Saleem Ghalia, Wahida Ghalia & Mohammed Ayub Mussa Khamisa (Suing as Administrators of the Estate of Sadiq Ghalia (Deceased)) v Kwale District Land Registrar & 5 Others

JUMA MBOGA………………………………………..…..5TH MWINYI MBATA……………………………………..…...6TH OMAR DEFENDANT JUMA DEFENDANT JUDGEMENT I. Preliminaries 1. The Judgement by this Honourable Court pertains to a civil case on the land dispute contained in the Plaint dated 6 th December, 2021 instituted by Saleem Ghalia, Wahida Ghalia, and Mohammed Ayub Mussa Khamisa, the 1st, 2nd & 3rd Plaintiffs herein, suing as the duly appointed Legal Administrators of the Estate of Sadiq Ghalia (Hereinafter referred to as “The Deceased”). The suit was against the Kwale District Land Registrar, the Chief Lands Registrar, Abdallah Said Kugotwa, Mohamed Rajab Mbwata, Omar Juma Mboga, and Juma Mwinyi Mbata, the 1st, 2nd, 3rd, 4th, 5th & 6th Defendants herein. 2. In the stated suit, the Plaintiffs sought for declarations and orders relating to all that parcel of land known as Land Reference numbers Kwale/Galu Kinondo/665 (Hereinafter referred to as “The Suit Land”) , which they aver was lawfully acquired and registered JUDGMENT: ELC CASE NO E008 OF 2021 Page 2 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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in the name of their late father but was unlawfully interfered with through fraudulent collusion and irregular issuance of a parallel title in favour of the 3rd – 6th Defendants. 3. Upon service of the pleadings and summons to enter appearance, the 3rd – 6th Defendants, through their advocates the Law firm of Messrs. Makasembo Advocates and later Messrs. Muthoni Ngure & Company Advocates, filed a Statement of Defence dated 22 nd July, 2022 and an Amended Defence dated 1st June, 2023, denying the Plaintiffs’ ownership and asserting that the suit property was ancestral land belonging to them as heirs of Rajab Salim Mwadarangunya and Juma Mboga Mwakuyugwa respectively. They alleged that the Land Disputes Tribunal and the Magistrates’ Court had directed the cancellation of the Plaintiffs’ title and issuance of a new title in their favour. 4. The 1st and 2nd Defendants, represented by the Honourable Attorney General, filed a Defence dated 26 th August, 2022, denying allegations of fraud. They contended that the suit was fatally defective for want of statutory notice under the provision of the Government Proceedings Act, Cap. 40. They further denied JUDGMENT: ELC CASE NO E008 OF 2021 Page 3 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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collusion and produced official parcel files and registers to refute allegations of parallel records. 5. The Plaintiffs filed a Reply to the Amended Defence of the 3 rd – 6th Defendants dated 21st September, 2023, reiterating their ownership and pointing out that the Tribunal and Magistrates’ Court lacked jurisdiction to revoke registered ownership under the provision of the Registered Land Act, Cap. 300 (Now repealed). They maintain that the Defendants’ titles were fraudulent, nullities ab initio, and incapable of conferring ownership. II. Description of the Parties 6. The 1st Plaintiff, Saleem Ghalia, is a male adult of sound mind, understanding, residing and working for gain within the Republic of Kenya. He sues in his capacity as one of the duly appointed Legal Administrators of the Estate of Sadiq Ghalia - the deceased, who was the registered proprietor of the suit land having lawfully acquired it in the year 1980. 7. The 2nd Plaintiff, Wahida Ghalia, is a female adult of sound mind, understanding, JUDGMENT: ELC CASE NO E008 OF 2021 residing within the Republic of Kenya. She sues Page 4 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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jointly with the 1st Plaintiff as duly appointed Legal Co - administrator of the Estate of Sadiq Ghalia – the deceased, asserting proprietary rights over the suit property. 8. The 3rd Plaintiff, Mohammed Ayub Mussa Khamisa, is a male adult of sound mind, understanding, residing within the Republic of Kenya. He sues together with the 1st and 2nd Plaintiffs as duly appointed Legal Co - Administrator of the Estate of Sadiq Ghalia – the deceased, pursuant to a Grant of Probate issued in the year 2013. 9. The 1st Defendant, Kwale District Land Registrar, is a public officer charged with the custody and registration of land records within Kwale County. He is sued in his official capacity for allegedly colluding in the issuance of a parallel register and title deed in respect of the suit property. 10. The 2nd Defendant, Chief Lands Registrar, is a public officer appointed under the provision of Section 12 of the Land Registration Act, No. 3 of 2012, responsible for supervising land registries across the Republic of Kenya. He is sued in his official capacity for alleged failure to safeguard the integrity of the land register relating to the suit property. JUDGMENT: ELC CASE NO E008 OF 2021 Page 5 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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11. The 3rd Defendant, Abdallah Said Kugotwa, is a male adult of sound mind, understanding, residing and worked for gain in the County of County. He is sued as one of the persons registered under the impugned Title Deed dated 7th August, 2015, which the Plaintiffs contend was fraudulently procured. 12. The 4th Defendant, Mohamed Rajab Mbwata, is a male adult of sound mind, understanding, residing and worked for gain the County of Kwale. He is similarly sued as a beneficiary of the disputed registration of the suit property. 13. The 5th Defendant, Omar Juma Mboga, is a male adult of sound mind, understanding, residing and worked for gain in the County of Kwale. He is sued as one of the alleged co-proprietors of the suit property under the contested title deed. 14. The 6th Defendant, Juma Mwinyi Mbata, is a male adult of sound mind, understanding, residing and worked for gain in the County of Kwale. He is sued as a co-proprietor under the impugned title deed, which the Plaintiffs allege was obtained through fraud and collusion III. Court directions before the hearing 15. Fundamentally, the Honourable Court has opted to provide a brief background of the proceedings of this case herein. On 8 th December, JUDGMENT: ELC CASE NO E008 OF 2021 Page 6 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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2021, upon perusal of the Plaint and Notice of Motion application dated 6th December, 2021 together with the supporting affidavit and annexures, the Court (Hon. Lady Justice A.E. Dena) certified the matter urgent and granted interim injunction restraining the Defendants from transferring, selling, alienating, or otherwise dealing with parcel Kwale/Galu Kinondo/665 pending inter partes hearing. 16. On 10th February, 2022, the Learned Counsel for the 3 rd – 6th Defendants raised a preliminary objection to the Notice of Motion application. On 25th July, 2022, the Court recorded that the Plaintiffs had complied with pre-trial directions, while the Defendants had belatedly filed documents. The matter was fixed for pre-trial directions on 21st September, 2022 whereby the Court directed the Attorney General to liaise with counsel for the Defendants to ensure compliance with orders for production of documents. On 18 th October, 2022, the Court confirmed that the Attorney General had filed documents, while the Plaintiffs and 3rd – 6th Defendants were yet to fully comply. 17. On 9th April, 2024, the Court heard the testimony of PW - 1, Saleem Ghalia, who produced documentary evidence including transfers, JUDGMENT: ELC CASE NO E008 OF 2021 Page 7 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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land certificates, judicial review orders, and tribunal proceedings. The Court admitted supplementary documents filed late, emphasizing the need to consider all prior litigation. Thereafter, there was the cross - examination of PW – 1. The Court directed the Land Registrar to produce the original green card during the next session. 18. Upon closure of all parties’ cases, the Court directed the Plaintiffs to file written submissions within twenty-one days, and thereafter the Defendants within twenty-one days. The Honourable Court reserved Judgment to be delivered on notice. IV. The case for the 1st, 2nd & 3rd Plaintiffs 19. At all material times, the 1 st, 2nd & 3rd Plaintiffs were the duly appointed Legal Administrators of the Estate of Sadiq Ghalia (deceased), who was the registered owner of land parcel Kwale/Galu Kinondo/665 measuring approximately 1.9 hectares. The suit property is situated in Galu Kinondo within Kwale County. It was acquired by the deceased in the years 1979 – 1980 through transfer from the original proprietors, and a land certificate was duly issued to him on 29th May, 1980. JUDGMENT: ELC CASE NO E008 OF 2021 Page 8 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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20. The Plaintiffs’ claim against the 1st and 2nd Defendants was that they in fraudulent collusion with the 3rd, 4th, 5th and 6th Defendants, had purported to issue a new title with respect to the Plaintiffs’ property in the names of the 3 rd, 4th, 5th and 6th Defendants. The Defendants were in the process of fraudulently transferring the said property belonging to the Plaintiffs using a document purportedly issued on 7th August, 2015 without the knowledge or consent of the Plaintiffs. 21. The Defendants were fully aware that their attempt to dispose of the suit property was fraudulent, that they had no right to sell, and that the purported title documents dated 7th August, 2015 were a forgery or otherwise illegal since the 3rd to 6th Defendants had unsuccessfully challenged the Plaintiffs’ title by various suits as shown below: a. In the year 2009, the 3rd, 4th, 5th and 6th Defendants filed Land Dispute No. 44/2005 before the Msambweni District Land Tribunal challenging the deceased’s ownership of the suit land. b. On 1st September, 2009, the Msambweni District Land Tribunal issued an award purporting to recommend that the 1 st Defendant revoke and cancel the Plaintiffs’ title to the suit land JUDGMENT: ELC CASE NO E008 OF 2021 Page 9 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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and instead issue a new title to the 3 rd, 4th, 5th and 6th Defendants. c. In the year proceedings 2009, in the the deceased filed High Court Kenya of Judicial at Review Mombasa “(Miscellaneous Civil Application No. 500/2009)” challenging the proceedings, findings, and the purported award of the Msambweni District Land Tribunal. d. On 4th February, 2010, the 3rd, 4th, 5th and 6th Defendants filed the Originating Summons at the High Court of Kenya Mombasa “(Civil Suit No. 34/2010 (O.S)) seeking orders that the Kwale Lands Registrar be ordered to revoke and cancel the deceased’s title to the suit land. e. On 24th September, 2010, the High Court of Kenya at Mombasa (Civil Suit No. 34/2010 (O.S)) held that since the case related to Kwale/Galu Kinondo/665, the judicial review proceedings in the High Court of Kenya at Mombasa (Miscellaneous Civil Application No. 500/2009) be heard and determined first. f. On 9th September, 2010, the High Court of Kenya at Mombasa in judicial review proceedings (Miscellaneous Civil Application No. 500/2009) granted the following reliefs: JUDGMENT: ELC CASE NO E008 OF 2021 Page 10 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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i. An order of Certiorari removing into the High Court and quashing the award of the Msambweni Lands Dispute Tribunal in Land Dispute No. 44 of 2005 in respect of the suit land. ii. An order of Prohibition prohibiting the District Land Registrar from proceeding to revoke and cancel the title deed held by the deceased and issuing a new title deed in the 3rd, 4th, 5th and 6th Defendants’ names g. On 19th September, 2017, the Originating Summons at the High Court of Kenya at Mombasa (Civil Suit No. 34/2010 (O.S)) was dismissed with costs 22. In view of the foregoing, the Defendants did not have any lawful justification for issuing, procuring, or making the document dated 7 th August, 2015 purporting that the 3rd to 6th Defendants were the registered proprietors of the suit property. The document dated 7Th August, 2015 purporting to be the title was a forgery or otherwise obtained fraudulently. 23. The Plaintiff relied on the following particulars of fraud on the part of the Defendants: JUDGMENT: ELC CASE NO E008 OF 2021 Page 11 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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a) Made the document dated 7 th August, 2015 purporting to be the title of the suit property without the knowledge or consent of the registered owner. b) Attempted to transfer or otherwise dispose of the suit property to third parties. c) Acted with impunity and in total disregard of the validity and sanctity of title. d) Abused office to the detriment and prejudice of the Plaintiffs. 24. The Plaintiffs demanded that the 1st and 2nd Defendants release the said documents to them and severally visited the land registry at Kwale seeking the documents and information, but the 1 st and 2nd Defendants declined. The cause of action arose in Kwale County within the jurisdiction of this Court. 25. There was no other suit pending and there had been no previous proceedings in any court between the Plaintiffs and the Defendants over this subject matter except in the High Court of Kenya at Mombasa (Miscellaneous Civil Application No. 500/2009) and the High Court of Kenya at Mombasa (Civil Suit No. 34/2010 (O.S)). 26. For the reasons wherefore, the Plaintiffs prayed that Judgment be entered against the 1st, 2nd, 3rd, 4th, 5th & 6th Defendants for: - JUDGMENT: ELC CASE NO E008 OF 2021 Page 12 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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a) A declaration that the Estate of Sadiq Ghalia (deceased) is the rightful and legal owner of that land parcel known as No. Kwale/Galu/Kinondo/665. b) An order directing the 1st and 2nd Defendants to cancel any entry in the register purporting to register the 3 rd, 4th, 5th and 6th Defendants as the owners of Kwale/Galu/Kinondo/665 and the said title to revert in the name of Sadiq Ghalia. c) An order for a permanent injunction restraining the 3rd, 4th, 5th and 6th Defendants by themselves, their agents, servants, or whomsoever else acting on their behalf or instructions from entering, trespassing, moving into, seeking to occupy, alienating, charging, selling, disposing of and/or in any other manner whatsoever interfering with the Plaintiffs’ rights of ownership, possession, occupation or use of Land Parcel No. Kwale/Galu/Kinondo/665. d) Costs. 27. The Plaintiff also responded to the 3rd to 6th Defendants’ amended defence as follows: a. Save where expressly admitted therein, the Plaintiffs had joined issue with all allegations of fact in the Amended Defence of the 3rd – 6th Defendants (Hereinafter referred to as “the Amended Defence”) and had reiterated the contents of the Plaint. b. The Plaintiffs had admitted the contents of Paragraph 2 of the Amended Defence. JUDGMENT: ELC CASE NO E008 OF 2021 Page 13 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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c. In response to Paragraph 3, the Plaintiffs had denied that the suit property was or had been the ancestral land of the 3 rd to 6th Defendants or that the 3rd to 6th Defendants had had quiet possession since childhood, and had put them to strict proof thereof. d. In answer to Paragraph 4 of the Amended Defence, the Plaintiffs had averred that the Land Disputes Tribunal–Kwale and the Magistrates’ Court had not had jurisdiction and that their decision, award, judgment, and all orders and actions in relation to the suit property had been a nullity. e. In answer to Paragraph 12, the Plaintiffs had reiterated that: i. The suit property had never been a home to the 3 rd to 6th Defendants and/or their forefathers. ii. The suit property had been vacant at the time the Plaintiffs acquired it and had remained vacant to date. iii. The Plaintiffs had never had homesteads or any other developments on the suit property. iv. The 3rd to 6th Defendants had never resided on the suit property. JUDGMENT: ELC CASE NO E008 OF 2021 Page 14 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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v. The Plaintiffs had had exclusive possession of the suit property at all material times f. In answer to Paragraph 14, the Plaintiffs had denied the alleged fraud, irregularities, or illegalities and had put the 3 rd to 6th Defendants to strict proof thereof. 28. The Plaintiffs had prayed for Judgment to entered against the Defendants as prayed in the Plaint dated 6th December, 2021. 29. The Learned Counsel on record for the Plaintiff made the following remarks:A. Opening remarks by Mr. Ndegwa Advocate. 30. The Learned Counsel for the Plaintiff commenced his oral opening submission by stating that they would demonstrate that this was one more case of parties unlawfully altering registration of land to the detriment of the owners. 31. According to the Counsel, the parties purported to register Court orders which they knew had been quashed but still went ahead to alter the registered owners up to the detriment of the Plaintiff. 32. The Learned Counsel submitted that they would show the Court that at all time they knew what they were doing. 33. The Plaintiff called PW - 1 on 9th April, 2024 who testified as follows:- JUDGMENT: ELC CASE NO E008 OF 2021 Page 15 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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A. Examination in Chief of PW - 1 by Mr. Ndegwa Advocate. 34. PW - 1 was sworn and testified in English language. He was called SALEEM GHALIA, a citizen of Kenya and holder of the national identity card with all the particulars as shown to Court during the hearing of the case. He lived in Mombasa and was an advocate of the High Court of Kenya having been admitted in 1984. The plot Galu Kwendo 655 had been purchased by his father, Sadiq Ghalia, who was original the registered owner. Sadiq Ghalia passed away on 11th February, 2011. He was the administrator of the estate together with Wahida Ghalia and Mohamed Ayub Mussa Khamisa. The Certificate of the Confirmation of the Grant Letters of Administration was at page 10 of the Plaintiff’s bundle. A copy of the official search of titles was at page 11. He produced the grant and titles as Plaintiff Exhibit Numbers 1 and 2. 35. PW - 1 testified that his father had been paying for the land rates; pages 14–31 contained the demands for rates and payments, which he produced as Plaintiff Exhibit Number 3. PW - 1 stated that the Certificate of rates clearance was at page 23 in the name of Sadiq JUDGMENT: ELC CASE NO E008 OF 2021 Page 16 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Ghalia produced as Plaintiff Exhibit Number 4. He further testified that his father had acquired the property on 20 th September, 1979 from Sairus Kirugumu, Mahendo Kiringu, Warandu Mukarenyi Mukundi, and Rahab Mweru. He had purchased it together with Eugene Cherwel at a sum of Kenya Shillings Two Hundred Thousand (Kshs. 200,000/-. At page 24 was a copy of the transfer - produced as Plaintiff Exhibit Number 5. PW - 1 stated that on 23 rd May, 1980 Eugene had transferred his undivided share to his father at a sum of Kenya Shillings One Hundred (Kshs. 100,000/-). The transfer was at pages 26 – 27, which he produced as Plaintiff Exhibit Number 6. 36. PW - 1 testified that his complaint was against the 1 st and 2nd Defendants, who had colluded fraudulently with the 3 rd – 6th Defendants to issue a new title in respect of the Plaintiff’s title. At page 28 was a title for some property in the names of the 3 rd – 6th Defendants, purportedly issued on 7 th August, 2005, thirty-five years later. He produced it as Plaintiff Exhibit Number 7. PW - 1 stated that at page 30 was an application to sell and transfer bearing his father’s name, which his father had not signed, but which stated that it was by court order attached to be transferred to the 3 rd – 6th JUDGMENT: ELC CASE NO E008 OF 2021 Page 17 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Defendants for Plot No. 655, zone Galu Kinondo. It was dated 11 th March, 2021, which he produced as Plaintiff Exhibit Number 8. 37. He testified that including the present proceedings, there had been six ( 6 ) cases. In the year 2009, the 3 rd – 6th Defendants had filed Land Dispute 44/2005 against his father Sadiq at the Msambweni Tribunal. These were at pages 31–34, which he produced as Plaintiff Exhibit Number 9. PW - 1 stated that they had asked the Tribunal to cancel Sadiq’s title, revoke it, and issue a new one. In response, Sadiq had filed JR 311/2006. The proceedings were at Pages 26 – 33 in the Attorney General’s bundle of 22 nd September, 2022. Sadiq had asked the High Court to quash the proceedings of the Tribunal at Msambweni. He adopted the document as his exhibit; Plaintiff Exhibit Number 10. 38. PW - 1 testified that they had also sought additional orders. The outcome of the proceedings was a consent dated 3 rd April, 2024, which he produced as Plaintiff Exhibit 11 and he stated that in the JR, the Interested Parties had been Muhamed Rajabu, Mubwata, and Omar Juma Mboga, who were the 4th and 5th Defendants in the present suit. The Tribunal had proceeded with its sitting despite the court order. They had ordered the District Land Registrar Kwale to JUDGMENT: ELC CASE NO E008 OF 2021 Page 18 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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revoke Sadiq’s title and issue a new title in the names of the 3 rd – 6th Defendants. The order was at pages 35–36, which he produced as Plaintiff Exhibit 12. 39. PW - 1 testified that after the award, Sadiq had filed Application 500 of 2008 at the High Court in Mombasa. This was at pages 37 – 42. The orders sought were at pages 37–38, which he produced as Plaintiff Exhibit Number 13. He stated that the outcome of the above application was at page 56. The Tribunal award had been quashed and the register prohibited from cancelling Sadiq’s title. He produced it as Plaintiff Exhibit number 14. PW - 1 testified that upon obtaining the award, the Defendants had filed it at the Principal Magistrate’s Court Kwale, Case 34/2009, for adoption of the Tribunal proceedings. This was at pages 8 – 9 of the documents filed by the Attorney General. An order had been issued, which did not make any reference to the plot number. He adopted it as his exhibit. 40. PW - 1 stated that the 3rd – 6th Defendants had also filed an Originating Summons No. 34 of 2010 at the High Court in Mombasa, where they sued Sadiq. This was at Page 43 of his bundle (he read out the prayers). The outcome of the Originating Summons was at JUDGMENT: ELC CASE NO E008 OF 2021 Page 19 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Page 47 of his bundle. He produced the Originating Summons and the order at pages 43–54 as Plaintiff Exhibit Number 15. 41. PW - 1 testified that at pages 10–15 of the Attorney General’s bundle, page 10 contained a Notice of Motion application by the Defendants to vary the Principal Magistrate’s order (he read out prayer 1). The application still did not state the parcel number. At pages 14 – 15, the Principal Magistrate at Kwale reviewed its order to reflect Kwale/Galu/Kinondo/665. The order was dated 5 th May, 2015. He stated that the Land Registrar’s copy of the Green Card was at page 2 of the Attorney General’s bundle (he read out Entry No. 5). The entry opened a new Green Card pursuant to the order. The Registrar issued a title dated 20 th August, 2015 at page 28 of the Plaintiff’s bundle. He testified that the Green Card had originally been opened on 15th November, 1974 and thus did not tally with the court order of year 2015. The dates ought to have been the same. 42. PW - 1 observed that entry No. 1 thereof was dated 15 th November, 1974, showing the 3rd – 6th Defendants as registered proprietors, which was not possible since that entry was supposed to have been opened by dint of the year 2015 court order. At page 1 of the Attorney General’s bundle was a green card opened on 15 th JUDGMENT: ELC CASE NO E008 OF 2021 Page 20 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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November, 1974, and entry No. 1 showed the vendors who had sold to his father. Overleaf was the continuation. 43. PW - 1 stated that at page 16 of the Attorney General’s bundle was the same transfer by Eugene to his father, which he had already produced. At page 18 of the Attorney General’s bundle was the Land Control Board consent dated 15th May, 1980, forty-four years earlier. Page 20 contained the Land Control Board consent for the transfer to his father. He testified that at Pages 21 – 24 of the Attorney General’s bundle was the application to correct names by the previous owners. Page 22 contained the Land Control Board consent to the change of names. At page 25 of the Attorney General’s bundle was a letter dated 31st August, 1977 to collect the title. He stated that he had some of the documents in the Attorney General’s bundle but did not have the document for the change of name and the consent to change the same. 44. PW - 1 testified that the land was located in Galu Kinondo in the South Coast. He had last visited the land six months earlier, and previously nine months earlier, and many times when Sadiq was alive. He stated that the land had remained undeveloped from the beginning. He produced photographs at page 4–7 of the plaintiff’s JUDGMENT: ELC CASE NO E008 OF 2021 Page 21 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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supplementary list dated 25th October, 2023, which were Google Maps images as Plaintiff Exhibit Number 16. He stated that it was not true that the Plaintiffs had resided on the suit property. At present, there was no one on the land. He had the Certificate of election record, which he produced as Plaintiff Exhibit Numbers 17. 45. PW - 1 testified that back at page 1 of the Attorney General’s bundle, overleaf, entry No. 9 was dated 20 th September,1979 (he read it out), showing Eugene and Sadiq as proprietors. At entry No. 10, the land certificate title had been issued. Entry No. 9 reflected the sale for Kenya Shillings Two Hundred Thousand (Kshs. 200,000/-). Entry No. 11 showed that Sadiq had become the sole proprietor on 27th May, 1980, and a certificate had been issued at entry No. 12 on 29th May, 1980. He confirmed that up to this point he agreed with the entries in the Attorney General’s green card up to 29th May, 1980. He testified that entry No. 12 also contained a restriction (he read it out), which was not dated. He stated that it was not possible to have recorded a letter of 6 th April, 2004 on 29th May, 1980. The registrar’s initials were “H.G. SAT” and the number. He knew him as Hashim Got Sat, and testified that he could not JUDGMENT: ELC CASE NO E008 OF 2021 Page 22 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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have registered in the year 1980 since the document arose from a letter of 6th April, 2004. 46. PW - 1 stated that at page 2 of the Attorney General’s bundle was a Green card of the year 2015. In his view, there was no court order supporting the opening of this Green card, as all the orders had quashed the litigation. He testified that the Principal Magistrate’s order had been quashed by the High Court in Case No. 34 of 2010. As at 7th May, 2015, when a new title had been issued to the 3 rd – 6th Defendants, the JR order quashing the tribunal awards was five years old. He emphasized that the order had also prohibited the registrar from cancelling and issuing a new title. He stated that he did not know of any other justification to cancel the title. He had the original title dated 29th May,1980, which he showed to the court. He testified that he had not seen any entry in the green card cancelling his father’s title deed. He asked the court to cancel the 2015 title and rectify the registers. 47. PW - 1 adopted his witness statement at pages 68 –71 dated 6 th December, 2021 and his witness statement dated 29 th September, 2023. B. Cross examination of PW - 1 by Mr. Waga Advocate. JUDGMENT: ELC CASE NO E008 OF 2021 Page 23 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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48. PW - 1 testified that regarding the other title of the year 2015, he had become aware of it when he received information that the 3 rd to 6th Defendants were selling the property to a third party. The third party had alerted him and asked whether he was aware of the sale. He stated that he saw the consent of 13th May, 2008, where the parties were Sadiq as applicant, and agreed that there had been only two interested parties. He agreed that in the new title the parties were four and not two, and that in JR 311/2006 they had only sued two of them. Juma Mwinga and Abdalla Kugutwa had not been in those proceedings. He added that he would be extremely surprised if they had not known of this from the other two Defendants. 