Tharao & another v Mwai & 3 others

Defendant fraudulently presented himself to the Land Registrar in Kiambu and was issued with a certicate of lease in respect of the suit property. The Plaintis contend that the acquisition of the lease by the 1st Defendant was fraudulent as it was not supported by an allotment letter from the Municipal Council of Kiambu. Hence, they argue that any purported transfer to the 2nd Defendant cannot lie. The Plaintis further allege that the 3rd Defendant was guilty of fraudulently issuing a certicate of lease without proper documentation. 3. In the year 2012 the Plaintis led a further amended plaint in which they added fresh grounds against the 3rd Defendant which included irregularly issuing the 1st Defendant with a certicate of lease without proper allotment letter and allowing the irregular title to remain on record. 4. The 1st Defendant on his part denies all the allegations of fraud against him and insists that he was lawfully granted a valid letter of allotment after which he was issued with a certicate of lease. In any event it is the 1st Defendants case that the issues herein were ventilated and fully determined in Chief Magistrates Case no 8038 of 1998. 5. It is the 2nd Defendants case that he is a Bona de purchaser for value having bought the suit property from Joseph Kinyanjui Mwai who he insists is the original allotee of the land. The 2nd Defendant equally asserts that the issue of ownership was conclusively determined in the magistrates court hence cannot be reopened again. Pleadings 6. 7. In the year 2008 the Plaintis herein led a plaint dated 13th October, 2008. In a further amended plaint dated 16th July 2012 they prayed for the following orders; a. An order declaring that the certicate of lease for plot NO Limuru Town/196 rstly registered in the name of Joseph Kinyanjui Mwai and transferred to Joseph Warari Gathoga is a forgery and illegally obtained b. An order that the certicate of lease registered in the name of Joseph Warari Gathoga for plot No Limuru Town/196 be cancelled and or nullied c. An order of permanent injunction restraining the 2nd defendant and his servants and or agents from constructing, building or erecting any structures or committing any acts of waste or in any manner interfering with Plot No Limuru Town/196 d. An order declaring Kuria Tharao and James Waiganjo Gitungo the legal lessees of plot No Limuru Town/196 e. An order that the 1st and 2nd defendants do pay damages for trespass and mesne prots f. An order that the 3rd and 4th defendants be compelled to compensate the plaintis with an alternative parcel of land g. Costs of the suit and interest h. Any other reliefs the court may grant In support of the Plaintis case, the 1st Plainti led a witness statement in which he deposed that in 1995, he and the 2nd Plainti were approached by the original allotee of the suit property who asked them to purchase the land as she was in nancial diculty. The allottee then sought approvals from the Commissioner of Lands through the Town Council of Limuru who approved of the same and granted consent to transfer on 15th November 1996. The process culminated in the issuance of a lease on 15th https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18539/eng@2025-11-14 2

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January, 1998. Sometime later that year, they learned that the 1st and 2nd defendants were claiming the same parcel of land. The 2nd Defendant led a case, Milimani Commercial Case 8038 of 1998, in which the court held that they are the owners of the property as their title was rst in time. Undeterred the Plaintis have led this suit on the basis that subsequent to the earlier case it has been proved that the 1st Defendants title is a fraud and hence he had no title to pass over to the 2nd Defendant. 8. The 1st Defendant led a Defence in which he denied having fraudulently procured the certicate of lease to the suit property. He states that he was lawfully issued with a letter of allotment and he later transferred the certicate of lease to the 2nd Defendant. He further insists that the Plaintis should have appealed or reviewed the decision in Chief Magistrates Court no 8038 of 1998. 9. The 2nd Defendants Defence was premised on the argument that he is a bona de purchaser of the suit property. That in Milimani CMs Case no 8038 of 1998 his ownership claim was duly upheld. 10. After the courts heard and determined interlocutory applications, Kuria Tharao had his rst day in court on 21st June, 2016. On that day, he told the court that the 1st Defendants title was fraudulent as was conrmed by the CID and the Provincial Lands Oce. He insisted that the 1st Defendant could not have obtained title from the Land Commissioner as the plot was one which belonged to Limuru Township, Kiambu County. It was his evidence that the 2nd Defendant who was a friend to the 2nd Plainti proceeded to purchase it even though he was aware the Plaintis were claiming the same parcel of land. He stated that the 2nd Defendant then proceeded to construct on the property in spite of being aware that there was a rival claim on the land. 11. Upon cross examination which took place before two dierent courts, he reiterated that even though the 1st Defendants title was rst in time he had no supporting documents. He told the court that Wanja Njuguna who sold them the land paid allotment fees on 1st March 1995 instead of 27th June, 1992. He could not tell whether Wanja Njuguna was the sister to the Town Clerk. He conrmed that Wanja did not fulll special condition number 2 on development of the plot. He stated that he did not have any minutes conrming allocation of the plot. He said that there were two green cards. He armed that he did not appeal against the decision of the magistrates’ court and stated that the claims of fraud were against the 1st and 3rd Defendant, and not the 2nd Defendant who was a party in the earlier suit and who purchased the plot from the 1st Defendant. 12. Upon cross examination by counsel for the Attorney General representing the 3rd and 4th Defendant, he conrmed that he applied to the council of Limuru which was under Kiambu. He insisted that he conrmed all the documentation was in order. His case against the 3rd and 4th Defendant was due to the double allocation. 13. DW1 Joseph Kinyanjui Mwai told the court that he applied for the plot and was issued with a letter of allotment on 13th May, 1991. He paid for premium, rent, registration and stamp duty. He was then issued with a certicate of lease. After, he was issued with a certied copy of a green card. In 1997 he sold the plot to the 2nd Defendant. He insisted that he followed the correct procedure to acquire the land. He was later acquitted of charges that had been brought against him for making a document without authority. 14. Upon cross examination by counsel for the Plaintis Mrs Muhuhu, he stated that he saw an advertisement for the land and applied for it. He did not have both documents in court. He stated he had no knowledge that the land belonged to the county council of Kiambu. His documents were obtained from the land registry Kiambu. He was then taken through the testimony that was given in the matter in Milimani Chief Magistrates Court where he was not a party. He said there are two green https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18539/eng@2025-11-14 3

