Leeward Islands Limited v Peter Mutungi Kioko (Sued as Legal Representative of the Estate of Peter Mutungi Kioko, Deceased), Lucy Ngina Nganga, Shabbir Mohamed Haji, The Hon. Attorney General, Land Registrar Mombasa, Registrar of Companies & United Care Limited

the alleged fraudulent duplication of incorporation records and unlawful transfer of the leasehold interest therein. 3. Upon service of the pleadings and Summons to Enter Appearance, the Defendants duly complied as follows:a) The 1st and 2nd Defendants filed their Statement of Defence and Counter - Claim dated 6 th February, 2014. They asserted that their company, Leeward Island Limited (without an “S”), was the lawful proprietor of the Suit Property by virtue of a Certificate of Lease allegedly issued on 2nd August, 1996. b) The 3rd Defendant, the Hon. Attorney General, on behalf of the Land Registrar and Registrar of Companies, filed its Defence dated 2nd April, 2015 and later amended on 16 th January, 2019. It denied liability and contending that the Plaintiff had not proved fraud. c) The 6th Defendant, United Care Limited, filed its Defence dated 10th February, 2017. It claimed to be a bona fide innocent purchaser for value without notice, having acquired the Suit Property for a sum of Kenya Shillings Fourty Five Million (Kshs. 45,000,000) on 4th March, 2016. 4. In parallel, the Plaintiff obtained interim injunctive orders on 6 th November, 2014, restraining the Defendants from alienating, selling, transferring, or otherwise dealing with the Suit Property. Despite presentation of the said orders for registration, the Land Registrar failed to register them, and the Suit Property was subsequently transferred to the 6 th Defendant. The Plaintiff alleges violation of its constitutional rights under the provision of Articles 40 and 35 of the Constitution of Kenya, 2010, and JUDGMENT: ELC NO. 160 OF 2013 Page 2 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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seeks rectification of the land and company records to restore its lawful ownership. 5. The parties thereafter filed witness statements, affidavits, lists of documents, and supplementary bundles. Oral testimonies were taken from key witnesses including directors of Alcop Limited (the original allottee), officers of the Law Society of Kenya, officials from the Registrar of Companies, and successive Land Registrars. The evidence highlighted systemic vulnerabilities at both the lands and corporate registries, and the Court is now called upon to determine the rightful proprietor of the Suit Property and the validity of the impugned transactions. 6. For ease of reference and information sake, the main substratum of this case is rather straight forward. It relates the issues of the legal ownership of the suit property between the Plaintiff and the Defendants. Apparently, there appears a legal entity trading in the names and style of “Leward Islands Company Limited” and “Leeward Island Company Limited” (it will be noted the distinction is the alphabetical letter “S”) of which claiming proprietorship to the suit property. Certainly, from the view – point of the Law of Intellectual Property, this legal description would cause easy confusion even to the very sophisticated persons dealing with them in any transaction. Consequently, therefore, arising from this daring confusion, the suit property was transferred to another entity – the 6 th Defendant, which claimed having acquired it as bona - fide JUDGMENT: ELC NO. 160 OF 2013 Page 3 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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purchaser for value without notice. Hence, the pith and substance of the entire instant civil suit herein. II. Description of the parties 7. The Plaintiff – “Leeward Islands Limited” (not “Leeward Island Limited”) is a limited liability company duly incorporated in Kenya under the provisions of the Companies Act (Cap 486, Laws of Kenya, now repealed). 8. The 1st and 2nd Defendants – Lucy Ngina Nganga and Samuel Gashero Kioko are sued as the legal representatives of the estate of the late Peter Mutungi Kioko. Together with Shabbir Mohamed Haji, they claim to be directors of an entity styled Leeward Island Limited (without an “S”), which purports to hold parallel incorporation documents under number C.65416 and a certificate of lease dated 2nd August, 1996. They assert ownership of the Suit Property and filed a counterclaim seeking exclusive possession. 9. The 3rd Defendant - The Honourable Attorney General is sued pursuant to the provision of Article 156 (4)(b) of the Constitution of Kenya, 2010, as the principal legal adviser to the Government and representative of the National Government in legal proceedings. The Attorney General is joined herein on behalf of the 4th and 5th Defendants. 10. The 4th Defendant – The Land Registrar, Mombasa, is the statutory custodian of land records under the Land Registration Act, 2012. The Plaintiff alleges that the 4 th Defendant failed to JUDGMENT: ELC NO. 160 OF 2013 Page 4 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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register subsisting court orders of inhibition and facilitated the unlawful transfer of the Suit Property to the 6 th Defendant. 11. The 5th Defendant – The Registrar of Companies (now the Business Registration Service) is the statutory custodian of corporate records under the Companies Act. The Plaintiff alleges that the 5th Defendant irregularly issued duplicate incorporation documents, thereby enabling the existence of a fictitious entity styled Leeward Island Limited. 12. The 6th Defendant – United Care Limited is a limited liability company incorporated in Kenya. It claims to be an innocent purchaser for value without notice, having purchased the Suit Property from “Leeward Island Limited” on 4th March, 2016 for a sum of Kenya Shillings Fourty Five Million (Kshs. 45,000,000/=). The Plaintiff contends that the transfer was fraudulent and void ab initio, as the vendor had no valid title to pass. III. Court directions before the hearing 13. On 14th August, 2013, upon first mention of the matter, the Court directed that all Respondents file their responses within seven (7) days, with the Plaintiff equally granted seven (7) days to reply. Interim injunctive orders restraining dealings with the Suit Property were extended pending inter partes hearing. 14. On 25th March, 2014, the matter came before Hon. Justice S. Mukunya. The Counsel for the 1 st and 2nd Defendants sought time to respond to a supplementary affidavit. The Court granted adjournment and extended interim orders. 15. On 9th July, 2014, the Court directed that the application dated 1st July, 2013 be disposed of by way of written submissions. JUDGMENT: ELC NO. 160 OF 2013 Page 5 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Timelines were set: the Plaintiff to file within fourteen (14) days, and the Defendants within ten (10) days thereafter. Interim orders were extended until ruling. 16. On 6th November, 2014, the Court delivered its ruling, granting an injunction restraining the 1st and 2nd Defendants from alienating, selling, transferring, leasing, or otherwise dealing with the Suit Property. The Court further ordered inhibition of the register to protect the property until final determination. 17. On 18th May, 2016, Hon. Lady Justice A. Omollo directed the Plaintiff to file supplementary witness statements and documents within fourteen (14) days, with corresponding leave to the Defendants. The Court also ordered the Land Registrar and Registrar of Companies to furnish certified copies of the relevant records. Costs of adjournment were awarded to the Plaintiff due to inconvenience caused by the Defendants’ lack of preparedness. 18. On 26th October, 2016, the Court noted that the Suit Property had been transferred to the 6 th Defendant during pendency of proceedings. Directions were issued for joinder of the 6 th Defendant, and parties were granted leave to amend pleadings accordingly. 19. On 7th December, 2017, the Plaintiff withdrew its application dated 30th November, 2016 on condition that the status quo be maintained. The Court ordered parties to comply with the provision of Order 11 of the Civil Procedure Rules, 2010 within thirty (30) days to pave way for full hearing. JUDGMENT: ELC NO. 160 OF 2013 Page 6 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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20. On 17th October, 2018, the Court confirmed compliance with pre-trial directions and fixed the matter for hearing on 17 th January, 2019. On 17th January, 2019, the Plaintiff commenced its case by calling PW - 1, Mayur Shantilal Malde, thereby marking the beginning of adducing of ‘viva voce” evidence. IV. The Plaintiff’s case 21. From the filed pleadings, at all material times relevant to this suit, the Plaintiff was and still was the registered proprietor of the leasehold interest comprised in all that parcel of land known as the ‘Suit Property’. The Plaintiff is lawfully registered as the owner of the leasehold interest comprised in the suit property upon acquiring the same from its former proprietor for valuable consideration and had been in occupation thereof since then. The Plaintiff averred that its title over the Suit Property was at all material times valid and lawful and that it had been dutifully paying land rent and land rates for the same to the respective authorities mandated to collect and/or receive the same. The Plaintiff averred that by virtue of the registration referred to in paragraph 4 above, the Plaintiff was at all material times the absolute and indefeasible owner of the leasehold interest comprised in the Suit Property and was entitled to enjoy all the rights and privileges belonging or appurtenant thereto including but not limited to the right to possession and quiet enjoyment thereof without any hindrance or restriction. JUDGMENT: ELC NO. 160 OF 2013 Page 7 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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22. The Plaintiff further averred that it had filed its annual returns at the Companies Registry at all times since its incorporation and further that it had filed all statutory notifications as and when required by law. In or about March, 2013, the Plaintiff received information from prospective purchasers that the suit property had been put up for sale by unknown persons. In order to protect its interests, the Plaintiff procured the services of a security company and placed day and night guards on the suit property in addition to placing a Caveat Emptor sign thereon. On or about the 11th May, 2013, the 2nd Defendant visited the suit property and unsuccessfully attempted to gain access to the same whilst claiming to be the owner thereof. 23. On or about the 14th June, 2013, the 1st and 2nd Defendants, representing themselves as the directors of the Plaintiff or those of an entity known as Leeward Island Limited, instructed advocates to file “CMCC NO.1064 OF 2013 at Mombasa (LEEWARD ISLAND LIMITED – Versus - TEXAS ALARMS SECURITY LIMITED)” in which the entity known as Leeward Island Limited sought inter alia an order restraining the guards from guarding the suit property. From the documents filed by the 1 st and 2nd Defendants herein in Mombasa CMCC NO.1064 OF 2013, the Plaintiff herein had since established the following; a) That the 1st and 2nd Defendants were in possession of a falsified certificate of incorporation number C.65416 issued on 16th June, 1995 which incorporation number was the same as that of the Plaintiff's. JUDGMENT: ELC NO. 160 OF 2013 Page 8 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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b) That the 1st and 2nd Defendants were also in possession of a falsified memorandum as well as articles of association of the Plaintiff company purportedly signed by the 1 st and 2nd Defendants on 16th May, 1995. c) That the 1st and 2nd Defendants were also in possession of a falsified Certificate of Lease for the suit property which was issued to the entity Leeward Island Limited on 2 nd August, 1996, the same date appearing on the Plaintiff's true and original certificate of lease. d) That the 1st and 2nd Defendants were in possession of a certificate of official search depicting the entity Leeward Island Limited as the leasehold proprietor thereof. 24. On being seized of the above information, the Plaintiff caused a Caveat Emptor notice to be published in the Standard newspaper on 2nd July, 2013 and in the Daily Nation newspaper on 3rd July, 2013 and notified the public at large the Suit Property was not for sale and identified the true directors of the Plaintiff Company. The Plaintiff also made several applications and paid for official searches and requested the Lands Registrar - 4th Defendant to issue a certified copy of the green card for the suit property which searches and certified copies had not been issued until 20th July, 2016, when the 4th Defendant released an official search dated 9 th July, 2016 showing that the Defendant was registered as the leasehold proprietor of the Suit Property on 4th March, 2016 and that a certificate of lease was issued. The said official search also showed that a restriction had been placed on the register on 21 st April, 2016 under the JUDGMENT: ELC NO. 160 OF 2013 Page 9 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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provision of Section 76 of the Land Registration Act until the finalization of this Suit. 25. The Plaintiff had also applied and paid for a list of the shareholders, directors and secretaries of the Plaintiff from the 5th Defendant Registrar of Companies on several occasions which list had as of the date hereof not been issued. Following an order made by the Court on 18 th May, 2016 when this suit came up for hearing, the 5 th Defendant supplied uncertified copies of the Company Secretarial records of the Plaintiff to all the parties and was directed by the Court to file the copies of his documents in Court but as at the date hereof, that order had not been complied with. The Plaintiff averred that the contents of register for the suit property in the Lands Registry in Mombasa and the file for the Plaintiff Company No. C.65416 at the Companies Registry in Nairobi were public records required by the Plaintiff so as to protect its right to own the Suit Property under the provision of Article 40 of the Constitution of Kenya and the Plaintiff was entitled to the information therein contained under the provisions of the provision of Article 35 of the Constitution of Kenya, 2010. 26. The Plaintiff averred that the failure to issue a list of shareholders, directors and secretaries to the Plaintiff by the Registrar of Companies and the failure to issue an official search and certified copy of the register of the Suit Property by the Lands Registrar, Mombasa breached the Plaintiff's right of access to information as guaranteed under the provision of Article 35 of the Constitution of Kenya, 2010. JUDGMENT: ELC NO. 160 OF 2013 Page 10 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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27. On 6th November, 2014, this Honourable Court made an order of injunction restraining the 1st and 2nd Defendants, until further orders of the Court, from alienating, selling, transferring, leasing and/or charging or in any other manner whatsoever from having any dealings with the Suit Property. This Honourable Court also made an order inhibiting the registration of any dealings and/or transactions of whatsoever nature on the register for the Suit Property and ordered that the order of inhibition be registered in the register for the Suit Property. Despite presenting the duly issued Order of the Court for registration on multiple occasions, the 4 th Defendant did not register the same, claiming that the green card was not available. 28. The Plaintiff further averred that the 1st and 2nd Defendants and/or their respective servants/officers and/or employees had conspired to fraudulently deprive the Plaintiff of its interest and title to the suit property. 29. The Plaintiff relied on the following particulars of fraud on the part of the 1st and 2nd Defendants:a) Creating and/or causing to be created and/or using a document purported to be the Plaintiff’s Certificate of Incorporation number C.65416 issued on 16th June, 1995 whilst aware and/or having the knowledge that the same was a falsified document; b) Creating and/or causing to be created and/or using documents purported to be the Plaintiff's Memorandum and Articles of Association whilst aware and/or having the knowledge that the same were falsified documents; JUDGMENT: ELC NO. 160 OF 2013 Page 11 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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c) Creating and/or causing to be created and/or using documents purported to be the Certificate of Lease for the suit property whilst aware and/or having the knowledge that the same was a falsified document; d) Offering the suit property for sale to prospective purchasers using the falsified documents referred to above whilst aware and/or having the knowledge that the 1 st and 2nd Defendants were not the shareholders and/or directors of the Plaintiff and further that the Plaintiff, and not Leeward Island Limited, was the true and registered owner of the Suit Property. e) Disposing of the Suit Property to the 6th Defendant so as to defeat the Plaintiff’s claim herein and doing so while aware that there was an order of injunction issued against them and that this suit was pending hearing and determination. 30. Further and/or alternatively and without prejudice to the foregoing, the 1st and 2nd Defendants in collusion with the 4th, 5th and 6th Defendants-Lands-Registrar, Mombasa as well as the Registrar of Companies, servants/officers and/or Nairobi and/or employees, had their all respective conspired to fraudulently deprive the Plaintiff of its registered and lawful interest and title to the Suit Property; 31. The Plaintiff relied on the following particulars of fraud on the part of the 4th, 5th and 6th Defendants:a) On the part of the 4th Defendant-Lands-Registrar, falsifying the Certificate of Lease for the suit property to depict the entity 'Leeward Island Limited' as the registered proprietor thereof whilst aware and/or having the knowledge that the JUDGMENT: ELC NO. 160 OF 2013 Page 12 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Plaintiff was in possession of an original Certificate of Lease and was the true registered proprietor thereof; b) Issuing a Certificate of Lease for the suit property bearing the same date and property and proprietorship details as that of the Plaintiff but in the name of the entity ‘Leeward Island Limited’. c) Issuing a certificate of official search to the 1 st and/or 2nd Defendants to depict the entity known as ‘Leeward Island Limited’ which appeared on the falsified Certificate of Lease to be the registered owner of the suit property whilst aware and/or having the knowledge that the information was incorrect and/or false. d) Failing to issue an official search and a certified copy of the register for the suit property to the Plaintiff and/or deliberately misplacing/hiding or rendering unavailable the parcel file for the suit property. e) Refusing to register a lawful order of this Honourable Court on the register for the Suit Property so as to aid the 1 st, 2nd and 6th Defendants to extra-judicially defeat the Plaintiff's claim herein and then concealing the fact of registration and the documents presented to him for registration by the 6th Defendant from the Honourable Court and from the Plaintiff. f) On the part of the Registrar of Companies, issuing a second Certificate of Incorporation for the Plaintiff Company and representing the falsified certificate as the original thereof whilst aware that the Plaintiff was registered in June, 1995; JUDGMENT: ELC NO. 160 OF 2013 Page 13 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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g) Failing to issue a list of shareholders, directors and secretaries as per his records and/or deliberately misplacing/hiding or rendering unavailable the file for the Plaintiff and/or for company number C/65416. h) Conspiring with the 1st and 2nd Defendants to fraudulently and unlawfully deprive the Plaintiff of its lawful interest in the Suit Property. i) On the part of the 6th Defendant, acquiring a title for the Suit Property without any transfer documents and/or an agreement for sale. j) Alternatively, and without prejudice to the foregoing, entering into an agreement for sale of the Suit Property with the full knowledge that the ownership of the same was disputed and that these proceedings were pending and that the same was partly developed and that the Plaintiff was in possession. 32. The Plaintiff averred that the Certificate of Lease for Mombasa/Block XXVI/510 dated 2nd August, 1996 in the name of Leeward Island Limited, Certificate of Incorporation No. C.65416 Serial number GPK 62/43-4m-12/2003-IE/6(B14) dated 16 th June, 1995 and Memorandum and Articles of Association signed on 16th May, 1995, all of which were in the possession of the 1 st and 2nd Defendants, were fake and illegal documents which were incapable of conferring any rights over the Suit Property to the aforesaid ‘Leeward Island Limited’ or to any other person. 33. By reason of the matters aforesaid, the Plaintiff which was still in lawful possession of the suit property had been deprived of its lawful title and unless the same was reinstated and/or the JUDGMENT: ELC NO. 160 OF 2013 Page 14 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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records at the Lands Registry Mombasa were duly rectified, the Plaintiff was likely to suffer irreparable harm if the suit property was further disposed of by the Defendants. 34. The Plaintiff through its advocates on record had issued demands and notices to sue to the Defendants demanding their written admission that the Certificate of Lease, Certificate of Incorporation and Memorandum and Articles of Association in their possession were fake documents and that they should surrender the same to the respective Registrars for cancellation of the same and/or rectification of the records. 35. Despite demand and notice of intention to sue aforesaid, the Defendants had failed to take action towards reinstating the Plaintiff as the registered owner of the leasehold interest in the suit property and/or appropriately rectifying the records at the Lands Registry, Mombasa and the Companies Registry. 36. The Plaintiff averred that there was no other suit pending between the Plaintiff and the Defendants and that there had been no previous proceedings in any Court between the Plaintiff and the Defendants over the subject matter of this suit and that the subject matter herein disclosed related to the Plaintiff named in this plaint. The cause of action arose in Mombasa County where also the Suit Property was situated within the jurisdiction of this Honourable Court. 37. The Plaintiff prayed for Judgment by this Honourable Court to be entered against the 1st, 2, 3rd, 4th, 5th & 6th Defendants jointly and severally for:- JUDGMENT: ELC NO. 160 OF 2013 Page 15 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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a. A declaration that the Plaintiff is the lawfully registered proprietor of the leasehold interest in all that land known as Mombasa/ Block XXVI/510; b. A declaration that 1st and 2nd Defendants are neither the directors nor the shareholders of the Plaintiff and that the Certificate of Incorporation No. C.65416serial number GPK 62/43-4m-12/2003-IE/6(B14) dated 16th June, 1995 and Memorandum and Articles of Association dated 16 th May, 1995 in their possession are falsified documents; c. A declaration that the entry by the Lands Registrar, Mombasa of the name “Leeward Island Limited” in the register of the land known as Mombasa/Block XXVI/510 as the registered proprietor of the leasehold interest comprised therein and subsequent issuance of a Certificate of Lease to the said “Leeward Island Limited” was unlawful, null and void and did not divest the Plaintiff of its lawful interest therein; d. A declaration that the Certificate of Lease for Mombasa/Block XXVI/510 for “Leeward Island Limited” issued on the 2nd August, 1996 is a falsified document; e. A declaration that the failure by the Land Registrar, Mombasa to issue an official search for the land known as Mombasa/Block XXVI/510 to the Plaintiff following an application and payment for the same breached the Plaintiff’s right to information as guaranteed under the provisions of Article 35 of the Constitution of Kenya, 2010; f. A declaration that the failure by the Registrar of Companies, Nairobi to issue to the Plaintiff an official statement of the shareholders, directors and secretaries of the Plaintiff following an application and payment for the same breached the Plaintiff's right to information as guaranteed under the provisions of Article 35 of the Constitution of Kenya, 2010; g. A declaration that the registration of the 6 th Defendant as the leasehold proprietor of the Suit Property was unlawful, null and void. JUDGMENT: ELC NO. 160 OF 2013 Page 16 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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h. An order that the 1st and 2nd and or 6th Defendants do surrender the Certificate of Lease for Mombasa/Block XXVI/510 issued to “Leeward Island Limited” and/or to United Care Limited to the Lands Registrar, Mombasa for purposes of cancellation; i. An order that the Lands Registrar, Mombasa does cancel the Certificate of Lease issued to “Leeward Island Limited” and/or to United Care Limited and where necessary to rectify the register in respect to the land known Mombasa/Block XXVI/510 by cancelling all entries thereon that are inconsistent with the Plaintiff's ownership thereof as proprietor of the leasehold interest comprised therein and by reinstating the Plaintiff as the leasehold proprietor of Mombasa/Block XXVI/510; j. An order that the 1st and 2nd Defendants do surrender the Certificate of Incorporation No. C.65416 serial number GPK 62/43-6m-12/2003-IE/S(B14) in their possession to the Registrar of Companies for purposes of cancellation; k. An order that the Registrar of Companies does cancel the Certificate of Incorporation No. C.65416 serial number GPK 62/43-6m-12/2003-IE/S(B14) and where necessary to rectify the Companies records in respect to the Plaintiff company number C.65416 by cancelling all entries thereon that are inconsistent with the latest annual return filed by the Plaintiff at the Companies Registry; l. A permanent injunction restraining the Defendants whether by themselves or through their servants, employees, agents or through any one deriving title through them or otherwise howsoever from entering, using, occupying, leasing, transferring, charging, selling or in any manner whatsoever in dealing adversely with the land known as Mombasa/Block XXVI/510; m.An order directed to the Directorate of the Criminal Investigations-Department, Kenya National Police Service Force-to investigate the circumstances of issuance and/or JUDGMENT: ELC NO. 160 OF 2013 Page 17 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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creation of the Certificate of Incorporation No. C.65416 serial number GPK 62/43-4m-12/2003-IE/6(B14) as well as Certificate of Lease for Mombasa/Block XXVI/510 in the name of “Leeward Island Limited” and to take such appropriate action should the investigations reveal that any crime has been committed in relation thereto; n. Costs of and incidental to the suit; and o. Any other or further relief that this Honourable Court may deem appropriate to award. 38. The Plaintiff called PW - 1 on 17 th January, 2019 at 12 pm who testified that:A. Examination in Chief of PW - 1 by Karega Advocate: 39. PW - 1 was sworn and he testified in English language. He was called MAYUR SHANTILAL MALDE. He lived in Kizingo within the County of Mombasa but later had shifted to Nyali, Mombasa. They had been running a shoe company in Mombasa, which had been a family business. PW - 1 had known Leeward Islands Limited (With an “S”), the Plaintiff’s company. PW - 1 had been familiar with it around year 1994 when they had received the Letter of Allotment. At Page 452 had been a copy of the Lease given to them by the Government. Somebody else had been allocated the property and it had been sold and transferred to them. PW - 1 stated that the initial allottee had been Waganagwa. They had purchased it from Waganagwa in the year 1994 for about a sum of Kenya Shillings Two Million (Kshs, 2, 000, 000/=). PW - 1 had not had evidence in court showing the payment to Waganagwa. PW - 1 had not produced the informal transfer in court. PW - 1 confirmed that before the land JUDGMENT: ELC NO. 160 OF 2013 Page 18 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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had been transferred to Alcop Ltd., he had not produced the sale agreement between them and the Plaintiff. There had been an agreement but PW - 1 had not produced it. The sum of Kenya Shillings Three (Kshs. 3, 000, 000/=) had been paid to the lawyer. The money had been kept by the lawyer to buy another property. PW - 1 had had no evidence that the money had been paid. Among the conditions of the lease had been that he should build one residential house over it. 40. PW - 1 stated that they had agreed that a Change of Uuser would be done and it had been done. PW - 1 had had no evidence showing that he had applied for change of user. PW - 1 had had no evidence that the change of user had been published in the newspaper. The lease he had produced had contained several conditions. Among the conditions had been No. 8, not to sell without consent of the Government. PW - 1 had had no evidence to show consent had been given as it had been done by their lawyer. 