1.By a plaint dated 18th May 2020, Dickson Kiprop Kebut (herein after referred to as the respondent), instituted a suit in the lower court to wit Kabarnet PMC ELC Case No.33 of 2020 seeking judgment against William Rerimoi Lagat (hereinafter referred to as the appellant) for a declaration that he, the respondent, is the owner of plot number Kabarnet Municipality/628 measuring approximately 0.0449 hectares (hereinafter referred to as the suit property); a permanent injunction to restrain the appellant, his agents and/or servants from entering, leasing, selling, constructing and/or setting up any structure on the suit property; an order for eviction of the appellant from the suit property; costs of the suit; damages, mesne profits and interest.
2.The respondent’s suit was premised on the grounds that he is the registered owner of the suit property; that on or about 30th April 2020, the appellant without any colour of right invaded the suit property, fenced it off and erected temporary structures thereon.
3.Terming the activities of the appellant in the suit property trespass to land and prejudicial to him as the registered proprietor of the suit property the respondent instituted the suit mentioned herein above, seeking the reliefs listed herein above.
4.The appellant filed a statement of defence denying the allegations levelled against him and contending that he is the rightful owner of the suit property having been allocated it by the Commissioner of lands.
5.Terming the respondent’s acquisition of lease and certificate of lease in respect of the suit property fraudulent, the appellant, through the counterclaim sought judgment against the respondent for:-i.A declaration that he, the appellant is the lawful owner of the suit property;ii.A declaration that the process through which the respondent acquired the letter of allotment dated 24th February,1999, the lease dated 31st January, 2019 and the certificate of lease given on 4th February, 2020 for the suit property was fraudulent;iii.An order for revocation of the letter of allotment dated 24th February 1999; the certificate of lease given on 24th February, 1999 and the certificate of lease given on 4th February, 2020 to the respondent in respect of the suit property;iv.An order for the registration of the suit property in his favour;v.A permanent injunction restraining the respondent and/or his agents from interfering with his peaceful occupation and use of the suit property;vi.Any other relief that the honourable court may deem just to grant. (prayers/reliefs paraphrased).
6.The particulars of the pleaded fraud against the respondent and the land officials the respondent is accused of having colluded with in effectuating the fraud are particularized in paragraph 19 of the statement of defence and counterclaim thus:-i.The respondent presented a questionable letter of allotment to the Chief Land Registrar as a basis for issuance of a lease for the suit property;ii.The respondent purported to apply for allocation of the suit property when the same had already been allocated to the plaintiff;iii.The 4th defendant (Director of Surveys), acted on the letter of allotment issued to the respondent without ascertaining if the appellant had earlier been allocated the same plot;iv.Purporting to disregard and/or cancel the plaintiff’s letter of allotment for the suit land without justifiable cause;v.Purporting to cancel the appellant’s survey records for land parcel Karbanet Municipality/512 without reasonable cause;vi.Issuing lease and certificate of lease to the respondent who had failed to meet the terms and conditions of allotment;vii.Initiating the registration of the suit land under new particulars to wit Kabarnet Municipality/628 when the appellant had already been issued with the suit parcel number Kabarnet Municipality/512.
7.When the case came up for hearing, the respondent relied on his statement recorded on 28th May 2020 and produced the lease and certificate of lease issued to him as Pexbt 8 and 9 respectively. The other documents listed in his list of documents were merely marked for identification as he was unable to produce original documents in respect thereof.
8.Upon being cross examined by counsel for the appellant, the respondent inter alia acknowledged that he paid less consideration than the one indicated in the letter of allotment. He also admitted that he had no letter of request for survey; no beacon certificate and rent clearance certificate.
9.The foregoing notwithstanding, he maintained that his ownership documents in respect of the suit property are genuine.
10.The appellant relied on his statement dated 16th July, 2020 after it was adopted as his evidence-in-chief. He informed the court that the plot allocated to him and that allocated to the respondent are one on the ground; that he was the first one to be allocated the suit property; that he accepted the offer and after meeting the conditions set in the letter of offer, took possession of the suit property and effected developments therein.
