keelc-2025-06376

ANJU MOHANLALA SHAH .............. DEFENDANT TO THE COUNTERCLAIM JINIT MOHANLALA SHAH .............. DEFENDANT TO THE COUNTERCLAIM MOHANLAL DHARMSHI SHAH ..... DEFENDANT TO THE COUNTERCLAIM JUDGMENT 1. 2. In a plaint filed in court on 9th October 2013, the Plaintifis herein sought various orders namely; a. A permanent injunction be issued restraining the Defendant by itself or through its agents, oficers, servants and/or employees from demolishing, pulling down, bulldozing, damaging, knocking down, disposing, wasting, tampering with, entering upon, trespassing, alienating or in any way interfering with any of the Plaintifis’ properties, namely L.R. No. 4953/2209, Thika L.R. No. 4953/2159, Thika L.R. No. 4953/4064, Thika, 4953/2021, Thika L.R. 4953/2206, Thika, L.R. 4953/2020, Thika and L.R. No. 4953/1954, Thika including the boundary walls and any other developments or structures thereon. b. A declaration that the Defendant’s action of malicious demolition and wanton destruction of the Plaintifis’ property is a violation of the Plaintifis’ constitutional right to property. c. A declaration that the Plaintifis’ are entitled to equal protection of law and that the Defendant’s action of malicious demolition and wanton destruction of the Plaintifis’ property deprives of such protection. d. Special damages as pleaded in paragraph 8 of the Plaint together with interest thereon at Court rates from the date of filing suit until payment in full. e. Costs of the suit. f. Any such further or other form of relief as this Honourable Court may deem fit and just. The Plaintifis averred that they are registered proprietors of the following parcels of land; a. The 1st Plaintifi, Ray Pharmaceuticals Limited, is the registered proprietor of L.R. No. 4953/2209, Thika b. The 2nd Plaintifi, Metropol Enterprises Limited, is the registered proprietor of L.R. No 4953/2159, Thika c. The 3rd Plaintifi, Vitaform Products Limited, is the registered proprietor of L.R. No. 4953/4064, Thika d. The 3rd and 4th Plaintifis, Vitafoam Products Limited and NCP Paper Mills Limited respectively, are the registered proprietors of L.R. No. 4953/2021, Thika as tenants in common e. The 5th Plaintifi, Anju Mohanlal Shah, is the registered proprietor of L.R. No. 4953/2206. Thika f. The 6th Plaintifi, Jinit Mohanlal Shah, is the registered proprietor of L.R. No. 4953/2020, Thika g. The 7th Plaintifi, Mohanlal Dharamshi Shah is the registered proprietor of L.R. No. 4953/1954, Thika https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6376/eng@2025-04-30 2

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3. They deposed that as registered proprietors of the aforesaid properties they were vested with full, indefeasible and inalienable proprietary rights and interests in the said properties including the right to develop and fence the same subject to obtaining necessary approvals. It was their contention that after obtaining necessary approvals from the Municipal Council of Thika, they constructed boundary approvals around their respective properties. 4. That notwithstanding that they had the necessary approvals the Defendant on the 24th and 26th September, 2013 through its oficers, did in a pick up truck KAV 322E and tractor KBJ 721 U enter the properties and demolish the boundary walls despite pleas from agents of the Plaintifis who were at the site. The Plaintifis aver that they sufiered special damages amounting to Kshs 107,474,034. They now expect to incur greater loss in reconstructing the boundary wall. They insist that they are entitled to equal protection of the law. 5. The Defendant filed a Defence and a counterclaim. In the Defence the Defendants deny that the Plaintifis are the lawful owners of the suit properties which the Defendants insist is public land which the Plaintifis irregularly acquired. The Defendants further state that the Plaintifis did not obtain the necessary development approvals namely; a. There is no application, minutes of the approval and payment evidence in respect of the drawing for property L.R. 4953/2209 claimed by the 1st Plaintifi. b. There is no application, minutes of the approval and payment evidence in respect of the drawing for property L.R. 4953/2159 claimed by the 2nd Plaintifi. c. There is no application, minutes of the approval and payment evidence in respect of the drawing for property L.R. 4953/2206 claimed by the 5th Plaintifi. d. There is no application, minutes of the approval and payment evidence in respect of the drawing for the property L.R. 4953/1954 claimed by the 7th Plaintifi. e. There are no drawings, applications, minutes of the approval and payment evidence in respect of properties L.R. No. 4953/4064, L.R. No. 4953/2021 and L.R. No. 