Aspire Limited v Zedka Technical Service Limited & 2 Others

ANY WAY WITH LAND PARCEL NUMBER ELDORET MUNICIPALITY/ BLOCK 8/527. D. THAT ANY OTHER OR FURTHER RELIEF THIS COURT DEEMS FIT AND JUST TO GRANT. E. THAT COSTS OF THIS SUIT. 2. The facts in support of the above prayers sought in the present suit can be summarized as follows: i. The Plaintiff herein was and is the lawful owner of the property known as LR.NO.ELDORET MUNICIPALITY BLOCK 8/527 (hereinafter referred to as “the suit property”). ii. The Plaintiff was issued with a Certificate of Lease dated 11.12.2006 as prove of his ownership rights over the suit property herein by the 2nd Respondent. iii. However, on or about 11.01.2021, the Plaintiff herein did learn that the 1st Defendant herein was also claiming ownership of the suit property herein. iv. Based on this information, the Plaintiff did undertake an Official Search of the suit property in the 2 nd Respondent’s offices and was surprised that a second Certificate of Lease dated 06.08.2023 had been issued in favour of the 1st Defendant herein. v. The Plaintiff did plead it had never offered for Sale and/or entered into any Agreement For Sale of the suit property to any person and/or entity hence the registration of the 1st Respondent herein was fraudulent, irregular, unlawful, illegal, null and void. vi. The Plaintiff did further plead that it had never executed any Transfer documents and/or obtained any Consent to Transfer the suit property in favour of the 1 st Defendant ELC. 2 OF 2021 JUDGEMENT 2

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and therefore whatever documents that were used for the registration of the Certificate of Lease dated 06.08.2023 were fraudulent, irregular, unlawful, illegal, null and void. vii. In essence, the Plaintiff did plead that the Certificate of Lease dated 06.08.2023 in favour of the 1st Defendant was fraudulent, irregular, unlawful, illegal, null and void and should henceforth be cancelled. viii. Similarly, the 2nd Defendant should be Ordered to cancel the Certificate of Lease dated 06.08.2023 in favour of the 1st Respondent and restore the Certificate of Lease dated 11.12.2006 as the legitimate and lawful ownership document of the suit property herein. 3. The present suit was duly served upon the 1 st to 3rd Respondents herein. 4. The 1st Defendant opposed the present suit through a Statement of Defence dated 13.12.2022. 5. The 1st Defendant did plead the following facts in opposition of the present suit;i) The 1st Defendant did deny the allegation that the Plaintiff herein was the lawful and legitimate owner of the suit property. ii) According to the 1st Defendant, the suit property herein is currently registered in its name based on lawful acquisition by way of purchase and registration of the relevant Transfer Forms by the 2 nd Defendant in its favour. iii) The 1st Defendant further pleaded that the Plaintiff herein had never been registered as the lawful and legitimate owner of the suit property and therefore has no proprietary rights over the same. ELC. 2 OF 2021 JUDGEMENT 3

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iv) In essence, the 1st Defendant did deny the allegations and particulars of fraud pleaded by the Plaintiff herein in the present suit and put him to strict proof thereof. v) Lastly, the 1st Defendant did plead that the present suit was incompetent and defective hence should be dismissed with costs in its favour. 6. The 2nd and 3rd Defendants despite service of the present suit did not file any Statement of Defence. 7. The Plaintiff in response to the 1st Defendant’s State of Defence dated 17.12.2022 did file a Reply to the Statement of Defence dated 14.03.2023. 8. In the Reply to Defence dated 14.03.2023, the Plaintiff did plead the following facts; i) The Plaintiff did reiterate the facts pleaded in the present suit in totality. ii) The Plaintiff did further plead that it had never executed any Agreement for Sale relating to the suit property either in favour of the 1st Defendant and/or any other person and/or entity and therefore all the completion and/or transfer documents relied upon by the 1 st Defendant to procure its registration over the suit property were fraudulent, null and void. iii) The Plaintiff did plead that the present suit was properly before the Court and therefore the reliefs sought therein should be granted. 9. Upon filing and service of the Reply to the Statement of Defence, the pleadings were duly closed and the matter set down doe hearing. ELC. 2 OF 2021 JUDGEMENT 4

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PLAINTIFF’S TESTIMONIES & DOCUMENTARY EVIDENCE 10. The first witness to the stand was one NGANGA KAMAU who was marked as PW 1. 11. PW 1 did introduce himself as a Director of the Plaintiff and the Administrator of the Estate of one KAMAU NGANGA (Deceased). 12. PW 1 did inform the Court that he had prepared, executed and filed a witness statement dated 13.01. 2021 of which he adopted the same as his evidence in chief. 13. In support of his evidence in Chief, PW1 produced the following documents as exhibits: PW1 EXHIBIT 1– A COPY OF SALE AGREEMENT DATED 20.11. 2006 FOR LAND PARCEL NUMBER OF ELDORET MUNICIPALITY/BLOCK 8/ 527. PW1 EXHIBIT 2- A COPY OF TRANSFER FORM. PW1 EXHIBIT 3- A COPY OF PAYMENT OF STAMP DUTY DATED 11.12. 2006. PW1 EXHIBIT 4- A COPY OF CERTIFICATE OF LEASE DATED 11.12.2006. PW1 EXHIBIT 5- A COPY OF LETTER DATED 16.01. 2007. PW1 EXHIBIT 6- A COPY OF LETTER DATED 16.01.2007. PW1 EXHIBIT 7- A COPY OF LAND SEARCH DATED 12.01.2021. PW1 EXHIBIT 8- A COPY OF LAND SEARCH DATED 02. 04. 2014. ELC. 2 OF 2021 JUDGEMENT 5

