Kathenge & another v Mayport Limited & 3 others (Environment and Land Case 67 of 2021) [2026] KEELC 1512 (KLR)

II. The description of the Parties 3. The 1st Plaintifi was described as a male adult of sound working mind and resided in Kenya. The 2nd Plaintifi was a female adult of sound working mind and resided in Kenya. 4. The 1st Defendant was a limited liability company registered under Cap. 486 of the Laws of Kenya, having its registered ofice within the Republic of Kenya. The 2nd Defendant was a male adult of sound mind and understanding.The 3rd Defendant was the Chief Land Registrar established under the provision of Section 12 of the Land Registration Act, No. 3 2012. The 4th Defendant was described as the Attorney General who, by virtue of Article 156 of the Constitution of Kenya, was the principal legal advisor to the Government of Kenya. III. Court directions before the hearing 5. On 27th October, 2022, after confirming that the Plaintifis and the Defendants had complied with Order 11 of the Civil Procedure Rules 2010, on case management the Honourable Court set the hearing date on 4th November, 2022. The Plaintifis called their 1st witness testified and called their witnesses and marked their case closed on 14th November, 2022. The 3rd and 4th Defendants called their witness on 14th November, 2022 and after wards closed their case. The 1st Defendant called its 1st witness on 14th November, 2024 and they closed their case on 15th November, 2024. IV. The Plaintifis’ case 6. From the pleadings before court, the Plaintifis averred that they had bought property known as Sub division Number 6234 (Original Number 5220/4), Section I Mainland North, (Hereinafter referred to as “The Suit Property”) from one James Kibet Chirchir. Prior to the purchase of the land, the Plaintifis had duly conducted two searches which revealed that the suit property was owned by the said James Kibet Chirchir.The Plaintifis stated that the outcome of the two searches revealed that the suit property was owned by the said James Kibet Chirchir. 7. The purchase price was agreed to be Kenya Shillings Twelve Million (Kshs. 12,000,000/-), which was fully paid by the Plaintifis, from which the sum of Kenya Shillings Three Million (Kshs. 3,000,000/-) was paid to Equity Bank for the Bank to discharge a charge that had been registered in its name. After paying the full purchase price, the title document which had been held by the Bank under a charge was released to the Plaintifis, and a transfer was registered transferring the property from James Kibet Chirchir, the 1st Defendant, to the Plaintifis. 8. Prior to the registration of the transfer, stamp duty was paid by the Plaintifis in the sum of Kenya Shillings Four Hundred and Eighty Thousand (Kshs. 480,000/-). Thereafter, the Plaintifis conducted searches to confirm that the property refiected them as the current owners and that the property was devoid of any encumbrances. The Plaintifis further averred that they had proceeded to fence the property in order to secure the boundaries, but when they later visited the site, they found that the Defendant had pulled down their fence and placed construction material with the intention of commencing construction on the property. 9. The Plaintifis averred that, to their surprise and chagrin, they learnt that the 1st Defendant similarly held a title deed to the suit property.The Plaintifis further averred that the 3rd Defendant had maintained a parallel register which indicated that there was double registration in respect of the suit property.In the alternative, the Plaintifis averred that they were bona fide purchasers for value without notice of any anomaly in the title. The Plaintifis stated that they had legal title to the property, and that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 2

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Defendant’s move to demolish their fence and encroach on the land was illegal and had caused them great loss and damage. 10. The Plaintifis relied on the following particulars of illegality on the part of the 1st and 3rd Defendants causing loss and damage which were: a. The 1st Defendant encroaching on the Plaintifis’ land without any legal right to do so. b. The 1st Defendant demolishing the Plaintifis’ fence/property without any legal right to do so. c. The 3rd Defendant maintaining a parallel register which indicated that there was double registration in respect of the suit property. d. The 1st and 3rd Defendants denying the Plaintifis use and enjoyment of their property. 11. Despite demand from the Plaintifis, the Defendants had refused to vacate the said property and had threatened to begin construction on the property without any due regard to the Plaintifis’ title to the land. The Plaintifis averred that there was no other suit pending and that there had been no previous proceedings in any court between the parties herein over the same subject matter. The Plaintifis averred that the cause of action had arisen within the jurisdiction of this Honourable Court. 12. The Plaintifis prayed for orders against the Defendants jointly and severally as follows:- 13. a. A permanent injunction restraining the Defendant either by itself, its agents, servants and/or personal representatives from selling, charging, alienating, trespassing onto, otherwise dealing with the property known as CR 20722 Sub - division Number 6234 (Original Number 5220/4). b. A Declaration that the 1st Defendant's purported title to CR 20722 Sub - division Number 6234 (Original Number 5220/4) is illegal, null and void and does not confer any proprietary interest upon the 1st Defendant or any other person. c. A declaration that the Plaintifis are the bona fide owner of CR 20722 Sub - division Number 6234 (Original Number 5220/4). d. An order for vacant possession against the 1st Defendant by themselves, their employees, agents, and/or servants. e. An order directing the 3rd Defendant to rectify its register and to nullify the 1st Defendant’s registration in respect to that entire parcel known as CR 20722 Sub - division Number 6234 (Original Number 5220/4). f. A declaration that the creation of double registration over land parcel number CR 20722 Sub - division Number 6234 (Original Number 5220/4) by the 3rd Defendant was illegal, null and void. g. In the alternative, an order directing the 3rd Defendant to pay the Plaintifi special, exemplary and general damages to the tune of Kenya Shillings Fifty Million (Kshs. 50,000,000/-). h. Costs and incidentals to this suit plus interest thereon. i. Any other order that the court may deem just. The Plaintifis called PW - 1 on 4th November, 2022 who testified as follows: - https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 3

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A. Examination in Chief of PW - 1 by Ms. Kimole Advocate: 14. PW - 1 was sworn and he testified in English language. He was called JUMA ABDALLAH KATUMA, a citizen of Kenya and holder of the national identity card with all the particulars as shown to court during the hearing. that he resided in Diani, County of Kwale. He was a businessman dealing in hardware. He wished to adopt the pleadings he had filed in this court – his witness statement was dated 8th April, 2021. He had also filed a list of documents dated 8th April, 2021, namely: a. An oficial search dated 25th August, 2016. b. A second oficial search dated 5th September, 2016 – Plaintifi Exhibit 1 (a) & (b). c. A sale agreement dated 5th September, 2016 – Plaintifi Exhibit 2. d. Copies of oficial receipts for the purchase price – dated 2nd October, 2017 for a sum of a sum of Kenya Shillings Four Million (Kshs. 4,000,000/-), issued by the Vendor. e. A copy of an oficial receipt dated 22nd November, 2017 for a sum of Kenya Shillings One Million five Hundred Thousand (Kshs. 1,500,000/=) – Plaintifi Exhibit 3 (a) & (b). f. A discharge of charge dated 6th March, 2017 – Plaintifi Exhibit 4. g. A transfer dated 21st September, 2017 – Plaintifi Exhibit 5. h. A copy of an oficial receipt for stamp duty dated 21st September, 2017, Serial No., for a sum of Kenya Shillings Four Hundred and Eighty Thousand (Kshs. 480,000/=) – Plaintifi Exhibit 6. i. A copy of oficial searches dated 22nd September, 2017 – Plaintifi Exhibit 7. j. A copy of the Certificate of Title deed LR. No. 20722 under road trafic accident – Plaintifi Exhibit 8. k. A copy of Authority to Act for the 2nd Plaintifi dated 8th April, 2021 – Plaintifi Exhibit 9. 15. PW - 1 stated that he had sued in respect of a matter concerning land which he had brought in the year 2006. However, it later emerged that someone else alleged to be the owner. The other claimant was May Port Limited, the 1st Defendant. In the year 2016, PW - 1 was informed by a friend that the land had been sold. He met the vendor, one James Chir Chir Kibet, the 2nd Defendant. They discussed the matter and the vendor showed him his ID and a copy of the title, and arranged to meet with their lawyers. The vendor handed over copies of documents to PW - 1’s lawyers. PW - 1’s lawyer conducted due diligence and confirmed that the land belonged to the 2nd Defendant. PW - 1 confirmed that Plaintifi Exhibit 8 was the copy of the title. He also saw the oficial searches – Plaintifi Exhibits 1, 2 and 3 – which all showed that the 2nd Defendant was the owner. 16. Thereafter, PW - 1 agreed with his lawyer and prepared a sale agreement dated 5th September, 2016, referred to and confirmed as Plaintifi Exhibit 2. He signed and witnessed the agreement for a purchase price of a sum of Kenya Shillings Twelve Million (Kshs. 12,000,000/-) for a quarter acre property situated in Nyali. The terms and conditions revealed that one of the searches conducted showed an encumbrance – a charge with Equity Bank for a sum of Kenya Shillings Three Million Five Hundred (Kshs. 3,000,000/-). The first payment of a sum of Kenya Shillings Three Million Five Hundred (Kshs. 3,500,000/-) was made to Equity Bank, which led to the discharge of charge on 21st September, 2017. The outstanding balance of a sum of Kenya Shillings Eight Million Five Hundred Thousand (Kshs. 8,500,000/-) was paid to the vendor. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 4

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17. PW - 1 explained that he remitted the cash through transfers and cash deposits with his lawyers, who eventually remitted the total sums. His lawyer was Chala & Co. Advocates. There was an RTGS for a sum of Kenya Shillings Four Million (Kshs. 4,000,000/-) dated Plaintifi Exhibit 3, and another sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000/-) from Ms. Chala Advocate to the vendor, which was sent to the Vendor’s advocates, Marwa Ngunza & Co. Advocates. 18. The transfer of the land was efiected, though there was a delay in obtaining the transfer due to the title being held by Equity Bank. PW - 1 and his lawyer went to court to hasten the process – Plaintifi Exhibit 5. The court ordered that during the transfer, they pay a sum of Kenya Shillings Four Hundred and Fifty Thousand (Kshs. 450,000/-) equivalent to 4% of the purchase price as stamp duty. They were issued with a receipt – Plaintifi Exhibit 6. The Registrar of Lands was directed by the court to transfer the land to PW - 1, and the Registrar obliged. PW - 1 was registered and issued with the title – Plaintifi Exhibit 8. He conducted a third oficial search on 20th September, 2017, which confirmed that the property was registered in his name and that of his wife, Asmaa Nduku Juma. 19. PW - 1 testified that before the hearing of the case, he and his wife physically visited the land. The Vendor showed them the property, and they took occupation and fenced it using cedar posts and a gate. In September 2017, PW - 1 frequently visited and found it intact, with no improvements except clearing of bush. On 28th December, 2020, he visited again and found that a new fence had been put up, his old one removed, and a new structure and gate erected. Someone was staying there. Upon inquiry, PW - 1 was told that the person had been brought by the agent of the owner. PW - 1 obtained the contact but was asked to follow up in January after the festivities. In January, it became dificult to reach the agent, who kept postponing meetings. 20. PW - 1 went to his lawyer, who was shocked to hear that someone else was claiming the land. She took the contacts and contacted the agent. They exchanged papers of ownership. In the process, PW - 1 engaged a new lawyer, Kimeu. From the documents with his lawyer, it appeared that the property belonged to May Port Ltd, the 1st Defendant. 21. PW1 concluded by stating that they filed the suit and that he wished the court to declare him the rightful owner of the property as pleaded in the Amended Plaint. B. Cross Examination of PW - 1 by Mr. Ogendo Advocate. 22. PW - 1 stated that from the conversation he had with the agent in January 2020, when he first contacted the 1st Defendant May Port Ltd, he had not sued James Kibet Chirchir. He explained that he never sued him because Chirchir had confidently told him that he was the owner of the land and had even ofiered to be PW1’s witness in the case. PW - 1 testified that he conducted two oficial searches on 25th August, 2022 at Mombasa. The first search showed that the tenure was freehold in the name of Chirchir, though there were encumbrances. It was signed by Safari. The second search indicated that the tenure was leasehold for 99 years, also signed by Mr. Safari, whom PW - 1 believed to be the Registrar of Titles. 23. PW - 1 referred to Plaintifi Exhibit 2 and a letter dated 23rd November 2017 from the Deputy Registrar of the High Court. He stated that he had filed the civil suit “ELC No. 346 of 2016, Juma Abdalla Munyao & Kathenye & Another – Versus - James Kibet Chirchir & Equity Bank”. He explained that Equity Bank never signed the consent. The property was valued at a sum of Kenya Shillings Twelve Million (Kshs. 12,000,000/-) (page 54). The RTGS was not signed by Family Bank Limited and was undated, though one was dated 2nd October, 2017 and another dated 22nd September, 2017. The stamp was neither signed nor dated. PW - 1 referred to the discharge of charge – Plaintifi Exhibit 4 (page 54) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 5

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– which was signed by Equity Bank’s advocates, Penninel K. Gatobu. He confirmed that he had given instructions for the discharge to be prepared. He admitted that he did not have any document to show that the sum of Kenya Shillings Three Million (Kshs. 3,000,000/-) had been paid. He testified that the sale agreement was signed at the bottom of all pages, with initials by three people, except page 5 (page 47). He referred to the transfer forms (page 62), noting that he had provided ID No. 74XXXX6, though his correct ID was 7465355, which was an error corrected thereafter. 24. PW1 explained that there was no date on the instrument of transfer. He referred to a bank slip dated 21st September, 2017 (page 31) showing an amount of a sum of Kenya Shillings Four Hundred and Eighty Thousand and Fourty (Kshs. 480,040/-) for stamp duty. The purpose of the payment was for stamp duty (page 32). He also referred to the KRA receipt, which bore the instrument date of 30th August, 2017, which he believed was the date of transfer. 25. PW - 1 referred to Plaintifi Exhibit 8, which contained:Entry No. 7: Provisional certificate issued vide Kenya Gazette Notice No. 4461 of 12th April, 2023.Entry No. 8: Death Certificate No. CNO 564700 of one James Hammony.Entry No. 8: Transfer to James Kibet Chirchir.Entry No. 9: Charge to Equity Bank Kenya Ltd.Entry No. 12: Restriction under Section 76 of the Land Registration Act. B. Cross - Examination of PW - 1 by Mr. Wagah Advocate. 26. PW - 1 clarified that Mr. James Chirchir was not his witness in the case. He stated that from the consent filed, there was no reference to the Land Registrar and no direction to the Land Registrar to register the property. PW - 1 testified that in File No. 346 of 2017, the court had ordered the removal of the discharge of charge. He explained that although he had served the Land Registrar, there was no proof of service on record. 27. PW - 1 further stated that the first search he conducted showed the tenure as leasehold, while the second search indicated the tenure as freehold. He expressed uncertainty as to why the same Land Registrar would sign such contradictory documents. He added that in the last search he conducted, there was no name indicated. B. Clarification by Court from the PW - 1. 28. PW - 1 referred to the title deed relating to the 3rd and 4th Defendants, marked L = 4, IR 20722. He stated that the term was 99 years from 1st February, 1988, CR No. 18442/11, measuring 0.1100 hectares, with the original number being 522014. He explained that the details were the same as his, and that entry numbers 2 to 2 were identical. 29. PW - 1 testified that in the document marked DMF - Z, entry No. 8 difiered from his. His own record showed entry No. 8 as a charge to Equity Bank. He noticed that there were two entry No. 8s – one indicating transfer to James Kibet Chirchir, and the second showing a charge. He observed that there seemed to be a problem in the numbering, particularly in Entries 2, 3, 4, 6, 7, and 8, which appeared misplaced and not aligned directly against or at the beginning of the entries. 30. PW - 1 referred to DMFR - 1, where entry No. 8 showed a transfer dated 9th July, 2013 to James Kibet Chirchir for a sum of Kenya Shillings Four Million Five Hundred Thousand (Kshs. 4,500,000/-). Entry No. 9 refiected a transfer dated 05/09/2013 to May Port Limited for a sum of Kenya Shillings Fifteen Million (Kshs. 15,000,000/-). PW - 1 concluded by stating that from his plaint, he sought to be reimbursed a sum of Kenya Shillings Fifty Thousand Million (Kshs. 50,000,000/-) if the land was granted to May Port Limited. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 6

