Khan

iv. Costs of the suit. v. Any other or better relief the Honourable Court may deem t to grant. Plaintis’ Case 2. The Plaintis aver that they are the absolute, registered and lawful owners of the suit land measuring approx. 4.0Ha; having been issued with a title deed on the 11/07/ 1989 to that eect. 3. It is their claim that the suit property was fraudulently, unlawfully, illegally and irregularly transferred by the 4th Defendant to the names of the 1st, 2nd and 3rd Defendants sequentially and irregular title deeds issued to that eect without their knowledge or consent. They contend that they have neither engaged the Defendants in any land transaction nor did they transfer the suit land to them or any proprietary rights/ interests. The said 1st – 3rd defendants remain strangers to them. 4. They further outlined the particulars of fraud thereof and outlined the order of transfer of the suit land in the names of the defendants as follows; that the land was transferred in the name of the 3rd defendant on 24/8/1994, the 3rd defendant then illegally transferred the property to the 2nd defendant on 06/09/2013, who subsequently transferred the same to the 1st defendant on 28/2/2017. 5. It is also their contention that as at 28/05/2020 and as supported by the certicate of ocial search produced as exhibit, the subsisting entries on the register of the suit parcel reected and armed their proprietorship of the suit land. 6. It was further their assertion that they hold the original title deed of the suit property and have been in possession and occupation of their lawful property all along, despite the said irregular and unlawful transfers in the names of the defendants. They thus urged the court to allow the suit and grant the orders sought therein. 7. The matter proceeded for the formal proof hearing of the Plaintis’ case on 06/07/2023. The same proceeded ex- parte, the absence of the Defendants, who had been served by way of substituted service, notwithstanding. 8. The 1st Plainti testied as PW1, on her own behalf and on behalf of her co-plaintis; she adopted her witness statement dated 08/01/2023 as her evidence in chief. She further testied that sometimes in the year 2020, she conducted a search and the certicate of search revealed that the suit land was still registered in the name of her deceased father. However, when she requested for a copy of the Green Card, she found out that the suit land had been fraudulently transferred to persons (1st – 3rd defendants) who were claiming that they (plaintis) transferred the land to them. 9. She also produced the documents on her List of Documents dated 08/01/2023 as PExhibits 1- 5 as follows; copy of letter of Authority as Pexh. 1, copy of the Title Deed as Pexh. 2, copy of the Green Card as Pexh. 3, copy of the Certicate of Ocial Search as Pexh. 4 and copy of the Certicate of Conrmation of Grant as Pexh. 5. 10. She thereafter urged the court to allow their claim and grant the orders sought of cancellation of the title issued to the 1st, 2nd and 3rd defendants and for the land to revert to their names. The Plaintis thereafter closed their case. 11. The Defendants were served by way of Substituted Service on the Daily Nation Newspaper on the 22nd May, 2023 at page 33 and an Adavit of Service was led as proof thereof. However, they neither entered appearance nor led any statement of defence in response to the allegations levelled against them by the Plaintis. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22518/eng@2023-12-29 2

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12. There being no lawful justication and/ or explanation for their non- attendance and having been satised that service was properly eected, I proceeded to close the defence case. The Plaintis’ case thus remained unchallenged and the exhibits adduced remained uncontroverted. Analysis and Determination 13. It is this court’s considered view that the following issues arise for determination: a. Who is the rightful and/or legal owner of the suit property. b. Whether the Plaintis are entitled to the reliefs sought in the Plaint. I. Who is the rightful and/or legal owner of the suit property 14. Section 26 (i) of the Registered Land Act provides: “ The certicate 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 certicate, and the title of that proprietor shall not be subject to challenge.” 15. The Plaintis have attached a copy of the Title deed and a Certicate of Ocial search as Pexh. 2 and 4 respectively, clearly outlining their names as the registered proprietors, having been registered as joint owners thereof sometimes in the year 1989. 16. The Plaintis also adduced a copy of a Green Card as Pexh. 3 which showed various transfers eected to the 1st, 2nd and 3rd defendants sequentially on diverse dates, claiming purchasers’ interest. It is the Plaintis contention that they neither sold nor transferred the suit parcel or any portion thereof to the 1st – 3rd defendants who remain strangers to them. 17. The Defendants on the other hand neither entered appearance or led a statement of defence nor adduced any documentary evidence to support the various transfers to their names or to challenge the plaintis’ averments. In the absence of any proof to the contrary, I nd that Pexh. 2 and 4 adduced by the plaintis remain uncontroverted and is the right/ actual position. 18. It has been said time and again that a Title Deed is indefeasible evidence of the ownership of land. There has not been any challenge by the Defendants on the Plaintis’ title by reason of fraud or otherwise as envisaged under section 26 (1) (a) and (b) of the Land Registration Act. 19. I have looked at both Pexh. 2 & 4 and I am satised that the suit property indeed belongs to the Plaintis, who are the joint registered proprietors thereof. Their registration and proprietorship is therefore not in dispute and thus, they remains the rightful, absolute and indefeasible owners of the suit property with all the rights and privileges accruing therefrom; including the right to a quiet and peaceful occupation and right to use their property. 20. I therefore nd and hold that the Plaintis are the rightful registered proprietors of the suit land, having been issued with the title deed and are thus entitled to protection of the law. II. Whether the Plaintis are entitled to the reliefs sought in the Plaint 21. The Plaintis have sought the grant of an order of cancellation of the title deeds fraudulently issued to the 1st, 2nd and 3rd Defendants by the 4th Defendant, Punitive costs by the 1st, 2nd and 3rd defendants and a declaration that the said transfer was unlawful, fraudulent, null and void and of no legal consequence. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22518/eng@2023-12-29 3

