Teleposta Pension Scheme Trustees Registered v Hemed & 3 others

deceit and illegality attributed to the 1st and 2nd defendants at paragraphs 12 & 15B respectively, and sought for the following prayers: 2. a. “A declaratory order to the eect that the property known as title number Mombasa/Block XXV1/665, was vested to Kenya Posts and Telecommunications Corporation (now defunct) by the Minister for Transport and Communications vide legal notice Number 133 published in the Kenya Gazette Supplement Number 11 of 11th March 1988 absolutely without further conveyance or transfer or assignment. b. A declaratory order to the eect that the property known as title number Mombasa/Block XXV1/665 was vested to Teleposta Pension Scheme Trustees Registered by the Minister of Finance vide legal notice number 154 published in number 45 of 5th November 1998 without further conveyance or transfer or assignment. c. A declaratory order to the eect that the certicate of lease for title number Mombasa/Block XXV1/665 issued to the 1st defendant on 10th May 1994 is fraudulent, illegal, null and void ab initio. d. An order of permanent injunction restraining the defendants whether by themselves, servants, agents or any other person whosoever acting on instructions and authority of the defendants whether express or implied from taking possession, selling, disposing, alienating, charging, advertising for sale, taking possession or in any manner dealing with the property known as title number Mombasa/Block XXV1/665. e. An order directing the Commissioner for Lands 3rd defendant in conjunction with the Land Registrar 4th defendant to forthwith cancel the certicate of lease for title number Mombasa/ Block XXV1/665 issued in favour of the 1st and 2nd defendants and issue a lease and a certicate of lease in favour of the plainti. ae. An order directing the 3rd defendant to cancel the lease issued to the 1st and 2nd defendant and issue a new lease to the plainti. (eee) An order directing the 4th defendant to issue a certicate of lease to the plainti. f. Costs of the suit. g. Such further order or relief which the Honourable court may deem t and necessary to grant.” The 1st & 2nd defendants opposed the plainti’s claim through their amended statement of defence dated the 5th November 2014 averring inter alia that the suit is bad in law and or time barred, and denied that the plainti has been in possession of the suit property; that they denied that the suit property was ever lawfully or legally vested to the plainti or its predecessor; that the plainti had failed to disclose that it had withdrawn an earlier suit being HCCC No. 326 of 2009 Teleposta Scheme Trustees Registered versus Said Hemed following the advice of the Director, Kenya Anti-Corruption Commission, vide their letter dated 30th July 2009, to the eect that its investigations had shown that the suit property was allocated to the defendant in 1994 which was before the vesting gazette notice of 1999. The 1st & 2nd defendants prayed for: a. “That the plainti’s suit to be dismissed with costs. b. General damages. c. Any other orders or remedy that this honourable court shall deed t to grant.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18328/eng@2025-12-17 2