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B. Re - Examination of PW - 1 by M/s Kimeu Advocate. 31. PW - 1 clarified that he never had any grievance against Mr. Juma Chirchir. He testified that he had conducted two searches from the Land Ofices, which were the custodians of the records. PW1 referred to the RTGS receipt – Plaintifi Exhibit 3(a) and (b). He stated that it was Family Bank that had issued the receipt, and Equity Bank had confirmed that they received the money. Equity Bank stamped the discharge of charge accordingly. PW1 further explained that the last page of the sale agreement had been signed by Chirchir, his wife, and his lawyer. He added that the ID number appearing on the transfer must have been an error. 32. The Plaintifis called their second witness on 14th November, 2022 wherein he testified that: - A. Examination in Chief of PW - 2 by Ms. Kimeu Advocate. 33. PW - 2 was sworn and he testified in English language. He was called Cornelius Kimutai Rotich. He was the Division of Criminal Oficer, at Nyali, Mombasa. He was present in Court pursuant to a court order to produce the original certificate of title. He testified that he had with him CR No. 20722/1. He explained that he was the Investigation Oficer in Criminal Case E969/2021 before the Shanzu Criminal Court No. 2. He confirmed that they had held the Certificate of Title following a request received from the Document Examiner, as the matter was still active in court. 34. PW - 2 testified that the certificate of title was an exhibit in the said Shanzu Law Court. He stated that the accused person was James Kibet Chirchir, the 2nd Defendant herein. He had been charged with the criminal ofience of obtaining money by false pretences. PW - 2 confirmed that they had arrested him, charged him, and that he was released on bond, but was currently at large. He added that there was a warrant of arrest against him and that the matter was mentioned on 22nd December, 2022. 35. PW - 2 further testified that the accused had produced the original professional certificate of title with two entries. Entry No. R was in the name of Juma Abdalla Munyao Kathene, dated 21st September, 2017. He confirmed that the title was produced as Plaintifi Exhibit No. 8. B. Cross Examination of PW - 2 by Mr. Wagah Advocate. 36. PW - 2 told the court that it was Mr. Juma Abdalla who lodged the complaint. B. Cross Examination of PW - 2 by Mr. Ogendo Advocate. 37. PW - 2 testified that he had interrogated the accused. He stated that they had arrested him and recorded statements from Mr. Juma Abdalla, the Plaintifi, as well as from the accused person. 38. The Counsel to the Plaintifis, M/s Kimeu Advocate, marked their case closed on 14th November, 2022. V. The 1st Defendant’s case 39. The 1st Defendant responded to the Plaintifis’ claim through a Statement of Defence and Counter Claim where it averred that: a. Save for what was specifically and expressly admitted therein, the 1st Defendant denied each and every allegation contained in the Plaint as if the same were set out verbatim and traversed. b. The 1st Defendant admitted the contents of Paragraphs 2 and 3 in so far as they were merely descriptive of the parties, save that his address of service for purposes of the suit was c/o A.A. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 7

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Said & Company Advocates, Shella Chambers Building, Archbishop Makarios Road, P.O. Box 3601‑ 80100, Mombasa c. The 3rd Defendant was a statutory ofice within the Land Registration Act, No. 3 of 2012, entrusted by the Act to manage and discharge its functions in accordance with the Constitution of Kenya, 2010, the appointing statutory body, and all enabling provisions; capable of suit and being sued. d. The 4th Defendant was the Chief Government Advisor tasked with providing public legal services to the State and its agencies. e. The Defendant denied the contents of Paragraphs 4, 5, 6, 7, 8, 9 and 10, and the Plaintifi was put to strict proof thereof. In further answer to the said paragraphs, the Defendant stated that: i. The suit property, to wit Subdivision Number 6234 (Original Number 5220/4), Section I Mainland North, rightly and justly belonged to the 1st Defendant, Mayport Limited. ii. The proper Defendant in the matter ought to have been James Kibet Chirchir, the 2nd Defendant. iii. Pursuant to the suit, the suit property was rightly and procedurally purchased by Mayport Limited and registered in its name, and Title Deed No. CR. 26722/1 dated 20th December 2013 was granted as a result thereof. iv. The provisional certificate of title was consequent to loss of the original, vide Kenya Gazette Notice No. 4461 of 12th April 2013. v. The transfer agreement executed by James Kibet Chirchir and the Defendant on 4th September 2013 for Subdivision 6234 (Original No. 5220/4), Section I Mainland North, was duly executed by both parties, transferring proprietary rights to the Defendant accordingly. a. The Plaintifi was unsuited against the Defendant, and his claim was vexatious. The Defendant had a right to have the pleading struck out at an early stage. b. The 1st Defendant denied paragraph 11, and the Plaintifi was put to strict proof thereof. The 1st Defendant averred that the fence erected on the suit property was an illegal encroachment, trespassing into the 1st Defendant’s property, and that it had all rights to avert illegal trespasses. c. The 1st Defendant denied all claims of illegal encroachment, illegal demolishing, and any illegal restriction of the Plaintifi’s use and enjoyment of the property as captured in Paragraphs 12 and 13 of the Plaint, putting the Plaintifi to strict proof. d. The 1st Defendant denied the contents of Paragraph 14 in so far as vacating the suit property on account of furnishing of a demand letter, and averred that it had legitimate proprietorship rights over the property and all rights to use and develop it without any due rights accruing to any third party. The Plaintifi was put to strict proof of such wrongdoing. e. The Plaintifi’s claim was therefore unfounded, and he was not entitled to any of the remedies sought in the Plaint. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 8

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f. The jurisdiction of the Honourable Court was admitted. 40. For the reasons wherefore the 1st Defendant prayed that the Plaintifis’ suit against it be dismissed with costs. 41. In the Counter - Claim, the 1st Defendant averred that:a. The Plaintifi to the Counter - Claim reiterated the contents of Paragraphs 1 to 9 of the Defence as if the same were set out seriatim. b. At all material times, the Defendants to the counterclaim were adults of sound mind, and their address of service for purposes of the suit was care of Chala & Company Advocates, Lotus Plaza, 1st Floor, Door No. 5, P.O. Box 92119‑80100, Mombasa.. c. The Plaintifi to the Counter - Claim stated that at all material times, the registered owner of the suit property was Mayport Limited, thereby entitled to quiet possession of Plot No. M.N./1/6234. d. Further to the foregoing, the Plaintifi to the counterclaim contended and undertook to show that the rightful defendant in the Plaint was James Kibet Chirchir, the 3rd Defendant in the Counter - Claim, who was the lessee and vendor in the transaction dated 4th September 2013. e. Subsequent to the above transaction, the 3rd Defendant in the Counter - Claim unprocedurally and illegally proceeded to enter into an agreement with the 1st and 2nd Defendants in the counterclaim for the sale of the suit property, Plot No. M.N./1/6234, Sub - division Number 6234 (Original Number 5220/4). f. The suit property rightly and justly belonged to the Plaintifi in the Counter - Claim. g. Pursuant to the grant and full payment of the purchase price, the suit property was rightly and procedurally registered in the name of Mayport Limited, and a provisional certificate of title, CR. 20722/1, gazetted under Gazette Notice No. 4461 dated 12th April 2013, was granted as a result thereof. h. The said title deed clearly indicated on Entry Nos. 5, 6, 8 and 9 of the provisional certificate dated 18th June 2013: a transfer dated 18th March 1997 to John Leslie Hammond and Sue Jemeli Hammond under Entry No. 5; a provisional certificate issued vide Gazette Notice No. 4461 of 12th April 2013 under Entry No. 6; a transfer dated 17th July 2013 to James Kibet Chirchir under Entry No. 8; and a final transfer to Mayport Limited under Entry No. 9. There were no encumbrances or transfers to any party beyond these entries. i. The 1st, 2nd and 3rd Defendants to the Counter - Claim’s title was issued in the names of Juma Abdalla Munyao and Asmaa Nduku Juma on 21st September 2017, according to documents supplied by the Defendant in the Counter - Claim. j. From the said title, the Plaintifi in the Counter - Claim noticed the following contradictions: a. The 1st and 2nd Defendants in the Counter - Claim had provided a Provisional Certificate dated 18th June 2013 under Title Number CR. 20722/1, which indicated contradictory entries 8, 8’, 9, 10, 11, and 12. Entry No. 8 refiected a transfer to James Kibet Chirchir on 17th July 2013; a second and contradictory Entry No. 8’ refiected a charge to Equity Bank dated 11th November 2015; Entry No. 9 registered a restriction under Section 76 of the Land Registration Act, 2012; Entry No. 10 dated 12th July https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 9

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2017 refiected a court order in ELC No. 346 of 2016 directing deregistration of the charge by Equity Bank; Entry No. 11 dated 21st September 2017 registered a discharge of charge discharging Entry No. 8; and finally, Entry No. 12 dated 21st September 2017 registered a transfer to Juma Abdalla Munyao Kathenge and Asmaa Nduku Juma. b. Ofi the said Provisional Certificate of Title dated 18th June 2013, a contradictory Entry No. 8’ dated 11th November 2015 appeared in place of Entry No. 9 dated 20th December 2013, which in the Plaintifi’s Provisional Certificate refiected a transfer to Mayport Limited. c. The 1st, 2nd, and 3rd Defendants in the Counter - Claim had provided documents further indicating a contradictory entry registering the names of Juma Abdalla Munyao and Asmaa Juma on 21st September 2017, which was inconsistent with the land records showing Mayport Limited’s registration on 20th December 2013. d. The contradictions in the Provisional Certificate of Title dated 18th June 2013 provided by the Defendants in the Counter - Claim, with inconsistencies in Entries 8’ to 12, contradicted Entries 6 to 8 as follows: i. Entry No. 6 contained a consistent signature and date of 18th June, 2013, aligning with Entries 7 and 8 in the Plaintifi’s Provisional Certificate. ii. Entry No. 7 contained a consistent signature and date of 10th August, 2013, aligning with Entries 6 and 8. iii. Entry No. 8 contained a consistent signature and date of 17th August, 2013, aligning with Entries 6 and 7. iv. iv Entry No. 8’ contained an inconsistent signature and date of 11/11/015, marked with a three‑digit year “015” instead of a four‑digit year, inconsistent with Entries 6, 7, and 8. v. Entry No. 9 did not contain any signature or date, inconsistent with all other entries. vi. Entry No. 10 contained an inconsistent signature and date of 12/07/017, marked with a three‑digit year “017” instead of a four‑digit year. vii. Entry No. 11 contained an inconsistent signature and date of 21/09/017, marked with a three‑digit year “017” instead of a four‑digit year. viii. Entry No. 12 contained an inconsistent signature and date of 21/09/017, marked with a three‑digit year “017” instead of a four‑digit year. ix. Consequently, the Certificate of Postal Search dated 25th August 2016 provided by the Defendants in the counterclaim contained an inconsistent tenure description of a freehold of 99 years from 1988, contradicting the Provisional Certificate which described the property as leasehold for 99 years from 1988. x. Finally, the Certificate of Postal Search dated 5th September 2013 provided by the Defendants in the counterclaim contained an inconsistent term of 99 years from 1989, contradicting the Provisional Certificate which provided a term of 99 years from 1988. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 10

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42. 43. e. In contrast, all the entries from 6 to 9 in the Provisional Certificate of Title dated 18th June 2013 provided by the Plaintifi in the Counter - Claim contained consistent signatures and dates, aligning with Entries 6, 7, and 8. f. All the entries from 6 to 9 in the Plaintifi’s Provisional Certificate contained consistent four‑digit dates of 2013, aligning with Entries 6, 7, and 8. g. These contradictory entries, together with several others to be exposed by expert opinion, demonstrated an overwhelming case of forgery of title documents with the intent of defrauding the lawful proprietor. h. Finally, the Certificate of Postal Search dated 22nd July 2013 provided by the Plaintifi in the counterclaim contained a consistent term of 99 years from the year 1988, which aligned with the Provisional Certificate of Title dated 18th June 2013 in both the Plaintifi’s and Defendants’ documents. i. The Plaintifi in the counterclaim had incurred expenses in costs and development timelines as a result of the fraudulent and improper proceedings against it. For the reasons wherefore the Plaintifi to the Counter - Claim prayed for Judgment against the Defendants to the Counter - Claim for: a. Declaration that the suit property to wit Plot No. M.N./1/6234SUB - Division Number 6234 (Original Number 5220/4) rightly and justly belongs to the Plaintifi's in the Counter - Claim Mayport Limited; b. Declaration that the parallel titles held by the Defendant in the counter claim is invalid; c. Damages against the Defendants in the counter claim; d. Such other, further or consequential relief as this Honorable court may deem just; e. Costs of the suit and interests thereon at Court rates. The 1st Defendant called their first witness on 14th November, 2024 but before that the Counsel on record Mr. Ogendo Advocate made the following opening remarks: - A. Opening Remarks by Mr. Ogendo Advocate: 44. The Learned Advocate stated that the witness would adopt the witness documents and statement. He explained that the defence would demonstrate the acquisition of the title and the basis of the Counter - Claim. He submitted that the title held by the 1st Defendant was indeed valid. The 1st Defendant was the legal owner of the property. He concluded that this was conclusive proof of the acquisition of the property. 45. The 1st Defendant called his first witness on 14th November, 2024 wherein the witness told the court that: - B. Examination in Chief of 1st DW - 1 by Mr. Ogendo Advocate. 46. The witness was sworn and in English language. He was called Yakatali Amirali Lamuwalla, a citizen of Kenya and holder of the national identity with all the particulars as indicated to Court. He testified that he was born in the year 1972. He stated that he resided in Kizingo, Mombasa, where he also worked. He confirmed that he had recorded a witness statement dated 20th May, 2021 and wished to have it https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 11

