Kamau v Kibue & 2 others

c. A permanent injunction restraining the Defendants from harassing, intimidating, threatening and coercing the Plainti by themselves and by use of security agencies and further restraining them from demanding that the Plainti do pay them unsubstantiated damages. d. General damages. e. Any other suitable remedy as the honourable court may deem just and t to grant in the circumstances. f. Cost and interest of the suit. 2. The Defendant led a Statement of Defence in opposition. They contended that they are the bonade benecial owners of LR No. Nairobi /Block 118/1084 vide purchase from Mwinzi Mwikya, who had been in turn allocated by Drumvale. Further, that as at December 2012, the Plainti was aware that they had a claim on the suit land as they lodged a caution claiming purchasers’ interest, and which is still in situ. They also averred that the dispute had also escalated to Drumvale’s Dispute Resolution Subcommittee and that on 4th December 2012, the Plainti made an oer to purchase the suit land at kshs.8 million but later obtained a Lease through misrepresentation and fraudulent acts. They seek orders that the said Lease be cancelled for issuance in their name. 3. The suit was heard through viva voce evidence. Evidence of the Plainti 4. The Plainti testied as PW1. It was his testimony that he acquired the suit land from Drumvale vide a sale agreement dated 20th December 2008 after conducting due diligence. Further, that he paid the full purchase price after which, the suit land was transferred to him. Subsequently, a surveyor appointed by Drumvale pointed out beacons to him and then he took up vacant possession as the suit land had never been occupied. 5. He claimed that he enjoyed quiet possession until 2018 when he was called by DCI ocers based at Kiambu road who alleged that they needed him to clarify his ownership status. He presented himself and explained his acquisition history, supported by documents. Further, that towards the end of November 2024, he got a similar call from DCI ocers based at Ruai, raising the same issue, of which he tendered a satisfactory explanation but the Defendant resorted to using DCI ocers to coerce, intimidate and harass him. It was his testimony that they forced him to compensate the Defendant with an undisclosed sum of money and demanded that he executes an agreement to that eect, that he would compensate them and they would withdraw complaints against him. He denied ever being summoned by Drumvale for dispute resolution over the suit land. He produced the Plainti’s bundle of documents dated 9th December 2024 as P. Exhibit 1-8. 6. During cross-examination, PW1 conrmed that he was not an allotee of Drumvale, but he purchased the suit land from it, being one of its parcels that it had not disposed of. Further, that after the suit land was pointed out to him by Drumvale’s Surveyor, he executed a sale agreement at its lawyers’ oces, who were then Congo & Company Advocates. He explained that he was then issued with an allocation dated 11th November 1993. He acknowledged that subdivision and allocation of Drumvale’s land was done by the Ministry of Lands in 1993, but argued that the subdivions had not been allocated to specic buyers. He also conrmed he was a minor in 1993. 7. He informed the Court that he did not have the Transfer in respect of the suit land in Court but had a Lease dated 10th May 2012 from the Ministry of Lands. He also pointed out that the suit land had outstanding land rent from 1994, which he paid for, as well as rates to Nairobi City Council. He denied https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5529/eng@2026-09-22 2

