I. Preliminaries
1. The Judgement herein pertains to a Civil Suit filed through a Plaint dated 28th July 2023. It was instituted by Halfani Rashid Mwaboye, the Plaintiff herein and the Legal Representative of the Estate of the late Rashid Ramathan Nyawa (Hereinafter referred to as “The Deceased”).
2. All the parties were properly served. Indeed, the Summons to Enter Appearance dated 31st July, 2023, and pleadings were served upon and received by the Defendant herein in accordance with the contents of the eight (8) Paragraphed Affidavit of Service sworn by Mr. Raymond Rasiene, W, a Licensed Court Process Server, dated 2nd August, 2023. Despite this, there was no appearance entered by the Defendant. Subsequently, the suit was undefended by the Defendant.
3. However, the Interested Party filed its Statement of Defence dated 23rd January 2025 before the court. But at the time of the hearing of the suit, the office of the Land Registrar, Kwale, indicated that it would not be calling any witnesses as the orders sought were not adverse to them. Nonetheless, being a land matter, it proceeded on its own merit pursuant to the provisions of Order 10 Rules, 4, 5, 6, 7, 8, 9, and 10 of the Civil Procedure Rules, 2010.
II. The Plaintiff's case
4. From the filed pleadings herein, issues for determination are on the ownership of land parcel number KWALE/DIANI S.S/414 (Hereinafter referred to as “The Suit Property”). It was the Plaintiff’s case that he was the son and the Legal Representative to the Estate of the deceased. At all material times, the deceased was and is the registered owner of land parcel KWALE/DIANI S.S/414 measuring 1.9 Ha [approximately 4.70 acres or thereabout] situated in the County of Kwale. The deceased had been in occupation of the suit property from the year 1995 and was issued with a title for the same, which he held until his demise in the year 201,0, intestate.
5. In the course of time, the dependents of the deceased were shocked to discover that the Defendant had made an entry into the suit property. Specifically, they found this information from an official search conducted and from the Green card extracts in the year 2013. This was long after the death of the deceased. Indeed, he had transferred the suit property to himself.
6. The Defendant was a stranger to the estate of the deceased. Therefore, his name being on the Green Card was illegal and unlawful. Previously, the suit property had been a subject of litigation in the civil case: “Mombasa Civil Suit No. 136 of 2014 Mavji Karsan Hirani, Mwanalima Mwinyikai and Salim Ali Nyawa” where the court issued an order dated 21st April 2015 restraining the Defendant from any dealings on the suit property.
7. The Defendant’s actions were termed as fraudulent, with the particulars of fraud stated in the Plaint.
III. Particulars of fraud
8. The particulars of fraud were outlined under the contents of Paragraphs 11 to 13 of the Plaint as follows:-
a. The Defendant illegally and fraudulently cancelled and/or removed the name of the Plaintiff from the register of land parcel KWALE/DIANI S.S/414 with full knowledge that the Plaintiff was the owner of the property before and after his demise.
b. The Defendant had never lived on the land nor cultivated it and as far as the Plaintiff was concerned, the deceased had never sold and/or transferred the property to the Defendant or any other person and as a result of the Defendant’s fraudulent transactions the Plaintiff and the rest of the Defendants had been deprived of their ownership, possession and occupation of the suit properties which was their late father’s only property.
c. The Defendants unlawfully asserted their rights of ownership of the suit properties, which never belonged to them.
9. In the long run, the Plaintiff prayed for Judgement to be entered against the Defendant as follows: -
a) A declaration that the deceased is the absolute and legal indefeasible owner of the parcel of land known as KWALE/DIANI S.S/414 and the plaintiff as the administrator of the estate of the late Rashid Ramadhan Nyawa, and is further entitled to all rights and privileges belonging and appurtenant thereto.
b) An order directing the land registrar, Kwale County to cancel the Defendant’s name from the register of land parcel KWALE/DIANI S.S/414 and any every subsequent entries and restore the deceased name in the register to allow for a succession cause to be filed and the property to devolve to the rightful beneficiaries.
c) An order of permanent injunction restraining the Defendant by himself, agents, assigns, successors, servants or workers, and whomsoever else acting on the Defendant's behalf or instruction from interfering with the Plaintiff's right of ownership, possession, occupation, and use of land parcel number KWALE/DIANI S.S/414
d) General damages for fraud
e) General damages for conversion
f) Costs of the suit.