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PW1 EXHIBIT 9- A COPY OF AN APPLICATION FOR REGISTRATION DATED 11.12.2006. PW1 EXHIBIT 10- A COPY OF A CHARGE SHEET. PW1 EXHIBIT 11- A COPY INCORPORATION. OF CERTIFICATE PW1 EXHIBIT 12- A 11.05.2021. OF LETTER COPY OF DATED PW1 EXHIBIT 13- A COPY OF LETTER DATED 13. 07. 2021. PW 1 EXHIBIT 14- COPIES OF THE PARCEL FILE OF THE SUIT PROPERTY. 14. According to PW 1, the suit property was purchased by the Plaintiff from one JOHN ROTICH LIMO through an Agreement For Sale dated 20.11.2006 at a consideration of Two Million Six Hundred Thousand (KShs.2,600,000/-) which amount was fully settled and took possession. 15. Thereafter, in the year 2021, the Plaintiff did begin constructing a perimeter fence around the suit property when he was approached by persons unknown to him alleging ownership of the same. 16. Due to this allegation, PW 1 promptly undertook an official search of the suit property in the 2nd Respondent’s offices. 17. The official search issued by the 2 nd Respondent on the 12.01.2021 did indicate that the suit property was registered in the name of the 1st Defendant and not the Plaintiff herein. 18. The Plaintiff armed with this information did discover that there had been a fraudulent Transfer of the suit property to the 1st Defendant without its knowledge. ELC. 2 OF 2021 JUDGEMENT 6

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19. PW1 did inform the Court that on or about 02.04.2014, the suit property herein was still registered in the name of the Plaintiff herein based on the Official Search issued by the 2 nd Defendant herein on the material date. 20. PW 1 did deny any knowledge and/or resolution by the Plaintiff to dispose of and/or alienate the suit property herein in favour of the 1st Defendant. 21. Similarly, PW 1 did deny any resolution to transfer and/or any execution of transfer documents by the Plaintiff in favour of the 1st Defendant relating to the suit property. 22. In view of this fraudulent transfer of the suit property in favour of the 1st Defendant, the Plaintiff herein did make a report to the Directorate of Criminal Investigations to undertake an investigation of how the suit property was transferred to from the Plaintiff to the 1 st Defendant in the absence of a valid Agreement For Sale and Transfer documents executed by it. 23. During the investigations by the Directorate of Criminal Investigations, it was discovered that the Company that had entered into an Agreement For Sale with the 1st Defendant over the suit property was ASTIRE LIMITED instead of ASPIRE LIMITED. 24. Further to the foregoing, the Directorate of Criminal Investigations did discover from the Registrar of Companies that the 1st Defendant had been registered as the owner on the 14.05.2015 yet the Official Search issued by the 2 nd Respondent had indicated that the 1 st Defendant had acquired the suit property way back on 06.08.2013. 25. In addition, the Directorate of Criminal Investigations upon requesting for the registration of the entity known as ASTIRE LIMITED, the Registrar of Companies could not trace its registration from their data base. ELC. 2 OF 2021 JUDGEMENT 7

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26. PW1 informed the court that they filed a complaint on allegations of fraud and from the investigation by the DCI they found out that Astire Limited did not exist at the company’s registry hence the sale agreement by the 1 st defendant herein was found to be a forgery. The plaintiff herein produced a copy of the charge sheet as exhibit 10. 27. In view of these anomalies, the Directorate of Criminal Investigations did prefer Criminal Charges against the directors of the 1st Defendant. 28. PW 1 therefore did conclude his evidence in chief by requesting the Court to allow the present suit and grant the Orders sought for therein. 29. On cross examination by Counsel for the 1st Defendant, PW1 did inform the Court that he was not a Director of the Plaintiff at the time the present suit was filed but had the relevant Resolution to represent the Plaintiff in this proceeding. 30. PW 1 did admit that the Resolution presented before the Court did not specify that ADVOCATE KITIWA had been authorized to represent the Plaintiff in Court. 31. PW 1 also did admit that the Verifying Affidavit, the Replying Affidavit and all other documents filed before Court relating to the present suit did not have the Common Seal of the Plaintiff. 32. PW 1 on being referred to the Transfer Form relating to the suit property to the Plaintiff, he did acknowledge that the same did not have the date upon which it was represented to the 2nd Defendant for registration. 33. According to the testimony of PW 1, the Green Card held by the 2nd Defendant was the one with the Plaintiff as the registered owner and not ASTIRE LIMITED. ELC. 2 OF 2021 JUDGEMENT 8

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34. In fact, PW 1 did state that based on the outcome of the investigations by the Directorate of Criminal Investigations, the entity known as ASTIRE LIMITED had never been registered and/or been in existence. 35. PW1 testified that the suit herein is not incompetent as his father died in the year 2018 and he is the administrator of the estate of the late father. 36. On re-examination, PW1 testified that he became a Director of Aspire Limited on 20.03. 2005 and his father died in the year 2018. 37. PW 1 did further clarify that upon the demise of his father, his shares in the Plaintiff were under the control of the Administrator of the Estate. 38. PW1 informed the Court that the Authority to Institute the present suit by the Plaintiff was duly sealed with the Common Seal of the Plaintiff which he is a director of. 39. PW1 did testify that although the Application for Registration Form produced by the Plaintiff was not dated, the same did have the assessed Stamp Duty paid which demonstrates that the Consideration of Kenya Shillings Two Million Six Hundred Thousand (KShs.2,600,000/-) as provided for in the Agreement For Sale. 40. PW 1 did state that based on the information obtained from the Registrar of Companies, the postal address of ASPIRE LIMITED and ASTIRE LIMITED were not one and the same hence these were two different entities. 41. At the end of this re-examination, PW 1 was duly discharged from the witness box thereafter. ELC. 2 OF 2021 JUDGEMENT 9

