Misoi & another v Maseri & another

5. The Plaintis claim that they reported the issue to the Directorate of Criminal Investigations, Land Fraud Investigation Unit. The 1st Plainti recorded a statement on 28th June 2014. They submitted a copy of the will alleged to have been of their late father that had bequeathed to the 1st Defendant all his properties. 6. The Plaintis allege that upon investigations, the alleged will was discovered to have been a forgery. The Plaintis accused the two Defendants of fraud whose particulars are pleaded at paragraph 12 of the plaint. 7. The Plaintis averred that the 2nd Defendant continued to interfere with their peaceful possession and administration of the estate of the deceased despite them reporting to the Directorate of Criminal Investigation necessitating the ling of this suit. 8. The Plaintis prayed for judgment against the Defendants jointly and severally for; a. A declaration that the late Samuel Martin Kisia S/O Arap CheaGOROR is the registered and bona de owner of property known as L.R No. 36/1/254. b. A permanent injunction restraining the Defendants from interfering, transferring, alienating, occupying and or in any way interfering or dealing with the Plainti’s possession and or interest of the said property known as L.R No. 36/1/254. c. Mandatory injunctive orders compelling the chief land registrar, Ministry of Lands to rectify reverse any illegal entry and or transfer on the property known as L.R No. 36/1/254.. d. General damages. e. Costs of the suit together with interest thereon at such rate and for such period of time as this Honourable Court may deem t to grant. f. Any other relief the court may deem t to grant. Defence and counter-claim by the 2nd Defendant 9. The 2nd Defendant responded to the Plaintis’ claim by way of a statement of defence and counterclaim dated 10th October 2016 and led in court on 21st October 2016, together with a notice of preliminary objection of even date. 10. The 2nd Defendant asserted that his title was legally registered at the Ministry of Lands on 4th February 1988 after he lawfully purchased it from the 1st Defendant. 11. He denied any collusion with the 1st Defendant as alleged asserting that he only met her after he was introduced to her as a vendor of the suit property through her lawyers. The sale transaction for the suit property was above board. The 1st Defendant was the executrix of the will of her deceased husband. The issue of execution of the documents fully complied with Section 11 of the Law of Succession Act as it was witnessed by two independent witnesses. 12. The 2nd Defendant further avers that the will was valid as no order of revocation nor an application led to revoke the will was presented to this court. He further termed the forensic report, on the documents on the Plaintis’ list of documents as a fabrication that falls short of the test of a true and independent handwriting expert. 13. It was the 2nd Defendant’s case that the 1st Defendant properly and legally transferred to him the title to the suit property. The transaction was undertaken professionally by a reputable Law Firm. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18728/eng@2025-01-31 2