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cards to the suit property, one a green card 0.0832 and a white card with 0.0083. The land registry size was 0.832. 15. Upon cross examination by counsel for the 2nd Defendant, Mr. Munge he testied that he applied for the plot through the Oce of the President and was issued with a letter of allotment. He says the allotment to Wanja Njuguna was one year after his title. 16. Upon cross examination by Mr Kamau on behalf of the Attorney General he armed that his application was to the Commissioner of Lands not Kiambu Municipal council. He claried that he wrote to the comptroller of State house who wrote to Commissioner of Lands. He was taken through other aspects of the allocation. 17. DW 2 Joseph Warui Gathogo stated that he purchased the suit property vide a sale agreement dated 22nd August, 1997. He took possession and fenced the property and started paying rates. His ownership was armed by the case in the Milimani Chief Magistrates Court. He stated that he has developed the building which has tenants. Upon cross examination by the counsels he took the court through the process he went through to purchase the suit property. 18. DW 3 Duncan Mwangi Gichange a valuer by profession told the court that he valued the suit property at a value of Kshs 56,000,000 in 2011. Later in 2019 it was Kshs 97,000,000. 19. DW4 Councilor Gordon Ochieng produced his witness statement and documents which had been marked in the 3rd and 4th Defendants list of documents. On cross examination by counsel for the 1st Defendant he told the court that he did not work in the Kiambu land registry but had brought documents from Ardhi house specically a letter of allotment in favour of Wanja Njuguna signed by one JNM Gikuri. He said it was possible the allotment could have been done by the local authority. He stated that payment was made after the 30 day period. He was unable to conrm if rates and rents were paid or if special condition number 2 was complied with. He said he was not in a position to tell if Wanja Njuguna and Sammy Njuguna the Town Clerk were siblings. He was taken to task by the counsels on various aspects which I will delve into when analyzing the evidence. 20. The last witness Ann Mararia was a Land Registrar at Kiambu. She too gave evidence regarding the two titles. Again, I will consider her evidence in detail when analyzing the issues herein. 21. All the parties have led detailed submissions accompanied by authorities which the court has duly considered. I take this opportunity to thank the counsels for the detailed submissions. The parties have raised various issues. 22. Counsel for the Plainti in the submissions focused on the following ve issues;Which of the two certicates of lease held by the parties was genuine and procedurally obtained and which one was fraudulently obtained?Is the 2nd defendant is a bona de purchaser of value?Whether the doctrine of res judicata is applicable and the fate of the decree issued in CMCC NO 8038 of 1998Whether the suit is time barred.What remedies are available for both parties and whether the defendants should pay for damages and trespass and mesne prots 23. Counsel for the 1st Defendant on his part identied the following issues for determination;Whether the 1st defendant was the 1st registered owner of the suit propertyWhether the plaintis have established the allegations of fraud as pleaded.Whether the plainti’s suit should be dismissed for failing to prove allegations of fraudWhether the plainti’s title to the suit property should be impeached for being acquired illegally, unprocedurally or through a corrupt schemeWhether the plainti’s allocation complied with the applicable provisions to the GLAWhether the suit is time barredIf the answer to 6 above is in the armative, whether the plaintis are entitled to extension of limitation of period in the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18539/eng@2025-11-14 4