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42. The second witness to take the stand was JOHN ROTICH LIMO who was marked as PW 2. 43. PW 2 did introduce himself as a resident of Kitale within Trans Nzoia County. 44. PW 2 did inform the Court that he had prepared, executed and filed his witness statement dated 13.01. 2021 of which he adopted the same as his evidence in chief herein. 45. PW2 did confirm to the Court that he was the original registered owner of the suit property which he then did sale to the Plaintiff herein based on the Agreement For Sale dated 20.11.2006. 46. PW2 did further testify that the suit property herein was lawfully transferred to the Plaintiff upon procurement of all relevant transfer documents and issued with a Certificate of Lease in its name on the 11.12.2006. 47. PW 2 did aver that his signatures on the documents produced by PW 1 were the genuine ones and therefore the Transfer Documents held by the Plaintiff were the legitimate and lawful transfer documents relating to the suit property. 48. PW 2 did deny knowledge of an entity known as ASTIRE LIMITED and further denied either entering into an Agreement For Sale with them or executing any transfer documents in their favour. 49. PW 2 therefore did dispute his signature appearing on the Agreement For Sale dated 04.10.2006 relating to the suit property in favour of the 1st Defendant and any other document thereafter was in fact a forgery. ELC. 2 OF 2021 JUDGEMENT 10

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50. PW 2 testified that he never received any money for ASTIRE LIMITED and had never sold the suit property to any other entity other than the Plaintiff herein. 51. On cross-examination by Counsel for the 1 st Defendant, PW2 did inform the Court that all the Transfer Documents relating to the suit property were handed over to the Plaintiff and therefore he did not have any copies of the same save for the Agreement For Sale. 52. Based on the information before Court, PW 2 did confirm that he was the first registered owner of the suit property, followed by Plaintiff and now the 1st Defendant herein. 53. On re- examination, PW 2 reiterate that based on the Register of the suit property, he had transferred the suit property to the Plaintiff and not an entity known as ASTIRE LIMITED. 54. At the end of this brief re-examination, PW 2 was discharged from the witness box. 55. The third witness to take the stand was CALEB WANJALA FUGUTI who was marked as PW 4. 56. PW 3 did introduce himself as a Land Registrar working with the Ministry of Land and currently stationed at Baringo Land Registry. 57. Prior to PW 3 posting to Baringo Land Registry, he was stationed at Eldoret Land Registry between 2013 and 2015. 58. PW 3 did inform the Court that in the year 2013, he was indeed stationed in Eldoret Land Registry when the Certificate of Lease issued in favour of the 1st Defendant was issued. 59. However, according to PW3, the signature that appears on the Certificate of Lease issued on the 06.08.2013 in favour of the ELC. 2 OF 2021 JUDGEMENT 11

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1st Defendant was not his legitimate signature and was in fact a forgery. 60. PW3 further denied the signature appearing on the Green Card in the Entry made on 06.08.2013 in favour of the 1 st Defendant. 61. PW 3 did aver that an investigation was already being undertaken by the Directorate of Criminal Investigations through an officer known as MARTIN CHEMONGES ZIWA pertaining to the forgery of his signature on both the Certificate of Lease dated 06.08.2013 and the Entry made on the same date in the Green Card of the suit property. 62. On cross-examination by the 1 st Defendant’s Counsel, PW 3 did reiterate that he had never registered the Transfer Form in favour of the 1st Defendant, or signed the entry made on the 06.08.2013 registering the 1st Defendant as the lawful owner of the suit property or signed the Certificate of Lease dated 06.08.2013 in favour of the 1st Defendant. 63. PW 3 did conclude his cross-examination by indicating that he had given his specimen signatures to the Directorate of Criminal Investigations for verification against the signatures appearing on the 1st Defendant’s documents. 64. On re-examination, PW 3 did confirm that his signatures had been subjected to forensic examination by the Directorate of Criminal Investigations. 65. At the end of the re-examination, PW 3 was discharged from the witness box. 66. The fourth witness was one ALICE GISEMBA who was marked as PW4. ELC. 2 OF 2021 JUDGEMENT 12

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67. PW 4 did introduce herself as a Land Registrar stationed at Eldoret Land Registry. 68. Pw 4 did confirm to the Court that she had in her possession the Parcel File of the suit property herein. 69. According to PW4, the Register of the suit property did confirm that the first registered owner was JOHN ROTICH LIMO based on the entry made on the 08.08.1997 and a Certificate of Lease in his favour was issued on the same date. 70. Thereafter, the suit property was transferred to the Plaintiff on the 11.12.2006 through an entry made on the 11.12.2006 and a Certificate of Lease dated the same date was issued in his favour. 71. PW4 confirm that the Transfer from JOHN ROTICH LIMO to the Plaintiff was dated 05.12.2006 and Stamp Duty was duly paid based on the Valuation Form dated 22.11.2006. 72. PW 4 did inform the Court that in the Parcel File, there was an Abstract to confirm that the Plaintiff’s Certificate of Lease issued on the 11.12.2006 had been lost and misplaced or an application for a re-issuance of the same having been made by the Plaintiff herein. 73. In any event, even if there was an application for re-issuance of the Certificate of Lease dated 11.12.2006, the same would have to be re-issued in the name of the Applicant and not any other entity. 74. As regards to the entry made on the 06.08.2013 in the Register of the suit property, PW 4 confirm that there was a registration of a Transfer in favour of the 1 st Defendant but the actual Transfer Form executed by the Plaintiff in favour of the 1st Defendant was not in the Parcel file. ELC. 2 OF 2021 JUDGEMENT 13

