Carina Properties Limited v Obama & 3 others (Environment and Land Case 4 of 2023) [2026] KEELC 3459 (KLR)

transferring, and/or in any manner whatsoever interfering with the Plaintifi’s peaceful, quiet ownership and occupation of land parcel no. Kilifi/Jimba/347 d. General damages and compensation against the defendants for the unlawful expunging of documents related to land parcel no. Kilifi/Jimba/347, thereby breaching the plaintifi’s right to ownership of the suit land. e. The Plaintifi be granted mesne profits against the defendants calculated from 13th December 2016 to the date of judgment herein. f. Costs of this suit. g. Any other relief that this Honourable court may deem fit and just to grant. 2. The plaintifi alleges fraud against the 1st and 2nd defendants in paragraph 8, and against the 3rd and 4th defendants in paragraph 11. 3. The 1st and 2nd defendants, after receiving the plaint and related pleadings, submitted their statement of defense and counterclaim on 27th October 2023. They denied all allegations of the plaintifi and, through their counterclaim, requested the court to grant the following orders: a. A declaration that the 1st defendant is the lawful proprietor of Plot No. Kilifi/Jimba/347. b. A declaration that any title held by the plaintifi regarding Plot No. Kilifi/Jimba/347 was irregularly acquired by the plaintifi. c. A declaration that the 3rd and 4th defendants had the authority to rectify an irregular and illegal entry in the register for Kilifi/Jimba/347. d. An order for a permanent injunction to restrain the plaintifi from interfering with the 1st defendant's ownership, possession, and use of Plot No. Kilifi/Jimba/347. e. Costs of the counterclaim and interest thereon at court rates. 4. The 3rd and 4th defendants filed their defense dated 4th September 2023, denying all the plaintifi’s averments in the plaint and, in a nutshell, stated that the process of registration of the title to Plot No. Kilifi/Jimba/347 emanated from the Department of Land Adjudication and Settlement (who are not parties to the suit) and who are the true custodians of the records of the original allottees, and further stated that the expunging of the original entries in the register for Plot No. Kilifi/Jimba/347 was done under the authority of the Department of Land Adjudication and Settlement, which undertook the process of settling persons on the suit and had custody of the records of Plot No. Kilifi/Jimba/347. The 3rd and 4th defendants further stated in their aforesaid defence that the allocation of land in a settlement scheme is an elaborate process which is not within the mandate of the 3rd and 4th defendants and that the plaintifi had disclosed no wrongdoing on the said department of Land Adjudication and Settlement in the manner in which the suit land was allocated. 5. The plaintifi submitted their List of Documents and List of Witnesses, both dated 7th July 2024, on the 11th of July, 2024. Additionally, they submitted witness statements from Karin Gansfort (PW1), dated 9th May 2024; Lilian Uchi (PW2), dated 16th July 2025; and Peter Ngunje (PW3), dated 16th July 2024, all of which were adopted as their evidence-in-chief during the proceedings. 6. The 1st and 2nd defendants, through the 1st defendant herein, Dr. Auma Obama (DW1), submitted their List of Documents dated 4th November 2022 on 5th November 2023, and their List of Witnesses dated 5th November 2022 on 8th November 2023. This documentation was adopted as the primary evidence of the 1st and 2nd defendants, with DW1 providing testimony on 29th July 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3459/eng@2026-05-14 2

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7. The 3rd and 4th defendants submitted their List of Documents dated 18th September 2023 on 19th September 2023. They subsequently subpoenaed DW2 - Mohamed Billow Ibrahim, the 3rd defendant, as their sole witness on 27th October 2023, at which point the defense case was formally concluded. Plaintifi ’s case 8. PW1 - Karin Gansfort testified on July 29, 2025. She informed the court that the plaintifi is a limited liability company. She stated that she was representing the plaintifi in her capacity as a director and shareholder, and she adopted her witness statement dated May 9, 2024, as her evidence in chief, along with the documents attached as exhibits PEXH-1-14, which are part of the plaintifi's List of Documents dated July 7, 2024. She indicated that the plaintifi was the previous owner of the disputed land, prior to the 1st and 2nd defendants, whose titles she described as defective. Additionally, she confirmed that the plaintifi had paid all applicable government taxes and municipal rates for the disputed land. 9. She testified that, as a director, she never appeared before the Land Control Board for Land Control Board Consent, and that the plaintifi was never exempted by the president from the provisions of the Land Control Act, Cap 302, regarding freehold ownership because all the directors of the plaintifi company were foreigners. 