Manji & another v Sedona Limited & 2 others (Environment & Land Case 279 of 2014) [2024] KEELC 5599 (KLR)

2. Upon service of the pleading and summons to enter appearance to the 1st, 2nd and 3rd Defendants, the 1st Defendant entered appearance and filed its Statement of Defence and Counter Claim dated 4th December, 2015. The 2nd Defendant entered appearance and filed their Statement of Defence dated 27th February, 2015. The 3rd Defendant entered appearance and filed their Statement of Defence and statement to counter claim dated 10 th June, 2016. II. 3. Description of the Parties in the suit The Plaintiffs were described in the Plaint as male, adults of sound mind residing in Nairobi within the Republic of Kenya. The 1 st Defendant was described as a limited liability company registered in Kenya under the provisions of the Companies Act, that their address for service for the purpose of this suit was care of the law firm of Messrs. Taib. A. Taib Advocates, Smart Brands Building, Maasai Road off Mombasa Road, P.O. Box 4968 - 00506, Nairobi. 4. The 2nd Defendant was described as a limited liability company registered in Kenya under the provisions of the Companies Act and licensed to conduct banking business pursuant to the provisions of the Banking Act Cap 488 Laws of Kenya. Their address for purposes of the proceedings was care of the law firm of Messrs. JUDGMENT: ELC NO. 279 OF 2014 Page 2 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 2 of 140

Mohamed Madhani & Company Advocates, Nairobi Nation Centre (14th Floor, Tower A), Kimathi Street, P.O. Box 48539 – 00100 Nairobi. 5. The 3rd Defendant was described as a public officer responsible for land administration and maintenance of the land registers under the provisions of the Registration of Land Act, Cap. 300 (Now repealed) Laws of Kenya, as well as safeguarding proprietary rights guaranteed under Article 40 of the Constitution of Kenya whose service for the purposes of the suit was to be care of Attorney General, Attorney General's Chambers, Social Security Building, 9th Floor P. O. Box 82427 - 80100 Mombasa. III. 6. Court directions before the hearing The Honourable Court on 11th October, 2019 scheduled the hearing of the main suit on 3rd March, 2020 where the Plaintiffs called their witnesses (PW - 1) and (PW - 2) and the Defence hearing was fixed for 17th November, 2020 with summons to issue to the Land Registrar. The matter was adjourned numerous times after and on 18th February, 2022, the Honourable Court set the Defence hearing on 20th June, 2022 where the 1st Defendant called DW - 1 and DW - 2 who was stood down. The 2 nd Defendant called JUDGMENT: ELC NO. 279 OF 2014 Page 3 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 3 of 140

its witness DW - 3 and marked the close of their case. On 17 th February, 2023 the Honourable Court conducted a site visit and a hearing on the suit property and the 1 st Defendant recalled DW - 2 to the stand and the 1st Defendant closed their case on the same day. The 3rd Defendant called their first witness DW 4 on 16 th October, 2023 and marked their case closed. After which parties were directed on the filing of their submissions. 7. This matter proceeded on for hearing by way of adducing “viva voce” evidence with the Plaintiffs’ witnesses (PW – 1 and PW - 2) testifying in Court on 3rd March, 2022. IV. 8. The Plaintiffs’ case From the filed pleadings, the Plaintiffs were the registered proprietors of all that parcel of land situated in Kwale County, known as KWALE/SHIMONI ADJ/392 (Hereinafter referred to as “The Suit Land”) situated within Kwale County measuring approximately forty five decimal four six (45.46) hectares after purchasing it from Stephen Njema Karanu for a consideration of a sum Kenya Shillings Eleven Million (Kshs. 11,000,000/-) in October 2012. JUDGMENT: ELC NO. 279 OF 2014 Page 4 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 4 of 140

9. The Plaintiffs averred that on 23 rd October, 2014 they undertook a search at the District Lands registry in Kwale and discovered that on 10th June, 2014 of thereabout, the name of the proprietor of the land had been changed from that of the Plaintiffs to a third party known as Sedona Limited, and on the same day, a charge was purportedly registered in favour of the 2 nd Registered to secure a financial facility of a sum of Kenya Shillings Ten Million (Kshs. 10,000,000/-) by the said Sedona Limited. 10. The Plaintiffs further averred that the issuance of the title to Sedona Limited was done without their knowledge, authority, consent or lawful cause, and was effected through a fraudulent and corrupt scheme by Sedona Limited acting in collusion with the 3rd Defendant, as particularized herein: a. Caused the suit premises to be registered in the name of the 1st Defendant knowing very well that it had not purchased the same from the Plaintiff. b. Caused the suit premises to be registered in the name of the 1st Defendant knowing very well that it did not have in its possession the original title to the suit property herein. c. Colluded with officials of the 3 rd Defendant to cause a transfer and charge on a fraudulent title. d. Colluded with officials of the 2 nd Defendant to cause a charge on a fraudulent title. JUDGMENT: ELC NO. 279 OF 2014 Page 5 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 5 of 140

e. The transfer could only be explained on the basis of a fraudulent and corrupt scheme as it defied law and logic. f. Also by reason of this fraudulent and corrupt scheme by Sedona Limited acting in collusion with the 3 rd Defendant, the Charge registered in favor of the 2 nd Defendant to secure a financial facility of a sum Kenya Shillings Ten Million (Kshs. 10,000,000/-) by the said Sedona Limited, was void and so vitiated by illegality that this Honourable Court cannot give any legal effect to it. 11. According to the Plaintiffs also by reason of this fraudulent and corrupt scheme by Sedona Limited acting in collusion with the 3 rd Defendant, the Charge registered in favor of the 2 nd Defendant to secure a financial facility of sum of Kenya Ten Million (Kshs.10,000,000/-) by the said Sedona Limited, was void and so vitiated by illegality that this Honourable Court could not give any legal effect to it. 12. Despite demand to surrender the title for cancellation the 1 st and 2nd Defendants had neglected, failed and refused to do so and hence the Plaintiffs suit. There were no other suit between the Plaintiffs and the Defendants pending in this Court or any other Court based on the same subject matter as in this suit and that the cause of action related to the Plaintiffs. The Court had jurisdiction to hear and determine the matter. JUDGMENT: ELC NO. 279 OF 2014 Page 6 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 6 of 140

13. The Plaintiffs prayed for Judgment against the 1 st, 2nd and 3rd Defendants whether jointly and/ or severally for:A. A declaration that the title issued to Sedona Limited as registered on 10th June 2014, is null and void. B. A declaration that by reason of the fraudulent and corrupt scheme by Sedona Limited acting in collusion with the 3 rd Defendant, the charge registered in favour of the 2nd Defendant to secure a financial facility of Kshs 10,000,000/- by the said Sedona Limited, is void and so vitiated by illegality that this Honourable Court cannot give any legal effect to it. C. An order directing the 3rd Defendant:i. to cancel title deed for KWALE/SHIMONI ADJ/392 issued to the 1st Defendant and all subsisting entries; and ii. to immediately rectify the registry to restore the Plaintiffs thereon as the bona fide owners of KWALE/SHIMONI ADJ/392 D. A permanent injunction to restrain the 1 st and 2nd Defendant and each of them employees whether from by themselves, advertising, agents, undertaking any servants or construction, trespassing, making any subdivisions, sale, transfer, lease, charge or in any manner creating any legal or beneficial interest in parcel of land known as KWALE/SHIMONI ADJ/392 situated within Kwale County. E. Costs of the suit, together with interest thereon at Court rates from the date of filing suit. 14. On 3rd March, 2020 at 11.15 am the Plaintiffs called their witnesses PW - 1 and PW - 2 who testified as follows:A. Examination - in - Chief of PW - 1 by Mr. Ibrahim Advocates. JUDGMENT: ELC NO. 279 OF 2014 Page 7 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 7 of 140

15. PW – 1 testified on oath in English language. He identified himself as being Mr. Satpal Singh Jowhal. The witness told the Court that he was familiar with the matter in Court. He filed a witness statement on 23rd September, 2017. He adopted his witness statement as his evidence in chief. He also relied on the bundle of documents filed on 10th March, 2017. He also made reference to the pleadings filed herein. 16. PW - 1 stated that he was familiar with the facts of this case having acted for the 1st and 2nd Plaintiffs. He was an advocate of the High Court of Kenya. At the time of filing his statement, he had practiced for 50 years. He produced the bundle of documents as exhibits in this case. He had the originals of the following documents. fi Search fated 12th April, 2012 fi Application of official search dated 24th April, 2012. fi Letter of Consent dated 28th April, 2012 fi Valuation form dated 23rd May, 2012 fi Stamp Duty Declaration dated 24th May, 2012 and receipt. fi Receipt dated 24th May, 2012. fi Transfer form dated 18th May, 2012. fi Agreement for sale dated 24th September, 2012. fi Valuation form dated 1st October, 2012. fi Letter of Consent of LCB dated 1st October, 2012. JUDGMENT: ELC NO. 279 OF 2014 Page 8 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 8 of 140

fi Original Transfer dated 1st October, 2012 together with payment receipt dated 1st October, 2012. fi Original Title Deed in name of Harish Ramji Manji dated 12 th October, 2012. fi Original Search dated 23th October, 2012. 17. PW - 1 stated that sometimes in early year 2012, an agent known as Yusufu Mabwana who was well known to him because he had informed a member of properties in Mombasa area to his clients, he came to him and said there were a piece of land known as Kwale/ Shimoni Adj/392 belonging to one Omar Bakari Diwani. After having perused a copy of the title documents, he enquired as to where the original was. Mr. Omar told him that he had pledged the original title to one Mohamed Sheikh for a loan of a sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3, 500, 000.00/=) which Mr. Sheikh had given to Mr. Omar. 18. PW - 1 asked him to bring the original documents together with Mr. Sheikh to his office so as to verify the same. After verifying, he agreed with Mr. Sheikh that he would pay him by instalments. He drew up a sale agreement that Mr. Omar and his clerk Mr. Stephen Njema Karanu executed. This was because he wanted to reward the said clerk who had worked for 40 years and was leaving his office. He paid the purchase price of a sum of Kenya Shillings Nine JUDGMENT: ELC NO. 279 OF 2014 Page 9 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 9 of 140

Million (Kshs. 9,000,000/-) when he transaction was complete. Thereafter, his clients, the Plaintiffs who were shareholders in a limited company known as Gami Properties Limited had recently purchased properties nearby in the Shimoni area and therefore wanted to purchase the property for a sum of Kenya Shillings Million (Kshs. 11,000,000/-). 19. PW - 1 told the court that he prepared a sale agreement between Stephen Njema Karanu and the Plaintiffs. The full purchase price was paid. He obtained all the relevant documents and paid the stamp duty for a sum of Kenya Shillings Million (Kshs. 11,000,000/-). He caused the transfer to be duly registered and it was registered in the joint names and title deed issued. After completion, he caused a search which showed them as the beneficial owners of the suit property. B. Cross Examination of PW - 1 by Mr. Ochieng Advocate. 20. PW confirmed that he acted for the 1 st and 2nd Plaintiffs who were his clients. The property was not his. In under Paragraph 13, he offered to sell but he was doing do on behalf of his clerk. When he sold it some money was paid to the witness and Mr. Karanu was left with the profit of a sum Kenya Shillings Two Million (Kshs. JUDGMENT: ELC NO. 279 OF 2014 Page 10 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 10 of 140

2,000,000/-). One was to do due diligence. There was no conflict of interest doing due diligence on one’s property. He made payments to Mr. Omar. The payments were by way of cheque with the amount totaling to a sum of Kenya Shillings Nine Million (Kshs. 9,000,000/-) which they had exhibited through copies of the cheques. C. Cross Examination of PW - 1 by Mr. Shah Advocate. 21. According to the witness, in under Paragraph 12 of his statement, he had indicated several payments. Someone could no transfer the property and had not received payments. In under paragraph 12.4, he paid a sum of Kenya Shillings Nine Thousand (Kshs. 900,000/-) to Mr. Omar and a sum of Kenya Shillings One Million Four Hundred (Kshs. 1,400,000/-) to Mr. Omar. In under paragraph 12.5, he had stated that he paid a sum of Five Hundred Thousand (Kshs. 500,000/=) to Mr. Sheikh and a sum of Kenya Shillings Two Million (Kshs. 2,000,000/=) (Paragraph 12.6). At page 17 of the Plaintiffs’ documents was a letter from Mr. Sheikh, he was paid a sum of Kenya Shillings One Million (Kshs. 1,000,000/-) on 10 th May, 2012 and a sum of Five Hundred (Kshs. 500,000/-) by 10 th May, 2012. He was told he amount that was due to Mr. Sheikh was a JUDGMENT: ELC NO. 279 OF 2014 Page 11 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 11 of 140

sum of Kenya Shillings Three Million (Kshs. 3,000,000/-). The sale agreement did not have to state everything. His financing to the tune of a sum of Kenya Shillings Nine Million (Kshs. 9,000,000/-) never had to capture in the agreement of a sum of Kenya Shillings Nine Million (Kshs. 9,000,000/-) was paid that is why the transfer was done. Mr. Stephen Njema Karanu was his employee in the firm. 22. According to PW - 1 at page 7B was a payslip for Karanu for February 2017. The witness stated that he must have had Stephen’s payslip for the year 2012. D.Re - Examination of PW - 1 by Mr. Ibrahim Advocate. 23. PW - 1 reiterated that the was acting on behalf of his employee, Stephen Njema Karanu for him to make a profit. According to the witness he did his due diligence on the property in both transactions. There was no complainant from the vendors that there was an outstanding balance. He had been in legal practice for 55 years at the time of his testimony. At pages 17, 18 and 19 of the bundles were the evidences of payment which they had signed. At page 19, Sheikh had absolutely discharged him from JUDGMENT: ELC NO. 279 OF 2014 Page 12 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 12 of 140

their professional undertaking. This transaction was for value consideration. Stephen Njema Karanu was his employee in 2012 and had been his employee for 40 years. A. Examination - in - Chief of PW - 2 by Mr. Ibrahim Advocate. 24. PW - 2 testified on oath in the English language. He identified himself as - HARISH RAMJI PATEL. He told he court that he was the 1st Plaintiff herein. The 2nd Plaintiff was his younger brother. He had authority from the 2nd Plaintiff to testify on his behalf. He confirmed that they had instructed this case on 3 rd November, 2014; there was an authority filed. He confirmed having filed a witness statement dated 3rd November, 2014 and filed on 6 th November, 2014 which he wished to adopt as his evidence in chief. He also wished to rely on the bundle of documents filed on 10th March, 201. He was aware of the facts of the suit. B. Cross Examination of PW - 2 by Mr. Ochieng Advocate. 25. The witness told he court that he was aware that the suit property was in Kwale/Shimoni Adj/392. He was aware the suit land measured 45.56 hectares. The value of the suit property was currently between a sum of Kenya Shillings Fifty Million (Kshs. JUDGMENT: ELC NO. 279 OF 2014 Page 13 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 13 of 140

50,000,000/-) to Kenya Shillings Sixty Million (Kshs. 60,000,000/-). He could see the 1st Defendant’s document at page 39 was a title deed dated 12th October, 2012 in the name of Ahmad Hamisi Supi and the Plaintiffs’ documents at page 42 was a title deed also dated 12th October, 2012 in the name of Harish Ramji Manji and Another. 26. He stated that he could not tell of the same signature on the two title. When he discovered that a rival title had been issued, he reported to Police but there was no occurrence book. He had not sought summons to the Land Registrar. He had not written to the Land Registrar as to why there were two titles on the same property. He had known Stephen Njema Karanu for more than 20 years. He was a clerk in advocates office of PW 1. He lived and worked in Nairobi. He sold him the property for a sum of Kenya Shillings Eleven Million (Kshs. 11,000,000/-) through PW - 1. Mr. Karanu’s boss was the one who financed the property. Mr. Stephen Njema Karanu was a clerk with Mr Johwal. He paid a sum of Kenya Shillings Eleven Million (Kshs. 11,000,000/-) into Mr. Johwal’s account and he had evidence to back the transaction on page 48 of his bundle of documents, it was indicated that the sum JUDGMENT: ELC NO. 279 OF 2014 Page 14 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 14 of 140

of Kenya Shillings Six Million (Kshs 6,000,000/-). He knew Johwal was financing the property and it was in his Clerk’s name. 27. According to the witness they did a search on 23 rd October, 2014 as stated in Paragraph 6 of the Plaint. He had no evidence of the search done. He did not confirm the previous owner of the property before Sedona Limited. He was not aware previously the land was owned by Kwale Cement Factory Ltd. In paragraph 9 of the Plaint, it was stated that the Defendants were asked to surrender the title. surrender. There was no evidence asking for the When he did the search and it did not come in his name, he concluded that there had been fraud that had occurred. He did his due diligence by obtaining a search. He left the lawyers to do the due diligence. He did not attend the Land Control Board. 28. PW - 2 told the Court that his lawyer attended the Land Control Board. The property was an empty plot. He visited the property before he bought it. There were locals around. He did not know if Karanu was a local. He trusted Karanu having known him for over 20 years. He was not aware who sold the property to Kwale Cement and whether they were locals. Before he paid duty, valuations was done. He did not go to the Land Registrar to ask JUDGMENT: ELC NO. 279 OF 2014 Page 15 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 15 of 140

why there were two titles, but he left to his lawyers. He reported the matter to the police, but he did not know if they had gone to Kwale. C. Re – examination of PW - 2 by Mr. Ibrahim Advocate. 29. PW - 2 confirmed that Johwal had not complained that he had not paid him. The case was on the legitimacy of the title. The purpose of going to the Land Control Board was to get a consent to transfer the title to his name and he had the consent. He had physically inspected the property before purchasing. He was the one in occupation, doing small farming. He obtained a search in the year 2012 and it came out in his name; when he did the other one in the year 2014 it came out in the name of Sedona Limited, the 1 st Defendant. 30. The Plaintiffs through their Legal Counsel Mr. Ibrahim Advocate marked their case closed. V. The 1st Defendant case 31. The 1st Defendant entered appearance and filed its Statement of Defence and Counter - Claim dated 4 th December, 2015. The 1st Defendant denied paragraphs 5, 6, 7 and 8 of the Plaint and further denies each and every particular of fraud and illegality JUDGMENT: ELC NO. 279 OF 2014 Page 16 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 16 of 140

alleged therein. The 1st Defendant denied in total the contents of Paragraph 9 of the Plaint and states that no demand has ever been made by the Plaintiff as alleged and no notice of intention to sue had ever been given as required or as alleged or at all. Paragraphs 10 and 11 of the Plaint were admitted and further the jurisdiction of this Honourable Court is hereby admitted. 32. The 1st Defendant averred that it will seek further and or better particulars of the Plaint and upon receipt thereof reserves the right to amend its Statement of Defence as shall be appropriate. 33. On the counter claim, the 1st Defendant repeated paragraphs 1 to 6 above and all the averments set forth in the Statement of Defence and reiterate the same. At all times material to this suit the 1st Defendant had been and remained an innocent purchaser for value of the KWALE/SHIMONI Suit Premises ADJ./392 the measuring said land known approximately as 45.46 Hectares and the legitimate legal and beneficial owner thereof having bought the same using the Law of firm of Messrs. Anjarwalla & Khanna and after having conducted all due diligence, obtaining the positive results of official searches issued by the JUDGMENT: ELC NO. 279 OF 2014 Page 17 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 17 of 140

