Ali & 5 others v Kimani & 8 others

JUDGMENT 1. Vide an Amended Plaint dated the 7/10/2021, the Plaintis sought as against the Defendants, the following reliefs:a. An order for cancellation of entries 4 to 15 and all other subsequent entries made against the title to land parcel known as LR No. 11876 – Karen and revert to original registration in the name of Ali Mohamed Zaid. b. An order of permanent injunction against the Defendants, their agents, servants and/or assignees from entering, encroaching, trespassing into, transferring and/or otherwise dealing in any way land parcel LR No. 11876 – Karen. c. An eviction order against the 1st to 6th Defendant and for the property to be restored back to its original state. d. An order for mesne prots as from 30.10.1982 until the determination of the suit. e. Specic damages at current market value. f. General damages thereof. g. Costs of this suit be borne by the Defendants. 2. This suit was led contemporaneously with a Notice of Motion dated 12/11/2019 under Certicate of Urgency in which the Plaintis/Applicants were seeking a restraining order against the Defendants and restricting any transfer of the suit property by the 8th Defendants/Respondent in relation to the suit property. 3. The 1st Defendant led an Amended Statement of Defence and Counter-claim dated 14/04/2022. The 2nd and 3rd Defendants did not le their Statements of Defence within the required time. However, pursuant to leave granted on 24/10/2024 the 3rd Defendant led their Statement of Defence dated 28/01/2025. The 2nd Defendant never appeared in Court and never led any documents to defend the suit against him. 4. The Particulars of fraud against the 1st, 2nd and 3rd Defendants a. b. Abuse of oce i. Using his position to illegally eect sub-division and transfer of 2.5 acres into his name. ii. Using his position to fraudulently and illegally obtain the necessary approvals for transfer. iii. Fraudulent and illegal execution of transfer and lodging at the Lands Registry. As a result thereof, disinheriting the deceased’s Estate. Particulars of Fraud of 2nd and 3rd Defendants a. Causing the suit property to be fraudulently and illegally registered in their names knowing it is incapable of being administered as such. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 2

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5. The 1st Defendant’s Counter claim sought for the following orders against the Plaintis and or the 7th Defendant: a. A permanent injunction against the 1st and 6th Plaintis prohibiting them, their agents, servant, assignee and/or employees from entering, encroaching, trespassing and/or in any other way whatsoever dealing with land parcel LR NO. 11876/1. b. In the alternative to prayer (a) above: A declaration that the 1st Defendant is entitled to a share in the Estate of Ali Mohamed Zaid (Deceased) equivalent to the current market value of LR No. 11876/1 and the current market value of all developments thereon as at the time of the Judgment. c. In the alternative to prayer (a) and (b) above, An order be and is hereby issue against the 7th Defendant compelling it to pay the 1st Defendant the Current Market Value of land parcel LR No. 11876/1 as at the time of the Judgment, the current market value of all developments on land parcel LR NO. 11876/1 as at the time of the Judgment and all costs relating to the proceedings herein. d. Costs of the suit and of Counterclaim e. Such other or further Orders as the Court may deem just to grant in the interest of justice. 6. Neither the Plaintis, nor the 2nd, 3rd, 4th, 5th, 6th nor 8th and 9th Defendants led a response to the Counter-claim. 7. On his part, the 7th Defendant led a response to the Counter-claim and averred that in response to Paragraphs 7, 17, 25, 29, 32, 43, 44, and 45, of the 1st Defendant’s Amended Defence and Counter claim, the true position is that upon subdivision of the property to produce LR 11876/1 and LR 11876/2, property LR 11876/2 was transferred from the 7th Defendant to Zenaat Ali being a beneciary of the Estate by an assent dated 20th day of May 1982. This entry was recorded as entry No. 6 under the Grant No. I.R 22684 on 30th October 1982. 8. However contrary to the allegations of the 1st Defendant, the 7th Defendant asserts that it never transferred property LR 11876/1 to the 1st Defendant and puts the 1st Defendant to strict proof thereof. 9. Further in response to Paragraph 17 of the 1st Defendant’s Amended Defence and Counter claim, the sale agreement the 1st Defendant clearly indicates that the vendor is Zenat Ali while the purchaser is indicated as N.W. Kimani being the 1st Defendant while the 7th Defendant appear under the agreement as the administrator of the deceased’s estate and not as the vendor. 10. The 7th Defendant contends that the alleged assent document dated 30th October 1982 purporting to transfer LR 11876/1 to the 1st Defendant was NOT executed by the Public Trustee or any of its Ocers. The 7th Defendant further stated that in the event that the Court nds that the suit property was transferred fraudulently, then, the 1st Defendant’s Counterclaim should fail because the 1st Defendant cannot benet from fraud. 11. It is the 7th Defendant’s contention that the 1st Defendant did not pay purchase price to the 7th Defendant but that the 1st Defendant has admitted that he paid purchase price to Zenat Ali. Consequently, the 7th Defendant does not owe the 1st Defendant anything. Therefore, the Counterclaim is misplaced. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 3

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12. The 4th Defendant led their Statement of Defence dated 9/11/2022, the 5th and 6th Defendants led a joint Statement of Defence dated 29/11/2019 and a co-Defendant notice against the 2nd, 8th and 9th Defendants pursuant to Order 1 Rule 24 of the Civil Procedure Act dated 31/08/2022. 13. In their co-Defendant notice they sought the following prayers against the 2nd, 8th and 9th Defendants: 1. Indemnity against the Plaintis’ claim in the amended Plaint dated 7 October 2021; 2. Refund of all sums paid being the purchase price for properties known as Land Reference Numbers 11876/3 and 1176/5 and all the sums used towards the acquisition of the properties including stamp duty, registration fees, land rates and rent from the date of the transfer; 3. Payment of the current market value of the properties in the sum of Kenya Shillings One Hundred Million (Kesh 100,000,000) 4. Costs of 5 and 6 Defendants in defending the Plainti’s suit 5. The costs of the 5 and 6 Defendants’ in the co-Defendant proceedings herein; and 6. Interests on 2, 3, 4 and 5 above at Court rates from the date of ling of the Plaintis’ suit until full payment. 14. The 2nd, 8th and 9th Defendants did not le a response to the Co-Defendant notice. 15. On their part the 7th Defendants led a Statement of Defence to the Amended Plaint and the 1st Defendant’s Counter-Claim dated 6/01/2023 it is the 7th Defendant’s contention that if the Court uphold the Plaintis’ claim to the suit property then the 1st Defendant’s Counter-claim should fail because the 1st Defendant cannot benet from fraud. Plainti ’s Case 16. PW1 Fatuma Ali in her testimony adopted her witness statement as her evidence in chief. She also adopted her List of Documents dated 7/10/2021 as exhibits and they were marked as PW1Exh 1-15. In cross examination she testied that from the documents shown to her by Counsel for the 1st Defendant Mr Njoroge she notes that a transfer was done to the 1st Defendant on 30/11/1982 which is entry number 5. 17. She told the Court that the deceased had 3 widows and that the report of a meeting held at the DO’s Oce in Kibera on 2/03/1978 indicate the names of the heirs to her deceased father’s Estate but his rst and second wives were not included in the report. She stated that she led a letter from the Chief dated 5/01/2011 which lists the children of the late Ali Mohammed Zeyd but Jara Khalil named as 5th Plainti is not included in the letter since she was a wife and she is the same person as Zara Ali. 18. It was her testimony that at her father’s death she was 11 years and attained majority age in 1980 and that whereas they were staying on the suit property, she left the father’s house in Langata in 1973 upon her father’s death. That when she left the property, Mr Nelson Waruinge the 1st Defendant was not on the suit property. She told the Court that she only noted that the 1st Defendant had constructed on the land around 1984-85. 19. According to the 1st Plainti she knew that the suit property was her father’s property and they never held a meeting about the property since 2/03/1978 since they knew that it was under the Public Trustee who they believed would safeguard their property. She also stated that she knew that the 1st Defendant was an employee of the Public Trustee. That when she suspected fraud as she has indicated at paragraph https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 4

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24 of the Plaint, they went to the oce of the Public Trustee in 2011. They led the instant suit in 2019 because they trusted the oce of the Public Trustee despite their seeing the construction on the suit property going on. PW1 further denied being in the know about a sale agreement concerning the suit property. 20. On further cross-examination by Counsel for the 4th Defendant Mr. Gitonga, PW1 stated that she was not in attendance at the meeting of 2/03/1978. She reiterated what she has stated in her Plaint that Zinnat Ali who was a wife to her father had no capacity to sell the suit property since it was held in trust by the Public Trustee for all beneciaries. That they only approached Court in 2019 after learning in 2011 about the mismanagement of the property in Karen because the oce of the Public Trustee assured them that all is well given the records at the said oce. 21. It is her case that she sued the 4th Defendant who was known as Abdi as per paragraph 16 of her Plaint but he changed this identity to Concordia. She denied knowing anyone by the name Micheal Kamau Wamathai who is mentioned in the Agreement at page 4 of the 4th Defendant’s bundle. She also stated that they did not put a caveat on the suit property since they did not have the documents relating to the land but that a Judge issued an order restraining any dealing in the land. 22. She told the Court upon being cross-examined by the Counsel for the 5th and 6th Defendant, Mr. Tollo that she only knew about the 5th and 6th Defendants through a search which showed that they beneted from a subdivision. 23. When the Snr State Counsel Mr. Motari appearing for the 7th-9th Defendants cross-examined her, it was her testimony that they stayed with her step mother Zenat on the suit property after her father’s death and only left one by one. That when she left the suit property in 1978 she went to stay with her grandmother in Kibra but the property in Kibra has no title since all the land in Kibra is not titled. 24. She told the Court that the sale agreement of the suit property was signed by Zennat Ali although the family never agreed that Zennat was a Trustee. She also stated that her father’s property has never been divided. 25. At this point, the Counsel for the 1st Defendant made an application to place on record new documents in the alternative recall of the 1st Plainti for cross-examination. The Court granted the oral application and also for recall of the 1st Plainti. 26. Upon further cross-examination by Senior Counsel Mbuthi Gathenji she reiterated her earlier testimony and denied having knowledge of the other parcels of land she was being cross-examined about maintaining that when her father passed on she was only in Class 6 and she then stopped schooling. She testied having constructed mud houses on Karanja road at the club house where she collects rent from 3 units. She stated that her step mother Zenat Ali was her “mama mdogo” and that she died though she was not aware when she died. 27. On re-examination by her Counsel Mr Masake, she testied that she knew Kimani as being employed in Sheria House since for her they were all under the Attorney General. She stated that she had obtained an ad litem which allowed her to bring the matter to Court. That the letter at page 3 by NW Kimani shows the person they have sued and the letter at page 4 is authored by the same NW Kimani. 28. Concerning the house in Otiende Estate Plot 60/225 PW1 stated that when they passed by there last in 2023, they noted that there were people occupying the house but they never placed a caveat because they did not have a copy of title to facilitate the process. She stated her father died through an accident without a Will. Further that he had not distributed the property to anyone and that they just heard that the property had been taken to the Public Trustee. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 5

