1. The 1st Plaintiff suing as the legal representative of the estate of JOHN KHASINO KHASABURI (hereinafter KHASABURI) and the 2nd Plaintiff suing as the legal representative of the estate of FREDRICK OJIAMBO MBOKO (hereinafter MBOKO) moved to this court vide their amended plaint dated 26th April 2023. They impleaded the 1st Defendant sued as the legal representative of the estate of DOMIANO AUMA BULUMA (DOMIANO) the LAND REGISTRAR BUSIA as the 2nd Defendant and the DIRECTOR OF CRIMINAL INVESTIGATIONS, JOHN OJIAMBO MBOKO and CHRISTOPHER KENYATTA AUMA (the 1st, 2nd and 3rd Interested Parties respectively). The Plaintiffs sought Judgment against the Defendants in respect to the land parcel NO. SAMIA/WAKHUNGU/ODIADO/1206 (the suit land) as follows:
a) A declaration that DOMIANO AUMA BULUMA and the 2nd Defendant have violated the 2nd Plaintiff’s constitutional rights and those of the estate of FREDRICK OJIAMBO MBOKO as to ownership of property.
b) A permanent injunction restraining the 1st Defendant and/or his agents or successors in any other way dealing with the land known as SAMIA/WAKHUNGU/ODIADO/1206.
c) Cancellation of the transfer and cancellation of registration of the suit land in the name of the late DOMIANO AUMA BULUMA.
d) An order directing the Land Registrar Busia to rectify the register by registering the suit land in the name of the 1st Plaintiff.
e) An order directing the 1st Defendant to execute all necessary documents and transfer the suit land to the 2nd Plaintiff and/or the Administrator of the estate of the late FREDRICK OJIAMBO MBOKO.
f) Damages for unlawful occupation of the suit land by the late DOMIANO AUMA BULUMA and the 1st Defendant since 1997 to the present.
g) Costs of the suit.
h) Any other relief the court deems fit.
2. The basis of the Plaintiffs’ case is that at all material times the deceased KHASABURI was the registered proprietor of the suit land measuring approximately two (2) acres. That on or about 1998, the late KHASABURI entered into a covenant with the late MBOKO for the sale of the suit land at a consideration of Kshs. 50,000/-. The purchase sum was staggered until the full purchase price was paid and in 1998, KHASABURI passed on leaving the 2nd Plaintiff and his siblings who were minors then. DOMIANO then moved onto the suit land as a guardian since the 2nd Plaintiff was a minor. Upon the demise of KHASABURI, DOMIANO has over the years informed the 2nd Plaintiff and the general public that he (DOMIANO) was the custodian of the suit land on behalf of the children of the late MBOKO having witnessed the agreement between KHASABURI and MBOKO. The Plaintiffs however discovered that the late DOMIANO and in collusion with the Land Registrar Busia the 2nd Defendant had fraudulently caused the suit land to be registered in DOMIANO’s name. Particulars of the fraud are stated in paragraph 13(a) to (d) as follows:
(a) Exploiting purported guardianship over the 2nd Plaintiff and his siblings to get close to the Estate of MBOKO.
(b) The late MBOKO misrepresenting that the late KHASABURI sold the suit land to him.
(c) Fraudulent transfer and subsequent registration of the suit land in the name of the late DOMIANO.
(d) The late DOMIANO procuring registration of the suit land without due process of the law.
3. The 2nd Plaintiff avers that his constitutional rights as to ownership of the suit land qua beneficiary of the estate of the deceased MBOKO has been violated by the 1st and 2nd Defendants. Thus necessitating this suit.
4. The Plaintiffs recorded their statements dated 13th October 2021.
5. In his statement, the 1st Plaintiff confirmed that he had obtained a grant of letters of Administration to file this suit on behalf of the estate of KHASABURI while the 2nd Plaintiff had also obtained similar letters to file this suit on behalf of the estate of MBOKO. That KHASABURI sold the suit land to MBOKO vide a sale agreement dated 19th June 1997 in which DOMIANO was only a witness together with his wife. That DOMIANO only resided on the suit land as a care-taker on behalf of MBOKO who passed away before the suit land had been transferred and registered in his name. At no time was the suit land transferred to DOMIANO although he continued to reside on it. Therefore, the registration of the suit land in the name of the 1st Defendant was done fraudulently.
6. In his statement, the 2nd Plaintiff stated that that he is the son to the late OMBOKO and in the process of identifying the deceased’s properties, he discovered that the suit land had been illegally, irregularly and fraudulently transferred. He was advised to lodge a complaint with the Directorate of Criminal Investigations at BUMALA which he did.
7. The Plaintiffs also filed statements of their witnesses FRANCIS DENIS OCHUMBA (PW3), PATRICK WANDERA KHASINO (PW4), BONIFACE KHASINO (PW5) AND MICHAEL WILLIS OJIAMBO (PW6) all dated 13th October 2021.
8. In his statement FRANCIS DENIS OCHUMBO (PW3) stated that he is aware that the suit land belonged to KHASABURI who sold it to MBOKO vide a sale agreement dated 19th June 1997. That he drafted the sale agreement in the presence of the 1st Defendant and his wife who was the only witness. The 1st Defendant also witnessed the subsequent payments of the purchase price. However, MBOKO passed away before the suit land had been transferred in his name and the witness was surprised to learn later that the suit land had been transferred in the name of the 1st Defendant.
