Chickoo Investments Limited v National Land Commission & 4 Others

RAJENDRA RATILAL SANGHANI ………………. 2ND INTER. PARTY MANISH RAMNIKAL SHAH …………....…… 3RD INTERESTED PARTY J U D G M E NT 1. This Petition was first lodged in Court on 15 th July, 2019 and later amended in 2021. The Petitioner further amended the petition on 13 th December, 2023 which is hereafter referred to as “the Petition.” 2. The Petitioner describes the suit property L.R. No 209/11288 as prime piece of land measuring approx. 5.9 acres in an area where the prices of land has skyrocketed to Kshs.200,000,000 per acre. That the Petitioner recently recovered vacant possession of the suit property. It proceeded to describe the capacities of parties sued in paragraphs 5-12 of the Petition. 3. The Petitioner pleads that, vide a Letter of Allotment dated 10 th August, 1989, it became the beneficial owner of the suit property, which at the time of allocation was then referred to as “unsurveyed industrial Plot No. B” but has since been allocated Land Reference No. 209/11288. That upon receipt of the aforementioned Letter of Allotment, the Petitioner complied with all the conditions therein, including payment of stand premium, land rent, land rates, and all other attendant costs pursuant to the grant. 4. It is her case that upon the death of Hezekiah Nelson Oyugi one of the Petitioner’s initial directors, his offices were broken into, and several NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 2 of 36

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documents were carted away by unknown persons. The Petitioner believes that the original ownership documents relating to the suit property may have been among those misappropriated. Incidental to the passing of Hezekiah Nelson Oyugi on or about 18 th May, 1993, the title to Land Reference No. 209/11288 was purportedly issued to the 5 th Respondent, pursuant to an informal instrument of transfer dated 14 th April, 1993, executed for and on behalf of the Petitioner by persons unknown to the Petitioner. 5. The Petitioner states that following the death of Hezekiah Oyugi, Mr Job Okuna Oyugi and Douglas Odhiambo Oyugi were on May 1993 appointed as directors. That Mr Douglas Odhiambo Oyugi, whose name appears on the transfer instrument dated 14th April, 1993, has denied ever executing such a document, and the witnessing Advocate, Mr S. O. Owino, has no recollection of Mr Oyugi ever appearing before him and executing such a document. 6. The Petitioner pleaded that it has attempted to engage the 1 st and 2nd Respondents as the custodians of records but your Petitioner's efforts have proved futile. While the 1st Respondent remains non-committal regarding compensation for lawful acquisition, the 2nd Respondent asserts that the deed file for the suit property cannot be traced and has been missing for several years. NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 3 of 36

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7. The Petitioner strongly believes that the instigators and driving force behind the fraudulent “land grab” of the Petitioner's property are the 2 nd and 3rd Interested Parties who by themselves or through other parties control the 4th Respondent. The 5th Respondent is similarly implicated in the unlawful dealings. The aforementioned proposed compulsory acquisition of the Petitioner's property and the projected compensation from a sale of the same to the Government of Kenya has given impetus and greater urgency for the named parties to conclude the said fraudulent “land grab.” 8. The Petitioner pleaded the particulars of fraud thus; a) The Petitioner never executed the transfer instrument transferring the property to the 5th Respondent. b) Completion documents, namely, land rent and land rates clearance certificates, and consent to transfer from the Commissioner of Lands were not obtained prior to the suit property changing hands. 9. c) No consideration passed to the Petitioner. d) There is no evidence of payment of stamp duty. The purported transfer and registration of the suit property in favour of the Interested Parties was done fraudulently and in contravention of the Petitioner's constitutional right to protection of property and security of NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 4 of 36

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land rights as enshrined under Article(s) 40 & 60 of the Constitution of Kenya, 2010. 10. Consequently, the Petitioner prays to be granted the following reliefs: a) A declaration that the transfer and registration of the suit property known as Land Reference No. 209/11288 and in favour of the 2nd, 4th Interested Party 5th Respondent was effected in violation of Articles 19, 20, 21, 23, 27, 35, 40, 47, & 50 of the Constitution of Kenya and was irregular, illegal, unlawful and void. b) A declaration that the transfer and registration of the suit property known as Land Reference No. 209/11288 and in favour of the 4th Respondent 1st Interested Party by the 2nd, 4th Interested Party 5th Respondent was effected in violation of Articles 19, 20, 21, 23, 27, 35, 40, 47, & 50 of the Constitution of Kenya and was irregular, illegal, unlawful and void. c) An order compelling the 2nd Respondent to cancel and revoke the title to Land No. 209/11288 and restore the status quo as at 10th August, 1989 and Reference No. 209/11288 and restore the status quo as at 10” August, 1969 and subsequently process a title deed in favour of the Petitioner and at the 2nd Respondent's cost. NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 5 of 36

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d) Permanent injunction to restrain the 4 th & 5th Respondents and ALL the Interested Parties whether by themselves, their agents and their servants from interfering with the ownership, use, and possession of the suit property by the Petitioner or encroaching and trespassing on the suit property. e) An order directed at the 1st Respondent forbidding it from paying out any sums of monies to any party other than the Petitioner over the proposed compulsory acquisition of the suit property. f) Mesne profits be awarded to the Petitioner at comparable market rates as calculated from 18th May, 1993 to date. g) General damages for breach of the Petitioner's rights of ownership under Article 40 of the Constitution. h) General damages for contravention of the Petitioner's right to fair administrative action as envisaged under article 47 of the Constitution. i) Exemplary damages for the 2nd Respondent's arbitrary action of interfering with the Petitioner's registration over the suit property in express contravention of the law and without notice to the Petitioner. NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 6 of 36