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14. 15. The 2nd Defendant prays for the dismissal of the Plainti’s suit and by way of counterclaim prays; a. That the Honourable Court declares James Kimani Horeria as the rightfully registered proprietor of the suit property. b. That the Honourable Court orders the Plaintis to vacate the suit property forthwith and remove all illegal structures put up on the suit property and they be restrained from further trespassing into the suit property. c. That the orders granted in (b) above be enforced by way of forcible eviction forthwith of the Plaintis. d. That OCS Pangani Police Station do assist in the execution of the orders by providing protection and eecting and implementing the orders of the court and eviction. e. That the Plaintis be compelled to pay the rent accumulated over the years being Mesne Prots at the rate of Kshs. 30,000/- from the year 2004 together with expected rent increase at the rate of 10% per annum. f. Costs of the suit and interest. On 26th January 2023, the 1st Plainti, Joe Arap Misoi who had since passed on was substituted with Selly Chepkorir Misoi. Evidence adduced at the hearing. 16. This case proceeded to full hearing. The Plaintis called a total of ve (5) witnesses. The 2nd Defendant testied as the only witness in his case. 17. PW1 was the 1st Plainti, one Selly Chepkorir Misoi. She adopted her adavit sworn on 9th January 2023 as her evidence in chief. She too produced the witness statement of her late husband Joseph Arap Misoi dated 12th August 2016 as an exhibit. 18. The 1st Plainti testied that this case was about the suit property which her late husband owned having been gifted the same by his father, Samuel Martin Arap Misoi – deceased when he was alive. Her husband told her that he was given the suit property by his late father in 1982. 19. The witness admitted that there was no document to show that her late husband owned the suit property as alleged. 20. Responding to questions in cross-examination by the advocate for the Defendant, PW1 admitted that Susanah Wangui Maseri was her mother in law, and one of the wives of her late father in law. The said Susanah Wangui Maseri was conrmed as the administrator of the estate of Samuel Martin Arap Misoideceased. The grant in her favour was issued on 31st July 1986. The certicate of conrmation of the grant was issued on 20th March 1987. 21. One of the other wives of the deceased Samuel Martin Arap Misoi, Esther Tabunyole Maseri had led an objection and cross-petition in the Succession Cause No. 816 of 1985. Nonetheless, the grant was conrmed to Susanah Wangui Maseri. She conrmed that she was aware that it was Susanah Wangui Maseri who sold the suit property to the Defendant. 22. The Plaintis’ 2nd witness was one Zakayo Kibet Korir, a former chief of Serut Location in Belgut SubCounty in Kericho County. He alleged that the late Samuel Arap Maseri was well known to him. He adopted his witness statement of 16th May 2019 as his evidence in chief. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18728/eng@2025-01-31 3

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23. Responding to questions in cross-examination, the witness conrmed that the late Samuel Arap Maseri had two wives; Esther Maseri and Susan Wangui, both of whom are also deceased. 24. PW2 became a chief in 1997 after Samuel Arap Maseri had passed on in 1985. He admitted that though he had stated in his witness statement that Samuel Arap Maseri had properties including the suit property, he had not attached any evidence conrming ownership of the properties listed. He had been told about the suit property at Eastleigh in Nairobi by Esther Maseri. He does not know where the said property is located. Esther did not show him any documents conrming ownership of the suit property. He believed her word about it. 25. It was PW2’s testimony that he was aware of succession matters in respect of the estate of Samuel Arap Maseri. However, he was not aware when letters of administration were issued. He had not previously seen the certicate of conrmation of grant in favour of Susanah Wangui Maseri issued in 1987. 26. He claried that at the time of writing his witness statement he had not seen the will of the deceased Samuel Arap Maseri. That is why he had stated that the deceased had not left behind a written will. He was told that by Esther too. 27. The 3rd witness called by the Plainti was one Josephine Atori Munyanya. Her testimony was that she lives in the suit property. Her husband had leased the space from the late Arap Misoi. 28. In cross-examination, PW3 stated that her late husband Walter Edwin Onyango Ndenda passed on in the year 2017. They had built a mabati structure within the suit property. Her late husband had the lease document but she could not trace it. 29. PW3 conrmed having met the Defendant in this case in the year 2009. He told her that he was the owner of the suit property and wanted her to vacate. She however did not vacate. She has never seen the title documents in respect of the suit property. 30. PW3 stated that she had not previously seen the agreement between the Defendant and Arap Misoi dated 22nd May 2004. 31. The witness nally admitted that she no longer lives in the suit property but the structure they had built with her late husband is still there. There is a person named Jeremiah who lives in the garage within the suit property. 32. PW4 was Inspector Eli-John Mwangi, a forensic document examiner. He told the court that he has 10 years’ experience in forensic examination working at the DCI, Forensic Document Examination Section. He produced a report prepared by Alex Mwongera a document examiner whom he has worked with for some time. Though the said Alex Mwongera was still working with the DCI, he was on ocial duties at the moment. 33. In cross-examination, PW4 admitted that he was not with Alex Mwongera when he prepared the report. The concern of the examiner according to PW4 was only on the authorship of the will not its contents. 34. The examiner had used copies of documents. The most preferable method is to use original documents. The examiner did not obtain a specimen signature of the author of the will since Samuel Martin Kipsang was already deceased. The examiner used the signature on his copy of identity card for comparison purposes. The conclusion was that the signature on the will was a forgery. 35. PW4 admitted that the report does not state that the examiner considered factors such as age, sickness or intoxication in arriving at his conclusion. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18728/eng@2025-01-31 4

