Dr. Chris Bichage Munga v Registrar of Titles & 5 others

e. That the provisional certificate of lease issued to the 3 rd Defendant in respect of LR No. 3818/3 be declared to be of no legal consequence. f. An order of eviction to issue against the 3rd Defendant, his agents, servants or anyone claiming through him, from LR No. 388/4. g. The County Commander of Police, Transnzoia County be directed to provide security and ensure enforced enforcement of the eviction order. h. Interest 2. The 3rd to 6th Defendants filed a defence and raised a counterclaim in which they sought the following reliefs: a. A declaration that the 3rd to 6th Defendants are legal owners and entitled to possession of all the parcel of land known as LR. No. 3818/3. b. A declaration that the registration of the Plaintiff as proprietor of LR No. 3818/4 is null and void. c. A declaration that the transfer effected in favour of the Plaintiff in respect of LR No. 3818/4 is null and void. d. Nullification of all entries made in the register and on the title to LR. No. 3818 after the issuance of the Provisional Certificate of Title to the 3rd – 6th Defendants. e. Nullification and/or cancellation of the subdivisions undertaken on LR No. 3818/3 and the subsequent transfer plus Certificates of Title thereto. f. An order that the Plaintiff, his agents and/or servants to immediately surrender all documents and/or Certificates of Title to court for destruction and/or all documents including but not limited to the Certificate of Title in respect of LR No. 3818/4. g. A permanent injunction to restrain the Plaintiff, his agents, servants, employees and/or any other person acting on his ELC NO. 16 OF 2022 2|Page

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instructions from selling alienating disposing of, auctioning, transferring making entries and/or any further entries against the title number LR No. 3818/3 and the resultant subdivisions thereof namely 3818/4 and 3818/5, altering the lands record, creating other records, interfering with record and/or in another manner interfering with Land Parcel known as LR Number 3818/3 and the resultant subdivisions thereof namely LR No. 3818/4/3818/5. h. Costs of the suit and counterclaim. i. Such further orders which this court deems fit to grant. Background 3. The history of this suit can be traced from LR No. 3818 which was registered in the name of Alfred Momanyi Nyairo on 1st November, 1974. This property was later subdivided and it resulted into LR No. 3818/1 measuring 13.76 hectares which was a road reserve, LR No. 3818/2 measuring 20.52 hectares which was registered in the name of Benjamin Nyamumbo Oonge and LR No. 3818/3 measuring 352.1 hectares which remained in the name of Alfred Momanyi Nyairo. 4. Alfred Momanyi Nyairo had entered into an agreement with Rosemary Wanjiru Bichage for the purchase of 50 acres. Rosemary Wanjiru Bichage is wife to the Plaintiff. The Plaintiff’s wife sustained serious injuries during the 1998 terrorist attack at the USA Embassy. The Plaintiff’s wife succumbed to the injuries and passed away on 9th October, 2008. 5. The Plaintiff who was well known to Alfred Momanyi Nyairo was put in possession of the 50 acres in 1986/1987 where he did farming for a while before he started leasing out the land to third parties. 6. The Plaintiff approached Alfred Momanyi Nyairo to transfer the land to him. Alfred Momanyi Nyairo had intended to transfer the land to the children of Rosemary Wanjiru Bichage but he later agreed to transfer the land to the Plaintiff after the Plaintiff took his four children to Alfred Momanyi Nyairo ELC NO. 16 OF 2022 3|Page