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11. The 1st and 5th Respondents did not enter appearance in this case nor file any responses to the petition. The 2nd and 3rd Respondents entered appearance and opposed the Petition vide replying affidavit sworn by Omolo Patroba on 13th March, 2025. He affirmed that the letter of Allotment Ref. No. 125008/3 dated 10th August, 1989 for Unsurveyed Industrial Plot No. B, Nairobi, was issued in favour of the Petitioner, who complied with the terms of the allotment. 12. THAT from their records, vide a letter dated 4 th February, 1993 from Munde investments Limited to the Commissioner of Lands, Douglas Odhiambo Oyugi signing as Director of Munde Investments Limited indicated that the suit property was allocated to their firm Chickoo Investments Limited and that since the demise of their father the late Mr. Hezekiah Nelson Oyugi they had of necessity decided to administer all the properties under one company i.e. Munde Investments Limited. Further, he requested that the grant in respect of the suit property be issued in the name of Munde Investments Limited to facilitate ease of administration. 13. He deposed that their records contain a “form of transfer” on 14.4.1993 executed by Petitioner in favour of the 5th Respondent for a consideration of Kshs.3,100,000. The Commissioner of Lands consented to the transaction on 29th April, 1993. He added that by a certificate of stamp NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 7 of 36

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duty serial No. 19345 dated 17th May, 1993, Munde Investments Ltd paid a sum of Kshs.38,860 for stamping of Grant L.R. No 209/11288. 14. Subsequently, vide a letter dated 6th August, 1993, Douglas Odhiambo Oyugi, on behalf of Munde Investments Limited, wrote to the Commissioner of Lands seeking consent to transfer the suit property, L.R. No. 209/11288 as they intended to use the proceeds to develop another property in their home town of Kisumu. 14. The 2nd and 3rd Respondents continued to aver that the parcel of land known as L.R. No. 209/11288 was a presidential grant to Munde Investment Ltd, registered as L.R. No. 59164 on 18th May, 1993. Later, the 5th Respondent transferred the suit property to Real Industrial Park Ltd on 18th August, 1993, through Presentation Book No. 965, for a consideration of Kshs.4,000,000. 15. In addition, the 2nd and 3rd Respondents gave evidence on the process followed in issuing the two provisional titles over the suit property, including publication in the Gazette Notices Nos. 4090 of 23rd July, 1999, and 10345 of 31st December, 200. Copies of the Gazette Notices were produced as OP1. Later, Real Industrial Park changed its name to Kingsway Industrial Park, and a certificate of change of name was duly registered on 26th September, 2014. Hence, Kingsway Industrial Park Limited remains the validly registered owner of the suit property, as evidenced by Correspondence File No. 125008. NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 8 of 36

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16. The 4th Respondent and the 3rd Interested Party, through the Replying Affidavit sworn by Sanjay Ramniklal Shah, oppose the Petition, maintaining that the 4th Respondent is the bona fide purchaser for value and the duly registered proprietor of L.R. No. 209/11288. Sanjay Shah states that the property was acquired from 5th Respondent after conducting due diligence, including an inspection of the property and a search carried out at the Lands Registry. Thereafter the purchase price of Kshs.4,000,000, was paid. It asserts that its title was absolute and indefeasible under the applicable land registration law. 17. The 4th Respondent further explains that the original grant for the suit property was lost around 1999. It therefore applied for a replacement, after which Gazette Notice No. 4090, dated 23rd July 1999, was published inviting objections to the issuance of a provisional certificate. No objection was received, and a provisional certificate was issued on 26th October 1999. The title was again reported lost in 2004, prompting a further application for replacement and the publication of Gazette Notice No. 10345, dated 31 December 2004. In the absence of any objection or competing claim, another provisional certificate was issued on 13th September 2008. 18. The 4th Respondent relies on these processes as demonstrating that its registered interest was openly maintained and was not challenged by the Petitioner at the material time. The deponent also explains that Real NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 9 of 36

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Industrial Park Limited, incorporated in 1998, subsequently changed its name to Kingsway Industrial Park Limited pursuant to a special resolution passed in February 2010, with the change being formally registered in June 2010. 19. The 4th Respondent states that the name change was recorded at the Lands Registry, although the process was delayed because the relevant land files could not initially be traced. The 4th Respondent contends that the Petitioner's interest in the suit property arose only after Gazette Notice No. 5073 of 25th May 2018, which proposed the property for compulsory acquisition. The 4th Respondent therefore characterises the Petition as an attempt to assert a claim to the property after more than three decades. It argues that the Petitioner is indolent, has abused the Court process, and is attempting to circumvent the statutory limitation period. 20. The 4th Respondent further denies the Petitioner's assertion that it is the beneficial owner of the suit property and maintains that it has continuously exercised ownership over the land, including paying land rates and land rent. It argues that, having acquired the property from the registered proprietor for value and without notice of any adverse claim, it is protected as a bona fide purchaser. It also invokes the Torrens principle of registration, contending that its title should be treated as conclusive evidence of ownership. NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 10 of 36