4953/2020 claimed by the 3rd and 6th Plaintifis. f. The only notifications of approval of development permissions exhibited relate to properties L.R. NO. 4953/2159 and L.R. No. 4953/2209 claimed by the 1st and 2nd Plaintifis and g. The 3rd, 4th, 5th, 6th and 7th Plaintifis do not have any notifications of approval of development permissions in respect of properties L.R. No. 4953/4064, L.R. No. 4953/2021, L.R. No. 4953/2020 and L.R. No. 4953/1954 claimed by them. 6. In any event the Defendants allege that the Plaintifis were duly notified to remove the ofiending walls and failed to act upon the notice hence they cannot claim malice. The Defendants further state that the particulars of special damages have not been proved as no evidence has been availed to prove the claimed sum. 7. In the counterclaim the Plaintifis plead that the grants held by the Defendants were acquired through fraud, misrepresentation, error or misdescription. The particulars of fraud, misrepresentation and misdescription are particularized as herein below. 8. In so far as it relates to property L.R. No. 4953/2209 Thika, claimed by the 1st Plaintifi:-The property was allotted to Parkat Manufacures on 4th September, 1992 as an unsrveyed plot A, measuring 2.6 hectares;The 1st Plaintifi never accepted the terms of the allotment and did not pay the fees and charges https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6376/eng@2025-04-30 3

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set out in the letter of allotmentThe shape of the property in the deed plan dated 31st March, 1993 does not match with the shape of the property in the part development plan dated 4th December, 1991The plan attached to the letter of allotment as number T10/1/XIX131 A does not match with the one in the part development plan number NRB/4/92/95There are no records in the Physical Development Department in Thika, in respect of the propertyThe property is claimed to have been alienated by the irregular cancellation of FR 250/123 and the creation of a new FR 528/151; and,There is no instrument of transfer from Parkat Manufactures to the 1st Plaintifi. 9. In so far as it relates to property L.R. No. 4953/2159 Thika, claimed by the 2nd PlaintifiThe property was first allotted to the 2nd Plaintifi on 23rd August, 1991 as an unserveyed plot, measuring 9.0 hectaresThe first allotment appears to have been cancelledThe property was again, allotted to the 2nd Plaintifi on 20th May, 1992 as an unserveyed plot, measuring 6.2 hectaresThe series number in the subsequent letter of allotment does not agree with those issued at the timeThe subsequent allotment was intended to irregularly match a part development plan earlier done on the property, measuring 6.2 hectaresThe 2nd Plaintifi never accepted the terms of the allotment and did not pay the fees and charges set out in the letter of allotmentThe property was never registered in the name of the 2nd Plaintifi until 30th September, 2010, a period of over 18 yearsThe part development plan used to register the property has a dubious stamp number TP10/1/XVII/74 which is the number given on the letter of allotment;A request for subdivision of the property is claimed to have been made on 5th August, 1998, yet no grant for the property had been registered as at the date; and,There was no change of user in respect of the property to warrant the issuance of a grant on 30th September, 2010 10. In so far as it relates to the L.R. No. 4953/4064 Thika, claimed by the 3rd Plaintifi:The part development plan for the property dated 16th June, 1992 has been overwritten without any explanation despite the fact that the same relates to a difierent property altogetherThe property was first allotted to Mpuri Millers Limited on 7th July, 1992 as an unsurveyed plot B, measuring 2.0 hectaresThe property was again, allotted to Joseph K. Kriuki on 8th September 1992 as an unsurveyed plot A, measuring 0.4 hectaresThe property was again, allotted to Njoroge Guthia and Francis K. Muli on 8th January, 1999 as an unsurveyed plot B, measuring 2.0 hectares. This allotment purported to cancel the first allotment to Mpuri Millers LimitedOn 8th January, 2009 Kiamjau Investments claimed entitlement to the property pursuant to a purchase from Njoroge Guthia and Francis K. Muli under an agreement for sale dated 25th May 2000On 10th March, 2000 the allotment to Njoroge Guthia and Francis K. Muli was withdrawnThe property was then for the second time, allotted to Mpuri Millers Limited on 7th October, 2009 as an unsurveyed plot B, measureing 2.0 hectaresThere is no evidence of acceptance of the terms of the allotment or payment of the fees and charges set out in the letter of allotmentA grant is claimed to have been