MOHSIN RAZA MUGHAL VS FAITH IMMACULATE OMBEWA

I.   Preliminaries 

1.   The Judgment of this Honourable Court pertains to a claim made by Mohsin Raza Mughal, the Plaintiff herein against Ombewa Faith Immaculate, the Defendant herein.  The Plaintiff instituted a civil suit through filing of the Plaint dated 26th April, 2024 and filed on 8th May, 2024

2.   Upon service of the pleading and summons to enter appearance, the Defendants never entered appearance nor filed their Statement of Defence. Subsequently, the matter proceeded on for formal proof pursuant to the provision of Order 10 Rules 4, 5, 6, 7, 9 and 10 of the Civil Procedure Rules, 2010 thereof. 

II.   Description of the Parties

3.   The Plaintiff was described as an adult made of sound mind, a resident of the United States of America and the Defendant was described as an adult of sound mind and disposition, currently residing in Northampton within the United Kingdom.

III.   Court directions before the hearing

4.   On 18th November, 2024, after confirming that the Plaintiff had complied with Order 11 of the Civil Procedure Rules 2010, being a land matter the Honourable Court set the formal proof hearing date on 3rd March, 2025 by way of adducing “viva voce” evidence with the Plaintiff’s witnesses testifying in Court whereby they closed their case on 3rd March, 2025. 

IV.   The Plaintiff’s case

5.   From the filed pleadings, at all material times relevant to this suit, the Plaintiff’s claim as against the Defendant was for a refund of the sum of Kenya Shillings Twenty-Four Million, Nine Hundred and Fifty-Six Thousand, Eight Hundred and Six (Kshs. 24,956,806/=), money expended to the Defendant in the purchase and development of the property known as Land Reference Numbers Kwale/Diani S.S/4931 measuring 0.10 Ha (Hereinafter referred to as “The Suit Land”), which turned out to be the Defendant’s fraudulent scheme to fleece the Plaintiff of his money; and which cause of action arose as particularized hereunder.

6.   The Plaintiff pleaded that he got acquainted to the Defendant online sometimes in May 2023 following which they exchanged contacts and remained close ever, at some point contemplating of engaging in a romantic relationship, following which the Defendant encouraged him to holiday in Kenya. The Plaintiff averred that having retired as a United States Federal Government employee, all was set for him to embark on his retirement life, including here in Kenya, where he was looking for an opportunity to invest part of his pension and retirement benefits. It was at this point that the Defendant fronted the idea of investing in real estate to the Plaintiff, which entailed the purchase of a prime plot in Kwale’s Diani area and the subsequent development of the same, an option that the Plaintiff considered economically viable.

7.   The Plaintiff added that the Defendant urged him to consider her a joint owner of the property so as to make it easier to circumvent 'the bureaucracies' attendant to the securing of the relevant approvals and clearances for development of the property, which in the words of the Defendant were murkier for foreigners in the country; as well as place her in a proper footing within which she could assist the Plaintiff in co - ordinating the development and other affairs in the event of his absence from the country. Having earned the Defendant’s trust, the Plaintiff asserts that he could not read into anything sinister on the generous offer, to which he openly embraced as beneficial.

8.   The Defendant pleaded that he fell for the Defendant's hook, line, and sinker when he bought the idea and entrusted the Defendant with a lead role in actualizing the investment decision by inter alia letting her source for suitable offers of land for the intended investment project, consequent to which in no time the Defendant reported of having received an enticing and irresistible offer regarding the suit property.

9.   The Plaintiff averred that he gave the Defendant the green light to negotiate the best purchase price and terms, as she appeared knowledgeable of the market dynamics of the Kenyan real estate sector, to which she successfully accomplished and settled on the purchase price of Kenya Shillings Five Million, One Hundred Thousand (Kshs. 5,100,000/=). The Plaintiff added that he hastily registered with the Kenya Revenue Authority (KRA) as a tax payer and was  issued with a KRA PIN- A019830656C on 5th July, 2023, a condition that was represented to him as a requisite requirement for one to be registered as a proprietor of land in the republic of Kenya.

10.   The Defendant procured an Advocate, Lyna Moraa Moranga, who she claimed was well known to her and would help in the transaction. The said Advocate in turn prepared a Sale Agreement dated 3rd August, 2023, terms and conditions stipulated thereof; depicting the Plaintiff and Defendant as the joint purchasers, which agreement she duly witnessed as both the Vendor's and the Purchaser’s Advocate. The Plaintiff asserted that he paid the purchase price in full, and equally provided a proof of the source of his income to the recipient bank, ABSA Bank PLC, aptly depicting that the money was from a Thrift Savings Plan, a pension scheme dedicated for the retired United States Federal Government employees.

