Christopher Onsembe Manduku v Kennedy Ogora Mongare & 5 others

2. The Plaintiff stated that on 23rd July, 2015, he received a call from a neighbour who knew him, informing him that the suit parcel was being fenced. After the call, he visited the suit premises and found that the 3rd Defendant was fencing his land. He also learnt that the 3 rd Defendant was claiming to have purchased the land from the 1 st and 2nd Defendants. This information led him to visit the offices of the 4th Defendant to inquire into the circumstances of the 1st and 2nd Defendants' acquisition of ownership of the suit property. 3. He pleaded that through various matters and at various stages which he shall demonstrate at the hearing of this case, his title has been recognised by the Kisii Town Council, Kisii Municipal Council and now the County Government of Kisii. He avers that the title held by the 1st and 2nd Defendants and now the 5th Defendant was fraudulently acquired. 4. He set out the particulars of fraud by each of the Defendants as below: Against the 1st and 2nd Defendants: i. Presenting themselves as the bona fide proprietors of the suit premises well knowing they had no lawful interest therein whatsoever. ii. Procuring the preparation of a Certificate of Lease purporting the same to be duly issued by the 4th defendant 2

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iii. Procuring the preparation of a parallel register at the 4 th defendant’s offices well knowing that the Plaintiff was the lawful proprietor of the leasehold interest comprised in the suit premises. iv. Causing a fraudulent Transfer of Lease instrument to be executed and presented to the 4th defendant’s offices for registration. v. Obtaining money from the 3rd defendant by fraudulent pretences Against the 4th Defendant inter alia: a. Issuing official documents e.g. Certificate of Official Search and Certificate of Lease purporting the 1 st and 2nd defendants to be proprietors of the suit premises well knowing that no such documents were capable of being lawfully issued as the 1st and 2nd defendants have no legal title. b. Purporting to accept and effecting the registration of a Transfer of Lease from a third party well in favour of the 5 th defendant well knowing that the same could not be registered as it was presented in vacuum. c. Destroying the original white card maintained with respect to the title held by the plaintiff over the suit premises and thereafter attempting to create a second unsigned one in a bid to cover/make up for his illegalities upon the suit premises being made by the plaintiff without an application in that behalf by the plaintiff. 3

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d. Creating two different (unsigned) registers to shore up the nonexistent illegal ownership of the suit premises by the 1st and 2nd defendants and thereafter by the 5th defendant purporting the 5th defendant to be the bona fide registered proprietor of the suit premises when it was not to facilitate acquisition by the 5 th defendant of a loan facility from the 6th defendant. 5. The plaintiff avers that, had the leasehold comprised in the suit premises not been transferred to the 1st and 2nd defendants, the latter could not have derived title from any other person as bona fide purchasers, as any other purported title held by any other person and purported to have been transferred to the 1st and 2nd defendants could only have been fraudulent, null and void ab initio, and therefore incapable of being so transferred. 6. The Plaintiff contends that the charge registered in favour of the 6 th defendant over the suit premises is a nullity in law and incapable of conferring the benefit intended thereby as the said legal charge was mounted upon a non-existent title. The plaintiff avers that the said charge is in the circumstances an illegal fetter upon his rights as the bona fide registered proprietor of the suit premises and ought in the circumstances to be declared a nullity, invalid and an illegality. 7. In light of the foregoing, the Plaintiff craves judgment be entered against the Defendants jointly and/or severally that: 4

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a) A declaration that the plaintiff is the sole bona fide proprietor of the leasehold interest comprised in land parcel Kisii / Township/Block 1/ 182 b) A declaration that the purported registration of the 1 st and 2nd defendants as proprietors of land parcel Kisii / Township / Block 1 / 182 and the eventual purported transfer thereof to the 5 th defendant are illegalities and nullities incapable of vesting any interest first upon the 1st and 2nd defendants and thereafter upon 5th defendant. c) A declaration that the charge registered over land parcel Kisii / Township / Block 1 / 182 is an illegality and a nullity ab initio incapable of vesting any interest upon the 6th defendant d) An Order of rectification be issued directed at the 4 th defendant to rectify by expunging all records and entries purportedly made and maintained in registers purportedly opened on 28/11/1985 in favour of the 2nd defendant and on 30/07/2015 in favour of the 5 th defendant and by creation of a lawful register with all requisite correct entries in favour of the plaintiff. e) Cost of and incidental to this suit. 8. The Defendants opposed the suit through their various defences filed. The 1st 2nd and 5th Defendants filed a joint statement of amended defence and counter-claim dated 7th May 2024 denying the Plaintiff’s claim in toto. They plead, inter alia, that the 3rd and 5th Defendants were 5