9. PATRICK WANDERA KHASINO (PW4) in his statement confirms that the suit land belonged to his late father KHASABURI who sold it to the late MBOKO vide a sale agreement dated 19th June 1997. That DOMIANO was only a witness to the sale agreement together with his wife RISPA. However, MBOKO passed away before the suit land had been transferred in his name and DOMIANO the 1st Defendant has fraudulently transferred it in his name yet he was only a caretaker who now wants to disinherit the beneficiaries of MBOKO.
10. BONIFACE KHASINO (PW5) also stated in his statement that the suit land belonged to his late father KHASABURI who sold it to the late MBOKO on 19th June 1997. That the 1st Defendant DOMIANO and his wife RISPA were only witnesses to the sale agreement. The 1st Defendant remained as a caretaker of the suit land on behalf of MBOKO who passed away before the suit land could be transferred to him. At no point was the suit land sold to the 1st Defendant nor was it gifted to him. The transfer of the suit land to the 1st Defendant was therefore obtained through a fraudulent process.
11. MICHAEL WILLIS OJIAMBO (PW6) is a brother to the 2nd Plaintiff. His statement is to the effect that his father died in 2001 when he was still a minor and over the years, the 1st Defendant has always misrepresented to him and the general public that he (1st Defendant) is only a custodian of the suit land on behalf of the witness and the estate of MBOKO. However, in the process of identifying the deceased’s estate, he discovered that one of the properties of the estate, being the suit land, had been registered in the name of the 1st Defendant.
12. He commenced enquiries on the status of the suit land and discovered that the late KHASABURI had never sold it to the 1st Defendant. He is aware that the late KHASABURI had sold the suit land to MBOKO and that the 1st Defendant was only a witness to the same. That since the suit land was the only land of the late KHASABURI, his estate has been deprived of the same.
13. Attempts to resolve the dispute with the 1st Defendant have been unsuccessful as he is arrogant and evasive. The transfer of the suit land to the 1st Defendant was illegal, irregular and fraudulent and only intended to disinherit the rightful beneficiaries of the estate of the late MBOKO.
14. In support of their case, the Plaintiffs filed the following documents vide their list dated 13th October 2021:
1. Copy of sale agreement dated 19th June 1997.
2. Copy of acknowledgement dated 24th December 1998.
3. Copy of certificate of register for the land parcel NO. SAMIA/WAKHUNGU-ODIADO/1206.
4. Copy of Green Card for land parcel NO. SAMIA/WAKHUNGU-ODIADO/1206.
5. Copy of application for consent.
6. Copy of documents for application for consent to transfer.
7. Copy of proceedings of 11th October 2017 before the Land Registrar Busia following a complaint raised by PATRICK OUMA against DOMIANO with regard to land parcel No. SAMIA/WAKHUNGU-ODIADO/1206.
8. Copy of certificate of search for the land parcel NO. SAMIA/WAKHUNGU – ODIADO and receipts.
9. Copy of Grant Ad Litem issued to the 1st Plaintiff on 21st March 2018 in respect to the estate of KHASABURI.
10. Copy of Grant Ad Litem issued to the 2nd Plaintiff on 10th December 2018 in respect to the issue of MBOKO.
11. Copy of death certificate in respect of KHASABURI.
12. Copy of death certificate in respect of MBOKO.
13. Copy of OB FOR 20.4.2019.
14. Copy of letter dated 29th September 2017 from the Assistant Chief Wakhungu PATRICK OKWARO addressed to the LAND REGISTRAR BUSIA.
15. Copy of letter dated 2nd January 2018 from Chief AGENGA Location MACMILLAN MAUNDU addressed to whom it may concern.
16. Copy of letters dated 3rd January 2018 from Odiodo Location JANE ODIADO addressed to whom it may concern.
17. Copy of birth certificate for 1st Plaintiff PATRICK EVANS OUMA.
18. Copy of birth certificate for MICHAEL WILLIS OJIAMBO (PW6).
15. The 1st Defendant DOMIANO, (who was later substituted with CHRISTOPHER KENYATTA AUMA) filed a defence dated 11th April 2018 in which he denied that he had acquired the suit land fraudulently. He added that he acquired it lawfully and put the Plaintiffs to strict proof. He also added that the Plaintiffs lack the locus standi or capacity to file this suit and a preliminary objection would be taken at the earliest opportunity.
16. Prior to his demise DOMIANO had filed a statement dated 11th April 2018 in which he stated that around the year 1997, he purchased the suit land from KHASABURI at a consideration of Kshs. 70,000/- which was paid in instalments. The last instalment was paid on 24th December 1999. A purchase agreement was executed plus the relevant transfer documents and he obtained the title thereto. That he has lived on the suit land since 1987 to date and never had a dispute with KHASABURI until his demise in 2009. The Plaintiffs have no right to claim the suit land where KHASABURI who was his relative never had any dispute with him. That the 1st Plaintiff being a mason built for him the house in which he lives assisted by the 2nd Plaintiff.