11.   Having signed the agreement, paid the purchase price in full, and provided the Defendant with all the relevant documents. The Plaintiff averred that he left it for the Defendant and the Advocate to finalize the transaction. The Plaintiff pleaded that the Defendant intimated to him that the transaction had been successfully concluded, but it would take time for a Title Deed and/or ownership document to be issued as was the norm. Sequel thereto, the Plaintiff stated that he disbursed a circulative sum of Kenya Shillings Fifteen Million, Six Hundred and Thirty-Two Thousand, Five Hundred and Sixteen (Kshs. 15,623,516.00/=) to the Defendant for the purpose of purchasing, setting up, and furnishing of container homes in the property in three tranches on 20th September, 2023, 23rd October, 2023 and 20th December, 2023 respectively. The Plaintiff added that during the period, he further did send to the Defendant money in excess of Kenya Shillings Four Million (Kshs.4,000,000.00/=) for her upkeep.

12.   The Plaintiff pleaded that the Defendant, seemingly in a change of tune intimated that she was intending to travel to the United Kingdom (UK) for further studies and would be getting someone else to manage the development, something that the Plaintiff was reluctant to embrace but could not convince the Defendant otherwise. Thereafter, the Plaintiff averred that the Defendant became refractory and could not entertain any discussion pertaining the status of the registration of the property, particularly the issuance of the title deed; and subsequently blocked all the channels of communication.

13.   The Plaintiff averred that he set himself to discover the status of the property, staring at a possible loss of both the property and millions in the hands of the Defendant in the name of an investment in Kenya. To his shock, the Plaintiff discovered that the property was registered in the sole name of the Defendant on the 23rd  August, 2023 and a title deed issued to that effect, and all the claims of joint ownership was a scheme of fitting him into the fraudulent scheme.

14.   The Plaintiff pleaded that it dawned to him that he had been defrauded not only the land, but also the sum of Kenya Shillings Fifteen Million, Six Hundred and Thirty-Two Thousand, Five Hundred and Sixteen (Kshs. 15,623,516.00/=) by the Defendant through acts of fraud and fraudulent misrepresentations. The Plaintiff relied on the following particulars of fraud and fraudulent misrepresentation on the Defendant:-

a)   Departing from the terms of the Sale Agreement dated 3rd August, 2023 and cause the registration of the Suit Property in her sole name;

b)   Fraudulently misrepresenting on the nature of the ownership of the property with a view of securing the purchase price from the Plaintiff;

c)   Fraudulently misrepresenting on the status of the registration of the Suit Property with a view of defeating the Plaintiff's interests and claim over the Suit Property;

d)   Fraudulently and unjustly obtaining money from the Plaintiff in the name of investment funds, only to run away with the same;

e)   At no point did the Plaintiff consent nor was his consent sought to relinquish his claim and interest as a purchaser of the Suit Property.

f)   Exploitation and betrayals the trust bestowed upon her by the Plaintiff to pursue personal interests to the detriment of the Plaintiff.

15.   In addition, the Plaintiff pleaded that the Defendant’s conduct not only constituted fraud but also a blatant breach of contract, having failed to honor the unwritten, albeit mutually agreed contractual terms between them. The Plaintiff averred that as a result of the Defendant's fraud, fraudulent misrepresentation and breach of trust, the Plaintiff has suffered immense loss and suffering, having not only lost the property but also standing to lose huge sums expended to the Defendant in the guise of an investment to be, solely to be blamed on the cunning acts of the Defendant.

16.   Despite a notice of intention to sue having been given, the Defendants had declined, refused and/or neglected to comply with terms thereof, necessitating the filing of this suit. There was no suit pending in any court over the same subject matter between the parties herein over the subject matter pleaded. The Cause of action arose within the jurisdiction of this Honourable Court.

17.   Hence, the Plaintiff sought for Judgment to be entered against the Defendant for:-

a)   An Order of Declaration that the Defendant’s acts of causing the registration of all the property known as Kwale/Diani S.S/4931 solely in the name of the Defendant was null and void.

b)   An Order of Declaration that the Plaintiff is the sole legal, beneficial, and indefeasible owner of all the property known as Kwale/Diani S.S/4931.

c)   In the alternative to (b) above, an Order of Declaration that the Plaintiff is the legal, beneficial, and indefeasible joint owner of all the property known as Kwale/Diani S.S/4931.

d)   An Order Directing the Land Registrar, Kwale Land Registry to register all the property known as Kwale/Diani S.S/4931 in the name of the Plaintiff.

e)   An order directing the Plaintiff to refund the sum of Kenya Shillings Fifteen Million, Six Hundred and Thirty-Two Thousand, Five Hundred and Sixteen (Kshs. 15,623,516.00/=) wired to the Plaintiff for the purposes of developing the property known as Kwale/Diani S.S/4931.

f)   Interest from the date of filing this suit until payment in full. 

g)   Costs of the suit.