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29. PW2- Abdalla Ali stated that he was self-employed and that he stays in Machakos County. He adopted his witness statement and stated he wished to rely on the documents produced by the 1st Plainti. 30. Upon cross-examination he testied that Zennat Ali moved out of Karen the suit property to Otiende then to Athi River. That the residence in Karen was under the Public Trustee and that he sued the Public Trustee so that they can explain where their suit property is and he has alleged fraud. That in disposing the suit property the Public Trustee never consulted the children of the late Ali Mohammed. 31. According to PW2 he did not have any Letter of Appointment to show that the 1st Defendant worked in the oce of the Public Trustee. That the letterhead used by Mr Kimani as per the letter at page 3 instructing about subdivision of LR 11876 Karen forwarded copied to the City Engineer and the letterhead is for the Ministry of Constitutional Aairs. It was his position that the Public Trustee oce was a department in the Ministry of Constitutional and Home Aairs as at 11/12/1980. 32. He told the Court that he was not aware if Zenat Ali was paid Kesh 50,000 by the 1st Defendant as a consideration. On his part he stated that he never sued Zenat Ali since she never owned anything. That the document at page 6 shows the report of the properties of the late Ali Mohammed Zaid. 33. On further cross-examination he stated that the Public Trustee wrote a letter questioning the entries made. That the sale agreement dated 28/07/1980 indicates the suit property as 11876 and on pages 14 and 15 there are 2 letters for subdivision. The Certicate or document at page 5 shows the subdivision was approved on 4/03/1982 at page 18. This shows that the subdivision was done after the sale since the subdivision was done on 30/11/1981. 34. Upon further cross-examination he stated that the grant was issued to the Public Trustee in P & A Cause 115 of 1979 on 21/03/1979 which means he had legal mandate to manage the estate of the deceased. He testied that he never challenged the grant made in 1979 in P &A 115 of 1979 because he was a minor and he only got to know about the issuance of the grant in 2011 and still they have not challenged the Grant. 35. He told the Court that the deceased Ali Mohamed Zamdi had ten children none of whom were of age at the time of his demise and that Zenat Ali was a beneciary of his estate which was to be distributed to all beneciaries majority of whom were minors. That there has been no distribution since the demise of his father. 36. According to him the letter at page 37 was written by Mr Malombo where Entry No 3 at page 46 he stated is a curious entry. That Entry No. 4 is for certicate of subdivision by Town Clerk made on 30/11/1981 and transfer by Assent made on 30/11/1982. It was his position that entry number 6 should have been done with the consent of the Court since this was handled by the Public Trustee. The Assent is between the Public Trustee and Zennat Ali and the Assent was registered as 22684/6 which tallies with Entry No. 6 at page 46. 37. Upon being cross-examined by Mr Tollo PW2 reiterated the testimony about his life and the fact that he lived with his grandmother in Kibera and other relatives and he stated that though he was young he knew that Letters of Administration to the estate were not taken out. Also, that he never lodged a complaint of intermeddling against her. 38. When he was re-examined he restated that Entry No. 5 is dated 30/11/1982 which is a transfer and Entry No. 6 for Transfer of Assent made on 30/11/1982. It was his observations that between entry No. 4 and No.3 there are inconsistencies which according to him pint to fraud because subdivision was done before the grant was made. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 6

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39. That the properties were taken to the Public Trustee because the families had not agreed to subdivision and so Public Trustee was to secure interest of minors. He further informed the Court that the letter at page 37 is contradiction of what the author says at page 58 where he alleges at page 58 that the deceased was the proprietor. The letter of 2011 the Public Trustee has stated that the estate of the deceased has not been distributed yet the letter of 2019 states that entry No. 6 to 15 are made without his involvement. He stated that it is clear that from the letter at page 58 that Mr. Malombo did not know what was going on with the suit property despite being the Public Trustee. 40. According to PW2 the Public Trustee was a person full of contradictions as evidenced by the letter at page 58 where he acknowledged the transaction to N.W Kimani yet at page 59 and he now demands an explanation from Registrar of Lands. He points out that letters at page 106 and 108 dated 3/03/1981, 7/05/1981 and the letter on page 110 is dated 4/03/1982. 41. That the entry No. 4 at page 46 and letter at page 110 have dates 30/11/1981 and 4/03/1982 respectively. That according to him the letter at page 110 should have come earlier than entry No. 4 because entry was on 30/11/1981 and the letter was written on 04/03/1982. He reiterated the fact that the property was handed over to Public Trustee since the family believed that the oce will manage it for the benet of the family and the minors when they reached the age of majority then their respective share would be handed to them. 42. PW3 - Mama Salima Ali adopted her witness statement dated 7/10/2021 which was at page 22 which she adopted as her evidence in chief. She also produced two documents which was the amended grant at page 74 and charge sheet at page 75 but the Counsel of the Defendants strenuously objected to the production of the two documents and the Court upheld the objection. 43. In her testimony she stated that she lived on the suit property with her mother and father and siblings but when her father married the younger wife her mother went to live in Kibera to manage businesses she did to pay for bills. She told the Court that the house in Karen is owned by those they have sued like Kimani. It was her testimony that she went many times to the oce of the Public Trustee to ask for assistance and she found Mr Mahiri, Mr Kimani, Mr Abdi, Mr Nabu and Mr Akuma. 44. That the Kimani who was in the oce of the Public Trustee and the 1st Defendant in the suit is one and the same person. 45. On cross-examination, she stated that she was allowed to be enjoined to the suit as a Plainti as evidenced by the document at page 74 dated 9/03/2024. She testied that she was not aware that there was a transfer to the 1st Defendant of her father’s property in 1982. She told the Court that the meeting held on 7/03/1978 was not discussing the Karen property or the suit property. 46. She reiterated that any time she visited the Public Trustee oce she found the 1st Defendant there. She also claried that she sued those on the suit property and not Zenat who had no authority to sell the suit property. 47. PW-3 was also cross-examined by the Counsel for the 4th Defendant and she reiterated that the Public Trustee had no authority to allocate the land to Zenat before the approval from the family. It was her testimony that the meeting held in 1978 was about the land in Makina and that the family never met to allow Zenat to sell the suit property. 48. She testied that since 2010 she has seen the 4th to 6th Defendants on the suit property but she does not know who they bought the suit property from. That page 165 shows a transfer to the 4th Defendant but according to her this is still illegal transfer. That they did a search in 2019 and they found that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 7

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suit property had been divided to the 1st to 6th Defendants yet there was no one authorized to sell the suit property. 49. She told the Court that whereas she got to the age of majority she never led a suit challenging the sale since she had no capacity nancially to institute a suit. She concluded her cross-examination by restating that Zenat had no authority to sell the suit property which was being administered by the Public Trustee for the family. Further that she knows Mr Kimani was a Public Trustee employee because there is a letter written by Mr Gatonye where he mentions Mr. Kimani. As a result of this her brother and sister have gone to Court alleging misuse of public oce by Mr. Kimani. That her prayer before Court is that the they get back their land. 50. PW3 - Mr Andrew Atinda Ouko he adopted his witness statement dated 6/11/2023. He testied that they were neighbours with the deceased Mzee Ali that he lived on the land his father sold to him and that he came to live on the land in 1967. That they were great friends with his father and when he died in 1973 and his brother was born in 1974 he was named after the late Ali. 51. He told the Court that the house on the suit property was a wooden house (vintage British house). That when he noted many people going to view the house since the Ali family passed through his compound to go their house, he looked for them to inquire about the ow of people and also he noted that the gate was blocked after someone build on the late Ali land. 52. He testied having told people that the land had owners and it was not for sale. He cautioned potential buyers and they kept o since he told them the land had owners. He stated that he cautioned Mr. Abdi and his wife whom he told that the land had problems but he went ahead and bought it. He stated that he saw so many surveyors on the land so he went to alert Ali’s children. 53. When he was cross-examined by Counsel for the 1st Defendant, he stated he went to look for Ali’s children not because he had an interest in the land but so that he informs them about the happenings on their land. He stated that he saw the activities around 2017. He told the Court that as at 1984 Mrs Ali was living on the suit property including Mama Mkubwa who was mother to Salima Ali, the 5th Plainti. 54. It was his testimony that Mr. Kimani took over the suit property when the owners were alive and when he saw the activity on the land, he informed the 2nd Plainti. On further cross-examination he stated that Zenat Ali moved out of the suit property around 1992 to Kitengela and that he never contacted her after she moved out. 55. He informed the Court that the house on the suit property was up for sale for a long time and one Mr Maathai who wanted to sell the land indicated that there were no documents to the land and that he informed Mr. Abdi that the land had a problem. With this the Plaintis closed their case. Defendant’s Case 56. DW1- Nelson Waruinge Kimani adopted his witness statement as his evidence in chief and he also produced a list of exhibits running from pages 98-148. It is his testimony that he worked at Attorney General’s Chambers State Law Oce and that he has never worked at the oce of the Public Trustee. He testied having used the ocial letterhead of the Ministry of Constitutional Aairs although the content was about a private sale of land. 57. When cross-examined, he testied that at page 38 of the trial bundle there is a sale agreement and paragraph 1 indicate the sale is about Zenat’s entitlement yet the estate was intestate. At page 27 the document states the estate is intestate. That the document at page 34 paragraph 4 states that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 8

