by the 5th Defendant. It was DW1’s testimony the original grant was IR 40236 was in the name of Francis Bor Changwony. He further stated that he was not aware that the 5th Defendant had produced an original grant IR 40236 which had 164 entries where Francis Bor Changwony’s name did not appear in the entries. 44. DW1 stated that the grant LR 40236/14 and LR 13287/34 were the same, and referred to entry No. 14 which indicated that the allocation was to the 4th Defendant and not Francis Bor Changwony. He further stated that on 13th July, 2004, Francis Bor transferred the property for Kshs.12million but he stated that he had not seen any receipt for payment of stamp duty. 45. It was DW1’s evidence on cross examination that the deed of surrender was dated 15th August, 2019, but was not aware of any complaint of titles being converted from RTA to RLA without their consent. Witness was shown a transfer from the 5th Defendant to the 4th Defendant and a copy of NAKURU-ELC/15/2021-JUDGMENT

page 14 of 68

the title IR No. 40236/23 in the 4th Defendant’s name. 46. DW1 stated on cross-examination that the transfer in the mother title was IR 40236/14 and that the 4th Defendant’s documents were in tandem with the documents held by the 5th Defendant. He went on to state that in Entry No. 2, the 4th Defendant changed the suit property to KCB. He explained that it would not have been possible if Francis Bor owned the property since he had a second charge and further charge on 19th July, 2012. 47. DW1 stated on cross examination that the property was a freehold and therefore rent was not payable for freeholds. He added that Francis obtained a rent clearance certificate and the transfer from county government should be the government of Kenya and not the County Government of Nakuru and therefore the document was inconsistent. 48. DW1 was referred to the Petition dated 16 th June, 2021 where he stated that the letters were written to the Cabinet Secretary complaining that there was conversion of their land without their knowledge, but explained that the correspondence file could have shed light and only a person from Land Administration Department would have explained the details in the documents. 49. Upon cross-examination by Ms. Kyalo, DW1 stated that he currently worked at Chuka Land Registry and that he had gotten the documents from the Nakuru Land Registry and that he was giving evidence on behalf of the Chief Land Registrar. 50. DW1 stated that there was a circular in the Ministry that if you had NAKURU-ELC/15/2021-JUDGMENT

page 15 of 68

recorded a statement in a case, you must finish the case and that he had recorded the statement while working in Nairobi. He also stated that he had never dealt with a conversion, but explained that one had to make an application with a copy of a title and that one could not proceed with conversion if the title did not belong to the applicant. He also stated that the applicant in this case was the Plaintiff and the title was for Francis Bor but that there was entry No. 2 in the Plaintiff’s name. He further stated that he was not aware that there were other parties claiming the suit land. 51. Upon cross-examination by Mr. Rapando, he stated that as at 11 th August, 2021, he worked in the Court section at Ardhi House Nairobi and that his duties were to give instructions to the Attorney General where the Chief Land Registrar had been sued. He was referred to the certificate of title in the 4th Defendant’s name and stated that it was not one of the documents that was referred to him by the Attorney General. He was also referred to paragraph 16 of the defence and counterclaim where he stated that the entry was made in error in the name of the 4th Defendant. 52. DW1 further stated that the record of title to the 4 th Defendant Thomas Kirui was not found in the Chief Land Registrar’s records, and explained that in order for a charge to be validly registered there had to be a charge registered similar to a further charge instrument and discharge of charge. DW1 also stated that he had neither been shown a charge instrument nor a further charge and 2nd further charge instrument. He also stated that one could not register a valid charge without a Land Control Board consent, and could not comment on the entries or the authenticity without having seen the documents. NAKURU-ELC/15/2021-JUDGMENT

page 16 of 68

53. According to DW1, the Kenya Pipeline Company Notice had the details of registered owners were provided but the postal rentals of owner of parcel No 13287/34 were not indicated. It was DW1’s evidence on crossexamination that the purpose of the gazette notice was to inform the public of the intention to acquire, which invited comments from interested parties. Further that a notice is succeeded by an inquiry to establish the genuine owners for purposes of compensation and matters of the inquiry be recorded. 54. DW1 further explained that the final discussion was then to be communicated by way of an award and payment made to the genuine owners. Further that the gazette notice was not conclusive proof of ownership and stated that he had not seen any minutes of inquiry or evidence of an award to Thomas Kirui, the 4th Defendant. 55. It was DW1’s testimony that the process was to be completed by an excision and that there was no entry for excision by Kenya Pipeline, and added that they had not cited the complaints in the records of the 3 rd Defendant or any determination of the complaint. 56. He stated that a provisional certificate of title was issued on 24 th January, 2007 which is issued if the owner lost a title. He further stated that the 5 th Defendant, ADC, filed a provisional title and not the original. He explained that a deed of indemnity was necessary so that the government was not liable for the information provided, and that the land registry relies on the information given by the Applicant. 57. DW1 also stated that the mother title was in respect of LR No. 13287 in a NAKURU-ELC/15/2021-JUDGMENT

page 17 of 68

subdivision and that the titles would run from a series of 13287 and stated that the title could not accommodate LR No. 13287. He stated that Entry No. 163 was in respect of LR No. 16672/8 and 9 while Entry No. 160, 156 and 157 related to a different series. It was his evidence that the series should be the same as the original LR number, and further stated that the entries were not consistent with the way they should be. He stated that leases were prepared in the Land Administration Department. 58. On re-examination, by Ms. Shirika, DW1 stated that when the Chief Land Registrar has been sued, they do not require summons to come to court, as they can be called by the Attorney General to come and give evidence. He further stated that at the time he prepared the statement, he was working in the court section – Ardhi House Central Registry and the deed file was still in Nairobi and later transferred to Nakuru as the land had undergone conversion. 59. DW1 also stated that there were two issues since the matter touched on RTA and when the Chief Land Registrar has been sued, an officer from Nairobi had to come to court and not the Land Registrar. He admitted that he had not seen the documents by the Defendants in the parcel file and would not know who is on the ground. 60. DW3, Patrick Oyalo, was recalled for further cross-examination and upon cross-examination by Ms. Kyalo, he stated that he learnt of the present case at the time they were carrying out investigations. It was his evidence that he came to learn about the 1st and 2nd Defendants upon receipt of a NAKURU-ELC/15/2021-JUDGMENT

page 18 of 68

court order and explained that he sought the assistance of Mr. Wakiaga Advocate but never followed up since the advocate informed him that they would pursue a civil case. 61. He stated that they were given the documents by the original owner the 5 th Defendant who had a duty to allocate the land and there was no reason to dispute that position. He further stated that the people he interviewed did not talk about the 1st and 2nd Defendants. 62. Upon cross-examination by Mr. Murimi, DW3 stated that the 1 st owner was the 5th Defendant, ADC and further stated that he neither investigated the money trail of payment of Kshs.12million by the Plaintiff nor seen any payment receipt for stamp duty. He added that the complaint was by the 4th Defendant, Thomas Kirui who reported that on 11 th March, 2021 the Plaintiff claimed ownership of the suit land. 63. According to DW3, when he got the documents from the 5th Defendant and the Ministry of Lands, there were no records of the 4 th Defendant, Thomas Kirui, and that he had not been supplied with the information that the 4th Defendant had been allocated the land. 64. He further stated that the findings were that the Plaintiff bought the land in August 2005 and the documents the 4th Defendant provided never reflected in the Ministry of Lands file. He also stated that the search supplied was dated 12th March, 2021 and that the search by the 4th Defendant was a recent one. He stated that his findings were that the 4 th Defendant’s title was fraudulently acquired and that there is a NAKURU-ELC/15/2021-JUDGMENT

page 19 of 68

correspondence by ADC to the National Police Service dated 5 th July 2021. 65. Upon cross-examination by Mr. Karumpu, DW3 stated that he did not have any personal interest in the case, and that he supplied the letter dated 15th June, 2021 to the Attorney General’s office which had requested certified copies of the green card, and any other relevant documents. He stated that the letter dated 5th July, 2021 from A. Okinyo forwarded the certified copies of the originals. 66. DW3 further stated that he had been given a certificate of title in the name of Francis Bor but not the mother title in the 5 th Defendant’s name. He confirmed that the documents issued to him were in the name of Francis Bor Changwony. He added that he never received any receipt for the purchase of the suit property but only saw the conversion from the documents he had received. He also stated that the two numbers in the report were in respect of the same parcel of land and that the document from the 5th Defendant was LR No. 13287/34. 67. Upon cross-examination by Mr. Rapando, who referred him to a transfer from the 5th Defendant to Francis Bor Changwony, a transfer between Francis Bor Changwony and the Plaintiff where he stated that he was not familiar with the processes of payment of stamp duty. 68. He further stated that the Land Registrar Nakuru had supplied him with a copy of a green card, and that the owner according to the green card was the Plaintiff. He explained that in the course of his investigations he NAKURU-ELC/15/2021-JUDGMENT