Lands Registrar and thereafter paying full consideration for the same. 34. The suit premises were not available for and were not eligible for alienation and could not have so been available whether to the Plaintiffs and or the person(s)they purport to have bought the Suit Premises from nor were they available for the concerned authorities and or the 3rd Defendant to issue and or cause to be issued to and registered any indenture or transfer or transmission of ownership or title in respect of the Suit Premises and or in any manner whatsoever to effect any transmission of rights over the Suit Premises to the 1st and 2nd Plaintiffs and or any of their alleged predecessor in alleged Title and or to any other person whomsoever as the Suit Premises was originally set aside and demarcated through a process of Adjudication and Settlement carried out Shimoni, In Kwale District and was at the time of Demarcation land that was recorded in the names of the original inhabitants thereof known as Hamisi Hamad Tsupi, Omari Mohamed Selemani and Mwatiko Nassiri Ngusa who were at all time in actual physical possession thereof and whom were recorded as such in the Demarcation Books. In the premises the JUDGMENT: ELC NO. 279 OF 2014 Page 18 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 18 of 140

issuance of the Title under the purported operation of any law by the 3rd Defendant to the 1st and 2nd Plaintiffs or any alleged person from whom they alleged to have bought it from was fraudulent, illegal and therefore null and void ab initio. 35. The 1st Defendant relied on the following particulars of fraud against the 1st and 2nd Plaintiff and the 3rd Defendant:a. They falsified and changed the entries in the Adjudication Register to reflect one Steven Jnema Karanu as the registered beneficiary of the Adjudication exercise when he was not and could not have been such. b. They falsified and changed the entries in the Adjudication Register to reflect persons other than Hamisi Hamadi Supi along with one Omari Mohamed Selemani and one Mwatiko Nassiri Ngusa to be the registered beneficiary of the Adjudication exercise when he was not and could not have been such. c. They falsified and tampered with the registers, documents and other entries and records so as to enable them to register and or issue title to persons other than Hamisi Hamadi Supi along with one Omari Mohamed Selemani and one Mwatiko Nassiri Ngusa as the original allottees following the Adjudication exercise and or the beneficiaries of the transfer to Kwale Cement Factory Limited of Post Office Box 94012 - 80107 Mombasa on the 28th May 2014 and title serial number 0831893 and thereafter on the 10th June 2014 to the favour of Sedona Limited of Post Office Box 95819 - 80106 Mombasa and the title JUDGMENT: ELC NO. 279 OF 2014 Page 19 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 19 of 140

serial number 0831952 and thereafter the charge to Diamond Trust Bank of Kenya Limited of a sum of Kenya Shillings Ten Million (Kshs. 10,000,000/-). d. They falsified and tampered with the registers, documents and other entries and records so as to enable them to register and or issue parallel title(s) and documents and or other instruments to persons other than Hamisi Hamadi Supi along with one Omari Mohamed Selemani and one Mwatiko Nassiri Ngusa as the original allottees following the Adjudication exercise and or the beneficiaries of the transfer to Kwale Cement Factory Limited of Post Office Box 94012-80107Mombasa on the 28th May 2014 and Title Serial Number 0831893 and thereafter on the 10 th June 2014 to the favour of Sedona Limited of Post Office Box 9581980106 Mombasa and the Title Serial Number 0831952 and thereafter the Charge to Diamond Trust Bank of Kenya Limited of a sum of Kenya Shillings Ten Million (Kshs. 10,000,000/-). e. They caused there to be issued two titles in respect of the same land the Suit Premises herein. f. The very existence of the 1st Defendant's Title and the second alleged Title presented by the 1st and 2nd Plaintiffs herein is sufficient evidence of fraud in as much as the 3 rd Defendant has issued two titles in respect of the same land the subject matter of this suit. g. The person from whom the 1st and 2nd Plaintiffs alleged to have bought the land was neither a local of the area nor a resident and not in actual occupation of the Suit Premises and could therefore not have legitimately or lawfully been allocated the JUDGMENT: ELC NO. 279 OF 2014 Page 20 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 20 of 140

land after the adjudication exercise and alienation resulting therefrom as only persons who were local to the area or resident thereon or in actual occupation may be considered to be beneficiaries of any demarcation and adjudication exercise and any purported demarcation and adjudication in their favor could only take place by means of fraud and illegality. h. The Plaintiffs were not the Registered owners according to official land office records and according to the evidence contained in the written statement of Charles Kipkurui Ngetich the Senior Land Registration Officer, Kwale to whose own knowledge:i) The name of the person mentioned in paragraph 5 as the alleged first allottee Steven Njema Karanu was not appearing anywhere in the official Kwale land office records and or in the Adjudication records as a first allottee. ii) There was no evidence in official Kwale Land Office records that the said Steven Njema Karanu purchased the Suit Property from the first allottee who according to official records is Hamisi Hamadi Supi along with one Omari Mohamed Selemani and one Mwatiko Nassiri Ngusa. iii) There was nothing in their Register to show that the two Plaintiffs Harish Ramji Manji and Ashvin Ramji Manji were ever or are currently registered as having any proprietary interests in the Suit Property. iv) The proprietor details in the Register were never changed save as in the manner the aforesaid and described in the JUDGMENT: ELC NO. 279 OF 2014 Page 21 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 21 of 140

statement of Charles Kipkurui Ngetich the Senior Land Registration Officer, Kwale and in which the owner is as per their records confirmed to be the 1 st Defendant, Sedona Limited. v) There was no fraudulent transaction in all the transactions in the Official records and everything was legitimately done culminating in the final position showing that the legitimate proprietor of the Suit Property to be the 1 st Defendant - Sedona Limited. vi) The said Charles Kipkurui Ngetich the Senior Land Registration Officer, Kwale has stated on record that he has never seen any evidence of purchase of the Suit Property by the Plaintiffs as has been stated in paragraph 3 of the Statement of the Plaintiffs filed herein and the same does not exist in official records at all. vii) There could not have been a transfer of any lease in respect of the Suit Property as stated in paragraph 7 of the Plaintiffs’ Witness Statement since the Suit Property is NOT A LEASEHOLD but was a FREEHOLD Title and it was inconceivable that our Registry could have registered a transfer of a lease in respect of land that is a Freehold Title. viii) In respect of the Transfer Document attached as No 1 in the Plaintiffs’ List of Documents the said Charles Kipkurui Ngetich the Senior Land Registration Officer, Kwale confirmed that there is no such document in their official JUDGMENT: ELC NO. 279 OF 2014 Page 22 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 22 of 140

records or register and the same was never lodged with their Registry. ix) The purported 'dead title' of Steven Njema Karanu did also not exist in the official file at te Registry as it ought to have been surrendered for cancellation if the transaction had been legitimate and if the new Title ought to have been issued in favour of the Plaintiffs. The title of Steven Njema Karanu must have been surrendered for the Kwale Registry to issue the Plaintiffs with the Title they allege they hold. As no Title was surrendered, no fresh Title could have been issued to the Plaintiffs. x) The said Charles Registration Officer, Kipkirui Ngetich the Kwale stated in Senior writing Land in his Statement to the Court that he sincerely believes from a study of the Adjudication Records, their Register and the history of this matter including all facts and the records at the Registry and also from his personal knowledge of the matter that there is no doubt that the 3 allottees known as Hamisi Hamadi Supi along with one Omari Mohamed Selemani and one Mwatiko Nassiri Ngusa were the true and real allottees of this parcel of land making up the Suit Property and there is no evidence to show that they in any way transferred their interests or Title to one Steven Njema Karanu and therefore there is no possibility that he could or did in turn transfer the same to the Plaintiffs herein and even if he did do so, then he sold what he had JUDGMENT: ELC NO. 279 OF 2014 Page 23 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 23 of 140

no title or proprietorship interests in and one cannot sell what they do not own in the first place. xi) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property from obtained Indentures, Transfers, Grants, Conveyance of and or Title of the suit premises in their names when they are not and cannot be the legal and or beneficial owners of the same. xii) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property falsified the Indentures, Grants, Conveyance of and or Title of the suit premises to improperly reflect them as the owners thereof while there was in existence and circulation the actual and real and correct Demarcation record, Adjudication, Register, Grants, Conveyance of and or Title of the suit premises. xiii) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property falsified the entries and signatures on the said copy of the Demarcation Register and or Grants, Conveyance of and or Title of the suit premises so as to reflect them as the owners thereof. xiv) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property purported to purchase and transfer the ownership of the suit premises without any JUDGMENT: ELC NO. 279 OF 2014 Page 24 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 24 of 140

color of right and based on false and illegal documents of title. xv) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property purported to alienate and or transfer ownership in the suit premises in favour of third parties and subsequently to the favour of the 1 st and 2nd Plaintiffs and which was not available for alienation or grant or transfer to them; xvi) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property purportedly alienated and transferred the same in favour of the 1st and 2nd Plaintiffs the said suit premises without any or any legal authority and with full knowledge of his want of authority to engage in and conclude such action; xvii) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property alienated the same with knowledge of the fact that the said Suit Premises belonged to Hamisi Hamad Tsupi, Omari Mohamed Selemani and Mwtiko Nassiri Ngusa and/or the Plaintiff; xviii) In alienating and or transferring the suit premises to third parties and thereafter to the 1st and 2nd Plaintiffs, the Plaintiffs acted mischievously and in breach of the express provisions of the law; JUDGMENT: ELC NO. 279 OF 2014 Page 25 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 25 of 140

xix) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property alienated the suit premises and transferred the same by falsifying and perverting the entire process upon which such conveyance or alienation is premised upon; xx) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property obtained the transfer of and Title to the suit premises in complete and flagrant contravention of the provisions of the Local Government Act and the Law and further failed, refused and or neglected to comply with the provisions of the Government Lands Act, the Registered Land Act, the Registration of Titles Act, the Local Government Act and the Law in its entirety; i. In any case the 1st Defendant relied completely on the searches done at the 3rd Defendant's Registry and the records kept thereat and the 3rd Defendant's explicit and implied assurances that the title to the Suit Premises were regular and in proper order and were lawful and further were legitimate and or were capable of transfer and valid transfer to the 1 st Defendant and by reason thereof the 1st Defendant committed its funds and purchased the same for development of a cement factory and caused to be prepared the necessary studies and sought the necessary investment funds and mobilized resources to that end and the 1st Defendant further avers that the current market JUDGMENT: ELC NO. 279 OF 2014 Page 26 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 26 of 140

value of the land the subject matter of this suit was now at a sum of Kenya Shillings One Billion Seven Hundred Million (Kshs.1,700,000,000.00/- ). j. By reason of the foregoing, the purported issuance of grant or transfer and or title over the suit premises by the 1 st and 2nd Plaintiffs was void ab initio, and incapable of conferring any title, interest or rights in respect to or over the suit premises to the 1st and 2nd Plaintiffs and or any of them or at all but should this Honourable court find otherwise (which it is urged not to so find),then the 1st Defendant avers that it is entitled to recover the current market value of the suit premises from the 3 rd Defendant and the 1st and 2nd Plaintiffs jointly and or severally. k. The 1st Defendant averred that there was no other suit pending and that there have been no previous proceedings, in any Court between the Plaintiffs and the Defendants over the same subject matter and that the cause of action relates to the 1 st Defendant named in the Counter - Claim. l. The cause of action arose at Kwale within the jurisdiction of this Honourable Court. 36. The 1st Defendant prayed that the 1st and 2nd Plaintiffs’ suit be dismissed with costs and that Judgement be entered for the 1 st Defendant as against the 1st and 2nd Plaintiffs and/or the 3rd Defendant jointly and or severally for:a. A declaration that the grants and or titles issued to the 1 st and 2nd Plaintiffs and or any other Third Party or any one of them and registered JUDGMENT: ELC NO. 279 OF 2014 over the Page 27 of 140 suit premises known HON.JUSTICE L.L. NAIKUNI (ELC JUDGE) as

page 27 of 140

KWALE/SHIMONI ADJ./392 measuring approximately 45.46 Hectares or thereabouts is illegal, null and void ab initio. b. An injunction do issue to permanently restrain the 1 st and 2nd Plaintiffs and or any other third parties by themselves and or their servants and or agents and or employees and or howsoever from either entering upon occupying constructing on or developing or selling, transferring, charging, mortgaging or in any other manner whatsoever and howsoever interfering with the suit premises and title thereof and or dealing with or transacting with the property the subject matter of this suit and or in any other manner whatsoever from dealing with and or interfering with and or remaining on or continuing in occupation of all KWALE/SHIMONI ADJ./392 measuring approximately 45.46 Hectares or thereabouts and or by any other past or future number or description that may be accorded to them. c. An interlocutory injunction do issue to restrain the 1st and 2nd Plaintiffs and or any other third parties by themselves and or their servants and or agents and or employees and or howsoever from either entering upon occupying constructing on or developing or selling, transferring, charging, mortgaging or in any other manner whatsoever and howsoever interfering with the suit premises and title thereof and or dealing with or transacting with the property the subject matter of this suit and or in any other manner whatsoever from dealing with and or interfering with and or remaining on or continuing in occupation of all hat parcel of land the suit premises known as KWALE/SHIMONI ADJ./392 measuring approximately 45.46 Hectares or thereabouts, or by any other past or future number or description that may be accorded to them, pending the hearing and determination of this suit. JUDGMENT: ELC NO. 279 OF 2014 Page 28 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 28 of 140

d. An interlocutory order do issue directing the Commissioner of Lands and the Registrar of Titles to ensure that no other titles or transfers or sub-divisions in respect of the Suit Premises are registered that derogate from or subtract or diminish or in any other manner whatsoever take away from or negate the title of the Plaintiff in the said property or alters the status quo hereinabove described. e. An order directing the Commissioner of Lands and the Registrar of Lands and or their servants, agents and or employees to ensure that he recalls, takes into possession and cancels the Titles issued, if any, to the 1st and 2nd Plaintiffs and that he rectifies the register by cancellation of all the entries relating to the issuance of the grants and or titles complained of to each and every one of the Plaintiffs in respect of KWALE/SHIMONI ADJ./392 measuring approximately 45.46 Hectares or thereabouts and rectify the same in all manners required to ensure the result of reinstatement of the 1 st Defendant as the sole legal and beneficial owner thereof. f. An order to the 1st and 2nd Plaintiffs to surrender any Title and all documents relating KWALE/SHIMONI 45.46Hectares or to the Suit Premises ADJ./392 measuring thereabouts and the known as approximately eviction of the Plaintiffs, their servants agents employees or proxies and any other parties from the suit premises. g. General Damages; h. Alternatively the payment of compensation to the 1 st Defendant by the 1st and 2nd Plaintiffs and or the 3rd Defendant whether jointly and or severally the sum equal to the current market valuation of the Suit Premises or the sum of Kshs. 1,700,000,000.00 whichever is the higher. i. Costs of and incidental to this suit. JUDGMENT: ELC NO. 279 OF 2014 Page 29 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 29 of 140

j. Interest on a Compounding rate on all the above at the rate of 24%per annum. k. Further and or other relief as this Honourable Court may deem fit to grant. 37. The 1st Defendant called its 1st witness on 20th June, 2022 at 1 pm who testified as follows:A. Examination - in - Chief of DW - 1 (for the 1st Defendant) by Odipo Advocate. 38. DW – 1 gave a sworn statement and testified in English language. He identified himself as - MR. Zuher Mehboob Kassamali LADAK stating that he was born on 18 th June, 1973 and had recorded his statement on 17th December, 2015 which he wished to adopt as his evidence in chief and produced the bundle of documents from page 1 to 12 of his documents as 1 st Defendant Exhibits Numbers 1 to 7. 39. DW - 1 stated that he was the Director operations of Sedona Limited – the 1st Defendant and he had knowledge of the transaction between Ahmed Hamisi Supi and Kwale Cement. He also had knowledge of the transaction between Sedona and Kwale. There was no official search between Kwale Cement and Supi. There was a sale agreement but the same has not been produced. There was a consideration of a sum of Kenya Shillings Eight Million JUDGMENT: ELC NO. 279 OF 2014 Page 30 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 30 of 140

Nine Eighty Six Thousand Four Hundred (Kshs. 8,986,400/-); the evidence of funds transfer had not been produced. The valuer valued it for a sum of Kenya Shillings Eight Million Nine Eighty Six Thousand Four Hundred (Kshs. 8,986,400/=) for purposes of payment of payment of stamp duty. There was no record for it but they paid the stamp duty (witness referred to Paragraph 9 of his statement). He told the court that they talked on the phone. 40. According to the witness the Chief Land Registrar made a statement under his guidance. He was not aware that there had been any objection to the production of that statement. He had no knowledge of whether the Chief Land registrar carried the parcel file, but he carried the relevant documents. The transfer between Kwale Cement Company and Sedona Limited there was no evidence of stamp duty – Transfer document on Page 55 franked stamp shows 06.14 – the numbers were not legible. The franking stamp was not properly. 41. The witness stated that there was no original documents produced. With reference to the charge at page 58 and 95, the witness stated that proof of payment of stamp duty of a sum of Kenya Shillings Eight (Kshs. 880,700/-) for the declared value of JUDGMENT: ELC NO. 279 OF 2014 Page 31 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 31 of 140

the charge which was Ten Million United States dollar (US$10,000,000/-) payment to the National Bank was 3 rd July, 2014 but the receipt was dated 2nd July 2014. The receipt on page 96 showed it was cash payment. The variation on the dates were as the banks have a closing time when payments can be made hence they move the dates to the following date. B. Cross examination of DW - 1 by M/s Kiti Advocate. 42. DW - 1 confirmed that he conducted due diligence before the transaction took place. They had also obtained the Land Control Board consent. He confirmed that there was no collusion between themselves and the Land Registrar. C. Re - examination of DW - 1 by Mr. Odipo Advocate. 43. The witness reiterated with reference to the receipt of National Bank of Kenya on page 96 was for NBK that he had no relationship between himself and the bank. There was Rising Star nor Kwale Cement. They were only paying stamp duty. There was a transfer document in court, though they had a sale agreement with their then Advocates Messrs. Anjarwalla & Khanna Advocate and their names appear in all the documents. There was no collusion between them and the Land Registrar. There was a problem with JUDGMENT: ELC NO. 279 OF 2014 Page 32 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 32 of 140

the title deed he would have to go to the Land Registrar for verification. In the year 2015 they had received a complaint on the legality of the title from the Plaintiffs and the Attorney General; this was why they sought to meet the Land Registrar for explanation. A. Examination - in - Chief of DW - 2 (1 st Defendant’s witness) – by Mr. Odipo Advocate. 44. DW – 2 identified himself as Mr. Kimani Mwinyi Mwaganguvu. The witness told the Court that he was born on 1 st January, 1962. He recorded a state at pages 18 and 22 dated 17th December, 2015. B. Cross examination of DW - 2 by Mr. Mohamed Advocate:45. DW - 2 told the court that he knew Mr. Ahmed Hamisi Supi, the land was for 3 persons (parents – Hamisi Hamadi Supi, the father; and uncles Omari Mohamed Suleiman and Mwaliko Nassin Ngusa. The Land was transferred by a letter. The letter on page 59 of the 1st Defendant bundle of documents. When referred to page 40 the witness stated that Entry No. 1 dated 9 th April, 2002 of the Land was still in the names of Ahmad Hanusi Supi. There was no transfer form. He did no deal with transfer. According to the witness, paragraph 4 there were minutes but they were not in JUDGMENT: ELC NO. 279 OF 2014 Page 33 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 33 of 140

court and paragraph 5 there were no minutes. He had no authority letter to sell the land. C. Reexamination of DW - 2 by Mr. Odipo Advocate. 46. The witness confirmed that on 17th September, 2012 there was a letter by the chief. All the green cards for Kwale were done in 2000. 47. On 17th February, 2023 the 1st Defendant called its third witness DW - 3 who testified as follows:A. Examination in Chief of DW - 3 (1 st Defendant’s witness ) by Mr. Odipo Advocate. 48. DW – 3 testified in Swahili language under oath. Mr. Hamadi Hamisi Supi. He told the Court that he was born in year 1948. He was a farmer and he lived in Fikirini village, Shimoni area. He recorded a witness statement dated 17 th December, 2015 and he produced one document marked as “CK – N – 13” as his bundle of documents which was a letter by the Location Chief marked as 1 st Defendant Exhibit. He fully relied on these documents as his evidence in chief. B. Cross examination of DW - 3 (1 st Defendant’s witness) by Mr. Adan Advocate. JUDGMENT: ELC NO. 279 OF 2014 Page 34 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 34 of 140