issued to Mpuri Millers Limited on 1st October, 2010The deed plan for the property is claimed to have been issued without reference to earlier surveys and claims of allotteesOn 9th February, 2011, the Town Clerk of Thika Municipal Council confirmed that there were no records on the allotment of the propertyThe property is claimed to have been transferred to Kenblest Liited on 11th January, 2011 for Kshs.4,000,000.00, to the 3rd Plaintifi on 30th December, 2011 for Kshs.50,000,000.00 and charged to I&M Bank Limited on 28th February, 2013 for an astronomical sum of Kshs.1,300,000,000.00 andThere are no agreements for sale, instruments of transfer and charge in evidence of the four transactions amongst Mpuri Millers Limited, Kenblest Limited, 3rd Plaintifi and I & M Bank Limited 11. In so far as it relates to property L.R. No. 4953/2021 Thika, claimed by 3rd and 4th PlaintifisThere are no records whatsoever, of how the property was allotted and registered in the name of Marcellin Njoroge MuruthiThere is no evidence of acceptance of the terms of the allotment or payment of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6376/eng@2025-04-30 4

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fees and charges set out in the letter of allotment andThere are no records whatsoever, of the sale and transfer of the property from Marcellin Njoroge Muruthi to Neel Jinit Shh and Niraj Anju Mohanlal Shah, from Neel Jinit Shah and Niraj Anju Mohanlal Shah to 3rd Plaintifi and from the 3rd Plaintifi to the 3rd and 4th Plaintifis. 12. In so far as it relates to property L.R. No. 4953/2206 Thika, claimed by the 5th PlaintifiThe property was allotted to Rev, Frabcui B Ngila and James Muia Kimilu on 11th September, 1992 as an unserveyed plot A, measuring 2.6 hectares;There is no evidence of acceptance of the terms of the allotment or payment of the fees and charges set out in the letter of allotmentThe property was registered in the name of James Muia Kimilu on 4th August 2008 over 16 years from the date of allotment; andOn 5th December, 2008, Rev Francio B. Ngila purported to transfer his interest in the allotment to James Muia Kimilu way after the sole registration of the property in the latter’s name. 13. In so far as it relates to property L.R. No. 4953/2020 Thika, claimed by the 6th PlaintifiThe property was first allotted to Tetu Jua Kali Promoters on 19th December, 1991 as an unserveyed plot measuring 4.0 hectaresTetu Jua Kali Promoters paid of the fees and charges for the allotment on 30th September, 1993A deed plan for the property was issued on 2nd August, 1992On 4th July, 2008, individuals claiming to be oficials of Tetu Jua Kali promoters purported to surrender the property to the Government of KenyaThe Purported surrender was queried by the Commissioner of Lands on 4th July 2008On 16th March, 2009 the 6th Plaintifi applied for the allotment of the propertyThe property was then allotted to the 6th Plaintifi on 24th April, 2009 without reference to the earlier survey in favour of the first allotteeThere is no evidence of acceptance of the terms of the allotment or payment of the fees and charges set out in the letter of allotmentThe part development plan for the property shows two properties yet the 4th Plaintifi claims it is one without evidence of any amalgamationThere is no explanation whatsoever, why a property allotted and surveyed in 1991 and 1993 respectively is not registered until 24th July, 2009, a period of over 17 years. 14. In so far as it relates to L.R. 4953/1994 Thika, claimed by the 7th PlaintifiThere are no records whatsoever, of how the property was allotted and registered in the name of 7th PlaintifiThere is no evidence of acceptance of the terms of the allotment or payment of the fees and charges set out in the letter of allotment. 15. The Plaintifis / Defendants filed a Defence to the Counterclaim in which they sought that; a. The Plaintifis’ main suit be dismissed with costs. b. A declaration be and is hereby issued that grant numbers I.R. 60555, 126463, 57997, 117392, 118971, and 126455 dated 13th August, 1993, 30th September, 2010, 1st October, 2010, 1st March, 1993, 11th May 2009, 24th July, 2009 and 14th September, 2010 respectively for properties L.R. No. 4953/2206, L.R. No. 4953/2020 and L.R. No. 4953/1954 respectively, in the names of the Defendants in the counterclaim were obtained through fraud, error, misrepresentation or misrepresentation or misdescription and are null and void ab initio. c. Grant numbers .R. No. 60555, 126462, 126463, 57997, 117392, 118971 and 126455 dated 13th August, 1993, 30th September, 2010, 1st October 2010, 1st March, 1993, 11th May, 2009, 24th July, 2009, 24th July 2009 and 14th September, 2010 respectively for properties L.R. No. 4953/2209, L.R. No 4953/2159, L.R. No. 4953/4064, L.R. No 4953/2021, L.R. No. 4953/2206, L.R. No. 4953/2020 and L.R. No. 4953/1954 respectively, in the names of the Defendants in the Counterclaim be and are hereby cancelled and the Registrar of Titles be and is hereby directed to close the register in respect thereof. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6376/eng@2025-04-30 5