49. As to the orders in Application 500/2009 (pages 55–56), he stated that the parties were the Msambweni Tribunal and Sadiq, and he believed they had been served upon the Land Registrar, Kwale. He undertook to bring proof next time. At page 16 was the order for the new title (2015), being the order of the Principal Magistrate, Kwale. What he was challenging in that order was that emails from the Notice of Motion application dated 30 th September, 2024 had no reference to the plot number. JUDGMENT: ELC CASE NO E008 OF 2021 Page 24 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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50. PW - 1 testified that if one looked at the application by the Defendants in the Originating Summons at the High Court, they admitted that the Principal Magistrate had no jurisdiction (page 44 of his bundle, ground No. 9). He stated that the Land Registrar had not been able to effect the Principal Magistrate’s order and must have advised them, which was why they had gone to the High Court. For him, the order was improper because of lack of jurisdiction and because other orders had prohibited the Land Registrar from cancelling Sadiq’s title. 51. He confirmed that the first transfer for Sadiq had been bought from Cyrus Mahendonyi and Rahab, though he had not presented the agreement leading to that transfer. At page 1 was the complete history: entries 1–5 showed a name change by the owners in entry 1. Entry No. 9 was the entry on Eugene and his father, and this was a sale after the title had been issued on the property. He stated that the date on his original title was 29 th May, 1980 and not 20th September, 1979 as per entry No. 9. This was explained by Page 37 of the Attorney General’s bundle, being the transfer of undivided share from Cherwel to Sadiq. Entry No. 11 was the transfer from Cherwel. JUDGMENT: ELC CASE NO E008 OF 2021 Page 25 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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52. PW - 1 referred to his plaint (page 60), Paragraph 10, on particulars of fraud against the 2nd Defendant. For him, the fraud lay in the fact that the Defendant had been aware of the court orders prohibiting him, and also in the entry of restriction in the Green card, which was undated. He also referred to the consent order signed by the Attorney General (he read the consent). He stated that a stay order was valid until it was discharged (Attorney General’s bundle, page 29). To him, the consent referred to 2(a) and (b), which were the orders sought. Despite this order, the Tribunal had proceeded. He agreed that the orders did not affect the mandate of the Land Registrar. 53. PW - 1 concluded that the 1 st and 2nd Defendants had been fully aware of the history of the matter, and he did not agree that he had failed to prove fraud on the part of the Land Registrar. 54. PW - 1 testified that regarding the other title of the year 2015, he had become aware of it when he received information that the 3 rd to 6th Defendants were selling the property to a third party. The third party had alerted him and asked whether he was aware of the sale. He stated that he saw the consent of 13th May, 2008, where the parties were Sadiq as applicant, and agreed that there had been JUDGMENT: ELC CASE NO E008 OF 2021 Page 26 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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only two interested parties. He agreed that in the new title the parties were four and not two, and that in JR 311/2006 they had only sued two of them. Juma Mwinga and Abdalla Kugutwa had not been in those proceedings. He added that he would be extremely surprised if they had not known of this from the other two ( 2 ) Defendants. 55. As to the orders in Application 500/2009 (Pages 55–56), he stated that the parties were the Msambweni Tribunal and Sadiq, and he believed they had been served upon the Land Registrar, Kwale. He undertook to bring proof next time. At page 16 was the order for the new title (2015), being the order of the Principal Magistrate, Kwale. What he was challenging in that order was that emails from the Notice of Motion dated 30th September, 2024 had no reference to the plot number. 56. PW - 1 testified that if one looked at the application by the defendants in the Originating Summons at the High Court, they admitted that the Principal Magistrate had no jurisdiction (page 44 of his bundle, ground No. 9). He stated that the Land Registrar had not been able to effect the Principal Magistrate’s order and must have advised them, which was why they had gone to the High Court. JUDGMENT: ELC CASE NO E008 OF 2021 Page 27 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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For him, the order was improper because of lack of jurisdiction and because other orders had prohibited the Land Registrar from cancelling Sadiq’s title. 57. PW - 1 confirmed that the first transfer for Sadiq had been bought from Cyrus Mahendonyi and Rahab, though he had not presented the agreement leading to that transfer. At page 1 was the complete history: entries 1 – 5 showed a name change by the owners in entry 1. Entry No. 9 was the entry on Eugene and his father, and this was a sale after the title had been issued on the property. He stated that the date on his original title was 29 th May, 1980 and not 20th September, 1979 as per entry No. 9. This was explained by page 37 of the Attorney General’s bundle, being the transfer of undivided share from Cherwel to Sadiq. Entry No. 11 was the transfer from Cherwel. 58. PW - 1 referred to his Plaint (page 60), Paragraph 10, on particulars of fraud against the 2nd Defendant. For him, the fraud lay in the fact that the Defendant had been aware of the court orders prohibiting him, and also in the entry of restriction in the green card, which was undated. He also referred to the consent order signed by the Attorney General (he read the consent). He stated that a stay order JUDGMENT: ELC CASE NO E008 OF 2021 Page 28 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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was valid until it was discharged (Attorney General’s bundle, page 29). To him, the consent referred to 2(a) and (b), which were the orders sought. Despite this order, the Tribunal had proceeded. He agreed that the orders did not affect the mandate of the Land Registrar. 59. PW - 1 concluded that the 1 st and 2nd Defendants had been fully aware of the history of the matter, and he did not agree that he had failed to prove fraud on the part of the Land Registrar. C. Cross examination of PW - 1 by Mr. Ngure Advocate. 60. PW - 1 testified that he referred to Paragraph 3 of his statement dated 6th December, 2021. He stated that Sadiq had bought the property from the listed persons, but they were not his witnesses, and he did not even know if they were alive. At Plaintiff’s Exhibit 9 (Pages 31–34) were the Tribunal proceedings in Land Dispute No. 44 of 2005, where his father was named as an objector. The first entry of the proceedings was dated 25 th October, 2005. At page 34, Paragraph 27Q (he read it out), he stated that one could fail to attend if one had been served, but in those proceedings there had been no service. The summons had not been sent. JUDGMENT: ELC CASE NO E008 OF 2021 Page 29 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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61. PW - 1 testified that the first entry of 25 th October, 2005, his father’s JR of 2006, and the consent order he had produced showed that the date of consent was 13th May, 2008, bearing a received stamp by the High Court dated 15th March, 2010, making a period of two years before the same was received. At pages 35 – 36 of his bundle was the judgment of the Msambweni Tribunal, dated 1 st September, 2009. He stated that the order in court had been after the Judgment, but the parties had been aware of Case No. 311 challenging the jurisdiction of the Tribunal. He agreed that the consent had been received after the judgment of the Tribunal. 62. He stated that he did not have proof of service of JR 311 and 500. At pages 49 to 54 was the ruling on the Originating Summons No. 34 of 2010. At page 53, Paragraph 3 (he read it out), he agreed that the Judge had said the 3rd to 6th Defendants could not have been parties in the JR proceedings. 63. Regarding JR 500/2009 (pages 55–56), he testified that at that time there had been no new title, and therefore nothing to enforce because there was no title. At Paragraph 3 of his Supplementary statement (he read it out), he had stated that they were in exclusive possession of the suit property. He referred to Exhibit Number 9, JUDGMENT: ELC CASE NO E008 OF 2021 Page 30 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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page 34, and the entry dated 6 th April, 2006 “Site Visit” (he read it out), which mentioned graves of relatives. He stated that if one looked at Paragraph 17Q, Mohamed Rajab had died but had not been buried on the premises. He agreed that this was only one person. The Tribunal had said that they found graves, and to him this was what they claimed—that they had found graves. He agreed that it was not possible for them to have been in exclusive possession and for others to have buried therein. 64. PW - 1 confirmed that his father had bought from third parties. Whether his father had conducted a historical search, he could not speak for him as he had not been present. He stated that he was aware of historical land injustices in Kenya, specifically in land pertaining to coastal communities. However, he did not think the present case was a historical injustice. In his view, there were people trying to obtain title despite numerous cases and orders. He referred to page 35, paragraph 6 of the Judgment (he read it out), which stated: “Basing … injustice follow place … procedure not followed.” D.Re - Examination of PW - 1 by Mr. Ndegwa Advocate. - JUDGMENT: ELC CASE NO E008 OF 2021 Page 31 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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65. PW - 1 informed Court that JR 311/2006 had been directed to the Tribunal. He stated that the Attorney General had represented both the Land Registrar, Kwale and the Chief Land Registrar. The Attorney General must have received the documents from the Land Registrar, Kwale. On the proof of service of the orders upon the Land Registrar, he stated that the Attorney General had obtained his documents from the Land Registrar, and it was obvious that the Land Registrar had received the documents from them when they had served them. 66. Regarding the Green Card and the original title, he stated that his title had been issued after land adjudication exercise. Before his father’s title, there had been others dated 15 th November, 1974 (of five other people). Entry No. 6 was the new title, showing Eugene and Sadiq as the allottees. At page 33 of the Attorney General’s bundle was an order in Application 500/2009, being a certificate to quash the Tribunal order. At pages 28–32 of the Attorney General’s bundle was a note of application in JR 311/2005. He stated that the Attorney General could not turn around and claim he was unaware of the document or proceedings, as they had all the documents. JUDGMENT: ELC CASE NO E008 OF 2021 Page 32 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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67. On the ground statements recorded by the Tribunal, he testified that he did not agree with the content. In JR 500/2009, at page 52, he referred to paragraph 3 of page 53 (“it is obvious … public body”), and stated that their purpose had been to quash the proceedings. At page 50, the Judge at paragraph 2 had noted that the defendants had made submissions. He stated that the 3 rd – 6th defendants had been represented by Wambo in Originating Summons No. 34 of 2010. He testified that the application regarding this ruling had sought orders to dismiss the Plaintiff’s suit for abuse of process because there had already been two suits being JR 311 and JR 500. On historical injustices, he stated that this was not a case of the same. He explained that there had been many cases of fraud in Kwale. As result, many people feared purchasing land there. 68. PW - 1 referred to pages 33–34 of the Attorney General’s bundle, which contained an order in JR 500/2009. Order No. 4 was leave to operate as a stay (he read it out). It was dated 23 rd October, 2009. He stated that the order at the Kwale Principal Magistrate’s Court had been dated 2nd November, 2009 (pages 8 – 9 of the Attorney General’s bundle). The stay had come first. These documents had been produced by the Attorney General. He testified that they were JUDGMENT: ELC CASE NO E008 OF 2021 Page 33 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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in possession of the land. He stated that he always visited regularly, and that they had a person on the ground who informed them what was happening. He mentioned Mr. Mwangi, Mansour, himself and a lady who looked after the property. 69. On 9th April, 2024, the Learned Counsel for the Plaintiff, Mr. Ndegwa marked his case closed. V. The case of the 1st and 2nd Defendants 70. As indicated, upon service, the 1st and 2nd Defendants responded to the Plaint through fling of a Defence and Counter - Claim where they stated as folows:a. Save for what was expressly admitted, the 1 st and 2nd Defendants denied each and every allegation contained in the Plaint as if the it had been set out therein verbatim and traversed seriatim. b. The 1st and 2nd Defendants admitted the contents of Paragraphs 1, 2, 3, and 4 of the Plaint in so far as they related to the description of the parties and their addresses, but added that their proper address for service was through the Honourable Attorney General’s Chambers in Mombasa. JUDGMENT: ELC CASE NO E008 OF 2021 Page 34 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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c. The averments under Paragraph 5 of the Plaint were denied and the Plaintiffs were put to strict proof of it. d. The 1st and 2nd Defendants had denied the allegations of fraud and the averments under the contents of Paragraphs 6 and 7 of the Plaint, and the Plaintiffs were put to strict proof thereof. e. The averments in Paragraph 8 of the Plaint were denied in toto. The allegations in Paragraph 8 (a) to (g) were denied and the Plaintiffs were put to strict proof of the same. f. The 1st and 2nd Defendants had denied the averments in Paragraph 9 of the Plaint and the Plaintiffs were put to strict proof thereof. g. The averments in Paragraph 10 of the Plaint were denied. Further, the particulars of fraud on the part of the Defendants as enumerated in Paragraph 10 (a) to (d) were denied in toto and the Plaintiffs were put to strict proof. h. Paragraph 11 of the Plaint was denied and the Plaintiffs were put to strict proof of the same. i. The 1st and 2nd Defendants had averred that the mandatory Notice of Intention to sue the government prior to the institution of the suit herein had not been served upon the JUDGMENT: ELC CASE NO E008 OF 2021 Page 35 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Attorney General. Hence, the suit was fatally and incurably defective and did not lie against the 1 st and 2nd Defendants. The 1st and 2nd Defendants had accordingly raised a Preliminary Objection and urged this Honourable Court to strike out the suit against them. j. The cause of action had arisen within the jurisdiction of this Honourable Court. k. The 1st and 2nd Defendants had not been aware of any other existing suit filed against them by the Plaintiffs with regard to the same matter as at that time. l. For the foregoing reasons, the 1 st and 2nd Defendants had stated that the reliefs sought by the Plaintiffs were neither available nor merited. 71. The 1st and 2nd Defendants had prayed that the Plaintiffs’ suit be dismissed as against them with costs. 72. Prior to the commencement of the case, on 13 th March, 2025, the Learned Counsel on record for the 1st and 2nd Defendants made the following opening remarks. A. Opening remarks by Mr. Wagah Advocate. JUDGMENT: ELC CASE NO E008 OF 2021 Page 36 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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73. The Learned Counsel commenced by informing the Court on the main substratum of the case. According to him, basically this was a matter of competing titles to the suit land by both the Plaintiffs and the Defendants. On the one hand, the Plaintiffs were claiming ownership to the suit property. Whist on the other hand, the Defendants were also claiming it. 74. As far as he was concerned, his dilemma (read acting on behalf of the 1st and 2nd Defendants – the Government) was that each party apparently had a good, Hence, it was incumbent for their witness should shade light to that. That would be their role in this case. 75. The 2nd Defendant testified on 11th June, 2025 where he stated that:B. Examination in Chief of DW – 1 by Mr. Wagah Advocate. 76. DW - 1 was sworn and testified in the English language. He was called NICHOLAS SANYA. He informed the Court that he had been the Deputy Land Adjudication and Settlement Officer (DLASO), Kwale, since the year 2013. He was a holder of a Bachelor of Science Degree in Land Survey from Jomo Kenyatta University (JKUAT). He had worked for ten ( 10) years. He averred that he had been served with the Witness Summons by Court and that was why he was there. He produced JUDGMENT: ELC CASE NO E008 OF 2021 the Demarcation Page 37 of 180 Register for Galu Kinondo HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Adjudication Section prepared between the years 1976 and 1978. With regard to the suit property, he stated that he had the extract of the relevant page. He testified that , from the records, property number 665 was owned by five (5) people, namely: a. Andrea Wairagu. b. Rahab Mweru. c. Cyrus Waruthingo. d. Afaxisad Mahindu. e. Elias Mukundi. 77. DW - 1 was referred to the list of documents by the 1 st Defendant dated 22nd September, 2022 – page 41 – entitled “Adjudication Record.” He explained that this was not in their record but, in the normal course of adjudication, it ought to have been on record. He stated that it meant it was for the formal issuance of title and that it was the names of those five ( 5 ) individuals that ought to have been considered. 78. DW - 1 testified that he had seen the cancellations of the names of Juma Mboga Mwakiyagwa and Rajabu Sandiru Ndaragunya on the adjudication records. According to him, what would have led to the cancellation of the names from the record was an objection raised JUDGMENT: ELC CASE NO E008 OF 2021 Page 38 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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by objectors. It was after that the cancellation would be done to reflect the new owner. In this case, he stated, the proper owners would have been the five ( 5 ) listed in the extract. The list was produced as DW–1 Exhibit 1 – Extract. He concluded by stating that they did not have the Adjudication Record on file. C. Cross examination of DW - 1 by Mr. Amondi Advocate. 79. DW - 1 confirmed that he had received an order (read Summons) of court to appear in Court to testify and produce documents, specifically the Adjudication Record showing cancellation/crossing of the names. It was his testimony that as the Deputy Registrar of the Adjudication and Settlement Office, he did not have the Adjudication Record. He stated that such records did not exist in their offices. Instead, they were kept in the offices of DLASO. 80. DW - 1 confirmed that the basis of cancellation had been the record itself and the circumstances under which the cancellation appeared. He acknowledged that it was true he had been directed to bring to court the objection proceedings for Galu Kinondo. However, he explained that he could not do so as they never had those proceedings in the office. He stated that he had only produced what had been available. JUDGMENT: ELC CASE NO E008 OF 2021 Page 39 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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D.Cross examination of DW - 1 by Mr. Ndegwa Advocate. 81. DW - 1 stated that what he had produced was the final document. Indeed, that was what they had in the office. He testified that the document was a culmination of what had happened, namely the objection proceedings under Part 14 of the Record. He explained that should anyone have had any grievance, they would have been entitled to prefer an appeal before the Minister as was provided for under the provision of Section 29 of the Land Adjudication Act. But no such appeal was made. 82. DW - 1 added that in a case such as this one, there must have been an objection heard and a decision arrived at, as referred to on Page 2 – part 14 of the Record. Normally, the adjudication showed the names of the first allottees. There must have been an objection, and after the case was heard and a determination made, those names of the original allottees were cancelled/crossed (hence removed) and new ones entered as stated under Part 14 of the Record. He confirmed that the names had been changed as requested by the objections and that the record was signed. He referred to objection No. 35 of 7/8/1974, which had been submitted by Juma Mboga. E. Re - examination of DW - 1 by Mr. Wagah Advocate. JUDGMENT: ELC CASE NO E008 OF 2021 Page 40 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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83. The witness stated that the only document he had on record was the Demarcation Register. The Court observed that the Act 284 was a very meticulous statement from objection made under Section 26 to 29 of the Act. The witness explained that the documents on objection in respect of the Galu Kinondo adjudication section, may have been destroyed by rodents and, due to the movement of offices, they may have been destroyed or mutilated. 84. The 1st and 2nd Defendant called DW - 2 who testified that:A. Examination in Chief of DW - 2 by Mr. Wagah Advocate. 85. DW - 2 was sworn and she testified in English language. She was called SUSAN MWENI MWANZAWA. She was a Land Registrar, Kwale. She had been there for three years. She had served in the same capacity and as a Civil Servant for ten (10) years. She testified that she had been in court in relation to the suit property Galu/Kinondo/665. She produced the list of documents dated 22 nd September, 2022 as her evidence. According to her record (being the Parcel File), she stated that the owners of Galu/Kinondo/665 were: (a) Abdallah Said Kugotwa. (b) Mohamed Rajab Mboga. JUDGMENT: ELC CASE NO E008 OF 2021 Page 41 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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(c) Omar Juma Mboga. (d) Juma Mwinyi Mbata. 86. DW - 2 confirmed that, as per the Green card, there had been a court order in PMCC No. 34 of 2009 issued on 2 nd November, 2009 directing that they be registered as the owners (page 8). She explained that the order was to be read together with the court order of 5th May, 2015 (page 15), since the first one had not reflected the parcel number and the latter was a review. She referred to the two court orders and to the adjudication record – original – but clarified that the documents did not emanate from their office. 87. DW - 2 testified that she had been in possession of the adjudication record, which had been forwarded to the Land Registrar as part of the parcel file by the Director of Land Adjudication and Settlement Office. She added that the same applied to the Land Adjudication objection proceedings. She explained that they never conduct the disputes themselves but only received the records. B. Cross examination of DW - 2 by Mr. Amondi Advocate. 88. The witness stated that she had not known the composition of the Land Dispute Tribunal. JUDGMENT: ELC CASE NO E008 OF 2021 She Page 42 of 180 testified that the order of the HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Msambweni Dispute Tribunal had been adopted by the court. She explained that if one had to trace the record of the land, one would have to go to the adjudication record. She added that if one had looked at the adjudication record, one would have seen the cancellation/crossing of names from the record of those who had supposedly been cancelled/crossed. She stated that he would not have known what had led to the cancellation, as that had been the responsibility of the Director of Land Adjudication and Settlement Office. 89. DW - 2 was referred to Plaintiff Witness 1, who had testified that his father had purchased the land in the year 2011 and was she pointed to pages 5 and 15 of the Defendants’ documents. She referred to the proceedings of the Msambweni Land Dispute Tribunal in year 2005. From the extract of the green card, she testified that it had shown the purchases of the land before it had been cancelled by the court (referring to the court orders). She confirmed that having been aware of the cases that had been filed and that one of the issues raised had been the capacity of the Tribunal to cancel the title. 90. DW - 2 testified that his office had been served with Judicial Review No. 500/2009, being a Chamber Summons application for leave for JUDGMENT: ELC CASE NO E008 OF 2021 Page 43 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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judicial review. From his record, there had been no substantive motion; they had only had the orders. He stated that they had had the final orders served upon them before they had issued the title in the year 2015. He referred to the Green card and explained that it had not reflected the order of Judicial Review No. 500/2009; the order should have been booked officially in the presentation book. She concluded by noting that, according to entry No. 3 dated 14/3/2019, there had been a restriction by Ghalia Advocate restricting any dealing without their consent. 91. The hearing was adjourned to 28 th March, 2025 for further cross examination of DW - 2. C. Cross Examination of DW - 2 by Mr. Ndegwa Advocate. 92. The witness referred to the documents on page 15 filed by the Attorney General. It was an order by Hon. P.K. Mutai dated 5 th May, 2015. She explained that the Land Disputes Tribunal Act had been repealed in the year 2011. She testified that the order by court had been made on 5th May, 2015. She added that the first group of Magistrates to hear Environment and Land matters had been appointed on 11th March, 2015 through Gazette Notice No. 1472, but JUDGMENT: ELC CASE NO E008 OF 2021 Page 44 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Hon. P.K. Mutai, Resident Magistrate, had not been among those appointed. 93. DW - 2 stated that the documents filed comprised: a. The Register. b. The Parcel file containing the instruments in the Register. 94. DW - 2 was referred to the Register, pointing to documents on pages 1 to 2 filed by the Attorney General. It was the Green card opened on 15th November, 1974 with three ( 3 ) entries. On page 3, he noted another Green card opened on 15th November, 1974 with twelve ( 12 ) entries. In essence, there had been two ( 2 ) registers: the first register with entries numbers 1 to 3, and the second register with entries numbers 1 to 12. He referred to the Land Adjudication Record dated 24th May, 1974, which had listed: a) Andrea Wairugu. b) Rahab Mweru. c) Elias Mukundi. d) Afaxiad Mahindu. 95. DW - 2 explained that other names had been cancelled, namely:a. Juma Mboga Mwakinyu. b. Rajabu Salim Ndaragu. JUDGMENT: ELC CASE NO E008 OF 2021 Page 45 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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96. DW - 2 testified that the first register had contained the names of those not cancelled from the adjudication record as entry 2. He noted that entry no. 1 had only factored two ( 2 ) names of the allottees, while entries numbers 2, 3, 4, and 5 had made changes to their names by inserting their full names as they appeared in their national identity cards. She was referred to Page 21, which had been an application to correct the names of the allottees, and page 23, which had been an application to the Land Control Board for the change of names. Page 24 had been an application dated 21 st May, 1977 to the LCB for change of names. She explained that this had led to changes in the Register and eventually a Letter of Consent dated 25th August, 1977 (page 22) for correction of names. 97. DW - 2 testified that Entries Numbers 6 and 7 indicated issuance of land certificate to the five registered proprietors after they had changed their names. Entries Numbers 6, 7, and 8 had all been dated 24th September, 1977 and had been cancelled as they already existed. These entries had given title deeds to the five registered proprietors of the land. She was referred to Entry Numbers 9 dated 20th September, 1979, which had transferred the land to Eugene Japhett Charnellia and Sadiq Ghalia. He pointed to page 35, which JUDGMENT: ELC CASE NO E008 OF 2021 Page 46 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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had been the transfer instrument from the four (4) proprietors to Julius Joseph Charnell and Sadiq Ghalia on 20 th September, 1979. Entry Number 10 dated 20th September, 1979 had been a land certificate. Entry 11 dated 27th May, 1985 had been a transfer to Sadiq Ghalia on sole payment. He referred to page 37 – a transfer of undivided share from Sugare Joseph to Sadiq Ghalia. 