Kudate v Tikani & 2 others

f. The Sub County Land Registrar, Narok South/East/West/North be ordered to recall/revoke or cancel the title deed issued on 28th August 2023 in favour of the 1st Defendant. 2. In his claim, the Plainti averred that he is the registered proprietor of the land parcel known as CISMARA/MAJI MOTO/2760, as per the Certicate of title issued on 27th March 2013, and that he is entitled to the said land at the exclusion of everyone else, unless he consents. 3. The Plainti averred that the 1st Defendant has forcibly invaded his land against his wish and intends to disposes him of his property. He particularized the alleged interreference as follows: 4. 5. a. Denying the Plainti peaceful enjoyment of the land. b. The 1st Defendant has unlawfully laid false claim to ownership of the suit parcel. c. Instigating an intrigue scheme to displace the plainti from his ancestral land that he has traditionally and historically occupied. The Plainti also pleaded fraud and misrepresentation and particularized them as follows: a. Processing and issuing of title dated 28th August 2023 in respect of land parcel CISMARA/MAJI MOTO/2760 in favour of the 1st Defendant while aware that there is a title issued on 27th March 2013 held by the Plainti. b. Presenting false registration documents to the Narok Land Registry to the eect that the 1st Defendant is the one eligible to be registered as absolute proprietor of CISMARA/MAJI MOTO/2760. c. The 1st Defendant by misrepresentation and deceit misled the Lands Registrar into believing that the 1st Defendant is actually the owner of the suit property. d. The Defendants caused the registration of the suit property in favour of the 1st Defendant without the knowledge or consent of the plainti. e. Issuing tow titles of the same property CISMARA/MAJI MOTO/2760 without recalling and/or revoking the earlier title issued on 27th March 2013 hence two titles in circulation. f. Concealing material facts from the Land Registar regarding the status of the suit property. g. The 1st Defendant misrepresented himself to the Lands oce as the bonade owner of the suit property. h. Processing and obtaining title deed for the suit property which land belongs to the plainti. i. Unlawfully asserting rights of ownership of the suit property which land belong to the plainti. The Plainti further averred that he suered the following damage: a. Deprivation of peaceful and quite enjoyment of his land https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 2

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b. Denial of the opportunity to develop his property. c. Fear of dispossession. 6. As a result of the above claim and allegations, the Plainti urged the court to enter judgment in his favor against the Defendants, as prayed in the Plaint. 7. In response to the Amended Plaint, the 1st Defendant led his Amended Statement of Defence dated 3rd April 2025, wherein he denied all the averments contained in the Plainti’s claim. 8. The 1st Defendant averred that he is the registered owner of all that property known as CISMARA/ MAJI MOTO/2760, and also alleged that he holds a certicate of title by dint of being a member of Majimoto Group Ranch. 9. Further, the rst 1st Defendant averred that a Petition was led in 2017, by members of the Majimoto Group Ranch over irregular allocation of land to persons that were not members of the Group Ranch, and that Judgment was entered in favor of the Petitioners in ELC Narok Petition No. 268 of 2017 on 8th July 2022, and that among the Orders issued was the allocation of the land to members of Majimoto Group Ranch according to the primary register. He also averred that the court declared the allocation of land to non-members at the expense of members of the Group Ranch was illegal. 10. The 1st Defendant denied any knowledge of the alleged occupation of the suit land by the Plainti of the suit property. He also averred that that the Plainti has never been in occupation of the land. 11. The 1st Defendant further averred that the suit land CISMARA/MAJI MOTO/2760, is as a result of the subdivision of CISMARA/MAJI MOTO/8, and which was held for the benet of its members, and that it was not ancestral land. He also averred that he was only allocated the suit land as a member of the Majimoto Group Ranch . He added that land parcels arising from the subdivision of CISMARA/ MAJI MOTO/8, can only issue to members of Majimoto Group Ranch which the Plainti was not and neither is the Plainti a purchaser for value. 12. The 1st Defendant denied all allegations of interference, fraud and misrepresentation, and averred that he acquired the suit property lawfully through the oce of the 2nd Defendant. He also denied that the Plainti has suered any damage due to his acts or omissions. 13. Consequently the 1st Defendant urged the court to dismiss the Plainti’s suit with costs. 14. In response to the Amended Statement of Defence, the Plainti led his Reply to Defence dated 25th April 2025, in which he basically denied the contents of the said Defence and averred that the 1st Defendants is in illegal occupation of the suit land. 15. After the close of pleadings and Pre-trial conference, the matter proceeded to hearing by way of viva voce evidence. Plainti ’s Case 16. PW1, Stephen Saibulu Kudate adopted his witness statement dated 15/1/2024, as part of his evidence in chief, and further testied that the Defendant invaded his land CISMARA/MAJI MOTO/2760, measuring 28.3 Ha. Further, that he obtain this parcel of land in 2013, and he produce a copy of the title as exhibit PEXHIBIT 1 to conrm since acquisition. 17. It was his further testimony that when he obtained the said parcel of land, he started using it and took a loan from Cooperative Bank on 29/10/2013 and 11/1/2016, which amount of money he used to build thereon using the title as a collateral. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 3