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3. The 3rd defendant did not le any pleadings or participate in the hearing. The 4th defendant led their statement of defence dated the 27th January 2021 generally denying the plainti’s claim. The 4th defendant averred that no cause of action has been established, and no reliefs have been sought against it, and the suit should be dismissed with costs. 4. During the hearing, the plainti called Peter Kibiegon Rotich, plainti’s Administrator and Trust Secretary, and Evans Maghas, registered Land Surveyor, who testied as PW1 and PW2 respectively. The plainti’s case is that it came into being on 1st July 1999, and its responsibility or function included paying pension benets to persons who had retired under Kenya Post and Telecommunications Corporation, KPTC, now defunct, and employees of Telkom Kenya Limited, Postal Corporation of Kenya and Communication Commission of Kenya. That to enable the plainti meet its obligations, the Minister of Finance vested the Mombasa/Block XXV1/201, measuring 1.435 acres, among other properties, to the plainti through legal notice No. 154 of 1999, published in the Kenya Gazette Supplement No. 45 of 5th November 1999. That the said property was before then vested to the defunct Kenya Post and Telecommunications Corporation, KPTC, under legal notice No. 133 published in the Kenya Gazette Supplement No. 11 of 11th March 1988. That the plainti instructed a surveyor to start the process of perfecting the title to the suit property and during the exercise and discovered only Mombasa/Block XXV1/666, measuring 0.7932 acres that had been subdivided from Mombasa/Block XXV1/201, but could not trace the remainder. The plainti subdivided Mombasa/Block XXV1/666 into six portions that it sold to third parties. The plainti continued with investigations and in 2007 discovered that Mombasa/Block XXV1/665, measuring 0.642 acres, suit property, was the other portion subdivided from Mombasa/Block XXV1/201 and allocated to 1st defendant and a certicate of lease issued to him on 10th May 1994. The plainti position is that the Mombasa/Block XXV1/665, suit property, was illegally subdivided from Mombasa/Block XXV1/201 without its consent, the transfer of the suit property by 1st defendant to the 2nd defendant was fraudulent, and its prayers should be granted as sought. 5. The 1st & 2nd defendants called Charles Onyiego Bwogari, advocate and legal counsel with 2nd defendant, Ephaim Maina Rwingo, licensed surveyor, and Thomas Mukwana, land valuer, who testied as DW1 to DW3 respectively. Their case is that Mombasa/Block XXV1/665, the suit property, was lawfully allocated to the 1st defendant, lease issued by the Commissioner of Lands on 23rd March 1994 that was registered and certicate of lease dated 10th May 1994 issued to him. That before the suit property being allocated to the 1st defendant, it was owned by the government, but became private land upon allocation. That the 2nd defendant did due diligence on the suit property before buying it from the 1st defendant at Kshs.15million, and certicate of lease was issued on 19th July 2011. 6. The 4th defendant called Mercy Chepkemboi, Land Registrar Mombasa, who testied as DW4, and she produced copies of green and white cards in respect of Mombasa/Block XXV1/665 & 666 among others. It was the 4th defendant’s case inter alia that parcels Mombasa/Block XXV1/665 & 666 were fresh grants from the Government of Kenya. That the green card for Mombasa/Block XXV1/665 does not show the plainti owner or registered interest holder of that land. That the white card for the said land show the lessor is the government of Kenya and the lessee is the 1st defendant for 99 years from 1st January 1994. That the 2nd defendant became the registered owner of the said property on 19th July 2011. To DW4 all the transactions relating to Mombasa/Block XXV1/665 were regularly and legally done with no irregularities noted, and as of the date she testied, she had not received any claim of interest from the plainti over that land. In respect of Mombasa/Block XXV1/666, DW4 testied that it was registered as a new grant in the name of Kenya Posts and Telecommunications Corporation on 18th August 1999. The witness took the court through the entry made after the land was subdivided https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18328/eng@2025-12-17 3

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into parcels Mombasa/Block XXV1/1106 to 1111 and the transactions so far made on the resulting titles. 7. The learned counsel for the plainti, 1st & 2nd defendants and 4th defendant led their submissions dated 18th August 2025, 26th October 2025 and 3rd November 2025 respectively, that the court has considered. 8. From the parties’ pleadings, documentary and oral testimonies by PW1 & PW2, DW1 to DW4, submissions by counsel, the following are the issues arising for determinations by the court: 9. a. Whether the plainti’s suit was statute time barred b. Whether Mombasa/Block XXV1/665, suit property, was covered in the Minister’s vesting order under legal notice No. 154 of 5th November 1999. c. Whether Mombasa/Block XXV1/665, suit property, was available for alienation when it was leased to and registered with 1st defendant. d. Whether 1st defendant acquired good title on registration on 10th May 1994. e. Whether the 2nd defendant was a bona de purchaser for value without notice of any defect in the title. f. Who pays the costs? The court has carefully considered the parties’ pleadings, oral and documentary evidence presented through PW1 & PW2, DW1 to DW4, submissions by the learned counsel for the parties participating in the trial, superior court decisions cited thereon, and come to the following conclusions: a. Though the 1st & 2nd defendants had in their statement of defence summarized in (2) above included prayers for (a) General damages; and (b) Any other orders or remedy that this honourable court shall deed t to grant, suggesting they intended to incorporate a counterclaim in their defence, there is nothing in the rest of their pleadings to conrm the existence of a counterclaim. The amended defence was led under receipt No. 3005072 dated 10th November 2014, of Kshs.75/- and it is clear it has no payment made for a counterclaim. The court has noted that the witnesses called by 1st & 2nd defendants, who testied as PW1 & PW2, did not mention any counterclaim, and as their learned counsel did not submit on it, then I will take it that the amended defence did not contain a counterclaim, that deserve to be determined through this judgement. b. The 1st & 2nd defendants pleaded and submitted that the plainti’s suit is time barred under the Limitation of Actions Act, as KPTC has never taken steps to recover Mombasa/Block XXV1/665, suit property, from the time it was registered in the name of the 1st defendant in 1994. That by the time this suit was led in 2013, the time for recovery of land had lapsed. The question of the suit for recovery of the suit property being time barred is predicated on the presumption that the plainti was the legal owner of the land, before the 1st defendant acquired registration on 10th May 1994, which both the 1st & 2nd defendants and 4th defendants have vigorously opposed. c. From the documentary evidence presented to the court by all the parties’ witnesses, especially DW4, who is undoubtedly the keeper/custodian of land documents under the Mombasa Land Registry, neither KPTC nor the plainti has ever been registered as proprietor of the Mombasa/Block XXV1/665, the suit property. The plainti based its claim over the suit https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18328/eng@2025-12-17 4