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case of fraud under section 26 of limitations Act.Whether the suit is barred hinged on the doctrine of res judicataWhether the 3rd and 4th defendants are entitled to indemnity and or contribution by the 1st defendant 24. For the 2nd Defendant the critical issues were as follows;Whether the present suit is incompetent and bad in law based on the doctrine res judicataWhether the plainti’s claim for fraud can be sustainedWhether the plaintis have proved the alleged fraud against the 2nd defendant.Whether the plaintis have proved the alleged fraud against the defendantsWhether the plainti’s suit is time barred under limitations of Actions ActWhether the plainti’s suit is incompetent and bad in law and abuse of the court process for multiplication of actions in the same suit 25. The Attorney General raised the following issues for the 3rd and 4th DefendantWhich of the two certicates of lease held by the parties was genuine and procedurally obtained and which one was fraudulently obtained?Whether the 2nd defendant is a bona de purchaser of value?Whether the doctrine of res judicata is applicable and the fate of the decree issued in CMCC NO 8038 of 1998Whether the suit is time barred under section 4(1) of the limitation of Actions Act.Whether the plainti is entitled to any relief 26. It is noted that although there a list of agreed issues led by the Plainti on 4th September, 2014, each of the parties have addressed themselves to the issues as framed by themselves including the Plainti who has stated that the issues earlier framed had been overtaken by events. I will therefore frame new issues based the pleadings and considering all the submissions by the parties herein. 27. The issues the court distils for determination are as follows; i. Whether the doctrine of Res Judicata is applicable in view of the decree in CMCC ii. Whether this suit is time barred iii. Whether the Plaintis have established fraud against the Defendants iv. Whether the certicate in the name of Joseph Kinyanjui Mwai transferred to Joseph Warari Gathoga is a forgery and or illegally time barred? v. Is the 2nd defendant is a bona de purchaser of value? vi. Whether an order should issue declaring Kuria Tharao and James Waiganjo Gitungo the legal lessees of Plot no Limuru Town / 196 vii. What remedies are available to any of the parties viii. Who should pay the costs of the suit 28. I will address the question of Res Judicata rst as it goes to the jurisdiction of the court to hear the matter. It is the case of the 1st Defendant that the issue of the 1st Defendants registration was previously adjudicated upon in Chief Magistrates Milimani CMCC NO 8038 of 1998 between the deceased 2nd Defendant who was the Plainti in that suit and the Plaintis herein who were the Defendants in that suit. The 1st Defendant avers that Judgement was delivered on 9th July 2003. It is the argument of the 1st Defendant that given that this Judgement has not been appealed against, it is a valid decree which cannot be interfered with by this court. Counsel for the 1st Defendant was emphatic that the decision in the earlier suit cannot be wished away or referred to as a ghost of the past. 29. A similar argument is put forth by the 2nd Defendant who states that save for allegations of fraud introduced through an amendment to the initial plaint, the witnesses, the issues and the facts in both https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18539/eng@2025-11-14 5

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suits are the same. The 2nd Defendant urges the court to rely on the evidence of the witnesses who testied in the earlier suit. 30. The Plaintis on their part urge the court not to be drawn into making a nding on the issue of Res Judicata as this has been addressed by two Judges of concurrent jurisdiction and dismissed accordingly. 31. Res judicata is anchored on Section 7 of the Civil Procedure Act which reads ; “ No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such Court.” 32. The doctrine of Res Judicata is founded on public policy and is aimed at achieving two objectives namely; that there must be nality to litigation and that a party should not be harassed twice with the same account of litigation. The issues a court considers in determining Res Judicata are; a. Whether the issue was directly and substantially in issue in the former suit b. Whether suit was between the same parties or parties claiming under them. c. The parties were litigating under the same title. d. The issues were heard and nally determined in the former suit. e. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue was raised. 33. Even before delving into whether these principles are applicable in the present case, the rst issue that the court must address is whether it is proper for it to consider the question of Res Judicata when it has already been addressed in two interlocutory applications before this court. It is a matter of court record which is not disputed by any of the parties that in Rulings dated 19th March 2009 and 30th May 2014, this court dierently constituted addressed this issue conclusively. 34. Once the court made a nding on a jurisdictional issue at an interlocutory stage, this determination remains in place unless overturned on review or appeal. The court is therefore functus ocio on this issue and will not revisit it save for purposes of conrming consistency in reasoning. 35. It is appropriate to restate the ndings of the Hon Justice Kubo (as he then was on this issue). The learned Judge stated” However there is no indication in the Magistrates Judgement delivered on 29.07. 2003 that the issue of fraud with regard to the documents of the ownership of the suit land arose in that case. The magistrate took both documents of title before him as valid. In the present case the genuineness of the document of title ascribed to the 1st Defendant herein has arisen as a live and hot issue. The res of suspicion about the genuineness of the latter title have been stoked by the Kiambu District Land Registrars letter of 25. 09.06 (annexure KT8) partly reproduced hereinabove. This issue is core to the present case. I hold that it was not directly in issue in the previous Magistrates suit and that accordingly res judicata does not apply to the present case. “(emphasis mine) 36. The court made its nding with nality. The letter by the Kiambu District Land Registrar asking for criminal investigations was dated 25th September 2006 three years after the Judgement in the Magistrates Court. Counsel for the 2nd Defendant submitted that in the course of the hearing evidence had been adduced that necessitated a review of the earlier decision. This is not true as the letter dated 25th September 2006 was not available by the time the earlier decision in the magistrates’ court https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18539/eng@2025-11-14 6

