Cheboswony & another v Ngeno & 4 others (Environment and Land Case 96 of 2014) [2025] KEELC 7027 (KLR)

2. d. Costs e. Interests at court rates. f. Any other or further relief deemed fit in favour of the Plaintifis. The 1st to 4th Defendants filed a further amended defence and counterclaim in which they sought the following reliefs: a. Mandatory orders of injunction do issue directing the Plaintifis to demolish the fence and all structures erected on the land parcels known as Sergoit/Koiwoptaoi Block 12 (Katalel)/393 and Sergoit/Koiwoptaoi Block 12 (Katalel)/394 and voluntarily vacate therefrom within fourteen (14) days from the date of the judgment and, in default, they be forcefully evicted under the supervision of the OCS Naiberi Police Station at the Plaintifis’ costs. b. Orders of permanent injunction restraining the Plaintifis either by themselves or through their agents, employees and/or servants from encroaching, trespassing onto, wasting, ploughing, growing crops, fencing, erecting structures or otherwise interfering with the 1st and 2nd Defendants’ use and quiet possession of those land parcels known as Sergoit/Koiwoptaoi Block 12 (Katalel)/393 and Serogit/ Koiwoptaoi Block 12 (Katalel)/394 respectively. c. Costs of the suit and the counterclaim and interest thereon at court rates. Background 3. The history of the suit property can be traced to a parcel of land known as Katalel Koiwoptaoi Block 12 measuring 1,490 acres. This land initially belonged to a European Settler. The land was acquired from the settler through the assistance of the Late Hon. Biwott. Four youth groups from Keiyo were formed. They were Irong Mutei Youth Group, Kipsoen/Kapteren Youth Development Group, Chebior Youth Group and Kittany Youth Group which were allocated 220 acres, 380 acres, 160 acres and 200 acres respectively. The Hon. Biwott took 500 acres. 4. Members of each group were to contribute money which was paid to their respective youth groups. The members were to be shareholders of their group and each share of Kshs.5,000/= was equal to one acre of land. The Plaintifis who were related contributed under the Kipsoen/Kapteren Youth Development Group. 5. When it came to sharing of the land to the various youth groups, it turned out that people who had not paid were allocated land resulting in those who had paid missing out. There were refunds to those who missed out and some were moved to another farm called Coetzee. In 2005, a committee which was set up to investigate the issue compiled its report dated 5th April, 2005. The committee recommended that the Plaintifis were to cede 2 acres each on grounds that they had been unfairly given a bigger share. The committee further recommended that a further two acres were to be taken from the Plaintifis for a school. 6. The oficials of the farm then sold the two acres each recovered from the Plaintifis to the 1st and 2nd Defendants who each bought two acres. The 1st Defendant’s two acres were registered as LR. No. Sergoit/Koiwoptaoi Block 12 (Katalel)/393 and the 2nd Defendant’s two acres were registered as LR No. Sergoit/Koiwoptaoi Block 12 (Katalel)/394. This is what triggered the filing of this suit in which the Plaintifis are seeking to recover the four acres which were unlawfully taken from them and sold to the 1st and 2nd Defendants. The 2nd Plaintifi died on 30th August, 2021 and was substituted by his son Patrick Chemwolo. The 1st Plaintifi is sister in law to the 2nd Plaintifi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7027/eng@2025-10-16 2

