Reuben Makau Mutindimi v John Chuaga Nganga

has been a bona fide member, number 329, of Drumvale Farmers Co-operative Society Limited since 1991. As a member of the Society, he was allocated 5 acres of land, then described as Plot No. 295. He paid the requisite survey and conveyance fees in 1994. The land was subsequently surveyed, beacons were planted in his presence and he took possession in 1995 pending the processing and issuance of his title deed. He cultivated hay on the land from 1995 until 2021, when he fell ill and relocated to Kangundo for treatment. 3. The Plaintiff avers that between 2005 and 2015, leadership wrangles within the Society disrupted its affairs and made it difficult for him to follow up on the issuance of his title deed. In September 2024, when he visited the land with his sonin-law, he found that it had been subdivided into several plots and occupied by persons unknown to him. Upon obtaining the green card, he established that he had been registered as proprietor of Mavoko Town Block 12/295 on 4 th February 1997 and that the title deed issued in respect of ELCLC. NO.E010/2025-JUDGMENT 2

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the land had not been surrendered to him. He further established that the land had subsequently been transferred to the Defendant on 25th June 2003 and that, on 23rd November 2012, the Defendant caused it to be subdivided into 43 parcels. 4. The Plaintiff denies ever selling or transferring the suit land to the Defendant, whom he states is a total stranger to him. He testified that he has never met the Defendant and has never received any consideration from him. He reported the matter to Kamulu Police Station under OB No. 33/11/2024. 5. On the basis of the foregoing, the Plaintiff seeks the following reliefs: a) An order be and is hereby issued that the transfer of land parcel No. Mavoko Town Block 12/295 on 25/6/2003 or thereabout to the Defendant was fraudulent, illegal and same is hereby revoked and or cancelled. ELCLC. NO.E010/2025-JUDGMENT 3

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b) An order be and is hereby issued that any survey, subdivision of land parcel No.Mavoko Town Block 12/295 into various parcels of Land among them parcels No.Mavoko Town Block 12/5541-5584 which totals to about 43 Plots or any other subsequent sub-division thereto and all subsequent title deeds that were subsequently generated by the Defendant, his agents, servants and or any person acting under his authority are all illegal and are hereby revoked forthwith. c) A permanent injunction be and hereby issued restraining the Defendant, his servants, relatives, agents, or any person acting under his authority restraining him from entering, living, farming, building, constructing, selling, leasing, charging, transferring or dealing in any manner with land originally described as land parcel No.Mavoko Town Block 12/295 and resultant subdivisions thereto being parcels No. Mavoko Town ELCLC. NO.E010/2025-JUDGMENT 4

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Block 12/5541-5584 which totals to about 43 plots or any other sub-divisions arising therefrom. d) The Subsequent to prayers a and b above, an order is hereby issued to the Land Registrar, Machakos County to rectify the register book relating to land originally described as Mavoko Town Block 12/295 so as to remove the names of the Defendant herein and all subsequent entries and titles registered therein after 4/2/1997 among them entries for Parcels No.Mavoko Town Block 12/5541-5584 and reinstate the particulars of ownership with that of the Plaintiff as at 4/2/1997. e) That subsequent to prayers a, b and d above, an order is hereby issued to the Land Registrar Machakos County to issue a provisional title deed and or an original title deed to the Plaintiff herein for Land Parcel No.Mavoko Town Block ELCLC. NO.E010/2025-JUDGMENT 5

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12/295 in view of the fact that the Plaintiff did not collect the original title deed. f) An order of eviction be and is hereby issued against the Defendant, his relatives, Servants, agents and any person occupying land originally described as Mavoko Town Block 12/295 and subsequent sub-divisions thereto among them parcels No.Mavoko Town Block 12/5541-5584 totaling to about 43 Plots to vacate from the said land within Thirty (30) days from the date of delivery of this judgment failure of which the Plaintiff be at Liberty to forcefully evict them. g) An order that the OCS, Kamulu Police station do supervise enforcement of orders c and F above. h) General damages for trespass to land parcel No.Mavoko Town Block 12/295. i) Costs of this suit be awarded to the Plaintiffs. Service on the Defendant ELCLC. NO.E010/2025-JUDGMENT 6