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who confirmed to him that they had no objection to the land being transferred to their father. 7. Alfred Momanyi Nyairo then asked Richard Owuor Ooko to undertake subdivision of LR No. 3818/3 with a view to excising 50 acres for the Plaintiff. Alfred Momanyi Nyairo then gave the title to LR No. 3818/3 to Richard Owuor Ooko to facilitate subdivision. 8. The process of subdivision was carried out to completion and it resulted into LR No. 3818/4 measuring 20.24 hectares in the name of the Plaintiff and LR No. 3818/5 measuring 352.1 hectares in the name of Alfred Momanyi Nyairo. 9. All the payments which resulted in the subdivision of LR No. 3818/3 were met by the Plaintiff. The Plaintiff’s lawyer then forwarded the title to Alfred Momanyi Nyairo to his law firm where it was received under protest. It is after this letter forwarding the title to Alfred Momanyi Nyairo’s firm that Nyairo complained that his land had been unprocedurally subdivided. 10.It is the complaint by Alfred Momanyi Nyairo which led to publication of a Gazette Notice for cancellation of title in favour of the Plaintiff and that of Alfred Momanyi Nyairo. The Plaintiff initially sued the Registrar of Titles and the Attorney General and named Alfred Momanyi Nyairo as an interested party. An application was later made to join Alfred Momanyi Nyairo as a substantive Defendant. The application was allowed and Alfred Momanyi Nyairo was named as 3rd Defendant. 11.Alfred Momanyi Nyairo passed away on 20th October, 2019. His personal representatives were then named as 3 rd to 6th Defendants. It is Nyairo’s legal representatives who filed an amended counterclaim on 24th February, 2023. Plaintiff’s Case 12.The Plaintiff stated that he knew the late Nyairo at a personal level. At times he could go to Nyairo’s home and they used to go out for drinks together. When his wife passed away, he approached Nyairo who informed him that he did not have any problem in transferring the land to him as long as his ELC NO. 16 OF 2022 4|Page

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children had no objection. He took his children to Nyairo’s home where they confirmed that they had no problem in the land being transferred to their father. 13.Mr. Nyairo then engaged the services of Richard Owuor Ooko who undertook survey work under the name of Olweny & Associates. Mr. Nyairo had his children in the USA who required fees. Mr. Nyairo signed transfer which was duly lodged during the registration. He stated that he was put in possession in 1986 where he did farming until he gave up as his workers were stealing maize from him. He later gave the land to Kabuyefwe School which farmed the land for free for about four years after which he started charging them rent. He later leased the land to another person before finally entering into a lease with Mike Chetekei who leased the land where he did farming until 2014 when Nyairo and his agents chased him away. 14.The Plaintiff called PW2 Richard Owuor Ooko who testified on how Mr. Nyairo engaged him to undertake subdivision of LR No. 3818/3. As this witness was not a surveyor, he did the work under Olweny & Associates. Mr. Nyairo gave him the original title which was used for purposes of subdivision. This witness stated that it is Mr. Nyairo who had sanctioned him to carry out the subdivision and that he only changed his mind as he wanted to sell the land at a higher price. 15.The Plaintiff also called PW3 Mike Chetekei who testified on how he entered into a lease of the 50 acres with the Plaintiff. He did farming until 2014 when he was chased away. First and Second Defendants’ Case 16.The Defendants’ case is that the cancellation of the Plaintiff’s title was done in good faith as there were serious anomalies noticed during the process of subdivision and subsequent registration of the Plaintiff as owner of LR No. 3818/4. The third to sixth Defendants’ Case ELC NO. 16 OF 2022 5|Page

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17.The Defendants case was presented by 6 th Defendant Tom Gitamo Nyairo who is son to Nyairo and one of the administrators of the estate of the late Nyairo. This witness stated that the subdivision of LR No. 3818/3 was undertaken fraudulently. He stated that his father (Nyairo) had been diagnosed with a life threatening condition. His doctors gave him 3 months to live. As a result of this, his father signed transfer forms in readiness of any eventuality. 18.This witness stated that Rosemary Wanjiru Bichage had only paid Kshs.100,000/= and transfer could not be done as Rosemary did not complete payment of the purchase price. The witness went ono to state that his father signed some documents as a commitment to what Rosemary Wanjiru Bichage had done. He stated that the subdivision of LR No. 3818 was done by Raphael Omondi who died before he could complete registration of the subdivisions. He stated that there was only one registration which was done and this was in respect of LR No. 3818/2. in the name of Benjamin Nyamumbo Oonge. He stated that no registration was made in respect of LR No. 3818/1 and 3818/3. He stated that there is no entry in respect of the Plaintiff and that the last entry is the one made on 12 th May, 2014 when a provisional title was issued to Mr. Nyairo. Parties Submissions 19.Parties were directed to file written submissions. The Plaintiff filed submissions dated 7th February, 2025. The 1st and 2nd Defendants filed submissions dated 27th February, 2025. The 3rd to 6th Defendants filed submissions dated 28th February, 2025. Plaintiff’s Submissions 20.In the Plaintiffs’ submissions dated 7 th February 2025, Counsel submitted that the 1st Defendant has no power to cancel a title deed even where there are allegations of irregularity in issuing such title. That the matter must be placed before a court which has the appropriate jurisdiction to hear evidence of the alleged irregularities or fraud before an order of cancellation can be ELC NO. 16 OF 2022 6|Page

