Mohamed Sheikh Abdulrahim Al-Maddy v Mohamed Ali, Abdalla Ali, Faiz Ali Taib, Nabhan Swaleh Salim & The Land Registrar Mombasa

XI/129 and all the resultant plots subdivided out of it being Mombasa Block XI/1038 both plots inclusive together with all that property being Mombasa /Block XI/1118 being consolidation of a six property plots derived being Title from the Numbers Mombasa / Block XI/1026, 1027, 1028, 1031, 1032 and 1037 derived from the subdivision of Mombasa Block XI/129. b) A declaration of the plaintiff as the rightful surviving trustee of Masjid Hudaa & Madrasstul Hudaa (Spaki) and adoption of his appointed trustees, Sheikh Hammad M. Kassim and Juma Ibrahim as co-trustees. c) This honourable court be pleased to issue an order directing the 1st, 2nd, 3rd and 4th defendants either by themselves, their agents, servants and/or personal representatives and /or whomsoever acting under their instructions as the custodians of all the original Titles to the suit properties, to surrender all the original document of Title over the suit properties to the plaintiff. d) This Honourable court be pleased to issue an order directing the 5th defendant to cancel and remove the names of the 1st and 2nd defendants from the registers of the suit properties and to correct the registers of the suit property to reflect the plaintiff and his rightfully appointed co-trustees. e) The 5th defendant be ordered to suspend and/or cancel all dealings registered against the Titles of the suit properties and further the 5th Defendant be estopped from registering any further dealings over MOMBASA ELC CASE NO. E104 OF 2022 (JUDGMENT) Page 2

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the suit properties in favour of the 1st, 2nd, 3rd and 4th defendants. f) An order be issued cancelling any Title Deeds over the suit properties issued to 1st and 2nd defendants and the register to the suit properties rectified accordingly. g) This Honourable Court be pleased to direct the 1 st – 4th defendants to cease and desist from entering, disposing, selling, offering for sale, sub-dividing , consolidating, charging transferring, constructing on and/or undertaking any works interfering with the suit properties. 2. The plaintiff pleaded that at all material times he was the founding trustee of Masjid Hudaa and Madrasstul Hudaa (Spaki) Trust (The trust) and was the registered owner of title No. Mombasa Block XI/129 (Parcel 129) and the resultant subdivisions and subsequent amalgamations. He pleaded that he purchased parcel 129 together with his son for a sum of Kshs.400,000 whereby he constructed a mosque thereon. 3. The Plaintiff pleaded that he later on started a trust consisting of 3 trustees him included for the purpose of managing the affairs of the mosque and he thereupon caused parcel 129 to be transferred to the 3 trustees. It was the Plaintiff’s case that upon the demise of two of his co-trustees he appointed 2 trustees on 05.02.2019 namely, Hammad M. Kassim and Juma Ibrahim to the Trust. MOMBASA ELC CASE NO. E104 OF 2022 (JUDGMENT) Page 3

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4. The plaintiff pleaded that he came to learn later on that the 1 st and 2nd defendants and some other imposters had been irregularly appointed as trustees of the Trust. It was further his case that sometime in 1988 the alleged imposters purported to remove him from office as a trustee and appointed the 3 rd and 4th defendants as additional trustees. The plaintiff thus accused the 1st – 4th defendants of fraudulently removing him from office and of imposing themselves on the Trust. The plaintiff further pleaded that the 5th defendant acted negligently in facilitating his removal from office. 5. The plaintiff further pleaded that the 1 st - 4th defendants had acted fraudulently by causing sub-division of parcel 129 and in presenting fraudulent documents for the irregular subdivisions. He accused them of having sold off some of the subdivisions and of fraudulently obtaining credit facilities on the security of those sub-divisions. The Plaintiff also accused the 5 th Defendant of acting negligently by allowing the subdivision of parcel 129 and the subsequent dealings with the resultant subdivisions. 6. The 1st – 4th defendants filed a joint statement of defence denying the plaintiff’s claim in its entirety and putting him to strict proof thereof. They denied that the plaintiff was the owner or registered proprietor of parcel 129. They denied that the mosque was built by the plaintiff and pleaded that the same MOMBASA ELC CASE NO. E104 OF 2022 (JUDGMENT) Page 4