page 20 of 68

obtained documents from the 5th Defendant while others were supplied by Mr. Agola Okinjo a Senior Records Officer with the 5 th Defendant. It was his testimony that he had not been shown any document that Mr. Agola Okinyo was dismissed from employment of ADC because of the letter that he wrote. 69. He stated that he never doubted the documents since they had been certified by the 5th Defendant. He also stated that he had not come across any document that the property was allocated to the 4th Defendant. 70. On re-examination, by Ms. Shirika, he stated that all the documents he had annexed to his report originated from the 5th Defendant, and further that he had not been supplied with the mother title from the 5th Defendant. 71. DW4 (the 4th Defendant) Thomas Kirui adopted his witness statements dated 5th January, 2022, 12th January 2022, and 22nd June, 2022 respectively, as his evidence in chief and stated that he was a practicing land surveyor. He also produced three bundles of documents filed on 5 th January, 2022, 22nd June, 2022 and 14th May, 2025. 72. It was his testimony that in June 1989, he had been allocated land by the 5th Defendant and the transfer was dated 1st July, 1989. He further testified that prior, he had been issued with a letter of allotment LR No. 13287/34 Grant No. IR 40236/14, which he produced the original transfer form as 4th Defendant’s Dex No. 1. He further testified that he had been issued with a title on 4th August, 1989 for the suit land LR No. 40261/14 which NAKURU-ELC/15/2021-JUDGMENT

page 21 of 68

he produced as Dex No.2, and referred to Entry No. 14, which confirmed that a transfer was in his favour, of which the original title referred to LR No. 40236/14, was in tandem with entry No. 14 in the mother title. 73. DW4 testified that he took a loan on 17 th June, 1991 from KCB for Kshs.150,000/=, a further charge to KCB on 15 th April, 1994 and a second further charge on 4th May, 1995, and requested a discharge which was effected on 19th July, 2012. 74. It was his testimony that the parcel measured about 24acres, where he has been farming wheat, grass and maize. He added that he conducted a search on 12th March, 2021, which showed the IR and LR Nos and confirmed that he was the owner he produced it as 4 th Defendant’s Dex.3. He further produced a survey plan as PMFI No. 4, and stated that he paid rates to the county until the year 2025, of which he produced the receipts as 4th Defendant’s Dex No. 5. 75. It was DW4’s evidence that on 10th March, 2021, a neighbor informed him that there were some people who had demolished his fence and were putting up theirs. He stated that he reported the matter to Ngata Police Post and that the OCS Menengai got a court order dated 5 th March, 2021 in respect of this suit, of which he was not a party to the case that referred to plot No. Njoro Ngata Block 27/20 being his land parcel. He produced a copy of the court order as 4th Defendant Dex. No. 6. 76. He also relied on photographs of the land parcel dated 11 th March, 2021, which were marked as DMFI 7, and that the court granted an order dated NAKURU-ELC/15/2021-JUDGMENT

page 22 of 68

18th May, 2021 which joined him as a co-defendant. He added that the status quo was to be maintained with him being in possession, which he produced as the 4th Defendant Dex. No. 8. 77. It was his testimony that he obtained a certified copy of the mother title from Cheptumo & Co. Advocates which title was in tandem with the copy that was produced by the 5th Defendant. The same was marked as DMFI 9. He testified that Grant No. IR 40236 under entry No.14 confirmed that it was transferred to the 4th Defendant and produced the rate clearance certificate as Dex No. 10. 78. DW4 testified that in 1991 the Kenya Pipeline constructed a pipeline from Nakuru to Kisumu and that Geo Maps was given the task to survey the land from Nairobi to Kisumu and prepared a document which mentioned the suit land which he produced as Dex. No. 11.DW4 further produced a letter dated 13th May, 1992 as 4th Defendant Dex. No. 12, an advertisement to all members affected by Kenya Pipeline as 4th Defendant Dex. No. 13, a valuation done by Kinyua Koech Valuers for purposes of securing the loan on 6th January, 1994, as 4th Defendant Dex. No. 14. He stated that there was correspondence dated 21st May, 2001 from the 5th Defendant which confirmed that he did work for the Corporation, where he was allocated land in lieu of professional fees and produced the letter as 4 th Defendant Dex. No. 15. He also testified that he was compensated via gazette Notice dated 1st April, 2010 by the Commissioner of Lands. 79. According to DW4, the suit land mentioned the registered owner as the 4 th Defendant and produced the letter as 4th Defendant Dex. No. 16, produced NAKURU-ELC/15/2021-JUDGMENT

page 23 of 68

the discharge of charge registered on 19th July, 2012 as 4th Defendant Dex. No. 17, application for registration and payment of stamp duty as 4 th Defendant Dex. No. 18(a) and (b). 80. DW4 testified that there was no transfer entry from Changwony to the Plaintiff and that the petitions to the Lands Ministry that there were conversions of their properties without their knowledge. He testified that if there were any conversions, then it should have been in the Kenya Gazette and produced the petition as 4th Defendant Dex No. 19. 81. He testified that the Director of Surveys told him that the plans were withdrawn and that John Rotich was allocated LR No. 16672/35, and that the search showed that John Rotich was the owner of LR No. 16672/35, which he produced it as 4th Defendant Dex No. 20. It was DW4’s testimony that John Rotich did not appear in any other entry in the mother title apart from entry No. 160, and produced a reconciliation service letter dated 24th August done to him for payment of his professional service as 4th Defendant Dex No. 21. He further produced a letter dated 5 th April, 2001 as 4th Defendant Dex No.22 and testified that he got the land regularly as confirmed by the 5th Defendant’s documentation and that the search dated 16th February, 2024 indicated that the land is still registered in his name at the Central Registry Nairobi, which he produced as 4 th Defendant Dex. No. 23. 82. It was his testimony that the Plaintiff never bought the land from Francis Bor Changwony and that the damaged gate was in John Rotich’s farm, and he urged the court to enter judgment as per the counterclaim and dismiss the Plaintiff’s case with costs. NAKURU-ELC/15/2021-JUDGMENT

page 24 of 68

83. Upon cross-examination by Ms. Kyalo, DW4 stated that he was a consultant with the 5th Defendant, and that the contract was verbal and that the 5th Defendant had been exempted from the Land Control Board. It was his testimony that from 1991, one had to obtain a Land Control Board consent, and that there was no other transaction apart from the ones on the entries of the title. 84. DW4 stated that the court order dated 19th May, 2021, confirmed that he was in possession, and that the 5th Defendant owed him some survey fees but did not produce any invoice. He further stated that he was issued with a cheque from the DC’s office. It was DW4’s evidence that the conversion was not done and that he had an allotment letter which got lost in June 1989. He stated that he never reported the matter to the police or anywhere. He admitted that there were two titles and that he produced the one of 1985 and that there were provisional titles of 2007 which are the same. 85. On cross-examination by Ms. Shirika, DW4 stated that LR No. Njoro/Ngata/Block 27/20 did not exist. He added that he faulted the Chief Land Registrar for issuing parallel titles in respect of the same parcel of land. Further stated that he had his title which was issued in Nairobi and another one in Nakuru. He further confirmed that he never disputed the documents produced from the Lands Office. 86. Upon cross-examination by Mr. Karumpu for the 2 nd Defendant in NAKURU-ELC/15/2021-JUDGMENT

page 25 of 68

counterclaim, he stated that he was employed as a licensed surveyor from 1981 until 2003 when he retired. He confirmed that he carried out duties assigned by the 5th Defendant which he still did, and further that he was allocated the land in 1989 after he requested the late Dr. Kilele to allocate him land. 87. DW4 stated that the land was free and that he only paid for the transfer through Iseme & Kurgat Advocates. He stated that the 5 th Defendant paid him for the professional services with land in lieu of fees and that LR No. 13287/34 was one of the parcels. He added that he did the work in his personal capacity and not as an employee of the Ministry of Lands, and could not recall where he collected the title. 88. Upon cross-examination by Mr. Rapando, he stated that he had verbally requested the land, and admitted that he did not have an allotment letter or sale agreement with the 5th Defendant. He further admitted that he did not have evidence of the 5th Defendant being exempted from LCB. DW4 further confirmed that he did not have the relevant charge instruments. He added that the transfer instrument was signed on 1 st July, 1989 at a consideration of Kshs.28,000/= and that he only paid stamp duty. 89. DW4 was referred to the letter dated 21st May, 2001, where he confirmed that the value assigned in the letter was Kshs.120,000/= and admitted that he did not know whether valuation was done before he was given the letter. It was his evidence that the land to be acquired was 0.645 Ha and the said letter did not state that he was the owner. NAKURU-ELC/15/2021-JUDGMENT DW4 referred to the

page 26 of 68

internal memo from KPC for payment of compensation where he stated that the cheque was supposed to be drawn in favour of the District Commissioner Nakuru, and that he collected the compensation from the District Commissioner. 90. DW4 stated that he was the registered owner of the suit property, and was paid Ksh.310,000/= as compensation for the extension of the road and that he was registered on 4th August, 1989 but the document was dated 27th July, 1989. 91. On re-examination, by Mr. Murimi, he stated that they could not believe everything from the 5th Defendant without documentation. He stated that Entry No. 14 in the mother title was in his name and that he got the mother title from Hannah Wendot who was an Advocate for the 5th Defendant. 92. He further stated that Entry No. 164 showed that the 5 th Defendant got a provisional title on 24th January, 2007 and that the two entries tallied with Entry No. 14. He further stated that he did his due diligence by going to the Director of Survey and explained the authenticity of the documents as per the Director of Land Administration. 93. DW4 confirmed that he never surrendered his title and further confirmed that his title was an RTA title while that of the Plaintiff’s was an RLA title. He stated that the 5th Defendant never filed a suit to cancel his title and that the 5th Defendant prepared documents which showed the engagement and the payments made. It was his evidence that he was paid NAKURU-ELC/15/2021-JUDGMENT

