Willy Makove v Lukui v Boniface Mutua Musili

dated 31st March, 2022 or any subsequent summons until the full hearing and determination of this suit. f. The Defendants be condemned to bear the costs of this suit. g. Any other relief which may be just and expedient in the circumstances of this suit. 2. The Defendant filed a defence and raised a counterclaim in which he sought the following reliefs: a. A declaration do issue that land parcel Makueni/Utangwa/3704 is the sole property of the Defendant. b. An order of permanent injunction do issue barring and/or stopping the Plaintiff, his agents, servants and/or licencees from encroaching/trespassing, cultivating, grazing and/or any other manner from interfering with land parcel Makueni/Utangwa/3704. c. An eviction order do issue evicting the Plaintiffs from land parcel Makueni/Utangwa/3704 to be supervised by the OCS Kikima Police Station. d. Any other relief that this honourable court deems fit to grant. Plaintiff’s Case 3. The Plaintiff testified that he is the registered owner LR No. Makueni/Utangwa/3663 measuring 2.79 hectares. He stated that he holds title in trust for the children of his late father Makove Lukui. He stated that the Defendants claims to hold title to LR No. Makueni/Utangwa/3704 which was allegedly excised from Makueni/Utangwa/3663. He stated that no one sold any portion of their father’s land to the Defendant and that the Defendant fraudulently obtained title to parcel No. Makueni/Utangwa/3704. 4. The Plaintiff stated that he received summons from the Land Registrar Makueni inviting him and 3 others for a boundary dispute over ELC NO. E007 OF 2022 2|Page

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Makueni/Utangwa/3663 and 3704. He stated that the title No. LR Makueni/Utangwa/3704 exists only on paper and that it does not exist on the ground. He stated that the Defendant trespassed on to parcel Makueni/Utangwa/3663 and cut down trees which he used as timber and carried them away. 5. The Plaintiff called PW2 Fransisca Itumbi Makove his sister who stated that her father’s land had never been subdivided. She stated that no surveyor has ever gone to their father’s land to subdivide his land. She stated that their father died in 1995. She stated that her father had six children. One of the children was Matata Makove who has since died and that he had no land to sell to the Defendant. She stated that the title which the Defendant has only exists on paper but is nonexistence on the ground. Defendant’s Case 6. The Defendant testified that he purchased land from Matata Makove vide sale agreement dated 2nd November, 2011. When the process of demarcation was carried out at Utangwa area, he was recorded as owner of parcel 3704. He was later given title for parcel No. Makueni/Utangwa/3704. He stated that according to the area map, parcel No. Makueni/Utangwa/3663 and Makueni/Utangwa/3704 exist as separate parcels. He stated that he cut trees from parcel No. Makueni/Utangwa/3704 and not from Makueni/Utangwa/3663 as alleged. He denied the Plaintiff’s allegations that he obtained his title fraudulently. 7. The Defendant called DW2 Musa Ikuma, an uncle to the Plaintiff. He testified that he was present when the Defendant purchased land from Matata Makove who is a brother to the Plaintiff. The sale took place in 2011. The witness stated that Matata Makove sold land to raise medical fees as he had chest problems. The witness took part in marking the boundary of the sold portion which was marked by plating sisal plants. ELC NO. E007 OF 2022 3|Page

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8. The Defendant also called DW3 Peter Mbithi Makove a brother to the Plaintiff. This witness testified that he is aware that his younger brother Matata Makove sold part of his land to the Defendant in 2011. He stated that the title held by the Defendant was obtained in a genuine way. 9. The Defendant also called DW4 Joseph Maithya Irobi as a witness. This witness was a village elder who witnessed the sale between the Defendant and Matata Makove in 2011. The late Matata Makove also informed the assistant chief that he was selling his land. The Defendant thereafter obtained title in his name. Parties Submissions 10.The parties were directed to file written submissions. The Plaintiff filed his submissions dated 5th March, 2026. The Defendant filed his submissions dated 27th January, 2026. Plaintiff’s Submissions 11.The Plaintiff identified four issues for determination. They are as follows: i. Whether the late Matata Makove (deceased) had a valid and transferable title to portion of land he purported to sell to the Defendant in 2011. ii. Whether the process leading to the registration of the Defendant as the proprietor of land parcel Makueni /Utangwa/3704 was legal and procedural. iii. Whether the Defendant’s title is protected by the doctrine of bona fide purchaser for value without notice and the indefeasibility provisions. iv. Whether the Plaintiff is entitled to the orders sought, including the cancellation of the Defendant’s title. ELC NO. E007 OF 2022 4|Page