17. Having substituted the 1st Defendant, CHRISTOPHER KENYATTA (DW1) confirmed in his statement dated 11th April 2018 that he is the son of DOMIANO who worked and lived in Mombasa before his retirement in 1989 when he moved to his ancestral home in SAMIA to live among the “ABAKHWERI CLAN”. That KHASABURI who also belonged to that clan asked the 1st Defendant to pay him an appreciation fee for the many years which he (DOMIANO) had been caring for the land. That DOMIANO paid KHASABURI Kshs. 70,000/-. Then DOMIANO built his home in 1995 which is where the witness lives. That prior to the demise of KHASABURI he had wished to be buried in Uganda because of being landless.
18. The 1st Defendant also filed statements from his following witnesses namely; VINCENT JUMA AWORI (DW2), SEBASTIAN WANDERA ODUNGA (DW3) and NICHOLAS MICHAEL ONYANGO (DW4). They all recorded statements dated 11th April 2018 in support of the 1st Defendant’s case.
19. In his statement VINCENT JUMA AWORI (DW2) stated that the suit land belonged to the ABAKWERI CLAN and KHASABURI was holding it in trust for DOMIANO the 1st Defendant. That KHASABURI and DOMIANO lived on the suit land peacefully and even DOMIANO’s son ISAAC ODUORI was buried thereon in 1994.
20. SEBASTIAN WANDERA ODUNGA (DW3) stated in his statement that he knows the suit land very well and DOMIANO has been the only occupant. That apart from DOMIANO, others who purchased land from KHASABURI are PATRICK ODUORI OGAWO, VINCENT ODUORI, MARY SUMBA and OBAKI ODUNGA (deceased). That all of them, including DOMIANO, did not have any issue with KHASABURI.
21. NICHOLAS MICHAEL ONYANGO (DW4) stated in his statement that he is a step brother to the 1st Plaintiff both being children of KHASABURI who died in 2009. That DOMIANO purchased the suit land from KHASABURI and the sale agreement which the 1st Plaintiff is relying on is a complete forgery. That long before that sale agreement, DOMIANO was already in occupation of the suit land. That his mother (MARIA KHASIANO) was the one who received the proceeds from the sale agreement.
22. DOMIANO the 1st Defendant filed the following documentary evidence in support of his case vide a list of documents dated 5th November 2021:
1. Report from the Criminal Investigations Office Nairobi dated 7th September 2020.
2. Finger print form.
3. Exhibit memo
4. Copy of title deed for the land parcel NO. SAMIA/WAKHUNBU-ODIADO/1206.
5. Transfer from dated 15th January 2014.
6. Letters of consent.
23. The 2nd Defendant called as its witness VIOLET LAMU (DW5). She told the court that as the Land Registrar Busia, she had looked at the documents filed in respect of the transaction involving the suit land. She did not see any evidence of fraud in the transfer of the suit land. She produced the Register to the suit land as well as the copy of the transfer. Further adding that the original had been taken by the Investigating Officer who had investigated the matter. She said the documents were in order and the purchaser had duly paid the Stamp Duty and complied with all the necessary legal processes.
24. She produced as the 2nd Defendant’s documents the following:
1. Register for the Land Parcel No. SAMIA/WAKHUNGU/ ODIADO/1206.
2. Copy of the Transfer Form dated 23rd October 2007.
3. Register for the land parcel No. SAMIA/WAKHUNGU/ ODIADO 15, 1203, 1204, 1205 and 1206.
4. Adjudication Record for the land parcel No. SAMIA/ WAKHUNGU/ODIADO/15.
5. Transfer of the land parcel No. SAMIA/WAKHUNGU/ ODIADO/15 from PETERO MUCHERE and KWENA MADARA to JOHN HASINO KHASABURI.
6. Mutation form for the sub-division of the land parcel No. SAMIA/WAKHUNGU/ODIADO/15 to create the land parcel No. SAMIA/WAKHUNGU/ODIADO/1203, 1204, 1205 and 1206.
25. CATHERINE SONGWA (DW 6) is a CHIEF INVESTIGATOR OF POLICIE based at the CID HEADQUARTERS IN NAIROBI. She testified on 7th September 2020 and said she has been a finger-print expert for more than 20 years. That on 24th August 2020, she received documents from CPL 78872 PAUL NGESA for examination and analysis if the finger prints on documents A and B were made by the same person. She did what was required of her and produced as the 2nd Defendant’s evidence her report dated 7th September 2020. Document A is the questioned transfer form while document B is the known finger-print from the Registrar of Persons Bureau. She concluded that the finger prints were made by one and the same person being JOHN HASINO KHASABURI. The report and Exhibit Momo Form were produced as exhibits 6 and 7.
26. The hearing commenced on 6th July 2023 and evidenced on 7th November 2024.
27. The parties testified and called their witnesses. They adopted as their evidence the contents of their respective statements which I have already summarized above. They also produced as part of their evidence the documents listed above. And although this court gave the parties up to 26th January 2025 to file their submissions and later extended the time to 13th February 2025, only counsel for the Plaintiffs and the 1st Defendant filed their submissions.
28. I have considered the evidence by the parties as well as the submissions by counsel.
29. The thrust of the Plaintiffs’ case is that the suit land was at all material times the property of KHASABURI who in or about 1998 transferred it to MBOKO who paid the full purchase price. By then, the 2nd Plaintiff was a minor and the 1st Defendant was only living on the suit land on behalf of the 2nd Plaintiff. However, the Plaintiffs have since discovered that the 1st and 2nd Defendants, through collusion, transferred the said land to the 1st Defendant through fraud. Particulars thereof are pleaded in paragraph 13(a) to (d) of the amended plaint and which I need not rehash.
