Sammy Muriithi Mwithi & 3 others v Bernard Mwangangi Mutio & another; David Mutuku (Interested Party)

BERNARD MWANGANGI MUTIO……………………………….1ST PLAINTIFF STELLA NDANU MWANGANGI……………………...…….......2ND PLAINTIFF VERSUS SAMMY MURIITHI MWITHI……………………………..……1ST DEFENDANT MILKA NYABOKE MWIRE…………………………………….2ND DEFENDANT ALBANUS WAMBUA KASIVU…………………………………3RD DEFENDANT VINCENT OMIKAYA…………………………………………..4TH DEFENDANT BETTY ANG’A…………………………………………….…….5TH DEFENDANT JUDGMENT 1. For clarity, except for the 3rd defendant in the counterclaim, all other parties will be referred to according to the amended plaint dated 27 March 2024. In this amended plaint, the plaintiffs alleged that they purchased specific parcels of land, listed as plot nos. F49A, F46A, F52A, F42A and F68A under respective certificates of ownership nos. 066, 069, 076, 076, and 415, which are collectively called "plaintiffs’ land." They ELC E089/21 JG 2

page 2 of 19

allegedly bought them from an entity named Juhudi C.B.O. Settlement Scheme S.G.H. (Juhudi), the registered owner of L.R. no. 28716 (I.R. no. 133301) (mother parcel), with the land comprising portions thereof, and the chairman being the interested party (IP). 2. The plaintiffs claimed that they had fully paid the purchase price and that ownership certificates were issued to them. Despite this, and regardless of occupancy and development, the defendants trespassed on their land intending to demolish their structures. They pleaded particulars of damages, losses, and expenses incurred. The plaintiffs argued that if the defendants held any title documents to the mother parcel, then they fraudulently acquired registration thereof. They also pleaded and particularised fraud against the defendants. As a result, they sought the following reliefs from this court: a) THAT the defendants’ conduct be declared illegal; b) THAT a permanent order of injunction do issue restraining the defendants, by themselves, their servants, agents, employees or their subjects from trespassing, erecting a wall or demolishing any structure therein, evicting, ELC E089/21 JG inhibiting, alienating, dealing, disposing and/or in any interfering with the trespassing, other plaintiffs’ manner quiet and 3

page 3 of 19

peaceful use, occupation and possession of all those plots of land known as plot Nos. F49A, F46A, F52A, F68A and F42A under certificate of ownership numbers 066, 069, 076, 415 and 075 respectively; c) An order is hereby issued directing the defendants to compensate the plaintiffs as pleaded under paragraph 9C of the amended plaint; d) An order directing the Officer Commanding Station, Mlolongo Police Station, to provide security to ensure enforcement and compliance with the orders of this Honourable Court; e) General damages for trespass; f) Costs and damages of this suit be provided for by the defendants; and g) The Honourable Court be pleased to issue any other and/or further orders that it may deem fit and expedient to grant. 3. The defendants entered an appearance and filed an amended statement of defence and counterclaim dated 9 July 2024. They denied the plaintiffs' claims, required them to prove their case, and maintained that they were strangers to the plaintiffs’ parcels. They alleged that they were the respective legitimate owners of L.R. No. 30068 and L.R. No. 30069 (the ELC E089/21 JG 4

page 4 of 19

defendants’ land), which they lawfully acquired through grants issued by the Government of Kenya for leasehold terms of ninety-nine (99) years, commencing in 1999. 4. The defendants stated that the allocations were made through letters of allotment dated 24 February 1999 and 9 March 1999, respectively, following which they complied with all the conditions of allotment, processed registration and were subsequently issued with certificates of title. They stated they were in occupation and that the plaintiffs had no colour of right or justification to enter their said land in 2018 violently. They informed the court that, with the assistance of the regional commander, the plaintiffs and other goons were repulsed, enabling them to regain possession of their land in February 2020, and thereafter they put up perimeter walls. Consequently, the defendants prayed for the following: a) THAT an order of injunction against the plaintiffs, either by themselves or their servants, employees, agents or any other person acting for them or on their behalf, from interfering with the defendants' quiet possession, selling, exchanging, disposing of or dealing in the portion of land known as L.R No. 30068 and Parcel No. L.R No. 30069 be hereby issued. ELC E089/21 JG 5