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21. Finally, the 4th Respondent challenges the Petition's constitutional foundation. It contends that any grievances the Petitioner may have could be pursued through an ordinary civil action, and that the doctrine of constitutional avoidance militates against invoking the Court's constitutional jurisdiction where alternative statutory remedies exist. It consequently maintains that the Petition discloses no sustainable claim against its title and urges the Court to dismiss it. 22. After the close of the pleadings, the parties called witnesses in support of and in defence of the claim. The Petitioner opened her case by calling Job Okuna Oyugi as PW1. He adopted his written statement dated 15.10.2024 and produced the uncontested documents listed. PW1 stated that he was familiar with the copy of the letter of allotment (MFP-1). He explained that the original letter was stolen when his late father’s office was broken into. He averred that the suit property was fraudulently transferred to 3rd Parties, and that they only became aware of the illegal dealings after receiving information from persons who saw the gazette issued by the 1 st Respondent in 2018 to compulsorily acquire the land. 23. In his written statement, PW1 reiterated the facts as pleaded in the petition inter alia, that the Petitioner acquired the unsurveyed Industrial plot B by making an application to the government of Kenya. The application was responded to on 10.8.1989. On receipt of the allotment letter, they paid all the statutory charges levied. He states that upon the NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 11 of 36

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demise of his father, him and his brother Douglas Odhiambo were appointed administrators of his estate. Further, that the 2nd Interested Party was along time estate agent for and on behalf of his father and he may have had a hand in the disappearance of the land documents relating to the suit property. 24. PW1 produced a copy of the grant signed by the Commissioner of Lands on 14.5.1993 in favour of the 5 th Respondent. He stated that on 18th August, 1993, a transfer was registered to Real Industrial Park and during this period, the Petitioner had no directors in office. The witness asserted that he has not seen a sale agreement between the 4 th and 5th Respondents and he is not aware if any money was paid to the Petitioner. 25. It is his contention that in light of the questionable transfer of the letter of allotment, it means the grant issued to the 5 th Respondent on 14.5.1993 was a forgery. It follows that the 4 th Respondent cannot claim to be a bona fide purchaser for value without notice. He blames all the Respondents and the Interested Parties for being hell-bent on dispossessing the Petitioner of its lawful ownership of the suit property. 26. Under cross-examination by Mr Allan Kamau, Principal State Counsel appearing for the 2nd and 3rd Respondents, PW1 stated that he became a director of the Petitioner on 15.5.1993. He further stated that his father owned several properties and that he handled several files. He admitted that he became aware in 2015 that the suit property belonged to the NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 12 of 36

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Petitioner, after which he began tracing its documents. The witness affirmed that he had not produced any documents confirming that the 2nd Interested Party was a manager of their father’s properties. 27. He avers that his father’s office was broken into around December 1993January 1994, but he has not produced an OB report from the police, alleging that no OB was written because of hostility from the government of the day. He continued in evidence, stating that he was a director of Munde Trust but not of Munde Investments Ltd. 28. On the transfer form dated 14.4.1993, the witness said it was signed by Douglas Odhiambo Oyugi and Wakamani. He affirmed that he did not see any title issued to the Petitioner. PW1 stated that they objected to the compulsory acquisition. He said the property is fenced and that people using it as a car park said they were from the 4th Respondent. PW1 said the Petitioner sued the A.G for issuing a title oF the suit property to 5 th Respondent. 29. On cross-examination by the 4th Respondent, PW1 stated that he filed for letters of administration in late 1992, although he could not recall the case number. He stated that he usually buys properties through an advocate who conducts searches on his behalf. He admitted that the form of transfer from the Petitioner to the 5th Respondent was duly stamped. He further stated that in the letter dated 4.2.1993, Douglas requested the Commissioner of Lands to issue a title to the 5th Respondent. NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 13 of 36

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Subsequently, the same Douglas Odhiambo sought consent to transfer to the 4th Respondent. 30. Pw1 admitted he did not have the acceptance letter by the Petitioner on receipt of the letter of allotment. That he did nothing concerning the property between 2015-2019. He states further that he did not see the need to join Douglas Odhiambo to this suit. 31. In re-examination, PW1 states that there was a receipt of Kshs.630,000 payment made by the Petitioner for the stand premiums. He said he learnt in 2018 that the property had been misappropriated through a gazette notice dated 25.5.2018 which gave the names of the current owners. He confirmed his father had shares in the Petitioner through Munde Trusts. That Munde Trusts and Munde Investments Ltd are distinct companies. 32. Mr Steven Omondi Owino, an advocate of the High Court of Kenya, testified for the Petitioner as PW2. He tendered evidence in the form of an affidavit sworn on 5th February, 2019. It is his evidence that the signature appearing on the “form of transfer” at page 18 of the Petitioner’s bundle is not his. He did not know the persons who signed that document. 33. On cross-exam by counsel for the 2nd and 3rd Respondents, PW2 stated that the form of transfer is signed by two people on behalf of the Petitioner. He said he was admitted to the bar sometimes in 1990. That it was upon LSK to confirm who is S. O Owino whose name appears on the NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 14 of 36