18.   On 3rd March, 2025 at 11.00 am, the Plaintiff called PW - 1 who testified as follows:-

A.   Examination in Chief of PW – 1 by Mr. Mutigo Advocate.

19.   PW – 1 testified and was sworn on oath in English language. He identified himself as MOHSIN RAZA MUGHAL. He was the nationality of the United States of America (USA). He had met the Defendant online in the year 2023 and they became lovers and now adversaries. The Defendant encouraged him to visit Kenya. He would seldom do so. He recorded a witness statement dated 24th April, 2024 and a list of documents dated 26th April, 2024 which he produced as Plaintiff’s exhibit numbers 1 to 6. The Defendant encouraged him to buy property in Kenya  which was a land in Diani. He obliged. The land she purchased was in her name. The witness told the court that he paid a sum of Kenya Shillings Fifteen Million Six Hundred and Thirty Two Thousand (Kshs. 15,632,000/- which was for the purposes of some construction project. He further sent some additional money for her upkeep.

20.   PW - 1 stated that it was meant to be a joint ownership. He had a sale agreement dated 3rd August, 2023. He had proof of the transfer of the money for the purchase of the land being Kenya Shillings Five Million Eight Hundred and Twenty One Thousand – (Kshs 5,821,710/-) and Kenya Shillings Fifteen Million Six Hundred and Twenty three  Thousand (Kshs. 15,623,000/-) for the development of the project as shown from the Email. But from that time the Defendant went missing in action and hence the witness decided to engage the advocates who commenced an investigation and found out that the property was only registered in her name and not both of them as had been agreed. This information was from the official search dated 8th April, 2024.

21.   PW - 1 urged the Court to have the land transferred to her name so that he would sale it and recover his money. He also prayed to for the court to help him recover his money and all the prayers sought in the Plaint dated 26th April, 2024. The land was a freehold tenure.

22.   On 3rd March, 2025, the Plaintiff closed his case through his advocate Mr. Mutigo.

V.   Submissions

19.   On 3rd March, 2025, immediately after the closure of the Plaintiff’s case, the Honorable Court directed the Plaint dated 26th April, 2024 be canvassed through written submissions. The Plaintiff fully complied.  Pursuant to which the Honorable Court reserved a date for delivery of Judgement on notice accordingly.

A.   The Written Submission by the Plaintiff

20.   The Plaintiff through the Law firm of Messrs. F.M. Muteti & Co. Advocates filed his written submissions dated 2nd April, 2025. Mr. Mutigo Advocate commenced his submission by poetically stating that “…in the absence of truth, love becomes a tangled web of deception.” He averred that, as they would demonstrate in the submissions, the facts of this case spoke for themselves. The Plaintiff gave him all to the Defendant under the auspices of love and affection. In turn, the Defendant mistook the Plaintiff’s kindness for weakness and cunningly manipulated the Plaintiff by using his love for her as a means to unjustly enrich herself. The Plaintiff lodged this suit vide a Plaint dated 26th April, 2024 for the afore - stated reliefs.

21.   Despite of proper service of process upon her, the Defendant neither entered appearance nor filed her defence. Therefore, being a land matter the suit proceeded for Hearing in absence of the Defendant as “formal proof” on 3rd March,2025, when the Plaintiff testified in support of his case. For proper context, the Plaintiff an American Citizen residing and working in the United States of America testified that his claim against the Defendant was for a refund of the sum of Kenya Shillings Twenty-Four Million, Nine Hundred and Fifty-Six Thousand, Eight Hundred and Six (Kshs. 24,956,806/=), money expended and transferred to the Defendant in the joint purchase and intended development of the suit property. However, it later turned out that the Defendant had hatched a fraudulent scheme to fleece the Plaintiff of his money. 

22.   The Learned counsel relied on the following four (4) issues for determination. Firstly, whether the Plaintiff solely expended a sum of Kenya Shillings Five Million One Hundred Thousand (Kshs. 5,100,000/=) and transferred a sum of Kenya Shillings Fifteen Million Six Hundred and Thirty Two Thousand Five Hundred and Sixteen (Kshs. 15,632,516/=) to the Defendant collectively for purposes of purchase, joint registration and development of the suit property. The Learned Counsel argued that indeed, the Plaintiff solely expended and transferred the said stated monies to the Defendant collectively for the purposes of purchase, joint registration and development of the property. To buttress his argument he referred Court to the principles of the burden of proof and the provision of Sections 107 and 109 of the Evidence Act, Cap. 80. On the said issue, the Learned Counsel cited the case of:- “Jennifer Nyambura Kamau – Versus -  Humphrey Mbaka Nandi [2013]KECA 423 (KLR)” held that:-

“Section 109 (Evidence Act) stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence.”

23.   Similarly, in support of his arguments under this issue, the Plaintiff produced the Sale Agreement dated 3rd August, 2023 in evidence as Plaintiff Exhibit Number 2 and email correspondence of 3rd August, 2023 from the Defendant thanking the Plaintiff for purchasing the property and making her the happiest woman in the world as Plaintiff Exhibit Number 3. Further, it was not in doubt that both the Plaintiff and the Defendant were the joint purchasers of the property according to the sale Agreement dated 3rd August, 2023. The same was duly prepared by an Advocate of The High Court of Kenya, one Lyna Moraa Moranga who also witnessed the Agreement as both the Vendor's and the Purchasers’ Advocate.