IV. The Defendant’s case
10. As indicated, from the court record, the Defendant, having been served with pleadings on 1st August 2023 as evidenced by the affidavit of service sworn by Raymond Rasiene W, a Licensed Court Process Server and filed before the court on 2nd August 2023, the Defendant never complied. Thus proceeded undefended.
V. The Interested Party’s Case
11. On its part, the Interested Party filed its Statement of Defence on 27th January 2025. They denied all the averments raised in the Plaint. It stated being a stranger to the said allegations. The Interested Party further prayed that the suit be dismissed with costs.
VI. The hearing of the Plaintiff’s case.
12. On 29th January, 2025, the matter proceeded for hearing. PW - 1, being Mr. Halfani Rashid Mwaboye, gave sworn testimony in the Kiswahili language. He stated that he was a Citizen of Kenya with all the particulars indicated on the national identity card as shown to the Court. He was the duly appointed Legal Representative of the Estate of the deceased. He had the authority of the rest of the beneficiaries of the estate of his deceased father to testify on their behalf. They were Athumani Rashid Mwaboye, Meoli Rashid Mwaboye, Fadhili Rashid Mwaboye, Mwanaasha Rashid Mwaboye, Mohamed Rashid Mwaboye, and Rashid Gude. He adopted his statement dated 28th July 2023 as part of his evidence and the list of documents filed as Plaintiff’s Exhibit Numbers 1 - 7. They were:
a) A Copy of the Certificate of Death of the deceased dated 9th February, 2015;
b) A Copy of the Grant Letters of Administration, Ad Litem dated 26th July, 2023;
c) A Copy of the letter of the Chief of Ukunda Sub–Location dated 29th March, 2022;
d) Copies of the National Identity cards for all the beneficiaries of the Estate of the Deceased.
e) A Copy of the Official Search for the suit land conducted on 5th April, 2022;
f) A Copy of the Green Card for the suit land certified as a true copy of the original dated 7th January, 2023.
g) A Copy of the Letter of Authority to plead dated 28th July, 2023;
13. He was a farmer. He testified that his father died on 2nd July 2020, and at the time of his death, he was the registered proprietor of the suit property as from 13th July 1995. He had acquired the land as the first registered allottee from the Kwale/Diani Settlement Fund Scheme (SFT). However, upon conducting an official search at the Lands registry, Kwale, after the death of the deceased, it was established that the suit property had been registered in the names of the Defendant on 15th June 2023 under Entry Number 4, which was three years after the death of the registered owner. That there was absolutely no way the transfer would have been effected to any person by a deceased person. He maintained that the transfer was thus fraudulent.
14. On being cross-examined by M/s. Kagoi Advocate, for the Interested Party, it was stated that the land was transferred in an irregular manner. That the matter had, however, never been reported to the police.
15. On re-examination by Mr. McOwad,e Advocate, the witness testified that he was not sure whether or not the matter had been reported to the police. The Plaintiffs case was marked as closed.
16. The Interested Party also closed its case at this point and indicated that the orders sought were not adverse to them.
VII. Submissions
17. On January 29th, 2025, upon the closure of both the Plaintiff's and the Interested Party’s cases, the Honourable Court directed that the parties file their written submissions within a stringent time frame.
18. Unfortunately, at the time of writing this Judgement, only the Plaintiff had complied with the said order. Nonetheless, upon the lapse of the stipulated timeline, the Court has decided to render its Judgement on its merit on 8th April, 2025 accordingly.