30. The 1st Defendant filed his defence dated 11th April 218 although it is stamped as having been filed on 10th April 2018. He denied that he obtained title to the suit land fraudulently adding that the transfer was lawfully executed.
31. The 2nd Defendant equally denied the averments that it had colluded to fraudulently transfer the suit land to the 1st Defendant.
32. The Plaintiffs’ submissions were filed by MR. WASIKE instructed by the firm of KWEW ADVOCATES LL.P for the Plaintiffs and by MR. WEKESA instructed by the firm of AMANI & WEKESA ASSOCIATES ADVOCATES for the 1st Defendant. The A.G for 2nd Defendant did not file any submissions and the Instructed Parties did not participate in the trial.
33. The issue for my determination is whether the 1st Defendant obtained a good title to the suit land or whether it was in fact obtained fraudulently through collusion with the 2nd Defendant. The 1st Defendant (Domiano’s) testimony was adduced by his son CHRISTOPHER KENYATTA DW1). When he testified on 26th October 2023, the 1st Defendant stated that his late father DOMIANO purchased the suit land at a consideration of Kshs. 70,000/-. He however did not have any sale agreement. On his part, the 1st Plaintiff told the court when he testified on 6th July 2023 that his father KHASABURI sold the suit land to the 2nd Plaintiff MBOKO vide a sale agreement dated 19th June 1997. He added that if the 1st Defendant acquired it in 2014, that acquisition was fraudulent because his father KHASABURI was already dead by then. The sale agreement dated 19th June 1997 bears the name of DOMIANO AUMA as a witness. The transfer by KHASABURI to DOMIANO could not have been done on 23rd October 2007 when KHASABURI had in fact died in 2010.
34. When she testified on 26th October 2023, VIOLET LAMU (DW5) pointed out the various discrepancies in the transfer forms with respect to the suit land from KHASABURI to DOMIANO. In her evidence in chief, she said the documents of transfer of the suit land from KHASABURI to DOMIANO read that the transfer was to DOMIANO AUMA BULUMA while the letter of Consent states that it was to DAMIANO KHASINO KHASABURI. She said the document should bear the same names but although this was an error the transaction was done legally since it met all the other requirements.
35. Then there is the evidence of CATHERINE SONGWA (DW6). She is a document examiner and prepared a report having received from CPL PAUL NGESA some documents for examination. Her evidence was that the specimen finger-prints of KHASABURi matched those appearing on the transfer forms of the suit land to the 1st Defendant. In a case of fraud such as this one, such evidence being that of an expert witness, is crucial especially in view of the 1st Plaintiff’s claim that the 1st Defendant misrepresented the transfer claim. From the evidence of this witness, that cannot be true. KHASABURI did execute the transfer documents. Unless there is reason not to be bound by the evidence of an expert, this court must give such evidence, the weight which it deserves. I see no reason to disagree with this expert evidence adduced by the Document Examiner herein. I must therefore find that KHASABURI did execute the documents transferring the suit land to DAMIANO.
36. It is also clear that the sale agreement between KHASABURI and MBOKO was not signed by the parties. And by the time he died, DOMIANO when in possession and occupation of the suit land. And when he testified on 26th October 2023, DAMIANO’s son CHRISTOPHER KENYATTA (DW 1) confirmed that he was born on this suit land on which he still resides. He denied the suggestion that his late father was only a care-taker of the suit land on behalf of any other person. There is also evidence that DAMIANO was buried on the suit land which is in GULAMWONO village. The 1st Plaintiff said the following when cross-examined by MR. WEKESA on 6th July 2023.
“ I knew DAMIANO AUMA BULUMA well. He was an uncle to my late father. He too was from the ABAKUERI CLAN while my father was from the ABABUKALI CLAN. The ABAKUERI Clan came from GULAMWOYO Village. The ABABUKALI CLAN came from BOLORI Village. That is where I live. It is true that my father lived and was buried in that village. The deceased 1st Defendant on the other hand had lived and was buried in GULAMWOYO village. The land in dispute is in GULAMWOYO village. It is true that the deceased 1st Defendant started living on the suit land in 1994 and even his ISAAC ODUOR was buried on that land. I admit that I built a house on that land in dispute for FREDRICK OJIAMBO MBOKO. That was in 1997 and I only did so as a builder contracted by the said FREDRICK OJIAMBO to do so it was not my home. At that time, the deceased 1st Defendant was also living on the land in dispute but on another portion. As far as I am aware, the said FREDRICK OJIAMBO did not live in the house which I constructed for him”.
37. The totality of all this evidence is that KHASABURI relinquished his right to the suit land after transferring it to DAMIANO who holds a valid title thereto. It is unlikely that the late 1st Plaintiff could have sold the suit land to the 2nd Plaintiff yet given possession to the 1st Defendant. There is ample evidence to demonstrate that the 2nd Plaintiff was essentially a care-taker of the suit land in which was instead sold to DAMIANO.
38. Ultimately therefore and having considered all the evidence herein, I am not satisfied that the Plaintiffs have proved their case against the Defendants.