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question of heir would be considered at the time of distribution in accordance with Muslim Laws of Succession. This was in the minutes of 2/03/1978 by the Trust Ocer. 58. Further that the letter at page 37 states at paragraph 3 that distribution of the estate had not been done the letter is dated 19/01/2011. CSW Gatonye acted for both the buyer and seller and he was a colleague of DW1. He told the Court that the letter states that Mr Gatonye had at rst declined to stamp the Agreement since he did not appreciate why the Public Trustee and Zenat had to be joint vendors. 59. It was his testimony that the Agreement was signed on 28/07/1980 but he was not aware whether the distribution had been done or not. He also stated that the entry No.4 at page 46 is for subdivision yet the Grant of Letters of Administration was made on 2/03/1982. It was his case that he did not know that the subdivision of the suit property was done before the Grant of Letters of Administration and also that since it is the Public Trustee who was driving the subdivision according to him, DW1, he did not know if he had absolute authority to do the subdivision. 60. On further cross-examination by Counsel for the 6th Plainti Mr Ochiel, DW 1 stated that the letter at page 41 does contradict his statement at page 92 paragraph 22 since on the letter the reference is that he is applying for subdivision of the suit property but he signed on behalf of Zennat Ali and as earlier stated he used the ocial letterhead at page 42 and so it is a wrong assumption that the ocial letterhead was used by Public Trustee. Also, the subdivision was registered in 1981 but as per the letter dated 15/11/1982 it indicates that subdivision had not been done. Further the letter at page 42 comes after 30/11/1981 and the certicate of subdivision was issued on 4/03/1982. 61. He testied that he was charged at Kibera Law Courts (see paragraph 50) and the complainants in the case are the Plaintis in the instant suit and the charges relate to abuse of oce. 62. On further cross-examination by Counsel for the 1st and 2nd Plaintis Mr Masake, he stated that he bought the suit property from Zennat Ali which property was being administered by the Public Trustee who participated in the sale and subdivision. It was his case that he did not know whether the property had been subdivided or whether there were other beneciaries. 63. He told the Court that he never conducted any due diligence when he was purchasing the suit property and also, he never inquired about the other beneciaries and that Zinnat had indicated that the other members of the family had agreed for her to sell the suit property to him. That since 1979 Succession Cause No. 115 of 1979 has never been conrmed by the Succession Court. He testied that his land forms part of the Estate but the Public Trustee has authority to sell even when there is a Court case pending. 64. The Counsel for the 3rd and 4th Plaintis Mr Asembo cross-examined DW1 and he stated that when he worked at the Attorney General’s oce Mr Gatonye was Senior State Counsel and he, DW1 was second in command at the Attorney General’s oce. He told the Court that he was not aware that the oce of Public Trustee was under Attorney General’s oce and that the letter at page 63 bears the reference of the Public Trustee but the Public Trustee had nothing to do with the Attorney General’s oce. 65. He testied that he paid Kesh 50,000 for the suit property and that his title is for LR 11876. He stated that the Plaintis wanted to bring in the issue of the Criminal Case yet the charges were withdrawn under Section 87A on 10/11/2022. It was his case that the Public Trustee was to get authority from the Court to deal with the suit property but he was not aware what the Public Trustee was to do to dispose o the suit property. 66. When cross-examined by Counsel for the 7th Defendant Mr. Otiende he testied that he paid a deposit of Kesh 10,000 but he had no receipt and also that there is no completion date provided in the Sale https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 9

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Agreement he entered into. He told the Court that in 1980s one had to obtain a consent from the Land Control Board before the land was subdivided since he bought LR 11876/1 which was a subdivision. 67. He however stated that whereas the letter at page 110 is a consent for subdivision and approval for subdivision it is dated 4/03/1982 and entry No. 4 was registered on 30/11/1981 and so according to DW1 he noted that there is a problem since subdivision came before approval. Further under Special Condition 1 there is a requirement for Consent to Transfer but he testied that he did not have it. 68. He stated that he wrote the letter at page 41 for Zenat but he never copied the Public Trustee in the said letter. He told the Court that he paid to Zenat Kesh 50,000 and not Public Trustee. That he did due diligence but he did not have a Conrmation of Grant. Property was transferred to him but he never saw a Certicate of Conrmation of Grant and that he did not have it. 69. When he was cross-examined by Counsel for 5th and 6th Defendants, he stated that Mr James Murimi Wanjohi was a tenant in the subject property between 2006 -2012. 70. DW1 on re-examination reiterated the content he already had testied about concerning his oce, payment of the deposit to Zenat Ali and the Grant of Letter of Administration dated 2/03/1982 whereas the letter for at page 29 dated 11/12/1980 was written before the Grant of Letters of Administration and entry for subdivision is dated 30/11/1981. 71. Due to the fact that the 3rd Defendant came on board after PW1 had testied, Counsel Mr Koech requested to have PW1 recalled for cross-examination by the 3rd Defendant. Recall of PW1-4 for Cross-Examination by 3rd Defendant. 72. PW1 - reiterated what she had earlier testied about. She denied knowing Ruben Yegon – 3rd Defendant but she testied that she heard that he bought plot No. 4 in 1994 and constructed although there is no house on the plot now. She stated that she did not know when the construction and or demolition was done on the said plot. She told the Court that the suit in Court is about the suit property in Karen which belonged to her father. 73. On re-examination she stated that they came to Court after 25 years because they had no information and nor any money. 74. PW-2 testied that he was born of a mother who never stayed with the late Ali, his father and that he was raised by his grandfather. That when his father died, he was only 4 years. He told the Court that he saw minutes of a meeting which was held when he was 9 years old when he was an adult and then the minutes were about the club house being a source of income for the family. 75. He testied that he did not know when the 3rd Defendant acquired the title of the suit property, that he learnt that the 3rd Defendant had a title in 2019. 76. On re-examination he testied that the father had other properties and that their titles are with Public Trustee as custodian and the title to the suit property was not in the custody of Zenat. 77. PW-3 testied that though she does not know the 3rd Defendant, she learnt in 2011 that he acquired part of the suit property title illegally and he visited the suit property then. Upon re-examination she stated that the Public Trustee re-assured her every time she visited that the suit property was safe until PW2 got access to the papers and instituted this suit in 2019. It was her testimony that Yegon the 3rd Defendant did not get a proper title and that in the event he wants his money back he should go to whoever sold the land to him. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 10

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78. PW-4 testied upon cross-examination that he saw DW1 enter the suit property when Zenat Ali was alive and that he saw Kimani on the suit property with surveyors after Zenat had moved out from the suit property. Further that he saw the 3rd Defendant constructing on the land when Zenat had moved out. That he met Abdalla in 1998 and told him the land was being subdivided and he advised him to seek legal advise. He stated that he saw Micheal Kingori Ndegwa subdividing the land and Yegon, 3rd Defendant put a storey house. 79. With this the Counsel for the 1st, 2nd, 3rd, 4th and 6th Plaintis moved to close their cases. The 5th Plainti had passed on and was not substituted. Defence Case Continued 80. DW2 - Reuben Kipkemoi Yegon testied that he learnt that he was sued in September 2024 he adopted his witness statement and produced a List of Documents dated 28/01/2025 including a supplementary list dated 6/03/2025. 81. When cross-examined by Counsel for the Plaintis Mr Masake he testied that he used the transfer document at page 46 to do a search before he bought the suit property. He stated that from the entries made there is no Conrmation of Grant and that Entry No. 5 is transfer to Nelson Waruinge and there was also no Grant of Letters of Administration to the Public Trustee or to any individual to allow for transfer to any other individual. 82. It was his testimony that he carried out due diligence but he never discovered any anomaly and that he did due diligence to conrm that the vendor was the one registered. He stated that he does not know the consequences of due diligence if not properly done. It was his case that he never found anyone living on the subdivided parcel. He testied not living on the suit property but that he had a tenant who lived in the suit property and that he did not know who the Plaintis are. He stated that he sold the suit property in 2003. 83. On cross-examination by Counsel for the 6th Plainti he testied to having acquired the suit property legally having done due diligence and that he interviewed the vendor on the site and that his search was only limited to the 2nd Defendant’s property. That he never did any investigation of the mother title. On being cross-examined further on DwExh 5 he told the Court that the property indicated there is LR No. 2/559 which is on Ardhwings Kodhek Road. He reiterated that he bought this land from Micheal Kingori and he needed good title in order to pass good title. 84. He further testied when cross-examined by Senior State Counsel Motari that after Micheal sold him the land he put up a house within one year and he let it out but later sold it for Kesh 7,000,000. 85. Upon re-examination he reiterated the fact that he bought the land from Micheal after doing a search which showed he was the owner of the land. He explained to the Court that DwExh 5 was about a property he was shown which he intended to buy but he did not consider it attractive and he bought a dierent parcel. That Micheal advertised the sale of the land he bought in the standard newspaper but he had not produced it in Court. With that the 3rd Defendant closed his case. 86. DW4 - Abdi Yakub Duale testied that he is the Director of the 4th Defendant and adopted his witness statement and List of Documents in the bound bundle from pages 159-194. He produced the original copy of the title deed and the transfer. 87. He testied to have bought the suit property from Micheal Kamau Wamathai and that he did due diligence by conducting a search but he said that he had not produced the search in Court. Entry No. 6 showed a transfer to Micheal Kamau Wamathai and the property was charged to Kenya Reinsurance https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 11

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Corporation on 22/09/2003. He stated that if the person selling a property to him had bad title, he cannot get a good title in return. He also testied that he learned the property was on sale through a broker and that he learnt that there was suit in Court through his lawyer touching on the property. 88. On further cross-examination, he stated that the due diligence he did was through his advocate and he could not remember the scope of the search. He stated that whereas he had stated at paragraph 12 of his Statement of Defence that his purchase of the suit property is not linked to historical transactions, he had looked at paragraph 11 of the 3rd Defendant’s Statement of Defence and realized that the 3rd Defendant sold the suit property to Micheal Kamau Wamathai and so the suit property is linked to historical transactions. 89. He also stated that as per entry 3 Letters of Administration were issued to the Public Trustee on 2/03/1982. And entry No. 4 is about subdivision which is dated 30/11/1981 and so the subdivision came before the Grant of Letters. 90. Further he testied that the Letter at Page 29 is dated 11/12/1980 and it was received at the Council on 16/12/1980 and the subject is an application for subdivision. The author of the letter is N.W Kimani and these dates according to DW4 precede the Grant of Letters of Administration done on 2/03/1982.The same situation applies to the letter dated 15/01/1982. He also referred to the document at page 62 which is a letter dated 4/03/1982 about subdivision written by S.K Maina for Commissioner which was giving the nal approval. 91. He testied that the title he had has the name of Reuben Kipkemoi Yegon which is the same on the Mother Title. That the property was sold to 4th Defendant in 2019 and the transfer at page 164 show the consideration of Kesh 45,000,000. 92. On re-examination he stated that paragraph 20 at page 67 is not true. That the entries at page 163 did not show a deceased person and so there was no basis for him to conduct a search relating to LR 1187614 which was the original one. Also title document at page 43-48 has entries which are not in his title and it is not the property he was purchasing. He stated that when he conducted a search he noted that his property was charged at entry No. 7 and then it was discharged through entry No.8. It was his testimony that he have never come across any issue to impugne his title. With that the 4th Defendant closed his case. 93. DW5- James Murimi Wanjohi testied as the 5th Defendant and adopted his witness statement and a list of documents eld at page 205 which he produced as DW5Exh 1-65. He stated that he was the tenant of the 1st Defendant in one of the two houses owned by Nelson Waruinge for six years. That he engaged with an agent who introduced him to Micheal Ndegwa Kingori the 2nd Defendant who he met on site. 94. When cross-examined he stated the had not stated in the witness statement he was a tenant anywhere and neither had he attached a lease agreement nor has he mentioned about an agent that introduced him to the sale of the suit property or produced a signage for sale. 95. He stated that he was not aware that the 1st Defendant was charged in a Court of law but that he was aware Micheal Ndegwa Kingori has been sued but he has not seen him in Court. 96. He testied having met Andrea Ouko last year because the access to his property has a gate which was blocked. That when he was buying the suit property he did not ask Andreas (PW5) about the suit property. The wooden house is still on the suit property and when he bought the land he acquired it. According to him, he never asked about succession because his title was clean. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 12