10. She further testified that the plaintifi purchased the land from one Lilian Uchi (PW2) after due diligence by its lawyers, that she knew the land in issue fell within a settlement scheme, and that the plaintifi had not brought before the court the letter of ofier for the said land in favor of Lilian Uchi, ofiering the land to her by the Department of Land Adjudication and Settlement, who were not sued as parties in this matter. 11. She further testified that the plaintifi’s advocates who undertook the conveyancing transaction were not witnesses in the matter. She stated that before this suit she had complained to the Directorate of Criminal Investigations, which took no action, and that the allegation was not substantiated. She finally stated that she never sued Anderson Nyundo and Daniel Kazungu Kombe, who were the original allottees of the suit land from the Ministry of Lands and Settlement. 12. PW2, Lilian Uchi Nyoka, also testified on July 29, 2025. She stated that she is a teacher at Mjanaheri Primary School and adopted her witness statement dated July 16, 2025, as her evidence in chief. She further stated that she was the original owner of the land in question and that she is aware that other persons also claimed the same land. She claimed to have been given the land by the National Land Commission, which she later sold to the plaintifi. 13. PW2 claimed to have been ofiered the suit land by the Settlement Fund Trustee, but she did not produce any letter of ofier, any transfer of land under a settlement scheme, or any discharge of the charge on the land ofiered by a Settlement Scheme. She stated that she was ofiered the land in 2002 and sold it to the plaintifi in 2007; she did not produce any such sale agreement or transfer of the same land. 14. She stated that she obtained the Land Control Board’s consent to transfer the land to the plaintifi but did not obtain an exemption to sell the agricultural land to the plaintifi, whose directors were all foreigners. She stated that she obtained her title deed through the Chief and did not pay to have it issued in her name. 15. She testified that she has never lived in the Kilifi Jimba Settlement and adjudication area or settled on the land for which she claimed to have a title deed. She stated that she was born and raised in Garashi but https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3459/eng@2026-05-14 3

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now lives in Malindi. She stated that she was aware that the land in question was intended for squatters on the ground and did not know when the squatter verification and identification was undertaken. 16. PW2 stated that she was a teacher who qualified in 2003 at Kigari Teachers Training College, where she studied from 2001 to 2003, and that at the time the land was allocated to her, she was not in Kilifi. She declined to tell the court the price she received for the plaintifi's sale and purchase of the suit property, but stated that Peter Ngunje (PW3) paid her the purchase price. She stated that Peter Ngunje was with the plaintifi's directors during the payment but could not recall their names. 17. She stated that she did not know the plaintifi's directors but knew of a Carina, not the one who testified as PW1. She finally stated that she had no structure of any kind on the suit land. 18. PW3 - Peter Ngunje, the last plaintifi’s witness, testified on July 29, 2025, stating that he lives in Kilifi/ Jimba and is a businessman and a mason. He adopted his July 16, 2025, witness statement as his evidence in chief and added that he knew the suit land initially belonged to Lilian Uchi and Ndarewa Muyeso, but records now show it belongs to the 1st Defendant, Dr. Auma Rita Obama, whom he did not know. 19. He stated that he knew the plaintifi as the owner, having bought the land from Lilian Uchi (PW2). He stated that he introduced the plaintifi to Lilian Uchi, from whom they bought the land. He further stated in his evidence in chief that he knew Lilian Uchi through his brother, Mr. Chivatsi, who was the Coast Regional Surveyor. He concluded his evidence in chief by stating that before the plaintifi purchased the land, he conducted a search at the ofices of land adjudication and settlement and at the Kilifi Lands registry, where he confirmed that Lilian Uchi was the owner of the suit land. 20. PW3 confirmed that he had no sale agreement in favor of the plaintifi, had no search conducted for the suit land before the sale of the land to the plaintifi, and had not seen any letter of ofier, charge, or discharge of charge of the suit land in favor of Lilian Uchi before the sale of the land to the plaintifi, though he claimed the said documents were given to Muli and Ole Kina Advocates during the sale of the suit land to the plaintifi. 21. He testified that the plaintifi company was initially his and his wife's, and that they sold the shares to the plaintifi's directors, including Lucy Muli, Advocate, who owns 2% of the plaintifi company. He also stated that Lucy Muli, Advocate, was not a witness in this matter. He claimed that he personally conducted due diligence during the sale of the land to the plaintifi by searching the land and obtaining a Land Control Board Consent. He stated that he was aware that, since the company was foreignowned, it could not purchase the land; that he received money from the plaintifi to purchase the land on its behalf; and that the title was issued in 2007. 