Sohanial Aggarwal v Ruth Kagwiria Aritho

Chief Magistrates court Nanyuki vide the court order of 24.4.2018 and it was registered as Nanyuki CM ELC No. 61 of 2018. The 1st respondent pleaded that she was the registered owner of parcel NANYUKI /MARULA/BLOCK 8/224 ( NTURUKUMA), which parcel was transferred to her in year 2006 by her mother who in turn was a member of Marira Farmers Co-operative Society Limited. She later conducted a search and found that the parcel had been registered in favour of the 1 st defendant, and he also took possession of the same on 17.4.2012. Thus the plaintiff lodged a caution. 2. The plaintiff therefore prayed for judgment against the defendants in the following terms; “ a. A declaration that the plaintiff is the legal and absolute owner of land parcel number Nanyuki/Marura Block 8/224 (Nturukuma) b. A declaration that the title number Nanyuki/Marura Block 8/224 (Nturukuma) in the name of Sohanlal Aggarwal is void ab initio, irregular and illegal and the same be cancelled forthwith. ELCLA NO. E015 OF 2025 [JUDGMENT] Page 2 of 27

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c. An order that the District Lands Registrar, Laikipia do restore the plaintiff as the lawful and absolute owner of the subject property. d. Immediate vacant possession of the property. e. Mesne profits for the period the plaintiff has been unable to utilize her property. f. Costs of this suit. g. Any other relief that this honourable court deems fit to grant.” 3. The 1st defendant/appellant opposed the suit vide his statement of defence dated 10.6.2014 where he avers that he is the registered owner of the suit parcel, having purchased the same from the registered owner and denies that he took possession of the said land in a fraudulent manner. 4. At the trial, the plaintiff, RUTH KAGWIRIA RITHO testified as PW1. She adopted her witness statement as her evidence. She reiterated that her mother owned the suit parcel by virtue of being a member of the Mariara Farmers ELCLA NO. E015 OF 2025 [JUDGMENT] Page 3 of 27

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Co- operative Society situated in Nanyuki but she was residing at Embu. Therefore the mother agreed to transfer the suit parcel to Pw1 on condition that pw1 and her husband were to get for her a piece of land near her place of residence. That the agreement was done in year 2006 and Pw1 was given a title. However, when Pw1 went to fence the same, she found that the land had been transferred to the 1st defendant who also had a title. 5. In support of her case, Pw1 produced the documents in her list including her original title, which she avers that it was not called for cancellation by the Land Registrar, certificate of official search and the demand notice. 6. On cross examination by counsel for the 1 st defendant, Pw1 stated that she was shown the land on the ground when she was in the company of her brother and husband. That the land which is 2 acres was transferred to her in year 2006, and her husband went to fence the same in year 2012. She denies that she ever sold the land, adding that she learnt about the transfer of her land in year 2012. 7. PW2 was MARTHA WARITHA STEPHANO. She adopted her witness statement as her evidence where she introduced ELCLA NO. E015 OF 2025 [JUDGMENT] Page 4 of 27

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herself as the mother of Pw1. She stated that she is a member of Mariara Farmers cooperative society which had bought a big chunk of land in Nanyuki and then subdivided it to its members. However, she had an agreement with pw1 and the latter’s husband to transfer the said land to pw1 in exchange of some land near her place of residence. 8. On cross examination by Counsel for 1 st defendant, Pw2 stated that she gave all the documents relating to the suit parcel to her daughter, but by then she did not have a title. She denies that Pw1 sold the said land. 9. PW3 was DOREEN MAKENA who also adopted her witness statement as her evidence. She avers that she works with Mariara Farmers Co-operative society as the manager. She contends that Pw1’s mother was their member, having bought a share in the society, but she transferred her parcel to her daughter, the plaintiff. However, in year 2012, Pw1 and her husband approached her for assistance as they had learnt that the land had been transferred to the 1st defendant. ELCLA NO. E015 OF 2025 [JUDGMENT] Page 5 of 27

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10. On cross examination, Pw3 stated that she assisted in the transfer of the suit land from pw2 to pw1 and she had written a letter to the land registrar to that effect. Pw3 however had no documents to show that she was employed by the society. She knows Pw2 as Martha Stephano, also known as Martha Wanja who had a shareholding certificate in the society. That Martha was given her land by the society in year 2003, but she had not obtained a title by the time she transferred the land to pw1. That in year 2012, Pw1 came to their office with a complaint that the land had been transferred and she confirmed from the members register that the land belonged to Pw1. 11. PW4 is SIMON ARITHO, who adopted his witness statement as his evidence. He is the husband of Pw1 and a son in law of Pw2. His evidence mirrors that of his wife and mother in law. In cross examination, Pw4 denied that Pw1 is the one who sold the suit land. He averred that Pw1 was registered as the owner of the suit land in November 2006, while the 1st defendant was so registered in year 2012, then they placed a caution in year 2013. He averred ELCLA NO. E015 OF 2025 [JUDGMENT] Page 6 of 27