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75. Similarly, PW 4 could not trace any Valuation Form for the purposes of assessment of Stamp Duty payable by the 1 st Defendant in relation to the Transfer Form registered on the 06.08.2013 in favour of the 1st Defendant. 76. PW 4 did inform the Court that during registration of a Transfer from one party to another, the Vendor is required to surrender the Certificate of Lease being transferred together with the Transfer Form which is to be registered. 77. However, during the registration of the Transfer made on the 06.08.2013, the Certificate of Lease issued in favour of the Plaintiff was never surrendered during the registration of the 1st Defendant’s Transfer. 78. PW4 confirmed to the Court that in the booking at the pages of 06.08. 2013 they do not have any presentation of documents for the transfer of the Certificate of Lease to the 1st Defendant. 79. PW4 did reiterate in Court that the Certificate of Lease dated 06.08.2013 was issued to the Plaintiff and not ASTIRE LIMITED and there is also no transfer that is registered by the 1st Defendant from ASTIRE LIMITED. 80. On being referred to PLAINTIFF EXHIBIT 8, PW4 did confirm that this was a legitimate Official Search from their offices and it did state that the Plaintiff was the lawful registered owner of the suit property as at 02.04.2014. 81. In conclusion of her examination in chief, PW4 did produce the Parcel File of the suit property which was marked as PLAINTIFF EXHIBIT 14. 82. On cross- examination by Counsel for the 1 st Defendant, PW4 did deny the allegation that the suit property was transferred to the 1st Defendant fraudulently. ELC. 2 OF 2021 JUDGEMENT 14

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83. PW 4 did confirm that the Register and/or Parcel File of the suit property had never been reconstructed. 84. PW 4 did reiterate that the first registration was made on the 08.08.1997 in favour of one JOHN ROTICH LIMO who then did transfer the same to the Plaintiff herein based on the entry made on 11.12.2006 and lastly the same was transferred to the 1st Defendant herein on the 06.08.2013. 85. On re-examination, PW 4 did point out that the postal address of the Plaintiff as indicated in the Register of the suit property was different from that of ASTIRE LIMITED. 86. PW 4 was subsequently discharged from the witness box upon completion of the re-examination and the Plaintiff did close its case thereafter. 87. The Court did summon one MUIGUI WANDE, LAND REGISTRAR whose name did appear on the 1st Defendant’s documents as the maker of the same. 88. The Land Registrar on presentation of the Certificate of Lease dated 06.08.2013 did deny that he was the person that has appended his signature of the same. 89. The Land Registrar did further inform the Court that the Directorate of Criminal Investigations had already requested them to supply copies of the Register and all other documents relating to the suit property herein which he had already done. 90. On cross- examination by the 1st Defendant’s advocate, the Land Registrar did testify that the Certificate of Lease issued on the 11.12.2006 and the Certificate of Lease re-issued on the 14.05.2008 were in the name of ASTIRE LIMITED. ELC. 2 OF 2021 JUDGEMENT 15

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91. Consequently, based on the Register of the suit property produced by the 1st Defendant, the name of the Plaintiff was not recorded in the same. 92. On cross- examination by the Plaintiff’s Counsel, the Land Registrar was referred to the Parcel File that had been produced by PW 4. 93. The Land Registrar did confirm that according to the Parcel File, the first registered owner of the suit property was one JOHN ROTICH LIMO who then did transfer the same to the Plaintiff herein. 94. The Land Registrar then did point out that the Register shows that the Certificate Of Lease in relation to the suit property was re-issued but does not show the name of whom its was re-issued to. 95. In essence, if indeed the Certificate of Lease was re-issued, then the same should have been re-issued to the Plaintiff and not ASTIRE LIMITED who was not the lawful owner. 96. In conclusion, the Land Registrar did deny re-issuing any Certificate of Lease in the name of ASTIRE LIMITED and did reiterate that the lawful owner of the suit property herein is the Plaintiff. 97. At the end of this cross-examination, the Land Registrar was discharged from the witness box and the Plaintiff’s case was subsequently closed. 1ST DEFENDANT’S EVIDENCE TESTIMONIES & DOCUMENTARY 98. The witness was one MARTIN CHEMONGE who was marked as DW 1. ELC. 2 OF 2021 JUDGEMENT 16

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99. DW 1 did introduce himself as the Director of the 1 st Defendant herein. 100. DW 1 did confirm to the Court that he had prepared and executed a witness statement dated 20.03.2023 of which he did adopt the same as his evidence in chief. 101. In support of his evidence, DW1 produced the following documents; DW1 EXHIBIT 1- COPY OF AN AGREEMENT DATED 04.10. 2006 BETWEEN JOHN ROTICH LIMO & ASTIRE LIMITED OVER ELDORET MUNICIPALITY BLOCK 8/527. DW1 EXHIBIT 2- COPY OF AGREEMENT DATED 04.07. 2013 BETWEEN JOHANNA KIPROTICH OF ASTIRE LIMITED & ZEDKA TECHNICAL SERVICE LIMITED OVER BLOCK 8/527. DW1 EXHIBIT 3- COPY OF AN ACKNOWLEDGEMENT RECEIPT DATED 25.07. 2013 BETWEEN ASTIRE LIMITED & ZEDKA TECHNICAL SERVICE LIMITED OVER BLOCK 8/527 FOR KSHS. 500,000/DW1 EXHIBIT 4- COPY OF AN ACKNOWLEDGEMENT RECEIPT DATED 16.08. 2013 BETWEEN ASTIRE LIMITED & ZEDKA TECHNICAL SERVICE LIMITED BLOCK 8/527 FOR KSHS. 2,000, 000/DW1 EXHIBIT 5- COPY OF OFFICIAL SEARCH DATED 18. 06. 2013 MADE BY KOMEN FOR BLOCK 8/527. DW1 EXHIBIT 6- COPY OF CERTIFICATE OF LEASE DATED 06.08. 2013 IN RELATION TO BLOCK 8/527 IN THE NAME OF ZEDKA TECHNICAL SERVICE LIMITED. ELC. 2 OF 2021 JUDGEMENT 17