A. The Written Submissions by the Plaintiffs
19. The Plaintiff’s submissions are dated 13th February 2025. They were filed before the court by the Law firm of Messrs. Mc Owade & Co Advocates. Mr. Kowade Advocate commenced his submissions by providing the Court with a brief background of the matter. The Learned Counsel identified one issue for determination, whether the registration of one Salim Ali Nyawa, the Defendant herein, as the legally registered owner of the suit property on the 25th of June 2013 conferred a good title to him.
20. The Learned Counsel submitted that the Legal registered the first Allottee by the Kwale/Diani Settlement Scheme Fund on 13th July, 1915. The deceased was issued with the title deed to the suit land. However, it was later established that the Defendant herein, one Salim Ali Nyaw, was registered as the owner of the suit property on the 25th June 2013. He observed that this was three (3) years after the death of the deceased. That, according to the provisions of Section 26 of the Land Registration Act, numbers 3 of 2012 on the indefeasibility of title, the title is held as conclusive proof of ownership of property, and that is the guiding principle for the Plaintiff’s case.
21. However, it is subject to the exceptions in Section 26 (1)[a] and [b], which are fraud or misrepresentation that the party is proved to be party to or when the title was acquired illegally, unprocedurally, or through a corrupt scheme. With regards to the suit before the court, the timelines in this case are clear that the property ought to be dealt with under the Law of Succession Act, Cap. 160 because at the time of the death of the deceased, he was still the registered owner of the suit property.
22. The Learned Counsel for the Plaintiff referred the court to the provisions of Section 55 of the Law of Succession Act, Cap. 160, which provides that there could never be a distribution over the estate of a deceased person without the Certificate of Confirmation of Grant. This was to say that the only way that any property that was duly registered in the name of the deceased at the time of his death moved to any person was through transmission and the Confirmation of the Grant of Letters of Administration. The Defendant was not among the listed beneficiaries to the Estate of the Deceased. He was a stranger.
23. To buttress on this point, the Learned Counsel made reference to the case of: “Mary Watiri Mwangi (Suing as the legal Representative of the Estate of Kiburio Kamutu) – Versus -Timothy Kimani Kiburio & 3 others [2018] eKLR” where the court while proceeding to cancel the titles registered in the names of the Defendant’s and directing that the same be registered in the name of the deceased for succession to follow stated that the Defendants therein had failed to comply with the provision of Section 55 of the Law of Succession Act, Cap. 160.
24. The Learned Counsel stated that having seen the position that the courts had held in such matters and the facts of this matter, it was clear that the registration of the Defendant as the proprietor of the suit property was a nullity for reasons that it was both unprocedural and illegal.
25. The Learned Counsel emphasised that the Defendant was not registered as the owner of the property as a result of any succession cause in the estate of the deceased as he is neither an administrator nor a beneficiary in the estate of the deceased as per the Chief’s letter and also the testimony of the Plaintiff herein that the Defendant was unknown to the estate of the deceased.
26. In conclusion, the Learned Counsel averred the the registration of the Defendant be found to be illegal, due to the fact that it was unprocedural, and for the same to be nullified and have the suit property be registered in the name of the deceased to allow for succession to take place in accordance with the procedure set down in law. He prayed for the Plaintiff’s case to be allowed and the prayers sought to be granted accordingly.
VIII. Analysis and Determination
27. This Court has considered all the issues raised in the filed Plaint herein and the response thereto by the Interested Party, the evidence of the Plaintiff who testified before the court in agitating his case, and the written submissions on record together with the informative authorities.
28. In order to arrive at an informed, just, fair, and reasonable decision, the Court has framed the following four [4] issues for its determination. These are: -
a) Whether the suit property herein, KWALE/DIANI S.S/414, was illegally transferred to the Defendant
b) Whether the plaintiffs are entitled to the orders sought
c) Whether the Plaintiff is entitled to the two facets of damages as specified in the Plaint
d) Who will bear the Cost of the application?