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12. On the first issue, the Plaintiff submitted that the original land was held by Makove Lukui, the Plaintiff’s father who had died and that no succession in respect of his estate had taken place. He submitted that the Matata Makove’s sale of part of the deceased’s land was contrary to Section 45(1) of the Law of Succession Act. Reliance was placed on the case of Trouistik Union International & Another –vs- Jane Mbeyu & Another (1993) where it was held as follows: “Until such representation is granted, the property of the deceased remains in a state of suspension and cannot be dealt with by anyone. Any purported sale or other disposition of such property before representation is granted is a nullity in law”. 13.On the second issue, the Plaintiff submitted that the root of the title held by the Defendant is impeachable as it was obtained before succession in respect of the estate of Makove Lukui was undertaken. Reliance was placed on the case of Munyu Maina –vs- Hiram Gathiha Maina (2013) eKLR where it was held as follows: “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 that instrument of title that is in challenge and 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 encumbrances”. 14.On the 3rd issue, the Plaintiff submits that the Defendant is relying on the doctrine of bona fide purchaser for value. It was submitted that the Defendant is not a bona fide purchaser for value. He relied on the case of Dina Management Limited –vs- County Government of Mombasa & Others (2023) KESC 30 (KLR) where it was stated as follows: ELC NO. E007 OF 2022 5|Page

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“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 allotment....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”. 15.On the 4th issue, it was submitted that the fact that Matata Makove had a bona fide interest in his father’s property, this did not do away with the requirement of obtaining a grant in respect of the estate of Makove Lukui. It was submitted that title held by the Defendant is liable to cancellation and an injunction order should issue. Defendant’s Submissions 16.The Defendant submitted that there were three issues for determination. The three are as follows: 1. Whether the Defendant is the legal owner of Land Parcel Number Makueni/Utangwa/3704. 2. Whether the Plaintiff is entitled to the orders sought. 3. Whether the Defendant is the legal owner of land parcel Makueni/Utangwa/3704. 17.On the first issue, the Defendant submitted that there was no title in the name of Makove Lukui and therefore there was no need to obtain succession in respect of his estate. The Defendant purchased land from Matata Makove. The agreement was valid and met the requirements of Section 3(1) of the Contract Act. It was further submitted that there was no proof of any fraud on the part of the Defendant. Reliance was placed on the case of Wakaimba –vs- Registrar & 3 Others KEELC 1058 (KLR) where it was held as follows: ELC NO. E007 OF 2022 6|Page

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“83. Claims of fraud have been raised by the parties as against each other. A fundamental principle of fraud is that the same must be specifically pleaded and proved. This was aptly expressed in Vijay Morjaria –vs- Nansingh Madhusingh Darbar & Another (2000) EKLR, where Tunoi, JA (as he then was) stated as follows: “It is well established that fraud must be specifically 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”. 84. Indeed, fraud cannot be inferred from facts. In Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) vs Stephen Njoroge Macharia (2020) EKLR, the Court of Appeal observed as follows: “In the instant case, the Appellants needed to not only plead and particularize the fraud, but also lay a basis by way of credible evidence upon which the court would make a finding that indeed there was fraud...... 85. As regards the burden of proof in maters fraud, the same is higher than that required in civil cases that of proof on a balance of probabilities; and lower than that required in criminal cases being beyond reasonable doubt. The court in Moses Parantai & Peris Wanjiku Mukuru (Supra), observed as follows: “....Fraud is a quasicriminal charge which must, as already stated, not only be specifically pleaded but also proved on a standard through below beyond reasonable double doubt, but above balance of probabilities”. 18.On the 2nd issue, the Defendant submitted that prayer (a) and (e) cannot be granted as there were orders which should have been prayed for in an application and cannot be sought in the main suit. On prayer (d) of the plaint, ELC NO. E007 OF 2022 7|Page

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it was submitted that the Plaintiff had not given any particulars of the alleged cut trees. He did not provide a report from a forest officer or photographs of the cut trees. 19.On prayer (b) and (c), it was submitted that Makueni/Utangwa/3704 belongs to the Defendant. It was submitted that the Plaintiff is not the administrator as he claims. He did not even file the suit as administrator of the estate of Makove Lukui. It was therefore submitted that the prayers sought cannot be granted. 20.On the 3rd issue, the Defendant submitted that the Defendant obtained his title pursuant to the adjudication process which was concluded in 2015 and titles were issued. The Plaintiff did not raise any issue during the lifetime of Matata Makove. He only started laying claim to the land in 2022 after the death of Matata Makove. It was submitted that all the prayers in the counterclaim are grantable. Analysis and Determination 21.I have carefully considered the evidence adduced by the Plaintiff and that of the Defendant. I have also considered the submissions by the parties. The issues which emerge for determination are firstly, whether it was necessary for the process of succession to be carried out in respect of the estate of Makove Lukui before the Defendant could purchase parcel 3704. Secondly, whether parcel 3704 was a subdivision of parcel 3663. Thirdly, whether title to parcel 3704 was fraudulently created. Fourthly, are the Plaintiff and the Defendant entitled to their respective claims. Whether it was necessary for the process of succession to be carried out in respect of the estate of Makove Lukui before the Defendant could purchase parcel 3704. ELC NO. E007 OF 2022 8|Page