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18. Further, that the 1st Defendant invaded his land which he reported to the Police under OB No.4. Pw1 produced a Certicate of electronic evidence as PEXHIBIT 2 and copy of OB NO 04/04/01 PEXHIBIT 3. 19. PW1 further testied that the Land Registrar, Narok issued the 1st Defendant with another title, and that his title has been cancelled. He also denied being a party to ELCCPET NO. 268/2017, which allegedly cancelled his title and that his land was not mentioned in the said judgment- ELC Petition No 268 of 2017. 20. On cross examination, Pw1 admitted to have known Majimoto Group Ranch, which had a huge track of land. Further, that his land is a sub division of Majimoto Group Ranch Land, and that he has a copy of the title deed, but the original title was at home. Pw1 also testied that he conducted a search, but did not have a Green card of the said title. 21. Pw1 also admitted to having seen the title issued to the 1st Defendant on 28th August 2023 ,and the Green card whose last entry was on 29/8/2023. He admitted that the Green card did not have his name. 22. It was his further testimony that the suit land is not his ancestral land, and that he bought his portion from one Fred Sankale ,but he did not have any Sale agreement. However, he did not produce any document to show that Fred Sankale sold the said land to him. It was his admission that the said parcel of land originally belonged to Majimoto Group Ranch, wherein he was not a member. 23. On Re- exam, Pw1 testied that he did not have a Green card, and he was expecting the Land Registrar produce it. Further, that his parcel of land measures 28.3 Ha, while the title deed for the 1st Defendant is 19.24 Ha, and that those are two dierent sizes. 24. PW1 further testied that he lives and keeps his cattle on the suit land, and reiterated that he bought the suit land from one Fred Sankale, who was a member of Majimoto Group Ranch ,through its ocials. That the ocial search was in his Supplementary Adavit sworn on 12/3/2024. The 1St Defendant’s Case 25. Dw1, Joseph Timayio Tikani, adopted his witness statement dated 22nd July 2024, as his evidence in chief and also produced his list of documents as DEXHIBIT 1-5. It was his further testimony that the suit land belongs to him. Further, he produced his further list of documents as DEXHIBIT 6-7. 26. Upon cross examination, Dw1 testied that he has never claimed against the Plainti. It was his testimony that he was the Petitioner No. 10 in Petition No. 268 of 2017, wherein the Petitioners had sued the Ocials of Majimoto Group Ranch, and not the Plainti herein. He admitted that the said Judgment in the above Petition did not reect Land Parcel No. 2760, the subject matter herein. Further, that Judgment did not cancel Land title No. 2760, although it was among the titles to be cancelled. 27. Upon further cross examination, Dw1 testied that the Plainti’s title is among the cancelled titles, even though he did not seek its cancellation. He admitted that the Plainti’s title was issued rst on 27/3/2013, and his was issued on 28/8/2023, but the Plainti’s title was among the cancelled titles. Accordingly, he admitted that his land is less than the one issued to the Plainti, and that he does not live on the said land. 28. Dw1 also testied that his title was issued by the new ocials , while the old ocials were removed. He insisted that the Plainti is not a member of Majimoto Group Ranch, and that if a member sells his land, the buyer cannot own land in the said Group Ranch. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 4

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29. On cross examination, Dw1 testied that he petitioned the court in Petition No. 268/2017, because he had not been allocated any land, and that he was issued with a title deed after the court’s Judgment. He also admitted that non members can acquire land at the Group Ranch, after purchasing from members. 30. Dw2, James Twala ,adopted his witness statement dated 22/7/2024, as his evidence in chief, and further testied that he was the Chairperson of Majimoto Group Ranch. He also testied that the suit land belongs to the 1st Defendant, and that the 1st Defendant was a Petitioner in Petition No. 268 of 2017. It was his further testimony that the Group Ranch’s parcel of land was sub divided into various parcels, to be allocated to its members, but there were illegalities and that is why they led the above referred Petition. He conrmed that he was also a Petitioner –ELC Petition No 268 of 2017. 31. It was his further testimony that the court gave an order for regularization, hence the Group Ranch Ocials ensured that the members in the primary register got a share, and the plainti was not a member. Further, that the 1st Defendant was a member, and that is why he got a portion of the land from the Group Ranch Land. 32. On cross examination, Dw2 stated that he became the Chairman of the Group Ranch in 2016, and that the previous chairman was one Maone Further, that he was the 2nd Petitioner in Petition No. 268 of 2017, in which they sued Maone as a former Chairman. Further, that Kudate was not a former ocial of the Group Ranch, and neither was he a Respondent in the said Petition. Further, that the suit land herein was not mentioned in the Petition, and that the suit land was never cancelled in the above referred Petition. 33. It was also his testimony that when a non-member buys land from a member of the Majimoto Group Ranch, he can become a legitimate member. However, he conrmed that he did not supply the list from the formal ocials. 34. On re-examination, Dw2 stated that the title in Kudate’s name(the Plainti) was among the titles to be cancelled, and that he was not a manager in the Group Ranch. Further, that there was no sale agreement between any member of the Group Ranch, and the Plainti. Lastly, he testied that the suit property in the referred Petition was CISMARA/MAJIMOTO/8, being the mother title in the name of Majimoto Group Ranch. 35. After viva voce evidence, Mr Kamwaro, Counsel for the Plainti sought for Summons directed to the Land Registrar Narok, to appear in Court and give the history of this land parcel . On 10/12/2025, the Land Registrar, Mr. Philip Mathew Odidah, appeared in court, and stated that he was transferred to from Naivasha to Narok in 2023. 36. It was his testimony that Land Parcel No. CISMARA/MAJIMOTO/2760, measures approximately 19.44Ha, and that he has the original Green card. Further, that the said land was rst registered on 8/5/2012, and pursuant to members allocation register, this land was allocated to the 1st Defendant Joseph Timayio Tikani, and that a title deed was issued on the same date. That at the time of registration, there was no other Green card. 37. The Land Registrar also testied that the Records of Majimoto Group Ranch are kept under lock and key because this is an area with a lot of issues and disputes, and that this was due to the Court’s orders, as non members had been issued with land in the said Group Ranch . 38. The Land Registrar further testied that a regularized register was prepared, and that he could tell who were members and who were not. He also issued members who did not have titles and Green cards with the same. Accordingly, there were people in the Register who were not members, and who had https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 5

