Swaleh v Bakari & another

plainti’s name, one Mohamed Awadh Gawawa (deceased) who was the 1st defendant and father to the 2nd defendant, asked the plainti to lease him a portion of it for cultivation purposes as he endeavoured to get a land parcel elsewhere; the plainti agreed to let the defendant get onto the suit land and cultivate a small portion thereof as the plainti allegedly awaited his children so that a written lease agreement could be entered into. Subsequently Gawawa died in 2003 and the defendants began claiming that the deceased had purchased the suit land. They refused to vacate, and have continued to cultivate on a 1-acre portion thereof. They also lodged a caution against the suit title in 2015 thus preventing the plainti from dealings with the said title. However, the plainti pleads that he never sold Gawawa any part of the suit land. Defence dated 8/8/22. 3. The defendants responded to the claim by denying the plainti’s claim top benecial ownership. They pleaded that they are the benecial owners of the land, the deceased having purchased it from the plainti, and they having resided on the same for years after his demise as admitted by the plainti. They thus aver that the title in the plainti’s name was fraudulently obtained and that the suit is res judicata in view of the conclusion of a previous suit, to wit, ELC Land Case No 138 of 2015 Ali Omar Swaleh V Awadh Shevo Jillo over the same subject matter. Counterclaim dated 8/8/2022. 4. The defendants being the plaintis in the counterclaim reiterate the matters in the defence and aver that in 2004 the deceased informed the plainti of his intention to purchase the suit land; the deceased then paid the entire consideration which was 26,000/= through his brother in law. The defendants then cleared the suit land and commenced cultivation. They have been in possession since then and that the plainti has never been in possession of the land. The plainti never claimed the suit land until the demise of the 1st plainti’s husband. The defendants seek the following orders: “ An order compelling the plainti to execute the transfer document and in event he fails to do so or attend the land control board the deputy registrar of the ELC be mandated to execute all transfer documents in favour of the defendants.” Reply to defence, dated 11/11/2022 5. In this pleading the plainti reiterated the matters in the plaint and denied that the defendants are benecially entitled to the suit land. He also denied that the present suit is res judicata ELC Land Case No 138 of 2015 Ali Omar Swaleh V Awadh Shevo Jillo. Defence to counterclaim, dated 11/11/2022 6. The plainti denied that in 2004 the deceased informed him of the intention to purchase the suit property. He denied that he was given Kshs 28,000/- as purchase price for the suit property or that possession was given after such payment, and alleged that no money whatsoever has been paid to him in any event. He avers that contrary to the defendants’ claims, he used to utilize the land before they claimed it was theirs. 7. In the alternative the plainti averted that the alleged agreement is null and void for want of statutory consents and no proprietary interest passed to the defendants and the counterclaim thus lacks merit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18712/eng@2025-03-03 2

