Ogutu & Oduol t/a Airport Lakeside Resort v Ali & 3 others (Environment and Land Case Civil Suit E007 of 2022) [2026] KEELC 771 (KLR)

through a banker’s cheque No. 10546 on 13th June 2012. The Plaintifis averred that after the said payment, they were told to wait for the lease and the lease certificate. 3. The Plaintifis averred that they had been in possession of the plot since 1999 and had been following up on the lease in respect thereof since 2012. The Plaintifis averred that through a letter dated 26th June 2019, the Chief Land Registrar informed the 2nd Defendant that the Plaintifis’ lease document was sent to the 2nd Defendant for registration on 6th June 2012. The Plaintifis averred that they were shocked to learn from the 2nd Defendant through a letter dated 5th October 2020 that the plot had been registered as Title No. Kisumu/Municipality Block 2/129 (hereinafter referred to as “the suit property”) in the name of the 1st Defendant, without any supporting documents. The Plaintifis averred that they sought to know the 1st Defendant in vain, and their efiorts to have the 2nd Defendant cancel the erroneous and fraudulent registration of the suit property in the name of the 1st Defendant had been frustrated by the 2nd Defendant. The Plaintifis averred that the 1st Defendant was registered as the owner of the suit property through fraudulent collusion between the 1st and 2nd Defendants. The Plaintifis pleaded several particulars of fraud against the 1st and 2nd Defendants. 4. The Plaintifis averred that the 3rd Defendant, as the head lessor(sic), had a statutory duty to supervise the actions of the 2nd Defendant concerning the registration of leases, which duty seemed to have been ignored and/or not adequately performed in respect of the registration of the lease for the suit property. 5. The Plaintifis sought judgment against the Defendants jointly and severally for; 1. A declaration that the registration of the 1st Defendant as the proprietor of Title No. Kisumu Municipality/Block 2/129 (the suit property) was fraudulent, illegal, irregular, null and void. 2. An order for the immediate cancellation of the 1st Defendant’s title over the suit property. 3. A mandatory injunction compelling the 3rd Defendant to issue and register a lease in favour of the Plaintifis over Title No. Kisumu Municipality/Block 2/129 and to issue a lease certificate to the Plaintifis. 4. A permanent injunction restraining the 1st Defendant from trespassing on the Plaintifis’ land parcel, Title No. Kisumu Municipality/Block 2/129. 5. Costs and interests at court rates. 6. The 2nd, 3rd and 4th Defendants entered appearance and filed general defences denying the Plaintifis’ claim. The 1st Defendant did not enter an appearance and, as such, did not defend the suit. At the trial, one of the Plaintifis, Walter Ominde Ogutu (PW1), adopted the contents of the amended plaint as his evidence in chief. He produced the documents attached to the Plaintifis’ list of documents filed on 29th March 2022, and the Plaintifis’ further list of documents filed on 13th December 2022 as P.EXH.1 and P.EXH. 2 respectively. PW1 stated that he wanted the court to assist them in getting back the suit property. He stated that when he did a search on the suit property, he found the property registered in the name of the 1st Defendant. 7. On cross-examination by the advocate for the 2nd and 4th Defendants, PW1 stated that, according to the letter of allotment, they were required to pay Kshs. 71,210/- within 30 days. He stated that the receipt that he produced as an exhibit was for Kshs. 108,800/- because when he went to the land ofice to make the payment, that was the amount that he was told to pay. He stated that he was not sure whether that payment was for two parcels of land. On re-examination, PW1 stated that he could not recall whether he was issued with a lease and a certificate of lease. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/771/eng@2026-02-17 2