page 5 of 19

b) THAT a permanent injunction restraining the plaintiffs, either by themselves or their servants, employees, agents or any other person acting for them or on their behalf from interfering possession, with defendants’ transferring, quiet selling, exchanging, disposing of or dealing in or in any other manner whatsoever with the parcel of land known Refence No. L.R No. 30068 and Parcel No. L.R No. 30069 be hereby issued. c) THAT the defendants be granted their right to vacant possession. d) THAT an order for damages for trespass and compensation for loss be issued against the plaintiffs. e) Costs of this suit. 5. The counterclaim was not defended by the plaintiffs. 6. Having considered the pleadings and the evidence presented by the parties during the hearing on the merits and issues as outlined in the defendants’ filed submissions dated 25 May 2026, it is the considered view of this court that the distilled issues that arise for determination are; (a) whether the plaintiffs proved their claim of fraud to the required standards, and (b) who between the plaintiffs and ELC E089/21 JG 6

page 6 of 19

defendants are trespassers. Having outlined the issues to be decided, this court will now summarise the parties’ evidence on the identified issues. 7. The matter eventually proceeded to a hearing on 22 July 2024, during which Ronald Mogire Omikaya (PW1), the 2nd plaintiff (PW2), the 4th plaintiff (PW3), the 1st plaintiff (PW4), the 1st defendant (DW1) and the 2nd defendant (DW2) testified. 8. PW1 produced several documents, including photographs of a house under construction and various demolitions (Pex. 1 and 24); certificate of electronic evidence (Pex. 25); the plaintiffs’ and the 3rd defendants to the counterclaim’s certificates of ownership and/or membership issued in 2018-2019 (Pex. 59); allotment letters to third parties for unsurveyed residential plot nos. 249 and 250 in Athi River (Pex. 15-16); allotment letters in the names of the defendants (in which the 2nd defendant is referred to as Stella Mutambaa) for unsurveyed residential plots, respectively, plot nos. 250 and 249 in Athi River (Pex. 17-18); copies of leases, titles, and deed plans for the defendants’ land (Pex. 19-22); and a copy of the mother title in the 1st defendant’s name (Pex. 23). 9. The agreement for sale and the payment receipt which he produced (Pex. 12 and 13) pertained to strangers to these proceedings. The sale agreement demonstrated that only Kshs. 50,000/-, amounting to a paltry 6.25% of the purchase ELC E089/21 JG 7

page 7 of 19

price, was paid to the vendor, Joan Omayo K. (Joan), for plot nos. F52A and F42A by the purchaser, Dominic Ontarige Mikaye. He testified that he, the purchaser, and the 3rd plaintiff were siblings, that the purchaser bought the land on behalf of the 3rd plaintiff, and that the purchased land was unregistered. He stated that Juhudi was Joan’s office. 10. The 2nd plaintiff informed the court that she owned F46A, entered it in 2018, and had never known that the disputed parcels belonged to another party and that she had been given land freely by Juhudi without paying consideration, which was a contradiction of her statement that she bought her land from Juhudi. 11. The 4th plaintiff stated that she bought registered land from Julius Mutuku, which Juhudi was managing, which was a contradiction of her witness statement, which stated she bought land directly from Juhudi. She maintained that she had no evidence of a sale agreement or payment of consideration. 12. The 1st plaintiff relied on documents produced by PW1 and asserted that plot F49 was his, having been acquired by his father and transferred to him. This was similarly a contradiction of his statement that he bought his land from Juhudi. ELC E089/21 JG 8

page 8 of 19

13. The 1st defendant stated that he and the co-defendant are married. They were respectively allotted unsurveyed residential plots nos. 250 and 249 in Athi River on 24 February 1999 (Dex. 1-2); they made the requisite payments, as evidenced by a banker's cheque dated 24 February 2016 for Kshs. 25,336/- (Dex. 3); two receipts dated 25 February 2016 issued by the department of lands for Kshs. 25,337/- each for plot nos. 250 and 249 (Dex. 5); two letters of acceptance, both dated 24 February 2016 (Dex. 6-7); lease for L.R. No. 30069 (Dex. 10); application for registration of leases for the defendants’ land (Dex. 17-18) and copies of title documents for their land (Dex. 26-27). He informed the court that the defendants followed due process in acquiring their land. The 2nd defendant reiterated this evidence. 14. Despite court directions on filing of written submissions, only the defendants’ law firm on record of Ms. Sichangi & Associates Advocates LLP filed written submissions dated 25 May 2026. Therefore, in its analysis and determination, the judgment will carefully consider the arguments presented in the rival submissions. We will now proceed to address the issues previously raised together. 15. The defendants, in their submissions, addressed these issues. On the first limb, the pertinent legal framework for the protection and impeachment of title documents to land is found in our Constitution, Articles 40(1) and 40(6). These ELC E089/21 JG 9