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22. The Plaintis produced a copy of the Green Card as Pexh. 3 which revealed several entries of transfers eected on the suit parcel on diverse date to the 3rd ,2nd and 1st Defendants respectively. The 1st – 3rd Defendants did not provide a lawful justication, basis or explanation of how, when and why the said transfers were eected. The 4th Defendant, who is the custodian of all the land records did not also enter appearance, led a statement of defense or oered any explanation or justication on how and why entries No. 9 – 14 as captured in the Green Card (Pexh. 3) were done and whether the same strictly complied with the lawful procedure that govern the transfer of parcels of land. There was also no explanation on the variance as seen on the Green Card (pexh. 3) and on the Certicate of Ocial Search (pexh. 4). 23. Further, what raises eyebrows and remains suspicious is that the said transfers, evidenced by entry No. 9 – 14 on pexh. 3, which were eected long before the year 2020 were not indicated on the certicate of search which was conducted in the year 2020 as evidenced by Pexh. 4. It is common ground that a certicate of ocial search is a replica of what is contained on the Green Card. 24. It is the Plaintis contention that the title deeds issued in favor of the defendants and particularly the 1st defendant who currently holds the title deed of the suit land were procured fraudulently and the same ought to be cancelled on account of fraud. 25. The Court of Appeal in Munyu Maina vs Hiram Gathiha Maina [2013] eKLR held that where an instrument of title is challenged, such proprietor must go beyond the instrument to prove legality: “ We have stated that when a registered proprietor root of title is challenged, it is not sucient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.” 26. No such explanation was tendered by the defendants, who neither entered appearance or led a statement of defense nor adduced any evidence to challenge the averments by the plaintis. 27. The consequence of the Defendants’ failure to le a defense or enter appearance is that the evidence by the plaintis remaining unchallenged. The position on the search certicate (pexh. 4) remains the actual position on the ground. In the absence of any proof as to the contrary and without any lawful explanation and proof; I nd that the said transfers in the names of the 2nd, 3rd and 1st defendants respectively, were indeed fraudulent, null and void. 28. Section 80 of the Land Registration Act on the Rectication by an Order of Court provides that: (1) 29. Subject to subsection (2), the court may order the rectication of the register by directing that any registration be cancelled or amended if it is satised that any registration was obtained, made or omitted by fraud or mistake.” The Court of Appeal in Mombasa, in Civil Appeal No. 312 of 2012; Eml Limited Vs Registrar of Titles Mombasa & 2 others [2014] eKLR held as follows; “ Allegations of fraud are allegations of a serious nature normally required to be strictly pleaded and proved on a higher standard than the ordinary standard of balance of probabilities”. 30. As earlier held, allegations of fraud are serious allegations and the plainti is under a duty to strictly prove the same. From a look at the evidence adduced by the plaintis in support of their claims of https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22518/eng@2023-12-29 4

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fraud, particularly Pexh. 3 and 4; it is evident that there were fraudulent activities on the part of the defendants which have not been explained. 31. In the totality of the foregoing; it is my considered opinion that even though the 1st Defendant is the current holder of the title deed of the suit land; he has not demonstrated the legality of his title deed and it is clear that the initial process of acquiring the same by the defendants was unprocedural and fraudulent. Accordingly, I nd that the plaintis have proved their case to the required standard to warrant the grant of the prayers sought for cancellation of the title issued in the name of the 1st Defendant. 32. The Plaintis have also sought punitive damages against the Defendants. Maraga, J as he then was held in Abdulhamid Ebrahim Ahmed Vs Municipal Council Of Mombasa [2004] eKLR that: “ Exemplary damages on the other hand are damages that are punitive. They are awarded to punish the defendant and vindicate the strength of the law. They are awarded in actions in tort, and only in three categories of cases. The rst category relates to the oppressive, arbitrary or unconstitutional actions of servants of government. The other two categories are where the defendant’s conduct is calculated to earn him prot and the third one is where exemplary damages are expressly authorized by statute” 33. Guided by the decision above, I nd that the Plaintis have not demonstrated and/or established the categories outlined above; that the actions by the defendants was oppressive, arbitrary or unconstitutional particularly on the part of the 4th defendant, or that the actions by the defendants were intended to earn them prots or that the same is expressly authorized by the statute. 34. It is not in dispute that the Plaintis are the ones who are in possession, occupation and use of the suit land to date. Even though the land was transferred and registered in the names of the defendants on diverse dates; they never took possession or evicted or interfered with the plaintis’ use and occupation thereof. It is therefore my nding that they have not proved their claim on punitive damages and are therefore not entitled to the same as sought. Costs 35. Costs generally follow the event, and in this instant case, since the Plaintis have been inconvenienced, I nd that they are entitled to costs of the suit. Conclusion 36. The upshot of the foregoing is that the Plaintis have suciently proved their case to the required threshold and I accordingly allow the Plaint dated 8th January, 2023 on the following terms: i. A declaration that the transfer of land parcel No. Kanyamkago/ Kawere 1/1284 to the 1st, 2nd and 3rd Defendants is unlawful, fraudulent, null and void and of no legal consequence. ii. An Order directed to the 4th Defendant to cancel the titles issued to the 1st, 2nd and 3rd Defendants and revert land parcel No. Kanyamkago/ Kawere 1/1284 in the name of the Plaintis. iii. Costs of the suit to be borne by the Defendants. DATED, SIGNED AND DELIVERED VIRTUALLY AT MIGORI ON 29TH DAY OF DECEMBER, 2023. MOHAMMED N. KULLOW https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22518/eng@2023-12-29 5

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JUDGE In presence of; No appearance for the Plaintis No appearance for the Defendants Court Assistants - Tom Maurice/ Victor https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22518/eng@2023-12-29 6

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