39. I accordingly issue the following dispositive orders:-
1. The Plaintiffs’ suit is dismissed.
2. The Plaintiffs to meet the costs of the Defendants.
Explanatory notes.
This Judgment was due for delivery on 26th January 2026. However, following my transfer from Busia to Iten Court with effect from 15th January 2026, I had to prioritize my part heard cases. That, coupled with the work in my new stations Iten and Kabarnet has contributed towards the delay in delivering this Judgment. The same is regretted
a) A declaration that DOMIANO AUMA BULUMA and the 2nd Defendant have violated the 2nd Plaintiff’s constitutional rights and those of the estate of FREDRICK OJIAMBO MBOKO as to ownership of property.
b) A permanent injunction restraining the 1st Defendant and/or his agents or successors in any other way dealing with the land known as SAMIA/WAKHUNGU/ODIADO/1206.
c) Cancellation of the transfer and cancellation of registration of the suit land in the name of the late DOMIANO AUMA BULUMA.
d) An order directing the Land Registrar Busia to rectify the register by registering the suit land in the name of the 1st Plaintiff.
e) An order directing the 1st Defendant to execute all necessary documents and transfer the suit land to the 2nd Plaintiff and/or the Administrator of the estate of the late FREDRICK OJIAMBO MBOKO.
f) Damages for unlawful occupation of the suit land by the late DOMIANO AUMA BULUMA and the 1st Defendant since 1997 to the present.
g) Costs of the suit.
h) Any other relief the court deems fit.
2. The basis of the Plaintiffs’ case is that at all material times the deceased KHASABURI was the registered proprietor of the suit land measuring approximately two (2) acres. That on or about 1998, the late KHASABURI entered into a covenant with the late MBOKO for the sale of the suit land at a consideration of Kshs. 50,000/-. The purchase sum was staggered until the full purchase price was paid and in 1998, KHASABURI passed on leaving the 2nd Plaintiff and his siblings who were minors then. DOMIANO then moved onto the suit land as a guardian since the 2nd Plaintiff was a minor. Upon the demise of KHASABURI, DOMIANO has over the years informed the 2nd Plaintiff and the general public that he (DOMIANO) was the custodian of the suit land on behalf of the children of the late MBOKO having witnessed the agreement between KHASABURI and MBOKO. The Plaintiffs however discovered that the late DOMIANO and in collusion with the Land Registrar Busia the 2nd Defendant had fraudulently caused the suit land to be registered in DOMIANO’s name. Particulars of the fraud are stated in paragraph 13(a) to (d) as follows:
(a) Exploiting purported guardianship over the 2nd Plaintiff and his siblings to get close to the Estate of MBOKO.
(b) The late MBOKO misrepresenting that the late KHASABURI sold the suit land to him.
(c) Fraudulent transfer and subsequent registration of the suit land in the name of the late DOMIANO.
(d) The late DOMIANO procuring registration of the suit land without due process of the law.
3. The 2nd Plaintiff avers that his constitutional rights as to ownership of the suit land qua beneficiary of the estate of the deceased MBOKO has been violated by the 1st and 2nd Defendants. Thus necessitating this suit.
4. The Plaintiffs recorded their statements dated 13th October 2021.
5. In his statement, the 1st Plaintiff confirmed that he had obtained a grant of letters of Administration to file this suit on behalf of the estate of KHASABURI while the 2nd Plaintiff had also obtained similar letters to file this suit on behalf of the estate of MBOKO. That KHASABURI sold the suit land to MBOKO vide a sale agreement dated 19th June 1997 in which DOMIANO was only a witness together with his wife. That DOMIANO only resided on the suit land as a care-taker on behalf of MBOKO who passed away before the suit land had been transferred and registered in his name. At no time was the suit land transferred to DOMIANO although he continued to reside on it. Therefore, the registration of the suit land in the name of the 1st Defendant was done fraudulently.
6. In his statement, the 2nd Plaintiff stated that that he is the son to the late OMBOKO and in the process of identifying the deceased’s properties, he discovered that the suit land had been illegally, irregularly and fraudulently transferred. He was advised to lodge a complaint with the Directorate of Criminal Investigations at BUMALA which he did.
7. The Plaintiffs also filed statements of their witnesses FRANCIS DENIS OCHUMBA (PW3), PATRICK WANDERA KHASINO (PW4), BONIFACE KHASINO (PW5) AND MICHAEL WILLIS OJIAMBO (PW6) all dated 13th October 2021.
8. In his statement FRANCIS DENIS OCHUMBO (PW3) stated that he is aware that the suit land belonged to KHASABURI who sold it to MBOKO vide a sale agreement dated 19th June 1997. That he drafted the sale agreement in the presence of the 1st Defendant and his wife who was the only witness. The 1st Defendant also witnessed the subsequent payments of the purchase price. However, MBOKO passed away before the suit land had been transferred in his name and the witness was surprised to learn later that the suit land had been transferred in the name of the 1st Defendant.
9. PATRICK WANDERA KHASINO (PW4) in his statement confirms that the suit land belonged to his late father KHASABURI who sold it to the late MBOKO vide a sale agreement dated 19th June 1997. That DOMIANO was only a witness to the sale agreement together with his wife RISPA. However, MBOKO passed away before the suit land had been transferred in his name and DOMIANO the 1st Defendant has fraudulently transferred it in his name yet he was only a caretaker who now wants to disinherit the beneficiaries of MBOKO.