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adopted. He further testified that he had a list of documents dated 20th May, 2021, comprising 27 documents, which he wished to adopt. These were marked as Defendant’s Exhibits 1 to 27. 47. DW - 2 testified that the 1st Defendant had acquired the title through an agent who had identified the land on 2nd July, 2013. An oficial search was conducted, and they instructed their lawyer to prepare a sale agreement. The agreement was executed on 4th September, 2013 for a consideration of Kenya Shillings Fifteen Million (Kshs. 15,000,000/-). The parties to the agreement were James Kibet Chirchir, the 2nd Defendant, and May Port Limited. DW - 2 confirmed that he had seen the agreement. 48. DW - 2 stated that later he was shocked to learn that there was another party claiming the land. He testified that the property had been transferred through an instrument of transfer dated 5th September, 2013. The parties to the transfer were James Kibet Chirchir and the directors of May Port Limited. He confirmed that the transfer was executed and registered. 49. DW - 2 explained that when another party laid claim to the land, they instructed their advocates to respond to the matter. He testified that they had planned to develop the land but stopped due to restrictions imposed on it. 50. DW - 2 referred to the 4th Defendant’s list of documents, specifically the certificate of title, which was also part of his bundle, CR No. 20722/1. He confirmed that it was the same title transferred from the 2nd Defendant to the 1st Defendant. He referred to Entry Nos. 7, 8, and 9 of the title deed. DW - 2 testified that he had never transferred his interest to the Plaintifi and had never executed any documents to transfer rights to the Plaintifi. He confirmed that they had filed a counterclaim dated 20th May, 2021. 51. DW - 2 concluded by stating that he wished the court to assist the 1st Defendant by confirming that the title belonged to the 1st Defendant, as prayed for in the Counter - Claim, and that the Plaintifi’s title deed be cancelled so that construction could proceed from where it had stopped. C. Cross Examination of DW - 2 by Mr. Ogola Advocates. 52. DW - 2 testified that he had never seen the 2nd Defendant in person and had only seen him in pictures. He confirmed that he had never met him. He stated that he knew the Plaintifi and was aware that the court had ordered the Plaintifi to produce the original title deed, which the Plaintifi did. He was also aware that the 1st Defendant had been ordered to produce the original title, and he had no objection to producing his title for the court’s perusal. 53. DW - 2 referred to the Board Resolution dated 19th May, 2021, which listed the persons in attendance as Mohamed Hussein Jafier and Masumin Holdings Limited. He testified that he was not present at that meeting. He explained that the directors of May Port Limited. were Mohamed Hussein Jafier and Masumin Holdings Limited. He stated that he did not have the CR - 12 Form. From the documents, he confirmed that he was not a shareholder but a director, and that he was not sure who the shareholders of May Port Limited were. 54. DW - 2 testified that the directors of the 1st Defendant were himself, Yakatali Amirali, and Shazuri. He explained that Mohamed Hussein Jafier and Masumin Holdings Limited were directors of May Port Limited, and that Masumin Holdings Limited was not a director of the 1st Defendant. He stated that there were three directors and one shareholder, and according to him, the company was fully owned by Masumin Holdings Limited. 55. DW - 2 referred to the Amended Statement of Defence dated 24th February, 2022, Paragraph 5 (c), which indicated that the purchase price was a sum of Kenya Shillings Fifteen Million (Kshs. 15,000,000/-). He testified that the deposit was a sum of Kenya Shillings Four Million (Kshs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 12

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4,000,000/-), payable under Clause 3 (2) on or before the execution of the sale agreement. He confirmed that they had paid the deposit to the vendor and referred the court to a letter dated 30th August, 2013 by Masumin Holdings Limited to Oloo Chatur & Company Advocates, which was proof of payment. He pointed out that on page 17 of the letter, the words indicated instructions to release funds to Masumin Holdings Limited. He clarified that Masumin Holdings Limited never bought the land. 56. DW - 2 referred to Clause 3 (3) of the sale agreement, which provided for the balance of Kenya Shillings Million (Kshs. 11,000,000/-) to be paid to the vendor. He testified that he did not have proof of payment, as all payments were made through the advocates. He referred to Clause 2 of the sale agreement (special condition), which stated that possession of the property would be handed over to the purchaser on the completion date. He testified that he had exercised occupation and possession by fencing the property. 57. DW - 2 referred to the 2nd Defendant’s defence, specifically paragraph 5, where James Chirchir stated that he had never executed the transfer on behalf of DW - 2 to May Port Limited. DW - 2 testified that he had never summoned the 2nd Defendant and did not agree that the transfer was fraudulent. 58. DW - 2 was referred to the transfer form dated 5th September, 2013, noting that the sale agreement was dated 4th September, 2013, the day before. He referred to the title deed, Entry No. 9, which showed a transfer to May Port Limited for a sum of Kenya Shillings Fifteen Million (Kshs. 15,000,000/-) on 5th September, 2013. He also referred to Entry No. 8 dated 17th July, 2013, which refiected a value of a sum of Kenya Shillings Four Million Five Hundred Thousand (Kshs. 4,500,000/-). He explained that after three months, the property was bought at a sum of Kenya Shillings Fifteen Million (Kshs. 15,000,000/-). He confirmed that these entries were made by the Land Registrar. 59. DW - 2 testified that he became aware of the case in the year 2021, while his title was dated the year 2013. He stated that he had not been able to bring someone to demonstrate that they were in possession, but his advocates were aware of this fact. He further testified that from the Plaintifi’s title deed, the property had been charged to Equity Bank. He stated that the Plaintifi alleged that he had bought the land and paid the loan to the bank. DW - 2 confirmed that he had never followed up with Equity Bank to inquire why his property had been charged to a third party. 60. DW - 2 testified that the law firm that drew the sale agreement was Oloo & Chatur Advocates, who were his advocates. He stated that he did not find it odd that the agreement had been drawn by the advocates for the purchaser. 61. On 15th November, 2024, the 1st Defendant called their witness for cross examination who testified that: - D. Cross Examination of DW - 2 by Mr. Wagah Advocate. 62. DW - 2 referred to the letter dated 6th October, 2016 from the 4th Defendant’s bundle, written by the Law firm of Messrs. Oloo & Chatur Advocates, who were the lawyers for May Port Limited. She confirmed that the Advocates had written to the Land Registrar, Mombasa. She further testified that the 2nd Defendant had never testified in this case. 63. DW - 2 referred to the Certificate of Lease of the suit land. She pointed to Entry No. 8, which refiected a transfer dated 9th July, 2013 to James Kibet Chirchir for a sum of Kenya Shillings Four Million Five Hundred Thousand (Kshs. 4,500,000/-). She then referred to Entry No. 9, which refiected a transfer dated 5th September, 2013 to May Port Limited for a sum of Kenya Shillings Fifteen Million (Kshs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 13

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15,000,000/-), registered on 20/12/2013. She confirmed that this was when May Port Limited became the owner of the land. 64. DW - 2 testified that the parcel had never been charged and that May Port Limited had remained the owner of the property, without transferring it to anyone else. E. Re - Examination of DW - 2 by Mr. Ogendo Advocate. 65. DW - 2 testified that she had been given authority to act in this matter by May Port Limited, where she was a director. She referred to the Board Resolution dated 19th May, 2024, signed by the directors, which was marked as Defence Exhibit 1. DW - 2 stated that she had never worked at Messrs. Oloo & Chatur Advocates and had not drafted the contracts of sale agreement or its clauses, as that was the duty of the Advocates. She further testified that she had never been served with any documents allegedly filed by the 2nd Defendant, including the 2nd Defendant’s defence. 66. DW - 2 confirmed that the deposits had been paid and the balance settled through the lawyer’s firm. She referred to the RTGS transfer of a sum of Kenya Shillings Three Million (Kshs. 3,000,000/- by Chatur dated 3rd September, 2013 and a second RTGS dated 23rd September, 2013 for a sum of Kenya Shillings Five Million (Kshs. 5,000,000/-) to James Kibet Chirchir, totaling a sum of Kenya Shillings (Kshs. 8,000,000/-). She also referred to the acknowledgement of payment dated 18th December, 2013, marked as Defence Exhibits 2 and 3, for a sum of Kenya Shillings Four Million Five Hundred Thousand (Kshs. 4,500,000/-), and Defence Exhibit 4 on page 24, signed by James Kibet Chirchir. 67. DW - 2 referred to the certificate of lease and testified that she had never made Entry Nos. 8 and 9 or the payments refiected therein. She added that she had never issued the CR - 12 Form. DW 2 concluded by stating that from the documents filed, there was no prayer sought against the 2nd Defendant. 68. The 1st Defendant marked its case closed through his Counsel Mr. Ogendo Advocate on 15th November, 2024. VI. The 3rd and 4th Defendants’ case 69. The 3rd and the 4th Defendants responded to the Plaintifis’ claim through a Statement of Defence where they stated that: a. Save for what was expressly admitted, the 3rd and 4th Defendants denied each and every allegation contained in the Amended Plaint as if the same were set out seriatim and verbatim traversed. b. The 3rd and 4th Defendants admitted the contents of Paragraphs 1, 2, 3, 4, 5 and 6 of the Amended Plaint, but only to the extent that they were descriptive of the parties. They added that their address of service for purposes of the suit was care of the Honourable Attorney General, Attorney General’s Chambers, NSSF Building, 9th Floor, P.O. Box 82427‑80100, Mombasa. c. The averments in paragraphs 7, 8 and 9 of the Amended Plaint were denied, and the Plaintifis were put to strict proof thereof. d. The 3rd and 4th Defendants stated that they were not privy to the averments in Paragraphs 10, 11, 12, 13, 14 and 15 of the Amended Plaint, and the Plaintifis were put to strict proof thereof. e. The 3rd and 4th Defendants denied the averments in paragraphs 16, 17 and 18 of the Amended Plaint and averred that it was trite law that title obtained through fraudulent means was not https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 14

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protected under the provision of Section 26 (1)(b) of the Land Registration Act nor Article 40 of the Constitution of Kenya. 70. f. The 3rd and 4th Defendants denied the averments in Paragraph 19 of the Amended Plaint. Further, the particulars of illegality alleged against the 3rd Defendant as enumerated in paragraphs 19(a) to (d) were denied in toto, and the Plaintifis were put to strict proof thereof. g. The 3rd and 4th Defendants pleaded that no suit lay against any public oficer for anything done or omitted to be done by him in good faith and without negligence in the intended exercise of any power or the intended performance of any duty conferred or imposed on him by or under Section 52 of the Societies Act, Cap 108 of the Laws of Kenya. h. The 3rd and 4th Defendants averred that the mandatory notice of intention to sue the government and its agencies prior to the institution of the suit had not been served upon them or the Attorney General. Hence, the suit was fatally and incurably defective and did not lie against them. They indicated that they would raise a preliminary objection and urge the Honourable Court to strike out the suit against them. i. The cause of action was admitted to have arisen within the jurisdiction of the Honourable Court. j. The 3rd and 4th Defendants stated that they were not aware of any other existing suit filed against them by the Plaintifis with regard to the same matter. k. For the foregoing reasons, the 3rd and 4th Defendants stated that the reliefs sought by the Plaintifis were neither available nor merited. l. For the reasons wherefore, the 3rd and 4th Defendants prayed that the Plaintifis’ suit against them be dismissed with costs. The 3rd and 4th Defendants called their first witness on 14th November, 2022 and she testified as follows:- A. Examination in Chief of DW - 3 by Mr. Wagah Advocate. 71. DW - 3 was sworn and testified in English language. She introduced herself as SHEILA SOITA. She was the Land Registrar at the Mombasa Registry. She stated that she was also an Advocate of the High Court of Kenya, admitted in the year 2016, and that she had joined the Mombasa Registry earlier that year. DW - 3 referred to an oficial search dated 25th August, 2015, which showed the tenure as freehold. She then referred to another search dated 5th September, 2015, which showed the tenure as leasehold for 99 years. She explained that the tenure related to difierent parcels of land. From her records, she did not have those documents, nor did she have the third oficial search. 72. DW - 3 testified that she had seen a list of documents dated 3rd October, 2022, which could be used as evidence. She confirmed that she had the original title, which emanated from the Land Registry. The last entry, No. 9, refiected a transfer to May Port Limited on 5th September, 2013 for a sum of Kenya Shillings Fifteen Million (Kshs. 15,000,000/-). She added that the last entry on 20th December, 2013 showed a transfer to Mr. Juma Abdalla Kathenge, and that the property had not been charged to anyone. 73. The Court examined the original title and noted Entry No. 6 dated 18th June, 2013, Entry No. 7 dated 10th July, 2013, Entry No. 8 dated 17th July, 2013, and Entry No. 9 dated 20th December, 2013, all bearing the same signature. DW - 1 referred to a letter dated 6th October, 2016 from a Law firm of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 15

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Messrs. Oloo & Chartur Advocates, received on 10th October, 2016, which brought to the Registry’s attention that the owner was apprehensive of acts of fraud by third parties. 74. DW - 3 confirmed that she had a copy of the transfer document, duly executed, with stamp duty paid and received. She acknowledged that there existed a provisional title deed with the DCIO and that investigations were ongoing. She concluded by stating that if any transaction was to be undertaken, the only available file was one. B. Cross Examination of DW - 3 By Mr. Ogendo Advocate. 75. DW - 3 testified that to conduct an oficial search, a form had to be filled, accompanied by a national identity card and a copy of the title deed. She explained that the form was then booked, and that such searches were normally prepared in duplicate, with one copy remaining in the file. In this case, however, she confirmed that the Land Registry did not have any of those copies of the searches in its file. DW - 3 referred to Plaintifi Exhibit No. 5, which was a transfer document dated 21st October, 2017, with stamp duty paid on the same date. She explained that a search could be done by postal means within three days, but if the search was related to a transaction, it could be completed on the same day. DW 3 further referred to Entry Nos. 6, 7, 8, and 9 in the title records. B. Cross Examination of DW - 3 by Ms. Kimeu Advocate. 76. DW - 3 testified that she had knowledge of the suit property and had been at the Mombasa Registry from 2022. She referred to Entry No. 7, which was the certificate of death of Sud Jemou Hamisi dated 10th July, 2013. She then referred to Entry No. 8, which was a transfer dated 9th July, 2013 to James Kibet Chirchir for a sum of Kenya Shillings Four Million (Kshs. 4,000,000/-), registered on 17th July, 2013. She confirmed that it was possible for such a transaction to be completed within 10 days, i.e., between 10th July, 2013 and 17th July, 2013. 77. DW - 1 referred to a letter from Messrs. Oloo & Chartur Advocates dated 16th October, 2016, which contained a request to register a restriction. She explained that the restriction was never registered because the advocate had not applied for the registration. She again referred to Entry No. 7. 78. DW – 3 testified that in their copies, they normally included the consideration, but in this case that information was not entered. She confirmed that Mr. Dil Safari was still the Land Registrar at Mombasa, and that the documents bore the name “D. I. Safari.” She emphasized that the custodian of the record was the Land Registrar. 79. The Court examined the parcel file produced by the Land Registrar, which contained: a. A letter dated 6th October, 2016 from M/s. Oloo & Chartur Advocates. b. A sale agreement dated 4th September, 2013 between James Kibet Chirchir and May Port Limited. c. A copy of the transfer dated 5th September, 2013 between James Kibet Chirchir and May Port Limited. d. A stamp duty declaration dated 5th September, 2012. e. A receipt from National Bank for Kshs. 600,40/-. f. A banker’s cheque by May Port Limited dated 12th September, 2013. g. A property rates receipt for Kshs. 15,224/- dated 20th March, 2014. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 16