22. He testified that the register was opened on 22nd August 1986 in Edition No. 1, that he did not know how Lilian Uchi got the land, and that she was not a squatter in Jimba. 23. PW3 alleged that he was with Peter Gansfort when Gansfort purchased the land on behalf of the plaintifi and erected a wall on the suit property. He claimed that he conducted a search of the property at the Kilifi Land and Settlement Ofice in Malindi before the purchase, though he did not produce such evidence in court. Defendants’ case 24. DW1- Dr. Auma Rita Obama also testified on July 29, 2025. She adopted her witness statement as her evidence in chief. The statement was dated November 5, 2023, and filed in court on November 8, 2023, and was produced as exhibits DEXH1-30, the exhibits in the List of documents for the 1st and 2nd defendants, dated November 5, 2023, and filed in court on November 8, 2023. She further added https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3459/eng@2026-05-14 4

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in her evidence in chief that she was in possession of the suit property prior to the said purchaser, and that Daniel Kazungu Kombe and Anderson Nyundo Thoya were in possession of the suit property. 25. Further, she stated that after purchasing the suit property, she constructed two (2) walls, a guard house, and her ofice on the property. She further testified that a one-sided wall of the adjoining property existed when the 1st and 2nd defendants purchased the suit property. 26. She testified that during the purchase of the suit property, Daniel Kazungu Kombe and Andrson Nyundo Thoya had been ofiered and allocated the suit premises by the Ministry of Lands and Settlement through the Department of Land Adjudication and Settlement. She stated that, at the time of the purchase of the said property, the plaintifi was unknown to them and that the documentation and paper trail of Daniel Kazungu Kombe and Anderson Nyundo Thoya were proper. As such, she pleaded with the court to declare her the lawful owner of the property as pleaded in the counterclaim by the 1st and 2nd defendants. 27. DW1 stated that Anderson Nyundo Thoya and Daniel Kazungu Baya were lawfully ofiered and allocated the suit land by the Department of Land Adjudication and Settlement, from whom they purchased the suit property, and that the rectification of the register was carried out under the direction of the Department of Land Adjudication and Settlement, which is the originator of the title deed subject to this suit, and that the plaintifi had not sued that department in this matter 28. DW1 testified that the initial sales agreement was between Anderson Nyundo Thoya, Daniel Kazungu Kombe, and the 2nd defendant. However, DW1 was involved throughout and had authorized the 2nd defendant to execute the agreement on behalf of both DW1 and the 2nd defendant. 29. She stated that the 1st and 2nd defendants herein purchased the land sometime in 2013, when the land had no title but only documents of ofier in favor of Anderson Nyundo Thoya and Daniel Kazungu Kombe. That for the completion of the said sale, the sellers had to be paid to finalize the process of acquiring the title deed to the land, which payments were made by the 2nd defendant, Lois Wambui Thuo, and that during the said process of sale, only the 2nd defendant, Lois Wambui Thuo, undertook all the process. 30. She stated that the land was initially sold to the 1st and 2nd defendants for Kshs. 10,500,000/= and that two agreements were executed for that transaction through Kupalia Advocates. She further testified that later the 2nd defendant herein, Lois Wambui Thuo, transferred her share in the suit property to her for a consideration of Kshs. 11,300,000/=. She also stated that the land was sold to the 1st and 2nd defendants for Kshs. 10,500,000/= and that two agreements were executed for that transaction through Kupalia Advocates. 31. She further testified that by the time they purchased the property jointly with the 2nd defendant, the plaintifi’s title had been expunged by the 3rd and 4th defendants in accordance with the directions of the Director of Land Adjudication and Settlement, who is the custodian of all records for land adjudication and settlement. 32. (DW1) stated that the initial agreements for the purchase of the land from Anderson Nyundo Thoya and Daniel Kazungu Kombe were signed only with the 2nd defendant as the purchaser, but when the title was processed, it was listed in the joint names. She stated that she later purchased the 2nd defendant's share in the said property and is now the sole proprietor and in possession. She stated that during the purchase of the property, the people in possession were Anderson Nyundo Thoya and Daniel Kazungu Kombe, and that she conducted due diligence while purchasing the said property. 33. She concluded by stating that the suit land was lawfully hers after a proper purchase of the same from the 2nd defendant, with whom she was a proprietor in common. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3459/eng@2026-05-14 5