98. DW - 2 was referred to page 11 of the Attorney General’s documents. It was a copy of the Certificate of Title issued on 29 th May,1980 to Sadiq Ghalia. Entry Numbers 12 dated 29 th May, 1980 had been a restriction: registered for no dealing until ownership dispute was resolved, vide a letter dated 6 th April, 2004 from Mohamed Rajab Maji and Ali Juma Mboga. He confirmed that the register had been certified as a true copy signed by the Land Registrar, Kwale. He testified that from Entry Number 12 there had been no other entry. Thus, according to the register of 27 th May, 1980, Sadiq Ghalia had been the last registered owner of the suit property. He emphasized that from this particular Green card there had been no entry cancelling and/or revoking the title registered and held by Sadiq Ghalia. JUDGMENT: ELC CASE NO E008 OF 2021 Page 47 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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99. DW - 2 stated that the register had not contained entries for Abdallah Said Kugotwa, Mohamed Rajab Mbwata, Omar Juma Mboga, or Juma Mwinyi Mbata – the 3rd, 4th, and 5th Defendants herein. He referred to the second register (page 2 of the Attorney General’s documents) which had been opened pursuant to Land Case No. 34 of 2009 dated 5 th May, 2015. She confirmed that none of the two ( 2 ) court orders (pages 8 and 15) had directed the Land Registrar to revoke or alter the first register of 1974. He testified that entry 1 of the second register had listed the following:a. Abdallah Said. b. Mohamed Rajab. c. Omar Juma Mbo.ga d. Juma Mwinyi Mbata. 100. DW - 2 explained that this entry should have been supported by a Court order and succession documents, since Juma Mboga and Mohamed Rajab Mbwata were deceased heirs and not original allottees. She emphasized that the card had been opened on 15 th November, 1974 which was pursuant to a court order of 5 th May, 2015. She stated that since the original green card had not been lost, there had been no need to open a new one without a JUDGMENT: ELC CASE NO E008 OF 2021 Page 48 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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published Gazette Notice, indemnity Deed, or police abstract. He confirmed that in their parcel file there had been no instrument expunging the first register, no application by Sadiq Ghalia to rectify the register, and no order for rectification or amendment. She added that the second register had not borne a stamp of true and certified copies. 101. In her conclusion, she testified that the 2nd register contained numerous discrepancies, anomalies and irregularities. Accordingly, based on the first register, Sadiq Ghalia had remained the last lawful and absolute registered owner of the suit property. D.Re - examination of DW - 2 by Mr. Wagah Advocate. 102. The witness confirmed that the Msambweni Land Dispute Tribunal had been Land Dispute No. 44 of 2005. She was referred to page 8 of the record. It was the court order from Land Case No. 34 of 2009 – which had stated that the title held by Sadiq Ghalia be immediately revoked and cancelled and a new title deed issued in the names of the four persons. She was further referred to page 55 of the court order from Judicial Review No. 500 of 2009, and to the actual order on page 56 dated 9th September, 2010. DW - 2 explained the ramifications of the court order as follows: JUDGMENT: ELC CASE NO E008 OF 2021 Page 49 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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a. Order 1 had quashed the order of the Land Disputes Tribunal. b. Order 2 had prohibited the registration of the orders by the District Registrar, including the order by Hon. P.K. Mutai, Resident Magistrate (page 15). 103. DW - 2 testified that the second register had been based on this order. She was referred to Gazette Notice No. 1472, which had shown the names of the Magistrates who could handle Environment and Land Court matters. Based on the orders and the Gazette Notice, she stated that Hon. P.K. Mutai, Resident Magistrate, Kwale, had not had jurisdiction to deal with ELC matters. She concluded by stating that the current registered owners of the suit property were the four ( 4 ) proprietors. 104. The 1st and 2nd Defendant marked their case closed on 28 th March, 2025 through his counsel Mr. Wagah Advocate. VI. The 3rd Defendant’s case 105. The 3rd Defendants contested the contents of the Plaint through an Amended Statement of Defence and stated that: a. Save as expressly admitted therein, the 3 rd, 4th, 5th, and 6th Defendants had joined issue with the Plaintiffs and had denied each and every allegation contained in the Plaint against them JUDGMENT: ELC CASE NO E008 OF 2021 Page 50 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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as if the same had been specifically set out therein and traversed seriatim. b. The 3rd, 4th, 5th, and 6th Defendants admitted the contents of Paragraphs 1, 2, 3, and 4 of the Plaint in so far as they were descriptive of the parties. c. The 3rd, 4th, 5th, and 6th Defendants denied the contents of Paragraph 5 of the Plaint and had put the Plaintiffs to strict proof thereof, to the effect that at all material times the deceased had been the registered owner of the suit property which they averred was ancestral land wherein they had lived quietly and exclusively since childhood together with other family members. d. The 3rd, 4th, 5th, and 6th Defendants denied the contents of Paragraph 6 of the Plaint and had put the Plaintiffs to strict proof thereof, contending that the 1st and 2nd Defendants had not fraudulently colluded with them. They averred that the Msambweni Land Disputes Tribunal and the Honourable Court at Kwale in Land Case No. 34 of 2009 had adjudged that the suit property revert to them as heirs and beneficiaries of the late Rajab Salim Mwadarangunya and Juma Mboga Mwakuyugwa, and had directed the District Land Registrar, Kwale, to revoke JUDGMENT: ELC CASE NO E008 OF 2021 Page 51 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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and cancel the title deed held by Sadiq Ghalia and issue a new title deed in their favour. e. The 3rd, 4th, 5th, and 6th Defendants denied the contents of Paragraph 7 of the Plaint and had put the Plaintiffs to strict proof thereof. f. The 3rd, 4th, 5th, and 6th Defendants denied the contents of Paragraph 8 (a) and 8 (b) of the Plaint, averring that they had not been unsuccessful in their claims, and had put the Plaintiffs to strict proof thereof. g. The 3rd, 4th, 5th, and 6th Defendants denied the contents of paragraph 8(c), (d), (e), (f), and (g) of the Plaint, averring that they had not been parties to High Court of Kenya at Mombasa Miscellaneous Civil Application No. 500 of 2009 and Civil Suit No. 34 of 2010 (O.S). h. Further and without prejudice, the 3rd – 6th Defendants averred that they had been total strangers to those suits and that it had only come to their knowledge in the year 2019 when they had been summoned by the Land Registrar, Kwale, on grounds that Sadiq Ghalia had placed a restriction on the suit property JUDGMENT: ELC CASE NO E008 OF 2021 Page 52 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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purporting to rely on Judicial Review Orders in Miscellaneous Civil Application No. 500 of 2009. i. The 3rd – 6th Defendants further averred that no summons to enter appearance in Miscellaneous Civil Application No. 500 of 2009 had ever been served upon them, and they had put the Plaintiffs to strict proof thereof. j. The 3rd – 6th Defendants denied the contents of Paragraphs 9 and 10 of the Plaint and had put the Plaintiffs to strict proof thereof, contending that the 1 st and 2nd Defendants had had lawful justification for issuing a title deed in their favour. k. The 3rd – 6th Defendants denied the contents of Paragraph 11 of the Plaint and had put the Plaintiffs to strict proof thereof. l. Without prejudice, the 3rd – 6th Defendants averred that the suit property had been their home and that of their forefathers since childhood, and that they had practiced fishing thereon as rightful heirs and beneficiaries of the estates of the late Rajab Salim Mwadarangunya and Juma Mboga Mwakuyugwa. m. The 3rd – 6th Defendants vehemently denied having involved themselves in any transaction relating to disposal of the suit property and had put the Plaintiffs to strict proof thereof. JUDGMENT: ELC CASE NO E008 OF 2021 Page 53 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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n. The 3rd – 6th Defendants further averred that the Plaintiffs’ claim had been marred with gross fraud, irregularities, and illegalities, and had put the Plaintiffs to strict proof thereof. The jurisdiction of the Court had been admitted. o. The 3rd – 6th Defendants admitted the contents of paragraph 13 of the Plaint to the extent that there had been no other suit pending except in the High Court of Kenya at Mombasa (Miscellaneous Civil Application No. 500 of 2009 and Civil Suit No. 34 of 2010 (O.S)), together with the previous matters in Land Dispute Tribunal No. 44 of 2005 and Kwale Court Case No. 34 of 2009. p. In the premises, and by reason of the Amended Statement of Defence, the 3rd – 6th Defendants had contended that the prayers sought by the Plaintiffs had been baseless and ought to have been dismissed in their entirety with costs. 106. The 3rd, 4th, 5th and 6th Defendants had prayed that the Plaintiffs’ suit be dismissed with costs. 107. The 3rd Defendant’s called their 1st witness on 10th February, 2025 wherein the witness testified as below but before that the Counsel for the Defendant had the following opening remarks: - JUDGMENT: ELC CASE NO E008 OF 2021 Page 54 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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A. Opening remarks by Mr. Amondi Advocate. 108. The Learned Counsel made his opening remarks in support of the case for the 3rd Defendant. He stated that the Court was to determine the decision of the Msambweni Land Dispute Tribunal on Kwale/Galu/Kinondo/665. According to him, the decision by the Land Dispute Tribunal had been proper. He submitted that the two Judicial Review matters, JR No. 111 of 2006 and JR No. 500 of 2009, had been hopeless in terms of interfering with the decision of the Land Registrar, Kwale, to issue the title in the names of the 3 rd, 4th, 5th, and 6th Defendants. He further stated that the suit, Originating Summons Mombasa No. 34 of 2010, had been a suit that ought to have been filed in the first place. It was necessary. 109. Accordingly, he contended that the Defendants had been entitled to the title issued by the Land Registrar. B. Examination in Chief of 3rd Defendant’s Witness by Mr. Amondi Advocate. 110. DW - 3 was sworn and testified in Kiswahili language. He was called JUMA MWINYI MBATA, a citizen of Kenya and holder of the national identity card bearing all the particulars as shown to Court. He confirmed that he had sworn a supplementary witness statement JUDGMENT: ELC CASE NO E008 OF 2021 Page 55 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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filed on 1st June, 2023, a list of documents had also filed on 2 nd June, 2023. On 22nd July, 2022, they had filed seven ( 7 ) documents, marked as Defendant Exhibit Numbers 10, 11, 12, 13, 14, 15, and 16, which were produced. The witness referred to Plaintiff Exhibit Number 13, being the Judgment in Mombasa Civil Suit No. 34 of 2010 and the order of issued on 9 th September, 2010 by Justice Ojwang in Judicial Review No. 500 of 2009. He stated that the 3rd Defendants had never been involved in that matter. He had never participated in the proceedings. He emphasized that the four ( 4 ) of them had never been joined as parties. 111. DW - 3 testified that the Tribunal decision had been delivered on 1 st September, 2009, while the order of the High Court to stop the Tribunal had been issued on 24 th September, 2010; hence, it had not been possible for the order to have stopped the Tribunal proceedings. He referred to the consent dated 13 th May, 2008 (Plaintiff Exhibit Number 10), which had been filed on 15 th March, 2010, and which had been prepared by Advocate Mr. Stephen Odiagga. He explained that the said consent had been filed erroneously, as Mr. Stephen Odiaga had been acting for the Interested Person on 13th May, 2008, but the consent had been JUDGMENT: ELC CASE NO E008 OF 2021 Page 56 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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filed in court on 15th March, 2010, long after the Tribunal had delivered its decision. 112. DW - 3 testified that they had gone to Advocate Stephen Odiaga, who had informed them that he could not conduct a civil case against Mr. Ghalia Advocate because Mr. Ghalia had been the Chairman of the Mombasa Law Society. He stated that the opinion given for Saleem Ghalia had not been correct, as the Tribunal had already made its decision. He explained that from the orders and consents, there had been no proof that the Msambweni Tribunal had been served, as they had never been given a copy. Ordinarily, they would have been entitled to receive all documents. He testified that they had filed Case No. 34 of 2010 because they had wanted to rectify the order by including the number of people to be reflected in it. 113. He concluded that the Court had authorized and directed that the number of people be included, and that the title had subsequently been used in the year 2015. C. Cross examination of 3rd Defendant - 1 by Mr. Wagah Advocate. JUDGMENT: ELC CASE NO E008 OF 2021 Page 57 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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114. The 3rd DW - 1 testified that initially as the first allottees, the land had been given to two people, Raqim Saleem Nsharaganye and Juma Omar Mboga in the year 1974. They had gone to the Land Registrar and had found those names. However, he testified that they had been surprised and had then gone to the Department of Lands Adjudication and Settlement, where they had found five names listed, namely: Andrea Wairagu, Rahab Mweru, Cyrus Waruthigo, Elias Mukundi, and Afaxxide Mohinda, which had replaced the names of the two original allottees. They had decided to file a case before the Msambweni Land Dispute Tribunal. The parties had been summoned but had never appeared, and hence the Tribunal had decided that the land belonged to them. 115. After the Tribunal’s decision, they had gone to the Kwale Court so that they could obtain the title deed. They had received the title order, but when they had presented it, it had been found that the order had not properly reflected the title number. They had then had the error corrected. They testified that the land had been theirs and had not belonged to Saleem Ghalia. 116. 3rd DW - 1 further stated that Juma Mboga Mwakuyuga and Rajab Salim Ndaragunya had been the joint allottees, as they had been JUDGMENT: ELC CASE NO E008 OF 2021 Page 58 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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the initial residents of the area. They had lived there and had practised fishing as their means of livelihood. D.Cross examination of 3rd Defendant - 3 by Mr. Ndegwa Advocate:117. 3rd DW - 1 was referred to his witness statement, Paragraph 4, where he had stated that from childhood the extended family had lived on the suit land which was adjacent to the beach. He testified that his ID had shown he had been born at Lamu West, but explained that this had been a typographical error. He stated that he had had no document to prove that the error on the ID had been rectified. He confirmed that it had been his third ID card, but he had not had the other two ID cards in court. He stated that he had not had a letter from the locational chief to prove where he had been born, but he had produced a certificate of birth in court. 118. On the relationship with the two people who had been allocated the land, he was referred to paragraph 3. He testified that Rajab Salim Mdaranganye had been his uncle, the elder brother to his father. That Juma Mboga Mwakunagwa had also been his uncle. He admitted that he had had no documents to prove that they had been his uncles and no documents of authenticity to represent the JUDGMENT: ELC CASE NO E008 OF 2021 Page 59 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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two. He testified that he had not lived on the suit land and that his family had not lived there either. The last time he had passed by, the land had been bushy. He explained that for the time being the land had been vacant and not occupied. 119. The 3rd DW - 1 referred to Paragraph 5, stating that in the year 1974 they had discovered that the land had been allocated to three people and not two. He referred to paragraph 26, noting that the title deed had been issued on 29th May, 1980 to Sadiq Ghalia. He admitted that he had not had an order from the ELC Court cancelling the title, but only one from the lower court at Kwale, and that he had not known of the issue at the time. He explained that before the ELC had been established in the year 2012, there had been no order from the High Court. 120. He referred to the bundle by the 3 rd to 6th Defendants, Paragraphs 50 to 51, and the Defendant’s record dated 21st May, 1974. For the land Kwale/Galu/Kinondo/665, he stated that under paragraph 14 the names had been changed as requested by the objectors. He disowned the document as being his own. He testified that he had seen documents bearing the official stamp certifying them as true copies of the original dated 8 th September, 2004. He stated that it JUDGMENT: ELC CASE NO E008 OF 2021 Page 60 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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had not been clear whether they had been signed by the Director of Land Adjudication Officer. He confirmed that the document had been certified as a true copy on 8 th September, 2004, i.e., twenty years earlier. 121. The 3rd Defendant - DW - 1 referred to the bundle of documents dated 22nd July, 2022 and he also referred to a bill dated 3 rd March, 2021 for transfer fees for plot No. 665, showing Abdalla Kugotwa and others by Sadiq Ghalia, where a sum of Kenya Shillings Five Thousand (Kshs. 5,000/=) had been paid as fees/rates. He testified that he had not had such documents as a sale agreement or transfer. He explained that in 2015, when they had obtained the order, he had not known that Sadiq Ghalia had died in the year 2011, and he disowned the document. 122. The 3rd Defendant - DW - 1 stated that Mr. Oddiaga Advocate had not been their advocate. They had gone to him to represent them, but he had declined, indicating that Ghalia Advocate had been his boss, the Chairman of the Mombasa Law Society, and hence they had never used him. E. Re - examination of the 3rd Defendant - DW - 1 by Mr. Amondi Advocate. JUDGMENT: ELC CASE NO E008 OF 2021 Page 61 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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123. The witness testified that from birth he had lived at Mwabumbo. He stressed that he had been born there. He stated that he had obtained his first ID at Kwale. The second one thereafter, and the third one from the Huduma Centre, which had contained an error. He explained that the first people to have been allocated the land had been his uncles, and that altogether they had been over one hundred family members, hence the land had been ancestral. He referred to the decision of the Tribunal and confirmed that he had been involved and that his name had been included. 124. The 3rd Defendant – DW -1 testified that there had been two who had been the first registered owners. He stated that there had been no order cancelling the ownership of the two persons. He emphasized that there had been no proof of sale of the land to the five persons. He was referred to the Defendants’ record, which had shown that the owners of the land had given the land to the five persons, who had claimed to have bought the share from the two. 125. He was referred to the transfer fees dated 3 rd March, 2021, noting that by then the title deed had already been issued. He explained that the person who had held the title had paid some amount to JUDGMENT: ELC CASE NO E008 OF 2021 Page 62 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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the County Council, and that the document had been intended to assist in paying the rates. 126. The 3rd Defendant closed their case through their counsel on record Mr. Amondi Advocate on 10th February, 2025. VII. Submissions 127. On 8th October, 2025, immediately after the closure of the Plaintiffs’ and the Defendants case, the Honorable Court directed the Plaint and the Counter - Claim be canvassed through written submissions. Parties complied. 128. Pursuant to which the Honorable Court reserved a date for delivery of Judgement on notice accordingly. Eventually, it was delivered on 23rd September, 2026. A. The Written submissions by the 1st, 2nd & 3rd Plaintiffs 129. The 1st, 2nd & 3rd Plaintiffs through the Law firm of Messrs. Ndegwa & Sitonik Advocates filed their written submissions dated 30 th September, 2025. Dr. Ndegwa Advocate commenced his submissions by providing the Court with a brief background of the case. He stated that this was one more case of Defendants fraudulently depriving the Plaintiffs off their registered ownership by abusing the Court process and attempting to tamper with the JUDGMENT: ELC CASE NO E008 OF 2021 Page 63 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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records at the land registry/office. They were marred with fraud. These were the particulars of fraud pleaded under in Paragraph 10 of the Plaint. According to the Counsel, the evidence showed that the Defendants purporting to implement Court orders unlawfully and irregularly opened a new Green card and registered the 3 rd to 6th Defendants as registered owners. This was despite full knowledge that the original register was not lost or damaged, and that the preconditional loss or damage of the register had not been gazetted. In addition, the Defendants were also fully aware that the Tribunal and the Magistrates Court did not have requisite jurisdiction to issue the purported orders revoking or cancelling title, registered ownership, or otherwise tamper with the records at the Land Registry. 130. The Defendants abused the Court process to commit the fraudulent acts. Luckily, the purported Court orders were nullified on time and miraculously, the fraudsters somehow failed to make an entry revoking or cancelling the registered ownership or title of the Plaintiff. Consequently, the registered ownership of the Plaintiff remained intact. The purported award of the Tribunal, orders from the Magistrate Court, and card opened on 5 th May, 2015 pursuant to JUDGMENT: ELC CASE NO E008 OF 2021 Page 64 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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the said orders were a nullity. They had no effect on the registered ownership of the Plaintiff or the original title which the Plaintiff still held to date. 131. They urged the Court to declare that the Plaintiff remains the true owner of the property, cancel the purported second card opened vide Magistrate Court order dated 5 th May, 2015 issue an order restraining the Defendants from interfering with the Plaintiffs' title, use or possession of the suit property since these rights are protected under the provision of Article 40 of the Constitution and Section 26 of the Land Registration Act, No. 3 of 2012. The Plaintiffs relied on the following documents dated 6 th December, 2021 from pages 1 – 75:a. Plaint and verifying affidavit dated 6th December, 2021. b. Plaintiff's list of witnesses dated 6th December, 2021. c. Plaintiff's list of documents dated 6th December, 2021. d. Plaintiff's bundle of documents dated 6th December, 2021. e. Reply to Amended Statement of Defence of the 3 rd - 6th Defendants dated 21st September, 2023. f. Plaintiffs’ supplementary list of documents dated 18 th October, 2023. JUDGMENT: ELC CASE NO E008 OF 2021 Page 65 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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g. Plaintiffs’ supplementary list of documents dated 3 rd April, 2024. 132. On the sequence of events the Learned Counsel submitted that: i) On 21st May, 1974, the Land Adjudication Office had issued an adjudication record listing Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi, and Afaxisad Mahindu as the proprietors. See page 41, document No. 15 of the Attorney General’s documents. The document had also been listed as document No. 4 in the 3rd – 6th Defendants’ Supplementary List of Documents dated 1st June, 2023. ii) On 15th November, 1974, the Land Registry, Kwale, had opened the register for the suit property. See pages 1–2 of the 1 st and 2nd Defendants’ list of documents dated 22nd September, 2022. iii) On 23rd August, 1977, Andrew Wairagu had applied to correct his name to Wairagu Mukere. See page 23 of the Attorney General’s documents. iv) On 25th August, 1977, the Land Control Board had given consent to Andrew Wairagu to correct his name to Wairagu S/o Mukere. See page 23 of the Attorney General’s documents dated 22nd September, 2022. JUDGMENT: ELC CASE NO E008 OF 2021 Page 66 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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v) On 20th September 1979, Cyrus Waruthingo Kirugumi, Mahendo Kiringu, Wairagu Mukere, Nyi Mukundi Ngarari, and Rahab Mweru had transferred the land to Eugene Joseph Charnell and Sadiq Ghalia. See transfer at pages 24–25 of the Plaintiffs’ documents dated 6th September, 2021 and pages 36–37 of the Attorney General’s documents dated 22nd September, 2022. vi) On 23rd May, 1980, Eugene Joseph Charnell had transferred his half share to Sadiq Ghalia. See transfer at pages 26–27 of the Plaintiffs’ documents dated 6th December, 2021 and page 38 of the Attorney General’s documents dated 22 nd September, 2022. vii) On 29th May, 1980, the Land Office had issued a land certificate to Sadiq Ghalia for the suit property. See pages 11–13 of the Plaintiffs’ documents dated 6th December, 2021. viii) On 3rd February, 2013, the Plaintiffs had obtained a grant of probate of the will of Sadiq Ghalia. See page 10 of the Plaintiffs’ documents filed on 6th December, 2021. ix) On 23rd May, 2006, Sadiq Ghalia had filed HCMisc No. 311 of 2006 seeking certiorari to quash proceedings in Msambweni Land Disputes Tribunal No. 44 of 2005. See JR application at JUDGMENT: ELC CASE NO E008 OF 2021 Page 67 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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pages 27–33 of the Attorney General’s documents dated 22 nd September, 2022. x) On 1st September, 2009, the 3rd – 6th Defendants had obtained an award from the Kwale Land Disputes Tribunal (Land Dispute No. 44 of 2005) directing that the Land Registrar revoke the title issued to Sadiq Ghalia and issue another to the 3 rd – 6th Respondents. xi) On 23rd October, 2009, the Plaintiffs had served the certiorari and prohibition issued in HC Misc Application No. 500 of 2009 upon the Land Registrar. See document No. 11 of the Attorney General’s documents. xii) On 2nd November, 2009, the 3rd – 6th Defendants had obtained an order from the Principal Magistrate, Kwale, to the effect that the land revert back to the claimants and that the Land Registrar revoke the title issued to Sadiq Ghalia and issue a new title to the 3rd – 6th Respondents. See document No. 3 of the Attorney General’s documents dated 22 nd September, 2022. (The order had not shown the plot number of the land.) xiii) On 3rd February, 2010, the 3rd – 6th Plaintiffs had filed O.S No. 34 of 2010 in the High Court at Mombasa seeking to cancel the JUDGMENT: ELC CASE NO E008 OF 2021 Page 68 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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registration of Sadiq Ghalia as the registered owner and to register the 3rd –6th Defendants. See pages 43–48 of the Plaintiffs’ documents dated 6th December, 2021. xiv) On 9th September, 2010, the High Court had issued a Prerogative Writ - Certiorari quashing the award of the Msambweni Land Disputes Tribunal and had issued a prohibition prohibiting the Land Registrar from revoking or cancelling the title held by Sadiq Ghalia. See pages 55 – 56 of the Plaintiffs’ documents dated 6th December, 2021. xv) On 7th February, 2011, Sadiq Ghalia had died. See copy of grant of probate at page 10 of the Plaintiffs’ documents. xvi) On 1st September, 2014, the 3rd – 6th Defendants had applied to the Principal Magistrate’s Court in Kwale to vary the order issued on 2nd November, 2009 to include the parcel number of the land. See document No. 6 in the Attorney General’s list dated 22nd September, 2022. xvii) On 5th May, 2015, the 3rd – 6th Defendants had obtained an order from the Principal Magistrate in Kwale correcting the order issued on 2nd November, 2009 by including the parcel JUDGMENT: ELC CASE NO E008 OF 2021 Page 69 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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number. See pages 15–16 of the Attorney General’s list dated 22nd September, 2022. xviii) On 5th May, 2015, the Land Registrar, Kwale, had purported to open a second register vide court order in Land Case No. 34 of 2009. See page 3 of the Attorney General’s documents dated 22nd September, 2022. xix) On 7th August, 2015, the Land Registrar, Kwale, had issued a title deed to Abdallah Said Kugotwa, Mohamed Rajab Mbwata, Omar Juma, and Juma Mwinyi. See pages 28 – 29 of the Plaintiffs’ documents dated 6th December, 2021. xx) On 23rd October, 2019, the High Court had dismissed the aforesaid O.S No. 34 of 2010 filed by the 3 rd – 6th Respondents. See page 57 of the Plaintiffs’ documents dated 6th December, 2021. xxi) On 13th May, 2008, the parties herein had recorded a consent in the High Court to the effect that the orders sought by the predecessor of the Plaintiffs in HCC No. 311 of 2006 be allowed. See pages 3 – 4 of the Plaintiffs’ Further Supplementary List of Documents filed on 3rd April, 2024. JUDGMENT: ELC CASE NO E008 OF 2021 Page 70 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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133. On the issues for determination. The Learned Counsel submitted that under the provision of Order 15 Rule 2 of the Civil Procedure Rules, 2010, the court may frame issues from the pleadings, allegations made on oath, contents of documents produced or all:a. Whether the Defendants had “locus standi” to claim ownership of the suit land b. Which register was the legitimate register for the suit property between the original register opened on 15 th November, 1974 or the subsequent register opened vide a Court order dated 5 th May, 2015? c. What was the effect if any on the registered ownership of award of the Msambweni Land Disputes Tribunal in Case No. 44 of 2005, the Order dated 2nd November, 2009 and Order 5th May, 2015 in Land Case No. 34 of 2009 by Magistrate Court Kwale? d. Who was the current registered owner of the suit property? e. Whether the Defendants’ Title Was Obtained by Fraud? 