11.The appellant produced the following documents in support of his case:-letter of allotment dated 6th January, 1998 (Dexbt 1); beacon certificate dated 24th April, 2012 (Dexbt 2); Part Development Plan (Dexbt 3); bundle of receipts for payments he made in respect of the suit property as Dexbt 4(a) to (k); clearance certificate as Dexbt 5; receipt for payment of Stand Premium as Dexbt 6; application for connection with water and the receipts in respect thereof, Dexbt 7(a) to (e); occupation certificate Dexbt 8.
12.The appellant informed the court that sometime in 2018 when he wanted to process title in respect of the suit property, he discovered that the title had been tampered with. He complained to land officials, National Land Commission and the Police. He produced the letter he wrote to the National Land Commission and Ministry of Lands and survey as Dexbt 9. He complained to the Police, DCI, vide OB No.29/24/04/2019. He wrote to the Land Registrar requesting him to restrict dealings with the suit property but the Land Registrar ignored him. He produced a copy of the caution as Dexbt 10. He also produced photographs of the developments he has carried out in the suit property as Dexbt 11 (a) to (d).
13.Maintaining that the respondent acquired his title fraudulently and without following the right channels, the appellant urged the court to grant him the reliefs sought in his defence and counterclaim.
14.At close of hearing, the respondent and the appellant filed submissions.
15.Upon considering the cases pleaded by the parties, the evidence and the submissions made in respect thereof, the Learned Trial Magistrate (LTM) inter alia observed/held:-
16.Dissatisfied with the judgment of the LTM, the appellant appealed to this court on 12 grounds that can be summarized to one broad ground namely, the LTM erred by allowing the respondent’s case and dismissing the appellant’s defence and counterclaim.
17.The appellant filed submissions dated 27th April 2023 in which he has identified the issues for the court’s determination as follows:-That the LTM erred by:-i.Holding that parties had allotment letters for the suit land;ii.Failing to hold that the defendant’s defence was not rebutted;iii.Disregarding the appellant’s evidence on the respondent’s act of fraud;iv.Allowing the respondent’s claim without sufficient basis;v.Failing to hold that the defendant’s counterclaim was not opposed;vi.Failing to find that the respondent’s title deed was fraudulently acquired;vii.Failing to analyze the appellant’s evidence before rejecting it;viii.What is the order as to costs.
18.On his part, the respondent filed submissions dated 17th May 2023, in which he identified the issues for the courts determination as follows:-a.Whether the LTM properly directed himself by holding that the respondent is the absolute rightful owner of the suit property; andb.Whether the LTM failed to consider the appellant’s counterclaim.
19.In exercise of the duty vested in this court as a first appellate court, I have re-evaluated the evidence adduced before the lower court with a view of reaching my own conclusion on it. I have reminded myself that a first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the finding. In that regard, see the case of Selle & another vs. Associated Motor Boat Co. Ltd (1968)E.A 123, Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988)KLR 348.
20.Having revealed the cases urged by the parties and the submissions made in respect thereof, I find the major issue for the court’s determination as whether the LTM erred by allowing the respondent’s case and dismissing the appellant’s defence and counterclaim.
21.With regard to that issue, as pointed out herein above, the respondent instituted the suit that forms the subject matter of this suit based on the fact that at the time he instituted the suit, he was the registered proprietor thereof. During hearing, the respondent produced a lease and a certificate of lease showing that as at the time he filed the suit he was the registered proprietor of the suit property.
22.As rightly submitted by the respondent, his registration as the proprietor conferred on him the status of an absolute and indefeasible proprietor of the suit property. However, as provided for by Section 26 of the Land Registration Act, 2012, that status can be challenged and impeached if it is proved that the suit property was acquired fraudulently or through misrepresentation to which the proprietor is proved to be party. The status is also impeachable if it is demonstrated that the title was acquired illegally, unprocedurally or through a corrupt scheme.