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form of transfer. That he came across the form of transfer in 2019 after it was taken to him by PW1. He affirmed that he was an advocate of the estate of Hezekia Oyugi in the 1990s. He had not lodged a complaint that his signature was forged. He also agreed that the affidavit (dated 5.2.2019) does not state who drew it but he probably is the one who drew it. 34. Zacharia M. Ndege, the Principal Land Administration Officer, testified as PW3. He testified in respect to the letter dated 13 th February, 2019 which he wrote and which he produced in evidence. PW3 states that plots numbered A-C were allocated to various companies who were then given letters of allotment as shown in File NO. 1027-49/31/XVI. He affirmed that due process was followed during the allocation. The suit parcel became of interest after the 1st Respondent placed an advertisement to compulsorily acquire it on behalf of the Kenya Ports Authority. 35. In cross-examination by Mr Ouma, learned counsel for the 4th Respondent, PW3 said that during the investigations he reviewed the parcel file and the correspondence file. He said that internal investigations were conducted after the Petitioner lodged a complaint. He confirmed that there were no copies of title in the correspondence file, but he saw a copy of the grant issued to Munde Investments Ltd. He also saw a letter from Douglas Odhiambo requesting the transfer of the plot to Munde Investments. The witness was taken to task on his findings and NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 15 of 36

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stated, inter alia, that he does not know whether a shareholder can also sign documents on behalf of a company. 36. Under further cross-exam, PW3 admitted he had not produced any files before the Court which he used to generate his report/letter. He asserted the Petitioner accepted the offer of allotment and proceeded to pay the stand premiums. He affirmed that he did not write to the Registrar of Companies to obtain the Petitioner's shareholding. 37. Additionally, PW3 said the 5th Respondent was the registered owner of the suit property as of 14.5.1993, although he did not come across any details of Munde, nor did he seek the said details from the Registrar of Companies. PW3 added that he did not come across the transfer instruments from Munde Ltd to the 4th Respondent. However, he recommended the acquisition to KPA to proceed. 39. In re-exam, the witness said that informal transfers were being used in the transfer of unregistered parcels. That the informal transfer dated 4.2.1993 was in the letter head of Munde I. Ltd who was not the allottee. He also pointed out that the receipt issued for payment of stamp duty was undated. This marked the close of the Petitioner’s case. 40. The 2nd and 3rd Respondents called Ojwang Omollo Patroba, the Deputy Director of Land Administration as their sole witness. He adopted the contents of his replying affidavit sworn on 13.3.2025 as his evidence, which affidavit was summarised at paragraphs 11-15 hereinabove. NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 16 of 36

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41. During cross-exam by Mr Owino, learned counsel for the Petitioner, DW1 stated that he had annexed a copy of the full correspondence file number 125008 relating to the suit property. The Land Registrar must have been satisfied of the loss of title when he published the gazette notice dated 23.7.1999. He however clarified that he is a Land Administration Officer not the Land Registrar. 42. He was referred to their documents produced, inter alia, application for consent to transfer dated 6.8.1993 by Munde Investments Ltd, and he answered that he could not tell if a consent was issued. He affirmed that the transfer to the 4th Respondent was registered on 18.8.1993. He denied any discrepancy between the documents at pages 23 and 44 of their trial bundle. He was unaware if the special conditions in the allotment letter were met before the transfer to the 4th Respondent. He was referred to receipt dated 10.2.1993 paying for rent, stand premium and stamp duty (page 35 of A.Gs bundle). He also stated that the correspondence file does not contain details of stamp duty payments. 43. In further cross-examination, DW1 said that it was Douglas Odhiambo who accepted the letter of offer on 1.2.1993. The letter of no objection was dated 10.2.1993, and DW1 says that a letter of no objection is usually issued before registration of the informal transfer. He explained that the Commissioner of Lands had given consent to transfer; hence, there was nothing untoward on the instruction document found at page 27. NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 17 of 36

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44. In re-examination, DW1 said CR File NO. 125008 was complete and there were no missing documents. He explained that the stamp duty receipt was dated earlier because the document had to pass through audit process. He confirmed that the cheque for stamp duty was paid. This was the close of their case. 45. The 4th Respondent’s witness, Sanjay Ramniklal Shah, states that he is a director nominated by Growth Management Limited and is conversant with the matters in dispute. He avers that the 4th Respondent, formerly known as Real Industrial Park Limited, is a bona fide purchaser for value of L.R. No. 209/11288, having acquired the property from Munde Investments Limited, the registered proprietor at the time of the transaction. Before the purchase, the 4th Respondent undertook due diligence, including a visit to the property and a search at the Lands Registry, which confirmed the 5th Respondent as the registered proprietor. The property was subsequently purchased for Kshs. 4,000,000, and the 4th Respondent was duly registered as proprietor. 46. The witness reiterated the contents of his reply affidavit regarding the process undertaken to replace the loss of the original title. The 4 th Respondent thereafter sought to effect the change of name at the Lands Registry in respect of L.R. Nos. 209/11287, 209/11288 and 209/11289. The change in respect of L.R. No. 209/11288 was eventually effected in NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 18 of 36

