Salim v Karezi & 4 others

leasing, or otherwise dealing with Plot Number 17835/7 (Original Number 17835) in Kili. 2. The plainti, through his then-advocate, led the plaint, together with his List of Witnesses, witness statement, list of documents, and the documents, all dated the same date. The plainti then eected service of the plaint, all relevant documents, and the summons on the defendants herein. Subsequently, the defendants led their documents. The 1st defendant led its Statement of Defense on 15 November 2019. The 2nd and 3rd defendants, through their advocates, led several documents, all dated 1 March 3033. The documents included the 2nd and 3rd defendants' list of documents, their joint statement of defense, their individual statements of defense, and their joint list of witnesses. The 4th and 5th defendants led their statement of defense, dated 2 December 2021, through the Honorable Attorney General. 3. After the documents were led, the defendants never appeared before the court. The record shows that the plainti served several hearings and mention notices on the defendants, but the defendants failed to appear before the court. Subsequently, the 1st defendant’s advocate led an application dated 28th June 2024 to cease acting for the 1st defendant, which was allowed. On the 20th May, 2025, PW1 testied in court and was cross-examined by the advocate for the 1st defendant. The 1st, 2nd, and 3rd defendants were not present before the court, even though they had been served with the hearing notice. 4. This matter proceeded to a hearing in the absence of the Dsefendant, even though a Hearing notice dated 18th November, 2024, was served and an adavit of service was led in court on 15th May, 2025. The plainti, through PW1, Mohamed Omar Salim, tendered its evidence. PW1's evidence, as contained in his witness statement and list of documents dated 9th February, 2017, was adopted as evidence in chief. The said witness statement and list of documents were led in this Honorable court on 9th February, 2017, and the said evidence is on record and is not contested. 5. The 1st defendant was the initial registered owner of the parcel of land No. LR. 17835/7 (Original Number 17835) Kili measuring 0.4050 hectares or thereabout. The plainti’s case is that sometime in 2013, the plainti entered into a sale agreement with the 1st defendant, dated 14th January 2013. The plainti made several payments, including a deposit of Kshs 600,000/=, and made further payments to the 1st defendant amounting to Kshs 1,800,000/=. As security to the plainti, the 1st defendant deposited the original title document and signed transfer documents to be kept by the plainti's advocate pending completion of payment. 6. Sometime in February 2013, the plainti’s advocate was served with a court order to release the original title document, agreement, and transfer to the Criminal Investigation Department, which he did. The documents were later returned to the advocate after the plainti withdrew his complaint. Upon their return, the 1st defendant informed the plainti that he was unable to deal with the property because there were ongoing proceedings in the Mombasa High Court, Misc. JR Application No. 74 of 2013, consolidated with Misc. Case No. 75 of 2013. After the case was concluded and determined on 30th January 2015, the 1st defendant continuously avoided the plainti and refused to answer his calls, prompting him to conduct a search at the Coast Registry in Mombasa, after which he realized that the property herein had been transferred to the 2nd and 3rd defendants. 7. Based on the evidence and submissions before me, I frame the issues for the court to determine, as follows: Whether the 2nd and 3rd defendants are the bona de owners of the suit property. Whether the plainti is entitled to the relief sought herein. Costs https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18614/eng@2025-12-11 2