24.   Noteworthy, the Defendant in her aforementioned email of 11th August, 2023 went ahead to alert the bank that the Plaintiff would later channel more money towards the construction project that they-the Plaintiff and the Defendant-were working on. Indeed, the Plaintiff further testified that he transferred an additional sum of Kenya Shillings Fifteen Million, Six Hundred and Thirty-Two Thousand, Five Hundred and Sixteen (Kshs.15,632,516.00/=) to the Defendant for the purpose setting up, and furnishing of container homes in the property in three tranches. In support of transfer of the afore - stated additional monies to the Defendant by the Plaintiff, the Plaintiff produced evidence of the further remittances alluded to by the Defendant in her email of 11th August, 2023 as Plaintiff Exhibit number 5. The remittances as produced was as follows:-

25.   The Learned Counsel therefore submitted that to this end, the Plaintiff had fully demonstrated that he expended and transferred the afore stated monies to the Defendant for joint purchase, registration and development of the suit property. Further, the Plaintiff testified that he thereafter sent money in excess of Kenya Shillings Four Million (Kshs.4,000,000.00/=) for the Defendant's upkeep and maintenance, a fact that remained uncontroverted.

26.   The Learned Counsel from the foregoing humbly invited this Honourable Court to find that the Plaintiff indeed solely contributed to the purchase of the property and to its intended development thereafter. They also urged this Honourable Court to find that the Plaintiff transferred Kenya Shillings Four Million (Kshs.4,000,000.00/=) to the Defendant for her upkeep and maintenance. 

27.   Secondly, on whether the suit land was currently registered solely in the name of the Defendant. The Learned Counsel submitted that it was the Plaintiff's case that having paid the full purchase price of the property and having transferred the sum of Kenya Shillings Fifteen Million Six Hundred and Thirty Two Thousand Five Sixteen Hundred (Kshs. 15, 632,516/=), he laid back and waited for the Defendant to complete the joint registration of it ahead of its development. However, no sooner had he executed the agreement for purchase of property and further remitted the additional funds as established under issue (1) above, then the Defendant, seemingly in a change of tune intimated that she was intending to travel to the United Kingdom (UK) for further studies and would be getting someone to manage the development. She subsequently became refractory and could not entertain any discussion pertaining the status of the registration of the property, particularly the issuance of the title deed; and subsequently blocked all the channels of communication with the Plaintiff.

28.   Consequently, the Plaintiff set himself to discover the status of the property, staring at a possible loss of both the property and millions of Kenyan Shillings in the hands of the Defendant in the name of an investment in Kenya. Predicated on the aforementioned, he discovered that the property had already been fraudulently registered in the sole name of the Defendant on the 23rd August, 2023 with absolutely no aspect of joint ownership. In support of this limb, the Plaintiff produced the Certificate of Official Search for the suit land conducted on 8th April, 2024 as Plaintiff Exhibit Number 6. It depicted the Defendant as the sole proprietor of the property and indicated that a title deed was issued to the Defendant on 23rd August, 2023.

29.   The Learned Counsel relied on the provision of Section 34 of the Land Registration Act, No. 3 of 2012 which provides of searches and copies. The Section stipulates as follows:-

“A person who requires an official search in respect of any parcel, shall be entitled to receive particulars of the subsisting entries in the register, certified copies of any document, the cadastral map, or plan filed in the registry upon payment of the prescribed fee.”

30.   Further, the provision of Section 35 (2) of the Land Registration Act 2012 makes it clear that:-

“Every copy of or extract from a document certified by the Registrar to be a true copy or extract shall, in all proceedings, be received as prima facie evidence of the contents of the document.”

31.   He cited the case of:- “Mtana Lewa – Versus -  Kahindi Ngala Mwagandi [2015| KECA 532 (KLR)” cited with approval “Civil Appeal No.265 of 2005 Johnson Kinyua – Versus - Simon Gitura” where this Court found that:-

“...the existence and proprietorship of land can be proved either by an extract copy of title or certificate of official search.”

32.   Further, the Learned Counsel relied on the provision of Section 26(1) of the Land Registration Act which provides that a Certificate of title held is conclusive evidence of proprietorship. This led them, and certainly the Court, to the conclusion that the Defendant was indeed, the sole registered proprietor of the suit land. 

33.   The Proprietorship Section (Part B) of certificate of official search names the Defendant as the Proprietor of the property and also as the person holding its certificate of title. This completely deviates from the Sale Agreement dated 3rd August, 2023, prepared and duly witnessed by an Advocate of the High Court of Kenya hence properly anchors our assertion that the title was obtained through fraud and misrepresentation in line with our prayers. 