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issued. To buttress this submission, Counsel cited the case of Lawrence Muriithi Mbabu v District Land Registrar, Nyeri & another; John Githui Kinyua (Interested Party) [2019] eKLR. 21.Counsel further submitted that following the death of Alfred Momanyi Nyairo, the original 3rd Defendant on 20th October, 2019, his counterclaim to the Plaintiff’s suit abated after the lapse of one year. It was contended that at the point in which the 3rd – 6th Defendants were appointed legal representatives vide a grant of probate issued on 26th July, 2021, twelve months had already lapsed. That the 3rd – 6th Defendants did not make an application to revive the counterclaim dated 19 th July, 2019 in accordance with the provisions of Order 24 Rule 3(2) of the Civil Procedure Rules, 2010. 22.It was further submitted that neither the deceased Alfred Momanyi nor his legal representatives could call evidence to impeach the instrument of transfer which culminated in the issuance of a certificate of title LR No. 3818/4 in favour of the Plaintiff. That the fraud that was allegedly committed by the Plaintiff was not substantiated to the required legal standard of proof. Reliance was placed on the case of Ndegwa & 4 others v Mang’ethi & 4 others [2024] KEELC 3974 (KLR) to buttress the above submission. 23.Urging the court to enter judgment as prayed in the amended Plaint, Counsel submitted that the Plaintiff’s case had been demonstrated on a balance of probabilities and that the title of the suit property is protected in accordance with the provisions of Section 26 of the Land Registration Act. First and Second Defendants’ Submissions 24.The 1st and 2nd Defendants filed their submissions dated 27th February, 2025. On their behalf, learned Senior State Counsel submitted that pursuant to the findings of the Director of Surveys, the Chef Land Registrar initiated a process of cancelling the certificate of title for land Parcel No. 3818/4. That having failed to provide reasons why the recommendations of the Director of Surveys should not be implemented, despite being invited to do so, the Chief ELC NO. 16 OF 2022 7|Page

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Land Registrar justifiably issued Gazette Notice No. 8892 of 28/10/2016 cancelling the title and all entries in respect of land Parcels No. 3818/4 and 3818/5. It was contended that the dealings of the 1 st Defendant were conducted in good faith and based on valid reasons. 25.It was further submitted that the Plaintiff had failed to dislodge the argument that in the absence of a registered deed plan and title, LR No. 3818/3 was incapable of subdivision and transfer to him. Reliance was placed on the case of Henry Muthee Kathurima v Commissioner of Lands & another [2015] eKLR in support of the above submission. State Counsel contended that the Plaintiff did not prove his allegations that the subdivision of LR No. 3818/3 into LR No. 3818/4 and LR No. 3818/5 was preceded by a consent for subdivision properly issued under Section 6 of the Land Control Act. It was the 1st and 2nd Defendants’ submission that they fully complied with both procedural and substantive elements when revoking the Plaintiff’s title. Third to sixth Defendants’ Submissions 26.The 3rd – 6th Defendants filed their submissions dated 28th February, 2025. On their behalf, Counsel submitted that there was no registration of the head title LR No. 3818/3 in order to pave way for the subdivision and creation of new title. That no written agreement for sale of any portion of land between the Plaintiff and the 3rd Defendant was produced to show that LR No. 3818/4 was indeed sold to him and that he paid for it. It was further contended that no evidence was presented by the Plaintiff to show that he had the legal capacity to receive a transfer in his favour for a property that was claimed to have been that of the late Rosemary Bichage. Counsel resolved that the transfer of land Parcel No. 3818/4 in favour of the Plaintiff was irregular and unprocedural for non-compliance with the provisions of Section 3(3) of the Law of Contract Act. 27.The 3rd – 6th Defendants further relied on the submission that the suit property could not be transferred to the Plaintiff in the absence of a Land Control Board consent being within an agricultural zone. It was contended ELC NO. 16 OF 2022 8|Page