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registered as proprietors of the suit property upon purchasing it from the 1st and 2nd Defendants, and that the process was procedurally and legally carried out. 9. The 1st and 2nd Defendants denied the particulars of fraud pleaded against them and they put the Plaintiff to strict proof. FURTHER, the 1st, 2nd and 3rd 5th Defendants aver that the Title and the attendant Certificate of Lease, which was issued and/or granted in favour of the 1st and 2nd Defendants, followed lawful and legitimate acquisition of the suit Property, from the original Allotttee in whose favour a valid Letter of Allotment had hitherto been issued by the relevant and concerned Government Authority, to wit, the Office of the Commissioner of Lands. Consequently, no parallel allotment could issue in favour of the Plaintiff. 10. In addition, these Defendants aver that the Plaintiff’s title was fraudulently acquired and set out the particulars of fraud as follows; a. Forging and/or faking (sic) Letter of Allotment. b. Purporting to act on an Invalid and stale Letter of Allotment. c. Presenting and/or causing to be presented Forged Documents. d. Uttering False and Fraudulent Lease Instrument and Certificate of Lease. e. Attempting to defraud the 1st and 2nd Defendants of the Title over and in respect of the suit Property. f. Conniving and colluding with the Municipal Council of Kisii, to 6

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duplicate and fake Title Instrument(s) in respect of the suit Property. 11.They further plead that the Plaintiff’s suit is statutorily barred under section 4 of the Limitation of Actions Act; it is prohibited by dint of section 13(A) of the Government Proceedings Act and that it does not disclose any reasonable cause of action. 12.The 1st -3rd and 5th Defendants brought a counter-claim against the plaintiff aver that they bought, purchased and/or acquired the suit Property, following the sale and subsequent transfer thereof from one, Nyatwanga Israel, who was the Allottee thereof, having been issued with a Letter of Allotment Reference Number 31002/XVII, dated 6th January 1977. They assert that Nyatwanga Israel was registered as owner on 6 th January, 1980. 13.The Counter-Claimers contend that the alleged Certificate of Lease, allegedly issued to and/or in favour of the Defendant to the CounterClaim, on the 12th day of May 1983, was Fraudulent, Irregular and Invalid. Consequently, the said Certificate of Lease, has not conferred and/or bestowed the Defendant to the Counter-Claim with any lawful rights over and in respect of the suit Property. 14.It is in the premises that the 1 st to 3rd and 5th Defendants are seeking judgment against the Plaintiff in their counter-claim as follows: 7

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a. An Order for Cancellation and/or Nullification of the Certificate of Lease, (sic) issued to and in favour of Defendant to the Counter Claim, together with (sic) the Register containing the name of the Defendant to the Counter Claim. b. Permanent Injunction restraining the Plaintiff/Defendant to the Counter-Claim either by himself, agents, servants and/or anyone claiming under the Defendant to the Counter-Claim, from entering upon, trespassing onto, re-entering, building on, alienating, selling, transferring and/or otherwise interfering with LR NO. KISII MUNICIPALITY/BLOCK 1/182, whatsoever and/or howsoever. c. General Damages for Trespass, together with interest thereon at Court rates (14%) from the Date of Judgment. d. Costs of the suit and the counter-claim e. Such further orders as the court deems just to grant. 15.The 4th Defendant, who is the Land Registrar, filed a replying affidavit on 8th February, 2016 without a statement of defence. 16.The 6th Defendant filed a statement of defence dated 16 th July, 2024 stating that it is a stranger to the averments in the amended plaint that the Plaintiff is the registered proprietor of Kisii Municipality/ Block 1/182 pursuant to an allotment letter dated 26 th January, 1981. It also pleaded 8