34.   The Learned Counsel humbly submitted that this Honourable Court direct the Land Registrar to register the property in the name of the Plaintiff as it was clear that there was fraud, misrepresentation, illegality and corruption in the registration of the property in the name of the Defendant. Further, the provision of Section 116 of the Evidence Act which speaks to disapproving ownership and provides inter alia;

“When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

35.   To prove that the Defendant was not a rightful owner of the property, the Learned Counsel submitted that they had produced evidence to show that in as much as the Plaintiff, was the sole contributor, the Defendant shortchanged him at the very last minute. Thus, they invited this Honourable Court to find that the property rightfully belonged to the Plaintiff, having fully contributed to its purchase.

36.   Thirdly, whether the Plaintiff was entitled to the prayers sought. The Learned Counsel submitted that having established that the Plaintiff expended and transferred monies to the Defendant for joint purchase and development of the property, and having established that the Defendant neither registered the property jointly nor developed it, it was only fair and justiciable for this Honourable Court to grant the prayers sought in the Plaint. The first prayer was an order for declaration that the Defendant’s acts of causing the registration of all the property known as the suit property solely in her name was null and void. The Counsel averred that there was fraud and misrepresentation of material facts by the Defendant. They also produced the sale agreement as well as the certificate of title. The agreement showed both parties in this suit as purchasers but the certificate indicated that the land was only registered to the Defendant contradicting the agreement of sale. They further produced evidence that the Plaintiff contributed in every aspect towards joint purchase and development of the said property. As such, he humbly invited this Honourable Court to grant the Plaintiffs first prayer.

37.   For the Plaintiff’s prayers 2 and 3 he sought to be declared as the sole/Joint legal, beneficial, and indefeasible owner of all the suit property. Similarly, and as was on record, the Plaintiff testified and produced the sale agreement dated 3rd August, 2023 duly executed under witness of an Advocate common to the Defendant and the Plaintiff. The parties herein being co - purchasers. However, unlike the Defendant, it was on record and unrebutted by the Defendant that the Plaintiff contributed fully to the purchase and development of the Property to a cumulative total of a sum of Kenya Shillings Twenty Million Seven Hundred and Thirty Two Thousand Five Hundred and Sixteen (Kshs. 20,732,516/=). This also corroborated by the Defendant’s email correspondence on record. On this issue, the Learned Counsel urged this Honourable Court to declare the Plaintiff as the sole legal, beneficial, and indefeasible owner of the property.

38.   In prayer 4, the Plaintiff sought an Order directing the Land Registrar, Kwale Land Registry to register all the suit property in his name. Having established that the Defendant through fraudulent misrepresentation solely acquired the title of the Property, it would only be just to grant this prayer. Indeed, under the provision of Section 80 of the Land Registration Act, 2012, this Honourable Court has the power to issue an Order for rectification of land register. The provision of Section 80 of the Land Registration Act, 2012, provides explicitly as below:- 

“(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.”

39.   To prove fraud, mistake or omission on part of the Defendant, the Plaintiff testified and tabled in evidence of the Sale Agreement dated 3rd August, 2023, recognizing both parties herein as co-purchasers and a certificate of Official Search on 8th April, 2024, depicting the Defendant as a sole proprietor contradicting the sale agreement of the same land. As such, the Plaintiff has casted reasonable doubt on the Defendant’s acts or omissions. This happened all by design given the Plaintiff's conduct immediately after receiving the funds for purchase and further development of the property from the Plaintiff. The Defendant in this case was the enabler and center of all the ongoing.

40.   To buttress the Plaintiff’s assertion, the Learned Counsel borrowed from the from the wise words of Justice. M Mutungi in the case of:- “Beatrice Matoya & another – Versus - Henry Manyange Matoya & 3 others [2017] KLLLC 1584(KLR)” where the Learned Judge opined as below: -

“Before a court can make an order for rectification of the register it must be satisfied that the registration sought to be rectified was obtained, made or omitted by fraud or mistake and the registered proprietor who is to be affected must be shown to have been a party to the fraud and/or must have contributed to the mistake and/or omission that resulted in his/her registration. The fraud, mistake or omission must be proved by way of evidence.”

41.   The Learned Counsel submitted that one may also agree with them that the Defendant had never been in actual position of the suit property but a party to her fraudulent scheme leading to her proprietorship of the same land. This is based the unrebutted evidence on record hence an order for rectification of the register would be an elevation of justice. To cement their position, they further bring to the Court’s attention, the case of:- “William Washington Omtakada – Versus -  John Wanyonyi Etyang [2014] KEHC 716 (KLR)” where Justice R Karanja put it as follows:-

“A title deed obtained by fraud or misrepresentation may be cancelled as provided by Section 80 of the Land Registration Act, 2012.... It has herein been established that the Plaintiff has never been in actual possession of the suit land and that he was party to a fraudulent scheme which led to the land being registered in his name. It would therefore be fair and just for this court to...order that his title-deed be canceled forthwith in terms of section 80 of the Land Registration Act, 2012.”