page 9 of 19

provisions restrict legal protection to property that has been lawfully acquired and owned. According to these Sub- Articles, every person has the right, whether individually or in association with others, to acquire and own property within Kenya. 16. Statutorily, Sections 24 and 25 of the Land Registration Act acknowledge the registered owner as the absolute owner of the land and provides protection under Section 24. However, a title document may be impeached on various grounds outlined in Section 26 of the Act, including fraud as pleaded by the plaintiffs. 17. It is a well-established principle of law that fraudulent conduct must be specifically pleaded as required by Order 2 Rule 4 of the CPR. In the present case, the plaintiffs’ claim met the 1st threshold by particularising fraud against the defendants, inter alia: I. Obtaining an illegal title by pretending that the disputed plots belonged to them, while the plaintiffs were the first to own them; II. Purporting to own a title dated 2011 when no party had occupied the disputed land; III. Obtaining a title without following the process of law; IV. Evading the present ownership; V. Misrepresenting themselves to the lands office to be registered as the beneficial owners of the disputed plots; VI. Transferring the ownership of the disputed plots in their names without the knowledge and authority of the plaintiffs; VII. Acquiring illegal Land Control ELC E089/21 JG 10

page 10 of 19

Board (LCB) Consent application and transfer forms for the disputed plots; VIII. Willfully failing to disclose to the lands office that the plaintiffs were already in occupation of the disputed plots; IX. Deliberately planning and deceiving the lands office that they had a bona fide interest in the disputed plots capable of being registered; and X. Res ipsa loquitor. 18. With all due respect to the plaintiffs, not all these particulars fall within the definition of fraud, which is defined by Black’s Law Dictionary, 11th Edn, at p. 802, as a knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment. Therefore, this court finds that the particulars referenced as II, III, IV, and XI do not constitute fraud. 19. Respecting proving fraud, the Court of Appeal decision in Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR), a decision with which this court resonates, stated as follows: “53. It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. One of the authorities produced before us has this passage from Bullen & Leake& Jacobs, Precedent of pleadings 13thEdition at page 427: ELC E089/21 JG 11

page 11 of 19

“Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged (Wallingford v Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709, Garden Neptune V Occident [1989] 1 Lloyd’s Rep. 305, 308). The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see Lawrence V Lord Norreys (1880) 15 App. Cas. 210 at 221). It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (|Davy V Garrett (1878) 7 ch.D. 473 at 489). “General allegations, however strong may be the words in which they are stated, are insufficient to amount o an averment of fraud of which any court ought to take notice.” ELC E089/21 JG 12

page 12 of 19

20. Whereas the evidential burden rested upon the plaintiffs, as the persons alleging fraud, to prove each and every allegation to the requisite standard of proof, guided by the Court of Appeal decision in Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR), the defendants, being the registered proprietors of their land and whose titles were challenged by the plaintiffs, were required to discharge the burden of proof concerning the root of their title. They had to demonstrate the legality of how title was acquired and establish that the acquisition was lawful, formal, and free from any encumbrances, including all interests not required to be noted on the register. See also Sections 107 and 109 of the Evidence Act. 21. In this instance, the plaintiffs, in paragraphs 4 and 10 of their amended plaint, averred that their unregistered land originated from the mother parcel registered in the name of Juhudi, to which the defendants may also hold title. While making these grave allegations of fraud, the plaintiffs' pleadings were notably casual in their assertion against the defendants, and they appeared to be uncertain, if at all, as to whether the defendants possessed any title to the mother parcel, as evidenced in paragraph 10 of their amended plaint, wherein they stated: “…in any case the defendants have title to the land parcel registration number LR 28716 (IR 133301), the same was fraudulently obtained.” ELC E089/21 JG 13

page 13 of 19

22. To this court’s mind, the onus was on the plaintiffs to first establish that Juhudi had been registered as the proprietor of the mother parcel at some point and that it possessed the capacity to sell portions of the said land to them, thereby affording them legal occupation. However, the title document for the mother parcel produced by the plaintiffs showed that neither Juhudi nor the 2nd defendant ever held any registrable interest in the said parcel. 23. Instead, the 1st defendant acquired it as a first lessee from the government and was duly registered as the proprietor on 21 October 2011. Consequently, the 1st defendant was not obliged to seek any consents or to execute any transfers, contrary to the plaintiffs' allegations. Furthermore, he was not mandated to disclose occupancy. In fact, he obtained the mother title in 2011, approximately seven to eight years before the plaintiffs allegedly obtained ownership through membership and ownership certificates allegedly obtained from Juhudi. 24. Moreover, there is no record demonstrating that Juhudi is a registered entity, as the court was not presented with any certificate of registration. The plaintiffs were even unsure which parcels of land they occupied, as it emerged during the evidence that they had occupied the defendants’ land rather than the mother parcel, which may explain why the defendants based their claim on their parcels rather than on ELC E089/21 JG 14