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being a stranger to the facts pleaded under paragraphs 7-10 of the amended plaint. 17.The 6th Defendant particularly admits the contents of paragraph 11 of the Amended Plaint to the extent that on the 3rd November 2016, the 6th Defendant-Bank entered into a chargee-chargor relationship with the 5th Defendant for advancement of a facility of Kshs.5,000,000/ ; whereon the suit parcel being KISII/ MUNICIPALITY/ BLOCK I/182 was voluntarily offered as security. 18.That further to the above, the 6th Defendant is a stranger to the Itemised Particulars of Fraud attributed to the 1t and 2nd Defendants as enumerated in A (i) - (vi) and the Particulars of Fraud attributed to the 4t Defendant as enumerated in B (1) - (8) at Paragraph 13. The Plaintiff is put to strict proof thereof. It also denies the averment that the charge registered in their favour is a nullity. 19.The 6th Defendant states that the Plaintiff has materially misstated and misrepresented the facts giving rise to any fraudulent claim against the 6" Defendant and in particular, the evidence adduced does not give rise to any claim against the 6th Defendant PARTICULARS OF MIS-STATEMENT AND MISREPRESENTATION i. The Plaintiff has failed to obtain sufficient, reliable information more specifically regarding Title Number KISII/ MUNICIPALITY/ BLOCK 9

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I/182 in the name of the 5th Defendant, proffered as security to the 6th Defendant. ii. The Plaintiff has failed to demonstrate how the 6th Defendant's actions, if any, were wilful, corrupt, non-procedural and/or illegal. 20.The 6th Defendant avers that the Plaintiff's suit is frivolous, vexatious, and brought in bad faith and is a misguided attempt to curb the 6th Defendant's endeavours, to extort and to victimise the 6th Defendant for its zealous provision of financial services in its lawful and ordinary course of business and at the appropriate time the 6th Defendant shall move the court to have the entire Amended Plaint struck off. It urged this court to dismiss the Plaintiff’s suit with costs. 21.The hearing in the matter first commenced on 2 nd October, 2019 before Justice Jane Onyango with Mr Steve Mokaya, the Land Registrar Kisii and the Plaintiff giving their testimonies. However, in the course of the hearing, a need arose to amend the plaint to include the 5th and 6th Defendants, and with leave of the court, the plaint was amended. 22.Consequent to the amendment, the advocates on record for the parties agreed to have the hearing start de novo. Hence, Justice Munyao Sila took the evidence afresh but did not write the judgment following his promotion to the Court of Appeal in January 2026. 23.The Plaintiff testified on 13th October, 2025 stating that he worked with the Ministry of Health, MTC Kisii as an administrator and teacher until 10

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he retired in 1989. It is evidence that he acquired the suit property in 1980 after he read an advertisement in the Kenya Gazette. He applied, paid Kshs 100 for the form and Kshs 1000 deposit for the plot. He produced copies of receipts for these payments as Pex. 1 and 2 respectively. 24.He avers that he was issued with a letter of allotment dated 26 th January, 1981 and produced a copy as Pex. 3. Pw1 continued that the allotment letter had special conditions and he was issued with demand note for rates dated 12th February, 1981 produced as Pex4. He went ahead to accept the letter of allotment and produced the acceptance letter dated 29 th February, 1981 as Pex. 5. Also produced are money order requisition as Pex. 6 and money order counterfoils as Pex.7. 25.Pw1 continued in evidence that he was issued with receipts no. A432208 for these payments (Pex 8) and subsequently the Commissioner of Lands forwarded the Lease to the Land Registrar Kisii vide the letter dated 28 th March, 1983 now produced as Pex.10. He stated that he received the original lease which he had and produced a copy as Pex.11 together with a payment receipt for the lease dated 3rd May 1983 (Pex. 12). Thereafter the witness said he was issued with a certificate of Lease which he produced as Pex. 13. 26.The Plaintiff also produced a demand note for rates from the Kisii Town Council dated 3 September 1982 and receipts used to pay for the rates demanded as PEx. 14 and 15 respectively. He added that at some point in 11

