Brian Chebii Kipkoech & 4 Others v Daniel Wambua Mukuvi

Mwaluko & Anr as 3rd parties AND BY COUNTERCLAIM Daniel Wambua Mukuvi (Suing as the personal representative of the Estate of Mary Mbula Mukuvi(Deceased) vs.David Mwose Mwaluko and Aberdeen Properties Limited & Others) 1. To put the appeal in context, in the plaint dated 30 April 2018, the appellants sued the respondent for trespass over land parcel nos. MAVOKO TOWN BLOCK 2/14655, 14757, 14685, 14714 and 14715 (suit land), which were allegedly and respectively owned by them. The appellants claimed that the respondent unlawfully interfered with the suit land by tampering with boundaries, encroaching, trespassing, and constructing an illegal structure, thereby violating their rights as registered owners and disrupting their peaceful enjoyment of the property. They sought the following reliefs: a) A declaration that the appellants were the respective owners of the suit land. b) A permanent respondent, injunction his servants, restraining agents the and/or family members from interfering with the appellants’ ownership of the suit land. c) An order for the restoration of beacons by the respondent. LA E049 OF 2025 JUDGMENT 2

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d) An order for the eviction and demolition of structures erected by the respondent on the suit land at the respondent’s expense, under the supervision of the officer commanding the nearest police station. e) Any other remedy as the honourable court may deem fit and applicable in the circumstances. f) Cost of the suit and interest at the court rates. 2. Upon service of the pleadings, the respondent filed a defence and counterclaim dated 19 April 2021, which was largely composed of denials and put the appellants to strict proof. In the counterclaim, the respondent, in his capacity as the personal representative and administrator of the Estate of Mary Mbula Mukuvi (“deceased”), sued the appellants and David Mwose Mwaluko and Aberdeen Properties, respectively, as 1st and 2nd defendants (“1st and 2nd defendants in the counterclaim”). Notably, the appellants also joined these defendants as 3rd parties in the plaint. 3. In the counterclaim, the respondent alleged that although a legitimate sale of 10 acres from Mavoko Town Block LA E049 OF 2025 JUDGMENT 3

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2/13212 (“mother parcel”), a subdivision of the original land known as Mavoko Town Block 2/184) was made by the deceased to the 1st and 2nd defendants in the counterclaim, these defendants fraudulently obtained and subdivided an additional 15 acres from the mother parcel, then transferred this non-purchased 15 acres to the 1st defendant in the counterclaim (a director of the 2nd defendant in the counterclaim). 4. The 1st defendant in the counterclaim subsequently divided the 15 acres into the suit land and other parcels without consent and subsequently transferred portions to others, including the appellants. The respondent asserted that these actions resulted in the deceased’s estate losing 15 acres unlawfully and that all subsequent titles derived from these subdivisions were illegal, amounting to a fraudulent deprivation of the deceased’s estate of its property. Therefore, the respondent sought the following reliefs: a. The appellants’ suit be dismissed with costs. b. A declaration that the registration of subsequent titles of property known as Mavoko Town Block 2/13212, including the properties known as Mavoko Town Block 2/14655, Mavoko Town Block 2/14685, LA E049 OF 2025 JUDGMENT 2/14757, Mavoko Town Mavoko Town Block 2/14714 Block and 4

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Mavoko Town Block 2/14715, registered in the names of the defendants in the counterclaim, was irregular, unlawful and fraudulent, and therefore null and void ab initio. c. An order for the cancellation of all subsequent titles of the subdivision of the property known as Mavoko Town Block 2/13212. d. The register in respect of the land known as Mavoko Town Block 2/13212 and/or any other subsequent subdivisions is to be rectified by deleting the counterclaim defendants’ and those of names all in the subsequent registered owners of the subdivisions, and by registering DANIEL WAMBUA MUKUVI as the personal representative of the deceased owner. e. An order of permanent injunction does issue restraining the defendants in the counterclaim, by themselves, their servants, employees, and agents from fencing, trespassing, constructing, alienating, encroaching, invading and/or in any other way properties interfering and/or dealing with known Mavoko Town Block as 2/13212 and all other subsequent titles upon subdivision, including the suit land. LA E049 OF 2025 JUDGMENT 5