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Plaintifis’ case 7. The Plaintifis’ case is that the 1st Plaintifi contributed a total of Kshs.40,130/= to the Kipsoen/ Kapteren Youth Development Group. Membership fees was Kshs.130/=. The 2nd Plaintifi contributed a total of Kshs.30,130/=. As they were related, they were shown a combined acreage of 15 acres on the ground where they took possession and are occupying todate. Unknown to them their 15 acres were subdivided into four portions. One portion measuring 0.728 which is equivalent to 2 acres was registered in the 1st Defendants’ name being Sergoit/Koiwoptaoi Block 12 (Katalel)/393. The second portion measuring 0.728 which is equivalent to 2 acres was registered in the 2nd Defendant’s name being Sergoit/Koiwoptaoi Block 12 (Katalel)/394 (suit properties). 8. It is the Plaintifis’ case that the suit properties were fraudulently taken from them and given to the 1st and 2nd Defendants with connivance from the 3rd and 4th Defendants who were oficials of the farm and youth groups respectively. The Plaintifis state that though the 1st and 2nd Defendants have titles to the suit properties, they have never taken possession as it is the Plaintifis who are in occupation. 9. The Plaintifis were given titles for Sergoit/Koiwaptaoi Block 12 (Katalel)/392 and 395 respectively but they declined to go and pick the titles until the issue of the suit properties is sorted out. The Plaintifis’ original plot numbers were plot 2 and 3 which were together as one block but which were interfered by the hiving of the suit properties which are in between plot 392 and 395. First Defendant’s Case 10. The 1st Defendant stated that he purchased parcel 393 from the oficials of Kipsoen/Kapteren Youth Development Group at a consideration of Kshs.280,000/=. He stated that the oficials of the group wanted money to refund those who had paid for land but had missed out. He produced a sale agreement dated 2nd August, 2009, a copy of title deed and receipt for Kshs.220,000/=. He stated that he has never taken possession of the land. Second Defendant’s Case 11. The 2nd Defendant testified that he was a member of Kittany Youth Group. He had been given 2 acres which was later given for the construction of Kimuchi Primary School. He was relocated to Kipsoen Kiptaren youth Development Group where he was given two acres. He processed and obtained title for parcel 394 but he has never taken possession as his attempt to take possession were thwarted by the Plaintifis who chased him away. Third Defendant’s Case 12. The 3rd Defendant testified that he was appointed treasurer of Kipsoen/Kapteren Youth Development Group when members started contributing for shares. Each share was going for Kshs.5,000/= and was equivalent to one acre. He collected Kshs.1,900,000/= from the members of Kipsoen/Kapteren Youth Development Group which amount was equivalent to 380 acres. He remitted the money to the land owner. 13. A register was drawn in 1992 and members were allocated land according to the amount contributed. When the surveyor came to subdivide the land, priority was given to members who had contributed upto February, 1996. Members who had contributed after February, 1996 were transferred to Coetzee Farm. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7027/eng@2025-10-16 3

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14. It turned out that some directors of the farm like Chief Kilanya had collected over Kshs.400,000/= from members but did not remit the money. A committee was formed under the chairmanship of Cosmas Kandie Cheptum to investigate the issue. The Committee found out that certain individuals including the Plaintifis were to surrender certain acreages. In the case of the Plaintifis, the committee took from each two acres. According to him, the Plaintifis were entitled to one acre each. He stated that the Plaintifis should be given one acre each and the rest of the money paid refunded to them. He stated that he was later elected secretary of the four youth groups. Fourth Defendant’s Case 15. The 4th Defendant testified that he was the chairman of the four youth groups. He stated that they acquired Katalel Koiwoptaoi Block 12 measuring 1,490 acres which was shared among the four youth groups. Each member was supposed to pay Kshs.5,000/= for one acre and payment was to be made through the respective youth groups. Payment was made between 18th January, 1984 upto 1st February, 1986. The Fifth Defendant’s Case 16. The 5th Defendant through DW1 Elizabeth Nyakundi testified that the role of the 5th Defendant was to process title based on the list presented to them by the oficials of the Katelel Farm. The register was given to them on 28th August, 2007. She testified that parcel No. 393 is in the name of the 1st Defendant and the acreage is 0.728 parcel 394 was registered in the name of the 2nd Defendant and the acreage is 0.728. She produced a certified copy of members register as defence exhibit 1. There were restrictions placed against the two titles by the chief. The restriction in respect of parcel 393 remained in force until 29th June, 2021 when it was removed but the Land Registrar placed a restriction to last until this suit was determined. 17. There was a restriction placed against title to parcel 394 by the area chief. The restriction was removed on 29th June, 2021 but the Chief Land Registrar placed a restriction to last until conclusion of this case. The witness testified that parcel 392 was recorded in favour of the 1st Plaintifi and was1.456 hectares. Parcel No. 395 was recorded in favour of the 2nd Plaintifi and was 1.820 hectares. Parties Submissions 18. The Plaintifis filed their submissions dated 3rd December, 2024. The 1st to 4th Defendants filed their submissions dated 1st March, 2025. The 5th Defendant filed submissions dated 4th March, 2025. Plaintifis’ Submissions 19. The Plaintifis submitted that they had proved their case. They submitted that they had proved that there was fraud involved when their land was subdivided into four portions two of which were given to the 1st and 2nd Defendants. The Plaintifis relied on the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 others (2015) eKLR where it was held as follows: “ It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a stand above a balance of probabilities but not beyond reasonable doubt. One of the authorities produced before us has this passage from Bullen & Leake & Jacobs, precedent on pleadings 13th Edition at page 427: “where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud upon the pleadings, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7027/eng@2025-10-16 4

