Kamau James Njendu v Serah Wanjiru & another [2018] eKLR

REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT AT NYAHURURU
ELC CASE NO 146 OF 2017
KAMAU JAMES
NJENDU .......................................................................PLAINTIFF
VERSUS
SERAH
WANJIRU ...........................................................................1 st
DEFENDANT
REGISTARAR OF TITLES-NYANDARUA ................................2 nd
DEFENDANT
JUDGEMENT
1. The plaintiff in this matter filed his Plaint on the 4 th February 2014 in
the Environment and Land Court at Nakuru in which he sought for the
following orders against the Defendants.
i. A permanent injunction restraining the Defendants or any
of them by themselves, their servants, employees and/or
agents from dispossessing the Plaintiff of the suit property,
entering into occupying, evicting the Plaintiffs’ agents,
employees and/or servants, constructing, fencing, selling,
leasing, disposing any interest of and/or undertaking any
development or in any other way interfering with the property
and/or the Plaintiffs’ quiet possession and enjoyment of the
suit property known as Nyandarua/Mutonyora/565.
ii. A declaration that the 1 st Defendant’s purported title to
Nyandarua/Mutonyora/565 is illegal. Null and void and does
not confer any proprietary interest upon the 1 st Defendant or
any other person.
iii. A declaration that the Plaintiff is the bona fide owner of
Nyandarua/Mutonyora/565.
iv. An order directing the second Defendant to rectify its
register and to nullify the 1 st Defendant’s registration in
respect to that entire parcel known as
Nyandarua/Mutonyora/565.
v. An order for vacant possession against the Defendant by
themselves their employees, agents, and/or servants.
vi. Costs of the suit plus interest.

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2. Together with the Plaint, the Plaintiff filed an application for interim
orders of injunction restraining the Defendant form occupying the suit land
or disposing the Plaintiff or in any other way interfering with the suit
property, pending hearing and determination of this suit.
3. It is worth noting that whereas the 2 nd Defendant was served
appropriately, the 1st Defendant could not be traced wherein the Plaintiff
sought for leave of the court to serve her by way of substituted service.
Leave was granted on the 2nd April 2014. The pleadings as well as
summons to Enter Appearance were served upon the 1 st Defendant
through the star Newspaper dated the 12th/13th April 2014.
4. On the day the Application was to be heard interparty, none of the
defendants had filed any papers to oppose the application, indeed the
State Counsel from the office of the Hon Attorney General confirmed that
the Application was not opposed. The same having not been opposed by
either party, the Plaintiff obtained the said interim orders vide a ruling
delivered on the 5th day of March 2015. A hearing date for the main suit
was thus fixed for the 5th November 2015 with notice to issue. There were
further orders that the 1st Defendant to be served by registered post.
5. Following the above orders, the 2nd Defendant was served with the
hearing notice wherein they filed their defence on the 6 th May 2015.
6. Subsequently the matter was transferred from the Environment and
Land Court at Nakuru to this court. The Plaintiff filed his application on the
3rd October 2017 seeking for judgment to be entered against the 1 st
Defendant pursuant to Order 10 rule 4 of the Civil Procedure Rules, for
neither entering appearance nor filing her statement of defence within the
stipulated time.
7. Judgment was entered against the 1st Defendant on the 21st November
2017. By consent, the matter fixed was for hearing for the 15 th February
2017 on which day the matter proceeded ex-parte, the date having been
taken by consent and the 1st Defendant having failed to attend court.
The Plaintiffs case
8. It was the Plaintiff’s case that in the year 1993 he was issued with a
letter of offer for the suit land dated the 23 rd July 1993, which he produced
as Pf Exh 1. That he accepted the offer and was to make payments for
discharge of the land from the Settlement Fund Trustees.
9. That on the 1st November 1993, vide receipt No. 669578, Pf Exh 2, he
made a payment of Ksh 3,330/= for outright purchase wherein he was
issued with a certificate of outright purchase, Pf Exh 3, dated the 8 th
December 1993 which was then followed with a discharge of charge dated
the 4th August 1998, Pf Exh 4.
10. The Plaintiff testified that he was subsequently issued with a transfer
of land dated the 15th May 2006, Pf Exh 5 which documents we presented
to the Land’s office at Nyahururu wherein they were registered and he was
issued with his title deed dated the 7 th October 2008, Pf Exh 6. The court
upon comparing copies of the said title deed with the original copy,
accepted the certified copy as an exhibit and returned the original to the

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Plaintiff for safe keeping.