42.   On Prayer 5 the Plaintiff sought an order directing the Defendant to refund the sum of Kenya Shillings Fifteen Million, Six Hundred and Thirty-Two Thousand, Five Hundred and Sixteen (Kshs.15,632,516.00) wired to the Defendant for the purposes of developing the suit property. This issue remained unrebutted. Further, he led in evidence and produced three receipts dated 20th September, 2023, 23rd October, 2023, and 20th December, 2023 totaling to the amount the Plaintiff sought for developing the land something that the Defendant blatantly failed to do. To buttress their position, the Learned Counsel submitted that equity shall not suffer wrong without recourse and further, equity aids the Vigilant. As well, he who comes to equity must follow the law. The Defendant was and remained aware of the Plaintiff's massive contribution towards acquisition of the Land, the Defendant did not develop the land despite the millions she received from the Plaintiff. On his side, the Plaintiff remained vigilant enough to seek legal recourse to get back what is rightfully his and to challenge unjust enrichment by the Defendant. As such, they invited the Honourable Court to invoke the maxims of equity and salvage the current situation in favor of the Plaintiff by issuing order for reimbursement of the Kenya Shillings Fifteen Million, Six Hundred and Thirty-Two Thousand, Five Hundred and Sixteen (Kshs.15,632,516.00) against the Defendant. 

43.   They further asserted that the Defendant unjustifiably enriched herself through reception of the above stated monies since she received a benefit at the expense of the Plaintiff and any further retainment of the said amount continues to be an utter injustice to the Defendant. This was a position supported by the Court in the case of”- “Stephen Karanja Kibuku – Versus -  Safaricom Limited [2018]KEHC 1367 (KLR)” where Justice N Mulwa held:

“The principle of unjust enrichment requires that a party has received a benefit unjustly, and such party is required to make restitution to the other party. It presupposes that

a) A party has been enriched by the receipt of a benefit

b) That he has been so enriched at the expense of the giver and

c) That it would be unjust to allow him to retain the benefit.”

44.   In continuation, the Court cited with approval the Case of:-  “Madhupaper International Ltd and Another – Versus - Kenya Commercial Bank Limited and 2 Others (2003) eKLR”;

“…….the idea of unjust enrichment or unjust benefit is intended to prevent a person from retaining money or some benefit derived from another which it is against conscience that he should keep it, and he should in justice, restore it to the Plaintiff………”

45.   Finally, who should bear the costs of this suit? The Learned Counsel submitted that the issues of interest and costs is governed by the provision of Section 26 and 27 of the Civil Procedure Act respectively. Section 26 provides as follows:-

“26(1). Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.

(2). Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.”

46.   Section 27 on the other hand provides as follows:-

27 (1). Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or Judge, and the court or Judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or Judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.

(2). The court or Judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such

47.   The Learned Counsel opined that it went without saying that costs follow the event. To deconstruct this issue further, they made reference to the case of “Nicolas – Versus -  Wells Fargo Limited [2025] KEHC 2333 (KLR)” which cited with approval the precedent case of “Jasbir Singh Rai & 3 others – Versus -  Tarlochan Singh Rai & 4 others, SC Petition No.4 of2012; [2014]eKLR”, where it was stated as follows:-

“It emerges that the award of costs would normally be guided by the principle that 'costs follow the event': the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation....Although there is eminent good sense in the basic rule of costs- that costs follow the event -it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs.”

48.   It was from the foregoing that they appealed to this Honourable Court to exercise its discretion and find that the Plaintiff had succeeded in prosecuting his case and as such grant costs and interest against the Defendant.

49.   In conclusion, the Learned Counsel invited this Honourable Court to grant all the prayers sought in the Plaint having adduced evidence proving that the Plaintiff transferred the sum of Kenya Shillings Twenty Four Million Seven Thirty Two Thousand Five Sixteen Hundred (Kshs.24,732,516.00/=) to the Defendant for the joint purchase and development of the suit land. Further they led in evidence to prove that the Defendant fraudulently registered the property solely in her name despite the existence of consensus ad idem with the Plaintiff that they were co - purchasers.

VI.   Analysis and Determination

50.   I have carefully read and analyzed all the pleadings herein, both the oral and all the documentary evidence adduced in court, the written submission, the cited myriad of authorities made by the Plaintiff and the relevant provisions of the Constitution of Kenya, 2010 and the statures.

51.   From the pleadings filed, evidence adduced by and on behalf of the Plaintiff the issue that arises for this court’s determination is whether or not the Plaintiff has acquired title to the suit land by operation of the doctrine of adverse possession. 

52.   Where a Defendant fails to adduce evidence in support of the Defence and fails to attend court to prosecute the case, the Plaintiff’s evidence escapes the possibility of being controverted by defence evidence. It escapes the scrutiny of cross-examination by the Defendant. It therefore stands unchallenged and uncontroverted. However, the Plaintiff does not escape the burden and standard of proof which he has to satisfy and discharge in accordance with the law in order for his claim to succeed.