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their titles cancelled, and the same issued to bona-de members as per the regularized register. It was his testimony that there was no other Green card in respect to the suit land herein, other than the one issued to the 1st Defendant, Joseph Timayio. 39. On cross examination by Mr. Kamwaro, the Land Registrar testied that any transaction is compiled in the Green card, and that when an ocial search is conducted, it is the information that is in the Green card that is captured. 40. Further, that there is a dierence between the title held by the 1st Defendant, and the one that he was served by the Plainti’s Counsel. He admitted to having seen the Judgement in Petition No. 268 of 2017, in his le. He also testied that there is no order to cancel Land Parcel No. CISMARA/ MAJIMOTO/2760. 41. Further, that the law does not envisage two titles circulating at the same time over the same parcel of land. It was his testimony that the 1st Defendant’s title was issued on 19/8/2023, and that according to the search served upon him by the Plainti’s Advocate, another title had been issued in 2013. 42. Ms Moturi for the 1st defendant also cross examined the Land Registrar, who testied that the suit land has only one Green card, and that he had not seen the Plainti’s title. Further, that the Plainti’s title does not exist in their record. He reiterated that the parcel of land in issue measures approximately 19.44 Ha, being acres issued to each member. 43. The Land Registrar also testied that there was no record of the Plainti having purchased the suit land from an initial member, and that he was the one who issued searches over Majimoto Group Ranch’s land parcels, but he did not issue the search for January 2024, in favor of the Plainti. 44. Lastly, one Mary Njeri Njonjo, who works with the Ministry of lands attached to Narok Lands Registry testied, by relying on her Adavit sworn on 12/3/2026. It was her testimony that she did the search on Land Parcel No. CISMARA/MAJIMOTO/2760, and that there are issues with this particular land parcel. 45. Upon cross cross-examination by Mr. Kamwaro for the Plainti, she testied that she conducted the ocial search over the suit land, and that the Search dated 19/1/2024, is pursuant to the information on the Green card. 46. It was her testimony that according to the search, the suit property is in the name of the Plainti. Later on, the suit property was charged to Transnational bank for Ksh. 2,000,000/=. She testied that as at 19/1/2024, there was no other owner of the property other than the Plainti. 47. On cross examination by Ms.Moturi for the 1st Defendant, she testied that the Green card was certied on 26/1/2024, and that there are three entries. She stated that entry No. 2 dated 29/8/2023, shows that a title was issued to the 1st Defendant, Joseph Timayio Tikani. She however did not have the parcel le. 48. She admitted that the title deed held by the 1st Defendant is in concurrence with the Green card of 26/1/2024, and that in fact they do tally. Further, that she issued the search in favor of the Plainti, but that the documents are under key and lock, and that the Land Registrar Mr. Philip Odidah is in charge. 49. Further, that she checked the Green card on 2016, and that a dierent Green card was used for the search that she carried out. That after the search, what is left behind is an extract of the register, which she however did not have a copy of that register. 50. Lastly, she stated that Mr. Odidah took oce in 2023, and directed that he was the only one who could issue a search regarding Majimoto Group Ranch. That the les for Majimoto Group Ranch https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 6