49. DW - 3 stated that he knew a Company called Kwale Cement. He sold his land to them in the year 2014. He went to a law firm for this purpose. He signed the transfer forms and other documents he gave his advocates his identity. He confirmed that the identify he gave his advocate for the sale transaction and the one he produced/showed Court on the day of his testimony were not the same (with reference to a copy on page 52 of the 1 st Defendant’s bundle of documents its slightly different.). 50. Accordingly it was the witness’ statement that the land initially belonged to his father – Hamadi Supi, Mr. Omar Mohamed and Mr. Matiko Nassir, it was a family parcel (Referred to Page 34 of the 1 st Defendant’s bundle of documents) it shows the land was under the Land Adjudication Section, Map – for 3 people). He was a inheritor/ a beneficiary of the land of his father’s share. They sat down with other owners of the land and families, discussed and agreed to sell it. He was to be the first to sell his portion. He remembered it was in the year 2012. They wrote a letter to the area chief and were allowed to proceed. 51. DW - 3 confirmed that he had never applied for succession. He did not have any other documents apart from the letters from the JUDGMENT: ELC NO. 279 OF 2014 Page 35 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 35 of 140

chief, he did not know when the title was given (referred to pages 40 and 59 cross referenced to the letter of Chief). The land was not conferred to him apart from the letter from the chief. He did not have any minutes of the family for purposes of resolving to sell the land. There was no sale agreement nor letter of consent obtained from the Land Control Board, he never signed any transfer documents. But he was paid a sum of Kenya Shillings Eighty Thousand (Kshs. 80,000/-) as the purchase price. He was issued with a receipt but which got burnt down when his house burned sometimes back. He did not know which year was written on the title deed. C. Re-examination of DW - 3 (1st Defendant’s witness) by Mr. Odipo Advocate. 52. DW – 3 told the court that he did confirm that the identification card he had been show was his and the identification number was on the copy of the one on page 52 on the transfer form of his bundle was slightly different. It read identification number although there was a difference his identification number. The difference is on Nos. 8 and 6. He noted the error and he caused it to be rectified in the year 2019. JUDGMENT: ELC NO. 279 OF 2014 Page 36 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 36 of 140

53. The witness told he court that he sold the land to Kwale Cement, it belonged to his father – Mr. Hamisi Hamadi. He had a document/ certificate and number of the land. He had no title deed for the land. It was the Kwale Cement Company Limited that processed the title deed. They paid him his money for the purchase of the land. He distributed the money to the family. They were very alert. The land had been registered to 3 people. They were all his uncles. Though one of them – Mr. Omar had no children and hence they brought in the fourth person. He had that the land was sold to someone else and who he would have liked to know, the person who sold him the land and how. 54. The 1st Defendant through its Counsel, Mr. Odipo marked the close of its case. VI. The 2nd Defendant’s case:- 55. The 2nd Defendant entered appearance and filed their Statement of Defence dated 27th February, 2015 where the 2nd Defendant denied the contents of the paragraphs 5 and 6 of the Plaint. Further the 2nd Defendant averred that: a. The property known as Parcel no. Kwale/Shimoni Adj/392 is lawfully registered in the name of the 1 st Defendant, the owner thereof: JUDGMENT: ELC NO. 279 OF 2014 Page 37 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 37 of 140

b. The said property was lawfully charged to the 2 nd Defendant as security for a financial facility of United States Dollars (US dollars 10,000,000/-) advanced to Rising Star Commodities Limited; c. The registration of the said property in the name of the 1 st Defendant, and the subsequent registration of the charge over the said property in favour of the 2 nd Defendant, were lawfully undertaken in accordance with all legal and procedural requirements and were duly consented to by the relevant government regulatory agencies; and d. In view of the above, the title to the property held by the Plaintiffs herein is evidently a fallacious title that was irregularly acquired and which does not confer any proprietary interest in the said property to the Plaintiffs. 56. The Plaintiffs were put to strict proof of any averments to the contrary. According to the 2 nd Defendant, in response to Paragraph 7 and 8 of the Plaint, the 2 nd Defendant reiterated the contents of paragraph 3 herein above and denied the same. Paragraph 9 of the Plaint was denied. The 2nd Defendant further averred that no correspondence whatsoever was issued to it by the Plaintiffs prior to the institution of this suit. The 2 nd Defendant admitted to the contents of paragraph 10 and 11. The 2nd Defendant prayed for the dismissal of the suit. JUDGMENT: ELC NO. 279 OF 2014 Page 38 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 38 of 140

57. The 2nd Defendant called their first witness who testified as follows:A. Examination in Chief of DW - 4 (2 nd Defendant’s case) - by M/s Wangui Advocate. 58. DW - 4 testified on oath. He identified himself as Mr. Francis Kimwea Kariuki for the 2nd Defendant. DW – 4 told the court that he was born on 7th August, 1994, the Assistant Manager of Diamond Trust Bank Legal Department. He adopted his witness statement dated 11th November, 2021 and a list of document dated 24th March, 2015 marked as “A” to “Q” – page 2 as 2 nd Defendants’ Exhibit No. 1 to 17. B. Cross examination of the DW - 4 (2 nd Defendant’s witness) by Mr. Ibrahim Advocate. 59. The witness told the court that by the tine of the transaction he was not working for Diamond Trust Bank he was in a law firm. He explained the procedure that they normally received a valuation officer/ expert to undertake the exercise. The value of the of the property on 3rd June 2014 for a sum of United States Dollars (US$19,310,000/-) which is the resell value. The valuer was Mohamed A. Samji the value of the property on Page 8 Clause 8 – JUDGMENT: ELC NO. 279 OF 2014 Page 39 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 39 of 140

Market value of Property a sum of United States Dollars Nineteen Million Three Hundred and Ten Thousand (US$19,310,000/-) Page 50 from the Government Valuer was a sum of Kenya Shillings Eight Million Nine Eight Six Thousand (Kshs. 8,986,000/-). There was a wide variation, it was an agricultural land. He was not aware whether there was any change of user. The Land Control Board consent was required for agricultural land. He did not know who was in possession of the land and told the court that he should have gotten to know that information with time. 60. DW 4 told the court that Sanyi had two values a sum of United States Dollars Nineteen Million Three Hundred and Ten Thousand (US$19,310,000/-) and market value with special assumption a sum of United States Dollars Twelve Million Three Eighty Seven Thousand (US$1h2,387,000/-). They got another valuation by Thomas M. Mutwiwa – Civil Engineer (Page 19) – he dealt with Civil (Building) works. The official search conducted on 10 th June, 2014, the same date as stamp duty franking and the date of charge Page 44. There was no application for the search by D.T.B. This was a post search done by Sedona Ltd. When referred to page 53 and 54, the witness stated that it was signed by Senior manager JUDGMENT: ELC NO. 279 OF 2014 Page 40 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 40 of 140

Corporate intentionally was accepted. At page 54, the witness stated that the customer had never said there was a problem. 61. With reference to Page 58, DW - 4 for the 2 nd Defendant confirmed that the client gets to know of the stamp duty from the receipt of client pages S.D. after it had been assed. Page 96 was a receipt of KRZ dated 2nd July, 2014 while the date of assessment was on 3 rd July, 2014. The receipt was printed 2 nd July-, 2014 on Page 102. This swift message Hannes anytime. It was done on 15 th July, 2014 at 6.33 P.M. It was done to Diamond Trust Bank Limited. On page 107, the witness stated that the email dated 16 th July, 2014 by Zuher Ladak, he needed a legal opinion from Mohamed Madhani Advocates. The stamp duty was paid on 3 rd July, 2014. There were two property official searches and the Land Control Board was issued on 25th June, 2020. C. Cross examination of DW - 4 (2nd Defendant’s witness) by Mr. Odipo Advocate. 62. The witness stated that he was an advocate, he had not studied Bachelor in Land Economics on Land Valuation. He only had two valuations. The facility was disbursed. There had been different dates by the National Bank of Kenya, Diamond Trust Bank was not JUDGMENT: ELC NO. 279 OF 2014 Page 41 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 41 of 140

a party to the making of the receipt. They asked for this receipt so that they confirmed that the stamp duty. They never get the original as it was retained by the Land Registrar. The 2 nd Valuations was restricted to mining. The valuation varied due to the purpose. D.Re - examination of DW - 4 (2nd Defendant’s witness) by M/s Wangui Advocate. 63. The witness confirmed that he was shown Government valuation page 50, the purpose was for transfer between the Vendor/Seller Kwale Cement Facility Ltd to the purchaser Sedona Ltd; the purpose was payment of Stamp Duty. 64. The 2nd Defendant through its Counsel, M/s. Wangui marked their case closed on 20th June, 2022. This was confirmed by Mr. Jango David on 17th February, 2023. VII. The 3rd Defendant’s case 65. The 3rd Defendant entered appearance and filed their statement of defence and statement to counter claim dated 10 th June, 2016 where the 3rd Defendant denied the contents of paragraph 5 of the Plaint that relates to the ownership of the suit property. The 3 rd Defendant denied the contents of Paragraphs 6, 7 and 8 stating JUDGMENT: ELC NO. 279 OF 2014 Page 42 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 42 of 140

that the particulars of fraud enumerated therein. The 3rd Defendant denied the averments by the Plaintiff at Paragraph 9 of the plaint and avers it does not reveal any cause of action against its esteemed office. Without prejudice to the foregoing, the 3rd Defendant averred that they reserved the right to raise and argue a preliminary objection to the effect that this suit was unprocedural and premature in nature as per provisions of Section 13A of the Government Proceedings Act, Cap. 40 as the Plaintiff had not served a Notice of Intention to sue the 3 rd Defendant. Paragraphs 10 and 11 were admitted. 66. On the Statement of Defence to the Counter - Claim, the 3 rd Defendant denied Paragraphs 8 and 9 of the Counter - Claim and further denied each and every particular allegation of fraud and illegality alleged therein. The 3rd Defendant further stated that there was no reasonable, probable cause and/or conclusive proof set out by the plaintiff to support the allegations of fraud as set out in the counterclaim against the 3 rd Defendant. The 3rd Defendant denied the contents of Paragraphs 10 and 11 of the Counter - Claim. JUDGMENT: ELC NO. 279 OF 2014 Page 43 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 43 of 140

67. The 3rd Defendant admitted the contents of Paragraphs 12 and 13 of the Counter - Claim and jurisdiction of this Honourable Court was admitted. The 3rd Defendant averred that the Plaintiff in the Counter - Claim could not allege fraud against its office and then proceed to file a statement by the office holder. To this end, the 3 rd Defendant averred that at the hearing it would apply to have the statement of Charles K. Ngetich be struck out from the Plaintiffs list of documents dated 17th December, 2015. 68. The 3rd Defendant prayed that the Suit and Counter - Claim be dismissed with costs. 69. On 16th October, 2023, the 3rd Defendant called their first witness who told the Court that:A. Examination in Chief of DW - 5 (3 rd Defendant’s witness) by M/s. Kiti Advocate. 70. DW - 5 was sworn and testified in English language. He identified him Charles Kipkirui Ngetich told the Court that he was the Deputy Land Registrar currently serving in Kuria Land Registry in Migori. He filled statement dated 6th September, 2016 it contained in the bundle of documents by the 2nd Defendant filed on 17th December, 2015. He relied on them. The suit property was allocated (i.e. Land JUDGMENT: ELC NO. 279 OF 2014 Page 44 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 44 of 140

Reference No. KWALE/SHIMONI/ADJUDICATION/392) to three men – in the year 1970s. They were of Digo descent (a) Hamad Hamisi Tsupi, (b) Omar Mohamed Suleiman and (c) Matipo Nasir Mbuza. The original record for the Shimoni adjudication section is available. He suspected that two of the owners passed on only that surviving. 71. Hamid Hamis Tsupi sold the land to Kwale Cement Ltd. On 12 th October, 2012 and the title was issued by Land Registrar Evans Marwanga. On 10th June, 2014 Kwale Cement Limited sold to Sedona Limited and was charged on 4th July, 2014 to Trust Bank (K) Limited for United States Dollars (US$ 10,000,000) and he was the one who signed both the transfer and charge. On 24 th November, 2014, he placed a government restriction because of the current civil suit. B. Cross examination of DW - 5 by Mr. Adan Advocate. 72. DW – 5 told the court that he produced an expert report of the Land Adjudication Registrar at page 34. He stated that it was purely for use by the Land Adjudication and Settlement Officer and not for public use. It’s part of an adjudication record. It was to show the property was owned in common in equal share. Tenancy JUDGMENT: ELC NO. 279 OF 2014 Page 45 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 45 of 140

in common indicate where one of the owner the property – the shares goes to the benefit of the heirs through a probe and/or succession of for Muslim to the Kadhi’s Court. But for Joint Ownership the shares goes to the surviving joint owner. It’s the 3 names that goes for parcels name for registration. 73. With reference to page 39 of the bundle, the witness reiterated that it was a Certificate of Title in the name of Ahmed Hamisi Supi registered on 12th October, 2012 and the witness directed the Court to look at the proprietorship section the Land Registrar relied on the record. With reference to page 59, DW - 5 told the Court that it was a Letter dated 7 th September, 2012 addressed to Land Registrar Kwale, Reference KWALE SHIMONI/ADJ No. 392 (Refer to the letter) by the Chief. But this letter was not binding to the Land Registrar. 74. According to DW - 5, he knew that there were 3 people owing the land as it was a land owned in common. This was an error which was an irregular procedure. They should have followed the long but the right was applying for letters of administration. Though the letter by the Chief talked of the three of them, had agreed meaning they were all alive and the succession process did not JUDGMENT: ELC NO. 279 OF 2014 Page 46 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 46 of 140

arise. On 28th May, 2014 – the Certificate of title was issued to Kwale Cement Factory Limited. There was a transfer from Ahmed Hamisi Supi and he cancelled the title. For a complete document to be presented one would have to check some boxes which include:1) The Consent Letters. 2) Valuation form. 3) The Stamp Duty/KRA. 4) Transfer Form duly executed by Advocates under Section 34 of Advocates Act. 75. The witness told the court that they endorsed them and they released them to the advocates. The Stamp duty document may be missing but it was paid. The witness met in his office; he requested for the register. The Government restriction was put on 24th November, 2014 due to the matter in Court in ELC. No. 279/2014. It’s the Advocate who would come to the office. i.e. Taib A. Taib Advocate. He had never gone to Taib Advocate’s office. He did not even know where they were situated. He only followed the record of his predecessor, he had never colluded with any other person. After the Land Registrar had prepared a JUDGMENT: ELC NO. 279 OF 2014 Page 47 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 47 of 140

Certificate of title the next thing remaining was for them to collect it from the counter. It was the assessment of the property that comes first before the payment of stamp duty that follows:76. He was not aware of any indemnity deed. Notice on to the adjacent land. When referred to the Kenya Gazette Notices page 54 of the Plaintiff’s documents – on indemnity, DW - 5 stated that it was for the title deed that had disappeared. It was Charles Ngetich’s name. The value of the property was a sum of Kenya Shillings Eight Million Nine Eighty Six Thousand (Kshs. 8,986,000/-). At page 55 of the Defendants’ bundle, there was no consideration, he suspected that the two companies were related. The records of payment of stamp duty was kept by the advocate. They never retained any records. C. Cross examination of DW - 5 by Mr. Odipo Advocate. 77. DW 5 confirmed that if the companies were related in the same transaction they may be exempted from paying stamp duty. Page 40 of the 1st Defendant’s bundle – the title was registered on 12 th May, 2012 but in the proprietorship section they came to collect the title to the owner on 9th April, 2002 in this community fear JUDGMENT: ELC NO. 279 OF 2014 Page 48 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 48 of 140

that the title may be mutilated by termites, hence they took a while. 78. According to the witness, he was not a succession lawyer, he met Mr. Zuheir in his office. He was not aware whether he was a director of Kwale Cement. It was irregular meeting Mr. Taib Advocate in their offices like all other Advocates who came for the transactions. The Kenya Gazette Notices before they were published and they were two notices which were taken to the Government Printers. D.Cross examination of DW - 5 by Mr. Jango Advocate. 79. DW - 5 reiterated that the property was registered in Sedona Company and charged for a sum of United States Dollars ten Million (US $ 10,000,000/-). Before the charge was registered there was ascertainment that indeed the property was charged by the charger. 80. The 3rd Defendant through M/s Kiti marked their case closed on 16th October, 2023. VIII. Site visit Report for an onsite hearing held on the suit property on 17th February, 2023 Preliminaries: - JUDGMENT: ELC NO. 279 OF 2014 Page 49 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 49 of 140

Session held at Kibuyuni/Swaka Firini Shimoni area – on site as per the order of this court made on 20th June, 2022. The session commenced at 2.30 P.M. in the presence of the following: Quroum: A. Court (a) Hon. Justice L.L. Naikuni – ELC Judge (Court 3) (b) Ms. Yumna – Court Assistant B. Plaintiff (a) Mr. Adan Advocate (b) Mr. James Mutua – A representative of the Plaintiff and who works for and with a surveyor firm. C. The Defendant (a) Mr. Odipo Advocate (b) Mr. Janjo David Advocate (c) M/s. Kiti Advocate (d) Mr. C.K. Ngetich – Deputy Land Principal Registrar – HQ (e) Mr. Kambi Munyi (f) Mr. Hassan Jessa (g) Several Members of the family of Mr. Hamadi Hamisi Supi D. Security Operatives (a) P.C. Alex Kiptoo – Shimoni Police Station (b) P.C. Alex Ouma – Shimoni Police Station The team at first stopped at Kibuyuni, Shimoni where the suit land known as Land Reference No. Shimoni/ 392 measuring 45.56 HA (Approximately 112.58acres) is situated E. Purpose: The Honorable Court explained briefly that the two (2) purposes of being on site – close to 300 Kilometers from court Mombasa Mainland on the Southern part towards Tanzania – in Digo Land was:(a) To see the land and identify the occupants and the activities taking place on it. (b) To conduct the hearing examination in chief of DW-4 cross Examination and Re-Examination as it was indicated he was advanced in age – (90 Years) and was in poor medical condition, court felt it needful in the JUDGMENT: ELC NO. 279 OF 2014 Page 50 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 50 of 140

interest of access to justice Under Article 48 of the Constitution of Kenya 2010 to conduct the visit. F. The General Observation:The team made three (3) observations – there sere: (a) That the site is situated inside a very bushy area, close to 20 Kilometers from Shimoni shopping/trading Centre. There are very thick and bushy vegetation and plantations, it’s very futile and potential though with several Coral stones spread all over. It appears the Coral materials are nearby the surface of the land. It’s a long rough and terrain/dusty road that leads to the site/suit land passing numerous suits and unoccupied parcels of land. (b) There was no Land Surveyor present and hence not possible to undertaken any meaningful surveying exercise as envisaged under the Provisions of Section 18 of Land Registration Act. However, Court also noted that the dispute is more of ownership and not on the size or the boundaries of the land. (c) That the family of Mr. Omar Bakari, the ones who were alleged to have sold the suit land to one Mr. Steven Njema Karano and thereafter Mr. Karanu sold to the Plaintiff were not present. (d) That the land is not occupied. G. Remarks Mr. Odipo: I am ready to proceed with the Defence hearing and close it on behalf of the 1st Defendant. I have my witness – Mr. Hamadi Hamisi – 90 years old man a waiting for us at a place called Fikina Swaka – 5 Kilometers from here. Mr. Adan: I do seek the court indulgence and wish that the matter is adjourned as having travelled this long time has moved, besides we have no surveyor present and I may not be ready. I have heard the witness is elderly and ailing. I may need time after Mr. Odipo Advocate hands him over to me for proper cross examination, I do not mind even if they applied to substitute his statement or him with another and the proceedings can take place in open court. Further, the other witnesses – Mr. C.K. Ngetich may testify in court. Mr. Odipo: JUDGMENT: ELC NO. 279 OF 2014 Page 51 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 51 of 140