10. BONIFACE KHASINO (PW5) also stated in his statement that the suit land belonged to his late father KHASABURI who sold it to the late MBOKO on 19th June 1997. That the 1st Defendant DOMIANO and his wife RISPA were only witnesses to the sale agreement. The 1st Defendant remained as a caretaker of the suit land on behalf of MBOKO who passed away before the suit land could be transferred to him. At no point was the suit land sold to the 1st Defendant nor was it gifted to him. The transfer of the suit land to the 1st Defendant was therefore obtained through a fraudulent process.
11. MICHAEL WILLIS OJIAMBO (PW6) is a brother to the 2nd Plaintiff. His statement is to the effect that his father died in 2001 when he was still a minor and over the years, the 1st Defendant has always misrepresented to him and the general public that he (1st Defendant) is only a custodian of the suit land on behalf of the witness and the estate of MBOKO. However, in the process of identifying the deceased’s estate, he discovered that one of the properties of the estate, being the suit land, had been registered in the name of the 1st Defendant.
12. He commenced enquiries on the status of the suit land and discovered that the late KHASABURI had never sold it to the 1st Defendant. He is aware that the late KHASABURI had sold the suit land to MBOKO and that the 1st Defendant was only a witness to the same. That since the suit land was the only land of the late KHASABURI, his estate has been deprived of the same.
13. Attempts to resolve the dispute with the 1st Defendant have been unsuccessful as he is arrogant and evasive. The transfer of the suit land to the 1st Defendant was illegal, irregular and fraudulent and only intended to disinherit the rightful beneficiaries of the estate of the late MBOKO.
14. In support of their case, the Plaintiffs filed the following documents vide their list dated 13th October 2021:
1. Copy of sale agreement dated 19th June 1997.
2. Copy of acknowledgement dated 24th December 1998.
3. Copy of certificate of register for the land parcel NO. SAMIA/WAKHUNGU-ODIADO/1206.
4. Copy of Green Card for land parcel NO. SAMIA/WAKHUNGU-ODIADO/1206.
5. Copy of application for consent.
6. Copy of documents for application for consent to transfer.
7. Copy of proceedings of 11th October 2017 before the Land Registrar Busia following a complaint raised by PATRICK OUMA against DOMIANO with regard to land parcel No. SAMIA/WAKHUNGU-ODIADO/1206.
8. Copy of certificate of search for the land parcel NO. SAMIA/WAKHUNGU – ODIADO and receipts.
9. Copy of Grant Ad Litem issued to the 1st Plaintiff on 21st March 2018 in respect to the estate of KHASABURI.
10. Copy of Grant Ad Litem issued to the 2nd Plaintiff on 10th December 2018 in respect to the issue of MBOKO.
11. Copy of death certificate in respect of KHASABURI.
12. Copy of death certificate in respect of MBOKO.
13. Copy of OB FOR 20.4.2019.
14. Copy of letter dated 29th September 2017 from the Assistant Chief Wakhungu PATRICK OKWARO addressed to the LAND REGISTRAR BUSIA.
15. Copy of letter dated 2nd January 2018 from Chief AGENGA Location MACMILLAN MAUNDU addressed to whom it may concern.
16. Copy of letters dated 3rd January 2018 from Odiodo Location JANE ODIADO addressed to whom it may concern.
17. Copy of birth certificate for 1st Plaintiff PATRICK EVANS OUMA.
18. Copy of birth certificate for MICHAEL WILLIS OJIAMBO (PW6).
15. The 1st Defendant DOMIANO, (who was later substituted with CHRISTOPHER KENYATTA AUMA) filed a defence dated 11th April 2018 in which he denied that he had acquired the suit land fraudulently. He added that he acquired it lawfully and put the Plaintiffs to strict proof. He also added that the Plaintiffs lack the locus standi or capacity to file this suit and a preliminary objection would be taken at the earliest opportunity.
16. Prior to his demise DOMIANO had filed a statement dated 11th April 2018 in which he stated that around the year 1997, he purchased the suit land from KHASABURI at a consideration of Kshs. 70,000/- which was paid in instalments. The last instalment was paid on 24th December 1999. A purchase agreement was executed plus the relevant transfer documents and he obtained the title thereto. That he has lived on the suit land since 1987 to date and never had a dispute with KHASABURI until his demise in 2009. The Plaintiffs have no right to claim the suit land where KHASABURI who was his relative never had any dispute with him. That the 1st Plaintiff being a mason built for him the house in which he lives assisted by the 2nd Plaintiff.
17. Having substituted the 1st Defendant, CHRISTOPHER KENYATTA (DW1) confirmed in his statement dated 11th April 2018 that he is the son of DOMIANO who worked and lived in Mombasa before his retirement in 1989 when he moved to his ancestral home in SAMIA to live among the “ABAKHWERI CLAN”. That KHASABURI who also belonged to that clan asked the 1st Defendant to pay him an appreciation fee for the many years which he (DOMIANO) had been caring for the land. That DOMIANO paid KHASABURI Kshs. 70,000/-. Then DOMIANO built his home in 1995 which is where the witness lives. That prior to the demise of KHASABURI he had wished to be buried in Uganda because of being landless.