41. PW - 1 stated that in Paragraph 11 of the affidavit, he had stated that upon execution of the transfer and receipt of the purchase price, Alcop had handed over the original documents. The handing over had been done by their lawyer, not them. PW - 1 stated that it had been the lawyer who had known which documents had been handed over to the purchaser. Prior to 1995, PW - 1 had not known Mohamed Jaffer Kassamani. He had been brought to him by Mr. Amir Jatebhai. PW 1 had not known him before. JUDGMENT: ELC NO. 160 OF 2013 Page 19 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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42. PW - 1 also had not known about his company. He had not known when his company had been formed or who had formed it. He had not known how they had acquired the company. He had not known what kind of business the company had been dealing with. Mr. Waganagwa, from whom they had bought the property, must have been in Meru. After buying the property, PW - 1 had never met him again. PW - 1 stated that in the year 1995, they had been running a shoe company. It was called Slepper Shoe Industries Ltd. 43. PW - 1 confirmed that it had been true they had wanted to sell the property two ( 2 ) months after acquiring it. PW - 1 had not known one by the name Beatrice Nduku Muli. He had never met her. PW - 1 had not known Eustus Ephantus Thefetha. He had never met him. (see page 8) PW - 1 had neither met nor known the 1st and 2nd Defendants. B. Cross examination of PW 1 by Mrs. Waswa Advocate:44. PW - 1 stated that he had known about the property before buying it. They had checked with the Nairobi Land Office to confirm if the Letter of Allotment had been genuine. PW - 1 had not had the letter of allotment in Waganagwa’s name. PW - 1 confirmed that they had done a transfer with Waganagwa, but he had not had the transfer with him. They had bought the property for a sum of Kenya Shillings Two Million (Kshs. 2, 000, 000/=). After purchasing the property, they had been registered as owners in May. 1995. PW - 1 stated that before selling it, they had not surrendered it to the Government. At Page 469, there had been a surrender of Lease to obtain the change of JUDGMENT: ELC NO. 160 OF 2013 Page 20 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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user. The change of user application had been at Page 462, but PW - 1 had not had the application at that moment. 45. PW - 1 confirmed that Alcop Ltd. had transferred the property to Leeward Islands Limited in May, 1996. That had been when the transfer documents had been signed. PW - 1 had been present when the transfer had been done. The transfer of Lease was at Page 480. PW 1 stated that the certification part had not been filled. He had had the original copy with the company seal. They had signed, sealed, and given it to the advocate. They had transferred the property to Leeward Islands Limited. PW - 1 confirmed that the transfer had been registered but he had had no evidence as it had been with the lawyer. They had not gone to the Lands Office, as it had been the lawyer’s work. 46. PW - 1 stated that after they had transferred, they had not carried out a search. The current registered owner had been Leeward Islands Ltd., but PW - 1 had had no evidence for it. They had not had another suit over the suit property. PW - 1 confirmed that he had never gone to the Lands Officer to verify that their documents had been in order. C. Cross examination of PW - 1 by Mr. Odera Advocate. 47. PW - 1 stated that Alcop Ltd. had bought the leasehold interest from Mr. Waganagwa. He could not recall his other names. He had been a person well known to PW - 1, as he had been a Provincial Commissioner in Mombasa. PW - 1 had not been aware where he had been at the moment, but he had last learnt that he had been in Meru. They had not had any documents of JUDGMENT: ELC NO. 160 OF 2013 Page 21 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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title in Waganagwa’s name. PW - 1 had not had a copy of the Letter of Allotment in Mr. Waganagwa’s name. PW - 1 confirmed that he had not had a certificate of search showing the property had been in the name of Waganagwa. He had not had the sale agreement between Alcop Ltd. and Mr. Waganagwa. He had not had the formal transfer from Mr. Waganagwa to Alcop Ltd. 48. PW - 1 stated that in the absence of any agreement or evidence of payment, one could not tell the purchase price. In the absence of the Letter of Allotment, Certificate of Lease, and agreement, one could not tell that Mr. Waganagwa had been the owner. PW - 1 had not had a Certificate of Official search in the name of Alcop Ltd. The informal transfer between Waganagwa and Alcop had been stamped with stamp duty, but PW - 1 had not produced it. 49. PW - 1 confirmed that before they had bought the property, he had visited the property and had found a broken government house. There had been nobody there. He had not been aware that there had been an office in that broken government house. PW - 1 stated that he had not resided in that property. In his affidavit at Page 445, paragraph 2, he had mentioned Mohamed Jaffer Kassamali and Mr. Ali Kassam Nafsi. PW - 1 had not known Mr. Ali Kassam Nafsi and had never met him. 50. PW - 1 confirmed that the statement in his affidavit (Paragraph 2) that he had met him had not been true. It had been a false statement. PW - 1 confirmed that Mr. Mohamed Jaffer Kassamali had been dead. He had not known when he had died. PW - 1 had not seen any document showing that Ali Kassam Nafsi had JUDGMENT: ELC NO. 160 OF 2013 Page 22 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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been a director of Leeward Islands Limited. Apart from the lease and copies of the Certificates of Lease, PW - 1 had had nothing else to connect the property to Alcop Limited. PW - 1 confirmed that Mohamed Jaffer Kassamali had approached him in July, 1995. At that time, he had been a director of Leeward Islands Limited. He had represented to PW - 1 that he had been a director. 51. PW - 1 stated that he had not had the application made by Alcop Limited for Change of User. He had not tendered the sale agreement between Alcop Ltd. and the Plaintiff Company. PW 1 confirmed that at Page 472, Paragraph 8, it had banned sale or transfer without consent of the Commissioner of Lands. They had not had the consent from the Commissioner of Lands. PW 1 had not had the consent from the Commissioner of Lands for the transfer to Alcop Ltd. He had not been the one who had registered the land to the Plaintiff. They had not paid stamp duty as it had been the purchaser who had paid. PW 1 confirmed that he had had no evidence of payment of stamp duty. He had not had any certificate of official search in the name of Leeward Islands Ltd. 52. PW - 1 stated that there had been no one having an office in that property between 3rd May, 1995 and 29th May, 1996. They had never developed the property. They had not prepared any building plan for approval. PW - 1 confirmed that he had been aware who had been the owner of the property in June/July, 1995. Upon looking at the documents, the owner in June/July, 1995 had been Leeward Islands Ltd. PW JUDGMENT: ELC NO. 160 OF 2013 Page 23 of 143 - 1 had not given HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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evidence concerning the 6th Defendant, United Case Ltd. In the 6th Defendant’s documents, the property had been given to Waganagwa, hence Alcop Ltd. had not been the first owner. 53. PW - 1 stated that they had paid the allotment fees of a sum of Kenya Shillings Ninety Six Thousand (Kshs. 96,000/=). He had not had a receipt for this amount. PW - 1 had met Mohamed Jaffer Kassamali around the year 1996. He had approached PW 1 with an interest to purchase land. PW - 1 had offered to sell him Plot No. 510 at Kizingo. They had agreed to sell at a sum of Kenya Shillings Three Million (Kshs. 3, 000, 000/=). The discussions had been in the year 1995 but the agreement had been in the year 1996. The lawyer had been the Law firm of Messers. Sachdeva & Co. Advocates, who had prepared an agreement for sale. 54. PW - 1 confirmed that the affidavit had been at Page 445 onwards. He had signed the affidavit on 31 st March, 2015. He had wished to produce it as an exhibit – Plaintiff Exhibit Number 1. PW - 1 had dealt with Mr. Mohamed Jaffer Kassamali of Leeward as per Paragraph 9.10. PW - 1 had never heard of the 1st and 2nd Defendants in this case. D.Cross examination of PW - 1 by Mr. Khalid Advocate. 55. PW - 1 stated that the name of their company had been Alcop Company Limited, in which he had been a director. His company had been given a lease by the government over Plot MSA/Block XXVI/500. It had been a feedback from the Registrar of Companies. They had been aware of the company. The Registrar of Companies had been in court because they had JUDGMENT: ELC NO. 160 OF 2013 Page 24 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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given information which had not been correct. The original letter had asked many questions but the response had been one line. PW - 1 had not been satisfied with the Registrar’s response. They had confirmed that Leeward Islands Ltd. had been registered but not Leeward Island Ltd. 56. PW - 1 confirmed that the amended Plaint had been filed on 13 th January, 2017. He had received feedback from the Registrar of Companies on 3rd August, 2017. The current registered owner of the property had been Leeward Islands Limited – the Plaintiff herein. PW - 1 had not known who had sold it. He had been living in the UK, but he had come to Kenya to look at the property when his father had acquired the property. He had then gone back. He had come around the year 1996. He had been a resident of the UK, but he had been coming to Kenya on and off. The property had been acquired from Alcop Limited. The consideration had stated a sum of Kenya Shillings Three Million (Kshs. 3, 000, 000/=). PW - 1 had not had the Sale Agreement between Leeward Islands Limited and Alcop Co. Limited. PW - 1 confirmed that he had not had evidence of the payment of a sum of Kenya Shillings Three Million (Kshs. 3, 000, 000/=) because it had taken place 22 years earlier. He had seen the letter on Page 411. 57. PW - 1 stated that the directors for the Plaintiff’s Company had been Mr. Yusuf Kassam Nafsi and Ali Nafsi. He had resided in the United Kingdom since the year 1977, but he had often visited Kenya. His father had acquired shares in the Plaintiff’s Company from the initial shareholders. He had acquired them JUDGMENT: ELC NO. 160 OF 2013 Page 25 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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from Beatrice Nduku Mulu and Ephantus Thegetha. His father had acquired the shares on 1st September, 1995. It had been true that his father had not incorporated the Plaintiff Company. 58. PW - 1 confirmed that at paragraph 12 of his witness statement, he had talked about construction plans. The company had submitted the construction plans after acquiring the property. 59. PW - 1 stated that the first document had been a Certificate of Lease in the name of United Care Ltd. for title No. Mombasa/Block XXVI/510. Page 2 had been a certificate of official search. There had been no inhibition, caution, or encumbrances. At Page 15 had been a Certificate of official search in the name of Leeward Islands Limited. At Page 17 had been a Certificate of Lease in the name of Leeward Island Limited dated 2nd August 1996. PW - 1 had then seen the documents in the name of the 6 th Defendants. United Care Ltd. had been a stranger to him. In his evidence, he had never mentioned anything about United Care Limited - the 6 th Defendants. E. Re - examination of PW - 1 by Mr. Karega Advocate. 60. PW - 1 reiterated that the first owner had been Mr. Waganagwa but the first registered owner had been Alcop Ltd. At Page 116 of the Plaintiff’s bundle, the first entry had been dated 3 rd May, 1995 and the owner had been Alcop Ltd. PW 1 confirmed that at Page 119 there had been a letter dated 18 th August, 1995. Alcop Ltd. had applied for Change of User. 61. PW - 1 stated that at Page 122, the Commissioner of Lands had written to Alcop Co. Ltd. about extension of user. He had had JUDGMENT: ELC NO. 160 OF 2013 Page 26 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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the original documents of transfer. The copy had been at Pages 140–141. His signature and that of his brother had been there together with the company seal of Alcop Co. Ltd. The second page had been sealed and signed by the two directors of the transferee. The transfer had been from Alcop Co. Ltd. to Leeward Islands Ltd. The transfer had confirmed that the consideration had been a sum of Kenya Shillings Three (Kshs. 3, 000, 000/=). PW - 1 stated that if the money had not been paid to the lawyer, the transfer would not have been done. The transfer had been registered on 2 nd August, 1996. They had surrendered to get a new Certificate of Lease. 62. PW - 1 confirmed that at Page 115, the first Certificate of Lease had been issued on 3rd May, 1995. They had surrendered the Lease on 21st May, 1996. PW - 1 stated that at Page 131 there had been a Certificate of Lease in the name of Alcop Co. Ltd. dated 29th May, 1996. At Page 132, Part B proprietorship section, Entry No. 1 had been Alcop Co. Ltd. and Entry No. 2 had been the Certificate of Lease issued. At Page 143, Part B, Entry No. 3 had been Leeward Islands Limited. PW - 1 confirmed that at Page 478 there had been a certificate that Land Rent in respect of L.R. MSA/BLOCK XVI/510 registered in Alcop Co. Ltd. had been paid. Page 479 had confirmed payment of Rates by Alcop Co. Ltd. 63. PW - 1 stated that it had not been true that apart from the Certificates of Lease, they had not had other documents. They had applied for extension of user from single house to multiple houses. He stated that they could have developed if they had JUDGMENT: ELC NO. 160 OF 2013 Page 27 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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not got a buyer. PW - 1 confirmed that Pages 111–114 had contained a lease dated 13th March, 1995 and registered on 3rd May, 1995. Between June and July, 1995, the owner of the property had been Alcop Co. Ltd. They had transferred the property to Leeward Islands Limited. PW - 1 stated that he had not been aware of another company known as Leeward Island Ltd., i.e., without the ‘S’. PW - 1 confirmed that at Page 411 there had been a letter dated 3rd August, 2017 from the Registrar of Companies stating that their records had shown a company known as Leeward Islands Limited. 64. The Plaintiff called PW - 2 who testified that:A. Examination in Chief of PW - 2 by Mr. Karega Advocate. 65. PW - 2 testified and under oath in the English language. She was called ANGELICA MECHA. She resided and worked for gain in Nairobi. She had been an advocate of the High Court of Kenya. PW - 2 confirmed that she had worked at the Law Society of Kenya as the Assistant Programme Officer under the Compliance and Ethics Department. She had had a printout of their database which she had wished to produce as an exhibit – Plaintiff Exhibit No. 2. She had had a letter by the Law Society of Kenya dated 6th March, 2014 addressed to the law firm of Messrs. Anjarwalla & Khanna Advocates at Page 315 and another one dated 25th March, 2014 to the same advocates. 66. PW - 2 testified that on 6th March, 2014, they had received an inquiry from the said Law firm, the substance being a question regarding Messrs. Andrew Omondi & Co. Advocates. The inquiry JUDGMENT: ELC NO. 160 OF 2013 Page 28 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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had been at Page 312. PW - 2 confirmed that after interrogation and investigation, they had established that according to their records, they had had no advocate who had been declared to be practicing under the law firm of Messrs. Andrew Omondi & Company Advocates. PW - 2 stated that they had further directed the Law firm to confirm with the Registrar of Business Names on the same. She had wished to produce the letter dated 6th March, 2014 (Page 315) as Plaintiff Exhibit Number 3(a) and Page 319 as Plaintiff Exhibit Numbers 3(b). 67. PW - 2 confirmed that in their letter dated 6 th March, 2014, they had referenced their letter P.105/6772/08, which had meant that they had had an advocate by at least two names, Mr. Andrew Omondi, but the advocate had had two other names other than Andrew Omondi, being Ouko Austine Andrew Omondi. From their record, it might have been noted that the advocate had been admitted on 14 th February, 2008 and had never declared to the Law Society of Kenya as working under the Law firm of Messrs. Andrew Omondi & Co. Advocates. 68. PW - 2 testified that the advocate had currently been working with the National Social Security Fund. PW - 2 confirmed that at Page 310 there had been a printout from the LSK which had shown that he had been working at the National Social Security Fund. She had wished to produce the printout at Page 310 as Plaintiff Exhibit Number 3(c). She had also wished to produce the letter addressed to them at Page 312 as Plaintiff Number Exhibit 3(d). B. Cross examination of PW - 2 by Mr. Khalid Advocate. JUDGMENT: ELC NO. 160 OF 2013 Page 29 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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69. PW - 2 confirmed that Plaintiff Exhibit Number 2 pertained to her. From the document, she had been admitted as an advocate on 1st April, 2016. She had started working with the Law Society of Kenya in the year 2014 in different capacities and had moved to the position of Assistant Programme Officer in June, 2016. PW - 2 stated that she had joined the Ethics and Compliance Department in 2015 as an intern. They had dealt with issues relating to the status of advocates. In the year 2014, when the Law firm of Messrs. Anjarwalla & Khanna had written their letter, she had not been in the Ethics and Compliance Department. By the time of the letter at Page 312, she had not been there. 70. PW - 2 testified that at Page 315 there had been a response to the letter at Page 312. In their response, they had been addressing the Law firm of Messrs. Andrew Omondi & Co. Advocates. The subject had been the firm and not the individual. In their response, they had specifically responded on the firm. They had stated that they had not had an advocate who had declared to be practicing under that firm. PW - 2 stated that they could not have told whether the firm had existed or not. They had advised Anjarwalla & Khanna to liaise with the Registrar of Business Names. The letter dated 6 th March, 2014 had been written by her predecessor, Muthoni Ojwang. At that time, she had yet to join the Ethics and Compliance Department as a Programme Assistant. PW - 2 confirmed that the Law firm of Messrs. Anjarwalla & Khanna had not come back to them. They had not confirmed whether the JUDGMENT: ELC NO. 160 OF 2013 Page 30 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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firm had been registered or not. Until then, she could not have confirmed if Andrew Omondi & Co. Advocates had been registered or not. 71. PW - 2 stated that the letter at Page 319 had been written by Mercy Wambua and had been dated 25 th March, 2014. They had quoted their reference No. ARD/L.5082/1. It had been a confirmation of the same letter dated 6 th March, 2014. PW - 2 confirmed that there had been an advocate by the name Ouko Austine Andrew Omondi. They had always plucked out similarities in names or appreciations, and that had been why they had quoted the admission number. She stated that the law had allowed one to register with the names under which one had been admitted or some of them. D.Cross examination of PW - 2 by Mrs. Waswa Advocate. 72. PW - 2 confirmed that she had had the original copies of their letters. She had had her Advocate Identification Card but she had not carried it. She had had her national identity card. She stated that they had not had job cards at the Law Society of Kenya. 73. PW - 2 stated that she had been in court on behalf of the Law Society of Kenya. She confirmed that she had not had a letter from the Law Society of Kenya authorizing her to have been in court that day. E. Cross examination of PW - 2 by Mr. Odera Advocate. 74. PW - 2 stated that she had graduated from Moi University in the year 2012. She had done pupillage at Messrs. Kouna & Company Advocates. She had completed her pupillage in JUDGMENT: ELC NO. 160 OF 2013 Page 31 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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September, 2014. When the letter at Page 312 had been written, she had not been working at the Law Society of Kenya. PW - 2 confirmed that when the Law Society of Kenya had replied via letters at Pages 315 and 319, she had not been an employee of the LSK. She had not received nor replied to any letter from the Law Firm of Messrs. Anjarwalla & Khanna as at that time she had not been at the LSK. She stated that the authors of the letters had still been alive. It had not been correct that they could have spoken better than her on the letters. 75. PW - 2 confirmed that Messrs. Anjarwalla & Khanna Advocates had not written to her and she had not written any letter to them. The letter at Page 312 had not requested a search on Ouko Austine. They had asked for a search of a law firm. PW - 2 stated that there had been many advocates called Omondi. There had also been many by the name Andrew. PW - 2 confirmed that the LSK had not contacted every Omondi or Andrew to ask if they had registered a business name. She stated that in 1995 she had still been in Primary School. It had not been the LSK that registered business names. When the Law firm of Messrs. Anjarwalla & Khanna had written to the LSK, they had not attached any document signed by Andrew Omondi. F. Re - examination of the PW - 2 by Mr. Karega Advocate. 76. PW - 2 confirmed that she had had the originals of the Plaintiff Exhibit No. 3 (a) and (b). Plaintiff Exhibit Number 3(a) had been JUDGMENT: ELC NO. 160 OF 2013 Page 32 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Ref No. P.105/6772/08. PW - 2 explained that when a letter had been written, the Law Society of Kenya had kept a copy of the letter in the P.105 file, and if it had been an M3 file, it had been kept in the M3 file. Her inquiry had formed part of the records of the Law Society of Kenya. PW - 2 stated that she had worked at the Compliance and Ethics Department, and that had been why she had carried the file with her. PW - 2 confirmed that the letter at Page 312 had not asked for a search of Ouko Austine. She stated that the Law Society of Kenya could not have responded without checking its records. 77. PW - 2 confirmed that there had not been an advocate with the combination of the names Andrew Omondi. PW - 2 stated that it had been the duty of every advocate to inform the Society where one had worked or when one had changed employment. PW - 2 confirmed that in their letter dated 6 th March, 2014 (Page 315), they had stated that according to their records, they had not had an advocate who had declared to be practicing under the Law firm of Andrew Omondi & Company Advocates. G.Re - examination of PW - 2 by Mr. Hamisi Advocate. 78. PW - 2 confirmed that the Law Society of Kenya had kept records of every advocate, whether deceased or still subsisting. PW - 2 stated that the P.105 number had been unique to every advocate admitted and had been given by the Registrar. 79. The Plaintiff called PW - 3 on 1st October, 2019 at 12.30 pm who testified that:- JUDGMENT: ELC NO. 160 OF 2013 Page 33 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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A. Examination in Chief of PW - 3 by Mr. Karega Advocate. 80. PW - 3 was sworn and in English testified. He was called RIZWAN MOHAMED JAFFER KASSAMALI. He had been the Financial Adviser to Malmas Company Limited and the Chief Investment Officer of Leeward Islands Limited - the Plaintiff. PW - 3 confirmed that he had recorded a witness statement filed on 15th May, 2018 and had signed it on 18th April, 2018. He had wished to adopt the witness statement as his evidence in chief in court. PW - 3 stated that he had also seen the Plaintiff’s List and Bundle of Documents dated 17 th April, 2018 and filed in Court on 15th May, 2018. He had wished to produce the documents in the bundle as exhibits in the case. 81. PW - 3 stated that he had wished to produce the documents as Plaintiff Exhibit No. 4. He had seen the Amended Plaint filed on 13th January, 2017, which had been dated 5th January, 2017. The Plaintiff had been asking that all entries that had been improperly entered on the register of the suit property be nullified and for the CID to investigate. PW - 3 clarified that he had been referring to the entries about “Leeward Island Limited instead of Leeward Islands Limited”. He confirmed that “Leeward Island (Without an “S”) Limited” had been a non - existent legal entity. 82. PW - 3 confirmed that at Page 411 there had been a letter from the Attorney General to the law firm of Messrs. Anjarwalla & Khanna Advocates, stating that there had been only one company registered as “Leeward Islands Limited”. PW - 3 stated JUDGMENT: ELC NO. 160 OF 2013 Page 34 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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that at Page 1 there had been a Certificate of Incorporation of “Leeward Islands Limited” dated 16th June, 1995 officially issued by the Registrar of Companies. It bore numbers C.65416. He confirmed that he had had the original of the Certificate of Lease in the name of “Leeward Islands Limited” of P.O. Box 43266, Mombasa, issued on 2nd August, 1996 at Mombasa – Page 142. PW 3 confirmed that Entry No. 3 at Page 143 had been in the name of “Leeward Islands Limited”, while Entry No. 4 had been the Certificate of Lease issued. 83. PW - 3 stated that at Page 140 there had been a Transfer of Lease from Alcop Company Limited to “Leeward Islands Limited”. The signature at Page 141 had been that of his father, which he had recognized well. PW - 3 confirmed that at Page 256 there had been a Box Renter’s Authority Card issued in respect of P.O. Box 43266. It had been dated 15 th September, 1995 and had borne his father’s signature. PW 3 stated that he had seen Civil Suit No. 1064 of 2013 at Page 228, between Leeward Islands Limited versus Texas Alarms Security Limited. It had been a Supporting Affidavit by Peter Mutungi Kioko of P.O. Box 43266, which had been the same box number. PW - 3 confirmed that it had not been true that Box 43266 had belonged to Peter Mutungi Kioko. 84. PW - 3 stated that at Page 241, the two people mentioned had not been directors of “Leeward Islands Limited”. B. Cross examination of PW - 3 by Mr. Khalid Advocate. 85. PW - 3 confirmed that he had been the Chief Investment Officer of Leeward Islands Limited. He could not have recalled when he JUDGMENT: ELC NO. 160 OF 2013 Page 35 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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had been appointed, but he had held the position for many years. PW - 3 stated that at one point, he had been a director of the Plaintiff between years 1999 and 2002. He had then become Chief Investment Officer afterwards, after resigning as a director. 