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that the Plaintiff contravened the provisions of Section 6 as read with Section 8 of the Land Control Act. Counsel cited the case of David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] eKLR to bolster the above submission. 28.Counsel further submitted that the surrender dated 5/4/2011 which purportedly gave rise to Parcel Nos. 3818/4 and 3818/5 was in respect of Parcel No. 3818/1, a road reserve measuring 13.77 hectares. Imputing that the Plaintiff’s title to the suit property was irregularly obtained, Counsel cited the case of Samwel Ariga Bosire v Abagusii Otenyo Self Help Group [2021] eKLR. It was also contended that the Plaintiff’s reliance on a letter dated 8/5/2018 by the National Land Commission withdrawing the letter that had recommended cancellation of the survey plans and deed plans for the suit property has no probative value as the same was not produced as an exhibit by the Plaintiff in court. Reliance was made on the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] eKLR. 29.Arguing that the Plaintiff is not entitled to mesne profits, Counsel submitted that the title to the suit property was illegally acquired and could therefore not pass interest to the Plaintiff. Citing the case of Stephen Makau Kanyia v Wilson Njeru Wega & 4 others [2021] eKLR, Counsel was of the view that the Plaintiff had failed to demonstrate an entitlement to mesne profits. 30.Submitting that the 3rd – 6th Defendants had demonstrated merit in their counterclaim, Counsel argued that fraud had been established as per Section 26 of the Land Registration Act. It was urged that the court ought to order the cancellation of title LR No. 3818/4 in the Plaintiff’s name and any fraudulent entries made in the land register. Counsel also urged the court to issue a permanent inunction to restrain the Plaintiff from dealing with the suit property. Reliance was placed on the findings of the Supreme Court in Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR). Counsel urged the court to dismiss the Plaintiff’s suit with costs and to allow the counterclaim. ELC NO. 16 OF 2022 9|Page

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Analysis and Determination 31.I have carefully considered the evidence adduced by the Plaintiff and the Defendants. I must say at the outset that this is a matter which was handled casually based on trust as the Plaintiff, his late wife and Mr. Nyairo appear to have known each other at personal level and things seem to have started going haywire after the demise of the Plaintiff’s wife and particularly after the Plaintiff sold 10 acres out of the 50 acres to Mr. Wati. 32.There is no contention that Mr. Nyairo had begun the process of sale of 50 acres to the Plaintiff’s wife. This was acknowledged by the 6 th Defendant who testified in this case. The 6th Defendant however stated that the Plaintiff’s wife only paid Kshs.100,000/- and never completed the payment. 33.The issues which emerge for determination are firstly whether Mr. Nyairo authorized PW2 Richard Owuor Ooko to undertake subdivision of LR No. 818/3. Secondly whether, whether Richard Owuor Ooko said undertook the exercise of subdivision. Thirdly, whether Nyairo signed transfer in favour of the Plaintiff. Fourthly whether the registration of the transfer in favour of the Plaintiff was fraudulently registered. Fifthly, whether LR No. 3818/3 legally exists. Sixthly, whether the Plaintiff and the 3 rd to 6th Defendants are entitled to their respective claims. Whether Mr. Nyairo authorized Richard Owuor Ooko to undertake subdivision of LR No. 3818/3 34.Whereas the 3rd to the 6th Defendants purported to disown the role played by Ooko, Mr. Nyairo himself had written a letter dated 19th December, 2012 addressed to the Chief Land Registrar in which he acknowledged the fact that he had surrendered the original title deed to Mr. Ooko for purposes of subdivision of LR No. 3818/3. Though Mr. Nyairo claimed in the letter that Mr. Ooko represented to him that he was a registered surveyor, the truth of the matter is that Mr. Nyairo was aware that Mr. Ooko was not a licensed surveyor Mr. Ooko was working in the firm Raphael Omondi Opudho who ELC NO. 16 OF 2022 10 | P a g e

