Omar & another v Kulei & 2 others (Land Case E033 of 2023) [2025] KEELC 5916 (KLR)
The bottom line
#A Kenyan court cancelled two land owners' title deeds because their documents didn't match the official land registry records, handing the property to the rival claimant.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who between the Plaintiffs and the 1st and 4th Defendants has demonstrated a valid root of title to LR No. 13287/99?
- 2.Whether fraud/forgery in the acquisition of the competing titles has been proved to the required standard
- 3.Whether the Plaintiffs or the 4th Defendant is a bona fide purchaser for value
- 4.Who bears the costs of the suit and the counterclaim
Key legal issues
#Which of the two competing titles over LR No. 13287/99 has a valid root
The Plaintiffs' title is not supported by the mother title, whose Entry No. 85 shows a transfer to the late Joseph Kasaine Nkaissery; the 4th Defendant's title is supported by the mother title and therefore prevails
The Chief Land Registrar produced the mother title showing Entry No. 85 as a transfer to the late Nkaissery; the Plaintiffs' grant presented a different, altered Entry No. 85 in the name of Ishmael Chelang'a. The court found the Plaintiffs' document tampered with and their title unsupported by the register, whereas the 4th Defendant traced its title through Nkaissery's registered transfer.
Whether the Plaintiffs were in possession of the suit property since 1996
The Plaintiffs were never legally in possession; the 4th Defendant had been in possession since 1998
The Assistant Chief's letter supporting possession was written irregularly by an acting chief signing in the substantive chief's name, and the Deputy Registrar's site visit showed the iron structure was new. The evidence of the current and former chiefs of Ngata Location supported the 4th Defendant's occupation since its 1998 purchase.
Whether the certificate of title is conclusive proof of ownership
A certificate of title is prima facie evidence of ownership but can be challenged on grounds of fraud, misrepresentation, illegality, unprocedurality or corrupt scheme; the Plaintiffs' title failed this scrutiny
Applying sections 24, 25 and 26 of the Land Registration Act and Article 40(6) of the Constitution, the court held that titles must be traced to a lawful process. The 1st and 4th Defendants demonstrated the Plaintiffs' title had no root in the register, so indefeasibility did not protect it.
Whether allegations of fraud were proved
The court found the Plaintiffs' grant tampered with at entry no. 85; the Plaintiffs' title was thus fraudulently procured, and their allegations of fraud against the Defendants were not proved
Relying on the Chief Land Registrar's evidence that a photocopy could not produce a different bar code or altered entry, the court found the Plaintiffs' document had been tampered with to remove Nkaissery's name. The Plaintiffs did not join the late Nkaissery's estate, so allegations against him could not be determined.
Legal principles established
#- A registered proprietor whose title is under challenge must go beyond the instrument of title and prove the legality of how the title was acquired
- Where competing titles exist, the court must investigate from the root and uphold the title that conforms to procedure and can trace its root without a break
- Rights under Article 40 do not extend to property found to have been unlawfully acquired
Court orders
#- 1.The Plaintiffs' suit is dismissed with costs
- 2.Declaration that the 4th Defendant (2nd Plaintiff in the counterclaim) is the legally registered proprietor of L.R. No. 13287/99 situated in North Njoro Town within Nakuru County measuring approximately 20.24 Ha
- 3.Declaration that any title held by the Plaintiffs (1st and 2nd Defendants in the counterclaim) with respect to L.R. No. 13287/99 was acquired illegally
- 4.Mandatory injunction directing the 1st and 2nd Defendants in the counterclaim to forthwith vacate L.R. No. 13287/99
- 5.Mandatory injunction directing the 3rd Defendant (Chief Land Registrar) to cancel any and all titles issued to the Plaintiffs over L.R. No. 13287/99
- 6.Mandatory injunction directing the 5th Defendant (ADC) to cancel all titles and/or allocations issued to or held by the Plaintiffs over L.R. No. 13287/99
- 7.Permanent injunction prohibiting the Plaintiffs from trespassing on or otherwise interfering with the 4th Defendant's quiet possession of L.R. No. 13287/99
- 8.Costs of the counterclaim awarded to the defendants (1st and 4th Defendants)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act); property rights under Article 40 of the Constitution invoked by the parties
Relief refused
#Plaintiffs' declaration that they are the lawful registered proprietors of L.R. No. 13287/99
Their title was found to be unsupported by the mother title and obtained illegally and unprocedurally; suit not proved on a balance of probabilities
Plaintiffs' permanent injunctions, eviction order, cancellation of the 4th Defendant's title and general damages for trespass
The suit having failed, all reliefs sought in the plaint were refused; the court found the Plaintiffs were never legally in possession
Costs
Plaintiffs' suit dismissed with costs to the Defendants; the Plaintiffs (1st and 2nd Defendants in the counterclaim) to pay the costs of the counterclaim
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
this court finds that the plaintifis have not proved their case on a balance of probabilities and therefore the suit is dismissed with costs.
I do find that the defendants have proved their counterclaim on a balance of probabilities and do allow it in terms that the court issues a declaration that the 4th Defendant 2nd Plaintifi is the legally registered proprietor of all that parcel of land known as L.R. No.13287/99
The court further grants a mandatory injunction directing the 1st and 2nd Defendants in the counterclaim to forthwith vacate all that parcel of land known as LR. No.13287/99
the court issues a permanent injunction prohibiting the 1st and 2nd Defendants, their agents, servants or anyone acting on their instructions from further trespassing on or otherwise interfering with the Plaintifis' quiet possession of alI that parcel of land
there are no competing titles in this case as the plaintifis title is not supported by the mother tittle whereas the 4th defendant's title is supported by the mother title
the title produced by the plaintifi was obtained illegally and unprocedurally as it is not supported by the mother title
When a registered proprietor's title is under challenge, it is not suficient to dangle the instrument of title as proof of ownership.
Issues in the judgment
#The judgment inconsistently describes the Plaintiffs' title as founded on both Grant No. I.R 52014 and a certificate traceable to entry 149 of grant 40236, and the pleading numbering of parties shifts between 'plaintiffs' and '1st and 2nd Defendants' in the counterclaim, creating some ambiguity in the record
The 5th Defendant's submissions cite 'Dina Management Limited v County Government of Nairobi [2017] eKLR' which appears to be an erroneous citation of the 2021 Supreme Court Dina Management case
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar & another v Kulei & 2 others (Land Case E033 of 2023) [2025] KEELC 5916 (KLR)", Case Analysis (2025). Not stated in the judgment copy provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5916/eng@2025-08-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.