53.   Section 107(1) of the Evidence Act provides that: -

“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

54.   Section 108 provides:

“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.”

55.   And 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.”

56.   I make reference to 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 on the plaintiff 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 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 judgement merely because the Defendant has not testified.’’

57.   For the Honourable Court to arrive at a reasonable, fair and Equitable decision, it has crafted four (4) key issues for its determination. These are:- 

a)   Whether the Plaintiff solely expended Kshs. 5,100,000 towards the purchase of the Suit Property and further transferred Kshs. 15,632,516 for its development.

b)   Whether the Suit Property was fraudulently registered solely in the Defendant’s name.

c)   Whether the Plaintiff is entitled to the declaratory and monetary reliefs sought.

d)   Who should bear the costs of the suit.

ISSUE No. a).         Whether the Plaintiff solely expended Kshs. 5,100,000 towards the purchase of the Suit Property and further transferred Kshs. 15,632,516 for its development. 

58.   The main substratum in this matter is singular in nature. Whether the Plaintiff solely expended of a sum of Kenya Shillings Five Million One Hundred Thousand (Kshs. 5,100,000/=) towards the purchase of the Suit Property and further transferred a sum of Kenya Shillings Fifteen Million Six Thirty Two Thousand Five Sixteen Hundred (Kshs. 15,632,516/=) for its development. The Plaintiff’s case is that he solely financed the acquisition and intended development of the property known as Whether the Plaintiff solely expended a sum of Kenya Shillings Five Million One Hundred Thousand (Kshs. 5,100,000/=) towards the purchase of the Suit Property and further transferred a sum of Kenya Shillings Fifteen Million Six Thirty Two Thousand Five Sixteen Hundred (Kshs. 15,632,516/=) for its development. The Plaintiff further produced bank transfer records and email correspondence (Plaintiff Exhibit Numbers 3–5) evidencing payment of the purchase price of a sum of Kenya Shillings Five Million One Hundred Thousand (Kshs. 5,100,000/=) and subsequent remittances totaling a sum of Kenya Shillings Fifteen Million Six Thirty Two Thousand Five Sixteen Hundred (Kshs. 15,632,516/=) for the development of container homes on the Suit Property. The remittances were made in three tranches:

•   20th September 2023 – Kshs. 5,821,710.

•   20th October 2023 – Kshs. 7,255,141.

•   20th December 2023 – Kshs. 2,555,665.

Total: Kshs. 15,632,516/=

59.   The statutory framework is clear. The provision of Section 107(1) of the Evidence Act, Cap 80 provides:

“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.”

60.   Further, the provision of Section 109 of the Evidence Act, Cap. 80 stipulates:

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence.”

61.   The Plaintiff therefore bore the burden of proving that he solely expended the purchase price and development funds. In the case of:- “Jennifer Nyambura Kamau – Versus -  Humphrey Mbaka Nandi [2013] eKLR”, the Court of Appeal reiterated that the burden of proof lies on the party who asserts the existence of a fact. Similarly, in the case of:- “Kanyungu Njogu – Versus - Daniel Kimani Maingi [2000] eKLR”, the Court emphasized that proof in civil cases is on a balance of probabilities, and the party with the heavier burden must discharge it through credible evidence. 

62.   The Plaintiff’s evidence was documentary, corroborated, and unrebutted, given that the Defendant neither entered appearance nor filed a defence. The Defendant’s silence and failure to controvert the Plaintiff’s evidence further strengthens the Plaintiff’s case. In the case:-  “Karugi & Another – Versus -  Kabiya & 3 Others [1987] KLR 347”, the Court held that uncontroverted evidence, if credible, is sufficient to discharge the burden of proof. The Defendant’s own email correspondence (PExh 3) acknowledging the Plaintiff’s financial contribution provides further corroboration that the Plaintiff was the sole financier of both the purchase and development.

63.   On the basis of the evidence tendered, the statutory provisions, and the guiding case law, I find and hold that:

a.   The Plaintiff solely expended a sum of Kenya Shillings Five Million One Hundred Thousand (Kshs. 5,100,000/=) towards the purchase of the Suit Property; and

b.   The Plaintiff further transferred a sum of Kenya Fifteen Million Six Thirty Two Thousand Five Sixteen Hundred (Kshs.15,632,516/=) to the Defendant for the development of the Suit Property.

64.   Accordingly, the Court is fully satisfied that the Plaintiff has fully discharged the burden of proof on this issue. Subsequently, the  registration of the property in the name of the Defendant in her sole name thus was obtained through illegality, fraud and misrepresentation.

ISSUE No. b).          Whether the Suit Property was fraudulently registered solely in the Defendant’s name.