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d. A permanent injunction be and is hereby issued restraining the Defendants in the Counterclaim whether by themselves, agents, servants or otherwise howsoever from trespassing upon, advertising, ofiering for sale, leasing, mortgaging, charging transferring or assigning and/or otherwise dealing with the properties in grant numbers L.R. 60555, 126462, 126463, 57997, 117392, 118971, and 126455 dated 13th August, 1993, 30th September, 2010, 1st October, 2010, 1st March, 1993, 11th May, 2009, 24th July, 2009 and 14th September 2010 respectively, for properties L.R. No. 4953/2209, L.R. NO 4953/2020 and L.R. No. 4953/1954 respectively. e. The Defendants in the counterclaim be ordered to pay the Plaintifi in the counterclaim general damages for fraudulent misrepresentation, error or midescription. f. The Defendants in the counterclaim be ordered to pay the Plaintifi in the Counterclaim costs of this Counterclaim together with interest thereon at court rates from the date of filing of this suit until payment in full. g. Any such other or further relief as this Honourable Court may deem approprieate. 16. This matter first proceeded for hearing before Hon Lady Justice Komingoi on 2nd December 2021. On this date the 1st 2nd and 7th Plaintifi witnesses testified. On application of the Defendant the proceedings were set aside. On 6th October 2022, the matter proceeded in the presence of both counsel. On the 27th September 2023, matter proceeded with the same witnesses testifying again in the presence of counsel for the Plaintifi and counsel for the Defendant who was represented by a counsel Ms Maina. Vide an application dated 4th March 2024 counsel for the Defendant sought that the proceedings be expunged. Counsel pointed out that the proceedings of 27th September 2023 mirrored those of 6th October 2022 as the Plaintifi had called the same witnesses to testify. I found merit in this application and allowed the same. The repeat testimony of the 1st to 5th Plaintifi witnesses was expunged from the record vide directions given by the court on 11th March 2024. 17. The Plaintifi called seven witnesses in support of its case. Peter Otieno told the court that the 5th, 6th and 7th Defendants are Directors of Kenblest Limited. He told the court the Directors owned the properties in their own capacity. He produced witness statements and documents on behalf of the plaintifis. He recounted how the fences on the respective properties were demolished by persons he identified to be from the Defendant. 18. PW2 Nuray Ramesh Shah told the court he is a Director of Metropolis Enterprises. He confirmed to the court that he was on the ground when the demolition took place. On cross examination he stated that he had been authorized to testify on behalf of the 2nd Plaintifi. 19. PW 3 Rakesh Shah told the court suit property 4953/454 was allocated to Nuru maize millers. He denied that he had any information that the Town Clerak had said he had no records. Upon Cross examination he stated that the property had been allocated to Mercyline Murithi. He insisted she had paid the charges and been issued with a Clearance Certificate. He clarified that there was a sale agreement and a consent to the transfer. 20. PW 4 Anju Mohanlal Shah testified as the 5th Plaintifi. He stated that the property was first allocated to Mr Ngila and James Kimumu as an unsurveyed plot. He averred that he was not aware there was no acceptance and that it was registered to James Kimulu. He denied knowledge of the Part Development Plan. It was further his evidence that he was not at the scene during the demolition. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6376/eng@2025-04-30 6