ISSUE No. a). Whether the suit property herein, KWALE/DIANI S.S/414, was illegally transferred to the Defendant
29. Under this sub–heading, its critical for the Honourable Court to examine the legal ownership of the suit property herein. Critically speaking, I reiterate that it is noted that the Defendant did not participate in the suit despite service being effected on him. However, the Plaintiff does not escape the burden and standard of proof, based on the principle of “The Burden of Proof,” which they have to satisfy and discharge in accordance with the law in order for their claim to succeed. This Court has a duty to interrogate and evaluate uncontroverted evidence in order to determine whether the Plaintiff is entitled to the prayers sought.
30. The provision of Section 107 (1) of the Evidence Act, Cap. 80 provides that:-
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
31. Additionally, the provision of Section 108 states that:-
“The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.”
32. And, finally, the provision of Section 109 provides:-
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided for by law that the proof of that fact shall lie on any particular person.”
33. In the case of: “Charter House Bank Limited (Under Statutory Management – Versus - Frank N. Kamau [2016] eKLR”, the Court of Appeal, when discussing the burden of proof upon the Plaintiff in a situation where the Defendant failed to adduce evidence,e stated that:-
“we would therefore venture to suggest that before the trial court can conclude that the Plaintiff’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 satisfied that the Plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence from the Defendant.... The Plaintiff 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 plaintiff is not entitled to judgment merely because the Defendant has not testified."
34. The Plaintiff has pleaded acts of fraud on the part of the Defendant. It is incumbent upon the court to determine whether the same has been proved by him to the required standard which is slightly higher than the balance of probabilities. In the case of:- “Koinange & 13 Others – Versus - Koinange [1968] KLR 23’ the Court of Appeal held that allegations of fraud must be specifically pleaded and strictly proved on a standard below beyond reasonable doubt but above the usual standard in civil proceedings, that is on the balance of probabilities.
35. Black’s Law Dictionary, 9th Edition defines fraud as:-
“Fraud consists of some deceitful practice or wilful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, in the sense of a Court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another”.
36. In the case of:- “Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 others [2015] eKLR”, the Court held that:-
“It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond a reasonable doubt. One of the authorities produced before us has this passage from Bullen & Leake & Jacobs, Precedent of pleadings, 13th Edition, at page 427:
“Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged (Wallingford – Versus - Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709, Garden Neptune – Versus - Occident [1989] 1 Lloyd’s Rep. 305, 308).
ISSUE No. b). Whether the plaintiffs are entitled to the orders sought
37. From the evidence that has been adduced before the court, it is not disputed that the deceased was the registered proprietor of the suit property herein. It is also not in dispute that the suit property was allegedly transferred to the Defendant after the death of the deceased. However, what is questionable is how the suit property was transferred 3 years after the death of the deceased proprietor and without a succession cause as per the provisions of Section 55 of the Law of Succession Act, which stipulates that: -
“No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property unless and until the grant has been confirmed as provided by section 71.”
38. As earlier observed, the suit is undefended as the Defendant did not participate in the same despite being served. The interested party, on the other hand and who is the custodian of the title documents and who was responsible for effecting the transfer, chose not to call any witnesses.
39. A copy of the search certificate dated 5th April 2022, Plaintiff Exhibit 7, and the certified copy of the green card, being Plaintiff Exhibits 8, show the suit property registered in the names of the Defendant after the transfer was effected from the deceased Plaintiff. The transfer and subsequent registration of the suit property in the names of the Defendant are termed fraudulent and illegal.
40. Where a person’s title is under attack, he must, of necessity, give an account of how he acquired the same. In the case of: “Munyu Maina –Versus - Hiram Gathiha Maina, Civil Appeal No.239 of 2009”, the Appeal Court held that: -
“We have stated that when a registered proprietor's root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged, and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal, and free from any encumbrances, including any and all interests which would not be noted in the register.”
41. The Defendant has not tendered any evidence on how the title deed was registered in his name. There is no evidence of a succession process having been undertaken in any court of law with respect to the distribution of the estate of the deceased.
42. In the case of "Chemey Investments Limited - Versus - Attorney General & 2 Others, CA No. 349 of 2012”, the Court of Appeal held that sanctity of title to land registered under the repealed Act was guaranteed and could not be defeated except on the specific grounds set out therein. Where, however, title to property was obtained fraudulently or illegally in violation of the provisions of the Act, except for a first registration, the same was not sacrosanct, did not enjoy any protection, and the Court had the power to order rectification of the register.