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was rendered. In view of this letter and the additional claim for compensation from the 3rd and 4th Defendant, I am in total agreement with the ndings of the learned Judges on this issue. 37. The 2nd Defendant in their submissions cited the case of Equip Agencies Limited Verus I & M Investment Bank Limited &2 others (2019) eKLR in which the court held that Res Judicata cannot be used as a shield in respect of future happenings and or in respect of facts which the parties could not possibly have known about. In Patrick Kangethe Njuguna & 2 others Versus Cooperative Bank of Kenya Ltd (2017) eKLR the court while holding that Res Judicata applies to both the facts the court was called upon to decide and those it should have been called upon to decide exempted parties from the responsibility to prophesy future happenings. 38. There is no evidence that in the earlier proceedings, there was any indication of fraud. On the contrary the issues that were before the court then were of two titles. The Plaintis cannot have been expected to know that three years later a letter by the Kiambu District Land Registrar would conrm that one of the titles was not genuine and recommend criminal investigations. In view of this, and the additional claim for compensation from the 3rd and 4th Defendant, I agree with the ndings of the learned Judge on the issue of Res Judicata. 39. The issue of Limitation of Period was also similarly addressed by this court in the Ruling dated 30th May 2014. 40. I will consider issue number 3,4,5 and 6 jointly. In essence the court is called upon to determine whether the title held by Joseph Kinyanjui Mwai and transferred to Joseph Warari Gathoga is tainted by fraud and or illegality and whether if so the 2nd Defendant is an innocent purchaser for value and subsequent to a determination on the foregoing whether Kuria Tharao and James Waiganjo should be declared the legal leases. 41. In considering these important issues that touch on the crux of the dispute herein I will consider rstly the pleadings and the evidence that was adduced in respect of the pertinent four issues vis a vis the law before making ndings on the various issues. 42. The plainti in the further amended plaint dated 16th July 2012 pleaded the following particulars of fraud and or representation against the 1st Defendant; 43. a. Obtaining a forged certicate of lease b. Obtaining a certicate of lease without the requisite lease from the commissioner of lands c. Purporting to obtaining a lease without any allotment from the Municipal Council of Limiru d. Purporting to transfer the nonexistent lease to the 2nd Defendant e. Misrepresenting himself as the lessee of LIMIRU TOWN/196 bearing two dierent sizes on the forged register f. Purporting to obtaining a lease certicate from the land registry without any supporting documents In respect of the 3rd Defendant the Plainti particularized the following; a. Irregularly issuing the 1st Defendant with a certicate of lease without proper allotment letters and or lease. b. Allowing the 1st Defendants title to remain on record while fully knowing it was irregular. c. Issuing two certicates of lease for one parcel of land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18539/eng@2025-11-14 7