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34. On October 27, 2025, DW3 - Mohamed Billow Ibrahim appeared as a witness on behalf of the third and fourth defendants. He formally adopted the List of Documents submitted by the third and fourth defendants, dated September 18, 2023, and duly filed in court on September 19, 2023, designated as DEXH 31 to 52. Mr. Ibrahim stated to the court that he holds the position of County Lands Registrar of Kilifi County, with an accumulation of eleven (11) years of professional experience, including two and a half years dedicated to work within the Kilifi County Lands Registry. 35. He testified about Plot No. Kilifi/Jimba/347, stating that the original green card (Register) was held by the Directorate of Criminal Investigations in Kilifi. It was transferred to No. 69585 C.I, Richard Langat, following an Order in Malindi Miscellaneous Criminal Application No. 142 of 2021. The original was handed over on December 14, 2021, and a certified copy was presented to the court. 36. DW2 testified that the Edition Two (2) register for the plot was opened on December 22, 1986, in the name of the Government of Kenya, after the cancellation of the Edition One (1) register. 37. The original register had declared the area as a settlement and all previous adjudication titles had been canceled. He explained that, according to the register, on November 6, 2001, the property was transferred to Lilian Uchi (PW2) and Ndarewa Muyesi in equal undivided shares, and a title was issued to them that day. 38. Furthermore, he stated that on July 23, 2007, the property was sold to the plaintifi for Kshs. One million. He also testified that, by a letter dated November 21, 2016, the Director of Land Adjudication and Settlement sent a discharge of charge for Plot No. Kilifi/Jimba/347 to the Kilifi Land Registry in favor of Lois Wambui Thuo and Dr. Rita Auma Obama. Additionally, he noted that on November 25, 2016, the District Land Register wrote to the Director of Land Adjudication and Settlement, reporting dificulties in registering the discharge due to active land transactions in the register, and provided a certified copy of the register. 39. DW3 further testified that, by a letter dated 1st December 2016, the Chief Lands Registrar forwarded an internal memo dated 30th November 2016 from the Director of Land Adjudication and Settlement to the Chief Lands Registrar, indicating that the original allottees of Plot No. Kilifi/Jimba/347 were Anderson Nyundo Thoya and Daniel Kazungu Kombe, who later sold the plot to Lois Wambui Thuo and Dr. Auma Rita Obama. The letter instructed the Kilifi District Land Registrar to expunge the records of Carina Properties Ltd from the records. 40. As a result of the said letter, PW3 testified that on 13th December 2016, all entries were expunged, and consequently, a discharge of charge and a transfer in favor of Lois Wambui Thuo and Auma Rita Obama were registered, and a title deed was issued that same day. 37. He further testified that on 26th July 2020, Lois Wambui Thuo sold and transferred her half share in the property to Dr. Auma Rita Obama, and a title deed was issued to the 1st defendant. 41. PW3 explained that the register (Green card) was a Second Edition issued after the first edition was canceled following the December 22, 1986 Gazette Notice. This notice nullified the adjudication of the Kilifi/Jimba, Kilifi/Madeteni, and Chembe/Kibabamshe areas, establishing them as settlement schemes. 42. He added that before the records were expunged, Lilian Uchi and Nderewa Muyesi held a title deed transferred to Carina Properties Ltd. He suggested this was why the Kilifi Lands Registrar could not register the discharge submitted in a letter dated November 21, 2016. Instead, the Registrar wrote to the Director of Land Adjudication and Settlement on November 25, 2016, stating that the property still had an active registration (green card). https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3459/eng@2026-05-14 6

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43. DW2 stated that the land in question was part of a Settlement Scheme, and any valid title could only be issued by the Director of Land Adjudication and Settlement through the Settlement Fund Trustees, via a letter of ofier, discharge of charge, and a title deed. The plaintifi and its predecessors, Lillian Uchi and Nderewa Mayeso, did not have such documentation. 44. DW2 noted that the letter removing the plaintifi's title came from the Director of Land Adjudication and Settlement, but the plaintifi did not include DW2 as a party in this case. According to records, Plot No. Kilifi/Jimba/347 was ofiered to Anderson Nyundo Thoya and Daniel Kazungu Kombe, who are confirmed by DW2. DW2 added that the Government, through the Settlement Fund Trustees, is the original owner of the land, and the 3rd and 4th Defendants rely on documents provided by the Director of Land Adjudication and Settlement for registration. 