43. Bearing the above in mind, it is this court’s finding that the Plaintiff has successfully proved that the title deed transferred to the Defendant was through a process marred with illegalities and safe to state a corrupt scheme. The Defendant cannot, therefore, be allowed to benefit from his fraudulent acquisition of title. The Court in the case of:- “Alice Chemutai Too – Versus - Nickson Kipkurui Korir & 2 others [2015] eKLR” while handling a similar situation held that:-
“.…I do not see how a person with a perfectly good title should be deprived of his title by the activities of fraudsters. It is in fact time to put down our feet and affirm that no fraudster, nor any beneficiary of fraudulent activities, stands to gain from his fraud, and no title holder will ever be deprived of his good title by the tricks of con artists.”
ISSUE No. c). Whether the Plaintiff is entitled to the two facets of damages as specified in the Plaint
44. Is the Plaintiff entitled to the orders sought? Having established that the Defendant’s title is illegal. The court now seeks to protect the Plaintiff’s ownership of the suit property as the executor of the estate of the deceased. The provision of Article 40 of the 2010 Constitution of Kenya 2010 is the provision relevant to the right to property. It provides, in par,t as follows:
“40. Protection of the right to property
(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property-
(a) of any description; and
(b) In any part of Kenya.
(2) Parliament shall not enact a law that permits the State or any person-
(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or
(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27(4).
(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation-
(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or
(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that-
(i) requires prompt payment in full, of just compensation to the person; and
(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.
(4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.”
45. As noted from Article 40(3) above, a person’s ownership of property shall not be taken away by the state unless the process complies with the steps and actions the Article provides for and operationalized by a law passed by Parliament. Further, Sections 24 and 25 of the Land Registration Act, Number 3 of 2012 stipulate the registration of a person as a proprietor of land, vest in that person the absolute ownership together with rights and privileges thereto, and the rights of a proprietor shall not be defeated except as provided for by the Act. The rights can only be limited by the conditions, restrictions, and encumbrances permitted by the Act.
46. The provision of Section 26 (1) of the very act mandates all Courts to take a certificate of title issued to a proprietor by the Land Registrar as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner subject to easements restrictions and conditions endorsed on the title. The section provides two instances in which a title may be impugned: on the ground of fraud or misrepresentation to which the person is proved to be a party; or where the certificate of title has been acquired illegally, unprocedurally, or through a corrupt scheme.
47. I will reproduce the same here for ease of reference. Section 26(1) of the Land Registration Act, No. 3 of 2012, which provides:-
“The certificate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner … and the title of that proprietor shall not be subject to challenge, except –
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally, or through a corrupt scheme.”
48. Under the provisions of Section 79 of the Land Registration Act, No. 3 of 2012 under allows the Registrar to rectify the register or any instrument presented for registration in certain cases. It provides thus: -
79(1) The registrar may rectify the register or any instrument presented for registration in the following cases:
(a) In formal matters and in the case of errors or omissions not materially affecting the interests of any proprietor;
(b) In any case and at any time with the consent of all affected parties; or
(c) Upon resurvey, a dimension or area shown in the register is found to be incorrect; in such a case, the registrar shall first give notice in writing to all persons with an interest in the rectification of the parcel.
49. Further, the provision of Section 80 of the Act allows the Court to direct the Registrar to rectify the Register by directing that any registration be cancelled or amended if the court is satisfied that the registration was obtained, made, or omitted by fraud or mistake. The provision of Section 80 of the Land Registration Act provides as follows:-
(1) Subject to subsection (2), the Court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made, or omitted by fraud or mistake.
(2) The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake, or substantially contributed to it by any act, neglect or default.
50. Having established the illegality of the 1st Defendant's title, the court exercises its power to revoke and/or rectify the title under Section 80 of the Land Registration Act. On this I am guided by the holding in the case of: “Mistry Amar Singh -Versus - Serwano Wofunira Kulobya [1963] EA 408’, it was held that whenever an act of illegality is brought to the attention of the Court, then the Court will not allow anybody to benefit from such an illegality.