134. On whether the Defendants had “locus standi” to claim ownership of the suit land. The Learned Counsel submitted that only legal representatives of a deceased person can sue or be sued on behalf of that estate. The 3rd - 6th Defendants pleaded in their Amended defence dated 1st June, 2023 in paragraph 4 that they are the heirs/beneficiaries of the late Rajab Salim Mwadarangunya and Juma JUDGMENT: ELC CASE NO E008 OF 2021 Page 71 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Mboga Mwakuyugwa. They repeat the same in paragraph 12 of the amended defence. The 3rd - 6th Defendants only called one witness the 6th Defendant as DW - 1 who testified that Rajab Salim Mwadarangunya and Juma Mboga Mwakuyugwa were his uncles. In cross examination by the Learned Counsel Ndegwa, the witness admitted that he did not have letters of administration, letter from Chief to show the relationship with alleged predecessors, or any other form of evidence. 135. The provision of Section 82 (a) of the Laws of Succession Act, cap. 160 provides that:“Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers(a) to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;” 136. The pre-condition for the heirs to first obtain letters of admiration was captured by Court of Appeal in the case of:- “Trouistik Union International & Another – Versus - Jane Mbeyu & Another [1993] eKLR”. The Court held that:“But by far, the highest judicial authority which, by necessary implication, repudiated the holding in the Hintz case is the oft cited Otieno – Versus - Ougo case decided in 1987. The question at issue in that appeal was the right of a widow to bury her intestate husband when she obtained no letters of administration to his JUDGMENT: ELC CASE NO E008 OF 2021 Page 72 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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estate. The Court gave vent to an important principle of law of universal application with respect to the right of a party to fulfil the role of an administrator of an intestate without obtaining letters of administration. The court, inter alia, observed: “The administrator is not entitled to bring an action as administrator before he has taken letters of administration. If he does, the action is incompetent at the date of its inception”. - emphasis added 137. The Learned Counsel submitted that the decision above was binding on this Honourable Court. In the case of:- “Rajesh Pranjivan Chudasama – Versus - Sailesh Pranjivan Chudasama [2014] eKLR” the Court of Appeal rendered itself as follows:“In our view issues of locus standi and jurisdiction are critical preliminary issues which ought to have been settled before dwelling into other substantive issues........ the respondent's petition having been filed without locus standi was a nullity ab initio and the refusal by Nzioka, J. to strike out the respondent's petition on the basis that they had been consolidated cannot stand. In any case, the learned Judge would still have come to the conclusion that the respondent did not have the locus standi to institute the proceedings dated 4th May, 2011 if she determined the respondent's petition on its own merits” 138. According to the Learned Counsel, this decision was also binding on this Honourable Court. It was therefore their submissions that the 3rd – 6th Defendants lacked locus standi and their claim is a nullity since they do not have letters of administration for the estates of JUDGMENT: ELC CASE NO E008 OF 2021 Page 73 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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the alleged predecessors yet sue as the said heirs/beneficiaries of Rajab Salim Mwadarangunya and Juma Mboga Mwakuyugwa. 139. On the second issue - which register was the legitimate one for the suit property. Was it the original register opened on 15 th November, 1974 or the subsequent register opened vide a Court order dated 5th May, 2015?. The Learned Counsel submitted that the provision of Section 2 of the Land Registration Act defines the register as the register maintained under Section 7 of the Act. Section 7(1) defines the register to include cadastral map, parcel files containing the instruments and documents that support subsisting entries in the land register, and other documents. 140. They submitted that the legitimate register for the suit property is the document produced by the AG in the list of documents dated 22nd September, 2022. This is because as required by section 7(1) (c) of the Land Registration Act, it is the document that is consistent with 2 crucial records: i. Demarcation Record and Adjudication record for Galu Kinondo Adjudication Section. JUDGMENT: ELC CASE NO E008 OF 2021 Page 74 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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ii. The parcel file produced by the land registrar in Court as the parcel file containing the instruments and documents that support subsisting entries in the land register. 141. With respect to the Adjudication Record, the Land Adjudication and Settlement Officer Kwale gave evidence that the extract of the accountability list for the suit property shows that it's owned by the 5 individuals who are the predecessors in title to the Sadiq Ghalia. The witness produced the extract of the Adjudication list as Exhibit 1 for the 1st - 2nd Defendants. He confirmed that the exhibit was the final document in the adjudication process. He called it a culmination of everything that had happened. The entries on the original register produced by the AG covered the entries from the day the register was opened on 15th November,1974 until entries numbers 11 and 12 of 27th and 29th May, 1980 when Sadiq Ghalia was registered as the owner and issued with a Land Certificate. These entries from 15th November, 1974 to 29th May, 1980 agree with the Adjudication Record produced by the Adjudication Office, Kwale and the instruments in the parcel file. These include; a. Applications to correct names in the register for the first registered owners dated 21st January, 1977 and 25th August, JUDGMENT: ELC CASE NO E008 OF 2021 Page 75 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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1977 - see pgs. 22- 25 of the AG's documents dated 22 nd September, 2022 b. Application for consent from LCB to correct names and Letter of Consent from the LCB dated 25 th August, 1977- see pgs. 23 of the AG's documents dated 22nd September, 2022 c. Letter dated 31st August, 1977 by the first registered owners authorizing Mr. Samuel Kariuki Wanderi to collect the title deed on their behalf - see pgs.26 of the AG's documents dated 22 nd September, 2022 d. Application for LCB consent to transfer undivided share from Eugene Chernel to Sadiq Ghalia dated 15th May, 1980 - see pgs. 19-20 of the AG'’s documents dated 22nd September, 2022 e. Letter of LCB consent to transfer undivided share from Eugene Chernel to Sadiq Ghalia dated 21st May,1980 - see pgs. 21 of the AG's documents dated 22nd September, 2022 f. Transfer of undivided share from Eugene Chernel to Sadiq Ghalia for consideration of a sum of Kenya Shillings One Hundred Thousand (Ksh.100,000/=) dated 23rd May, 1980 - see pgs. 17- 18 of the AG’s documents dated 22nd September, 2022 JUDGMENT: ELC CASE NO E008 OF 2021 Page 76 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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142. The Registrar in cross examination by Mr. Ndegwa admitted that the first register had the names that came from the adjudication record as Entry no. 2. The Court could confirm that entries no. 1 of the original register records the names of the 5 individuals who were the predecessors of the Plaintiff in title. Entry no. 2 records changes in names of 2 of the 5 individuals. The parcel file produced by the Land Registrar contained applications and consents to the changes of names. The Land Registrar further conceded on cross examination by the Learned Ndegwa that the entries in the original register records giving title deeds to the 5 individuals predecessors in title. The Land Registrar further conceded that entry no.11 records giving title deed to Sadiq Ghalia on 29 th May, 1980. 143. The Learned Counsel submitted that the Land Registrar further conceded that the document she produced was certified by the Land Registrar as a true copy of the original. She further admitted that according to the original register, “……there was no other entry after entry no.12 and that according to that register, Sadiq Ghalia was the last registered owner of the suit property. ” 144. Most importantly, the Land Registrar conceded that, “….from the particular green card, there is no entry cancelling or revoking the title issued to Sadiq Ghalia.” In addition, the Land Registrar conceded in JUDGMENT: ELC CASE NO E008 OF 2021 Page 77 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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cross examination that, “…..the register does not have an entry for Abdalla Said Kugotwa, Mohamed Rajab Mbwata and Omar Juma Mboga, the 3rd, 4th and 5th Defendants herein.” 145. According to the Learned Counsel, in further cross examination, the Land Registrar conceded that the original green card was not lost and there was no need for opening a new one. Asked why the Land Registrar opened a new green card on 5 th May, 2015, the Land Registrar conceded that “…the Land Registrar should have filed entry no. 13 and put in the names of the 4 persons and not starting afresh.” The Land Registrar further admitted that her parcel file did not have gazette notice, affidavit, newspaper advertisement, or police abstract claiming that the green card. It was lost nor damaged. Further that there was no application or notice to Sadiq Ghalia to reconstruct the register. 146. Clearly, they concluded that the document purporting to be a register opened vide a Court order dated 5 th May, 2015 was not a register within the meaning of the provision of Sections 2 and 7 of the Land Registration Act, and the Land Registration Regulations. Under the Act and the Rules, the Land Registrar cannot purport open a new card or reconstruct a register unless as a matter of fact the original register is lost or destroyed and a notice is duly JUDGMENT: ELC CASE NO E008 OF 2021 Page 78 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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gazetted. The original register was never cancelled, lost or destroyed, making the second green card unlawful and fatally defective. The law contemplates a single, continuous register for each parcel of land. The purported creation of a second Green card in respect of the same property offended both the letter and spirit of the registration regime. It rendered the later register a legal nullity, for ex nihilo nihil fit - nothing valid can flow from nothing.” 147. Accordingly, the Learned Counsel submitted that the register for parcel Kwale/Galu/Kinondo/665 was the document produced by the AG with Entries 1-12 for the period 15 th November, 1974 to 29th May, 1980 in which Sadiq Ghalia was the registered owner and there was no other entry. 148. On what was the effect if any on the registered ownership of award of the Msambweni Land Disputes Tribunal in Case No. 44 of 2005, the Order dated 2nd November, 2009 and Order 5th May, 2015 in Land Case No. 34 of 2009 by Magistrate Court Kwale, the Learned Counsel submitted that the Court orders in question were: i. Award dated 1st September, 2009 by Msambweni Land Disputes Tribunal in case no. 44 of 2005. JUDGMENT: ELC CASE NO E008 OF 2021 Page 79 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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ii. Order dated 2nd November, 2009 by the Principal Magistrate, Kwale in Land case no. 34 of 2009. iii. Order dated 5th May, 2015 by the Principal Magistrate, Kwale in Land case no.34 of 2009. 149. The Learned Counsel intimated that they would submit on each of the said orders separately. On the award dated 1 st September, 2009 by Msambweni Land Disputes Tribunal in case no. 44 of 2005. The Learned Counsel submitted that it was not in contention that the suit property was first registered in the names of Cyrus Waruthingo Kirugumi, Mahendo J Kiringu, Wairagu Mukere, Nyi Mukundi Ngarari, and Rahab Mweru on 15 th November, 1974. It was also not in contention that the 3 rd to 6th Defendants instituted Land dispute no. 44 of 2005 before the Msambweni Land dispute tribunal which commenced sometimes in September, 2005. The 3 rd – 6th Defendants called one Mohamed Rajab Mbwata as their sole witness in the tribunal proceedings produced before this Court. The opening statement of the said witness was:“The plot Kwale/Galu/Kinondo 665 was registered in my father's name Rajab Salim Mwandaragunya and Juma Mboga Mwakuyugwa during the Galu Kinondo adjudication section exercise in 1974.” emphasis added JUDGMENT: ELC CASE NO E008 OF 2021 Page 80 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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150. The said witness testified that by the year 1980 when Mohamed Rajab Mbwata and Omar Juma Mboga visited Kwale land registrar’s office with the allotment paper bearing the registration number of the parcel of land, they found that the names were different. The witness continued by stating that:“We asked the Registrar for advise and he said we could sue these people in a Court of law but this was not easy so we sought the services of an advocate but we could not raise the necessary fees demanded by the advocate. We prayed to God knowing that one day we shall get our right back.” 151. The said witness closed by stating:“This is why today we are here seeking justice. We want to know from the people who unfortunately are not indigenous persons of Galu/Kinondo location how they acquired this land in areas declared an adjudication section according to the laid down regulation of land ownership. That is all I have to say.” - See the proceedings on pages 4-7 of the AG’s documents specifically page 5”. 152. From the statement/testimony of the said witness before the land disputes tribunal, it was clear that they instituted the suit with full knowledge that the suit property was registered land whose registered ownership had changed over the years. It was also clear that they were aware having been advised so by the land registrar that they could only recover “their” land by filing a suit in a court of JUDGMENT: ELC CASE NO E008 OF 2021 Page 81 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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law. However, they decided to sit back for 25 years since the year 1980 - 2005 and pray and sit back until the land disputes tribunal was established and they instituted land dispute no.44 of 2005. 153. In its Judgment delivered on 1st September, 2009, the tribunal made the following finding:“In view of the above, the court finds fault with the objectors for having registered this land Kwale/Galu Kinondo/665 in their names without involving the genuine owners who were denied the right to ownership." Therefore, the land dispute tribunal recommends that the district land registrar- Kwale immediately revoke and cancel the title deed currently held by Sadique Ghalia and instead issue a new title deed in the names of the following............” (the 3rd - 6th Defendants)” 154. The Land dispute tribunal at Msambweni which awarded the 3 rd - 6th Defendants the suit land derives its jurisdiction from Section 3 of the Land Disputes Tribunals Act, 1990 which provides that:“Subject to this Act, all cases of a civil nature involving a dispute as to(a) the division of, or the determination of boundaries to land, including land held in common; (b) a claim to occupy or work land; or (c) trespass to land,” 155. The jurisdiction of the Land disputes tribunal is limited by the above provision of the Land Disputes Tribunals Act, 1990 to boundaries, occupation and trespass. Its jurisdiction does not JUDGMENT: ELC CASE NO E008 OF 2021 Page 82 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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extend to determining ownership. By delving into the issues of registration and ownership of the suit land, the tribunal usurped jurisdiction reserved only for the High Court rendering its decision void ab initio. 156. According to the Learned Counsel, jurisdiction was not cosmetic. Its fundamental as held by the Court of Appeal in the case of:- “Jamal Salim – Versus – Yusuf Abdulahi Abdi & Another [2018] KECA 14 (KLR)”:“As this Court has noted time and time again, jurisdiction is what clothes a court with the power to entertain and render a decision in a dispute before it. Without it a court acts in vain. The significance of jurisdiction was spelt out in the often cited case of Motor Vessel M.V. Lillians vs. Caltex Oil (Kenya) Limited 1989 KLR 1 wherein Nyarangi, J.A, as he then was stated:“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the court is constituted and may be extended or restricted by the like mean... If the jurisdiction of an inferior court or tribunal including an arbitrator depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction but except where the court or tribunal has been given power to determine conclusively whether the fact exists where a court JUDGMENT: ELC CASE NO E008 OF 2021 Page 83 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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takes it upon itself to exercise a jurisdiction which it does not possess, its decision a merit to nothing..” 17. Jurisdiction either exists or it does not. Neither can it be acquiesced or granted by consent of the parties. This much was appreciated by this Court in Adero & Another – Versus - Ulinzi Sacco Society Limited [2002] 1 KLR 577, as follows:“1) ... 2) The jurisdiction either exists or does not ab initio ... 3) Jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction. 4) Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.” 157. By entertaining a claim over ownership of the suit land and issuing an award over the same, the Land Disputes Tribunal acted without outside its statutory powers rendering its decision void. To buttress on this legal preposition, the Learned Counsel relied on the case of:- “Munga & 9 Others – Versus – Nyamawi & 5 Others [2023] KECA 1321 (KLR)” where the court while making such a finding held that: “Regarding the submission that the learned Judge erred in ignoring the decision of the Land Disputes Tribunal when the same had not been set aside by judicial review proceedings, it is our view while a court of law cannot set aside a decision whose challenge is not properly before it, nothing bars a court from observing that the proceedings relied upon by a party are not binding on it particularly where the said proceedings are those of an inferior tribunal. The law is clear that an order made without JUDGMENT: ELC CASE NO E008 OF 2021 Page 84 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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jurisdiction is void and if an act is void, then it is in law a nullity as it is not only bad but incurably bad and there is no need for an order of the Court to set it aside, though sometimes it is convenient to have the Court declare it to be so. You cannot put something on nothing and expect it to stay there, as it will collapse. But if an act is only voidable, then it is not automatically void as is only an irregularity, which may be waived and is not to be avoided unless something is done to avoid it. In those circumstances, there must be an order of the Court setting it aside and the Court has the discretion whether to set it aside or not and it will do so if the justice of the court demands and not otherwise meanwhile it remains good and a support for all that has been done under it. See Macfoy – Versus - United Africa Co. Ltd [1961] 2 All ER 1169 at 1172, Andrew Kamau Mucuha – Versus - The Ripples Limited Civil Appeal No. 19 of 1998 [2001] KLR 75 & Omega Enterprises (Kenya) Ltd. – Versus - KTDC & 2 Others Civil Appeal No. 59 of 1993. 32.In this case the order by the tribunal was issued without jurisdiction. It was null and void ab initio. No express order was required in order for the learned Judge to decline to adhere to it since any actions taken in pursuance of the same were also bound to be null and void. There was nothing wrong in the learned Judge after finding that it was issued without jurisdiction not giving it legal recognition and effect.”- emphasis added.” 158. Similarly, in the persuasive case of “Republic – Versus - North Kinangop Land Tribunal & 2 others Ex - Parte David Muthee Mburu [2015] KEELC 453 (KLR)” where the Learned Judge held that:“It will be seen from the above, that the jurisdiction of the Tribunal, was only on matters related to the division or determination of boundaries; claims to occupy or work land; and JUDGMENT: ELC CASE NO E008 OF 2021 Page 85 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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trespass to land. The Land Disputes Tribunal did not have jurisdiction to issue declaratory orders on the ownership of land and neither did it have jurisdiction to determine disputes revolving around ownership of land.” 159. The Learned Counsel contended that a tribunal without jurisdiction cannot generate rights. The award by the tribunal could not revoke, cancel or otherwise affect registered ownership of the Sadiq Ghalia. The award was subsequently quashed by the foresaid order of certiorari issued by the High Court on 9 th September, 2010. 160. On the orders dated 2nd November, 2009 and 5th May, 2015 by the Principal Magistrate, Kwale in Land Case No. 34 of 2009. The Learned Counsel submitted that again, it was settled law that Magistrates Court did not have jurisdiction to deal with. registered ownership of land under the Registered Land Act for the following reasons; i. Prior to the Land Act and the Land Registration Act, the law applicable was the Registered Land Act Cap. 300 (Now repealed). Accordingly, the Magistrates Court did not have jurisdiction to rectify or otherwise alter registered ownership. ii. The order of 2nd November, 2009 was overtaken by the orders issued by the High Court on 9th September, 2010. The orders were Certiorari quashing the award of the Tribunal in case no. JUDGMENT: ELC CASE NO E008 OF 2021 Page 86 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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44 of 2005. In addition, a prohibition prohibiting the Land Registrar from proceeding to revoke, and cancel the title deed currently held by Sadiq Ghalia on the suit property. iii. With the enactment of the Environment and Land Court Act in 2011, the Magistrates' court ceased to have jurisdiction over land matters until the year 2015 when amendments were made to introduce the provision of Section 26 (3) in the ELC Act which amended the ELC Act by introducing Section 26 (3), which provided that the Chief Justice may, by notice in the Gazette, appoint certain magistrates to preside over cases involving environment and land matters of any area of the country. iv. The first batch of Magistrates to be gazetted to handle cases involving environment and land matters were appointed through a gazette notice no.1472 was dated 1st March, 2016. v. The gazette notice no.1472 of 2016 shows that Honourable PK Mutai the Magistrate who issued the order of 5 th May, 2015 was not amongst the Magistrates who were gazetted in year 2016 to deal with ELC matters. The Land Registrar conceded as much. JUDGMENT: ELC CASE NO E008 OF 2021 Page 87 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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vi. In any event, the Registrar did not make any entry in the original register or the purported second register revoking or cancelling registered ownership of Sadiq Ghalia. The Land Registrar in cross examination admitted that she did not have an entry revoking or cancelling. 161. They concluded that the orders issued by the Tribunal and the principal Magistrates Court could not and did not in fact cancel or revoke the registered ownership of Sadiq Ghalia. 162. On who was the current registered owner of the suit property. The Learned Counsel asserted that going by the original register produced by the AG, the last entries were no. 11 and 12 registering Sadiq Ghalia as the registered owner and there was no other entry after that after year 1980. The 3rd - 6th Defendants were not the registered owners because the document they were was relying on to claim ownership was not the bonafide register. It was a fraudulent document. The Plaintiff's Land Certificate issued on 29 th May, 1980 was prima facie evidence of ownership. The provision of Section 26(1) of the Land Registration Act, 2012 made such title indefeasible unless obtained through fraud or illegality. The 3 rd - 6th Defendants had not produced any evidence that the title held by JUDGMENT: ELC CASE NO E008 OF 2021 Page 88 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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the Plaintiffs was obtained through fraud or illegality. Evidence produced by the 1st and 2nd Defendants that was the original Green card opened on 15th November, 1974 showed that the first registered owners of the land were Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi and Alfaxisad Mahindu. The said Green card showed the entire history of the land since registration until the Plaintiff was issued with a Land Certificate on 29 th May, 1980, entry no.12 on the original card. 163. The Learned Counsel averred that the original register produced never showed any entry closing the said register or cancelling or revoking the Plaintiffs title deed. The Plaintiff's witness PW - 1 showed the Court the original title deed issued on 29 th May, 1980. It was a settled principle of law, affirmed in judicial precedent, that where two ( 2 ) parallel titles purport to exist over the same parcel of land, the law gives primacy to the title issued first in time. The rationale is simple: “qui prior est tempore, potior est jure” - he who is earlier in time is stronger in right. Accordingly, the Plaintiff's title, having been duly issued long before the impugned and irregular title in the Defendants’ favour, must prevail as the valid and indefeasible instrument of ownership. JUDGMENT: ELC CASE NO E008 OF 2021 Page 89 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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164. To support this argument, the Learned Counsel cited the persuasive case of “Gitwany Investment Limited – Versus - Tajmal Limited & 3 Others [2006] KEHC 2519 (KLR)” the Court held as follows:“Section 23(1) of the Act gives an absolute and indefeasible title to the owner of the property. The title to such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy”. 