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and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged (Wallingford v Mutual Society (1880) 5 App Cas.685, 701, 709, Garden Neptune v Occident (1989) Lloyd’s Rep 305, 308). The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see Lawrence V Lord Norreys (1880) 15 App. Cas. 210 at 221). It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly prove (Davy V Garrett (1878) 7 Ch.D. 473 AT 489). “General allegations, however strong may be the words in which they are stated, are insuficient to amount to an averment of fraud of which any court ought to take notice”. 20. The Plaintifis also relied on Section 26 (1) of the Land Registration Act which provides as follows: “ The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts 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 that proprietor shall not be subject to challenge, except— 21. a. On the ground of fraud or misrepresentation to which the person is proved to be a party; or b. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. The Plaintifis further relied on the case of R. G. Patel vj Laiji Makanji (1957 EA) 314 where it was held as follows: “ Allegations of fraud must be strictly proved: although the standard of proof may not be so as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.” 22. The Plaintifi further relied on the definition of fraud in Black’s Law Dictionary where it was defined as follows: “ Fraud consists of some deceitful practice of wilful device, resorted with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken to another”. The 1st to 4th Defendants’ submissions 23. The Defendants submitted that the Plaintifis had failed to prove ownership of LR. Nos. Sergoit/ Koiwoptaoi Block 12 (Katalel)/393 and 394 and as such their suit should be dismissed with costs. The 1st Defendant is said to be a purchaser for same and that there is no evidence to show that he was https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7027/eng@2025-10-16 5

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involved in the fraud. The Defendants submitted that the titles held by 1st and 2nd Defendants can only be defeated as provided for under Section 26(1) of the Land Registration Act. 24. The Defendants relied on the case of Civil Appeal No. 312 of 2012 Emfil Limited v Registrar of Titles Mombasa & 2 others (2014) eKLR where it was held as follows: “ Allegations of fraud are allegations of a serious nature normally required to be strictly pleaded and proved on a higher standard than the ordinary standard of balance of probabilities”. 25. The 1st Defendant submitted that he was a bonafide purchaser for value. He relied on the case of Katende v Harider & Company Limited (2008) 2 E.A 173 where it was held as follows: “ For the purposes of this appeal, it sufices to describe a bona fide purchaser as a person who honestly intends to purchase the property ofiered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, (he) must prove that: a. He holds a certificate of title; b. He purchased the property in good faith; c. He had no knowledge of the fraud; d. He purchased for valuable consideration; e. The vendors had apparent valid title; f. He purchased without notice of any fraud; g. He was not party to any fraud. Fifth Defendant’s Submissions 26. The 5th Defendant submitted that no fraud was proved against him. Reliance was placed on the case of Central Bank of Kenya Ltd v Tmst Bank Ltd & 4 others NAI Civil Appeal No. 215 of 1996 (UR), Ndolo v Ndolo (2008) 1klr 742 and Rosemary Wanjiku Muriithi v George Maina Ndinwa Nyeri Civil Appeal No. 9 of 2014 (2014) EKLR. 27. The 5th Defendant submitted that he relied on documents submitted to him by the oficials of Katalel Farm. These documents were never objected to by any person. His duty was to issue title which he did. Analysis and Determination 28. I have considered the evidence by the Plaintifi, the evidence by the Defendants as well as the submissions of the parties. The issues which fall for determination are firstly, whether the Plaintifis paid for their shares and if so what acreage were they entitled to get. Secondly, was it a requirement that those who had made payment as at 1st February, 1986 were the only ones to be allocated land at the Katalel Farm. Thirdly, was it right for the oficials of Kipsoen/Kapeteren to take away any land from the Plaintifis and give it to the 1st and 2nd Defendants. Fourthly, are the Plaintifis and Defendants entitled to their respective claims in the main suit and counterclaim respectively. Whether the Plaintifis paid for their shares and if so what acreage were they entitled to get. 29. There is no contention that for one to be eligible for allocation of land, one had to be a member of one of the youth groups by paying a membership fees of Kshs.130 and make contributions through https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7027/eng@2025-10-16 6