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1985, he used the suit title to secure a loan from KCB Bank and produced copies of the application for registration of the Charge as Pex 15. He also took another loan on 30th January 1990 and produced the letter of offer as Pex. 19 and a search confirming the entry of the Charge as Pex. 20. The letter of no objection from the County Council was produced as Pex. 23. 27.The witness further produced receipts for payments made to the Ministry of Lands in 1990 and for the discharge of charge, as Pex. 25-29. He also produced demand notes for rates for subsequent years and receipts issued as Pex. 31-39, 45, and 47. Additionally, he produced as Pex. 41 and 42 a Plaint in Kisii PMCC 546 of 1990, in which he had been sued to recover rates. 28.Lastly, the Plaintiff said he came to court because someone grabbed his land, the name of which appears in the agreement dated 1st July, 2015. The agreement was produced as Pex. 48. He also produced the affidavit sworn by David Dunya Omol, the Land Registrar, dated 8th February, 2016. He referred to paragraph 16 of that affidavit, which confirmed that the Lease in his favour was received for registration on 30th May 1983. He contests the Defendants' documents, hence this suit. 29.In cross-examination by Mr Wabwile, counsel for the 4th Defendant, the Plaintiff stated that he received the letter dated 25.1.2016 (Pex. 49) from his advocate. In this letter, his advocate was copied, and the Land Registrar wrote to the Chief Land Registrar to confirm which of the two 12

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sets of documents was genuine. He affirmed that he has not received a reply to this letter. He insisted on paying the monies stated on the face of the allotment letter. 30.Under cross-examination by Mr Mulisa for the 1st 2nd 3rd and 5th Defendants, PW1 said he learnt about the availability of the plot in 1979 pursuant to a gazette notice. He applied by 26.11.1979 at noon although he did not have a copy of his application letter. He admitted there was no plan attached to the allotment letter but the area is given as 0.081ha for a term of 99 years from 1.12.1980. 31.PW1 affirmed that payments stated on the allotment letter was to be made in 30 days with some payments directed to the Council and to the Ministry of Lands. He confirmed that according to the gazette notice, the allotment was to be issued under the Trust Land Act cap 288but the lease was issued under the Registered Land Act, Cap 300. He admitted not developing the land within 24 months as stated in the lease. 32.Further, in regard to the loan taken from KCB, the Charge was registered on 16.10.1985 while the discharge of charge was registered on 29.07.1983. He was not aware that the property had been allocated earlier to Nyatwanga Israel on 6.1.1977. He admitted that a PDP was attached to Mr Israel’s letter of allotment. Similarly, he was shown the letter dated 16.7.1980, reference Block 1/182, forwarding the lease in favour of 13

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Nyatwang’a Israel. He affirmed the documents issued to Nyatwang'a Israel were dated earlier than his, but it did not mean they were correct. 33.He stated further in cross-examination that the suit property is not developed. Shown the white card filed by the Defendants, the Plaintiff said he did not have a similar document. He was not aware the plot was sold in 2015. In re-examination, the witness said the allotment letter to Nyatwanga Israel described the plot as an unsurveyed residential plot, while his letter gave the plot number. He added that he did not see any gazette notice prior to 1977 and insisted that he paid all the premiums stated on the allotment letter. The Plaintiff then closed his case. 34.The record does show that when the defence hearing commenced, the 1 st Defendant was absent hence his case was closed. The 2 nd, 3rd and 5th Defendants refused to testify on 24. 11.2015, after sacking their advocate on record. Their application for adjournment was refused and the judge proceeded to close their case. They made a formal application dated 1 st December, 2025 to be given an opportunity to give evidence but which application was dismissed on 26.2.2026. 35.The 6th Defendant gave its evidence through the testimony of James Waliaula Wekunda who introduced himself as the current branch manager of KCB Kilgoris. As at 20th August 2024, when he recorded his statement, he was the Assistant Credit Manager, Kisii West Branch. 14

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36.That sometimes on 7th September 2016, Mr Charles Oteki Rioba, the 3rd Defendant, trading as Water Resource International Company Limited, approached the Bank for an SME Credit facility to the tune of Kshs. 5,000,000/=. Vide a Letter of offer dated 26th September 2016, the 6th Defendant advanced an SME loan of Kshs. 5,000,000/= to Water Resource International Company Limited, the borrower, which loan was to be repaid in equal monthly instalments of Kshs. 103, 264/= over a period of 36 months. 37.That it was a specific term of the Letter of Offer at Clause 8 that the said facility was amongst other securities, secured by a Legal Charge over Title Number KISII MUNICIPALITY/BLOCK I/182 registered in the name of the 5th Defendant herein, Safcor Investments (K) Limited. 38.The 6th Defendant stated that, as part of its mandatory due diligence, it instructed Adomag Valuers and Associates to inspect the suit property. The inspection was carried out on 26th September 2016, and a valuation report dated 27th September 2016 was prepared. The report indicated that the suit property was registered in the name of the 5th Defendant and that the title was free from encumbrances. A search and a Registry Index Map were annexed to the report in support of those findings. The property was valued at Kshs. 8,400,000, with a forced sale value of Kshs. 6,300,000. Relying on the due diligence findings, the 6th Defendant prepared a 15