I oppose that application for adjournment as indicated my witness is 90 years old and ailing. He is ready. Court was courteous enough to agree to come all this way for this purpose. We still have time it’s just appropriated we proceed. Mr. Janjo David: I am not opposed to the adjournment by the Plaintiff. We can take another hearing date, due to time. M/s. Kiti: I oppose the application for adjournment, we have travelled all the way and its only 2.45 P.M. The matter should be heard as scheduled. H. Court: Upon hearing the submissions by all the counsels with regard to the application for adjournment by Mr. Adan Advocate. I proceed to make the following directions/orders: (1) That the application for adjournment has no merit, taking that the court has travelled all the way for this purpose and besides its only 2.45 P.M. and hence declined. (2) That the matter will proceed by taking the evidence of DW-4 but all other witness may be discharged. The 1st Defendant should then close their case. (3) That the Land Registrar Kwale, and Coastal Regional Surveyor be and are hereby directed to undertake intensive surveying exercise of all that parcel of land known as Land Reference No. Shimoni/392 (Suit Land) pursuant to the provisions of Section 18, 19 and 20 (3) of the Land Registration Act No. 3 of 2012, within the next 30 days from today and prepare a Survey Report to be shared by parties and filed in court. All other parties to be at liberty to engage their own Independent Private surveyors during this exercise Hon Justice L.L. Naikuni 17.2.2023 IX. Submissions 81. On 16th October, 2023 after the Plaintiffs and Defendants marked the close of this case. Subsequently, the Honourable court JUDGMENT: ELC NO. 279 OF 2014 Page 52 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 52 of 140

directed that parties to file their submissions within stringent timeframe thereof on. Pursuant to that the Parties complied accordingly and on 13th February, 2024, the Honourable court reserved a date to deliver its Judgement on 13 th February, 2024. A. The Written Submissions of the 1st and 2nd Plaintiffs 82. The Plaintiffs through the Law firm of Messrs. Wetangula, Adan & Company Advocates filed their submissions dated 12 th February, 2024. Mr. Adano Advocate submitted that the submissions were in respect to the 1st and 2nd Plaintiffs’ plaint dated 3rd November, 2014. The Plaintiffs Kwale/Shimoni/392 purchased the the same claimed ownership of subject matter this from Stephen of Njema the suit Karanu property having via an agreement of sale dated the 5 th April, 2012. The Plaintiffs purchased the property for a sum of Kenya Shillings Eleven Million (Kshs. 11,000,000/-) and which they have provided to this court proof of payment. 83. The Learned Counsel argued that the Plaintiffs further paid stamp duty of Kenya Shillings Two Hundred and Twenty Thousand and Forty Shillings (Kshs. 220,040/-). The Plaintiffs had their title registered on the 12th December, 2012. Prior to the purchase of JUDGMENT: ELC NO. 279 OF 2014 Page 53 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 53 of 140

the property the Plaintiffs carried out due diligence through their advocate Satpal Singh Jowhal and who was a witness (PW - 1) in this case. Upon perusal of all the relevant transfer documents and upon being satisfied that the stamp duty was paid and the records in the registry reflected that the said Stephen Njema Karanu was the registered owner the Plaintiffs proceeded to purchase the property. The Historical search carried out by the Plaintiffs showed that the original allottee was one Omar Bakari Diwani. His title was registered on the 15th May, 2007. The title deed issued further shows that the property was allotted to him on the 9 th April, 2002. This information is backed up by a search conducted on the 12 th April, 2012 at page 13 of the Plaintiffs bundle of documents. 84. According to the counsel, the said Omar Bakari Diwani transferred the property to the second owner Stephen Njema Karanu on the 5th April, 2012. All the transfer documents have been attached plus the stamp duty forms, Land Board Control Consent and the Payment receipts. It was the Plaintiffs case that they are the real owners of the property having conducted due diligence of all the documents held by the land registrar and having followed and satisfied all the legal conveyancing procedures. JUDGMENT: ELC NO. 279 OF 2014 Page 54 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 54 of 140

85. According to the Learned Counsel, the 1 st Defendant claimed to have purchased the property from Kwale Cement Factory Limited on the 5th June, 2014. from the documents filed Kwale Cement Factory Limited purchased the property from one Ahmad Hamisi Supi on the 22nd May, 2014 and the title was issued on the 28 th May, 2014. Further, from the bundle of documents by the 1 st Defendant Ahmad Hamisi Supi was not the registered appropriator of the property. at page 33 the property was initially allotted to Hamisi Hamad Tsupi, Omari Mohamed Seleman and Matiko Nassiri Ngusa and the interest registered was that in common each 1/3 of undivided share. 86. On the inconsistencies in the evidence of the 1 st Defendant Witness No. 1, the Learned Counsel submitted that from the evidence adduced by Mr. Zuher in court, he informed the court that he was aware of the transaction between Ahmed Supi and Kwale Cement. However, he did not produce any documentation pertaining to that transaction. There was no official search produced in court conducted by Kwale Cement Limited. He indicated that there was a sale agreement but the same had not been produced in court. However, the evidence adduced by Mr. JUDGMENT: ELC NO. 279 OF 2014 Page 55 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 55 of 140

Ahmed Supi during trial was to the effect that there was no sale agreement. This issue raised the question who was not being truthful? And further did the 1st Defendant conduct proper due diligence? 87. According to the learned Counsel, the 1 st Defendant further testified that they paid a consideration of a sum of Kenya Shillings Eight Million Nine Eighty Six Thousand and Four Hundred (Kshs. 8,986,400/=) as the purchase price for the property. However, no evidence of payment was produced in court. The documents showing proof of payment was well within the custody of the 1 st Defendant. The question that begs an answer is why leave such a crucial document out. Could it be no such consideration was paid. The other inconsistency on part of the evidence of the 1 st Defendant is on payment of stamp duty, there is no evidence produced in court that stamp duty was paid by Kwale Cement Factory Limited and further no evidence was produced to the effect of payment of stamp duty by Sedona Limited. It was of no surprise that the registrar who happened to be a witness for and on behalf of the 1st Defendant and who the Learned Counsel quoted the 1st Defendant verbatim “the chief land registrar made JUDGMENT: ELC NO. 279 OF 2014 Page 56 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 56 of 140

statement under my guidance” produced certified copies of all other documents other than the payment slip for stamp duty. 88. As pertains to the charge, the Learned Counsel submitted that the 1st Defendant witness testified that the discrepancy in the dates i.e. the date of the receipt and that of the stamp was a result of the bank closing hours. It was paramount to understand how the payment of stamp duty works. On valuation of the stamp duty to be paid, one obtains SD1 forms duly stamped by the land registrar. One goes with the SD1 forms to the bank to make payment and upon payment the bank also stamps the SD1 form. In the present case the SD 1 form is stamped by both the registrar and the bank on the 3rd July, 2014.However, the payment receipt from the bank is dated the 2nd July, 2014, could it be that the 1st Defendant paid stamp duty without assessment by the land registrar? If yes how did the 1 st Defendant know how much is to be paid without assessment. This clearly was a fraudulent document. Worse of it all this was the only document produced by the 1 st Defendant allegedly showing the element of stamp duty. 89. The inconsistencies in the evidence of the 1 st Defendant Witness No. 2, the Learned Counsel submitted that the evidence of Mr. JUDGMENT: ELC NO. 279 OF 2014 Page 57 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 57 of 140

Hamisi Supi. First it was on the issue of his identity card number he testified from the Identity Card produced in court that his national identity card No. is 4619651. He indicated that the Identity Card number on the transfer documents reads 4619851 and which was erroneous and that he rectified the error in 2019. However, the 1st Defendant struggled to understand when was this error first encountered. Because from the green card produced in court and which was registered in 2002 it bore the erroneous Identify card No. As a matter of fact, he did not produce in court a copy of the national identity card that was erroneous. This made it extremely difficult for this Honourable Court to authenticate who really was Mr. Hamisi Supi. 90. The 1st Defendant testifies that he was not the original allottee of the land the subject matter of this suit. As a matter of fact, he admitted that he was a beneficiary of his father's estate (Hamadi Supi) who purportedly owned the property in common with two other persons at adjudication. He testified that succession cause was never filed and that he managed to obtain title deed using a chief's Letter. How strange and irregular that the land registrar used a chief's letter to register the title in the name of this witness JUDGMENT: ELC NO. 279 OF 2014 Page 58 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 58 of 140

Hamisi Supi. The extent of fraud is exposed further y the mere fact that the Chief's letter was dated in the year 2012 to allowed for the property to be registered in the name of Hamisi Supi, while the green card is purportedly opened in the year 2002. 91. By the mere fact that this was irregular, no-good title can be conferred on Mr. Hamisi Supi and he subsequently lacks any authority to transfer the title. As such the 1 st Defendant cannot claim to have acquired any title to the property. The witness further testified that he did not sign any sale agreement and or transfer documents to transferring the property to Kwale Cement. This goes to show the extent of illegalities committed and why the title held by the 1st Defendant could not stand. The question that this Honourable court is to consider who executed the transfer forms transferring the property to Kwale Cement Limited? Who attended the Land Control Board now that the registered owner did not execute and or attend any of the above. 92. From the transfer forms attached transferring the property from Ahmad Hamisi Supi to Kwale Cement Factory limited the consideration is Kenya Shillings Eight Million Nine Hundred and Eighty-Six Four Hundred (Kshs. 8,986,400/-). However, from the JUDGMENT: ELC NO. 279 OF 2014 Page 59 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 59 of 140

testimony of Ahmad Hamisi Supi, that he was paid Kenya Shillings Eighty Thousand (Kshs. 80,000/-). So again, was the sale for Kenya Shillings Eight Million Nine Eighty Six Thousand Four Hundred (Kshs. 8,986,400/-) or Kenya Shillings Eight Thousand (80,000/-) Further this court should see the concoction of lies brought forward by the 1st Defendant witnesses. Why would anyone sell property worth Kenya Shillings Eight Million (Kshs. 8,000,000/=) for Kenya Eighty Thousand Kshs. 80,000/-). Mr. Zuher testified that the transfer from Kwale Cement Factory Limited to Sedona Limited was for a consideration of Kenya Shillings Eight Million Nine Hundred and Eighty Six Four Hundred (Kshs. 8,986,400/- ). And the purchase from Mr. Ahmad Supi was for the same amount Kenya Shillings Eight Million Nine Hundred and Eighty Six Four Hundred (Kshs. 8,986,400/-) why the transfer. What value did Kwale Cement Factory Limited stand to gain. 93. On the Defendants case, the Learned Counsel submitted that it was the Plaintiffs position that the first transfer of title being defective, the registered charge is also defective. It was surprising, how casually the 2nd Defendant conducted investigation of title for such a large colossal amount of money United States Dollars Ten JUDGMENT: ELC NO. 279 OF 2014 Page 60 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 60 of 140

Million (US$10,000,000). As part of the procedure in the issuance of a charge, banks normally conduct an independent valuation to ascertain that the value of the amount borrowed is commensurate to the security issued. The fact that a transfer valued at approximately Kenya shillings Eight Million (Kshs. 8,000,000/-) by the Government Valuer can guarantee a loan worth US Dollars Ten Million (US$ 10, 000.00) was testament to the level of collusion between the staff of the 2nd Defendant and the 1st Defendant. From the documents attached the valuation report was dated the 3 rd June, 2023, however the title was transferred to the name of the 1st Defendant on the 10th June, 2014. See page 3 of the valuation report in the banks documents. The Counsel posed the question of what documents was the bank relying on to order such a valuation to be conducted in May 2014. Even the agreement between Kwale Cement Limited and Sedona Limited which was on the 5 th June, 2014 had not been prepared. The title in the name of Kwale Cement Factory Limited was registered on the 28 th May, 2014. The instructions by the Bank to the valuer were issued on the 30 th May, 2014. JUDGMENT: ELC NO. 279 OF 2014 Page 61 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 61 of 140

94. The Learned Counsel submitted that the Letter of consent for the transfer of title from Kwale Cement Factory Limited to Sedona Limited is dated the 28th May, 2014. While the agreement for sale from Kwale Cement to Sedona is dated the 5 th June, 2014. How was it possible that transfer and consent is obtained even before a sale agreement is prepared? How was it possible that a land control board consent was issued in favor of Sedona Limited on the same day that the title deed in favor of Kwale Cement factory Limited was registered (28th May, 2014). All these strings of transactions are attempts by the Defendants to defraud the Plaintiffs off their title. And as we shall submit later these transactions were carried out by one C.K Ngetich, Land Registrar who had made a statement as a witness in favor of the 1 st Defendant. 95. Good practice on the part of the 2nd Defendant was prior to issuing any instructions, they are supposed to carry out investigation on ownership. This did not happen. They did not have a search and neither did they have a copy of the title deed by the time they issued instructions to the valuer. This was malpractice and the encumbrance placed on the property is intended to frustrate the JUDGMENT: ELC NO. 279 OF 2014 Page 62 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 62 of 140

Plaintiff in recovering their land. Such an encumbrance based on fraud must fail. 96. On the 3rd Defendant case, the Learned Counsel submitted that the 3rd Defendant was and still is the Land Registrar one Mr. C.K. Ngetich. This Honourable court should not ignore the fact that he had prepared a witness statement for and on behalf of the 1 st Defendant. He was a prospective witness for the 1 st Defendant until the point the Plaintiff herein protested. The 1 st Defendant witness as a matter of fact testified to the fact that he called the Land Registrar and instructed him on how to prepare the witness statement. The Land Registrar in this case had had his character and credibility previously questioned in the case of “Peter Ndungunya Ole Sone & 2 Others – Versus - Land Limited & Another [2019] eKLR” the Learned Judge while criticizing Mr. Kipkurui held:“a person no less than an Assistant Chief Land Registrar, could not be able to state whether the titles held by the Plaintiffs are authentic or not and blamed the lack of records. Is he not the custodian of these same records that he claims not to have’ I wonder why such officers are engaged by the state and draw salaries every end of the month when they are unable to respond to pretty basic issues within their dockets”. 97. In the aforementioned case there was collusion between the office of the land's registrar and that of the surveyor to the extent the JUDGMENT: ELC NO. 279 OF 2014 Page 63 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 63 of 140

judge lamented that he was very much afraid and that it was a shame that such officers could be entrusted by the public to keep straight records. 98. The Learned Counsel humbly submitted that this Honourable Court should also be very afraid, how can a title be processed for the very first time to an individual who was not the owner, did not file succession papers, did not apply to the land control board, his ID No. is incorrect and to date no one knows whether he is related to the purported original owners? How much more illegality can be perpetrated by the land registrar. Furthermore, not a single receipt has been produced by the office of the land registrar and or the Defendants showing payment of stamp duty on transfer. This Honourable Court should seriously frown upon such conduct by the land registrar. 99. On the issues for determination, the Learned Counsel relied on the following:i) Who was the original allottee of the property the subject matter of this suit. ii) Which title takes precedence in terms of registration? iii) Whether the title held by the 1st Defendant is defective and irregular. JUDGMENT: ELC NO. 279 OF 2014 Page 64 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 64 of 140

100. On the issue of who was the original allottee of the property the subject matter of this suit, the Learned Counsel submitted that the Plaintiffs herein in their testimony indicated that from their due diligence the initial allottee was Omar Bakari Diwani. They adduced evidence to that effect by producing a certificate of title first issued on the 15th May, 2007. From the Certificate of Title, the property was first allotted to him on the 9 th April, 2002. the 1st defendant produced a certificate of title issued on the 12 th October, 2012 this was after the title of Omar Bakari Diwani was registered more than five (5) years prior. no evidence was adduced on the contrary as to the claim by the plaintiff that Omar Bakari Diwani was the original allottee. however, there was plenty of evidence against the title held by the 1st Defendant as from their evidence adduced the purported original allotees never transferred the property to Mr. Hamisi Supi. No succession was done, there was not land control board consent, no stamp duty was paid and one wonders how the registrar of land could allow such a registration to be carried out unless he was in bed with the Defendants. JUDGMENT: ELC NO. 279 OF 2014 Page 65 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 65 of 140

101. It was the Learned Counsel’s submission that the title held by the 1st Defendant is defective. The court of Appeal in the case of:“Munyu Maina – Versus - Hiram Gathiha Maina [2013]eKLR” held that: “we have stated that when a registered proprietors root of title is challenged, it is not sufficient to dangle the instrument of tittle 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 encumbrance including any and all interest which would not be noted in the register.” 102. According to the Learned Counsel, the Plaintiffs herein had clearly indicated how they acquired their title documents and the process has not been challenged by the Defendants, however the process in which the 1st Defendant had been clearly confirmed in court to have been illegal from the very start. The provision of Section 26 of the Land Registration Act, 2012 provides that a certificate of title issued by the registrar shall upon registration, to a purchaser of land upon transfer or transmission by the proprietor shall be taken by all courts as a prima facie evidence that the person named as proprietor of the land is the absolute indefeasible owner, subject to the encumbrance, easements, restrictions and JUDGMENT: ELC NO. 279 OF 2014 Page 66 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 66 of 140

conditions contained or endorsed in the certificate, and the title of the proprietor shall not be subject to challenge, except:a. fraud or misrepresentation b. where certificate of title has been acquired illegally, unprocedural or through corrupt scheme. 103. The Learned Counsel submitted that applying the test of the provision of Section 26 on the title of the Plaintiff, the Plaintiff had successfully passed the test. They have shown how they acquired the property and the consideration paid. However, applying the same test on the 1st Defendants title, succession was never done, they had not shown a single receipt where they had paid consideration towards purchase of the property. It was clear to the Plaintiffs mind that the title of the 1 st Defendant is obtained through fraud and the same was illegal. It had previously been admitted by the Land registrar and who was a witness of the 1 st Defendant that the registry in Kwale was marked with fraud cases and which were committed with the help of registry staff see “Estate of Sonrisa Limited & Another – Versus - Samuel Kamau Macharia & 2 Others [2020]eKLR”, and it was the Learned Counsel’s submission that the title held by the 1 st Defendant was a classic case of fraud. JUDGMENT: ELC NO. 279 OF 2014 Page 67 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 67 of 140

