Analysis and determination
8.Upon consideration of the Petition, respective Affidavits, testimonies of the witnesses and rivalling submissions, the following are the issues for determination:
- Whether the Interested Parties fraudulently acquired title to land parcel number Kajiado/Kaputiei South/1915.
- Whether the title to land parcel number Kajiado/Kaputiei South/1915 in the name of the Interested Parties should be cancelled and the same issued to the Petitioner.
- Whether the Petitioner is entitled to the orders sought in the Petition.
9.As to whether the Interested Parties fraudulently acquired title to land parcel number Kajiado/Kaputiei South/1915.
10.The Petitioner claims the Interested Parties fraudulently acquired title to the suit land which fact the Interested Parties deny. It was the Petitioner’s contention that the 3rd Respondent allocated the Interested Parties the suit land yet he had been residing thereon for over 20 years and this was contrary to his legitimate expectation. Further, that the Land Disputes Tribunal awarded him the land and the said Award was adopted as Judgment and Decree of the Court. DW1 representing the 3rd Respondent explained that when the Group Ranch was being subdivided and distributed to its members, each member was supposed to get at least two hundred (200) acres. He testified that different members were allocated parcels of land in different places from where they had initially resided. It emerged in evidence that the Petitioner was allocated two hundred (200) acres of land and he took his title after which he sold a portion of fifty (50) acres to a third party and he is now claiming the suit land. The Interested Parties contended that they had been allocated only fifty (50) acres of land as orphaned members and the said land is where their grandmother was buried which fact was disputed by the Petitioner. The first issue in this instance is whether the Petitioner pleaded fraud as against the Interested Parties. On perusal of the Petition, I note the Petitioner did not plead and particularize fraud as against the Interested Parties. Further, in the evidence tendered in court, the Interested Parties actually demonstrated how they were allocated the suit land which averments were supported by DW1, a representative from the Group Ranch.
11.In the case of R. G. Patel v. Lalji Makanji  EA 314 the former Court of Appeal for Eastern Africa stated thus:
12.See the case of John Mbugua Gitau vs Simon Parkoyiet Mokare, Nkama Group Ranch and 5 others (2014) eKLR.
15.While in the case of Joseph N.K. Arap Ng’ok V Moijo Ole Keiwua & 4 Others  eKLR, where the Court of Appeal held that:
16.Further, in Civil Appeal No. 246 of 2013 Arthi Highway Developers Limited Vs West End Butchery Limited and Others, the Court of Appeal expressly stated thus:
17.In this instance, I note the Petitioner except for complaining that the Interested Parties were allocated land where he used to previously reside, failed to tender any evidence to prove how the Interested Parties acquired title to the suit land fraudulently as required under Sections 107 of the Evidence Act and 26(1) of the Land Registration Act. From the averments of the Interested Parties including testimony of DW1, I find that they indeed explained the root of their title as the same emanated from the 3rd Respondent. In the circumstances while associating myself with the decisions cited above and relying on the legal provisions quoted, I find that the Interested Parties did not acquire the suit land fraudulently as claimed. On whether the Interested Parties have trespassed on the Petitioner’s land, based on my findings above, I find that they have not trespassed on this land which they own.
18.On whether the Interested Parties title to the suit land should be cancelled and the Petitioner registered as its owner. I will refer to Section 143 of the Registered Land Act (repealed) which was in place when the Interested Parties acquired their title, and it provides that:(1)Subject to subsection (2), the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration (other than a first registration) has been obtained, made or omitted by fraud or mistake. (2) The register shall not be rectified so as to affect the title of a proprietor who is in possession and acquired the land, lease or charge for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.’ These provisions are replicated in section 80 of the Land Registration Act which provides that: ‘(1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.(2)The register shall not be rectified to affect the title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.”
20.Since the Interested Parties proved that they were allocated the fifty (50) acres of land by the 3rd Respondent which is the Group Ranch. Further, the exercise was undertaken with consent of the members as this was community land, noting that the Petitioner obtained his title for the two hundred (200) acres and has never surrendered it back to the 3rd Respondent but has even proceeded to sell 50 acres therefrom, I opine that the Petitioner seeks to gain twice and has come by way of Constitutional Petition yet his claim falls within the ambit of Civil Law. In the circumstance, I find that the Petitioner has not fulfilled the tenets that require for cancellation of the Interested Parties’ title and will hence not decline to do so.
21.On whether the Petitioner’s rights have been violated by the Respondents including Interested Parties, I wish to refer to the case of Mumo Matemo v Trusted Society of Human Rights alliance  eKLR, where it was held that:
22.The Petitioner’s claim against the Respondents and Interested Parties contains certain inconsistencies. It is trite that for a party to claim his rights have been violated, he has to plead the same with precision and demonstrate how it was conducted. In this instance, I note the Petitioner actually admits that he acquired title to his two-hundred-acre land and is currently residing thereon. Further, that the Land Disputes Tribunal was actually wrong in their decision to cancel the Interested Parties title. The Petitioner further contends that he had legitimate expectation from the 3rd Respondent to be allocated land where he used to reside.
23.In the 4th Edition, Vol. 1(1) at page 151, paragraph 81 of Halsbury's Laws of England, legitimate expectation is outlined as follows:
24.In the case of Invollate Wacike Siboe v Kenya Railways Corporation & another  eKLR, it was held that:
25.Based on the facts as presented while associating myself with the decision cited above, I find that the 3rd Respondent did not expressly state that it would allocate the Petitioner land where he used to reside. The Petitioner in his testimony actually admitted that there were some members who were actually moved when the 3rd Respondent proceeded to allocate land to its members. Further, that he buried his wife in the land he had been allocated. DW1 confirmed that many members were affected by the allocation as they were directed to move to their new parcels of land. In the foregoing, I find that the Petitioner has failed to demonstrate how the Respondents including the Interested Parties violated his rights including the right to legitimate expectation.
26.In the circumstances, I find the Petition unmerited and will proceed to strike it out.I direct each party to bear their own costs.