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DW1 EXHIBIT 7- COPY OF OFFICIAL SEARCH DATED 06. 11. 2020 IN RELATION TO BLOCK 5/527 DW1 EXHIBIT 8- COPY OF A TRANSFER OF LAND DATED 28.11. 2006 FOR JOHN ROTICH LIMO TO ASTIRE LIMITED ON BLOCK 8/527. DW1 EXHIBIT 9- COPY OF CERTIFICATE OF LEASE DATED 11.12. 2006 IN THE NAME OF ASTIRE LIMITED ON BLOCK 8/527. DW1 EXHIBIT 10- COPY OF CERTIFICATE OF LEASE DATED 14.05.2008 IN THE NAME OF ASTIRE LIMITED. DW1 EXHIBIT 11- COPY OF TRANSFER OF LEASE DATED 16.07. 2013 FROM ASTIRE LIMITED TO ZEDKA SERVICE LIMITED FOR BLOCK 8/527. DW1 EXHIBIT 12- COPY OF A CERTIFIED WHITE CARD DATED 14.01. 2021 OF BLOCK 8/527. DW1 EXHIBIT 13- COPY OF CR 12 OF ZEDKA SERVICE LIMITED. DW1 EXHIBIT 14COPY OF CERTIFICATE OF INCORPORATION OF ZEDKA SERVICE LIMITED DATED 13.05. 2011. DW1 EXHIBIT 15- COPY OF THE CR 12 OF ASTIRE LIMITED DATED 25.07. 2022. DW 1 EXHIBIT 16- COPY OF CR 12 OF ASTIRE LIMITED DATED 11.05.2022 102. DW1 inform the Court that he is a businessman who intended to establish a Petrol Station within Uasin Gishu County. 103. In an effort to identify a suitable location, DW 1 did meet one MARTIN JULIUS who was a land broker and was taken ELC. 2 OF 2021 JUDGEMENT 18

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to the suit property herein which he was informed was on sale. 104. DW 1 did find the suit property to be appropriate for his intentions and did proceed to undertake an Official Search of the same at the 2nd Defendant’s offices in Uasin Gishu. 105. According to DW 1, the results of the Official Search undertaken by him was that the suit property was registered in the name of ASPTIRE LIMITED. 106. Consequently, the 1st Defendant did purchase the suit property from a representative of ASTIRE LIMITED and the same transferred to the name of the 1st Defendant. 107. However, before the 1st Defendant would take possession, a dispute arose that the suit property was not the asset of ASTIRE LIMITED but the Plaintiff herein. 108. DW 1 however did testify that based on the documents procured from the offices of the 2nd Defendant, the suit property was the lawful property of ASTIRE LIMITED and not the Plaintiff herein. 109. In the testimony of DW 1, the suit property had been lawfully purchased by ASTIRE LIMITED from the first registered owner known as JOHN ROTICH LIMO. 110. The person known as JOHN ROTICH LIMO was registered as the lawful owner of the suit property on the 11.12.2006 and thereafter did transfer the same to ASTIRE LIMITED and the Certificate of Lease re-issued on 4.05. 2008. 111. Nevertheless, DW 1 could not explain why the Certificate of Lease was re-issued on the 04.05.2008. ELC. 2 OF 2021 JUDGEMENT 19

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112. DW 1 did testify that based on the information procured from the Registrar of Companies, the entity known as ASTIRE LIMITED could not be traced in their data base although he was aware that it had been incorporated on the 24.10.1997. 113. On being referred to DW 1 EXHIBIT 14, DW 1 did confirm that the Certificate of Incorporation of the 1 st Defendant indicated that it was registered on the 13.08.2011 while the Certificate of Lease issued to it was dated 06.08.2013. 114. DW 1 did confirm that from the information emanating from the Registrar of Companies, ASTIRE LIMITED had two directors although in the Transfer made to the 1 st Defendant, only one director had executed the same and it also did not contain the Official Search of the Transferor. 115. On re- examination, DW 1 did make reference to DW 1 EXHIBIT 11 on which he did aver that although the information of the Transferor was not complete, all the requirements appertaining the 1st Defendant were correctly filled and executed. 116. DW 1 nevertheless did aver that all payments in terms of the consideration of the suit property were made to ASTIRE LIMITED who was the true owner of the same. 117. After the brief re-examination of DW 1, he was discharged from the witness box and the 1st Defendant did close its case thereafter. 118. The 2nd and 3rd Defendants herein did inform the Court that they would not be calling any witnesses and/or produce any more documents in the matter. 119. The 2nd and 3rd Defendants therefore did close their case thereafter. ELC. 2 OF 2021 JUDGEMENT 20

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120. The Court upon closure of the Defence hearing did direct that parties file their final submissions. 121. The Plaintiff herein did file its final submissions dated 22.05.2026 while the 1st Defendant did file his submissions dated 03.06.2026. 122. The Court has indeed perused the pleadings, the evidence on record, the testimonies of the ties and the submissions filed herein and identified the following issues for determination; ISSUE NO.1- WHO IS THE FIRST LAWFUL REGISTERED OWNER OF THE SUIT PROPERTY? ISSUE NO.2- WHO WAS THE SECOND LAWFUL REGISTERED OWNER OF THE SUIT PROPERTY HEREIN? ISSUE NO.3- WAS THE TRANSFER OF THE SUIT PROPERTY FROM THE SECOND LAWFUL REGISTERED OWNER TO THE 1ST DEFENDANT LAWFUL AND PROCEDURALLY DONE? ISSUE NO.4-IS THE DEFENDANT LETIGIMATE? ISSUE NO.5-IS THE PLAINTIFF’S SUIT SOUGHT THEREIN MERITED? REGISTRATION OF THE 1ST HEREIN LAWFUL AND & RELIEFS ISSUE NO.6- WHO BEARS THE COSTS OF THE PRESENT SUIT? 123. The Court having duly identified the above-mentioned issues for determination, the same will now be discussed as provided below. ISSUE NO.1- WHO IS THE FIRST LAWFUL REGISTERED OWNER OF THE SUIT PROPERTY? ELC. 2 OF 2021 JUDGEMENT 21