104. In the case of:- “Hubert L. Martin & 2 Others – Versus - Margaret J. Kamar & 5 Others [2016] eKLR” the Court held that: “a court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to the procedure and can properly trace its root without a break in the chain.” 105. The Learned Counsel humbly submitted that the Plaintiffs had consistently shown how the acquired the property and from whom and that they full complied with the law and paid consideration for the transfer. However, on the contrary the Defendant never complied at any stage with the law and as such one is incapable of tracing the title to the root. 106. On the issue of which title took precedence in terms of registration, the Learned Counsel submitted that in the case of:“Wreck Motors Enterprises – Versus - the Commissioner of Lands and others Civil Appeal no. 71 of 1997” the court held that:“where there are two competing titles the one registered earlier is the one that takes priority” JUDGMENT: ELC NO. 279 OF 2014 Page 68 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 68 of 140

107. This position was also buttressed in the case of:- “Gitwany Investments Limited – Versus - Tajmal & 3 others (2006) eKLR” where the Court held that: “the first in time prevail, so that in the even such as this one whereby a mistake that is admitted, the Commissioner of Land issued two titles in respect of the same parcel of land, then if both are apparently and on the face of them issued regularly and procedurally without fraud save the mistake then the first in time prevail.” They humbly submitted that if this test was again to be applied the title held by the Plaintiff is superior to the title held by the Defendant. 108. On whether the title held by the 1 st Defendant was defective and irregular. The Learned Counsel submitted that they had clearly submitted above that the Defendants breached all known land law from the very start. This clearly makes their title defective. In the case of:- “Lawrence P. Mukiri Mungau, Attorney of Francis Muroki Mwaura – Versus - Attorney General 74 Others [2017] eKLR” , the Court held:“the conduct of the 3rd Respondent in deliberately failing to enter into a written sale agreement with the 2 nd Respondent, failing to pay stamp duty for the transfer and failing to keep a copy of the transfer (if any) raises more questions than answers and portrays him quite negligent in his business transactions. In our view, he cannot be described as a bona fide purchaser for JUDGMENT: ELC NO. 279 OF 2014 Page 69 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 69 of 140

value. The trial court should therefore have ordered a rectification of the register. As at the dare of the trial the appellant was still holding a valid title deed to the suit property which title was issued to him in 1992. The 2nd Defendant respondent allegedly issued with a title deed from the same property in 1996. A property cannot have two valid title deeds. Even assuming that the second had been issued by mistake, the first in time prevails.” They humbly submitted that the title held by the 1 st Defendant was defective and the same need be cancelled and the register held by the Land Registrar be rectified. 109. In conclusion, the Learned Counsel submitted that the Plaintiffs herein had adequately demonstrated that the title they acquired was for valuable consideration, they have demonstrated that they complied with every requirement of the law including and not limited to stamp duty, they have demonstrated how they acquire the property and the due diligence the exercised prior to purchase of the property at worst they are innocent purchasers for value. Their title being the first in time was indefeasible under the provision of Section 26 of the Land Registration Act. As for the title held by the Defendant its clearly defective from the very first start. The documentation produced by the 1 st Defendant was not only irregular but work of a well calculated and orchestrated JUDGMENT: ELC NO. 279 OF 2014 Page 70 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 70 of 140

fraud. The person who was first registered in the title never paid stamp duty, did not obtain a grant, did not apply for land control board all that was used was a chief's letter. 110. The first title was reportedly first registered in the year 2002 in the name of Hamisi Supi while the original allottees as claimed by the 1st Defendant witness were still alive. As a matter of fact, no proof had been provided before this court to show that they were now deceased. This Honourable Court should not ignore the fact that there was no written agreement for the sale from Hamisi Supi to Kwale Cement. There was no valuable consideration for the transfer, there was no payment of stamp duty and Mr. Supi had testified that he did not attend the Land Control Board. 111. From Kwale Cement to Sedona Limited the transaction was also bungled up with irregularities. First there was no valuable consideration, Secondly the Defendants have not produced any document showing that stamp duty was paid. All this put together shows that the title held by the 1 st Defendant could not stand and the same need be cancelled. They prayed that this Honourable Court granted the Orders sought by the Plaintiff with JUDGMENT: ELC NO. 279 OF 2014 Page 71 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 71 of 140

costs and move to strike out the counterclaim by the 1 st Defendant. B. The Written Submissions by the 1st Defendant. 112. The 1st Defendant through the firm of Messrs. Taib. A. Taib Advocates filed their written submissions dated 24 th April, 2024. Mr. Taib Advocate submitted that the Plaintiffs filed suit seeking Orders inter-alia that the title issued to Sedona Limited on the 10th June 2014 be declared null and void. The 1 st Defendant in response filed a Defense and Counter-Claim seeking orders interalia that the grants and titles issued to the Plaintiffs be declared illegal, null and void. 113. The Plaintiffs called a total of 2 witnesses, with the first witness Mr. Jowhal, the Advocate for the Plaintiffs in the land transaction confirming that he never saw the original title, with the second witness Mr. Harish Ramji Manji who could neither clearly explain how a Court clerk for his Advocate, Stephen Njema Karanu was able to acquire such a huge parcel of land despite not being a local or resident of Kwale County. The Plaintiffs had stated that they purchased the suit property from one Stephen Njema Karanu, who allegedly bought it from one Omar Bakari Diwani. JUDGMENT: ELC NO. 279 OF 2014 Page 72 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 72 of 140

The Plaintiffs witness Mr. Jowhal, despite stating that he never saw the title in the name of Omari Bakari Diwani, before he purchased of the said property as a gift to his clerk has further failed to produce a copy of the said title in Court. No allotment and or demarcations documents have been produced in Court by the Plaintiffs. Further, the said Omar Bakari Diwani, being purportedly the first allottee had never appeared in Court nor added as a party to the suit by the Plaintiff to produce a copy of his title before the transfer. 114. On the 2nd Defendant’s case, the Learned Counsel submitted that the 2nd Defendant adduced evidence in favour of the 1 st Defendant's title producing before the Court, the Land Control Board consent to charge, post registration of Charge official searches, payment of stamp duty receipts and registered charge, all these found in the land registry file. 115. The 3rd Defendant’s case according to the Learned Counsel was that the 3rd Defendant called the Senior Principal Lands Registration Officer, who testified and stated that the title held by the Plaintiffs after his inspection does not exist at the Kwale Lands JUDGMENT: ELC NO. 279 OF 2014 Page 73 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 73 of 140

Registry. The Registrar further confirmed that all documents as produced by the 1st Defendant were genuine and further confirmed that the initial allottes to the suit property were Hamisi Ahmadi Supi along with the late Omari Mohamed Selemani and the late Mwatiko Nassiri Ngusa, which confirmed the facts as stated by the 1st Defendant and further supported the title being held and in the name of the 1 st Defendant. Further the title that was in the name of Hamisi Ahmadi Supi and the land adjudication documents were also genuine. 116. According to the Learned Counsel, the 1 st Defendant’s case was that the Court further visited the suit property and allowed the examination and cross examination of Hamisi Ahmadi Supi, who after adopting his written statement dated 17 th December 2015, confirmed that the said parcel of land was his ancestral land and upon the demise of his father, the said parcel of land was allotted to him and late Omari Mohamed Selemani and the late Mwatiko Nassiri Ngusa. the original allottees having passed away before the title was issued, the first title deed was then issued in his name. When the Court visited Hamisi Ahmadi Supi, he was in the company of his sons, wives and grandchildren (entire family). He JUDGMENT: ELC NO. 279 OF 2014 Page 74 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 74 of 140

confirmed his existence by producing his National Identity Card and further the history of the suit property, how he acquired it by inheritance before the issuance of a title and how he sold the suit property to a sister company of the 1 st Defendant. 117. The 1st Defendant further called Zuher Mehboob Ladak & Kambi Mwinyi Mwananguvu an agent who had assisted Hamisi Ahmadi Supi, to sell his parcel of land to the 1 st Defendant. Mr. Kambi Mwinyi Mwananguvu, adopted his statement dated 17 th of December 2015. upon cross examination as to why the title deed was issued on the 9th April 2002, well before the demarcation in 2015, he explained that the entire area was demarcated in the year 2002 and all titles in the area despite being issued much later are stated to have been issued in the year 2002 and therefore there should be no inference of fraud. 118. The Learned Counsel submitted that Zuher Mehboob Ladak after adopting his written statement dated 17 th December 2015, further testified as to the process of acquiring of the land, subsequent charging of the land with the 2 nd Defendant. All documents pertaining to the Charge and payment of Stamp Duty was produced in Court. JUDGMENT: ELC NO. 279 OF 2014 Page 75 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 75 of 140

119. On the issue of determination, the Learned Counsel relied on the following issues:a. Whether the 1st Defendant has established that it is the owner and entitled to sole possession of Title Number. KWALE/ SHIMONI ADJ./392. b. Whether the 1st Defendant has established that the Plaintiffs wrongly and unlawfully through fraud obtained and caused to be registered in their names as the owners of KWALE/SHIMONI ADJ./392 and that the Title in their name is fraudulent, null and void. 120. According to the Learned Counsel, the provision of Section 25 of the Land Registration Act, which provides that:Rights of a proprietor. 25. (1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject(a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and (b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. (2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee. JUDGMENT: ELC NO. 279 OF 2014 Page 76 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 76 of 140

121. The Learned Counsel also referred Section 26 of the Land Registration Act which provides that: Certificate of title to be held as conclusive evidence of proprietorship. 26. (1) 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, 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. (2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original. 122. The Learned Counsel submitted that the general rule was that a certificate of title is the prima facie evidence that proprietor is the owner of the land as is provided for under the provision of Section 25 of the Land Registration Act, the exception to the above is provided for under the provision of Section 26 of the Land Registration Act, that anybody challenging the title must establish that the title was obtained fraudulently. The 1 st Defendant has filed JUDGMENT: ELC NO. 279 OF 2014 Page 77 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 77 of 140

a Counter - Claim challenging the Plaintiffs titles as registered in their names and further inferring fraud on their part. In support of its tile, the 1st Defendant had returned to the origin of and issuance of the title in its name by, presenting demarcation document issued by the district land Adjudication and Settlement Officer, the first ever title as issued by the Ministry of Lands and all subsequent Title Deeds and finally the current title deed in the name of the 1st Defendant which was currently charged by the 2 nd Defendant. 123. Secondly, in an effort beyond any reasonable doubt, the 1 st Defendant had called as its witness, a local, who was the son to the original allottee, whom the Court visited at his home near the suit property. Further, the Kwale Land Registrar had appeared before this Court confirming that the title as held by the 1 st Defendant was the only genuine title, all the demarcation documents and all previous titles were issued by the Ministry of Lands and further proceeded to certify the same as copies that are present at the Kwale Land Registry. JUDGMENT: ELC NO. 279 OF 2014 Page 78 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 78 of 140

124. According to the Learned Counsel relied on the provisions of Sections 109 and 112 of the Evidence Act, Cap. 80 which provided that: 109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him. 125. According to the Learned Counsel it was settled law that allegations of fraud, the evidence adduced by the Plaintiffs must be beyond balance of probability. The Court of Appeal in the case of:- “Civil Appeal No. 411 OF 2018 Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) – Versus - Stephen Njoroge Macharia [2020] eKLR” in a similar matter to this one, set down criteria of establishing fraud in instances whereby one was accused of fraud and what the accuser needed to establish by stating that: “In the case of Urmila w/o Mahendra Shah – Versus - Barclays Bank International Limited & another [1979]eKLR, this Court took the view that the onus to prove fraud in a matter is on the party who alleges it. Similarly, in cases where fraud is alleged, it is not enough to simply infer fraud from the facts. In Vijay JUDGMENT: ELC NO. 279 OF 2014 Page 79 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 79 of 140

Morjaria – Versus - Nansingh Madhusingh Darbar & another [2000] eKLR, Tunoi JA (as he then was) stated as follows: “It is well established that fraud must be specifically 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 as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” Emphasis by the Learned Counsel. Given the seriousness of the allegations, the onus was on the appellants to provide evidence to the Court of the alleged fraud which evidence must meet the standard of proof as was underscored by this Court in “Central Bank of Kenya Limited – Versus - Trust Bank Limited & 4 Others [1996] eKLR” as being beyond that of a balance of probabilities but not beyond reasonable doubt. In that case, the Court rendered itself as follows: “The appellant has made vague and very general allegations of fraud against the respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the appellant in this case than in an ordinary civil case.” In the instant case, the appellants needed to not only plead and particularize the fraud, but also lay a basis by way of credible evidence upon which the Court would make a finding that indeed there was fraud in the transaction leading to the transfer and registration of the suit land in the name of Janet all the way to the Respondent. JUDGMENT: ELC NO. 279 OF 2014 Page 80 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 80 of 140

126. As regards the standard of proof, this Court in the case of: “Kinyanjui Kamau – Versus - George Kamau [2015]eKLR” expressed itself as follows:“.........It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo – Versus - 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; In cases where fraud is alleged, it is not enough to simply infer fraud from the facts. “(Emphasis by the Learned Counsel)” 127. The Plaintiffs had pleaded 5 particulars of Fraud as against the Defendants and in summary that the three Defendants colluded to have the suit property registered in favour of the 1 st Defendant. The Learned Counsel averted that the Plaintiffs had not establish any of the above for reasons and fully relying of the testimony the Chief Land Registrar and whose three uncles who are now deceased were the original allottees, they visited at his home, in presence of his entire extended family and there is no evidence that the said parcel of land was not his ancestral land. 128. On the other hand, the Plaintiffs were unable even to produce the first title issued in the name of the original allottee, yet the JUDGMENT: ELC NO. 279 OF 2014 Page 81 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 81 of 140

witnesses called one include an Advocate of the High Court of Kenya, who purchased the suit property for his Court clerk. The individual who also sold the parcel of land to the Advocate Mr. Johwal was never called and or summons issued to explain as to how the suit property was allotted and tile issued in his name, which is a basic requirement in establishing ownership. 129. In the case of:- “ELC NO. 98 OF 2012 Hubert L. Martin & 2 Others – Versus - Margaret J. Kamar & 5 Others [2016] eKLR” the Court stated that a party inferring fraud on another party's title must show from the origin as to how it obtained its title. “31. A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property.” 130. The Court in the case of:- “ELC APPEAL NO. 54 OF 2019 William Odongo Guya – Versus - George Otiato Mbaye & another [2021] JUDGMENT: ELC NO. 279 OF 2014 Page 82 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 82 of 140

eKLR” dismissed a similar suit was filed by the Plaintiffs for reasons that the Plaintiff failed to prove the particulars of fraud listed and particularized in his Plaint. “The Plaintiff has at paragraph 16 of the Plaint particularized fraud on the part of the Defendants as; a. Transferring and/or subdividing parcel number 1018 and registering part of the same as parcel no. 4768 in the name of the 1st defendant. b. Effecting the said transfer and/or change of the numbers without the consent and the authority of the plaintiff and/or deceased. c. Fraudulently and illegally changing the parcel number without any supportive documents. d. Failing to disclose to the plaintiff land transactions effecting the plaintiff's land parcel number 1018. e. Fraudulently and illegally issuing the 1st Defendant with parcel number 4768. It is my view that the Plaintiff having alleged fraud, he was duty bound to prove the same. In John Mbugua Gitau – Versus - Simon Paroyiet Mokare & 6 others [2014] eKLR, the Court held that:‘The Petitioner having alleged fraud and irregularities on the part of the 2nd and 3rd Respondents was duty bound to provide proof to the required standard. The burden of proof rests with whoever alleges. In the present petition the legal burden to prove fraud, discrimination, unfair procedure and breach of the constitution provisions pleaded ... lies with the Petitioner. The burden of proof on the person who alleges fraud is on a standard higher than on a balance of probabilities adopted in ordinarily civil cases but lower than proof beyond a JUDGMENT: ELC NO. 279 OF 2014 Page 83 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 83 of 140

reasonable as in criminal cases. It is somewhere in between.’ Based on the preceding findings, I am of the view that the Plaintiff did not prove fraud on the part of the Respondents.” 131. Further the Learned Counsel submitted that in its attempt to establish fraud, the Plaintiffs have instituted this suit was expected to call at least a witness to have cast doubt as the titles being held by the 1st Defendant, the High Court in a similar matter and in dismissing the said Appeal upheld the above position taken by the Court of Appeal in the case of:- “ELC CASE NO.358 OF 2010 LWN – Versus - PLM & 3 others [2021] eKLR”, the Court stated as follows:“75. Also in the case of Jose Estates Limited – Versus - Muthumu Farm Ltd & 2 Others [2019]eKLR the Court of Appeal observed thus:“........Similarly in cases where fraud is alleged it is not enough to simply infer fraud from the facts. In Vijay Morjoria – Versus Nansingh Madhusingh Darbar & Another [2000]eKLR, Tunoi JA (as he then was):“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleadings. 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 well settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts. 76. As stated earlier the Plaintiff failed to lay a basis by way of evidence to prove fraud and conspiracy on the part of the Defendants herein.” JUDGMENT: ELC NO. 279 OF 2014 Page 84 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 84 of 140