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36. The last witness for the Plaintis was Jeremiah Ouma Odhiambo. The witness stated that runs a garage within the suit property having taken over from the previous tenant. 37. In cross-examination, PW5 stated that he had been in the suit premises for 9 years as a mechanic. There are other mechanics in the suit premises, but under his supervision. He does not live within the plot. PW3 who used to live there has since left. 38. PW 5 stated that he was granted a lease by the late Arap Misoi. Defense Case. 39. The Defendant testied as the sole witness in his case. He adopted his adavit sworn on 10th October 2016, and the witness statement of even date as his evidence in chief besides producing the documents listed on his bundle of documents as exhibits in support of his case. 40. DW1 testied that he purchased the suit property from the late Susanah Wangui Maseri after he was introduced to her by an agent. He had not met her before that. The transaction was overseen by Khaminwa & Khaminwa Advocates. 41. The late Susanah Wangui Maseri had obtained letters of administration in the estate of her late husband. The purchase price was Kshs. 270,000/-. 42. In cross-examination, DW1 armed that the suit property is L.R. 36/1/254 Eastleigh Section 1. The suit property was sold to him by the late Susanah Wangui Maseri who was the personal representative of the estate of the late Samuel Arap Maseri. 43. In re-examination, DW1 stated that the alleged intestate case No. 1871 of 2003 was initiated by the late Esther Kamunyole Maseri who was an objector in Succession Cause No. 816 of 1985 that conrmed Susanah Wangui Maseri as the executrix of the will of Samuel Arap Maseri. 44. DW1 further conrmed that the indenture that had transferred the suit property to him is duly executed on 2nd January 1988 and also registered with the Lands Oce. Directions by the court 45. Upon close of the hearing, the court directed the parties to le written submissions. The Plaintis did not comply. They did not le any submissions. The Defendant however led his written submissions which the court has had occasion to read and consider. Issues for determination. 46. Having considered the pleadings led in this case by both sides, the evidence adduced at the hearing and further considering the submissions on record, the issues for determination in the court’s considered opinion are; a. Whether the Plaintis have proved their claim of fraudulent acquisition of the title to the suit property by the Defendant. b. Whether the Plaintis are entitled to the reliefs sought against the Defendant. c. Whether the Defendant is the lawful proprietor of the suit property. d. Whether the Defendant is entitled to the reliefs sought in his counter-claim. e. What orders should issue in regard to the costs of the suit and the counterclaim. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18728/eng@2025-01-31 5