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2014 after the relevant land file became available, while the files relating to the other two properties remained missing. 47. According to the witness, the Petitioner only expressed an interest in the suit parcel following the publication of Gazette Notice No. 5073 of 25 th May 2018 seeking its compulsory acquisition. That the Petitioner's present claim was therefore motivated by the prospect of compensation rather than ownership. He further states that, since acquiring the property, the 4th Respondent has continuously paid land rates to Nairobi City County and land rent to the Ministry of Lands. He consequently denies the Petitioner's alleged ownership and maintains that the 4th Respondent's title is valid and indefeasible. He urges the Court to dismiss the Petition with costs. 48. During to cross-examination by Mr Owino, learned counsel for the Petitioner, the witness stated that the purchased the property in good faith and paid for the consideration of Kshs 4,000,000. He admitted that he had not produced a copy of the application made for replacing the lost title. He asserted that before buying, they did an official but it was not produced because it was one of the documents lost in the year 1999. 49. He avers that the 5th Respondent made a verbal offer to sell, although he could not remember the name of the person from the 5th Respondent with whom they were dealing, as it was his brother who handled the transaction. He insisted that he has not produced the transaction NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 19 of 36

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documents, inter alia, the sale agreement and the transfer form, because they were in a file lost in 1999. 50. In further cross-examination by the 2 nd and 3rd Respondents, the witness stated that the 4th Respondent changed its name in the year 2010 and a certificate of incorporation has been produced to confirm. He affirmed that the grant was issued to the 5th Respondent and that the original grant to the suit property is not amongst the documents presented in court. That the copies of the gazette notices produced corroborate their evidence of reporting loss of the title. He added that the 5 th Respondent had not complained against them for not paying consideration. SUBMISSIONS: 51. The Petitioner filed written submissions dated 19th December, 2025; the 1st Respondent’s submissions are dated 26th May, 2026; the 2nd and 3rd Respondents did not file any submissions while the 4 th Respondent’s submissions are dated 24th June, 2026. 52. The Petitioner identifies three principal issues: whether the process leading to the grant in favour of Munde Investments was lawful; whether the grant and subsequent title in the name of Kingsway Industrial Park constituted unquestionable proof of ownership; and whether the Petitioner was entitled to the reliefs sought. Its central argument is that a title is only NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 20 of 36

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the end product of a lawful process. Relying principally on the Supreme Court decision in *Dina Management Limited v County Government of Mombasa & 5 Others*, the Petitioner submits that a title cannot be treated as indefeasible where the process leading to its issuance was illegal or irregular. 53. According to the Petitioner, numerous irregularities surrounded the alleged transfer from the Petitioner to the 5th Respondent. The transfer, dated 14th April 1993, was allegedly executed when the Petitioner had no directors capable of legally binding the company. The Petitioner stated that one director had resigned in 1991, another had died in 1992, and the replacement directors were appointed only in May 1993. Further, it contends that the document bore no proper company seal or evidence of execution by the required directors, and that the advocate said to have witnessed it denied the purported attestation. The Petitioner also alleges that the wording consenting to the transfer appeared to have been inserted or altered after execution. 54. They challenge the circumstances in which Munde Investments sought consent to deal with the property. For instance, the letter dated 4 th February 1993 allegedly described the property as belonging to the estate of the deceased director, despite the registered allottee being a company. The Petitioner argues that the 5th Respondent produced no evidence of its NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 21 of 36

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relationship with the deceased director, no authority to act for his estate, and no supporting corporate documents. 55. It further points to several inconsistencies in the land records, including missing entries in the Land Registrar’s copy of the grant, documents suggesting subdivision despite an alleged absence of subdivision records, the continued appearance of the Petitioner as proprietor in documents issued after the alleged transfer, and conflicting correspondence concerning rates, surveys, leases, and consent to transfer. 56. In addition, the Petitioner asserts that the Letter of Allotment could not itself be sold or transferred as though it were registered land. Relying on the case of *Torino Enterprises Limited v Attorney General*, the Petitioner submits that even a perfected Letter of Allotment does not confer transferable title unless the allottee completes the legal process through registration. Consequently, the Petitioner contests Kingsway Industrial Park’s claim to be an innocent purchaser for value. It submits that merely producing a title was insufficient because the root of that title had been directly challenged. Kingsway was therefore required to demonstrate the legality of the transaction through which it acquired the property. 57. Further, the Petitioner submits that Kingsway failed to produce a sale agreement, board resolution, proof of payment of the alleged purchase price of KShs.4 million, evidence of stamp-duty payment, the registered NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 22 of 36

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transfer instrument, or a pre-purchase land search. Its director allegedly could not identify the person who negotiated the sale on behalf of Munde Investments and claimed that the relevant file had been lost. The Petitioner argues that Kingsway should have undertaken due diligence, including investigations at the Companies Registry, particularly because the allottee company had undergone significant changes in its directorship. 58. Relying also in the case of *Sehmi & Another v Tarabana Company Limited & 5 Others*, the Petitioner maintains that a successful defence based on innocent purchase requires proof of three elements: the purchaser’s innocence, purchase for value, and acquisition of a legal estate. It argues that Kingsway failed to establish even the first element because its conduct and lack of due diligence raised serious doubts about whether it knew, or ought to have known, of the Petitioner’s competing interest. 59. On its part, the 1st Respondent stated that the reliefs sought by the Petitioner cannot issue as against them on the basis that case is over private land and the 1st Respondent's jurisdiction is, among others, strictly limited to managing public land on behalf of the national and county governments and the investigation of present or historical land injustices as provided in Article 67(2)(a) and (e) of the Constitution of Kenya, 2010. NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 23 of 36