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Reply To Defence To Counterclaim, dated 8/12/2022 8. This pleading simply reiterated the contents of the defendants’ other pleadings analyzed herein above and denies the contents of the plainti’s other pleadings. Evidence of the Parties. Evidence of The Plainti 9. Ali Omar Swaleh the plainti’s son testied in his stead. He adopted his witness statement dated 30/1/2024 and another dated 28/2/2016 as his evidence in chief and produced 8 documents led in court as exhibits. According to him the plainti never sold the land. He only gave it to the deceased to cultivate. His father never informed him of any sale agreement by 1998 yet he was 24 then. In his opinion his father would have involved him if there was one. He stated that the defendants have constructed a mud walled structure and they are utilizing only a portion of the land. 10. On cross-examination he had nothing to say concerning the fact that all the original receipts issued by the Settlement Fund Trustees as well as the letter of oer in the name of his father were in the possession of the defendants; he simply stated that his father has never told him of the fate of the originals; neither did he have any response to the fact that there was a written agreement in the form of a letter addressed to the land and settlement ocer thumb printed by the plainti and the deceased, acknowledging that the land had been sold to the deceased for the sum of Kshs 26,000/- on 24/4/2004; he simply stated that he had not been informed of such. He stated that his father had farmed on the land before the deceased came in and even after that. He alleged that the fruit trees on the suit land were planted by his father. That they went to Mombasa in 1997 and when things became harder they went back to the land but the defendants were hostile and so the present suit was led. He stated that the dispute had been taken to the chief’s oce before they came to court, but he did not produce the records of the proceedings at the chief’s oce in the hearing. He alleged that his mother also does not know of the sale of the suit land. He stated that his father became ill in 1998. 11. With that evidence the plainti’s case was marked as closed. Evidence of the Defendants. 12. DW1, the 1st defendant gave oral evidence and adopted her witness statement dated 12/7/2016 and produced 7 documents as her exhibits in the case. Her evidence resembled the contents of all the defence and counterclaim and reply to defence to counterclaim analyzed herein above. She added that the deceased was given the original receipts and the oer letter and that the land was then bushy; that they went to the Land Oce at Witu; that she paid monies to that oce in the name of the plainti; that she has built on the suit land some three houses including one for the 2nd defendant. 13. Upon cross-examination by Mr Shujaa she stated that it was her husband who purchased the suit land; that they discussed the sale at a place called Kau, and on that rst day her late husband paid Kshs 20,000/=. No agreement was recorded on that day; on the second sitting over the sale, Kshs 3000/= was paid at Kipini. The agreement was still not recorded on that day. She paid the last amount of Kshs 3000/= after her late husband died. The agreement was written at Kipini. Her husband never thumb printed the agreement. It was the 1st defendant who executed the agreement. Bakari received the money and gave it to Omar. Bakari however never thumb printed on the agreement. She does not recall who wrote down the agreement but it was certainly not her deceased husband. She stated that she received the original receipts from the plainti; she added that the plainti had released them to her deceased husband. Omar’s children including PW1 were present when the agreement was made. The land was https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18712/eng@2025-03-03 3

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on sale by the time her family arrived in the vicinity and so they sought the plainti and purchased the whole parcel. 14. On re-examination she stated that by the date of the agreement her husband had passed on; that beside his name on the agreement there is no thumbprint but her thumbprint was on the agreement. Her late husband gave her the receipts to keep. 15. Upon examination by the court she stated that they were given the receipts and what she calls the land form (which is the letter of oer) upon the rst payment of Kshs 20,000/=. She stated that by then the plainti had not built on the suit land. Her family is also not related by blood with the plainti. 16. DW2 Bakari Said testied and adopted his witness statement dated 1/8/2026 as his evidence in chief. His evidence is that as at 1999 the plainti was seeking a buyer for the suit land and the deceased whom he described as his brother wanted to buy the same. He the deceased and the deceased’s wife went to Kaa in tana River where they spoke with the plainti and agreed on Kshs 26,000/= as consideration out of which the plainti agreed to be paid an instalment of Kshs 20,000/=. the deceased took possession as he sought the balance of Kshs 6,000/= and sought a written acknowledgment or agreement. the plainti however declined to have a written agreement until the balance was fully paid. the plainti however released the letter of allotment to the 1st defendant. The deceased then cleared the land and built a house thereon in 1998 and lived on the land with his family. The plainti has no developments on the suit land. DW2’s parcel is located just 2 blocks away. 17. On cross-examination by Mr Shujaa for the plainti DW 2 stated that the agreement was made in 2004; that it is the deceased’s widow and children who executed the agreement; that there was no acknowledgment of the Kshs 20,000/= paid in 1998 or of the latter instalments of Kshs 3,000/= each; that the 2004 agreement was made at the plainti’s home; that the writer was the plainti’s son. That it was not true that the land had only been leased to the deceased. After the payment of the purchase price, the plainti refused to appear on the date the parties had planned to go to the settlement oce. 18. Upon re-examination by Mr. Michira he stated that one instalment was paid to the plainti at his house at Kau and the other at his other house at Kipini. 19. DW3 Charles Gitonga testied and adopted his witness statement dated 1/8/2016 as his evidence in chief. His evidence is that his land borders the suit land which he identied as the 1st defendant’s; that the 1st defendant has been in possession of the land for the last 26 years; that she has built houses on the land and has perennial fruit trees thereon. The plainti has eected no developments on the suit land. 20. DW4 Grace Atieno Otieno gave oral evidence and adopted her witness statement dated 1/8/2016 as her evidence-in-chief. Her evidence is that she is a village head woman, that the plainti lives in Kipini and has no developments on the suit land; that it is the 1st and 2nd defendants who live on the suit land and they have their developments thereon such as their homestead and some fruit trees. According to him they came to the land in 1998. She knows DW3 who is a fellow villager. There was an elders’ sitting about the year 2006 when the buyers of the suit land wanted a transfer in their favour but no decision was arrived at. 21. Upon cross-examination by Mr Shujaa DW 4 stated that she was not present when the land sale payments were made. Submissions. 22. Both the plainti and the defendants led submissions which I have considered in the preparation of this judgment. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18712/eng@2025-03-03 4