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was a licensed surveyor. Mr. Opudho had his office in the same building as the firm of Nyairo & Co. Advocates. 35.Mr. Ooko knew Mr. Nyairo in 1989. He is the one who acted as an agent of Nyairo when Nyairo successfully transferred LR No. 3818/2 to Dr. Benjamin Nyamumbo Oonge. Mr. Ooko testified as PW2. He stated that he was not a licensed surveyor but was working closely with licensed surveyors who forwarded the requisite documents to the relevant offices. 36.When the Plaintiff was charged in Kitale Chief Magistrate’s Court Criminal Case No. 3649 of 2016, Mr. Nyairo was one of the witnesses in that case. A certified copy of the judgment in the criminal case was produced by the Plaintiff. While Mr. Nyairo was being cross examined, he admitted that he contracted Mr. Ooko to undertake the survey of his land. 37.When Mr. Nyairo made a complaint to the public complaints and resolutions committee at Kitale, this committee heard both Mr. Nyairo and the Plaintiff and reviewed a number of documents. The committee found that indeed Mr. Nyairo had begun the process of sale of the 50 acres to the Plaintiff’s wife. The name of Mr. Ooko featured as Mr. Nyairo’s agent. The committee found as a matter of fact that Mr. Nyairo was willing to transfer the land to the children of the Plaintiff’s wife but was unhappy that the land had been transferred to the Plaintiff. I therefore find that Mr. Nyairo had authorized Mr. Ooko to undertake the subdivision exercise. Whether Richard Owuor Ooko undertook the subdivision exercise. 38.Mr. Ooko testified in this case. He admitted that he was not a licensed surveyor but was working closely with licensed surveyors. He had successfully done the subdivision which culminated in title No. 3818/2 going to Dr. Benjamin Nyamumbo Oonge. The said Nyamumbo Oonge had registered a caveat against title owned by Mr. Nyairo but the caveat was later removed paving way to registration of Dr. Benjamin Nyamumbo Oonge as owner of LR. No. 3818/2. ELC NO. 16 OF 2022 11 | P a g e

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39.It is the same Ooko who was involved in the subdivision which culminated in the registration of the Plaintiff as owner of LR No. 3818/4 and LR No. 3818/5 remained in the name of Mr. Nyairo. Though the Registrar of titles purported to cancel the titles in the name of the Plaintiff and Mr. Nyairo vide Gazette Notice Number 8892 of 28th October, 2016, this cancellation was never effected as subsequent official searches carried out in 2019 show that LR No. 3818/4 and LR No. 3818/5 are in the names of the Plaintiff and Mr. Nyairo respectively. 40.During cross examination of Edwin Munoko Wafula who was prosecution witness number 6 in the criminal case he confirmed that a search conducted on 25th March, 2019 showed that LR No. 3818/4 was in the name of the Plaintiff. Whether Mr. Nyairo signed transfer in favour of the Plaintiff 41.The transfer which was signed by Mr. Nyairo in favour of the Plaintiff was produced in evidence by both the Plaintiff and the 3 rd to 6th Defendants. The signature of Mr. Nyairo was not disputed. The photograph of Mr. Nyairo was also not disputed. The 6th Defendant in his testimony stated that Mr. Nyairo had signed some transfers when his doctors informed him that he had only three months to live. There was no evidence that any of those transfers signed by Mr. Nyairo were stolen or illegally accessed. 42.The transfer in favour of the Plaintiff was executed before the 3 rd Defendant, a senior lawyer in the firm of Nyairo & Company advocates. During the hearing of the criminal case, the transfer was subjected to forensic examination with known documents which had been signed by Mr. Nyairo and the signature was found to have been made by Mr. Nyairo. 43.Mr. Nyairo would not have signed a transfer in favour of the Plaintiff if he had not sold the land to the Plaintiff. From the evidence which came out, Mr. Nyairo had no problem in transferring the land. Mr. Nyairo appeared to be intent on transferring the land to the children of the Plaintiff. However, when ELC NO. 16 OF 2022 12 | P a g e