page 27 of 68

Kshs.75,615/= as compensation and that KPC was supposed to register the easements. 94. DW5 (5th Defendant) Ruth Wanjiku Macharia adopted her witness statement dated 27th September 2022 as her evidence in chief and testified that she worked as an accountant with the 5 th Defendant. She testified that the suit land was allocated to one John Kibet Rotich by the Corporation vide allocation letter dated 31st October, 1988. 95. She referred to a letter dated 7th November, 1988 and testified that as per their records, there was no any other allottee to the suit land apart from John Kibet Rotich. She further testified that no payment had been made to the 4th Defendant as professional fees for the suit land as he was paid in monetary terms. 96. DW5 referred to a voucher dated 22nd October, 2001 and testified that the payment was for Kshs.300,000/- in favour of the 4th Defendant and another payment remittance dated 19th September, 2001 for Kshs. 100,000/= to the 4th Defendant, which payments were in respect of survey fees to the 4th Defendant. 97. DW5 testified that the allottee, John Rotich satisfied the requirements of allotment and paid for the plot and produced the debtors list as Dex No. 24. It was her testimony that there was a ledger showing the title of the document and the account’s name and address list. It was her evidence that the entry was done on 28 th May, 1991 which she produced as Dex No. 25., and that land was never given for free as per their records. NAKURU-ELC/15/2021-JUDGMENT

page 28 of 68

98. Upon cross-examination by Mr. Murimi, DW5 denied that the 5 th Defendant allocated land to one Francis Bor Changwony. She further stated that the transfer dated 30th June, 1989 was falsified documents. DW5, was referred to Entry No. 14 and confirmed that the suit land was transferred to the 4th Defendant in the mother title produced by the 5th Defendant. She further confirmed that John Rotich was allocated parcel No. LR no. 16672/35 measuring 4.2 Hectares – about 10 acres. DW4 stated that Entry No. 14 measured 9.72 Hectares about 24 acres, but DW5 confirmed that the 5th Defendant allocated John Rotich only one parcel of land. 99. DW5 was referred to the search dated 17th June, 2022, Dex 4 which was in respect of 16672/35 measuring 4.2 Hectares in John Rotich’s name and confirmed that it tallied with entry No. 160 in the mother title produced by the 5th Defendant. She denied having seen a title to the suit land showing that John Rotich was the owner. 100. DW5 was further referred to a letter dated 31 st October, 1988 where she confirmed that it did not specify the parcel of land that John Rotich was allotted and further that the letter dated 7 th November, 1988 did not show the exact parcel John Rotich was being allocated. 101. She admitted that the letter dated 6 th February, 1990 was the only letter that referred to the suit land LR No. 13287/34 and confirmed that the 4 th Defendant was issued with a title on 4 th August, 1989. She also admitted NAKURU-ELC/15/2021-JUDGMENT

page 29 of 68

that there was already a title held by the 4th Defendant by the time the 5th Defendant wrote a letter dated 6th February,1990 to John Rotich for allocation. 102. DW5 confirmed that the 4th Defendant was an employee of the 5th Defendant and was referred to a letter dated 24 th August, 2000 where she also confirmed that there was an employee known as Chege Mwangi, J. K. Siror. She further stated that the 5th Defendant has not filed any complaint or suit against the 4th Defendant for recovery of the suit land. She also admitted that the ledger did not show the parcel Mr. Rotich was paying for the debt. 103. Upon cross-examination by Ms. Shirika, DW5 was referred to the letter dated 31st October, 1988 where she stated that she was not sure of the purchase price for the parcel to John Rotich. She confirmed that if allocation was done subject to payment of the purchase price and the same was not paid then it was a nullity. She denied having worked for Lands Ltd in the 1990’s and stated that she was unable to confirm that the suit land was allocated to Francis Bor Changwony. 104. On cross-examination by Ms. Kyalo, DW5 stated that John Kibet paid the purchase price to the 5th Defendant and added that Parcel No. 16672/35 was not the disputed land. 105. It was DW5’s testimony that Lands Ltd was a subsidiary of the 5 th NAKURU-ELC/15/2021-JUDGMENT

page 30 of 68

Defendant, but denied that they had any payment records for the 4 th Defendant or the Plaintiff. She stated that John Kibet owed the 5 th Defendant money from September 1991 to December 1992 which debt was paid. 106. Upon cross-examination by Mr. Rapando, DW5 stated that she had worked with the 5th Defendant from 2015 to date, and explained the allocation processes where she stated that a prospective applicant must make an application. She stated that thereafter, a letter of allocation by the 5th Defendant sets out the purchase price and that in the absence of payment, the allocation lapses. 107. DW5 admitted that she did not have the application letter from John Kibet Rotich and that the letter never showed the parcel being allocated, and further that the letter dated 7th November, 1988, did not show the parcel that had been accepted. DW5 was referred to the letter dated 6th February, 1990 which was a request for payment of Kshs.18,940 for the suit property, and admitted that she did not have evidence of payment of Kshs.18,940/= by John Rotich. 108. DW5 further stated that she did not have a receipt to confirm payment of the debt by John Rotich but agreed that the receipt dated 7 th June, 1989, was issued by Lands Ltd to Francis Bor Changwony and that the receipt number existed in their records. DW5 also stated that their series by 1989 was different, however, she admitted that she did not have a register of the series that they used in 1995. She further stated that the documents by Francis Bor Changwony and the Plaintiff never emanated from the 5 th NAKURU-ELC/15/2021-JUDGMENT

page 31 of 68

Defendant. 109. It was DW5’s evidence that the 5th Defendant supplied some documents to the DCI in respect of Francis Bor Changwony on 7 th March, 2021, and that the letters were in respect of the suit parcel of land, namely, the letter dated 15th June, 2021 and 5th July, 2021. 110. Upon re-examination by Mr. Karumpu, she stated that there was no maximum number of parcels that a person would be allocated and that Entry 160 in respect of LR 16672/36 was not in dispute. She stated that the 4th Defendant carried out survey work for the 5th Defendant and admitted that she knew a person called Agola who was a staff of the 5 th Defendant. 111. DW6 Nicholas Ayugi Adongo adopted his witness statement dated 27 th May 2022 as his evidence in chief together with the documents which he produced as Dex No. 1 to 11 and testified that he worked as the Lands Administrator in Lands Ltd a subsidiary of the 5th Defendant. 112. Upon cross-examination by Mr. Murimi, he denied that Mr. Francis Bor Changwony or the 4th Defendant was not allocated land by the 5 th Defendant. He further stated that the original grant had 164 entries and Francis Bor Changwony was not among the entries. 113. He added that Entry No. 14 showed a transfer to the 4th Defendant which was contested measured 9.73Ha approximately 24acres, LR No. 13287/34, IR No. 47995. He added that Entry No. 160 transfer to John Rotich LR NAKURU-ELC/15/2021-JUDGMENT

page 32 of 68

16672/35 measured 4.2Ha about 10 acres. He also stated that entry on the mother title in the name of the 4th Defendant was irregularly entered. 114. DW6 was referred to the official search for transfer to John Rotich dated 21st January, 2001 for LR No. 16672/35 and stated that there was no title document in the name of John Rotich in respect of LR No. 13287/34. He was referred to the letter dated 31st October, 1988 where he stated that it did not show the parcel number. 115. DW6 was referred to the certificate of title in the name of the 4 th Defendant and stated that the transfer showed that it was done on 1 st July, 1989. He stated that John Rotich was allocated 2 parcels of land being LR No. 16672/35 and LR No.13287/34 measuring 10 and 24 acres respectively. 116. He was referred to the letter dated 6 th June, 1994 to John Rotich where he stated that the same was not signed. He denied knowing Chege Mwangi. But confirmed that J. K. Siror was a Managing Director of the 5 th Defendant. Further that the 5th Defendant never sought cancellation of the 4th Defendant’s title since 1989. 117. On cross-examination by Ms. Shirika, DW6 stated that he had not perused the documents produced by the Land Register and admitted that the transfer document was drawn by Jane D. Otieno Advocate who worked for the 5th Defendant. DW6 further stated that the Managing Director upon allocation would sign the allocation letter and that the letter dated 27th NAKURU-ELC/15/2021-JUDGMENT

page 33 of 68

April, 1989 by the Land Registrar to Francis Bor Changwony (Dex No. 4) was signed by the Managing Director Walter Kilele. 118. Upon cross-examination by Ms. Kyalo, DW6 stated that the suit parcel was LR No. 13287/34 while the 2nd parcel No. 16672/35 was not subject to the present suit. He stated that John Kibet accepted the allocation on 7 th November, 1988 and that the allocation letter did not originate from the 5 th Defendant as during his search he did not come across the allocation details. 119. He stated that he could not confirm whether the signature was that of Walter Kilele or not. He added that Entry No. 14 was contested and that is the reason the matter was currently in court. Further that he did not know how it was made on the title. He also stated that he had not come across any allocation letter to the 4th Defendant. 120. DW6 added that the 4th Defendant only offered survey services to the 5th Defendant and stated that the payment to the 4th Defendant by Lands Ltd was for survey services. He denied that there was any transfer document for Francis Bor Changwony in their records. He stated that the suit land was allocated to John Rotich. 121. Upon cross-examination by Mr. Rapando, he stated that allocation of land by the 5th Defendant was preceded by an application for allocation and where the application has been approved, a letter of allotment was issued. He stated that they would communicate the purchase price and payment NAKURU-ELC/15/2021-JUDGMENT