23.As pointed out herein above, the appellant filed a statement of defence and counterclaim challenging the title held by the respondents on the ground that it was fraudulently acquired. The acts of the respondent and officials of the ministry of lands said to constitute fraud were particularized in paragraph 19 of the defence and counterclaim.
24.I have re-evaluated the totality of the evidence (oral and documentary) adduced in this case, including the documents that were marked for identification but not produced in evidence. In so doing, I have taken note of the fact that parties were cross examined on the contents of the documents that were marked for identification but not produced in evidence thereby eliciting evidence relevant for determination of the issues raised in the suit and this appeal.
25.One of the issues arising from the documents which were marked for identification but not produced in evidence is that the plaintiff respondent was issued with a letter of allotment in respect of the suit property. The letter of allotment issued to the respondent was issued after the appellant had earlier on been issued with a letter of allotment in respect of the same property.
26.Despite the fact that the respondent did not produce his letter of allotment for want of an original document in respect thereof, from that factual background, I am of the considered view that the LTM cannot be faulted for holding that both parties had a letter of allotment. In fact, from his own pleadings, statement of defence and counterclaim, paragraph 19 (i) (ii) and (iii), the appellant acknowledges that the respondent had a letter of allotment. He only takes issue with its legal propriety given that it was given to the respondent after the suit property had been allocated to him.
27.Being the one who desired judgment based on his contention that the letter of allotment relied on by the respondent was questionable, it behooved the Appellant to produce evidence to prove that indeed the letter of allotment was questionable. In view of the foregoing I find and hold that the respondent did not prove that the letter of allotment used by the appellant was questionable. I hasten to point out that the appellant had challenged the process that led to issuance of a lease and certificate of lease in favour of the respondent on other grounds like, failure to meet the terms and conditions of allotment.
28.With regard to that pleaded aspect of the appellant’s case, a review of the totality of the evidence produced shows that the respondent did not meet the conditions stipulated in the letter of allotment which included; communication of acceptance of the conditions in the letter of allotment with 30 days of the post mark (I take this to be 24th February, 1999) and pay the amount set therein, being Kshs.13,630/-.
29.The totality of the evidence adduced in this case shows that the respondent neither accepted the conditions in the letter of allotment nor paid the amount stated therein within the time stipulated therein.
30.Whilst the respondent was required to pay Kshs. 13, 630/- in the letter of allotment, in his evidence, he informed the court that he paid Kshs. 6400/- only. No evidence of proof of payment was adduced and when payment was made, if at all it was made. More importantly, no explanation was offered by the respondent of the circumstances upon which he ended up paying less that the amount he was supposed to pay under the letter of allotment. There was no proof of payment of stamp duty, land rent and rates which is a preliquisite for registration of land under the Stamp Duty Act and the Land Registration Act.