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f. Costs and interest of the suit. 5. Pointedly, the lower court suit was consolidated and heard jointly with Mavoko ELC No. E041 of 2022, in which the respondent and his wife instituted proceedings against the appellants seeking redress in the form of damages arising from the unlawful demolition of their properties erected on the suit land, whereby the appellants filed a defence. 6. Subsequently, the case proceeded to a hearing before the trial court, where all the appellants gave evidence and were led by Daniel Felix Onyango Asewe, a surveyor and their evidence comprised witness statements, oral testimony and several produced documents. As for the respondent and his wife, Esther Wairimu Wambua testified and relied on witness statements, documentary evidence and oral evidence. 7. Thereafter, the learned trial magistrate framed five issues for determination in the impugned judgment, inter alia, i) Whether the appellants' acquisition of title to the suit land from the 1st and 2nd defendants in the counterclaim’s title no. Mavoko Town Block 2/14349 was lawful and free from fraud or procedural impropriety. ii) Whether the respondent and/or the estate of the deceased were entitled to restitution or protective remedies in respect of the suit land. iii) Whether the respondent unlawfully trespassed and interfered with the LA E049 OF 2025 JUDGMENT 6

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appellants’ suit land. iv) Whether the demolition of the respondents’ developments on the suit land was unlawful and whether the appellants were liable for any resulting loss and damage, and v) What reliefs could the court mete out to the parties? 8. In framing the issues, the learned trial magistrate made the following findings: the respondent had satisfactorily impeached the appellants’ titles to the suit land; the 1st and 2nd defendants in the counterclaim’s title no. Mavoko Town Block 2/14349 was acquired from the deceased by fraudulent and irregular means; the 1st and 2nd defendants in the counterclaim did not have good title to pass to the appellants; and, on a balance of probabilities, the respondent and his wife had proven their claim of trespass. In consequence, the learned trial magistrate entered judgment for the respondent thus: a. The appellants' suit is dismissed in its entirety with costs to the respondent. The costs shall attract interest from the date of this judgment. b. The court declares that the subdivisions made on land title no. Mavoko Town Block 2/13212 were illegal and irregular and therefore null and void. The subsequent LA E049 OF 2025 JUDGMENT 7

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titles issued pursuant to the irregular subdivisions are hereby cancelled. c. The Registrar of Land, Machakos County, is hereby directed to amend the register of title no. Mavoko Town Block 2/13212 to back in the names of MARY MBULA MUKUVI. d. A permanent injunction is hereby issued against the appellants and/or their agents and assigns to keep off the suit land no. Mavoko Town Block 2/13212. e. The appellants, jointly and severally, to pay to the respondent Kshs. 1,503,136.10 plus interest from the date of filing the counterclaim. 394 For the avoidance of doubt, the prayer for general and punitive damages is declined. f. The respondent is awarded costs in the counterclaim, and the same shall attract interest from the date of this judgment 9. Dissatisfied with this decision, the appellants appealed to this court and filed a memorandum of appeal dated 7 August 2025 and filed on the same date, where they questioned the impugned judgment on several grounds, and maintained that the learned trial magistrate erred in law and fact in: a. Failing to consider the entire oral and documentary evidence of the appellants. LA E049 OF 2025 JUDGMENT 8

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b. Failing to consider the appellants’ submissions on record. c. Holding that the appellants’ titles were illegitimate and should be cancelled. d. Failing to consider that the appellants proved their case on a balance of probabilities. e. Holding that the appellants’ titles were acquired through a fraudulent title, disregarding the high threshold of proving a fraud allegation. f. Failing to appellants take into consideration that the conducted sufficient due diligence before purchasing their respective parcels. g. Erring in law and in fact by disregarding the nondisclosure of material facts by the respondent in Machakos MCSUCC No. 4 of 2018; In the Matter of the Estate of Mary Mbula Mukuvi (Deceased). h. Disregarding the provisions of section 26(1) of the Land Registration Act 2012 that a certificate of title issued by the registrar is a prima facie evidence of ownership of land. i. Erring in law and in fact, by admitting the entirety of the respondent’s evidence j. Holding in favour of the respondent, who, despite pleading fraud, did not bring in the land registrar as a party to the suit in his counterclaim LA E049 OF 2025 JUDGMENT 9

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10. Accordingly, the appellants urged this court to set aside the impugned judgment and the judgment be entered in their favour as pleaded and prayed for in the plaint. 11. Before proceeding further, it is necessary to preliminarily address grounds (b), (h) and (j) of the appeal. Regarding ground (b), this court finds that the submissions were merely arguments and, moreover, the learned trial magistrate in the impugned judgment properly appreciated the law and judicial precedent, and the appellants were not prejudiced. In any case, the appellants have had an opportunity to present submissions before this court. 12. About grounds (h) and (j), this court finds that these issues were never pleaded, canvassed or made issues for determination before the trial court. Further, the appellants introduced a new ground of appeal in their submissions: that the respondent did not plead the specific particulars of fraud in his counterclaim. Consequently, this court finds that these new issues are untenable and were introduced on appeal. See the Court of Appeal decision of Kenya Hotels Ltd vs. Oriental Commercial Bank Ltd (Formerly known as The Delphis Bank Limited) [2019] eKLR and Thomas Openda v Peter Martin Ahn [1982] KECA 59 (KLR). 13. As this is a first appeal, the authority of this court is outlined in Order 42 Rule 32 of the Civil Procedure Rules. LA E049 OF 2025 JUDGMENT 10