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21. PW 5 Jinit Mohanlal Shah produced the video recording of the demolition. It was his evidence that the property had been allocated to Tetu Jua Kali properties and admitted he was not aware of the deed plan and that the property was surrendered to government or it was queried. He insisted that he applied for the allocation and it was allocated to him. He was unable to explain how the Part Development Plan shows two properties or why the registration took place seventeen years after the allotment. 22. PW 6 was the same witness who testified as PW 5 on two dates. This was due to a confusion which was corrected by the court in directions issued on 11th March, 2024. On the 27th September 2023 he produced a vide recording of the demolition. 23. The last Plaintifis witness Stephen produced a valuation report on the value of the fences which were demolished. 24. The Defence witness Charles Kimani a Kiambu County Land Surveyor took the court through the various documents presented by the Plaintifis and pointed out the gaps and issues the Defendants had with the documents and the procedure. 25. At the conclusion of the hearing both parties filed submissions. Counsel for the Plaintifi submitted that the Plaintifis had titles to the suit properties in respect of which the demolitions were carried out. Counsel stated that the titles were issued under the Registration of Titles Act which was repealed. Counsel cited several authorities emphasizing the indefeasibility of title save for fraud to which a party is privy. Counsel itemized the supporting documents in respect of the titles and insisted that the Plaintifis had lawfully acquired the properties. On the question of demolition, counsel was categorical that the procedure had not been followed. 26. Counsel for the Defendant /Plaintifi by counter claim on his part argued that the Plaintifis titles did not meet the test set out in the case of Dina Management Ltd versus County Government of Mombasa (2023)eKLR. Counsel pointed out the defects in the titles. 27. Counsel for the Plaintifi/ Defendant by counterclaim identified the issues for determination thus;Whether the plaintifis in the main suit are the registered proprietors of the suit propertiesWhether the defendant in the main suit’s alleged demolition of the boundary walls on the suit property was lawfulWhether the prayers sought in the counterclaim should be allowed 28. Counsel for the Defendant/ Plaintifi by Counterclaim on his part summed up the issues for determination thus;Whether the plaintifis are the registered proprietors of the parcels of landWhether the defendant’s demolition of the boundary walls was lawfulWhether the prayers sought in the counterclaim should be allowedWhether the defendant’s preliminary objection is admissibleWho should bear the costs of the suit? 29. It would appear that both parties had identified similar issues for determination save for counsel for the Defendant/ Plaintifi by Counterclaim who added the issue of the Preliminary objection. In consolidating the issues raised by both parties I distill the following issues for determination;Whether the defendant’s preliminary objection has meritWhether the plaintifis are the registered proprietors of the parcels of landWhether the defendant’s demolition of the boundary walls was lawfulWhether the prayers sought in the counterclaim should be allowedWho should bear the costs of the suit? 30. I will address the Preliminary Objection first. The counsel for the Defendant/ Plaintifi by Counterclaim aver that there is another matter ELC Thika 280 of 2017 filed by the 6th Plaintifi in respect of the same cause of action. Counsel therefore avers that this court should not proceed with this matter while the other matter is pending. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6376/eng@2025-04-30 7

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31. Section 6 of the Civil Procedure Act provides; “ No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 32. In providing clarity on this issue the Supreme Court of Kenya in Supreme Court of Kenya in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties), stated therein as follows: “ The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing confiicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 33. It is clear that in deciding the question of sub judice the question of which is the earlier matter is germane. This matter is a 2013 matter, while the Thika case is a 2017 matter. Evidently going by the guidance of the Supreme Court in the above case, there is no bar to this matter which was filed earlier proceeding. However regarding the question of ownership especially as it relates to the 6th Plaintifi/ Defendant by counterclaim I find that given that there are other parties who are in the Thika suit but who are not in this case it would prejudice the suit if the court was to make a determination on the same question of ownership in this suit. As such I will make no determination in respect of this aspect of the 6th Plaintifis claim. 34. Both parties identified the issue of whether the Plaintifis / Defendants by Counterclaim are registered owners as an issue for determination by the Court. The evidence is clear that all the Plaintifis had documentation of some sort. The common issue and which is the crux of the matter is whether the titles should be upheld. 35. Section 26 of the Land Registration Act provides …. “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. 36. The courts have had occasion to give judicial interpretation on the approach that a court should take when a title is under challenge. The Court of Appeal in Munyu Maina v Hiram Gathiha Maina Civil Appeal No. 239 of 2009 [2013] eKLR, held that; “where the registered proprietor’s root title is under https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6376/eng@2025-04-30 8