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the respective youth group. There is also no contention that one share was equivalent to Kshs.5,000/ = and which entitled a member to one acre. The Plaintifis were members of Kispoen/Kapteren Youth Group who fully paid membership fees of Kshs.130/=. 30. The 1st Plaintifi paid Kshs.5,000/= on 29th September, 1985, Kshs.30/= on 8th October, 1985, Kshs.5,000/= on 25th March, 1986, Kshs.5,000/= on 6th April, 1986, Kshs.15,000/= on 2nd September, 1986 and Kshs.10,000/= on 27th September, 1987 making a total of Kshs.40,130/=. The 2nd Plaintifi paid Kshs.5,000/= on 29th September, 1985, Kshs.130/= on 8th October, 1985, Kshs.5,000/= on 25th March, 1986, Kshs.10,000’= on 2nd September, 1986, and Kshs.10,000/= on 27th September, 1997 making a total of Kshs.30,130/=. 31. The evidence adduced by the Plaintifis is that they are entitled to 8 acres and 7 acres for the 1st and 2nd Plaintifis respectively. The 1st Plaintifi produced receipts showing that she paid Kshs.40,000/= for shares. She was therefore entitled to 8 acres. The 2nd Plaintifi produced receipts showing that he paid Kshs.30,000/=. He was therefore entitled to 6 acres. The combined acreage of the Plaintifis was therefore 14 acres and not 15 acres which they are claiming. Was it a requirement that those who had made payments as at 1st February, 1986 were the only ones to be allocated land at Katalel Farm 32. The oficials of Kispsoen/Kapteren Youth Development Group that is the 2nd and 3rd Defendants testified that it is only those who had paid by 1st February, 1986 who were to get land at Katalel Farm. They stated that the Plaintifis were only entitled to get one acre each as they had only paid for one share each as at 1st February, 1986. There was no evidence adduced by the 2nd and 3rd Defendants that that was a requirement that only those who had paid as at 1st February, 1986 were the only ones to get land at Katalel Farm. If indeed this was a requirement, then the 1st and 2nd Defendants were not entitled to get land at Katalel Farm as the 1st Defendant purportedly purchased two acres on 28th January, 2009. The 2nd Defendant testified that his two acres were taken for the construction of Kimuchi Primary school and he was relocated to land meant for Kipsoen/Kapteren Youth Development Group where he was given 2 acres. 33. There was no evidence adduced by the 2nd Defendant to show that he had been allocated land at Kittany Group which was taken and that he was relocated to land meant for Kipsoen/Kapteren Youth Development Group. The evidence on record shows that the 1st and 2nd Defendants obtained their titles on the same day that is 16th December, 2012. 34. The committee which was established to investigate the issue of people who had more land than what they had paid for and those who had paid but did not get land shows that their mandate was to investigate payments made between 1984 and 1987. This therefore shows that there was no requirement that those who had paid as at 1st February, 1986 were the only ones who were to get land at Katalel Farm. The report dated 5th April, 2005 shows that there were people who were allocated land at Katalel Farm in 1991. 35. The allegation by the 3rd and 4th Defendants that the Plaintifis were only entitled to one acre each was a false narrative by them to justify their claim that only those who had paid as at 1st February, 1086 were entitled to land. This false narrative was due to the fact that they had noticed that as at 1st February, 1986, the Plaintifis had only paid Kshs.5,000/= each. This false narrative is displaced by the report of 5th April, 2005 which shows that allocation of land was going on as at1991 and the 1st and 2nd Defendants were illegally allocated land meant for the Plaintifis which later than the purported deadline of 1st February, 1986. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7027/eng@2025-10-16 7