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22.There is no contention that the Defendant purchased what became parcel 3704 from Matata Makove. Matata Makove was one of the sons of Makove Lukui who died in 1995. Parcel 3663 and parcel 3704 were originally one block which belonged to Makove Lukui. The Defendant purchased what became parcel 3704 from Matata Makove on 2 nd November, 2011 before the adjudication process was done at Utangwa area. When the adjudication process was completed in the area in 2015, the Defendant whose interest had been recorded in parcel 3704 obtained his title for Makueni/Utangwa/3704. 23.The interest of Makove Lukui in what was recorded as parcel 3663 was registered in the Plaintiff’s name who confirmed that he was so registered on behalf of his other siblings. This is so because his father had died at the time of demarcation. His eldest brother Peter Mbithi Makove was in jail. This came out when he was being cross examined. The Plaintiff claimed that he was the administrator of the estate of his late father Makove Lukui. There is no evidence which was adduced to show that this was the position. His elder brother Peter Mbithi Makove stated in evidence that he was not aware of any succession carried out in respect of his father’s estate. The Plaintiff did not file this suit as administrator of the estate of his father. 24.In the process of adjudication under the Land Adjudication Act, what is being done is ascertainment of interests in land. There is no requirement that one has to have grant of letters of administration before his interest is ascertained. It was therefore not necessary for the Defendant to await for succession process before he could purchase land from Matata Makove. The purchase was done before the adjudication process. During the adjudication, his interest as a purchaser was recorded and he proceeded to have his title on the same day the Plaintiff obtained his on behalf of his siblings. Whether parcel 3704 was a subdivision of parcel 3663 ELC NO. E007 OF 2022 9|Page

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25.The Plaintiff’s plaint and evidence was that parcel 3704 was illegally excised from parcel 3663. There was no evidence adduced to show that this was the position. Title for LR No. Makueni/Utangwa/3663 and title for Makueni/Utangwa/3704 were issued on the same day that is 31 st August, 2015. There is therefore no way parcel 3704 would have been a subdivision of parcel 3663. The register for the two parcels were opened on the same day that is 24th August, 2015. Parcel 3663 was registered in the Plaintiff’s name and parcel 3704 was registered in the Defendant’s name. It is therefore clear that parcel 3704 was not a subdivision of parcel 3663. Whether parcel 3704 was fraudulently created 26.While dealing with issue number one hereinabove, I demonstrated that parcel No. 3704 was as a result of demarcation process. Once the process of demarcation was complete and there were no objection or appeals as provided under the Land Adjudication Act, titles have to be processed. This is what happened herein. The Registry Index Map (RIM) was produced by the Defendant. The RIM shows that the two parcels are separate and distinct. Parcel No. 3704 was not a subdivision of 3663. 27.There was no evidence of fraud pleaded and particularized as required. There was no evidence of fraud tendered by the Plaintiff. I therefore find that the Defendant’s title was obtained through a lawful process and was not fraudulently obtained. Whether the Plaintiff and the Defendant are entitled to their respective claims 28.The Plaintiff alleged that the Defendant cut down trees which were on parcel 3663 and split timber from the same. There was no evidence adduced to confirm that there were trees cut from parcel 3663. The Defendant testified ELC NO. E007 OF 2022 10 | P a g e

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that he cut trees from parcel 3704 which he bought in 2011 and took possession immediately. The Plaintiff and his family only blocked him from accessing his land in 2022 after Matata Mokove who sold the land to him had died. 29.One cannot seek temporary injunction in the main suit. The Plaintiff also sought orders restraining the execution of summons for boundary determination dated 31st March, 2022. This has been overtaken by events and in any case, this should have been sought in an application within the suit. The Defendant has demonstrated that he obtained his title lawfully. There is therefore no way his title can be cancelled or an injunction issued restraining him from utilizing his own land. It is therefore clear that none of the Plaintiff’s prayers can be granted. 30.As for the Defendant, he has demonstrated that he is entitled to the land which he purchased that is parcel No. Makueni/Utangwa/3704. The Defendant has been prevented from accessing his land by the plaintiff and his siblings. The Plaintiff’s evidence was that the Defendant’s parcel does not exist on the ground. This means that they have occupied their land which includes the Defendant’s land which is clearly distinct from that of the Plaintiff. This being the case, the Plaintiff is entitled to an order of eviction and thereafter an order of injunction. I therefore find that the Defendant is entitled to all the prayers in the counterclaim. Disposition 31.From the above analysis, it is clear that the Plaintiff has failed to prove his case. The same is dismissed with costs to the Defendant. The Defendant on the other hand has proved his case on a balance of probabilities. The Defendant’s claim by way of counterclaim is allowed in terms of prayers (a), (b) and (c) as well as costs of the counterclaim. ................................................................ ELC NO. E007 OF 2022 11 | P a g e

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HON. E. O. OBAGA, FCIArb JUDGE JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 8TH DAY OF OCTOBER, 2026. IN THE PRESENCE OF: Mr. Muthiani for Defendant Mr. Nyamboga for Mr. Kivindyo for the Plaintiff Court Assistants – Jackline and Steve ELC NO. E007 OF 2022 12 | P a g e

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