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60. The 1st Respondent submits that the Supreme Court emphasised that the role of the Commission, as espoused in Advisory Opinion No. 2 of 2014 National Land Commission vs Attorney General & 7 Others (2015) eKLR, is that of an independent commission providing an oversight function, while the Executive have the exclusive function of guaranteeing the validity and integrity of title, not the Commission. 61. It continued in submissions that it was able to interrogate the allocation of Unsurveyed Industrial Plot No. B, Nairobi, to the Petitioner, among others. In its letter to the Chairman dated 13th February, 2019, the 1 st Respondent confirmed that the allocation, vide a letter of allotment dated 10th August 1989, was approved vide file 1027- 49/31/XVI, as at folios 113, 112 and 111. The 1st Respondent further confirmed that the letters of allotment were issued, payments made, surveys undertaken, deed plans issued, and the Commissioner of Lands finalised the titles. 62. The letter also noted irregularities, including the Petitioner's lack of consent to the transfer to Real Industrial Parks Limited; the manner in which the transfer was effected, noting that one of the Petitioner's shareholders had passed away and succession had not been completed; the unclear assessment of stamp duty on the transfer; and the conflicting reports from the Attorney General pertaining to the shareholding structure. The 1st Respondent recommended that the government project proceed in order to avoid delay. NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 24 of 36

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63. The 4th Respondent opened its submissions by narrating the background of the case and the evidence adduced during the trial (see paragraphs 1-38 of the submissions). It raised the following issues for determination: a) Whether the Further Amended Petition dated 13th December, 2023 is an abuse of the process of the Court. b) Whether the Petitioner has proved the allegations of fraud against the 4th Respondent to the requisite standard. c) Whether the 4th Respondent is a bona fide purchaser for value without notice; and d) Whether the Further Amended Petition ought to be dismissed with costs. 64. The 4th Respondent contends that the Petition is, in substance, an ordinary civil claim challenging title on grounds of fraud and illegality. They argue that although several constitutional provisions are invoked, the Petitioner identifies no specific constitutional violation. It is argued that the Petitioner merely constitutionalised a civil claim to avoid the ordinary procedural requirements under the Civil Procedure Rules, including the requirement to specifically plead particulars of fraud. 65. They rely on the case of Tuli v. Mwaruwa & 4 Others (Petition 24 of 2023) [2024] KEELC 1169, where the Environment and Land Court struck out a petition alleging fraudulent registration of land and seeking cancellation of title, holding that such allegations are matters that can NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 25 of 36

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only be canvassed in a trial and not through a Constitutional Petition. Similarly, in COD & another v. Nairobi City Water & Sewerage Company, Petition 419 of 2015, the Court held that the Constitution cannot be used as a general substitute for normal procedure. 66. It submits that the Petition is an abuse of process, having been filed well outside the twelve-year limitation period under Section 7 of the Limitation of Actions Act. The impugned transfer occurred in 1993, yet the Petition was filed in 2019, approximately 26 years later, and further amended in 2023. The 4th Respondent argued that the Petitioner cannot circumvent the limitation period applicable to a fraud-based proprietary claim merely by framing it as a constitutional petition. 67. In any event, the unexplained delay defeats the claim on the basis of laches. It cited the cases James Kanyiita Nderitu v Attorney General & Another [2019] KECA 1006 (KLR) and Lt. Col. Peter Ngari Karume & Others v Attorney General [2009] eKLR, where prolonged and unexplained delay was held to render constitutional proceedings an abuse of the Court process. 68. The 4th Respondent submitted that the pleaded allegations of fraud were not proved to the required standard. In particular, the Petitioner failed to call the person who personally executed all the impugned documents. The Petitioner’s own witness, PW1, admitted that Douglas Odhiambo Oyugi, then a director of the Petitioner, accepted the 1993 letter of offer, paid the NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 26 of 36

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stand premium and rates, requested the grant be issued in the name of 5 th Respondent, executed the transfer, paid stamp duty, and obtained consent for the subsequent transfer to the 4 th Respondent’s predecessor. Despite being central to the alleged fraudulent transactions, Oyugi was neither called nor consulted as a witness, and no explanation was given for his omission. The 4th Respondent asserts that this omission was fatal to the Petitioner’s case. 69. Further, the 4th Respondent urged the Court to draw an adverse inference from the unexplained failure to call Oyugi, whose evidence would have directly addressed the circumstances and authority surrounding the transactions. Reliance was placed in the case of Ahuja Investments Ltd v Victorygame Ltd [2021] EWHC 2382 (Ch), where the failure to call a material witness with direct knowledge of an impugned transaction was considered fatal to the claimant’s case. 70. Finally, the 4th Respondent submitted that it satisfied every element of bona fide purchaser for value without notice, as held in Weston Gitonga & 10 others v. Peter Gikanga & another [2017] eKLR) and in Hannington Njuki v. William Nyanzi, High Court Civil Suit No. 434 of 1996, which held that a certificate of title; it purchased the property in good faith; it had no knowledge of any fraud; it purchased for valuable consideration; the vendor had apparent valid title; it purchased without notice of any fraud; and it was not a party to any fraud. NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 27 of 36