18. The 1st Defendant also filed statements from his following witnesses namely; VINCENT JUMA AWORI (DW2), SEBASTIAN WANDERA ODUNGA (DW3) and NICHOLAS MICHAEL ONYANGO (DW4). They all recorded statements dated 11th April 2018 in support of the 1st Defendant’s case.
19. In his statement VINCENT JUMA AWORI (DW2) stated that the suit land belonged to the ABAKWERI CLAN and KHASABURI was holding it in trust for DOMIANO the 1st Defendant. That KHASABURI and DOMIANO lived on the suit land peacefully and even DOMIANO’s son ISAAC ODUORI was buried thereon in 1994.
20. SEBASTIAN WANDERA ODUNGA (DW3) stated in his statement that he knows the suit land very well and DOMIANO has been the only occupant. That apart from DOMIANO, others who purchased land from KHASABURI are PATRICK ODUORI OGAWO, VINCENT ODUORI, MARY SUMBA and OBAKI ODUNGA (deceased). That all of them, including DOMIANO, did not have any issue with KHASABURI.
21. NICHOLAS MICHAEL ONYANGO (DW4) stated in his statement that he is a step brother to the 1st Plaintiff both being children of KHASABURI who died in 2009. That DOMIANO purchased the suit land from KHASABURI and the sale agreement which the 1st Plaintiff is relying on is a complete forgery. That long before that sale agreement, DOMIANO was already in occupation of the suit land. That his mother (MARIA KHASIANO) was the one who received the proceeds from the sale agreement.
22. DOMIANO the 1st Defendant filed the following documentary evidence in support of his case vide a list of documents dated 5th November 2021:
1. Report from the Criminal Investigations Office Nairobi dated 7th September 2020.
2. Finger print form.
3. Exhibit memo
4. Copy of title deed for the land parcel NO. SAMIA/WAKHUNBU-ODIADO/1206.
5. Transfer from dated 15th January 2014.
6. Letters of consent.
23. The 2nd Defendant called as its witness VIOLET LAMU (DW5). She told the court that as the Land Registrar Busia, she had looked at the documents filed in respect of the transaction involving the suit land. She did not see any evidence of fraud in the transfer of the suit land. She produced the Register to the suit land as well as the copy of the transfer. Further adding that the original had been taken by the Investigating Officer who had investigated the matter. She said the documents were in order and the purchaser had duly paid the Stamp Duty and complied with all the necessary legal processes.
24. She produced as the 2nd Defendant’s documents the following:
1. Register for the Land Parcel No. SAMIA/WAKHUNGU/ ODIADO/1206.
2. Copy of the Transfer Form dated 23rd October 2007.
3. Register for the land parcel No. SAMIA/WAKHUNGU/ ODIADO 15, 1203, 1204, 1205 and 1206.
4. Adjudication Record for the land parcel No. SAMIA/ WAKHUNGU/ODIADO/15.
5. Transfer of the land parcel No. SAMIA/WAKHUNGU/ ODIADO/15 from PETERO MUCHERE and KWENA MADARA to JOHN HASINO KHASABURI.
6. Mutation form for the sub-division of the land parcel No. SAMIA/WAKHUNGU/ODIADO/15 to create the land parcel No. SAMIA/WAKHUNGU/ODIADO/1203, 1204, 1205 and 1206.
25. CATHERINE SONGWA (DW 6) is a CHIEF INVESTIGATOR OF POLICIE based at the CID HEADQUARTERS IN NAIROBI. She testified on 7th September 2020 and said she has been a finger-print expert for more than 20 years. That on 24th August 2020, she received documents from CPL 78872 PAUL NGESA for examination and analysis if the finger prints on documents A and B were made by the same person. She did what was required of her and produced as the 2nd Defendant’s evidence her report dated 7th September 2020. Document A is the questioned transfer form while document B is the known finger-print from the Registrar of Persons Bureau. She concluded that the finger prints were made by one and the same person being JOHN HASINO KHASABURI. The report and Exhibit Momo Form were produced as exhibits 6 and 7.
26. The hearing commenced on 6th July 2023 and evidenced on 7th November 2024.
27. The parties testified and called their witnesses. They adopted as their evidence the contents of their respective statements which I have already summarized above. They also produced as part of their evidence the documents listed above. And although this court gave the parties up to 26th January 2025 to file their submissions and later extended the time to 13th February 2025, only counsel for the Plaintiffs and the 1st Defendant filed their submissions.
28. I have considered the evidence by the parties as well as the submissions by counsel.
29. The thrust of the Plaintiffs’ case is that the suit land was at all material times the property of KHASABURI who in or about 1998 transferred it to MBOKO who paid the full purchase price. By then, the 2nd Plaintiff was a minor and the 1st Defendant was only living on the suit land on behalf of the 2nd Plaintiff. However, the Plaintiffs have since discovered that the 1st and 2nd Defendants, through collusion, transferred the said land to the 1st Defendant through fraud. Particulars thereof are pleaded in paragraph 13(a) to (d) of the amended plaint and which I need not rehash.
30. The 1st Defendant filed his defence dated 11th April 218 although it is stamped as having been filed on 10th April 2018. He denied that he obtained title to the suit land fraudulently adding that the transfer was lawfully executed.