45. The fears expressed by the court in that case are exactly what has confronted the parties and this court in the present case. 46. My understanding is therefore that the title given to Gitwany in the first instance and which I have held to be absolute and indefeasible as regards the suit land is the earlier grant and in the words of the Court of Appeal in Wreck Motors Enterprises – Versus - Commissioner of Lands, C.A. No. 71/1997 (unreported):- is the “grant [that] takes priority. The land is alienated already.” This decision was again upheld in Faraj Maharus – Versus - J.B. Martin Glass Industries and 3 others C.A. 130/2003 (unreported). Like equity keeps teaching us, the first in time prevails so that in the event such as this one where, by a mistake that is admitted, the Commissioner of Lands issues two titles in respect of the same parcel of land, then if both are apparently and on the face of them, issued regularly and procedurally without fraud save for the mistake, then the first in time must prevail. It must prevail JUDGMENT: ELC CASE NO E008 OF 2021 Page 90 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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because without cancellation of the original title, it retains its sanctity. The Gitwany title fits this description and in fact up to the end of this case, the 3rd party has not sought to cancel it! 47. My answer above does not solve the puzzle however. What then happens to the second title issued apparently procedurally but subsequent to an earlier valid title? Again my view is that the answer lies in s.23(1) aforesaid. Whereas the first title cannot be challenged, the second one can be challenged because whereas it exists and even if procedurally issued, or so it appears, it is not absolute nor indefeasible and is relegated to a level of legal disability and the remedy for a party holding it if aggrieved, lies elsewhere” - emphasis added 165. It was therefore their submissions that the Plaintiff was the only current registered owner of the suit parcel. 166. On whether the Defendants’ title was obtained by fraud. The Learned Counsel argued that fraud, in law, was proved by pointing to deliberate acts designed to circumvent the law and deprive another of their rights. In this case, the conduct of the Defendants, taken together with the actions of the Land Registrar, revealed a carefully orchestrated scheme to dispossess the Plaintiff of land he had lawfully purchased and held title to since year 1980. First, the Defendants knowingly relied on proceedings of the Msambweni Land Disputes Tribunal, notwithstanding that the Tribunal lacked jurisdiction to adjudicate title to registered land. A party who JUDGMENT: ELC CASE NO E008 OF 2021 Page 91 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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dragged another through a void process act in bad faith, for “ ex turpi causa non oritur action –“ no valid right can arise from an unlawful act. 167. Secondly, when the Tribunal's award was quashed by the High Court in Judicial Review proceedings, the Defendants did not desist. Instead, they sought to sanitize the void award by rushing to the Magistrates' Court in Case No. 34 of 2009 to obtain adoption orders. Worse still, when their first order was found defective for want of a parcel number, they returned to the same court and procured a second order on 5 th May, 2015, long after the High Court had declared the Tribunal award a nullity. This was a calculated attempt to breathe life into a dead award - an act of deception on the court and the Land Registrar. 168. Thirdly, the Land Registrar, in collusion or reckless disregard of her statutory duties, acted on the void order and purported to revoke the Plaintiff's indefeasible title. She then manufactured a second Green card, inserting the Defendants' names retroactively to the year 1974, as if history could be rewritten by a stroke of her pen. This falsification of the register was the very definition of fraud. JUDGMENT: ELC CASE NO E008 OF 2021 Page 92 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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169. The Learned Counsel submitted that in the words of the provision of Section 26 (1)(a) of the Land Registration Act, a title obtained through fraud is liable to cancellation. The Defendants could not, therefore, cloak themselves in the sanctity of title when their own hands were soiled in fraud. Equity demands that he who comes to court must come with clean hands; the Defendants’ title, being tainted with deceit, could not be allowed to stand. Kenyan judicial precedent is consistent: a certificate of title is not invincible when obtained by fraud, misrepresentation, or another irregular scheme. In the case of:- “Kenya Anti- Corruption Commission – Versus - Ken Deep Construction Limited & another [2019] KEELC 2124 (KLR)” the Environment & Land Court held that titles acquired illegally are not sheltered by the provision of Section 26. The Court held that:“The upshot of the evidence tendered by the Plaintiff is that the entire transaction through which the 2nd Defendant allocated the suit land to the 1st Defendant, its subdivision, issuance and registration of the lease over the suit land in the name of the 1 st Defendant, was fraudulent, irregular, illegal and un-procedural. That the title is therefore not protected under Article 40 (6) of the Constitution 2010 and Section 26 (1) of the Land Registration Act No. 3 of 2012.” 170. Judicial precedents compel the conclusion that a title obtained by fraud could not stand, even if registered and it was their JUDGMENT: ELC CASE NO E008 OF 2021 Page 93 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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submissions that the Defendants title deed was obtained by fraud and the only remedy was to revert the suit parcel to the rightful owners, the Plaintiffs. 171. On the question of possession and occupation. The Learned Counsel averred that the Defendants had attempted to clothe themselves with credibility by alleging that they had been in occupation of the suit land. Yet, their own witness, under crossexamination, conceded that they never resided on the property. This admission fatally undermined their pleadings. Occupation was a matter of fact, not rhetoric. One could not claim to have been in possession while at the same time acknowledging absence. Where occupation was alleged, it must be demonstrated by actual, physical presence and use of the land, not mere assertions. The Defendants had never been in possession. Their pleadings on occupation were therefore nothing more than an afterthought, meant to lend colour to an otherwise baseless claim. As the Latin maxim goes: “allegans contraria non est audiendus ” - one who asserts contradictory claims is not to be heard. 172. In conclusion, the Learned Counsel submitted that the record was unequivocal: the Plaintiff was and remained the lawful proprietor of JUDGMENT: ELC CASE NO E008 OF 2021 Page 94 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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the suit land. The competing entries rest on a Tribunal award made without jurisdiction and on a Magistrate's, order issued without jurisdiction, both of which cannot survive the final orders of certiorari and prohibition issued by the High Court in HCJR No.500 of 2009 issued on 9th September, 2010. Ex nihilo nihil fit; from a void act, no rights flow. The Land Registrar’s subsequent actions, taken in defiance of binding court orders and without proper registration of any lawful instrument, were ultra vires, null, and incapable of divesting the Plaintiff of title. The integrity of Kenya's land regime depended on certainty of title and obedience to court orders. If unlawful administrative action can undo a duly registered title despite a subsisting High Court order, then the register ceases to be a mirror of rights and became a canvas for opportunism. This Court's intervention was necessary not only to do justice to the Plaintiff, but to reaffirm that the rule of law governs land. 173. The Learned Counsel accordingly prayed for the reliefs as sought from the filed pleadings. B. The Written Submissions by the 1st and 2nd Defendants 174. The 1st and 2nd Defendants through the Attorney General, filed their written submission dated 7th October, 2025. Mr. Paul Wagah JUDGMENT: ELC CASE NO E008 OF 2021 Page 95 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Advocate commenced his submissions by stating that before the Honourable Court had been the Plaintiffs’ suit. It had had been instituted via a Plaint dated 6 th December, 2021. The suit had sought a declaration that the Plaintiffs had been the lawful proprietors of the suit property, among other prayers. The Defendants had filed different defences against the Plaint. The matter had proceeded to hearing on various dates, with the Plaintiffs and the Defendants testifying respectively. 175. On the Plaintiffs’ case. The Learned Counsel stated that the Plaintiffs’ case had been straightforward. The Plaintiffs, represented by the 1st Plaintiff, had informed the Court that he had been the Legal administrator of the Estate of Sadiq Ghalia since the year 2020. He had testified that the suit property had belonged to Sadiq Ghalia after acquiring it from Cyrus Waruthingo Kirugumi, Mahendo J. Kiringu, Wairangu Mukere, Niyi Mukundi Ngarari, and Rahab Mweru, who had been the registered owners, for a consideration of a sum of Kenya Shillings Two Hundred Thousand (Kshs. 200,000/=). Sometime in the year 1980, his co - owner, Eugene Charnell, had transferred his undivided share of the said property to the deceased. JUDGMENT: ELC CASE NO E008 OF 2021 Page 96 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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176. In the year 2009, the 3rd to 6th Defendants had filed Land Dispute No. 44 of 2005 before the Msambweni District Land Tribunal, challenging the ownership of the deceased. The outcome had been that the Tribunal had ordered the Land Registrar to cancel the title held by the Plaintiffs, despite the Tribunal not having had the authority to order cancellation of title. In the same year, the Plaintiffs had filed judicial review proceedings at the High Court in Mombasa (Miscellaneous Civil Application No. 500 of 2009) challenging the proceedings and findings of the Tribunal. In the year 2010, the 3rd to 6th Defendants had filed Civil Suit No. 34 of 2010 (O.S.), seeking orders for the Land Registrar to revoke and cancel Sadiq Ghalia’s title. 177. The Learned Counsel submitted that the Court had granted the prayers sought in the Judicial Review, thereby quashing the Tribunal proceedings and award in Land Dispute No. 44 of 2005 in respect of the suit property, and had issued an order of Prohibition, prohibiting the District Land Registrar from revoking or cancelling the title deed held by Sadiq Ghalia and issuing the same to the 3 rd to 6th Defendants. In the year 2017, the Originating Summons had been dismissed with costs. Thus, according to the Plaintiffs, the 3 rd JUDGMENT: ELC CASE NO E008 OF 2021 Page 97 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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to 6th Defendants could not have obtained a good title to the suit property. 178. On the case of 1st and 2nd Defendants, the Learned Counsel informed Court that the case had been that the suit property had belonged to the Plaintiffs. The Green Card produced as Defence Exhibits 1 – 3 and Exhibit 41, together with the Adjudication Record, had indicated clearly that the suit property had first belonged to Andrea Wairugu, Rahab Mweru, Elias Mukundi, and Afaxisad Mahindu, who had later sold the property to Cyrus Waruthingo Kirugumi, Rahab Mwero, Wairugu Mukere, Mukundi Ngarari, and Mahendo Kiringu. In 1979, Eugene Joseph Charnell and Sadiq Ghalia had acquired the property from the first owners, who had been allotted the land by the Adjudication and Settlement Office. In the year 1980, Eugene Joseph Charnell had sold his half share to Sadiq Ghalia, and the whole property had thereafter been registered in the name of Sadiq Ghalia. 179. On 5th May, 2015, via a court order in Land Case No. 34 of 2009, the Land Registrar had been compelled to open a parallel green card in the names of Abdallah Said Kugotwa, Mohamed Rajab Mbwata, Omar Juma Mboga, and Juma Mwinyi Mbata, and had also JUDGMENT: ELC CASE NO E008 OF 2021 Page 98 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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been ordered to cancel the green card supporting Sadiq Ghalia’s title. A restriction had been entered by the Law firm of Messrs. Ghalia & Ghalia Advocates in 2019 in the Green card opened in the year 2015. During cross-examination, it had become clear that the court which had issued the orders in Land Case No. 34 of 2009 had not had jurisdiction to handle land matters, as it had been a Magistrate’s Court, and by the time of issuing the orders, the court had not been gazetted to handle land matters. 180. The Learned Counsel submitted that on 23 rd October, 2009, Honourable Justice Azangalala, in JR Misc Application No. 500 of 2009, had issued certiorari orders quashing the proceedings of Land Dispute Case No. 44 of 2005 with regard to the suit property, cancelling the award to Abdallah Said Kugotwa, Mohamed Rajab Mbwata, Omar Juma Mboga, and Juma Mwinyi Mbata, and ordering that the property rightfully belonged to Sadiq Ghalia. The cancellation of the Land Tribunal proceedings in JR Misc Application No. 500 of 2009 had meant that the Magistrate’s Court in Case No. 34 of 2009 could not have enforced any proceedings, as there had been no valid orders to enforce. Based on the above, it had been clear that the Plaintiffs had not had ownership of the suit property, JUDGMENT: ELC CASE NO E008 OF 2021 Page 99 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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and the attempt to rely on the Court order of 2 nd November, 2009 to claim ownership had not been sustainable. 181. The Land Registrar, while on the stand, had concluded that based on the documents from their office and the evidence produced before court, the property had clearly belonged to the Plaintiffs, and the attempts by the 3 rd to 6th Defendants to claim ownership of the suit property had not been supported by the documents in the Lands Registry. Equally, the Deputy Land Adjudication Settlement Officer, Nicholas Sanya (DW - 1), had testified in court and had stated that according to their records, the property had been allocated to Andrea Wairugu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi, and Afaxisad Mahindu. He had explained that according to the documents, and specifically the Adjudication Record (Exhibit 15, page 41 in the Defendants’ list of documents), the first entries had been cancelled and five names had replaced the two cancelled ones. He had further explained that the names could only had been removed after complaints had been registered, adjudication proceedings conducted, and an outcome implemented. Thus, the corrections had been in place and had JUDGMENT: ELC CASE NO E008 OF 2021 Page 100 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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been effected only after adjudication proceedings had been conducted and an outcome reached and implemented. 182. On the 3rd, 4th, 5th and 6th Defendants’ case. The Learned Counsel submitted that their case had been presented by Juma Mwinyi Mbata, who had testified that the property had belonged to them before independence. However, in cross-examination it had become clear that they had not been related to the people whose names had been removed from the property, as they had originally come from Lamu. He had also denied that they had ever been parties to any court proceedings and had stated that they had not been aware that the proceedings in Tribunal Case No. 44 of 2005 had been overturned by court proceedings in Judicial Review matters filed by the Plaintiffs in the years 2006 and 2009. 183. The representative had further denied that they had ever been parties to any court proceedings and had prayed that the Court give orders declaring that the suit property had belonged to them and not to the Plaintiffs. It should not have been lost to the Honourable Court that the court orders setting aside the proceedings of the Tribunal had not been set aside or appealed from by anyone. JUDGMENT: ELC CASE NO E008 OF 2021 Page 101 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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184. The Learned Counsel relied on the following issues for determination for the Honourable Court:i. Whether the Suit property belonged to the Plaintiffs? ii. Whether the 3rd to 6th Defendants had proved their case as is required by law? iii. Whether the Plaintiffs had proved fraud against the 1 st and 2nd Defendants? 185. The Learned Counsel submitted that it had been trite law that whoever had alleged must have proved, as had been provided in Section 107(1) of the Evidence Act, Cap. 80 Laws of Kenya, which had stated: “Whoever desired any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserted must have proved that those facts existed.” 186. The Learned Counsel submitted that Section 26(1) of the Land Registration Act had provided that the Certificate of Title issued by the Registrar upon registration had been prima facie evidence that the person named as proprietor of the land had been the absolute and indefeasible owner, whose ownership or proprietorship could only have been impeached on the ground of fraud or misrepresentation to which the person had been proved to be a JUDGMENT: ELC CASE NO E008 OF 2021 Page 102 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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party, or where the certificate of title had been acquired illegally, unprocedurally, or through a corrupt scheme. 187. According to the Learned Counsel, the Honourable Court had therefore been tasked with making a discovery as to which of the litigants before it had had legal rights in the suit property. In making this discovery, Munyao J in the case of “Hubert L. Martin & 2 Others – Versus - Margaret J. Kamar & 5 Others [2016] eKLR” , at Paragraph 31, had suggested that: “…This investigation must start at the root of the Title and follow all the processes and procedures that brought forth the two titles at hand. It follows the title that is to be upheld is that which conformed to the procedure and can properly trace its root without a break of the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its roots. No party should take it for granted that simply because they have a title deed or Certificate of lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hanging ones case solely on the title document that they hold.” 188. The foregoing excerpt from Munyao J’s decision had imposed an obligation upon each party to demonstrate that their title had had a good foundation and had been passed properly to them. Indeed, JUDGMENT: ELC CASE NO E008 OF 2021 Page 103 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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the Court of Appeal in the case of “Munyu Maina – Versus - Hiram Gathiha Maina [2013] eKLR” at paragraph 17 had held as follows: “...We state that when a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of the title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.” 189. On whether the suit property belonged to the Plaintiffs. The Learned Counsel submitted that as explained earlier, the root of the title had begun with the allocation from the Adjudication Office. The evidence by DW - 1, Mr. Nicholas Sanya, the adjudication officer based in the Kwale office, had confirmed that the suit property’s original allottees had been Andrea Wairagu, Rahab Mwera, Cyrus Waruthingo, Elias Mukundi, and Afaxisad Mahindu. He had also produced the accountability list which had listed the above-mentioned individuals as the original owners. He had equally explained that cancellation of names from the accountability list could only have happened after hearings had been conducted and a decision implemented. JUDGMENT: ELC CASE NO E008 OF 2021 Page 104 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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190. The original allottees had sold their properties to Cyrus Waruthingo, Rahab Mwero, Mahendo J. Kiringu, Wairigu Mukere, and Mukundi Ngarari, who had later sold the same to Eugene Joseph Charnell and Sadiq Ghalia, and the shares of Eugene Joseph Charnell had subsequently been transferred to Sadiq Ghalia. 191. The Learned Counsel argued that there had been attempts to cancel the ownership of Sadiq Ghalia. In Land Tribunal Dispute No. 44 of 2005, the outcome had been that the ownership of Sadiq Ghalia had been cancelled and the property had been awarded to Abdallah Said Kugotwa, Mohamed Rajab Mbwata, Omar Juma Mboga, and Juma Mwinyi Mbata. The said findings of the Tribunal had later been quashed in Judicial Review Application No. 500 of 2009, which had cancelled the proceedings and had reverted the property to Sadiq Ghalia. An attempt had been made in the year 2015 via a Magistrate’s Court to implement the quashed Tribunal orders, thereby ordering cancellation of the title deed of Sadiq Ghalia and opening another green card in the names of Abdallah Said Kugotwa, Mohamed Rajab Mbwata, Omar Juma Mboga, and Juma Mwinyi Mbata, despite the Judicial Review orders still having been in force. JUDGMENT: ELC CASE NO E008 OF 2021 Page 105 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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192. The Land Registrar, DW - 2 Susan Mueni, had noted the discrepancies in the title allegedly held by the 3 rd to 6th Defendants and had confirmed that the proper title had been the one held by Sadiq Ghalia, as it had been clear that the title of the 3 rd to 6th Defendants had been marred with irregularities in an attempt to defeat the good title held by the Plaintiffs. 193. On whether the 3rd to 6th Defendants had proved their case as is required by law. The Learned Counsel submitted that it had been clear that the 3rd to 6th Defendants had not proved their case as had been required by law. First, their alleged ownership that had been granted to them via Tribunal Proceedings No. 44 of 2005 had been quashed in Judicial Review Application No. 500 of 2009. The 3rd to 6th Defendants had then gone to a court without jurisdiction, namely a Magistrate’s Court, and had obtained an order for cancellation of the Plaintiffs’ title deed and an order opening a Green card in their names. 194. Whoever had come to court had been required to come with clean hands, as the maxim went. The 3rd to 6th Defendants had not come to court with clean hands; they had been the perpetrators bent on JUDGMENT: ELC CASE NO E008 OF 2021 Page 106 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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taking the property from the Plaintiff, who had been the rightful owner. 195. The Learned Counsel averred that it had been the Plaintiffs’ humble submission that the property had not belonged to the 3 rd to 6th Defendants and thus they had not proved their case as had been required by law. The rightful course had been to sustain the ownership by the Plaintiffs. Lastly, the 3rd to 6th Defendants had only been attempting to take away what had not belonged to them, and they had not deserved to be aided by this Honourable Court. It had been telling that the 3 rd to 6th Defendants had waited thirty-one years to file proceedings at the Tribunal Court to challenge the ownership of the Plaintiff, clearly rendering the same time-barred. 196. On whether the Plaintiffs had proved fraud by the 1 st and 2nd Defendants against the Plaintiffs. The Learned Counsel asserted that It had been the Defendants’ humble submission that the Plaintiffs had not led any evidence to prove that there had been a conspiracy among the Defendants to take away the suit property from them. According to the Learned Counsel, conspiracy, fraud, and corruption had been criminal in nature, and for one to have proved the same, it had been upon them to demonstrate that there JUDGMENT: ELC CASE NO E008 OF 2021 Page 107 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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had been intention to take away their parcel of land illegally and that there had been the actual taking of the parcel from the Plaintiff. 197. The Plaintiffs had not led any evidence to prove fraud on the part of the 1st and 2nd Defendants, and thus that limb had failed. The same had been buttressed in the case of “Ali Mohamed Kijuvi & Another – Versus - Registrar of Title Mombasa & 2 Others; Josephine Naisenya Mbatia & Another (Interested Parties) [2019] eKLR” , in which the Court had noted: “It is trite law that fraud must not only be pleaded but the same must be specifically proved.” 198. The Court had proceeded to hold that fraud, conspiracy, and illegality had not been proved against the Registrar of Lands. 199. In conclusion, the Learned Counsel submitted that the Honourable Court had been called upon either to make a finding protecting a properly acquired title or to assist the 3 rd to 6th Defendants in illegally acquiring a property that had not belonged to them from the very beginning. It was the Learned Counsel’s humble submission that the Court should have upheld the ownership of the Plaintiffs, as they had proved their case as had been required by law. JUDGMENT: ELC CASE NO E008 OF 2021 Page 108 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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C. The Written Submissions by the 3rd to 6th Defendants 200. The 3rd to 6th Defendants, through the Law firm of Messrs. Amondi and Company Advocates filed their written submissions dated 2 nd October, 2025. Mr. Amondi Advocate commenced his submissions by stating that the Plaintiff’s case basically seeks a raft of orders principally as stated above. 201. The Learned Counsel reiterated that the Plaintiff’s claim was that the Late Sadiq Ghalia and Eugene Charnel jointly acquired the suit parcel from Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi and Afaxisad Mahindu more specifically from Cyrus Waruthingo Kirugumi, Mahendo Kiringu, Warandu Mukarenyi Mukundi and Rahab Mweru at a consideration of a sum of Kenya Shillings Two Hundred Thousand (Kshs 200,000/=) on 20 th September, 2019 and that Eugene Charnel later transferred his undivided share to the deceased at a consideration of a sum of Kenya Shillings One Hundred Thousand (Kshs 100,000/=) and the title was issued on 29th May, 1980 in the name of SADIQ GHALIA. 202. According to the Learned Counsel, the 3 rd to 6th Defendants, who had been heirs of Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya, had claimed—through their Defence filed on 22 nd July , JUDGMENT: ELC CASE NO E008 OF 2021 Page 109 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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2022 and the Amended Defence filed on 1 st June, 2023—that the suit parcel GALU/KINONDO/665 had originally had as its first owners in the Adjudication Record Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya, whose registration had allegedly been fraudulently cancelled to reflect the names of Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi, and Afaxisad Mahindu. They had contended that the Adjudication Record in respect of the suit land had not laid a legal basis, nor had it explained the cancellation of the names of the first owners, Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya. They had further asserted that the cancellation and amendment of the record to reflect the names of Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi, and Afaxisad Mahindu had been done fraudulently, thereby impeaching the root of the resultant title. According to them, there had been no good title that could have been passed to Sadiq Ghalia and Eugene Charnel, and ultimately to Sadiq Ghalia as sole proprietor. 203. On the issue of whether the Plaintiffs had locus to claim ownership of the suit land for want of initiating this suit through citation proceedings. The Learned Counsel submitted that the Plaintiffs JUDGMENT: ELC CASE NO E008 OF 2021 Page 110 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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claim that the Defendants lacked locus to claim the suit parcel for want of being legal representatives of the late Rajab Salim Mwadarangunya and Juma Mboga Mwakuyugwa was a non-starter as the suit herein was filed not by the Defendants but the Plaintiffs and they did not raise the said issue in their pleadings so that the Defendants would appropriately respond. In any Defendants - Abdallah Said Kugotwa, Mohamed Rajab case the Mbwata, Omar Juma Mboga and Juma Mwinyi Mbata were the registered owners of the suit land as at 7 th August, 2015 long before the filing of this suit in the year 2021. 204. According to the Learned Counsel, the Plaintiffs had not demonstrated any citation proceedings against the defendants or for that matter the estate of the late Rajab Salim Mwadarangunya and Juma Mboga Mwakuyugwa for purposes of taking out Grant of Letters of administration in respect of the estate of the deceased so as to warrant filing of this suit in the year 2021. 