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97. It is his testimony that he has been in the neighbourhood of the Alis for over 20 years and he conrms seeing a structure for Concordia (4th Defendant) for the last 20 years. 98. Upon re-examination he told the Court that the entry at page 231 is about provisional certicate because in 2016 he lost his search certicate and so he applied for a provisional certicate. Though he reported the loss he has not produced an abstract to support his claim. With that the 5th and 6th Defendants closed their case. 99. DW7 – Diana Abuka stated that she a state Counsel at the oce of the Attorney General deployed to Public Trustee Department. She adopted her witness statement dated 14/11/2023 and list of documents dated 5/01/2023 which she produced as exhibits. 100. Upon cross-examination she stated that the Public Trustee is a body corporate which acts as administrator of estates and a trustee for the under age, mentally incapacitated and also it acts as a guardian. It holds property for a deceased person’s children until they attain the age of majority. She stated that she was aware of the Letters of Administration granted to Public Trustee of 1979 on 2/03/1979 pursuant to Probate and Administration Act of 1881. 101. She testied that Section 90 of the said Act set conditions (see Section 90(2) which prohibit the Administrator from disposing of the property of a deceased person unless granted permission by the Court. That Section 14 of the Public Trustee Act any beneciary can apply to the Court to have the property held in the trust sub-divided. Further that Rule 3 (1a) require the Public Trustee to prepare to establish and share an inventory but she stated that in relation to the instant suit they have not prepared it. And that they had also not availed a copy of the estate’s cash book and ledger. 102. DW7 also testied that Part C of the costs is also not availed to the Court. She stated that when the Letters of Administration were issued for the instant suit all the Plaintis who she has never met were minors none was above 18 years of age. That the property was supposed to devolve when the children attained majority age. 103. From the search at page 46 she stated that there is no entry showing conrmation of Grant of Letters of Administration. She also noted that she saw there was an anomaly on subdivision before issuance of grant which show 1981 for subdivision and letters of grant 1982. That the entries should not have been made without Conrmation of Grant of Letters. She stated that the Public Trustee did not have the mandate to subdivide the property without Conrmation of Grant and without the Court order as provided under Section 14 of the Act. 104. It was her testimony that Zenat did not have power to enter into a sale agreement dated 28/07/1980 without authority therefore the process was wrong. On further cross-examination she reiterated that the Public Trustee Oce is a department under the oce of the Attorney General. 105. On further cross-examination she stated that the letter at page 63 is an anomaly since a deployed sta cannot act in a department where they are not deployed. Further that the Sale Agreement at page 102 is an illegality since Counsel CW Gatonye is acting for both vendor and purchaser and the letter mentioned show that he is a colleague of the purchaser. 106. She also stated that there is no record showing money was paid to the Public Trustee for purchase of the suit property and also that there is no completion date from the face of the Agreement and therefore this Agreement would not have given Kimani good title. 107. On the process of division of property held by the Public Trustee she testied that the law requires that they ascertain beneciaries to an Estate to ensure no beneciary is left out. This is done in consultation https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 13

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with County Commissioner. It was her testimony that she is not aware who commissioned the subdivision but that the letter dated 23/11/2019 show that it was the Public Trustee. She also testied that she was not aware if the Public Trustee allowed Mr. Kimani (DW1) to deal with the Estate of the deceased. 108. According to her the Public Trustee sought Clearance Certicate to dispose of the subdivision to NW Kimani vide the letter dated 7/05/1981. At paragraph 3 of the Amended Defence it states that Mr Kimani was not an employee of the Ministry of Constitution and Home Aairs and also he was not part of the Public Trustee fraternity and so it is not clear who allowed him to deal with the estate. 109. That by the time the Public Trustee was seeking approval for subdivision it shows that on record there was no Court approval. The letter at page 42 was written on 15/01/1982 and the subdivision was registered on 30/11/1981. 110. At this point the witness was stood down due to health challenges and the Court allowed DW 8 and 9 to testify. 111. DW8 / 9 George Gitonga Land Registrar testied that entry No. 2 was made the year 1969 and the Grant made on 2/03/1982. That the document at page 46 conrm the date of the grant and entry No. 4 is dated 30/11/1981 but at page 290 the Entry No. 4 is dated 30/10/1982 and so the dates do not tally and neither does the year tally. Entry No. 5 which is a transfer to Nelson Waruinge Kimani show date as 30/11/1982 but the one at page 290 show the transfer to have been made on 30/10/1982. Thus, the document at page 36 dier with the date the entry was done and when the document at page 290 was produced there was no objection raised. 112. That for registration the Land Registry uses the date of presentation to be right for time to start running and the entry is made with the date of presentation. That at page 113 there is a transfer registered on 30/10/1982 and Entry No. 5 which is a transfer to Nelson Waruinge does not tally with transfer since it is 30/11/1982. But the entry at page 290 entry No. 5 tallies with transfer made as recorded at page 113. 113. That at page 287/9 the Assent is dated 20/05/1982 and the Registration is dated 30/10/1982. It is his testimony that an Assent under Registration of Titles Act is where a beneciary who has succeeded a proprietor can deal with a property inherited. So, this Assent was lodged and registered as presented at page 287. He testied that for entry No. 3 the Grant of Letters of Administration must be presented before the entry is made that what is needed in a Certicate of Conrmation of Grant but he pointed out that in all the entries highlighted above there is no Certicate of Conrmation of Grant. He also told the Court that where a Court issues an order and it is presented for registration then that entry of a Court order will appear and that looking at the entries there is no Conrmation of Grant nor a Court order registered. 114. Further, that for Entry No. 5 the Assent supported this entry and there is no Court order as is required under Section 14 of the Public Trustee Act. On further cross-examination about the document at page 290 he told the Court the he did not know if the document at page 290 is complete. 115. He further stated that at page 29 there is an application for subdivision dated 11/12/1980 but there is no any Conrmed Grant nor a Court order. That the letterhead being used for the application is one for the Ministry of Constitutional and Home Aairs although Zennat Ali for whom the letter is written is not an employee of the Ministry. 116. It is his testimony that the document at page 102 describes Zennat Ali as the ultimate beneciary but there is no Conrmed Grant as at 28/07/1980. At the same time there is no Conrmed Grant for Public Trustee to sell nor Court order. He further stated that the entries at page 46 and page 290 do not tally. At this point the Defendants’ Counsels sought the Court’s indulgence to step down the witness https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 14

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to allow the Muslim brothers who were fasting to take a break in order to go for prayers in order to break their fast. 117. Hearing resumed on 26/03/2025 with the cross-examination of DW 7 Dina Abuka who started by stating that she was a State Counsel in the oce of the Public Trustee and that the oce of the Attorney General is an Umbrella and the Public Trustee is a department under the Attorney General’s oce. She testied since the sale agreement was signed by ocers in the Public Trustee oce then the Public Trustee cannot claim that he was not aware of the transaction. 118. That the Grant was issued on 21/03/1979 at this time Cap 160 had not come into force. The application law was ITPA 1881 Act and she stated that she had not familiarized with the Act to know whether a Conrmation of Grant was necessary. 119. Upon further cross-examination by Mr Kipngetich she stated that Assent at pages 287 to 289 is from the oce of the Public Trustee by the Public Trustee who was already registered as the custodian of the suit property. The letter written by Mr Malombo the Deputy Chief State Counsel based at the Public Trustee oce dated 25/09/2019 directed that there should be no interference with the entry No. 6-15 but this letter could not stop entries that had already been made. 120. The entry No. 13 at page 48 cannot be explained according to the DW7 nor can it be impeached. The transferee is Reuben Kipkemoi on 9/09/1994 but according DW7 they do not have a record of entry No. 13 in their records and they questioned this entry. Upon further cross-examination by Counsel for the 4th Defendant, Mr. Gitonga, she stated that she was not aware that the there was no provision for conrmation of grant under Section 4 of the Probate and Administration Act of 1881 where it was provided that an administrator had all the power to deal with the property of the deceased. On Section 90 of the ITPA which also gives power to an Executor and Administrator to dispose of part or all the property of a deceased person. She drew the Court’s attention to Section 3A of the Probate Act which she testied states that the administrator may not alienate the suit property although the section does not talk about vesting the property in a beneciary. 121. She stated that Mr Gatonye was a State Counsel and he acted for the buyer yet he was a State Counsel who was in the employment of the Attorney General and was acting for the Public Trustee. That paragraph 8 on her Statement of Defence at page 282 refers to the assent to Zenat Ali and so the Public Trustee would not have a problem with the 4th Defendant’s purchase of a portion of LR 11876/2 which was transferred. 122. She told the Court that the Plaintis have never made an application to revoke the Public Trustee as an administrator and neither have they asked for an inventory. That the law gives them power to crossexamine any witnesses and interview beneciaries but since the dates of the transfers the Public Trustee has never interviewed nor cross-examined any witness in this matter. She also stated that Zenat was a beneciary of the Estate and during her lifetime no complaint was made to the Public Trustee about her. 123. On re-examination she conrmed that it is not the Public Trustee who wrote the letter for subdivision by NW Kimani but as per the letter at page 29 he had no authority to apply for subdivision this was tantamount to intermeddling. That where a deceased person leaves minors the Public Trustee creates a trust and the Public Trustee holds in trust the property but where there is an adult say a surviving spouse she holds in trust for the minors since she has a life interest. 124. She further testied that Page 102 paragraph 1 states that the suit property being sold and property was divided into two portions that is LR 11876/1 and 11876/2 but the sale agreement does not mention any of the two portions as subject of the sale agreement at page 102. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 15

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125. DW7 told the Court that whereas Zenat Ali acknowledges having been paid the purchase price as per the letter at page 297 she does not say the money was paid to the Public Trustee and there is a Counterclaim led stating the property was sold to Mr Kimani by the Public Trustee yet money was paid to Zenat Ali so the 1st Defendant should claim from the Estate of Zenat Ali and not from the Public Trustee. According to her since the property sold was undened as stated in the sale agreement this makes the agreement invalid and so the transfer to Mr Kimani was invalid too. 126. She also testied that the Public Trustee had led documents in relation to the Plaint and Counterclaim with regard to LR 11876. She reiterated that for the sale agreement she noted that Mr Gatonye acted for the Public Trustee and seller and purchaser and this was wrong. Further that there is a Search Certicate at page 46 and another at page 290 the one at page 46 shows entry No. 5 which is a transfer made on 30/11/1982 to Mr Kimani whereas the search at page 290 shows Entry No. 5 for another transfer dated 30/10/1982. She states that since there are two dierent searches to the same property the existence to the two points to fraud. 127. Concerning the minutes produced at pages 32-36 she stated that the property in dispute was not part of the property discussed and so she saw no point of the Public Trustee ling the minutes referred to. She reiterated the fact that the Public Trustee never transferred the suit property to Zennat Ali and also not to the 1st Defendant. With this the 7th Defendant closed its case. Resumption of Cross-Examination of the 8th and 9th Defendant’s witness 128. DW8/9 George Gitonga Land Registrar testied upon being cross-examined by the Counsel for the 1st Defendant Mr Moturi that a seller cannot sell land without subdividing it if he is only selling a portion. That a certicate of approval for subdivision for the suit property which is situate in Nairobi need to be issued by Nairobi City County. On the two searches he testied that the one that depicts what is in their le is the one at page 290. 129. On further cross-examination she testied the entry for Reuben Yegon. She reiterated what she had testied about the process and concluded by stating that the Search Certicates are two and this means there is a problem with this the 8th and 9th Defendant closed their case. 130. The Court gave a time frame for the ling of submissions and the Plaintis, the 1st, 3rd, 4th 5th, 6th, 7th, 8th and 9th Defendants led submissions. None were led by the 2nd Defendant who had neither entered appearance nor led a Defence. 131. A look at the submissions led show that parties chose to reiterate their testimonies through their Counsels. The gist of the 1st to 6th Plaintis submissions dated 13/05/2025 is that there was no fraud, that the Plaintis had locus standi to le the suit since they had obtained an ad litem from the Succession Court. Further they sought cancellation of the titles for the 1st to 6th Defendants submitting that the same were obtained from a process that was illegal, irregular and fraudulent. 132. The Plaintis also submitted on the limitation of time which I do not see the need of repeating since it was already determined through the Ruling delivered by my brother Justice Samson Okongo I have already referred to it. 133. At the risk of not repeating verbatim what they already testied about, they identied seven issues for determination and the Court considered them in the Judgment. They also relied on myriad of cases which are also considered. 134. The gist of the 1st Defendant’s submissions dated 11/06/2025 is that this Court lacks jurisdiction since the suit is time-barred and a claim for fraud cannot lie with a Court that lacks jurisdiction. It was also https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 16