11. The Plaintiff further testified that he had made other payments
including the payment of ksh. 3,000/= for stamp duty on the 15 th May
2006 Pf Exh 7, Ksh 250/= vide receipt No 0311198 dated the 15 th May
2001 being payment for the certificate, Pf Exh 8.
12. That after he had received the title deed, he took possession of the
suit land by placing a caretaker thereon since he worked in Mombasa. In
the year 2013 however, he received a phone call from his caretaker
informing him that a lady had gone on the suit land accompanied with
some people wherein she had claimed ownership of the land and that she
intended to sell the same to the people accompanying her.
13. When the Plaintiff received the said information he went to the Lands
office and conducted a search thereon on the 29 th November 2013 only to
discover from the search certificate Pf Exh 9, that the suit land had been
registered in the name of the 1st Defendant on the 14th March 2012.
14. It was the Plaintiff’ evidence that he did not know the 1 st Defendant
herein that he had neither sold nor transferred the suit land to anybody
and was still in possession of the original title. That the transfer of title to
the 1st Defendant was therefore illegal.
15. That vide a letter dated the 29 th January 2014, Pf Exh 10, he raised
his concern with the Chief Registrar which had elucidated no response.
16. The plaintiff prayed for orders to issue as prayed in his plaint and
closed his case.
17. Counsel for the Plaintiff then filed his submissions on the 6 th March
2018 wherein he reiterated the evidence adduced in court. There was
however further submission that for a parcel of land to have been lawfully
and legally transferred, the registered proprietors ought to have
surrendered the original title deed, signed the transfer witnessed by and
advocate as well as to have executed all relevant documents that pertains
transfer of land in the present case, none of these documents were ever
executed by the Plaintiff.
18. Counsel further submitted that both the transferor and transferee did
not appear before the Land Control Board for consent to transfer more so
because the suit land is an agricultural land governed by the provisions of
the Land Control Act.
19. That the Plaintiff’s evidence was uncontroverted and unchallenged
and that the same proved particulars of fraud and illegality on the part of
the Defendants resulting into the illegal transfer of the Plaintiff’s land to
the 1st Defendant. That since the Plaintiff confirmed that he was in
possession of the suit land, they prayed for orders sought in their plaint
save for prayer (e) which was a prayer for eviction and which did not arise
in the present circumstance.
Determination.
20. I have carefully considered the Plaintiff’s claim against defendants,
the evidence, submissions as well as the law applicable thereto. I find the
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matter arising for determination thereto as being