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6. The proceedings of this Court show that on 5 th March 2025, counsel for the Plaintiff sought leave to serve the Defendant by substituted service. Counsel informed the Court that the Plaintiff had no contact with the Defendant and did not know his physical address. The Court consequently granted leave for substituted service. 7. Pursuant to that order, the Plaintiff caused a notice to be published in the Daily Nation newspaper on 23rd April 2025. An affidavit of service confirming the publication was filed on 29th July 2025. The Defendant, or any person claiming through him, did not enter appearance within the prescribed time or at all. 8. Order 5 Rule 17 of the Civil Procedure Rules empowers the Court, where summons cannot be served in the ordinary manner, to order substituted service in such manner as the Court considers appropriate. In the present case, the Court authorized service by substituted service and the Plaintiff complied with that order by causing the notice to be ELCLC. NO.E010/2025-JUDGMENT 7

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published in the Daily Nation newspaper. I am therefore satisfied that the Defendant was duly served. 9. The Defendant having been duly served and having failed to enter appearance or participate in the proceedings, the Court was entitled to proceed with the hearing in his absence. The matter proceeded for hearing on 7th July 2026. The Evidence 10. The matter proceeded for hearing on 7th July 2026. The Plaintiff testified as PW1 and adopted his witness statement dated 30th January 2025 as his evidence. He stated that he was a teacher by profession but had since retired and was engaged in farming activities within Kangundo Sub-County. He testified that he was a member and shareholder of Drumvale Farmers Co-operative Society Limited. He produced his original share certificate, which showed that he was member No. 329 of the Society. ELCLC. NO.E010/2025-JUDGMENT 8

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11. The Plaintiff testified that the Society had collectively applied to the Government of Kenya for allocation of land on behalf of its members. Upon approval, the Society facilitated the acquisition of individual allotment documents and title deeds for its members upon payment of the requisite fees. He stated that once a member paid the requisite survey and conveyance fees to the Society, the Society took over the process of obtaining the individual title deed on the member's behalf. 12. He narrated that, in respect of his land, he had paid the Society all the requisite survey and conveyance fees in the mid-1990s. Despite making numerous visits to the Society's offices, he was unable to obtain the title deed to his land up to 2005. He testified that, thereafter, the operations of the Society became uncertain following leadership wrangles which affected its affairs and resulted in the Society moving its offices from one location to another. According to him, the prevailing uncertainty within the Society further affected the issuance of his title deed. ELCLC. NO.E010/2025-JUDGMENT 9

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13. He told the Court that, as a shareholder of the Society, he had been allocated 5 acres of land and took possession thereof in 1995. He remained in occupation until 2021. He explained that his occupation involved ploughing the land and cultivating hay, which he sold to local dairy farmers. 14. It was his testimony that, in 2021, he suspended farming activities on the land and returned to his rural home in Kangundo after he fell ill. He stated that when he visited the land in September 2024, he found that it had been subdivided into several plots and fenced. He further testified that the land was occupied by persons unknown to him, whom he regarded as trespassers. 15. He told the Court that, following these developments, he instructed his Advocate to ascertain the status of Plot No. 295. Upon the Advocate obtaining an extract of the green card, he discovered that a title deed for the land, described as Mavoko Town Block 12/295, had been issued on 4th ELCLC. NO.E010/2025-JUDGMENT 10

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February 1997 and received by the Society. He testified that the title deed was never surrendered to him, despite his having made several visits to the Society to inquire whether his title deed had been processed. 16. He added that he was further surprised to discover that, without his knowledge, the land had been transferred to the Defendant on 25th June 2003. The Defendant subsequently subdivided the land on 23rd November 2012 into various parcels, being Mavoko Town Block 12/5541 to 5584. He denied having sold or transferred the land to the Defendant. He testified that the Defendant was a stranger to him, that he had never met him and that he had never received any money from him as consideration for the sale of the land. He consequently regarded the Defendant and any persons acting through him as trespassers on the land. 17. It was his testimony that he subsequently reported the matter at Kamulu Police Station concerning the loss of some of his documents relating to the suit land and requested that ELCLC. NO.E010/2025-JUDGMENT 11

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appropriate action be taken against those responsible. He added that, as at the time of his testimony, the Defendant and the persons he referred to as his accomplices had not been arrested. That marked the close of the Plaintiff's evidence. 18. The Plaintiff produced the following documents in support of his case: a) Plaintiff Exhibit 1: Copy of Plaintiff's identity card; b) Plaintiff Exhibit 2: Copy of letter dated 19/9/2024 requesting for green card; c) Plaintiff Exhibit 3: Copy of green card for the suit land and receipt for payment; d) Plaintiff Exhibit 4: Copy of share certificate from Drumvale Farmers Co-operative Society Ltd; e) Plaintiff Exhibit 5: Copy of OB extract dated 19/2/2025 at Kamulu Police Station. ELCLC. NO.E010/2025-JUDGMENT 12