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124. The first issue for determination is who was the first lawful registered owner of the suit property herein. 125. According to the pleadings of the Plaintiff, its witnesses and the 1st Defendant, the first registered owner of the suit property herein was JOHN ROTICH LIMO based on Entry No.1 in the Register and the Certificate of Lease issued on the same day in his favour. 126. It is therefore this Court’s finding that the first lawful registered owner of the suit property herein was one JOHN ROTICH LIMO. ISSUE NO.2- WHO WAS THE SECOND LAWFUL REGISTERED OWNER OF THE SUIT PROPERTY HEREIN? 127. The second issue is who was the second lawful owner of the suit property after JOHN ROTICH LIMO. 128. According to the Plaintiff herein, the first lawful registered owner of the suit property did sale the same to the Plaintiff herein. 129. The Plaintiff did produce an Agreement For Sale dated 20.11.2006 executed between the JOHN ROTICH LIMO and the Plaintiff relating to the suit property herein. 130. The Plaintiff did further produce the Transfer Form executed by the first lawful registered owner JOHN ROTICH LIMO and the Plaintiff as well as the Application For Registration Form to have Transfer Registered by the 2nd Defendant. 131. The Plaintiff in addition to the foregoing did produce the Stamp Duty Declaration, Assessment and Pay In Slip in relation to the Transfer Form executed by the first lawful registered owner JOHN ROTICH LIMO and the Plaintiff herein. ELC. 2 OF 2021 JUDGEMENT 22

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132. Lastly, the Plaintiff did produce the Certificate of Lease issued by the 2nd Defendant on the 11.12.2006 to confirm its registration as the second lawful registered owner of the suit property herein. 133. The 1st Defendant on the other hand did plead and testify that the second lawful registered owner of the suit property was an entity known as ASTIRE LIMITED. 134. The 1st Defendant did produce an Agreement For Sale dated 04.10.2006 executed between the first lawful registered owner of the suit property and ASTIRE LIMITED. 135. Thereafter, the 1st Defendant did produce a Transfer Form dated 28.11.2006 executed by the first lawful registered owner of the suit property JOHN ROTICH LIMO in favour of ASTIRE LIMITED. 136. The 1st Defendant further did produce the Certificate of Lease dated 11.12.2006 issued by the 2 nd Defendant in the name of ASTIRE LIMITED. 137. According to the testimony of the 1st Defendant, an Official Search was done on the suit property by the 1 st Defendant known as KOMEN on the 18.06.2013 which confirmed that indeed the entity known as ASTIRE LIMITED was the second lawful owner of the suit property herein. 138. Lastly, the 1st Defendant did produce a second Certificate of Lease dated 14.05.2008 which was re-issued in favour of the entity known as ASTIRE LIMITED. 139. The Plaintiff herein to collaborate its testimony did call a total of three (3) witnesses. 140. The Plaintiff’s second witness was JOHN ROTICH LIMO who was the first lawfully registered owner of the suit property. ELC. 2 OF 2021 JUDGEMENT 23

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141. According to the testimony of JOHN ROTICH LIMO, the Agreement For Sale which he did execute in relation to the suit property was that with the Plaintiff herein dated 20.11.2006. 142. The witness known as JOHN ROTICH LIMO did further confirm to the Court that the Transfer Form which he did execute in relation to the suit property was the one in favour of the Plaintiff and the resultant Title to the suit property was the Certificate of Lease issued on the 11.12.2006 in favour of the Plaintiff. 143. On cross-examination, the witness known as JOHN ROTICH LIMO did specifically deny Agreement For Sale dated 04.10.2006 with an entity known as ASTIRE LIMITED over the suit property herein. 144. Further to the above, the witness JOHN ROTICH LIMO did deny the execution of the Transfer Form dated 28.11.2006 in favour of the entity known as ASTIRE LIMITED as alleged by the 1st Defendant. 145. In essence, the witness known as JOHN ROTICH LIMO did dispute the legality of the Certificate of Lease dated 11.12.2006 in favour of the entity known as ASTIRE LIMITED. 146. The third Plaintiff’s witness was one CALEB WANJALA FUGUTI who was the County Land Registrar, Uasin Gishu in the years between 2013 and 2015. 147. According to the testimony of PW 3, the entry made on the 06.08.2013 on the Register of the suit property as well as the Certificate of Lease dated 06.08.2013 were never issued by him. ELC. 2 OF 2021 JUDGEMENT 24