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that the suit land was ever allocated to Mwinzi Mwikya and insisted that there has never been any claim on it since he purchased it. He also denied that the Land Registrar, Nairobi, wrote to him in respect of the suit land. He further denied knowledge of an alleged Caution, but he insisted that he saw it in Court for the rst time. He further denied the Defendant’s alleged meeting of 4th December 2024, where he made an oer to them to purchase the suit land and disputed his alleged signature on the handwritten agreement at page 27 of the Defendant’s bundle of documents. 8. Upon re-examination, PW1 insisted that he has been in possession of the suit land since 2008. Further, that it was a term of the sale agreement between Drumvale and himself, that the original letter of allotment in respect to the property would be availed thus it gave him the subdivision scheme approval dated 11th January 1993 and he complied with the terms therein. Evidence of the Defendant 9. DW1 Peterson Kiromo Kangethe testied that in November 1993, Ngara West Ngwataniro Self Help Group was registered and on the same year, they purchased Nairobi /Block 118/556 from one Samuel Nthumbi Muthama, then a shareholder in Drumvale. They later bought the suit land from Mwinzi Mwikya, also a shareholder of Drumvale thus it is not possible for the Plainti to have purchased the same land. 10. He stated that the Plainti’s subdivision approval though dated 11th November 1993 has its term of 99 years commencing on 1st February 1994 converse to the others whose term starts from 1st January 1994 thus it is not authentic. Further, that when the Defendant learnt of the scheme to defraud them, they notied Drumvale and its Liquidator wrote to the Commissioner of Lands on 3rd May 2012, 7th March 2016 and 14th April 2017 respectively. He conrmed that the Defendant lodged a Caution over the suit land in September 2013 and the Land Registrar wrote to the Plainti on 10th December 2013 notifying him of the same. 11. It was his testimony that vide a letter dated 19th June 2017, Drumvale requested the Plainti to attend a dispute resolution meeting by its sub-committee but he disregarded the invitation and the committee proceeded to write a report dated 28th February 2022 on the dispute over the said suit land. 12. He claimed that the Defendant reported the encroachment to the DCI Ruai who summoned the Plainti but he did not honour the summons and instead sent one Mr. James K. Waithaka (Wakanene) to represent him. Further, that at the DCI Ruai, the said James was tasked to mediate the matter and report back. He reiterated that subsequently, he invited the ocials of the Defendant to a meeting at his residence on 4th December 2024 and after the said meeting, the Plainti in his own handwriting and without coercion undertook to pay them ksh.8 million towards purchase of suit land but he subsequently abandoned his undertaking and led the suit. He insisted that the Plainti obtained a Lease through misrepresentation. He produced the Defendant’s List and Bundle of documents dated 10th March 2025 as D. Exhibits 1-14. 13. Upon cross-examination, DW1 stated that in their sale agreement dated 7th December 1993, the vendor was indicated as Michael Mukosi Maingi, who had a Power of Attorney to represent Mwinzi Mwikya. He conrmed that they paid kshs.65,000/= in cash and both vendor and purchasers signed the sale agreement in the oce of the lawyers representing both parties. Subsequently, they took possession and subdivided the suit land into eight (8) plots, but they had no evidence to that eect. He insisted that the Plainti did not take possession. He also stated that they went to the Ministry of Lands with their subdivision approval in 2012 but they found that a Lease had been issued to the Plainti and since they could not forcefully evict him, they went to the DCI and to Drumvale to investigate the matter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5529/eng@2026-09-22 3

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14. Upon re-examination, DW1 reiterated his evidence in chief and in cross examination. 15. Parties thereafter led their written submissions. Submissions 16. The Plainti submitted that while the Defendant pleaded that he procured his Lease through misrepresentation and fraud, they failed to plead particulars and to substantiate the allegations by evidence, contrary to the principle that fraud must be strictly pleaded and proved. Further, that while the Defendant alleged that they possess a longstanding proprietary interest in the suit land, they did not tender a credible explanation as to why they failed to take any legal action to assert their alleged rights through lawful means. He reiterated that the Defendant had never been in possession of the suit land. 17. He also submitted that the defence is speculative as one Mwinzi Mwikya who is alleged to have sold the suit land to the Defendant was not joined in the proceedings or called to testify and neither was Drumvale. Further, that the alleged Power of Attorney donated to Michael Mukosi Maingi (who is an alleged committee member of Drumvale), by the said alleged vendor was not shown to have been duly registered and it is said to have been executed on the same day of the alleged transfer of the suit property to the Defendant, thus its purpose beats logic. He further submitted that donation of the Power of Attorney specically to Michael Mukosi Maingi points to a systemic scheme suggestive of collusion, internal manipulation and fraud, given his position in Drumvale. 18. The Plainti also submitted that he demonstrated the root of his title which he contended is valid and indefeasible. Further, that the Defendant’s conduct amounts to trespass, intimidation and unlawful interference, which the Court ought not to allow. He also submitted that he had satised all the conditions governing injunctions and that he had demonstrated that as a result of the Defendant’s acts of trespass, he has suered distress therefore he is entitled to compensation. The Plainti also urged the Court to dismiss the Defendant’s prayers in their defence, on the basis that they were not sought through a proper counterclaim. 19. To buttress his averments, the Plainti relied on the following decisions: Republic v Registrar Taita Taveta & another Ex parte KCB [2015] eKLR; Park Towers Ltd v John Mithamo Njika & 7 others [2014] eKLR; Kenled Cons Ltd v New Gatitu Service Station Ltd [1990] eKLR, and Stephen Kipketut t/a Riverside Lodge v Naftali Ogola [2009] eKLR. 20. On their part, the Defendant submitted that Drumvale sub-divided its land and allotted it to its members, based on their shares in 1993, and since the Plainti admitted that he was neither a member nor a shareholder of Drumvale which was not allotting its land to non-members, the Subdivision Scheme Approval he relied upon to procure his Certicate of Lease is invalid. 21. They further submitted that the Plainti did not establish that he lawfully acquired an interest in the suit land capable of being protected by law as the sale agreement between Drumvale and himself was not duly executed by the vendor as no director or authorized signatory of Drumvale appended their signatures on it. Further, that he did not adduce in evidence a duly executed Transfer, or Consent from the Vendor and he relied on an invalid Subdivision Plan. 22. They submitted that in contrast to the Plainti’s inability to demonstrate the root of his title, they demonstrated that they purchased their land from Mwinzi Mwikya, a former member of Drumvale and the initial allottee of the suit land, through his appointed Attorney, one Michael Mukosi Maingi. Further, that Drumvale’s Liquidator also conrmed their ownership through correspondences addressed to the Commissioner of Lands. They also argued that the Plainti’s conduct of making an https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5529/eng@2026-09-22 4