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19. The green card, produced in evidence as Plaintiff's Exhibit 3, shows that the Plaintiff was registered as the first proprietor of the suit land on 4 th February 1997. The land is registered as measuring 2.00 hectares, equivalent to approximately 4.94 acres. The green card further records the following subsequent entries: i. Entry dated 25th June 2003: Transfer of the suit land to John Chuaga Nganga, the Defendant. ii. Entry dated 18th July 2003: Issuance of a title deed to the Defendant. iii. Entry dated 23rd November 2012: Subdivision of the suit land into parcel numbers Mavoko Town Block 12/5541 to 5584. Submissions 20. Upon the close of the Plaintiff’s case, the Court directed the parties to file their respective written submissions. ELCLC. NO.E010/2025-JUDGMENT 13

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21. Counsel for the Plaintiff filed written submissions dated 10th July 2026. Counsel submitted that the Plaintiff has proved on a balance of probabilities that he is the lawful original owner of the suit land. Counsel relied on Section 107(1) of the Evidence Act, Article 40(1) of the Constitution, and Section 26 of the Land Registration Act. Counsel submitted that the Plaintiff produced a copy of green card which reveals that the Plaintiff was the first registered owner of the suit land on 4/2/1997. 22. Counsel submitted that the Defendant, being a stranger to the Plaintiff and having failed to explain how he became the registered proprietor of the suit land on 25th June 2003 without the Plaintiff's knowledge or consent, had no lawful claim to the suit land. Counsel relied on Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR), where the Court of Appeal held that, once the root of a registered proprietor's title is challenged, it is not sufficient for the proprietor to merely produce the instrument of title as proof of ownership. ELCLC. NO.E010/2025-JUDGMENT 14

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23. Counsel further relied on Michael Wambua Musyoka v David Wachira Kagunda [2019] KEELC 1617 (KLR), which concerned land within Mavoko Town Block 12 and involved Drumvale Farmers Co-operative Society Limited. Counsel submitted that, in that case, the Court found the purported transfer of the title to have been fraudulent and ordered its cancellation. 24. Counsel also relied on Section 80(1) of the Land Registration Act which provides for rectification of the register where registration was obtained by fraud or mistake. Issues for Determination 25. Having considered the pleadings, the evidence adduced, and the submissions of counsel, I frame the following issues for determination: a) Whether the Plaintiff has established his proprietary interest in Mavoko Town Block 12/295 ELCLC. NO.E010/2025-JUDGMENT 15

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b) Whether the transfer of the suit land to the Defendant on 25th June 2003 was fraudulent, illegal and unprocedural. c) Whether the subdivision of the suit land into parcel numbers Mavoko Town Block 12/5541 to 5584 was lawful. d) Whether the Plaintiff is entitled to the reliefs sought. e) Who should bear the costs of the suit? Analysis and Determination Whether the Plaintiff has established his proprietary interest in Mavoko Town Block 12/295 26. It is a fundamental principle of law that he who alleges must prove. Section 107(1) of the Evidence Act, Cap. 80 Laws of Kenya, 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. Section 109 of the same Act further provides that the burden of proof as to any particular fact ELCLC. NO.E010/2025-JUDGMENT 16

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lies on the person who wishes the Court to believe in its existence. 27. The Plaintiff produced the green card for Mavoko Town Block 12/295, which records that he was registered as the proprietor of the suit land on 4 th February 1997. The green card therefore establishes the registration history of the suit land and in particular, that the Plaintiff was the first registered proprietor. Section 26(1) of the Land Registration Act, Cap. 300 Laws of Kenya, provides that a certificate of title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named therein is the absolute and indefeasible owner of the land, subject to the exceptions set out in the section. 28. Section 26 provides: “26. Certificate of title to be held as conclusive evidence of proprietorship (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer ELCLC. NO.E010/2025-JUDGMENT 17

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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— (a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. (2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.” 29. The green card produced by the Plaintiff shows that he was registered as the proprietor of Mavoko Town Block 12/295 ELCLC. NO.E010/2025-JUDGMENT 18

