Joyce Wariara Kiarie v Daniel Njoroge Kihiko, The Registrar of Titles Mombasa & Attorney General

property had been registered in the name of the 1st Defendant. 4. According to the Plaintiff, the land was fraudulently transferred to the 1st Defendant. That the 1st Defendant has wrongfully remained on the suit property stopping her from The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 2/ 9

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utilizing the same. 5. The Plaintiffs claim against the Defendants is for; a) A declaration that parcel of land Title No. CR. 11673 subdivision 1270/1/MN Mombasa belongs to the Plaintiff; b) A declaration that the 1st Defendant has trespassed on the Plaintiff’s parcel of land Title No. CR. 11673 subdivision number 1270/1/MN; c) A declaration that the transfer dated 8th July, 2013 and registered on 30th May, 2022 in favour of the 1st Defendant [is] fraudulent; d) Permanent injunction to restrain the 1st Defendant whether by himself or his servants, employees, principle, or agents or any other person acting howsoever, from remaining on or continuing in occupation and construction [on] Title No. CR. 11673 situated in Section 1 Mainland North Mombasa; e) An eviction order against the 1st Defendant to vacate the premises of the land Title No. CR. 11673, subdivision number 1270/1/MN; f) An order directing the Officer In Charge of Station in Mombasa to enforce the eviction orders; g) An Order compelling the 1st Defendant to demolish and remove all structure and debris from the Suit property at his own cost; h) In the alternative of (g) above, the Plaintiff be at liberty to demolish and remove all structure and debris form the Suit Property and recover costs from the 1st Defendant; i) General damages for trespass and fraudulent transfer of the property; j) Exemplary damages for the fraudulent transfer of the property Title No. CR. 11673 and subdivision number 1270/1/MN; k) Costs of this suit; l) Interest at court rate. 6. The 1st Defendant filed a defense dated 29th April 2024 wherein he admits that he was aware of E.L.C No. 58 of 2008. He however states that he is not privy to the facts that prompted the filing of the case by the plaintiff. He admits to have participated in E.L.C No. 58 of 2008 but his participation was limited to establishing that at the time of the suit he was in custody of the title. That the judgment thereto was for removal of a caveat. He contends that the transfer of the suit property to himself was effected in 2022, which transfer was not fraudulent since the Plaintiff transferred the same vide a transfer dated 8th July 2013 duly executed by the Plaintiff. According to the 1st Defendant the search conducted on 9th January 2024 reflects the correct position of his of the registered owner of the suit property. He sanctioned the ongoing construction as the registered owner and that he is not a trespasser. The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 3/ 9

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7. The 2nd and 3rd Defendants denied the allegations by the Plaintiff and aver that allegations of fraud by the Plaintiff have to be proved. They further state that the 2nd defendant operates on the basis of documentation presented by the general public. The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 4/ 9

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8. At the hearing; the Plaintiff (PW-1) Joyce Kiarie adopted her witness statement dated 3rd September 2024 as evidence in chief and produced her list of documents dated 29th November 2024 as P Exhibit 1-9. 9. On cross examination by Mr. Mutugi, she testified that she is the registered owner of the suit property, however the current registered owner is Daniel Njoroge Kihiko. She maintained that she did not transfer the land to him although she signed the sale agreement, she did not sign the transfer documents. She however acknowledged that that according to the documents on record, she is the one who transferred that land to Daniel Kihiko. 10. She stated that the transfer was attended to by Mr. Wameyo and was prepared by Musinga & Co. Advocates and was registered on 30th March 2022. She further stated that she did intend to sell the land to Daniel Kihiko and that the title deed was not with him. That the sale did not go through because the case of 2008 was still pending. She admitted to have received Four Million Shillings from the first defendant and that the suit No. 58 of 2008 was for removal of a caveat. She admitted that she earlier intended to transfer the land to Thraaya having received Nine hundred and fifty thousand Shillings, she however refunded the money. 11. On further cross examination by Mr. Penda, she acknowledged to have signed a sale agreement where Mr. Kihiko was a purchaser, the firm of Musinga & Company Advocates prepared the sale agreement, that he has called the 1st Defendant to refund his money but he has remained adamant. 12. On Re Examination she admitted that she owed four Million shillings to the 1st Defendant. She reiterated that she did not sign any transfer document. That her instructions to Mr. Musinga was to prepare a case on her behalf not preparation of transfer. 13. The 1st Defendant Daniel Njoroge Kihiko adopted his statement dated 8/10/2024 As evidence in chief and documents dated 10/12/2024 were produced as D Exhibit 1-9. 14. On Cross Examination by Ms. Nabwana he stated that he is the registered owner of the suit property and has developments thereon. He stated that he had initially lent money to the Plaintiff which was secured by the Title to the suit property. He testified that at the time of signing the sale agreement the Plaintiff had received Thirty Five Million Shillings from him but he had no proof that he had advanced the entire amount to The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 5/ 9