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148. The fourth Plaintiff witness was ALICE GISEMBA who is currently the County Land Registrar, Uasin Gishu. 149. PW 4 did produce the Parcel File held by the 2 nd Defendant. 150. According to PW 4, the second registered owner of the suit property herein was the Plaintiff herein in accordance to the Entry to the entries name on the 11.12.2006 and the Certificate of Lease dated 11.12.2006. 151. Thereafter, PW 4 did disclose to the Court that the Certificate of Lease of the suit property was re-issued on the 14.05.2008 and the Certificate of Lease was recorded in the name of the entity known as ASTIRE LIMITED. 152. Based on the testimony of PW 4, even if the Certificate of Lease issued on the 11.12.2006 in the name of the Plaintiff was to be re-issued, the same should be in the name of the Plaintiff and not the entity known as ASTIRE LIMITED. 153. In essence, PW 4 did confirm that the second lawful registered owner of the suit property was the Plaintiff and not ASTIRE LIMITED as alleged by the 1st Defendant. 154. The 1st Defendant on the other hand did not call any witness to collaborate his testimony before the Court. 155. To resolve this matter, this Court will begin with the testimony of JOHN ROTICH LIMO who was the first lawful registered owner of the suit property. 156. The testimony of JOHN ROTICH LIMO and his reliance of the Agreement For Sale dated 20.11.2006 recognizes the entity that did lawfully purchase the suit property to be the Plaintiff herein. ELC. 2 OF 2021 JUDGEMENT 25

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157. The witness JOHN ROTICH LIMO further did confirm that the Transfer Form which he did legally execute was the one in favour of the Plaintiff herein and registered on the 11.12.2006. 158. The testimony of PW 4 did further confirm that the Transfer documents contained in the Parcel File of the suit property were those of the Plaintiff herein. 159. In other words, PW 4 did verify that the lawful documents contained in the Parcel File regarding the Transfer of the suit property from JOHN ROTICH LIMO were those in favour of the Plaintiff. 160. PW 4 did also clarify that the Transfer Form produced by the 1st Defendant executed by the first registered owner JOHN ROTICH LIMO in favour of the entity known as ASTIRE LIMITED was not in the Parcel File. 161. The Court’s expectation from the 1 st Defendant was that it would have called the director and/or representative of the entity known as ASTIRE LIMITED to collaborate its testimony in an effort to cement the legality of the Agreement For Sale 04.10.2006 and the Transfer Form dated 28.11.2006 in its favour by JOHN ROTICH LIMO. 162. Unfortunately, the 1st Defendant did not have any witness to confirm that the Agreement For Sale dated 04.10.2006 and the Transfer Form dated 28.11.2006 were indeed issued in favour of the entity known as ASTIRE LIMITED and not the Plaintiff. 163. During the 1st Defendant’s testimony as well as the crossexamination of the witness known as JOHN ROTICH LIMO, there was no question which tried to even identify the directors and/or representatives of ASTIRE LIMITED to have either met and/or executed the Agreement For Sale dated ELC. 2 OF 2021 JUDGEMENT 26

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04.10.2006 and/or the Transfer Forms dated 28.11.2006 with him. 164. It is therefore this Court’s considered view that the Agreement for Sale dated 04.10.2006 and the Transfer Forms dated 28.11.2006 having been disowned by the first registered owner JOHN ROTICH LIMO who was the person alienating the property, then the entity known as ASTIRE LIMITED cannot have executed any lawful Agreement For Sale dated 04.10.2006 with the registered owner JOHN ROTICH LIMO as alleged and subsequently thereof, the Transfer Form dated 28.11.2006 in favour of the entity known as ASTIRE LIMITED would not alienate any proprietary interests appertaining to the suit property in favour of ASTIRE LIMITED. 165. In other words, this Court hereby makes a finding that the second lawful registered owner of the suit property is the Plaintiff herein based on the Entry made on the 11.12.2206 and the Certificate of Lease issued in its favour on the same date. ISSUE NO.3- WAS THE TRANSFER OF THE SUIT PROPERTY FROM THE SECOND LAWFUL REGISTERED OWNER TO THE 1ST DEFENDANT LAWFUL AND PROCEDURALLY DONE? 166. The third issue is the legality of the 1 st Defendant’s registration as the third lawful owner of the suit property. 167. The Plaintiff herein in its pleading and testimonies before the Court did challenge the registration of the 1 st Defendant as the lawful owner of the suit property herein. 168. The Plaintiff did state that there has never been any Agreement for Sale with the 1st Defendant in relation to the suit property in any manner whatsoever to alienate the ownership rights of the same to his favour. ELC. 2 OF 2021 JUDGEMENT 27

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169. The Plaintiff therefore did plead and testify that the registration of the 1st Defendant as the lawful third registered owner of the suit property was fraudulent, irregular, null and void. 170. Once again, the Plaintiff did rely on the testimonies of PW 2 to PW 4 as well as the testimony of the Expert witness who is alleged to have signed both the entries made on 06.08.2013 in favour of the 1st Defendant. 171. The 1st Defendant on the other hand did rely on the Transfer dated 16.07.2013 and the Certificate of Lease issued in its favour on the 06.08.2013. 172. In addition to the foregoing, the 1st Defendant did also rely on the White card of the suit property which did indicate that the suit property was duly registered in its favour on the 06.08.2013. 173. During his examination in chief, DW 1 did produce a copy of its Certificate of Incorporation which shows that the same was registered on the 13.05.2011. 174. However, according to the Certified CR.12 also produced by DW 1 dated 25.03.2021, the information held by the Business Registration Service which is the successor of the Registrar of Companies indicate that the 1st Defendant was incorporated on the 14.05.2015. 175. The question that then arises is whether the 1 st Defendant was incorporated and/or did exist 06.08.2013 when it was registered as the third owner of the suit property herein. 176. The provisions of Section 83 (1) of the Evidence Act, Cap 80 states as follows; - ELC. 2 OF 2021 JUDGEMENT 28