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the Plaintiff took his children to the home of Mr. Nyairo, Mr. Nyairo agreed to transfer the land to the Plaintiff. 44.In the criminal case, the Plaintiff’s daughter Cecilia Bichage testified as a witness. She stated that she and her siblings had gone to the home of Mr. Nyairo where it was agreed that the land be transferred to their father. This evidence confirms the evidence of the Plaintiff who stated that he took his children to the home of Nyairo where they agreed that the land be transferred to the Plaintiff. 45.If the Plaintiff’s wife and or the Plaintiff did not complete payment as the 3 rd to 6th Defendants would want the court to believe, the question is why then was Mr. Nyairo signing a transfer in favour of the Plaintiff? From the evidence on record and from the admission by the 6 th Defendant that his father signed transfer, I find that indeed it is Mr. Nyairo who signed transfer in favour of the Plaintiff. Whether the transfer in favour of the Plaintiff was fraudulently registered. 46.The 3rd to 6th Defendants listed a number of particulars of fraud attributed to the Plaintiff. Before Mr. Nyairo passed away he had filed a counterclaim against the Plaintiff on 18th July, 2019. Mr. Nyairo shortly thereafter passed away on 20th October, 2019. When the third to sixth Defendants obtained grant of probate in respect of his estate on 26th July, 2021, they amended the defence and counterclaim on 24th February, 2023. They did not seek to revive the counterclaim which had abated by operation of law by 20 th October, 2020. In law, a counterclaim is a separate suit. The 3rd to 6th Defendants could not ride on the back of the Plaintiff who had revived his suit vide an application dated 2nd February, 2022 which was allowed on 20 th November, 2022. There is therefore no suit against the Plaintiff by the 3 rd to 6th Defendants. All the evidence which was adduced on the alleged particulars of fraud goes to nothing as the counterclaim died a natural death. In the case of Said Suveilem Gheithan Swailem –vs- Commissioner of Lands & 5 Others (2005) eKLR, it was held that the effect of an abated suit ELC NO. 16 OF 2022 13 | P a g e

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is that it ceases to exist in the eyes of the law. The abatement takes place on its own force by passage of time. 47.The record in the criminal case against the Plaintiff shows that Mr. Nyairo knew Mr. Ooko. Though Mr. Nyairo had surrendered the original title to Mr. Ooko way back on or before 2012, he falsely went on to claim that the same title was lost and obtained a provisional title on 12th May, 2014. Despite the notice having given 60 days, the provisional title was issued within 45 days. 48.There was no evidence given to show that the Plaintiff had been asked to surrender his title and that he refused or declined to do so. In any case the law is settled that a title cannot be cancelled by a Land Registrar through a Gazette Notice. In the case of Lawrence Muriithi Mbabu –vs- District Land Registrar Nyeri & Another; John Githui Kinyua (Interested Party) (2019) eKLR Lady Justice Oundo stated as follows: “The issue of the constitutionality of the revocation of titles by the Registrar was decided in the cases of Kuria Greens Ltd –vsRegistrar of Titles & Another (2011) eKLR and Isaac Gathungu Wanjohi & Another –vs- Attorney General & 6 Others (2012) eKLR, where it is now settled that a Registrar has no power to cancel title.” 49.In the case of Ndegwa & 4 Others –vs- Mangethi & 4 Others (2024) KEELC 3974 (KLR) it was held as follows: “37. On allegations of fraud levelled against the 1 st and 4th Defendants, the Plaintiffs did not proffer any evidence to support the assertions. The standard of proof in alleging fraud was discussed in the case of Vijay Morjaria v-s- Nansingh Madhusingh Darbar & Another (2000) eKLR, the Court held as follows: “It is well stablished 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. It is also settled law that fraudulent conduct must be ELC NO. 16 OF 2022 14 | P a g e

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distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 38. The Court of Appeal in the case of Jephther O. Opande –vsMary Atemo Gathiriga (2019) eKLR stated that standard or burden of proof where fraud is alleged in civil matters has been held in decided cases to be higher than the ordinary standard of balance of probabilities. Additionally the same court in Vivo Energy Kenya Limited –vs- Maloba Petrol Station & 3 Others (2015) eKLR it was held that where fraud is alleged, it must be specifically pleaded and particulars thereof given. That bare allegations out forward by a party won’t suffice. A similar position was taken by the Supreme Court in the case of Fanikiwa Limited & 3 Others –vs- Sirikwa Squatters Group & 17 Others (2023) KESC 105 (KLR). 50.As Mr. Ooko testified, Mr. Nyairo was reneging on what he had agreed on because the value of the land had gone up. The evidence adduced is that Mr. Nyairo had started the process of sale of the suit property in or around 1986/1987. He put the purchaser in possession in 1987. The Plaintiff as the husband of Rosemary Wanjiru Bichage is the one who was farming on the suit land. When he left farming, he leased out the land to other third parties including Mike Chetekei who testified in favour of the Plaintiff. This witness stated that he farmed until 2014 when he was chased away by Mr. Nyairo. 51.There is no evidence that Mr. Nyairo had leased the land to either Rosemary Wanjiru Bichage or to the Plaintiff. If Nyairo had not sold and transferred the land to the Plaintiff, why didn’t he raise the issue of the Plaintiff’s occupancy between 1987 and 2014 a period of 27 years. 52.It is clear that Mr. Nyairo was infuriated when he found out that the Plaintiff had sold 10 acres to David Biketi Wati, a lawyer who filed a complaint which culminated into the charging of the Plaintiff in a criminal case for obtaining money by false pretense. When Mr. Wati went to take possession ELC NO. 16 OF 2022 15 | P a g e