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80. h. An identity card for James Chirchir. i. A receipt from Postal General for Kshs. 500/-. j. An application for search by Chartur Advocate. k. The original title deed. l. The Deed Plan. DW - 3 was referred to the transfer document and testified that it had been altered by Sindarini Advocate B. Re - Examination of DW - 3 by Mr. Langat Advocate. 81. DW - 3 testified that from the record, the title indicated that the owner of the suit land was May Port Limited. 82. The 3rd and 4th Defendants through their advocate Mr. Langat Advocate marked the close of their case on 14th November, 2024. VII. Submissions 83. On 15th November, 2024, upon the close of the cases by both the Plaintifis and Defendants, the Honourable court directed that the parties file their written submissions within stringent timeframe thereof on. Pursuant to that the Honourable court reserved a date to deliver its Judgement on notice. A. The Written Submissions by the Plaintifi 84. The Plaintifis through the Law firm of Messrs.Saroni & Stevens Advocates filed their written submissions dated 13th February, 2025. Mr. Steve Ogolla Advocate wherein the Learned counsel submitted that the Plaintifis moved this Honourable Court vide the amended Plaint dated 3rd October 2022. The Plaint is supported by the Plaintifis' Witness Statements dated 8th April 2021. The Plaintifis rely on the List and Bundle of Documents filed contemporaneously with the Plaint. Further, the Plaintifis rely on viva voce evidence adduced at the trial. The suit sought the above cited orders. 85. The suit had been opposed by the 1st, 3rd and 4th Defendants vide their Statements of Defence and Counter - Claim, List and Bundles of Documents filed on various dates. The 2nd Defendant had not participated in the proceedings. 86. On the preamble, the Learned Counsel submitted that the suit had been about double registration in respect of land parcel number CR 20722 Sub - division Number 6234 (Original Number 5220/4) by the 3rd Defendant to the Plaintifis and the 1st Defendant. The Learned Counsel avered that the suit had been about the Honourable Court determining whether the process leading to the registration of rival parties’ parallel titles over land parcel number CR 20722 Sub - division Number 6234 (Original Number 5220/4) had complied with the law. 87. The Learned Counsel submitted that the suit had been about whether the 1st Defendant’s title over land parcel number CR 20722 Subdivision Number 6234 (Original Number 5220/4) ought to have been cancelled.The Learned Counsel submitted that the suit had been about whether the Plaintifis’ proprietary right over land parcel number CR 20722 Subdivision Number 6234 (Original Number 5220/4), acquired for valuable consideration, had been liable to be defeated solely on the grounds that a prior dubious title had existed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 17

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88. The Learned Counsel argued that the suit had been about the Honourable Court having the last word in protecting the Plaintifis’ proprietary rights and title over land parcel number CR 20722 Sub - division Number 6234 (Original Number 5220/4). 89. The Learned Counsel relied on the following three ( 3 ) issues for the Court’s determination. Firstly, whether the 1st Defendant’s title to the suit property had been acquired procedurally, the Learned Counsel submitted from the onset, the Plaintifis had contended that the 1st Defendant’s title to the suit property had been acquired illegally, unprocedurally, and/or through a corrupt scheme. 90. The totality of the 1st Defendant’s case had been that it had purchased the property vide a Sale Agreement dated 4th September 2013. According to the Sale Agreement, the Vendor had been the 2nd Defendant herein. The 1st Defendant had produced the Sale Agreement as part of its evidentiary material to defend the root of its title. The Plaintifis had therefore been at liberty to examine the documents, and had in fact cross-examined the 1st Defendant on the evidentiary value of the Agreement. 91. According to the 1st Defendant’s Sale Agreement, the Purchase Price had been Kenya Shillings Fifteen Million (Kshs. 15,000,000/=). However, during cross-examination, the 1st Defendant’s Witness (DW 1) had conceded that the 1st Respondent had not completed the payment of the purchase price. In any event, the 1st Defendant’s bundle of documents indicating proof of payment had not corresponded with the declared purchase price. 92. Further, and even more disturbing, had been the shocking admission by DW - 1 that although he had signed the Sale Agreement in his capacity as Director of the 1st Respondent, he had never met the 2nd Defendant, who had been the registered proprietor and Vendor of the suit property. When pressed by the Plaintifis’ Counsel whether he could identify the Vendor if he met him, DW - 1 had conceded that he could not. 93. The Learned Counsel opined that in their humble view, the 1st Defendant’s argument that it had conducted due diligence on a property proposed for sale without meeting the proposed seller, had proceeded to sign a Sale Agreement with the alleged Vendor on the same date, and had had the Vendor execute the Transfer Forms a day later, being 5th September 2013, had been untenable. It had not helped matters that the 1st Defendant had not made any attempt to call the Vendor as a Witness. In the circumstances, it had been dificult to argue, by preponderance of evidence, that the 1st Defendant had acquired a valid and legal title to the suit property. 94. Another perplexing dimension to the 1st Defendant’s case had been that the transaction lawyers for the Purchaser and Vendor had been the 1st Defendant’s Advocates, the Firm of Menes, Oloo & Chatur Advocates. According to the 1st Defendant’s Sale Agreement, the Agreement had been executed by the Vendor and Purchasers in the presence of the 1st Defendant’s Advocates, who had allegedly doubled as the Vendor’s Advocates. Yet, DW - 1 had conceded that he had never met the Vendor. The Transfer Form, which had allegedly been executed by the Vendor only a day after the signing of the Sale Agreement, had equally allegedly been executed in the presence of the 1st Defendant’s Advocates. 95. The Learned Counsel posited that the Plaintifis’ contention, therefore, that the 1st Defendant’s transaction documents had been fraught with fraud and falsification, had found credence in the admission by the 1st Defendant that he had never met the Vendor and could not therefore identify him; that the 1st Defendant had failed to prove payment of purchase price; and that the transaction lawyers who had drawn and witnessed the execution of the Sale Agreement had been the 1st Defendant’s Advocates. Similarly, the Transfer Forms, which had allegedly been executed by the Vendor only a https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 18

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day after execution of the alleged Sale Agreement, had allegedly been witnessed by the 1st Defendant’s Advocates. Despite these glaring gaps in the 1st Defendant’s case, which had introduced reasonable doubt in the mind of the Court as to the cogency of the 1st Defendant’s testimony, the 1st Defendant had failed to call the transaction lawyers to corroborate its evidence. 96. Further, when cornered to demonstrate payments for the purchase price, the 1st Defendant relied on letters written by a third party entity to the 1st Defendant's Advocates ostensibly asking them to efiect part payment of Kenya Shillings Four Million (Kshs.4,000,000/=) to the Vendor. For the avoidance of doubt, the 1st Defendant did not demonstrate any correlation between the third party entity and the Vendor, neither did the 1st Defendant provide evidence that its Advocates made the alleged payments. 97. According to the Learned Counsel, the 1st Defendant’s case was that since it acquired the suit property, it did not transfer the same to third parties, and that it still held the original title. The Plaintifi's having questioned the root of the 1st Defendant's tittle, requested the trial court to direct the 1st Defendant to produce the original title in court for examination. It was unclear whether the 1st Defendant produced the original title for the court's examination. Be it as it may, the Plaintifis challenge the 1st Defendant's title as the product of fraudulent dealings, and therefore cannot stand the rigors of Section 26(1) of the Land Registration Act. 98. The Learned Counsel submitted that the 1st Defendant’s title to the suit property is challengeable because there is evidence that the same was acquired illegally, unprocedurally and/or through a corrupt scheme. The Supreme Court in “Dina Management Limited -Versus - County Government of Mombasa & 5 Others (Petition 8(E010) of 2021) [2023] KESC 30 (KLR)”, at paragraph 93, cited with approval the Court of Appeal decision in “Munyu Maina – Versus - Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR”, where Court held that where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore 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 including interests which would not be noted in the register. 99. To establish whether the 1st Defendant’s acquisition was legal, and free from any fraudulent dealings, the Supreme Court in the case of:- “Dina Management (Supra)”,reiterated that it is important to go to the root of the title. The Court then cited with approval, the Court of Appeal in Uganda in “Katende – Versus - Haridar & Company Ltd [2008] 2 EA 173”, which defined a bona fide purchaser for value as follows: “ For the purposes of this appeal, it sufices to describe a bona fide purchaser as a person who honestly intends to purchase the property ofiered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine he must prove that: 1. he holds a certificate of title; 2. he purchased the property in good faith; 3. he had no knowledge of the fraud; 4. he purchased for valuable consideration; 5. the vendors had apparent valid title; 6. he purchased without notice of any fraud; and 7. he was not party to the fraud.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 19

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100. On the same issue, the Court of Appeal in “Samuel Kamere – Versus - Lands Registrar, Kajiado Civil Appeal No 28 of 2005 [2015] eKLR” stated as follows: “ ...in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property...” 101. According to the Learned Counsel, from the cited authorities, it is evident that juxtaposing the circumstances under which the 1st Defendant acquired the title to the suit property, and the jurisprudence on bona fide purchaser for value, the inescapable conclusion is that the 1st Defendant’s title is so much tainted with fraudulent dealings that it would not be possible to allow it to stand without ofiending settled law. 102. The 1st Defendant could not argue, by preponderance of evidence, that it conducted due diligence when DW- 1 admitted that he does not know the Vendor, and would not be able to identify him. Further, 1st Defendant failed to demonstrate that it purchased the property for valuable consideration. The declared value, according to the 1st Defendant's Sale Agreement was for a sum of Kenya Shillings Fifteen Million (Kshs.15,000,000/=). The 1st Defendant failed to demonstrate full payment of the purchase price. 103. The 1st Defendant also failed to demonstrate that it purchased the property in good faith. The alleged Sale Agreement, and Transfer Forms were ostensibly drawn by the 1st Defendant's Advocates, who allegedly witnessed the execution, received instructions to make payments to the Vendor but conveniently failed to provide proof of payment. Despite the fact that the alleged Sale Agreement and Transfer Forms were executed by both the Vendor and the Purchaser in the 1st Defendant/Purchaser’s Advocates’ Chambers, on two consecutive days, for some inexplicable reasons, the 1st Defendant never got to meet the Vendor. The 1st Defendant also failed to call its Advocates to corroborate its testimony. Yet for the 1st Defendant contends that this Honourable Court ought to overlook the fraudulent dealings in the lead-up to its title. 104. It was their humble and final submission that this Honourable Court do find and hold that the 1st Defendant has failed to prove that it acquired the property in good faith, and for valuable consideration, and therefore enter Judgment against the 1st Defendant by way of cancellation of its title in respect of land parcel number CR 20722 Subdivision Number 6234 (Original Number 5220/4). 105. Secondly, was on whether the Plaintifis were innocent purchasers for value without notice. The Learned Counsel asserted that the factual matrix was that the gravamen of the Plaintifis’ case is that they/purchased the suit property from the 2nd Defendant having carried out the necessary due diligence to determine the lawful owner of the property, and having paid valuable consideration for the purchase of the suit property. In support of their case, the Plaintifis produced copies of oficial searches from the 3rd Defendant which corresponded with the 2nd Defendant’s title. The Plaintifis further produced a copy of the Sale Agreement, proof of payment of purchase price and stamp duty, duly completed Transfer Forms, and their original title to the property. 106. According to the Purchasers, at the time of sale, the suit property was charged to Equity Bank. The purchase price was Kenya Shillings Twelve Million (Kshs.12,000,000/=) which was fully paid by the Plaintifis and from which the sum of Kenya Shillings Three Million (Kshs. 3,000,000/=)was paid to Equity Bank for the Bank to discharge the Charge that had been registered to the Bank’s name. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 20

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further, the Plaintifis paid stamp duty amounting to Kenya Shillings Four Hundred and Eighty (Kshs. 480,000/=). 107. It was the Plaintifis’ case that when Equity Bank delayed to discharge the property, they sued the Bank in “Juma Abdalla Munyao Kathenge – Versus - James Kibet Chirchir & Equity Bank ELC No. 346 of 2016”. The matter was then settled out of court when Equity Bank discharged the property, and the 3rd Respondent consequently registered the suit property their names. The Plaintifis aver that they gained vacant possession of the suit property, fenced it and erected a gate on the property. That sometime in December 2020, they noticed that strangers had trespassed into the property, vandalized the old gate, and erected a new one. That it is only after they reported the matter to the local police, that they learned that the 1st Defendant was claiming proprietary right over the suit property. 108. From the facts of this case, it emerged clearly that both the Plaintifis and the 1st Defendant claim to have purchased the suit property from the 2nd Defendant. The 1st Defendant claims to have purchased the property sometime in 2013, while the Plaintifis aver that they purchased the property in 2016. The 1st Defendant’s case is that it has never transferred the property to any third party, and maintained that it still had the original title. The 3rd Defendant testified in favour of the 1st Defendant claiming that the records in the parcel file showed the suit property belonged to the 1st Defendant. 109. According to the Learned Counsel, the 3rd Defendant categorically denied any knowledge of the Plaintifis' title. However, the 3rd Defendant failed to explain under what circumstances the suit property was charged to Equity Bank, the subsequent discharge and transfer by the 3rd Defendant to the Plaintifis.According to the Plaintifis, the 3rd Defendant maintained a parallel register which indicated double registration in respect of the suit property. The Plaintifis rejected the 3rd Defendant’s evidence as deliberately skewed to favour the 1st Defendant. In any event, the Plaintifis maintained that the 1st Defendant's title was the product of fraudulent dealings, and therefore waving the sanctity of title, in and of itself, while the root was tainted, conferred no legal protection to the 1st Defendant. 110. The Learned Counsel on the law argued that the Plaintifis contended that they are they are bona fide purchasers of the suit property, having purchased it from the 2nd Defendant for a sum of Kenya Shillings Twelve Million (Kshs. 12,000,000/=). That they acquired valid and legal title, having carried out all the necessary due diligence and paid valuable consideration for the purchase of the suit property. Accordingly, the Plaintifis contend that their title is protected under the provision of Article 40 of the Constitution and Section 26(1) of the Land Registration Act. 111. The Learned Counsel submitted that Article 40 of the Constitution prohibits the State, through its agents such as Land Registrars, from arbitrarily depriving the Plaintifis of their property. The Plaintifis aver that in carrying out due diligence, they sought confirmation from the relevant government registry that a valid title capable of transmission to them existed. It was the Plaintifis’ case that the Mombasa Land Registry confirmed the validity of the title of the 2nd Defendant vide Oficial Searches dated 25th August 2016, and 5th September 2016. Further, the government through its Mombasa Land Registry confirmed that the property was charged to Equity Bank. The government, through its authorized oficer, the then Mombasa Land Registrar, Mr. Dick J. Safari, efiected the transfer to the Plaintifis. 112. In any event, the 4th Defendant, the Honourable Attorney General, failed to call the Registrar who signed the transfer in favour of the Plaintifis to come to court to clarify the circumstances of the transfer. For the avoidance of doubt, neither the Honourable Attorney General nor the Inspector Cornelius Rotich (PW - 2) who caused the Plaintifis' title to be examined by a certified government document examiner, alleged that the Registrar's signature was forged. Simply put, the authenticity and validity of the Plaintifis’ title was wholly without rebuttal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 21