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challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.” 37. Similarly, in the case of Funzi Development Ltd & Others v County Council of Kwale, Mombasa Civil Appeal No.252 of 2005 [2014] eKLR the Court of Appeal, stated that: “ ...a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot on the basis of indefeasibility of title sanction an illegality or gives its seal of approval to an illegal or irregularly obtained title.” 38. The Supreme Court had the last word on this issue. In the case of Dina Management, the court was emphatic that a title is the product of a process. If the process is fiawed there can be no good title. 39. The common thread running through the jurisprudence in our courts is that once a title is impugned the burden shifts to the title holder to prove the validity of the title. 40. In the instant case the Defendant/ Plaintifi by counterclaim contends that the suit properties belong to the County hence public land. On the other hand the Plaintifi/ Defendant by Counterclaim contend that although the suit properties were initially public land, they were lawfully alienated to the Plaintifis or sold to them as bona fide purchasers. 41. Section 35 of the Government Land Act provides; “ (1)Every application for a lease or licence of or relating to unalienated Government land for any special purpose shall be made in writing in the form prescribed, and shall give such particulars as may be required by rules made under this Act.” 42. In the case of Torrino Enterprises versus Attorney General (Petition 5 (E006 of 2022) the Supreme Court pronounced itself on a number of issues including;an allotment letter is incapable of transferring or passing valid title to a third party unless and until he becomes the registered owner. This holds true even in instances where the allotment letter has not lapsed.Even if perfected an allotment letter cannot confer transferable title, unless the latter completes the process by registration.The Court also restated the procedure to be followed in alienating Government land namely a Part Development Plan is to be drawn after which the ofier was to made with conditions and a survey carried out and certificate of lease issued. 43. Regarding the claim that some of the Plaintifi are bona fide purchasers for value, Black’s Law Dictionary 8th Edition defines a bona fide purchaser as: “ One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.” 44. In the Court of Appeal decision Samuel Kamere v. Lands Registrar, [Kajiado Civil Appeal No. 28 of 2005 [2015] eKLR] the Court pronounced itself as follows: “…in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property…” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6376/eng@2025-04-30 9

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45. In light of these clear principles that have been well documented by the Superiors Courts, and which apply depending on whether ownership is alleged to have been obtained through alienation or purchase, I will analyse the evidence given by both parties so as to make a finding on the issue of ownership. 46. The first plaintifi Ray Pharmaceuticals has in the statement by Dhirendra V Shah deposed that LR 4953/2209 was purchased vide a sale agreement dated 8th November, 2008. The seller was Vinubhai Virpal Shah who sold the property for a consideration of Ksh 2,500,000 which was paid by way of payment of outstanding rates and rents. No search has been exhibited to confirm that there was verification of ownership before the agreement was executed. There is no attempt to explain how Vinubhai Virpal Shah obtained the title, hence the root has not been traced. This lends credence to the assertion by the Plaintifi in the counterclaim that in fact a letter of allotment was issued to Parkash Manufactures who did not accept the ofier or pay the fees. 47. The second plaintifi/ Defendant by counterclaim has through its managing director Laxman Premji Kerai deponed that LR 4953/2159 was acquired vide a letter of allotment subsequent to which fees was paid. He has attached a letter of allotment dated 20th May 1992 and a receipt for payment dated 20th December 1993. In the case of this Plaintifi, the Defendant/ Plaintifi by counterclaim admits that indeed a letter of allotment was issued on 20th May, 1992 although this was the second letter of allotment. The major issue the Defendant / Plaintifi by counterclaim raises is that the conditions given in the letter of allotment were not fulfilled. The Plaintifi/ Defendant by counterclaim has attached a receipt which the court was referred to as evidence of payment. This receipt does not indicate the nature of transaction. In any event it is dated 20th December, 1993 long after the ofier had lapsed. 