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d. Illegally registering an unsupported document and issuing a certicate of lease without proper documentation. 44. Kuria Tharao the rst Plainti testied in support of the Plainti case. He produced a letter from the Provincial CID Headquarters dated 4/9/2006 as Exhibit 13 and a copy of a letter from the District Land Registrar Kiambu dated 25th September 2006. In the letter dated 4/9/2006 to the Land Registrar the Provincial CID Ocer states ‘ … Kindly I request to know the title deed S/NO Limuru Town 196 under the name of James Waiganjo Githungo and Kuria Tharao. The said piece of land has a dispute so we request to be furnished with the real owner. Your assistance will be highly appreciated. This letter kick started the investigations which ended in the institution of criminal proceedings against the 1st Defendant. 45. The Plainti then took the court through the journey the Plaintis took to get the title namely that he and the deceased 2nd Plainti were approached by the original allottee of the suit property who then had nancial diculties. The allottee obtained consent to transfer on 15/11/96 and all the necessary fees was paid. A lease was thereafter issued and a certicate of lease registered on 15/1/1998. He produced the following documents; a letter of allotment in the name of Wanja Njuguna dated 28/5/1992 issued by the Commissioner of lands; a receipt dated 1/3/ 95 for stand premium for Kshs 12,640 ; request to transfer dated 10/4/95 addressed to the Commissioner of lands by Wanja Njuguna; approval to transfer to Commissioner of Lands by the Town Clerk Limuru Town Council; consent to transfer by commissioner of Land to Wanja Njuguna dated 15/11/96; receipt for transfer fees ; lease document signed by Wilson Gachanja the Commissioner of Lands on behalf of Kiambu County Council and Certicate of lease dated 15/1/1998 by Land Registrar. 46. The Plaintis evidence was corroborated by Gordon Ochieng, Director Land Administration. He faulted the certicate of lease held by the 1st and 2nd Defendant on several grounds namely; the letter of allotment purported to have been issued to Joseph Kinyanjui Mwai for 99 years with eect from 1st June 1992 instead of from 1st June 1991; the reference number of the letter of allotment is inconsistent with the standard used in referencing the letters; the letter of allotment reected the stand premium as Ksh 21000 and annual rent as peppercorn, instead of a percentage of capital value and percentage of stand premium respectively; there is no such plan number as 196 as indicated in letter of allotment; the letter conrming that the suit property belongs to Joseph Kinyanjui Mwai emanates from the District Commissioner and not Land Registrar as should be the case; the Memorandum of Registration of Transfer of Lands (MRT) produced by the 1st Defendant indicates the registry of origin as Nairobi/ Mombasa yet same is purported to have been issued in Kiambu. 47. During cross examination the witness conrmed that the records he was relying on were from Ardhi house and that he had carried with him only what he deemed relevant. He admitted that Wanja Njuguna had not complied with certain conditions in the letter of allotment. He stated that he was aware there was a transfer of the property to the 2nd Defendant on 10/9/1997 and conrmed that one Edward Muchai who had worked with them was transferred to Kiambu in September 1993. He armed that the said Edward Muchai stated that the Deputy Registrar had written conrming two allotees to the suit property. 48. It was his evidence that he was unable to conrm the allegation by Georey Gachathu that there were two green cards as the cards are kept in Kiambu. He further pointed out that there was a dierence in the acreage in the property going by the documents of the Defendants with rst reading 0.0832 while second is 0.00832. He further claried that F.O Onyae could not have signed a lease as he was then an Assistant Commissioner of Lands who do not sign leases. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18539/eng@2025-11-14 8

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49. Anne Mariara testied on behalf of the Kiambu Land Registry. The crux of her evidence in chief was that the presentation book only has an entry in respect of the plaintis. During cross examination, she conceded that there are two sets of green cards and two sets of minute cards. She stated that the green card which reects the absolute owner indicates Joseph Kariuki as the owner while another dated 15/1/1998 indicates Kuria Tharao. She further explained that the white card indicates who holds the leasehold. She conrmed that one was in the name of Joseph Kinyanjui Mwai. Upon further cross examination, she claried that the white card register was opened on 18/5/1982 yet entry number 1 registered on 24/6/ 93 was in the name of Joseph Mwai. She pointed out other discrepancies which included dierence in acreage, cancellation in the green card and failure to present documents in the booking. She conrmed that the decree in CMCC 8038 of 1998 has never been registered and cannot be registered as 12 years have passed. She referred to the document examiners testimony in the criminal case in which the rst defendant was acquitted. It was her testimony that while the document examiner had conrmed that the documents were not written by the land registrar, the 1st Defendant was acquitted as there was no nexus between him and the writings. 50. The 1st Defendant too gave his account on the issue at hand. It was his evidence that he was issued with a letter of allotment on the suit property by the Commissioner of Lands and proceeded to pay the stand premium after which he was issued with a certicate of lease. He produced various documents in support of his case namely; letter of allotment; receipt for stand premium and survey; certicate of ocial search; memorandum of registration of transfer of land and copies of Judgement and decree in previous suit between the Plaintis and 2nd Defendant. 51. The 2nd Defendant testied that he purchased the suit property from the 1st Defendant who was the rst registered owner of the property. He stated that he carried out due diligence which included a search and physical visit which armed the 1st Defendant as the legal owner. He insisted that as a bona de purchaser for value he is entitled to the protection of the law. It was his evidence that he has carried out construction on the said property valued at Kshs 56,000,000. He produced the proceedings and Judgement in the earlier suit in which his ownership rights were conrmed by the court. He took the court through the testimony that was given by the witnesses in the magistrates court. He urged the court to nd that the issues herein had been nally settled and should not be reopened again in this matter. 52. This is a summary of the evidence that was given by all the parties in relation to issue no 3,4,5 and 6 which I will now consider vis a vis the applicable law. The Law 53. It is common ground that the suit property herein was county land. Before the new Constitution, County land was recognized as Trust Land which under the then Constitution was held in trust for the benet of all residents by the council. 54. The council could set apart portions of trust land for public purposes, leasing or other development by following procedures set out in the Trust Land Act. The county councils who were the holders of the trust land could make resolutions to allocate or lease land subject to ministerial consent. A letter of allotment would then issue. 55. The courts have had occasion to give guidance on instances where there are competing titles. It is now settled jurisprudence that a court that is faced with two competing titles must delve into the root of each title. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18539/eng@2025-11-14 9