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oer to purchase their interest in the suit land is further conrmation that he did not acquire an interest that can be protected by law. 23. The Defendant also submitted that they were not indolent in following up on registration of their interest in the suit land, but placing of Drumvale under liquidation delayed their eort to procure their Certicate of Lease. Further, that when they learnt that the Plainti had procured a Certicate of Lease, they led a Caution which is still in situ then reported the matter to the relevant authority for investigation thus the Plainti could not have been in continuous occupation of the suit land undisturbed adding that their evidence that they had caused the subdivision of the suit land was not controverted by the Plainti. 24. To buttress their averments, the Defendants relied on the following decisions: Dina Management Limited v. County Government of Mombasa and 5 others (Petition No. 8 (E010) of 2021) and Koech v Kenya Forest Services 2024 KECA 1516(KLR). Analysis and Determination 25. I have considered the pleadings, testimonies of the witnesses, exhibits including rivalling submissions and the only for determination is who between the Plainti and Defendant is the owner of Nairobi Block 118/1084. 26. The Plainti contends that he purchased the suit land from Drumvale in 2008, paid the full purchase price through Congo and Company Advocates, and beacons were pointed out to him by Drumvale’s Surveyor after which he took possession and was issued with a Subdivision Scheme approval dated 11th November 1993. Subsequently, he obtained a Lease dated 10th May 2012 from the Ministry of Lands, after paying land rent and rates. He has sought this court’s protection of the said Certicate of Lease, citing interference by the Defendant through DCI ocers, whom he contends coerced him into agreeing to compensate the Defendant for the suit land, which they claim ownership of. 27. On their part, the Defendant contends that the suit land was originally allocated to Mwinzi Mwikya, a shareholder of Drumvale, and that they purchased it from him in 1993 through his Attorney. They also contend that they have been in possession of the suit land and have subdivided it into eight (8) plots. They dispute the allegation that they have slept on their rights and contend that Drumvale’s liquidator sent correspondences to the Commissioner of Lands conrming their ownership. They also claim that they registered a Caution on the suit land and had led the dispute with Drumvale’s Dispute Resolution Subcommittee and reported the interference to the DCI. It is their case that Drumvale could not have sold land directly to the Plainti who has admitted that he was not its shareholder. They also argue that the Plainti had voluntarily agreed to compensate them before he jumped ship. They hence seek cancellation of the Plainti's lease and issuance of a lease in their names. 28. While a Certicate of Title is prima facie evidence of proprietorship, mere production without demonstrating its root is not sucient proof of ownership. The Plainti had a duty to demonstrate to the Court the root of his Certicate of Lease issued on 10th May 2012 as it has been vehemently challenged by the Defendant who contend that it was obtained through misrepresentation of facts. It is only where it is proved that a Certicate of Lease was obtained through fraud or misrepresentation that this Court can cancel it. 29. Sections 26 (1) (b) of the Land Registration Act stipulates thus: “ The certicate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer … shall be taken by all courts as prima facie evidence that the person named https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5529/eng@2026-09-22 5