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ANALYSIS AND DETERMINATION: 71. I have read the pleadings filed, the evidence adduced, and the submissions made. I note from the pleadings and the evidence that it is not disputed that the Petitioner was the original allottee of the unsurveyed plot B, before it was subsequently registered as Land Reference No. 209/11288. It is also undisputed that the grant of the suit property was never issued in the Petitioner’s name, as an informal transfer to 5 th Respondent was made before registration. 72. Besides the merit of this petition, the 4 th Respondent took issue with the form of this suit, filed as a constitutional petition to avoid the bar of limitation of actions, yet no constitutional violations were pleaded. Upon perusing the pleadings there are no constitutional violations pleaded. The issues raised touch on fraud which can be pursued through a civil claim. However, bringing the case as a constitutional petition did not invalidate the claim, and both parties were given the opportunity to present their case and defend the claim. 73. The second issue raised by the 4 th Respondent concerns the delay in bringing the suit to challenge the claim. The evidence before the court confirms that the 4th Respondent acquired the suit land in August 1993. It is also not in dispute that the Petitioner was not in physical possession, as PW1 stated that the people on the land said they were representatives of the 4th Respondent. In explaining the delay, PW1 averred that following NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 28 of 36

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the demise of their father, he was handling several parcels of land belonging to the estate. 74. The court notes that this was prime land surveyed as Industrial, and the father died in 1992. It should not have taken them over 20 years to discover that the land belonged to them; hence the explanation for the delay is not satisfactory. Despite this finding, the 4th Respondent did not pursue the argument to have the suit struck out at an early stage; hence I shall proceed to determine the petition on its merits. 75. I frame the following questions for determination of the dispute: a) Whether or not the informal transfer of the suit property from the Petitioner to the 5th Respondent was procedural. b) If the answer to (a) is negative, whether or not the 4 th Respondent obtained a good title. c) Whether the reliefs sought should be granted. d) Who bears the costs of this Petition? Whether the informal transfer was procedural: 76. The Petitioner produced a copy of the letter of allotment dated 10th August, 1989, confirming the government allocated it an unsurveyed industrial plot numbered “B.” On its face, the letter of allotment contained certain conditions to be fulfilled, inter alia, accepting the offer and pay the stand premiums assessed at Kshs 1,180,800. The letter of NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 29 of 36

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acceptance dated 1st February, 1993 produced by the 2 nd and 3rd Respondents was signed by Mr Douglas Odhiambo Oyugi. 77. The letter indicates that Douglas signed as a Director of the Petitioner. In accepting the offer he also enclosed a cheque for Kshs 630,000 towards paying the stand premiums. Pw1 contended that the Petitioner complied with all the requirements, including paying for stand premiums, land rents, etc. However, the evidence on record does not make it clear who signed any offer documents or made any payments other than Douglas Odhiambo Oyugi. 78. It is the absence of directors of the Petitioner following the demise of Hezekiah Nelson Oyugi-Pw1’s father that the Petitioner challenges the informal transfer instrument dated 14th April 1993, which transferred the suit property to the 5th Respondent. In support of this assertion, Pw1 produced the notification of change of directors and secretaries’ forms from the Registrar of Companies, which showed the shareholders as Ashok Lakhani, Bharti Ashok Lakhani and Munde Trusts Ltd. Ashok Lakhani resigned as a director on 24.8.1991, and Hezekiah Oyugi ceased as a director upon his death in August 1992. Job Okuna and Douglas Odhiambo were appointed as directors on 15th May 1993. 79. First, I am alive to this court’s jurisdiction as set out in Article 162 (2)(b) of the Constitution and in section 13 of the Environment and Land Court NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 30 of 36

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Act, which confers jurisdiction to hear and determine disputes over land and the environment. Section 13(2) states thus; “In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management; (d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.” 80. Questions as to who the directors of a company are, and disputes between directors and related issues, are governed by the Companies Act Cap 486, which confers jurisdiction on the High Court. On this basis, I hesitate to make a finding on the capacity of Douglas Odhiambo to transact on behalf of the Petitioner as he did in February 1993. 81. In the alternative, if the actions of Douglas Odhiambo that are being questioned fall within this Court’s jurisdiction to determine, on the basis that they resulted in the loss of property belonging to the Petitioner, can the Petitioner be selective about what to challenge? It is Douglas NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 31 of 36