86. PW - 3 confirmed that currently the directors of the Plaintiff had been named in a letter at Page 303, Ref. Leeward Islands Limited, which had listed Shabir Mohamed Haji and Peter Mutungi Kioko as its directors. He stated that they had written to the Registrar of Companies but had never received a response. PW - 3 confirmed that he had been aware that the property had now been registered in the name of “ United Care Limited” – the 6th Defendant herein. He stated that the transfer might have been by “Leeward Island Limited”, but he would have had to check the records. C. Cross examination of PW - 3 by Mrs. Waswa Advocate:87. PW - 3 confirmed that the letter at Page 411 had been a response. He stated that he had not had the original, as the original letter had been at Page 408. PW - 3 admitted that it had been true they had transferred the property to United Care Limited. He confirmed that he had been to the company registry once. PW - 3 stated that he had been sure the Registrar had not registered some orders. He explained that he had relied on correspondences. He confirmed that the order had not been registered. PW - 3 stated that he had not known if the Land JUDGMENT: ELC NO. 160 OF 2013 Page 36 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Registrar had been a party to the transaction. He clarified that their prayers against the Land Registrar had been for a declaration that the registration of the 6 th Defendant as leasehold proprietor of the suit property had been unlawful – referring to Prayers (f), (g), (h), etc. PW - 3 confirmed that the order not to register the transfer had not been registered. D.Cross Examination of PW - 3 by Mr. Odera Advocate. 88. PW - 3 confirmed that he had not had an official search showing that Alcop Company Ltd. had been the registered owner of the property. He stated that he had not produced an agreement for sale between Leeward Islands Ltd. and Alcop Company Ltd. whereby the Plaintiff had bought the suit property. PW - 3 stated that he had seen Page 129 at the back. He confirmed that he had not had a letter of consent from the Commissioner of Lands allowing Alcop Company Ltd. to sell the property. He had not had a written consent from the Commissioner of Lands. PW - 3 confirmed that at Page 240 there had been a Certificate of Official Search. The name of the proprietor written there had been “Leeward Island Limited”. 89. PW - 3 stated that he had not done a search of the directors of United Care Limited and that he had not known its directors. He confirmed that he had not written any letter to the directors of United Care Limited and had not served any court order on them. He stated that they had been strangers to him. PW - 3 confirmed that he had seen the Amended Plaint. He stated that Leeward Island Limited had not been a Defendant in the case. He confirmed that he had seen the 1 st Defendant’s List of JUDGMENT: ELC NO. 160 OF 2013 Page 37 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Documents filed on 25th March, 2019. At Page 1 there had been a Certificate of Lease filed on 16 th January, 2019 for Mombasa/Block XXVI/510, showing the owner as United Care Limited. 90. PW - 3 confirmed that at Page 3 there had been a Certificate of Official Search for Mombasa/Block XXVI/510. As per the official search, the registered owner had been United Care Limited and there had been no restrictions. At Page 4 there had been a Sale Agreement between Leeward Island Limited and United Care Limited. PW - 3 stated that at Page 10 there had been a Transfer of Lease from “Leeward Island Limited“ to United Care Limited. At Page 15 there had been a Certificate of Official Search showing the proprietor dated 2nd August, 1996 in the name of “Leeward Island Limited” over Mombasa/Block XXVI/510. 91. PW - 3 confirmed that at Page 40 there had been a letter dated 27th January, 2017 directed to the directors of Leeward Island Limited. The directors had been shown as the 1 st and 2nd Defendants. The letter had been signed by Nicholas Oduor for the Registrar of Companies. He confirmed that Page 1 of the Plaintiff’s documents had been a Certificate of Incorporation dated 16th June, 1995. PW - 3 stated that at Page 342 there had been another Certificate of Incorporation for “ Leeward Islands Limited” dated 16th June, 1995, which had also borne a date of 21st June 1995. 92. PW - 3 confirmed that he had seen the 6 th Defendant’s list showing “Leeward Island Limited”. as at 2nd August, 1996, with JUDGMENT: ELC NO. 160 OF 2013 Page 38 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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no restrictions, encumbrances, or pending applications. At Pages 17–19 there had been a Certificate of Lease for Block XXVI/510 in the name of “Leeward Island Limited”, with nothing noted at the encumbrances section. PW - 3 stated that in normal circumstances, when one had wanted to buy property, one had carried out a search. Once due diligence had been done, one had gone ahead and purchased the property. PW - 3 confirmed that he had not had a search showing that an injunction order had been registered on the title. E. Re - examination of PW - 3 by Mr. Karega Advocate. 93. PW - 3 confirmed that he had remembered seeing the document at Page 303. He stated that the letter at Page 304 had been asking the Registrar of Companies about the authenticity of the letter at Page 303. He confirmed that they had not received a response to the letter dated 3 rd March, 2014. PW - 3 explained that the complaint against the Registrar had been that they had not been giving them information. By the time they had received the letter dated 3 rd August, 2017 at Page 411, they had already filed the Amended Plaint on 13 th January, 2017. 94. PW - 3 confirmed that at Page 273 there had been a letter dated 1st July, 2013 to the Registrar of Companies, and at Page 279 there had been a letter dated 12 th July, 2013 asking for a response to their original letter of 1 st July 2013. PW - 3 stated that at Page 297 there had been a letter dated 27 th February, 2014 by their Company Secretaries. He confirmed that it had not been true that they had received satisfactory responses JUDGMENT: ELC NO. 160 OF 2013 Page 39 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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from the Registrar of Companies. At Page 293 there had been an application for registration of a court order against title Mombasa Block XXVI/510, dated 12th August, 2013. 95. PW - 3 confirmed that at Page 325 there had been another application to register a court order, dated 5 th December, 2014. At Page 413 there had been a letter from their advocate to the Land Registrar asking for an official search and querying how registration had been done. The reference had been registration of inhibition on Plot Mombasa/Block XXVI/510. He confirmed that there had been attempts to register the court order. PW - 3 stated that he had seen the documents from Page 111 onwards. He confirmed that the owners of the suit property before Leeward Island Ltd. had been Alcop Company Ltd. and that they had had ownership documents for Alcop Ltd. At Page 131 there had been a Certificate of Lease in the name of Alcop Ltd., with Entry No. 1 of 29 th May, 1996 showing Alcop Ltd. and rent payable every year. 96. PW - 3 confirmed that at Page 240 there had been a Certificate of Official Search dated 16th May, 2013, which had been part of the affidavit of Peter Mutungi Kioko (Page 228). At Page 321 there had been an order issued on 2 nd December, 2014. He stated that United Care Ltd. had not been owners on 2nd December, 2014, and he had not known of their existence. PW 3 confirmed that at Page 303 there had been a letter dated 7 th February 2014, which had been an annexture by the 2 nd Defendant showing the 1st and 2nd Defendants as directors of their company, and that had been why they had sued them. At JUDGMENT: ELC NO. 160 OF 2013 Page 40 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Page 408 there had been a letter to the DCIO referring to Entry No. 2 dated 29th May, 1996, Certificate of Lease issued (Page 132). 97. PW - 3 confirmed that at Page 143 there had been Entry No. 3 dated 21st August 1996 – Leeward Islands Limited – and 2 nd August 1996, Certificate of Lease issued. He stated that Leeward Islands Limited had paid the purchase price of a sum of Kenya Shillings Three Million (Kshs. 3,000,000.00/=) At Page 140 there had been a Transfer of Lease showing consideration of Kshs. 3,000,000, and Page 141 had contained Entry No. B-3. PW - 3 confirmed that at Page 174 there had been a Land Rent Demand Note issued by the Ministry of Lands on 13 th November 2008 to Leeward Islands Limited, P.O. Box 43266, Mombasa. He stated that they had been paying both Leeward Island and Leeward Islands. The matter had been copied to the Registrar of Companies and the EACC. 98. PW - 3 confirmed that at Page 411 the Registrar had stated that there had been only one company registered as Leeward Islands Limited. He stated that he had never seen a transfer from Alcop Ltd. to Leeward Island Limited. PW - 3 confirmed that at Page 10 of the 6th Defendant’s documents there had been a transfer, with the Transferor shown as Leeward Island Limited. He stated that the company had never transferred the property to anybody. 99. PW - 3 confirmed that the PIN number had been 002265605K. At Page 13 there had been a Stamp Duty Declaration Form showing the transferor as Leeward I. Ltd. with PIN 002265605K, JUDGMENT: ELC NO. 160 OF 2013 Page 41 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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which had been Mohamed Shabir’s PIN. PW - 3 confirmed that at Page 12 the transfer had been shown as done on 4 th March, 2016. He stated that by then there had been a pending suit. 100. On 16th November, 2022, the Plaintiff marked its case closed through its advocate on record Mr. Karega. V. The case by the 1st and 2nd Defendant 101. The 1st and 2nd Defendants opposed the claim through a Statement of Defence and Counter - Claim where they averred that the Defendants reserved their rights to apply, prior to or at the commencement of the hearing of this suit, for an order that the Plaint herein be struck out on the grounds that this suit was bad in Law, misconceived and disclosed no reasonable cause of action as against the Defendants and was scandalous, frivolous or vexatious and/or constituted an abuse of the process of this Honourable Court. 102. The averments appearing hereinafter were made without prejudice to the contents of Paragraph 1 above. The Defendants admitted the formal and/or descriptive contents of Paragraphs 1, 2 and 3 of the Plaint in so far as they referred to the Defendants. The Defendants denied the contents of Paragraphs 3 and 4 of the plaint and averred that: a) The Defendants were the Directors of a limited liability company called “LEEWARD ISLAND LIMITED” (hereinafter referred to as 'the company'). b) The Defendants were strangers to the averment made in paragraph 3 of the Plaint that the Plaintiff was the Registered Lease holder Proprietor of Mombasa/ Block XXVI/510 situated in Kizingo Mombasa. JUDGMENT: ELC NO. 160 OF 2013 Page 42 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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103. The Defendants denied that the Plaintiff was entitled to the relief prayed for at Paragraph 7 of the Plaint and averred that such rights as it claimed to be entitled to were procured by fraud. The Defendants denied the contents of Paragraphs 8, 9 and 10 of the Plaint and averred that they were strangers to the averments therein. The Defendants put the Plaintiff to strict proof in as far as averments contained in Paragraphs 11, 12, 13, 14, 15, and 16 of the Plaint. 104. The Defendants denied the contents of Paragraphs 19 and 20 of the Plaint and particularly the particulars of fraud and put the Plaintiff to strict proof. So far as the contents of Paragraphs 21 and 22 of the Plaint were concerned, the Defendants repeated the averments made at Paragraph 4 of this Defence. The contents of Paragraph 23 of the Plaint were denied in toto. The contents of Paragraphs 24, 25 and 26 of the Plaint were admitted save that the Defendants denied that there was any cause of action against either of them or that there was any proper basis for the institution of this suit against any of them. 105. On the Counter - Claim, the Defendants reiterated the averments in the defence and hereinabove. The 1 st and 2nd Defendant's company purchased the suit property and a Certificate of Lease was duly issued. The Defendants had invested heavily in the suit property and that the Plaintiff’s act was likely to put the Defendants into immense loss and damage. The 1st and 2nd Defendants relied on the following particulars of loss and damage:JUDGMENT: ELC NO. 160 OF 2013 Page 43 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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a. The Plaintiff had obtained orders stopping the Defendants from any dealings of whatsoever nature on suit land. b. The Plaintiff had caused the 1st and 2nd Defendants to get into unwarranted costs. 106. From the Counter – Claim, the 1st and 2nd Defendants prayed that the Plaintiff’s claim against it be dismissed with costs and Judgment be entered in its favour against the Plaintiff for: a) A declaration that the 1st and 2nd Defendants’ company Leeward Island Limited is the lawful and is entitled to exclusive and unimpeded right of possession, use , occupation and quiet enjoyment of the Plot No. Mombasa /Block XXVI/510 measuring 0.1925Ha situate in Mombasa Island and an order that the Plaintiff to vacate from Plot No. Mombasa /Block XXVI/510situated at Mombasa Island. b) An order of permanent injunction restraining the Plaintiff by itself, its authorized agents, and/or servants of otherwise howsoever from trespassing upon and/or in any manner whatsoever interfering with the 1st and 2nd Defendants’ company Leeward Islands Limited use, possession and quiet enjoyment of Plot No. Mombasa /Block XXVI/510. c) An Order that the Plaintiff's suit be dismissed with costs to the Defendants. 107. The 1st Defendant called his first witness on 24 th September, 2024 who told the Court that:A. Examination in Chief of the 2nd Defendant by Mr. Ngure Advocate. 108. The 2nd Defendant testified under oath in Kiswahili language. He was called SHABIR MOHAMED DHAJI. He had lived in Eldoret. He confirmed that on 14th February, 2023 he had recorded his witness statement. He testified that he had JUDGMENT: ELC NO. 160 OF 2013 Page 44 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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appeared in court in respect of Plot No. 510. He stated that he and Peter Kioko had been two ( 2 ) directors and owners of the company known as “Leeward Island Limited”. He added that Mr. Kioko had since passed away. 109. The 2nd Defendant testified that they had obtained the lease in the year 1996 from the Provincial Commissioner, Coast, Mr. Waganagwa. He confirmed that the land had later been registered in the name of United Care Ltd., but he emphasized that they had never sold the land. He stated that from the year 1996 they had attempted to construct houses but had been unable to do so due to financial difficulties. He testified that they had remained in possession until the year 2016, when they had sold the land to United Care Ltd. He confirmed that they had prepared a Sale Agreement and Transfer documents. 110. The 2nd Defendant referred to the Certificate of Lease dated 20th February, 2019 and stated that he wished to produce documents numbered 1 to 8. The 2 nd Defendant testified that they had held Plot No. 510 for twenty (20) years. He stated that during that period they had erected a perimeter wall around the land. He confirmed that throughout this time no one had come forward to claim the land. The 2 nd Defendant testified that consequently, the deceased director, Peter Kioko, had decided to sell the land. He confirmed that the transfer had been effected smoothly for a consideration of Kenya Shillings Fourty Five Million (Kshs. 45,000,000.00/=) and that the land had been sold to United Care Ltd – the 6th Defendant herein. JUDGMENT: ELC NO. 160 OF 2013 Page 45 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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B. Cross Examination of the 2nd Defendant by Mrs. Waswa Advocate. 111. The 2nd Defendant testified that they had obtained the land in the year 1996. He stated that they had bought the plot in the year 1995 from the former Provincial Commissioner, Coast, Mr. Waganagwa. He confirmed that they had sold the land in the year 2016. They had never encountered any restriction from the Land Registry. He stated that the land had been theirs and that the whole transaction had been handled by his partner, Mr. Kioko. They had not known of another company called “Leeward Islands Limited” and neither had they known the directors of the said company. C. Cross examination of 2nd Defendant by Mr. Olaba Advocate. 112. The 2nd Defendant testified that they had incorporated their company called “Leeward Island Limited” in the year 1995. He stated that they had submitted this name to the Registrar of Companies and had never received any objection from the said officer to the effect that there had existed a similar name. 113. He reiterated that they had bought the land in the year 1996 and from that time they had obtained the Certificate of Lease. He testified that they had constructed a perimeter wall and a gate, and that nobody had disrupted them. He did not agree with the assertion that there had been another person or entity demanding or claiming ownership of the suit land. JUDGMENT: ELC NO. 160 OF 2013 Page 46 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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D.Cross examination of the 2nd Defendant by Mr. Karega Advocate. 114. The 2nd Defendant was referred to his witness statement dated 14th February, 2023, Paragraph 3, where he had stated that they had been allotted the land by the Government of Kenya. He testified that he had not remembered whether he had produced a Letter of Allotment. He was referred to the documents filed by the Defendant and confirmed that there had been no Letter of Allotment among the eight documents. 115. He stated that it had been his partner who had dealt with the sale of the land, and he did not know how much had been paid. He had suffered a serious road traffic accident and had lost memory. He stated that he did not remember the advocate they had used, as it had been Mr. Kioko who had dealt with the matter. He confirmed that he did not know one Mr. Mayur Malde and had never heard of a company called Alcop Company Ltd. He stated that he had been aware that there had been several Defendants in the case and that the Land Registrar had been the 4th Defendant. 116. The 2nd Defendant was referred to the witness statement of the Land Registrar, Mr. Got Hashim, dated 3 rd August, 2015, Paragraph 2 on fraud acquisition of the land. He had no answer to the assertion made by the Land Registrar to the effect that the title had been acquired fraudulently. He was referred to Paragraph 3, where the Land Registrar had claimed that the first registered owner had been Alcop Ltd., but DW - 1 stated that he had not known them. Apart from the Certificate of JUDGMENT: ELC NO. 160 OF 2013 Page 47 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Lease, there had been no other document bearing the names of “Leeward Island Limited”. He stated that he had not known what a lease was. He was referred to the bundle of documents by the 3rd and 4th Defendants, Document No. 12, which had been a lease. He stated that it might have been there for their company, but it had been Mr. Kioko who had dealt with those transactions. 117. The 2nd Defendant testified that he had remembered them selling the land. He confirmed that they had sold it for a sum of Kenya Shillings Fourty Five Million (Kshs. 45,000,000/) to United Care Ltd. They were paid in full. He stated that he had not been sure whether they had had an advocate who had acted for them in the transaction or not, as it had been Mr. Kioko who dealt with the transaction and hence had received the money. He had no proof of how the monies was paid. He confirmed that they had shared the money equally, a sum of Kenya Shillings Twenty Two Million Five Hundred Thousand (Kshs. 22,500,000/=) each, and that they had had a company resolution, though it had not been documented. They had bought the land in year 1996 and sold it in year 2016, and there had been no disruptions. He stated that he had been aware that the suit had been filed in the year 2013. He confirmed that he had not known an advocate called M/s. Waithera Advocate, though he was referred to a replying affidavit sworn on 6th February, 2014, commissioned by Mr. Mkan and Waithera Advocate. JUDGMENT: ELC NO. 160 OF 2013 Page 48 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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118. The 2nd Defendant testified that he did not remember using postal address 43266, Mombasa, though it had been contained in his affidavit. He was referred to the bundle of documents but stated that he did not remember the said address. He was referred to the Transfer Form/Documents from Leeward Island Ltd. to United Care Ltd., which had used the address 16288, Nairobi. The 2nd Defendant was referred to the Plaintiff’s consolidated bundle at Page 256. He testified that he did not remember whether the signature there had been his, as he had had a bad road accident. He stated that he did not remember the advocate they had used to incorporate their company and did not remember any details of the transaction. 119. The 2nd Defendant was referred to Page 318, being a letter by a Law firm Messrs. Wachira Nderitu Ngugi & Co. Advocates. He testified that he did not remember an advocate called Andrew Omondi. He was referred to Page 319, being a letter dated 25 th March, 2014 by the Law Society of Kenya concerning Andrew Omondi & Company. After they had bought the land, they had attempted to construct some apartments but had lacked finances. He stated that they had used a contractor but did not remember his details. He confirmed that on approvals, it had been Mr. Kioko who had dealt with them. He testified that he had not been aware of the rates payable to the Municipal Government of Mombasa. 120. The 2nd Defendant was referred to Page 321, being a court order of 6th November, 2014. He testified that he did not remember it, though he had now read it. He was also referred JUDGMENT: ELC NO. 160 OF 2013 Page 49 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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to the Statement of Defence filed on 24 th February, 2014 and dated 6th November, 2014. E. Re - examination of the 2nd Defendant by Mr. Ngure Advocate. 121. The 2nd Defendant testified that he had been acting as a director, but it had been his partner, Mr. Peter Kioko, who had been the active one in handling the company’s affairs. He confirmed that he had never been summoned by the police on grounds that the Certificate of Lease had been fraudulently obtained. 122. He had never known about any court order relating to the property. He confirmed that they had transferred the land to United Care Ltd. without any difficulties. They had received the purchase price in cash and not through any financial institution. 123. The 1st and 2nd Defendant marked their case closed through their advocate Mr. Ngure on 24th September, 2024. VI. The case by the 3rd , 4th and 5th Defendants 124. The 3rd, 4th and 5th Defendants opposed the suit averring that save for what was herein expressly admitted the 3 rd Defendant denied each and every allegation contained in the Plaint as if the same was herein set out seriatim and verbatim traversed. The 3rd Defendant admitted the contents of Paragraphs 1, 2, and 3 of the Plaint but only to the extent that the same were descriptive of the parties herein save that their address of service. The 3rd Defendant was not privy to the contents of JUDGMENT: ELC NO. 160 OF 2013 Page 50 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Plaint; denied the same and the Plaintiff was put to strict proof thereof. The 3rd Defendant was a stranger to the contents of Paragraphs 15, 16, 17, 18, and 19 of the plaint and the Plaintiff was put to strict proof thereof. 125. The 3rd Defendant was not aware and was a stranger to the contents and particulars of fraud outlined in Paragraphs 20 of the plaint; the same was denied and the plaintiff was put to strict proof thereof. The 3rd Defendant denied all the content in Paragraphs 21, 22, 23, 24 and 25 of the Plaint and put the Plaintiff to strict proof thereof. Paragraph 26 of the Plaint was thereby admitted. For the foregoing reasons, the 3rd Defendant stated that the reliefs sought by the Plaintiff were neither available nor merited. 126. The 3rd and 4th Defendants called their witness on 24 th September, 2024 who testified that: A. Examination in Chief of the Land Registrar by Mrs. Waswa Advocate. 127. The Land Registrar was sworn and testified in English language. She was called Sheila Soita, of Personal No. 200206739. She was a Land Registrar at Mombasa Land Registry, where she had served for two years. She confirmed that she had appeared to testify on Land Reference No. MSA/XXVI/510. DW - 3 referred to the information contained in the Parcel file. Specifically, she made reference to the Green Card. She testified that the land had first been allotted to Alcop Ltd. by the Government of Kenya on 1 st December, 1994 JUDGMENT: ELC NO. 160 OF 2013 Page 51 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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for a term of 99 years. She stated that later, on 29 th May, 1996, there had been a surrender of lease back to the Government of Kenya, and a new lease had been issued to Alcop Ltd. 128. The Land Registrar confirmed that on 2 nd August, 1996, a transfer from Alcop Ltd. had been registered in favour of “Leeward Island Limited”. (without an “S”). She testified that on 4th March, 2016, a transfer had been registered to United Care Limited and a Certificate of Lease had been issued. She stated that on 21st April, 2016, a restriction had been registered pursuant to a court order, pending the hearing and final determination of the matter. However, DW - 3 noted and informed Court that “the instrument of transfer” (in the parcel file) dated 16th July, 1996 indicated that the suit land was transferred from Alcop Ltd to “Leeward Islands Limited” (with an “S”). It was registered on 2 nd August, 1996. She explained that the date of 16th July, 1996 had been the date of registration by the Registrar, and that the title had been surrendered to the Government of Kenya by Alcop Ltd. on 29 th May, 1996, with an instrument of surrender to that effect. 129. DW - 3 testified that after that surrender, a fresh lease had been issued to Alcop Ltd. She explained that although this did not happen all the time, there had been circumstances when it occurred, such as expiration of term, error, or defacing of the title. She stated that it had therefore not been unusual. She emphasized that what had been on the instrument of transfer should have matched the issuance of the certificate, but the JUDGMENT: ELC NO. 160 OF 2013 Page 52 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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entry on the White Card had not been signed. She confirmed that before the transfer of the land to United Care Ltd., the land had been registered to “Leeward Island Ltd”. (without “S”). 130. DW - 3 testified that she did not have on the parcel file a transfer instrument by “Leeward Island Ltd”. The only instrument of transfer in the file was that for “Leeward Islands Limited” (With an “S”). She therefore she proceeded to produce the following documents: (a) A copy of the cancelled title lease for Alcop Ltd. dated 29th May, 1995. (b) A certified copy of the surrender from Alcop Ltd. to the Government of Kenya dated 21st May, 1996. (c) A certified copy of the new lease to Alcop Ltd. dated 21 st May, 1996. (d) The transfer instrument to Leeward Islands Limited dated 16th July, 1996 and registered on 2nd August, 1996 (e) A copy of the RIM – LR XXVI/MN/510. (f) The memorandum of transfer. (g) A certified copy of the White Card, Edition 3. (h) The transfer dated 16th May, 2016 to United Care Ltd. 131. DW - 3 confirmed that the 3rd and 4th Defendants had produced Defence Exhibits 1 to 9. JUDGMENT: ELC NO. 160 OF 2013 Page 53 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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B. Cross examination of the Land Registrar by Mr. Ngure Advocate. 132. DW - 3 testified that the land had been allocated to Alcop Ltd. for a term of 99 years, but it had later been surrendered. She stated that there had been no explanation given for the surrender. She confirmed that the surrender had been dated 21st May, 1996 and that the new lease had been registered on 29th May, 1996. 133. She testified that the registered owner had been Leeward Island Ltd. (without “S”). She stated that, apart from the instrument of transfer dated 16th July, 1996, there had been no records for Leeward Islands Ltd. (with an “S”) in the parcel file. 134. DW - 3 confirmed that a restriction had been registered on 21 st April, 2016. C. Cross examination of the Land Registrar by Mr. Karega Advocate. 