48. The Third Plaintifi/ Defendant by counterclaim avers through witness statement by Rakesh Chandrakant Shah that suit LR 4953/ 4064 was acquired vide an agreement for sale dated 12th September 2011. The witness states that the property was acquired for a sum of Kshs 50,000,000 from Kenblest who acquired it from Mpuri Maize Millers vide agreement dated 13th July, 2010. The Defendant/ Plaintifi by counterclaim confirms that there was an allotment to Mpuri Millers on 7th October, 2009 but insists that the terms were not complied with. The documentation provided by the 3rd Plaintifi/Defendant by counterclaim include a sale agreement dated 13th July, 2010 at a price of Kshs 8,000,000 and a transfer indicating the value of the property as Ksh 4,000,000, which is at variance with the selling price. There is no evidence of remittance of the sale price hence no proof of valuable consideration. 49. The fourth Plaintifi/ Defendant by counterclaim is represented by the same witness Rakesh Chandrakant Shah who states that LR 4953/2021 was acquired vide an agreement of sale dated 19th July 2021. He states that the property was allotted to Merceline Njoroge Muruthi on 2nd July 1992 who accepted the terms of the letter of allotment before selling the property to Neel Shah and Anju Shah. The Defendant/ Plaintifi by counterclaim is categorical that there are no records at all of any of the alleged transactions. The evidence adduced in respect of this property include a letter of ofier dated 2md July 1992 which had as terms payment of stand premium and rent totaling Kshs 838,680. There is also a cheque for the same amount and a receipt from the Department of Lands. Thereafter there is a sale agreement between Merceline Njoroge Muruthi to Neel Finit Shah and Anju Mohanlal Shah . There is no evidence that the 3rd and 4th Plaintifi paid the rates which was the consideration for the agreement. Neither is an oficial search attached to prove that the property was belonged to Merceline Njoroge Muruthi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6376/eng@2025-04-30 10

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50. The 5th Plaintifi/ Defendant by counterclaim in his witness statement states that the property LR 4953/2206 was obtained from James Muia Kimilu. He produces a letter of allotment dated 9th January 2009. There is no evidence there was compliance with the terms and conditions thereof. 51. The 6th Plaintifi/ Defendant by Counterclaim Jinit Mohanlal Shah avers that he applied for and was issued with a letter of allotment. He paid for the letter of allotment as evidenced by a bankers cheque and was issued with a title to the property. The Plaintifi by counterclaim has raised concern on this property indicating there are other claims on the same. I also note the earlier issue raised in the Preliminary Objection. It would violate the right to fair hearing if this court were to make a determination on this issue when there are parties who are not before this court. As such I will make no determination on the property LR 4953/2020. 52. The 7th Plaintifi/ Defendant by counterclaim on his part testified that he was issued with a letter of allotment dated 1st July 2010. He made a payment for Kshs 747,400 vide Bankers Cheque 051374 dated 7th July 2010. His receipt clearly indicates payment was for stand premium He was issued with a receipt dated 14th July 2010 and a survey was carried out. A title in his name was issued on 14th September 2010. He has all the necessary documentation including proof of payment. I am satisfied that he has established the root of his title which the court hereby upholds. It is instructive that the Defendant/ Plaintifi by counterclaim did not have much to say on this title. 53. In concluding my findings on this issue I find that for the reasons cited, and other reasons enumerated by the Defendant/Plaintifi by counterclaim in the pleadings and statements, the titles for the 1st to 5th Plaintifis/Defendants do not meet the basic requirements either of alienation of public land or bona fide purchaser for value as the case may be. They cannot be upheld. 