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was built by one Sheikh Ali Taib (deceased) by pooling resources from various well-wishers. 7. The 1st – 4th defendants pleaded that the letter of offer for parcel 129 was addressed to the mosque and that the plaintiff was merely a representative of the mosque and not the buyer or absolute owner of parcel 129. It was pleaded that the initial transfer of parcel 129 was made to Sheikh Ali Taib and the Plaintiff as trustees of the Mosque and not in their personal capacities. 8. The 1st – 4th defendants pleaded that the plaintiff was at all material times made aware of all dealings with parcel 129 and all steps taken toward its sub-division. They denied any fraud in their dealings with parcel 129 and its sub-divisions and pleaded that the plaintiff had in fact signed all the relevant documents to facilitate the impugned process. 9. The 1st – 4th defendants denied any fraud or irregularity in the appointment of additional trustees in 1988 and put the plaintiff to strict proof thereof. They also pleaded that the Plaintiff duly signed a deed of appointment dated 29.12.2006 by which additional trustees were appointed. It was their pleading that the Plaintiff was lawfully removed as trustee pursuant to the Trust Deed dated 01.05.1988 MOMBASA ELC CASE NO. E104 OF 2022 (JUDGMENT) and that the action was Page 5

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undertaken by a majority of the trustees. As a result, they prayed for dismissal of the plaintiff’s suit with costs. 10. The 5th defendant filed a defence dated 14.10.2022 through the office of the Attorney General making a general denial of the plaintiff’s claim. The Attorney General denied all the material allegations made by the plaintiff and denied being privy to the dealings between the plaintiff and the rest of the defendants. He denied any negligence as pleaded by the plaintiff and put him to strict proof thereof. As a result, he prayed for dismissal of the plaintiff’s suit with costs. 11. The material on record shows that the Plaintiff testified at the trial as the sole witness. He adopted the contents of his witness statement as his evidence in chief and produced the documents in support of his claim as exhibits. The 2nd defendant testified on behalf of the behalf of the 1st to 4th defendants whereas the land registrar testified on behalf of the 5th defendant. 12. Upon conclusion of the trial the parties were given timelines within which the file and exchange their respective submissions. The record shows that Plaintiff filed submissions dated 16.03.2026 whereas those of the 1 st – 4th Defendants were dated 21.04.2026. The 5th Defendant also filed submissions dated 06.05.2026. MOMBASA ELC CASE NO. E104 OF 2022 (JUDGMENT) Page 6

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13. The court has perused the pleadings, evidence and documents on record in this matter. The court is of the view that the following are the main issues which arise for determination herein: a) Whether the plaintiff was the owner or registered proprietor of parcel 129. b) Whether the 1-4 defendants had illegally and fraudulently sub-divided parcel 129 and sold and transferred some of the resultant subdivisions. c) Whether the plaintiff was irregularly or fraudulently removed as a trustee. d) Whether the 5th defendant acted negligently in the execution of his duties. e) Whether the plaintiff is entitled to the reliefs sought in the suit. f) Who shall bear the costs of the suit. 14. The court has considered the material and submissions on the 1st issue. The plaintiff pleaded in his plaint that he was the owner of the original parcel 129 together with the resultant subdivisions and subsequent amalgamations. The court is unable to find any credible evidence on record to support the plaintiff’s claim. The material on record shows that even the letter dated 05.02.1983 from K. A. Kasmai protesting the construction of the mosque was addressed to Masjid Hudaa MOMBASA ELC CASE NO. E104 OF 2022 (JUDGMENT) Page 7