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8. I will address the issues concurrently, as they are intertwined. It is important that we trace ownership to determine the subsequent transfers of the suit property. Article 40 of the Constitution of Kenya 2010 protects property rights. This should be read together with Section 26(1) of the Land Registration Act, which provides that: “ (1) (2) The certicate of Title issued by the Registrar upon registration, or to a purchaser of land upon transfer or transmission by the proprietor shall be taken by all Courts as prima facie evidence that the person named as the proprietor of the land is the absolute and indefeasible owner, subject to encumbrances, easements, restrictions and conditions contained or endorsed in the certicate, and the title of that proprietor shall not be subject to challenge excepta. On ground of fraud or misrepresentation to which the person is proved to be a party; or b. Where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme. A certied copy of any registered instrument, signed by the Registrar and sealed with the seal of the Registrar, shall be received in evidence in the same manner as the original.” 9. The 1st defendant, Edward Mzee Karezi, was the original legitimate owner of the property in dispute. This fact is corroborated by admissions from the plainti, as well as the rst, second, and third defendants. Additionally, the plainti submitted a copy of the certicate of title among his documents to substantiate this claim. Consequently, the matter is undisputed, and it is evident that the suit property originally belonged to the 1st defendant, Edward Mzee Karezi. 10. Currently, there are two narratives regarding the ownership of the suit property, and dierent agreements were entered into between dierent parties. As earlier conceded, Edward Mzee Karezi was the registered owner of the suit property prior to the plainti’s and the 2nd and 3rd defendant’s claims of ownership. The plainti adduced evidence through a Sale Agreement executed on the 14th January, 2013, which indicates that he was in the process of purchasing the suit property from the 1st defendant. The plainti also produced copies of cheques drawn in favor of the 1st defendant to show the payments he had made to the 1st defendant. The 2nd and 3rd defendants, in their statements of defense, averred that they entered into a transfer agreement with the 1st defendant, dated 4th April, 2016. The 2nd and 3rd defendants also averred that they have been the owners of the suit property, having lawfully acquired its benecial proprietary rights and interest sometime in 2006, and that they actually lawfully registered the proprietary rights and interest on 4th April, 2016. 11. The plainti contends that land acquisition through purchase constitutes a recognized method of land acquisition in Kenya. Furthermore, according to Section 3(3) of the Law of Contract Act, any transaction relating to land must be documented in writing. The plainti additionally asserts that the sale agreement presented encompasses the essential elements of a valid contract, including the identication of the contracting parties, a clear articulation of the terms and conditions, and proper execution. It also species the consideration agreed upon for the sale. 12. The 2nd and 3rd defendants rely on a transfer document to substantiate their claim. It is alleged that the transfer was dated and executed on 4th April 2016. The plainti submits that the validity of the document herein is in question. A perusal of the document indicates it is undated. The document was https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18614/eng@2025-12-11 3

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also allegedly executed by the rm of Ms. Wesley John Austin & Associates, but it does not contain a stamp axed by the specic advocate who executed the agreement. The plainti submits that this document is manufactured to frustrate the legal proprietor of the suit land. Further, the defendants did not lead any evidence to substantiate this allegation. 13. Plainti cites the decision in Munyu Maina v Hiram Gathiha Maina, Civil Appeal No 239 of 2009, where the Court of Appeal 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.” 14. Plainti submits that in the present case, the defendants did not attempt to substantiate their claim, yet their title is the one challenged. The 2nd and 3rd defendants were thus duty-bound to lead evidence of their purchase. Additionally, there is no evidence that the 2nd and 3rd defendants ever paid the purchase consideration for the suit property. The 2nd and 3rd defendants, having opted not to avail themselves of the vendor or the counsel who drew the transfer, were incumbent upon them to at least lead some evidence that they did purchase the suit property. Section 107(1) of the Evidence Act required the plainti to lead evidence to support his claim of ownership. See Nganga v Land Registrar, Kiambu & Another (Environment & Land Case E084 of 2021) [2024] KEELC 954 (KLR. 15. The plainti, by a plaint dated 9th February 2017, sought the orders enumerated hereinabove. The plainti submits that he is entitled to the protection of his proprietary rights guaranteed under Article 40 of the Constitution and emphasizes that this court is a court of evidence. 16. The plainti submits that there is no material evidence before this Court to corroborate the averments made by the 2nd and 3rd defendant. The Court should note that the defendants allege in their defense that they have been the lawful beneciaries of the suit property since 2006 and that they later lawfully transferred it in 2016. However, no evidence has been adduced to support this claim. The rule of evidence is clear that “He who alleges must prove”. The maxim is grounded in law under Section 107 of the Law of Evidence Act, CAP 80. 17. The plainti submits that the defendants have failed to prove the period during which they have resided on the suit property. They have failed to demonstrate how they purchased the property and how the title passed to them. They have not adduced any evidence to contradict that of the plainti. On the other hand, the plainti has proved to the court that he is the legitimate owner of the suit property and the procedure he followed to acquire it. The plainti submits that the court should grant the orders directing the 4th defendant to correct the entries in the certicate of title No. 46306. The law governing the cancellation of title is set out in Section 80 of the Land Registration Act. Rectication by the Court may include cancellation or amendment of the title, and the circumstances that may lead to such rectication are provided above. The plainti submits that the court should exercise its power, as it is the only institution that can do so. Reliance is placed on the decision in Kisumu Misc No 80 of 2008, Republic v Kisumu District Lands Ocer & another [2010] eKLR, and the Court of Appeal decision in Mombasa Appeal No 98 of 2016, Super Nova Properties Limited & another v District Land Registrar Mombasa & 2 others; Kenya Anti-Corruption Commission & 2 others (Interested Parties) [2018] eKLR. 18. The 2nd and 3rd defendant contend that the title they hold was obtained through a legal process; they paid all the purchase monies and were later issued the title document. The fraud associated with https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18614/eng@2025-12-11 4