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on 4th February 1997. It therefore establishes that the Plaintiff was the first registered proprietor of the suit land. The significance of that registration, however, must be considered together with the evidence explaining how the Plaintiff acquired his interest in the land. The green card is therefore important not because it is itself the certificate contemplated by section 26, but because it establishes the sequence of registrations upon which the Plaintiff's claim is founded. 30. The Plaintiff's evidence explains the circumstances under which he acquired the suit land. He testified that he was a member of Drumvale Farmers Co-operative Society Limited, holding membership number 329. According to his evidence, the Society allocated land to its members and, upon payment of the requisite survey and conveyance fees, facilitated the processing of individual titles. He stated that he paid the requisite fees, that the land was surveyed and beacons were planted in his presence. He subsequently took ELCLC. NO.E010/2025-JUDGMENT 19

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possession of the land in 1995 and remained in occupation, undertaking farming activities thereon until 2021. 31. The Plaintiff produced his share certificate issued by the Cooperative Society as evidence of his membership. He also produced the green card for the suit land, which records his registration as the first proprietor thereof on 4 th February 1997. His evidence on allocation, payment of the requisite fees, survey, possession and subsequent registration therefore forms a continuous account of the acquisition of his interest in the land. 32. The Court of Appeal in Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR) addressed the evidentiary burden placed upon a registered proprietor where the root of title is challenged. The Court stated: “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 ELCLC. NO.E010/2025-JUDGMENT 20

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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 need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony. We find that a trust exists in relation to the suit property.” 33. The principle is that where the root of title is placed in issue, the Court must examine the process through which the title was acquired rather than resting its determination solely on the instrument of title. That principle has subsequently been affirmed by the Supreme Court in Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), where the ELCLC. NO.E010/2025-JUDGMENT 21

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Court reiterated that the legality of a title may require examination of its root. The Court stated: 93. As held by the Court of Appeal in Munyu Maina v Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR, 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. 94. To establish whether the appellant is a bona fide purchaser for value therefore, we must first go to the root of the title, right from the first ELCLC. NO.E010/2025-JUDGMENT 22

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allotment, as this is the bone of contention in this matter. 34. In Martin & 2 others (Suing as Officers of the Church of God Prophecy) v Kamar & 5 others [2016] KEELC 1092 (KLR) the Court explained the approach to be taken where competing titles are placed before it. The Court held: “A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. 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. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting ELCLC. NO.E010/2025-JUDGMENT 23

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with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder. With the nature of case at hand, I will need to embark on investigating the chain of processes that gave rise to the two titles in issue as it is the only way I can determine which of the two titles should be upheld.” 35. In the present case, the Plaintiff has gone beyond the mere production of the green card. He has given evidence on the circumstances in which he acquired the suit land. He testified that he was a member of the Society, was allocated the land, paid the requisite survey and conveyance fees, had ELCLC. NO.E010/2025-JUDGMENT 24

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the land surveyed and beacons planted in his presence, and thereafter took possession. His registration as the first proprietor on 4th February 1997 is consistent with that account. The evidence therefore provides an account of the root of the Plaintiff's title and the process through which the land came to be registered in his name. 36. The Defendant, on the other hand, has not placed before the Court any evidence explaining the circumstances in which the suit land came to be registered in his name. There is no evidence that he purchased the land from the Plaintiff, that the Plaintiff executed any instrument transferring the land to him, or that the Plaintiff otherwise consented to the transfer of 25th June 2003. The Defendant has also not offered any explanation for the entry in the register showing his registration as proprietor. 37. The burden of proving the Plaintiff's proprietary interest remained with the Plaintiff throughout. His evidence, however, establishes that he was allocated the land by the ELCLC. NO.E010/2025-JUDGMENT 25

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Society, paid the requisite fees, took possession and was thereafter registered as the first proprietor on 4 th February 1997. That evidence is supported by the share certificate and the green card produced before the Court. The Defendant has placed no competing evidence before the Court to displace that account. 38. The jurisprudence on title to land is therefore clear. Registration is not an end in itself. It is the legal recognition of an interest acquired through a process prescribed by law. Where that process is challenged, the Court is required to examine the evidence concerning the acquisition and registration of the interest. The register is an important part of that inquiry, but it does not prevent the Court from examining the circumstances that preceded the registration. This approach preserves the integrity of the land registration system by ensuring that the protection accorded to registered proprietorship is attached to a title whose acquisition is shown to have a lawful foundation. ELCLC. NO.E010/2025-JUDGMENT 26