31.The procedure for issuance of a certificate of lease arising from a letter of allotment were espoused in the case of Ali Mohamed Dagane (Granted Power of Attorney by Abdullahi Muhumed Dagane), suing on behalf of the Estate of Mohamed Haji Dagane) v Hakar Abshir & 3 others  eKLR thus:-Having evaluated in detail the necessary steps to be followed, it is emergent that a litigant basing their interest in land on the foundation of an allotment letter must provide the following proof: First, the allotment letter from the Commissioner of Lands; Secondly, and attached to the allotment letter, a part development plan; Thirdly, proof that they complied with the conditions set out in the allotment letter, primarily that the stand premium and ground rent were paid, within the specified timeline. It would also help a litigant’s case, although this may not be mandatory based on the stage of the transaction, to have a certified beacon certificate.Now, in the present case, the court confirms that the Plaintiff did indeed file a letter of allotment dated 7th April 1994 and Referenced 111303/VIII. The allotment letter was issued by the Commissioner of lands as it bears his signature. The problem though is that the allotment letter was issued to one Mohamed Shagana and not the deceased Mohamed Haji Dagane. The Plaintiff has however provided an affidavit sworn by the said Mohamed Haji Dagane on 18th April 2008 averring that his name had been misspelt in the allotment letter and that he had already written to the Commissioner of Lands for a rectification of the same. The court would have no reason to disprove the Plaintiff’s averment, save that the problem seems to rear its head again. The same is discussed later.The filed allotment letter does indeed have a part development plan attached, satisfying the second condition.On the third condition however, a letter drawn by the deceased, Mohamed Haji Dagane on 19th November 2008 and received on the following day, 20th November 2008 throws a spanner into the works. In the letter, the deceased admits that he did not comply with the conditions set out in the allotment letter, specifically that he did not pay the stand premium and ground rent on account of his ill health. Now, the allotment letter referred to, the one issued 7th April 1994 required the payment of a stand premium of Four Thousand Six Hundred (Ksh. 4,600) and other payments amounting to Two Thousand Nine Hundred and Fifty (Ksh. 2,950) all in total amounting to Seven Thousand, Five Hundred and Fifty Shillings (Ksh.7,550). Clause 2 of the allotment letter required the payment of the amount via banker’s cheque within 30 days. Thus, the offer was only open up to 30 days after 7th April 1994, meaning sometimes in early May 1994. Clearly, when the deceased was unable to pay the requisite fees by that day, the offer lapsed. See Rukaya Ali Mohamed-vsDavid Gikonyo Nambachia & another Kisumu HCCA. 9/2004 where Warsame J held that:“…once allotment letter is issued and the allottee meets the conditions therein, the land in question isno 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 the present case, upon lapse of the offer contained in the allotment letter, the land was free to be allotted to someone else. It appears that this is what happened because the letter drawn by the deceased, dated 19th November 2008 was one requesting the Commissioner of Lands to re-allocate the Suit Property to the deceased. Note that in this letter, the deceased signs off as Mohamed Shagana. This little fact makes the court question the earlier affidavit supposedly to the effect that Mohamed Shagana, to whom the allotment letter was issued, is one and the same person as the deceased, Mohamed Haji Dagane. Why would the deceased, who vide the affidavit of 18th April 2008 averred that he had already written to the Commissioner of Lands to rectify his misspelt name on the allotment letter, in November 2008 sign off as Mohamed Shagana?Be that as it may, the Commissioner of Lands did reply to the letter drawn by Mohammed Shagana, curiously on the very next day, being 20th November 2008 acknowledging receipt of the request and promising to communicate on the issue at a later date. It would appear that that date never came, and no allotment letter was issued to the deceased in 2008 or thereafter. As demonstrated, by this time, Mohammed Shagana did not hold interest in the Suit Property, the offer having lapsed in May of 1994.On the premises, the beacon certificate issued to the deceased on 15th December 2005 is a sham and was issued illegally. On the whole, the Plaintiff has failed to satisfy the Court that the Suit Property forms part of the estate of the deceased and as such, the orders sought by the Plaintiff cannot be granted.”
32.The Court of Appeal in the case of Munyu Maina vs. Hiram Gathiha Maina  eKLR, held as follows:
34.From the above provisions, it is clear that the court has powers to order rectification of a register by directing that the registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.
35.In applying the legal principles espoused in the case Mohamed Dagane V Hakar Abshir & 3 others to the circumstances of this case, I find and hold that the respondent did not demonstrate to the court that he followed the requisite legal process to obtain his certificate of lease. The evidence adduced in this case, shows that the applicable laws and procedures were flouted in effecting registration of the lease in favour of the respondent. In the circumstances, I find the lease issued to the respondent to be impeachable on ground of fraud, which was sufficiently proved through evidence showing that the respondent did not meet the conditions set in the letter of allotment. If the LTM had considered that fact, he would have reached a different decision.
36.The upshot of the foregoing is that the appeal has merit and is allowed as prayed.