205. Therefore, it was their submissions that the Plaintiff’s admission to filing this suit against the 3rd - 6th defendants before citing the estate of the late Rajab Salim Mwadarangunya and Juma Mboga JUDGMENT: ELC CASE NO E008 OF 2021 Page 111 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Mwakuyugwa in itself renders the suit filed herein a nullity with the recourse being dismissal of the same with costs. 206. On whether the 3rd to 6th Defendants demonstrated fraud in respect of the first registration of the suit land in favour of Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi and Afaxisad Mahindu. The Learned Counsel submitted that the registration of the suit land in favour of Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi, and Afaxisad Mahindu had been a first registration. It had been challenged under the provision of Section 26(1) of the Land Registration Act, which sufficed where such title had been acquired by means of fraud, misrepresentation, illegality, in an unprocedural manner, or through a corrupt scheme. 207. Indeed, the case of “Court of Appeal in Malindi Court of Appeal Civil Appeal No. 16 of 2020 – James Peterson Kinyugu Bandi – Versus Ngumbao Ngonda Dzomo, Director of Land Adjudication and Settlement & 5 Others” had stated that: “that Section 26 of the Land Registration Act is categorical that a certificate of title is prima facie evidence that the person named therein is the proprietor of the land but the same can be challenged where the Certificate of title has been acquired fraudulently, unprocedurally or through corrupt practice.” JUDGMENT: ELC CASE NO E008 OF 2021 Page 112 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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208. The root of the first registration title in the names of Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi and Afaxisad Mahindu having been challenged, the Adjudication Officer was called upon to prove legality of acquisition by production of the adjudication proceedings that led to the cancellation of the names of Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya. Indeed, the Court of Appeal in the case:- “James Peterson Kinyugu Bandi (Supra)” stated: “This was the Hiram Gathiha wisdom of this court in Munyu Maina – Versus Maina [2013] eKLR where it was stated that:-“…..when a registered proprietor’s root of the title is under challenge, it is not sufficient to dangle the instruments of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.” 209. The Court of Appeal has established the ingredients of fraud in “Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 others [2015] eKLR” where the court expressed itself as follows: “As a serious accusation, fraud ought to be specifically pleaded and proved on higher balance of probability but not beyond reasonable doubt. It is not necessary that the word JUDGMENT: ELC CASE NO E008 OF 2021 Page 113 of 180 Fraud be HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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stated or used, but the facts stated in the pleading must be so stated to show that fraud was used, and the circumstances leading to reasonable inference that fraud, illegalities and irregularities were the cause of the loss or damage complained.” 210. The 3rd - 6th Defendants pleaded fraud at Paragraphs 13 and 14 of the Amended Defence filed on 1st June, 2023 specifically stating that Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya did not involve themselves in any transaction relating to disposal of the suit property and that the same was marred with gross fraud, irregularities and illegalities. The 3rd - 6th defendants filed an application dated 13th February, 2025 seeking the summoning of the Adjudication Officer-Kwale/Galu/Kinondo Adjudication Section to produce the Objection Proceedings carried out under the provision of Section 26(1) of the Land Adjudication Act Cap. 284 Laws of Kenya and the order was so issued on 6th March, 2025 summoning the said officer to produce the said documents. 211. According to the Learned Counsel, it was instructive that the Adjudication Officer - Kwale/Galu/Kinondo Adjudication Section confirmed non availability and, in any case, did not produce any Objection proceedings and/or determination to support the purported transfer from Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya to Andrea Wairagu, Rahab Mweru, Cyrus JUDGMENT: ELC CASE NO E008 OF 2021 Page 114 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Waruthingo, Elias Mukundi and Afaxisad Mahindu. The provision of Section 83 of the Evidence Act, Cap. 80 provides as follows:“(1)The Court shall presume to be genuine every document purporting to be certificate, certified copy or other document which is;a. Declared by law to be admissible as evidence of any particular fact; and b. Substantially in the form, and purporting to be executed in the manner, directed by law in that behalf; and c. Purporting to be duly certified by a public officer. (2) The Court shall also presume that any officer by whom any document purports to be signed or certified held, when he signed it, the official character which he claims in such document” 212. From the evidence of DW - 1 (the Deputy Land Adjudication and Settlement Officer) on 13th March, 2025, the cancellation of the two initial allottees and insertion of the names of the five (5) persons above-mentioned was in line with the determination of non-existent objection proceedings (more specifically Objection No.35). 213. The Learned Counsel invited the court to note that the procedure for hearing of objections is well set out under JUDGMENT: ELC CASE NO E008 OF 2021 Page 115 of 180 the provision of HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Section 12 (1) of the Land Adjudication Act, Cap. 284 which provides that:“In the hearing of any objection or Petition made in writing, the adjudication officer shall make or cause to be made a record of the proceedings, and shall, so far as is practicable, follow the procedure directed to be observed in the hearing of civil suits, save that in his absolute discretion he may admit evidence which would not be admissible in a court of law, and may use evidence adduced in another claim or contained in any official record, and may call evidence of his own accord.” 214. According to the Learned Counsel, it was the 3rd - 6th defendant’s case that in the absence of the crucial objection proceedings notwithstanding the court order issued on 6 th March, 2025 for its production it follows that the alleged objection and the proceedings undertaken by the Adjudication Officer were non existent and that the purported cancellation of the names of Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya and amending them with the names of Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi and Afaxisad Mahindu was nothing but an act of fraud and done without authority as there was no basis for altering the Adjudication Record and thereafter issuing an irregular and/or illegal title of the suit property to JUDGMENT: ELC CASE NO E008 OF 2021 Page 116 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi and Afaxisad Mahindu. 215. They urged the Court to find that fraud has been established by adopting the decision in the case of:- “Kilgoris ELC Appeal E002/2023-Jenifer Dikir -Versus - Nkodedia Reteti Singalo, The Land Registrar Trans Mara West Sub County & 2 Others” where it held that alteration of the Adjudication Record using non-existent proceedings is fraudulent and it stated thus:“The Appellant acted fraudulently by using non-existing proceedings either from the 3rd Respondent and/or the Minister to alter a Government document known as the Adjudication Record for the property known as Plot. No.479 within Nkararo Adjudication Section with a view of procuring a Title Deed of the said property knowing well that the same was the property of the 1st Respondent.” 216. On what is the efficacy of the decision of the Msambweni Land Dispute Tribunal, the Learned Counsel submitted that the decision of the Msambweni Land Dispute Tribunal in terms of the actual owners of the suit land was proper in that the first owners Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya and that the two ( 2 ) JR applications JR 311/2006 and JR 500/2009 are hopeless in terms of interfering with the decision of the Land Registrar to issue the title deed on 7th August, 2015 in the names of Abdallah JUDGMENT: ELC CASE NO E008 OF 2021 Page 117 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Said Kugotwa, Mohamed Rajab Mbwata, Omar Juma Mboga and Juma Mwinyi Mbata. The Msambweni Land Disputes Tribunal which rendered its decision on 1/09/2009 was composed of elders of the KWALE GALU - KINONDO Registration Section area (Document No.2 i.e. 1st and 2nd Defendant’s list of documents also Defendant Exhibit – 4 -Tribunal Decision) who carried out a site visit on 6 th April, 2006 where it confirmed that the parcel had 20 coconut trees planted by the fathers of the 3rd - 6th Defendants and that it also had natural vegetation untampered and graves of the 3 rd to 6th Defendant’s relatives. 217. The substance of the proceedings at the Tribunal was that whereas the Defendants Rajab Salim Mwadarangunya and Juma Mboga Mwakuyugwa (Applicants at the tribunal) were indigenous residents and occupants of the said, the Plaintiffs (foreigners) Andrea Wairagu. Rajab Mweru, Cyrus Wairuthingo, Elias Makundi, Afxisad Mahinda, Eugene J. Chartel had somehow managed to change ownership in their favour. It confirmed that the suit land was essentially ancestral land and to that effect its very original ownership can be traced from the Adjudication Record dated 21st May, 1974. (Document No.15 i.e. the 1st and 2nd Defendant’s list of JUDGMENT: ELC CASE NO E008 OF 2021 Page 118 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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documents) which had Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya as the first registered owners before the illegal cancellation to reflect the names of Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi and Afaxisad Mahindu. 218. The Learned Counsel submitted that the Plaintiffs despite being served failed to adduce evidence so as to lay a legal basis or for that matter explain the cancellation of the names of the first owners Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya and changing the same to reflect the names of Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi and Afaxisad Mahindu. 219. The decision by the Tribunal dated 1 st September, 2009 was adopted by the KWALE PMCC court on 2 nd November, 2009 and varied on 1st September, 2014 to reflect the suit land. (Document No. 3 The 1st and 2nd Defendants list of Documents). The arguments by the plaintiffs that with the enactment of the Environment and Land Court Act in 2011, the Magistrates' court ceased to have jurisdiction over land matters until year 2015 does not hold looked at from the perspective of the Practice Directions by the Chief JUDGMENT: ELC CASE NO E008 OF 2021 Page 119 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Justice as captured in the Gazette Notice No. 5176 dated 28 th July, 2014 which was clear that: “Magistrates court shall continue to hear and determine all cases relating to the environment and the use and occupation of, and title to land (whether pending or new) in which the courts have the requisite pecuniary jurisdiction.” 220. Consequently, they urged the Court to rightfully find that the root of the 1st title reflecting the names of Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi and Afaxisad Mahindu was under challenge hence no party can benefit from the doctrine of bona-fide purchaser as was held by the Supreme Court in the case of:- “Petition 8 (E010) of 2021- Dina Mgt Ltd – Versus - County Govt Mombasa, Chief Land Registrar & Others”.) where it was stated thus: “Article 40 of the Constitution entitled every person to the right to property, subject to the limitations set out therein. Article 40 (6) limited the rights as not extending them to any property that had been found to have been unlawfully acquired. As the 1 st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter could not therefore be protected under article 40. The root of the title having been challenged; the appellant could not benefit from the doctrine of bona fide purchaser.” 221. The purported first registration title in the names of Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi, and JUDGMENT: ELC CASE NO E008 OF 2021 Page 120 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Afaxisad Mahindu had been challenged under the provision of Section 26 (1) of the Land Registration Act on the basis that it had allegedly been acquired by means of fraud, misrepresentation, illegality, in an unprocedural manner, or through a corrupt scheme. The Defendants had argued that the adoption and subsequent amendment of the Tribunal’s decision had been sound in law, contending that contrary to the Plaintiffs’ position, the Magistrate had not heard or determined the substance of the matter but had only adopted the award of the Tribunal as had been provided for under the now repealed Land Disputes Tribunal Act. 222. Further, reliance had been placed on Gazette Notice No. 13573 of 2012, which had set out transitional provisions for proceedings relating to the environment, use, occupation, and title to land. The then Chief Justice, Willy Mutunga, had directed that all proceedings which had been pending before the Resident Magistrates’ Courts— having been transferred thereto from the now defunct District Land Disputes Tribunals—were to continue to be heard and determined by the same Courts. However, the Court’s scrutiny of the record had revealed that the Defendants had not discharged the burden of proof required under Section 107 of the Evidence Act. No cogent JUDGMENT: ELC CASE NO E008 OF 2021 Page 121 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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evidence had been produced to demonstrate fraud in the first registration. Their assertions had remained speculative, procedurally defective, and unsupported by documentary or testimonial foundation. 223. On the issue of the effect of the non – existence of objection proceedings undertaken by the Land Adjudication Officer in relation to the suit land within the Kwale/Galu/Kinondo Adjudication section, the Learned Counsel submitted that the crux of the 3 rd to 6th Defendants’ case had been that Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya had been adjudicated the property known as GALU/KINONDO/665 through the Adjudication Committee of the Galu/Kinondo Adjudication Section. Subsequently, an objection had been filed by the said Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya, which had resulted in cancellation and amendment of their names in favour of Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi, and Afaxisad Mahindu. 224. It had been this transaction in respect of the objection proceedings that had resulted in the cancellation and amendment of the names of Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya, replacing them with the names of Andrea Wairagu, Rahab Mweru, JUDGMENT: ELC CASE NO E008 OF 2021 Page 122 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Cyrus Waruthingo, Elias Mukundi, and Afaxisad Mahindu, that had formed the core of these proceedings. The Kwale Adjudication Officer, notwithstanding an order issued on 6 th March, 2025, had failed to produce the objection proceedings, stating that the same had been non-existent, the files having been eaten and destroyed by rodents. Hence, the circumstances underlying the cancellation and amendment of the Adjudication Record had remained a mystery. 225. For the record, the Defendants’ case had not been in respect of the filing of an objection under Section 26 (1) of the Land Adjudication Act, Cap. 284, whether out of time or not, nor the failure to serve the same on the Defendants either intentionally or otherwise, nor the inappropriate manner in which the proceedings had been undertaken—which would only have rendered the said proceedings irregular, unlawful, null and void, and therefore a subject of judicial review or constitutional petition. Rather, their case had been premised on the assertion that there had been outright fraud, as such objection proceedings had been non-existent, a confirmed by the Adjudication Officer. JUDGMENT: ELC CASE NO E008 OF 2021 Page 123 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE) fact

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226. It was the humble submissions of the 3 rd to 6th Defendants that the Adjudication Officer in purporting to cancel and amending the Adjudication Register by replacing the names of Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya with those of Andrea Wairagu, Rahab Mweru, Cyrus Waruthingo, Elias Mukundi and Afaxisad Mahindu without conducting Objection Proceedings as envisaged under Section 12 (1) of the Land Adjudication Act, Cap. 284 acted outside their legitimate scope of authority and the resultant decision was illegal, null and void as stated in the case of “Onyango Oloo – Versus - Attorney General [1986-1989] EA 456” where the Court of Appeal expressed itself as follows:“.......The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly and they cannot act fairly and be seen to have acted fairly without giving an opportunity to be heard...There is a presumption in the interpretation of statutes that rules of natural justice will apply and therefore the authority is required to act fairly and so to apply the principle of natural justice.......Denial of the right to be heard renders any decision made null and void ab initio.” 227. On the issue of the effect of the judicial review proceedings presented by the Plaintiffs. The Learned Counsel averred that it was their humble submission No.500/2009, JR Application JUDGMENT: ELC CASE NO E008 OF 2021 Page 124 of 180 that Mombasa JR application No.55/2009 and Mombasa HCC HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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34/2010(O.S) do not in any way affect either the decision of the Msambweni Land Disputes Tribunal or the registered rights conferred upon the 3rd to 6th Plaintiffs as the rightful heirs of Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya. It was instructive that whereas the Msambweni Land Disputes Tribunal elders in arriving at their decision at the Tribunal addressed the substantial issue in terms of who is the legitimate owner of the suit land it must be noted that Judicial Review proceedings do not deal with the substance in terms of ownership of the suit land. But basically the capacity of the Tribunal to cancel registered rights. 228. The Learned Counsel argued that the limited scope of Judicial Review proceedings had been addressed by the High Court in the case of:- “Republic – Versus - Attorney General & 4 others Ex - Parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR” which set out the scope of judicial review proceedings as follows: “Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. It follows that where an applicant brings judicial review proceedings with a view to determining contested JUDGMENT: ELC CASE NO E008 OF 2021 Page 125 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved.” 229. The Msambweni Land Disputes Tribunal rightfully established ownership in its decision rendered on 1/09/2009 pursuant to Sections 3(1) and 7 of the defunct Land Disputes Tribunals Act Cap 303A and ought to have recommended the Defendants to move to court to have the said Plaintiffs title cancelled as this court is being humbly asked to exercise its discretion to hereby do and validate the 3rd - 6th Defendants ownership being the heirs of Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya. It was instructive from the record that whereas the Land Registry was served with Chamber Summons JR application No.500/2009 and with order that leave thereby granted on 23 rd October, 2009 to operate as stay, neither the Land Registry nor the affected parties were served with substantive motion filed within 21 days as envisaged under the provision of Order 53 Rule 3 of the Civil Procedure Rules, 2010 hence the orders lapsed automatically. JUDGMENT: ELC CASE NO E008 OF 2021 Page 126 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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230. The Plaintiffs did not exhibit any evidence of the filed substantive motion in respect of JR Application No.500/2009 or of any final orders resulting therefrom and neither was there any evidence before this court in the form of return of service or otherwise to demonstrate that the Land Registry was served with the final orders in respect of the JR Application No.55/2009 before the issue of title deed on 7th August, 2015 in the names of Abdallah Said Kugotwa, Mohamed Rajab Mbwata, Omar Juma Mboga and Juma Mwinyi Mbata. 231. The Green Card in respect of the suit land never demonstrated the filing of the purported stay or final order in respect of JR Application No. 500/2009 before the issue of title deed on 7 th August, 2015 (The Green Card was Document No.1 in the 1 st and 2nd Defendants List of Documents.) The first time the Plaintiffs effected an entry in the register in terms of a restriction in respect of the suit land was on 14th February, 2019 long after the registered rights of Abdallah Said Kugotwa, Mohamed Rajab Mbwata, Omar Juma Mboga and Juma Mwinyi Mbata had been effected on 7th August, 2015. The Ruling by Justice Ojwang J.B delivered on 24th September, 2010 in Mombasa HCC 34/2010(O.S) JUDGMENT: ELC CASE NO E008 OF 2021 Page 127 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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(Plaintiff Exhibit Number 13) and the Order from the court by Justice Ojwang J.B in terms of JR 500/2009. (Plaintiff Exhibit No. 14) demonstrate that the directions issued by Ojwang.J.B on 24 th September, 2010, Mombasa HCC JR 500/2009 was to be heard within 100 days from 24th September, 2010 i.e. by 15th January, 2011 whereas according to the order filed as Plaintiff Exhibit Number -14 it would seem that the final orders were issued by Ojwang J.B on 9th September, 2010 which is long before the same Judge gave directions for hearing. 232. The Learned Counsel held that the 3rd to 6th Defendants had argued that whereas Abdallah Said Kugotwa, Mohamed Rajab Mbwata, Omar Juma Mboga, and Juma Mwinyi Mbata had been directly affected as recognized owners of Kwale/Galu/Kinondo/665 pursuant to orders of the Msambweni Land Disputes Tribunal dated 1 st September, 2009, and had therefore been Interested Parties in Judicial Review No. 500 of 2009 pursuant to Order 53 Rule 3 of the Civil Procedure Rules, 2010 they had never been served with either the pleadings or any orders resulting therefrom. 233. Further, they had contended that whereas Ojwang J.B. had noted on 24th September, 2010 that the Plaintiffs had not prosecuted HCC JUDGMENT: ELC CASE NO E008 OF 2021 Page 128 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Misc. Application No. 311 of 2006, the Plaintiffs had produced a consent (Plaintiff Exhibit Number 10) on the said file dated 13 th May, 2008, but validated through filing at the High Court on 15 th March, 2010. That consent had allegedly been mischievous and purportedly signed by Advocate Steve Odiaga for the Interested Parties, although the 3rd to 6th Defendants had testified that he had not been comfortable representing them in the matter HCC Misc. Application No. 311 of 2006, out of respect for Advocate Saleem Ghalia (PW-1), who had been one of the applicants and at the time the Chair of the Mombasa Law Society. 234. The Learned Counsel opine that they had demonstrated that by date of the purported consent of 13 th May, 2008, the Tribunal had already sat and heard the dispute on 28 th March, 2006 as captured in the proceedings and in any case no evidence has been adduced to demonstrate that the purported consent order dated 13 th May, 2008 was ever served upon the Msambweni Land Dispute Tribunal. Further that by the date of the purported validation of the consent in HCC MISC APPLICATION 311/2006 on 15 th March, 2010 when it was filed at the High Court, the Msambweni Land Dispute Tribunal had already proceeded with hearing on 28 th March, 2006 and JUDGMENT: ELC CASE NO E008 OF 2021 Page 129 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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rendered a determination on 26th October, 2009. (Document No. 2 i.e. 1st and 2nd Defendant’s list of documents also Defendant Exhibit Number 4 -Tribunal Decision). 235. According to the Learned Counsel, it was the 3 rd - 6th Defendants’ case that handling of Mombasa HCC 34/2010(OS) was never a priority because before 14th February, 2019 there existed no legal entry in the register in respect of the suit landthat would in any way tamper with the registered rights of Abdallah Said Kugotwa, Mohamed Rajab Mbwata, Omar Juma Mboga and Juma Mwinyi Mbata effected on 7th August, 2015. 236. The 3rd - 6th Defendants testified that orders sought in Mombasa HCC 34/2010(OS)(Plaintiff Exhibit Number 13) was by mistake of the lawyer (Wambo & Company Advocates) as in any case the orders it sought would lawfully be secured by moving to the Kwale PMCC Court to adopt the actual decision of the Tribunal citing the suit land which step the defendants took and ultimately managed to file the proper application at the Kwale PMCC Court (Document No.3 in the 1st and 2nd defendants List of Documents) resulting in orders on 24/04/2015 reviewing the orders dated 2 nd November, 2009 to reflect the suit land in the names of Abdallah Said JUDGMENT: ELC CASE NO E008 OF 2021 Page 130 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Kugotwa, Mohamed Rajab Mbwata, Omar Juma Mboga and Juma Mwinyi Mbata. 237. In summary, they urged that the Honourable Court to dismiss this suit with costs and uphold the registered rights conferred upon the 3rd - 6th defendants as the rightful heirs of Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya. D.The Written Supplementary Submissions by the Plaintiffs 238. With the leave of Court, the Plaintiffs through the Law firm of Messrs. Ndegwa & Sitonik Advocates filed their supplementary written submissions dated 15th October, 2025. Dr. Ndegwa Advocate submitted that the 3rd to 6th Defendants’ submission had been that the decision of the Land Disputes Tribunal had been proper, while the provision of Section 3 (1) of the repealed Land Disputes Tribunals Act, No. 18 of 1990 had expressly limited the Tribunal’s jurisdiction to matters relating to division, determination of boundaries, claims to occupy or work land, and trespass. The doctrine of approbation and reprobation had barred a party from blowing hot and cold in the same matter. Having relied on a JUDGMENT: ELC CASE NO E008 OF 2021 Page 131 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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process that the law had expressly forbidden, they could not then have sought to clothe it with legitimacy. 239. On the alleged fraud in the adjudication record. The Learned Counsel submitted that the 3rd to 6th Defendants’ allegations of fraud had been procedurally hollow. There had been no Counter Claim filed seeking cancellation of the Plaintiffs’ title or any declaratory relief based on the alleged fraud. The law had not permitted a party to impugn a registered title merely by submissions from the bar. In the absence of a Counter - Claim, their assertions had remained bare rhetoric with no legal consequence. The burden had squarely rested upon the 3 rd to 6th Defendants to prove the alleged fraud. Allegations of fraud had been required to be strictly proved, not inferred from suspicion or dissatisfaction. 240. The Defendants had not produced any evidence to demonstrate that fraud had occurred. Their claim had been, at best, conjecture unsupported by any documentary or testimonial foundation. Even assuming that there had been any element of fraud in the adjudication process—which had been denied—the Defendants’ claim would still have been time-barred. By their own admission, the alleged fraud had been discovered in or around the year 1980. JUDGMENT: ELC CASE NO E008 OF 2021 Page 132 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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The provision of Section 26 of the Limitation of Actions Act, Cap. 22 had provided that actions founded on fraud must have been brought within three years of discovery. To have attempted to re open adjudication proceedings nearly half a century later had been a clear abuse of the Court process. 241. On the jurisdiction of this Court over the adjudication process. The Learned Counsel opined that further, and in any event, this Honourable Court had lacked jurisdiction to entertain a collateral attack on the adjudication process. The Land Adjudication Act, at Section 29, had provided an express mechanism for challenging determinations arising from objections by way of appeal to the Minister within sixty days of the decision. The 3 rd to 6th Defendants had neither pursued such an appeal nor demonstrated compliance with the procedure set out in the statute. Having slept on their statutory remedies, they could not then have invited this Court to sit as an appellate forum over objection proceedings that had already been concluded under the Adjudication Act. 242. According to the Learned Counsel, this Court’s jurisdiction under the provision of Article 162(2)(b) of the Constitution and the Environment and Land Court Act had not extended to revisiting JUDGMENT: ELC CASE NO E008 OF 2021 Page 133 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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administrative decisions rendered under a distinct statutory appeal framework. The 3rd to 6th Defendants’ claim had therefore collapsed, both on limitation and on want of jurisdiction. 