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his submission that special condition 1 in the Certicate of Title was the task of the vendor to obtain consent to subdivide and transfer. The consent herein was to be obtained from the President by the Public Trustee. In his submission he relied on myriad of cases which I have considered. 135. The 3rd Defendant in his submissions dated 15/05/2025 also raised the issue of the suit being timebarred since according to him the cause of action arose in 1994 when he purchased the suit property yet the Plaintis led the instant suit in 2019. He also submitted that the Plaintis lack locus standi. According to him he submitted that he acquired the suit property legally as he had already testied and that he was not involved in any fraudulent actions. 136. He also submitted that he conducted due diligence and he is a Bonade purchaser for value. 137. For the 4th Defendant he led submissions dated 7/08/2025 and he raised the issue of jurisdiction and stated that the Environment and Land Court did not have jurisdiction to handle Succession matters that it was the High Court. He further submitted on the fact that Zenat Ali is not a party to the suit and any actions by her as an administrator are also void. 138. He reiterated the issue of limitation and stated that the Plainti’s suit is time-barred as per Section 7 of Limitations of Actions Act since the action arises from a subdivision created on 10/10/1982 transferred to Zenat Ali and registered on the same day before being transferred to 2nd Defendant on 29/06/1988. 139. On the part of the 7th Defendant, he led their submissions dated 22/04/2025 and the gist of his submission is whether the Plaintis proved fraud and also whether the transfer of the suit properties LR 11876/1 and LR 11876/2 was legal. 140. Lastly on their part the 8th and 9th Defendants led their undated submissions and they focused on the issue of limitation and submitted that the suit is time-barred and that the sale and transfer of the suit property was not fraudulent. 141. Both the Plaintis’ Counsel and the Defendants’ Counsels relied on a myriad of Court cases which were useful in assisting the Court to arrive at its decision. 142. This was a very emotive case where tempers sometimes ared but I would like to honestly thank all Counsels for conducting themselves with utmost respect and decorum. This was useful in enabling the hearing proceed with minimal hitches. Analysis and Determination 143. Following closure of the trial the Plaintis’ and the Defendants’ cases the parties led written submissions. I have reviewed and considered the Amended Plaint, the Amended Defence and Counter claim, oral testimonies, evidence and submissions of the parties to this suit, the following issues arise for determination: a. Whether the suit land was fraudulently transferred to the 1st Defendants through entries 4-15 b. Whether the 1st Defendant has proved his case and is entitled to the prayers sought in the Counter Claim; c. Whether cancellation orders can issue d. Whether eviction orders can issue e. Whether an order of permanent injunction can issue https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 17

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f. Is the 5th and 6th Defendants entitled to the orders sought in the Notice to Co-Defendant against the 2nd, 8th and 9th Defendants? g. Whether an order for specic damages at current market value can issue h. Who should bear the costs of the suit and the counter-claim 144. Before I start my analysis let me just say that this is one case that has exposed the corrupt soft belly that exists in our land system in this country. The intrigues of this whole case has left me wondering why Kenyans do what they do to each other. I found myself wondering aloud why those charged with the responsibility of taking care of children orphaned by death are so heartless even where their deceased parent left behind wealth which can be well managed to ensure the orphaned children live a descent life. 145. I also want to provide clarity on four other issues that seem to run as a thread in all the submissions of the Defendants. The rst is the issue of jurisdiction, the issue of locus standi, the issue of limitation of time and the issue of fraud. My brother Justice Okongo Samson in the Ruling delivered on 24/06/2021 addressed these issues that were the subject in the Notice of Motion Application led. I will therefore not bother to spend time on issues already deliberated on and a decision was already issued. There is no appeal nor review of the said orders. 146. I will however expound further on the issue of limitation based on what my brother Justice Okongo already decreed. 147. The Defendants have raised the question of time limitation based on the undisputed fact that the subject matter of the suit is the land transactions that purported to the suit property to the 1st to 6th Defendants via the actions of the Public Trustee. A question of limitation is a question of law as it addresses the Court’s jurisdiction because where a claim is time barred, a Court has no jurisdiction to determine it. In the case of Bosire Ongero v Royal Media Services [2015] eKLR, the Court held that the question of limitation goes to the jurisdiction of the Court hence if a matter is statute barred, the Court has no jurisdiction to entertain it. 148. Section 7 provides for the limitation period for a claim for land. As the Plaintis’ claim herein is a claim for land, the applicable law is Section 7 of the Limitation of Actions Act. 149. Section 7 of the Limitation of Actions Act provides for the time within which a claim for land ought to be led as follows; “ An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him, or, if it rst accrued to some person through whom he claims, to that person.” 150. However, the limitation period is extended in several instances including where fraud or mistake is pleaded. Therefore, where a cause of action is based on fraud, the Limitation of Actions Act provides for extension of the limitation period. Section 26 of the Limitation of Actions Act provides as follows; “ Extension of limitation period in case of fraud or mistake. Where, in the case of an action for which a period of limitation is prescribed, either— a. The action is based upon the fraud of the Defendant or his agent, or of any person through whom he claims or his agent; or b. The right of action is concealed by the fraud of any such person as aforesaid; or https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 18

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c. The action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the Plainti has discovered the fraud or the mistake or could with reasonable diligence have discovered it: Provided that this section does not enable an action to be brought to recover, or enforce any mortgage upon, or set aside any transaction aecting, any property which— 151. i. In the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or ii. In the case of mistake, has been purchased for valuable consideration, after the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.” In the case of Justus Tureti Obara v Peter Koipeitai [2014] eKLR while discussing the import of Section 26 of the Limitation of Actions Act, the Court held as follows; “ I am in agreement with the Plainti’s submission that the Plainti’s claim is for the recovery of the suit property from the Defendant and as such the limitation period for such a claim is 12 years as provided for in section 7 of the Limitation of Actions Act, Cap 22, Laws of Kenya. I would wish to point out further that the Plainti’s case although for recovery of land is based on fraud. The proviso to section 26 (a) of the Limitation of Actions Act, Cap 22, Laws of Kenya provides that where an action is based on the fraud of the Defendant or his agent, the period of limitation does not begin to run until the Plainti has discovered the fraud or could with reasonable diligence have discovered it. As to when the Plainti herein discovered the fraud alleged against the Defendant is a matter to be ascertained at the trial.” 152. In the instant suit Plaintis’ claim is based on fraud which is alleged to have been discovered as per the 7th Defendant’s Statement of Defence in 2019. The 7th Defendant stated at paragraph 20 of the Amended Statement of Defence that the oce has taken all steps to ensure the Plaintis and other beneciaries’ interest are taken care of including investigating allegations of fraud by writing to the 8th Defendant through the letters dated 25th September 2019 and 23rd November 2019. It is therefore clear that the fraud was detected by the Plaintis in 2019 and also upon detecting the fraud they led the instant suit. Therefore, since Section 26 of the Limitation of Actions Act has the eect of extending time even where it has lapsed where the claim is based on fraud which was alleged to have been discovered later; the period of limitation starts running from the date of discovery of the fraud. It is my considered opinion which is based on many decisions from the Courts that the claim is not time barred. Whether the suit land was fraudulently transferred? 153. It is undisputed that the suit land belonged to Ali Mohammed Zaid who died intestate on 26/05/1973, which means therefore that the suit property was to devolve to his dependants through a transmission process. The transmission process started by the Public Trustee, 7th Defendant herein being appointed the administrator of the Estate vide Nairobi High Court Probate & Administration Cause No. 115 of 1979. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 19

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154. Section 8 of the Public Trustee Act states:“ “ (1) Where the estate of a deceased person consists of property of an estimated gross value not exceeding three million and the deceased has died intestate or left a will in such circumstances that the Public Trustee may apply for a grant of probate or letters of administration pursuant to section 6, the Public Trustee may take possession of, and administer the estate of, the deceased person without making an application under the Law of Succession Act (Cap. 160), to the Court for probate or letters of administration, as the case may be, and no Court fees shall be chargeable in respect of any such estate. 1A) Where the Public Trustee takes possession of an estate under subsection (1), the Public Trustee shall draw a Certicate of Summary Administration entitling him or her to administer and distribute the estate.” (Emphasis Added) 155. From the provision above if the Public Trustee took possession of the Late Ali Mohammed Zaid’s Estate he was to draw a certicate of summary of administration entitling him to administer and distribute the Estate. DW7 told the Court that the person who made an application for sub-division of the late Ali Mohammed Zaid’s land which is the suit property was NW. Kimani, the 1st Defendant and NOT the Public Trustee. Infact the Public Trustee submitted that the said NW Kimani was not known to him and that the actions that he engaged in to acquire LR 11876/1 were illegal and irregular. He told the Court that the alleged assent document dated 30th October 1982 purporting to transfer LR 11876/1 to the 1st Defendant was NOT executed by the Public Trustee or any of its Ocers. DW7 further in their testimony before the Court stated that Nelson Waruinge Kimani as per the letter at page 29 of the bundle had no authority to apply for subdivision. Also, the Letter of Agreement dated 2/03/1982 came before the Letter at page 42 which again was written by DW1 N.W Kimani requesting for subdivision dated 15/01/1982. 156. DW7 told the Court that where a deceased leaves minors the Public Trustee creates a trust and the Public Trustee hold in Trust the property but that where there is an adult say a surviving spouse, then that surviving spouse holds in trust for the minors since she has a life interest – [Emphasis added]. 157. At the time of his death the deceased left behind three (3) widows (two now deceased and one surviving as at the time of the instant suit) and ten children who were all minors. There was no presentation in Court by the Public Trustee of a Trust created for the minors neither a trustee for the surviving spouse(s) with a life interest in the suit property. The Public Trustee in his submissions cleary stated that the 1st Defendant’s transfer was illegal and irregular. 158. He however stated that he had transferred to Zenat Ali LR 11876/2 which emanated from the illegal and irregular act of the 1st Defendant. One wonders how a product of an illegal and irregular action can become validated just because it is passed to a surviving spouse. The Public Trustee had submitted that vide the Assent made on 20th Day of May 1982, LR 11876/2 was transmitted to Zenat Ali, one of the deceased’s widows and so the Plainti’s claim over the same is not valid. So, the Public Trustee was all along aware that Zenat was only one of the deceased’s widows and he purported to give vide an assent LR 11876/2 to one widow and worse still arising from an illegal and irregular transfer which he the Public Trustee did not assent to undertaken by the 1st Defendant NW Kimani. 159. Now let me hasten to add that the deceased herein died in 1973, the Public Trustee was issued with Grant to administer the Estate in 1979. Going by Section 2(2) of the Law of Succession Act, the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 20