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her. He further stated that ELC No. 58 of 2008 in which he was a witness concerned the Plaintiff’s brother selling the land to Varghese having forged a power of Attorney. He stated that he did not sign the sale agreement as it was not a conventional sale. 15. On Cross Examination by Mr. Penda, he stated that his testimony in ELC No. 58 of 2008 was limited to his possession of the title to the suit property. He stated that he held the title as security. That the transfer is dated 8th July 2013 and it was not complete until 30th May 2022 and the transfer was not affected by the case of 2008. 16. DW-2 Onyango Wameyo testified on cross examination by Ms. Nabwana that he The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 6/ 9

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attended to the transfer under instructions of the Plaintiff who went to his office with Mr. Kihiko. The transfer is dated 8th July 2013. That his understanding is that the Plaintiff received Thirty-Five Million Shillings and that the Plaintiff admitted to have received the money. That no spousal consent was prepared neither was a sale agreement. 17. The 2nd and 3rd Defendants DW-1 Sheite Soit testified on cross examination by Mr. Mutugi he stated that that the Plaintiff documents have missing entries in the register. That the 1st Defendants title matches the one in the Lands Register and that the right owner is Daniel Kihiko. 18. On Cross Examination by Mr. Nabwana he stated that he has been in Mombasa for six years and he cannot know anything beyond entry No. 16 in the Register. That the 1st Defendant is the registered owner. Plaintiffs Submissions 19. The Plaintiff submits that her claim to the suit property has been established. Her claim to the suit property. She relies on Section 24(a) of the Land Registration Act, 2012, which provides that registration confers upon the proprietor absolute ownership of the land together with all rights and privileges belonging or appurtenant thereto. Further Section 26(1) of the Act, which provides that a certificate of title is prima facie evidence of ownership and may only be challenged on the grounds of fraud or misrepresentation to which the proprietor is proved to be a party, or where the title has been acquired illegally, unprocedurally or through a corrupt scheme. He submits that it is not in dispute that the Plaintiff --was previously the registered proprietor of the suit property, as demonstrated by an official search dated 2nd March 2022, however the land is presently registered in the name of the 1st Defendant pursuant to a transfer deed dated 8th July 2013 and registered on 30th May 2022. 20. The Plaintiff submits any claim or occupation of the suit property by the 1st defendant that is inconsistent with her registered ownership had to be founded on lawful entitlement otherwise it would amount to trespass. Reliance was further placed on Church Commissioners for Kenya of the Anglican Church of Kenya v Wayuga (Civil Appeal No. 111 of 2018) [2024] KECA 1048 (KLR), where the Court considered the meaning of trespass under the Trespass Act. 21. The Plaintiff further submits that Article 40(1) and (6) of the Constitution provides for protection of property that has been acquitted lawfully and where it is acquired unlawfully it should not enjoy such The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 7/ 9