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charge instrument dated 3rd November 2016. Upon execution and attestation by the borrower and the requisite parties, the instrument was lodged at the Kisii Land Registry. Following approval by the Land Registrar, a charge was registered against Title Number KISII/MUNICIPALITY/BLOCK I/182 in favour of the 6th Defendant on 3rd November 2016. 39.The 6th Defendant denied any involvement in or facilitation of fraud in relation to the suit property, stating that it followed the requisite procedures before advancing the SME loan facility. It maintained that the charge registered over land parcel KISII/MUNICIPALITY/BLOCK I/182 was valid and lawful, having been created on the basis of an existing title registered in the name of the 5th Defendant. The 6th Defendant further contended that the Plaintiff was a stranger to the Bank, being neither the registered proprietor, chargor nor borrower, and that the Bank’s records identified the 5th Defendant as the registered proprietor. It therefore argued that no fraud or illegality had been pleaded or proved against it and urged the Court to dismiss the suit with costs. 40.The witness was cross-examined by Mr Wabwire Counsel for the 4 th Defendant and Mr Were appearing for the Plaintiff. He said that at the branch level, they don’t keep a data base for properties offered as security. Hence, he could not tell that the same property was used to secure a loan in 1985 from KCB. He explained how they conduct due 16

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diligence which includes assessing the customer’s business history, appointing an advocate to register the Charges and a valuer to provide value of the property. Looking at the search attached to their valuation report, he could not tell who applied for the search or if it was paid for. 41.He was shown Pex. 13 which reads Kisii Township/Block 1/182 which he said could be referring to the same land charged to them which reads Kisii Municipality/ Block 1/182. He also said the charge in favour of the Plaintiff appears to have been issued by KCB as shown in Pex. 17. In rexeamination, the witness stated that when disbursing the loan, they were not aware the suit property was contested. This was the end of the 6th Defendant’s case. Submissions 42.The hearing closed and parties were granted time to file their respective submissions. It is only the Plaintiff and the 6 th Defendant who filed the submissions. 43. In their submissions dated 28th November, 2025, the Plaintiff opened his submissions by summarising the pleadings filed in court and the evidence adduced. He then raises two questions which he analysed in his submissions thus; a. Who between the plaintiff and the 5th defendant holds a bona fide title over Municipality/Block I/182. 17 land parcel L.R. No. Kisii

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b. Based on the determination of issue no.1, what reliefs ought the court to grant. c. Who should bear costs of the suit? 44. The Plaintiff submitted that both parties pleaded fraud against each other which required a higher standard of proof and cited the case of Demutila Nanyama versus Salim Mohamed Salim [2021] KECA 595 (KLR). The Plaintiff also cited the court of appeal in Munyu Maina v Hiram Gathiha Maina [2013] eKLR where it interpreted the tenor and purport of Section 3A of the Appellate not to give undue regard to technicalities. 45. The Plaintiff contends identified the documents he produced in support of his case submitting that he complied with all processes in acquiring his certificate of lease. In comparing the process adopted by the 5 th Defendant in acquiring its title, the Plaintiff cited the Court of Appeal in the case of CMC Aviation Ltd versus Kenya Airways Ltd (Cruisar Ltd) (1978) KECA 9 (KLR) which held thus; “The pleadings contain the averments of the three parties concerned. Until they are proved, or disproved, or there is admission of them or any of them by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. As stated in the definition of "evidence" in section 3 of the Evidence Act, evidence denotes 18

