Tarus v Kishan Construction Ltd & 2 others

transfer of parcel 84 into its name and had since wrongfully entered the said property and commenced construction thereon without her consent. 3. The Plainti further pleaded that she was the legitimate owner of Mombasa /Hodi Hodi Settlement Scheme /85 (Parcel 85) by virtue of having brought it from original allottee Zawadi Kifaru Masha in 2015 through James Hekana Okweh. She pleaded that upon obtaining a discharge of charge form the Settlement Fund Trustees (STF) to which the property was charged, she had the same transferred into her name. It was her case that the 2nd defendant had through fraud or negligence purported to acquire the said property and has since wrongfully entered the said property and commenced construction thereon. 4. The 1st and 2nd defendants led a joint statement of defence and counterclaim dated 26.02.2019 and amended on 06.10.2023. By their defence they denied the Plainti’s claim in its entirety and put her to strict proof thereof. They denied that the Plainti was the owner of parcels 84 and 85 (the suit properties). It was pleaded that the persons who sold the two properties to the Plainti had no valid title to pass to her. 5. The 1st and 2nd defendants pleaded that they were the current registered owners of the two suit properties. They pleaded that they lawfully bought the suit properties from one, Joseph Karisa Ponda who held a power of attorney to undertake the transactions. They pleaded that upon transfer they were duly registered as proprietors and issued with their respective title deeds on 06.11.2013. 6. By their counterclaim, the 1st and 2nd defendants reiterated the contents of their defence and pleaded that they were the absolute owners of the suit properties by virtue of issuance of title deeds to them on 06.11.2013. It was their defence that the subsequent transfer of the suit properties to the Plainti was illegal and irregular. They accused the land registrar of negligence in accepting to register competing proprietary documents in favour of the Plainti whereas the 1st and 2nd Defendants were already registered as proprietors. 7. The 1st and 2nd defendants pleaded that the land registrar had acted illegally, irregularly and unprocedurally in purporting to cancel their prior registration as proprietors and registering the Plainti as the owner of the suit properties. As a result, they sought the following reliefs in their counterclaim: a. A declaration that the 1st and 2nd defendants are registered as the absolute and indefeasible owners of Hodi Hodi Settlement Scheme/84 & 85. b. A declaration that the Titles issued to the plainti in respect of Hodi Hodi Settlement Scheme/84 & 85 were issued irregularly, unprocedurally, fraudulently, unlawfully and illegally and are therefore invalid, null and void. c. An order directed to the Registrar of Lands Mombasa to revoke, cancel, destroy, void and or nullify the certicates of Titles and the Green card in respect of Hodi Hodi Settlement Scheme/84 & 85 issued in favour of the Plainti and publish the said revocation, cancellation, destruction and or nullication in the Kenya gazette. d. A permanent injunction to issue restraining the Plainti, her agents, servants, relatives and or any person under instruction from the Defendants from further interfering and or in any way dealing with Hodi Hodi Settlement Scheme /84 & 85. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5671/eng@2026-09-17 2

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e. Costs of this suit and interest thereon and any other orders. 8. The 3rd defendant belatedly led a defence dated 27.05.2025 making a general denial of the plainti’s allegations in the plaint. He denied knowledge of all the allegations made in the plaint and put the plainti to strict proof thereof. It was pleaded that the suit was incompetent, bad in law and an abuse of the Court process and the court was urged to dismiss it with costs. 9. The plainti led a reply to defence and defence to counterclaim dated 18.01.2024. By her reply, the plainti joined issue with the 1st and 2nd Defendants on their defence and reiterated the contents of her plaint. By her defence to counterclaim, she denied all the material allegations contained in the counterclaim and put the 1st and 2nd defendants to strict proof thereof. She denied that her title to the suit properties were acquired illegally or irregularly. 10. The material on record shows that the 2nd defendant died in 2022 during the pendency of the suit. No action was taken by any of the parties to substitute him with his personal representative under the provisions of Order 24 of the Civil Procedure Rules. As a consequence, on 29.07.2025 the court made an order declaring that the claim against him had abated by operation of the law. The court also made an order that his counterclaim had similarly abated by operation of the law. 11. At the trial hereof, the plainti testied on her own behalf as the sole witness. She adopted the contents of her witness and produced the documents in her trial bundle as exhibits. The 1st defendant called one of its directors PREMJI K. K. PATEL as its sole witness. He similarly adopted the contents of his witness statement and produced the defence documents in the 1st defendants trial bundle as exhibits. The record shows that the 3rd defendant did not tender any evidence at the trial. 12. The court has considered the pleadings, evidence and documents on record in this matter. This is a situation where there are two competing claims to parcel 84 by the Plainti on one hand and the 1st defendant on the other hand. The court is of the view that the following are the main issues for determination herein: a. Who is the legitimate owner of parcel 84. b. Whether the plainti has proved her claim against the 1st and 3rd defendants. c. Whether the 1st defendant has proved her counterclaim against the plainti. d. Whether the plainti is entitled to the reliefs sought in the suit. e. Whether the 1st defendant is entitled to the reliefs sought in the counterclaim. f. Who shall bear costs of the action. 13. The material on record shows that the plainti’s case was that she acquired parcel 84 from James Hekana Okweh who had in turn bought it from Dhahabu Kifaru Masha. On its part, the 1st defendant’s case was that it acquired the same parcel from Joseph Karisa who held a power of attorney from the real owner called Kadigo Kifaru Masha. The 1st defendant stated it obtained a title deed for parcel 84 on 06.11.2013. 14. The court has examined the documents on record. The records show that by a letter dated 31.01.2005 parcel 84 was allocated to one Dhahabu Kifaru Masha and that he accepted the oer on 12.03.2014. The green card for parcel 84 shows that a charge was registered in favour of SFT on 27.07.2007 and that upon discharge of charge Dhahabu was registered as proprietor on 12.09.2014 and a title deed issued to him. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5671/eng@2026-09-17 3