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protection. She relies on the case of Chemey Investment Limited v Attorney General & 2 Others [2018] eKLR, where the Court held that the courts have consistently declined to recognise or protect titles obtained illegally or fraudulently merely because the holder is entered in the register as proprietor. The Plaintiff further relies on Funzi Development Ltd & Others v County Council of Kwale [2014] eKLR, where the Supreme Court held that a registered proprietor acquires an absolute and indefeasible title only where the allocation of the property was legal, proper and regular, and that the Court The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 8/ 9

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cannot sanction an illegality or give its approval to an illegally or irregularly obtained title. 22. The Plaintiff submits that she remained the lawful proprietor of the suit property at all material times, noting that an official search conducted on 2nd March 2022 confirmed that the property was still registered in her name. She stated that she had neither sold nor transferred the property to the 1st Defendant and became aware towards the end of 2023 that construction was being undertaken on the property without her knowledge, authority or consent. A subsequent official search conducted on 9th January 2024 allegedly revealed that the property had been transferred and registered in the name of the 1st Defendant. 23. The Plaintiff’s position was that the transfer was fraudulent and unlawful, having been effected without her consent, participation or receipt of consideration. 24. The Plaintiff further submits that no sale agreement existed with the 1st defendant. She only acknowledged receiving Kshs.4,000,000/= from the 1st Defendant as a loan and that she had deposited the original title deed with the 1st Defendant’s advocates as security for that loan. The Plaintiff further submitted that the 1st Defendant himself acknowledged that the transaction was not a conventional sale. According to the Plaintiff the alleged consideration of Kshs.35,000,000/= was not supported by documentary evidence. 25. The Plaintiff further submits that the transfer itself was surrounded by serious irregularities and urged the Court to find that the registration of the suit property in favor of the 1st Defendant did not result from a lawful transaction freely entered into by the parties. 26. The Plaintiff further submits that whereas a certificate of title constitutes prima facie evidence of ownership, it is liable to impeachment where it is proved to have been obtained through fraud, misrepresentation, illegality, an unprocedural process or a corrupt scheme. Counsel contended that the evidence before the Court demonstrated circumstances falling within those exceptions. 27. As regards rectification of the register, the Plaintiff relies on Section 80(1) of the Land Registration Act, which empowers the Court to order rectification of the register by directing a cancellation or amendment where it is satisfied that the registration was obtained, made or omitted by fraud or mistake. She relies on Arthi Highway Developers Limited v West End Butchery Limited & Others [2015] eKLR, where the Court held that a registered interest could not be divested through fraud The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 9/ 9

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and that a title obtained through fraudulent dealings was liable to cancellation. 28. The Plaintiff further submitted that the 2nd Defendant is obligated to maintain the integrity of the land register and that any alteration, registration or interference with the Plaintiff’s title outside the law amounted to an illegal administrative act and a violation of her proprietary rights and courts have consistently intervened where the land registration process has been abused. 29. The Plaintiff submits that the 3rd Defendant is sued as a Governments Representative in respect of the actions of State officers, including the Land Registrar. That where such actions result in the unlawful deprivation of property, the State becomes answerable. The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 10 /9

