Abdulla Mangi Mohamed v Lazarus Beja & 5 others

cannot be used as a constitutional foundation for the 1st, 2nd, 3rd and 4th respondents or any of them to acquire rights to own property as envisaged under Article 40 of the Constitution. d. An order for judicial review under Article 23(3f) by way of certiorari, quash a title deed over Plot Title No. 696 (Original 539 Section III MN) together with the le held by the 5th Respondent as Cr. No. 40149. e. An order of judicial review under Article 23(3f) in the nature of mandamus compelling the 4th and 5th respondents to close and destroy le No. CR. No. 40149 forthwith. f. Costs of the petition. 2. The petitioner pleaded that he was given Plot No. 696 (Original No. 539 Section III MN) by his late grandmother one Kobana Binti Salim Hamisi Kombo (Kobana). It was pleaded that in spite of the foregoing the 1st defendant purported to have Plot 696 (the suit property) registered in his name on 10.10.2006 on the basis of fraudulent and forged documents. In particular, it was pleaded that the transfer and deed plan used by the 1st Defendant were forgeries. 3. The petitioner pleaded that the 1st respondent transferred the suit property to the 2nd respondent on 19.01.2006 who later on 12.02.2008 transferred it to the 3rd respondent. The latter ultimately transferred it to the 4th respondent on 02.07.2009. It was further pleaded that the registrar of titles was complicit in the alleged fraudulent transfers by the rest of the respondents. 4. The petitioner also pleaded that the registrar of titles had a parallel le which facilitated the issuance of two dierent titles for the suit property. It was contended that the petitioner’s title was issued under le No. 49623 whereas that the 4th respondent’s title was processed under le No. 40149. 5. The record shows that all the respondents led their respective defences denying liability for the petitioner’s claim. They denied all the allegations and particulars of the alleged fraud and illegality pleaded by the petitioner. The 1st respondent pleaded that he was the registered owner of the suit property and that he subsequently sold it to the 2nd respondent. 6. The 2nd respondent pleaded that he was a purchaser of the suit property for valuable consideration from the 1st respondent upon ascertaining that the latter was the registered owner. The 3rd respondent pleaded that he was a purchaser for value from the 2nd respondent and that he was not involved in form of fraud or illegality in acquisition of the property. 7. The 4th respondent pleaded that she was a purchaser for value of the suit property from the 3rd respondent upon conducting due diligence. She denied any form of fraud or illegality in her acquisition of the suit property. The 4th respondent pleaded that it was the petitioner who had used fraudulent documents to obtain registration. It was alleged that the deed plan used by the petitioner was fraudulently and illegally obtained. The 4th respondent further contended that she was an innocent purchaser without notice of any defect in title hence her title was protected in law. 8. The Attorney General led a defence on behalf of the 5th and 6th respondents in which the petitioner’s claim was denied in its entirety and the petitioner put to strict thereof. It was denied that the 1st respondent’s registration was illegal or fraudulent. All the allegations of alleged fraud and illegality were denied. 9. At the trial hereof, the petitioner testied on his own behalf as the sole witness. He adopted the contents of his witness statements as his evidence in chief and produced the documents in his trial bundle as exhibits. The gist of his evidence was that he was the rightful owner of the suit property and that it was fraudulently acquired by the 1st respondent using forged documents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5782/eng@2026-09-24 2

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10. The 1st respondent did not participate in the hearing. He did not le any trial bundle and did not testify at the trial. The court was informed that the 2nd respondent died during the pendency of the suit and there is no indication on record to show that his legal representative was joined in the suit. 11. The 3rd respondent testied on his own behalf as the sole witness whereas the 4th respondent called 3 witness in defence of the action. On his part the Attorney General called a principal land registrar to testify on behalf of the 5th and 6th respondents. All the respondents who testied at the trial essentially maintained the positions taken in their respective pleadings. 12. The court has perused the pleadings, evidence and documents in this matter. The court is of the view that the following are the main issues for determination herein: a. Whether the petitioner has proved his claim against the respondents. b. Whether the 4th respondent was an innocent purchaser for value without notice of any defect in the title. c. Whether the petitioner is entitled to the reliefs sought in the suit. d. Who shall bear costs of the suit. 13. The court has considered the material and submissions on record on the 1st issue. The petitioner submitted that the suit property was an inheritance he obtained from Kobana. He took issue with the fact that the 1st respondent’s transfer which was dated 1978 was registered many years after it was purportedly signed. The evidence on record also shows his own transfer was dated 2002 ad that it was registered in 2010, about 8 years down the line. 14. The court has considered the material and submissions on record on the rst issue. The petitioner's case was that the 1st respondent had has obtained registration of the suit property through fraudulent means. In particular, it was contended that the 1st respondent had used a forged transfer document and a forged deed plan to obtain registration. The petitioner pleaded several particulars of fraud and illegality against the 1st respondent. 15. It has been held that alleging fraud against the adverse party is a serious matter. The party making the allegation must not only plead the particulars of fraud but he must also strictly prove those allegations. In the case of Vijay Morjaria vs Nansing M. Darbar and Another [2000] eKLR Tunoi JA (as he then was) held as follows regarding proof of fraud: “ It is well established that fraud must be specically pleaded and that particulars of fraud alleged must be stated on the face of the pleadings. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that those acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts ………”. 16. The standard of proof of allegations of fraud was considered in the case of Evans Otieno Nyakwara vs Cleophas Bwana Ongaro [2015] eKLR as follows: “ In this case, it is the respondent who led the defence and counterclaim and alleged that the document relied upon by the plainti was a forgery. It was therefore incumbent upon him to prove this fact by marshalling the necessary evidence to support his case. The burden of proof to prove fraud lay upon the Respondent. As regards the standard of proof, I would do no better than to quote Central Bank of Kenya Ltd and 4 others Nai Civil Appeal No. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5782/eng@2026-09-24 3