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39. Having considered the evidence as a whole, I am satisfied that the Plaintiff has established his proprietary interest and the root of his title. I therefore find that the Plaintiff was the lawful proprietor of the suit land prior to the transfer entered in the register on 25th June 2003. Whether the transfer of the suit property to the Defendant on 25th June 2003 was fraudulent, illegal and unprocedural 40. The Plaintiff alleges that the transfer of the suit land to the Defendant on 25th June 2003 was fraudulent, illegal and unprocedural. At paragraph 17 of the Plaint, the Plaintiff pleaded particulars of fraud, including the transfer of the suit land without consideration, a sale agreement, his consent or authority, impersonating the Plaintiff, secretly surveying and subdividing the land and unlawfully taking possession of and dealing with the suit land. 41. In his testimony, the Plaintiff stated that he never sold, transferred or otherwise disposed of the suit property in ELCLC. NO.E010/2025-JUDGMENT 27

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favour of the Defendant. He testified that he had never met the Defendant and had never received any consideration from him. He further stated that he neither executed nor authorized any instrument transferring the suit property to the Defendant. His evidence was therefore that the transfer and registration of the suit property in the Defendant’s name on 25th June 2003 were effected without his knowledge, consent or authority. 42. The question, therefore, is whether the circumstances surrounding the transfer and registration of the suit property in the Defendant’s name support the Plaintiff’s allegation that the transaction was effected without his knowledge, consent or authority and, consequently, whether the pleaded particulars of fraud have been established to the required standard. 43. The allegation of fraud in a land transaction attracts a higher standard of proof than the ordinary balance of probabilities, although it does not rise to the standard of ELCLC. NO.E010/2025-JUDGMENT 28

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proof beyond reasonable doubt. In R.G. Patel v Lalji Makanji [1957] EA 314, the Court of Appeal established the threshold on the burden of proof required in civil cases founded on fraud when the court observed that, “There is one preliminary observation which we must make on the learned Judge’s treatment of this evidence: he does not anywhere in the judgment expressly direct himself on the burden of proof or on the standard required. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof something more beyond than reasonable a mere doubt, balance of probabilities is required…”. 44. In Moses Parantai & Peris Wanjiku Mukuru, suing as the legal representatives of the Estate of Sospeter Mukuru Mbeere (Deceased) v Stephen Njoroge Macharia [2020] KECA 232 (KLR), the Court of Appeal ELCLC. NO.E010/2025-JUDGMENT 29

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reiterated the standard applicable to allegations of fraud in land disputes. The Court stated: “Fraud is a quasi-criminal charge which must, as already stated, not only be specifically pleaded but also proved on a standard though below beyond reasonable double doubt, but above balance of probabilities.” 45. In the present case, the Plaintiff produced the green card, marked as Exhibit 3, which shows that he was the registered proprietor of the suit land from 4 th February 1997 until 25th June 2003, when the land was transferred to the Defendant. The Plaintiff testified that he never sold or transferred the suit land to the Defendant, that he had never met him and that he never received any consideration from him. He further testified that he neither executed nor authorized any instrument transferring the suit land to the Defendant. His evidence directly addressed the pleaded allegations that the transfer was effected without a sale, consideration, his consent or authority. The Defendant did ELCLC. NO.E010/2025-JUDGMENT 30

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not enter appearance or file a defence, and no evidence was placed before the Court to controvert the Plaintiff's testimony or explain how the transfer was effected. 46. I have considered this evidence against the entries in the green card. The Plaintiff was the registered proprietor immediately before the impugned transfer. The register then records the transfer of the suit land to the Defendant on 25 th June 2003. There is, however, no evidence before the Court of any transaction between the Plaintiff and the Defendant pursuant to which the Plaintiff divested himself of his interest in the suit land. No sale agreement was produced. No transfer executed by the Plaintiff was produced. There is no evidence of consideration having passed from the Defendant to the Plaintiff. More importantly, the Plaintiff's evidence is that he neither executed nor authorized the transfer. The transfer recorded in the register is therefore unsupported by any evidence of a lawful transaction between the registered proprietor and the person in whose favour the registration was made. ELCLC. NO.E010/2025-JUDGMENT 31