page 34 of 68

details and upon payment of the purchase price a transfer would be processed. 122. DW6 further stated that an LCB consent had to be procured and stated that he had not come across any document that exempted the 5th Defendant from getting LCB consent. He admitted that the 5 th Defendant never made any forgery complaint to the police and that the letter dated 31 st October, 1988 being the allocation to John Rotich did not show the parcel number but only referred to 25 acres. 123. DW6 further stated that the letter dated 6 th February, 1990 was the only document that confirmed the allocation of LR No. 13287/34 and admitted that he had not produced the document which showed the purchase price that John Kibet Rotich was to pay. He also did not produce any document confirming payment of the amount requested Kshs.18,940/=. 124. DW6 confirmed that the schedule of list of allotees that owed the 5 th Defendant money did not mention the parcel numbers. He confirmed that John Rotich owed the corporation Kshs.197,641 and that there were handwritten comments/alterations that were not countersigned. 125. DW6 admitted that the ledger did not show the parcel number and stated that the batches of the receipts existed in the records kept by the 5 th Defendant and was unable to trace the actual counterfoil for serial No. 14152. It was his evidence that he had not filed a register to show that the said receipt number was not in use in 1989. NAKURU-ELC/15/2021-JUDGMENT

page 35 of 68

126. According to DW6, he was not aware that the matter was subject to police investigation and had not seen the letter dated 15th July, 2021. DW6 stated that there was only one allocation letter to John Kibet Rotich and denied that they were paid through land allocation. 127. Upon re-examination by Mr. Karumpu, he stated that LR No. 16672/35 was not subject to the present proceedings and the letter dated 31 st October, 1988 was issued while subdivisions were ongoing. He added that the allottees would be given the parcel numbers upon subdivision. PLAINTIFF’S SUBMISSIONS 128. Counsel for the Plaintiff filed his submissions dated 7th April, 2026, where he gave a summary of the case and identified the following issues for determination: a) Whether the Plaintiff is a bonafide purchaser for value that holds a legal title over Njoro/Ngata Block 27/20 (formerly L.R No. 13287/34). b) Did the 4th Defendant validly acquire the Property from ADC? If so, does he hold a valid title? c) Does the 1st Defendant hold a valid interest over the Property? d) Have allegations of fraud against the Plaintiff and the 4 th Defendant been proved to the required standard? e) Who should bear costs? 129. On the first issue, counsel relied on the case of Dina Management Limited V County Government of Mombasa & 5 others [2023] KESC 30 (KLR) which cited with approval the decision of the Court of Appeal NAKURU-ELC/15/2021-JUDGMENT

page 36 of 68

in Samuel Kamare V Lands Registrar, Kajiado Civil Appeal No. 28 of 2005 [2015] eKLR. 130. It was counsel’s submission that the Plaintiff produced his title deed dated 10th March, 2020 and a certificate of official search dated 12 th February, 2021 to show that he is registered as the owner of Njoro/Ngata Block 27/20. Counsel further submitted that the Plaintiff led evidence that he entered into a sale agreement on 12th May, 2004 with Francis Bor Changwony for the purchase of L.R No. 13287/34, who was then registered at a consideration of Kshs. 12Million which the Plaintiff paid in full of which Francis Bor Changwony acknowledged. (See Pexh No. 17.) 131. It was counsel’s further submission that the after the Plaintiff paid the consideration the vendor executed a transfer instrument dated 13 th July, 2004 that was duly registered by the 3rd Defendant on 24th August, 2005 (Pexh No. 18). 132. Counsel reiterated the evidence as enumerated above and submitted that the moment the Plaintiff produced allocation records issued to Francis Bor Changwony by the 5th Defendant, he discharged the initial burden of proving that the 5th Defendant allocated the parcel to Francis Bor Changwony. It was counsel’s further submission that the evidential burden of proving that the 5th Defendant did not allocate the property to Francis Bor Changwony shifted to it, which it failed to discharge and cited the cases of Chania Logistics Limited V Wathigo & 3 others [2022] KEELC 3884 (KLR), Gwer & 5 others v Kenya Medical Research Institute & 3 others (Petition 12 of 2019) [2020] KESC 66 NAKURU-ELC/15/2021-JUDGMENT

page 37 of 68

(KLR) (Civ) (10 January 2020) (judgment), and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR 133. Mr. Rapando submitted that the evidence that the Plaintiff adduced was corroborated by DW1 and DW3 which made it clear that Francis Bor Changwony legally acquired L.R No. 13287/34 from ADC before he sold and transferred it to the Plaintiff. He stated that the exhibited documents show that Francis Bor Changwony applied to ADC for allocation; ADC allocated him the Property on 27 th April, 1989; ADC vide a letter dated 2 nd May, 1989 wrote to him notifying him to pay Kshs. 40,720.00; he paid Kshs. 40,720.00 to ADC and was issued receipt number 14152 dated 7 th June, 1989; on 8th June, 1989 ADC applied for the consent of the Nakuru LCB to transfer L.R No. 13287/34 to Francis Bor Changwony; consent was duly given on 12th June, 1989; a transfer dated 30th June, 1989 duly executed by ADC and registered by the 3 rd Defendant as I.R No. 47995 whereupon title was issued to him on 7th July, 1989. 134. Counsel submitted that the Plaintiff successfully proved that due process was followed, including obtaining the mandatory Land Control Board (LCB) consent that led to his official registration as the owner on 24 th August, 2005, before he surrendered the title for conversion. 135. Mr. Rapando submitted that the question for consideration is whether the Plaintiff’s title should be vitiated because the transfer of land dated 14 th February, 2020 shows that interest over Njoro/Ngata Block 27/20 was granted by the County Government of Nakuru instead of the Government NAKURU-ELC/15/2021-JUDGMENT

page 38 of 68

of Kenya. He stated that the evidence of Land Registrar Edwin Wafula Munoko was that this transfer of land was prepared and executed by the Chief Land Registrar on 14th February, 2020, booked for registration, assessed and stamped and forwarded to the District Land Registrar under the letterhead of the Ministry of Lands dated 6th March, 2020 for registration. That the Chief Land Registrar not only prepared and executed this transfer of land but also forwarded it to Nakuru for registration. 136. Counsel therefore submitted that the Court should reject the invitation to impeach the Plaintiff’s title on account of perceived errors at the Ministry of Lands over which neither Francis Bor Changwony nor the Plaintiff were parties to. It was counsel’s submission that the Plaintiff’s title should not be vitiated by the issuance of a land rent clearance certificate dated 14th July, 2004 to Francis Changwony in respect to the property whose tenure is freehold, which DW1 claimed that this is an inconsistency, but no law or case law provides that application for and issuance of a land rent clearance by the Ministry of Lands over land whose tenure is freehold vitiates a title. He relied on the cases of Solomon Omwega Omache & another V Zackery O. Ayieko & 2 others [2016] eKLR, and Kibos Distillers Limited & 4 others vs. Benson Ambuto Adega & 3 others [2020] eKLR, on the principle that a Court presumes that official duties have been properly discharged and all procedures followed until the challenger presents clear evidence to the contrary. 137. On the second issue as to whether the 4th Defendant validly acquired the property from ADC, and whether he holds a valid title, counsel submitted NAKURU-ELC/15/2021-JUDGMENT

page 39 of 68

that although the 4th Defendant claimed that the 5th Defendant allocated him the property and executed a transfer on 1st July, 1989, he admitted that he never paid the Kshs. 28,000 considerations stated on the transfer document. Counsel argued that the 4th Defendant also failed to produce an application for allocation, an allotment letter or an LCB consent, which was legally required to transfer agricultural land. 138. According to counsel, the 4th Defendant’s assertion that the 5th Defendant gave him the land in lieu of unpaid survey fees while he was a civil servant was unprocedural, since the mandatory legal procedure for alienating the 5th Defendant’s land was through a sale. Counsel relied on Section 13(2)(d) of the Agricultural Development Corporation Act, Cap 446 and the case of Jenipher Kositany V Chania Logistics Limited & 3 others [2024] KECA 151 (KLR 139. Counsel further relied on the Supreme Court case of Sehmi & another v Tarabana Company Limited & 5 others [2025] KESC 21 (KLR) where the court held that a certificate of title under section 26 of the Land Registration Act, 2012 and Article 40(1) and (6) of the Constitution is not conclusive evidence of ownership, and further that a title holder cannot erect it as a barrier to an inquiry into its legitimacy. Counsel urged the court to find that entry number 14 on the purported mother title and the purported title held by the 4th Defendant are an end product of registration and therefore not conclusive evidence as to ownership. Instead, the process and procedure through which entry number 14 on the alleged mother title was made and the title held by the 4 th Defendant acquired is what is of great significance in the determination of whether or not his title NAKURU-ELC/15/2021-JUDGMENT