54. On the question of demolition, the Defendants/Plaintifis by counterclaim did not make any efiort to disprove the evidence adduced by the Plaintifis regarding the same. Indeed upon cross examination the Defendant witness did concede that the boundary wall was demolished by the Defendant. It is imperative that action on any illegal construction be undertaken in strict compliance with the law. The requirements for issuance of an enforcement notice is clearly outlined in Section 38 of the Physical Planning Act which provides that; “ 38(1) when it comes to the Notice of a Local Authority that the development of land has been or is being carried out after the commencement of this Act without or that any of the conditions of a development permission granted under this Act has not been complied with, the local authority may serve an enforcement notice on the owner, occupier or developer of the Land” 55. This notice should be issued notwithstanding any dispute there may be of ownership. An omnibus notice such as was issued in the present case does not meet the stringent requirements of the law. 56. Demolition is a process that is no doubt a very traumatic process. More so in a case such as this where a group of persons descended on the suit properties, while camoufiaged and started demolishing the fences. While it is appreciated that from time to time it shall be unavoidable that demolitions take place, it is essential that the demolition must be carried out within the confines of the law including issuance of adequate notice. This is due process. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6376/eng@2025-04-30 11

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57. The importance of due process was emphasized by the Court of Appeal in the case of Christopher Ndarathi Murungaru vs Kenya Anti-Corruption Commission & Hon. Attorney General (2006) Eklr, the Court held that; “ Kenya has opted for the rule of law and the rule of law implies due process. The courts must stick to that path even if the public may in any particular case want a contrary thing and even if those who are mighty and powerful might ignore the court’s decisions… The courts must continue to give justice to all and sundry irrespective of their status or former status..” 58. I therefore hold that notwithstanding the questions on ownership the Plaintifi deserved to be notified in accordance with the Law of the impending action to be taken on them. 59. The Plaintifis produced a valuation on damages they incurred. This evidence was not contradicted by the Defendants. I find that all the Plaintifis are entitled to compensation for the demolition of the properties which they had constructed on the basis of permission by the Defendant. 60. On the question of costs considering that each party has been partially successful each party will bear their own costs. a. A declaration be and is hereby issued that grant numbers I.R. 60555, 126463, 57997, 117392, and dated 13th August, 1993, 30th September, 2010, 1st October, 2010, 1st March, 1993, 11th May 2009, 24th July, 2009 and 14th September, 2010 respectively for properties L.R. No. 4953/2206, respectively, in the names of the Defendants in the counterclaim were obtained through fraud, error, misrepresentation or misdescription and are null and void ab initio. b. Grant numbers .R. No. 60555, 126462, 126463, 57997, 117392, dated 13th August, 1993, 30th September, 2010, 1st October 2010, 1st March, 1993, 11th May, 2009, 24th July, 2009, 24th July 2009 and 14th September, 2010 respectively for properties L.R. No. 4953/2209, L.R. No 4953/2159, L.R. No. 4953/4064, L.R. No 4953/2021, L.R. No. 4953/2206 respectively, in the names of the Defendants in the Counterclaim be and are hereby cancelled and the Registrar of Titles be and is hereby directed to close the register in respect thereof. c. A permanent injunction be and is hereby issued restraining the Defendants in the Counterclaim whether by themselves, agents, servants or otherwise howsoever from trespassing upon, advertising, ofiering for sale, leasing, mortgaging, charging transferring or assigning and/or otherwise dealing with the properties in grant numbers L.R. 60555, 126462, 126463, 57997, 117392 dated 13th August, 1993, 30th September, 2010, 1st October, 2010, 1st March, 1993, 11th May, 2009 respectively, for properties L.R. No. 4953/2209, L.R. NO 4953/2020 respectively. d. Each party to bear their own costs for the suit and counterclaim. JUDGEMENT SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 30TH DAY OF APRIL 2025 JUDY OMANGE JUDGE In the presence of Court Assistant Catherine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6376/eng@2025-04-30 12

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