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The submissions 7. The 2nd, 3rd and 4th Defendants did not give evidence at the trial. After the close of evidence, the Plaintifis’ and the 2nd and 4th Defendants’ advocates adopted the submissions they had filed earlier in the matter in the proceedings, which were set aside. The Plaintifis’ submissions 8. The Plaintifis had filed submissions dated 15th February 2024. The Plaintifis submitted that the 3rd Defendant did not participate in the proceedings apart from filing a statement of defence. The Plaintifis submitted that the issuance of a lease and a certificate of lease in respect of the suit property to the 1st Defendant was fraudulent. The Plaintifis submitted that the letter dated 26th June 2019 from the Chief Land Registrar to the 2nd Defendant confirmed that the lease for the suit property had been issued in favour of the Plaintifis. The Plaintifis submitted that their claim over the suit property was supported by a letter of allotment. The Plaintifis submitted that the suit property was registered in the name of the 1st Defendant without any supporting document. The Plaintifis submitted that in his letter dated 26th June 2019, the Chief Land Registrar admitted that the suit property belonged to the Plaintifis and that there were no documents in support of the registration of the suit property in the name of the 1st Defendant. The Plaintifis submitted that in the absence of evidence of how the 1st Defendant was registered as the owner of the suit property, the court must find that the said registration was unlawful, fraudulent, null and void. The Plaintifis submitted that they had satisfied all the conditions set out in their letter of allotment. The Plaintifis urged the court to find that they had proved their case against the Defendants and proceed to enter judgment in their favour as prayed in the amended plaint. The 2nd and 4th Defendants’ submissions 9. The 2nd and 4th Defendants had filed submissions dated 12th October 2023. The 2nd and 4th Defendants submitted that the main issue for determination in the suit was whether the Plaintifis were the owners of the suit property. The 2nd and 4th Defendants submitted that under Section 107 of the Evidence Act, the burden was on the Plaintifis to prove their title to the suit property. The 2nd and 4th Defendants submitted that the Plaintifis paid the allotment fees after the expiry of the 30 days within which the payment was to be made. The 2nd and 4th Defendants submitted that the payment was made after the ofier of the suit property to the Plaintifis had lapsed. The 2nd and 4th Defendants submitted further that in the receipt dated 22nd September 1999 presented in evidence by the Plaintifis, the Plaintifis claimed to have paid Ksh.108, 800/- which was significantly difierent from the amount indicated in the allotment letter of Ksh.71,010/-. The 2nd and 4th Defendants submitted further that even if the fees and other charges payable in respect of Title No. Kisumu/Municipality/Block 2/130, were taken into account, the total amount that was payable by the Plaintifis in this suit, and Milimani Resort Limited, which was allocated, Title No. Kisumu/Municipality/Block 2/130, the subject of ELC No. E006 of 2022 would have come to Kshs. 94,420/= and not Ksh.108, 800/=. The 2nd and 4th Defendants submitted further that the 1999 Part Development Plan presented in evidence by the Plaintifis showed that Plots marked C and D were the ones reserved for hotels, yet the Plaintifis’ letter of allotment and beacon certificate presented in evidence referred to Plot B in the said Part Development Plan as the Hotel site that was allocated to the Plaintifis. The 2nd and 4th Defendants submitted that the Plaintifis had not established that they were the lawful owners of the suit property, as the evidence presented to the court did not support that conclusion. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/771/eng@2026-02-17 3

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Analysis and determination 10. I have considered the pleadings, the evidence adduced by the Plaintifis, and the parties’ submissions. I am of the view that the main issues for determination in this suit are whether the Plaintifis are the lawful owners of the suit property, and whether the property was registered in the name of the 1st Defendant illegally and fraudulently. The other issue is whether the Plaintifis are entitled to the reliefs sought in their amended plaint. As I have mentioned earlier, the 1st Defendant did not defend the suit. The evidence tendered in court by the Plaintifis regarding the preparation of the Part Development Plan (PDP) for the suit property, allotment of the suit property to the Plaintifis on 7th January 1999, the payments they made for the allotment, the survey of the property and the correspondence they entered into with the 2nd Defendant and the Chief Land Registrar over the title for the suit property were not rebutted by the 1st Defendant who holds a title over the suit property and the other Defendants who defended the suit. The Plaintifis produced in evidence a letter dated 26th June 2019 from the Chief Land Registrar confirming that the suit property was to be registered in the Plaintifis’ names. The Plaintifis having proved that the suit property was allocated to them, they accepted the allotment, paid the requisite fees, surveyed the property, and had a parcel number given to it; the burden shifted to the 1st Defendant to prove that he had a better title to the suit property than the Plaintifis. The 1st Defendant’s registration as the owner of the suit property without more is not suficient evidence of superior title. 11. In Nairobi High Court Civil Suit No. 1024 of 2005(O.S), Milankumar Shah & 2 others v. The City Council of Nairobi & another, the court stated as follows: “ We hold that the registration of title to land is absolute and indefeasible to the extent firstly that the creation of such title was in accord with the applicable law and secondly where it is demonstrated to a degree higher than the balance of probability that such registration was not procured through fraud and misrepresentation to which the person or body which claims and relies on that principle has not himself or itself been part of a cartel which schemed to disregard the applicable law, and the public interest”. 12. In Hubert L. Martin & 2 Others v. Margaret J. Kamar & 5 Others[2016] eKLR, the court stated as follows: “ 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… Every party must show that their title has a good foundation and passed properly to the current title holder. With the nature of case at hand, I will need to embark on investigating the chain of processes that gave rise to the two titles in issue as it is the only way I can determine which of the two titles should be upheld.” 13. In Adan Abdirahani Hassan & 2 others v Registrar of Tiles & 2 others [2013] eKLR, the court stated as follows: “ 20. Article 40 of the current Constitution, just like section 75 of the repealed Constitution protects the right to own property. This Article should however be read together with the provisions of Article 40(6) which excludes the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/771/eng@2026-02-17 4