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substantive law to govern distribution of his Estate ought to be the law that was in force prior to the Law of Succession Act coming into force, which largely meant African Customary Law and the Indian Probate and Administration Act of 1881. However, on administration, Section 2(2) provides that the same should be based on Part VII of the Law of Succession Act, so long as administration is sought after 1st July 1981, when the Law of Succession Act came into force. It is in that context that Section 71(2), which is in Part VII, has to be complied with. 160. This means that the Assent by the Public Trustee to Zenat Ali on 20th May 1982 was subject to the administration law of 1st July 1981 which is the Succession Act. Clearly Section 45 of the said Act forbade intermeddling in the Estate of the deceased and that meant that the Administrator who in this case is the Public Trustee had to adhere to the law in operation. It is therefore not enough that the Public Trustee has attempted to distance himself from the responsibility by stating that his work was done after he passed the property to Zenat Ali. 161. The question that was not answered by the Public Trustee despite the spirited attempt to present the transfer to Zenat Ali as emanating from his oce is this – if the LR 11876/2 emanated from an irregular and illegal subdivision how clean is root of that title? My answer is that the root of title is messed up, that title is not a good one its root is tainted. Further, the Public Trustee purported to state that since he had passed over LR 11876/2 albeit illegally to Zenat Ali he was now discharged from his role as administrator. 162. Now, the Public Trustee was not just a Trustee for a portion of the land LR 11876 he was a trustee for the entire suit property as per the Letters of Administration granted to the oce in 1979. Therefore, any process that sought to alienate the said suit property was his responsibility. His failure to discharge his duties as required by law is not only an abuse of his legal responsibility but an immoral act of negligence for which the oce needs to be held responsible and the respective ocers held personally liable for any cost that will accrue from this act of out-right professional negligence. As the administrator he needed to hand over the suit property to ALL beneciaries of Ali Mohamed Zaid. He failed the widows and children of the late Ali Mohammed Zaid. Again, this is not for me to determine that is for another forum(s). 163. After the demise of Ali Mohammed, the beneciaries and heirs only held one meeting dated 2/03/1978 where the suit property herein was not part of the properties discussed for administration, distribution and or sale. Thus, there is no document that was presented by any party to show that the 5 acres of LR 11876 was apportioned to any surviving spouse and/or children for proprietorship as a result of that meeting. 164. Thus, the transfer of a portion of the suit property to 1st Defendant on 28/07/1980 and approved subdivision of 4/03/1982 is illegal since there was no beneciaries’ meeting that sanctioned the said sale. And this applies to the transfer to Zenat Ali and subsequent sale to the 2nd Defendant Micheal Ndegwa Kingori on 29/06/1988 of LR No. 11876/2. Who subsequently subdivided the remaining 2.5 acres into portions and subsequently sold to the 3rd Defendant Reuben Kipkemoi Yegon on 22/08/1994? 165. In the case of Daudi Kiptugen v Commissioner of Lands & 4 others [2015] eKLR the Court held that; “ … the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process, the title itself cannot be a good title. If this were not the position then all one would need to do is to manufacture a Lease or a Certicate of title at a backyard or the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 21

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corner of a dingy street, and by virtue thereof, claim to be the rightful proprietor of the land indicated therein.” 166. It is the 3rd Defendant who later sold parcel 11876/4 to the 4th Defendant Concordia Building and Civil Engineering. The 2nd Defendant also sold the remaining portion of the subdivided parcel LR 11876/5 to James Murimi Wanjohi, the 5th Defendant and James Kahugi, the 6th Defendant. 167. All these entries have been disowned by the Public Trustee vide the letters written which have been produced vide the testimony of DW7. 168. Between 1979 and 1980, according to the law, the Public Trustee could distribute an Estate under the Public Trustee Act (Cap. 168) by rst obtaining a grant of representation from the Court as per provided for under Section 6(3) of the Act, as it was then, and later this is provided for under the Law of Succession Act (Cap. 160), to administer the Estate. For estates without an executor or administrator, the Public Trustee would apply to the Court for a Grant under Section 6, which allowed them to administer the Estate and distribute land. 169. The 1st to 6th Defendants have argued that the Law of Succession Act was not in operation at the initiation of the purchase of the suit property since the Grant was issued on 21/03/1979 and the Succession Act into force in 1981. It is their averment that one of the beneciaries of the Estate Zenat Ali who was a wife of the deceased had the right in disposing of the suit property using the Indian Transfer of Property Act of 1881. 170. This is far for the truth because the only leeway the Public Trustee had was to appoint the surviving spouse (although at the time of death there were three spouses) in this case Zenat to hold in trust the suit property having a life interest in the suit property. This means that the said Zenat could not alienate the suit property through sale, transfer, charge, mortgage or any form of alienation. Therefore, this being the case the Public Trustee should have been the one who should have distributed the Estate of the Late Ali Mohammed Zaid and not Zenat Ali. Again, this is an issue to be litigated at dierent forum 171. From the documents presented by the 1st Defendant I noted that he applied for approval for subdivision signing the letter on behalf of Zenat Ali. There is nowhere in the whole of this process of alienation of the suit property LR 11876 where the 1st Defendant was identied as an administrator or a beneciary and therefore the action of the 1st Defendant applying for subdivision is not supported by any legal process that would have passed the suit property wholly or partially to him thus rendering his actions a nullity. 172. Therefore, it is my opinion based on established legal precedents that the 1st Defendant has absolutely no role in applying for subdivision of the suit property of a deceased person where he is not a beneciary. Infact the act of signing o letters on behalf of Zenat Ali who was not even an administrator is illegal and the resulting actions are null and void ab initio. 173. The Plaintis testied that the Defendants committed fraudulent activities in the sub-division of the suit land. The particulars were enumerated in paragraphs 40 to 50 of the Plaint. A claim for fraud must be specically pleaded and I am satised that the Plaintis have laid this out clearly in the above referenced paragraphs. 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.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 22

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174. Allegations of fraud are grave and as held by the Court of Appeal in Mirko Blaeterman (Suing through his Power of Attorney - Shabir Hatim Ali) & another v David Mwangi Muiruri & 2 Others [2015] eKLR where it held; “ It must also be remembered that allegations of fraud must be strictly proved, so that whilst a standard of proof beyond reasonable doubt is not required, nevertheless a standard more than mere balance of probabilities is called for. (See R. G. Patel v. Lalji Makanji (1957) EA 314). Such a standard of proof can hardly be satised solely by contested adavit evidence, which has not been subjected to cross-examination.” 175. Similarly in Kinyanjui Kamau vs George Kamau [2015] eKLR, the Court held:… It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: “...We start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.” 176. The onus rests on the Plaintis to lead evidence as to the existence of fraud. Section 109 of the Evidence Act Cap 80, Laws of Kenya, places the burden of proof on the Plaintis herein. The Section provides that: “ The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie in a particular person.” 177. The need to prove and the burden of proof of such allegations of forgery, fraud, falsehood or dishonesty was elaborated by the Court in Christopher Ndaru Kagina vs. Esther Mbandi Kagina & Another [2016] eKLR where the Court stated that; “ It is trite law that he who alleges fraud must prove fraud. Allegations of fraud must strictly be proved. Great care needs to be taken in pleading allegations of fraud or dishonesty. In particular, the pleader needs to be sure that there is sucient evidence to justify the allegations. In the Case Central Bank of Kenya Ltd -Vs- Trust Bank Ltd & 4 Others [26] the Court of Appeal in considering the standard of proof required where fraud is alleged stated that fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof is much heavier on the person alleging than in an ordinary Civil Case. The burden of proof lies on the Applicant in establishing the fraud that he alleges. In Belmont Finance Corporation Ltd. v. Williams Furniture Ltd [27] Buckley L.J. said: “An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the rules and it is a well-recognized rule of practice. This does not import that the word ‘fraud’ or the word ‘dishonesty’ must be necessarily used. The facts alleged may suciently demonstrate that dishonesty is allegedly involved, but where the facts are complicated this may not be so clear, and in such a case it is incumbent upon the pleader to make it clear when dishonesty is alleged. If he uses language which is equivocal, rendering it doubtful whether he is in fact relying on the alleged dishonesty of the transaction, this will be fatal; the allegation of its dishonest nature will not have been pleaded with sucient clarity.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 23

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178. I am persuaded that the Plaintis have discharged this burden of proof. I note that the DW8/9 tried to wade o the claim of fraud by producing the document at page 290 and comparing it with entries made with the document at page 46. Now Entry No. 4 of the document produced at page 290 produced by DW 8/9 Land Registrar George Gitonga state – “Transfer to Nelson Wariunge Kimani 1023 LR No. 1876/1……….” Whereas the same Entry No.4 at page 46 state – “Transfer to Nelson Waruinge Kimani 1023 LR No. 11876/1 ………..”clearly showing that what the Registrar presented purporting to be documents from his oce are referring to a dierent suit property. If the intention was to convince the Court that they have the proper records then this has opped because the suit property referred to is not LR 11876/1. 179. The Land Registration Number that the Registrar sought to rely on is completely dierent from what the suit property is and I am saddened that a whole Senior Ocer of the Government can come to Court solely to mislead the Court with cooked up records and even allege that those are the records they have. 180. Further this entry No. 4 which is reected as 842 had a caveat registered against it yet the entry at page 290 does not indicate the caveat. It has conveniently omitted the caveat entry and equally the stamp duty stamps made for transfer entries are missing unlike the entry No. 5 at page 46. 181. I am thus fully persuaded vide the presentation of the documents for and against the claim that the Plaintis managed to proof fraud on the part of the Defendants. 182. Of most importance, the 7th Defendant in their pleadings and in their written submissions admitted to the irregularities witnessed in the documentation and stated albeit feebly that they were not party to the illegalities and irregularities. I say feebly because the oce was the one in charge. Furthermore, what came out from the testimonies is that despite the Minutes of the ONLY meeting that took place on 2/03/1978 showing that the suit property herein was not a subject of discussion in the said meeting held and chaired by the Public Trustee for Succession, the 7th Defendant seemed to want to claim that the said meeting resolved to have the property sold which is not a true reection of the resolution of the meeting. Also, all the Plaintis were minors when the said meeting was held and they could not have given consent to the disposal of the suit property. 183. It is therefore obvious that ALL the Defendants were barred by the provisions of Section 45 of the Law of Succession Act from interfering with the Estate of the deceased. There was no explanation of how land moved from the deceased to the 2nd Defendant on 29th June 1988. At this time there was the Succession Act in operation. 184. Zenat Ali’s transfer the suit property to one Micheal Ndegwa Kingori whose action precipitated the movement and transfer of various parcels of land from the original 11876 to 11876/1 and 11876/2 to other portions that are now claimed by the 3rd, 4th, 5th and 6th Defendants is tainted with irregularity and illegality which can only point to one thing – fraud. 185. I will rely on the case of Funzi Development Ltd & Others v County Council of Kwale, Mombasa Civil Appeal No 252 of 2005 [2014] eKLR where the Court of Appeal, dierently constituted 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 give its seal of approval to an illegal or irregularly obtained title.” [Emphasis added.] https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 24