page 40 of 68

is legitimate. 140. It was counsel’s further submission that the transfer of the property from the 5th Defendant to the 4th Defendant was unprocedural in so far as it was purportedly made as compensation for services rendered to the Corporation by a civil servant in lieu of payment for his services in monetary terms. He further submitted that the charge, further and second charge which the 4th Defendant failed to produce did not bar cancellation of the title for the suit property. He added that the alleged compulsory acquisition that was not proved and that the title held by the 4 th Defendant was inconsequential in determining its legality. 141. Counsel relied on the Court of Appeal case of Samuel Kamere vs. Lands Registrar, Kajiado (supra) which stated that one is not a bona fide purchaser for value unless they prove that they paid valuable consideration, a position that the Supreme Court has endorsed in Dina Management Limited versus County Government of Mombasa & 5 others (supra). Counsel urged the court to find that the 4 th Defendant has conceded that he never paid any consideration towards the acquisition of the property, hence he is not a bona fide purchaser for value. 142. On the third issue, as to whether the 1st Defendant holds a valid interest over the property, counsel submitted that the 1st Defendant claimed that the property was allocated to him by ADC through a letter dated 31 st October, 1988 which did not mention the parcel of land that is the subject of the allocation. The 1st and 2nd Defendants also claimed that that he NAKURU-ELC/15/2021-JUDGMENT

page 41 of 68

accepted the offer contained in the alleged letter of allotment dated 31 st October, 1988 through his letter dated 7 th November, 1988, which similarly fails to disclose the parcel that is the subject of the acceptance. 143. By a letter dated 6th February, 1990, ADC allegedly informed the 1 st Defendant that the purchase price for L.R No. 13287/34 would be communicated and called for payment of Kshs. 18,940.00 to facilitate the processing of a title in his favour. Counsel submitted that an allotment letter was merely an offer that could not confer an interest in land unless its stipulated conditions, such as payment, are fulfilled and relied on the cases of Torino Enterprises Limited V Attorney General, SC Petition No. 5 (E006) of 2022; [2023] KESC 79 (KLR), Wreck Motors Enterprises V Commissioner of Lands & 3 others [1997] eKLR, Dr. Joseph NK Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others CA 60/1997 [unreported], and Stephen Mburu & 4 others vs. Comat Merchants Ltd & another [2012] eKLR 144. It was counsel’s further submission that the evidence of ADC’s Land Administrator(DW6), section 13(2)(d) of the Agricultural Development Corporation Act and the ELC and Court of Appeal decisions in Chania Logistics Limited vs. Joseph Njau Wathigo & 3 others (supra) and Kositany v Chania Logistics Limited & 3 others (supra) establish that a valid interest does not result from alienation of ADC land unless there is evidence of application of allocation of land to ADC by an allottee; issuance of a letter of allotment to an allottee by ADC and proof of payment of the purchase price to ADC by an allottee. 145. Counsel therefore urged the court to find that the 1st Defendant has not NAKURU-ELC/15/2021-JUDGMENT

page 42 of 68

established that he holds a valid interest as there is no evidence that he applied for allocation of the property, was allocated the property or that he paid any purchase price. He further submitted that the 1st Defendant’s claim over the suit property should also collapse for want of procurement of an LCB consent and actual issuance of a title document. 146. On the fourth issue, as to whether allegations of fraud against the Plaintiff and the 4th Defendant been proved to the required standards, counsel submitted that allegations of fraud must not only be pleaded, but strictly proved to a standard higher than a balance of probabilities and relied on the cases of Williams & Kennedy & 3 others vs. David Kimani Gicharu & 5 others [2026] eKLR, Magutu Electrical Services Limited vs. Miriam Nyawira Nguru & another [2019] eKLR, City Finance Limited vs. Nyanja Holdings Limited [2026] eKLR. 147. Counsel submitted that the claims that the Plaintiff's documents were forged were baseless since the 5th Defendant never reported any forgery to the police and that the Land Administrator confirmed that the signature on Francis Bor Changwony’s allotment letter matched the known signature of the 5th Defendant’s former Managing Director and relied on the case of Arthi Highway Developers Limited V West End Butchery & 6 others [2016] eKLR. 148. On the other hand, counsel argued that the 4th Defendant had fraudulently acquired the suit parcel since he deceitfully put in the transfer instrument that he had paid Kshs. 28,000 to the 5 th Defendant when he had not. He added that the Directorate of Criminal Investigations (DCI) expert report NAKURU-ELC/15/2021-JUDGMENT

page 43 of 68

also concluded that the 4th Defendant acquired his title fraudulently and created parallel records and relied on the case of Williams & Kennedy & 3 others V David Kimani Gicharu & 5 others [2026] eKLR (supra). 149. On the final issue, counsel relied on the case of Jasbir Rai & 3 others V Tarlochan Singh Rai & 4 others [2014] eKLR and urged the court to grant the Plaintiff costs of the suit as the Plaintiff has demonstrated that he is a bona fide purchaser for value that holds a legitimate title over the suit property, which the 1st, 2nd and 4th Defendants have wrongfully trespassed onto. Counsel urged the court to dismiss the Defendants’ counterclaim. 1ST AND 2ND DEFENDANTS’ SUBMISSION 150. Counsel for the 1st and 2nd Defendants filed his submissions dated 23rd April, 2026, and identified four issues for determination as follows: a) Whether the 1st Defendant holds a valid and priority equitable interest in the property based on the 1988 allocation. b) Whether the Plaintiff and the 4th Defendant acquired their respective titles through fraud, misrepresentation, or procedural illegalities. c) Whether the Plaintiff is entitled to the reliefs sought, including eviction and vacant possession. d) Costs of the suit. 151. On the first issue, as to whether the 1st Defendant holds a valid and priority equitable interest in the property based on the 1988 allocation, counsel submitted that the 5th Defendant having allocated the land to the 1st Defendant, it could not subsequently allocate or transfer the same parcel to NAKURU-ELC/15/2021-JUDGMENT

page 44 of 68

Francis Bor Changwony (the Plaintiff’s predecessor) or the 4th Defendant without first formally cancelling the 1st Defendant’s allocation. Counsel further submitted that there was no evidence of such cancellation provided by the 5th Defendant. 152. It was counsel’s submission that the Plaintiff failed to prove on a balance of probabilities how the original title moved from the 5 th Defendant to Francis Changwony then to himself, and that the 4th Defendant also failed to prove how he acquired the suit parcel therefore failed to prove his case on a balance of probabilities. 153. Ms. Kyalo submitted that the government, and by extension ADC, only pays dues by way of cash money/cheques and not by immovable property or any other property whatsoever, and that ADC admitted that it does not pay for services using land but only by cash money/cheques. Counsel further submitted that the 4th Defendant admitted that he did not produce an allotment letter from ADC, therefore failed to prove any allotment. He however told the court that he had an allotment letter of June 1989 which got lost but he did not report to the police. 154. Counsel relied on the equity maxim that where there were equal interests, the first in time prevails and also relied on the case of Joseph Arap Ng’ok V Justice Moijo Ole Keiwua NAI Civil Application No. 60 of 1997, and submitted that the 1st Defendant’s 1988 allocation predates both the Plaintiff’s 2004 purchase and the 4th Defendant's 1989 registration. 155. He submitted that the Plaintiff and the 4th Defendant’s titles were invalid NAKURU-ELC/15/2021-JUDGMENT

page 45 of 68

and that the same were irregularly acquired since the 1 st Defendant’s offer of allotment was never revoked or cancelled by the 5th Defendant. 156. On the second issue, as to whether the Plaintiff and the 4th Defendant acquired their respective titles through fraud, misrepresentation, or procedural illegalities, counsel submitted that the 4th Defendant claimed registration in 1989 but admitted that he did not have the allotment letter. Counsel further submitted that the Plaintiff on the other hand claimed to have purchased the land from Francis Bor Changwony in 2004, however, Francis Bor Changwony’s initial acquisition from the 5 th Defendant was flawed as it overlapped with the 1st Defendant’s prior allocation and cited the case of Abed V Ali [2025] KECA 1323 (KLR). 157. Ms. Kyalo, submitted that the titles held by the Plaintiff and the 4 th Defendant were not valid, as the original allocation to the 1 st Defendant was never revoked by the 5th Defendant. 158. On the third issue, as to whether the Plaintiff is entitled to the reliefs sought, including eviction and vacant possession, counsel submitted that the Plaintiff was not entitled to the reliefs sought, since his title deed was null and void. Further that the Plaintiff irregularly acquired the title deed as the same land had been originally allotted to the 1 st Defendant and it had not been revoked. Counsel relied on the cases of Nguruman Limited V Jan Bonde Nielsen & 2 others, CA No. 77 of 2012; [2014] eKLR and Panari Enterprises Limited V Lijoodi & 2 others (2014) eKLR, and urged the court to dismiss the Plaintiff’s suit with costs to the 1 st and 2nd Defendants and allow the counterclaim. Counsel relied on Section 27 of the Civil Procedure Act and the case of Reid, Hewitt & Co V Joseph, NAKURU-ELC/15/2021-JUDGMENT