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Analysis and Determination 23. It is indisputable that the land has been issued with a title in the plainti’s name or that the land has been occupied by the defendants for at least two and a half decades. Issues for Determination 24. 25. The issues for determination in this matter are as follows: a. Whether the land was sold to the defendants’ family by the plainti; b. Whether the title in the plainti’s name was obtained fraudulently and should be cancelled on that ground; c. Whether the orders sought in the plaint and the counterclaim ought to issue. d. Who should pay the costs of the suit and the counterclaim. Regarding the rst issue this court has noted the fact that the plainti never testied in the matter. Instead his son did. No evidence of medical incapacity as would prevent the plainti from attending court to give evidence was provided. In Serraco Limited v Attorney General [2016] eKLR the Court of Appeal observed as follows: “ Section 112 of the Evidence Act provides that: “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” The import of the above provision is that in civil cases it is the obligation of a party like the respondent in this case, who has personal knowledge of the circumstances of the case, namely what became of the appellant’s gunny bags, to give evidence on his own behalf and to submit to cross-examination. His failure to do so goes to strongly discredit the truth or credibility of his case.” 26. The plainti’s failure to testify in the present case has left the son drowning in a sea of hearsay, much to the detriment of the plainti’s case. The plainti has asserted in his pleadings, a position adopted by his son in his evidence in the hearing, that he never sold the suit land to the deceased. The plainti has in his pleadings also asserted that he had been in use of the suit land both before and after the deceased’s family took possession, which assertion is not supported by any evidence. What comes out of the evidence for both the plainti and the defendants is that the plainti has a home at Kipini and that is where he predominantly stays, though he also has another home in Kau. 27. The witnesses who came to testify for the defendants do not know of any occupation of the suit land save that of the defendants. Their evidence is that the defendants have been in occupation of the suit land for decades. They have never seen the plainti on the suit land. That the plainti is not a resident of the area must be true because even the agreement for the sale of the suit land was said to have been executed elsewhere. That agreement was said to have been executed in 2004 after the demise of the 1st defendant’s husband. 28. The question that arises is whether there is evidence to support the authenticity of the agreement. 29. First, the defendants did not shy away from producing the original of that agreement for examination by the court and by the plainti. Even after it was produced no objection was raised by the plainti to https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18712/eng@2025-03-03 5