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were under lock and key in 2024, and not in 2023. She claimed that as at the time of the search, the le was available to her. 51. Mr. Menge, State Counsel representing the 2nd and 3rd Defendants cross examined the witness and , she testied that the dates on the title deed are not the same, and that the Green card was issued on 28/8/2023, while the title deed was issued on 29/8/2023. 52. After the close of viva voce evidence, the parties were directed to le and exchange their respective written submissions, which directives, they complied with. 53. The Plainti led his written submissions dated 14th May 2026 through the Law Firm of Kamwaro & Co Advocates, wherein he set out the issues for determination as follows; i. Whether the Plainti is the sole registered proprietor of parcel of land No. CISMARA/MAJIMOTO/2760 with all the privileges belonging or appurtenant thereto ii. Whether it is legal and procedural to have two titles of the same parcel in circulation iii. Whether the 1st Defendant is a trespasser on the suit land iv. Whether the plainti is entitled to a permanent injunction v. Who should bear the costs of the case 54. On the proprietorship of the suit land, the Plainti submitted that Section 26(1) of the Land Registration Act provides that a certicate of title is prima facie evidence of ownership. He further submitted that he has proved that he is the true proprietor of the suit land herein, and that the 1st Defendant has not denied his trespass. Further, that the 1ST Defendant’s title is not legitimate as it was issued without cancellation of the Plainti’s title. 55. Further, that he is entitled to protection under Sections 24, 25 and 26 of the Land Registration Act. He relied on the case of Kipsongok vs Albert K.Morogo (2017) eKLR where the court held; “ The evidence on record shows that the suit parcel of land is registered in the names of the plainti, and therefore is entitled to the protection under Sections 24,25 and 26 of the Land Registration Act.” 56. The Plainti further relied on the cases of Andrea Barasa Manyonge vs Josephat Wanjala [2009] Eklr , and submitted that the evidence adduced is in his favor, and the court should allow his claim. 57. On whether two titles over the same parcel can be in circulation at the same time, the Plainti quoted the case of Gitwany Investment Limited V Tajmal Limited & Others (2006) Eklr, where the court stated: “ It is therefore my nding that even if the two Titles produced in evidence were on their face alleged to be validly issued, the one in the possession of PW1, PW2 and PW3 would prevail as it was the rst in time.” 58. Further, the Plainti relied in the case of Arthi Highway Developers Limited V West End Butchery Limited & 6 others (2015) KECA 816 (KLR), wherein the Commissioner of Land’s failure to explain in those circumstances how two land titles of the same land could exist and which one was genuine was held to be fraudulent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 7

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59. Lastly, the Plainti relied on the case of Dr Joseph Arap Ngok Vs Justice Mollo ole Kelwua & 5 others, Civil Appeal No.Nai.60 of 1997, wherein the Court of Appeal reiterated the fact that Section 23(1) of the Registration of Title Act, which guarantees the indefeasibility of title and that the title of such a person can only be challenged on grounds of fraud to which the owner is proved to be a party. 60. On whether the 1ST Defendant is a trespasser, and whether he should move, the Plainti submitted that the 1st Defendant pulled down his gate, and made a forced entry into the suit property, and that he reported to the said forced entry to the Police, and the 1st Defendant was arrested. Further, that the 1st Defendant was charged in Narok Chief Magistrate’s Court, where he did not rebut the accusation, but only maintained that he has a title issued on 28th August 2023. 61. On whether the Plainti is entitled to a permanent injunction against the Defendants, he relied on the case of Kenya Power & Lightning Company Ltd V Sherri Molan Habib (2018) KEHC 5027 (KLR) where the court observed that: “ It determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merit of the case after the evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the Defendant in order for the rights of the plainti to be protected.” 62. Ultimately, the Plainti submitted that he has proven that he is the absolute owner of the suit property, and that a permanent injunction should be issued. He urged the court to allow his claim. 63. The 1st Defendant also led his written submissions dated 10th July 2026 through the Law Firm of Hashi & Co. Advocates, and urged the Court to dismiss the Plainti’s suit. 64. The 1st Defendant summarized the issues for determination as follows: i. Who between the Plainti and the 1st Defendant is the legal owner of CIS MARA/ MAJIMOTO/2760?. ii. Whether the Certicate of Ocial Search dated 19th January 2024, has been properly adduced as evidence before this Court and its admissibility thereof iii. Whether the Plainti has proved the allegations of fraud and misrepresentation as alleged 65. On the issue of legal ownership, the 1st Defendant submitted that since the Plainti and the 1st Defendant’s title are under challenge, such titles can only be challenged based on fraud, misrepresentation, illegality, procedural impropriety or through a corrupt scheme as provided for under Section 26 of the Land Registration Act. 66. The 1st Defendant relied in the Supreme Court of Kenya decision in Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) , which underscored that holding a title deed does not automatically mean one lawfully owns the land if the root of title is defective. 67. The 1st Defendant further submitted that based on this jurisprudence, the Plainti’s claim of indefeasibility of title cannot stand. He also relied on the Court of Appeal’s decision in Gathondu (As https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 8