page 46 of 68

AIR 1918 Cal 717 and Myres V Defries (1880) 5 Ex D 180. 3RD DEFENDANT’S SUBMISSIONS 159. Counsel for the 3rd Defendant filed submissions dated 29th April, 2026, and identified two issues for determination as follows: a) Who between the Plaintiff, 1st and 2nd Defendants and the 4th Defendant has proven that they are the legal and beneficial proprietor of the suit property? b) Whether the allegations of fraud have been proven. 160. On the first issue, as to who is the legal and beneficial proprietor of the suit property, counsel submitted that the Plaintiff successfully proved his root of title having demonstrated that his predecessor, Francis Bor, properly applied for the land, received an allocation from the 5 th Defendant, paid the Kshs. 40,720 allocation fee obtained the mandatory Land Control Board (LCB) consent, and legally registered the transfer. 161. Counsel further submitted that the 3rd Defendant who is the custodian of land records testified and led evidence to show that according to official records, the suit property was previously known as L.R No. 13287/34 and was lawfully and procedurally converted to Njoro/Ngata Block 27/20 upon surrender of the original title through a deed of surrender dated 15 th October, 2019 and relied on the case of Solomon Omwega Omache & another -v- Zackery O. Ayieko & 2 others (2016) e KLR (supra) , where the court held that courts have a duty to uphold the sanctity of the records at the Lands office. NAKURU-ELC/15/2021-JUDGMENT

page 47 of 68

162. Ms. Shirika, further submitted that the Plaintiff’s registered title crystallized and should be protected and relied on the cases of Hubert L. Martin & 2 Others V Margaret Kamar & 5 Others [2016] KEELC 1092 (KLR), Mohamed Dagane V Hakar Abshir & 3 others [2021] KEELC 3604 (KLR) and Kibos Distillers Limited & 4 others V Benson Ambuti Adega & 3 others [2020] eKLR. 163. It was counsel’s submission that the 1 st Defendant purely relied on a letter of allotment from the 5th Defendant but failed to provide evidence of payment of the allocation fees, obtaining an LCB consent, or having a title issued. Counsel further submitted that the allotment letter did not specify the parcel of land in question and cited the cases of Lagat V Kebut [2023] KEELC 18432(KLR) and Satan Investments Ltd V J.K Mbugua Civil Appeal No. 164 of 2004. 164. According to counsel, the 4th Defendant claimed to have been verbally allocated the land in lieu of survey fees but lacked an application for allocation, an allocation letter, LCB consent, or proof of payment to the 5 th Defendant. Further that the 4th Defendant relied on a provisional mother title that contained unexplained inconsistencies and claimed to have charged the property without the mandatory LCB consent required for agricultural land. Counsel relied on the cases of Ereng V Swisscom Logistics Ltd [2024] KECA 975 (KLR) and Leonard Njonjo Kariuki V Njoroge Kariuki alias Benson Njonjo Civil Appeal No 26 of 1979. 165. On the second issue, as to whether the allegations of fraud have been proven, counsel relied on the uncontroverted investigative report by the NAKURU-ELC/15/2021-JUDGMENT

page 48 of 68

Directorate of Criminal Investigations (DCI) which concluded that official records from the 5th Defendant and the Ministry of Lands confirmed the Plaintiff's ownership. 166. He submitted that the 4th Defendant never challenged the expert report or called any witnesses to prove the Plaintiff's alleged misrepresentation and relied on the cases of Moses Parantai & Peris Wanjiku Mutuku suing as the legal representative of the estate of Sospeter Mukuru Mbeere (deceased) V Stephen Njoroge Macharia [2020] eKLR and Parvin Singh Dhalay V Republic [1977] eKLR. Counsel submitted that fraud is a serious charge that must not only be pleaded but also proved on a standard higher than the balance of probabilities of which counsel stated that the Plaintiff had pleaded fraud against the 4 th Defendant in the amended Plaint and led evidence to prove the allegations. 167. Counsel urged the court to analyze the cases as presented by the parties and make a determination on which party has demonstrated a valid root to their title. Additionally, counsel submitted that no cause of action has been disclosed against the 3rd Defendant and prayed that the suit and counterclaim against the 3rd Defendant be dismissed with costs. 4TH DEFENDANT’S SUBMISSIONS 168. Counsel for the 4th Defendant filed submissions dated 15th April 2026 and identified the issue as to whether the 4th Defendant is entitled to the prayers sought. Counsel reiterated the evidence of the 4th Defendant and stated that the 4th Defendant acquired the suit property from ADC in 1989, where the same was transferred to him and a title was issued in his name. NAKURU-ELC/15/2021-JUDGMENT

page 49 of 68

169. It was counsel’s submission that DW4 testified that he is the lawful and registered owner of L.R No. 13287/34 that he acquired in 1989 by purchase from ADC and took possession thereof. Counsel further stated that the 4th Defendant used the suit property as collateral for securing loans from financial institutions as per the entries on his Certificate of Title and further that he was compensated by KPC following the acquisition of easement on the land. 170. Mr. Murimi submitted that there was no evidence adduced to show that the 4th Defendant’s title was illegally issued or lawfully and validly cancelled or that the land was ever sold to or transferred to the Plaintiff and that the original owners dispute the Plaintiff’s narration and documents in his possession. 171. Counsel relied on the Nemo Dat Qoud Non Habet principle which states that one cannot give what he does not have and submitted that the Plaintiff’s allegation that he bought the suit land from Francis Bor Changwony is an argument in futility as he has never owned the suit land. Counsel relied on the case of Katana Kalume & another v Municipal Council of Mombasa & another [2019] KEELC 4044 (KLR). 172. On the issue of fraud , counsel submitted that where a title is challenged, courts have held that one must prove the legality of how the title was procured and cited the cases of Maina v Maina [2013] KECA 94 (KLR), Joseph Arap Ng’ok V Justice Moijo Ole Keiwua NAI Civil Application No. 60 of 1997, CHRISTOPHER NDARATHI MURUNGARU V KENYA ANTI-CORRUPTION COMMISSION & NAKURU-ELC/15/2021-JUDGMENT

page 50 of 68

ANOTHER [2006] KEHC 3268 (KLR), Kenya National Highway Authority v Shalien Masood Mughal & 5 others [2017] KECA 465 (KLR) and urged the court to dismiss the Plaintiff’s suit and allow the 4th Defendant’s counterclaim with costs. 5TH DEFENDANT’S SUBMISSIONS 173. Counsel for the 5th Defendant filed submissions dated 27th April, 2026, and identified the following issues for determination: a) Whether the Plaintiff and the 4th Defendant have demonstrated the existence of a valid title. b) Whether the doctrine of bona fide purchase for value without notice applied to the Plaintiff c) Whether the Court should order the cancellation of the Plaintiff’s and 4th Defendant’s title under Section 26 of the Land Registration Act. d) Whether the suit property was rightfully and procedurally allocated by ADC to John Kibet Rotich. e) Who is entitled to the suit property? 174. On the first issue as to whether the Plaintiff and the 4 th Defendant have demonstrated the existence of a valid title, counsel submitted that neither the Plaintiff nor the 4th Defendant possesses a valid title since their documentation did not exist within the Corporation's archives. Counsel further submitted that the 4th Defendant admitted in cross-examination that he had no application for allocation, no letter of allotment, and no proof of payment of the purchase price. NAKURU-ELC/15/2021-JUDGMENT

page 51 of 68

175. Mr. Karumpu stated that while the 4 th Defendant’s transfer instrument cites a consideration of Kshs. 28,000.00, he confessed that he never paid this sum, claiming instead that the land was "free" or given lieu of fees" for side hustles which has been rebutted by ADC who produced payment vouchers proving that Mr. Kirui was paid in cash, specifically Kshs. 300,000 and Kshs. 100,000 in 2001, hence there was no outstanding debt to settle. Counsel further submitted that the 4 th Defendant instead claimed that the land was given to him as a trade-off for services, which constituted illegal barter of public land by a public officer. 176. According to counsel, ADC being a public institution and with the then mandate of settling Kenyans by allocating land, was under an obligation to allocate land strictly in accordance with law and cited the case of Funzi Island Development Ltd v County Council of Kwale [2014] eKLR, where the Court of Appeal nullified titles arising from irregular allocation of public land. 177. Counsel submitted that a title deed was not conclusive evidence of ownership if the process leading to its issuance is tainted by illegality and relied on the cases of Katende V Haridas & Company Limited [2008] 2 EA 173, Solomon Omwega Omache v Zackery O. Ayieko [2016] eKLR and Munyu Maina V Hiram Gathiha Maina [2013] eKLR. 178. On the second issue, as to whether the doctrine of bona fide purchase for value without notice applied to the Plaintiff, counsel submitted that the Plaintiff failed to produce any evidence that he verified the 5 th Defendant’s allocation to his predecessor therefore leaving massive evidentiary gaps NAKURU-ELC/15/2021-JUDGMENT

page 52 of 68

regarding allocation, consideration, and the authenticity of supporting documentation. Hubert L. Martin & 2 Others V Margaret J. Kamar & 5 Others [2016] KEELC 1092 (KLR). 179. On the third issue, as to whether the Court should order the cancellation of the Plaintiff’s and 4th Defendant’s title under Section 26 of the Land Registration Act, counsel submitted that because both parties failed to demonstrate the legality of their root of title, their titles should be cancelled and relied on Section 26(1)(b) of the Land Registration Act and the case of Elijah Makeri Nyangw’ra V Stephen Mungai Njuguna [2013] eKLR. 180. On the fourth issue, as to whether the suit property was rightfully and procedurally allocated by ADC to John Kibet Rotich, counsel submitted that John Kibet Rotich was the legitimate and rightful allottee of the property, as the 5th Defendant provided an unmatched documentary trail, including an allotment letter dated 31 st October 1988, which was accepted on 7th November 1988, alongside a payment request. 181. He added that DW5, the corporation accountant testified that Rotich was the sole individual appearing in the 5th Defendant’s official debtors' list and internal ledger for the suit parcel and cited the case of Wreck Motors Enterprises V Commissioner of Lands [1997] eKLR, (supra). 182. On the final issue, the 5th Defendant submitted that the suit property rightfully belonged to John Kibet Rotich, as his lawful allocation records NAKURU-ELC/15/2021-JUDGMENT

