Mohara v Chacha

plainti applied for ocial search and it come out the registered proprietors were Simangwe Kemero and Magibe Kamero 4. The plainti averred that in the year 2022, the plainti discovered that a succession for the estate of Simangwe Kemero had been lled and indicated that the deceased was the registered owner of all that parcel of land known as ½ share NYABASI/BOMERANI/807 instead of ½ share NYABASI/ BOMERANI/509 and upon inquiry he discovered that NYABASI/BOMERANI/509 had been subdivided to have two numbers being NYABASI/BOMERANI/807 & 808, and the defendant was registered as the proprietor of NYABASI/BOMERANI/807 measuring 1.00HA on 10/5/2001 and issued with a title deed on 27/7/2001. 5. The plainti further averred that he noticed on 5/3/2001 the land NYANBASI/BOMERANI/808 was registered in the names of Simangwe Kemero and Magibe Kamero before it was transferred to SELINA RHOBI CHACHA on 10th May, 2021 and a title issued on 24th July, 2021. The plainti particularized the particulars of fraud as follows: a. Causing subdivision of NYABASI/BOMERANI/509 into two more than one year after the passing on of Simangwe Kemero. b. Registering Simangwe Kemero (deceased) as the proprietor of ½ share of NYABASI/ BOMERANI/808 yet the said Simangwe Kemero on 8/2/2000 was not available to sign the transfer forms to himself. c. Eecting transfer from the said deceased Simangwe Kemero to herself and yet the deceased was not available to appear before the land control board and or sign any documents to transfer title. d. Intermeddling with the estate of the deceased person. e. Transferring the property to herself without involving the family members. 6. That the defendant has never taken possession of the said land as the whole of the said land has been under the occupation of the plainti and his family. The defendant was served but failed to enter appearance or led defence, consequently the case proceeded for hearing on 12/8/2026 as undefended. 7. The plainti PW1 Marwa Simangwe Mohara testied and adopted his written statement led together with the plaint as his evidence in chief, in which he reiterated the averments as contained in the plaint. He produced the documents in his list of documents dated 11/9/2025 as exhibits 1-11 respectively. The plainti then prayed that his prayers in the plaint be granted. The plainti then closed his case. The defendant’s case was also closed. Determination 8. This suit was not defended, nevertheless, the plainti is by law required to proof their case. In the case of Gichinga Kibutha v Caroline Nduku [2018] eKLR, the Court held that: “ It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.” 9. Further, the provisions of Section 107 of the Evidence Act stipulate that: “ Whoever desires any court to give judgment as to any legal right or dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/832/eng@2026-08-26 2

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bound to prove the existence of any fact it is said that the burden of proof lies on that person”. 10. In the case of Charter House Bank Limited (Under Statutory management –vs- Frank N. Kamau [2016] e KLR the court of appeal when discussing the burden of proof on the plainti in a situation where the defendant failed to adduce evidence stated that: “ we would therefore venture to suggest that before the trial court can conclude that the Plainti’s case is not controverted or is proved on a balance of probability by reason of the defendant’s failure to call evidence, the court must be satised that the plainti has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence from the defendant.…………The Plainti must adduce evidence, which in the absence of rebutted evidence by the Defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plainti is not entitled to judgement merely because the Defendant has not testied’’ The rst issue for determination is whether SIMANGWE KEMERO and MAGIBE KAMERO were registered owners of parcel NYABASI/BOMERANI/509 11. On this issue the plainti averred that the two were the registered proprietors of parcel NYABASI/ BOMERANI/509. In proving the same the plainti produced an ocial search showing the two were registered owners on 5/4/1977 which was a rst registration. He also produced a copy of the register commonly referred to us the green card showing they were the initial registered proprietors each owning ½ share of the said land. There is no evidence to the contrary. This issue has been proved to the required standards. The Second issue for determination is whether SIMANGWE KEMERO MOHERAI transferred his land to the defendant 12. On this issue the plainti averred that the defendant subdivided the land and transferred the suit land to herself after the passing on of the deceased. In substantiate the same the plainti produced certicate of death for Simangwi Kemero Moheria showing he died on 8/2/2000. He also produced a mutation form subdividing the suit land into two, which Simangwi Kemero is alleged to have signed on 20/2/2001 by appending his thumb print. The mutation suggests that Simangwi Kemero was present on 20/2/2001 when the survey was done and thumb printed the same. This is not possible as at the time the mutation was prepared, signed and registered the said Simangwi had already died. This means that the same was done fraudulently. 13. The defendant has not tendered any evidence to show how the deceased who had already died and buried resurrected and signed the mutation and transferred the suit land to her. The green card also shows that the suit land now NYABASI/ BOMERANI/808 was transferred to the defendant by the deceased on 10/5/2001 upon a consideration of Kshs. 50,000/=. This again is not possible as the deceased had already died and buried. The defendant has not tendered any evidence showing how she got the title deed and how a deceased person was able to sign and transfer the land. 14. Section 26 of the Land Registration Act, 2012 provides; “ (1)The certicate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/832/eng@2026-08-26 3

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endorsed in the certicate, and the title of that proprietor shall not be subject to challenge, except— 15. (a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” The question therefore is whether the title held by the Plaintis has been successfully challenged as provided for by law. The court have also on several occasions treated the issue of titles as proof of ownership of land with caution in view of the fact that at times the titles are forged or fraudulently procured. See the Court of Appeal decision of Munyu Maina vs. Hiram Gathiha Maina [2013] eKLR, where it was held as follows: “ We state that when a registered proprietor’s root of title is under challenge, it is not sucient 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 legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.” 16. To succeed in claiming fraud, the Appellant not only needed to plead but also particularize it and by laying out water tight evidence upon which the court would make such ndings. It is trite law that any allegations of fraud must be pleaded and strictly proved. I am guided by the Court of Appeal in case of Kuria Kiarie & 2 Others Vs. Sammy Mugera [2018] eKLR where it was held: “ The next and only other issue is fraud. The law is clear and we take it from the case of Vujjay Morjaria Vs. Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA (as he then was) states as follows: “It is well established that fraud must be specically 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.” 17. In our instant case the plainti in our instant case specically pleaded the particulars of fraud and has strictly proved the same. The exhibits produced herein talk for them themselves on the issue of fraud on the part of the defendant. I nd that the plainti has been able to prove his case on the required standards and hereby enter judgment in his favour as against the defendant in the following terms: a. A declaration order is hereby issued that the title for land parcel number NYABASI/ BOMERANI/808 held by the defendant was fraudulently obtained and therefore null and void. b. An order is hereby issued directing the Land Registrar Kuria to cancel the said title and cancel all entries made after the said Simangwe Kemero died and restore the register to NYABASI/ BOMERANI/509. c. Costs of the suit and interest. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/832/eng@2026-08-26 4

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DATED, SIGNED AND DELIVERED IN OPEN COURT AT KEHANCHA ON THIS 26TH DAY OF AUGUST, 2026 VIRTUALLY VIA MICROSOFT TEAMS. J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kigera…….Court Assistant Plainti………..Present Defendants……..Absent Advocate for plainti…….Mr. Oonge present KEHANCHA SPMC ELC NO. E045 OF 2025 (JUDGMENT) 3 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/832/eng@2026-08-26 5

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