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15. There is no credible record or other evidence on record to demonstrate that Kadigo Kifaru Masha was ever allocated parcel 84 and that he was ever registered a proprietor thereof at any given time. There was no evidence of any discharge of charge or certicate of outright purchase having been issued to the said Masha by the SFT. 16. Whereas the 1st defendant claimed to have been issued with a title deed for parcel 84 on 06.11.2013 the material on record shows that SFT had not discharged the plot or issued a discharge of charge to the allottee. In fact, the record shows that the allottee was rst registered as proprietor on 12.09.2014 hence it could have been practically and logically impossible for the 1st defendant to obtain a legitimate title deed for parcel 84 in 2013. 17. The court is satised on the basis of the evidence on record that the plainti has demonstrated that the root of her title is the legitimate one. The court is satised that the plainti is the legitimate owner of parcel 84 and not the 1st defendant who purported to obtain a title deed in 2013 long before SFT had discharged the property. 18. Having found for the plainti on the 1st issue it would follow that the plainti has proved her claim for parcel 84 against the 1st defendant. The Plainti was able to demonstrate a clear chain of ownership tracing to the original allottee of parcel 84. The court is further satised that the 1st defendant’s title must have been obtained either illegally or fraudulently since it does not trace its root to the original allottee. 19. In view of the court’s ndings on the 1st and 2nd issues, it would follow that the 1st defendant has failed to prove its counterclaim against the plainti as pleaded or at all. There was no credible evidence to demonstrate any fraud, illegality or irregularity in the plainti’s acquisition of parcel 84. It would thus follow that the 1st defendant is not entitled to the reliefs sought in the counterclaim, or any of them. 20. The Court is of the view that as the successful party the plainti is entitled to the reliefs sought in the suit, or at least some of them as against the 1st defendant. The court is not inclined to grant a restraining injunction or what the plainti calls a “prohibitory order” to restrain the 1st defendant from entering or trespassing upon parcel 84. According to the plainti’s own pleading and evidence the 1st defendant entered parcel 84 a long time ago and commenced construction thereon. A restraining order would not be eective in dealing with past violations. The court is thus of the view that granting such an order would not serve any useful purpose. The court is, however, inclined to grant an order of eviction against the 1st defendant with regard to parcel 84. 21. The court has noted that the plainti did not plead any adverse allegations against the 3rd defendant. There was no allegation of fraud, illegality or irregularity on his part and no reliefs were specically sought against the land registrar. The court agrees with the Attorney General’s submission that no reasonable cause of action was pleaded or proved against the 3rd defendant. As such, the suit against the 3rd defendant is for dismissal. 22. Although costs of an action or proceeding are at the discretion of the court the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap 21). As such, the plainti herein being the successful party shall be awarded costs of the suit as against the 1st defendant only. 23. The upshot of the foregoing is that the court nds that the plainti has proved her claim against the 1st defendant only. The suit against the 2nd defendant has abated. The court also nds that the 1st defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5671/eng@2026-09-17 4

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has failed to prove its counterclaim against the Plainti over parcel 84. As a consequence, the court makes the following orders for disposal of the suit and counterclaim: a. Judgment is hereby entered for the plainti against the 1st defendant in the following terms: i. The 1st defendant shall vacate the property known as Mombasa/ Hodi Hodi Settlement Scheme/84 within 60 days from the date hereof in default of which it shall be forcibly evicted. ii. The plainti is hereby awarded costs of the suit against the 1st defendant only. b. 1st defendant’s counterclaim is hereby dismissed in its entirety with no order as to costs. c. The plainti’s suit against the 2nd defendant (now deceased) is declared to have abated by operation of law. d. The 2nd defendant’s counterclaim is hereby declared to have abated by operation of law. e. The plainti’s claim against the 3rd defendant is hereby dismissed with no order as to costs. It is so decided. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 17TH DAY OF SEPTEMBER 2026 Y. M. ANGIMA JUDGE In the presence of: No appearance for the Plainti Mr Birir for the 1st Defendant No appearance for the 2nd Defendant (deceased) Mr Kemei for the 3rd Defendant Court Assistant: Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5671/eng@2026-09-17 5

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