135. DW - 3 testified that she had come across a term of extension of user, which could have been a reason for the surrender of the lease. She referred to Pages 119 and 120 and stated that it had likely been the reason for the surrender of the lease. She emphasized that for such a matter, she would have insisted that a copy of the lease be produced. DW - 3 was referred to the Plaintiff’s bundle of documents at Page 143, being the title deed. She testified that the transferee had been Leeward Islands Ltd., and that the postal address on the title deed had been P.O. Box 43266, Mombasa. She confirmed that all the JUDGMENT: ELC NO. 160 OF 2013 Page 54 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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information from that document had tallied very well with what had been on record at the Land Registry, and that the correspondences had matched closely. DW - 3 testified that the only discrepancy had been the missing letter “S” from the Green Card entry. 136. She further stated that there had been no reference to the name of Mr. Waganagwa, the former Provincial Commissioner of the Coast region, as had been alleged in the land records. Examination in Chief of DW – 5 by M/s. Waswa Advocate 137. DW – 5 was sworn and testified in English language. He was called HASHIM GOT SAT. He was a Civil Servant attached with the Ministry of Lands for over 35 years of experience. Currently, he was the County Land Registrar based at the County of Machakos. He informed the Court that stated that he signed a witness statement (undated) that was filed on 31 st August, 2015. He further informed Court having been the Land Registrar who undertook the following transactions pertaining to the suit land at the land registry. These were:i. registering the lease in favour of ALCOP LIMITED, the first allottee to the suit land; ii. registering the Lease in favour of Leeward Islands Limited, the Plaintiff herein. iii. Endorsing the transfer by Leeward Island Limited (without an “s”). ; and JUDGMENT: ELC NO. 160 OF 2013 Page 55 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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iv. Registering the lease in favour of United Care Limited, the 6th Defendant herein. According to him, the transfer in favour of the 6th Defendant, United Care Limited on 27 th February, 2016, was erroneously undertaken. This should not have been done as there were allegations of fraud levelled and having been perpetrated against the 1 st and 2nd Defendants had been depicted perpetrated by the 1 st and 2nd Defendants. There were issues in court. He confirmed that the Property was originally allotted to ALCOP LIMITED and a Lease issued to that effect. That ALCOP LIMITED applied for extension of user pursuant to which the company surrendered the original lease and thereafter, a new certificate of lease was issued on 29 th May, 1996 and new white card opened. 138. On 2nd August, 1996, a transfer of the Lease was presented from ALCOP LIMITED to Leeward Islands Limited (with an “ S”). DW - 5 confirmed that he registered the Lease. He admitted that the signature in the Certificate of lease issued in favour of Leeward Island Limited (without an “S”) was his (refer to page 17 of the 6th Defendant Exhibit No. 9). He stated that while signing the transfer, he did not have the Correspondence File. Had he known of the matter, he would not have registered the transfer to the 6th Defendant. 139. DW - 5 confirmed that at the time of registration of the latter lease (in favour of the 6 th Defendant), the Injunction Order of 6th November, 2014 (at page 321 of P. Exhibit No. 4 had been issued that restrained further dealings with the Property. He admitted that his witness statement was received at the Attorney General's office on 14th September, 2015 and filed on JUDGMENT: ELC NO. 160 OF 2013 Page 56 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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15th September, 2015. His statement preceded the 2016 registration in favour of the 6th Defendant. 140. DW - 5 stated that a certificate of lease over the Property had fraudulently been obtained by the 1 st and 2nd Defendant and the original white cards edition (i) and (ii) tampered with in order to perpetuate the fraud. Cross – Examination of DW – 5 by Mr. Ngure Advocate 141. DW – 5 was referred to witness statement – it was made on 14th September, 2015. He confirmed to court that under the last paragraph there was some fraud perpetrated by the 1 st and 2nd Defendants. He stood by that assertion. He was further referred to the List of Documents – the transfer document dated 27th February, 2016 in favour of United Care Limited. He was not the authenticating officer for the transfer from Islands Limited to United Care Limited but the Land Registrar. However, he admitted having been the one who okayed it. 142. DW – 5 testified that the Leeward Island perpetrated some fraud but five months later he still did signed the transfer. He denied there was any double speak there. It was because of the confusion from the identical names of the two (2) companies referred as [ISLAND (S)] – The names caused the confusion; when the matter was filed in court, they placed the restriction to the effect that there would be no dealing on the land. It was on 21st April, 2016 at Entry no. 87 under the provision of Section 76 of Land Registration Act No. 3. 143. The restriction was placed based on the Powers of the Land Registrar and not a Court order. Although there was a court JUDGMENT: ELC NO. 160 OF 2013 Page 57 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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order which they presented but it was not registered. He confirm having signed the transfer form for United Care Limited and now the title in its name. Cross – Examination of DW – 5 by Mr. Olaba Advocate 144. DW – 5 confirmed that there was an application for official search by United Care Limited before the registration i.e., transaction but he never had there in Court then. He further confirmed the Leeward Island Limited had been registered as the current owners of the suit land. The document had been presented and checked. They were brought to his attention for his signature; He confirmed that the Stamp Duty was paid by Leeward Island as per the valuation. Its disturbing that it was alleged he had colluded with Leeward Island Limited on the fraud. He always performed his duties diligently. The court order was prepared but it was not registered. He believed the parties to the suit were aware of the matter. In the given circumstances Leeward Island Limited would proceed to have the transaction registered. They were not aware of the court order – United Care Limited would be liable for negligence. 145. DW – 5 held that the other parties were aware being party to the suit but they never informed United Care Limited. The United Care Limited never did due diligence as far as he was concerned. Two wrongs never mad a right. This information was concealed from them by the Leeward Island Limited; indeed, he confirmed that the United Care Limited relied on the record at the Land Registry but to him there were many more other documents and sources they would have obtained JUDGMENT: ELC NO. 160 OF 2013 Page 58 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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information on the land. For instance, the Green card and white card; correspondents file which were in custody of the Land Registry etc; 146. He never blamed himself as he registered a restriction and wrote a letter to United Care Limited reference no. 25093 of 4 th March, 2016 on the registration of the restriction. This was done after the United Care Limited had gotten registered in their name. He advised them that there would be no dealing on the matter anymore, and they should go and find out more information from court. He was not aware whether they received the letter but he believed they did as it bore their official stamp and signature. 147. If the search was to be conduced today, it would show the property was registered in the names of United Care Limited, He was not sure whether they were the ones paying land rates to County of Mombasa. Likewise, he was not aware whether Leeward Island limited were making any such payments. He confirmed that indeed that there were innocent purchaser on notice. Cross – Examination of DW – 5 by Mr. Karega Advocates 148. DW – 5 was referred to the final paragraph of the witness statement. He confirm not knowing the 1 st and 2nd Defendants as they had never dealt with each other as individuals. They registered the restriction as there was a pending court case and the court had issued some inhibition in form of an Order though it was not registered. It was based on this anomaly that he used his discretions to register the restriction. He placed JUDGMENT: ELC NO. 160 OF 2013 Page 59 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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the restriction on 21st Match, 2016 and registered the property to United Care Limited. On 4th March, 2016 he wrote a letter to United Care Limited dated even date. 149. He reiterated that when it came to due diligence, they merely never relied on the Green card but other documents e.g., correspondences file. He got the court case number which he put on the letter to United Care from the correspondences file; i.e., the Court order was presented to the Land registry by the Law firm of M/s. Anjarwala & Khanna Advocates but it was not registered despite of their correspondence on this matter. I advised them the significance on the registration of the order but they ignored his advise. He wished they had consulted his Senior/Superior. 150. DW – 5 testified that by the time he was registering the transfer to the United Care Limited, he had not gotten the correspondence file nor the information on the actual situation surrounding the suit land. Had he have gotten this information, he would never have registered it in the name of United Care Limited. Indeed, he stated that this was factual as immediately he got this information, he proceeded to register the restriction as vested in him by law. 151. DW – 5 was refer to the bundle of documents by 6 th Defendants – page 17 of the said bundle – i.e. a certificate of lease for Leeward Island Limited dated 2 nd August, 1996. He confirmed they bore his signature - of HASH GOT SAT. He stated that if there was another Certificate of lease on pages JUDGMENT: ELC NO. 160 OF 2013 Page 60 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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142 to 145 of the Plaintiff’s bundle – bearing the same date and signature then it was clear his signature was forged. Re – Examination of DW – 5 by M/s. Waswa Advocate. 152. The property was transferred by the Advocate to United Care Limited from Leeward Island Limited. However, he did not have the documents in Court. He came to know about the Inhibitions order from the file. 153. The witness statement was filed on 14 th September, 2015. They received a letter from the Attorney General to other seeking clarification of the matter as early as 2015. He responded to them. He explained all the circumstances of the matter. Examination in Chief of DW – 6 by M/s. Waswa Advocate. 154. DW – 6 was sworn and testified in English language. He was called JOSIAS MUGENDI NJAGI. He was a Senior Officer attached with the Business Registration Service (Hereinafter referred to as “BRS”). It was under the office of the Attorney General. He had all the records on the Plaintiff’s company. He stated that there was only one incorporated company by the name “Leeward Islands Limited” (with an “S”) registration no. C65416 within their records. There was a certified copy of the Certificate of Incorporation of Leeward Islands Limited. The 5 th Defendant never had any records for “ Leeward Island Limited” (without an “S”). The said company or legal entity was not registered with the 5th Defendant. 155. Generally, in cross examination of DW – 6 by all the Advocates, he stated that from their records, the 1 st and 2nd Defendants JUDGMENT: ELC NO. 160 OF 2013 Page 61 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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were not the shareholders of the Plaintiff company and that the CR12 Form produced by the 1st and 2nd Defendants (see page 38 of the 1st and 2nd Defendants List and Bundle of Documents dated 20th February, 2019) never originated from the Registrar of Companies (now the BRS). 156. He held that the alleged officer who purported to have signed the documents had never worked at the BBS. From his own knowledge he knew him as always an employee at the Ministry of Lands. VII. The case of the 6th Defendant 157. The 6th Defendant filed a Statement of Defence dated 10th February, 2017. It responded to the claim averring that save as was hereinafter expressly admitted, the 6 th Defendant denied all the averments in the Plaint and put the Plaintiff to strict proof thereof. The 6th Defendant admitted Paragraphs 1, 2, 3 of the Plaint insofar as the same were only descriptive of the parties. The 6th Defendant denied that the Plaintiff was or was the registered owner of the suit land either as alleged in Paragraph 4 of the Plaint or at all. The 6 th Defendant referred to Paragraphs 5, 6, and 7 of the Plaint and denied that the Plaintiff: a) Was registered as the owner of the Property. b) Acquired the Property for valuable consideration. c) Had been paying land rent and land rates for the Property. d) Was the absolute and indefeasible owner of the Property 158. The 6th Defendant was a stranger to the averments in Paragraphs 10, 11, 12, 13 and 14 of the Plaint and therefore JUDGMENT: ELC NO. 160 OF 2013 Page 62 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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denied the same and put the Plaintiff to strict proof thereof. The 6th Defendant denied the averments in Paragraph 14 of the Plaint and stated that the only notice, which the directors of the 6th Defendant saw, was the one published in one of the local dailies – “the Daily Nation” Newspaper edition of 22 nd June, 2016. This was long after the 6th Defendant had purchased the Property. Save for the fact that the 6 th Defendant was registered as the proprietor of the Property on 4th March, 2016 the 6th Defendant denied the averments in paragraph 15 of the Plaint and put the Plaintiff to strict proof thereof. 159. The 6th Defendant denied the averments in Paragraphs 16, 17 and 18 of the Plaint and put the Plaintiff to strict proof thereof. In reply to Paragraphs 18A, 18B, and 18C of the Amended Plaint, the 6th Defendant averred that: a) The 6th Defendant purchased the Property from “ Leeward Island Limited”, and that, there was no order of injunction restraining the said company from selling and transferring the Property. b) The Property was previously registered in the name of Leeward Island Limited, which was a legal entity, distinct and separate from the 1st and 2nd Defendants. c) The Plaintiff did not register any order of injunction at the Registry of Lands against the Property. 160. The 6th Defendant denied Paragraph 19 of the Plaint and averred that the Plaintiff had no interest at all in the Property. In reply to Paragraph 19 (e) of the Plaint, the 6 th Defendant JUDGMENT: ELC NO. 160 OF 2013 Page 63 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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averred that it purchased the Property from Leeward Island Limited, and that, there was no order of injunction restraining the said company from selling and transferring the Property. The 6th Defendant denied that it conspired with the 1 st, 2nd, 3rd, 4th and 5th Defendants to fraudulently deprive the Plaintiff any interest in the Property. The 6 th Defendant denied the particulars of fraud set out in Paragraph 20 (a) to (j) of the Plaint and put the Plaintiff to strict proof thereof. In further reply to Paragraph 20 of the Plaint the 6 th Defendant denied that:a) It acquired the Property without an agreement for sale. b) It knew that the ownership of the Property was in dispute. c) It knew that there was a case pending in court over the Property. d) The Property was partly developed and in the possession of the Plaintiff 161. The 6th Defendant denied the contents of Paragraphs 21, 22, 23 and 24 of the Plaint and put the Plaintiff to strict proof thereof. The 6th Defendant was an innocent purchaser for valuable consideration without notice. The 6 th Defendant purchased the Property from Leeward Island Limited for a consideration of a sum of Kenya shillings Fourty Five Million (Kshs. 45,000,000.00/=). Prior to purchasing the Property, the 6th Defendant conducted an official search which showed that:(a) Leeward Island Limited was the registered proprietor of the Property. JUDGMENT: ELC NO. 160 OF 2013 Page 64 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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(b) There was no inhibition, caution, or restriction registered against the Property. 162. The 6th Defendant was the registered proprietor of the Property and in law the absolute and indefeasible owner thereof, together with all privileges and appurtenances belonging thereto. The 6th Defendant averred that the Plaintiff had no interest in the Property. Therefore, the Plaintiff lacked the locus standi to bring an action against the 6th Defendant in respect of the Property. The 6th Defendant averred that the Plaintiff's claim, if any, which was denied, over the Property was barred by limitation period, and for that reason, the Plaintiff’s suit was not only frivolous but also an abuse of the court process. The 6th Defendant admitted Paragraph 25 of the Plaint and the jurisdiction of the court but denied that the Plaintiff had any cause of action against the 6 th Defendant. 163. The 6th Defendant summoned Mr. Rishad Hamid Ahmed as the their sole witness. He stated that he was the Director of the 6 th Director. He stated as follows:a) In the month of November, 2015 the 1 st and 2nd Defendants informed him that they were the Directors of a company known as Leeward Island Limited. They had the suit land and which they were offering to sale. b) They applied for an official search and found out there were no inhibition. It showed that it was registered in the name of Leeward Island Limited. It was not registered in the name of the Plaintiff. JUDGMENT: ELC NO. 160 OF 2013 Page 65 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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c) After that, the 6th Defendant purchased the suit land at a sum of Kenya Shillings Fourty Five Million (Kshs. 45, 000, 000/=). Thereafter, the transfer of the land was done. d) The 6th Defendant had been an innocent purchaser for value without notice. e) The 6th Defendant had been paying land rates for the land. f) The 6th Defendant had invested heavily in the suit land. 164. For the reasons stated above the 6 th Defendant prayed that the Plaintiff’s suit be dismissed with costs. VIII. Submissions 165. On 30th May, 2026, upon the close of both the Plaintiff and the Defendants cases, the parties were directed to canvass the suit by way of written submissions. 166. Pursuant to that parties fully complied the Honourable reserved the delivery of Judgment on notice. Eventually, it delivered it on date on 2nd October, 2026 accordingly. A. The Written Submission by the Plaintiff 167. The Plaintiffs through the Law firm of Messrs. Anjarwalla & Khanna LLP Advocates filed their written submissions dated 5 th March, 2026. M/s. Onesmus and Mr. Karega Advocates commenced their submissions through an opening statement that Charles Milles Manson was an American criminal, cult leader, and musician who led the Manson Family in California during the late 1960s and early 1970s. Although Manson is not JUDGMENT: ELC NO. 160 OF 2013 Page 66 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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remembered positively, he once said, “If you're going to do something, do it well.” 168. According to the Learned Counsels, in this case, the fraudulent actions of the1st and 2nd Defendants, aided by the 4th and 5th Defendant's complacency, were poorly executed. The glaring and amateurish mistakes made by the 1st and 2nd Defendants and their accomplices have been detailed by several witnesses in the course of this trial and should provide a clear paper trail for the court to determine the true owner of the disputed property. 169. The Learned Counsel provided a brief background of the case. According to them, from the pleadings and interlocutory processes, the Learned Counsel submitted that by an Amended Plaint dated 5th January, 2017, the Plaintiff had pleaded that it was the registered proprietor of the leasehold interest comprised in Title No. Mombasa/Block XXVI/510. In year 2013 or thereabouts, the 1 st and 2nd Defendants attempted to unlawfully gain access to the Property, but that attempt was unsuccessful. The 1 st and 2nd Defendants then caused a suit – “Msa CMMICC No.1064 of 2013: Leeward Island Limited – Versus - - Texas Alarms Security Limited” to be filed against the Plaintiff's contracted security service provider. It was upon receipt of the court process from the security services firm that the Plaintiff discovered that the 1 st and 2nd Defendants were claiming to be directors and shareholders of Leeward Island Limited (without an “s”) and also claiming that it was was the owner of the Property. JUDGMENT: ELC NO. 160 OF 2013 Page 67 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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170. The Plaintiff pleaded that the Certificate of Incorporation for Leeward Island Limited was a forgery and so was a Certificate of Lease for the Property issued in the name of the same entity. The Plaintiff filed this suit and obtained interim injunctive orders on 6th November, 2014 to restrict further dealings with the Property, pending determination of this dispute. Despite the said orders being presented for registration, the 4th Defendant refused/failed/neglected to register them. 171. On or about 4th March, 2016, Leeward Island Limited purported to transfer its alleged leasehold interest in the Property to the 6th Defendant, which transfer was registered by the 4 th Defendant and on 21st April, 2016, the same 4th Defendant entered a restriction on the Property to restrict any further dealings thereon, pending the hearing and determination of this suit. The Plaintiff pleaded that the 1 st and 2nd Defendants, on their own and/ or in collusion with the 4 th, 5th and 6th Defendants, conspired to fraudulently deprive the Plaintiff of its interest and title in the Property and set out the particulars of fraud at Paragraphs 19(a) to (e) and 20(a) to (i) of the Amended Plaint. The Plaintiff therefore seeks a raft of declarations to the general effect that it was the lawful and genuine owner of the Property, the entity Leeward Island Limited was a sham entity and that no valid interest in the Property passed from itself to the 6th Defendant. 172. The Plaintiff further sought for a cancellation of the fraudulent Certificate of Lease and the forged Certificate of Incorporation JUDGMENT: ELC NO. 160 OF 2013 Page 68 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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issued in the names of the 6 th Defendant and Leeward Island Limited respectively; a permanent injunction restraining the Defendants from dealing adversely with the Property, costs of the suit and an order directed to the Directorate of Criminal Investigation (DCI) to investigate the circumstances under which the entity Leeward Island Limited was issued with the impugned Certificate of Incorporation and Certificate of Lease and to take such action as that office will deem appropriate. 173. On the injunction joinder and substitution. The Learned Counsels submitted that by an order made on 6 th November, 2014 and issued on 2nd December, 2014, this Honourable Court (Mukunya, J.) restrained the 1 st and 2nd Defendants, until further orders of the court, from alienating, selling, transferring, leasing or having any dealings with the Property and further directed that the registration of any dealings or transactions on the Property be inhibited until further orders of the court (Injunction Order). By an order made on 8 th December, 2016 and issued on 16th December, 2016, this Honourable Court (Omollo, J.) ordered that the 4 th, 5th and 6th Defendants be joined as parties to this suit. By an order made on 21st February, 2021 and issued on 10 th February, 2021, this Honourable Court (Yano, J.) ordered the substitution of the 1 st Defendant (who died on 26th December, 2019) with the legal representatives of his Estate. 174. On the filed and raised defences by the Defendants. the Learned Counsel submitted that the 1st and 2nd Defendants’ Statement of Defence and Counter - Claim dated 6 th February, JUDGMENT: ELC NO. 160 OF 2013 Page 69 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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2014, the 1st and 2nd Defendants pleaded that the suit was misconceived, claimed that the 1st and 2nd Defendants were directors of Leeward Island Limited (refer to Paragraph 4(a) of the Statement of Defence and Counter - Claim),claimed to be strangers to all averments in the Plaint and prayed for the same to be struck out. In the Counter - Claim, the 1 st and 2nd Defendants pleaded that their company purchased the Property and had invested heavily in the same. The 1 st and 2nd Defendants sought a declaration that their company was Leeward Island Limited (refer to prayer (a) in the Statement of Defence and Counter - Claim) and that it is entitled to exclusive and unimpeded possession of and use of the Property. They sought a permanent injunction against the Plaintiff from interfering with Leeward Island Limited’s use and possession of the Property (refer to prayer (b) in the Statement of Defence and Counter - Claim). 175. The 3rd to 5th Defendants’ Amended Defence was dated 16 th January, 2019. It denied all averments in the Amended Plaint and pleaded that the remedies sought by the Plaintiff were neither available nor merited. The 6 th Defendant’s Statement of Defence was dated 10th February, 2017. The 6th Defendant claimed that it purchased the property from the entity Leeward Island Limited (without an “S”). That as the time of the purchase, there was no injunction restraining Leeward Island Limited from selling and transferring the Property, that no injunction had been registered at the Land office, it did not know that the Property was in dispute, that the Property was JUDGMENT: ELC NO. 160 OF 2013 Page 70 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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not partly developed and that the 6 th Defendant was an innocent purchaser without notice who paid valuable consideration to the said for a consideration of a sum of Kenya Shillings Fourty Five Million (Kshs. 45,000,000/-). 176. The 6th Defendant claimed that the Plaintiff's cause of action was barred by limitation, the Plaintiff has no interest in the Property and denied the particulars of fraud set out in the Amended Plaint. 177. On 7th March, 2014, the Plaintiff filed a Defence to the 1 st and 2nd Defendant’s Statement of Claim and Counter - Claim denying that the Defendants purchased the Property, denied that the Defendants were ever issued with a Certificate of Lease for the Property, denied that the Defendants had ever invested in the Property, pleaded that the Counter - Claim disclosed no reasonable cause of action and that the same had been filed contrary to the mandatory provisions of Orders 4 and 7 of the Civil Procedure Rules, 2010. The Plaintiff was deemed to have joined issue on the 3 rd and 6th Defendants’ respective statements of defence, pursuant to the provision of Order 2 Rule 12 of the Civil Procedure Rules, 2010. 178. On the adducing of both oral and documentary evidence. The Learned Counsels submitted that on 17 th January, 2019, MAYUR MALDE took the stand as PW - 1. He had sworn an affidavit on 31st March, 2015 which was admitted onto the court record by an order (Omollo, J.) made on 15 th April, 2015 and issued on 23rd April, 2015. He produced it as his evidence in chief. The affidavit and annexures thereto were marked as JUDGMENT: ELC NO. 160 OF 2013 Page 71 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Plaintiff Exhibit Number 1 (see pages 445 to 481 of the Plaintiff's Consolidated Bundle of Documents dated 17 th April, 2018 (the Plaintiff's Bundle). In summary, he stated that he was a director of ALCOP LIMITED, producing its Certificate of Incorporation and CR12 Form as part of Plaintiff Exhibit Number 1. ALCOP LIMITED was the first allottee of the Property (see pages 452 to 479 of Plaintiff Exbibit Number 1 for ALCOP LIMITED'S complete record of ownership). 179. PW - 1 knew Leeward Islands Limited (with an “S”)through its former director, the late Mohamedjaffer Kassamali. Although he initially indicated that he knew the other director, Ali Kassam Nafsi, he later clarified that he never recalled ever meeting him as it had been many years back. He was firm that he never met or dealt with the 1 st or 2nd Defendants. In a crossexamination process that could only be described as bizarre, the 1st and 2nd Defendants' advocates tried to impugn the validity of Alcop Limited’s title, yet their own evidence (copy of the Green Card in respect of the Property) was to the effect that they also acquired the Property from the first registered owner, Alcop Limited, but under the name Leeward Island Limited (without an “S”)(see page 39 of the 1 st and 2nd Defendant's List & Bundle of Documents dated 20 th February, 2019). 