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Administrator of the Estate of the Late Thumbi Kariuki) & 3 others v Registrar & 7 others [2024] KECA 668 (KLR,) where the Court at paragraph 96 stated thus: “ …. Kenyan courts can no longer content to perch on the branch of simply accepting titles as conclusive, incontestable and indefeasible; or the concomitant argument that in the face of two or more competing titles, the rst in time automatically prevails. It is not enough to wave an instrument of title or rest easy on the former rock of chronological primacy. What must now be established by he who would prevail is the solidity of the root of title. No owery foliage, absent a sturdy and settled root speaking to a regular and legal process preceding the product that is the title, will avail the holder.” 68. The 1st Defendant also submitted that although the Plainti produced his certicate of title issued on 27th March 2023, when the Land Registrar Mary Njonjo of the Narok Land Registry, testied as to the alleged ownership of the Plainti, she did not produce any of the documents alleged to in her Adavit dated the 12th of March 2026, particularly the Green Card used to prepare the alleged Certicate of Ocial Search, and the copy of the Certicate of Ocial Search alluded to. The 1st Defendant submitted and argued that in fact there is no Certicate of ocial search produced by the Plainti before this court. 69. On whether the Certicate of Ocial Search dated 19th January 2024, has been properly adduced as evidence, the 1st Defendant submitted that the Plainti produced PExhibits 1-3 as per the List of Documents dated 15th of January 2024, which did not include a Certicate of Ocial Search. Further, that although the Certicate is attached to the Replying Adavit dated 12th March 2024, the application to which it is attached to was withdrawn. 70. The 1st Defendant supported his assertions with the Court of Appeal decision in Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR), where the court made a determination to wit a document only becomes evidence after being tendered through a witness and admitted as an exhibit. A document not produced as an exhibit is not part of the evidentiary record, and cannot be relied upon by the Court. The ocial search never attained the status of evidence. 71. The 1st Defendant added that the Ocial Search never attained the status of evidence, and the Plainti deliberately elected to produce only three exhibits. Further, that having omitted the ocial search, it remained merely a document in the court le. 72. The 1st Defendant also submitted that the Certicate of ocial search produced is a picture, and that it breached Section 106B of the Evidence Act by not being accompanied by a Certicate of electronic evidence. 73. The 1st Defendant also submitted on the legitimacy of the root of the title. On this, he submitted that it is common ground that the suit property is a resultant of subdivision of CISMARA/MAJIMOTO/8 (now-subdivided), and that the resultant subdivisions belonged to Majimoto Group Ranch, and could only be allocated to the members thereof on rst allocation/instance. 74. For this submissions, he relied on the case of Registered Group Representatives of Majimoto Group Ranch v Mayone David Matunke & 14 others [2017] KEELC 2890 (KLR) (hereinafter “the Petition”). At Paragraph 194 of the judgement where the court pronounced itself as follows: “ Any member not in the primary register cannot be allocated land on rst allocation, and can only acquire such land upon purchase. Companies cannot acquire land privately in Majimoto as they are not members in the primary list thus such allocations are illegal.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 9

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75. The 1st Defendant brought to the court’s attention the fact that the Plainti alleged that the suit land is his ancestral land, while on the other hand he alleged to having bought the suit property from one Fred Sankale, whom he alleged to be a member of the Group Ranch. He submitted that the Plainti has presented two mutually exclusive modes of acquisition of land before Court, and implored the court to be guided by the pronouncement in the case of Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others [2016] KEELC 1092 (KLR), where it was stated that: “ ….It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain….. ” 76. It was the 1st Defendant’s further submissions that the court could not know which narrative is believable, and that Fred Sankale is also not a member of Majimoto Group Ranch, as per the members list produced. That there is no record of the Plainti’s ownership at Narok Land Registry, and as such, the Plainti’s title is unknown as its root cannot be traced. 77. Lastly, the 1st Defendant submitted on the legitimacy of his own title. On this, he restated that his title was issued on 29th August 2023, which he produced together with a certied copy of the Green card indicating its history. Further, he submitted that he is a member of the Majimoto Group Ranch as per its Members register as Member No. 327, and in the regularized area list, he appears at S.N. 2285 who was allocated Parcel No 2760. 78. He submitted that his membership was conrmed by DW-2, Twala Manki, the Chairperson of the Majimoto Group Ranch. He also collaborated the evidence of the 1st Defendant that he was the 10th Petitioner in the Petition NO 268 of 2017, who had been disenfranchised by not being allocated his portion. That Dw2’s testimony that the Plainti was not a member of Majimoto Group Ranch, and that he could not receive it on its rst allocation/instance supported his claim. 79. On the allegations of fraud, the 1st Defendant submitted that the Plainti failed to prove it to the required standards of proof. Consequently, the 1st Defendant prayed that the Plainti’s suit be dismissed with costs, and that the 1st Defendant’s title over the suit property be upheld. 80. The court has carefully considered the pleadings,herein the oral and documentary evidence tendered by the parties, the rival written submissions and the applicable provisions of law, and the Court nds the following issues arise for determination: i. Who has the legitimate title over the suit land herein namely parcel no. CISMARA/MAJIMOTO/2760 ii. Whether the Plainti has proved the allegations of fraud to the legally required standards of proof iii. Who bears the costs of these proceedings Analysis and Determination i.Who has the Legitimate Title over the Suit Land Herein Namely Parcel No. CISMARA/ MAJIMOTO/2760 81. On the legitimacy of title over the suit property namely land parcel no. CISMARA/ MAJIMOTO/2760, it is not sucient for a party to wave a title as proof of conclusive ownership and indefeasibility of title. It is not in dispute that both the Plainti and the 1st Defendant produced title deeds bearing the same parcel number. The central question before this Court is therefore not merely https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 10