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47. In my view, the unexplained transfer of the Plaintiff's registered interest to the Defendant, in the absence of any evidence of a transaction authorized by the Plaintiff, is sufficient to establish that the registration was procured fraudulently. I am therefore satisfied that the Plaintiff has proved the pleaded allegation of fraud to the required standard. 48. I find guidance in the decision of this Court in Michael Wambua Musyoka (Suing as the Administrator of the Estate of Kiloko Mitaa (Deceased) v David Wachira Kagunda [2019] KEELC 1617 (KLR). The dispute concerned land within Mavoko Town Block 12 which had been allocated through Drumvale Farmers Co-operative Society Limited. The Court considered the circumstances in which the land had been transferred from the Society's member to the defendant and subsequently dealt with through subdivision. The Court held: “... the purported transfer of the title for parcel of land known as Mavoko block 12/268 was ELCLC. NO.E010/2025-JUDGMENT 32

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therefore fraudulent and should be cancelled by this court.” 49. The facts of Michael Wambua Musyoka are strikingly similar to the present case. In both cases, the land originated from an allocation by Drumvale Farmers Cooperative Society Limited to its member. The member was registered as proprietor and the land was subsequently transferred to another person in circumstances alleged to be fraudulent. The transferee thereafter subdivided the land. The decision therefore provides useful guidance in examining the present Plaintiff's evidence and, in particular, the unexplained transfer of his registered interest followed by the subdivision of the land. 50. In the circumstances, I find and hold that the transfer of the suit land to the Defendant on 25 th June 2003 was fraudulent, illegal and unprocedural. The Defendant's title was acquired through fraud and illegality and cannot be protected under Article 40(6) of the Constitution of Kenya, 2010, which ELCLC. NO.E010/2025-JUDGMENT 33

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provides that the rights conferred under Article 40 do not extend to any property that has been found to have been unlawfully acquired. Whether the subdivision of the suit land into parcel numbers Mavoko Town Block 12/5541 to 5584 was lawful 51. The Plaintiff avers that, following the transfer of the suit land to the Defendant, the Defendant caused it to be surveyed and subdivided on 23rd November 2012 into approximately 43 plots. The green card confirms that the subdivision resulted in parcel numbers Mavoko Town Block 12/5541 to 5584 and that the subdivision was undertaken while the Defendant was the registered proprietor. There is no evidence before the Court that any of those resultant parcels was thereafter registered in the name of any other person. 52. Having found that the Defendant's registration as proprietor of Mavoko Town Block 12/295 was procured ELCLC. NO.E010/2025-JUDGMENT 34

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fraudulently, the subdivision undertaken on the strength of that registration cannot stand independently of the title from which it arose. The Defendant's authority to deal with the suit land flowed from his registration as proprietor. Once that registration is found to have been fraudulent and unlawful, the subsequent subdivision of the land into parcels Mavoko Town Block 12/5541 to 5584 was founded on a title that the Defendant had no lawful right to hold or deal with. 53. The principle that a person cannot pass a better title than he lawfully holds applies with equal force to the subsequent subdivisions. The Defendant's title to Mavoko Town Block 12/295 having been fraudulently acquired, the subdivisions derived from that title cannot acquire an independent validity merely by reason of their registration as separate parcels. The validity of the subdivisions must therefore be traced to the title from which they originated. Since that title has been found to have been fraudulently acquired, the resultant parcels cannot be sustained on the strength of that title. ELCLC. NO.E010/2025-JUDGMENT 35

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54. The Court has repeatedly emphasized that the validity of a title must be traced to its root. In Dina Management Limited v County Government of Mombasa & 5 Others [supra], the Supreme Court, stated: “Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible. The first allocation having been irregularly obtained, H.E. Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co. (1993) Ltd, who in turn could pass to the appellant. Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered ELCLC. NO.E010/2025-JUDGMENT 36

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owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution. The root of the title having been challenged, as we already noted above, the appellant could not benefit from the doctrine of bona fide purchaser.” 55. The issue of the effect of a defective root of title on resultant subdivisions was considered by the Court of Appeal in Kimani & 4 others v Sigona Jua Kali Association & 4 others [2024] KECA 1938 (KLR). The Court was dealing with titles resulting from the subdivision of the suit property and, having found that the root of the title was defective, held: “The root of the title to the suit property was challenged, it in fact could not be traced at all and was shrouded in mystery, as we have shown. The resultant titles that emanated from the suit property had no root, they had no standing, they ELCLC. NO.E010/2025-JUDGMENT 37