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that between years 2006 and 2012, they had been visiting the suit land. 12. In re examination, he averred that it was not possible to transfer the suit land and retain the original title which he had in court. 13. PW5 is HENRY KITHINJI who identified Pw1 as his younger sister. He adopted his witness statement as his evidence which mirrors that of PW1, 2 and 4. He is not aware that Pw1 sold the suit land. In cross examination, Pw5 stated that the land which Pw1 bought for their mother was no. 1787 which was 2 acres. He contends that when the suit land was transferred to Pw1 by their mother, it ceased being family land. He avers that initially, the suit parcel was in the name of their father in the society and when he died, it was taken up by their mother. He stated that the title had not yet been issued as at the time their mother transferred the said land to Pw1. He denies that the plaintiff sold the suit land. 14. DW1 was SOHAN AGGRAWAL, the 1st defendant. He avers that in April 2012, he was interested in buying land. That one Benson Gichagi, a customer of his father told him that ELCLA NO. E015 OF 2025 [JUDGMENT] Page 7 of 27

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there was land available and he was shown the same. That Benson handled all the transactions and even signed the agreement on his behalf. He thinks he met Pw1 at the offices of the lawyer. He signed the transfer form and paid the sh. 351 000. Dw1 contended that he followed the proper procedure in buying the suit land. 15. In support of his case, Dw1 produced the documents in his list as exhibits including the agreement, acknowledgment, KRA payment and the confirmation, the search and the title. 16. On cross examination, Dw1 stated that Benson was his friend and he acted on his behalf without a Power of Attorney. He avers that his lawyer told him that Ruth was present and she signed the agreement, but he may not be able to recognize her. He avers that in the stamp duty form, he could not see the PIN for Pw1. He does not know if a search was done before the transaction or if his lawyer was given a copy of the title. He gave Benson the money to pay on his behalf. He never visited the lands office to follow up on the transaction and he doesn’t know if his lawyer did due diligence. ELCLA NO. E015 OF 2025 [JUDGMENT] Page 8 of 27

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17. In re-examination, he stated that he is the one who paid stamp duty, that is why his PIN appeared there. 18. DW2 was JOSEPH WANJOHI GITHIRI, he adopted his witness statement dated 10.6.2014 as his evidence. He avers that in year 2011, his neighbour Ruth Kagwiria told him that she wanted to dispose off her land, while in year 2012, another neighbour who had purchased 2 acres in the area wanted more land. So he gave the agent, Benson Githungu Gachathi the contact number of Pw1. That on 13.4.2012, Ruth came to Nanyuki bus stop, they then went to do a search, then proceeded to the lawyer’s office to execute the sale agreement. 19. In cross examination, Dw2 stated that they went to the lawyers office with Pw1 and Benson, but the 1 st defendant was not there. However, Dw2 was not present when payments were made. He avers that Benson had called Ruth who confirmed that she was indeed selling the suit land. 20. DW3 is BENSON GITUMBO GACHATHI. He adopted his witness statement of 10.6.2014 as his evidence. He contends that he knew the 1 st defendant as he used to ELCLA NO. E015 OF 2025 [JUDGMENT] Page 9 of 27

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purchase goods from their shop. That at one time, Dw1 expressed an interests in buying land. He made inquiries, of which Dw2, who was one of his customers gave him the contacts of Pw1. That Dw3 called Pw1 who came with her title on 13.4.2012. They did a search, then went to the advocate’s office and executed the agreement. That on 18.4.2012, Dw1 gave him the balance of sh.351 000 and he went to the advocates office where the monies were paid to Pw1. 21. In cross examination, Dw3 stated that it is Dw2 who told him about the available land. That he knew Pw1 was the seller as her name was in her title and she had her ID Card. He avers that he did the transaction on behalf of Dw1 who was not present when the agreement was made, thus Dw1 did not meet Pw1.He avers that he signed the agreement on behalf of Sohan, (Dw1), though he was not given any authority to act on his behalf. He avers that he is the one who paid the money to Pw1, but she did not sign anywhere for the receipt of the same. He avers that the original title was with Pw1 and she gave the same to the lawyer in his presence. He avers that he is the one ELCLA NO. E015 OF 2025 [JUDGMENT] Page 10 of 27