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186. From the evidence adduced by the Defendants I am not persuaded that the claim of innocent purchaser for value can hold. As stated herein above it is not dicult for this Court to conclude that there was misrepresentation, which misrepresentation resulted in transfer of land to the Defendants without following the due process. Therefore, the Court nds and holds that the Plaintis have proved on a balance of probability that there was fraud and in the face of fraudulent processes leading to obtaining of title illegally, the claim for innocent purchaser for value cannot hold. 187. I am satised on the standard of probability that the Plaintis have proved their case. The balance of probability standard means that a Court is satised an event occurred as stated by Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 that; “ The balance of probability standard means that a Court is satised an event occurred if the Court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the Court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the Court concludes that the allegation is established on the balance of probability …..” 188. The position is also that the evidence must carry a reasonable degree of probability, but not so high as is required in a Criminal case. In Palace Investment Ltd v Georey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that: “ Denning J, in Miller v Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not. This burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.” 189. One last issue on the involvement of Zenat Ali and writing of letters to Nairobi County Council for subdivision signed o for Zenat by one NW Kimani on the Ministry of Constitutional and Home Aairs letterhead is still a mystery. How did the 1st Defendant take over the role so reserved for the Public Trustee he was supposed to be a purchaser? 190. What however stands out though is that the transaction that was purportedly signed o by Zenat Ali was infact a fraud since Zenat Ali had no role in the Ministry of Constitutional Aairs and therefore she could not have been writing to the Nairobi City Council seeking approval for subdivision of a suit property she was not an administrator to. The right person who should have made such a request if at all is the Public Trustee. 191. Therefore my conclusion which is informed by the law and a plethora of Court decisions is that the suit property was fraudulently transferred by none other than the 1st Defendant in collusion with the oce of the Public Trustee and the Land Registrar and this action fueled a ripple eect of subsequent illegal land transactions that landed the 2nd, 3rd, 4th, 5th and 6th Defendants in this illegally crafted scheme to defraud the Plaintis of their inheritance with connivance of ocers from the 7th, 8th and 9th Defendants oces. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 25

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Whether the 1st Defendant has proved his case and is entitled to the prayers sought in the Counter Claim; 192. From the analysis hereabove the Court has found that the Plaintis have proved their case on a balance of probability on fraud. It therefore follows that the 1st Defendant’s Counter-claim is unmerited. Whether cancellation orders can issue 193. A certicate of title is conclusive evidence of ownership and is prima facie evidence that the registered proprietor is the owner. Whereas Section 24 of the Land Registration Act gives the registered proprietor absolute rights over land, Section 26 of the said Act gives sanctity to title and makes provisions when such title can be cancelled or revoked. Section 26(1) provides:“ The certicate 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 certicate, 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 certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 194. In the case of Kukan & Another (Administrators of the Estate of the Late Jason Kukan Lila) -vsKibutha (Civil Appeal 339 of 2018) [2023] KECA 742 (KLR) this Court of Appeal armed the standards of due diligence laid out by Mutungi, J. in the case of Esther Ndegi Njiru & Another vs Leonard Gatei [2014] eKLR where the learned Judge held as follows: “ The rampant cases of fraudulent transactions involving title to land has rendered it necessary for legal practitioners dealing with transactions involving land to carry out due diligence that goes beyond merely obtaining a certicate of search. Article 40 (6) of the Constitution removes protection of title to property that is found to have been unlawfully acquired. This provision of the constitution coupled with the provision of section 26(1) (a) and (b) of the Land Registration Act in my view places a responsibility to purchasers of titled properties to ascertain the status of a property beyond carrying out an ocial search. In this era when there are many cases of what has been described as “grabbed public lands” it is essential to endeavour to ascertain the history and/or root of the title.” 195. The Transfer to Micheal Ndegwa Kingori of Land Reference Number 11876/2 was done by Zenat Ali in 1994. Although entry No. 9 at page 47 indicate that transfer to Micheal Ndegwa Kingori was done despite the land having a caveat registered on the land the transfer to him was done on 7/7/1988 this despite the Law of Succession Act Cap 160 having come into being. Soon thereafter the 2nd Defendant subdivided LR 11876/2 into LR 11876/3, 4,5 and LR 11876/6. Interesting in 1994 the Law of Succession Act Cap 160, read in conjunction with the Public Trustee Act, empowers the Public Trustee to sell, dispose of, or deal with a deceased's property with the Court's consent. The Public Trustee's authority stems from an order of the Court, after which they may administer the estate and handle the property by selling or otherwise disposing of it. The Land Registrar is only authorized to process any instrument for the disposition of immovable property after a deceased person, upon production of the Court order and the instrument. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 26

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196. In the instant case, the 2nd Defendant who chose not to enter appearance sold his suit property to the 3rd Defendant who sold it to one to James Wamathai who is not a party in this matter. I do not know why the said James Wamathai was not enjoined by the 4th Defendant who bought the suit property from him. On his part, the 4th Defendant has claimed to be an innocent purchaser without notice of any fraud. In his testimony he went to great lengths to prove that it was an innocent purchaser for value without notice when DW4 its Director submitted in evidence that they had conducted a search. 197. What he however did not tell the Court is why the seller did not provide his KRA PIN which is a key requirement for any transaction in land whereas the 4th Defendant’s Director provided their PIN. Sale of land in Kenya today cannot complete without the seller and the buyer each providing their PIN. The two Agreements for Sale by both Micheal Waweru Kingori and James Wamathai are missing this crucial number/document. This should have raised questions from those who were transacting with these two people. 198. It was held in the case of Republic vs Senior Registrar of Titles Ex-parte Brookside Court Limited (2012) eKLR, that the statutorily, the sanctity of title to land is assured and protected under Section 24, 25 and 26 of the Land Registration Act 2012. 199. I am not in doubt that the Plainti never sold the suit land to the 2nd, 3rd, 4th, 5th and 6th Defendants. The 2nd Defendant who appears to have engineered the whole transaction never entered appearance as already stated the 1st Defendant on his part has been charged with a Criminal oence. The criminal trial is still ongoing and the less I say about it the better, for the accused in the said case are entitled to the constitutional right of being presumed innocent until proven guilty. Or even if the case is determined it is not in place to comment on the ndings of a Court of competent jurisdiction in a matter. 200. Nevertheless, the fact of the matter is that now the 4th Defendant is the registered proprietor of a portion of the suit land. To enable me cancel his title as sought by the Plaintis, I have to be convinced that the provisions of Section 26 of the Land Registration Act, Act No.3 of 2012 have been met. Section 26 is drawn in the terms referred to hereinabove. 201. As may be observed, the law is extremely protective of title and provides only two instances for the challenge of title. The rst is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 202. The evidence in this case puts no one in doubt that the title to the 1st and 2nd Defendants were obtained illegally, unprocedurally or through a corrupt scheme. The documents that conveyed title to the 2nd Defendant were illegal. The title could not therefore have been obtained legally or procedurally. I am satised that the provisions of Section 26 (1) (b) have been met and that the title of the 2nd Defendant is liable to be cancelled. 203. It is dicult to envision how all this may have happened if the 7th, 8th and 9th Defendants were vigilant. 204. The Court is aware of the attribute of Section 26(1) (a) and (b) of the Land Registration Act which provides that a Title to land shall not be absolute and indefeasible because it can be impeached where it is shown to have been obtained through fraud, misrepresentation, illegally, un-procedurally or through a corrupt scheme. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 27

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205. The Court of Appeal in the case in Jacob Wekesa Bokoko Balongo vs. Kincho Olokio Adeya & another [2020] eKLR held as follows on the importance of deciphering the historical acquisition of title: “ The historical background to the acquisition of the title is as good as the title itself. How else, for example, can a person seeking to impugn or impeach the title on the grounds of fraud, misrepresentation or it having been obtained unprocedurally or through corrupt means do so without placing the title in its historical context? On the ground of indefeasibility of title, it was urged that the trial judge erred in failing to nd that the appellant’s title to the suit land was indefeasible… In the persuasive case of Fahiye & 2 others – v- Omar & 4 others [201] 2KLR, 224, it was held that indefeasibility of title is not absolute particularly where the whole transaction was void. In Milankumar Shah and 2 Others vs. City Council of Nairobi & Attorney General (Nairobi HCC Suit No. 1024 of 2005 (0S), it was correctly pointed out that: “The concept of absolute and indefeasible ownership of land cannot be clothed with legal and constitutional protection if the interest was acquired through fraud, misrepresentation, illegality, unprocedural ways or corrupt schemes. This concept cannot be used to sanitize the commissioner if it allocates or issues title in such manner. In the case of Champaklal Ramji Shah & 3 Anors –v- AG & Anor, HCCC No. 145 of 1997, it was held that the Court has a duty to examine the process of acquisition of such title and if it determines that there is an illegality, should nullify the titles as required.” 206. Indeed, where the registered proprietor’s root title was under challenge, it was not enough to dangle the instrument of title as proof of ownership, 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. (See the Supreme Court decision in Dina Management Limited vs. County Government of Mombasa & 5 others [2023] KESC 30 (KLR). 207. In this case based on both oral and documentary evidence adduced; I nd that indeed the title held by the 2nd Defendant was procured fraudulently the same having not been obtained from the Public Trustee who was the administrator but from the Zenat Ali who had no authority to transfer the suit property. Indeed in this regard, the 3rd Defendant herein did not have a good title to pass to the 4th Defendant. 208. Having found that the 2nd Defendant had no good title to pass can it then be said that the 4th Defendant was an innocent purchaser without notice of any fraud? 209. The Court of Appeal in Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v Attorney General & 4 Others [2017] eKLR adopted the decision of the Ugandan Court of Appeal in Katende v Haridar & Company Limited [2008] 2 E.A.173 that weighed in on the denition of an innocent purchaser as follows: “ For the purposes of this appeal, it suces to describe a bona de purchaser as a person who honestly intends to purchase the property oered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona de doctrine, … (he) must prove that: (a) he holds a certicate of title; (b) he purchased the property in good faith;(c)he had no knowledge of the fraud;(d)he purchased for valuable consideration;(e)the vendors had apparent valid title;(f)he purchased without notice of any fraud;(g)he was not party to any fraud.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 28

