Mohamed Mare v Julius Gandi Ponda & 3 others

a) Vacant possession b) Costs of this suit and interests thereon at Court rates. c) Any other relief that this Honourable Court may deem just to grant. Plainti ’s case 3. PW1 Mohamed Mare adopted his witness statement dated May 19, 2015 as his evidence and stated that he was the legal owner of Plot No Kikombetele Scheme/ 798 where he has lived for 50 years which suit premises has all along been his ancestral land. 4. It was PW1’s testimony the 3rd Defendant ocers visited him on the suit plot and encouraged him to proceed developing the suit land and promised that he would be given priority when they will be recommending issuance of titles to people who are in possession of the land. 5. PW1 further stated that he later learnt that the plot had been allocated to the 1st Defendant without his knowledge and despite the 1st Defendant not having settled on the said land. He also stated that the title to the suit premises was issued illegally and contrary to his legitimate expectation to be considered as a long occupant of the suit premises whose occupation had been open, exclusive and uninterrupted. 6. On cross-examination, PW1 stated that he has another home at Chakama but his late father was on the suit land rst. He told the court that the land was not sold and that his father did not le any complaint when the Defendant was allocated the land. He also told the court that his father bought the suit land. 7. PW2 Mumba GandI adopted his Witness Statement dated May 19, 2015 as his evidence in chief and told the court that he was given the plot by one HAJI gave along Malindi Madunguni road. 8. PW 2 stated that they were paying him a tax of Kshs. 5 per annum whereby they were cultivating till 1957 when he left and the Plainti remained on the suit plot as the owner. It was his testimony that the Plainti used to pay tax directly to the owner and after some years, they stopped, paying rent but continued to cultivate the plot without any problems. 9. On cross-examination, he stated that the Plainti’s father left Chakama in 1956 to the suit land and that they did not buy the land as they took over as squatters. He testied that the land belonged to the Arabs who were leasing the land and at the time, they did not have title deeds but he currently has a title to plot No 511. Defence Case 10. DW1 Julius Gandi Ponda the administrator of the Estate of Ponda Nzola Adopted his Witness Statement dated October 25, 2021 as his evidence in chief and told the court that the land in dispute Land Title No Goshi/ Kikombetele Scheme/ 798 is registered in his late father Ponda Nzola’s name. 11. DW1 stated that the land was registered in his name on 8th August, 2013 and that the Plainti did not own the land before the adjudication exercise and that the Plainti’s father had been allowed by his late father to stay on a portion of the land on temporary basis. DW1 produced a copy of the title as proof of ownership. 12. He testied that the Plainti’s father got his own land at a village called Vihingoni and relocated to that land and stayed there until his death where he was buried. That the Plainti later sold that land and stated that the Plainti has never been in occupation of the suit land. Further that during the adjudication exercise, his father was rightly identied as the owner of the land and the Plainti’s family did not raise any complaint or objection during the exercise. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18846/eng@2023-07-19 2