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Analysis and determination. I. Whether the Plaintis have proved their claim of fraudulent acquisition of the title to the suit property by the Defendant. 47. The Plaintis’ case as framed in their plaint dated 3rd August 2016 is grounded on allegations of fraud against the 1st and 2nd Defendants. The case against the 1st Defendant as I have already stated was subsequently withdrawn on the realization that she had since passed on. The withdrawal dispensed with the 2nd Defendant’s preliminary objection. The Plaintis did not however amend their plaint after withdrawing the case against the 1st Defendant. It remained as it was at the time of ling this suit. 48. I do not think the Plaintis appreciated the signicance of the withdrawal of the case against the 1st Defendant and the eect on their case against the remaining Defendant. Looking at the particulars of fraud tabulated at paragraph 12 of the plaint, the withdrawal of the case against the 1st Defendant literally crippled the Plaintis’ case. 49. It is the 1st Defendant who was accused of fraudulently selling o the suit property knowing very well that she had no capacity to do so and at the same time a property that had not been bequeathed to her by the alleged will. The Plaintis further alleged that the 1st Defendant had illegally, fraudulently and without their consent and that of the beneciaries of the estate purported to transfer the suit property to the 2nd Defendant. 50. Without proof of the allegations of fraud against the 1st Defendant, I wonder how they expected to prove the ones against the 2nd Defendant who was a purchaser. 51. There are allegations of collusion and connivance against the 1st and 2nd Defendants in forging the will of the deceased, probing the same before the High Court (Succession Court) and eventually in the transfer of the suit property from the 1st Defendant to the 2nd Defendant. The withdrawal of the suit against the 1st Defendant and the lack of evidence linking the alleged actions by the 1st Defendant to the 2nd Defendant defeats the Plaintis’ case. 52. It is not disputed that the title to the suit property is in the name of the Defendant. Section 26 of the Land Registration Act is explicit that a title shall not be subject to challenge except; 53. a. On ground of fraud or misrepresentation to which the person is proved to be a party; or b. Where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme. The burden of proof was on the Plaintis to establish the grounds cited above. Fraud must not only be specically pleaded but must be distinctly proved. As pronounced in the case of Vijay Morjaria – versus- Nansingh Madhusingh Darbar & another (2020) eKLR, “ It is well established that fraud must be specically pleaded and that particulars of the fraud alleged must be stated on the face of the pleadings. The acts alleged to be fraudulent must, of course be set out and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the fact.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18728/eng@2025-01-31 6

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54. As regards the standard of proof of fraud, the Court of Appeal in Kinyanjui Kamau vs. George Kamau [2015] eKLR stated that: “ It is trite Law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs. Ndolo [2008], 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; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases …” In cases where fraud is alleged, it is not enough to simply infer fraud from the facts”. 55. The Plaintis’ case as pleaded was as if it were an appeal against the judgment of the High Court (F.K. Apolo J) in Probate and Administration Cause No. 816 of 1985, that pronounced the will of the late Martin K. Arap Maseri valid and conrmed Susan Wangui Maseri the sole executrix of the will. Learned Judge, F.K Apolo further dismissed the objection by the other widow of the deceased by the name of Esther, whose basis for the objection was that the will was invalid just like the Plaintis in this case allege. Surprisingly, they went as far as calling a document examiner to make their point. 56. The issue of the validity of the will or otherwise was nally determined as stated above. F.K. Apolo J (as he then was) in the judgment referred above stated as follows; “ …the evidence satised me that, the will produced in evidence was signed by the deceased and attested in the manner testied to by the witness Kagotho. The deceased intended it to be the deposition of his property after his death. Its execution and attestation conformed with Section 11 (c) of the Succession Act. I accordingly pronounce that the will was valid…” 57. The Plaintis’ attempt to challenge the will of the deceased before this court is an act in futility. It is an issue that was nally determined by a court of competent jurisdiction thirty nine (39) years ago. This court cannot sit on appeal against the judgment of a court of equal status in any event. 58. I found another interesting dimension in the Plaintis’ case. The 1st Plainti’s testimony before the court introduced another perspective to the Plaintis’ case altogether. She testied that she was pursuing the suit property because it was given to her late husband by the deceased when he was alive; a gift inter vivos. The testimony though not supported by any material evidence contradicts the Plaintis’ case which was led on behalf of the estate of the deceased, Samuel Martin Arap Maseri. The impression all through was that the suit property was being claimed on behalf of the estate of the deceased being part of the estate. 59. The evidence of the 2nd Plaintis’ witness was mere heresy. It was on no use to the Plaintis’ case. 60. The end result is that the Plaintis have not proved their claim that the Defendant acquired the suit property fraudulently. Their case fails in its entirety. Consequently, they are not entitled to the reliefs sought in this suit. The suit is hereby dismissed in its entirety. II. Whether the Defendant is the lawful proprietor of the suit property. 61. I stated earlier on that the Defendant is the registered proprietor of the suit property having purchased it from the late Susanah Wangui Maseri. Under Section 26 of the Land Registration Act, the certicate https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18728/eng@2025-01-31 7