180. In re - examination, PW - 1 was categorical that Alcop Limited was the first registered owner of the Property, which leasehold interest it sold to Leeward Islands Limited (with an “S”). The witness was referred to correspondence from the Ministry of JUDGMENT: ELC NO. 160 OF 2013 Page 72 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Lands during the extension of user process which was correspondence addressed to Alcop Limited. PW - 2 was one Angelica Mecha from the Law Society of Kenya (LSK). She testified on 17th January, 2019. She stated that she resided in Nairobi and worked at the LSK in the compliance and ethics department which dealt with the issue relating to status of advocates. She produced: a. a printout from the LSK website in relation to herself, P.105/12895/16 as Plaintiff Exhibit Number 2. b. letters from the LSK dated 6th March, 2014 and 25th March, 2014 (see pages 315 and 319 of the Plaintiff's Bundle) in relation to Andrew Omondi & Company Advocates as Plaintiff Exhibit Number 3(a) and (b), respectively. c. a printout from the LSK website (see page 310 of the Plaintiff's Bundle) in relation to Ouko Austine Andrew Omondi, P.105/6772/08 as Plaintiff Exhibit Number 3(c); and d. the letter dated 6th March, 2014 from the Plaintiff’s Advocates to LSK (see page 312 of the Plaintiff's Bundle) as Plaintiff Exhibit Numbers 3(d). 181. In cross examination, she was steadfast that there was no advocate who had declared to the LSK as practicing under the name and style of Andrew Omondi & Company Advocates and that when one searches “Andrew Omondi” on the LSK website, the only advocate by that name was Ouko Austine Andrew Omondi who became an advocate in year 2008. JUDGMENT: ELC NO. 160 OF 2013 Page 73 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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182. On 1st October, 2019, one Rizwan Mohamed Jaffer Kassamali took the stood as PW - 3. He had filed a witness statement dated 18th April, 2018 which was filed in court on 15 th May, 2018. He adopted it as his evidence in chief. He also produced the bundle of exhibits at pages 1 to 311, pages 313 to 314, pages 316 to 318 and pages 320 to 444 of Plaintiff Exhibit Number 4. 183. A summary of his testimony was that he was an officer of the Plaintiff in his capacity as the Chief Investment Officer and also a Financial Advisor to Malmas Limited which owned 499 shares in the Plaintiff. He had served as a director of the Plaintiff between the years 1999 and 2002. Succinctly tracing the history of the Property, he stated that his late father Mohamed Jaffer Kassamali and his friend one Yusufali EsmaiI Kassam, purchased the shares in the Plaintiff from Beatrice Nduku Muli and Eustace Ephantus Thegecha on 1 st September, 1995. He referred to the relevant secretarial documents at pages 28 to 37 of Plaintiff Exhibit Number 4. 184. In the year 1996, the Plaintiff now owned by his late father and his friend, purchased the Property from Alcop Limited for a consideration of a sum of Kenya Shillings Three Million (Kshs.3,000,000/-) whereafter the leasehold interest therein was transferred to the Plaintiff via a transfer of lease dated 16th May, 1996, which was registered on 2nd August, 1996, and a Certificate of Lease was issued. He referred the court to pages 140 to 145 of Plaintiff Exhibit Number 4 and availed for inspection, the original Certificate of Lease issued on 2 nd JUDGMENT: ELC NO. 160 OF 2013 Page 74 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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August, 1996. He stated that the Plaintiff intended to construct a block of apartments on the Property, it caused drawings to be prepared, a building permit was granted by the then Municipal Council of Mombasa, several construction firms bid for the contract, Mistry Jadva Parbat was selected and construction commenced. In this regard, he referred to pages 146 to 154 of Plaintiff Exhibit Number 4 for all related correspondence, drawings and permits. 185. The Learned Counsel informed Court that the project stalled on 10th November, 1996, due to financial constraints and had to be terminated after construction of the foundation up to ground level. The contractor was paid a sum of Kenya Shillings Nine Million (Kshs. 9,000,000/-) being work done up to that point and PW - 3 referred to correspondence as well as copies of cheques issued by the Plaintiff to the contactor at pages 155 to 158 of Plaintiff Exhibit Numbers 4. Photographs of still visible protruding foundation columns appear at page 320 of Plaintiff Exhibit Number 4. He stated that the Plaintiff had been dutifully paying the land rent to the Government of Kenya and land rates for the Property to the Municipal Council of Mombasa since it acquired the same and by virtue of the construction therein, the Plaintiff had been in open and uninterrupted possession until the events that led to the filing of the suit. He referred to the rent receipts at pages 159 to 188 of Plaintiff Exhibit Number 4 and the rates receipts at pages 189 to 222 of Plaintiff Exhibit Number 4. JUDGMENT: ELC NO. 160 OF 2013 Page 75 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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186. The Plaintiff had placed security guards on the Property after receiving strange enquiries about the sale price of the Property yet the Plaintiff had not put up the same for sale. The letter to the security company Texas Alarms (K) Limited and the invoice for security services is at pages 223 to 225 of Plaintiff Exhibit Number 4. PW - 3 later on established through a suit filed by Leeward Island Limited (without an “S”) against the security company, that the 1st and 2nd Defendants were relying on alleged parallel ownership and incorporation documents. These documents were produced as part of Plaintiff Exhibit Number 4 from pages 228 to 240. He identified multiple irregularities which suggested forgery, including: a) the Law firm of Messrs. Wachira Nderitu Advocates who purportedly drew the Memorandum and Articles of Association of Leeward Island Limited (without an “S”) never and is not in existence. The only advocate going by the combination of names NDERITU and WACHIRA is Edward Nderitu Wachira who wrote to the Plaintiff's advocates refuting any involvement in the incorporation of the said entity in year 1995 or at all and denying any knowledge of the 1st and 2nd Defendants. In this regard, he referred to pages 309, 311 and 318 of Plaintiff Exhibit Number 4; b) the Law Society of Kenya had no record of any law firm known as Andrew Omondi & Company Advocates which purportedly witnessed the 1st and 2nd Defendant’s signatures on 16th May, 1995 on the Memorandum and Articles of Association of Leeward Island (without an “S”). PW - 2’s testimony is instructive in this regard; JUDGMENT: ELC NO. 160 OF 2013 Page 76 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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c) the Plaintiff's advocates successfully reserved the name Andrew Omondi and Company Advocates with the Registrar of Business names on 11th March, 2014 or thereabouts which according to PW - 3, proved that it had previously not existed. In this regard, he referred to pages 316 and 317 of Plaintiff Exhibit Number 4; d) PW - 3 further testified regarding the certificate of incorporation produced by the 1st and 2nd Defendants’ for Leeward Island Limited (notably without the letter “S”). He explained that although the certificate bore the same date of incorporation as the Plaintiff's certificate (see pages 1 and 234 of Plaintiff Exhibit Number 4), a comparison of the two documents reveals a critical discrepancy. The Government Press serial number on the Plaintiff's genuine certificate at page 1 indicated that the government paper on which it was printed indicated the year of printing as 1995. In contrast, the serial number on the 1 st and 2nd Defendants’ Certificate at page 234 showed that the paper used for their document was printed in year 2003, which could not had been used for a 1995 incorporation. e) PW - 3 then referred to the Plaintiff's original Certificate of Lease issued on 2nd August, 1996 which bears the address P.O Box 43266 Mombasa. Both the impugned certificate produced by the 1st and 2nd Defendants and the genuine certificate issued to the Plaintiff bear the same date of issue and identical postal address, save that the 1 st and 2nd Defendants’ certificate was in the name of Leeward Island Limited (without an “S”). In this regard, he referred to pages 235 and 142 of Plaintiff Exhibit Number 4 where the authentic and disputed certificates are found; f) PW - 3 testified that the box renters’ authority card issued by the Postal Corporation of Kenya on 15 th September, JUDGMENT: ELC NO. 160 OF 2013 Page 77 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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1995 to the Plaintiff (Leeward Islands Limited) reflected the address P.O. Box 43266 Mombasa (see page 256 of Plaintiff Exhibit Number 4) and bore the signature of his late father. He pointed the Court to the same signature appearing on the transfer of lease at page 141 of Plaintiff Exhibit Number 4. Notably, there was a corresponding receipt issued by the Postal corporation of Kenya on 15 th September, 1995 - the same date as the authority cardwhich confirms the Plaintiff (Leeward Islands Limited) as the registered renter and showed the amount paid for issuance of keys. g) PW - 3 also noted that none of the signatures purporting to belong to the 1st and 2nd Defendants on the disputed documents match each other. He pointed the court to the Memorandum of Association of Leeward Island Limited (without an "S") at page 232 of Plaintiff Exhibit Number 4 and compared the signatures therein with (i) the 2 nd Defendant’s signature in his Replying Affidavit sworn on 24th February, 2014 (on the court record) and (ii) that of the 1st Defendant at page 229 of Plaintiff Exhibit 4 (being an affidavit signed by the 1st Defendant). PW - 3 pointed out that the signatures differ materially from one another. h) He detailed the efforts made by the Plaintiff’s advocates towards obtaining an official search from the office of the 5th Defendant, without any search being issued. The letters written in that regard were at pages 273 to 275. 279 and 304 of Plaintiff Exhibit Number 4. i) The 5th Defendant did, however, purportedly issue an official search on 7th February, 2014 (see page 303 of Plaintiff Exhibit No. 4) indicating that the 1 st and 2nd Defendants were the directors of the Plaintiff. JUDGMENT: ELC NO. 160 OF 2013 Page 78 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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j) He recalled that on 18th May, 2016, the 5th Defendant’s representative attended court in answer to a witness summons when this matter came up for hearing and he had brought with him the company secretarial records of the Plaintiff which the Court (Omollo J.) ordered him to make copies of and supply said copies to the parties’ advocates. He referred to the said court order at pages 327 to 328 of Plaintiff Exhibit Number 4 and to the copies that were subsequently supplied at pages 329 to 407 of Plaintiff Exhibit Number 4. k) The Plaintiff also instructed its advocates to report the matter to the Directorate of Criminal Investigations which was done through a letter dated 16 th May, 2017 (see pages 408 to 410 of Plaintiff Exhibit No. 4) and in a response thereto, the 5th Defendant indicated that there is only one company in their records known as Leeward Islands Limited (with an “S”)(see letter dated 3rd August, 2017 at page 411 of Plaintiff Exhibit Number 4). l) PW - 3’s testimony remained steadfast during cross examination by Advocates for the Defendants. Thereafter, the Plaintiff closed its case. 187. DW - -1, Rishad Hamid Ahmed, testified on 16 th November, 2022, as a director and shareholder of the 6 th Defendant. He adopted his witness statement dated 16 th January, 2016 and produced the 6th Defendant’s Exhibits numbers 1 to 19 (hereafter 6th Defendant Exhibit Numbers 1 to 19) as contained in the 6th Defendant’s List of Documents dated 16 th January, 2019. 188. DW - 1 added to his witness statement that in November, of 2015 some people came to him. Specifically, a broker whom JUDGMENT: ELC NO. 160 OF 2013 Page 79 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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he identified by a single name, “David”. These unidentified persons informed him that there was a plot in the Kizingo area of Mombasa. He informed the Court that he did his due diligence. He stated that he applied for an official search. He then testified that a sale agreement was drawn dated 27 th February, 2016 (6th Defendant Exhibit Numbers 3). DW - 1 referred the Court to the official search dated 6 th November, 2015 indicating the owner of the Property as Leeward Island Limited. He stated that he executed a transfer which was signed by the 1st and 2nd Defendants who were the purported directors of Leeward Island Limited (without an “S”). Pursuant to a transfer of lease dated 27 th February, 2016 signed between the 1st, 2nd and 6th Defendants, the Property was transferred in favour of the latter. 189. DW - 1 said that he has been paying the land rates for the Property and that he took possession and placed security on the Property. To date, he was in possession but cannot do anything. He never knew the company known as Leeward Islands Limited- the Plaintiff herein, and that he only came to know of the Plaintiff from the pleadings alleging fraud. DW - 1 reiterated that the 6th Defendant purchased the Property after it was assured from the search that it belongs to Leeward Island Limited (without an “S”). He claimed that the 6 th Defendant paid a sum of Kenya Shillings One Million Eight Hundred Thousand (Kshs.1,800,000/-) as stamp duty for the transfer of the Property, in its favour. JUDGMENT: ELC NO. 160 OF 2013 Page 80 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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190. In cross-examination by counsels for the Plaintiff, DW1 made several key admissions: a) The alleged due diligence was not conducted by an Advocate but by Richland Properties Limited (hereafter Richland), a land buying company. b) Richland conducted the search and drafted the sale agreement dated 27th February, 2016. DW - 1 stated that he never uses advocates for sale transactions on the basis that he has done very many land transactions. c) The stamp duty pay in slip (6th Defendant Exhibit Numbers 5) bore the postal address P.O Box 16288 Nairobi (as the address for Leeward Island Limited), which differed from the one in the impugned certificate of lease by Leeward Island Limited (P.O Box 43266 Mombasa) (refer to page 17 of the 6th Defendant Exhibit Numbers 9). d) The KRA PIN No. 002265600K appearing on the KRA pay in slip and used for the transferor (Leeward Island Limited) belonged to the 2nd Defendant, not Leeward Islands Limited. e) He personally drew the transfer instrument and that he did not use advocates. He only used advocates to witness execution of documents. Directed again to page 13 of his exhibits, he confirmed that the KRA PIN number used for United Care Limited in the KRA pay in slip (6 th Defendant Exhibit Number 5) belonged to him personally, not the 6 th Defendant. 191. According to the Learned Counsel, DW - 1 conceded that the Property was not vacant as he had claimed; it had contained an excavation indicative of prior development. Despite this, he JUDGMENT: ELC NO. 160 OF 2013 Page 81 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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never sought proof of building approvals or prior ownership history. On 24th September, 2024, Shabbir Mohamed Haji took the stand as DW - 2. He filed a witness statement dated 14 th February, 2023. DW - 2 testified that, together with Peter Kioko (1st Defendant), as Co - Directors of Leeward Island Limited (without an “s”),they were the owners of the Property having purchased the same sometime in the year 1995 from one Mr. Waganagwa, P.C, Coast. He did not produce a transfer instrument to support such assertion. He testified that they (directors) were issued with a Certificate of Lease over the Property in the year 1996. The company Leeward Island Limited was incorporated in the year 1995. 192. From 1996, DW - 2 together with the 1 st Defendant tried to construct houses on the Property but were unable to due to financial constraints. They sold the Property for a such a sum of Kenya Shillings Fourty Five Million (Kshs. 45,000,000.00/=) to the 6th Defendant in the year 2016. During cross examination, DW - 2 was referred to Paragraph 3 of his witness statement which stated that the Property was allotted by the Government of Kenya to Leeward Island Limited (without an “S”). He admitted that no Letter of Allotment appears in the documents he produced. When asked about Alcop Limited, the original allottee of the Property, DW – 2 asserted that he had never heard of such a company. This denial was inconsistent with the 1st and 2nd Defendants’ own documentary evidence, specifically the green card produced as Exhibit 8 at page 39 of their Bundle of Documents dated 20th February, 2019 - which JUDGMENT: ELC NO. 160 OF 2013 Page 82 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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showed that Leeward Island Limited (without an “S”) allegedly acquired the Property from the first allottee, Alcop Limited. 193. DW - 2 was referred to the witness statement dated 3 rd August, 2015 by Hashim Got Sat, Land Registrar. He could not explain the Land Registrar's statement alleging fraudulent acquisition of title over the Property by the 1 st and 2nd Defendants. He confirmed that the Land Registrar claimed that Alcop Limited was the first registered owner of the Property and doubled down on his earlier stance that he did not know the company. DW - 2 stated that he, together with the 1st Defendant, were paid a sum of Kenya Shillings Fourty Five Million (Kshs. 45,000,000/=) as purchase price and split the amount halfway between the two of them. He acknowledged receiving the purchase price personally, not on behalf of Leeward Island Limited. That there was no need of a company resolution as they were partners in the company. 194. The Learned Counsel averred that he could not recall the company’s postal address, incorporation advocates or any records supporting incorporation/ its existence. He could not recall using Postal Address P.O. Box 43266 Mombasa though the same was contained in two of his affidavits on record. He confirmed that the transfer instrument from Leeward Island Limited (without an “S”)used the Postal Address P.O. Box 16288, Nairobi as its address. He could not recall whether permits were obtained to allow for construction on the Property or if land rates were ever paid. JUDGMENT: ELC NO. 160 OF 2013 Page 83 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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195. He admitted that he was aware of the year 2014 Injunction Order (at page 321 of Plaintiff Exhibit Number 4) that prohibited dealings with the Property and that the Injunction Order was in force when the transfer of the Property to the 6 th Defendant occurred in the year 2016. He was aware of the Injunction Order as of the date of the transfer of the Property as reflected in his Statement of Defence dated 6 th February, 2014 and filed on 24th February 2014 (refer to paragraph 11.1 of the Statement of Defence). DW - 3 was Sheila Soita, Land Registrar, Mombasa Registry. She confirmed that the Property was first allotted to Alcop Limited on 1st December, 1994 for a term of 99 years. That no transfer instrument exists in favour of Leeward Island Limited (without an “S”) and that no land records support the alleged in the year 995 purchase by Leeward Island Limited from Mr. Waganagwa. 196. On 28th March, 2025, Mr. Josias Mugendi Njagi took the stand, on behalf of the 5th Defendant, as DW - 6. He stated that there was only one company by the name Leeward Islands Limited (with an “S”) registration no. C65416 within the records held at the Business Bureau. There was a certified copy of the Certificate of Incorporation of Leeward Islands Limited. The 5 th Defendant does not have any records for Leeward Island Limited (without an “S”)and that the said company is not registered with the 5th Defendant (now referred to as the Business Registration Service (BRS)). In cross examination, DW - 4 stated that from their records, the 1st and 2nd Defendants were not the shareholders of the Plaintiff company and that JUDGMENT: ELC NO. 160 OF 2013 Page 84 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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the CR12 Form produced by the 1st and 2nd Defendants (see page 38 of the 1st and 2nd Defendants List and Bundle of Documents dated 20th February, 2019) did not originate from the Registrar of Companies (now the BRS). 197. Lastly, Hashim Got Sat took the stand as DW - 5. He stated that he signed a witness statement (undated) that was filed on 31st August, 2015. He admitted that he was the land registrar who (i) registered the lease in favour of Alcop Limited, the first allottee (ii) registered the lease in favour of Leeward Islands Limited, the Plaintiff herein (iv) endorsed the transfer by Leeward Island Limited (without an “S” and (v) registered the lease in favour of United care Limited, the 6 th Defendant herein. The transfer in favour of the 6 th Defendant, United Care Limited, was done in error. He confirmed that the Property was originally allotted to Alcop Limited and a Lease issued to that effect. That Alcop Limited applied for extension of user pursuant to which the company surrendered the original lease and thereafter, a new certificate of lease was issued on 29 th May, 1996 and new white card opened. 198. On 2nd August 1996, a transfer of the Lease was presented from Alcop Limited to Leeward Islands Limited (with an “S”). DW - 5 confirmed that he registered the Lease. He also admitted that he was also the one who registered the lease from Leeward Island Limited (without an “S”) to the 6 th Defendant on 27th February, 2016.He admitted that the signature in the Certificate of lease issued in favour of Leeward Island Limited (without an “S”) was his (refer to page JUDGMENT: ELC NO. 160 OF 2013 Page 85 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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17 of the 6th Defendant Exhibit Number 9). He stated that while signing the transfer, he did not have the Correspondence File. Had he known of the matter, he would not have registered the transfer to the 6th Defendant. 199. DW - 5 confirmed that at the time of registration of the latter lease (in favour of the 6 th Defendant), the Injunction Order of 6th November, 2014 (at page 321 of Plaintiff Exhibit Number 4) had been issued that restrained further dealings with the Property. He admitted that his witness statement was received at the Attorney General's office on 14 th September, 2015 and filed on 15th September, 2015. His statement preceded the 2016 registration in favour of the 6th Defendant. 200. The Learned Counsel further submitted that in his witness statement, DW - 5 stated that a Certificate of Lease over the Property has fraudulently been obtained by the 1 st and 2nd Defendants and the original white cards edition (i) and (ii) tampered with in order to perpetuate the fraud. On examination, he stated that he was not confirming fraud. 201. On the directions. The Learned Counsel asserted that following trial, parties were directed to file their respective written submissions either in support of or to defend the suit. The matter was scheduled for mention on 3 rd March, 2026, to confirm compliance with court directions. 202. On the issues for considerations. The Learned Counsel averred that the following issues fall for determination as arising out of the pleadings exchanged and the evidence adduced:JUDGMENT: ELC NO. 160 OF 2013 Page 86 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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a) Has the Plaintiff proved its claims as set out in the Amended Plaint dated 5th January, 2017 to the required standard? b) Does the 6th Defendant qualify as a bona fide purchaser for value and without notice? c) What orders should issue? 203. On whether the Plaintiff had proved its claims as set out in the Amended Plaint dated 5th January, 2017 to the required standard, on the root of the title. The Learned Counsel submitted that the Plaintiff, Leeward Islands Limited (with an “S”), pleaded and proved, through documentary evidence and corroborated oral testimony-that it was the lawful registered owner of the Property. The Plaintiff demonstrated that the Property was first allotted to Alcop Limited by the Government of Kenya. Alcop Limited’s complete ownership records appear at pages 111 to 139 of Plaintiff Exhibit Number 4. They submitted that at no point during trial did any of the Defendants impeach or contradict these foundational documents. 204. The Plaintiff traced and proved the chain of transfer from Alcop Limited, as original allottee, to Leeward Islands Limited (with an “S”)in 1996. This was established through:i. PW - 1, a director of Alcop Limited, who testified on the original allotment, the surrender and re-issue of a lease, and the sale and transfer of the Property to the Plaintiff. ii. PW - 3, the Chief Investment Officer, Leeward Islands Limited, who testified on the execution and registration of JUDGMENT: ELC NO. 160 OF 2013 Page 87 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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the year 1996 transfer in favour of the Plaintiff, issuance of a lease in favour of the Plaintiff as well as steps taken to develop the Property to its current state. The Plaintiff's complete ownership records appear at pages 140 to 225 of Plaintiff Exhibit No. 4. iii. DW - 3 (Land Registrar, Mombasa) and DW - 5 (former Land Registrar, Kwale), both of whom produced official land records confirming (i) Alcop Limited as the first allottee and registered owner of the Property (ii) a surrender of Lease and issuance of a fresh lease in favour of Alcop Limited and (iii) transfer of the Property by Alcop Limited, as transferor, in favour of the Plaintiff. Both DW 3 and DW - 5 confirmed that the land records did not contain a transfer instrument in favour of Leeward Island Limited (without an “S”). 205. They submitted that the Plaintiff's root of title was both fully documented and independently corroborated by two Land Registrars who had full access to land records at the Registry. The chain of title is therefore unbroken, authentic, and legally sound. They further submitted that his satisfies the highest evidentiary threshold required where a root of title was challenged. The Court of Appeal in the case of:- “Maina – Versus - Maina (Civil Appeal 239 of 2009) [2013] KECA 94 (KLR)” underscored that where a registered proprietor's root of title is challenged:“It is not sufficient to dangle the instrument 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 the process legal, formal and free JUDGMENT: ELC NO. 160 OF 2013 Page 88 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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from encumbrances including any and all interests which may not be noted on the register.” 206. They submitted that the Plaintiff squarely meets the Maina test. It corroborated registry entries through oral testimonies of several witnesses, including two Land Registrars, that its title originated form a valid Government allocation and followed a complete, lawful and unbroken chain of ownership. it demonstrated not only the legality of its acquisition, but subsequent possession and development, thereby establishing clean root of title in the manner required in law. 207. This seamless documentary and physical trail aligns with the principle in the case of:- “Dina Management Limited – Versus County Government of Mombasa & 5 Others (Petition 8(E010) of 2021) [2023] KESC 30 (KLR)” where the Supreme Court held that: “a title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such title cannot be held as indefeasible.” 208. Accordingly, they submitted that the Plaintiff did, to the standard required, prove the entire legal process through which it was acquired title to the Property. In contrast, they submitted that the 1st and 2nd Defendants engaged in deliberate forgery of corporate and conveyancing instruments in order to appropriate the Plaintiff’s Property. The two Defendants forged a Certificate of Incorporation (in favour of Leeward Island Limited) and a certificate of lease, both of which copied the dates and content from the Plaintiff's genuine documents. Their objective was JUDGMENT: ELC NO. 160 OF 2013 Page 89 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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clear; to impersonate the Plaintiff and unlawfully obtain the Property. 