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210. Hon. Justice Onyancha in Alberta Mae Gacii V Attorney General & 4 Others (2006) eKLR had stated as follows: “ Cursed should be the day when any crook in the streets of Nairobi or any town in this jurisdiction, using forgery, deceit or any kind of fraud, would acquire a legal and valid title deceitfully snatched from a legal registered innocent proprietor. Indeed, cursed would be the way when such a crook would have the legal capability or competence to pass to a third party, innocent or otherwise, a land interest that he does not have even if it were for valuable consideration. For my part, I would want to think that such a time when this Court would be called upon to defend such crooks, has not come and shall never come ....” 211. Whereas in the case of Iqbal Singh Rai vs. Mark Lecchini and the Registrar of Titles, Civil Case No. 1054 of 2001, Hon. Justice Muchelule (as he then was) also opined as follows: “ At the time when the 1stDefendant sought to buy the land in dispute the registered proprietor was the Plainti. There is no dispute that he never dealt with the Plainti in the transaction that followed. The person with whom he dealt was not the registered proprietor of the land in dispute. The person was a fraud who had no claim whatsoever to the land. The consequence is that the 1stDefendant was a purchaser who did not deal with the registered proprietor of the land. Section 23(1) protects ‘title issued to a purchaser upon the transfer or transmission by the proprietor thereof’. The 1stDefendant did not obtain a transfer from the Plainti who was the registered proprietor. He obtained a transfer from a fraudulent person who had no claim to the land. He cannot I nd invoke the provisions of section 23(1) to say he obtained an indefeasible title.” 212. In my view, the conduct of the 3rd, 4th, 5th and 6th Defendants was not of diligent bona de purchasers as described in Katende v Haridar (supra). The Defendants were not illiterate persons, they knew or ought to have known how to go about land transactions; particularly the need for a Letters of Administration from the Administrator of the deceased person’s estate and provisions of the Law of Succession Act Section 45 of the Act on intermeddling in the estate of the deceased. I therefore nd that right from the 1st Defendant through to the 6th Defendants there was none who was an innocent purchaser for value without notice. 213. Having found as above, it is my conclusion that the 4th Defendant could not therefore invoke indefeasibility of title as the transfer of the same to him was null and void since the vendor he bought the suit from James Wamathai did not have a good title either. 214. Having found above that there was fraud in the transfer of title, it follows that the subsequent subdivisions and titles ought to be cancelled. Cancellation of titles maybe done by a Court Order as provided for under Section 80 of the Land Registration Act, or by an Order of Land Registrar as provided by Section 79 of the same Act. Whether eviction orders can issue 215. I am persuaded that an eviction order should issue predicated upon the specic damages based on market rate prayer made by the Plaintis. Meaning that if the specic damages prayer which is granted is not realized based on the market rate then the Plaintis need not revert to Court to seek granting of the order but they will implement the eviction suo motto. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 29

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Whether an order for permanent injunction can issue 216. As already stated herein; the Plaintis have proved that there was fraud in transfer of title of the deceased Ali Mohammed Zaid to the 1st Defendant and any subsequent actions stand nullied following this rst fraudulent act. Thus, the Plaintis are entitled to have the suit title reverted back to its original owner. 217. At page 193 of The Broom’s Maxims of Law - A Selection of legal Maxims : Classied and Illustrated (1864) by Herbert Broom there is a chapter on “Fundamental Legal Principles” discussing this legal maxim : Nullus commodum capere potest de injuria sua propria : No man shall take advantage of his own wrong. “ It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong, and this maxim which is based on elementary principles, is full recognised in Courts of law and equity, and indeed, admits of illustration from every branch of legal procedure. The reasonableness and necessity of the rule being manifest, we shall proceed at once to show it practical application by reference to decided cases; and in the rst place, we may observe, that a man shall not take advantage of how own wrong to gain the favourable interpretation of the law – frustra legis auxilium quaerit qui in legem committit.” 218. Having concluded that the title of the deceased was fraudulently obtained by the 1st and 2nd Defendants it is important to note that the title of the suit properties have been challenged and the Court being persuaded that there was fraud and illegality it follows that the Plaintis’ claim is proven. 219. Thus, the prayer for permanent injunction can issue, being that the late Ali Mohammed Zaid as proved by the Plaintis is the benecial and legal owner of the suit property with all the indefeasible rights, title and interest vested on them by law, then the same are granted with accordance to the provision of Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012. The upshot of it all is that the case by the Plaintis has been well established and hence they are entitled to the reliefs sought. Is the 5th and 6th Defendants are entitled to the orders sought in the Notice to Co-Defendant against the 2nd, 8th and 9th Defendants? 220. On whether the 5th and 6th Defendants are entitled to the orders sought in the Notice to Co-Defendant dated 31/08/2022. I will make reference to their claim noting that the genesis of their claim emanates from their purchase of the suit property from the 2nd Defendant who neither entered appearance nor led any documents. The purchase of LR 11876/3 and LR 11876/5 was followed by issuance of what they term as a valid title from the 8th Defendant. 221. I am thus persuaded that their claim for indemnity and refund of their money against the 2nd and 8th Defendants is deserved. 222. I associate myself with the decision of the Court in the case of John Kimani Njenga v Margaret Wanjiru Kanyiri & 2 Others [2015] eKLR, the Court held that: “ It was argued by Counsel for the 1st Defendant that this claim cannot stand. Frankly, I do not understand the basis of that argument, for the 2nd Defendant is co-Defendant of the 1st Defendant and Order 1 rule 24, does allow for a claim against a co-Defendant. In fact, there is no other way that the 2nd Defendant can seek remedy from the 1st Defendant, other than ling a claim against co-Defendant, which is precisely what was done in this case. The claim that the 2nd Defendant has against the 1st Defendant is squarely related to the claim https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 30

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of the Plainti (emphasis mine). If the Plainti succeeds, then the 2nd Defendant loses the property, and the 2nd Defendant is therefore perfectly entitled to seek indemnity from the 1st Defendant. I have no doubt in my mind that the claim by the 2nd Defendant against the 1st Defendant is properly pleaded and properly on record.” 223. Therefore, Notice of Claim against Co-Defendant dated 31/08/2022 and led by the 5th and 6th Defendants is properly led and I will indeed uphold the prayers since they are neither contested by the Plainti nor the 2nd, 8th and 9th Defendants. The said claim in the Notice of Indemnity remains uncontroverted, and this Court allows the whole claim as stated in the Notice of indemnity dated 31/08/20022. 224. It is this Court’s nding that the Plaintis have proved their case on the required standards of balance of probabilities and are entitled to the orders sought in the amended Plaint. Whether an order for specic damages at current market value can issue. 225. Whereas this Court has been asked to issue an order for specic damages at current market value, alongside orders for cancellation of fraudulently obtained titles and eviction. It is trite that also the Court can award damages for issues like mesne prots (rent) or loss of use during the period the property was illegally occupied, even after an eviction decree is granted. However, such damages are not automatic and must be proven by the claimant to the satisfaction of the Court, as demonstrated in cases where damages were not granted because they were not proven. From my reading of this prayer the reference to the market value seems to suggest that a valuation needs to be undertaken of the entire suit property by an independent valuer so that the market value of the suit property is established to allow for the specic damages relating to the suit property at market value. It follows that this is an award that will be pegged on the valuation. 226. The Plaintis made a prayer for an order for mesne prots as from 30.10.1982 until the determination of the suit. 227. Black’s Law Dictionary, Tenth Edition, denes an action for mesne prots as: “ A law suit seeking damages suered by a landowner who has succeeded in a common law action of ejectment whereby the Plainti may recover for both the use of the land during the wrongful occupation and the costs of ejectment.” 228. The failure by the Plaintis to specically plead and prove the claim for mesne prots means that the same cannot be allowed by the Court. As was held by the Court of Appeal in the case of Peter Mwangi Mbuthia vs. Samow Edin Osman (2014) eKLR, it is incumbent upon the Plainti to place material before the Court demonstrating how the amount that was claimed for mesne prots was arrived at. The Plainti did not lay a before the Court any gure that they wanted the Court to consider. The Court cannot therefore allow the claim of mesne prots. Who should bear the costs of the suit and the Counter-claim? 229. In regard to costs, the Court is guided by the provisions of Section 27 of the Civil Procedure Act, wherein costs are awarded at the discretion of the Court, and ordinarily costs follow the event. Thus, the Court awards costs of this suit to the Plaintis as against all the Defendants herein. 230. For those reasons, the Plaintis’ suit is allowed as follows:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 31

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a. An order for cancellation of entries 4 to 15 and all other subsequent entries made against the title to land parcel known as LR No. 11876 – Karen and revert to original registration in the name of Ali Mohamed Zaid. b. An order of permanent injunction against the Defendants, their agents, servants and/or assignees from entering, encroaching, trespassing into, transferring and/or otherwise dealing in any way land parcel LR No. 11876 – Karen c. In the alternative I make an order for specic damages at current market value as prayed for by the Plaintis which value must be assessed by an independent valuer appointed by the Plaintis to ensure fairness to be paid for by the Defendants jointly. d. An eviction order against the 1st to 6th Defendants and for the property to be restored back to its original state shall ensue automatically if the parties do not engage in implementing prayer (c) above. The eviction shall be supervised by the Ocer Commanding Police Station where the suit property is located. e. The 1st Defendant’s Counter-claim is hereby dismissed. f. I decline to make an order for mesne prots for the reasons stated therein above. g. I award General damages of Kesh 10,000,000 to the Plaintis given the location of the land and the keeping away of the Plaintis from their land since the demise of the Deceased. h. Costs of this suit together with interest on (g) above is granted to the Plaintis, to be jointly borne by the Defendants and from the date of this Judgement. Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 23RD DAY OF OCTOBER, 2025. .......................... MOGENI J JUDGE In the presence of:Mr. Masake for the 1st Plainti 2nd Plainti – Absent Mr. Asembo for the 3rd Plainti 4th Plainti – Absent 5th Plainti – Absent Ms. Mungania holding brief or Mr. Ochiel for the 6th Plainti Mr. Muturi Njoroge for the 1st Defendant 2nd Defendant – Absent Ms. Kirui holding brief for Mr. Kipkoech for the 3rd Defendant Mr. Mikwa holding brief for Mr. Gitonga for the 4th Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 32

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Ms. Gitari holding brief for Mr. Tollo for 5th and 6th Defendants 7th Defendant – Absent Mr. Motari for 8th and 9th Defendants Mr. Melita – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18675/eng@2025-10-23 33

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