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Was it right for the oficials of Kipsoen/Kapteren Yough Development Group to take the Plaintifis’ land and give it to the 1st and 2nd Defendants 36. The Plaintifis had produced receipts showing that they were entitled to 14 acres. During the investigation of the committee set up in December, 2003 whose report was given in 2005, there were no adverse findings on their payments. The committee stated that they received preferential treatment and were allocated more land. This finding had no basis. They had paid for their 14 acres. There was no limit to the land a member was to get. The committee which was chaired by Cosmas Cheptum who was chairman of Kipsoen/Kapteren Youth Development Group resolved to repossess 2 acres from each of the 1st and 2nd Plaintifis. The committee further repossessed another two acres for a school which was not specified. The Plaintifis however had no issue for land taken for the school. 37. The map which the 1st Plaintifi produced showed what the Plaintifis were occupying a huge block but the 1st and 2nd Defendants were given part of that block. The evidence adduced was that the Plaintifis are still occupying the land including the land which was given to the 1st and 2nd Defendants. The Plaintifis’ land was unlawfully subdivided and part of it given to the 1st and 2nd Defendants. There is no clear evidence from the 1st Defendant that he lawfully purchased two acres for which he has title. His evidence before court on cross examination is that he paid a sum of Kshs.200,000/= to the account of the 3rd Defendant. He claimed that he paid Kshs.20,000/= in cash. He testified that he purchased the 2 acres for Kshs.280,000/=. The balance was Kshs.60,000/=. He did not give evidence as to whether he cleared the balance of Kshs.60,000/=. 38. The 1st Defendant on cross examination stated that he paid Kshs.200,000/= to the account of the 3rd Defendant. The 3rd Defendant was treasurer of Kapsoen/Kapteren Youth Development. A receipt for Kshs.220,000/= was issued to the 1st Defendant by Kipsoen/Kapteren Youth Development Group yet the money was paid to an individual’s account. There was no evidence adduced to show that the 2nd Defendant had paid for two shares for two acres at Kittany Group and that he surrendered the two acres to the school in exchange for two acres at Kipsoen/Kaptern Youth Development Group. 39. There was absolutely no justification for taking away land from the Plaintifis and giving it to the 1st and 2nd Defendants. It is clear that the 1st and 2nd Defendants illegally obtained two acres each from land belonging to the Plaintifis. This was facilitated through collusion by the oficials of Kipsoen/Kapteren Youth Development Group. One cannot purport to purchase land from a group and deposit money in an account belonging to an individual. The 1st Defendant annexed a payment voucher from Keiyo Teacher’s Sacco Society Limited showing that he had withdrawn his shares worth Kshs.200,000/=. A cheque of similar amount was written in favour of the 3rd Defendant. There was no evidence adduced to show whether the 1st Defendant ever withdrew his shares from the Sacco and if the purported cheque in favour of the 3rd Defendant was ever drawn and banked. As there was no justification to take away land from the Plaintifis and giving it to the 1st and 2nd Defendants, I find that the decision to take away the Plaintifis’ land was null and void and the allocation of the same to the 1st and 2nd Defendants was tainted with illegality and cannot therefore stand. The persons who were liable to have their land repossessed were those who did not demonstrate that they had paid for the land which had not been allocated to them. This was not the case with the Plaintifis who had paid for their land and are occupying it on the ground todate. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7027/eng@2025-10-16 8

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Are the Plaintifis and 1st and 2nd Defendants entitled to their respective claims in the main suit and counterclaim respectively. 40. The evidence which has been adduced shows that there was no justification to repossess any land from the Plaintifis. The unlawfully repossessed land from the Plaintifis was unlawfully sold to the 1st Defendant through a corrupt scheme and allocated to the 2nd Defendant without any evidence to justify the allocation. The oficials of Kipsoen/Kapteren Youth Development Group had no land to sell and allocate the 1st and 2nd Defendants respectively. The 1st and 2nd Defendants were part of the corrupt scheme. As for the 1st Defendant, he paid for land and paid money to an individual’s account. As for the 2nd Defendant, he was aware that he had not surrendered his two acres to Kimuchi Primary school, yet he accepted to be given two acres belonging to the 1st and 2nd Plaintifis. The titles given to the 1st and 2nd Defendants cannot therefore stand. They ought to be nullified and the same revert to the Plaintifis. 41. The 1st and 2nd Defendants are seeking for eviction from the land which was unlawfully given to them and injunctive orders against the Plaintifis. This cannot be granted as the Plaintifis have demonstrated that they are entitled to the land which was unlawfully taken from them. 42. The evidence adduced by DW1 Elizabeth Nyakundi is that according to their records, plot 395 which is 1.820 hectares is in the name of the 2nd Defendant. Plot 392 which is 1.456 hectares is in the name of the 1st Plaintifi. The combined acreage of 392 and 395 is about 8 acres. If you add the 2 acres each of the 1st and 2nd Defendants and the 2 acres for the school, the total comes to 14 acres and that is what the Plaintifis paid for. They cannot therefore be evicted from what legally belongs to them. Disposition 43. From the above analysis, it is clear that the Plaintifis have proved their case on a balance of probabilities. I allow their claim in terms of prayers (a) (b) (c) (d) and (e) of the amended amended plaint dated 11th February, 2019. The 1st and 2nd Defendants’ counterclaim is dismissed with costs to the Plaintifis. ...................................................................... HON. E. O. OBAGA JUDGE JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 16TH DAY OF OCTOBER, 2025. In The Presence Of: Mr. Cheptarus for Plaintifis Mr. Keter for 1st to 3rd Defendants Court assistant - Nelima https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7027/eng@2025-10-16 9

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