Kithusi v Kithome

2. The Plainti testied that he was member number 969 at Nguu Ranch Co-operative Society Ltd (The society). The society owned Nguu Ranch within Makueni County. The society decided to subdivide its land which was then given to members in a balloting exercise which was overseen by the District Commissioner Makueni. 3. During the balloting, he picked plot No. 1273. He proceeded to pay the requisite sums required and was shown the plot’s boundaries. He immediately took possession and started cultivating the 10 acre plot. In or around 23rd August, 2011, the 1st Defendant attempted to invade the land by accumulating building materials on it. He went and reported the incident to the local chief who summoned the 1st Defendant but he did not go. The 1st Defendant later left a copy of title No. Makueni/Nguu Ranch/1273 (suit property) claiming that the land was his. 4. The Plainti made a complaint to the Lands and Settlement Oce. Investigations were carried out and it was found that the 1st Defendant had obtained title to the suit property in unclear circumstances. The Land Registrar Makueni summoned the 1st Defendant to deliver up the title but he did not go. The Plainti was forced to le a suit for recovery of the suit property. 5. The 1st Defendant testied that he was allotted the suit property vide letter of allotment dated 29th September, 1996. He proceeded to pay the requisite fees after which he processed and obtained title. He claimed that he has been in possession of the suit property and that he has put up temporary structures on it. He stated that his title is a rst registration and cannot be defeated and that the Plainti has no cause of action against him. 6. The parties were directed to le written submissions. The Plainti led his submissions dated 5th April, 2026. The 1st Defendant led his submissions dated 20th May, 2026. The 2nd Defendant neither entered appearance nor led defence. The 2nd Defendant consequently did not le any submissions. 7. The Plainti reiterated his evidence and submitted that his case is based on fraud illegality and unlawful acquisition of title. The Plainti submitted that he had demonstrated that the 1st Defendant obtained title to the suit property despite him having no entitlement to the same, was not in occupation and had no benecial interest. 8. The Plainti submitted that as at the time the 1st Defendant claims to have been allotted the suit property, the same had already been allotted to him. The Plainti submitted that the 1st Defendant’s title is impeachable under Section 26(1) of the Land Registration Act. 9. The Plainti relied on the case of Arthi Highway Developments Ltd –vs- West End BUtchery Limited & 6 Others; Munyu Maina –vs- Hiram Gathiha Maina, Daudi Kiptugen –vs- Commission of Lands & 4 Others and Maithya -vs- Munyao & 2 Others. 10. The 1st Defendant submitted his title can only be impeached under Section 26(1) of the Land Registration Act. He submitted that the Plainti had not proved any fraudulent acts to which he was a party to. The 1st Defendant submitted that in both the original plaint and the amended plaint, the Plainti had pleaded that he was member No. 967 but that in the documents produced, it is shown that he is member number 969. On this, he submits that the plainti was either member No. 967 or not a member at all. 11. The 1st Defendant relied on the case of Peter Ojala Nyandare –vs- South Nyanza Co. Ltd (2018) eKLR where it was held as follows: “ It is settled law that parties are bound by their pleadings..... the court below was in error when it raised the issue contrary to the pleadings of parties”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6058/eng@2026-10-01 2