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of title issued by the Registrar upon registration 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. 62. The title shall not be subject to challenge except on the grounds enumerated thereunder. As the court has already found, the Plaintis have not adduced evidence to support their allegations of fraudulent acquisition of the title against the Defendant. In any event, the Defendant has elaborately explained how he acquired the title from the late Susanah Wangui Maseri. The court is satised that the Defendant has proved his counter-claim on a balance of probabilities. 63. The next issue then is the reliefs that the Defendant would be entitled to. Besides the prayer for a declaration that he is rightfully registered as the proprietor of the suit property, which he is entitled to, the Defendant too prays for an order compelling the Plaintis by themselves, servants, agents, tenants and or any other person acting under their express or implied authority and all trespassing persons in occupation of the suit property to vacate and remove all illegal structures therein. He prays that the above order be enforced by way of forcible eviction and that the OCS Pangani Police Station executes the orders. 64. The Defendant too has a prayer for mesne prots cumulatively amounting to Kshs. 5,040,000/-. I am unable to decipher prayer (g) in the counterclaim which is framed as, ‘costs for damages and compensation for illegally lodging the restriction against the 2nd Defendant’s title to be assessed at the highest award.’ 65. Registration of a person as a proprietor of land under Section 24 of the Land Registration Act, vests in that person the absolute ownership of the land together with all rights and privileges belonging or appurtenant thereto. 66. The Defendants as the registered proprietor of the suit property is therefore entitled to all the rights and privileges of a proprietor. The Plaintis have no right to be and to remain on the suit property. An order is hereby issued directing them to vacate from the suit property forthwith, in any event within the next 30 days from the date of this judgment failing which the Defendant shall be at liberty to evict them with the assistance of the OCS of the Police Station under whose jurisdiction the suit property falls. 67. With respect to the claim for cumulative rent of Kshs. 5,040, 000/- the court is not persuaded that the Defendant has specically proved the same. It is a claim for special damages which must not only be specically claimed but also strictly proved. The Court of Appeal in the case of Hahn v Singh Civil Appeal No. 42 of 1983 (185) KLR 716, stated that; “ Special damages must not only be specically claimed (pleaded) but also strictly proved, for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act.” 68. The Plainti has not proved the same to the required standard. I disallow the claim for cumulative rent of Kshs. 5,040, 000/-. 69. Finally, on the issue of costs, guided by the provisions of Section 27 of the Civil Procedure Act, I award the costs of the suit and the counter-claim to the Defendant against the Plaintis. Final disposition 70. In conclusion, the court makes the following orders: A. The Plaintis’ suit is dismissed in its entirety. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18728/eng@2025-01-31 8

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B. The Court declares James Kimani Horeria as the rightfully registered proprietor of the suit property. C. The Court orders the Plaintis by themselves, servants, agents, tenants and or any other person acting under their express or implied authority and all trespassing persons in occupation of the suit property to vacate the suit property forthwith and remove all illegal structures put up on the suit property and they are restrained from further trespassing into the suit property. D. The Court orders that the Plaintis complies with the above orders forthwith, in any event within the next 30 days from the date of this judgment failing which the Defendant shall be at liberty to evict them with the assistance of the OCS Pangani Police Station or the OCS of the Police Station under whose jurisdiction the suit property falls. E. The Defendant is granted the costs of the suit and counter-claim with interest. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 31ST DAY OF JANUARY 2025. M.D. MWANGI JUDGE In the virtual presence of: Mr. Oduor Henry for the Plaintis Mr. Kimani Horeria for the Defendant Court Assistant: Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18728/eng@2025-01-31 9

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