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Additionally, as an appellate court, this court will not interfere with the impugned judgment unless it is satisfied that the learned trial magistrate misdirected herself and thereby reached an incorrect decision, exercised her discretion wrongly, and caused injustice through such erroneous exercise of discretion. The role of an appellate court was aptly described in the decision of Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR), thus: ‘Before adverting to the origin of the dispute it is appropriate to reiterate that before this Court can interfere with the exercise of a discretion of a judge, it must be shown that the judge has either erred in principle in his approach or has left out of account factors he ought to have considered or has taken into account some factors that he should not have considered or that his decision was wholly wrong, or that the decision was so aberrant that no reasonable judge, aware of his duty to act judicially could have reached it. These are the words of Sir Charles Newbold, P. expressed in this often-cited Mbogo & Another V. Shah [1968] EA 98 decision as follows: “…….a Court of Appeal should not interfere with the exercise of the discretion of a judge LA E049 OF 2025 JUDGMENT 11

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unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.” ‘ 14. Regarding the matter at hand, this court has carefully reviewed the records, the impugned judgment, and the written submissions filed by Ms. Kiama & Mugambi Advocates for the appellants, dated 21 May 2026, and by Ms. Munguti Ngulukyo & Co. Advocates for the respondent, dated 27 May 2026. It is unfortunate that, despite the court's clear directions on page limits, the appellants ignored them and submitted very lengthy submissions. Nonetheless, having considered the record, grounds of appeal and submissions, the issues that can adequately determine the grounds of appeal are (a) whether the appellants satisfactorily explained the root of the suit land and whether the process was tainted with fraud and illegality, and (b) whether the learned trial magistrate erred in finding the appellants were trespassers. We will now address these issues together. LA E049 OF 2025 JUDGMENT 12

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15. In regard to the first limb, as earlier stated, the learned trial magistrate appreciated the law on challenging the validity of title and the settled principles of root of title. From the counterclaim, it is clear that the respondent pleaded and particularised fraud and illegality. 16. The respondent’s challenge to the title documents on grounds of fraud and illegality by the appellants over the suit land is provided for in Section 26(1) of the Land Registration Act, 2012. This section states that a certificate of title issued by the Registrar upon registration or to a purchaser of land upon 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 and that the sanctity and indefeasibility of a property title are compromised only if fraud, misrepresentation, or other unlawful conduct is involved in acquiring the title. The provision explicitly states: “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, LA E049 OF 2025 JUDGMENT 13

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and the title of that 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; or b.Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 17. Jurisprudence is abounding on the issue. In the Supreme Court of Kenya decision of Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), which dealt with the issue of a title being an end product of a process, stated: “110.Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible. The first allocation having been irregularly obtained, HE Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co (1993) Ltd, who in turn could pass to the appellant. 111.Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits LA E049 OF 2025 JUDGMENT 14

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the rights so as not to extend them to any property that has been found to have been unlawfully acquired. 1st registered owner Having did found not that acquire the title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution. The root of the title having been challenged, as we already noted above, the appellant could not benefit from the doctrine of bona fide purchaser.” 18. Further, when dealing with the root of title, the Court of Appeal decision in Presbyterian Foundation v Kibera Siranga Self Help Group Nursery School [2023] KECA 371 (KLR), which the appellants have relied upon, stated as follows: “To be a good root of title, a document must satisfy each of the following requirements: (a) it must deal with or show the origin of the ownership of the whole legal and equitable interest in the land in question; (b) it must contain a recognizable description of the property; (c) it must not contain anything that casts any doubt on the title.” LA E049 OF 2025 JUDGMENT 15

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19. Regarding who bears the burden of proving the root of title, it is now settled that the burden rests on the holder of the title documents, in this case, the appellants. In the Court of Appeal decision of Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR), which both parties have relied upon, the court held: “…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 that is under challenge and the registered proprietor must go beyond the instrument and prove 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. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.” 20. Respecting the standard of proof in claims of fraud and illegality, the Court in Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR) held: - LA E049 OF 2025 JUDGMENT 16

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“53. It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt.” 21. As to whether a title document acquired by fraud or illegality, as claimed by the respondent, could be shielded by the defence of innocent purchaser for value, the Supreme Court of Kenya in Sehmi & another v Tarabana Company Limited & 5 others [2025] KESC 21 (KLR) affirmed Dina Management Limited (supra), which settled the controversy, and stated that an innocent purchaser for value without notice cannot be protected, saying: “72.In view of this court’s pronouncement in Dina Management Limited (supra), the answer as to whether the doctrine of innocent purchaser for value without notice protects a purchaser of an illegally or irregularly allocated title to public land lies squarely in the negative.” 22. Anchored in the law, the learned trial court was tasked with examining the appellants' claim of ownership, as the evidentiary burden shifted to them to prove that their title was lawful, valid, and free from any illegality. On considering the evidence before her asserted: - LA E049 OF 2025 JUDGMENT 17

