1. Darbar Ibrahim, Mohammed Abdirisak Hussein t/a Mohed Property Developers, (hereinafter referred to as the plaintiffs) filed Mombasa ELC suit No. 163 of 2021 against Daniel Njogu Grace Muthoni and Stephen Kimenju (hereinafter referred to as the Defendants)
2. In the Plaint dated 29th April 2021, the Plaintiffs claim to be the registered proprietor an Estate in fee simple of all that property known as Plot No. 10073 Section 1 M.N CR 41082 hereinafter known as the suit property.
3. The Plaintiff state that the title for the said property was in the custody of M/S Khatib & Company Advocates who acted for them. By an agreement dated 20th October 2018, an agreement was drafted purportedly selling the property to the Defendants for One Million Eight Hundred Thousand Shillings (Kshs. 1,800,000/=).
4. In the agreement the firm of Khatib & Company Advocate purportedly acted for the Vendors and the firm of Sherman Nyongesa purportedly acted for the Purchaser. Subsequently through an alleged transfer dated 16th December 2018, the Plaintiff transferred the said portion to the defendants at One Million Kenya Shillings (Kshs. 1,000,000/=).
5. The Plaintiffs have termed the foregoing transactions as forgery as they never signed the agreement and transfer before the said advocates. Plot No. 10073 of parcel
6. The Plaintiffs pray prays for a declaration that the transfer of the property is a forgery, null and void and an order of cancellation of the said properties in favor of the Defendants. Moreover, the Plaintiffs pray for costs of the suit.
7. When the matter came for hearing, the Plaintiffs witness PW (1) testified that he is an advocate by profession and an attorney of the Plaintiffs. The power of attorney was registered on 24th October 2023. The Plaintiffs own several parcels in Kisauni and one of the parcels is Plot 100/73/MN. He then adopted his statement filed on 19th August 2021 as evidence in chief. The Plaintiffs witness also produced a list of documents filed on 19th August 2021 as PEx1-PEx 5. He stated that document No. 5 was filed on 24th October 2025. He testified that agreement was a forgery and that he never participated in the transfer. He added that in the alleged agreement the balance of the purchase price was to be paid at the conclusion of the transfer, however the Plaintiffs were not aware of the transfer and that the agreement of sale is fake and further the signatures to the documents are different from the transfer.
8. The defendant neither testified nor called witnesses and therefore the Plaintiffs evidence is not controverted.
ANALYSIS AND DETERMINATION
9. The court has considered the pleadings, evidence and submissions of both parties and finds that the Plaintiff is the registered owner of the suit property. Section 24 of Land Registration Act No 3 of 2012 states that the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. Section 25 of the said Act provides that the rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of Court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—to encumbrances charges or leases shown on the register and the overriding interests as stated in section 28 of the Act.
10. Section 26 (1) provides that the certificate of title issued by the Registrar upon registration or to a purchaser of land upon transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate and the title of that proprietor shall not be subject to challenge, except-
1. On the grounds of fraud or misrepresentation to which the person is proved to be a party, or
2. Where the certificate of title has seen acquired illegally, unprocedurally or through a corrupt scheme.
11. The import of the above sections is that once a proprietor is registered as absolute owner, he has all privileges and rights appointed to the property. From a foregoing, it is clear that the Plaintiff is entitled to all rights and privileges appertaining to the property.
12. The court finds the evidence of the Plaintiffs’ attorney, who testified pursuant to the Power of Attorney credible, together with the documentary evidence that was relied on and produced.
13. The Defendants were served with the suit papers but failed to enter appearance or tender evidence to rebut the Plaintiffs assertions. It follows that the Plaintiffs claim remains uncontroverted.
14. Having found that the sale agreement and the subsequent transfer was procured through fraud, this court finds that the registration of the suit property in the name of the Defendants is questionable under section 26(1) of the Land Registration Act and the same should be rectified pursuant to section 80(1) of the Land Registration Act.
15. The upshot of the above is that the plaintiffs have established on a balance of probabilities that they are the legal owners of the suit land.