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of the 10 acres he had purchased from the Plaintiff, he was repulsed by over 200 persons who were armed with bows and arrows. 53.It appears Mr. Nyairo knew the Plaintiff well, that is why he was not keen on transferring the land to him but when the children of the Plaintiff convinced him that they had no issue in the land being transferred to their father, Mr. Nyairo agreed to do so. The problem appears to have been triggered by the sale of 10 acres to Mr. Wati. This is what made Mr. Nyairo to change his mind. 54.The National Land Commission initially found that the registration was fraudulent but on further investigations, this finding was changed upon finding that Mr. Nyairo was in the picture of what was going on. This is the same case with the deed plans which led to the generation of title numbers 3818/4 and 3818/5 which were initially cancelled but the cancellation was later reversed. Though these letters cancelling the earlier positions taken by the National Land Commission and the Lands Officials were never produced as they were only marked for identification the same were acted upon and this explains why the title numbers 3818/4 and 3818/5 were never cancelled despite a purported Gazette Notice to that effect being issued. This also explains why the 3rd to 6th Defendants are seeking cancellation of the said titles in their counterclaim which died a natural death as it was not revived. 55.The 3rd to 6th Defendants are seeking to rely on the failure to produce the crucial letters which reversed the earlier positions taken. I do not have any doubt on the applicability of the case of Kenneth Nyaga Mwige –vs- Austin Kiguta & 2 Others (2015) eKLR on documents marked for identification but not produced. This notwithstanding the Plaintiff produced the judgment in the criminal case and the findings of the complaints committee of Lands at Kitale which confirmed that there was consent of the Land Control Board obtained and was in the file. Taking into consideration how the transaction started with Nyairo and Rosemary Wanjiru Bichage who unfortunately died due to injuries sustained during the infamous terrorist attack at USA ELC NO. 16 OF 2022 16 | P a g e

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Embassy in 1998, I have no doubt in my mind that the transfer into the Plaintiff’s name was with the blessing of Mr. Nyairo. Mr. Nyairo seems to have wanted to transfer the land to the children of Rosemary Wanjiru with whom he had begun the process of sale but seems to have changed his mind particularly when the Plaintiff sold 10 acres to Mr. Wati. 56.Manipulation of Land records to suit particular interests is not uncommon. For instance in the case of Reference No. 1 of 2018, National Land Commission –vs- Afrison Export Import Limited & 10 Others (2019) EKLR, the court found two searches which emanated from the lands office. One showed that the property in issue had been charged whereas the other showed that the property was free of any encumbrances. 57.The Plaintiff’s title has not been cancelled for if the same had been cancelled, the searches carried out on 25th March, 2019 would have shown that the same had reverted to LR No. 3818/3. I therefore find that the registration of the transfer in favour of the Plaintiff was not fraudulent. Whether LR No. 3818/3 legally exists 58.The 3rd to 6th Defendants are claiming that LR No. 3818/3 was never registered as the surveyor who was involved died before registration of the title. This cannot be true. The evidence which was adduced both in this suit and in the criminal case show that there exist title numbers 3818/4 in the Plaintiff’s name and title number 3818/5 in Mr. Nyairo’s name. This therefore means that legally there cannot be title No. 3818/3 which was closed on subdivision and resulted in title numbers 3818/4 and 3818/5. 59.The person who was behind the purported cancellation of title Nos. 3818/4 and 3818/5 is one Edwin Munoko Wafula. This was a Senior Land Registrar based at Nairobi when the mess in this case was happening. He testified in this case and in the criminal case which faced the Plaintiff. In the present case he relied on an affidavit which purported to point out the anomalies in the process leading to the generation of title numbers 3818/4 and 3818/5. ELC NO. 16 OF 2022 17 | P a g e