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who holds a title document, but whether the root of such title has been demonstrated to be lawful and traceable. (See Dina Management Ltd vs County Government of Mombasa & 5 Others (supra). 82. The jurisprudence emerging from the superior courts is now settled that where competing titles are presented before a court, the inquiry does not end with the production of a certicate of title. The Court must interrogate the process through which such title was acquired, and determine whether the holder can satisfactorily demonstrate a lawful root of title. See Clark vs Njoroge & 3 others (2026) KECA 718(KLR). 83. The court relies on various decided cases and specically the Supreme Court decision of Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) ,where the court restated the Court of Appeal’s determination in Munyu Maina v Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR, where the Court stated thus: [Paragraph 93] “where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register” 84. The Plainti relied heavily on the fact that his title deed was issued earlier in time being 27th March 2013, while that of the 1st Defendant was issued on 28th August 2023. However, chronology alone is no longer the decisive test. This Court must examine the legality of the process that culminated in the issuance of the title. 85. At the hearing, PW1, the Plainti herein admitted that the suit property is a sub division of the land parcel originally owned by Majimoto Group Ranch. This court has considered the certied Green card in the 1st Defendant’s list of documents at page 11 of his trial bundle, and it corroborates this testimony. 86. The Plainti in his Plaint Amended on 4th March 2025, at paragraph 7(3) on “particulars of interference” stated “instigating an intrigue scheme to displace the plainti from his ancestral land that he has traditionally and historically held.” 87. The Plainti basically alleged that the suit property descended to him as part of his ancestral land. In this regard, the Plainti ought to have adduced evidence of succession and the property descending through transmission from his parents or whoever was holding it in trust. This is the only way the Plainti can acquire a title under his name under such a claim. 88. Section 61 of the Land Registration Act 2012 states that: 1. If a sole proprietor or a proprietor in common dies, the proprietor’s personal representative shall, on application to the Registrar in the prescribed form and on the production to the Registrar of the grant, be entitled to be registered by transmission as proprietor in the place of the deceased with the addition after the representative’s name of the words "as executor of the will of ......................... [deceased]" or "as administrator of the estate of ........................................ [deceased]", as the case may be. (2) Upon conrmation of a grant, and on production of the grant the Registrar may, without requiring the personal representative to be registered, register by transmission— (a) any transfer by the personal representative; and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 11

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(b) (3) any surrender of a lease or discharge of a charge by the personal representative. In this section, "grant" means the grant of probate of the will, the grant of letters of administration of the estate or the grant of summary administration of the estate in favour of or issued by the Public Trustee, as the case may be, of the deceased proprietor. 89. Having gone through the certied Green card at page 11 of the 1st Defendant’s trial bundles, there is no such entry in the register. Further, the Plainti did not adduce any evidence to challenge the 1st Defendant’s Green card. 90. The only logical conclusion to make is that the suit land is not the Plainti’s ancestral land, and especially when the Plainti admitted that it belonged to Majimoto Group Ranch. 91. During his testimony, PW1 changed tune and testied that he bought the suit land from one Fred Sankale, who was a member of Majimoto Group Ranch. However, the Plainti did not produce a list of members of the said Group Ranch, in which the said Fred Sankale appears. The 1st Defendant on the other side produced a certied copy of Majimoto Group Ranch Member List at page 83-211 of his trial bundle. In the same list, the 1st Defendant appears as member number 327 at page 96 of his trial bundle. 92. At the very least, the Plainti ought to have produced the alleged sale agreement or availed the alleged vendor Fred Sankale to testify in court regarding the said transaction. This, he did not do, and as provided by section of the Evidence Act, 119 an adverse inference may be drawn that his evidence would have been adverse to the Plainti’s case. See the case of Gatonye & 2 others vs Kinyua (2025) CEHC11706 (KLR) and 22nd July 2025” where the court cited the case of Nesco Services Ltd vs CM Construction Ltd (2021) Eklr and held that: “ Where a party has custody or is in control of evidence and that party fails or refuse to tender or produce, the court is entitled to make adverse inference that such evidence was produced. It would to such party” 93. Section 3(3) of the Law of Contract Act is coined in mandatory terms to the eect that “no suit shall be brought upon a contract for the disposition of an interest in land unless the contract upon which the suit is founded is in writing, is signed by all the parties thereto; and the signature of each party signing has been attested by a witness who is present when the contract was signed by such party.” 94. The Plainti has done so little to comply with these provisions, neither did he produce or provide any proof of payment for the said land, Land Control Board Consent to transfer or a registered instrument of transfer to explain how he obtained his alleged interest in the suit property from the said Fred Sankale. 95. The burden of proof was on the Plainti to prove these allegation and facts. Section 107 of the Evidence Act as read with Section 108 of the same Act provide that:“whoever desires any court to give Section 107 judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 12