16. Ultimately, the court orders the rectification of the land register by cancelling registration of the defendant as the proprietor of the suit property and restoring the same to the position it was prior to the impugned transfer.
17. The suit is hereby allowed with costs to the Plaintiff.
2. In the Plaint dated 29th April 2021, the Plaintiffs claim to be the registered proprietor an Estate in fee simple of all that property known as Plot No. 10073 Section 1 M.N CR 41082 hereinafter known as the suit property.
3. The Plaintiff state that the title for the said property was in the custody of M/S Khatib & Company Advocates who acted for them. By an agreement dated 20th October 2018, an agreement was drafted purportedly selling the property to the Defendants for One Million Eight Hundred Thousand Shillings (Kshs. 1,800,000/=).
4. In the agreement the firm of Khatib & Company Advocate purportedly acted for the Vendors and the firm of Sherman Nyongesa purportedly acted for the Purchaser. Subsequently through an alleged transfer dated 16th December 2018, the Plaintiff transferred the said portion to the defendants at One Million Kenya Shillings (Kshs. 1,000,000/=).
5. The Plaintiffs have termed the foregoing transactions as forgery as they never signed the agreement and transfer before the said advocates. Plot No. 10073 of parcel
6. The Plaintiffs pray prays for a declaration that the transfer of the property is a forgery, null and void and an order of cancellation of the said properties in favor of the Defendants. Moreover, the Plaintiffs pray for costs of the suit.
7. When the matter came for hearing, the Plaintiffs witness PW (1) testified that he is an advocate by profession and an attorney of the Plaintiffs. The power of attorney was registered on 24th October 2023. The Plaintiffs own several parcels in Kisauni and one of the parcels is Plot 100/73/MN. He then adopted his statement filed on 19th August 2021 as evidence in chief. The Plaintiffs witness also produced a list of documents filed on 19th August 2021 as PEx1-PEx 5. He stated that document No. 5 was filed on 24th October 2025. He testified that agreement was a forgery and that he never participated in the transfer. He added that in the alleged agreement the balance of the purchase price was to be paid at the conclusion of the transfer, however the Plaintiffs were not aware of the transfer and that the agreement of sale is fake and further the signatures to the documents are different from the transfer.
8. The defendant neither testified nor called witnesses and therefore the Plaintiffs evidence is not controverted.
ANALYSIS AND DETERMINATION
9. The court has considered the pleadings, evidence and submissions of both parties and finds that the Plaintiff is the registered owner of the suit property. Section 24 of Land Registration Act No 3 of 2012 states that the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. Section 25 of the said Act provides that the rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of Court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—to encumbrances charges or leases shown on the register and the overriding interests as stated in section 28 of the Act.
10. Section 26 (1) provides that the certificate of title issued by the Registrar upon registration or to a purchaser of land upon transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate and the title of that proprietor shall not be subject to challenge, except-
1. On the grounds of fraud or misrepresentation to which the person is proved to be a party, or
2. Where the certificate of title has seen acquired illegally, unprocedurally or through a corrupt scheme.
11. The import of the above sections is that once a proprietor is registered as absolute owner, he has all privileges and rights appointed to the property. From a foregoing, it is clear that the Plaintiff is entitled to all rights and privileges appertaining to the property.
12. The court finds the evidence of the Plaintiffs’ attorney, who testified pursuant to the Power of Attorney credible, together with the documentary evidence that was relied on and produced.
13. The Defendants were served with the suit papers but failed to enter appearance or tender evidence to rebut the Plaintiffs assertions. It follows that the Plaintiffs claim remains uncontroverted.
14. Having found that the sale agreement and the subsequent transfer was procured through fraud, this court finds that the registration of the suit property in the name of the Defendants is questionable under section 26(1) of the Land Registration Act and the same should be rectified pursuant to section 80(1) of the Land Registration Act.
15. The upshot of the above is that the plaintiffs have established on a balance of probabilities that they are the legal owners of the suit land.
16. Ultimately, the court orders the rectification of the land register by cancelling registration of the defendant as the proprietor of the suit property and restoring the same to the position it was prior to the impugned transfer.
17. The suit is hereby allowed with costs to the Plaintiff.