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1st Defendant’s Submissions 30. The 1st Defendant Submits that the Plaintiffs case is hinged on allegations of fraud and trespass. He contends that the allegations of fraud have not been proved the allegations of fraud to the required standard. 31. The 1st Defendant relies on Order 2 Rule 10 of the Civil Procedure Rules, and submits that fraud must not only be specifically pleaded but that its particulars must also be set out and strictly proved. He relies on the case of Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] KECA 223 (KLR) for the proposition that fraudulent conduct must be distinctly alleged and proved and cannot merely be inferred from the facts. 32. The 1st Defendant submits that the particulars pleaded by the Plaintiff had not been specifically attributed to any of the defendants and have not been supported by any cogent evidence has been established to demonstrate that he personally engaged in any fraudulent conduct. He relies on the case of Fanikiwa Limited & 3 Others v Sirikwa Squatters Group & 17 Others. 33. Further, the 1st Defendant submits that there was no demonstration from the Plaintiff that the signature appearing on the transfer forms were not hers and cites the case of Josephine Mwikali Kikenye v Omar Abdalla Kombo & Others [2018] KECA 512 (KLR) for the general principle that a person is ordinarily bound by his or her signature on a document, whether he reads it or not. 34. On the claim of trespass, the 1st Defendant relies on Section 3(1) of the Trespass Act and submits that trespass is founded upon unlawful entry or occupation of land without the consent of the person entitled to possession He relies on the case of Okoth v Odie [2022] KEELC 2961 (KLR) and submits that the proper claimant in an action for trespass is a party holding title, possession or an immediate right to possession of the land. It was contended that the Plaintiff had not demonstrated that she was in actual possession of the suit property or that she had an immediate and exclusive right to possession at the material time. 35. With respect to the reliefs sought, the 1st Defendant submits that transfer dated 8th July 2013 was a duly registered instrument bearing the signatures, photographs and PIN numbers of both parties and attested before an advocate, the Plaintiff further acknowledged receipt of Kshs.35,000,000/= from the 1st Defendant. Further it was the Plaintiff’s own testimony in the earlier proceedings, which she confirmed The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 11 /9

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during cross-examination Defendant’s possession. that the original title was in the 1st 36. As regards absence of a formal agreement for sale, the 1st defendant maintained that the transaction was not a conventional sale and that the duly executed transfer sufficed to pass the interest needed and relies on the case of Demutila Nanyama Pururmu v Salim Mohamed Salim [2021] KECA 595 (KLR) for the proposition that the absence of a separate sale agreement does not, by itself, establish that no sale or transfer occurred where there is a signed transfer by parties. 37. In conclusion, the 1st Defendant submitted that the Plaintiff had failed to establish fraud The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 12 /9

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and trespass to the required standard and was consequently not entitled to the reliefs sought. Counsel urged the Court to dismiss the suit with costs. 2nd and 3rd Defendants’ Submissions 38. The 2nd and 3rd Defendants submit that the Plaintiff and Plaintiff and the 1st Defendant entered into an arrangement for payment of monies for assistance in personal issues. The Plaintiff was also pursuing removal of a caution over the property in Mombasa ELC Miscellaneous Cause No. 58 of 2008. Following the lifting of the caution, the transfer documents were eventually presented to the Land Registry in 2022, whereupon the property was transferred to the 1st Defendant. 39. The 2nd and 3rd defendants further submit that Mr. Wameyo, the advocate involved in the transaction, testified in favor of the 1st Defendant and authenticated his actions and that of the Land Registrar’s the subsequent registration. 40. As regards burden of proof the 2nd and 3rd relied on Sections 107, 108 and 109 of the Evidence Act, submitting that the evidential burden lies on the party that alleges. They relied on the Supreme Court decision in Gwer & 5 Others v Kenya Medical Research Institute & 3 Others [2020] KESC 66 (KLR), particularly paragraph 51, for the proposition that a party alleging unconstitutional or unlawful conduct bears the initial evidential burden of placing sufficient material before the Court to establish the allegation before any evidential burden can shift to the opposing party. 41. According to the Defendants the allegation by the Plaintiff her signature was forged was unsubstantiated in the absence of forensic examination or other cogent evidence demonstrating variance in the signature appearing on the transfer document. 42. The Defendants further submitted that the Plaintiff’s own testimony in Mombasa ELC Miscellaneous Cause No. 58 of 2008 demonstrated an intention to sell the property to the 1st Defendant. They argued that this evidence, together with the Plaintiff’s admission that she had surrendered the title to the 1st Defendant and the documentary evidence relating to the transfer, supported the validity of the transaction presented to the Land Registry. 43. They contended that the particulars of fraud pleaded against the 1st Defendant had also not been proved and that the weight of the evidence favoured the 1st Defendant. They urged the Court to dismiss the suit with costs. The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 13 /9