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property on the premise that Mombasa/Block XXV1/665 & 666 were subdivisions from Mombasa/Block XXV1/201 that had been vested to it, and before then to KPTC. It is however a fact that none of the parties, both plainti and defendants, availed any documentary evidence conrming that the plainti and or KPTC had been registered with Mombasa/Block XXV1/201. Indeed, from the testimony of DW4 and the green and white cards she produced in respect of Mombasa/Block XXV1/665 & 666, the two parcels were fresh grants to the 1st defendant and KPTC respectively, from the Government of Kenya, and not subdivisions from Mombasa/Block XXV1/201, that the plainti had attempted to trace its source to. In the absence of any veriable evidence to the contrary, the claim by the plainti that Mombasa/ Block XXV1/665 was curved or subdivided, from Mombasa/Block XXV1/201 is bereft of any proof, and, the plainti had no basis of seeking its recovery. Therefore, the question of limitation does not arise. d. Going back to the plainti’s challenge against the defendants over the ownership of the suit property, the starting point now should be that the court has already made a nding that the Mombasa/Block XXV1/665, suit property, was not part of Mombasa/Block XXV1/201. That whereas the 1st & 2nd defendants claim indefeasibility of their title, the plainti has sought to impugn it on the basis of inter alia illegality, deceit, misrepresentation and fraud. It is crystal clear from the superior court decisions including the cases of Munyu Maina versus Hiram Gathiha Maina [2013] eKLR, Waterfront Holdings Limited versus Kandie & 2 Others KECA 1233 (KLR), Kenya Ports Authority versus Africa Inland Church Kenya (Registered Trustees) & 12 Others [2024] KECA 1431 (KLR) (11 October 2024) (Judgement), and Dina Management Limited versus County Government of Mombasa & 5 Others [2023] KESC 26 (KLR), that a title that is obtained unlawfully, fraudulently, illegally, unproceduraly, by misrepresentation or through a corrupt scheme is not protected by the law. e. It is however, the responsibility of the one launching the challenge on such a title to tender evidence to proof their allegations under sections 107 to 109 of the Evidence Act chapter 80 of Laws of Kenya. The 1st, 2nd & 4th defendants have clearly shown that the suit property was not among the properties to be vested to the plainti under Legal notice No. 154 of 5th November 1999 by the Minister of Finance. In any case, the suit property was then not government land but private land having been leased to the 1st defendant on 23rd March 1994 and certicate of lease issued to him dated 10th May 1999. f. The 4th defendant’s witness, DW4, testied that there was nothing on the register relating to the suit property to show the plainti had any interest or claim over it, which is surprising as the plainti disclosed through its pleadings and evidence of PW1 that they got to know of the suit property in 2007. The plainti’s suit is actually a challenge to the 1st defendant’s title to the suit property, on the basis of fraud, illegality, misrepresentation and deceit. The law under Article 40(6) of the Constitution and section 26(1) of the Land Registration Act chapter 300 of Laws of Kenya is that the legal protection of title to land does not extend to that which is found to have been unlawfully acquired, as such a title can be impugned through the court. g. In the case of Munyu Maina versus Hiram Gathiha Maina [supra] the Court of Appeal held that when the instrument of title is under challenge; “ ….the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from encumbrances…” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18328/eng@2025-12-17 5