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113. When questioned by the Honourable Court, the Land Register who attended court to testify on behalf of the 3rd Defendant simply said that Mr. Safari had been transferred to a difierent station. The Witness did not provide reasons why they never called Mr. Safari as a Witness. The Plaintifis contend that Mr. Safari’s evidence was crucial to the fairness & justice the case. Although the decision to call Mr. Safari was discretionary, the failure to call a crucial witness, such as Mr. Safari, entitled the court to make adverse conclusion against the State, the 3rd and 4th Defendants herein. 114. Further, the Plaintifis testified and adduced evidence that proved that they faithfully and periodically made payments of rates on the suit property to Mombasa County Government. The Plaintifis submit that neither the national nor county government questioned the 2nd Defendant’s title, reinforcing the Plaintifis’ case as bona fide purchasers for value without notice, efiectively making their title absolute and indefeasible. In this regard, the Plaintifis invoke the doctrine of estoppel against the 3rd and 4th Defendants. 115. The Learned Counsel submitted that Section 26(1) of the Land Registration Act provides only two circumstances under which the certificate of title issued by the Registrar to a purchaser of land upon transfer may be challenged. These are: on the ground of fraud or misrepresentation to which the person is proved to be a party: or where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 116. The proviso in Section 26(1) of the Land Registration Act has been explained in several decisions including the authorities cited and relied upon herein. The Supreme Court in “Dina Management (Supra)” cited with approval, the Court of Appeal in Uganda in “Katende – Versus - Haridar & Company Limited (Supra)”, which defined a bona fide purchaser for value as a person who honestly intends to purchase the property ofiered for sale and does not intend to acquire it wrongly. 117. It was their humble submissions that the Plaintifis were diligent bona fide purchasers as described in “Katende – Versus - Haridar & Company Limited (Supra)”. From their testimony, the Plaintifis had no sight of any fraud and/or impropriety in the title presented to them by the 2nd Defendant. Further, none of the Defendants adduced evidence to show that the Plaintifis intended to acquire the suit property wrongly. The Plaintifis are innocent purchasers for value without notice, who played by the rules, and relied on the government land registry's confirmation that a valid title capable of transmission to them existed. The evidence that the Plaintifis carried out all the necessary due diligence and paid valuable consideration for the purchase of the suit property is wholly without rebuttal. 118. That being the case, as the law states as cited herein above, the Plaintifis’ title to the suit property is absolute and indefeasible. The provision of Section 80 (2) of the Land Registration Act, No. 3 of 2012 specifically applies to the Plaintifis’ case and protects their title to the suit property as they were innocent purchasers for value without notice. 119. Finally, on what were the appropriate remedies. The Learned Counsel submitted that looking at the circumstances of this case, it is clear that the transfer to the 1st Defendant contravened the provision of Section 26 (1)(a)(b) of the Land Registration Act. The 1st Defendant failed to demonstrate due diligence, proof of payment of valuable consideration in accordance with the terms of its alleged Sale Agreement, conceded that he did not know the Vendor, failed to demonstrate how their Advocates ended up acting for the Vendor, thereby tainting, by preponderance of evidence, the root of their title. 120. The Learned Counsel averred that the Honourable Court should hold and find that the 1st Defendant's title was not properly or legitimately acquired. Accordingly, and pursuant to the provision of Section 80(1) of the Land Registration Act, the Plaintifis plead with the Honourable Court to order the rectification of the register by directing that the 1st Defendant’s title be cancelled. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 22

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121. According to the Learned Counsel looking at the Plaintifi’s case, and the totality of evidence, which is wholly without rebuttal, it was the Plaintifis’ humble submission that this Honourable Court should be persuaded that the Plaintifis have proved that they were innocent purchasers for value without notice, and therefore their title to the suit property was is absolute and indefeasible. 122. In the circumstances, the Learned Counsel urged the Honourable Court to grant the prayers sought in the Amended Plaint dated 3rd October, 2022 as prayed. B. The Written Submissions by the 1st Defendant 123. The 1st Defendant through the Law firm of Messrs. A.A. Said & Co. Advocates filed their written submissions dated 13th December, 2024. Mr. Ogendo Advocate submitted that the crux of the case before them had involved a very delicate matter of an accusation against the 1st Defendant's Certificate of Title, specifically PLOT NO. M.N./1/6234 sub - division number 6234 (Original Number 5220/4) which had been registered as Entry No. 9 on 20th December 2013 and was alleged to have been registered as a parallel registration to the Plaintifis. An allegation which they exhaustively intended to disprove as demonstrated below. 124. The allegation by the Plaintifis had been supported by a contradicting Certificate of Title in the name of Juma Abdallah Munyao and Asman Juma which had allegedly been registered on 21st September 2017. This accusation of an alleged registration of title reference PLOT NO. M.N./1/6234 sub division number 6234 (Original Number 5220/4) in favour of the Plaintifis had been brought to the attention of the 1st Defendant through the filing of the following: a. The Plaintifi/Applicant, as they were then, had served upon the 1st Defendant summons to enter appearance; a copy of a court order dated 14th April 2021; a Notice of Motion application dated 8th April 2021 under a Certificate of Urgency and a Supporting Afidavit together with a Plaint and accompanying documents both dated 8th April 2021. b. The 1st Defendant had honoured the summons and had filed its responses to the application and the suit: a Replying Afidavit dated 20th May 2021 and filed on the same date; a Statement of Defence together with a counterclaim dated 20th May 2021 and filed on the same date; a list of documents itemized and numbered 1 to 27 (adopted as Exhibits 1 to 30 during the defence hearing of the 1st Defendant's case); an Application under Certificate of Urgency dated 24th September 2021 and an Amended Statement of Defence dated and filed on 24th February 2022. 125. When the dispute ensued between the parties the Plaintifi had preferred to sue the 1st Defendant and later this Honourable Court had granted the 1st Defendant applications/orders to enjoin the 2nd, 3rd and 4th Defendants respectively. It had been evident that the 2nd Defendant had been the vendor in a transaction transferring its interest in the suit property, being PLOT NO. M.N./1/6234 Sub – Division Number 6234 (Original Number 5220/4), from itself to the 1st Defendant in the year 2013 and had subsequently entered into a parallel agreement in the year 2017 purporting to transfer interests in the same property to the Plaintifis, transactions to which the 1st Defendant had not been a party. 126. Consequently, the 1st Defendant had since defended its position, having not transferred any of its interest in the suit property to any further third party, including but not limited to the 1st and 2nd Plaintifis jointly and/or severally, before the filing of this case and preceding the trial. 127. On apprehending such allegations, the 1st Defendant had been consistent with its desire to protect the suit property and had erected a perimeter fence and employed security systems to the best of its ability. It had also been noted that the 1st Defendant had made several efiorts to realize the property and had https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 23

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been ofiered an ofier letter by I&M Bank Limited for a facility of Kenya Shillings Twenty-Five Million (Kshs. 25,000,000.00) to develop the property. Unfortunately, the 1st Defendant's directors had been forced to halt those development plans under the restriction of an order from this Honourable Court dated 14th April 2021. 128. The matter had proceeded for hearing before the Honourable Court in the absence of and the nonparticipation of the 2nd Defendant herein. The Plaintifis had sought two weeks from 15th November 2024 to file and serve their submissions and Honourable Court had granted the Defendants 21 days to file subsequent submissions. The 1st Defendant had contended that they filed their submissions without the benefit of the Plaintifis' case in submissions. 129. It was noted that upon the Plaintifis’ realization of a possible fraudulent exchange with the 2nd Defendant, the Plaintifis had opted to register a complaint and specifically preferred charges against the 2nd Defendant to the exclusion of the 1st Defendant, charges which had become the subject of an ongoing criminal indictment at the Shanzu Law Courts against the 2nd Defendant. 130. On the issues for determination, the Honourable Court identified the following three ( 3 ) issues. Firstly, whether the Plaintifis’ case was merited on the reliance of a parallel Certificate of Title. The Learned Counsel submitted that the 1st Defendant had submitted under the provisions of Article 40 of the Constitution of Kenya 2010 which provided that, subject to Article 65, every person had the right, either individually or in association with others, to acquire and own property (a) of any description; and (b) in any part of Kenya. The Constitution, as read together with the provisions of Sections 24 and 25 of the Land Registration Act, No. 3 of 2012, had been categorical on the basic right of the 1st Defendant, rights which this Honourable Court had a constitutional duty to protect: the right to acquire and own property anywhere within the Republic of Kenya and to develop it accordingly. The said right had included the right to occupy, use and develop the property. 131. To address the issue at that stage, the 1st Defendant had relied on the case of “Hubert Martin & 2 Others – Versus - Margaret J. Kamar & 5 Others (2016) eKLR” where the Court had stated that a court, when faced with two or more titles over the same land, had to make an investigation so that it could discover which of the two titles should be upheld. That investigation had to start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It had followed that the title to be upheld was that which conformed to procedure and could properly trace its root without a break in the chain. 132. Through its pleadings, alongside the exhibits and the testimony of Yakatali Lamuwalla (also known as Zul), the 1st Defendant had placed evidence to confirm the root of its acquisition of the title to Plot No. M.N./1/6234 Sub – division Number 6234 (Original Number 5220/4) by stating that instructions had been placed to the law firm of Messrs. Oloo and Chatur Advocates to conduct a search. In support of this he had produced certificates of search conducted in attempts to discover the rightful owner of the property wherein the search certificate dated 22nd July, 2013 had indicated that the 2nd Defendant had been the rightful owner of the suit property. 133. Further to this, a deal had been struck and agreed upon for the 1st Defendant company to purchase the suit property from the 2nd Defendant for a sum of Kenya Shillings Fifteen Million (Kshs. 15,000,000.00) which had been evidenced in the 1st Defendant’s exhibits as a Sale Agreement dated 4th September 2013. 134. Consequently, the 1st Defendant company, after being satisfied with the purchase, had executed and registered instruments of transfer to transfer all interest in the suit property from the 2nd Defendant to the 1st Defendant through a transfer dated 5th September 2013, an exhibit produced by the 1st https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 24

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Defendant. From the above, it had been evident beyond doubt that the 1st Defendant had complied with the provisions of Sections 24 and 25 of the Land Registration Act, No. 3 of 2012 in the acquisition, purchase and registration of the suit property from the 2nd Defendant in favour of the 1st Defendant. 135. In the Plaintifis’ case, their testimony on the credibility of the title documents produced as exhibits had indicated that the alleged transaction had been conducted and registered sometime in the year 2017. That allegation had not aligned with the procedural requirements laid out in the Land Registration Act 2012 for interests in Plot No. M.N./1/6234 Sub – Division No. 6234 (Original Number 5220/4) to pass from the 1st Defendant to the Plaintifis, the 1st Defendant being the current holder of the certificate of title in the suit property, without: a. The Plaintifis securing and producing as an exhibit in court a sale agreement fully executed by the 1st Defendant in the sale and purchase of the suit property; b. Transfer instruments executed by the Plaintifis and the 1st Defendant in their favour as conclusive proof of transfer of interests in PLOT NO. M.N./1/6234 Sub – division Number 6234 (Original Number 5220/4) to the Plaintifis. 136. The 1st Defendant, in support of the above, had relied on the Court of Appeal decision dealing with duplicated and parallel titles in the case of “Wreck Motors Enterprises – Veruss - Commissioner of Lands (1997) eKLR”, which had concluded that, as equity taught, first in time prevailed. 137. It had further been evident during trial and from the documents provided by the Plaintifis in support of their case that the title documents provided by the Plaintifis, being a Provisional Certificate of Title dated 18th June 2013, had been laced with the following contradictions:Entries numbered 8' (second entry 8) to entry 12 had contradicted entries 6 to entry 8.Entry 6 of the Provisional Certificate of Title dated 18th June 2013 provided by the Plaintifis in the counterclaim had contained a consistent signature and date of 18th June, 2013 with entries 7 and 8 as registered with that Provisional Certificate of Title.Entry 7 of the Provisional Certificate of Title dated 18th June 2013 provided by the Plaintifis in the counterclaim had contained a signature and date of 10th August, 2013 which had been inconsistent with entries 6 and 8 as registered with that Provisional Certificate of Title.Entry 8 of the Provisional Certificate of Title dated 18th June 2013 provided by the Plaintifis in the counterclaim had contained a signature and date of 17th August, 2013 which had been inconsistent with Entries 6 and 7 as registered with that Provisional Certificate of Title.Entry 8’ (second entry 8) of the Provisional Certificate of Title dated 18th June 2013 provided by the Plaintifis in the counterclaim had contained an inconsistent signature and a date of 11/11/015 with Entries 6, 7 and 8 as registered with that Provisional Certificate of Title.The date captured above had shown a contradictory three-digit figure for the year registered as 015 instead of a four-digit year as in Entries 6, 7 and 8.Entry 9 of the Provisional Certificate of Title dated 18th June 2013 provided by the Plaintifis in the counterclaim had not contained any signature and date which had been inconsistent with all the entries registered with that Provisional Certificate of Title.Entry 10 of the Provisional Certificate of Title dated 18th June 2013 provided by the Plaintifis in the counterclaim had contained an inconsistent signature and date of 12/7/017 with Entries 6, 7 and 8 as registered with that Provisional Certificate of Title.The date captured above had shown a contradictory three-digit figure for the year registered as 017 instead of a four-digit year as in entries 6, 7 and 8.Entry 11 of the Provisional Certificate of Title dated 18th June 2013 provided by the Plaintifis in the counterclaim had contained an inconsistent signature and date of 21/9/017 with Entries 6, 7 and 8 as registered with that Provisional Certificate of Title.The date captured above had shown a contradictory three-digit figure for the year registered as 017 instead of a four-digit year as in Entries 6, 7 and 8.Entry 12 of the Provisional Certificate of Title dated 18th June 2013 provided by the Plaintifis in the counterclaim had contained an inconsistent signature and date of 21/9/017 with Entries 6, 7 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 25

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and 8 as registered with that Provisional Certificate of Title.The date captured above had shown a contradictory three-digit figure for the year registered as 017 instead of a four-digit year as in Entries 6, 7 and 8. 138. The 1st Defendant, in their submissions, had relied on the Court of Appeal decision in “Munyu Maina – Versus - Hiram Gathiha Maina” (Supra) where the Court had stated that when a registered proprietor's root of title was challenged, it was not suficient to dangle the instrument of title as proof of ownership. The registered proprietor had to go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition had been legal, formal and free from any encumbrances including any and all interests which would not be noted in the register. 139. Secondly, on whether the 1st Defendant’s Counter - Claim was merited. It was the contention by the Learned Counsel that in their Counter - Claim, the 1st Defendant, being the Plaintifi in the Counter Claim, had sought before this Honourable Court orders to the efiect that the Plaintifis' parallel titles provided in court be cancelled through an order of the court and that this Honourable Court be directed at the 3rd Defendant to efiect the cancellation; an order to the efiect of confirmation of the title held by the 1st Defendant as being the rightly registered and subsisting title; and finally that damages be awarded in favour of the 1st Defendant. That the prayers sought in the Counter - Claim be allowed as prayed. 140. The 1st Defendant in their case had demonstrated categorically that their title in Plot No. M.N./1/6234 sub - division number 6234 (Original Number 5220/4) had been procured in a manner consistent with the legal provisions and the laid out procedures on acquisition of title. In that regard, the 1st Defendant had placed reliance on the case of “Willy Kipsongok Morogo – Versus - Albert K. Morogo (2017) eKLR” where the Court had held that the evidence on record showed that the suit parcel of land had been registered in the names of the Plaintifi and therefore had been entitled to protection under the provision of Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012. 141. The Counsel cited the case of “Joseph N.K. Arap Ng'ok – Versus - Moijo Ole Keiwua & 4 Others [1997] eKLR”, the Court of Appeal had held that:“ once one was registered as an owner of land, he had absolute and indefeasible title which could only be challenged on grounds of fraud or misrepresentation, and such had been the sanctity of the title bestowed upon the title holder.” 142. Further, in the case of:- “Civil Appeal No. 246 of 2013 - Arthi Highway Developers Limited – Versus - West End Butchery Limited and Others”, the Court of Appeal had expressly stated that:“ Section 23 (1) of the then Registration of Titles Act (now reproduced substantially as Sections 25 and 26 of the Land Registration Act) gave an absolute and indefeasible title to the owner of the property. The title of such an owner could only be subject to challenge on grounds of fraud or misrepresentation to which the owner was proved to be a party. Such had been the sanctity of title bestowed upon the title holder under the Act. It had been the law and law had taken precedence over all other alleged equitable rights of title. In fact the Act had been meant to give such sanctity of title, otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya would have been placed in jeopardy”. 143. Thirdly, on the cost of the Notice of Objection. The Learned Counsel submitted that on the issues of costs, they had submitted that in the case of “Reid, Hewitt & Co – Versus - Joseph, AIR 1918 Cal 717” and “Myres – Versus - Defries (1880) 5 Ex D 180”, the House of Lords had noted that the expression https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 26