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the means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved. Averments are matters the truth of which is submitted for investigation. Until their truth has been established or otherwise they remain unproven. Averments in no way satisfy, for example, the following definition of evidence” in Cassell’s English Dictionary, p.394.” 46. He continued in his submissions that even without the testimony of the 1st to 5th Defendants, there are gaps in the documents filed inter alia, a purported letter of allotment dated 4.1.1977 was not supported with gazette notice no. 3055; Nyatwanga Israel purported to comply the terms of the allotment on 13.8.1980; the Lease document was received for registration on 6.8.1985 vide a presentation book no 142 of 1980. He also noted that no consent to transfer from Nyatwanga to the 1 st and 2nd Defendants was obtained. 47. The Plaintiff argues that the basis upon which the 5th defendant acquired title was not demonstrated because; (a) No application by 1st and 2nd defendants for consent to transfer the suit premises to the 5th defendant was exhibited. (b) No fees for consent to transfer the suit premises to the 5th defendant was shown to have been paid. 19

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(c) Payment of duties was not shown to have been done. (d) No Transfer of Lease executed in favour of the 5th defendant was supplied. 48. He contends further that the 5th Defendant acquired title in the face of a court order issued on 28 th July, 2015 forbidding dispositions with respect to the suit property. That Israel Nyatwanga not having possessed a good title had nothing to transmit to the 1st and 2nd defendants. A nullity can only bring forth nullities. The 1st and 2nd defendants had nothing to give, either to the 3rd defendant who it is shown they sold the suit premises to, or the 5th defendant who is the purported, albeit illegal owner of the suit premises. The case of Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR) was cited in support. 48. The Plaintiff states that no evidence was led to prove the counter-claim hence it should be dismissed for want of proof. That the 6 th Defendant having admitted issuing loans to him and the 5th Defendant is a clear admission that the first title held by the Plaintiff is indeed bona fide. 20

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Therefore, he urges this court to allow his claim and dismiss the claim by the Defendants. 49. Vide submissions dated 8th December, 2025, the 6th Defendant also gave a summary of the case of each side and raised two questions for determination: a) Whether the 6 Defendant conducted mandatory due diligence prior to the registration of a charge over Kisii/Township/Block 1/182; b) Whether the resultant charge dated 3rd November 2016 is valid in the circumstances; 50. Referring to paragraph 17 of the amended plaint, the 6 th Defendant submits that the bank carries out due diligence through its assigned advocates and valuers. In their case, the bank issued instructions to Adomag Valuers and Associates, who visited the suit property on the 26th September 2016 and compiled a Valuation report dated 27t September 2016 clearly depicting that the said suit parcel is registered in the name of the 5" Defendant and the same had clean title. A search and a Registry Index Map were attached to the Valuation Report, in support of the findings. 51. It avers that the Plaintiff during cross examination, stated that his title was devoid of a PDP. It was his testimony, that his letter of allotment, did not contain a PDP. That circumstance creates doubt as to the validity of 21

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his title. We are guided by the precedent set out in Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR); “The procedure for the allocation of unalienated land is laid out by the Environment and Land Court in Nelson Kazungu Chai & 9 others y Pwani University [2014] eKLR as follows:" ... It is trite law that under the repealed Government Lands Act, a Part Development Plan must be drawn and approved by the Commissioner of Lands or the Minister for lands before any unalienated Government land could be allocated. After a Part Development Plan (PDP) has been drawn, a letter of allotment based on the approved PDP is then issued to the allotees. It is only after the issuance of the letter of allotment, and the compliance of the terms therein, that a cadastral survey can be conducted for the purpose of issuance of a certificate of lease. ( ... ) "Secondly, all the defence witnesses were unanimous that in the normal course of events, planning comes first, then surveying follows. A letter of allotment is invariably accompanied by a PDP with a definite number. ( ... )These are then taken to the department of survey, who undertake the surveying. Once the surveying is complete, it is then referred to the Director of Surveys for authentication and approval. Thereafter, a land reference 22

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number is issued in respect of the plot 132. A part development plan (PDP) can only be prepared in respect to Government land that has not been alienated or surveyed ... " 52. The 6th Defendant also submitted on the importance of compliance with the registration process citing the holding in the case of Mwilu (Suing as the Administrator of the Estate of Agnes Ndwale Mwilu) v Mwilu [2024] KEMC 20 (KLR), and the provisions of section 26 of the Land Registration Act. The 6th Defendant posits that it did not at any time propagate or abate any fraudulent activities in liaison with any of the Defendants herein particularly the 5th Defendant as due procedure was strictly followed by the Bank before the advancement of the SME loan Facility. That the charge registered in favour of the 6 th Defendant-Bank over land parcel Kisii/ Municipality/ Block I/182 is indeed valid and legal and capable of transferring any interest as the same was premised on an existent title; which title is in the name of the 5th Defendant. 53. On the question of whether their charge is valid, the 6 th Defendant argues that since the 5th Defendant was the registered owner of the suit property, it had absolute rights including but not limited to guaranteeing advancements and charging. It relies further in the case of Mwilu vs Mwilu supra where it was held thus: “In the original scheme of the Torrens system, the doctrine of indefeasibility is fortified by the doctrine of innocent purchaser 23