i. Whether the present suit as against the Defendants is
sustainable in the law.
ii. Whether the Plaintiff is the bona fide owner of
Nyandarua/Mutonyora/565.
iii. Whether 2nd Defendant should be ordered to rectify its
register in regard to parcel known as
Nyandarua/Mutonyora/565
21. It is evident that the 1st Defendant herein was served with summons
to enter appearance wherein she neither entered appearance nor filed any
defence. Wherein the Plaintiff applied for interlocutory judgment to be
entered against her which was duly entered. That whereas the 2 nd
Defendant entered their appearance and filed their defence denying the
Plaintiff’s claim in its entirety. They were given time to file their
statements and/or documents but failed to do so. They also failed to
attend court to defend the case. The Plaintiff’s suit is therefore
undefended. However, even though the suit was not defended, the Plaintiff
still had the duty to formally prove his case on a balance of probability as
required by law.
22. The suit was commenced by way of plaint filed on the 4 th February
2014. The Plaintiff’s claim is that he was allocated plot No 565 in
Mutonyoro Settlement scheme which later became
Nyandarua/Mutonyora/565 by virtue of the deed issued to him on the 7 th
October 2007 upon registration.
23. That he had taken possession of the land by putting a caretaker on
the same. Later he was informed that the 1 st Defendant had claimed
ownership of the said land wherein he had conducted a search at the lands
registry only to discover that the suit land had been registered in the 1 st
Defendant’s name.
24. It was the Plaintiff’s case that the 1 st Defendant’s title was obtained
fraudulently in collusion with the 2 nd Defendant. The plaintiff thus prayed
for cancellation of the 1st Defendant’s title.
25. In essence therefore I find that there could have been double
allotment of the suit land and the blame would therefore lay squarely on
the Settlement Fund Trustee. In the case of M’Ikiara M’Rinkanya &
Another –v- Gilbert Kabeere M’Mbijiwe, (1982-1988) 1KAR 196, the
court held that where there was a double allocation of land, the first
allotment would prevail. That therefore there was no power to allot the
same property again. (See also Kariuki –v- Kariuki (1982-88) KAR
26/79 and Otieno and Matsanga, (2003) KLR 210. In this case
however since the case was not defended by the 1 st Defendant, the court
would not be in a position to know whether there was double allocation or
whether this was a case of competing titles.
26. In the case of Hubert L. Martin & 2 Others v Margaret J. Kamar
& 5 Others[2016] eKLR, Munyao J held as follows;

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‘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
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. The other party also has a
similar document and there is therefore no advantage in
hinging one's case solely on the title document that they
hold. Every party must show that their title has a good
foundation and passed properly to the current title holder.’
27. The evidence tabled by the Plaintiff through supporting documents,
was that he was issued with a letter of offer for the suit land dated the 23 rd
July 1993. That after making the necessary payments, he was issued with
a transfer of land dated the 15 th May 2006, which documents were
presented to the Land’s office at Nyahururu wherein they were registered
and he was issued with his title deed dated the 7 th October 2008. From the
Plaintiff’s annexures, it is evident that the root of his title can be traced.
28. Further evidence was that when the 1 st Defendant appeared on the
suit land claiming ownership of the same, the Plaintiff had conducted a
search at the lands registry on the 29 th November 2013 only to discover
from the search certificate that the suit land had been registered in the
name of the 1st Defendant on the 14th March 2012. No evidence was
tendered by either of the defendants as to how the issuance of the second
title came to be. Secondly the suit land, being an agricultural land
governed by the provisions of the Land Control Act, there was no evidence
that parties had appeared before the Land Control Board for consent to
transfer the same as is required under Section 6 and 7 of the Land Control
Act, Cap 302 Laws of Kenya. The Plaintiff herein was still in possession of
the original title.
29. Needless to say that whereas the plaintiff herein obtained his
certificates of title on 7th October 2008, the 1 st Defendant was registered
as proprietor of the suit properties on 14th March 2012. It is trite law that
when there are two competing titles, the first in time will prevail. This
position was emphasized in the case of Wreck Motors Enterprises vs.
The Commissioner of Lands and Others Civil Appeal Civil Appeal
No. 71 of 1997, where the court held that:
‘Where there are two competing titles the one registered
earlier is the one that takes priority ‘
30. The same position was held in the case of Gitwany Investment ltd
vs. Tajmal Ltd & 3 Others (2006) eKLR where the Court held that:-

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‘….the first in time prevails, so that in the event such as this