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56. The Court of Appeal in Munyu Maina Vs. Hiram Gathiha Maina, Civil Appeal No.239, of 2009, held that: “ We have stated that when a registered proprietor root of title is challenged, it is not sucient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.” 57. 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.” 58. The Supreme Court had the last and authoritative word on this issue in the case of Dina Management versus County Government of Mombasa( Petition no 8 ( E 010) of 2021{2023}KESC 30 KLR . The apex court stated “Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible.” 59. The Court of Appeal has severally pronounced itself on the standard of proof for fraud. In Central Kenya Ltd v. Trust Bank Limited & 4 Others, Civil Appeal No. 215 of 1996; [1996] eKLR the appellate court determined: “The appellant has made vague and very general allegations of fraud against the respondents. Fraud and conspiracy to defraud are very serious allegations. The onus of prima face proof was much heavier on the appellant in this case than in an ordinary civil case.” 60. In Vivo Energy Kenya Limited v. Maloba Petrol Station Limited & 3 Others, Civil Appeal No. 21 of 2014; [2015] eKLR, the appellate court rendered itself thus: “Where fraud is alleged, it must be specially pleaded and particulars thereof given. That is what is required by Order 2 rule 10 of the Civil Procedure Rules, 2010. 61. On the standard of proof required for claims based on fraud, courts have held that the standard of proof is higher than in the ordinary civil cases. In Koinange & 13 others vs Charles Karuga Koinange 1986 KLR the court held that:“ When fraud is alleged by the Plaintis the onus is on the Plaintis to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required.” Analysis and Determination 62. Given that in this case both parties claim to have documents to the same parcel of land, it is the role of this court to consider the process that resulted in the two competing titles and make a determination on the same. The court will also consider the allegations of fraud as pleaded by the Plainti. 63. In the present case the Plaintis have produced a letter of allotment which was issued to Wanja Njunguna on 28th May 1992 signed by JM Gikuri for Commissioner of Lands. The plaintis aver that with ministerial consent Wanja Njuguna transferred the plot to them. On the other hand, the 1st Defendant has produced a letter of allotment issued to him dated 13th May 1991. Both parties claim that https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18539/eng@2025-11-14 10

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their respective letter of allotment is a genuine document obtained from the Kiambu County Council. I have considered the evidence that was adduced by all the witnesses who testied in the matter and also physically considered the two documents. 64. I note that the Plainti produced minutes of the Plot allocation committee dated 4th March 1992 which authorized the regularization and issuance of a letter of allotment to Wanja Njuguna. The letter of allotment which was dated 28th May 1992 was to take eect on 1st June 1992. The letter prescribed the payable stand premium of Kshs 8400 and annual rent of Ksh 1,680. On the other hand, the 1st Defendant produced a letter dated 15th February 1991 written by the Private Secretary/ controller of statehouse to the Commissioner of Lands advising him that the 1st Defendant had been allocated plot 204,205,206,196,198 Limuru Township. Thereafter the 1st Defendant produces a letter of allotment dated 13th May 1991 which was to take eect a whole year later on 1st June 1992. The stand premium is assessed at Kshs 21000 and annual rent indicated as peppercorn. 65. The letter of allotment is an oer which then has to be accepted. Wanja Njuguna complied with the conditions of the letter of allotment on 1st March 1995 when she paid the prescribed fees while the 1st Defendant paid the fees on 23rd June 1993. Both payments fall outside the thirty day window for acceptance and payment. It is important to note that failure to pay does not automatically cancel the allotment if the oer is not revoked or oer made to another. 66. The 1st Defendant avers that he thereafter obtained a certicate of lease dated 24th June 1993 which was transferred to the 2nd Defendant on 23rd October 1997 vide a memorandum of registration of transfer of lands. The memorandum appears to have been presented at Nairobi/ Mombasa registry. The 2nd Defendant presents a lease date 15th January 1998. The 2nd Defendant also produced proceedings that took place in the Chief Magistrates Court which the court has considered. 67. In considering that a title is the end of a process there are several gaps that emerge in respect of the 1st Defendant title which was the title transferred to the 2nd Defendant. The 1st Defendants letter of allotment was preceded by a letter from statehouse while the Plaintis was preceded by minutes of the plot allocation committee which was the recognized body to allocate plots within Kiambu district. 68. The allotment letter issued to the 1st Defendant was to take eect a whole year later. On the documentation that was held at the registry, the lands ocials were able to point out several discrepancies namely; there is no such plan number as 196 as indicated in letter of allotment; the letter conrming that the suit property belongs to Joseph Kinyanjui Mwai emanates from the District Commissioner and not Land Registrar as should be the case; the Memorandum of Registration of Transfer of Lands (MRT) produced by the 1st Defendant indicates the registry of origin as Nairobi/ Mombasa yet same is purported to have been issued in Kiambu; the presentation book only has an entry in respect of the plaintis certicate of lease. 69. There was evidence that there were two green cards and white cards. Anne Mariara who testied on behalf of Kiambu Land Registry explained that there were several discrepancies that negated the cards in the name of the 1st Defendant as there was dierence in acreage, cancellation in the green card and failure to present documents in the Presentation Book. Regarding the white card in the name of Joseph Kinyanjui Mwai it was her evidence while the white card register was opened on 18/5/1982 yet entry number 1 registered on 24/6/ 93 was in the name of Joseph Mwai. It is not conceivable that a register opened on 18/5/1982 would have the rst entry on 24th June 1993. 70. The court was referred to the testimony given by the lands ocials in the case in the magistrates court. This testimony does not help the cause of the 1st and 2nd Defendants at all. DWI Edward Muchai in that case who was the Lands Registrar produced a le in which the only lease conrmed to have been https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18539/eng@2025-11-14 11