209. Fraud of this nature falls squarely within the principle that no rights can be founded on forgery, as affirmed by the Court of Appeal in the case of:- “Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 others [2015] KECA 816 (KLR) (refer to page 8, Par. 21 of the Judgement)” . 210. On the proof of outright fraud and the forgeries relating to incorporation documents. The Learned Counsel submitted that the Law firm of Messrs. Wachira Nderitu Advocates who purportedly drew the Memorandum and Articles of Association of Leeward Island Limited (without an “ S”) never existed. The only advocate going by the combination of names NDERITU and WACHIRA was Edward Nderitu Wachira who wrote to the Plaintiff's advocates refuting any involvement in the incorporation of the said entity in 1995 or at all and denying any knowledge of the 1st and 2nd Defendants.(refer to correspondence at pages 309, 311 and 318 of Plaintiff Exhibit Number 4). The evidence demonstrates that the corporate documents (Memorandum and Articles of Association) were not only irregular; they were fabricated, thereby negating any legal existence of Leeward Island Limited. 211. In addition, they argued that the LSK had no record (past or present) of any law firm known as Andrew Omondi and Company Advocates which purportedly witnessed the 1 st and 2nd Defendant’s signatures on 16th May, 1995 on the Memorandum and Articles of Association of Leeward Island JUDGMENT: ELC NO. 160 OF 2013 Page 90 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Limited (without an “S”). PW - 2’s testimony was instructive in this regard. This evidence directly establishes that the attestation of the Memorandum and Articles of Association for Leeward Island Limited (without an “S”) was fraudulent thus rendering the same invalid. To prove that there was no law firm registered and operating using the name Andrew Omondi & Company Advocates, the Plaintiff's counsel applied for a business name search with the Registrar of Business Names who confirmed that the name Andrew Omondi and Company Advocates was available for registration of a law firm. This would not have been possible if the said law firm existed. The application and result appear at pages 316 to 317 of Plaintiff Exhibit Number 4. 212. Then came DW - 4 – Mr. Josias Mugendi Njagi, a Senior Clerical Officer working for Business Registration Service, formerly the Registrar of Companies. In his testimony, he was categorical that the entity Leeward Island Limited (without an “S”) never existed in the government’s records. Company no. C65416 was the Plaintiff herein. He stated that the 1 st and 2nd Defendants had never been directors of the Plaintiff thus corroborating PW - 1 (director, Alcop Limited) and PW - 3’s (Chief investment Officer, Leeward Islands Limited) evidence concerning shareholding of the Plaintiff. They submitted that the above conclusively shows that Leeward Island Limited’s corporate foundation was fictitious and manufactured. When directed to a CR12 Form purportedly issued by the 5 th Defendant, indicating that company no. C65416 was Leeward JUDGMENT: ELC NO. 160 OF 2013 Page 91 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Island Limited (without an “S”) and the directors and shareholders are the 1st and 2nd Defendants (see page 38 of the 1st and 2nd Defendants List and Bundle of Documents dated 20th February, 2019), DW - 4 denounced the CR12 Form and stated that the same was not supported by the records held at the Company Registry. 213. On the proof of a corrupt scheme. The Learned Counsel submitted that the question that followed was the existence of two (2) sets of a Certificate of Lease, Certificate of Incorporation, Memorandum and Articles of Association and CR12s; one for the Plaintiff and the other for a nearly identically-named entity, all an extraordinary coincidence? They submitted that such duplication was far too deliberate, systematic and precise to be accidental. They submitted that the set of documents held by the 1st and 2nd Defendant were created as part of an orchestrated corrupt scheme intended to deprive the Plaintiff of its Property. The use of an almost identical corporate name, altered merely by deleting a single character, was a calculated attempt to pass off and impersonate the Plaintiff. This conduct was consistent with a deliberate design to facilitate fraudulent activities. 214. In addition to the above, a critical question arises regarding the Injunction Order that was never registered. DW - 5 expressly acknowledged that the Injunction Order was presented to the Lands Registry for registration, and this is corroborated by the stamped registry copies of the relevant applications appearing at pages 325 to 326 of Plaintiff Exhibit JUDGMENT: ELC NO. 160 OF 2013 Page 92 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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No. 4. These documents confirm the Registry's receipt of the Injunction Order. They submitted that the Plaintiff complied with its obligation to secure the registration of the Injunction Order and the Land Registry received and acknowledged receipt of the said Order. DW - 5 admitted that there existed a series of correspondence between the Plaintiff’s advocates and the Lands Office concerning the registration of this Injunction Order. These letters were retained in the official Correspondence File forming part of the Land Records, indicating that the matter was active, known, and continually flagged within the Registrar's office. The existence of these exchanges makes it unmistakably clear that DW - 5 was not only notified of the Injunction Order but repeatedly reminded of the outstanding obligation to give effect to it. 215. Against that backdrop, the failure to register the Injunction Order cannot be explained as oversight. The record demonstrates both receipt and acknowledgment, yet inexplicably no action was taken. The omission therefore raises a strong inference of deliberate inaction, rather than administrative error, particularly given the significance of the Order and the ongoing dispute over the Property. 216. The inconsistency in DW - 5's conduct becomes even more pronounced when viewed alongside the events of the registration of transfer in favour of the 6 th Defendant. On the very day the transfer was lodged, DW - 5 wrote to the 6 th Defendant indicating that he intended to place a restriction over the Property because there was an ongoing court case. JUDGMENT: ELC NO. 160 OF 2013 Page 93 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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This admission was important: DW – 5 recognised an active dispute serious enough to warrant protective measures. Under normal and lawful practice, such recognition would trigger immediate action to inhibit dealings with the Property. Despite this stated intention, DW - 5 proceeded to register the transfer from the fictitious Leeward Island Limited to the 6 th Defendant on 27th February, 2016. The contradiction was stark: he acknowledged a pending dispute, signaled the need for protective action, then facilitated the very dealing that the pending case should have prevented. 217. The implausibility of DW - 5’s explanation becomes even more glaring when placed in its wider context. Only months earlier, DW - 5 had been in ongoing correspondence with the Plaintiff's advocates regarding his alleged refusal to register the Injunction Order. It was, therefore, inconceivable that he “forgot” about an Injunction Order that had been repeatedly brought to his attention both formally and in writing. The inconsistency deepens: in August, 2015 or thereabout, DW - 5 executed a witness statement (filed on 31st August, 2015) in which he expressly stated that the 1 st and 2nd Defendants had engaged in forgery in obtaining title to the Property. Having sworn to this fact less than six months before the impugned transfer, it strains credibility to suggest that he could somehow overlook the fraudulent nature of the documents presented for registration. 218. The Learned Counsel averred that taken together, these facts establish a disturbing and compelling pattern: DW - 5 knew JUDGMENT: ELC NO. 160 OF 2013 Page 94 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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about the Injunction Order; he knew about the dispute; he knew about the forgery allegations-indeed, he attested to them-yet he proceeded to register the transfer regardless. This pattern of conduct is irreconcilable with innocent oversight and instead aligns squarely with participation in, or at minimum willful facilitation of, the broader fraudulent scheme directed at dispossessing the Plaintiff of its lawfully acquired Property. 219. They argued that the only way in which the Plaintiff's interest could have been divested is if the Plaintiff itself had executed the transfer through the Plaintiff's true directors, in favour of the 6th Defendant. In light of the above, we reiterate that the Plaintiff's interest in the Property was not divested and the 6 th Defendant acquired no interest at all. 220. As to whether there was complicity by or collision with the Registrar of Companies (6th Defendant), they submitted as follows: a) In year 2013, the Plaintiff attempted to obtain an official search for file number C. 65416 with no success. Despite lodging an application on 1st July, 2013 (received on 8th July, 2013), no response was issued (refer to pages 273 to 275 of the Plaintiff Exhibit No. 4 for copies of the application letter and official search payment receipt). b) Following the lack of response, the Plaintiff's issued a written reminder on 12th July, 2013, by way of post, to the 6th Defendant requesting the same search (refer to page 279 of Plaintiff Exhibit Number 4). The silence persisted despite the routine nature of the request. JUDGMENT: ELC NO. 160 OF 2013 Page 95 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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c) The Plaintiff’s company secretary similarly reported unsuccessful attempts to obtain an official search since 29 th May, 2013 despite lodging an application and making payment (see correspondence and receipt for payment of official search at pages 295, 297 and 298 of Plaintiff Exhibit No. 4). d) A further follow-up dated 3rd March, 2014 was received by the6th Defendant on 4th March, 2014 (refer to page 304 of the Plaintiff Exhibit No. 4). In the said letter, the Plaintiff questioned how other parties had managed to obtain a CR12 Form relating to the same Company No.C65416, yet the Plaintiff's longstanding application had not received a response. 221. The Learned Counsel submitted that whereas the 5 th Defendant denies issuing the purported CR12 dated 27 th January, 2017 to Leeward Island Limited (which allegedly confirms that company's registration and lists the 1 st and 2nd Defendants as its shareholders) (see page 38of the 1 st and 2nd Defendants List & Bundle of Documents dated 20 th February, 2019) as well the CR12 Form dated 7th February, 2014 (which purports to confirm the registration of the Plaintiff and lists the 1st and 2nd Defendants as shareholders its shareholders) (see page 303 of Plaintiff Exhibit No. 4), it remained highly suspicious that despite repeated applications and follow-ups, the Plaintiff was unable to obtain a single response concerning Company No.C65416. This unexplained lack of responsecontrasted with the existence of CR12 documents allegedly issued to third parties on the very same subject mattercreates a troubling and irreconcilable inconsistency. Taken JUDGMENT: ELC NO. 160 OF 2013 Page 96 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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together, these circumstances strongly point to collision among the 1st, 2nd and 5th Defendants aimed at preventing the Plaintiff from accessing the company records to verify the authenticity of the 1st and 2nd Defendant’s assertion that Leeward Island Limited (without an “S”) was a validly incorporated entity. Such obstruction was, in our submission, calculated to enable the 1st and 2nd Defendants to lay a claim of ownership over the Property and ultimately facilitate the fraudulent transfer of the Property in favour of the 6 th Defendant. 222. The Court of Appeal in “Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 others (Supra)” , dealing with similar circumstances, had this to say on fraud: “Fraud in this case was proved. 51. The registration of the forged documents was subsequently used by the fraudsters for the purpose intended by them, that is, to have access to the land registered in the name of West End. Barely one year later in 2005, the fraudsters entered into an agreement of sale with Arthi. The trial court found upon reviewing the evidence on record, that fraud was committed in the land transaction too and upon re-examination of that evidence, we respectfully agree...52. According to Black's Law Dictionary, “Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional...Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings.” 223. Applying the above principles to the present case, they submitted that the Plaintiff expressly and comprehensively pleaded the allegations of fraud in its Amended Plaint JUDGMENT: ELC NO. 160 OF 2013 Page 97 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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(paragraphs 19(a-e) and 20(a-j)). Those allegations are supported not only by detailed factual averments but also by documentary evidence. The Plaintiff had further demonstrated the intention behind the Defendants' actions-namely, a concerted scheme to deprive the Plaintiff of the Property. This intention would likely have been achieved had the Plaintiff not remained vigilant and promptly detected the improper dealings. In the circumstances, the Counsels submitted that the Plaintiff had proved the allegations of fraud as against the 1st, 2nd and 5th Defendants. 224. On whether the 6th Defendant qualified as a bona fide purchaser for value and without notice. The Learned Counsel averred that the 6th Defendant’s director testified under oath that the company never engaged advocates in property transactions. This was not a minor procedural omission but a deliberate choice to proceed without professional legal guidance in a transaction worth a sum of Kenya Shillings Fourty Five Million (Kshs. 45,000,000/-). That admission alone is fatal to its plea of bona fide purchase: it confirmed that the 6th Defendant voluntarily dispensed with the very safeguards that protect purchasers from defective titles. 225. The Court of Appeal had warned that purchasers must not transact with the haste and informality “of a potato dealer in Wakulima Market”-a vivid expression of the danger of superficial or hurried land dealings” (Refer to the Court of Appeal decision in of “Attorney General & Another – Versus - Hussein & 3 others (Civil Appeal 100 of 2018) [2025] KECA 1022 (KLR) (5 June 2025) JUDGMENT: ELC NO. 160 OF 2013 Page 98 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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(Judgment)”). A party who deliberately dispenses with legal advice in a high-value conveyancing transaction cannot claim the elevated protection of an innocent purchaser for value. Had the 6th Defendant engaged a qualified, experienced and diligent legal profession to represent it in a transaction worth a sum of Kenya Shillings Fourty Five Million (Kshs. 45,000,000.00/=) (clearly, the 6th Defendant could have afforded the fees), then doubtlessly: a) The advocate would have asked for the underlying lease, which the 1st and 2nd Defendants did not have as they never produced one in evidence; b) The advocate would not have stopped with a simple official search but would have investigated the root of the title and recovered from the parcel and correspondence files: a. A copy of the instrument of transfer from Alcop Limited to Leeward Islands Limited; and b. A copy of the letters exchanged between the 3 rd Defendant and the Plaintiff’s Advocates and a copy of the court order. 226. They submitted that the 6th Defendant did not meet the legal threshold for a bona fide purchaser for value without notice. They submitted that the constitutional and statutory framework was unequivocal. The provision of Article 40 (6) of the Constitution denies protection to any property “found to have been unlawfully acquired”, even if held by an otherwise innocent purchaser. In addition, the provision of Section 26 (1) of the Land Registration Act No. 3 of 2012 (LRA) renders a JUDGMENT: ELC NO. 160 OF 2013 Page 99 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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certificate of title impeachable where obtained “ illegally, unprocedurally or through a corrupt scheme.” Section 80 of the Land Registration Act empowers the Court to rectify the register where registration was obtained through fraud or mistake. Thus, even if the 6th Defendant were innocent-which the evidence rebuts-the law does not protect innocent purchasers of unlawful titles. 227. In the recent decision of “Attorney General & Another – Versus Hussein & 3 others (Supra)”, the Court of Appeal (Mativo, Gachoka, Odunga, JJA) had this to say on the issue of bona fide innocent purchaser: “....The onus is on the purchaser to carry out the necessary due diligence before purchasing property to establish whether there is good title to pass by looking into the root of the title. (See this Court’s decision in Galaxy Realtors Limited – Versus - Kenya Forest Service [2024] eKLR). As the decisions cited above suggest, a purchaser has a duty to conduct due diligence to establish the root of the title in order to fit within the definition of a bona fide purchaser. As was stated by this Court in Said – Versus - Shume & 2 Others (Civil Appeal E050 of 2023) [2024] KECA 866 (KLR) (26th July, 2024) (Judgment): “...Lands are not vegetables which are bought from unknown sellers. Lands are very valuable properties and buyers are expected to make thorough investigations not only on land but also of the owner before the purchase." And as in the Supreme Court decision in Dina Management Limited – Versus - County Government of Mombasa (supra),the Court went on to hold that, once the root of the title has been challenged, a party cannot derive benefit from the doctrine of bona fide purchaser.’ ....The issue under consideration now narrows to whether or not the 1st, 2nd and 3rd Respondents have satisfied the JUDGMENT: ELC NO. 160 OF 2013 Page 100 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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requisite legal parameters to qualify as bona fide purchasers for value. PW - 1 testified that they learnt about the intended auction on 13th December, 2007 through a public advertisement. The auction was scheduled for on 19th December, 2007. On crossexamination, he was emphatic that they did not visit the land prior to the auction. It was his evidence that it was only after the auction and after obtaining the Certificate of Lease, which was several months later that they discovered that the land was occupied by the NYS whom according to them are trespassers. In our view, due diligence reasonably required the 1st, 2nd and 3rd respondents to inspect and ascertain the status of the land on the ground and satisfy themselves on the status of the land was unoccupied. Prudence required that they dig deeper into root of the title. There is uncontroverted evidence that the letter of allotment was for a different parcel of land. As highlighted earlier, there is an unexplained glaring disparity on the acreage stated on the letter of allotment and the land they claim to have bought. There is no explanation or evidence rebutting the assertion that the land they were allocated is 10 km away from the land they claim was allotted to them. Had the 1st, 2nd and 3rd Respondents exercised due diligence, they would have discovered the discrepancies highlighted above. They would have confirmed that the NYS were in occupation. It is our view that had they undertaken due diligence, they would have arrived at an informed decision whether or not to bid in the auction. As this Court stated in Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 Others [supra], only a foolhardy, and we may add, a careless or fraudulent investor would purchase land such as the suit property “with the alacrity of a potato dealer in Wakulima Market.” Accordingly, we find that the 1st, 2nd and 3rd Respondents cannot satisfy the elements of an innocent purchaser for value discussed earlier. ....Lastly, arising from our determination of the issues discussed above, and the conclusions arrived at, it is our finding that the allocation of the suit land to Liberio Farm JUDGMENT: ELC NO. 160 OF 2013 Page 101 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Limited was unlawful, illegal and irregular. The law offers no protection to a bona fide purchaser who cannot demonstrate a good root of title. It is important to underscore that Section 26 of the Land Registration Act provides that a Certificate of Title is conclusive evidence of proprietorship provided it is not linked to fraud or misrepresentation in which the person is party to. Even though the law provides for the principle of indefeasibility of title, the same is not absolute. The title should not have been acquired illegally, unprocedurally, or through a corrupt scheme. When a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. (See Munyu Maina – Versus - Hiram Gathiha Maina [2013]eKLR)...” 228. In summary, the 6th Defendant’s claim collapses for three decisive reasons: a) Proceeding with a sum of Kenya Shillings Fourty Five Million (Kshs. 45, 000, 000./=) land purchase without an advocate, relying only on an official search, and ignoring missing foundational documents. b) Registry records and court correspondence-readily discoverable-demonstrated active disputes and irregularities. c) A defective chain of title could not confer protection under the provision of Article 40 (6) or LRA s. 26(1)(b), regardless of the 6th Defendant’s purported innocence, which was disputed. 229. In conclusion, the totality of the evidence. According to the Learned Counsel read alongside the controlling Constitutional, Statutory and jurisprudential framework, leads to one inescapable conclusion: the 1st and 2nd Defendants held no JUDGMENT: ELC NO. 160 OF 2013 Page 102 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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valid title to the Property and therefore could not convey what they did not possess to the 6th Defendant. A purchaser cannot acquire a better title than that held by the vendor, and where the root of title is tainted by illegality or procedural defect, no subsequent registration-however formal-could cure the original vice. 230. This principle is not only rooted in long-standing property law doctrine but was now firmly entrenched in the provision of Article 40 (6) of the Constitution, which withholds protection from unlawfully acquired property, and in Sections 26 (1) (b) and 80 of LRA, which mandate impeachment and rectification where registration is founded on illegality, irregularity, or mistake. The Supreme Court's jurisprudence confirms that a defective root cannot ripen into an indefeasible title, and the register must, ultimately, reflect the true and lawful position. The 6th Defendant’s claim to the shield of a bona fide purchaser collapses under the weight of these principles and the facts of this case. Having failed to exercise the diligence of a prudent purchaser, and having derived its registration from a chain irredeemably compromised at inception, the 6 th Defendant cannot rely on that doctrine to defeat the Plaintiff’s superior claim. 231. Accordingly, the Learned Counsel invited this Honourable Court to grant the reliefs set out in the Amended Plaint dated 5th January, 2017. In the circumstances of this case, and in fidelity to the law and the integrity of the land registration system, no lesser result would meet the ends of justice. JUDGMENT: ELC NO. 160 OF 2013 Page 103 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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B. The Written Submissions by the 1st and 2nd Defendants 232. The 1st and 2nd Defendants through the Law firm of Messrs. Michael Ngure & Co. Advocates filed their written submissions dated 31st March, 2026. Mr. Ngure Advocate submitted that identity especially in the corporate law was not merely about a name, it was about lawful recognition, proper registration and a verifiable continuity by the registrar of companies. Where a party claimed identity without any legal foundation, it was just but a mere impersonation. The central issue for determination in this matter, was the existence of two distinct companies one claimed by the Plaintiff and the other by the 1 st and 2nd Defendants both bearing the same incorporation number and the sequential dispute over the suit property. 233. Vide an Amended Plaint dated 5th January, 2017, the Plaintiff herein Leeward Islands Limited sought a declaration that it was the lawfully registered proprietor of the leasehold interest in all that suit land and that it was the lawfully registered owner of the incorporated company through certificate No.C.65416 dated 16th June, 1995. The Plaintiff’s sole claim was as a result of being in possession of Certificate of lease dated 2nd August, 1996. On the other limb, the 1 st and 2nd Defendants equally claimed proprietary interest in the same parcel of land by virtue of being in possession of the Certificate of lease dated 2nd August, 1996. 234. The Learned Counsel submitted that in the same manner, the Plaintiff and the 1st and 2nd Defendants laid claim to the incorporation certificate number No. C.65416 with both of JUDGMENT: ELC NO. 160 OF 2013 Page 104 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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them having been registered on the same date 16 th June, 1995. The Plaintiff claimed ownership of the suit property through a transfer of lease from Alcop Limited dated 16 th May, 1996 and later registered in their favour three months later on 2nd August, 1996. Their point of inquiry lies with the manner in which the transfer was conducted because the period of transfer also happened to be the same time in which the said company had surrendered the lease to the government. It was trite to note that once a certificate has been surrendered there could be no valid sale of the piece of land neither can there be a lawful transfer. 235. On the contrary, the 1 st and 2nd Defendants derived their title from an allotment by the Government of Kenya through the lands registry, and after compliance with the allotment letter and accepting the offer, a Certificate of Lease was consequentially issued to them. Additionally, the Learned Counsel averred that the Green Card favorably showed that 1 st and 2nd Defendants were the legal owners of the suit property. A copy of the same was produced in court as part of their bundle of documents-Pexh.8. And indeed on 24 th September, 2024 when the Mombasa Land Registrar - one Sheila Soita was summoned to Court and shed light to ownership of the suit land. She indeed confirmed that the land was registered in favour of the 1st and 2nd Defendants until on/or about 27 th February, 2016 when it was lawfully transferred to the 6 th Defendant. Such ownership in favour of the 1 st and 2nd JUDGMENT: ELC NO. 160 OF 2013 Page 105 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Defendants and subsequent transfer to the 6 th Defendant was above board. 