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prove the existence of any fact it is said that the burden of proof lies on that person……” Section 108 The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 96. Based on the above provisions of the law as contained in the Evidence Act, and the evidence before this court, it is evident that the court cannot determine with certainty that the Plainti bought the suit land from the said Fred Sankale. The court also rely on the principle of adverse inference which allows the court to draw an adverse inference against the Plainti in the absence of evidence which the Plainti ought to have produced to support his case. See the case of Kimotho vs KCB (2003) EA 108 where the court held that: “Adverse inference should be drawn upon a party who fails to call evidence in his possession” 97. Lastly, the court nds and holds that the Plainti has not approached this court with candour. The plainti cannot plead ownership of the suit land through ancestry at paragraph 7(3) of his pleadings, while claiming purchaser’s rights during hearing. Such a departure from his pleadings is not permissible. These are two mutually exclusive claims that cannot exist at the same time. Further, it is an attempt by the Plainti to amend his pleadings orally in open court, a procedure foreign in our courts. 98. A claim founded on ancestral ownership cannot, at the same time, be reconciled with a claim founded on purchase. In the circumstances, this Court is unable to place reliance on the Plainti's shifting and contradictory account of how he allegedly acquired the suit property. The inconsistency not only undermines the credibility of his case, but also lends credence to the 1st Defendant's contention that the Plainti has failed to establish a lawful and ascertainable root of title to the suit land. 99. In the case of Karumbi v Nursing Council of Kenya (NCK) (Civil Appeal E1063 of 2025) [2026] 8617(KLR) (Civ) (18 June 2026) (Judgment) the court relied in the case of Daniel Otieno Migore v South Nyanza Sugar Company Limited (2018) eKLR, where the court held that: Parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from.’’ 100. In the instant case, the Plainti cannot plead ownership through ancestry, then mid trial switch tone and claim purchaser’s rights contrary to his own pleadings. Accordingly, the Plainti is a non member of the Majimoto Group Ranch, and could not be allocated the suit land in its rst allocation/instance, and neither could he acquire a legitimate title by purporting purchase from a non-member. 101. In Petition No. 268 of 2017, at page 55 of the 1st Defendant’s trial bundle and specically paragraph 194, the court stated thus: “ Any member not in the primary register cannot be allocated land on rst allocation and can only acquire such land upon purchase. Companies cannot acquire land privately in Majimoto as they are not members in the primary list thus such allocations are illegal.” 102. Regarding the legitimacy of the 1st Defendant’s title, the 1st Defendant demonstrated that he was a registered member of Majimoto Group Ranch, and that the suit property was allocated to him pursuant to the regularization exercise undertaken after the Judgment in the said Petition No. 268 of 2017. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 13

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103. The evidence of the 1st Defendant was corroborated by DW2, the Chairman of Majimoto Group Ranch, who conrmed that the 1st Defendant was a bona de member entitled to allocation, while the Plainti was not a member of the said Group Ranch. The 1st Defendant appears as member number 327 of the Majimoto Group Ranch as contained at para 96 of the 1st Defendant’s trial bundle. 104. The Court has carefully read and considered the decision in Petition No 268 of 2017, at page 12-64 of the 1st Defendant’s trial bundle. It is clear that the 1st Petitioner appears as Petitioner No 10, while DW2, the current Chairperson of this Group Ranch appears as Petitioner No 2. Throughout the said Judgment, it is clear that the mother title is over land parcel No NAROK/CISMARA/MAJIMOTO/8. The suit property herein CISMARA/MAJI MOTO/2760, is a resultant sub-division of this mother title or parcel of land, a fact that was not disputed by any of the parties herein. 105. The main issue in the said Petition was that some members whose names appear on the primary register had been shortchanged by not being allocated their rightful portions. In its Judgment in the above Petition, the court at paragraph 219(d) ordered that the District Land Adjudication and Settlement Ocer, the 12th Respondent to regularize the allocation of land parcels in, Majimoto Group Ranch to the original owners in accordance with the original member list. 106. At part f, the court further ordered the District Land Registrar Narok, the 11th Respondent to revoke all titles in respect of public and communal properties which have been issued in the name of the private individuals including but not limited to CISMARA/MAJI MOTO/2171, 2078, 2076,2077, 2086, 461, 2165,654,2749 and 730 immediately and that if the revocation is not done within 14 days, the titles stand revoked and the land reverts to Majimoto Group Ranch. 107. These orders clearly extend to all the resultant subdivisions of the mother title or the mother parcel of land, so as to regularize the allocations to the rightful members of the Group Ranch according to the primary register. It is by eecting these court orders and regularizing the allocations, that the 1st Defendant came to be in possession of his title. 108. More importantly, the Land Registrar Mr. Philip Mathew Odidah, who was summoned by the Court as an independent witness, testied on 10/12/2025, that the ocial records in the Lands Registry reected the 1st Defendant as the registered proprietor of the suit property. The land Registrar further testied that the suit parcel of land was allocated to the 1st Defendant pursuant to the members' allocation register. He further testied that there existed no other green card relating to the suit property, and that the Plainti's alleged title did not exist in the ocial records under his custody. 109. The evidence of the Land Registrar (Mr Philip Odidah), was particularly signicant because the register is the primary record of ownership under the Land Registration Act. While the Plainti produced a title deed, he failed to demonstrate the entries in the register that culminated in its issuance. Indeed, the very foundation upon which his title rested remained unexplained. 110. In contrast, the 1st Defendant not only produced his title deed ,but also established the chain leading to its issuance through the Group Ranch records, the regularized register and the evidence of the Land Registrar. Consequently, this Court nds and holds that the 1st Defendant established a lawful and traceable root of title, while the Plainti failed to demonstrate the legal process through which he acquired the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 14