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as proprietor of the land is the absolute and indefeasible owner … and the title of that proprietor shall not be subject to challenge, except – 30. 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. Further, section 24 (b) of the Land Registration Act stipulates that: ‘The registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.’ 31. In this instance, the Plainti claimed to have acquired the suit land from Drumvale. The Plainti presented a Sale Agreement dated the 20th December, 2008 which was not signed by any Director from Drumvale but witnessed by Congo & Company Advocates. Insofar as the Plainti presented various documents as exhibits including transfer of funds, payment of land rent and rates, Lease and Certicate of Lease, he did not present a Transfer of Land Form between Drumvale and himself, which enabled him process the Certicate of Lease, that is in dispute herein. Further, there was no Letter of Allotment presented from Drumvale that purportedly sold land to the Plainti. 32. On perusal of the Defendant’s exhibits, I note they presented minutes dated the 17th November, 1993 and at Minute No, 6 it conrms that Share No. 1001 of Samuel Nthumbi Muthama (deceased) represented by Michael Mukosi Maingi of Box 6 Mbiuni was transferred to Ngara West Ngwatanio Self help group. The Defendant further presented a Sale Agreement dated the 7th December, 1993 between Michael Mukosi Maingi a representative of Mwinzi Mwikya and themselves for plot No. 1361 Drumvale Cooperative Society Limited and at Clause 3, Michael Mukosi Maingi conrmed he had authority of Mwinzi Mwikya to enter into the said sale agreement and indemnify the purchaser. A duly executed Special Power of Attorney dated the 6th December, 1993 was also annexed to the Sale Agreement and produced as an exhibit. As per Drumvale Special Management Committee Meeting held on 15th December, 1993, minute No. 7 on Transfer of Plots, it indicates that Plot No. 1361 of Mwinzi Mwikya was transferred to Ngara West Ngwatanio Self Help Group under strength of Michael Mukosi Maingi. The Defendant also produced the Subdivision Scheme Approval for Nairobi /Block 118/1084 in the name of Mwinzi Mwikya ID No. 1474763/64 dated the 11th November, 1993. 33. Vide letters dated the 3rd May, 2012 and 7th March, 2016 repectively, addressed to the Commissioner of Lands, one Peter Wanjohi Kiama - the Liquidator for Drumvale Farmers’ Cooperative Society Limited conrmed that Nairobi Block 118/1084 was initially allocated to Mwinzi Mwikya by the Society but he sold it to Ngara West Ngwatanio Self Help Group and he requested the oce to issue them with a Lease. Further, in a letter dated the 14th April, 2017, the said Liquidator reiterated that the Defendant owned the suit land and that a transfer was registered in 1993. It is worthnoting that the Plainti as PW1 conrmed during cross examination that in 1993 he was a minor. 34. Yet in another letter dated the 19th June, 2017, Drumvale wrote to the Plainti and conrmed that it is the Defendant that owned the suit land and requested him to attend the Dispute Resolution Committee meeting on 27th June, 2017. Further, as per the minutes from the said Dispute Resolution Committee meeting, it conrmed that the Defendant owned the suit land and that the lawyer messrs Congo & Company Advocates fraudulently sold the said land to the Plainti without consent from https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5529/eng@2026-09-22 6

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Drumvale and the initial allotee. The Plainti was directed to obtain compensation from messrs Congo & Company Advocates. 35. On root of title, the Court of Appeal held as follows in the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR; “We state that when a registered proprietor root of title is under challenge, it is not sucient 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.” Emphasis Mine 36. The same Court stated as follows in Wambui vs Mwangi & 3 others (Civil Appeal 465 of 2019) [2021] KECA 144 (KLR): “ …No court of law should sanction either the acquisition of title to property in favour of a party (christened crooks by the court) who has acquired such title from a legally registered innocent proprietor using forgery, deceit or any kind of fraud…” 37. Further, in Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), the Supreme Court stated thus: “ …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.” 38. From my analysis of the evidence as presented, while relying on the legal provisions cited and associating myself with the decisions quoted, I nd that the Plainti obtained the Certicate of Lease to the suit land through fraud and misrepresentations. Further, that the root of his title is fettered hence impeachable and the Court cannot protect it. I further nd that it is actually the Defendant who owns the suit land which the Plainti proceeded to fraudulently register in his name. In the circumstances, I will proceed to revoke the Plainti’s Certicate of Lease in accordance with the provisions of section 80 of the Land Registration Act and direct that the Chief Land Registrar registers it in the name of the Defendant. 39. In the foregoing, I nd that the Plainti has not proved his case against the Defendant on a balance of probability and will proceed to dismiss it with costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Nzioka for Plainti Mbugua for Defendant Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5529/eng@2026-09-22 7

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