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expressly state that it is a forgery. The agreement was said to have been written down by the plainti’s own son. The plainti never disowned the thumbprint attributed to him on that document. He never brought evidence to show it was not his own. In other words, the genuineness of that agreement was not challenged. It is the only solid evidence of any terms and conditions that may have entitled the defendants to take possession of the suit land and remain on it for such a lengthy period. On his part the plainti lacked any evidence in the form of a written lease to demonstrate his claim that he had only leased the land. 30. Besides lack of any challenge to the genuineness of the agreement, there are 3 original receipts (dated 15/4/96 (No 753141) and 30/4/96 (No 753145) and 2/2/2005 (No. 2570057)) and 2 letters (including the very quintessential letter of oer to the plainti dated 30th June 1995) from the Settlement Fund Trustees oce all in the name of the plainti and he does not challenge the manner in which they came into the defendants’ hands. Incidentally a perusal of the plainti’s documents shows that he is relying on copies of those same documents for his claim; even perchance the best evidence rule was to be applied, in this case, the defendants would be having the better evidence. As there is no other ground upon which they could be in possession of such originals other than by way of the plainti’s surrender of all his interest to them, this court is persuaded of the authenticity of the sale agreement. 31. It is usually the case that original ownership documents are surrendered to a purchaser upon payment of the purchase price. In the present case the plainti, lacking title to show that he owned the land, only had the letter of oer and the original receipts to prove ownership to the defendants. Those stood in place of the title in his name in their transaction, and this court is persuaded that is why they were given by the plainti to the defendants’ family. If it had been through theft or robbery that the plainti had parted with those originals, the he would have stated so expressly in his pleadings and called evidence of police investigations into a report made by him of such theft or robbery. If they were otherwise lost, there ought to have been a report to the police of such loss and a police abstract showing that the plainti had reported the loss. There was none of that. 32. The 1st defendant’s evidence is that she paid some of the dues to the Settlement Fund Trustees in the name of the plainti; that may be so, but nothing demonstrates that the plainti willingly released the crucial original documents willingly to the defendants or to the deceased than the fact that two of the receipts she produced, dated 15/4/96 (No 753141) and 30/4/96 (No 753145) were issued in the name of the plainti long before the defendants’ family took possession of the suit land. 33. The only conclusion that this court draws from the foregoing analysis is that the consideration for the sale agreement was paid in full, and that the plainti allowed the defendants exclusive use of the land; further, that he has never taken possession of the land, and that his claim is an afterthought, and meant to dispossess the defendants of what they have already purchased and extensively developed. 34. As to whether the title in the plainti’s name was fraudulently obtained, despite the defendants having pleaded fraud, the plainti never brought forth evidence of how he obtained the title deed in his name. I have referred to the letter of oer as a quintessential document in this case and that is because the court is aware that it is what identies the person genuinely allotted the land. If the plainti was not in possession of the letter of oer and the original receipts which are crucial for the issuance of title to an allottee, then how did he obtain title to the suit land in his name? In this court’s view he was supposed to clear the air about the propriety of the process of issuance of a title to land that he had already sole to the defendant’s family but he never did that. 35. In numerous cases the courts have stated that a person should not just rely on the fact that title has been issued to him in his name to assert its indefeasibility. Instead he needs give evidence of the process https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18712/eng@2025-03-03 6

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by which it was obtained. in the case of Munyu Maina V Hiram Gathiha Maina [2013] eKLR the court held as follows: “ We state that when a registered proprietor’s root of title is under challenge, it is not sucient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.” 36. The plainti went ahead and somehow in an opaque manner which he has not explained to the court, obtained title despite having sold the land to the defendants’ family. By showing they had in their possession the plainti’s original receipts and the original letter of oer without which the plainti could not have been issued with title, and being in possession of the suit land and having extensively developed the same, the defendants caused the burden of proof to shift to the shoulders of the plainti. 37. The plainti, despite being served with the advance notice of production of the defendants’ documents, led nothing to demonstrate that the issuance of title in his name was not fraudulent. On his part also, despite denying the agreement produced as an exhibit, he never called any evidence to demonstrate that the thumbprint on the said document was not his. Being recognized as the owners of the suit land over a long time by their neighbours served to further persuade this court that the plainti obtained the title with full intent to dispossess the defendants of land they had purchased and that fraud has been proved against the plainti. 38. In the end, I hereby dismiss the plainti’s claim and I enter judgment in the defendant’s favour on their counterclaim against the Plainti and I issue the following nal orders: a. A declaration is hereby issued that the plainti sold the suit land Tana River/Witu/589 to the defendants’ family and received the full purchase price therefor; b. A declaration is hereby issued declaring that the defendants’ family owns Tana River/ Witu/589 and that the plainti obtained title to Tana River/Witu /589 in his name by way of fraud; c. The title to land parcel Tana River/Witu /589 issued in the name of the plainti on 28/8/2006 is hereby cancelled; d. The Land Registrar Tana River shall expunge all the particulars in the land register reecting the plainti as the registered proprietor of the suit land, and he shall thereafter rectify the land register by registering the land in the name of Halima Bakari and Awadh Shevo Jillo to hold on behalf of their family; e. The costs of these proceedings shall be borne by the plainti who occasioned this suit by denying the transaction between him and the defendants’ family. DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 3RD DAY OF MARCH 2025. MWANGI NJOROGE JUDGE, ELC, MALINDI https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18712/eng@2025-03-03 7

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