132. The Learned Counsel questioned how the Plaintiffs' produce searches in the name of the alleged original owner one Omar Bakari Diwani, but fail to produce his title? the Plaintiffs had confirmed that there exists no green card with their name on it at the Lands Registry. With no documents at the Registry how then could this Court uphold such a title? The Court of Appeal had stated that in such instances a Court cannot and its duty is to uphold sanctity of the lands office. “CIVIL APPEAL NO. 115 of 2017 Philemon L. Wambia – Versus - Gaitano Lusitsa Mukofu & 2 others [2019] eKLR” the Court held that: “39. In Solomon Omwega Omache & another – Versus - Zackery 0. Ayieko & 2 others (2016) e KLR it was stated that the court has the duty to uphold the sanctity of the record at the Lands office. The official record at the lands office in relation to the suit property shows that the first allottee was Mr. Joseph Muturi Muturania. The Third Party witness testified that the letter of allotment held by the appellant was not available at the lands office record file of the suit property. No evidence is on record to persuade us doubt the integrity and accuracy of the official records at the lands office.” 133. Finally, the Plaintiffs had produced, searches and titles but have failed to summon and or call as witness the Registrar who signed and issued the said documents, they humbly submitted that, the said failure is a true indicator of fraud and forgery on the part of JUDGMENT: ELC NO. 279 OF 2014 Page 85 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 85 of 140

the Plaintiffs as was stated in “Gitonga (Suing as the legal representative of the Estate of the Late M'lthinji M'Mwambia alias Fredrick M'lthinji - Deceased) – Versus - Nkirote & another (Environment & Land Case 172 of 206) [2023] KEELC 20482 (KLR) (4 October 2023)(Judgment)” where the Court stated as follows:“Similarly, the 1st Defendant did not see it fit to call the Land Registrar as the custodian of the records to come and clarify when its office received the transfers and registered the same for the half share to pass to the 1 st Defendant. None of the original documents save for copies were presented before this court. It is one thing to produce exhibits and another to prove their authenticity and probative value. Documents are proved when the court puts its mind on their relevance, probative value and authenticity. See Kenneth Nyaga Mwige – Versus - Austin Kiguta & 2 others (2015) eKLR.” 134. They urged this Court to dismiss the claim and as prayed by the 1st Defendant in its Counter - Claim and further inter-alia order that: a. An interlocutory order do issue directing the Commissioner of Lands and the Registrar of Titles to ensure that no other titles or transfers or sub-divisions in respect of the Suit Premises are registered that derogate from or subtract or diminish or in any other manner whatsoever take away from or negate the title of the Plaintiffs in the said property or alters the status quo hereinabove described. b. An order directing the Commissioner of Lands and the Registrar of Lands and or their servants, agents and or employees to ensure that he recalls, takes into possession and JUDGMENT: ELC NO. 279 OF 2014 Page 86 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 86 of 140

cancels the Titles issued, if any, to the 1 st and 2nd Plaintiffs and that he rectifies the register by cancellation of all the entries relating to the issuance of the grants and or titles complained of to each and every KWALE/SHIMONI one ADJ./392 of the Plaintiffs measuring in respect approximately of 45.46 Hectares or thereabouts and rectify the same in all manners required to ensure the result of reinstatement of the 1st Defendant as the sole legal and beneficial owner thereof. c. An order to the 1st and 2nd Plaintiffs to surrender any Title and all documents relating KWALE/SHIMONI to ADJ./392 the Suit Premises measuring known as approximately 45.46Hectares or thereabouts and the eviction of the Plaintiffs, their servants agents employees or proxies and any other parties from the suit premises. C. The Written Submissions by the 3rd Defendant 135. The 3rd Defendant through the Law firm of Messrs. the State Office of the Honorable Attorney General filed their written submissions dated 26th February, 2024. M/s. Nimwaka Kiti Muema Advocate submitted that the Plaintiffs filed their plaint dated 3 rd November, 2014 filed on 19th November, 2014. the plaintiffs aver that they are the registered owners of parcel of Land KWALE/SHIMONI ADJ/392, sometime in the year 2014, they conducted a search and discovered that the suit property has been registered under the 1st Defendant who had taken a financial facility of a sum of Kenya Shillings Ten Million (Kshs. 10,000,000/-) JUDGMENT: ELC NO. 279 OF 2014 Page 87 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 87 of 140

from the 2nd Defendant. It was the plaintiffs contention that the registration of the 1st defendant as the owners of the suit property was fraudulent, was done in collaboration with the 2 nd and 3rd Defendants. The Plaintiffs sought that the Honourable Court cancels the title by the 1st Defendant, rectifies the register to restore Kwale/Shimoni Adj/392 to the Plaintiffs, cost and interest of the suit. 136. The 3rd Defendant in response to the suit did file a Defence and Defence to Counter - Claim to the 1 st Defendant dated 13th June, 2016 and filed on the same date. The defence denied the claims of the Plaintiff and the 1st Defendants Counter - Claim. The 3 rd Defendants submitted that not at any time did they involve themselves or collude in any scheme to defraud the Plaintiffs. The 3rd Defendant had a witness Mr. Charles Ngetich, the Land Registrar who filed a witness statement dated 6 th September, 2016 and filed on 6th February, 2017. In addition to the statement, the list of documents was part of the bundle of documents filed before this court on 17th December, 2015. 137. The Learned Counsel submitted that from the documents produced by the 3rd Defendant, the adjudication record showed JUDGMENT: ELC NO. 279 OF 2014 Page 88 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 88 of 140

that on 22nd May, 1980, the suit parcel of land was allotted to three individuals Hamisi Hamad Tsupi, Omari Mohamed Suleiman and Mwatiko Nasiri Ngusa under the Registry Index Map numbers 1, 14, 15 and 11. The search from the adjudication office dated 8 th September, 2015 indicated that plot 392 in the demarcation books, the three individuals owned the suit property. 138. According to the Learned Counsel, the Plaintiffs contended that the suit property Kwale/Shimoni/392 was originally allotted to one Omari Bakari Diwani and that this was established through a search conducted at the land registry office. The Land Registrar testified that from their records, they had no information or documents which referred to Omari being the original allotee of the suit property. Further the Plaintiffs had not attached any official copies from the land adjudication office to show that Omari Bakari's name was ever recorded in any parcel of land. 139. From the adjudication record produced in court, the suit property was demarcated and recorded in the names of Hamisi Hamad Tsupi, Omari Mohamed Suleiman and Matiko Nassiri Ngusa. No evidence had been brought to show that there was ever a dispute over the ownership of the suit property and as such no objection JUDGMENT: ELC NO. 279 OF 2014 Page 89 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 89 of 140

was raised against the demarcation of the suit property in the name of the three. It followed that when the adjudication process was completed, the adjudication record indicated that the three individuals were the owners of the suit property and was entitled to be registered as such. 140. The Learned Counsel submitted that from the green card produced, it showed that the registration was in favour of Ahmad Hamisi Supi whom in his evidence had stated that he was chosen by his family members to represent them and his name be entered in the register. The same was signed by a former Land Registrar one Evans Marwanga. The suit property was later transferred to Kwale Cement Factory whom later transferred to the 1st Defendant herein. It was the Learned Counsel’s submission that all laid down procedures were adhered to and followed in terms of registration and transfer of property. 141. According to the Learned Counsel the Plaintiffs claimed that the original allotee of the suit property was Omar Bakari Diwani and this was evidenced by production of a search certificate which shows that the title was issued on 15 th May, 2007 and Omar was registered on 9th April, 2002. In comparison to the 1 st Defendants JUDGMENT: ELC NO. 279 OF 2014 Page 90 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 90 of 140

title, Ahmad Hamisi Supi was registered on the same date 9 th April, 2002 and title deed issued on 12 th October, 2012. According to the Learned Counsel, the Court should take note that issuing of title deed is the date or day when a party goes to the land registry to collect their title. Thus both parties were registered on the same date 9th April, 2002. 142. The Learned Counsel heavily submitted that the rights of a registered owner of property are clearly set out under the provision of Sections 24, 25 and 26 of the Land Registration Act No. 3 of 2012. Further, the provision of Section 25(1) provides that for such a registered owner, their rights are indefeasible and are held free from all other interests and claims and that the rights can only be defeated in the manner provided under the Act. However, ownership of such title is not absolute as the said Certificate of title can be impeached under certain circumstances as contemplated in Section 26 of the Land Registration Act. 143. It was trite law that when a person's title was called into question, the said proprietor has to show the root of his ownership. To buttress on this point, the Learned Counsel referred Court to the JUDGMENT: ELC NO. 279 OF 2014 Page 91 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 91 of 140

Court of Appeal case of: “Hebert L Martin & 2 Others – Versus - Margaret J Kamar & 5 Others {2016} eKLR” . 144. The Learned Counsel averred that in line with the above, it is the 3rd Defendants submissions and from the testimony and documents produced by the Land Registrar, it was established that the records in respect of the Plaintiff having ownership of the suit property Kwale/Shimoni/392 did not exist and in addition, the first allocation of the suit property as per the adjudication record was not Omar Bakari who sold the property to the Plaintiffs. 145. They further submitted that in dealing with the various actions undertaken by the Plaintiffs as pertaining to the suit property, were misleading, fraudulent and they further submitted that the alleged documents by the Plaintiffs did no allegations of fraud and collusion as against the 3rd Defendant, it was the Learned Counsel’s submission that the Plaintiff had not brought/tendered any evidence before this court to prove that the 3 rd Defendant colluded or facilitated the 1st and 2nd Defendants to acquire title illegally, un-procedurally or through a corrupt scheme thus the 3 rd Defendant can't be made liable for the allegations of fraud.t emanate from the 3rd Defendants office. The Plaintiffs had JUDGMENT: ELC NO. 279 OF 2014 Page 92 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 92 of 140

allegations of fraud and collusion as against the 3 rd Defendant, the Learned Counsel’s submission that the Plaintiff had not brought/tendered any evidence before this court to prove that the 3rd Defendant colluded or facilitated the 1 st and 2nd Defendants to acquire title illegally, un-procedurally or through a corrupt scheme thus the 3rd Defendant could not be made liable for the allegations of fraud. 146. The Learned Counsel further submitted that a party not only plead fraud in particulars of fraud but must also adduce evidence to support each and every particulars of fraud pleaded. To buttress on that point, the Counsel cited the case of:- “Koinange and 13 others – Versus -Koinange (1986)” , it was held that:“It is a well-established rule of evidence that whosoever asserts a fact is under the obligation to prove it in order to succeed, the party alleging fraud, in this case the Plaintiff's had burden of proving it and they had to discharge that burden.” 147. In the case of:- “Ratilal Gordharibhai Patel – Versus - Lalji Makaiji (1957) eKLR” where it was held that “the burden of proof in fraud case is very high approaching but below the burden of proof beyond reasonable doubt”. This according to the Learned Counsel had not been established by the Plaintiff as against the 3 rd Defendant. JUDGMENT: ELC NO. 279 OF 2014 Page 93 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 93 of 140

148. According to the Learned Counsel the provision of:- Section 107(1) of the Evidence Act, Chapter 80 of the Laws of Kenya is explicit that: “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those fact exist.” 149. The Learned Counsel relied on the case of “Samson S. Maitai & Another – Versus - African Safari Club Limited & Another[2010] eKLR”, Emukule J. observed “....proof is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we all know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If the party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption.” 150. It was the Learned Counsel’s submission that the Plaintiffs had not proven any fraud as against the 3 rd Defendant. It was trite law that when there are two competing titles, the first in time will prevail. This position was emphasized in the case of “Wreck Motors Enterprises – Versus - The Commissioner of Lands and Others Civil Appeal Civil Appeal No. 71 of 1997”, where the court held that: JUDGMENT: ELC NO. 279 OF 2014 Page 94 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 94 of 140

“Where there are two competing titles the one registered earlier is the one that takes priority”. 151. The same position according to the Learned Counsel was held in the case of “Gitwany Investment Ltd – Versus - Tajmal Limited & 3 Others (2006) eKLR”, where the Court held that:“........the first in time prevails, so that in the event such as this one whereby a mistake that is admitted, the Commissioner of Lands issues two title in respect of the same parcel of land, then if both are apparently and on the face of them issued regularly and procedurally, without fraud save for the mistake then the first in time must prevail.” 152. According to the Learned Counsel, the Plaintiff had brought this argument before this Honourable court and prays that the court finds in their favour in that their title was first in time. However, a closer look at both the title for the plaintiffs and the 1 st Defendant revealed the following; fi both purported owners one Mr. Omar Bakari from the copy of search and Mr. Ahmad Supi from copy of green card show that they were registered on the title on the same date that is 9th April, 2002. 153. The Learned Counsel submitted that from the green card produced by the 3rd Defendant, it indicated that the title deed was issued to Ahmad Supi on 12th October, 2012 and from the copy of search by the Plaintiffs, it indicates that the title was issued to Mr. JUDGMENT: ELC NO. 279 OF 2014 Page 95 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 95 of 140

Omar Bakari on 15th May, 2007. According to the Learned Counsel from the copy of search produced by the Plaintiffs, on 1 st October, 2012, Kwale/Shimoni/392 was transferred and registered in their favour; on the same breath, the green car produced by the 3 rd Defendant indicate that title deed to the suit property was issued to Mr. Ahmad Supi on 12th October, 2012. Further the court to note that the 3rd Defendant did not have in their custody any documents in their custody in relation to the transaction between the plaintiffs and one Omar Bakari. In consideration of the above, then they were directed to go back to the adjudication record which indicates that in 1980, the three individuals, Hamisi Hamad Tsupi, Omari Mohamed Suleiman and Matiko Nassiri Ngusa. It was the testimony of the 1st Defendant witness one Ahmad Hamisi Supi that the land was registered in his name after the family sat and decided and through the area chief a letter was addressed to the then land registrar who effected the same. The Honourable court had the privilege to go for sight visit at Shimoni and was able to see the suit property and interrogated the witness. 154. The Learned Counsel asserted that the 1 st Defendant preferred a Counter - Claim as against the 3 rd Defendant dated 4th December, JUDGMENT: ELC NO. 279 OF 2014 Page 96 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 96 of 140

2015 accusing them of fraud, the same was denied by the 3 rd Defendant who filed a defence to counterclaim dated 10 th June, 2016 and filed on 13th June, 2016. The Learned Counsel submitted that to succeed in claiming fraud, a party not only need to plead but also particularize it by laying out water tight evidence upon which the court would make such finding. It was therefore trite law that any allegations of fraud must be pleaded and strictly proved. This was stated by the Court of Appeal in case of “Kuria Kiarie & 2 Others – Versus - Sammy Magera [2018] eKLR” where it was held: “The next and only other issue is fraud. The law is clear and we take it from the case of Vijay Morjaria – Versus - Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA (as he then was) states as follows: “It is well established that fraud must be specifically 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.” The same procedure goes for allegations of misrepresentation and illegality. See Order 2 Rule 4 of the Civil Procedure Rules. As regards the standard of proof, this court in the case of Kinyanjui Kamau – Versus - George Kamau [2015] eKLR expressed itself as follows;- JUDGMENT: ELC NO. 279 OF 2014 Page 97 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 97 of 140

“........it is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo -Versus - 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. 155. The Learned Counsel contended that the 1 st Defendant had not proved any claims of fraud as against the 3 rd Defendant and they prayed that the prayers sought by the 1 st Defendant were unmerited and the counterclaim be dismissed with costs to the 3rd Defendant. 156. In conclusion, the Learned Counsel urged Court to find that the Plaintiff had not proven a case as against the 3 rd Defendant. Thus, the Learned Counsel prayed that the Plaintiffs suit and the Counter - Claim by the 1st Defendant be dismissed with costs to the 3 rd Defendant. X. Analysis and Determination JUDGMENT: ELC NO. 279 OF 2014 Page 98 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 98 of 140

157. I have keenly assessed the filed pleadings by all the Plaintiffs herein, the 1st, 2nd and 3rd Defendants herein, the written submissions, the myriad of the cited authorities by the parties herein, the relevant provisions of the Constitution of Kenya, 2010 and the statutes. 158. In order to reach an informed, reasonable and just decision in the subject matter, the Honourable Court has crafted the following four (4) issues for its determination. These are: a) Who among the parties herein is the legally and absolute registered owner to the suit property? b) Whether the 1st Defendant has a meritorious Counter - Claim and whether it is entitled to the prayers sought; c) Whether the Plaintiffs is entitled to prayers sought. d) Who bears the costs of the suit and the counter claim? ISSUE No. a). Who among the parties herein is the legally and absolute registered owner to the suit property? 159. The main substratum of this case is on the ownership of the suit property amongst the parties herein. Under this sub title, the court will examine the two titles belonging to the same parcel of land and who is the legal and absolute registered owner of the suit land. From the surrounding facts and inferences of the case, the Plaintiffs and the 1st Defendant are both claiming ownership to the same parcel of land. What is in dispute is which is the proper JUDGMENT: ELC NO. 279 OF 2014 Page 99 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 99 of 140

Certificate of title to the suit land from what is held by the Plaintiffs and the 1st Defendant. 160. It is common knowledge that land in Kenya is extremely is emotive. Land is a source of livelihood. To be in a proper position to resolve this dispute, the Honourable Court will critically assess the land law and the historical roots of the titles. The object of the Land Registration Act, No. 3 of 2012 is stated as follows:“An Act of Parliament to revise, consolidate and rationalize the registration of titles to land, to give effect to the principles and objects of devolved government in land registration, and for connected purposes.” 161. The effect and the efficacy of registration means the bringing of an interest in land or lease under the provisions of the Act and includes making of an entry note or record in the land register. The provision of Section 24 of the Land Registration Act No 3 of 2012 states that 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. Section 25 of the said Act provides that the rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be JUDGMENT: ELC NO. 279 OF 2014 Page 100 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 100 of 140

held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—to encumbrances charges or leases shown on the register and the overriding interests as stated in section 28 of the Act. 162. The provision of Section 26 of the Land Registration Act, 2012 provides:(1) 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, 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 163. Therefore, the courts mandated by statute to consider a title document as ‘prima facie’ conclusive evidence of ownership to land and a conclusive evidence of proprietorship to land that can only be challenged on grounds stipulated as above. Then there is provision of section 7 of the LRA which dictates the content of the Register. In this instant case the parties have found themselves JUDGMENT: ELC NO. 279 OF 2014 Page 101 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 101 of 140

with two difference titles for the same parcel of land. It is trite that a parcel of land cannot have two titles. The law prohibits such a scenario and the law has given powers to the Land Registrar to so cancel titles under section 79 of the LRA. The Land Registrar has power to rectify title if there are errors omissions not materially affecting the interest of the proprietor; correction of dimensions, correction of names address or such other particulars. 164. It is another sad situation where two people contend to have title to the same land, a position that is completely untenable in law, for one parcel of land can only have one legal title to it. It is extremely unfortunate that courts are inundated by such disputes which can easily be avoided by having a proper land administration and registration system that is free of corruption and underhand dealings. It is my hope that such cases are going to be a thing of the past. That is however the situation that we find ourselves in and this court thus has to make a decision regarding the two titles that have presented themselves in this dispute. 165. Certainly, its not sufficient for either party to dangle the Certificate of title, for the other party also has the same instrument. The formula in unlocking such disputes is to get to the JUDGMENT: ELC NO. 279 OF 2014 Page 102 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 102 of 140

root of title as pronounced in the case of “Hubert L. Martin & 2 others (Supra), where the Court held that:“A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.” 166. In conformity with the above principle, let me assess the root of the titles of both plaintiffs and 1st Defendant and determine who has displayed a better title. The Plaintiffs averred to have purchased the suit land which belonged to Omar Bakari Diwani. After having perused a copy of the title documents, he enquired as to where the original was. Mr. Omar told him that he had pledged the original title to one Mohamed Sheikh for a loan of a sum of JUDGMENT: ELC NO. 279 OF 2014 Page 103 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 103 of 140

Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3, 500, 000.00/=) which Mr. Sheikh had given to Mr. Omar. PW - 1 asked him to bring the original documents together with Mr. Sheikh to his office so as to verify the same. After verifying, he agreed with Mr. Sheikh that he would pay him by instalments. He drew up a sale agreement that Mr. Omar and his clerk Mr. Stephen Njema Karanu executed. This was because he wanted to reward the said clerk who had worked for 40 years and was leaving his office. He paid the purchase price of a sum of Kenya Shillings Nine Million (Kshs 9,000,000/-) when he transaction was complete. Thereafter, his clients, the Plaintiffs who were shareholders in a limited company known as Gami Properties Limited had recently purchased properties nearby in the Shimoni area and therefore wanted to purchase the property for a sum of Kenya Shillings Eleven Million (Kshs. 11,000,000/-). 167. PW - 1 told the court that he prepared a sale agreement between Stephen Njema Karanu and the Plaintiffs. The full purchase price was paid. He obtained all the relevant documents and paid the stamp duty for a sum of Kenya Shillings Eleven Million (Kshs. 11,000,000/-). He caused the transfer to be duly registered and it JUDGMENT: ELC NO. 279 OF 2014 Page 104 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 104 of 140

was registered in the joint names and title deed issued. After completion, he caused a search which showed them as the beneficial owners of the suit property. The Plaintiffs bought the property from Stephen Njema Karanu. PW - 2 after the purchase of the suit land he obtained a title to the land serial number 0087717 issued on 12th October, 2012. 168. According to the 1st Defendant at all material time to the suit, the 1st Defendant had been and remained an innocent purchaser for value of the Suit Premises the said land known as KWALE/SHIMONI ADJ./392 measuring approximately 45.46 Hectares and the legitimate legal and beneficial owner thereof having bought the same using the Law firm of Messrs. Anjarwalla & Khanna and after having conducted all due diligence, obtaining the positive results of official searches issued by the Lands Registrar and thereafter paying full consideration for the same. 169. In the case of “Munyu Maina – Versus - Hiram Gathiha Maina (Supra)”, the Appeal Court held that:“We have stated that when a registered proprietor root of title is challenged, it is not sufficient 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 JUDGMENT: ELC NO. 279 OF 2014 Page 105 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 105 of 140