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“........it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averment in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issues and must be disregarded........”. “............in fact, that parties are not allowed to depart their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issued as joined and avoid any surprise by which no opportunity is given to the other party to meet the new situation”. 12. The 1st Defendant submitted that the Plainti was allotted the suit property on 8th August, 1994 but acceptance and payment was made after 7 years. He therefore submits that the acceptance of the oer letter was null and void as he had already been allotted the same land on 29th September, 1996 and he proceeded to make payment and processed title on 15th March, 2011. 13. The 1st Defendant submitted that the Plainti had not proved fraud against him. He relied on the case of Kisoso –vs- Wishlife Investment Limited & Another Civil Appeal No. 365 of 2023 in which the Court of Appeal cited the case of Vijay Morjaria –vs- Nanshigh Madhusing Darbar & Another (2000) eKLR where it was held as follows: “ It is well established that fraud must be specically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved and it is not allowable to leave fraud to be inferred from the facts”. 14. The 1st Defendant nally submitted that the Plainti did not pray for eviction from the suit property on which he resides and has a permanent house. 15. I have considered the evidence adduced by the Plainti as well as that of the 1st Defendant. I have also considered the submission of the parties. The issues which emerge for determination are rstly whether the suit property was allotted to the Plainti. Secondly, whether the subsequent allotment to the 1st Defendant was lawful. Third, did the 1st Defendant obtain his title in a lawful manner. Fourth, is the Plainti entitled to the reliefs sought. Fifthly, which order should be made on costs. Whether the suit property was allotted to the Plainti 16. The Plainti testied that allocation of land within Nguu Ranch was based on membership of the society. When the society decided to subdivide its land, plots were allocated to the members through balloting. The Plainti produced a letter of oer dated 8th August, 1994. This letter shows that the Plainti was allotted plot 1273. This followed the successful balloting exercise which was overseen by the District Commissioner, Makueni who duly stamped on the ballot. The suit property was therefore allotted to the Plainti. Whether the subsequent allotment to the 1st Defendant was lawful 17. The allocation of plots at the society was based on membership. The members balloted after which they given allotment letters. The 1st Defendant produced an allotment letter dated 29th September, 1996 from the Settlement oce Kibwezi. As at the time the 1st Defendant was allotted the suit property, it was not available for allocation. The allotment to the Plainti had not been cancelled. The 1st Defendant was not a member of the society to whom land could be given. The 1st Defendant never https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6058/eng@2026-10-01 3

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participated in any balloting exercise. The purported allotment was therefore not lawful in the face of another existing allotment. Did the 1st Defendant obtain tittle in a lawful manner 18. The evidence which was adduced by the Plainti shows that when the 1st Defendant attempted to accumulate building materials on the suit property, the Plainti made a complaint to the local chief. The chief wrote a letter regarding the complaint made to him. This letter was written on 7th October, 2011. On 29th November, 2011 the Plainti wrote a detailed complaint letter addressed to the Ministry of Lands and Settlement in Nairobi. The complaint letter was acted on and it was discovered that the 1st Defendant had obtained title in unclear circumstances. The 1st Defendant was severally summoned to Kibwezi settlement oce but he did not go. The settlement ocer, Kibwezi wrote a letter dated 28th November, 2012 asking the Land Registrar Makueni to recall the fraudulently obtained title. In the meantime a restriction had been registered against the title on 2nd December, 2011 forbidding any dealings until the ownership dispute was resolved. 19. The green card produced as exhibit 12 shows that the register in respect of the suit property was opened on 27th October, 1999 in the name of Settlement Fund Trustee. The 1st Defendant is purported to have been allotted the suit property by the same Settlement Fund Trustee on 29th September, 1999 a month before the suit property was registered in the name of Settlement Fund Trustee. All this was happening when the settlement Fund Trustee Ocers knew that the suit property was not available for allocation. The same having been allotted to the Plainti. 20. The 1st Defendant was aware that he was not a member of the society yet he went ahead to accept an allotment from the settlement oce. The 1st Defendant produced a receipt dated 29th April, 2008 showing that he paid Kshs.2,720/= which was 10% of the amount he was required to pay. There was no any other evidence of payment tendered. 21. The 1st Defendant’s title is under challenge. He was supposed to show through evidence that the process of acquisition was lawful and proper. It is not enough for him to dangle certicate of title. This was the holding in the Munyu Maina case (Supra). The 1st Defendant did not produce letter of application for allotment. It is therefore clear that the title held by the 1st Defendant was not lawfully obtained. It was obtained through a corrupt scheme to which the 1st Defendant was privy to. Whether the Plainti is entitled to the reliefs sought 22. It is clear from the analysis hereinabove that the Plainti has proved his case to the required standard. He is entitled to the reliefs which he is seeking. Deposition 23. Consequently, I allow the Plainti’s claim in terms of prayers (a) (b) (c) and (e) of the amended plaint dated 5th February, 2024. JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 1ST OCTOBER, 2026. ................................................. HON. E. O. OBAGA, FCIArb JUDGE In The Presence Of: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6058/eng@2026-10-01 4

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Mr. Nzioka for Plainti. Mr. Muia for Defendant. Court assistants – Kilonzo and Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6058/eng@2026-10-01 5

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