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215 of 1996 (UR) where the Court of Appeal in considering the standard of proof required where fraud is alleged, stated that: ‘The appellant made vague and very general allegations of fraud against the Respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the Appellant in this case than in an ordinary civil case.” 17. The petitioner in this matter contended that the 1st respondent had forged the transfer document because he was the one who was gifted the suit property by Kobane during her lifetime. Apart from the petitioner’s word on the alleged gift, there was no single relative or other witness to verify the claim. There was no forensic evidence to demonstrate that the signature or thumbprint of the deceased on the transfer form was not hers. 18. The petitioner’s claim that the deceased had in fact refused to sign a transfer form in favour of the 1st respondent was not supported by any credible evidence. The petitioner testied at the trial that he was college student in 2002 when the suit property was gifted to him by the deceased who was his grandmother. He must have been much younger in 1978 when the 1st respondent's transfer was purportedly signed in 1978. There was no evidence on record to demonstrate that the petitioner was in charge of his grandmother’s property aairs back then. 19. It is also strange that even though the petitioner claimed to have been gifted the suit property by the deceased, both the transfer form and the consent letter indicated that he acquired the suit property duetyof Kshs.50,000. During cross-examination by the 3rd respondent's advocate he stated that he inherited the property from the deceased which introduced another concept on how he acquired the property. 20. The mere fact that the 1st respondent’s transfer was registered in 2006 after the demise of Kobane does not necessarily demonstrate the existence of fraud. Even the petitioner’s transfer which was dated 2002 was registered in 2010 long after Kobane’s death in 2005. The court is thus not satised that the petitioner has satised the standard of proof for the allegations of fraud he pleaded against the 1st respondent regarding the alleged forgery of the transfer form of 1978. The mere fact that the 1st respondent did not testify at the trial does not relieve the petitioner of his duty to prove the alleged forgery of the transfer form. Similarly, the fact that one of the deed les was missing at the land’s oce is not necessarily evidence of fraud on the part of the 1st respondent. Sometimes a le can go missing in the land’s oce without the fault of the disputing parties. 21. The other aspect which the petitioner relied upon was the alleged forgery of the deed plan the 1st respondent used in obtaining registration. There is no doubt from the material on record that there are 2 dierent deed plans for the suit property. The one which the 1st respondent used to obtain registration in 2006 was No. 111540 whereas the one the petitioner used to obtain registration in 2010 was No. 111879. 22. The petitioner’s case was that the deceased had somehow lost or misplaced the original deed plan for the suit property. It was his evidence that in the year 2000 she wrote a letter to the registrar of titles to that eect. There was no deed plan number cited in that letter. There was also no deed plan number cited in her adavit in support of her application for a certied copy of the deed plan. 23. During cross examination by the 3rd respondent's advocate, the petitioner stated as follows: “ ...About 2010 I discovered there was a new title. There was construction going on there. I did not do a search before I was registered. I applied for a deed plan. It was not 1989. That https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5782/eng@2026-09-24 4