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.” 170. This Honourable Court in the case of “ELC No. 142 of 2012: SHARDA GUPTA (Suing as the personal representative of the Estate of DR. PAWAN KUMAR GUPTA – Deceased) – Versus – Eng. Isaac G. Wanjohi & Others” has had the pleasure has had the pleasure of dealing with a matter similar to this where it opined that:304. It is trite law that when there are two competing titles, the first in time will prevail. This position was emphasized in the case of “Wreck Motors Enterprises vs. The Commissioner of Lands and Others Civil Appeal Civil Appeal No. 71 of 1997”, where the court held that: ‘Where there are two competing titles the one registered earlier is the one that takes priority’ 171. The same position was held in the case of “Gitwany Investment Limited – Versus - Tajmal Limited (Supra)” where the Court held that:‘………the first in time prevails, so that in the event such as this one whereby a mistake that is admitted, the Commissioner of Lands issues two title in respect of the same parcel of land, then if both are apparently and on the face of them issued regularly and procedurally, without fraud save for the mistake then the first in time must prevail’ 172.The Plaintiffs title was registered on 12th October, 2012 and the title by the 1st Defendant was registered on 10th June, 2014. It take JUDGMENT: ELC NO. 279 OF 2014 Page 106 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 106 of 140

note that 1st Defendant’s witness stated that DW - 1, there was no official search between Kwale Cement and Supi. There was a sale agreement but the same has not been produced. There was a consideration of Kenya Shillings Eight Million Nine Eighty Six Thousand Four Hundred (Kshs. 8,986,400/-); funds transfer had not been produced. the evidence of The valuer valued it for Kenya Shillings Eight Million Nine Eighty Six Thousand Four Hundred (Kshs. 8,986,400/=) for purposes of payment of payment of stamp duty. 173. DW - 2 told the court that he knew Ahmed Hamisi Supi, the land was for 3 persons ( parents – Hamisi Hamadi Supi, the father; and uncles Omari Mohamed Suleiman and Mwaliko Nassin Ngusa. The Land was transferred by a letter. The letter on page 59 of the 1 st Defendant bundle of documents. When referred to page 40 the witness stated that Entry 1 dated 9th April, 2002 of the Land was still in the names of Ahmad Hanusi Supi. There was no transfer form. 174. According to DW - 3 – Ahmed Supi, the land initially belonged to his father – Hamadi Supi, Mr. Omar Mohamed and Mr. Matiko Nassir, it was a family parcel (Referred to Page 34 of the 1 st JUDGMENT: ELC NO. 279 OF 2014 Page 107 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 107 of 140

Defendant’s bundle of documents) it shows the land was under the Land Adjudication Section, Map – for 3 people). He was a inheritor/ a beneficiary of the land of his father’s share. They sat down with other owners of the land and families, discussed and agreed to sell it. He was to be the first to sell his portion. He remembered it was in the year 2012. They wrote a letter to the area chief and were allowed to proceed. DW - 3 confirmed that he had never applied for succession. He did not have any other documents apart from the letters from the chief, he did not know when the title was given (referred to page 40 and 59 cross referenced to the letter of Chief). The land was not conferred to him apart from the letter from the chief. He did not have any minutes of the family for purposes of resolving to sell the land. There was no sale agreement not letter of consent obtained from the Land Control Board, he never signed any transfer documents. This evidence was supported by the testimony of DW - 5 who stated that the property was the property was owned in common. 175. Tenancy in common and joint tenancy are two sister concepts. The distinction between the two concepts was stated by Sir. Robert Megarry and Sir William Wade in their work entitled The JUDGMENT: ELC NO. 279 OF 2014 Page 108 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 108 of 140

Law of Real Property; Sweet & Maxwell, Eighth Edition Pages 496 to 503. They stated that:“A joint tenancy arises whenever land is conveyed or devised to two or more persons without any words to show that they are to take distinct and separate shares…..”. Further, that “there is a thorough and intimate union between joint tenants. Together, they form one person.” A joint tenancy imparts to the joint owners, with respect to all other persons than themselves, the properties of one single owner. Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner. Joint tenancy carries with it the right of survivorship and “four unities”….. ……..In a tenancy in common, the two or more holders hold the property in equal undivided shares. Each tenant has a distinct share in the property which has not yet been divided among the co-tenants. In other words they have separate interests only that it remains undivided and they hold the interest together. The largest factor that distinguishes a joint tenancy from a tenancy in common is the absence of the doctrine of survivorship in the latter. The share of one tenant is not affected by the death of one of the co-owners. The share of the deceased, devolves not to the other co-owner, but to the estate of the deceased co-owner. Although the four unities required for a joint-tenancy may be present, only one, the unity of possession is essential.” 176. The four unities of a joint tenancy are the unities of possession, interest, title and time. The unity of possession implies that each joint tenant is as much entitled to possession of any part of the land as the others. He cannot point to any part of the land as his JUDGMENT: ELC NO. 279 OF 2014 Page 109 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 109 of 140

own to the exclusion of the others. No one joint tenant has a better right to the property than another. Section 61 of the Land Registration Act, 2012 provides for the procedure for dealing with a tenancy in common where the proprietor has died. It provides that the personal representative(s) is entitled to be registered by transmission as proprietor in the place of the deceased, and further, that such registration relates back to and takes effect from the date of the death of the proprietor. As was the case in the instant suit. 177. The Honourable Court takes note of the testimony of DW - 5 who was the witness called by the 3 rd Defendant. He stated that the suit property was allocated (i.e. Land Reference No. KWALE/SHIMONI/ADJUDICATION/392) to three men – in the year 1970s. They were of Digo descent (a) Hamad Hamisi Tsupi, (b) Omar Mohamed Suleiman and (c) Matipo Nasir Mbuza. The original record for the Shimoni adjudication section is available. He suspected that two of the owners passed on only that surviving. 178. Accordingly it was the DW - 3 statement that the land initially belonged to his father – Hamadi Supi, Mr. Omar Mohamed and Mr. Matiko Nassir, it was a family parcel (Referred to Page 34 of the 1 st JUDGMENT: ELC NO. 279 OF 2014 Page 110 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 110 of 140

Defendant’s bundle of documents) it shows the land was under the Land Adjudication Section, Map – for 3 people). He was a inheritor/ a beneficiary of the land of his father’s share. They sat down with other owners of the land and families, discussed and agreed to sell it. He was to be the first to sell his portion. He remembered it was in the year 2012. They wrote a letter to the area chief and were allowed to proceed. DW - 3 confirmed that he had never applied for succession. He did not have any other documents apart from the letters from the chief, he did not know when the title was given (referred to page 40 and 59 cross referenced to the letter of Chief). The land was not conferred to him apart from the letter from the chief. 179. Hamid Hamis Tsupi sold the land to Kwale Cement Limited. On 12th October, 2012 and the title was issued by Land Registrar Edward Mawanga. On 10th June, 2014 Kwale Cement Limited sold to Sedona Limited and was charged on 4 th July, 2014 to Trust Bank (K) Limited for United States Dollar Ten Million (US$ 10,000,000/=) and he was the one who signed both the transfer and charge. On 24th November, 2014, he placed a government restriction because of the current civil suit. According to DW 5 he knew that there JUDGMENT: ELC NO. 279 OF 2014 Page 111 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 111 of 140

were 3 people owing the land as it was a land owned in common. This was an error which was an irregular procedure. They should have followed the long but the right was applying for letters of administration. Though the letter by the Chief talked of the three of them, had agreed meaning they were all alive and the succession process did not arise. On 28th May, 2014 – the Certificate of title was issued to Kwale Cement Factory Limited. There was a transfer from Ahmed Hamisi Supi and he cancelled the title. (Emphasis mine) 180. Further there was something that rattled the Court’s attention is both titles show that the entry was opened on 9 th April, 2022 and according to PW - 1 when he did the search in 2012 the only person that was registered on the suit property was Omar Bakari Diwani who had the title from 9 th April, 2002 registered the said land on 15th May, 2007 while that is the same date that DW 4 who had the title from 9th April, 2002 registered the said title on 12 th October, 2012 which title was cancelled. The 1st Defendant contended that he was an innocent purchaser for value of the suit property. JUDGMENT: ELC NO. 279 OF 2014 Page 112 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 112 of 140

181. From all the empirical documentary and oral evidence adduced, I find that the Plaintiffs title was first in time and as equity teaches in its maxim that; “when two equities are equal, the first in time prevails”, then the Plaintiff’s title number KWALE/SHIMONI/ADJ/392 with deed issued on 12 th October, 2012. Ordinarily, no land should be registered more than once and having two separate title deeds held by separate persons. Therefore in this case, there must be one title deed which is genuine and one which was issued either unlawfully or through mistake and thus double allocation. 182. Balancing the two or three competing titles, it is my view that the Plaintiffs hold a good title to the suit property being there no contrary evidence that the same was land allocated to three persons in common tenancy according to DW - 5. The title that was passed to the 1st Defendant by the Mr. Supi in my view, in the absence of evidence to rebut the same, could only have been obtained by the mistake of the Land Registry, being that Mr. Sufi admitted that he had never gotten a title to the land neither had he done succession proceedings after his father’s death he could JUDGMENT: ELC NO. 279 OF 2014 Page 113 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 113 of 140

not have transferred a property that still belonged to his father to a third party. 183. Further the Honourable Court takes note that in year 2012 before purchasing the suit property, the Plaintiffs did a search according to PW - 1 and the search indicated that the Plaintiffs were the legal proprietors of the suit property only for him to do another search in 2014 and the search came out in the name of the 1 st Defendant. PW - 1 who also acted for the Plaintiffs in the transaction confirmed to have conducted due diligence on the property and having been the financer of the Mr. Karanu had knowledge of the land and the original documents which he named in his testimony proving the proprietorship of the Plaintiffs. 184. Thus, based on the surrounding facts and inferences, the submissions and the authorities cited herein, this Honourable Court is of the strong opinion that the Plaintiffs have adequately proved their claim of being the legal and absolute rightful proprietors of the suit land with indefinable right, interest and title vested to her in law. They have established their case on the Preponderance of probabilities. JUDGMENT: ELC NO. 279 OF 2014 Page 114 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 114 of 140

ISSUE No. b). Whether the 1st Defendant has a meritorious Counter Claim and whether it is entitled to the prayers sought. 185. In his Counter - Claim, the 1 st Defendant repeated the contents of Paragraphs 1 to 6 of the Statement of Defence. He that at all times material to this suit the 1 st Defendant had been and remained an innocent purchaser for value of the Suit Premises the said land known as KWALE/SHIMONI ADJ./392 measuring approximately 45.46 Hectares. He held that the legitimate legal and beneficial owner thereof having bought the same using the law firm of Messrs. Anjarawalla & Khanna and after having conducted all due diligence, obtaining the positive results of official searches issued by the Lands Registrar and thereafter paying full consideration for the same. 186. According to the 1st Defendant, the suit premises were neither available for and were not eligible for alienation. Thus, they could not have so been available whether to the Plaintiffs nor the person(s)they purport to have bought the Suit Premises from. Further, they were neither available for the concerned authorities and or the 3rd Defendant to issue and or cause to be issued to and registered any indenture or transfer or transmission of ownership or title in respect of the Suit Premises and or in any manner JUDGMENT: ELC NO. 279 OF 2014 Page 115 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 115 of 140

whatsoever to effect any transmission of rights over the suit premises to the 1st and 2nd Plaintiffs and or any of their alleged predecessor in alleged Title and or to any other person whomsoever. This was so as the Suit Premises was originally set aside and demarcated through a process of Adjudication and Settlement carried out Shimoni, In Kwale District and was at the time of Demarcation land that was recorded in the names of the original inhabitants thereof known as Hamisi Hamad Tsupi, Omar Mohammed Selemani and Mwatiko Nassiri Ngusa who were at all time in actual physical possession thereof and whom were recorded as such in the Demarcation Books. In the premises the issuance of the Title under the purported operation of any law by the 3rd Defendant to the 1st and 2nd Plaintiffs or any alleged person from whom they alleged to have bought it from was fraudulent, illegal and therefore null and void ab initio. 187. The 1st Defendant relied on the following particulars of fraud against the 1st and 2nd Plaintiffs and the 3rd Defendant:a. They falsified and changed the entries in the Adjudication Register to reflect one Steven Jnema Karanu as the registered beneficiary of the Adjudication exercise when he was not and could not have been such. JUDGMENT: ELC NO. 279 OF 2014 Page 116 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 116 of 140

b. They falsified and changed the entries in the Adjudication Register to reflect persons other than Hamisi Hamadi Tsupi along with one Omari Mohammed Selemani and one Mwatiko Nassiri Ngusa to be the registered beneficiary of the Adjudication exercise when he was not and could not have been such. c. They falsified and tampered with the registers, documents and other entries and records so as to enable them to register and or issue title to persons other than Hamisi Hamadi Supi along with one Omari Mohamed Selemani and one Mwatiko Nassiri Ngusa as the original allottees following the Adjudication exercise and or the beneficiaries of the transfer to Kwale Cement Factory limited of Post Office Box 94012 - 80107 Mombasa on the 28th May 2014 and Title Serial Number 0831893 and thereafter on the 10th June 2014 to the favour of Sedona Limited of Post Office Box 95819 - 80106 Mombasa and the Title Serial Number 0831952 and thereafter the Charge to Diamond Trust Bank of Kenya Limited of a sum Kenya Shillings Ten Million (Kshs. 10,000,000/-). d. They falsified and tampered with the registers, documents and other entries and records so as to enable them to register and or issue parallel title(s) and documents and or other instruments to persons other than Hamisi Hamadi Supi along with one Omari Mohamed Selemani and one Mwatiko Nassiri Ngusa as the original allottees following the adjudication exercise and or the beneficiaries of the transfer to Kwale Cement Factory Limited of Post Office Box 94012 - 80107Mombasa on the 28 th May 2014 JUDGMENT: ELC NO. 279 OF 2014 Page 117 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 117 of 140

and Title Serial Number 0831893 and thereafter on the 10 th June 2014 to the favour of Sedona Limited of Post Office Box 95819 80106 Mombasa and the Title Serial Number 0831952 and thereafter the Charge to Diamond Trust Bank of Kenya Limited of a sum Kenya Shillings ten Million (Kshs. 10,000,000/-). e. They caused there to be issued two titles in respect of the same land the Suit Premises herein. f. The very existence of the 1st Defendant's Title and the second alleged Title presented by the 1st and 2nd Plaintiffs herein was sufficient evidence of fraud in as much as the 3 rd Defendant had issued two titles in respect of the same land the subject matter of this suit. g. The person from whom the 1st and 2nd Plaintiffs alleged to have bought the land was neither a local of the area nor a resident and not in actual occupation of the Suit Premises and could therefore not have legitimately or lawfully been allocated the land after the adjudication exercise and alienation resulting therefrom as only persons who were local to the area or resident thereon or in actual occupation may be considered to be beneficiaries of any demarcation and adjudication exercise and any purported demarcation and adjudication in their favor could only take place by means of fraud and illegality. h. The Plaintiffs were not the Registered owners according to official land office records and according to the evidence contained in the written statement of Charles Kipkurui Ngetich the Senior Land Registration Officer, Kwale to whose own knowledge:JUDGMENT: ELC NO. 279 OF 2014 Page 118 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 118 of 140

i) The name of the person mentioned in paragraph 5 as the alleged first allottee Steven Njema Karanu is not appearing anywhere in the official Kwale land office records and or in the Adjudication records as a first allottee. ii) There was no evidence in official Kwale Land Office records that the said Steven Njema Karanu purchased the Suit Property from the first allottee who according to official records is Hamisi Hamadi Supi along with one Omari Mohamed Selemani and one Mwatiko Nassiri Ngusa. iii) There was nothing in their Register to show that the two Plaintiffs Harish Ramji Manji and Ashvin Ramji Manji were ever or are currently registered as having any proprietary interests in the Suit Property. iv) The proprietor details in the Register were never changed save as in the manner the aforesaid and described in the statement of Charles Kipkurui Ngetich the Senior Land Registration Officer, Kwale and in which the owner is as per their records confirmed to be the 1 st Defendant Sedona Limited. v) There was no fraudulent transaction in all the transactions in the Official records and everything was legitimately done culminating in the final position showing that the legitimate proprietor of the Suit Property to be the 1 st Defendant Sedona Limited. vi) The said Charles Kipkurui Ngetich the Senior Land Registration Officer, Kwale has stated on record that he has never seen any evidence of purchase of the Suit JUDGMENT: ELC NO. 279 OF 2014 Page 119 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 119 of 140

Property by the Plaintiffs as has been stated in paragraph 3 of the Statement of the Plaintiffs filed herein and the same does not exist in official records at all. vii) There could not have been a transfer of any lease in respect of the Suit Property as stated in paragraph 7 of the Plaintiffs’ Witness Statement since the Suit Property is NOT A LEASEHOLD but is a FREEHOLD Title and it is inconceivable that their Registry could have registered a transfer of a lease in respect of land that is a Freehold Title. viii) In respect of the Transfer Document attached as No 1 in the Plaintiffs’ List of Documents the said Charles Kipkurui Ngetich the Senior Land Registration Officer, Kwale confirmed that there is no such document in their official records or register and the same was never lodged with their Registry. ix) The purported 'dead title' of Steven Njema Karanu did also not exist in the official file at the Registry as it ought to have been surrendered for cancellation if the transaction had been legitimate and if the new Title ought to have been issued in favour of the Plaintiffs. The title of Steven Njema Karanu must have been surrendered for the Kwale Registry to issue the Plaintiffs with the Title they allege they hold. As no Title was surrendered, no fresh Title could have been issued to the Plaintiffs. x) The said Charles Kipkurui Ngetich the Senior Registration in JUDGMENT: ELC NO. 279 OF 2014 Officer, Kwale Page 120 of 140 stated writing Land in HON.JUSTICE L.L. NAIKUNI (ELC JUDGE) his

page 120 of 140

Statement to the Court that he sincerely believes from a study of the Adjudication Records, their Register and the history of this matter including all facts and the records at the Registry and also from his personal knowledge of the matter that there is no doubt that the 3 allottees known as Hamisi Hamadi Supi along with one Omari Mohamed Selemani and one Mwatiko Nassiri Ngusa were the true and real allottees of this parcel of land making up the Suit Property and there is no evidence to show that they in any way transferred their interests or Title to one Steven Njema Karanu and therefore there is no possibility that he could or did in turn transfer the same to the Plaintiffs herein and even if he did do so, then he sold what he had no title or proprietorship interests in and one cannot sell what they do not own in the first place. xi) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property from obtained Indentures, Transfers, Grants, Conveyance of and or Title of the suit premises in their names when they are not and cannot be the legal and or beneficial owners of the same. xii) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property falsified the Indentures, Grants, Conveyance of and or Title of the suit premises to improperly reflect them as the owners thereof while there was in existence and circulation the actual and real and JUDGMENT: ELC NO. 279 OF 2014 Page 121 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 121 of 140

correct Demarcation record, Adjudication, Register, Grants, Conveyance of and or Title of the suit premises. xiii) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property falsified the entries and signatures on the said copy of the Demarcation Register and or Grants, Conveyance of and or Title of the suit premises so as to reflect them as the owners thereof. xiv) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property purported to purchase and transfer the ownership of the suit premises without any color of right and based on false and illegal documents of title. xv) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property purported to alienate and or transfer ownership in the suit premises in favour of third parties and subsequently to the favour of the 1 st and 2nd Plaintiffs and which was not available for alienation or grant or transfer to them; xvi) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property purportedly alienated and transferred the same in favour of the 1st and 2nd Plaintiffs the said suit premises without any or any legal authority JUDGMENT: ELC NO. 279 OF 2014 Page 122 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 122 of 140

and with full knowledge of his want of authority to engage in and conclude such action; xvii) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property alienated the same with knowledge of the fact that the said Suit Premises belonged to Hamisi Hamad Tsupi, Omari Mohamed Selemani and Mwtiko Nassiri Ngusa and or the Plaintiff; xviii) In alienating and or transferring the suit premises to third parties and thereafter to the 1st and 2nd Plaintiffs, the Plaintiffs acted mischievously and in breach of the express provisions of the law; xix) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property alienated the suit premises and transferred the same by falsifying and perverting the entire process upon which such conveyance or alienation is premised upon; xx) The 1st and 2nd Plaintiffs with the assistance of and in collusion with third parties from whom they alleged to purchase the Suit Property obtained the transfer of and Title to the suit premises in complete and flagrant contravention of the provisions of the Local Government Act and the Law and further failed, refused and or neglected to comply with the provisions of the Government Lands Act, the Registered Land Act, the Registration of JUDGMENT: ELC NO. 279 OF 2014 Page 123 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 123 of 140