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Spaki and not the plaintiff. The subsequent memorandum of sale dated 18.12.1984 indicates that the plaintiff and one Salim Mohammed were listed as purchasers on behalf of Masjid Hudaa and Madrasstul Hudaa Spaki. It is also evident from the Transfer instrument dated 09.05.1986 that parcel 129 was transferred to 3 named trustees (the plaintiff being one of them) in trust for Hudaa Masjid and Madrasstul Hudaa. There is no time at which the Plaintiff held or was to hold parcel 129 as his own property. During cross examination, the plaintiff conceded that all negotiations for the acquisition of the property were done on behalf of the mosque and that the purchase was done on its behalf. 15. The court’s finding on the 1st issue would have a bearing on the disposal of the 2nd issue. If the plaintiff was not the owner of parcel 129, then he could not legitimately complain of alleged fraudulent subdivision, sale or transfer of the resultant subdivisions. It was the Plaintiff’s case that sub-division and transfer of various plots was irregular and fraudulent and done without his knowledge or authority. 16. The evidence on record, however, shows that the Plaintiff actually executed all the necessary documents and instruments to facilitate the sub-divisions and transfer of some of the resultant plots. There is documentary evidence on record from MOMBASA ELC CASE NO. E104 OF 2022 (JUDGMENT) Page 8

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an experienced forensic document examiner to show that the Plaintiff actually signed the disputed documents including various sale agreements and transfer instruments. The only document which the examiner did not find to have the Plaintiff’s signature was a letter dated 8.12.1988 seeking an exemption from payment of rates for parcel 129. 17. When the Plaintiff was questioned by the court on whether he signed the disputed documents he conceded that he did but claimed that he did so without reading or understanding its contents. It was also his contention that he thought he was merely signing documents relating to the business of the mosque. The court does not find the Plaintiff’s excuse credible or reasonable. It is a serious matter to accuse a man of fraud and later on claim that you were mistaken because you did not read or understand the contents of some important documents you signed. In the result, the court finds no evidence of fraud on the part of the 1 st – 4th defendants in their dealings with parcel 129 or the resultant sub-divisions. 18. The court has considered the material and evidence on record on the 3rd issue. The material on record shows that the plaintiff was removed from office by the majority of the trustees pursuant to the Trust Deed dated 01.05.1988. The Plaintiff disowned or disputed the validity of the said deed. He disputed MOMBASA ELC CASE NO. E104 OF 2022 (JUDGMENT) Page 9

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signing or being party thereto. However, the report of the forensic document examiner confirmed that it was duly signed by the Plaintiff himself. The fact that he may not have bothered to peruse it before signing it would not necessarily render it invalid. The court finds and holds that the Plaintiff has failed to discharge the burden of proving that he was irregularly or fraudulently removed from office as a trustee. 19. The 4th issue is whether the 5th defendant acted negligently in the execution of his duties in relation to the matters in dispute before the court. The court has already found that the Plaintiff was not the owner of parcel 129 and its resultant sub-divisions. The court has also found that there was no evidence of fraud on the part of the 1st – 4th Defendants in their dealings with the said property and it sub-divisions. There was also no evidence of fraud or irregularity in the removal of the Plaintiff as a trustee of the mosque. In the circumstances, there can be no finding of negligence on the part of the 5 th defendant for simply executing his statutory duties with respect to transactions which have not been impeached by the court. 20. In view of the court’s findings on all the preceding issues it is clear that the Plaintiff has failed to prove his claim against any of the Defendants in the suit. MOMBASA ELC CASE NO. E104 OF 2022 (JUDGMENT) It would thus follow that the Page 10

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Plaintiff is not entitled to the reliefs sought in the suit, or any one of them. 21. 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). The court finds no good reason why the successful litigants should not be awarded costs of the suit. As a consequence, the 1st – 5th defendants shall be awarded costs of the suit. 22. The upshot of the foregoing is that the court finds and holds that the plaintiff has failed to prove his pleaded case against the defendants or any one of them. Consequently, the plaintiff’s suit is hereby dismissed with costs to the 1st – 5th defendants. It is so decided. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 24TH DAY OF SEPTEMBER 2026 Y. M. ANGIMA JUDGE In the presence of: No appearance for the Plaintiff Mr. Noor for the 1st to 4th Defendant No appearance for the 5th Defendant MOMBASA ELC CASE NO. E104 OF 2022 (JUDGMENT) Page 11

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Court Assistant: Hinga MOMBASA ELC CASE NO. E104 OF 2022 (JUDGMENT) Page 12

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