236. On the background. The Learned Counsel informed that the 1 st and 2nd Defendants lawfully sold the suit property to the 6 th Defendant on 27th February, 2016. They reiterated that the 6 th Defendants undertook due diligence before purchasing the property from the 1st and 2nd Defendants which clearly showed that they were the true owners of the suit property through their company – Leeward Islands Limited. Since the year 2016, the 6th Defendant had been in possession of the land and had been dutiful in payment of land rates and rent. Their ownership over the suit property was indefeasible, legal and procedural. The sale of the suit property was the beginning of this dispute before this court and such allegation of proprietary interest derived from such a transfer of lease in favour of the Plaintiff must fail. 237. On the law and analysis. The Learned Counsel asserted that what was in dispute was whether the proper title to the suit property was that held by the plaintiff or that held by the 6 th Defendant through the 1st and 2nd Defendants. It was another sad situation where two parties contend to have title to the said land, a position that was completely untenable in law, for one parcel of land could only have one legal title to it. However, this the situation that they found themselves in and this court thus has to make a decision regarding the two titles that have been presented in this dispute. JUDGMENT: ELC NO. 160 OF 2013 Page 106 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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238. Further, it had certainly been established through precedent in the case of the case of “Munyu Maina (Supra)”, where the Court of Appeal stated that:“When a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to 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” 239. They averred that the Plaintiff, never held a valid leasehold title to the suit property and therefore it cannot allege to have good title to the suit property. The Plaintiff held no lease and thus had nothing to transfer. It is now firmly settled in jurisprudence, that the common law principle of nemo dat quod non habet is also applicable to dispositions over land in Kenya. In the case of “Dina Management – Versus - County Government of Mombasa & 5 Others (Supra)” it was held that a fraudulent title is subject to nullification irrespective of the fact that the purchaser is an innocent purchaser for value without notice. The Learned Counsel averred that the following in establishing ownership of the suit property and the incorporation certificate; 240. On ownership of the suit property. The Learned Counsel opined that the 1st and 2nd Defendants did annexed proof that:i. The official search from the Lands Registrar showed the 1 st and 2nd Defendants as the proprietor/registered owner of the suit property. This was in line with the provision of Section 35 of the Land Registration Act No.3 of 2012 which JUDGMENT: ELC NO. 160 OF 2013 Page 107 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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stated that every document purporting to be signed by a Registrar shall, in all proceedings, be presumed to have been so signed unless the contrary is proved and that every copy of or extract from a document certified by the Registrar to be a true copy or extract shall, in all proceedings, be received as prima facie evidence of the contents of the document. The plaintiff has not produced any evidence to the contrary. ii. The Sale Agreement and transfer of lease as the instruments used to transfer ownership to the 6 th Defendant dated 27th February, 2016- Plaintiff Exhibit Number 2 which have not been contested against. iii. On 24th September, 2024, the Lands Registrar, again indeed confirmed that as per all the records in their possession at the Lands Registry, the 1 st and 2nd Defendants were the legal registered proprietors of the suit proprietor and properly and procedurally passed on a legal interest to the 6th Defendant on 27th February, 2016. iv. More intriguingly was the evidence tendered by DW – 5 Hashim Got, the then Land Registrar and currently based in Machakos in the same capacity. He confirmed that he actually transferred the suit property from the 1 st and 2nd Defendants to the 6th Defendant and that the title was clear. Thus a good title was passed. However, the said witness months later put a restriction to the title citing that he was moved by the Plaintiffs to do so but did not see any fraud on the part of 1 st and 2nd Defendants but blamed it on being a typing error. v. Which title deed was thus been challenged herein? When all such interests transferred to the 6th Defendant on whose favour the suit property now rests? JUDGMENT: ELC NO. 160 OF 2013 Page 108 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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vi. Where the Title Deed records from the Lands registry all point to ownership of such Title in favour of the 1 st and 2nd Defendants who later transferred it to the 6 th Defendant, then he submitted that the onus of proof never shifted to the Defendants but it was upon the Plaintiffs to prove it and they failed to do so. vii. Similarly, the Plaintiffs had totally failed to proof any collusion between the Defendants herein. 241. On ownership of the incorporation certificate. The Learned Counsel submitted that: i. the official search at the offices of the Registrar of Companies dated 7th February, 2014 clearly showed the 1st and 2nd Defendants as the owners of the incorporation number, to which no evidence had been adduced against it. ii. The Plaintiff bore the legal burden of proof as required under Section 107 of the Evidence Act, Cap. 80, Laws of Kenya, which provides that he who alleges must prove. In the present case, the Plaintiff had not presented any cogent evidence directly linking the Defendants to the creation or submission of falsified incorporation documents. Mere duplication of incorporation numbers or dates does not, in itself, amount to proof of falsification or fraudulent conduct. Additionally, the Registrar was estopped from denying the validity of the certificate of lease, having previously issued and endorsed it. 242. The Learned Counsel submitted that being the legal position, the Plaintiff totally failed to prove any particular of fraud occasioned by the 1st and 2nd Defendants in their acquisition of JUDGMENT: ELC NO. 160 OF 2013 Page 109 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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the title Deed and their viva voce evidence in court remained just that- sensational statements calculated to attract sympathy which was of no probative value. 243. Thus, it was their humble submissions that the Plaintiff had failed to make out a case in its favour and warrant this court issue such orders sought in the Amended plaint dated 5 th January, 2017 and subsequently, we pray that this suit be dismissed with costs to the 1st and 2nd Defendants and equally this court to find that the Plaintiff's Certificate of Title dated 2 nd August, 1996 and Certificate of Incorporation dated 16 th June, 1995 was a nullity and order the 4th and 5th Defendants to consequently cancel the Plaintiff’s Certificates respectively. C. The Written Submissions by the 3 rd, 4th and 5th Defendants 244. The 3rd, 4th and 5th Defendants through the Attorney General filed their written submissions dated 29 th May, 2026. M/s. Waswa Advocate commenced her submissions by making an opening statement that the Plaintiff instituted this suit vide the Plaint dated 3rd July, 2013 and later Amended Plaint dated 5 th January, 2017 seeking several orders as already stated out above. 245. The Learned Counsel held that the Plaintiff supported their claim with a bundle of documents filed and produced in Court. The Plaintiff further called their witnesses who testified on different days accordingly. She submitted on the case of the 3rd, 4th and 5th Defendants that they filed their Defence dated 2nd April, 2015 and later the Defence dated 16 th January, 2019. JUDGMENT: ELC NO. 160 OF 2013 Page 110 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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The 3rd - 5th further filed list of documents dated 27 th August,2015 and later they filed the Amended List of documents dated 14th October, 2019 together with the list of witnesses filed on the same date. 246. On 24th September, 2024 the current Mombasa Land Registrar; DW - 3, Sheila Soita attended Court and shed light to ownership of the suit land. Indeed she confirmed that it was registered in favour of the 1 st and 2nd Defendants until on/or about 27th February, 2016 when the same was lawfully transferred to the 6th Defendant. Such ownership in favour of the 1st and 2nd Defendants and subsequent transfer to the 6 th Defendant was above board. 247. On 28th March, 2025, the 2nd Defendant’s representative attended Court and testified. The witness; DW - 4, Mr Josias Mugendi Njagi stated that a Senior Clarical Officer hence understood about the case very well. On behalf of the 4 th Defendant, Mr Njagi stated that as per records held in their offices, the only records available were for Company known as Leeward Islands Limited and not Leeward Island Limited. This is supported by the documents produced during his testimony; Certified documents originating from their office. The documents are listed as item 13 in the 3 rd -5th Defendants list of documents dated 14th October and filed in Court on the same day. The witness went further to state that the document filed by the 1st Defendants list as Item 40 the CR-12 for Leeward Island Limited is not in their records and hence He cannot authenticate it or its originality. He further stated that JUDGMENT: ELC NO. 160 OF 2013 Page 111 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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as for the Leeward Islands Limited, Mohammed Shabbir and Peter Mutugi were not the directors. 248. Further the Learned Counsel submitted that the second witness to defend the 3rd - 5th Defendants’ case was the former Land Registrar; DW - 5; Mr. Hashim Got Sat; on the 23 rd March, 2025, Mr. Got Sat took the stand and testified and clarified a number of issues. His testimony proceeded on 30 th May, 2025. Mr. Sat clearly stated that it was true he had sworn a witness statement filed in Court on 31st August, 2015 whereby He clearly stated that the 1st and 2nd Defendants could have been participants in a fraudulent which had caused some of the records in his file to be tempered with hence they should be held accountable for their fraudulent action. 249. Further, Mr. Hashim Got Sat stated that nevertheless, he registered a Transfer from the 1st and 2nd Defendants to the 6th Defendants on the 16th May, 2016. He explained that he did this because of the confusion brought about by the almost similar Companies Leeward Islands Limited and Leeward Island Limited. There was a Court Order dated 2 nd December, 2014 barring any transaction on the suit property by the 1 st and 2nd Defendant ; in the Plaintiff's case, they allege that the Order had been presented for registration earlier but Mr. Hashim Got Sat declined/refused to register it. However, Mr. Hashim Got Sat clearly stated that He had not seen the Order as the same was presented and then taken back by the person who presented it hence there was no Order registered against the JUDGMENT: ELC NO. 160 OF 2013 Page 112 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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suit property that Could have barred any registration including the Transfer to the 6th Defendant. 250. Mr. Hashim Got Sat clearly stated that the onus was on the 1 st and 2nd Defendants as they were the vendors in the Transaction yet they had the Court Order that barred them from selling/transferring or dealing in the suit property until the determination of this suit. That upon realizing the error, Mr. Hashim Got Sat through the Power bestowed on him by the Land Act placed a Restriction against the suit property under the provision of Section 76 (2) (b)(c) of the Land Registration Act to protect it from further dealings until determination of this case. 251. On the existence of two companies: Plaintiff’s Leeward Islands Limited and 1st and 2nd Defendant’s Leeward Island Limited. The Learned Counsel submitted that this issue was properly addressed by their 2nd Witness; Mr Njagi who clearly explained that the records available in their offices were for Leeward Islands Limited. He clearly stated that He had no knowledge of the existence of the Leeward Island Limited and that if the same really existed. He would have seen it in their office records. It was even more surprising that both companies bear the same incorporation number, a situation that never be. Mr Njagi vehemently denied existence of Leeward Island Limited records and indicated that the person who submitted them to Court should explain their originality. 252. It was therefore their humble submissions that the records at the 5th Defendant’s offices were as produced in Court herein by JUDGMENT: ELC NO. 160 OF 2013 Page 113 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Mr Mugendi Njagi and those for Leeward Islands Limited. The Learned Counsel submitted that on that issue it was clear that the Plaintiff's claim was not justified as the records held at the Company Registrar's office support their records. 253. Further on the issue of which of the companies was the original owner of the suit property. The Learned Counsel submitted that the current Land Registrar attended Court and presented the current status of the suit property. The property was currently registered in the name of the 6th Defendant after the 1st and 2nd Defendants transferred to the 6th Defendant in year 2016. Going back to the history, the Plaintiff who also had ownership claims over the suit property explained through their Witness Mr. Mayur Malde that the same came into their possession after Transfer from Alcop Limited was effected. This position was also supported by both current Land Registrar Ms. Sheila Soita, Mr. Hashim Got Sat; their third witness who also in His statement brought out that Historical background on ownership and how the property moved from Alcop Limited. 254. There was no historical explanation on how the 1 st and 2nd Defendants obtained their Title to the suit property. On 24 th September, 2024; 1st and 2nd Defendants witness; Mr. Shabbir Mohamed testified in Court. During cross - examination He could not explain the History of the parcel suit property herein and only indicated that they obtained the Lease Title in the year 1996 then in 2016 they sold the property to United Care JUDGMENT: ELC NO. 160 OF 2013 Page 114 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Limited. But when asked on proof of payment of purchase price and where the money was paid to He could not explain. 255. The 6th Defendant on 16th November, 2022 through their only witness; Mr. Rishard Ahmed on the other hand indicated that they bought the property from the 1st and 2nd Defendants and when asked on the issues of the two Companies he said he only knew Leeward Island Limited who sold the land to him. There were few discrepancies on the issues of KRA pins submitted during the transfer not being for the respective companies but for the Directors and His as brought out during the proceedings. 256. On this issue of ownership. The main point of determination was which company had the right title. Both Lease Titles as alleged by both parties are in the name of companies not individuals. The question then becomes which “Right Company held the Right Title”. The issue on the two companies They had already addressed as in their submissions hereinabove. On the issue of determining the Right Title, the Courts through several cases had discussed on the same. For instance, in the case of “Munyu Maina – Versus - Hiram Gathiha Maina (Supra)”,where the Court of Appeal stated that:“When a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to 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.” JUDGMENT: ELC NO. 160 OF 2013 Page 115 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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257. It was therefore the duty of both the Plaintiff and the 1 st and 2nd Defendants to both prove how they got their Title. 258. On whether the 1st and 2nd Defendants passed a good title to the 6th Defendant. The Learned Counsel submitted that depending on how the 1st and 2nd Defendants proved they obtained ownership to their respective Titles, it will justify on whether they had passed a good Title to the 6 th Defendant. In the case of “Dina Management – Versus - County Government of Mombasa & 5 Others (Supra)” it was held that: “a fraudulent title is subject to nullification irrespective of the fact that the purchaser is an innocent purchaser for value without notice.” 259. On the part of the 3rd Respondent, Mr. Hashim Got Sat; DW - 5 clearly explained that there was no registered order that was registered against the Title to prevent him from registering the Transfer to the 6th Defendant. He clearly noted that the confusing and Almost similar names of the Companies made him not realize that He had actually dealt in the matter. This is the reason why after having registered a transfer to the 6 th Defendant and after realizing the previous instances, He placed a restriction against the property under the provision of Section 76 (2) (b) and (c) of the Land Registration Act, 2012 until the suit herein is determined. DW5 was very remorseful and apologized for any error on his part which he was ready and actually tried to correct. However, He was also specific that the misrepresentation was by the 1 st and 2nd Defendants who then knew existence of the Court Order barring them from JUDGMENT: ELC NO. 160 OF 2013 Page 116 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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dealing in the suit property but went ahead presented the Transfer documents to the 4th Defendant for registration; hence they should be held liable for the error caused 260. In conclusion, the Learned Counsel submitted that from the above humble submissions, they prayed that thus suit be dismissed with costs as no specific allegation of fraud had been proved against the 3rd – 5th Defendants herein to warrant them to pay damages and/ or costs of this suit as prayed. They humbly prayed that this suit should be struck out with costs. IX. Analysis and Determination 261. I have keenly assessed the filed pleadings by the 1 st, 2nd & 3rd Plaintiffs and the 1st, 2nd, 3rd, 4th 5th and 6th Defendants herein, the oral testimonies adduced in court, the documentary evidence tendered, the written submissions filed by the respective counsel, the cited authorities, and the relevant provisions of the Constitution of Kenya, 2010 together with the statutes governing land ownership and registration, including the Land Registration Act, No. 3 of 2012, the Government Lands Act, Cap. 280 (Now repealed), and the Trust Land Act, Cap. 288 (Now repealed). 262. In order to reach an informed, reasonable, Equitable and just decision in the subject matter, this Honourable Court crafted the following seven ( 7 ) salient issues for its determination. These were: a) Whether the Plaintiff has established a lawful root of title to the suit property; b) Whether the entity “Leeward Island Limited” (without an “S”) is a legally cognisable entity, and whether the JUDGMENT: ELC NO. 160 OF 2013 Page 117 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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documents relied upon by the 1st and 2nd Defendants were forgeries; c) Whether the Plaintiff has proved fraud to the required standard; d) Whether the 6th Defendant qualifies as a bona fide purchaser for value without notice; e) Whether the registration of the 6th Defendant as proprietor is protected under the doctrine of indefeasibility; and f) What orders should issue. g) Who bears the costs of the suit and the counterclaim 263. Before turning to the evidence, it is apposite to set out the governing statutory provisions, which provide the legal architecture against which the facts must be measured. Article 40 of the Constitution of Kenya, 2010 — Protection of the Right to Property; Article 40(1) guarantees every person the right to acquire and own property. That right, however, is not absolute. Article 40 (6) provides: “The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.” 264. The provision of Article 40 (6) is the constitutional anchor of the entire dispute. It operates as a limitation upon the right to property: where property is found to have been unlawfully acquired, the Constitution itself withholds protection, irrespective of the innocence of a subsequent holder. 265. The provision of Article 35 (1)(b) of the Constitution guarantees every citizen the right of access to information held by the State. The Plaintiff's complaint that the 4 th and 5th JUDGMENT: ELC NO. 160 OF 2013 Page 118 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Defendants failed to issue official searches and company records engages this Article. 266. The provision of Section 24 of Land Registration Act, No. 3 of 2012 (“LRA”) vests in the registered proprietor the absolute ownership of the land, together with all rights and privileges appurtenant thereto. Section 25(1) of Land Registration Act, No. 3 of 2012 (“LRA”) provides that the rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration, “shall not be liable to be defeated except as provided in this Act.” 267. While Section 26(1) of the LRA the pivotal provision — provides: “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... and the title of that proprietor shall not be subject to challenge, except— (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 268. Two features of section 26(1) merit emphasis. First, the section describes the certificate as prima facie — not conclusive — evidence of proprietorship. Secondly, the indefeasibility it confers is expressly subject to the twin exceptions in paragraphs (a) and (b). It is these exceptions that the Plaintiff invokes. JUDGMENT: ELC NO. 160 OF 2013 Page 119 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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269. Section 80 (1) of the LRA empowers the Court to order rectification of the register: “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.” 270. The provision of Section 76 of the LRA empowers the Registrar to place a restriction on the register, including where it appears that the proprietor's power to deal with the land is restricted, or for the prevention of fraud or improper dealing. It was under this provision that a restriction was entered on 21 st April 2016 pending determination of this suit. 271. The provision of Section 107 of the Evidence Act (Cap 80, Laws of Kenya) embodies the cardinal rule that:“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.” The legal burden of proof lies upon the party who asserts. 272. The provision of Sections 17, 18 and 872 of the Companies Act, No. 17 of 2015 governs the registration of companies; section 18(4) provides that a certificate of incorporation “is conclusive evidence that the requirements of this Act relating to registration have been complied with and that the company is duly registered under this Act.” Section 872 criminalizes the lodging of false or misleading documents, or the making of false or misleading statements, to the Registrar. 273. With this framework in place, I now turn to the empirical oral and documentary evidence adduced herein. JUDGMENT: ELC NO. 160 OF 2013 Page 120 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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ISSUE No. a). Whether the Plaintiff has established a lawful root of title to the suit property; 274. Under this sub-title the Honourable Court shall examine the evidence adduced by the Plaintiff, the responses by the Defendants, and the applicable law governing land ownership and registration in Kenya. The Honourable Court under this title is to deciphers the main substratum herein is on the issue of legal ownership to the suit land. From the very onset, Judicial notice will be taken to the fact that land in Kenya is extremely sensitive and emotive. Land is not just a vital source for development but also of livelihood. It is also an important tool for the mobilization of resources being used for collateral security for project loans. Indeed, a lot of importance is bestowed on it. There has been plenty of disputes over the occupation, title and rights of land. According to the Constitution of Kenya, 2010 land is categorized into three – Private; Public and Community land. 275. With promulgation of the Constitution of Kenya, 2010, all the legal regime of land legislation were condensed into a few legal framework, Significant, after the repealing of several legislation, two of them were sustained being “ The Land Registration Act, No. 3 of 2012 and the Land Act, No. 6 of 2016” . 276. It is instructive to note that the suit land was registered under the Registration of Title Act, Cap. 281 (now Repealed). As already correctly pointed out by the Learned Counsel for the Defendant, based on the provisions of the provision of Section 107 of the Land Registration Act No. 3 of 2012 provided that JUDGMENT: ELC NO. 160 OF 2013 Page 121 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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any right, interest, title, power, or obligation acquired, accrued, or established under the repealed Acts would continue to be governed by the law applicable to it immediately prior to the commencement of the new Act. This Legal position finds grounding in the provisions Section 23 (3) (c) of the Interpretation and General Provisions Act, Cap. 2 which provides:“Where a written law repeals in whole or in part another written law, then unless a contrary intention appears the repeal shall not affect a right, privilege, obligation or liability acquired, accrued or incurred under a written law so repealed” Ideally, I wish to point out that the Land Registration Act makes provision on the effect and efficacy of registration of title and its indefeasibility. The provision of Section 24(a) of the Land Registration Act provides as follows:“Subject to this Act, 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.” 277. When a person’s ownership to a property is called into question, it is trite that the said proprietor has to show the root of his ownership. In the case of “Hubert L. Martin & 2 Others – Versus - Margaret J. Kamar & 5 Others [2016] eKLR” , where the Court held that; ‘A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which JUDGMENT: ELC NO. 160 OF 2013 Page 122 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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conformed to procedure and can properly trace its root without a break in 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 root. 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 hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.’ 278. Further to this, the Honourable Court is guided by the Court of appeal in the case of: “Munyu Maina – Versus - Hiram Gathiha Maina (Supra)”, the Appeal Court held that:“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to 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.” 279. The law is clear that, the Certificate of Title issued by the Registrar upon registration shall be taken by all courts as ‘the prima facie’ conclusive evidence that the person named as proprietor of the land is the absolute and legal owner with indefeasible title, rights and interest on the land and the proprietor shall not be subject to challenge except – On the ground of fraud, mistake, omission or misrepresentation to which the person is proved to be a party; or Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. JUDGMENT: ELC NO. 160 OF 2013 Page 123 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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280. This court in considering this matter referred to the case of:“Elijah Makeri Nyangw’ra – Versus - Stephen Mungai Njuguna & Another (2013) eKLR” where the court held that the title in the hands of an innocent third party can be impugned if it is proved that the title was obtained illegally, unprocedurally or through a corrupt scheme. The court in the case while considering the application of provision of Section 26(1) (a) and (b) of the Land Registration Act holds as follows:“--------------the law is extremely protective of title and provides only two instances for challenge of title. The first is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired through a corrupt scheme.” 281. Now turning to the issues from the instant case. The Court notes that under Section 24(a) and Section 25(1) of the Land Registration Act, 2012, registration confers absolute ownership and rights to the registered proprietor, subject only to encumbrances noted on the register. However, Section 26(1) of the same Act provides that a certificate of title may be challenged if it is shown that it was obtained through fraud, misrepresentation, or an illegal, unprocedural, or corrupt scheme. 282. In the present case, the starting point is the principle, now firmly entrenched in our jurisprudence, that where a registered proprietor's root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership as being claimed by two legal entities being the following trade names JUDGMENT: ELC NO. 160 OF 2013 Page 124 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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and styles – “Leeward Islands Limited” and “Leeward Island Limited” respectively. 283. The Supreme Court of Kenya in the now famous case of: “Dina Management Limited – Versus - County Government of Mombasa & 5 Others (Supra)” reinforced this principle, holding that “a title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such title cannot be held as indefeasible.” 