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them has not been proved at all, and the title they hold should be protected under Article 40 of the Constitution. Additionally, the plainti failed to make the purchase money payment. 19. The 4th and 5th defendants submit that at all material times, the 4th defendant acted lawfully, in good faith, and within the statutory mandate conferred by the applicable land registration laws. The 4th defendant's actions were purely administrative and based on documents presented, which appeared regular on their face. There was no legal encumbrance on the title that would have prohibited registration, and the plainti did not lodge any caveat, caution, or restriction that would have put the 4th defendant on notice of the plainti's alleged interest. The plainti's private contractual arrangements with the 1st defendant were unknown to the 4th defendant and had no bearing on the statutory duties discharged by the Land Registrar. The plainti's attempt to impute fraud or illegality on the Land Registrar is speculative and unsupported by any credible evidence. The law is clear that fraud must be strictly proved and cannot be presumed merely because one is aggrieved by the outcome of a registration process. Allegations of unlawful conduct must be grounded in evidence of deliberate wrongdoing, not on suspicion or conjecture. None has been demonstrated in this case. Accordingly, the plainti’s suit should be dismissed. 20. Whenever allegations of fraud are pleaded, the same must also be specically proved. In Kimani v Njeri & 3 others [2023] KEELC 17771(KLR), the Court dened fraud and stated: “ Whether there was fraud or not needs production of evidence. Fraud is dened under the Black’s Law Dictionary 10th Edition as “A knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment.” 21. In Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR, the Court held: “ The next and only other issue is fraud. The law is clear and we take itfrom the case ofVijay Morjaria v Nansingh Madhusingh Darbur & another[2000]eKLR, where Tunoi JA ( as then was) stated as follows; It is well established that fraud must be specically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course, be set out and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly proved and it is not allowable to leave fraud to be inferred." 22. In this matter, it has not been shown that the 2nd–4th defendants committed fraud. What has been advanced are facts that suggest fraud, but they have not been substantiated. 23. The plainti seeks specic performance, including that the title held by the 2nd and 3rd defendants be canceled and that he be registered as the owner via purchase. 24. This head is answered by the decision in Macho & another v Athuman & 2 others [2025] KECA 2078 (KLR), which holds that the principle that contracts freely and voluntarily entered into must be honored remains central to the law of contract. This principle, often captured by the phrase freedom of contract, recognizes that persons, through voluntary exchange, should take responsibility for the promises they make and have their contracts enforced. Every party to a binding agreement that is ready to perform its own obligation under it has the right to demand, so far as is possible, performance of the other party's undertaking in accordance with the contract. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18614/eng@2025-12-11 5

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25. In Thomas Openda v Peter Martin Ahn (1984) KECA 25 (KLR), the Court of Appeal articulated the condition precedent for the enforcement of specic performance relief as follows: “ Now it is correct that the purchaser must pay or tender at the time and place of completing the sale the purchase price to the seller or such person as he directs. This is a condition precedent for specic performance of the agreement and it is the form in which an order for specic performance of such an agreement is made.” 26. Based on the foregoing, it is well-established that a specic performance order constitutes an equitable remedy granted in situations where awarding damages or compensation would be unreasonable. Such an order is issued only if there is a valid and enforceable agreement and the complainant acts in good faith and with integrity. 27. I agree with the 4th and 5th defendants that, because the agreement between the plainti and the 1st defendant never took eect and the plainti never paid all the purchase money and has not done so since 2013, the land was later sold to other third parties, namely the 2nd and 3rd defendants. Perhaps a refund of the purchase price and damages for breach of contract would suce. It is not the case here. The plainti did not seek a refund or compensation in this matter. 28. Cancellation of titles held by the 2nd and 3rd defendant cannot hold as no fraud has been proved against them, nor against the Land Registrar. 29. The plainti’s suit against the defendants is dismissed with costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON DECEMBER 11, 2025. E. K. MAKORI JUDGE In the presence of: Ms. Kinyakanga for the Plainti Ms. Lutta for the 4th and 5th Defendants Jill: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18614/eng@2025-12-11 6

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