Titles Act, the Local Government Act and the Law in its entirety; i. In any case the 1st Defendant relied completely on the searches done at the 3rd Defendant's Registry and the records kept thereat and the 3rd Defendant's explicit and implied assurances that the title to the Suit Premises were regular and in proper order and were lawful and further were legitimate and or were capable of transfer and valid transfer to the 1 st Defendant and by reason thereof the 1st Defendant committed its funds and purchased the same for development of a cement factory and caused to be prepared the necessary studies and sought the necessary investment funds and mobilized resources to that end and the 1st Defendant further avers that the current market value of the land the subject matter of this suit is now at Kenya Shillings One Billion Seven Hundred Million (Kshs.1,700,000,000.00). j. By reason of the foregoing, the purported issuance of grant or transfer and or title over the suit premises by the 1 st and 2nd Plaintiffs was void ab initio, and incapable of conferring any title, interest or rights in respect to or over the suit premises to the 1st and 2nd Plaintiffs and or any of them or at all but should this Honourable court find otherwise (which it was urged not to so find),then the 1st Defendant avers that it was entitled to recover the current market value of the suit premises from the 3rd Defendant and the 1st and 2nd Plaintiffs jointly and or severally. JUDGMENT: ELC NO. 279 OF 2014 Page 124 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 124 of 140

188. It is trite law that fraud must not only be pleaded but must also be strictly proved on a standard of proof above the ordinary balance of proof. It cannot be inferred from facts but must be substantiated as held in case of: “Virjay Morjaria – Versus Nasingh Madhusingh Darbar & another (2000) eKLR” , and in “Arithi Highway Developers – Versus - West End Butchery (2015) eKLR” . 189. To succeed in claiming fraud, the 1st Defendant not only need to plead but also particularize it by laying out water tight evidence upon which the court would make such finding. It is therefore trite law that any allegations of fraud must be pleaded and strictly proved. The Honourable Court was also guided by the Court of Appeal in case of “Kuria Kiarie & 2 Others – Versus - Sammy Magera [2018] eKLR” where it was held: “The next and only other issue is fraud. The law is clear and we take it from the case of Vijay Morjaria – Versus - Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA (as he then was) states as follows: “It is well established that fraud must be specifically 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.” JUDGMENT: ELC NO. 279 OF 2014 Page 125 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 125 of 140

190. As regards the standard of proof, this court in the case of “Kinyanjui Kamau – Versus - George Kamau [2015] eKLR” expressed itself as follows;“……….it is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo –Versus - 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.” 191. The 1st Defendant is challenging title to the suit property and claims that the property belonged to Mr. Hamadi Hamisi Supi who in his testimony claimed to have inherited the same from his father but had not gone through the succession of the estate of his late father and only relied on a letter written by the chief of his area. The 1st Defendant did not call the Land Registrar and it is only upon the testimony of the 3 rd Defendant’s witness that the Court gained context as to the issues pertaining the suit land which testimony did not corroborate that of the 1 st Defendant’s witnesses. It is therefore doubtful that Hamadi Hamisi Supi could JUDGMENT: ELC NO. 279 OF 2014 Page 126 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 126 of 140

have conferred to proper title having acknowledged Mr. Omar indeed owned the land. 192. According to DW - 3 – Ahmed Supi, the land initially belonged to his father – Hamadi Supi, Mr. Omar Mohamed and Mr. Matiko Nassir, it was a family parcel (Referred to Page 34 of the 1 st Defendant’s bundle of documents) it shows the land was under the Land Adjudication Section, Map – for 3 people). He was a inheritor/ a beneficiary of the land of his father’s share. They sat down with other owners of the land and families, discussed and agreed to sell it. He was to be the first to sell his portion. He remembered it was in the year 2012. They wrote a letter to the area chief and were allowed to proceed. DW - 3 confirmed that he had never applied for succession. He did not have any other documents apart from the letters from the chief, he did not know when the title was given (referred to page 40 and 59 cross referenced to the letter of Chief). The land was not conferred to him apart from the letter from the chief. He did not have any minutes of the family for purposes of resolving to sell the land. There was no sale agreement not letter of consent obtained from the Land Control Board, he never signed any transfer documents. JUDGMENT: ELC NO. 279 OF 2014 Page 127 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 127 of 140

193. The Honourable Court takes note of the testimony of DW 5 who was the witness called by the 3 rd Defendant. He stated that the suit property was allocated (i.e. Land Reference No. KWALE/SHIMONI/ADJUDICATION/392) to three men – in the year 1970s. They were of Digo descent (a) Hamad Hamisi Tsupi, (b) Omar Mohamed Suleiman and (c) Matipo Nasir Mbuza. The original record for the Shimoni adjudication section is available. He suspected that two of the owners passed on only that surviving. 194. The certificate of title in the name of the Plaintiffs is taken to be prima facie evidence that the persons named as proprietors are the absolute and indefeasible owner as per the provision of Section 26 of the Land Registration Act. Title documents are prepared and issued by the Land Registrar. In the absence of contrary documents from the office of the Land Registrar – the 3 rd Defendant herein, the court has no reason to find the title documents to be fraudulent. The 1 st Defendant in my view has failed to prove the alleged fraud against the Plaintiffs. In this case, the 1st Defendant has not tendered sufficient evidence that prove the particulars of fraud against the Plaintiffs to the satisfaction of the court. The 1st Defendant did not call the Land Adjudication and JUDGMENT: ELC NO. 279 OF 2014 Page 128 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 128 of 140

Settlement Officer to come and adduce evidence pertaining to the Land Adjudication Register. 195. Hence, the upshot of all this is that the Counter - Claim by the 1 st Defendant categorically fails with costs to the Plaintiffs. ISSUE No. C). Whether the Plaintiffs is entitled to prayers sought 196. Under this Sub - heading, the Plaintiff has sought for various reliefs as contained at the foot of the Plaint, herein. The principal remedy is an order directing the 3rd Defendant:i. to cancel title deed for KWALE/SHIMONI ADJ/392 issued to the 1st Defendant and all subsisting entries; and ii. to immediately rectify the registry to restore the Plaintiffs thereon as the bona fide owners of KWALE/SHIMONI ADJ/392 197. It is trite law that a certificate of title is conclusive evidence of ownership and is prima facie evidence that the registered proprietor is the owner. The provision Section 24 of the Land Registration Act 2012, gives the registered proprietor absolute rights over land, it provides:Subject to this Act— (a) 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; and (b) The registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges JUDGMENT: ELC NO. 279 OF 2014 Page 129 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 129 of 140

belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease 198. Further, this title is protected under Section 26 of the same Act which provides:(1) 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, 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. 199. Flowing from the foregoing provisions, a registered proprietor enjoys the statutory protection of title as long as he/she can show that the title was acquired procedurally. The circumstances when title can be cancelled or revoked have been enumerated above (26(1) (a) & (b) of the Land Registration Act. 200. The 3rd Defendant’s power to cancel a title is drawn from Section 79(2) of the Land Registration Act. Part VIII of the Act makes provisions for the rectification of title, which can be done by either the Registrar or by Court Order. Rectification by the Registrar under Section 79. JUDGMENT: ELC NO. 279 OF 2014 Page 130 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 130 of 140

(1) The Registrar may rectify the register or any instrument presented for registration in the following cases— (a) In formal matters and in the case of errors, mistakes or omissions not materially affecting the interests of any proprietor; (b) In any case and at any time with the consent of all affected parties; or (c) If upon resurvey, a dimension or area shown in the register is found to be incorrect, in such case the Registrar shall first give notice in writing to all persons with an interest in the rectification of the parcel; (d) For purposes of updating the register; (e) For purposes of correcting the name, address or other particulars of the proprietor upon the written application by the proprietor in a prescribed form. 201. The foregoing provisions envision rectification that does not affect the rights/interest of registered property loosely translated, basic and apparent errors or mistakes. The rectification can only occur with the proprietor’s consent unless: (a) The proprietor has by fraud or lack of proper care caused or substantially contributed to the error, mistake or omission; or (b) It would for any other reason be unjust for the alteration not to be made. 202. On the other hand, rectification by Court Order occurs as pursuant to provided Section 80 of the same Act, which provides;(1) Subject to subsection (2), the Court may order the rectification of the register by directing that any registration be JUDGMENT: ELC NO. 279 OF 2014 Page 131 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 131 of 140

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, 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. 203. Rectification by the Court of a title obtained by omission or mistake or fraud or by corrupt scheme, it is the Court that has that legal mandate in as far as the cancellation or amendments of title is concerned based on the circumstances of which are provided above. On the contrary, the Land Registrar does not therefore have the power to cancel title of a registered proprietor, unless under the express Order of the Court. DW - 5 gave testimony that on that 28th May, 2014 – the Certificate of title was issued to Kwale Cement Factory Ltd. There was a transfer from Ahmed Hamisi Supi and then he cancelled the title. 204. This Court agrees with the sentiments of the Court in the Court of Appeal decision in the case:- “Mombasa Appeal No. 98 of 2016 Super Nova Properties Limited & another – Versus - District Land Registrar Mombasa & 2 others; Kenya Anti-Corruption Commission & 2 others (Interested Parties) [2018] eKLR” agreed with the trial JUDGMENT: ELC NO. 279 OF 2014 Page 132 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 132 of 140

Court that “The only institution with mandate to cancel a title to land on the basis of fraud or illegality is a Court of law”. 205. From the evidence clearly adduced by the DW - 3 he did not pass a good title to the 1 st Defendant being that the suit land belonged to the father and he had never obtained grant letters of administration as an administrator of his deceased father and later applied to be a legal owner therefore that title is null and void. 206. There was no reason to doubt that the Plaintiffs entered into a sale agreement. The agreements were executed before advocates and even though none of them testified except the advocate that facilitated the 1st purchaser who conferred title to the Plaintiffs, there was no evidence to challenge the same. This Court finds that the Sale Agreements were valid. Both parties also executed the transfer documents which the Court finds the transfer documents, valid within the provisions of Section 44 of the Land Registration Act. Section 46 of Land Registration Act requires that before any document required for registration is registered, it must be stamped in accordance with the Stamp Duty Act. While the Plaintiffs have adduced evidence of payment JUDGMENT: ELC NO. 279 OF 2014 Page 133 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 133 of 140

of Stamp, the 1st Defendant did not produce the alleged sale agreement between Kwale Cement and Supi. 207. According to DW - 1 there was a consideration of a sum of Kenya Shillings Eight Million Nine Eighty Six Thousand Four Hundred (Kshs. 8,986,400/-); the evidence of funds transfer had not been produced. The valuer valued it for a sum of Kenya Shillings Eight Million Nine Eighty Six Thousand Four Hundred (Kshs. 8,986,400/=) for purposes of payment of payment of stamp duty. There was no record for it but they paid the stamp duty (witness referred to Paragraph 9 of his statement). According to the witness there was no evidence of stamp duty on the transfer between Kwale Cement Company and Sedona Limited – Transfer document on Page 55 franked stamp shows 06.14 – the numbers were not legible. The franking stamp was not properly placed as required by law. The witness stated that there were no original documents produced. 208. There is no way transfer could happen without payment of stamp duty. Therefore, the fact that the 1 st Defendant could not provide stamp duty for the purchase of the land between itself and alleged previous proprietor is very curious. (See “Embu ELC No. 327 of 2015 Elias Njue Ireri – Versus - Kubu Benson Nderi & 3 others[2019] JUDGMENT: ELC NO. 279 OF 2014 Page 134 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 134 of 140

eKLR”) To this end, the Court finds that both transactions produced and evidence by the Plaintiffs were within the legal parameters. However, the chronological purchase history provided by the 1st Defendant raises a lot of questions and doubt on the previous owners of that land. 209. In the given circumstances, the Court finds that the 1 st Defendant has failed to establish the root of their title and cannot be protected by this Court. Juxtapose, the Court has found that the Plaintiffs entered into a valid sale agreement which has the legal effect that title they be acquired should be protected under the provision of Section 25 & 26 of the Land Registration Act, No. 3 of 2012. The Plaintiffs’ title was under challenge and they alleged existence of fraud in cancellation of their title. The Plaintiffs had their day in Court, to lead evidence as to why their title should be declared the valid one, and they achieve in convincing the Court as much. The 1st Defendant on the other hand left the Court with a lot of unanswered questions as to why their documents were ‘missing’ or not produced. The role of this Court is to determine disputes in a fair, equitable and just manner and thus the reason why the Court analyzed the circumstances under which both JUDGMENT: ELC NO. 279 OF 2014 Page 135 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 135 of 140

parties acquired title. It was the duty of both parties as required by findings in the case of “Munyu Maina (Supra)”, to go beyond their titles and demonstrate how they acquired the said titles. Perhaps the 1st Defendant’s claim would have been different had they gone beyond the legal requirement of a search. This Court concurs with the sentiments of the Court in the case of:- “Nairobi ELC No. 128 of 2011 Esther Ndegi Njiru & another – Versus - Leonard Gatei [2014] eKLR”, where the Court held that: “The rampant cases of fraudulent transactions involving title to land has rendered it necessary for legal practitioners dealing with transactions involving land to carry out due diligence that goes beyond merely obtaining a certificate of search. Article 40 (6) of the Constitution removes protection of title to property that is found to have been unlawfully acquired. This provision of the constitution coupled with the provision of section 26(1) (a) and (b) of the Land Registration Act in my view places a responsibility to purchasers of titled properties to ascertain the status of a property beyond carrying out an official search. 210. This Court sympathizes with the 1 st Defendant who this Court finds they fell into the hands of unscrupulous land dealing individuals. Equity suffers no wrong without a right. The 1 st Defendant’s claim if any, squarely lies with pursuing the person whom they allege sold the suit land to them for the requisite legal action. Therefore, in the long run, the Honourable Court JUDGMENT: ELC NO. 279 OF 2014 Page 136 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 136 of 140

holds that the Plaintiffs are granted the prayers as sought in the Plaint. ISSUE No. D). Who bears the costs of the suit and the Counter - Claim . 211. It is well established that the issue of Costs is the discretion of Court. Costs mean the award that is granted to a party at the conclusion of the legal proceedings or legal action in any litigation whatsoever. The Black Law Dictionary defines “Cost” to mean, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other” . 212. The proviso under the provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. In the case of: “Reids Heweet & Company – Versus – Joseph AIR 1918 cal. 717 & Myres – Versus – Defries (1880) 5 Ex. D. 180, the House of the Lords noted:“The expression “Costs shall follow the events” means that the party who, on the whole succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it…..” JUDGMENT: ELC NO. 279 OF 2014 Page 137 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 137 of 140

213. By flowing the events mean the result or outcome of the whole circumstances and the case where a party has won the case. In the instant case, the Plaintiffs herein have successfully established their case and thus they are entitled to Costs for the Plaint and the dismissed Counter - Claim thereof to be paid by the 1 st and 3rd Defendant. XI. Conclusion and Disposition 214. Ultimately, having caused such an in-depth analysis to the framed issues herein, the Honourable Court on the preponderance of probabilities finds that the Plaintiffs have established their case against the Defendants herein. Thus, the Court proceeds to make the following specific orders:a) THAT Judgment be and is hereby entered in favour of the Plaintiff against the 1st to 3rd Defendants herein in terms of the Plaint dated 3rd November, 2014 in its entirety. b) THAT the Counter - Claim dated 4th December, 2015 by the 1st Defendant be and is hereby dismissed with costs. c) THAT a declaration be and is hereby issued that the title in respect to SEDONA LIMITED as registered on 10th June, 2014 is null and void. JUDGMENT: ELC NO. 279 OF 2014 Page 138 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 138 of 140

d) THAT a declaration be and is hereby issued that by reason of the fraudulent and corrupt scheme by Messrs. Sedona Limited acting in collusion with the 3 rd Defendant, the charge registered in favour of the 2 nd Defendant to secure a financial facility of a sum of Kenya Shillings Ten Million (Kshs. 10,000,000/-) by the said Sedona Limited be and is hereby found to be void and so vitiated by illegality that this Honourable Court cannot give any legal effect to it. e) THAT an order be and is hereby issued directing the 3rd Defendant to cancel title deed for Land Reference Numbers KWALE/SHIMONI ADJ/392 issued to the 1st Defendant and immediately all rectify subsisting the entries registry to and to restore the Plaintiffs thereon as the bona fide owners of the Land Reference Number KWALE/SHIMONI ADJ/392. f) THAT a permanent injunction be and is hereby issued restraining the 1st and 2nd Defendant and each of them whether employees by themselves, from agents, advertising, servants undertaking or any construction, trespassing, making any subdivisions, sale, transfer, lease, charge or in any manner creating any legal or beneficial interest in parcel of land known as Land Reference Numbers KWALE/SHIMONI ADJ/392 situated within the County of Kwale. g) THAT the costs of the Plaint and the dismissed Counter - Claim are awarded to the Plaintiffs thereof JUDGMENT: ELC NO. 279 OF 2014 Page 139 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 139 of 140

to be paid by the 1st and 3rd Defendants jointly and severally. IT IS SO ORDERED ACCORDINGLY. JUDGMENT DELIVERED THROUGH MISCROFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT MOMBASA THIS ………17TH ……… DAY OF ………JULY……………, 2024. …………………..…………………… HON. JUSTICE MR. L. L. NAIKUNI ENVIRONMENT AND LAND COURT AT MOMBASA Judgement delivered in the presence of:a) M/s. Firdaus Mbula – the Court Assistant; b) Mr. Adano Advocate for the Plaintiffs. c) Mr. Taib Advocate for the 1st Defendant d) No appearance for the 2nd Defendant. e) No appearance for the 3rd Defendant. JUDGMENT: ELC NO. 279 OF 2014 Page 140 of 140 HON.JUSTICE L.L. NAIKUNI (ELC JUDGE)

page 140 of 140