243. On the orders of Certiorari and Prohibition issued by the High Court. The Learned Counsel submitted that it had also been important to note that the 3rd to 6th Defendants had not disputed the existence of the High Court’s judgment in Judicial Review No. 500 of 2009, wherein orders of Certiorari and Prohibition had been issued on 9th September 2010, quashing the Msambweni Land Disputes Tribunal’s award and prohibiting the Land Registrar from implementing it. Those orders had remained valid and unchallenged. Once a decision had been quashed by Certiorari, it had been rendered void and of no legal consequence, as though it had never existed. Any action premised on the quashed award— including the purported revocation of the Plaintiffs’ title and registration of the 3rd to 6th Defendants—had therefore been a nullity. 244. To the extent that the Defendants had continued to rely on the Tribunal’s award, they had stood in direct defiance of subsisting JUDGMENT: ELC CASE NO E008 OF 2021 Page 134 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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High Court orders. The law had not recognized rights born of contempt. 245. On the 3rd to 6th Defendants’ lack of locus standi to lay claim to the suit land. The Learned Counsel submitted that on the issue of locus standi, the 3rd to 6th Defendants had appeared to suggest that the Plaintiffs had been required to specifically plead their want of capacity. Respectfully, that position had been misplaced. The question of “locus standi” had been a pure point of law that had gone to the competence of the proceedings and the capacity of a party. It had not needed to be pleaded; it could have been raised at any stage of the proceedings, including on submission. 246. In conclusion, the Learned Counsel averred that in the end, the 3 rd to 6th Defendants’ case had stood on sand. The Tribunal upon which they had relied had acted without jurisdiction; the adjudication process they had impugned had long been concluded; their claims of fraud had remained unproven, time-barred, procedurally defective, and unsupported by any counterclaim. They had lacked the requisite locus standi, their alleged title had stemmed from a quashed award, and every action taken in reliance upon that void process had itself been a nullity. The Plaintiffs’ title had remained JUDGMENT: ELC CASE NO E008 OF 2021 Page 135 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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the only lawful and indefeasible one under the provision of Section 26 of the Land Registration Act. Therefore, the Court had been urged to uphold the sanctity of registered title and the finality of superior court orders. VIII. Analysis and Determination 247. I have carefully read and analyzed all the pleadings herein, both the oral and all the empirical documentary evidence adduced in court, the written submission, the myriad of cited authorities made by the Plaintiffs and the Defendants and the relevant provisions of the Constitution of Kenya, 2010 and the statures. 248. Prior to proceeding any further, it is instructive to observe that the Doctrine on “the Burden of Proof” is critical here. Specifically, I am guided by the provision of Section 107 (1) of the Evidence Act, cap. 80 which provides that: “Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 249. Section 108 provides: “The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.” 250. And section 109 provides: JUDGMENT: ELC CASE NO E008 OF 2021 Page 136 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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“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 for by law that the proof of that fact shall lie on any particular person.” 251. For the Honourable Court to arrive at a reasonable, fair and Equitable decision, it has crafted the following ten (10) salient issues for its determination. These are:a) Whether the 3rd, 4th, 5th, and 6th Defendants possessed the legal capacity (locus standi) to raise a claim over the estates of their alleged predecessors. b) Whether the Msambweni District Land Disputes Tribunal and the Principal Magistrate’s Court at Kwale possessed the requisite jurisdiction to enter decrees revoking, cancelling, or shifting registered land titles c) Whether the Court has jurisdiction to hear and determine this suit; d) Whether the Plaintiffs’ claim is barred by the Doctrine of Res Judicata or by reason of the prior proceedings e) Whether the title of SADIQ GHALIA (deceased) to the suit property is valid and indefeasible; f) Whether the title issued to the 3rd to 6th Defendants on 7th August, 2015 was procured fraudulently, illegally or unprocedurally; g) What is the legal efficacy of the parallel green card register opened on 5th May, 2015, vis-à-vis the original land register opened on 15th November, 1974? h) Who is the lawful registered proprietor of the suit property, and what reliefs are available to the parties? i) Whether the Plaintiffs are entitled to the reliefs sought; JUDGMENT: ELC CASE NO E008 OF 2021 Page 137 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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j) Who should bear the costs of the suit. ISSUE No. A: Whether the 3rd, 4th, 5th, and 6th Defendants possessed the legal capacity (locus standi) to raise a claim over the estates of their alleged predecessors. 252. Under this sub-title, the Honourable Court deciphers the question of whether the 3rd, 4th, 5th, and 6th Defendants possessed the legal capacity (locus standi) to raise a claim over the estates of their alleged predecessors. Locus standi is defined in Black’s Law Dictionary, 9th Edition (page 1026) as “the right to bring an action or to be heard in a given forum”. In the case of:- “Alfred Njau and Others – Versus - City Council of Nairobi (1982) KAR 229” , the Court held that;“the term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”. 253. A claim that one has no locus standi therefore challenges a party’s right to be heard before a court and if a determination is made in the affirmative then this issue has the capability of disposing of the suit. A claim that a party lacks locus standi therefore is a pure point of law and one that needs to be raised and determined at the earliest. JUDGMENT: ELC CASE NO E008 OF 2021 Page 138 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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254. In the case of “Law Society of Kenya – Versus - Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000” , the Court held that;“Locus Standi signifies a right to be heard, A person must have sufficiency of interest to sustain his standing to sue in Court of Law”. Further in the case of Alfred Njau and Others – Versus - City Council of Nairobi ( 1982) KAR 229, the Court also held that;“the term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”. 255. Legally speaking, “Locus Standi” is the cornerstone of any case. Before a party files a case, he or she must be certain that they are clothed with the requisite capacity to sue and be sued. In the case of “BV Law society of Kenya – Versus - Commissioner of Lands and Others, Nakuru High Court, Civil Case No. 464 of 2000” . It was held that:If a party has no locus standi, then the said party cannot bring a suit to court. The issue of locus standi goes to the root of any suit and the said issue of locus standi is a point of law which is capable of disposing of a matter preliminarily. 256. Therefore, it is evident that locus standi is the right to appear and be heard in Court or other proceedings and literally, it means ‘a place of standing’. Therefore if a party is found to have no locus JUDGMENT: ELC CASE NO E008 OF 2021 Page 139 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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standi, then it means he/she cannot be heard even on whether or not he has a case worth listening to. It is further evident that if this Court was to find that the Applicant has no locus standi, then the Applicant cannot be heard and that point alone may dispose of the suit. In the case of “Quick Enterprises Limited - Versus - Kenya Railways Corporation, Kisumu High Court Civil Case No. 22 of 1999” , the Court held that:“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the court having to resort to ascertaining the facts from elsewhere apart from looking at the pleadings alone”. 257. The 1st, 2nd & 3rd Plaintiffs have intensely challenged the legal capacity of the 3rd to 6th Defendants to assert claims as “heirs and beneficiaries” of the late Rajab Salim Mwadarangunya and Juma Mboga Mwakuyugwa. During cross - examination, DW - 1 (Juma Mwinyi Mbata) openly admitted to this Court that neither he nor his Co -Defendants possessed any Grant Letters of Administration or even an official introductory letter from the local chief to authenticate their relationship or capacity to represent the deceased persons' estates. 258. The question of locus standi speaks directly to the competence and integrity of any proceedings and the legal capacity of a party to JUDGMENT: ELC CASE NO E008 OF 2021 Page 140 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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institute, manage or defend a claim. In the present matter, the 3 rd – 6th Defendants maintain that, as heirs of Juma Mboga Mwakuyugwa and Rajabu Salimu Ndaragunya, they possess the right to challenge the Plaintiffs’ title to parcel Kwale/Galu/Kinondo/665. Their position is rooted in succession: they argue that because their predecessors were the first registered owners in the adjudication record, any rights flowing from that record devolve to them by inheritance. 259. Yet, I dare say that locus standi is not established merely by asserting lineage or succession. The law requires that the predecessors themselves hold a valid, enforceable interest at the time of transmission. Succession operates to pass on existing rights, not to create new ones. Where the predecessors’ claim is extinguished—whether by lawful adjudication, cancellation, or superior court orders—there is no legal right capable of being inherited. Succession cannot breathe life into a void or fraudulent entitlement. 260. The Defendants’ alleged title stems from a quashed Tribunal award. Once the High Court issues orders of certiorari and prohibition in Judicial Review No. 500 of 2009, the Tribunal’s decision is rendered void ab initio. Every subsequent action JUDGMENT: ELC CASE NO E008 OF 2021 Page 141 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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premised on that void award—including the purported cancellation of the Plaintiffs’ title and the registration of the Defendants—is itself a nullity. In law, one cannot build rights upon a foundation that has already been extinguished. The doctrine of nullity is absolute: what is void cannot be validated by reliance, passage of time, or inheritance. 261. Thus, while the Defendants present themselves as heirs, their claim collapses because their predecessors have no valid title to transmit. The doctrine of locus standi requires a legally recognizable interest, and in this case, none exists. The Plaintiffs’ registered title remains the only lawful and indefeasible one under Section 26 of the Land Registration Act, and the Defendants’ reliance on extinguished rights cannot confer standing. 262. It is a fundamental, bedrock principle of the law of succession in Kenya that no individual can sue, be sued, or enter a defense on behalf of the estate of a deceased person without a grant of representation. This statutory demand is anchored under the provision of Section 82 (a) of the Law of Succession Act, Cap. 160, which restricts the power to enforce actions surviving a deceased person strictly to personal representatives who hold a valid, JUDGMENT: ELC CASE NO E008 OF 2021 Page 142 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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subsisting grant. This position was cleanly settled by the Court of Appeal in the historic case of “Trouistik Union International & Another – Versus - Jane Mbeyu & Another [1993] eKLR” , which bindingly affirmed the rule in “Otieno – Versus - Ougo (1987)”: “The administrator is not entitled to bring an action as administrator before he has taken letters of administration. If he does, the action is incompetent at the date of its inception.” 263. Furthermore, in the case of:- “Rajesh Pranjivan Chudasama – Versus - Sailesh Pranjivan Chudasama [2014] eKLR”, the Court of Appeal held that issues of locus standi are critical preliminary threshold questions; any claim raised by a party lacking capacity is a nullity ab initio. 264. Consequently, based on the fore going, this Honourable Court while fully concurring with the submission by the Plaintiffs and the 1 st and 2nd Defendants finds that the 3rd to 6th Defendants lacked the pre – requisite legal capacity to mount a collateral claim over the suit property on behalf of the long-deceased ancestral relatives. ISSUE No. b). Whether the Msambweni District Land Disputes Tribunal and the Principal Magistrate’s Court at Kwale possessed the requisite jurisdiction to enter decrees revoking, cancelling, or shifting registered land titles. JUDGMENT: ELC CASE NO E008 OF 2021 Page 143 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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265. Under this sub-title, the Honourable Court deciphers whether the Msambweni District Land Disputes Tribunal and the Principal Magistrate’s Court at Kwale possessed the requisite jurisdiction to enter decrees revoking, cancelling, or shifting registered land titles. Jurisdiction is the bedrock of adjudication in all cases. It is the authority that breathes oxygen hence life into a tribunal or court’s decision. Without jurisdiction, any decree or order is void ab initio— legally nonexistent, incapable of conferring rights or obligations, and unenforceable in law. 266. I emphasize that the jurisdictional question is pivotal, for jurisdiction is the lifeblood of any judicial or quasi-judicial body. Without it, any decision rendered is void ab initio, incapable of conferring rights or obligations. Under the repealed Land Disputes Tribunals Act (No. 18 of 1990), the scope of the Tribunal’s powers is narrowly circumscribed. Section 3(1) expressly limits jurisdiction to four categories:  division of land,  determination of boundaries,  claims to occupy or work land, and  trespass JUDGMENT: ELC CASE NO E008 OF 2021 Page 144 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE) its

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267. The Defendants heavily relied on the award of the Msambweni District Land Disputes Tribunal in Land Dispute No. 44 of 2005 and the subsequent adoption order by the Principal Magistrate’s Court. This Court must strictly interrogate the statutory boundaries of those bodies. The statute completely excluded any power to determine ultimate land ownership, challenge registered titles, or order the Land Registrar to revoke or cancel title deeds. By entertaining a claim explicitly designed to cancel Sadiq Ghalia’s title and replace it with the Defendants’ names, the Msambweni Tribunal clearly expanded its own statutory boundaries, acting completely ultra vires. 268. In the leading case of “Munga & 9 Others – Versus - Nyamawi & 5 Others [2023] KECA 1321 (KLR)”, the Court of Appeal explicitly dealt with this exact scenario, stating: “The law is clear that an order made without jurisdiction is void and if an act is void, then it is in law a nullity as it is not only bad but incurably bad... You cannot put something on nothing and expect it to stay there, as it will collapse.” 269. Similarly, in the case of:- “Republic – Versus - North Kinangop Land Tribunal & 2 Others Ex - Parte David Muthee Mburu [2015] KEELC 453 (KLR)”, it was re-emphasized that tribunals do not possess any jurisdiction to issue declaratory orders on land ownership. To make JUDGMENT: ELC CASE NO E008 OF 2021 Page 145 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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matters worse, the subsequent implementation orders obtained from the Principal Magistrate’s Court at Kwale on 5 th May, 2015 (issued by Hon. P.K. Mutai), are equally infected with a total lack of jurisdiction. Following the enactment of the Environment and Land Court Act in 2011, Magistrate courts were completely stripped of jurisdiction over land ownership matters until the law was later amended to allow the Chief Justice to specifically gazette specific Magistrates. The Principal Magistrate’s Court at Kwale, in adopting the Tribunal’s award under Section 7 of the repealed Act, did not acquire jurisdiction to revoke or cancel registered titles. Adoption merely converted the Tribunal’s award into a judgment of the court for enforcement purposes; it did not expand the Magistrate’s jurisdiction. Magistrates’ Courts are creatures of statute, and their jurisdiction is defined by law. They cannot arrogate to themselves powers reserved for superior courts, nor can they validate an award that is void for want of jurisdiction. 270. Evidence tabled before this Court via Gazette Notice No. 1472 demonstrates that Hon. P.K. Mutai was never gazetted to handle environment and land matters. A court acting without jurisdiction cannot create valid legal rights. The orders issued by the Tribunal JUDGMENT: ELC CASE NO E008 OF 2021 Page 146 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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and the Magistrate’s Court were void ab initio, incapable of shifting title. 271. Both the Msambweni District Land Disputes Tribunal and the Principal Magistrate’s Court at Kwale lacked jurisdiction to revoke, cancel, or shift registered land titles. Any decrees purporting to do so are void and unenforceable. The sanctity of registered title under Section 26 of the Land Registration Act remains untouched by proceedings that are jurisdictionally defective from inception. 272. Therefore, the Court must treat such awards and decrees as legal nullities, incapable of undermining the indefeasibility of the Plaintiffs’ registered title. ISSUE No. c). Whether the Court has jurisdiction to hear and determine this suit 273. Under this sub-title, the Honourable Court deciphers whether the whether the Court has jurisdiction to hear and determine this suit. The jurisdiction of this Court is conferred by the provision of Article 162(2)(b) of the Constitution of Kenya, 2010, which establishes a court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land. The jurisdiction of JUDGMENT: ELC CASE NO E008 OF 2021 Page 147 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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this court is provided for under Article 162 (2) of the Constitution where it is provided that: “Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— environment and the use and occupation of, and title to, land”. 274. The jurisdiction is elaborated in the provision of Section 13 of the Environment and Land Court Act, No. 19 of 2011, which provides as follows: “13. Jurisdiction of the Court (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) 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.” JUDGMENT: ELC CASE NO E008 OF 2021 Page 148 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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275. The present registration dispute, of the concerning suit property, the ownership, title and falls squarely within the jurisdiction conferred by Section 13 (2)(a) and (d) of the Act. 276. It is trite that jurisdiction is everything and without it a court has no power to make one more step. In the celebrated case of “Owners of the Motor Vessel “Lillian S” – Versus - Caltex Oil (Kenya) Ltd [1989] KLR 1”, Nyarangi JA held: “Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 277. The jurisdiction of this court to hear and determine this suit flows from the Constitution and the law. The jurisdiction of court is not conferred upon it by parties nor can the court confer upon itself jurisdiction. The Supreme Court in the case of “Samuel Kamau Macharia and Another – Versus - Kenya Commercial Bank Limited & 2 others (2012) eKLR” held that; “A court’s jurisdiction flows from either the constitution of legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and JUDGMENT: ELC CASE NO E008 OF 2021 Page 149 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.” 278. The 1st and 2nd Defendants raised a preliminary objection to the effect that the mandatory notice of intention to sue the Government had not been served upon the Attorney General prior to the institution of the suit, rendering the suit fatally and incurably defective as against them. 279. This Court notes that the matter proceeded to full hearing on the merits, and that the substantive dispute concerns the validity of title to land. The Court is satisfied that it has jurisdiction to hear and determine the dispute, and that the preliminary objection, insofar as it sought to strike out the suit, was not sustained. The overriding objective under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Court Act, No. 19 of 2011 requires the Court to facilitate the just, expeditious, proportionate and accessible resolution of disputes, and to give effect to the overriding objective in the interpretation of any provision of the Act. JUDGMENT: ELC CASE NO E008 OF 2021 Page 150 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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ISSUE No. d). Whether the Plaintiffs’ claim is barred by the doctrine of Res Judicata or by reason of the prior proceedings 280. Under this sub-title, the Honourable Court deciphers the whether the Plaintiffs’ claim is barred by “ the doctrine of Res Judicata” or by reason of the prior proceedings. The 3 rd to 6th Defendants contended that the suit property was the subject of prior proceedings, including Land Dispute No. 44/2005 before the Msambweni District Land Tribunal, and that the Tribunal’s award was adopted by the Principal Magistrate's Court at Kwale in Land Case No. 34 of 2009, and that the suit is therefore barred by the doctrine of res judicata. 281. The doctrine of res judicata is codified in the provision of Section 7 of the Civil Procedure Act, Cap. 21, which provides: “7. Res judicata No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 282. For the doctrine of res judicata to apply, the earlier decision must have been made by a court of competent jurisdiction. In the JUDGMENT: ELC CASE NO E008 OF 2021 Page 151 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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present case, the prior proceedings before the Msambweni District Land Tribunal were a nullity for want of jurisdiction, as I shall demonstrate hereunder. A decision made without jurisdiction is void ab initio and cannot found a plea of res judicata. 283. The jurisdiction of the Land Disputes Tribunal was circumscribed by the provision of Section 3(1) of the Land Disputes Tribunal Act, No. 18 of 1990 (repealed), which provided: “3. (1) Subject to this Act, all cases of a civil nature involving a dispute as to— (a) the division of, or the determination of boundaries to land, including land held in common; (b) a claim to occupy or work land; or (c) trespass to land, shall be heard and determined by a Tribunal established under section 4.” 284. From the face of it, certainly, the claim presented to the Msambweni District Land Tribunal in Land Dispute No. 44 of 2005 was neither a boundary dispute, a claim to occupy, work land nor a claim of trespass. Evidently, it was a claim for ownership of registered land, seeking the revocation and cancellation of the deceased’s title and the issuance of a new title to the 3 rd to 6th Defendants. Legally speaking, this was entirely outside the jurisdiction of the Tribunal. The High Court at Mombasa, in JUDGMENT: ELC CASE NO E008 OF 2021 Page 152 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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Miscellaneous Civil Application No. 500/2009, granted an order of certiorari quashing the award of the Msambweni District Land Tribunal in Land Dispute No. 44 of 2005, and an order of prohibition prohibiting the District Land Registrar from revoking and cancelling the title held by the deceased. The originating summons in Civil Suit No. 34/2010 (O.S.) was dismissed with costs on 19 th July 2017. 285. The law on the nullity of decisions made without jurisdiction is well settled. In the case of:- “Republic – Versus - Principal Magistrate (Kwale) & others (Mombasa High Court Misc. Cause No. 29 of 2012 (JR))”, which concerned the very same Msambweni Land Disputes Tribunal and the Kwale Principal Magistrate’s Court, Odero J. held: “The claim presented to the Msambweni Land Disputes Tribunal was not a boundary dispute it was a claim for ownership of land. The Tribunal therefore exceeded its mandate in hearing and determining the matter. They had no jurisdiction to sit over the matter and as such their decision being ultra vires was void ab initio... A decision which is ultra vires is void ab initio and is therefore a nullity. It would be as if such decision had never been made.” 286. Likewise, the Court of Appeal in the case of:- “Republic – Versus Richard Mukiti Mbindyo & another; Ex - Parte Ruth Katuni Kamuti [2022] eKLR” held: “Since it is indisputable that the Land Disputes Tribunal had no jurisdiction to purport to determine ownership and to cancel the JUDGMENT: ELC CASE NO E008 OF 2021 Page 153 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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appellant's title to the land in question, we have no hesitation in finding that the tribunal's decision was ultra vires, made without jurisdiction and therefore null and void ab initio. It amounted to nothing and could not form a sound basis upon which a decree could issue from the Magistrate’s Court. Any transfer of the title in execution of the said invalid decree was equally null and void.” 287. Similarly, under the same breath, in in the case of:- “Republic – Versus - Land Disputes Tribunal, Asego Division & another, Ex - Parte Moses Otieno Osoti [2012] eKLR”, the Court held:“This court finds that the Tribunal acted ultra vires its jurisdiction in adjudicating over title to registered land. The power of the Land Dispute Tribunal to deliberate over issues related to land is limited by Section 3 of the Act to disputes relating to trespass to land, disputes relating to boundaries and one's right to occupy and work on land. It must not act outside its jurisdiction as limited by statute.” 288. In the circumstances, the award of the Msambweni District Land Tribunal in Land Dispute No. 44 of 2005, and its purported adoption by the Principal Magistrate's Court at Kwale in Land Case No. 34 of 2009, were nullities. They could not, and did not, form a valid basis for the issuance of a new title to the 3 rd to 6th Defendants. 289. Thus, I discern that the doctrine of res judicata cannot be invoked in respect of proceedings that were a nullity, for a nullity is, in law, as if it had never been made. Therefore, the plea of breach of the Doctrine of Res Judicata fails thereof. JUDGMENT: ELC CASE NO E008 OF 2021 Page 154 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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ISSUE No. e). Whether the title of SADIQ GHALIA (deceased) to the suit property is valid and indefeasible 290. Under this sub title, the Court shall examine whether the title of SADIQ GHALIA (deceased) to the suit property is valid and indefeasible. The evidence establishes that the deceased, SADIQ GHALIA, was registered as the proprietor of the suit property on 29 th May, 1980, following a valid transfer for valuable consideration. His title was issued under the Registered Land Act, Cap. 300 (Now repealed), and is now governed by the Land Registration Act, No. 3 of 2012. 291. The efficacy and effect of registration of land in Kenya is codified under the provision of Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012. Section 24 provides: “24. Interest conferred by registration Subject to this Act— (a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and (b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.” 292. Section 25 of the Land Registration Act, 2012 provides: JUDGMENT: ELC CASE NO E008 OF 2021 Page 155 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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“25. Rights of a proprietor (1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject— (a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and (b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. (2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.” 293. The Certificate of title, as a “prima facie” evidence is declared to be conclusive evidence of proprietorship by the provision of Section 26 of the Land Registration Act, 2012, which provides: “26. Certificate of title to be held as conclusive evidence of proprietorship (1) 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— JUDGMENT: ELC CASE NO E008 OF 2021 Page 156 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. (2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.” 294. The sanctity of title was affirmed by the Court of Appeal in the case of:- “Joseph N.K. Arap Ng'ok – Versus - Moijo Ole Keiwua & 4 others [1997] eKLR”, where the Court held: “Section 23 (1) of the Act gives an absolute and indefeasible title to the owner of the property. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy.” 295. However, the Court of Appeal in the case of “Munyu Maina – Versus - Hiram Gathiha Maina [Supra)” held that where a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. The Court stated: “We state that when a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as JUDGMENT: ELC CASE NO E008 OF 2021 Page 157 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.” 296. In the present case, the deceased's title was traced through a valid chain of transfer from the original registered proprietors, supported by the transfer instruments (Plaintiff Exhibit No. 5 and Plaintiff Exhibit Numbers 6), the Land Control Board consents, and the Green Card. The evidence of the Land Registrar confirmed that the first Register shows SADIQ GHALIA as the last registered owner with all indefeasible rights, title and interest vested on the suit land and vested in law, with no entry cancelling or revoking his title. The deceased's title is therefore valid and indefeasible, and the deceased went beyond the instrument to prove the legality of his acquisition. 297. The burden of proof in this regard is governed by Sections 107, 108 and 109 of the Evidence Act, Cap 80, which provide: “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. JUDGMENT: ELC CASE NO E008 OF 2021 Page 158 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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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 side. 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 lie on any particular person.” 298. The 1st, 2nd & 3rd Plaintiffs, as the duly appointed Legal Administrators of the deceased's estate, discharged the burden of proving the deceased's title through the production of the certificate of title, the transfer instruments, the Green Card and the rates payment records. The title of the deceased is accordingly valid and indefeasible. ISSUE No. F: Whether the title issued to the 3 rd to 6th Defendants on 7th August 2015 was procured fraudulently, illegally or unprocedurally 299. Under this sub title, the Honourable Court is to examine whether the title issued to the 3rd to 6th Defendants on 7th August, 2015 was procured fraudulently, illegally or unprocedurally. The Plaintiffs alleged that the title issued to the 3 rd to 6th Defendants on 7th August, 2015 was procured fraudulently, illegally Page 159 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE) unprocedurally. JUDGMENT: ELC CASE NO E008 OF 2021 and