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In the case of Waterfront Holdings Limited versus Kandie & 2 Others [supra], the Court of Appeal inter alia held that; “ It is now law that the mere fact of issuance of title deeds does not confer the status of indefeasibility of title. Courts of this country have therefore held that they would not hesitate to nullify titles held by those who stare at the court and wave a title of a grabbed land by merely and pleading loudly the principle of indefeasibility of title deed. In cases where the very process of acquisition of land in question is under challenge, it is not enough to simply rely on the title….” In the case of Kenya Ports Authority versus Africa Inland Church Kenya (Registered Trustees) & 12 Others [supra] the court held that: “ Once an issue arises regarding the procedural propriety of the acquisition of a title, the presumption of indefeasibility of title is open to scrutiny.” The position in the above cases has been more or less conrmed by the Supreme Court of Kenya in the case of Dina Management Limited versus County Government of Mombasa & 5 Others [2023] KESC 26 (KLR). From the evidence tendered, the plainti has failed to prove that the suit property was ever part of the land vested and or owned by it before it was alienated and registered with the 1st defendant. On the other part, the 1st, 2nd & 4th defendants have clearly shown the suit property was a fresh grant from the Government of Kenya that was allocated to the 1st defendant through the lease that was registered and certicate issued. They have clearly traced the root source of the 1st defendant’s title and it has been conrmed by 4th defendant through DW4 to be a valid title. h. The 2nd defendant bought the suit property from 1st defendant as detailed by DW1. There is no evidence that has been tendered by the plainti or any other party to challenge the process through which the 2nd defendant acquired title to the suit property. The 1st defendant had good title to the suit property and he therefore passed good title to the 2nd defendant. DW4 conrmed that the title the 1st & 2nd defendants acquired over the suit property were valid titles without any irregularities or claims noted in the register. As the 1st defendant has not said he was not paid the purchaser price, the court takes the 2nd defendant as a bona de purchaser for value of the suit property. i. Though the plainti joined the 4th defendant in this suit, it is not plead any specic acts and or omissions attributed to that oce in their plaint. Paragraph 15E of the plaint speaks to the certicate of lease issued by the 4th defendant being said to have been obtained fraudulently as the property belonged to KPTC at the time of its issuance. The available evidence however show dierently, that the suit property was never registered with KPTC and or the plainti and further that it was not among the properties vested to the plainti through the Minister of Finance vesting order No. 154 of 1999. In any case the 4th defendant does not allocate/alienate land but registers the documents of alienation/allocation including leases and thereafter issues certicates of leases. j. From the totality of the evidence presented to this court, the plainti’s claim against all the defendants is without merit and fails. Under section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the event unless where for good cause the court orders otherwise. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18328/eng@2025-12-17 6

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In this case I nd no good reason to divert from that edict on costs, and the plainti will meet the costs. 1. In view of the foregoing determinations, I nd the plainti has failed to discharge its duty of proving their claim against defendants on a balance of probabilities, and the court therefore orders as follows: a. That the plainti’s suit against all defendants is dismissed. b. The plainti will pay the costs for 1st, 2nd & 4th defendants. Orders accordingly. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 17TH DAY OF DECEMBER 2025. S. M. KIBUNJA, J. ELC MOMBASA. In The Presence Of: Plainti : M/s Nyabenge Defendants : Mr Taib for 1st and 2nd Defendant Mr Pendo for 4th Defendant Kalekye-court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18328/eng@2025-12-17 7

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