31. The 2nd Defendant equally denied the averments that it had colluded to fraudulently transfer the suit land to the 1st Defendant.
32. The Plaintiffs’ submissions were filed by MR. WASIKE instructed by the firm of KWEW ADVOCATES LL.P for the Plaintiffs and by MR. WEKESA instructed by the firm of AMANI & WEKESA ASSOCIATES ADVOCATES for the 1st Defendant. The A.G for 2nd Defendant did not file any submissions and the Instructed Parties did not participate in the trial.
33. The issue for my determination is whether the 1st Defendant obtained a good title to the suit land or whether it was in fact obtained fraudulently through collusion with the 2nd Defendant. The 1st Defendant (Domiano’s) testimony was adduced by his son CHRISTOPHER KENYATTA DW1). When he testified on 26th October 2023, the 1st Defendant stated that his late father DOMIANO purchased the suit land at a consideration of Kshs. 70,000/-. He however did not have any sale agreement. On his part, the 1st Plaintiff told the court when he testified on 6th July 2023 that his father KHASABURI sold the suit land to the 2nd Plaintiff MBOKO vide a sale agreement dated 19th June 1997. He added that if the 1st Defendant acquired it in 2014, that acquisition was fraudulent because his father KHASABURI was already dead by then. The sale agreement dated 19th June 1997 bears the name of DOMIANO AUMA as a witness. The transfer by KHASABURI to DOMIANO could not have been done on 23rd October 2007 when KHASABURI had in fact died in 2010.
34. When she testified on 26th October 2023, VIOLET LAMU (DW5) pointed out the various discrepancies in the transfer forms with respect to the suit land from KHASABURI to DOMIANO. In her evidence in chief, she said the documents of transfer of the suit land from KHASABURI to DOMIANO read that the transfer was to DOMIANO AUMA BULUMA while the letter of Consent states that it was to DAMIANO KHASINO KHASABURI. She said the document should bear the same names but although this was an error the transaction was done legally since it met all the other requirements.
35. Then there is the evidence of CATHERINE SONGWA (DW6). She is a document examiner and prepared a report having received from CPL PAUL NGESA some documents for examination. Her evidence was that the specimen finger-prints of KHASABURi matched those appearing on the transfer forms of the suit land to the 1st Defendant. In a case of fraud such as this one, such evidence being that of an expert witness, is crucial especially in view of the 1st Plaintiff’s claim that the 1st Defendant misrepresented the transfer claim. From the evidence of this witness, that cannot be true. KHASABURI did execute the transfer documents. Unless there is reason not to be bound by the evidence of an expert, this court must give such evidence, the weight which it deserves. I see no reason to disagree with this expert evidence adduced by the Document Examiner herein. I must therefore find that KHASABURI did execute the documents transferring the suit land to DAMIANO.
36. It is also clear that the sale agreement between KHASABURI and MBOKO was not signed by the parties. And by the time he died, DOMIANO when in possession and occupation of the suit land. And when he testified on 26th October 2023, DAMIANO’s son CHRISTOPHER KENYATTA (DW 1) confirmed that he was born on this suit land on which he still resides. He denied the suggestion that his late father was only a care-taker of the suit land on behalf of any other person. There is also evidence that DAMIANO was buried on the suit land which is in GULAMWONO village. The 1st Plaintiff said the following when cross-examined by MR. WEKESA on 6th July 2023.
“ I knew DAMIANO AUMA BULUMA well. He was an uncle to my late father. He too was from the ABAKUERI CLAN while my father was from the ABABUKALI CLAN. The ABAKUERI Clan came from GULAMWOYO Village. The ABABUKALI CLAN came from BOLORI Village. That is where I live. It is true that my father lived and was buried in that village. The deceased 1st Defendant on the other hand had lived and was buried in GULAMWOYO village. The land in dispute is in GULAMWOYO village. It is true that the deceased 1st Defendant started living on the suit land in 1994 and even his ISAAC ODUOR was buried on that land. I admit that I built a house on that land in dispute for FREDRICK OJIAMBO MBOKO. That was in 1997 and I only did so as a builder contracted by the said FREDRICK OJIAMBO to do so it was not my home. At that time, the deceased 1st Defendant was also living on the land in dispute but on another portion. As far as I am aware, the said FREDRICK OJIAMBO did not live in the house which I constructed for him”.
37. The totality of all this evidence is that KHASABURI relinquished his right to the suit land after transferring it to DAMIANO who holds a valid title thereto. It is unlikely that the late 1st Plaintiff could have sold the suit land to the 2nd Plaintiff yet given possession to the 1st Defendant. There is ample evidence to demonstrate that the 2nd Plaintiff was essentially a care-taker of the suit land in which was instead sold to DAMIANO.
38. Ultimately therefore and having considered all the evidence herein, I am not satisfied that the Plaintiffs have proved their case against the Defendants.
39. I accordingly issue the following dispositive orders:-
1. The Plaintiffs’ suit is dismissed.
2. The Plaintiffs to meet the costs of the Defendants.
Explanatory notes.
This Judgment was due for delivery on 26th January 2026. However, following my transfer from Busia to Iten Court with effect from 15th January 2026, I had to prioritize my part heard cases. That, coupled with the work in my new stations Iten and Kabarnet has contributed towards the delay in delivering this Judgment. The same is regretted