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1St Defendant’s Submissions 13. Counsel submitted that the only issue for determination is whether the registration of the 1st Defendant’s late father as owner of the suit property and the issuance of the title deed to him was obtained illegally as claimed by the Plainti. 14. Counsel relied on the provisions of Section 26 (1) of the Land Registration Act submitting that the Plainti has challenged the title on the ground that was allegedly acquired illegally but the Plainti has not set out the particulars of illegality in the Plaint. 15. It was counsel’s submission that the Plaint ought to have contained precise allegations of the illegal acts alleged to have been committed by the deceased and that mere allegations that the title was issued illegally was not enough. Counsel relied on the case of Demutila Nanyama Pururmu vs Salim Mohamed Salim Civil Appeal No 138 of 2018. 16. Mr. Shujaa submitted that the Plainti made generalized allegations of illegality without specic acts of fraud and relied on Sections 107, 108 and 109 of the Evidence Act that places the evidential burden on the Plainti to prove that the title deed issued in the name of the 1st Defendant’s late father was acquired illegally. 17. Counsel further submitted that the evidence adduced by the Plainti has not shown that the allocation and registration of the parcel of land in the name of the deceased was done illegally. That no evidence has been tendered showing that the deceased or the 2nd and 3rd Defendants committed any illegal acts in the allocation. Counsel urged the court to dismiss the Plainti’s suit with costs and enter judgment in the counterclaim for the 1st Defendant with costs. Analysis And Determination. 18. The court directed that parties le submissions but on counsel for the 1st Defendant complied. The issue for determination is whether the 1st Defendant’s father was registered fraudulently as an owner of the suit land. 19. The Plainti in this case averred that that he has been in occupation of the Plot No Kikombethele Scheme/ 798 for over 50 years and has planted permanent crops and made developments thereon. 20. The Plainti has alleged illegality and fraud of the title that was acquired by the 1st Defendant in his testimony but the same was not pleaded in his pleadings. The 1st Defendant on the other hand averred that he is the registered owner entitled to possession of the suit property known as Title No Goshi / Kikombethele Scheme / 798 and that he has been the benecial owner of the suit property long before the same was registered in his name. 21. The 1st Defendant stated in his evidence that during the demarcation and adjudication exercise he was duly identied as the settler on the suit property and was allocated the same. That the Plainti did not raise any objection to the allotment and eventually the same was registered in his name on 8th August, 2013. 22. The 1st Defendant produced in evidence a copy of a title deed in the name of his late father Ponda Nzola which was duly issued to him on 8th August, 2013. The Plainti on the other hand asserted that the title to the suit premises was issued illegally and contrary to his legitimate expectation to be considered as a long occupant of the suit premises whose occupation had been open, exclusive and uninterrupted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18846/eng@2023-07-19 3

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23. On the issue of specically pleading fraud in the plaint, the Plainti never pleaded fraud specically, he only adduced evidence that the 1st Defendant’s title was procured fraudulently without proof. Even if he had proof, the Plainti had failed the rst test of specically pleading fraud in the plaint. 24. When a party alleges fraud, then they should follow the procedures that require that the acts of fraud or illegality must be specically pleaded and specically proved as was held in the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows: “ It is well established that fraud must be specically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 25. The Plainti failed this test as he just gave evidence that the 1st Defendant had been fraudulently registered as an owner without proof. When a Plainti alleges fraud then the burden of such proof rests with the Plainti. 26. In the case of Kuria Kiarie & 2 0thers v Sammy Magera [2018] eKLR where the Court of Appeal stated that: “ It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo _vs Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: "... We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases.. "..In cases where fraud is alleged, it is not enough to simply infer fraud from the facts." 27. The plainti further stated that they were on the suit land for over 50 years uninterrupted and during adjudication they were on the ground. If they were on the ground, why they were not recognized and allotted land. There is an elaborate process for land adjudication and is a party is not satised has a right to le an objection which must be heard before the adjudication process is complete. 28. Section 26 referred to above provides that; “ Any person named in or aected by the adjudication register who considers it to be incorrect or incomplete in any respect may, within sixty days of the date upon which the notice of completion of the adjudication register is published, object to the adjudication ocer in writing, saying in what respect he considers the adjudication register to be incorrect or incomplete. The adjudication ocer shall consider any objection made to him under subsection (1) of this section, and after such further consultation and inquiries as he thinks t he shall determine the objection’. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18846/eng@2023-07-19 4

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29. There was no evidence that there was such objection led, heard and determined Section 24(a) of the Land Registration Act provides as follows: “ Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.” 30. Section 26 (1) of the Land Registration Act states as follows: “ The Certicate of Title issued by the Registrar upon registration … 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 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 certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 31. It is trite law that a Certicate of Title issued by the Registrar upon registration 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 the title of that proprietor shall not be subject to challenge except – On the ground of fraud or misrepresentation to which the person is proved to be a party; or Where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 32. Consequently, I nd that the Plainti has not proved his case on a balance of probabilities and is therefore dismissed with costs. The 1st Defendant has proved his counterclaim on a balance of probabilities and is allowed with costs. DATED, SIGNED AND DELIVERED AT MALINDI THIS 19TH DAY OF JULY 2023. M.A. ODENY JUDGE NB: In view of the Public Order No 2 of 2021 and subsequent circular dated 28th March, 2021 from the Oce of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this Judgment has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18846/eng@2023-07-19 5

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