45. He further clarified that, according to Section 79 of the Land Registration Act, the 3rd defendant has the authority to amend records, especially since the land adjudication and settlement department confirmed that the plaintifi's title was illegitimate and lacked a valid basis from that department. He concluded that the 3rd defendant’s ofice does not allocate land but solely registers land interests. Analysis and determination 46. I acknowledge receipt of submissions from counsel for the parties with great appreciation. They have been instrumental in assisting the court in reaching its verdict, as will be demonstrated in the analysis and determination outlined below. 47. Based on the materials, evidence, and submissions presented to me, the issues for determination by this court are as follows: whether the plaintifi or the 1st defendant holds a valid title to Plot No. Kilifi/Jimba/347; whether the plaintifi has a legitimate claim against all the defendants; whether the plaintifi has demonstrated any fraudulent acts by either the 1st and 2nd defendants or the 3rd and 4th defendants in connection with the acquisition of the title to Plot No. Kilifi/Jimba/347; whether the 3rd and 4th defendants had the authority to amend the records of the plaintifi’s title in the register; whether the 1st and 2nd defendants’ counterclaim is sustainable; and, finally, which party should bear the costs of this proceeding. 48. In summary, the core issue in this matter is determining who holds a rooted title between the plaintifi and the 1st and 2nd defendants. 49. Before I answer that question, an issue was initially raised that the 3rd and 4th defendants had no statutory power to cancel the plaintifi's title. 50. On this point, the plaintifi submits that the plaintifi's title, a vested property right, was extinguished by an administrative act that fiagrantly contravened the principles of legality and procedural fairness. The 3rd and 4th defendants purported to cancel the title without notice, without a hearing, without providing reasons, and, most critically, without a court order. Such an action is inconsistent with the Constitution. 51. Article 40 guarantees the property right and protects against arbitrary deprivation, while Article 47 enshrines the right to fair administrative action that is lawful, reasonable, and procedurally fair. The defendants' unilateral act, therefore, constitutes an arbitrary deprivation of property, contrary to these constitutional safeguards. Further, the statutory framework governing land registration confirms the illegality of the defendants' actions. Section 79 of the Land Registration Act, No. 3 of 2012, permits rectification of minor errors but does not confer authority to cancel a validly registered title. Section 80 reserves the power to order cancellation exclusively to the court, and only on grounds of fraud or illegality. The 3rd and 4th defendants, by purporting to cancel the plaintifi's title outside these https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3459/eng@2026-05-14 7

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parameters, acted ultra vires and in breach of natural justice. See Republic v Chief Land Registrar ex parte Yosabia Kerubo Manvura, [2018] eKLR. 52. On this point, the 1st and 2nd defendants assert that the Registrar (the 3rd and 4th defendants, who handle the registration of entries) correctly exercised their mandate under Section 79 (2) of the Land Registration Act 2012 by complying with the directive of the Director of Land Adjudication as contained in the internal memo dated 30th November 2016 (see exhibits 18-19 in the 1st and 2nd defendants' list of documents dated 4th November 2023). 53. The provisions of Section 79 of the Land Registration Act empower the Land Registrar to rectify a register and alter title, as held in Republic v Chief Land Registrar & another Ex parte Yosabia Kerubo Manyura [2018] KEELC 1074 (KLR): “ … Section 79 of the Land Registration Act, No. 3 of 2012, makes provisions for instances where the Land Registrar can efiect rectification of the register. The rectification that a Land Registrar can make does not include cancelling the title of a registered proprietor. Section 79 provides as follows: 79. (1) (2) The Registrar may rectify the register or instrument presented for registration in the following cases – a. in formal matters and in the case of errors, mistakes, or omissions not materially afiecting the interests of any proprietor. b. In any case and at any time with the consent of all afiected parties; or c. If upon resurvey, a dimension or area shown in the register is found to be incorrect, in such case the Registrar shall first give notice in writing to all persons with an interest in the rectification of the parcel. d. For purposes of updating the register; e. For purposes of correcting the name, address or other particulars of the proprietor upon the written application by the proprietor in a prescribed form. No alteration afiecting the title of a proprietor may be made pursuant to subsection (1) without the proprietor’s consent unlessa. the proprietor has by fraud or lack of proper care caused or substantially contributed to the error, mistake or omission; or b. it would for any other reason be unjust for the alteration not to be made. Provided that a written notice of ninety days shall be given to the proprietor of such intention to make the alteration. (3) Upon proof of the change of the name or address of any proprietor, the Registrar shall on the written application of the proprietor, make an entry in the register to record the change/ (3A) A person aggrieved by the decision https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3459/eng@2026-05-14 8