page 14 of 19

the mother parcel. Suffice it to say, the plaintiffs never presented an iota of evidence to substantiate their allegations of fraud against the defendants concerning the mother parcel. This court finds that their evidence was not credible, cogent or substantiated. It also finds that the plaintiffs’ allegations of fraud fail. 25. Regarding the root of the title to their land, the defendants, by documentary evidence, presented an unbroken chain showing how they acquired the title documents. As submitted by their counsel, the defendants demonstrated approvals issued for constructing boundary walls on both parcels. From the record, it is apparent that these walls were erected before 14 December 2021, when this court issued status quo orders. The documents produced show a late acceptance, payment, registration, issuance of a lease (for one of the parcels), titles, and payment of statutory outgoings such as land rates, and this court finds that the defendants sufficiently demonstrated the root of title to their land. 26. On the 2nd limb, notwithstanding the contradictions presented by the plaintiffs concerning the identity of the vendor, purportedly from whom they claimed to have purchased or acquired their land. It is manifest that none of the plaintiffs entered into a sale agreement to purchase their alleged land from Juhudi or did they make any payments to it. Moreover, the purported sale of land by Joan to the 3rd ELC E089/21 JG 15

page 15 of 19

plaintiff’s nominee, purported as proof of ownership, is untenable, as she could not transfer what she did not own. In other words, the principle of nemo dat quod non habet is applicable. This principle is enshrined in Section 23(1) of the Sale of Goods Act, which provides as follows. “Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.” 27. This nemo dat principle means that one cannot give what they do not have. This principle safeguards the rights of the lawful owner of a property, and the underlying rationale is that the individual who holds legal title to a property retains that title until they elect to transfer it to another party. Consequently, any unauthorised transfer of title by a person other than the owner generally lacks legal validity, leaving the original owner as the title holder, while the recipient of such an invalid transfer retains no ownership interest. In the circumstances where the court is satisfied that the defendants have established the root of title to their land, this court finds ELC E089/21 JG 16

page 16 of 19

that the defendants are the registered owners of their land, are not trespassers and are entitled to protection. 28. The plaintiffs contended that they were placed in possession by Juhudi or other third parties; if at all that were so, this court finds none of whom possessed the legal authority to do so or even issue membership. them with It evident is certificates that of the ownership and/or defendants neither consented to nor authorised the possession, prompting them to lodge a complaint with the regional commander. It remains uncertain whether all the plaintiffs vacated the land upon the commander's intervention; however, photographic evidence clearly demonstrates that the plaintiffs carried out certain developments on the defendants' land without the defendants' permission. Accordingly, this court finds that the plaintiffs are trespassers. 29. It is well established that trespass is an actionable offence per se, without the need to prove actual damage. Considering the duration of the trespass, the size of the affected property, the location, and the nature of the trespass, the court hereby awards the defendants Kshs 2,000,000/- as general damages. 30. In the end, and for the reasons and findings set out above, this court finds that the plaintiffs failed to prove their case to the required standards, whereas the defendants succeeded on their ELC E089/21 JG counterclaim. Since costs follow the event, the 17

page 17 of 19

defendants shall have the costs of the suit and counterclaim. The following final dispositive orders are hereby issued: a) THAT an order of permanent injunction is hereby issued against the plaintiffs to the suit and the 3 rd defendant to the counterclaim, either by themselves or their servants, employees, agents or any other person acting for them or on their behalf, from interfering with defendants' quiet possession, selling, exchanging, disposing of or dealing in the portion of land known as L.R No. 30068 (I.R. 229044) and L.R No. 30069 (I.R. 229045). b) An order is hereby made that the plaintiffs to the suit and the 3rd defendant to the counterclaim, by themselves, their servants and/or agents or any other parties claiming under or through them on No. L.R No. 30068 (I.R. 229044) and L.R No. 30069 (I.R. 229045) do vacate them and, at their own cost, remove any developments therein within 90 days hereof and give the defendants vacant possession, and in default, the defendants shall forcefully evict them together with their servants, family or agents. c) The defendants are awarded general damages of Kshs. 2,000,000/=, which the plaintiffs shall bear. ELC E089/21 JG 18

page 18 of 19

d) The plaintiffs shall bear the defendants’ costs of the suit and of the counterclaim. Judgment accordingly. Delivered and Dated at Machakos this 6th day of October, 2026. HON. A. Y. KOROSS JUDGE 06.10.2026 Judgment delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms Kanja Court Assistant. Mr. Sichangi for the defendants. Mr. Momanyi for the plaintiffs. ELC E089/21 JG 19

page 19 of 19