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is the one which got lost. There is no name of surveyor. I never got certied copies of the deed plan. I applied for a new one ….” 24. Regulation 108 of the Survey Regulations 1994 stipulates as follows: 1. Deed plans shall be prepared in duplicate. 2. One copy shall be authenticated by bearing thereon the signature of the Director or of a person authorized by him, together with the date of signature. The other copy shall bear the printed name of the person who signed the authenticated copy, together with the date of signature and the imprint of the ocial seal. 3. The signed copy of every deed plan shall be deposited with the Director, and shall be the ocial copy, and the evidence contained in his ocial copy, read with the authenticated survey plan upon which it has been based, shall prevail in every case. 4. The Director may at his discretion prepare and issue a duplicate copy of a deed plan that has been mislaid or lost. Such copy shall bear the signature of the Director or of a person authorized by him, together with the date of signature and the imprint of the ocial seal and the words "Certied True Copy". 25. It is evident from the material on record that petitioner’s deed plan obtained in 2010 or thereabouts did not comply with the said regulations. In his own admission, the petitioner did not obtain a certied true copy of the deed plan which was allegedly lost but he applied for a totally new deed plan which resulted in the double registration of the suit property. In his own admission, the petitioner was aware of the construction going on on the suit property prior to his registration. He deliberately decided to go ahead with the second registration. 26. The court nds absolutely no credible evidence on record to demonstrate that the 1st respondent’s deed plan was forged. There was no credible evidence to show that it was the same one which was lost or stolen. On the contrary, the evidence on record shows that it was the petition who irregularly obtained a second deed plan for the suit property several years after the initial registration in 2006. If the petitioner genuinely believed that the 1st respondent had used a forged or stolen deed plan to obtain registration, he ought to have instituted legal proceeding to nullify his title before obtaining a certied true copy of the lost or stolen deed plan to facilitate his own registration. The petitioner's action of obtaining a new deed plan and double registration was not the legitimate or appropriate remedial action available to the petitioner. 27. The upshot of the above is that the court is not satised that the petitioner has proved the required standard that the 1st respondent used a forged or stolen deed plan to obtain registration of the suit property. On the contrary, it is the petitioner’s deed plan which was obtained in questionable circumstances. 28. The court has considered the evidence and submissions on record on the 2nd issue. In the case of Katende vs Harinder & Co Ltd [2008] 2 EA 173 a bonade purchaser for value was said to be one having the following attributes: a. One holding a certicate of title. b. One who purchased the property in good faith. c. One who had no knowledge of the fraud. d. One who purchased for valuable consideration. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5782/eng@2026-09-24 5

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e. One who purchased from a vendor with apparent valid title. f. One who was not party to the fraud.” 29. The material on record shows that the 4th respondent bought the suit property in 2009 from the 3rd respondent who had bought it from the 2nd respondent. The 2nd respondent had himself bought the suit property in 2006 from the 1st respondent. The record shows that the 4th respondent engaged an advocate who did due diligence before the sale transaction was undertaken. The 4th respondent’s advocate who testied as DW3 even went further to investigate the authenticity of the two deed plans when he became aware of the existence of the second deed plan. The court is satised on the basis of the material on record that the 4th respondent was a bonade purchaser for value of the suit property without notice of any defect in title. 30. Even if the court had found that the 1st respondent’s title was tainted by fraud, the 4th respondent’s title would still be protected under the doctrine of an innocent purchaser for value without notice of defect in title. There is adequate evidence on record to demonstrate that the 4th respondent is the current holder of the certicate of title. There is credible evidence to show that she bought the suit property for valuable consideration from the 3rd respondent in 2009. At the material time the 3rd respondent was the registered owner. There was no evidence tendered at the trial to show that she was party to the alleged fraud or that she had knowledge of the alleged fraud. The material on record shows that the 4th respondent conducted due to diligence through her advocates prior to purchasing the same from the 3rd respondent. 31. The court does not agree with the petitioner’s submissions that the ratio decidendi of the case of Dina Management Ltd vs County Government of Mombasa (2023) KESC 30(KLR) applies to the alleged fraudulent acquisition of private property. The authority should be conned to its proper context as applying to fraudulent acquisition or alienation of public property. The current dispute involves the alleged fraudulent transfer of private property. 32. In view of the court’s nding that the petitioner has failed to prove his claim against the respondent and in view of the court’s nding that the 4th respondent was an innocent purchaser for value without notice of any defect in title it would follow that the petitioner is not entitled to the reliefs sought in the amended plaint or in any of them. 33. 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. The court nds no good reason why the successful parties should not be awarded costs of the suit. Accordingly, the 3rd and 4th respondents shall be awarded costs of the suit. The land registrar shall not be awarded any costs since he failed to keep and maintain proper records of registration of the suit property since one of the deed les was missing. 34. The upshot of the foregoing is that the court nds and holds that the petitioner has failed to prove his claim against the respondents to the required standard. Moreover, the court has found that the 4th respondent was a bonade innocent purchaser for value without notice of any defect in title. Consequently, the petitioner’s suit is hereby dismissed with costs to the 3rd and 4th Defendants only. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 24TH DAY OF SEPTEMBER 2026 Y. M. ANGIMA JUDGE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5782/eng@2026-09-24 6

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Ms. Umara for the Plainti No appearance for the 1st Defendant No appearance for the 2nd Defendant (deceased) Mr. M. N. Waweru for the 3rd Defendant Ms. Grace Okumu for the 4th Defendant No appearance for the 5th and 6th Defendant Court Assistant: Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5782/eng@2026-09-24 7

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