Maina v Kibubungi & 2 others (Environment and Land Case E036 of 2023) [2026] KEELC 2179 (KLR)

The Plaintiff did not merely rely on the title deed. He produced the original title, the green card, and gave a consistent account of acquisition from United Insurance Company Limited. His ownership was corroborated by the official land records and by the admission of DW1 that the Plaintiff was the registered owner prior to the impugned transfer. Applying Section 24(a), 25(1) and 26(1) of the Land Registration Act, Article 40(1) of the Constitution and Munyu Maina, the Court found a valid root of title.

The Plaintiff never executed any transfer and these assertions were unrebutted, the 1st Defendant having failed to testify. The signature on the transfer differed from the Plaintiff's known signature, PIN details were inconsistent, the Plaintiff retained the original title, and the transfer was effected through a replacement title obtained on an alleged loss disproved by production of the original. Applying the standard of proof in Kinyanjui Kamau and Elijah Makeri Nyang'wara, fraud was strictly proved; a forged instrument is void ab initio.

The replacement title was issued on the basis of an affidavit alleging loss, a police abstract and a gazette notice without independent verification, yet the Plaintiff produced the original title in Court, disproving the alleged loss. The Registrar's role is not merely mechanical; the office bears a statutory duty to safeguard the integrity of the register. By failing to verify the alleged loss and facilitating issuance of a parallel title, the Registrar acted unprocedurally and in breach of statute and Article 47 of the Constitution.

The validity of the subdivisions depends entirely on the validity of the 1st Defendant's title. Following MacFoy and Funzi Island, a void act is a nullity and a title founded on fraud cannot be a root of a valid title. Once the root title was declared void, the subdivisions arising therefrom necessarily fell with it.

Trespass consists of unjustifiable intrusion upon land in possession of another. Having found the Plaintiff to be the lawful proprietor and the 1st Defendant's title void, any entry, occupation or dealings by the 1st Defendant lack legal basis. Park Towers was applied to establish that entry upon land in possession of another without lawful justification is trespass.

Section 80(1) of the Land Registration Act permits rectification where registration was obtained by fraud or mistake. Given findings of fraud, illegality and procedural impropriety, this was a proper case for rectification. However, although trespass was established, no specific evidence was tendered to enable precise assessment of mesne profits, so the Court declined mesne profits and instead awarded nominal general damages.