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for value who is then deemed to hold a good title, provided the register reflected the seller as the owner and the purchaser did not participate in the impugned fraud. This doctrine of indefeasibility extends to charges, mortgages and property acquired through auctions as result on the exercise of the power to sell under the said charges and mortgages too. Unless there is proof that a chargee participated in the impugned illegality, an innocent chargee without notice of fraud or illegality gets a good indefeasible security. It concluded by asking the court to hold that the 6th Defendant charge is valid.” ANALYSIS AND DETERMINATION: 54. From the reading of the pleadings filed, there is no dispute that there are two sets of titles to the suit land. The first set is one held by the Plaintiff as the original claiming he is the owner of the land. The second set was originally owned by Nyangwata Israel who is said to have sold and transfer the land to the 1st and 2nd Defendants. Subsequently, the 1st and 2nd Defendants sold it to the 3rd Defendant and later on to the 5th Defendant. Thereafter, the 5th Defendant charged the property to the 6 th Defendant. 55. Consequently, there are only two issues for determination; A. which of the two titles is valid? 24

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B. Can the charge in favour of the 6th Defendant stand? 56. The Plaintiff through counsel correctly submitted on the burden of proof. This is provided for under section 107 of the Evidence Act, which provides thus “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” 57. In addition, the dispute was centred on fraud and forgery, which required either party alleging fraud to prove it to a higher standard than the balance of probabilities. In the Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows: “It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 25

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58.On the one hand, the Plaintiff went into great lengths to produce several documents in support of his case. I have already identified the documents in the summary of the plaintiff’s evidence and will just point out a few here. The Plaintiff is his submissions pointed to this court that his letter of allotment referred to the plot number as Block 1/182 which number was also contained in the gazette notice dated 19 th October 1979. He said that the allotment letter for Nyatwanga Israel referred to the land as an unsurveyed plot; thus, it is not corroborated by the gazette issued in 1979. 59. He produced receipts confirming he paid the standing premiums as required in the letter of allotment and rates clearance certificate from the Kisii Town Council dated 31st December, 1981. In this document, the Council confirms the Plaintiff was the owner of Kisii Town Block 1/182. Subsequently, a lease in his name was forwarded to the Land Registrar Kisii for registration before he was issued with a certificate of lease dated 12th May, 1983. 60. The Plaintiff also produced several communications addressed to him in the 1980s by the then Kisii Town Council demanding payment of rates. Besides the demand letters, the County Council sued him in RMCC 546 of 1990 for recovery of outstanding rates stated at Kshs 1,376 accrued over Land Parcel Block 1/182. He produced evidence of settling the debt through the Mereka & Co advocates, who were representing the Town Council in the matter. 26

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61. On the hand, the 1st , 2nd , 3rd and 5th Defendants also filed several documents to support the authenticity of the title document they were holding. The documents included a letter of allotment to Nyatwanga Israel issued in 1977 and a lease registered in his name on 23 rd July, 1980. This lease was received for registration on 6 th August 1985 vide PB No. 142 of 1980. They pleaded that Nyatwanga Israel sold the land to the 1 st and 2nd Defendants. Subsequently, in 2015, the 1st and 2nd Defendants transferred the land pursuant to a sale agreement dated July 2015. 62. This court was to compare the evidence adduced by the Plaintiff and that of the 1st – 3rd and 5th Defendants in determining which set of title is valid. Unfortunately these defendants didnot testify to produce the douments they had lodged in court. In the case of CMC Aviation Ltd versus Kenya Airways Ltd (Cruisar Ltd) supra cited by the Plaintiff, the Court of Appeal held ”As stated in the definition of “evidence” in section 3 of the Evidence Act, evidence denotes the means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved. Averments are matters whose truth is submitted for investigation. Until their truth has been established or otherwise, they remain unproven.” 63. From the above holding, it follows that this court cannot refer to the documents filed by the 1st, 2nd, 3rd and 5th Defendants as they do not 27