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60.The 3rd to 6th Defendants produced minutes of the Land Control Board which show that parcel No. 3818/3 was not on the agenda of 27 th May, 2010. Though these minutes were produced in evidence, the same were not signed by the chairman. 61.The complaints committee of Lands in Kitale observed in their findings observed that the consent to transfer was on record and that Mr. Nyairo was only unhappy that the land had been transferred to the Plaintiff. I therefore find that LR No. 3818/3 ceased to exist upon subdivision. 62.How can one be given possession for 27 years, transfer in his favour signed, original title given to an agent to undertake subdivision and then all of a sudden, the seller starts claiming that his title was lost, Gazettment is done giving 60 days but provisional title is issued within 45 days. Whether the Plaintiff and the 3rd to 6th Defendants are entitled to the reliefs sought 63.From the above analysis it is clear that title number LR No. 3818/3 is nonexistent the same having been closed on subdivision. There cannot be a declaration that the 3rd to 6th Defendants are owners of the nonexistent title. The title held by the Plaintiff being LR No. 3818/4 was issued regularly and there is no basis upon which the court can declare it as null and void or order its cancellation. 64.The provisional title issued to Mr. Nyairo on 12 th May, 2014 was irregularly issued within 45 days, when the Gazettment notice had given 60 days. The original title had been given to Mr. Ooko to facilitate subdivision. There is therefore no basis upon which entries made in the register after the irregularly issued provisional title can be cancelled. It is therefore clear that none of the prayers in the counterclaim can be granted and in any case there is no suit against the Plaintiff the same having abated and was never revived. 65.The Plaintiff pleaded for mesne profits of Kshs.10,000/= per acre per annum from 2014 till judgment and until the land is vacated. Mesne profits are in ELC NO. 16 OF 2022 18 | P a g e

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the nature of special damages. They ought to be pleaded and proved. The Plaintiff did not adduce any evidence to show what he was getting from the land when he leased it out. He called the person to whom he had leased the land but there were no documents produced to show what he had paid the Plaintiff. 66.The Plaintiff has demonstrated through evidence that though there was Gazette Notice number 8892 of 28th October, 2016 which purported to cancel his title, his title is still intact and in any case, Land Registrar has no powers to cancel title through a Gazette Notice. There is evidence that when Mr. Nyairo chased away Mike Chetekei who had leased the land from the Plaintiff, the land is being occupied by the legal representatives of Mr. Nyairo who are the 3rd to 6th Defendants. There is therefore need to have them evicted from the land and for good order and peace, the police have to be involved. I therefore find that the Plaintiff has proved his case on a balance of probabilities. Disposition 67.I now make the following final orders: 1. The 3rd to 6th Defendants’ counterclaim having abated, the Plaintiff is awarded costs of the abated counterclaim. 2. Judgment is entered for the Plaintiff against the Defendants as follows: a. A permanent injunction is given against the 1 st, 3rd, 4th, 5th and 6th Defendants or their agents from cancelling and or in any way interfering with the Plaintiff’s ownership and use of LR No. 3818/4. b. An order is hereby given that Legal Notice Number 8892 dated 28th October, 2016 is null and void and further that if title No. LR No. 3818/4 may have been cancelled the same be restored in the register. ELC NO. 16 OF 2022 19 | P a g e

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c. The provisional certificate of lease issued on 12 th May, 2014 to Alfred Momanyi Nyairo is null and void and of no legal consequence. d. An order of eviction against the 3 rd to 6th Defendants, their agents, servants or anyone claiming through them from LR No. 3818/4. e. The County Commander of Police, Trans Nzoia County is directed to provide security during the eviction exercise. f. The Plaintiff shall have the costs and interest of this suit. .................................................... HON. E. O. OBAGA, FCIArb JUDGE JUDGEMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 8TH DAY OF OCTOBER, 2026. IN THE PRESENCE OF: Ms. Odwa for 3rd to 6th Defendants Mr. Samba for Plaintiff Court Assistants – Steve and Jackline ELC NO. 16 OF 2022 20 | P a g e

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