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of the Registrar under this Section may apply to the court for any necessary orders. (4) 54. The Cabinet Secretary may by regulations prescribe the guidelines that the Registrar shall follow before rectifying or directing rectification under this Section and without prejudice to the generality of the foregoing, the regulations may provide for – a. The process of investigation including notification of afiected parties. b. Hearing of the matters raised; and c. The criteria to be followed in coming up with the decision.” Section 79 clearly delineates that the powers of rectification vested in the Land Registrar are confined to amending errors, mistakes, or omissions that do not substantially impact the interests of any proprietor. The cancellation of a title, however, would unquestionably significantly afiect the interests of the registered proprietor. Such a cancellation should be solely authorized by the court, pursuant to Section 80(1) of the Land Registration Act, 2012. Section 80(1) states: “ 80(1) Subject to subsection (2) the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. (2) The register shall not be rectified to afiect the title of a proprietor unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act neglect or default.” 58. Therefore, on this point, whereas it is submitted that the root of the title held by the plaintifi was shaky and that the Director of Land Adjudication had issued a directive for the alteration of the plaintifi's title, as contained in the internal memo dated 30th November 2016, the Land Registrar had no powers in law to cancel the plaintifi's title. The court had to determine which of the two parties had a firm basis for a good title. It is the issue I seek to address next. 59. The plaintifi argues that between them and the 1st and 2nd defendants, only the plaintifi holds a valid, established title. The timeline of their titles is key: the plaintifi's Title Deed was legally issued on July 23, 2007, whereas the defendants' claimed interest is based on a title issued on December 13, 2016, nearly ten years later. Kenyan land law prioritizes rights based on the order of registration. In Wreck Motor Enterprises v Commissioner of Lands & others [1997] KECA 391 (KLR), the Court of Appeal confirmed that when there are competing claims, the earliest registered interest prevails. A properly registered title creates a proprietary right that overrides any later dealings with the same property. The plaintifi's title source is solid; a Gazette Notice confirmed the initial allotment, recognizing the plaintifi's vendors as lawful owners after prior embargoes were resolved. The plaintifi's subsequent purchase after the embargo was lifted was lawful and compliant with legal requirements. The defendants' assertion that payment through the Settlement Fund Trustees (SFT) grants ownership is incorrect; SFT functions only as a financing mechanism and cannot override a registered interest or validate an unlawful process. 60. Plaintifi submits that in Kuria Greens Limited v Registrar of Titles & another [2011] KEHC 4290 (KLR), it was held that a registered proprietor is not obliged to pay SFT, and that any payment by a subsequent party cannot defeat an earlier perfected title. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3459/eng@2026-05-14 9

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61. The plaintifi asserts that the defendants' challenge to the Plaintifi's capacity to hold a freehold title is without merit. The Plaintifi acquired and registered title on July 23, 2007, under the former Constitution, which guaranteed the right to property without distinction between citizens and noncitizens with respect to tenure. Article 65 of the 2010 Constitution introduced restrictions on foreign ownership of freehold land, but these provisions are not retroactive. Section 7 of the Sixth Schedule explicitly preserves existing rights and obligations, safeguarding the plaintifi's preexisting title. Additionally, the plaintifi is a duly incorporated company operating in Kenya and is compliant with all applicable laws. The defendants' insinuations regarding the plaintifi's capacity are a diversionary tactic that does not afiect the lawfulness or validity of the registered proprietorship. The defendants' 2016 title was derived from the unlawful cancellation of the Plaintifi's 2007 title. Consequently, their purported title is null, void, and of no legal efiect. Any attempt to rely on such title, without satisfying the legal requirements of priority, good faith, and procedural compliance, cannot override the Plaintifi's prior registered interest. 