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“costs shall follow the event” meant that the party who, on the whole, succeeded in the action got the general costs of the action, but where the action involved separate issues, whether arising under difierent causes of action or under one cause of action, the word “event” should be read distributivity and the costs of any particular issue should go to the party who succeeded upon it. 144. An award of costs was therefore not cast in stone but courts had ultimate discretion. In exercising that discretion, courts had to look not only at the outcome of the suit but also at the circumstances of each case. In “Morgan Air Cargo Limited – Versus - Evrest Enterprises Limited [2014] eKLR” the court had noted that the exercise of the discretion depended on the circumstances of each case. Therefore, the law in designing the legal phrase that “costs follow the event” had been driven by the fact that there could be no “one-size-fits-all” situation on the matter. That had been why section 27(1) of the Civil Procedure Act had been couched the way it appeared in the statute; and judicial decisions on costs had recognized this fact and had been guided by and decided on the facts of the case respectively. Needless to state, circumstances had difiered from case to case. 145. On the issue of cost, they submitted that on the strength of their submissions and the demonstration that the 1st Defendant had been the rightful owner of the suit property, they implored the discretion of this Honourable Court to allow the 1st Defendant's Counter - Claim with costs. 146. In conclusion, the Learned Counsel submitted that on the strength of their submissions, and with the overwhelming support of the 1st Defendant's exhibits, the evidence in chief and the testimony (under oath) of its witness and the Constitution, written laws and case law, they prayed that this Honourable Court grant the prayers made in their pleadings.Any other order that this Honourable Court deemed fit and just in the circumstances. C. The Written Submissions by the 3rd and 4th Defendants 147. The 3rd and 4th Defendants filed their written submissions dated 17th December, 2024 through the Attorney General’s Chambers. Mr. Wagah, the Senior State Counsel submitted as follows. Before the Honourable Court had been the Plaintifi’s suit that had been instituted via an Amended Plaint dated 3rd October 2022 and filed on the 3rd October 2022. The suit had sought a declaration that the property known as CR. NO 20722/1 Sub - division Number 6234 (Original Number 5220/4), situate in Mombasa, had belonged to the Plaintifi. 148. The 1st Defendant had filed a defence and a Counter - Claim in response to the Amended Plaint. The 2nd Defendant had not filed a defence against the suit. The 3rd and 4th Defendants had filed a joint defence in response to the Amended Plaint. The matter had proceeded for hearing on various dates with the Plaintifi, 1st, 3rd and 4th Defendants testifying respectively. It had been essential to note that the 2nd Defendant had not filed any response to the suit, neither had any evidence been led in support of his case. 149. The Plaintifi, while on the dock, had testified before the Court that he had bought the suit property from James Kibet Chirchir, the 2nd Defendant herein, in the year 2016 and had allegedly paid the sum of Kenya Shillings Twelve Million (Kshs. 12,000,000/-).He had equally alleged that the advocate acting on his behalf had conducted searches which had shown that the 2nd Defendant had been the owner of the suit property at the time. However, it had been clear during cross-examination that he had had no idea where his advocate had obtained the searches. The Land Registrar had testified, denying that the said searches could have emanated from their ofice, as she had said that the signatures on the searches, from her experience, had not belonged to the Land Registrar named in the search. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 27

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150. To buttress this position, the Land Registrar had stated that it had not been possible that the said searches had come from their ofice, with glaring irregularities indicating that the same property had been both leasehold and freehold tenure at the same time.It was also been important to note that during cross-examination of the Plaintifi, it had been clear that the national Identity card presented by the Plaintifi as belonging to the 2nd Defendant had not been the same as the one in the lands ofice. 151. He claimed that the property had been charged before he purchased it. But it had been clear that there had been no consent from the bank allowing for the transfer of the alleged suit property to the Plaintifi as required by law. The said charge had not been registered at the lands registry. 152. During cross-examination of the Plaintifi, it had been clear that the dates in his documents had not tallied with his narration. The Plaintifi had sworn that he had bought the property and that it had been transferred to him in the year 2016. He had led evidence by producing Plaintifi Exhibit 2, the Sale Agreement dated 5th September 2016. The alleged title relied on by the Plaintifi, Entry 12, had shown that the property had been transferred to the Plaintifi on 21st September 2017. On the other hand, the same Plaintifi had also led evidence showing that the property had been charged until 6th March 2017 when the property had been discharged (see Plaintifi Exhibit No. 4, Discharge of Charge). As if that had not been enough, the Plaintifi had also produced a transfer dated 21st September 2017 (see Plaintifi Exhibit No. 5), indicating that the property had allegedly been transferred to him by the 2nd Defendant in the year 2017, thus not being in tandem with his evidence in chief. 153. Last but not least, the Plaintifi had not been able to explain why his Provisional Certificate of Title had not been chronologically numbered. The entries in the title had numbered correctly from 1 to 8, then had jumped to 12, leaving out Entries 9 through 11. This bit had been properly explained by the Land Registrar. The Plaintifi’s evidence had not only been inconsistent but had looked like a wellchoreographed scheme which had not held because there was never a perfect crime scene. Whether the Plaintifi had known of this scheme or not had been the question that the Court had had to agonize over. 154. The Learned Counsel went further to state that the 1st Defendant’s case had been that it had bought the suit property in 2013 from the 2nd Defendant and that the same had been transferred to its name, and from that time to date it had never made any transfer to any other party. The witness for the 1st Defendant had said that they had paid a sum of Kenya Shillings Fifteen Million (Kshs. 15,000,000/-) for the suit property and the stamp duty when they had bought the property. In cross-examination, he had maintained that they had bought the property in the right manner and had produced documents proving the same.He had also indicated that the 1st Defendant had been in occupation of the suit property from the year 2013 to date and that he had been surprised that the Plaintifi had claimed ownership of the said suit land. 155. The 1st Defendant’s witness had led evidence showing that all payments had been made and that their advocate had written a letter to the Land Registrar to complain of interference on their suit property. He had also indicated that all money owing to the 2nd Defendant had been paid and that the same person had not been in Court to challenge this asserssion.The witness for the 1st Defendant had also informed the Court that since acquiring the property, they had never sold it to anyone and they had never charged it to anyone. In fact, it had been surprising to them that the Plaintifi had claimed to have bought the suit property in the year 2016. 156. According to the Learned Counsel, the 2nd Defendant had not filed anything in the matter, neither had he appeared as a witness during the proceedings. However, it had been clear via PW - 2, Inspector Cornelius Rotich, number 237669, that criminal proceedings had been preferred against him and that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 28

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the case had been ongoing at Shanzu Law Courts. It had also been clear that the Plaintifi had been the complainant in criminal case number E969 of 2021 at Shanzu Law Courts. 157. The 3rd Defendant’s evidence had been given by M/s. Sheila. In her examination-in-chief she had produced the list of documents dated 3rd October 2022 as her evidence. In her testimony she had told the Court that according to the records it had been clear that the 1st Defendant, May Port Limited, had been the current owner of the suit property after it had been transferred to it in the year 2013.She had categorically stated that after the suit property had been transferred to the 1st Defendant in the year 2013. It had had never been transferred to any other person. It had also been her testimony under oath that the alleged transfer of the year 2016 to the Plaintifi had never happened and had not been registered at the lands registry. To this extent she had produced the original title in A3 format which had clearly shown that the last entry had occurred when the property had been transferred from the 2nd Defendant to the 1st Defendant in Entries 8 and 9 of the copy of the title. 158. The Land Registrar had explained at length that the searches allegedly relied on by the Plaintifi could not hold, as she had questioned the signatures and the information in the said searches. She had also stated that according to their records there had been no charge ever registered, neither had there been any entry since Entry 9 which had transferred the property to the 1st Defendant. It had been her informed opinion that either the Plaintifi might have been misled by the 2nd Defendant, who had purported to sell the suit property to him but had not been the owner, or that the Plaintifi might have been involved in an attempt to take away the property from the rightful owner, the 1st Defendant. 159. In Cross - Examination by the Advocate for the Plaintifi, she had explained that in transferring property from one person to another it had been essential for all documents to align in terms of dates, and that it had not been possible for the Plaintifi to have allegedly obtained ownership in the year 2016 as indicated in Entry 12 while the transfer documents had been dated 2017. She had further explained that it had not been possible for any entry to be done without the authority of the owner, who had been the 1st Defendant in this case, and if the previous owner had challenged any entry after that then they should have been cancelled. 160. In conclusion, she had presented that the last entry in the title had been in 2013 when the property had passed to the 1st Defendant, and that without their authority no interest could have passed. She had confirmed that only the 1st Defendant had had the rightful title to the suit property and not the Plaintifi as alleged. 161. The Learned Counsel relied on the following three ( 3 ) issues: a. Whether the Plaintifi had been the owner of the suit property. b. Whether the Plaintifi had been to be considered as an innocent purchaser for value. c. Whether there had been fraud or illegalities by the 3rd Defendant against the Plaintifi. 162. The Learned Counsel submitted that the provision of Section 26(1) of the Land Registration Act had provided that the Certificate of Title issued by the Registrar upon registration had been prima facie evidence that the person named as proprietor of the land had been the absolute and indefeasible owner, whose ownership and proprietorship could only have been impeached on the ground of fraud or misrepresentation to which the person had been proved to be a party, or where the certificate of title had been acquired illegally, unprocedurally, or through a corrupt scheme. 163. Therefore, this Honourable Court had been tasked with making a discovery as to which of the litigants before it had had legal rights in the suit property. In making that discovery, Munyao J in “Hubert L. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 29

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Martin & 2 Others – Versus - Margaret J. Kamar & 5 Others [Supra]”, at paragraph 31, had suggested that: “ …….This investigation had to start at the root of the Title and follow all the processes and procedures that had brought forth the two titles at hand. It had followed that the title to be upheld had been that which had conformed to procedure and could properly trace its root without a break of the chain. The parties to such litigation had always had to bear in mind that their title had been under scrutiny and they had needed to demonstrate how they had got their title starting with its roots. No party had been entitled to take it for granted that simply because they had had a title deed or Certificate of Lease, then they had had a right over the property. The other party had also had a similar document and there had therefore been no advantage in hanging one’s case solely on the title document that they had held.” 164. The foregoing excerpt from Munyao J’s decision had imposed an obligation upon each party to demonstrate that their title had had a good foundation and had been properly passed to them. Indeed, the Learned Counsel submitted, the Court of Appeal in “Munyu Maina – Versus - Hiram Gathiha Maina [2013] eKLR” at paragraph 17 had held: “ …We stated that when a registered proprietor’s root of title had been under challenge, it had not been suficient to dangle the instrument of the title as proof of ownership. It had been that instrument of title that had been in challenge and the registered proprietor had had to go beyond the instrument and prove the legality of how he had acquired the title and show that the acquisition had been legal, formal and free from any encumbrances including any and all interests which had not needed to be noted on the register.” 165. According to the evidence led by the Plaintifis, he had stated that he had bought the suit property in the year 2016 but the same had allegedly been transferred to him in year 2017. It had been clear, as explained above, that the Plaintifi’s documents had not added up. By the time he had allegedly bought the property, it had already belonged to the 1st Defendant, who had bought it in 2013 and had never sold it since then. 166. It had also been clear that he would not have obtained the property in the right manner as his documents had contained many defects: signatures, dates not aligning, and documents not emanating from the land registrar’s ofice, among others. On the other hand, the 1st Defendant had demonstrated that it had bought the property in the year 2013 from the 2nd Defendant and had never transferred the property to any other person. That position had been buttressed by the Land Registrar, who had been the custodian of the documents. 167. Based on the above and the evidence led before this Honourable Court, it had been clear that the 1st Defendant had had good title to the suit property. If anything, the 2nd Defendant in the year 2016 had not had the title to pass to anyone as he had already sold the property to the 1st Defendant.The maxim Nemo dat quod non habet had come into action: Mr. James Kibet Chirchir could not have passed a proper title to Juma Abdalla Munyau and Asmaa Juma Nduku if he had not had title to the suit property, as in 2016 the property had already belonged to Mayport Limited. 168. On whether the Plaintifi had been entitled to be considered an innocent purchaser for value on notice. The Learned Counsel submitted that it is trite jurisprudence that courts had shunned the idea of innocent purchaser for value and had emphasized the importance of due diligence in acquisition of properties. This position had been buttressed in the case of:- “Dina Management Limited – Versus County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR)”, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 30

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where the Supreme Court had held that the provision of Article 40 of the Constitution had entitled every person to the right to property, subject to limitations. Article 40(6) had limited the rights as not extending them to any property that had been found to have been unlawfully acquired. 169. Having found that the registered owner had not acquired title regularly, the ownership of the suit property by the Appellant thereafter could not have been protected under Article 40 of the Constitution. The root of the title having been challenged, the appellant could not have benefited from the doctrine of bona fide purchaser. 170. Based on the above submissions, it had been clear that the Plaintifis had not had the right to acquire the property from the 2nd Defendant while it had belonged to the 1st Defendant. The Learned Counsel submitted that he could not have claimed to have been a bona fide purchaser for value as alleged in his testimony, as it had been clear that if due diligence had been done he would have realized that the property had belonged to the 1st Defendant. 171. Equally, The Learned Counsel submitted, it had been important to note the equity maxim Nemo dat quod non habet, which translated to “no one can give what he does not have.” It had not been possible that the 2nd Defendant could have given any proper title to the Plaintifi if he had not had one to begin with.The Learned Counsel submitted that it had been clear enough that the Plaintifi had not been an innocent purchaser for value and thus could not have been protected by the Honourable Court. 172. On whether there had been fraud or illegalities by the 3rd Defendant against the Plaintifi. The Learned Counsel averred that the Plaintifi had not provided any evidence to prove that there had been a conspiracy among the Defendants to take away the suit property from him. Conspiracy, fraud and corruption had been criminal in nature, and for one to prove the same, it had been upon the Plaintifi to prove that there had been intention to take away his parcel of land illegally and that there had been the actual taking of the parcel from him. 173. The Learned Counsel submitted that the Plaintifi had not led any evidence to prove fraud on the part of the 3rd Defendant, thus that limb had had to fail. The provision of Section 52 of the Societies Act, Cap 108 of the Laws of Kenya, had provided that:“ No suit shall lie against any public oficer for anything done or omitted to be done by him in good faith and without negligence in the intended exercise of any power or the intended performance of any duty conferred or imposed on him.” 174. This legal position had been buttressed in the case of:- “Ali Mohamed Kijuvi & Another – Versus Registrar of Title Mombasa & 2 Others; Josephine Naisenya Mbatia & Another (Interested Parties) [2019] eKLR”, in which the Court had noted that:“ It is trite law that fraud must not only be pleaded but the same must be specifically proved.” 175. The Court had proceeded to hold that fraud, conspiracy and illegality had not been proved against the Registrar of Lands.The Learned Counsel submitted that the property had belonged to the 1st Defendant, Mayport Limited, and not the Plaintifis, Juma Abdalla Munyau Kathenge and Asmaa Juma Nduku, as had been submitted above. VIII. Analysis and Determination 176. I have carefully considered the parties’ pleadings, testimonies, written submissions, and all documentary evidence, the relevant provisions of the Constitution of Kenya, 2010, as well as the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 31