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300. It is trite law that fraud must be specifically pleaded and strictly proved. In the case of:- “Vijay Morjaria – Versus - Nansingh Madhusingh Darbar & another [2000] eKLR” , the Court of Appeal held: “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.” 301. The standard of proof for allegations of fraud was settled in the case of:- “R.G. Patel – Versus - Lalji Makanji (1957) EA 314” , where the former Court of Appeal for Eastern Africa held: “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 mere balance of probabilities is required.” 302. This standard was affirmed in the case of:- “Koinange & 13 others – Versus - Koinange [1986] KLR 23”, where the Court held: “Allegations of fraud must be strictly proved and although the standard of proof may not be so heavy as to require proof beyond any reasonable doubt it ought to be more than on a balance of probabilities.” JUDGMENT: ELC CASE NO E008 OF 2021 Page 160 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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303. In the present case, the Plaintiffs have pleaded and particularized the fraud with sufficient specificity, as required by the provision of Order 2 Rule 4 of the Civil Procedure Rules, 2010, which provides: “4. (1) A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant statute of limitation, whether relied on as a defence, set-off or counterclaim. (2) ... In particular, and without prejudice to the generality of the foregoing, the following matters shall be pleaded specifically— (a) fraud or undue influence...” 304. The evidence adduced before this Court establishes, on a standard higher than a balance of probabilities, that the title issued to the 3 rd to 6th Defendants was procured fraudulently, illegally and unprocedurally. The evidence of DW - 3, the Land Registrar herself, established that: (a) The second Register was opened on 15 th November, 1974, a date that does not tally with the court order of 5 th May, 2015 pursuant to which it was purportedly opened; (b) There was no court order supporting the opening of the second Register; (c) The new Register should have been supported by succession documents for the deceased heirs, which were not produced; JUDGMENT: ELC CASE NO E008 OF 2021 Page 161 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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(d) No Gazette Notice, affidavit, newspaper advertisement or police abstract existed to support the reconstruction of a lost register; (e) No notice was given to SADIQ GHALIA to reconstruct a new register; (f) There was no instrument in the parcel file for expunging the first Register; (g) The title was issued notwithstanding the subsisting orders of the High Court quashing the tribunal award and prohibiting the Land Registrar from cancelling the deceased's title. 305. The cumulative effect of these anomalies and irregularities is that the title issued to the 3rd to 6th Defendants was acquired illegally, irregularly and unprocedurally, and is therefore impeachable under the provision of Section 26(1)(b) of the Land Registration Act, 2012. The title is a nullity and cannot stand. 306. This Court further notes that the 3rd to 6th Defendants’ claim to the suit property as ancestral land was not substantiated. DW - 1 admitted that he never resided on the suit property, contrary to the filed pleadings, that it is currently vacant and bushy, and that he had no documents proving the alleged relationship with the original JUDGMENT: ELC CASE NO E008 OF 2021 Page 162 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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allottees or the authenticity of the original allotment. The evidence of DW - 2 emphatically confirmed that the Adjudication Record (whether for a reason or the other, perhaps caused through mutilation or damaged by passage of time or rodents) showing the cancellation of the names of Juma Mboga and Rajabu Salim Ndaragunya was not on record in his office. Hence, the claim of ancestral ownership was therefore not proved. ISSUE No. G: What is the legal efficacy of the parallel green card register opened on 5th May, 2015, vis-à-vis the original land register opened on 15th November, 1974? 307. Under this sub title, the Honourable Court shall answer the question on the effect of records on land and what the legal efficacy of the parallel Green card portend. Kenya is governed by “ the Torrens System” . This is one where a State manages land registration method where land ownership is established and proven exclusively by registration in a central government land registry rather than through private deeds. Indeed, all records are kept under the Land Registry. There were two registers – the register opened on 5th May, 2015, vis-à-vis the original land register opened on 15th November, 1974. I must admit that this was the most vigorously and hotly contested issue in this proceedings by the JUDGMENT: ELC CASE NO E008 OF 2021 Page 163 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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parties. It was not an easy issue to decipher to say the least. Be that as it may, from the record and the volume of evidence adduced herein, this Court is confronted with two parallel green cards for the exact same parcel – the suit land. The first register was opened on 15th November, 1974, with numerous entries. It terminates at Entry number 12, recognizing Sadiq Ghalia as the last registered proprietor of the suit land. This fact was confirmed by the Land Registrar, Kwale (DW – 3). The second register was physically opened on 5th May, 2015, but backdated to falsely indicate that the 3rd to 6th Defendants were registered as owners in 1974. It bears three ( 3 ) entries. 308. The original land register (Green Card) opened on 15 th November, 1974 is the foundational and authoritative record of title for parcel of the suit land. In Kenyan land law, a first registration carries a unique status: it is indefeasible except where it is shown to have been procured through fraud, mistake, omission, misrepresentation, illegality, or a corrupt scheme. This principle is entrenched in the provision of Section 26(1) of the Land Registration Act, which elevates the sanctity of registered title as a cornerstone of the land tenure system. JUDGMENT: ELC CASE NO E008 OF 2021 Page 164 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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309. Under the provision of Sections 2 and 7 of the Land Registration Act, No. 3 of 2012, the law mandates the maintenance of a single, continuous, and transparent land register for each distinct parcel of land. The statutory protocol for reconstructing a lost, torn, or damaged register is strictly structured under the law. The Land Registrar has no power to simply open a parallel green card file without satisfying clear pre-conditions: an official application, an exhaustive verification process, a formal police abstract, and a mandatory publication of a Notice in the Kenya Gazette. By contrast, the parallel register opened on 5th May, 2015 presents profound legal and procedural irregularities that undermine its efficacy: 310. The provision of Section 33 (5) of the Land Registration Act, No. 3 of 2012 stipulates that a new register may only be opened if the original has been lost or damaged. Even then, the law requires a Gazette notice, indemnity, and proper notification to the registered proprietor. In the present case, no Gazette notice was issued, no indemnity was executed, and no evidence exists of the original register being lost or destroyed. The year 2015 register therefore lacks statutory legitimacy. JUDGMENT: ELC CASE NO E008 OF 2021 Page 165 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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311. The year 1974 register remains intact, certified, and unrevoked. Unless lawfully cancelled or rectified under the Act, it continues to be the operative record. A parallel register cannot override or supplant it without a valid order from a superior court or strict statutory compliance. The existence of two registers for the same parcel creates a legal absurdity, but the law resolves this by recognizing only the original, lawfully constituted record. 312. The year 2015 register appears to have been opened pursuant to orders of the Msambweni Land Disputes Tribunal and their adoption by the Principal Magistrate’s Court at Kwale. As established earlier, neither the Tribunal nor the Magistrate’s Court possessed jurisdiction to revoke or cancel registered titles. Their statutory remit was limited to boundary disputes, occupation, and trespass. Any register opened on the strength of such orders is void ab initio, for jurisdiction cannot be conferred by consent, acquiescence, or procedural adoption—it must emanate from statute. 313. The year 2015 register is a nullity. It cannot confer rights, nor can it impeach the year 1974 register. Any entries made therein are legally ineffective, incapable of altering ownership or creating JUDGMENT: ELC CASE NO E008 OF 2021 Page 166 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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enforceable interests. The operative and lawful register remains the 1974 Green Card, unless and until it is lawfully rectified under the Land Registration Act or pursuant to superior court orders. Parties relying on the 2015 register stand on precarious ground. Transactions, transfers, or encumbrances recorded therein are void and unenforceable. Recognition of such entries would amount to legitimizing contempt of subsisting High Court orders and undermining the constitutional principle of indefeasibility of title. 314. The Kwale Land Registrar (DW - 3) openly confessed that none of these steps were followed because the original register was never lost or damaged. Opening a parallel card under the table to rewrite the history of a land parcel is a gross administrative irregularity that amounts to outright fraud. The law does not tolerate dual registers. A parallel register opened outside the explicit pathways of the Land Registration Act is a legal non-entity. 315. The parallel Green Card register opened in 2015 has no legal efficacy vis-à-vis the original 1974 register. It is procedurally defective, jurisdictionally void, and incapable of displacing the sanctity of the first registration. The 1974 register remains the only lawful record of title, and the Court is bound to uphold its primacy JUDGMENT: ELC CASE NO E008 OF 2021 Page 167 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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in order to safeguard the integrity of Kenya’s land registration system. ISSUE No. h). Who is the lawful registered proprietor of the suit property, and what reliefs are available to the parties? 316. Under this sub title, the Plaintiffs' father obtained a Land Certificate on 29th May, 1980. The provision of Section 26(1) of the Land Registration Act, 2012 provides that the certificate of title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named is the absolute and indefeasible owner. This title can only be impeached if it is specifically proven that it was obtained through fraud or misrepresentation to which the proprietor was a party, or that it was acquired illegally or unprocedurally. 317. The 3rd to 6th Defendants have argued that the initial allocation in the 1970s was fraudulent. However, as correctly pointed out by the Plaintiffs in their submissions, the Defendants filed no Counterclaim to formally seek the cancellation of the Plaintiffs’ title. The law does not allow a party to defeat a registered title through mere verbal submissions from the bar. JUDGMENT: ELC CASE NO E008 OF 2021 Page 168 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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318. Even if this Court were to entertain the Defendants’ claims of fraud in the 1974 adjudication process, such a claim is completely defeated by the statute of limitations. Under the provision of Section 26 of the Limitation of Actions Act, Cap. 22, actions anchored on fraud must be brought within a certificate of title is prima facie evidence of ownership and remains indefeasible except where fraud, misrepresentation, or illegality is proven. The Defendants have failed to discharge the burden of proof imposed by the provision of Section 107 of the Evidence Act, Cap. 80. Their allegations of fraud are speculative, unsupported by documentary or testimonial evidence, and collapse under the weight of subsisting High Court orders. 319. The supreme principle governing parallel titles was elegantly captured by the High Court in the case of:- “Gitwany Investment Limited – Versus - Tajmal Limited & 3 Others [2006] eKLR”: “Where two parallel titles purport to exist over the same parcel of land, the law gives primacy to the title issued first in time... qui prior est tempore, potior est jure - he who is earlier in time is stronger in right.” 320. It will be noted that Sadiq Ghalia's title was regularly processed, supported by lawful Land Control Board consents, and documented for over 40 years. It holds total statutory priority over the parallel JUDGMENT: ELC CASE NO E008 OF 2021 Page 169 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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title manufactured in 2015. The Plaintiff’s title stands as the only lawful and indefeasible one. The Defendants’ case fails on jurisdiction, limitation, fraud, and locus standi. The Court is bound to uphold the sanctity of registered title and the finality of superior court orders in conformity with the provision of Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012 thereof. ISSUE No. I: Whether the Plaintiffs are entitled to the reliefs sought;? 321. Under this sub -title, the Plaintiffs sought for:a) A declaration that the Estate of Sadiq Ghalia (deceased) is the rightful and legal owner of that parcel known as Kwale/Galu/Kinondo/665. b) An order directing the 1st and 2nd Defendants to cancel any entry in the register purporting to register the 3 rd, 4th, 5th, and 6th Defendants as the owners of Kwale/Galu/Kinondo/665 and the said title to revert in the name of Sadiq Ghalia. c) An order for a permanent injunction restraining the 3rd, 4th, 5th and 6th Defendants by themselves, their agents, servants, or whomsoever else acting on their behalf or instructions from entering, trespassing, moving into, seeking to occupy, alienating, charging, selling, disposing of and/or in any other manner whatsoever interfering with the plaintiff’s rights of ownership , possession, occupation or use of Land Parcel No. Kwale/ Galu/ Kinondo/665. d) Costs 322. The Plaintiffs anchor their claim on the original land register opened on 15th November 1974, which remains intact, unrevoked, JUDGMENT: ELC CASE NO E008 OF 2021 Page 170 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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and lawfully constituted under the Land Registration Act. This register is the foundational record of title for suit land, and its sanctity has been consistently protected by superior court orders. Most notably, the High Court in Judicial Review No. 500 of 2009 quashed the Msambweni Land Disputes Tribunal’s award and prohibited the Land Registrar from implementing it, thereby affirming the Plaintiffs’ title and extinguishing any competing claims. 323. By contrast, the Defendants’ case collapses on multiple fronts stating with the jurisdictional defect. The Msambweni Land Disputes Tribunal and the Principal Magistrate’s Court at Kwale lacked jurisdiction to revoke or cancel registered titles. Their statutory remit was confined to boundary disputes, occupation, and trespass. Any attempt to interfere with registered ownership was ultra vires and void ab initio. On the fraud allegations, the Defendants allege fraud in the first registration, but under Section 107 of the Evidence Act, the burden of proof lies squarely on them. They have failed to produce cogent evidence—whether documentary or testimonial—to substantiate their claims. Mere assertions cannot impeach a registered title. JUDGMENT: ELC CASE NO E008 OF 2021 Page 171 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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324. This Court notes that on locus standi; Succession cannot transmit void rights. Since the alleged predecessors’ claim was extinguished by lawful adjudication and quashed by superior court orders, the Defendants inherit nothing enforceable. Their reliance on lineage is legally hollow. Further on parallel register, the 2015 parallel register is procedurally defective and jurisdictionally void. It was opened without statutory foundation, without Gazette notice, and without lawful cancellation of the 1974 register. It cannot override the sanctity of the original record. 325. The provision of Section 79 of the Land Registration Act, 2012 provides for rectification by the Registrar, and Section 80 provides for rectification by order of Court. Section 80 provides: “80. Rectification by order of Court (1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. (2) The register shall not be rectified to affect the title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.” JUDGMENT: ELC CASE NO E008 OF 2021 Page 172 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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326. In the present case, the registration of the 3 rd to 6th Defendants as the proprietors of the suit property was obtained fraudulently, illegally and unprocedurally. The exception in Section 80 (2) does not apply, as the 3rd to 6th Defendants did not acquire the land for valuable consideration, and the evidence establishes that they were aware of, or substantially contributed to, the fraud and illegality in consequence of which the rectification is sought. 327. Therefore, the Court is satisfied that the register ought to be rectified by cancelling the registration of the 3 rd to 6th Defendants and reverting the title to the name of SADIQ GHALIA (deceased), whose estate is represented by the Plaintiffs. The jurisdiction of this Court to grant the reliefs sought is further reinforced by the provision of Section 13(7) of the Environment and Land Court Act, 2011, which provides: “13. (7) In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including— (a) interim or permanent preservation orders including injunctions; (b) prerogative orders; (c) award of damages; (d) compensation; (e) specific performance; JUDGMENT: ELC CASE NO E008 OF 2021 Page 173 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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(f) restitution; (g) declaration; or (h) costs.” 328. The Plaintiffs are entitled to the reliefs sought. Their title remains the only lawful and indefeasible one, while the Defendants’ case is fatally undermined by lack of jurisdiction, want of locus standi, and reliance on void processes. The Court is bound to uphold the sanctity of registered title and the finality of superior court orders, ensuring that Kenya’s land registration system is not destabilized by parallel registers or void adjudication proceedings. ISSUE No. J: Who should bear the costs of the suit 329. It is now well established that the issue of Costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of any legal process or proceedings in any litigation. The Black Law Dictionary defines cost to means:“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. 330. The provision of Section 27 of the Civil Procedure Act, Cap, 21 grants the High Court discretionary power in the award of costs which ordinarily follow the event unless the Court for good JUDGMENT: ELC CASE NO E008 OF 2021 Page 174 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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reasons orders otherwise. Section 27 (1) of the Civil Procedure Act provides as follows:“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 331. Additionally, the provision provides for ‘costs of and incidental to all suit or application’ which expression includes not only costs of suit but also costs of application in suit as described by Mulla (supra) at 536. Furthermore, Rtd. Justice Richard Kuloba in his book Judicial Hints on Civil Procedure, 2nd Edition, 2005 at 95 notes that the words ‘the event’ means the result of all the proceedings incidental to the litigation. Accordingly, the event means the result of the entire litigation. The order as to costs as provided for under Section 27 remains at the discretion of the court. JUDGMENT: ELC CASE NO E008 OF 2021 Page 175 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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332. The award of costs is therefore not cast in stone but courts have ultimate discretion. In exercising this discretion, courts must not only look at the outcome of the suit but also the circumstances of each case. In the case of: “Morgan Air Cargo Limited – Versus Everest Enterprises Limited [2014] eKLR” the court noted that; “The exercise of the discretion, however, depends on the circumstances of each case. Therefore, the law in designing the legal phrase that “Cost follow the event’’ was driven by the fact that there could be no “one-size-fit-all’’ situation on the matter. That is why section 27(1) of the Civil Procedure Act is couched the way it appears in the statute; and even all literally works and judicial decisions on costs have recognized this fact and were guided by and decided on the facts of the case respectively. Needless to state, circumstances differ from case to case.” 333. Applying these principles to the instant case, the Plaintiffs have successfully defended their registered title. Their ownership under the original 1974 register remains lawful and indefeasible. The 3rd to 6th Defendants have failed to prove fraud, jurisdiction, or locus standi. Their reliance on a quashed Tribunal award and a void parallel register has collapsed. The litigation has been prolonged by the Defendants’ insistence on pursuing claims that were jurisdictionally defective and unsupported by evidence. JUDGMENT: ELC CASE NO E008 OF 2021 Page 176 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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334. Accordingly, the Court is guided by the principle that the losing party should bear the costs. The Defendants, having failed in their claim, should shoulder the costs of the suit. This not only compensates the Plaintiffs for the expense of defending their lawful title but also discourages frivolous or jurisdictionally defective claims that undermine the sanctity of registered land. The 3rd to 6th Defendants should bear the costs of the suit. IX. Conclusion and Disposition 335. In the end, having undertaken such an in-depth analysis of the framed issues herein, the Honourable Court, on the preponderance of probabilities, finds that the Plaintiffs have proved their case on a balance of probabilities. The deceased, SADIQ GHALIA, was the lawful and registered owner of the suit property, and his title is valid and indefeasible. The title issued to the 3 rd to 6th Defendants was procured fraudulently, illegally and unprocedurally, and is a nullity. Accordingly, and for avoidance of any doubts, the Honourable Court makes the following orders for disposal thereof:a) THAT Judgement be and is hereby entered in favour of the 1st, 2nd & 3rd Plaintiffs herein as prayed. JUDGMENT: ELC CASE NO E008 OF 2021 Page 177 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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b) THAT the Plaintiffs’ suit as per the Plaint dated 6 th December, 2021 be and is hereby found to have merit and the same is allowed in its entirety. c) THAT the 3rd – 6th Defendants’ claim as per their Defence and Amended Defence be and is hereby dismissed. d) THAT a Declaration be and is hereby issued that the Estate of SADIQ GHALIA (deceased) is the rightful and legal owner of all that parcel of land known as KWALE/GALU/KINONDO/665. e) THAT an order be and is hereby issued directing the 1 st and 2nd Defendants to cancel any entry in the register purporting to register the 3rd, 4th, 5th and 6th Defendants as the owners of KWALE/GALU/KINONDO/665, and the said title is hereby ordered to revert to the name of SADIQ GHALIA (deceased). f) THAT an order of Permanent Injunction be and is hereby issued restraining the 3rd, 4th, 5th and 6th Defendants, by themselves, their agents, servants or whomsoever else acting on their behalf or instructions, from entering, trespassing, moving into, seeking to occupy, alienating, JUDGMENT: ELC CASE NO E008 OF 2021 Page 178 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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charging, selling, disposing of and/or in any other manner whatsoever interfering with the Plaintiffs' rights of ownership, possession, occupation or use of Land Parcel No. KWALE/GALU/KINONDO/665. g) THAT the suit against the 1st & 2nd Defendants, the Land registrar, Kwale, be and is hereby dismissed with costs, there being no evidence of fraud or conspiracy proved against them thereof. h) THAT the costs of the suit to be awarded to the Plaintiffs to be borne by the 3 rd, 4th, 5th & 6th Defendants jointly and severally. IT IS SO ORDERED ACCORDINGLY. JUDGMENT DELIVERED THROUGH MICRO – SOFT TEAMS VIRTUAL MEANS SIGNED AND DATED AT KWALE THIS……23 RD ….………DAY OF ………SEPTEMBER.……..2026. ………………………… HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT KWALE Judgement delivered in the presence of: a) Mr. Daniel Disii, the Court Assistant. b) Dr. Ndegwa & Mr. Mwai Advocates for the Plaintiffs. c) M/s. Mwangi & M/s Adhiambo Advocates for the 3rd, 4th, 5th & 6th Defendants. JUDGMENT: ELC CASE NO E008 OF 2021 Page 179 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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d) No appearance for the 1st & 2nd Defendants. JUDGMENT: ELC CASE NO E008 OF 2021 Page 180 of 180 HON JUSTICE L.L. NAIKUNI (E.L.C. JUDGE)

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