62. The 1st and 2nd defendants contended that the plaintifi failed to establish the historical connection of its title to the root. They further argued that when a title deed is contested, the burden of proving its origin rests with the titleholder. In support of their position, the 1st and 2nd defendants cited the following judicial decisions: Haji & another v Moorhead & another [2025] KEELC 953 (KLR); Tight Solutions Limited v Kidege Investment Limited & 4 others [2024] KEELC 3279 (KLR); and Mount Pleasant Limited v Mwangi & 3 others [2025] KEELC 7240 (KLR). 63. The 3rd and 4th defendants supported the 1st and 2nd defendants, asserting that, based on the history as provided concerning the root of title in this matter, the 1st defendant has a firmer title than the plaintifi, supported by the documentation and the history of the suit property as demonstrated by the evidence adduced. 64. The warring parties trace the history of the title they hold to purchases from the original allottees. 65. On this issue, I will agree with the parties' submissions that once a title held by a party is in dispute as shown by a trail of judicial authorities, the court must undertake an inquiry to establish whose title is valid. For example, in Mount Pleasant Limited v Mwangi & 3 others [2025] KEELC 7240 (KLR), this court (Angote J.) held as follows concerning the issue of two competing titles: “ The issue of competing titles remains one of the most enduring and complex challenges within Kenya’s land administration system. A title, the document meant to confer security of tenure has, in many cases, become a source of confiict. 254. As Kiage, JA poignantly remarked in Gathondu (As Administrator of the Estate of the Late Thumbi Kariuki) v Registrar & others [2024] KECA 668 (KLR): “Once upon a time, the holding of a title deed, that treasured document that declared the person named therein as the indisputable owner of the landed property, was a ticket to peace and proprietary security. That it was before a vile mix of greed, rapacity and fraud on one hand and corruption mischief, and tampering of records on the other, increasingly rendered many a title deed worthless papers the holding of which, without more, provided neither certitude nor assurance of safety as courts have had to step in to decipher and determine which among two contending instruments of title is genuine and eficacious. The puzzle of competing title deeds over the same property on the ground in contemporaneous existence is now becoming a contest not of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3459/eng@2026-05-14 10

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dualities of claims, but, as this case shows, one of multiple contestations, each backed by a title deed.” 255. The Court of Appeal in Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR) emphasized that when the validity of a registered proprietor’s ownership is questioned, it is insuficient for that person to simply produce the title deed as proof of ownership. The proprietor bears the duty to go further and show that process through which the title was obtained, was lawful, procedurally sound, and free from fraud or irregularity. 256. Where the acquisition process leading to the issuance of a title is tainted with illegality or non-compliance with the law, such a title cannot be sustained. This position was afirmed by the Supreme Court in Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), where the Apex Court was categorical that: “Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible....Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution. The root of the title having been challenged, as we already noted above, the appellant could not benefit from the doctrine of bona fide purchaser.” 257. The Plaintifi submits, and it is indeed the position, that where there are two competing titles, the first in time will prevail. This position was emphasized in the case of Wreck Motors Enterprises v The Commissioner of Lands & 4 others [1997] KECA 284 (KLR), where the court held that: “Where there are two competing titles, the one registered earlier is the one that takes priority.” 258. However, this maxim is only applicable where there are equal equities. In the circumstances, each of the titles has been impugned, and the court is mandated to investigate their roots.” 58. The underlying inquiry in the present litigation indicates that the title to Plot No. Kilifi/Jimba/347 resides with the Department of Land Adjudication and Settlement, as all parties herein have unequivocally acknowledged, Plot No. Kilifi/Jimba/347 is located within the Kilifi/Jimba/Settlement Scheme. Evidence on record shows that Plot No. Kilifi/Jimba/347 was allocated to Mr. Anderson Nyundo Thoya and Mr. Daniel Kazungu Kombe, who subsequently transferred their interest to the 1st and 2nd defendants. This is corroborated by the Director of Land Adjudication and Settlement, as refiected in the 1st defendant’s Exhibits Nos. DEXH 15 to 28 in the 1st defendant’s List of Documents dated 4th November 2023, and the 2nd defendant’s Exhibits Nos. 4 to 18 in the 3rd and 4th defendants’ List of Documents dated 18th September 2023. 59. PW1 failed to demonstrate the manner in which they obtained the land from the Land Adjudication and Settlement Department. The evidence on record unequivocally indicates that their purported title https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3459/eng@2026-05-14 11