page 53 of 68

remained unmatched and valid, and urged the court to dismiss the Plaintiff’s suit and 4th Defendant’s counterclaim with costs. ANALYSIS AND DETERMINATION 183. This court has considered the pleadings, evidence on record and submissions and the issues for determination that arise from the above are: a) Who was rightfully and procedurally allocated the suit land amongst the three claimants John Kibet Rotich, Francis Bor Changwony and Thomas Kirui the 4th Defendant, by ADC. b) Whether the doctrine of bona fide purchase for value without notice applied to the Plaintiff. c) Whether Njoro/Ngata Block 27/20 and L.R No. 13287/34 are one and the same. d) Whether the 4th Defendant has proved fraud on the part of the Plaintiff and 5th Defendant and whether he is entitled to the prayers in the counterclaim. e) Whether the Plaintiff is entitled to the prayers sought in his Amended Plaint. f) Who is to bear the costs of the suit. 184. This is a case that has been convoluted by the parties including the 5th Defendant who was the allocating entity. This was a straightforward case where the court is to establish who amongst the claimants was legally and procedurally allocated the suit land. ADC, the 5th Defendant has had many cases involving public land that was allocated to individuals especially NAKURU-ELC/15/2021-JUDGMENT

page 54 of 68

during the 1980’s and 90’s with either double allocations or uncertainty as to who was lawfully allocated the parcels of land. 185. In this case, two men claim to have been allocated the said parcel of land and a third purchased from the original allotee, one Francis Bor Changwony. It is disheartening that there are clearly laid down procedures for the allocation of land by the 5th Defendant, ADC, which have to be adhered to for an allocation to be deemed to be lawful, but sometimes shortcuts are used to circumvent the procedure which culminates in many land disputes in court to determine the real owner of the land. 186. The evidence on record as has been elaborately enumerated above shows how each party alleges to have been allocated the suit parcel of land. We will start with one John Kibet Rotich , who traces his allocation to an allocation dated 31st October, 1988, of which the 1st Defendant stated that he accepted the offer through his letter dated 7th November, 1988. 187. He also relied on a letter dated 6th February, 1990, by which ADC allegedly informed the 1st Defendant that the purchase price for L.R No. 13287/34 would be communicated in addition to calling for payment of Kshs. 18,940.00 to facilitate the processing of a title. It should be noted that DW1 who gave evidence on behalf of John Rotich confirmed that he was neither privy to the letter of allotment nor the payment of the purchase price. John Rotich never produced any application for allocation, allotment letter for the suit land, or payment receipt indicating that he had paid the purchase price to the 5th Defendant. The transaction seems to be dependent on future happenings as was confirmed by the letter by the 5 th Defendant dated 6th February 1990, promising to communicate the NAKURU-ELC/15/2021-JUDGMENT

page 55 of 68

purchase price and calling for payment of Kshs 18,940, to facilitate the processing of a title. This was back in 1990 and to date no such title has been processed even after having purportedly been allocated the land in 1988. Something is not adding up as other transactions were being processed on the suit land. 188. It is not in dispute that both letters dated 30 th October 1988, and 7th November 1988, which John Rotich relied on to claim allocation of the suit land by ADC do not mention the parcel number that was being allocated. This is evident from the evidence of DW2, DW5 and DW6 who conceded that the two letters neither made reference to nor related to the property in dispute and further the 1st Defendant has never held any title to the suit land. The 1st Defendant could not have proceeded further to obtain a title as he had missed the initial steps and requirements of the allocation. That is why he did not have a consent from the Land Control Board to enable him to process a title. 189. The 5th Defendant was blowing hot and cold by explaining the processes for allocation and the requirements, claiming that the land was allocated to John Rotich but did not tell the court whether he had complied with the allocation procedures, there was no evidence from the 5th Defendant to support their claim that they had allocated the land to the 1 st Defendant This would have been very helpful to the court as they were the allocating authority. 190. The 5th Defendant claimed that they were to communicate the purchase price and facilitate the processing of the title to the 1 st Defendant which dragged from 1980’s to date. If they were desirous of facilitating the NAKURU-ELC/15/2021-JUDGMENT

page 56 of 68

issuance of the title to John Rotich, what stopped them from doing so as there was no hindrance as this case was filed in 2021. The 5 th Defendant was the missing link in all this mess which could have been avoided. Therefore, the 5th Defendant cannot be heard to state that they had allocated the suit land to the 1 st Defendant without supporting documentation which are in compliance with the allocation procedures. The 1st Defendant also did not discharge this burden of proving that he was legally and procedurally allocated the suit land. 191. Section 107 of the Evidence Act provides that: “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.” 192. Section 109 of the same Act further provides: “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 the fact shall lie on any particular person.” 193. It is trite law that he who alleges must prove and therefore, the burden of proof ownership was on each of the three claimants to prove that they were lawfully allocated the land. 194. On the second claimant, the 4th Defendant Thomas Kirui, who made a spirited fight to prove that he was lawfully allocated the suit land by ADC in lieu of professional fees when he did consultancy work for ADC. The 4th Defendant was disowned by the 5 th Defendant who gave evidence that the 4th Defendant was a public servant and that his professional fees was NAKURU-ELC/15/2021-JUDGMENT

page 57 of 68

paid in cash and not by being allocated public land. 195. The 4th Defendant also conceded in cross – examination that although the transfer instrument that allegedly conveyed interest from ADC to him dated 1st July, 1989 purported that he had paid ADC consideration of Kshs. 28,000.00 before its execution, no such consideration had been paid. The 4th Defendant actually admitted that he got the suit land for free as he was paid in lieu of fees and further that there was neither an application for allocation, letter of allotment and no proof of payment. 196. In the Court of Appeal case of Jenipher Kositany v Chania Logistics Limited & 3 others [2024] KECA 151 (KLR) the court held that: “The appellant confirmed that she did not have an allotment letter from the ADC, proof of payment of the purchase price or a consent from the Land Control Board, that she had title to the suit land. No evidence was led before the trial court on how the appellant was allocated the suit land by ADC or how she obtained a certificate of title, save that she successfully reconstructed the register to the suit land by claiming that she lost the original title.” 197. It is trite that the process and procedure through which a title is procured or acquired is of great importance in a dispute of competing titles like this one. The evidence on record shows that the 4 th Defendant did not have a valid title as the process was tainted with flaws and non-compliance with the ADC rules and procedures of allocation of public land. Waving a title like the one the 4th Defendant had could not sanitize the process as was held in the case of case of Munyu Maina Vs. Hiram Gathiha Maina [2013] eKLR it was held that: NAKURU-ELC/15/2021-JUDGMENT

page 58 of 68

“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register”. 198. The 4th Defendant’s proof of the root of title was bound to fail as he started on a wrong footing. All the subsequent transactions which he claimed to have engaged in, including charging the suit property as a collateral to secure a loan could not sanitize the process. 199. In the case of Gathondu (As Administrator of the Estate of the Late Thumbi Kariuki) & 3 others v Registrar & 7 others (Civil Appeal E505 & E519 of 2020 (Consolidated)) [2024] KECA 668 (KLR) the court observed on the issue of competing titles as follows: “Once upon a time, the holding of a title deed, that treasured document that declared the person named therein as the indisputable owner of the landed property, was a ticket to peace and proprietary security. That it was before a vile mix of greed, rapacity and fraud on one hand and corruption mischief, and tampering of records on the other, increasingly rendered many a title deed worthless papers the holding of which, without more, provided neither certitude nor assurance of safety as courts have had to step in to decipher and determine which among two contending NAKURU-ELC/15/2021-JUDGMENT

page 59 of 68

instruments of title is genuine and efficacious. The puzzle of competing title deeds over the same property on the ground in contemporaneous existence is now becoming a contest not of dualities of claims, but, as this case shows, one of multiple contestations, each backed by a title deed.” 200. It is therefore incumbent upon this court to establish which of the two competing titles is genuine and legitimate. 201. The entries in the purported mother title were also null and void as DWl testified that the mother title for L.R No. 13287 at page 18 of ADC’s bundle was a provisional title and not an original usually issued when an owner has lost a title and executes a deed of indemnity that indemnifies the Government from any liability arising from information that he has provided. 202. It was DW1’s further testimony that the exhibited mother title was for L.R No 13287 and it is expected that it would only contain a series of subdivisions for L.R No. 13287, however, he noted that it was surprising that the mother title produced by the 5th Defendant had inconsistent entries such as entry No. 156 that relates to property LR. No. 16672/3, entry No. 157 that relates to property LR. No. 16672/26/3 and entry No. 160 that relates to property LR. No. 16672/35 original 16672/26/1. DWl testified that these entries were inconsistent as the series should bear the original LR Nos. being L.R No. 13287. These were the entries that the 1 st and 4th Defendants relied on to claim the authenticity of their allocation. 203. On the issue of whether the root of the Plaintiff’s title which he obtained NAKURU-ELC/15/2021-JUDGMENT