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who pursued the title for Dw1 which was processed in three days. 22. DW4 is advocate AMOS CHWEYA. He avers that he prepared the sale agreement between the plaintiff and the 1st defendant in the presence of 5 people but he cannot recall all their names. They had a copy of the search of which the 1st defendant was not present and the agreement was signed on his behalf by Dw3. He avers that he is the one who submitted the documents at the lands office for registration and they were not declared as invalid. 23. On cross examination, Dw4 stated that the sale agreement was signed by both the plaintiff and Dw3 ( Benson), but transfer forms were signed by both the 1 st defendant and plaintiff. He avers that the original title was submitted by the plaintiff and the title was processed in 3 days. He avers that he acted for both the seller and the buyer of the land. 24. After the closure of the case of the 1 st defendant, counsel for the 2nd and 3rd defendants made an application for summons to issue to the Land Registrar Laikipia to ELCLA NO. E015 OF 2025 [JUDGMENT] Page 11 of 27

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produce the parcel file for the suit land of which the application was allowed. Thus one PAMELA MUTHONI MUTEGI appeared before the trial court 14.11.2023 and gave her testimony even though these defendants did not file any pleadings. She had the a certified copy of the green card for the suit parcel indicating that the first registration was on 1.10.2014 in favour of Nkurutha Farmers Cooperative Society, then on 30.11.2006, it was registered in the name of Pw1, then on 17.4.2012, it was registered to Dw1. She produced the green card as an exhibit and stated that Pw1 had the original title. 25. On cross-examination by counsel for the plaintiff, the witness stated that she could not confirm if there were any irregularities. On cross examination by counsel for the 1st defendant, the witness stated that 1 st defendant was the 2nd registered owner with remarks of suspected fraud. That in the case at hand, there was only one green card. She further stated that the original title should be surrendered, but a photocopy can suffice. 26. In re-examination, the witness stated that in rare cases, an original title may not be presented. That there may be ELCLA NO. E015 OF 2025 [JUDGMENT] Page 12 of 27

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a gazette notice nullifying the original title or a court order. 27. In the judgment delivered on 21.8.2025, the trial court found that the plaintiff had proved her case and gave the following orders; “ a. A declaration be and is hereby made that the plaintiff is the legal and absolute owner of land parce No Nanyuki/Marura Block 8/224 (Nturukuma) b. A declaration be and is hereby issued that the title number Nanyuki/Marura Block 8/224 (Nturukuma) in the name of Sohanlal Aggrwal is void ab initio, irregular and illegal and the same be cancelled forthwith. c. An order that the District Land Registrar, Laikipia do restore the plaintiff as the lawful and absolute owner of the subject property. ELCLA NO. E015 OF 2025 [JUDGMENT] Page 13 of 27

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d. The 1st defendant shall offer up vacant possession of the suit property to the plaintiff. e. Costs and interest are hereby awarded to the plaintiff.” The Appeal 28. Aggrieved by the aforesaid decision, the appellant filed his memorandum of appeal dated 19.9.2025 raising the following grounds; “ i. That the learned trial Magistrate erred in law and fact in failing to find that the plaintiff/respondent did not prove her case contrary to section 107 of the Evidence Act. ii. That the learned trial Magistrate erred in law and fact by impeaching the appellant’s title when neither fraud nor irregularity, illegality and specifically want pleaded, of procedure were particularised and proved thus arriving at unsound decision. ELCLA NO. E015 OF 2025 [JUDGMENT] Page 14 of 27

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iii. That the learned trial Magistrate erred in law and fact in failing to appreciate and take into account the appellant and the witnesses evidence, submissions authorities submitted thus arriving and at unsound decision. iv. That the learned trial Magistrate erred in law and fact misunderstood and misapplied the law and evidence on the sanctity of title. v. That the respondent’s evidence did not support her pleadings and the magistrate’s decision went against the weight of evidence on record.” 29. The appellant therefore prays for judgment in the following terms; “ i. That this appeal be allowed. ii. That the judgment delivered on the 21 st August 2025 be set aside and substituted with an order dismissing the respondent’s (plaintiffs) suit with costs. ELCLA NO. E015 OF 2025 [JUDGMENT] Page 15 of 27