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“[35] Flowing from the above, it is a finding of the court that the defendant was able to impeach the plaintiffs' titles. It is clear from the evidence that Mwaluko and the surveyors perpetrated fraud in causing Mbula's land to be subdivided. PW4 was hardpressed to explain the basis of their execution of the survey works. There is completely no evidence that Mbula was part of the process. [36] I find that the 1st & 2nd Third Party's title no. Mavoko Town Block 2/14349 was acquired by fraudulent and irregular means from Mbula. Consequently, 1st & 2nd Third Party did not have good title to pass Plaintiffs' title no.s Mavoko Town Block 2/14655, Mavoko Town Block 2/14757, Mavoko Town Block 2/14685, Mavoko Town Block 2/14714, and Mavoko Town Block 2/14715 were irregularly issued.” 23. This court has re-evaluated the evidence and concurs with the conclusion reached by the learned trial magistrate. To substantiate their claim of the root of the title, the appellants produced their title deeds, certificates of official searches, receipts, sale agreements pertaining to portions of Mavoko Town BLOCK 2/14349 or specific parcels of land, and a mutation form for Mavoko Town BLOCK 2/14349. These documents demonstrate that, with the exception of the 4th appellant, the appellants’ sale agreements pertained to LA E049 OF 2025 JUDGMENT 18

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portions of Mavoko Town BLOCK 2/14349. However, such land had ceased to exist by the time the agreements were executed, having been subdivided on 10 November 2010. One questions the due diligence exercised by the appellants, as they failed to conduct official searches on the suit land, which existed at the time of purchase. 24. Furthermore, some of the appellants failed to establish that they settled the full purchase price. They also failed to prove that the suit land was legally transferred to them, as they did not submit transfer forms, land control board (LCB) applications for transfer along with the requisite consent, stamp duty assessments and prove of payments, or present the application for registration of transfer and the relevant transfer forms. 25. The appellants also submitted multiple mutation forms. These documents indicate that the mother parcel was subdivided to produce Mavoko Town Blocks 2/14143 and 14144. Subsequently, Mavoko Town Block 2/14144 was subdivided to create Mavoko Town Blocks 2/14349 and 14350. Mavoko Town Block 2/14349 was subdivided to form several parcels of land, including the suit land. Paramount, all these mutation forms have not been registered and lack the necessary application to the Land Control Board (LCB) for consent to subdivide, as well as the requisite consent itself. This raises questions about how these subdivisions, originating LA E049 OF 2025 JUDGMENT 19

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from the parcel in question, were effected without proper legal process. 26. The respondents tabled before the trial court sale agreements entered into between the deceased and the 2nd defendant in the counterclaim, dated 10 November 2009, concerning five acres to be subdivided from the original parcel of Mavoko Town Block 2/184. This original parcel was subsequently subdivided on 18 January 2010 to create the mother parcel and Mavoko Town Block 2/13211. 27. Subsequently, an agreement was executed between the deceased and the 2nd defendant to the counterclaim, dated 20 January 2010, concerning five acres of the mother parcel. The subdivision of Mavoko Town Block 2/14143 from the mother parcel indicates that ten acres were transferred to the 2nd defendant in the counterclaim, which aligns with the terms of the agreements. 28. Following this, and concerning Mavoko in Town the absence Blocks of 2/14349 any dealings between the deceased and the 1st defendant to the counterclaim, who had it registered in his name on 28 September 2010, it was proper for the learned trial magistrate to make a finding of fraud. On the second limb, this court finds that she did not err in finding that the appellants, who lacked legitimate titles, were trespassers. The only remedy available to the appellants is to LA E049 OF 2025 JUDGMENT 20

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seek damages against the persons who sold the various parcels of land to them. 29. Therefore, for the above reasons and findings, the appeal is dismissed, and this court upholds the orders issued in the judgment rendered on 31 July 2025. Since it is trite law that costs follow the event, the respondent, who participated in these proceedings, shall have the costs of this appeal. Judgment accordingly. Delivered and Dated at Machakos this 29th day of September, 2026. HON. A. Y. KOROSS JUDGE 29.09.2026 Judgment delivered virtually through Microsoft Teams Video Conferencing Platform; In the presence of; Ms. Kanja Court Assistant. Mr. Okoli for Mr. Kiama for the appellants. Mr. Njeru for the proposed interested parties. Miss Ngulukyo for the respondent. LA E049 OF 2025 JUDGMENT 21

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