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Analysis and Determination 44. I have considered the pleadings, evidence on record and submissions and I am of the view that the issue for determination is whether the transfer of the suit property to the 1st Defendant was fraudulent. 45. It is the Plaintiff’s case that she was the registered owner of the suit property No. C.R 11673 sub division 1270/1/MN. It is her case that the 1st Defendant fraudulently and irregularly caused the suit property to be registered in his name. 46. The 1st Defendant on the other hand claims that his occupation and possession of the suit property is by virtue of legal transfer from the Plaintiff and therefore he retains an The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 14 /9

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indefeasible title to the suit property. 47. The 2nd and 3rd Defendants case was that the suit property was not transferred to the 1st Defendant fraudulently. 48. Section 107, 108 and 109 of the Evidence Act, provides as follows; “107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either said. 109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall be on any particular person.” 49. In the Present case the Plaintiff contends that she did not transfer the suit property to the 1st Defendant and that the transfer is fraudulent. These allegations must be tested against the evidence by the Plaintiff regarding execution and subsequent registration of the transfer. It is not in dispute that the Plaintiff was previously registered as the owner of the suit property and the land was subsequently registered in the name of the 1st Defendant vide a transfer dated 8th July 2013 50. Section 26(1) of the Land Registration Act provides that:“…the certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— a.on the ground of fraud or misrepresentation to which the person is proved to be a party b.Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 51. The Plaintiff maintains that she did not execute the transfer, although she acknowledges that she intended to sell the suit property to the 1st Defendant and acknowledges that she signed the sale agreement and receipt of Kshs. 4000,000/= from the 1st Defendant. DW-2, Mr. Wameyo testified that he attended to the transfer upon instructions by the Plaintiff who came to his office in company of the 1st Defendant. The evidence of the Land Registrar on the other hand established that the 1st The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 15 /9

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Defendants title corresponds with the Lands Register and that he is the Registered proprietor. 52. The courts have repeatedly held that allegations of fraud must be strictly proved. In the case of Koinange & 13 others v Charles Karuga Koinange [1986] KEHC 3 (KLR) Justice Amin citing the case of Ratilal Patel Makanji (1957) EA 314 observed as follows-“When fraud is alleged by the plaintiffs, the onus is on the plaintiffs to discharge the burden of proof. The Judiciary of Kenya Doc IDENTITY: 2898129305921131552725724161 Tracking Number:OOKGJU2026 16 /9

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Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a balance of probabilities is required” 53. In the case of Ndolo v Ndolo [1996] KECA 209 (KLR)the court stated that: “…we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in Criminal Cases…” 54. Furthermore, in the case of Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] KECA 223 (KLR) Tunoi JA (as he then was) stated as follows: - “…It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 55. The Plaintiff alleged that the 1st Defendant acquired the suit property fraudulently, however, she did not adduce sufficient evidence to prove the same. It is this court’s view that in cases where fraud is alleged, it is not enough to simply infer fraud from the facts, the Plaintiff must strictly prove the alleged particulars of fraud as stated in the plaint. In addition, the burden of proof lies with the Plaintiff to prove that the 1st Defendant fraudulently acquired the suit property which she failed to do so. 56. The plaintiff having failed to prove fraud, the consequential claim of trespass equally fails. 57. The upshot of the foregoing is that the Plaintiff has failed to prove her case to the required standard and the suit is accordingly dismissed. 58. Costs to the defendants. SIGNED BY/FOR: ★ TH E JUDICIAR Y O F KENY A ★ The Judiciary of Kenya HON. JUSTICE ANTONY O. OMBWAYO Mombasa Environment and Doc IDENTITY: Land Court Environment and Land 2898129305921131552725724161 Court Date: 2026-09Tracking Number:OOKGJU2026 24 12:50:49 17 /9

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