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did not adhere to any recognized procedures for acquiring title within a settlement scheme area, as explicitly demonstrated by DW2-Mohamed Billow Ibrahim in his testimony. 60. The title held by the plaintifi lacks traceability and continuity, and the evidence of PW2 – Lilian Uchi and PW3 – Peter Ngunje clearly points to a title whose sanctity cannot be vouched for. PW2 – Lilian Uchi frankly admitted that she obtained the title from the chief, did not pay for it, had no letter of ofier for the same plot, and had no discharge of charge to enable her to transfer it to the plaintifi or any other person. She was not a squatter in Jimba, as confirmed by her evidence and that of PW3 – Peter Ngunje, so she could not have been a beneficiary of land in a settlement scheme. As such, her title is invalid, and it has not been demonstrated how PW2 – Lilian Uchi became the registered owner of the suit land. 61. In her evidence, Karin Gansfort failed to demonstrate how the plaintifi acquired the land and how due diligence was conducted before the purchase. PW1 failed to produce the necessary conveyancing documents for the land, such as the sale agreement and transfer instruments, and was unable to show how the plaintifi obtained a Land Control Board’s Consent when the plaintifi was wholly foreignowned, without a presidential exemption under Section 9(i) (c) (ii) as read together with Section 24 of the Land Control Board Act Cap 302. 62. This goes hand in hand with whether the land was available for sale, as enunciated in John Gitau Mungai v Stephen Thuku Kabebe & 3 others [2020] KEELC 2980 (KLR: “ Indeed, considering that the suit land was still charged to the Settlement Fund Trustees (SFT) as at 25th August, 2010, when the Land Control Board purported to grant the consent to transfer the suit land from the Plaintifi to the 1st Defendant, I find that the said consent is a nullity. 91. 63. I say so because the Land Control Board is supposed to be satisfied that the land that a party intends to sell is available for sale before it can issue a consent. Such land cannot be said to be available for sale when it is encumbered. For that reason, whether the Plaintifi attended the Board meetings before the said consent was issued or not is neither here nor there.” Regarding fraud, the plaintifi did not demonstrate that the specific allegations of fraud as pleaded amounted to fraudulent conduct by the 1st, 2nd, 3rd, and 4th defendants, since no evidence was presented. Furthermore, the alleged particulars, as described, do not, on their face, constitute actions that the defendants lawfully undertook in the course of their business. The plaintifi did not provide evidence proving that these alleged particulars meet the legal definition of fraudulent conduct. Disposal and final orders 64. From the foregoing, the plaintifi failed to prove the allegations against the defendants, even though the plaintifi’s title was initially canceled irregularly. On the contrary, the 1st and 2nd defendants proved that their title to Plot No. Kilifi /Jimba/347 was regularly acquired. They demonstrated the root of their title to the satisfaction of the court, as evidenced by DW1 – Dr. Auma Rita Obama and DW2 - Mohamed Billow Ibrahim. The plaintifi's claim against the defendants will be dismissed with costs to the defendants, and the 1st and 2nd defendants are thus entitled to the reliefs sought in the counterclaim with costs. 65. For clarity, these will be the final orders: a. The plaintifi's suit against the defendants is hereby dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3459/eng@2026-05-14 12

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b. A declaration is hereby made that the 1st defendant is the lawful proprietor of Plot No. Kilifi/ Jimba/347. c. A declaration is hereby made that any title held by the plaintifi in Plot No. Kilifi/Jimba/347 was irregularly acquired. d. An order for a permanent injunction is hereby entered to restrain the plaintifi from interfering with the 1st defendant's ownership, possession, and use of Plot No. Kilifi/Jimba/347. e. Costs of the counterclaim to the defendants. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN NYERI ON THIS 14TH DAY OF MAY, 2026. E. K. MAKORI JUDGE In the presence of: Ms. Nyagah for the Plaintifi Mr. Kilonzo for the 1st and 2nd Defendant Mr. Munga for the 3rd and 4th Defendants Kendi: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3459/eng@2026-05-14 13

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