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applicable statutory and case law. I shall address the issues sequentially as guided by their legal and factual complexity. 177. In order to reach an informed, reasonable and just decision in the subject matter, the Honourable Court has crafted the following six (6) issues for its determination. These are: a. Who is the lawful owner of the suit property? b. Whether there was double registration and fraud? c. Whether the Plaintifis are bona fide purchasers for value without notice? d. Whether the 3rd Defendant is liable for maintaining parallel registers? e. What reliefs should be granted? f. Who should bear the costs of the suit and the Counterclaim. ISSUE No. a). Who is the lawful owner of the suit property; 178. Under this sub–heading the Court is called upon to examine the central issue for determination is the lawful proprietor of the suit property. Clearly, this is a case of two competing titles. It would require strict application of the standards of law and the Solomonic Wisdom as founded in the Holy Scripture in 1 King 3:16 to 28 to arrive at a fair, reasonable and Equitable decision as which of the competing title is genuine, legal and hence rightful one. 179. The 1st Defendant’s case relied on a sale agreement executed on 4th September 2013 and an instrument of transfer dated 5th September 2013, followed by registration and a title entry dated 20th December 2013. As DW - 2 stated: “The agreement was executed dated 4th September, 2013 for a consideration for Kshs. 15,000,000/-. The parties to the agreement were James Kibet Chirchir 2nd Defendant and May Port Limited.”. The Plaintifis’ transfer and title in their favour were recorded in September 2017 (transfer dated and stamp duty paid in 2017). PW - 1 produced a transfer dated 21st September 2017 and related stamp‑duty and search documents showing registration in the Plaintifis’ names.The Land Registrar (DW - 3) produced the parcel file and confirmed the existence of Entries 6, 7, 8 and 9, and that Mayport’s transfer and the entry dated 20th December, 2013 appeared on the register. DW – 3 also acknowledged that duplicate and inconsistent entries and searches existed in the file.PW2 (DCIO) confirmed criminal proceedings against the vendor, James Kibet Chirchir (charged with obtaining money by false pretences), and produced the original title seized in that investigation. 180. The provision of Section 24(a) of the Land Registration Act, No. 3 of 2012 provides that:“ the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging thereto.” 181. Further, as provided by Section 25 of the said Act, his ownership cannot be defeated except as provided by the law. See the provision of Section 25(1) of Land Registration Act:“ (1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of Court, shall not be liable to be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever”, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 32

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182. Section 26(1) of the Land Registration Act, No. 3 of 2012 provides that:“ The certificate 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 certificate, and the title of that proprietor shall not be subject to challenge, except— 183. (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme” In the case of “Munyu Maina – Versus - Hiram Gathiha Maina (Supra)” the Court of Appeal held:“ We state that when a registered proprietor’s root of title is under challenge, it is not suficient to dangle the instrument of title as proof of ownership. It is the 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” 184. The Plaintifis’ evidence must satisfy the requirement in “Munyu Maina – Versus - Hiram Gathiha Maina [Supra]”, where the Court of Appeal held that when the root of title is challenged, the registered proprietor must demonstrate the process of acquisition. 185. Under the Land Registration Act, the registered proprietor’s title is prima facie determinative; earlier valid registration ordinarily prevails over later registrations. A later registered title that is tainted by fraud may be set aside; conversely, an earlier registered title may be impeached if it was itself procured by fraud. The court must decide which title was lawfully and validly created.The party alleging fraud or forgery bears the burden to prove it on the balance of probabilities. Where documentary entries confiict, the court examines the contemporaneous documentary trail, witness evidence and any independent corroboration (bank receipts, RTGS, stamp duty receipts, court orders, police exhibits).The Registrar must maintain an accurate register; where the register contains inconsistent or duplicate entries, the Registrar has a duty to investigate and, if necessary, rectify the register. 186. In the case of:- “Kinyanjui Kamau – Versus - George Kamau [2015] eKLR”, the Court of Appeal observed that:“ ……It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo – Versus - 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.” (Emphasis mine) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 33

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187. The court in the case of “Patel & another – Versus - MJC & another (Suing as the guardians of PJP) (Civil Appeal 182 of 2019) [2022] KECA 364 (KLR) (4 February 2022) (Judgment)” observed as follows:“ It should also be appreciated that apart from specifically pleading undue infiuence, coercion and fraud, the same has to specifically proved by cogent evidence and not on the balance of probabilities as wrongly held by the trial court. Prove has to be higher than on the balance of probabilities but slightly lower than prove beyond reasonable doubt.” The court went on further to say: In the case of Vijay Morjaria – Versus - Nansingh Madhusingh Darbar & Another [2000] eKLR, Tunoi, JA. (as he then was) stated as follows: “It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” Emphasis mine. 188. The Court of Appeal in the case of “Ardhi Highway Developers Limited – Versus - West End Butchery Limited & 6 others [2015] eKLR” as cited in “Hebron Orucho Gisebe & 2 others – Versus - Joseph Ombura Gisebe & another [2022] eKLR” in considering the issue of fraud observed as follows: “ It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. One of the authorities produced before us has this passage from Bullen & Leake & Jacobs, Precedent of pleadings 13th Edition at page 427: “Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged (Wallingford – Versus - Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709, Garden Neptune – Versus - Occident [1989] 1 Lloyd’s Rep. 305, 308). The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see Lawrence – Versus - Lord Norreys [1880] 15 App. Case. 210 at 221). It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (Davy – Versus - Garrett [1878] 7 ch. D. 473 at 489). “General allegations, however strong may be the words in which they are stated, are insuficient to amount to an averment of fraud of which any court ought to take notice”. 189. Similarly, in the case of “Kuria Greens Ltd – Versus - Registrar of Titles & Another [2011] eKLR”, the High Court afirmed that courts will cancel titles obtained through fraud or irregularity to protect genuine proprietors. 190. Now applying these sound legal principles to the instant case. The transfer for May Port Limited (dated 5th September, 2013) and the subsequent title entry (20th December, 2013) pre‑dated the Plaintifis’ transfer (21st September, 2017). Documentary evidence produced by the 1st Defendant (being the Sale agreement, transfer form, banker’s cheque, RTGS receipts and the parcel file entries) supported Mayport’s of year 2013 acquisition. DW - 2 expressly adopted and produced Defendant’s Exhibits 1– 27 showing the year 2013 transaction and the steps taken to register Mayport’s title. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 34

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191. The Plaintifis produced searches and a transfer in year 2017 and relied on payments made through their advocates. PW - 1 asserted he had paid the purchase price and produced RTGS/receipts and a discharge of charge. Those documents established that the Plaintifis had paid money and had a transfer recorded in the year 2017, but they did not displace the earlier documentary trail in favour of Mayport Limited. 192. The register contained contradictory entries (duplicate Entry No. 8/8′, inconsistent dates such as “017” and “015”, difiering tenure descriptions, and later entries recording a discharge and a transfer to the Plaintifis). Those anomalies pointed to irregularity in the registration process and raised a real possibility of fraudulent or erroneous entries being made after Mayport Limted’s registration. However, the existence of irregular entries alone did not prove that Mayport’s for the year 2013 transfer was invalid. The evidence did not show that Mayport’s 2013 transfer itself was forged or that Mayport had no lawful title in the year 2013. Instead, the irregularities were concentrated in the later entries and in the sequence of events that produced the Plaintifis’ 2017 registration. 193. Evidently, the criminal investigation and charge preferred against the Vendor (Chirchir – the 2nd Defendant herein) for obtaining money by false pretences materially undermined confidence in the vendor’s dealings. That criminal process supported the conclusion that some later dealings (post ‑ 2013) were tainted. But criminal proceedings against the Vendor did not automatically invalidate Mayport’s earlier registered title unless it was shown Mayport’s title itself had been procured by fraud. The record showed Mayport had a contemporaneous sale agreement, transfer and registration in 2013; there was no cogent evidence that Mayport’s 2013 transfer was forged or that Mayport had colluded in fraud to obtain the 2013 registration. 194. The Land Registrar produced the parcel file and confirmed Mayport’s entries. The Registrar also acknowledged missing search copies and irregularities in the file. Those admissions supported the view that the registry had administrative failings which allowed confiicting later entries to appear, but they did not displace the documentary evidence of Mayport’s earlier registration. 195. In the case of “Hubert L. Martin & 2 Others – Versus - Margaret J. Kamar (Supra)”, Munyao J held as follows:‘A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.’ 196. This position was emphasized in the case of “Wreck Motors Enterprises – Versus - The Commissioner of Lands (Supra)”, where the court held that: ‘Where there are two competing titles the one registered earlier is the one that takes priority.’ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 35

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197. The same position was held in the case of “Gitwany Investment ltd – Versus - Tajmal Limited & 3 Others (2006) eKLR” where the Court held that:….the first in time prevails, so that in the event such as this one whereby a mistake that is admitted, the Commissioner of Lands issues two title in respect of the same parcel of land, then if both are apparently and on the face of them issued regularly and procedurally, without fraud save for the mistake then the first in time must prevail’. 198. The courts have consistently held that production of a title deed or certified copy is suficient to establish a prima facie case of ownership, unless there is evidence to the contrary, such as fraud, illegality, or procedural irregularity. 199. I have opined before in the case of “Said & 3 others – Versus - Kenya Rural Roads Authority (Environment & Land Case 198 of 2020) [2024] KEELC 4662 (KLR) (4 June 2024) (Judgment)” that: 58. Under this sub – title, the Honourable Court deciphers that the main substratum in this matter is based on the claim of legal ownership to the suit property. Flowing from that, whether there were any acts of encroachment and/or trespass and the consequential damages thereof. It is trite law that for a person to prove legal ownership of land they must bear a prima facie conclusive evidence in form of documentation for instance a Certificate of Title. The proprietor and/or absolute owner ought to have it registered in his/her name. have a title for one to have acquired indefeasible title, interest and title on the land as vested in law. Ideally, the legal efiect and eficacy of registration of the documentation is provided for under the provision of Section 24 of the Land Registration Act, No. 3 of 2012 which provides as follows:“ The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.” 59. Section 25 (1) of the said Act further provides that:“ the rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of the court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject to any lawful encumbrances, set out in this section.” 60. Further, a certificate of title is prima facie held to be evidence of ownership of the stated land. This is provided for in Section 26(1) of the Land Registration Act which provides; “The certificate 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 indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge except a. on grounds of fraud, or misrepresentation to which to which the person is proved to be a party; or b. where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 36

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200. The Supreme Court of Kenya, in the case of:- “Sehmi & another – Versus - Tarabana Company Limited & 5 others [2025] KESC 21 (KLR)”, clarified that a title deed is prima facie evidence of ownership, not conclusive proof. The court stated: “ Under the Land Registration Act, a certificate of title was to be regarded by courts as prima facie evidence that the person named therein was the absolute and indefeasible owner of the land. It was therefore no longer possible for a title holder to erect the certificate of title as a barrier to an inquiry into its legality or otherwise.” 201. This position is consistent with earlier Court of Appeal decisions, such as “Munyu Maina – Versus - Hiram Gathiha Maina [Supra)” and “Arthi Highway Developers Limited (Supra)”, which held that once a title is challenged, the registered owner must go beyond producing the document and demonstrate how the land was lawfully acquired. 202. On the root of title and unlawful acquisition, the courts have emphasized the need to interrogate the root of title. In the case of “Dina Management Limited (Supra)”, the Supreme Court held: “ To establish whether the appellant is a bona fide purchaser for value, we must first go to the root of the title, right from the first allotment, as this is the bone of contention in this matter.” 203. Thus, the Plaintifi must not only produce the title deed but also, if challenged, demonstrate that the process leading to its issuance was lawful. 204. The provision of Section 26(1)(a) and (b) of the Land Registration Act provide that a certificate of title may be challenged on grounds of fraud or misrepresentation to which the proprietor is proved to be a party, or where the certificate was acquired illegally, unprocedurally, or through a corrupt scheme. The burden of proving fraud or illegality lies on the party alleging it, and the standard of proof is higher than a balance of probabilities, though not as high as beyond reasonable doubt 205. Consequently, the Court finds that on a balance of probabilities the earlier, properly documented transfer and registration in favour of Mayport Limited (2013) carried greater weight than the Plaintifis’ later registration (2017), because: - 206. a. Mayport’s acquisition was supported by contemporaneous sale agreement, transfer instrument and registration entries in 2013; those documents were produced and adopted in evidence by the 1st Defendant. b. The Plaintifis’ title arose later and the register contained multiple contradictory and inconsistent entries surrounding the later period; those contradictions pointed to irregularity in the later registration process rather than to a prior defect in Mayport’s 2013 title. c. The criminal investigation into the vendor corroborated that later dealings were suspect; it did not, on the evidence before the court, prove that Mayport’s 2013 transfer was itself a nullity. d. The Land Registrar’s own evidence confirmed Mayport’s entry on the register and exposed registry irregularities that explained how a later, confiicting registration could have been recorded. Accordingly, I discern strongly that the lawful owner of the suit property with al the indefeasible title, right and interest vested in it by law, on the evidence and on the balance of probabilities, was MayPort Limited. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 37