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stood on quicksand, and they must go with the winds.” 56. This Court is bound by the foregoing decision. The principle stated by the Court of Appeal applies directly to the present case. The 43 parcels, Mavoko Town Block 12/5541 to 5584, were created from Mavoko Town Block 12/295 after the Defendant acquired registration through the fraudulent transfer of 25th June 2003. The subdivisions derive their existence from that title and have no independent root capable of sustaining them once the title from which they emanated has been found to have been fraudulently acquired. 57. I therefore find that the subdivision of Mavoko Town Block 12/295 into parcels Mavoko Town Block 12/5541 to 5584 was unlawful. The resultant parcels were created from a title that had been fraudulently acquired by the Defendant and cannot be sustained as valid interests independent of that defective title. ELCLC. NO.E010/2025-JUDGMENT 38

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Whether the Plaintiff is entitled to the reliefs sought 58. Having determined the three substantive issues in favour of the Plaintiff, I now turn to the reliefs sought in the Plaint. The Plaintiff seeks orders for cancellation of the transfer of Mavoko Town Block 12/295 to the Defendant, cancellation of the resultant subdivisions and subsequent titles, rectification of the register, issuance of a title deed in his name, a permanent injunction, eviction, supervision of enforcement by the Officer Commanding Station, Kamulu Police Station, general damages for trespass and costs. 59. The reliefs must, however, be considered in light of the findings made in this judgment and the evidence placed before the Court. The Court has found that the Plaintiff was the registered proprietor of Mavoko Town Block 12/295 from 4th February 1997 and that the transfer of the land to the Defendant on 25th June 2003 was fraudulent. The Court has further found that the subsequent subdivision into parcels Mavoko Town Block 12/5541 to 5584 was unlawful. The ELCLC. NO.E010/2025-JUDGMENT 39

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question that remains is the appropriate relief to give effect to those findings. 60. Prayer (a) seeks an order declaring that the transfer of Mavoko Town Block 12/295 to the Defendant on 25 th June 2003 was fraudulent and illegal and cancelling the same. Having found that the transfer was fraudulently effected without the Plaintiff's knowledge, consent or authority, this relief follows from the findings already made. I therefore allow prayer (a). 61. Prayer (b) seeks cancellation of the subdivision of Mavoko Town Block 12/295 and the resultant parcels, including Mavoko Town Block 12/5541 to 5584, together with any subsequent subdivisions and titles generated from them. I have already found that the subdivision was undertaken on the strength of the Defendant's fraudulently acquired title. The resultant parcels therefore cannot be sustained as valid interests independent of Mavoko Town Block 12/295. I accordingly allow prayer (b) to the extent that it relates to ELCLC. NO.E010/2025-JUDGMENT 40

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the subdivision and entries arising from the Defendant's title to the suit land. 62. Prayer (c) seeks a permanent injunction restraining the Defendant, his servants, relatives, agents and any person acting under his authority from dealing with Mavoko Town Block 12/295 and the resultant subdivisions. Having found that the Defendant acquired the suit land through a fraudulent transfer and that the subsequent subdivision was unlawful, the Defendant has no lawful interest upon which to base any dealings with the land. I therefore find the permanent injunction merited and allow prayer (c). 63. Prayer (d) seeks rectification of the register by removing the Defendant's name and the subsequent entries arising from the transfer and subdivision of Mavoko Town Block 12/295 and restoring the Plaintiff's ownership of the suit land. I have found that the Plaintiff was the first registered proprietor and that the transfer to the Defendant on 25 th June 2003 was fraudulent. The subsequent subdivision was ELCLC. NO.E010/2025-JUDGMENT 41

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founded on that fraudulent registration. The appropriate consequence is therefore to restore the register to the position obtaining before the impugned transfer. I accordingly allow prayer (d) and direct the Land Registrar, Machakos County, to cancel the Defendant's registration and the subdivision entries arising from the impugned transfer and restore Mavoko Town Block 12/295 in the Plaintiff's name. 64. Prayer (e) seeks an order directing the Land Registrar, Machakos County, to issue the Plaintiff with a provisional or original title deed for Mavoko Town Block 12/295. The evidence before the Court is that although the title deed was issued on 4th February 1997, it was received by the Society and was never surrendered to the Plaintiff. Having directed the restoration of the register in the Plaintiff's name, it is appropriate that the Plaintiff be issued with the corresponding title document. I therefore allow prayer (e) and direct the Land Registrar, Machakos County, to issue the Plaintiff with the appropriate title deed for Mavoko Town ELCLC. NO.E010/2025-JUDGMENT 42