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iii. That the appellant be awarded costs of the appeal. iv. Any other relief that the court may deem fit to grant.” 30. The appeal was heard by way of written submissions. The submissions of the appellant are dated 12.5.2026. He argues that the respondent did not discharge the burden of proof as set out under section 107-109 of the evidence Act as she tendered no evidence to support her allegations of fraud in the acquisition of title in favour of the appellant. Adding that fraud was not even pleaded. He further avers that no criminal charges were preferred against him and that he remains the lawful registered owner of the suit property as his title was not impeached. 31. In support of his arguments , the appellant cited the cases of Selle & Another Vs Associated Motor Boat Co. Ltd & Others (1968) EA 123, Palace Investment Ltd Vs Geoffrey (2015)eKLR, Kariuki Ratilal Mwenda Gordhanbhai & Patel Another Vs Lalji Makanji (1957) EA 314, Stephen Mburu & 4 Others ELCLA NO. E015 OF 2025 [JUDGMENT] Page 16 of 27

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VS Comat Merchant Ltd & Another [2012] KEHC 1617 (KLR) amongst others. 32. The submissions of the respondent are dated 3.7.2026 where she avers that her title was not challenged by the appellant, adding that the main question was whether she sold her land to the appellant, of which the answer was clear that no sale happened as she still holds her original title. 33. In support of her arguments, the respondent relied on the following cases; Selle Vs Associated Motor Boat Co. Ltd (1968) EA 123, Munyu Maina Vs Hiram Gathiha Maina (2013)eKLR and Teresia Wangari Mbugua Vs Jane Njeri Nduati & Ano (2020)eKLR in submissions of respondent . 34. This being a first appeal, the court reminds itself of its primary role as a first appellate court namely, to reevaluate, re-assess and re-analyse the evidence and then determine whether the conclusions reached by the learned magistrate are to stand and give reasons either way as was pronounced in the cases of Abok James Odera t/a A.J Odera & Associates Vs John Patrick ELCLA NO. E015 OF 2025 [JUDGMENT] Page 17 of 27

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Machira t/a Machira & Co. Advocates (2013) eKLR and Selle and Another Versus Associated Motor Boat Company Ltd & Others [1968] Ea 123. 35. This is a situation whereby both the appellant and the respondent have titles to one parcel of land, of which the title of the respondent was issued on 30.11.2006 while that of the appellant is dated 17.4.2012. 36. The provisions of Section 26 of the Land Registration Act provides that; “ (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts evidence that the as person prima facie named as proprietor of the land is the absolute and indefeasible owner, encumbrances, subject easements, to the restrictions and conditions contained or endorsed in ELCLA NO. E015 OF 2025 [JUDGMENT] Page 18 of 27

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the certificate, and the title of that proprietor shall not be subject to ground of fraud or challenge, except— (a) on the 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.” 37. In Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others[2016] eKLR, the court had this to say in regard to a scenario where there were two titles; “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 ELCLA NO. E015 OF 2025 [JUDGMENT] Page 19 of 27

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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 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”. 38. The appellant contends that he bought the parcel from the respondent, thus he recognizes the respondent as the previous owner of the suit parcel. However the respondent denied ever selling the suit parcel to the plaintiff. It follows that the case at hand is really not one of two competing titles. The title which was under challenge is the one held by the appellant. And the whole dispute turns on one point only; Whether the respondent sold the suit parcel to the appellant. 39. In the court of appeal case of Munyu Maina-Vs- Hiram Gathina Maina (2013) eKLR, the court had this to say in regard to a title which was under challenge; ELCLA NO. E015 OF 2025 [JUDGMENT] Page 20 of 27

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“When a registered proprietor’s proof of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership; the registered proprietor must go beyond the instrument and prove the legality on how he acquired the title and show that the acquisition was lawful, formal and free from any encumbrances” 41. To start with, the nature and extent of the due diligence conducted by the appellant is shaky. In his witness statement, at page 30 of his record of appeal, the appellant says that; “in the meantime we conducted a search with the owner of the land who came on 13 th April 2012. She had original title deed, National identity card and Pin certificate.” 42. The appellant uses the personal pronoun “ we” which is the first-person plural pronoun referring to oneself and at least another person. It turned out during the trial that neither the appellant, nor his advocate conducted any due diligence. What Dw4 relied on was a general presentation as he stated ELCLA NO. E015 OF 2025 that “ the parties brought a copy of the [JUDGMENT] Page 21 of 27