284. Applying these principles, the Plaintiff's evidence establishes an unbroken and independently corroborated chain of title: a) PW 1, a director of Alcop Limited, testified that Alcop Limited was the first allottee of the suit property. The complete ownership records of Alcop Limited appear at pages 111–139 of the Plaintiff's Bundle (Plaintiff Exhibit No. 4), including the lease dated 13th March, 1995 and registered on 3rd May, 1995. b) Subsequently, the property was surrendered to the Government to facilitate a Change of User, and a fresh lease was issued to Alcop Limited on 29 th May, 1996 (page 131 of Plaintiff Exhibit No. 4). c) By an Instrument of Transfer of Lease dated 16 th May, 1996, Alcop Limited transferred the suit property to Leeward Islands Limited (with an “ S”) for a consideration of a sum of Kenya Shillings Three Million (Kshs. 3,000,000/=_. The transfer instrument was registered on 2nd August, 1996, and a Certificate of Lease was issued in the Plaintiff's name (pages 140–145 of Plaintiff Exhibit Number 4). d) On the registration, taking possession and Use of Land. PW - 3, the Plaintiff's Chief Investment Officer, produced the JUDGMENT: ELC NO. 160 OF 2013 Page 125 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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original Certificate of Lease issued on 2 nd August, 1996, together with rent and rates receipts (pages 159–222 of Plaintiff Exhibit Numbers 4), evidence of a construction project commenced and abandoned at foundation level (pages 146–158 and 320 of Plaintiff Exhibit No. 4), and a Box Renter’s Authority Card for P.O. Box 43266, Mombasa, issued on 15th September, 1995 bearing the signature of PW - 3’s late father (page 256 of Plaintiff Exhibit Number 4). 285. Critically, the Plaintiff's root of title was independently corroborated by two Land Registrars of Mombasa. These were DW - 3 (Sheila Soita) who confirmed that the property was first allotted to Alcop Limited on 1st December, 1994 for a term of 99 years; that there was a surrender of lease and issuance of a fresh lease to Alcop Limited; and that on 2 nd August, 1996 a transfer from Alcop Limited was registered in favour of Leeward Island(s) Limited. She produced the cancelled title for Alcop Limited, the instrument of surrender, the new lease, and the transfer instrument. The other Land Registrar was DW - 5 (Mr. Hashim Got Sat) similarly confirmed that he registered the lease in favour of Alcop Limited, the lease in favour of Leeward Islands Limited (the Plaintiff), and the transfer to the 6 th Defendant. 286. Therefore, I find that the Plaintiff has satisfied the Maina test. Its title originated from a valid Government allocation, followed a complete and lawful chain of ownership, and was corroborated by the official records of the very Registry that JUDGMENT: ELC NO. 160 OF 2013 Page 126 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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now stands accused of irregularity. The Plaintiff's root of title is clean. ISSUE No. b). Whether the entity “Leeward Island Limited” (without an “s”) is a legally cognizable entity, and whether the documents relied upon by the 1st and 2nd Defendants are forgeries; 287. Under this sub-title the Honourable Court shall critically examine whether the “Leeward Island Limited” (Without an “S”) is a legally cognisable entity, and whether the 1 st and 2nd Defendants’ documents are forgeries. A lot has been adduced on this particular issue. The evidence on this issue is, in my view, overwhelming and points in one direction only. The evidence by DW - 4 - (Josias Mugendi Njagi), a Senior Clerical Officer of the Business Registration Service (formerly the Registrar of Companies) is game changer and a Roller Coaster in the given circumstances. It is a panacea as it is the one that broke the Camels back! 288. According to the provision of the Laws of Kenya, the Registrar of Companies established under the Companies Act, Cap. 486 of the Laws of Kenya, undertook the registration process of Private and Public Companies in Kenya. Subsequently, it was custodian of all the records of these Incorporated legal entities. DW – 4 testified categorically that the only company in the Government's records is “Leeward Islands Limited” (with an “s”), registration number C.65416. He stated that there is no record whatsoever of an entity known as “Leeward Island Limited” (without an “s”), and that the CR12 Form produced JUDGMENT: ELC NO. 160 OF 2013 Page 127 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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by the 1st and 2nd Defendants (page 38 of their Bundle) did not originate from the Registrar of Companies. He further confirmed that the 1st and 2nd Defendants have never been directors or shareholders of the Plaintiff. Indeed, accordingly to him, he held that the alleged officer who signed the documentations purportedly relied by the 1 st and 2nd Defendants, was never was attached nor ever worked with the office of the Registrar of Companies. Instead, he was a Civil Servant attached with the Ministry of lands. Interestingly, the 1st and 2nd Defendants never saw any value nor need to summon him to tender any evidence in support of their claim. 289. Furthermore, this testimony is corroborated by the letter dated 3rd August, 2017 from the Registrar of Companies (page 411 of Plaintiff Exhibit No.4), which confirmed that there is only one company registered as Leeward Islands Limited. Additionally, on this aspect, the Plaintiff further adduced such thorough, glaring and compelling evidence of forgery in the corporate documents: (a) The Law firm of Mesrs. Wachira Nderitu Advocates, which purportedly drew the Memorandum and Articles of Association of “Leeward Island Limited”, does not exist. The only advocate bearing the combination of names Nderitu and Wachira, Edward Nderitu Wachira, wrote refuting any involvement in the incorporation of the said entity and denying any knowledge of the 1 st and 2nd Defendants (pages 309, 311 and 318 of Plaintiff Exhibit No. 4). (b) PW - 2 - (M/s. Angelica Mecha) of the Law Society of Kenya testified that there was no advocate who had JUDGMENT: ELC NO. 160 OF 2013 Page 128 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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declared to the LSK as practising under the name and style of Andrew Omondi & Company Advocates, the Law firm which purportedly witnessed the 1st and 2nd Defendants' signatures on the Memorandum and Articles of Association. The Plaintiff's advocates successfully reserved that very name with the Registrar of Business Names on 11th March, 2014 — a step that would have been impossible had the firm existed (pages 316 – 317 of Plaintiff Exhibit No. 4). (c) PW - 3 testified to a critical discrepancy in the Government Press serial numbers: the Plaintiff's genuine Certificate of Incorporation was printed on paper bearing a 1995 serial number, whereas the 1st and 2nd Defendants' certificate bore a serial number indicating paper printed in the year 2003 — which could not have been used for a 1995 incorporation (pages 1 and 234 of P.Exb 4). (d) The signatures purporting to belong to the 1 st and 2nd Defendants on the disputed documents do not match one another, nor do they match their signatures on affidavits sworn in these proceedings. 290. In the case of:- “Arthi Highway Developers Limited – Versus West End Butchery Limited & 6 Others (Supra)” , the Court of Appeal, dealing with strikingly similar facts — including the existence of two titles over the same property — held that where documents are forged, no rights can be founded upon them. The Court emphasized that the responsibility to ensure the accuracy of the register and the authenticity of titles lies with the Government, JUDGMENT: ELC NO. 160 OF 2013 and Page 129 of 143 that a party who obtains HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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registration through forged instruments acquires no valid title capable of being passed to another. 291. In view of these, I am satisfied that the entity “Leeward Island Limited” (without an “s”) is a fictitious construct, and that the Certificate of Incorporation, Memorandum and Articles of Association, Certificate of Lease and CR12 Form relied upon by the 1st and 2nd Defendants are forgeries. Section 18(4) of the Companies Act, which makes a certificate of incorporation conclusive evidence of registration, cannot avail the 1 st and 2nd Defendants, for a forged certificate is not a certificate issued by the Registrar at all. ISSUE No. c). Whether the Plaintiff has proved fraud to the required standard. 292. Under this sub-title the Honourable Court shall examine whether the Plaintiff has proved fraud to the required standard. Fraud is a serious allegation and must be strictly pleaded and strictly proved. In “Arthi Highway Developers Limited – Versus - West End Butchery Limited (supra)” , the Court of Appeal, approving Black’s Law Dictionary, held: “Fraud consists of some deceitful practice or wilful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury... Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings.” 293. The East African jurisprudence is to like effect. In “Kampala Bottlers Limited – Versus - Damanico (U) Ltd, SCCA No. 22 of 1992”, the Supreme Court of Uganda held that fraud must be JUDGMENT: ELC NO. 160 OF 2013 Page 130 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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strictly proved, the burden being heavier than the ordinary balance of probabilities, and that: The party must prove that the fraud was attributable to the transferee. It must be attributable either directly or by necessary implication, that is; the transferee must be guilty of some fraudulent act or must have known of such act by somebody else and taken advantage of such act 294. The Plaintiff pleaded fraud with particularity at paragraphs 19(a)–(e) and 20(a)–(j) of the Amended Plaint. The particulars were supported by evidence. I find the following evidence as having been well established: a) The creation and use of a falsified Certificate of Incorporation bearing the same number (C.65416) and date (16th June, 1995) as the Plaintiff's genuine certificate; b) The creation and use of a falsified Certificate of Lease for the suit property bearing the same date (2 nd August, 1996) and the same postal address (P.O. Box 43266, Mombasa) as the Plaintiff's genuine certificate, but in the name of “Leeward Island Limited”; c) The use of these forged documents to hold out the 1 st and 2nd Defendants as directors of the Plaintiff and to offer the suit property for sale; d) The disposal of the suit property to the 6 th Defendant on 4th March, 2016, at a time when an injunction issued on 6 th November, 2014 was in force restraining the 1 st and 2nd Defendants from dealing with the property. 295. On the last point, DW - 2 (Shabbir Mohamed Haji) admitted during the cross-examination session that he was aware of the 2014 Injunction Order and that it was in force when the JUDGMENT: ELC NO. 160 OF 2013 Page 131 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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transfer to the 6th Defendant occurred in 2016. DW - 5 confirmed that the injunction order had been issued and that, had he known of the matter, he would not have registered the transfer. The transfer was therefore effected in the teeth of a court order — conduct that is, of itself, a badge of fraud. 296. In a nutshell, therefore, I find that the Plaintiff has proved fraud against the 1st and 2nd Defendants to the standard required. The fraud was attributable to them directly, and to the extent that the 4th and 5th Defendants’ officers facilitated it, the evidence establishes a troubling pattern of obstruction — the persistent failure to issue official searches to the Plaintiff (pages 273–275, 279, 295, 297–298, 304 of Plaintiff Exhibit Number 4) contrasted with the existence of CR12s allegedly issued to third parties over the same company file — which points to collusion. I need not, however, make a definitive finding of fraud against the 3 rd, 4th and 5th Defendants, as the Plaintiff's claim against them is essentially one of breach of the right to information and failure of statutory duty. ISSUE No. d). Whether the 6th Defendant qualifies as a bona fide purchaser for value without notice 297. Under this sub-title the Honourable Court shall examine whether the 6th Defendant qualifies as a bona fide purchaser for value without notice. The 6th Defendant asserts that it is a bona fide innocent purchaser for value without notice, having paid a sum of Kenya Shillings Fourty Five Million (Kshs. 45,000,000/=) for the suit property. The “doctrine of the bona fide purchaser” is well established, but its application is not JUDGMENT: ELC NO. 160 OF 2013 Page 132 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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automatic. The purchaser bears the onus of demonstrating that it conducted the necessary due diligence to establish a good root of title. 298. In the case of:- “Attorney General & Another – Versus - Hussein & 3 Others (Supra)”, the Court of Appeal (Mativo, Gachoka and Odunga, JJA) held: “The onus is on the purchaser to carry out the necessary due diligence before purchasing property to establish whether there is good title to pass by looking into the root of the title... Lands are not vegetables which are bought from unknown sellers. Lands are very valuable properties and buyers are expected to make thorough investigations not only on land but also of the owner before the purchase.” 299. The Court further approved the vivid warning in Arthi Highway that only “a foolhardy, and we may add, a careless or fraudulent investor would purchase land... with the alacrity of a potato dealer in Wakulima Market.” Measured against this standard, the 6th Defendant's claim collapses. DW - 1 (Rishad Hamid Ahmed) made several damaging admissions in cross- examination: a) The alleged due diligence was not conducted by an advocate but by a land-buying company, Richland Properties Limited; b) He did not engage an advocate to draw the sale agreement or the transfer, stating that he had done many land transactions and did not see the need; c) The KRA PIN number used for the transferor “Leeward Island Limited” on the stamp duty pay-in slip belonged to the 2nd Defendant personally, not to any company; JUDGMENT: ELC NO. 160 OF 2013 Page 133 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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d) The KRA PIN number used for the 6 th Defendant on the same slip belonged to DW - 1 personally; e) The postal address on the stamp duty slip (P.O. Box 16288, Nairobi) differed from that on the impugned Certificate of Lease (P.O. Box 43266, Mombasa); f) He conceded that the property was not vacant but contained an excavation indicative of prior development, yet he never sought proof of building approvals or prior ownership history 300. These admissions are fatal. A purchaser who dispenses with legal advice in a sum of Kenya Shillings Fourty Five Million (Kshs. 45,000,000/=) transaction, who fails to reconcile glaring discrepancies in the vendor's identity, and who ignores visible signs of prior occupation, cannot be heard to say that it exercised the diligence of a prudent purchaser. Had the 6 th Defendant engaged a competent advocate, that advocate would have called for the underlying lease (which the 1 st and 2nd Defendants never produced), investigated the root of title, and discovered the instrument of transfer from Alcop Limited to Leeward Islands Limited, the correspondence between the Plaintiff’s advocates and the Lands Office, and the court order. 301. For these reasons, I therefore strongly hold that the 6 th Defendant does not qualify as a bona fide purchaser for value without notice. The closest they may seek as a legal remedy is in a separate legal action pursue for their re – funds from the 1st and 2nd Defendants. I dare say no more. JUDGMENT: ELC NO. 160 OF 2013 Page 134 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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ISSUE No. e). Whether the registration of the 6th Defendant as proprietor is protected under the doctrine of indefeasibility. 302. Under this sub-title the Honourable Court shall examine whether the 6th Defendant's registration is protected under the doctrine of indefeasibility. However, from the above conclusion by this Court, there is very little to add herein. Even if the 6 th Defendant were innocent — which the evidence rebuts — the law would not protect it. The Supreme Court in “Dina Management Limited – Versus - County Government of Mombasa (supra)” held that:“once the root of the title has been challenged, a party cannot derive benefit from the doctrine of bona fide purchaser.” 303. The Court further held that where the first registered owner did not acquire title regularly, “the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40.” 304. The constitutional and statutory position is unequivocal. Article 40(6) of the Constitution withholds protection from property “found to have been unlawfully acquired.” Section 26(1)(b) of the LRA renders a certificate of title impeachable where it “has been acquired illegally, unprocedurally or through a corrupt scheme.” Section 80(1) of the LRA empowers the Court to rectify the register where registration was obtained by fraud or mistake. 305. The 6th Defendant's title traces its origin to a forged Certificate of Lease held by a fictitious entity. Applying the maxim nemo dat quod non habet — no one can give what he does not have JUDGMENT: ELC NO. 160 OF 2013 Page 135 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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— the 1st and 2nd Defendants, holding no valid title, could pass none to the 6th Defendant. As the Court of Appeal observed in Arthi Highway case, the fraudsters did not obtain good title to pass on to the bona fide purchasers. 306. The 6th Defendant’s registration is therefore not protected. It is impeachable under Section 26(1)(b) of the LRA and liable to rectification under Section 80(1). ISSUE No. f). What orders should issue 307. Under this sub-title the Honourable Court shall examine what orders are to issue. The Plaintiff pleaded that the 4 th Defendant's failure to issue an official search and the 5 th Defendant's failure to issue a list of shareholders, directors and secretaries breached its right of access to information under the provision of Article 35. The evidence (pages 273– 275, 279, 295, 297–298, 304 of Plaintiff Exhibit No. 4) shows repeated applications and follow-ups that went unanswered, while CR12 Forms were allegedly issued to third parties over the same company file. This inconsistency is troubling. However, given the substantive reliefs I propose to grant, and the fact that the information has since been supplied through these proceedings, he would make a declaration on this limb but no further order. 308. The 1st and 2nd Defendants' Counter - Claim was founded on the assertion that their company, Leeward Island Limited, lawfully purchased the suit property and was issued a JUDGMENT: ELC NO. 160 OF 2013 Page 136 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Certificate of Lease. For the reasons already given, that assertion fails at the threshold: the entity is fictitious and the documents are forgeries. The Counter - Claim must therefore be dismissed. 309. I note, in passing, the 1 st and 2nd Defendants' submission that the Plaintiff's title was defective because the transfer from Alcop Limited occurred at a time when the lease had been surrendered. That submission is misconceived. The evidence of DW - 3 and DW - 5 establishes that the surrender was effected precisely to facilitate a change of user, and that a fresh lease was issued to Alcop Limited on 29 th May, 1996, following which the transfer to the Plaintiff was registered on 2nd August, 1996. There was, therefore, a valid lease in existence at the time of transfer. ISSUE No. g). Who should bear the costs of the suit and the Counter – Claim 310. It is now well established that the issue of costs is at the discretion of Court. Cost mean the award that is granted to a party at the conclusion of a legal act or proceedings in any litigation. The general principle under the provision of Section 27 of the Civil Procedure Act, Cap. 21 is that costs follow the event, unless the Court for good reason orders otherwise. Costs are awarded to the successful party as compensation for the expense incurred in litigation, not as a penalty to the losing party. JUDGMENT: ELC NO. 160 OF 2013 Page 137 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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311. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well- established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 312. In “Machakos ELC Pet No. 6 of 2013 Party of Independent Candidate of Kenya & another – Versus - Mutula Kilonzo & 2 others [2013] eKLR” quoted the case of “Levben Products – Versus -Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227” the Court held; “It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion (Fripp vs Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at….In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.” 313. In the present matter, the Plaintiff, Leeward Islands Limited, is entitled to costs of the suit against the 1 st, 2nd, 4th, 5th, and 6th Defendants jointly and severally. The Counter - Claim by the 1st and 2nd Defendants is dismissed with costs to the Plaintiff. The 3rd Defendant (Attorney General), having been sued in a JUDGMENT: ELC NO. 160 OF 2013 Page 138 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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representative capacity and not directly implicated in fraud, shall bear no personal liability for costs. X. Conclusion and Disposition 314. Ultimately, having undertaken such an in-depth analysis of the pleadings, evidence, and framed issues herein, the Honourable Court, based on the principles of Preponderance of Probabilities and guided by the balance of convenience, finds that the Plaintiff, Leeward Islands Limited, lawfully acquired registered title to Title No. Mombasa/Block XXVI/510 in August, 1996, following due process of transfer from Alcop Limited, consent of the Commissioner of Lands, clearance of rent and rates, and payment of requisite stamp duty. 315. The Court further finds that the purported parallel incorporation of Leeward Island Limited (without an “s”), together with its alleged Certificate of Lease and subsequent transfer to the 6th Defendant, United Care Limited, was fraudulent, ultra vires, null, and void. The Defendants failed to demonstrate any lawful root of title, valid transfer instrument, or credible corporate existence of the said entity. 316. The Court is satisfied that the Plaintiff’s rights under the provision of Article 40 of the Constitution of Kenya, 2010 (protection of right to property) and Article 35 (right of access to information) were violated by the arbitrary deprivation of property, concealment of registry records, and failure to register subsisting court orders. The Plaintiff was deprived of its property without compensation and without affording it a fair hearing, contrary to the provision of Articles 25 ( c ), 47 JUDGMENT: ELC NO. 160 OF 2013 Page 139 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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(fair administrative action) and 50 ( 1 ) of the Constitution of Kenya, 2010 on fair hearing. 317. In light of the foregoing, and avoidance of any doubt, the Honourable Court proceeds to make the following specific orders: (a) THAT Judgement be entered in favour of the Plaintiff as prayed from the Amended Plaint dated 5 th January, 2017. (b) THAT the Plaintiff’s claim for ownership and injunctive relief over Title No. Mombasa/Block XXVI/510, be and is hereby found to have merit and hence it is allowed. (c) THAT for avoidance of doubt, the 1 st and 2nd Defendants’ Statement of Defence and Counter Claim dated 6th February, 2014 be and is hereby found to lack merit and thus it stands dismissed. (d) THAT a declaration that the Plaintiff, Leeward Islands Limited (with an “S”), is and hereby declared the absolute and lawful registered proprietor of all the leasehold interest in Land Registered land known as Land Reference Number Mombasa/Block XXVI/510 with all indefeasible rights, title and interest vested in it by Law thereof. (e) THAT a declaration that the 1st and 2nd Defendants are neither directors nor shareholders of the Plaintiff, and that the Certificate of Incorporation No. C.65416 serial number GPK 62/43-4m-12/2003IE/6(B14) dated 16th June, 1995 and the Memorandum and Articles of Association dated 16 th JUDGMENT: ELC NO. 160 OF 2013 Page 140 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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May, 1995 documents. in their possession are falsified (f) THAT a declaration that the entry by the Land Registrar, Mombasa of the name “Leeward Island Limited” in the register of Mombasa/Block XXVI/510 as registered proprietor, and the subsequent issuance of a Certificate of Lease to the said entity, were unlawful, null and void, and did not divest the Plaintiff of its lawful interest. (g) THAT a declaration that the Certificate of Lease for Mombasa/Block XXVI/510 issued in the name of “Leeward Island Limited” on 2nd August, 1996 is a falsified document. (h) THAT a declaration that the registration of the 6 th Defendant, United Care Limited, as leasehold proprietor of the suit property was unlawful, null and void. (i) THAT a declaration that the failure by the Land Registrar, Mombasa and the Registrar of Companies to issue official searches and company records to the Plaintiff breached the Plaintiff’s right of access to information under Article 35 of the Constitution. (j) THAT an order do and is hereby issued that the 1 st and 2nd Defendants do surrender the Certificate of Lease for Mombasa/Block XXVI/510 issued to “Leeward Island Limited” and/or to United Care Limited to the Land Registrar, Mombasa for cancellation pursuant to the provision of Sections 79 ( 1 ), ( 2 ) & 80 ( 1 ) & ( 2 ) of the Land Registration Act, No. 3 of 2012. JUDGMENT: ELC NO. 160 OF 2013 Page 141 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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(k) THAT an order do and is hereby issued that the Land Registrar, Mombasa does cancel the Certificate of Lease issued to “Leeward Island Limited” and/or to United Care Limited, and rectify the register in respect of Mombasa/Block XXVI/510 by cancelling all entries inconsistent with the Plaintiff's ownership and reinstating the Plaintiff as the leasehold proprietor. (l) THAT an order do and is hereby issued that the 1 st and 2nd Defendants do surrender the Certificate of Incorporation No. C.65416 in their possession to the Registrar of Companies for cancellation. (m) THAT an order do and is hereby issued that the Registrar of Companies does cancel the Certificate of Incorporation No. C.65416 in the possession of the 1st and 2nd Defendants, and rectify the Companies records in respect of company number C.65416 by cancelling all entries inconsistent with the latest annual return filed by the Plaintiff. (n) THAT a permanent injunction do and is hereby issued restraining the Defendants, whether by themselves or through their servants, employees, agents or any person deriving title through them, from entering, using, occupying, leasing, transferring, charging, selling or in any manner dealing adversely with Mombasa/Block XXVI/510; (o) THAT an order do and is hereby issued directed to the Directorate of Criminal Investigations, Kenya National Police Service, to investigate the circumstances of the creation and issuance of the JUDGMENT: ELC NO. 160 OF 2013 Page 142 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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Certificate of Incorporation No. C.65416 and the Certificate of Lease for Mombasa/Block XXVI/510 in the name of "Leeward Island Limited", and to take appropriate action should the investigations reveal that any crime has been committed;. (p) THAT the 6th Defendant to be at liberty to institute appropriate legal proceedings against 1 st & 2nd Defendants for the re - fund of its monies paid to them and other incidental expenses incurred paid to them in good faith ostensibly for the purchase of the suit land. (q) THAT the Plaintiff shall recover the costs of the suit and the Counter - Claim from the 1st, 2nd and 6th Defendants jointly and severally. The 3rd, 4th and 5th Defendants shall be wholly exonerated from any liabilities arising and/or in relation to the land dispute herein. IT IS SO ORDERED ACCORDINGLY JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT MOMBASA THIS ……2ND ..….DAY OF ……OCTOBER………….2026. …..…..........…………………….. HON. MR. JUSTICE L.L. NAIKUNI ENVIRONMENT AND LAND COURT AT MOMBASA Judgement delivered in the presence of: a) M/s. Firdaus Mbula – the Court Assistant. b) M/s. Onesmus & Mr. Karega Advocates for the Plaintiff. c) Mr. Ngure Advocate for the 1st and 2nd Defendants d) M/s Kiti Advocate for the 3rd, 4th and 5th Defendants e) Mr. Olaba Advocates for the 6th Defendant. JUDGMENT: ELC NO. 160 OF 2013 Page 143 of 143 HON. JUSTICE L.L. NAIKUNI (ELC JUDGE)

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