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Odhiambo who drew and signed the letter accepting the allocation of the suit land, albeit late. The evidence reveals that he is the one who processed the partial payment for the stand premiums. If he had no authority to act on behalf of the Petitioner, the conclusion is that the Petitioner never accepted the offer letter and never paid the stand premiums. The consequence is that the offer lapsed and the Petitioner has no rights to pursue over the suit property. 82. If the actions of Douglas Odhiambo vide the letter dated 1 st February, 1993 stand, then this Court finds no ground put forth to nullify the informal transfer done on 14th April, 1993. 83. Regarding the question whether the transfer from the Petitioner to the 5 th Respondent was procedural, several documents were produced by the 2nd and 3rd Respondents to support the impugned transfer. This include an informal transfer instrument executed by Douglas Odhiambo Oyugi. The 2nd and 3rd Respondents explained that where a grant had not been issued, the process of transfer was through an informal transfer. The Respondents also produced an application for consent from the Commissioner of Lands which was granted on 13th April, 1993. 84. Also produced (by the 2nd and 3rd Respondents) was a handwritten valuation for additional stand premium, stamp duty and A.R., giving a total of Kshs 71,820 and dated 10th February, 1993. This was in response NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 32 of 36

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to the 5th Respondent’s letter dated 4th February 1993 requesting that the property be transferred to it. 85. Another ground picked by the Petitioner is the missing evidence was confirmation that the sum of Kshs 3,100,000 was paid into the accounts of the Petitioner by the 5th Respondent. Section 37 of the Land Registration Act Cap 300 provides that; “(1) A proprietor may transfer land, a lease or a charge to any person with or without consideration, by an instrument in the prescribed form or in such other form as the Registrar may in any particular case approve. (2)A transfer shall be completed by—(a)filing the instrument; and(b)registration of the transferee as proprietor of the land, lease or charge.” 86. Further, in the letter dated 4th February, 1993, Douglas Odhiambo Oyugi gave the reason for seeking transfer as follows; “Since the demise of my father Hezekiah Nelson Oyugi, we have of necessity decided to administer all the properties under the company name of Munde Investments Ltd. We therefore humbly request that the above plot be issued under the name of Munde Investments Ltd to facilitate ease of administration.” 87. Pw1 stated in his written statement that the informal transfer was executed by persons unknown to the Petitioner, yet the signatory of all the NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 33 of 36

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impugned documents, Mr Douglas Odhiambo, was subsequently appointed a director of the Petitioner. Further, the letter requesting the transfer makes no mention of any consideration to be paid to the Petitioner. This undermines the Petitioner's assertion that the transfer should be nullified for lack of payment of consideration. 88. On the questioned signature of the advocate witnessing the signatures on the informal transfer, PW2 denied signing the said document or that Douglas Odhiambo Oyugi appeared before him. During crossexamination, PW2 stated that it was upon the Law Society of Kenya to reveal who S.O. OWINO advocate was. There is no doubt that the name of PW2 has similar initials to the advocate whose signature the Petitioner is questioning. 89. As correctly put by PW2, it is the LSK who could confirm from their database that as at 1993, it is only PW2 whose name bore the initials S.O. OWINO advocate. In the absence of such evidence, the impugned signature cannot be decided as forged merely because PW2 denied it belonged to him. S.O. can refer to a name other than Stephen Omondi e.g Samuel Otieno, Samson Onyango, Solomon Omondi etc. Whether the 4th Respondent acquired a good title: 90. The Petitioner challenged the transfer to the 4 th Respondent on the basis that the 5th Respondent had acquired its title through forgery so it had no good title to pass on to the 4 th Respondent. I have already discussed NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 34 of 36

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hereinabove in detail the grounds challenging the process by which the 5th Respondent obtained a title in its name. I have found that the grounds raised by the Petitioner were not proved on a balance of probabilities. 91. The grant was issued in the name of the 5th Respondent on 14th May 1993, and a transfer was registered in the name of the 4th Respondent on 18th August 1993. The 4th Respondent, through the evidence of its director, Mr Sanjay Shah, stated that it paid Kshs 4,000,000 as the purchase price. In cross-examination, the witness admitted that he did not produce a copy of the sale agreement because the file containing these documents got lost in 1999. The loss of title was corroborated by copies of gazette notices publishing the loss of the original title and the intention to issue a provisional certificate, which was issued twice. 92. The 5th Respondent, though sued, did not participate in these proceedings; hence, it is deemed that it does not deny receiving the consideration from the 4th Respondent. The 2nd and 3rd Respondents produced a copy of the 5th Respondent's application for consent dated 6th August, 1993, seeking to transfer to the 4th Respondent, which was approved on 10th August, 1993. 93. Was evidence led linking the 4th Respondent as participating in the change of ownership from the Petitioner to the 5 th Respondent’s name? None of the documents produced and on record link the 4 th Respondent to the activities between the Petitioner and the 5 th Respondent. By the time the NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 35 of 36

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land was sold to the 4th Respondent, Douglas Odhiambo Oyugi had also been made a director of the Petitioner. 94. The Petitioner wondered why some of the documents such as clearance rates were still bearing the names of the Petitioner yet the transfer had been effected in the name of the 4th Respondent. However, the Petitioner did not produce evidence that it has ever paid rates and rents accrued on this property. The failure to change records with the rate payer does not render a valid transaction voidable. 95. In relation to whether to grant the reliefs sought, it is my conclusion, based on my analysis of the evidence on record, that the Petitioner has not proved its case to the required standard. Accordingly, I order the petition dismissed for lack of merit. Costs to the 2nd, 3rd, and 4th Respondents. Dated, signed and delivered at KISII this 24th day of September, 2026. A. OMOLLO JUDGE NBI ELC PET NO. 35 OF 2019 – JUDGMENT Page 36 of 36

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