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search” . Dw2 stated that he met the respondent at the bus stage on 13.4.2012 and from there , they went to do a search. He does not mention being with any one else. As for Dw3, He simply gave a general statement that “ we went and conducted a search”. 43. As for the alleged agreement between the appellant and the respondent, it has turned out to be a case of “ Murphys law” where “ anything that can go wrong will go wrong anyway”. 44. Again the appellant states that “ We proceeded to the lawyers office so that we could prepare the agreement”. The lawyer, Dw4 stated that “ Sohan came and then left”. As it were, the appellant and his witnesses aver that the appellant did not sign the agreement. How and why on earth would the buyer of the property arrive at the advocates office to have the land sale agreement prepared, then simply walk away for his proxy to do the task of signing. No plausible explanation was proffered for this conduct. 45. The agreement itself at page 36 of the record of appeal does not indicate that Dw3 was signing the agreement on ELCLA NO. E015 OF 2025 [JUDGMENT] Page 22 of 27

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behalf of the appellant which means that the singing of the agreement by Dw3 was fraudulent in itself. 46. Further, none of the witnesses for the appellant came out clean on the documents presented for the completion of the transaction. The agreement states that the vendor shall give the purchasers the necessary documents required regarding the property to enable the vendor transfer the property into the names of the purchasers upon completion hereof i.e. Original title deed, Duly signed transfer, copy of ID and PIN certificate. In his witness statement, Dw4 stated that the seller gave him the original title, her National ID Card, PIN and a copy of the search certificate as well as two passport size photos. If that be the case, why didn’t the appellant avail these completion documents at the trial for court’s scrutiny. It is worthy to note that what the appellant presented before the trial court was a Sale agreement dated, 13 th April 2012, Acknowledgement dated 18th April 2012, Stamp duty application form, Stamp duty payment receipt, copy of Title deed and copy of search. The said documents do not place the respondent at the transaction table. In ELCLA NO. E015 OF 2025 [JUDGMENT] Page 23 of 27

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particular, the passport photos would at least have been crucial in the identification of the alleged seller! 47. Another point for consideration relates to the transfer. Dw4, the advocate states that the appellant signed the transfer forms himself unlike the situation with the sale agreement. Since the appellant had left on the date of signing the agreement, when did he then sign the transfer forms! None of the witnesses gave information on that particular issue. What more, the instrument of transfer has not been availed by the appellant. 48. The other point relates to the consent from the Land Control board. Dw4, the advocate states that on 13.4.2012, the parties executed the application form to the L.C.B. which can only mean that the consent itself was duly obtained thereafter. Again the appellant and his witnesses including the advocate are silent as to when the consent was actually obtained, seeing that by 17. 4.2014, Dw4 was already presenting the consent and other documents at the lands office! 49. Yet another issue for consideration relates to the surrender of the original title of the respondent. Dw4 ELCLA NO. E015 OF 2025 [JUDGMENT] Page 24 of 27

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states that the said document was availed by the respondent and he presented the same at the lands office. The Land Registrar availed the parcel file but it had no original title, which ordinarily should be in the said parcel file with a cancellation upon issuance of another title. The feeble or no explanation given by the Land Registrar is that “ in rare cases, original title may not be presented”. As it were, the respondent still had her original title which she presented to the court. The custodian of such documents, the Land Registrar did not comment on the validity or invalidity of the said title. 50. Finally, this court finds that the speed at which the title for the appellant was issued is in itself a red flag. Dw4 stated that the title was processed in a record 3 days. 51. In the case of Chemey Investment Limited v Attorney General & 2 others [2018] eKLR, the court of Appeal had this to say; “As this Court stated in Arthi Highway Developers Limited v. West End Butchery Limited & 6Others (supra), only a foolhardy, and we may add, a careless or fraudulent ELCLA NO. E015 OF 2025 [JUDGMENT] Page 25 of 27

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investor would purchase land such as the suit property “with the alacrity of a potato dealer in Wakulima market.” 52. Similarly in the case at hand, the appellant was very casual in the manner he set out to purchase the suit land. It is pertinent to note that the trial court correctly analysed the issues tabled by the parties, flagging out all the anomalies including the failure by the appellant to sign the sale agreement, to the absence of the transfer instrument and therefore found the respondent was not involved in the aforementioned transactions. To this end, I find no reasons to disturb the judgment of the trial court. As such, this appeal is hereby dismissed with costs to the respondent. DATED, SIGNED AND DELIVERED AT NANYUKI THIS 30TH DAY OF SEPTEMBER, 2026 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE ELCLA NO. E015 OF 2025 [JUDGMENT] Page 26 of 27

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In the presence of: Mugama for Appellant Gichuki for Respondent Yaru/Consolata - Court Assistants ELCLA NO. E015 OF 2025 [JUDGMENT] Page 27 of 27

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