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ISSUE No. b). Whether there was double registration and fraud. 207. Under this sub – heading, the Court has considered the evidence adduced by all parties and finds that there was indeed double registration of the suit property, and that the register bore multiple irregularities suggestive of either administrative negligence or fraudulent interference. 208. The Plaintifis produced a Provisional Certificate of Title dated 18th June 2013, which contained a sequence of entries including:Entry No. 8: Transfer to James Kibet Chirchir dated 17th July 2013.Entry No. 8: Charge to Equity Bank dated 11th November 2015.Entry No. 9: Restriction under Section 76 of the Land Registration Act.Entry No. 10: Court order in ELC No. 346 of 2016 dated 12th July 2017.Entry No. 11: Discharge of charge dated 21st September 2017.Entry No. 12: Transfer to the Plaintifis dated 21st September 2017. 209. On the contrary, the 1st Defendant, Mayport Limited, relied on a separate Provisional Certificate of Title also dated 18th June 2013, which showed:Entry No. 6: Provisional Certificate issued via Gazette Notice No. 4461 of 12th April 2013.Entry No. 7: Transfer to James Kibet Chirchir dated 17th July 2013.Entry No. 8: Transfer to Mayport Limited dated 5th September 2013.Entry No. 9: Registration of Mayport’s title on 20th December 2013 210. The Court noted that these two sets of entries could not logically co - exist on a single, properly maintained register. The presence of duplicate Entry No. 8s, inconsistent dates (e.g., “017” instead of 2017), and confiicting tenure descriptions (freehold vs. leasehold) further confirmed that the register had been compromised. The Land Registrar (DW - 1) admitted that the parcel file lacked copies of oficial searches and that the numbering of entries was misaligned and inconsistent. 211. In all fairness, while the Plaintifis were not shown to have participated in any fraudulent conduct, certainly, the Vendor, James Kibet Chirchir (the 2nd Defendant), was under criminal investigation and had been charged in Criminal Case E969/2021 for obtaining money by false pretenses. The DCIO (PW - 2) confirmed that the original title deed was seized as an exhibit in that case. This lent credence to the 1st Defendant’s assertion that the later registration in favour of the Plaintifis was tainted by fraud or irregularity, even if the Plaintifis themselves were unaware of it. 212. Therefore, the Honourable Court arrives at the following conclusion, that: - 213. a. There was clear evidence of double registration of the suit property. b. The register contained multiple irregularities, including duplicate entries, inconsistent dates, and contradictory tenure descriptions. c. While fraud was not proven against the Plaintifi, the later entries leading to the Plaintifis’ registration were tainted by irregularity and possibly fraud. d. The Chief Land Registrar failed in their statutory duty under Section 79 of the Land Registration Act to maintain an accurate and reliable register, and bore responsibility for the administrative lapses that enabled the double registration. Accordingly, the Court found that the double registration was real and materially afiected the integrity of the land register, warranting rectification and further administrative accountability. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 38

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ISSUE No. c). Whether the Plaintifis are bona fide purchasers for value without notice: 214. Under this sub–heading, the Court has considered the evidence adduced by the Plaintifis and the Defendants to determine whether the Plaintifis were bona fide purchasers for value without notice of any defect in title. 215. At this juncture, the main issue this court needs to determine is whether the Plaintifis are bona fide purchasers for value without notice. Black’s law Dictionary 10th Edition defines a ‘bona fide purchaser’ as follows: ‘One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.’ 216. On this legal position, I seek refuge from a few case from the myriad of them. The case of:- “Arthi Highway Developers Limited (Supra)”, where the Court of Appeal dealt exhaustively with the issue of bona fide purchaser for value without notice and held that a party cannot invoke indefeasibility of title where the process of acquisition of the title is irregular. Further in the Uganda Court of Appeal Case of “Katende – Versus - Haridar & Company Ltd (2008) 2 EA 173”, the Court defined what amounts to a bona fide purchaser for value thus: “ For the purposes of this appeal, it sufices to describe a bona fide purchaser as a person who honestly intends to purchase the property ofiered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine … (he) must prove that: a. he holds a certificate 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.” A bona fide purchase of a legal estate without notice has absolute unqualified and answerable defence against claim of any prior equitable owner.’ 217. While in the case of “Lawrence P Mukiri Mungai, Attorney of Francis Muroki Mwaura – Versus Attorney General & 4 others (2017) eKLR”, the Court of Appeal held that a party cannot claim a bona fide purchaser for value where the vendor did not have a valid title. 218. The Plaintifis contended that they purchased the suit property from the 2nd Defendant, James Kibet Chirchir, in year 2016 for a consideration of a sum of Kenya Shillings Twelve Million (Kshs. 12,000,000). PW - 1 testified that he conducted due diligence, including two oficial searches dated 25th August and 5th September 2016, both of which indicated that the 2nd Defendant was the registered proprietor. He further stated that he paid the purchase price through his advocates, discharged a charge registered in favour of Equity Bank, and obtained a transfer and registration in his and the 2nd Plaintifi’s https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 39

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names on 21st September 2017. The Plaintifis produced a sale agreement, RTGS receipts, a discharge of charge, and a certificate of title as Plaintifi Exhibits 2 through 8. 219. The Court accepts that the Plaintifis acted in good faith and paid valuable consideration. There was no evidence that they were aware of the prior registration in favour of Mayport Limited at the time of purchase. However, the doctrine of bona fide purchaser for value without notice, while protecting innocent purchasers, does not override the principle that one cannot acquire a better title than that held by the vendor. 220. In this case, the 2nd Defendant had already transferred the property to Mayport Limited in the year 2013, as evidenced by a sale agreement dated 4th September 2013, a transfer dated 5th September 2013, and a registration entry dated 20th December 2013. These documents were produced by DW - 2 and confirmed by DW - 1, the Land Registrar. The Plaintifis’ registration occurred four years later, in the year 2017, and was based on a transaction with the same vendor, who no longer held any legal or proprietary interest in the property at that time. In other words, he had no good title anymore to pass after the first transaction had already taken place with May port Limited in the year 2013. It was a case that resonates so well with the English saying that states “You cannot eat the Cake and have it”!! 221. The Court also considered the criminal proceedings against the 2nd Defendant, who was charged in Criminal Case E969/2021 for obtaining money by false pretences. The DCIO (PW - 2) confirmed that the original title deed was seized as an exhibit in that case. This cast serious doubt on the legitimacy of the year 2016 transaction between the Plaintifis and the 2nd Defendant. 222. While the Plaintifis may have been unaware of the prior registration and acted in good faith, the law is clear that a purchaser cannot acquire good title from a vendor who has none to pass. As held in “Law Society of Kenya – Versus - Commissioner of Lands & Others [2001] eKLR” and reafirmed in “Arthi Highway Developers Ltd [Supra]”, the doctrine of bona fide purchaser does not protect a title that is rooted in fraud or illegality. 223. Accordingly, this Honourable Court finds that although the Plaintifis were bona fide purchasers in conduct and intention, they could not be deemed bona fide purchasers for value without notice in law, because the vendor lacked valid title at the time of the transaction. Their registration, being subsequent to Mayport’s, and arising from a vendor who had already divested his interest, could not confer lawful ownership. 224. Therefore, the Plaintifis were not bona fide purchasers for value without notice in the legal sense that would defeat the 1st Defendant’s prior registered title. However, their good faith and financial loss were relevant in assessing equitable remedies, including compensation. ISSUE No d). Whether the 3rd Defendant is liable for maintaining parallel registers? 225. Under this sub–heading, the Court has considered the evidence adduced by the parties and finds that the 3rd Defendant, the Chief Land Registrar, bore significant responsibility for the existence and perpetuation of parallel registers and contradictory entries in respect of the suit property. 226. The Land Registrar (DW - 3) testified that the parcel file for Subdivision No. 6234 (Original No. 5220/4), CR No. 20722, contained entries showing a transfer to Mayport Limited on 20th December 2013. However, the said parcel also bore later entries refiecting a transfer to the Plaintifis on 21st September 2017. These entries were not only inconsistent in sequence but also riddled with anomalies, including:Duplicate Entry No. 8 and 8′, with confiicting transactions (transfer and charge).Inconsistent and incomplete dates, such as “017” and “015” instead of full four-digit years.Missing signatures and unexplained gaps in the registry.Contradictory tenure descriptions (the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 40

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land tenure of “freehold” as opposed to “Leasehold”) in oficial searches.Absence of duplicate copies of oficial searches in the parcel file, as admitted by DW - 3. 227. The belief is that human is to error. However, not when the said errors are so glaring. These inconsistencies, irregularities and contradictions were not minor clerical or human errors but systemic ones that materially and manifestly afiected the integrity of the land register. The Court noted that the 3rd Defendant, as the statutory custodian of land records under Section 12 of the Land Registration Act, No. 3 of 2012, had a legal duty to maintain a single, accurate, and reliable register. Section 79 of the said Act empowers the Registrar to rectify the register in cases of fraud, omission, or error. 228. Despite this statutory mandate, the 3rd Defendant failed to detect or prevent the creation of a parallel register or the entry of confiicting transactions. The Land Registrar’s own testimony confirmed that the registry had no record of the searches relied upon by the Plaintifis, nor did it contain the necessary supporting documentation for the 2017 registration. This failure facilitated the double registration and exposed both parties to litigation and financial loss. 229. While the Court did not find evidence of deliberate collusion or bad faith on the part of the 3rd Defendant, the level of administrative negligence was suficient to establish liability and Misfeasance – improper, wilful, careless and/or negligence performance of a lawful nature by a duly appointed Public Servant. Certainly, by all means the 3rd Defendant never acted in goof faith at all. The Plaintifis, having relied on oficial searches and registry records, were misled into believing that the 2nd Defendant had good title to pass. The 3rd Defendant’s failure to maintain a coherent and accurate register was a proximate cause of the Plaintifis’ loss. 230. Accordingly, the Court makes the finding that the 3rd Defendant was liable for maintaining parallel and contradictory registers, and for failing to uphold the statutory duty of care owed to the public in the administration of land records. This liability warranted an award of general damages to the Plaintifis for the loss and hardship sufiered as a result of the registry’s failings to be borne personally by the 3rd Defendant. ISSUE No. e). What reliefs should be granted. 231. Under this sub–heading, the Court has considered the evidence, pleadings, and applicable law to determine the appropriate reliefs to be granted in light of its findings. Having found that the 1st Defendant, Mayport Limited, was the lawful registered proprietor of the suit property by virtue of a valid transfer and registration in 2013, and that the Plaintifis’ later registration in 2017 was tainted by registry irregularities and possibly fraud on the part of the vendor (2nd Defendant), the Court was compelled to balance the equities of the case. 232. The Plaintifis, though not entitled to a declaration of ownership, were found to have acted in good faith, paid valuable consideration, and relied on oficial searches issued by the Land Registry. Their loss was not due to any fault of their own, but rather due to the failure of the 3rd Defendant to maintain a coherent and accurate register, and the fraudulent conduct of the 2nd Defendant, who was later charged in Criminal Case E969/2021. ISSUE No. e). Who bears the costs of the suit and the Counter – Claim. 233. Under this sub – heading, the Court has considered the conduct of the parties, the nature of the dispute, and the applicable legal principles to determine who should bear the costs of the suit and the Counter - Claim. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 41

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in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court reafirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 234. In “Machakos ELC Pet No. 6 of 2013 Party of Independent Candidate of Kenya & another – Versus Mutula Kilonzo & 2 others [2013] eKLR” quoted the case of “Levben Products – Versus -Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227” the Court held; “ It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion (Fripp -Versus - Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at….In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.” 235. In the present case, the 1st & 2nd Plaintifis instituted the suit in good faith, having relied on oficial searches and documents issued by the Land Registry. They paid valuable consideration and took possession of the suit property, only to later discover that another party—Mayport Limited—held a prior registered title. The 1st & 2nd Plaintifis’ loss was not due to any misconduct on their part, but rather due to:a. The fraudulent conduct of the 2nd Defendant, James Kibet Chirchir, who sold the same property twice and was later charged in Criminal Case E969/2021. b. The administrative negligence of the 3rd Defendant, the Chief Land Registrar, who failed to maintain a coherent and accurate register, thereby enabling double registration and misleading the Plaintifis. 236. On the other hand, the 1st Defendant, Mayport Limited, was found to be the lawful proprietor and succeeded in its counterclaim. However, the 1st Defendant did not sufier any direct loss beyond the delay in accessing its property, and there was no evidence that it incurred extraordinary costs or was subjected to vexatious litigation. 237. Given these circumstances, the Court finds it just and equitable to make the following orders on costs: a. Each party shall bear their own costs of the main suit. b. The 1st Defendant shall bear its own costs of the Counter - Claim. c. The 3rd Defendant shall bear the general damages awarded to the 1st and 2nd Plaintifis for negligence in maintaining the land register, but no additional costs shall be awarded against it, considering its status as a public ofice acting in good faith. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 42

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IX. Conclusion and Disposition 238. Ultimately, having conducted a comprehensive and in-depth analysis of the pleadings, the evidence tendered, the applicable legal principles, and the submissions of all parties, the Honourable Court, on the preponderance of probabilities and guided by the balance of convenience, finds as follows: a. That Judgment be and is hereby entered in favour of the 1st Defendant, Mayport Limited, in respect of the Counter - Claim dated 20th May 2021, the 1st Defendant having proved its case on a balance of probabilities. b. That the claim by the 1st & 2nd Plaintifis through the Amended Plaint dated 3rd October, 2022 be and is hereby found to lack merit and thus it is conditionally dismissed. c. That for avoidance of doubt, accordingly, having considered the pleadings, evidence, submissions, and applicable law, the Court makes the following orders that: i. it is hereby declared that the 1st Defendant, Mayport Limited, is the lawful and registered proprietor of all that parcel of land known as Sub - division Number 6234 (Original Number 5220/4), Section I Mainland North, CR No. 20722. ii. the 1st & 2nd Plaintifis’ registration as proprietors of the suit property, efiected on or about 21st September 2017, is hereby declared null and void and is ordered to be cancelled forthwith. iii. pursuant to Section 80 of the Land Registration Act, No. 3 of 2012, the Chief Land Registrar (3rd Defendant) is directed to rectify the land register by removing all entries inconsistent with the lawful registration of the 1st Defendant and to restore the register to refiect Mayport Limited as the sole and lawful proprietor. d. That a permanent injunction be and is hereby issued restraining the 1st & 2nd Plaintifis, their agents, servants, or any person claiming under them from entering, occupying, constructing upon, or in any way interfering with the 1st Defendant’s quiet possession and enjoyment of the suit property. e. That the 1st & 2nd Plaintifis be and are hereby awarded general damages in the sum of Kenya Shillings Six Million (Kshs. 6,000,000/=) against the 3rd Defendant, the Chief Land Registrar, for the acts of Misfeasance – acts of improper, careless, wilful or negligence in maintaining the land register and for the consequential loss and hardship sufiered by the Plaintifis. f. That each party shall bear their own costs of the main suit and the Counter - Claim, in recognition of the complex and unfortunate circumstances arising from registry failures and third-party fraud. g. That the Chief Land Registrar shall file a compliance report within sixty (60) days from the date of this Judgment, confirming the rectification of the register in accordance with these orders. h. That the 1st and 2nd Plaintifis may consider pursuing the 2nd Defendant (Mr. James Kibet Chirchir) for a refund of their hard cash and/or consideration without any prejudice to this suit. It is ordered accordingly https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 43

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JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT MOMBASA THIS 13TH DAY OF MARCH 2026. ………..….…….......……………….. HON. MR. JUSTICE L.L. NAIKUNI ENVIRONMENT AND LAND COURT AT MOMBASA Judgement delivered in the presence of: M/s. Firdaus Mbula – the Court Assistant. Mr. Steve Ogolla & M/s. Agatha Advocate for the Plaintifis. Mr. Ogendo Advocate for the 1st Defendant. Mr. Wagah Advocate for the 3rd and 4th Defendants. No appearance for the 2nd Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1512/eng@2026-03-13 44

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