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ii. Whether the Plainti has Proved the Allegations of Fraud to the Legally Required Standards of Proof 111. Section 26 of the Land Registration Act 2012 states that: 1. 112. The certicate 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 certicate, and the title of that proprietor shall not be subject to challenge, except— (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme. In the case of Steyn v Ruscone (Civil Suit 291 of 2013) [2025] KEHC 6196 (KLR) (Commercial and Tax) (16 May 2025) (Judgment) Neutral citation: [2025] KEHC 6196 (KLR), the court restated the test for fraud as follows: [Parahraph 50] “The burden of proof in fraud claims is notably higher than that required in ordinary civil proceedings. In Railal Gordhanbhai Patel v Lalji Makanji, [1957] EA 314, the court held that although the standard falls below that of proof beyond reasonable doubt, it is above the ordinary balance of probabilities. Allegations of fraud must be proved with clarity, precision, and cogency.” 113. The Plainti herein pleaded numerous particulars of fraud against the Defendants. Beyond the pleadings, the Plainti did not tender evidence capable of establishing that the 1st Defendant forged documents, misrepresented facts to the Land Registrar, procured registration through deceit or participated in any fraudulent scheme. 114. The evidence adduced instead showed that the 1st Defendant obtained registration following the regularization exercise undertaken after the Judgment in Petition No. 268 of 2017, aecting Majimoto Group Ranch. Further, the Plainti did not produce any document demonstrating that the process was manipulated in favour of the 1st Defendant. 115. Again, the Court noted that the Land Registrar testied that even though there was no order specically cancelling parcel number CISMARA/MAJIMOTO/2760, however, regularization and compliance with orders at paragraph 219(d and f) in Petition number 268 of 2017 would denitely aect this parcel. Equally, no evidence was tendered showing that the 1st Defendant inuenced the Lands Registry to act unlawfully. 116. Therefore, from the above analysis and in the circumstances herein, the allegations of fraud remain mere assertions unsupported by cogent evidence. The Plainti has therefore failed to discharge the burden imposed by Sections 107, 108 and 109 of the Evidence Act. 117. Similarly, the prayer for a permanent injunction must fail because such relief is predicated upon proof of a legal right deserving protection. The Plainti has failed to establish such a right. The prayer seeking https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 15

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cancellation of the 1st Defendant's title is equally unmerited. On the contrary, the evidence on record favours the legitimacy of the 1st Defendant's registration. iii. Who Bears the Costs of this Suit? 118. It is trite law that costs follow the event as was illustrated by the Supreme Court of Kenya in the case of Jasbir Singh & 3 Others V Tarlochan Singh Rai & 4 Others [2014] Eklr wherein the court stated that ………the award of costs would normally be guided by the principle that, “costs follow the event”: the eect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails……...” 119. In the instant suit, the Plainti’s suit is found not merited, and thus the 1st Defendant is the successful litigant, thus he is entitled to costs, which should be borne by the Plainti herein. 120. In the end, and for the reasons set out above, the Court nds and holds that the Plainti has failed to prove his case on the required standard of a balance of probabilities, and his claim cannot stand. 121. Accordingly, the Court makes the following orders a. The Plainti has failed to prove his case on the required standard of balance of probabilities, and consequently, the Plainti's suit is hereby dismissed in its entirety b. The court nds and holds that the Plainti has failed to establish any legal basis for the cancellation of the title held by the 1st Defendant over land parcel No.CISMARA/MAJIMOTO/2760. c. The costs of this suit are awarded to the 1st Defendant. It is so Ordered. DATED, SIGNED AND DELIVERED VIRTUALLY, AT NAROK THIS 17TH DAY OF SEPTEMBER 2026. L. GACHERU JUDGE Delivered online in the presence of: Elijah Meyoki Court Assistant Mr Kamwaro for the Plainti Ms Hashi for the 1st Defendant Mr Menge for the 2nd Defendant and the 3{{^rd} Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5451/eng@2026-09-17 16

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