page 60 of 68

through purchase from one Francis Bor Changwony was procedural and legal, the Plaintiff traced his title from a sale agreement dated 12 th May, 2004, between him and one Francis Bor Changwony after he did due diligence at the Agricultural Development Corporation (ADC) and the Ministry of Lands. 204. It was the Plaintiff’s case that he established that Francis Bor Changwony made an application for allocation of the suit property to ADC by letter dated 13th February, 1989 whereby ADC allocated him the property vide a letter dated 27th April, 1989, and later asked Francis Bor through a letter dated 2nd May, 1989, to pay Kshs. 40,720.00 which was remitted on 25 th May, 1989. He stated that ADC acknowledged receipt of payment from Francis Bor vide Lands Limited’s acknowledgment receipt No. 14152 dated 7th June, 1989. 205. ADC, the 5th Defendant later procured the consent of the Land Control Board to transfer the Property to Francis Bor and further executed a transfer instrument dated 30th June, 1989. Thereafter, the transfer conveying title from ADC to Francis Bor Changwony was presented to the Lands Registry alongside other completion documents consent to which title Grant No. IR 47995 dated 7 th July, 1989 was issued to Francis Bor by the 3rd Defendant. 206. It was the Plaintiff’s case that he paid Francis Bor a consideration of Kshs. 12 million, which he acknowledged and a transfer was done and registered in the name of the Plaintiff on 24th August, 2005 by the 3rd Defendant. The Plaintiff also stated that he took possession after the purchase in May 2004 but was dispossessed by the 1 st and 2nd Defendants NAKURU-ELC/15/2021-JUDGMENT

page 61 of 68

in February 2021 necessitating the filing of this suit. 207. The 5th Defendant stated that they did not allocate the land to one Francis Bor Changwony but failed to debunk all the steps and documentation that emanated from the 5th Defendant’s office. Was it that the transaction happened outside the realm of the 5th Defendant’s watch which involved elaborate procedures within the institution and the Ministry of Lands together with the processes at the Land Registrar’s office. 208. These are the costly mistakes that should be nipped in the bud by proper digitization of the land records, which is tamper proof against illegalities, which always rear their ugly head in the land registries. There should be a willingness by the general populace, especially those serving in the land registries to do the right thing to ensure the integrity of the land records. 209. The 1st and the 4th Defendants having failed to comply with the allocation procedures of 5th Defendant are therefore out of the equation as owners of the suit land. DW3 the CID Officer, who testified and produced a report confirmed that their investigations from the documents received from the 5th Defendant and the persons interviewed established that the land had been allocated to one Francis Bor Changwony who subsequently transferred the land to the Plaintiff who is the registered owner. The CID report that was produced was never controverted with any evidence to the contrary and stated that he got the documents from the 5 th Defendant’s office and was supplied with the same by one Okinyo who was a Senior Records Officer at ADC. Counsel for the 5th Defendant tried to raise an issue from the bar that the said Records Officer had been fired due to the fact that he gave out the documentation in respect of the allocation to NAKURU-ELC/15/2021-JUDGMENT

page 62 of 68

Francis Changwony but there was no evidence led to confirm the same. 210. In retrospect, this evidence confirmed that the documentation actually existed confirming the allocation to Francis Changwony, why did the 5 th Defendant not want the information to come out and yet they had participated in the allocation process. The documents the CID used were from ADC and the Ministry of Lands which established the process of allocation and authentication. Why did the 5 th Defendant not take action against the said Francis Bor, the Plaintiff and the 4 th Defendant Thomas Kirui if they knew that they had fraudulently acquired the suit parcel of land, 211. In the case of Chania Logistics Limited v Wathigo & 3 others [2022] KEELC 3884 (KLR), Mutungi J, observed that : “On the evidence adduced by the plaintiff there is clear evidence as to how Hon Caleb Kositany acquired the title to the suit property before he sold and transferred the property to the plaintiff. The Plaintiff exhibited documents to show that Caleb Kipkemei Kositany applied to ADC vide a letter dated March 14, 1990 to be allocated land parcel LR No. 13287/137 – Ex Ngata; the ADC vide a letter dated April 19, 1990 wrote to Caleb Kositany notifying him he had been allocated L.R No. 13287/137 – Ex Ngata measuring 19.64 Hectares; on August 14, 1994 an application was made to Nakuru Land Control Board to transfer the Land LR No. 13287/137 to Caleb Kositany; consent was duly given on August 15, 1990 and a transfer dated January 21, 1991 was registered as IR 40236/94 on February 22, 1991.” 212. The above case mirrors the Plaintiff’s case where he gave a chronology NAKURU-ELC/15/2021-JUDGMENT

page 63 of 68

of how he acquired the suit land through purchase from one Francis Bor Changwony, which land was also allocated by ADC the 5th Defendant. 213. Having dealt with the issue as to who amongst the three claimants was allocated the suit land by ADC the 5th Defendant, it follows that the rest of the issues are superfluous as the main issue was who was lawfully allocated the suit land who fulfilled the requirements of the allocation. 214. There was an issue, which was raised by the 4 th Defendant as to whether L.R No. 13287/34 was separate and distinct from that of the Plaintiff Njoro/Ngata Block 27/20. DW1 the Land Registrar testified that Njoro/Ngata Block 27/20 before conversion from RTA to RLA was IR 47995 and confirmed this via a surrender document (Dex No. 2). He further confirmed that LR 40236/14 and LR 13287/34 were the same which evidence was uncontroverted. It is noted that the surrender deed dated 15th October, 2019 vis a vis the Certificate of Title for L.R 40236/14 originally (L.R No. 13287/34) refers to IR 47995/1 which is the same in the Certificate. 215. On the issue as to whether the Plaintiff is a bona fide purchaser and whether, he is entitled to the orders sought, in the Supreme Court case of Dina Management Limited vs. County Government of Mombasa & 5 others [2023] KESC 30 (KLR) cited with approval the decision of the Court of Appeal in Samuel Kamare v Lands Registrar, Kajiado Civil Appeal No. 28 of 2005 [2015] eKLR where it was held: “…in order to be considered a bona fide purchaser for value, they NAKURU-ELC/15/2021-JUDGMENT

page 64 of 68

must prove; that they acquired a valid and legal a title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property …” 216. The Plaintiff conducted due diligence before purchasing the suit property from Francis Bor Changwony, as per the evidence on record and established that the vendor had been legally allocated the suit land. He also complied with the requirements of payment of the purchase price, statutory fees and obtained the LCB consent for transfer and was subsequently registered as an owner. 217. Section 26(1) of the Land Registration Act provides that: “…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— -on the ground of fraud or misrepresentation to which the person is proved to be a party -Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” NAKURU-ELC/15/2021-JUDGMENT

page 65 of 68

218. Section 80 of the Land Registration Act gives courts powers to rectify a title in case of a mistake or procured unprocedurally or by misrepresentation The section provides as follows: “(1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. (2) The register shall not be rectified to affect the title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default”. 219. The 4th Defendant having failed to prove that he acquired the suit land procedurally as enumerated above, it follows that he is not entitled to the orders sought in the counterclaim. He will also suffer the fate of cancellation of his title to the suit land as it was acquired unprocedurally. 220. I therefore find that the Plaintiff has proved his case against the Defendants on a balance of probabilities and make the following specific orders: a) A permanent injunction is hereby issued restraining the Defendants either by themselves, their agents or servants or otherwise howsoever from interfering with the Plaintiff’s quiet NAKURU-ELC/15/2021-JUDGMENT

page 66 of 68

and peaceful possession and occupation all that parcel of land known.as Njoro/Ngata Block 27/20 situated in Nakuru. b) A permanent injunction is hereby issued against the Defendants prohibiting them whether by themselves, their agents or servants from entering upon, cultivating upon, transferring, occupying, leasing, charging, assigning or interfering with the Plaintiffs quiet possession of all that parcel of land known as Njoro/Ngata Block 27/20 situated in Nakuru, in default of compliance an eviction order do issue within 45 days which order is to be enforced by the Officer Commanding Station, Menengai Police Station. c) A declaration is hereby issued that the Plaintiff is entitled to ownership and occupation of all that parcel of land known as Njoro/Ngata Block 27/20 situated in Nakuru to the exclusion of the Defendants herein. d) A declaration is hereby issued that any title documents held by the 1st and 2nd and 4th Defendants relating to the property known as Njoro/Ngata Block 27/20 is invalid, null and void and the same should be surrendered for cancellation to the 3rd Defendant within 30 days failure to which they stand cancelled. e) The 4th Defendant’s counterclaim is hereby dismissed with costs f) Costs of the suit to the Plaintiff to be paid by the 1 st 2nd, 4th and 5th Defendants. DATED, SIGNED AND DELIVERED AT NAKURU THIS 16TH DAY OF SEPTEMBER 2026. NAKURU-ELC/15/2021-JUDGMENT

page 67 of 68

M. A. ODENY JUDGE NAKURU-ELC/15/2021-JUDGMENT

page 68 of 68