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protection of property which has been found to have been unlawfully acquired. This requirement recognises the fact that the Constitution protects certain values such as human rights, social justice and integrity amongst others. These national values require that before one can be protected by the Constitution, he must show that he has followed the due process in acquiring that which he wants to be protected.” 14. In Munyu Maina v. Hiram Gathiha Maina, Civil Appeal No.239 of 2009, [2013]eKLR, the Court of Appeal stated as follows: “ We state that when a registered proprietor’s root of title is under challenge, it is not suficient 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.” 15. There is no evidence before the court on how the 1st Defendant acquired the suit property. Even the 2nd and 4th Defendants, who defended the Plaintifis’ claim and who are the custodians of the land records at the Kisumu Land Registry, did not tell the court how the 1st Defendant came to be registered as the owner of the suit property. I find no merit in the arguments put forward by the 2nd and 4th Defendants in their submissions. The issues raised by the 2nd and 4th Defendants are based on fact but are unsupported by evidence. The court has noted that the Plaintifis paid for two properties at the same time, and that some of the items paid for were not in the letter of allotment. I can see no irregularity or illegality in the Plaintifis having paid more than what was set out in the letter of allotment. PW1 produced in evidence a letter dated 26th June 2019 from the Chief Land Registrar to the 2nd Defendant in which the Chief Land Registrar stated that the suit property was supposed to be registered in the name of the Plaintifis. Since the 1st Defendant did not defend the suit, there is no evidence before the court of how the 1st Defendant came to be registered on 8th October 2013 as the owner of the suit property, which was allocated to the Plaintifis on 7th January 1999. Even the 2nd Defendant, who defended the suit, did not place before the court any document from the Kisumu Land Registry to support the registration of the suit property in the name of the 1st Defendant. I am satisfied from the evidence on record that the Plaintifis are the lawful beneficial owners of the suit property and that the 1st Defendant acquired the property unlawfully and fraudulently. The suit property having been allocated to the Plaintifis and the Plaintifis having accepted the allocation and paid the required fees, the property was not available for allocation to the 1st Defendant. In Rukiya Ali Mohamed v. David Gikonyo Nambacha & another, Kisumu HCCC No. 9 of 2004, the court stated as follows: “ …. once allotment letter is issued and the allottee meets the conditions therein, the land in question is no longer available for allotment since a letter of allotment confers absolute right of ownership or proprietorship unless it is challenged by the allotting authority or is acquired through fraud, mistake or misrepresentation or that the allotment was out rightly illegal or it was against public interest. In other words, where land has been allocated, the same land cannot be reallocated unless the first allocation is validly and lawfully cancelled.” 16. I am satisfied that the Plaintifis have proved their case against the Defendants on a balance of probabilities and are entitled to the reliefs sought in their amended plaint. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/771/eng@2026-02-17 5

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Conclusion 17. In conclusion, I hereby enter judgment for the Plaintifis against the Defendants jointly and severally for; 1. A declaration that the registration of the 1st Defendant as the proprietor of the land parcel, Title No. Kisumu Municipality/Block 2/129 was fraudulent, illegal, and irregular, and as such, null and void. 2. An order for cancellation forthwith of the 1st Defendant’s title over the land parcel, Title No. Kisumu Municipality/Block 2/129. 3. A mandatory injunction compelling the 3rd Defendant to issue a lease in favour of the Plaintifis in respect of the land parcel, Title No. Kisumu Municipality/Block 2/129, in accordance with the letter of allotment dated 7th January 1999, subject to the Plaintifis paying any necessary fees or charges. 4. A mandatory injunction compelling the 2nd Defendant to register the lease in favour of the Plaintifis over the land parcel, Title No. Kisumu Municipality/Block 2/129 and issue the Plaintifis with a certificate of lease once the lease has been issued by the 3rd Defendant, subject to the Plaintifis paying any necessary fees or charges. 5. A permanent injunction restraining the 1st Defendant from trespassing on the land parcel, Title No. Kisumu Municipality/Block 2/129. 6. Costs of the suit. Written and signed at Kisumu by S. OKONG’O JUDGE DELIVERED, DATED AND COUNTERSIGNED AT KISUMU ON THIS 17TH DAY OF FEBRUARY 2026. E. ASATI JUDGE Judgment delivered virtually through Microsoft Teams Video Platform in the presence of: for the Plaintifi for the 2nd and 4th Defendants for 3rd Defendant -Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/771/eng@2026-02-17 6

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