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issued was in the name of the current Plaintis who in that suit were the Defendants. DW2 Georey Gachathi on his part stated that the lease document for Kinyanjui Mwai could not be traced and that he was shown a copy of the lease. Further, that the Presentation Book did not indicate any lease document registered on 24th June 1993 for Kinyanjui Mwai. While he admits that there were two green cards he states that one had been rubbed. The evidence by the lands ocials then is therefore consistent with the evidence that was adduced by the lands ocials who testied before this court. 71. The evidence by the document examiner in the criminal case against the 1st Defendant does not assist the 1st Defendants case at all. The evidence of the document examiner conrmed that a green card and white card dated 18th May 1982 marked as A5 and A6 for Limuru Township 196 had not been signed by the Land Registrar. He concluded that the documents alongside other documents not relevant to the suit property herein did not emanate from Kiambu Land Registry. This evidence is conclusive proof that the primary documents which are the root of the 1st Defendants title which he transferred to the 2nd Defendants are not authentic. 72. The testimony of this expert witness was categorical that the documents were not signed by the lands ocials. This evidence exonerates the 3rd and 4th Defendant from any liability. 73. Considering the evidence in its entirety, I have no hesitation in nding that given the document examiners ndings in the criminal case and the evidence that was presented before this court, the title presented by the 1st Defendant and transferred to the 2nd Defendant was not supported by the allotment letter or the records at the Kiambu Land Registry. The evidence by the document examiner in the Criminal case further deals a fatal blow to the 1st and 2nd Defendants case as it proves the documents supporting their title were not issued by lands ocials hence can only be held to be fraudulent. I emphasize here that the acquittal of the 1st Defendant was on the basis of a gap in the prosecutions case of connecting him and the forgeries. The ndings of the document examiner on the cards was not in question. Hence the title was not only irregularly obtained but meets the standard of proof for fraud which is higher than a balance of probability but lower than beyond reasonable doubt. 74. Can the 2nd Defendants title be saved by claim of being a bona de purchaser for value? Black’s Law Dictionary 8th Edition denes a bona de 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 inrmities, 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.” 75. 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 de 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…” 76. The Supreme Court in the case of Sehmi and Another Versus Tarabana Company [2025] KESC 21 (KLR)” Since the holder of an illegally allocated title cannot confer a valid title upon a third party, there would be no “legal estate” to be purchased in the rst place. Similarly, the absence of “notice” is in reference to the existence of “an equitable interest” in the land and not “the incidence of illegality or irregularity of the title” in question. Therefore, there can be no protectable “purchaser of an illegal title without notice of such illegality”. In other words, a purchaser will only be regarded as bona de if he buys property in good faith without notice of any defect or claims against the title. So that if the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18539/eng@2025-11-14 12