one whereby a mistake that is admitted, the Commissioner of
Lands issues two title in respect of the same parcel of land,
then if both are apparently and on the face of them issued
regularly and procedurally, without fraud save for the mistake
then the first in time must prevail’
31. I find that the Plaintiff’s title was the first in time and as equity
teaches in its maxim that; “when two equities are equal, the first in
time prevails”, then the Plaintiff’s title deed was the first in time and
should prevail there having been no evidence called by the Defendants to
challenge the same. No evidence was called to confirm how the 2 nd title
deed came into being and whether the title deed held by the 1 st Defendant
was genuine or not.
32. Ordinarily, no land should be registered more than once and having
two separate title deeds held by separate persons. Therefore in this case,
there must be one title deed which is genuine and one which was issued
either unlawfully or through mistake and thus double allocation.
33. Balancing the two competing titles, it is my view that the Plaintiff
holds good title to the suit property. The title of the 1 st Defendant in my
view, and in the absence of evidence to rebut the same, could only have
been obtained either by the fraud, or by the mistake of the Land Registry,
or both.
34. I note that these properties were registered under the repealed
Registered Land Act which is now governed by The Land Act, 2012 and
The Land Registration Act, 2012. Indeed the law is very clear on the
position of a holder of a title deed in respect of land. Section 26(1) of the
Land Registration Act provides as follows:
“the Certificate of Title issued by the Registrar upon
registration, to a purchaser of land upon a transfer or
transmission by the proprietor shall be taken by all counts as
prima facie evidence that the person named as proprietor of
the land is the absolute and indefeasible owner, subject to the
encumbrances, easements, restrictions and conditions
contained or endorsed in the certificate, and the title of the
proprietor shall not be subject to challenge, except –
a. On the ground of fraud or misrepresentation to
which the person is proved to be a party
b. Where the Certificate of Title has been acquired
illegally un-procedurally or through a corrupt scheme
35. As may be observed, the law is extremely protective of title and
provides only two instances for the challenge of title. The first is where the
title is obtained by fraud or misrepresentation to which the person must be
proved to be a party. The second is where the certificate of title has been
acquired illegally, un-procedurally or through a corrupt scheme.
36. The import of Section 26 (1) (b) is to remove protection from an
innocent purchaser or innocent title holder. It means that the title of an

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innocent person is impeachable so long as that title was obtained illegally,

un-procedurally or through a corrupt scheme. The title holder need not
have contributed to these vitiating factors. The purpose of Section 26 (1)
(b) is to protect the real title holders from being deprived of their titles by
subsequent transactions.
37. The Court of Appeal in the case of Munyu Maina vs. Hiram Gathiha
Maina [2013] eKLR, 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 this instrument of title that is in
challenge and the registered proprietor must go beyond the
instrument and prove the legality of how he acquired the title
and show that the acquisition was legal, formal and free from
any encumbrances including any and all interests which need
not be noted on the register.’
38. Section 80 (1) of the Land Registration Act provides that:-
“Subject to subsection (2), the court may order the
rectification of the register by directing that any registration
be cancelled or amended if it is satisfied that any registration
was obtained, made or omitted by fraud or mistake.”
39. From the above provisions it is clear that the court has powers to
order rectification of a register by directing that the registration be
cancelled or amended if it is satisfied that any registration was obtained,
made or omitted by fraud or mistake.
40. That said and done I hold that the Plaintiff has proved his case on a
balance of probabilities and is entitled to the prayers sought in the plaint.
Consequently, I hereby enter judgment for the plaintiff against the
Defendants in the following terms:
i. A permanent injunction is herein issued restraining the
Defendants or any of them by themselves, their servants,
employees and/or agents from dispossessing the Plaintiff of
the suit property, entering into occupying, evicting the
Plaintiffs’ agents, employees and/or servants, constructing,
fencing, selling, leasing, disposing any interest of and/or
undertaking any development or in any other way interfering
with the property and/or the Plaintiffs’ quiet possession and
enjoyment of the suit property known as
Nyandarua/Mutonyora/565.
ii. A declaration that the 1 st Defendant’s purported title to
Nyandarua/Mutonyora/565 is illegal. Null and void and does
not confer any proprietary interest upon the 1 st Defendant or
any other person.
iii. A declaration that the Plaintiff is the bona fide owner of
Nyandarua/Mutonyora/565.
iv. An order directing the second Defendant to rectify its

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register and to nullify the 1 st Defendant’s registration in

respect to that entire parcel known as
Nyandarua/Mutonyora/565.
v. Costs of the suit plus interest at a lower rate since the
same was undefended.
Dated and delivered at Nyahururu this 16th day of October 2018.
M.C. OUNDO
ENVIRONMENT & LAND – JUDGE

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