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form part of the evidence. The documents produced by the Plaintiff were consistent of due process and they were not impeached during crossexamination. The main challenge taken up is the date of the allotment and registration of the Plaintiff’s title, which the Defendants argued was after the allotment and title issued to Nyatwanga Israel. 64. This point fails on two fronts: first, as already stated, the documents in support of the title tracing root to Nyatwanga are not part of the evidence before this court. Second, there is no evidence led that the Plaintiff’s documents were fraudulent. Although Nyatwanga’s allotment seemed dated earlier, the Plaintiff has demonstrated with clarity the root of his title which showed that as at the time of allocation, the land was already surveyed as shown in the gazette notice dated October, 1979. 65.Therefore, if the same plot, which was unsurveyed in 1977 and allocated to Nyatwanga, is the one that became Block 1/182, the blame lies with the allocating authority for allotting the same plot twice. The allocating authority invited bids vide the gazette notice of October 1979, raising the question of whether it is the same land earlier allotted to Nyatwanga Israel. The 1st and 2nd Defendants did not lead evidence to show that the Plaintiff was aware of the allocation of the land to Nyatwanga or that the Plaintiff was colluding with the allocating authority to acquire the suit land. 28

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66. In light of the foregoing analysis, my answer to the first question is positive in favour of the Plaintiff that there is no evidence led to impeach his title. He is entitled to the relief of a declaration that he is the rightful owner of the suit land. There was no evidence led to support the prayers sought in the counter-claim, and the only order I can make is that of dismissal for lack of merit. Status of 6th Defendant’s Charge; 67. The next question is, what is the status of the legal charge over the suit property? The legal charge in favour of the 6th Defendant was registered over the 5th Defendant’s title, which traces its root to the allotment of Nyatwanga Israel. The 6th Defendant testified and stated that he undertook due diligence before accepting the said title as security for the loan advanced to the 5th Defendant. 68. There is no dispute which arose regarding the loan advanced to the 5 th Defendant. There is also no dispute that a charge was registered over the title held by the 5th Defendant to secure the interest of the 6th Defendant. The 6th Defendant’s concern is now what happens to its interests in light of the parallel claim of ownership. 69. The 6th Defendant did not adduce evidence of advancing any money to the Plaintiff meaning that the charge cannot be transferred to the Plaintiff’s title. It is also trite law that one parcel of land cannot have two title deeds hence where the title of the Plaintiff is now declared as the 29

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valid one, the title documents held by the 5th Defendant must be expunged from the record. I believe their expunging does not mean the loan owed is written off. The 6th Defendant still has a recourse to follow to recover its money. 70. For the purposes of this case, the registration of the Charge does not stop this court from declaring as I hereby do that the 5 th Defendant does not hold a valid title over the suit property. 71. In conclusion, I dismiss the counter-claim raised by the 1 st , 2nd , 3rd and 5th Defendants. I enter judgment for the plaintiff as prayed in the plaint as follows; a. A declaration is given that the plaintiff is the sole bona fide proprietor of the leasehold interest comprised in land parcel Kisii / Township/Block 1/ 182 b. A declaration that the purported registration of the 1 st and 2nd defendants as proprietors of land parcel Kisii / Township / Block 1 / 182 and the eventual purported transfer thereof to the 5th defendant are illegalities and nullities incapable of vesting any interest first upon the 1st and 2nd defendants and thereafter upon 5th defendant. c. A declaration that the charge registered over land parcel Kisii / Township / Block 1 / 182 is an illegality 30

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and a nullity ab initio incapable of vesting any interest upon the 6th defendant d. An Order of rectification be issued directed at the 4 th defendant to rectify by expunging all records and entries purportedly made and maintained in registers purportedly opened on 28/11/1985 in favour of the 2nd defendant and on 30/07/2015 in favour of the 5th defendant and by creation of a lawful register with all requisite correct entries in favour of the plaintiff. e. Costs of and incidental to this suit. Dated, signed and delivered at Kisii this 1st day of October, 2026. A. OMOLLO JUDGE 31

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