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Block 12/295 in accordance with the register as restored pursuant to this judgment. 65. Prayer (f) seeks eviction of the Defendant, his relatives, servants, agents and any person occupying Mavoko Town Block 12/295 and its resultant subdivisions. The Plaintiff testified that, when he visited the land in September 2024, he found it occupied by persons unknown to him. No evidence was led as to their identity, the nature of their occupation, or whether they occupied through or under the Defendant. I therefore decline to issue an eviction order against persons who have not been identified or shown to be before the Court. Prayer (f) is accordingly declined as framed. The Plaintiff remains at liberty to pursue recovery of possession and the eviction of any unlawful occupant in accordance with the law. 66. Prayer (g) seeks an order directing the Officer Commanding Station, Kamulu Police Station, to supervise the enforcement of the orders of injunction and eviction. The ELCLC. NO.E010/2025-JUDGMENT 43

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enforcement of a civil decree remains the responsibility of the parties and the mechanisms provided by law for execution of decrees. The role of the police is to maintain law and order and to provide security where necessary. I therefore decline to direct the OCS, Kamulu Police Station, to supervise the execution of the decree. 67. Prayer (h) seeks general damages for trespass to the suit land. Trespass to land is actionable upon proof of an unjustified entry upon land in the possession of another. I have found that the Plaintiff was the lawful proprietor of Mavoko Town Block 12/295 and that the Defendant's registration was fraudulently procured. The Plaintiff further testified that, when he visited the land in September 2024, he found it subdivided and occupied by persons unknown to him. However, the evidence before the Court does not establish the period for which the Defendant personally occupied the land, the extent of any occupation attributable to him, or the pecuniary loss occasioned by the alleged ELCLC. NO.E010/2025-JUDGMENT 44

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trespass. In the circumstances, I decline to award general damages for trespass. 68. Prayer (i) seeks the costs of the suit. Section 27 of the Civil Procedure Act provides that costs shall follow the event unless the Court, for good reason, otherwise orders. The Plaintiff is the successful party. I therefore award the Plaintiff the costs of the suit. 69. In the result, I enter judgment for the Plaintiff against the Defendant and make the following orders: a) A declaration is hereby issued that the transfer of Mavoko Town Block 12/295 to the Defendant on 25th June 2003 was fraudulent and illegal and the said transfer is hereby cancelled. b) The subdivision of Mavoko Town Block 12/295 into parcels Mavoko Town Block 12/5541 to 5584 is hereby declared unlawful and the resultant subdivision entries are hereby cancelled. ELCLC. NO.E010/2025-JUDGMENT 45

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c) A permanent injunction is hereby issued restraining the Defendant, his servants, agents and any person acting under his authority from dealing with Mavoko Town Block 12/295 and the resultant subdivisions. d) The Land Registrar, Machakos County, is hereby directed to rectify the register by cancelling the Defendant's registration and the subdivision entries arising from the impugned transfer and restoring Mavoko Town Block 12/295 in the name of the Plaintiff. e) The Land Registrar, Machakos County, is hereby directed to issue the Plaintiff with the appropriate title deed for Mavoko Town Block 12/295 in accordance with the register as restored. ELCLC. NO.E010/2025-JUDGMENT 46

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f) Prayer (f) for eviction is declined as framed. The Plaintiff shall be at liberty to pursue recovery of possession and the unlawfully occupying eviction the of suit any person property in accordance with the law. g) Prayer (g), seeking an order directing the OCS, Kamulu Police Station, to supervise enforcement of the orders herein, is declined. h) Prayer (h), seeking general damages for trespass, is declined. i) The Plaintiff shall have the costs of the suit. It is so ordered. Delivered and Dated at Machakos this 24th day of September, 2026. HON. J. N. KUYIONI JUDGE ELCLC. NO.E010/2025-JUDGMENT 47

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24.09.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Catherine Court Assistant. Mr. Musungu for the Plaintiff. No appearance for the Defendant. ELCLC. NO.E010/2025-JUDGMENT 48

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