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title in question is illegal or obtained through unlawful means, the purchaser cannot claim protection even if he was not aware of the illegality.’ 77. In the instant case although the 2nd Defendant purchased the suit property for value, in view of the courts ndings on the illegality of the title his title cannot be protected. 78. On the question of mesne prots and trespass, The Plainti claim damages and or mesne prots for illegal occupation by the 2nd Defendants. Section 3 (1) of the Trespass Act, Cap 294 provides that: “ Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an oence.” 79. In the case of Entick vs Carrington (1765) as quoted in the case of Maina Kabuchwa v Gachuma Gacheru [2018] eKLR , Lord Camden CJ had this to say:“ Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave”. 1. Regarding the prayer for mesne prots, Section 2 of the Civil Procedure Act, Cap 21 of the Laws of Kenya denes mesne prots as follows:“mesne prots”, in relation to property, means those prots which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such prots, but does not include prots due to improvements made by the person in wrongful possession; 2. The Court of Appeal, in the case of Attorney General v Halal Meat Products Limited [2016] eKLR, considered the aspect of when mesne prots could be awarded. The court stated as follows:“It follows therefore that where a person is wrongfully deprived of his property he/she is entitled to damages known as mesne prots for loss suered as a result of the wrongful period of occupation of his/her property by another. See McGregor on Damages, 18thEd. para 34-42.” 32. The court in the case of Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah [2016] eKLR had this to say in considering an issue of whether the Plainti had established a case for mesne prots:“In Bramwell vs. Bramwell, Justice Goddard stated that, "... mesne prots is only another term for damages for trespass, damages which arise from the particular relationship of landlord and tenant." Similarly, in an Australian case, Williams & Bradley v Tobiasen it was stated that these words: "Mesne prots are the pecuniary benets deemed to be lost to the person entitled to possession of land, or to rents and prots, by reason of his being wrongly excluded there from. The wrongful occupant is a trespasser, and the remedy rests on that fact. The action is based on the claimant's possession, or right to possession, which has been interfered with. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18539/eng@2025-11-14 13

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A more useful description of mesne prots can be found in Halsbury’s Laws of England, which denes mesne prots as an action by a land owner against another who is trespassing on the owner's lands and who has deprived the owner of income that otherwise may have been obtained from the use of the land. The landlord may recover in an action for mesne prots the damages which he has suered through being out of possession of the land. Mesne prots being damages for trespass can only be claimed from the date when the defendant ceased to hold the premises as a tenant and became a trespasser. The action for mesne prots does not lie unless either the landlord has recovered possession, or the tenant’s interest in the land has come to an end. Halsbury’s, op. cit, 4th, above, suggests that where mesne prots are awarded they usually follow the previous rent rate and in the absence of that, a fair market value rent. The Black’s Law Dictionary denes mesne prots as: - “the prots of an estate received by a tenant in wrongful possession between (2) two dates.” The Concise Oxford English Dictionary denes mesne prots as: - “the prots of an estate received by a tenant in wrongful possession and recoverable by the Landlord.” The term ‘mesne prots’ ‘relates to the damages or compensation recoverable from a person who has been in wrongful possession of immovable property. It is important to point out that Mesne prots are nothing but a compensation that a person in the unlawful possession of others property has to pay for such wrongful occupation to the owner of the property. It is settled principle of law that wrongful possession is the very essence of a claim for mesne prots and the very foundation of the unlawful possessor’s liability therefore. As a rule, therefore, liability to pay mesne prots goes with actual illegal possession of the land. That is to say, generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne prots provided the occupation is illegal. 3. The Court of Appeal in the case of Peter Mwangi Mbuthia & another v Samow Edin Osman [2014] eKLR was of the opinion that it was upon a party to place evidence before the court upon which an order of mesne prots could be made. The court stated as follows:“We agree with counsel for the appellants that it was incumbent upon the respondent to place material before the court demonstrating how the amount that was claimed for mesne prots was arrived at. Absent that, the learned judge erred in awarding an amount that was neither substantiated nor established.” 80. I will not make any award for trespass as at the point the 2nd Defendant entered the suit property he genuinely believed he was the title holder. The same cannot be said about the construction which he continued to carry out even after the court issued injunctive orders. The Plaintis are entitled to mesne prots. 81. PW 1 testied that the Plaintis have lost income during the period the suit property has been occupied by the 2nd Defendant. The evidence by the 2nd Defendant through the valuer’s testimony https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18539/eng@2025-11-14 14

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is conrmation that the building has been in use and the 2nd Defendant has beneted from the use thereof. I award an amount of Kshs 50000 per month as mesne prots. Orders 82. The court makes the following orders; a. An order is hereby made declaring that the certicate of lease for plot NO Limuru Town/196 rstly registered in the name of Joseph Kinyanjui Mwai and transferred to Joseph Warari Gathoga is a forgery and illegally obtained. b. An order is hereby made that the certicate of lease registered in the name of Joseph Warari Gathoga for plot No Limuru Town/196 is cancelled. The Register should be amended accordingly. c. An order is hereby made declaring Kuria Tharao and James Waiganjo Gitungo the legal lessees of plot No Limuru Town/196 d. An order is made that the 1st and 2nd defendants pay damages of Kshs 9,600,000/=mesne prots. e. Costs of the suit to be paid by the 1st and 2nd Defendant. JUDGEMENT SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 14TH DAY OF NOVEMBER 2025 JUDY OMANGE JUDGE In the presence of Court Assistant Catherine Mrs. Muhuhu for Plainti Mr. Kibanya for 1st Defendant Mr. Opolle for 2nd Defendant Mr. Allan Kamau for 3rd & 4th Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18539/eng@2025-11-14 15

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