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“(1) The Court shall presume to be genuine every document purporting to be a certificate, certified copy or other document which is ;(a) Declared by law to be admissible as evidence of any particular fact; and (b) Substantially in the form, and purporting to be executed in the manner, directed by law in that behalf; and (c) Purporting to be duly certified by officer.” a public 177. Based on the above provision, this Court is required to hold any document issued by a public officer as those employed with the Business Registration Services as the genuine document and/or information relating to the 1st Defendant. 178. In essence, this Court hereby makes a finding that the 1 st Defendant was incorporated on the 14.05.2015 as has been indicated by the Records held by the Business Registration Services on the 25.03.2021. 179. The Transfer which the 1st Defendant did present before the Court as the instrument of alienation was dated 16.07.2013. 180. Based on the information obtained from the Business Registration Services, the 1st Defendant was therefore no in existence at the time it did enter the Agreement For Sale dated 04.07.2013 with the purported representative of the entity known as ASTIRE LIMITED. 181. Similarly, the 1st Defendant herein did not have any legal existence to execute the Transfer Form dated 16.07.2013 having not been incorporated at the material time. 182. Clearly therefore, the Transfer Form dated 16.07.2013 used by the 1st Defendant to register itself as the third owner of ELC. 2 OF 2021 JUDGEMENT 29

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the suit property was issued by an entity that was not the lawful owner of the suit property and the recipient of the rights being alienated was also not in existence. 183. In such a scenario, this Court has no other way but to declare all the documents prepared by either ASTIRE LIMITED and/or the 1st Defendant purporting to alienate any proprietary interests over the suit property as being irregular, fraudulent, null and void. ISSUE NO.4-IS THE DEFENDANT LETIGIMATE? REGISTRATION OF THE 1ST HEREIN LAWFUL AND 184. The fourth issue is whether the 1 st Defendant’s registration recorded on the 06.08.2013 is lawful or not. 185. Based on the finding that all the documents executed between the entity known as ASTIRE LIMITED and the 1 st Defendant were irregular, fraudulent, null and void, then their registration of the Register of the suit property was on the page irregular, fraudulent, null and void. 186. Consequently, the Transfer Form dated 16.07.2013 from the entity known as ASTIRE LIMITED and the 1st Defendant was incapable of producing any legal document and/or registration of the suit property in favour of the 1 st Defendant. ISSUE NO.5-IS THE PLAINTIFF’S SUIT SOUGHT THEREIN MERITED? & RELIEFS 187. The fifth issue is whether the Plaintiff’s suit and the reliefs therein are merited or not. 188. Based on the Court’s Finding in Issues No. 2, 3 and 4 hereinabove, it is clear that the Plaintiff’s suit is merited and the reliefs sought therein should be granted. ELC. 2 OF 2021 JUDGEMENT 30

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ISSUE NO.6- WHO BEARS THE COSTS OF THE PRESENT SUIT? 189. On costs, the same usually follow the event and/or awarded to a winning party unless otherwise stated by the Court. 190. In the present suit, the Court hereby grants costs of the suit to the Plaintiff payable by the 1st Defendant only. CONCLUSION 191. In conclusion, this Court hereby makes the following Orders in determination of the present suit;A. A DECLARATION IS HEREBY ISSUED THAT THE PLAINTIFF, ASPIRE LIMITED IS THE LAWFUL AND BONA FIDE REGISTERED PROPRIETOR OF LAND PARCEL NUMBER ELDORET MUNICIPALITY/BLOCK 8/527 IN LINE WITH THE ENTRY MADE ON THE 11.12.2006. B. AN ORDER BE AND IS HEREBY MADE DIRECTING THE 2ND DEFENDANT TO RECTIFY THE REGISTER OF THE PROPERTY KNOWN ELDORET MUNICIPALITY BLOCK 8/527 BY CANCELLING AND/OR DELETING ENTRY NO. 5 MADE ON THE 14.05.2008 RE-ISSUING THE CERTIFICATE OF LEASE RELATING TO THE SUIT PROPERTY HEREIN. C. AN ORDER BE AND IS HEREBY ISSUED DECLARING THAT THE 1ST DEFENDANT’S REGISTRATION AS THE LAWFUL OWNER OF THE PROPERTY KNOWN AS ELDORET MUNICIPALITY BLOCK 8/527 IS IRREGULAR, UNLAWFUL, ILLEGAL NULL & VOID. D. THE 2ND DEFENDANT HEREIN IS HEREBY DIRECTED TO RECTIFY THE REGISTER OF THE PROPERTY KNOWN AS ELDORET MUNICIPALITY BLOCK 8/527 BY DELETING ENTRIES NO. 6 & 7 REGISTERING THE 1ST DEFENDANT AS THE LAWFUL OWNER OF THE ELC. 2 OF 2021 JUDGEMENT 31

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SUIT PROPERTY AND SUBSEQUENTLY ISSUING A CERTIFICATE OF LEASE THEREOF BOTH MADE ON THE 06.08.2013. E. A PERMANENT INJUNCTION IS HEREBY ISSUED RESTRAINING THE DEFENDANTS, WHETHER BY THEMSELVES, THEIR SERVANTS, AGENTS OR ANY PERSON CLAIMING THROUGH THEM, FROM ENTERING UPON, SELLING, TRANSFERRING, CHARGING, ALIENATING OR IN ANY MANNER WHATSOEVER INTERFERING WITH THE PLAINTIFF'S QUIET POSSESSION AND OWNERSHIP OF LAND PARCEL NUMBER ELDORET MUNICIPALITY/BLOCK 8/527. F. THE PLAINTIFF SHALL HAVE THE COSTS OF THIS SUIT PAYABLE BY THE 1ST DEFENDANT HEREIN ONLY. DATED, SIGNED and DELIVERED in ELDORET this 22ND DAY OF SEPTEMBER,2026. EMMANUEL.M. WASHE JUDGE IN THE PRESENCE OF: Court Assistant: Mr. Brian Counsel for the Plaintiff: Mr. Chumba holding brief for Mr. Kitiwa Counsel for the 1st Defendant: Mr. Nyamweya Counsel for the 2nd & 3rd Defendants: ELC. 2 OF 2021 Mr. Kwame JUDGEMENT 32

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