51. Further in the case of: “Elijah Makeri Nyangw’ra –Versus - Stephen Mungai Njuguna & Another (2013) eKLR” where the court held that the title in the hands of an innocent third party can be impugned if it is proved that the title was obtained illegally, unprocedurally, or through a corrupt scheme. The court in the case, while considering the application of section 26 (1) (a) and (b) of the Land Registration Act, rendered himself as follows: -
“The law is extremely protective of title and provides only two instances for challenge of title. The first is where the title is obtained by fraud or misrepresentation, to which the person must be proven to be a party. The second is where the certificate of title has been acquired through a corrupt scheme.”
52. In the instant case, while the Plaintiff has already proved that it was the deceased who was the registered owner to the suit from 13th July, 1995, from the Settlement Scheme Fund. On the other hand, the Defendant never even bothered to defend its case but could not explain how he came to acquire the suit land in his names on 25th June, 2013 purportedly from the Deceased contrary from any of the methods clearly spelt out under Section 7 of Land Act, No. 6 of 2012 including through transmission, transfer, compulsory acquisition or land adjudication just to mention a few of them. Paradoxically, as fate would have it, the deceased died on 2nd July, 2010, three years earlier. It is a case of glaring and daylight fraud.
53. On damages, the Plaintiff made no submission as to the nature of loss incurred, and neither did he state what amount would have been sufficient compensation for any alleged loss. Guided by the provision of Order 2 Rule 6 of the Civil Procedure Rules, 2010, parties are bound by their own pleadings. Furthermore, damages are granted as per what has been pleaded. I find that without any reliable evidence on the alleged damages, the court cannot grant the same.
ISSUE No. d). Who will bear the costs of the suit?
54. It is well established that the issue of costs is at the discretion of the Court. Costs mean the award that is granted to a party at the conclusion of a legal action or proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the event. By event, it means the result or outcome of the legal action. See the Court of Appeal case of “Cecilia Karuru Ngayu - versus – Barclays Bank of Kenya & Another, (2016) eKLR,” and Supreme Court cases of “Jasbir Singh Rai & 3 Others- Versus - Tarlochan Singh Rai (2013) eKLR”
55. In the instant case, the Plaintiffs have managed to establish their case on all fronts. Thus, being the successful litigant, they are entitled to the costs of the suit.
VI. Conclusion & Disposition
56. Consequently, upon causing an in-depth analysis of the framed issues, the Honourable Court, based on the principles of Preponderance of Probabilities and balance of convenience, it proceeds to make the following orders:-
a) THAT Judgment be and is hereby entered for the Plaintiff against the Defendant.
b) THAT a declaration be and is hereby made that the deceased is the absolute and legal indefeasible owner of parcel of land known as KWALE/DIANI S.S/414 and the Plaintiff as the administrator of the estate of the late Rashid Ramadhan Nyawa and is further entitled to all rights and privileges belonging and appurtenant thereto.
c) THAT an order be and is hereby made directing the Land Registrar, Kwale County to cancel the Defendant’s name from the register of land parcel KWALE/DIANI S.S/414 and any every subsequent entries and restore to the deceased name in the register to allow for a succession cause to be filed and the property to devolve to the rightful beneficiaries.
d) THAT an order of permanent injunction be and is hereby made restraining the Defendant by himself, agents, assigns, successors, servants or workers and whomsoever else acting on the Defendants behalf or instruction from interfering with the Plaintiffs right of ownership, possession, occupation and use of land parcel number KWALE/DIANI S.S/414
e) THAT the costs of the suit be and is hereby awarded to the Plaintiff.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ………8TH …….. DAY OF ………..APRIL ………….2025
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) Mr. Kowade, Advocate for the Plaintiffs.
c) Mr. Penda Advocate holding brief for M/s. Kagoi Advocate the Interested Party.
d) No appearance for the Defendant.