65.   Under this sub – title, the Honourable Court shall examine whether the Suit Property was fraudulently registered solely in the Defendant’s name. The Plaintiff’s testimony was that, having executed the Sale Agreement dated 3rd August 2023 and remitted the full purchase price of a sum of Kenya Shillings Five Million One Hundred Thousand (Kshs. 5,100,000/=), he entrusted the Defendant and the Advocate handling the transaction to complete the process of registration. He later discovered, to his shock, that the Suit Property had been registered solely in the Defendant’s name on 23rd August 2023, contrary to the express terms of the Sale Agreement.

66.   To prove this, the Plaintiff produced a Certificate of Official Search dated 8th April 2024 (Plaintiff Exhibit Number 6), which confirmed that the Defendant was registered as the sole proprietor of the Suit Property and that a title deed had been issued in her name. The provision of Section 26(1) of the Land Registration Act, No. 3 of 2012 provides that:

“The certificate 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… 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.”

67.   The provision of Section 26 (1) of the Land Registration Act, No. 3 of 2012 provides that a certificate of title issued by the Registrar is to be taken as prima facie evidence of proprietorship. However, it may be challenged on two grounds:

a.   Fraud or misrepresentation to which the registered proprietor is proved to be a party; or

b.   Where the title has been acquired illegally, unprocedurally, or through a corrupt scheme

68.   The provision of Section 80 of the Land Registration Act empowers the Court to order rectification of the register by cancelling or amending any registration obtained by fraud or mistake.

69.   The Plaintiff’s evidence demonstrates that the Defendant procured registration in her sole name despite the Sale Agreement expressly naming both parties as purchasers. This amounts to fraud and misrepresentation. 

70.   In the case of:- “Arthi Highway Developers Ltd – Versus - West End Butchery Ltd & 6 Others [2015] eKLR”, the Court of Appeal held that a title obtained through fraud or misrepresentation is impeachable notwithstanding the principle of indefeasibility of title. Similarly, in the case of:- “Beatrice Matoya & Another (Supra)”, the Court emphasized that rectification of the register is permissible where fraud is proved. The Plaintiff’s evidence was not controverted, as the Defendant neither entered appearance nor filed a defence. In the case of:- “Karugi & Another – Versus -  Kabiya & 3 Others [Supra]”, the Court held that uncontroverted evidence, if credible, is sufficient to discharge the burden of proof.

71.   In the case of “Elijah Makeri Nyang’wara – Versus -  Stephen Mungai Njuguna & Another [2013] eKLR”, the Environment and Land Court clarified that while Section 26 protects registered proprietors, such protection does not extend to those who obtained registration through fraud, misrepresentation, or illegality. 

72.   From the above authorities, several principles are clear:

a.   Fraud must be specifically pleaded and strictly proved (though not beyond reasonable doubt, but to a standard higher than a mere balance of probabilities).

b.   Indefeasibility of title is conditional: it protects innocent purchasers for value but not those who obtained title through fraud or misrepresentation.

c.   The Court has power to rectify the register where fraud is established, even if it means cancelling a registered title.

73.   Fraudulent registration of title strikes at the heart of Kenya’s land tenure system. While the Land Registration Act seeks to protect registered proprietors, it equally recognizes that fraud cannot be shielded by the doctrine of indefeasibility. Courts have consistently balanced the sanctity of title with the need to uphold justice and equity. Where evidence shows that registration was procured through deceit, misrepresentation, or collusion, the Court will not hesitate to cancel such title and restore the rightful owner.

74.   The Plaintiff testified that, having executed the Sale Agreement dated 3rd August 2023 and remitted the full purchase price of a sum of Kenya Shillings Five Million One Hundred Thousand (Kshs. 5,100,000/=), he entrusted the Defendant and the Advocate handling the transaction to complete the process of registration. He later discovered that the Suit Property had been registered solely in the Defendant’s name on 23rd August, 2023, contrary to the express terms of the Sale Agreement. The Defendant’s registration as sole proprietor of the Suit Property, in the face of clear evidence that the Plaintiff solely financed its acquisition and development, was fraudulent, misrepresentative, and intended to defeat the Plaintiff’s beneficial interest.

75.   Therefore, the Court is satisfied that the Defendant’s registration as sole proprietor of the Suit Property was fraudulent, misrepresentative, and intended to defeat the Plaintiff’s beneficial interest. On the basis of the evidence, statutory provisions, and judicial precedent, I find and hold that the Suit Property was fraudulently registered solely in the Defendant’s name. Therefore, the Defendant’s title is impeachable under Section 26(1)(a) and (b) of the Land Registration Act, 2012.

ISSUE No. C: Whether the Plaintiff is entitled to the Reliefs sought

76.   Under this sub - title, the Court shall examine whether the Plaintiff is entitled to the prayers sought at the foot of his Plaint. Having established that the Plaintiff solely expended a sum of Kenya Shillings Five Million One Hundred Thousand (Kshs. 5,100,000/=) towards the purchase of the Suit Property and further transferred a sum of Thirteen Million Six Thirty Two Thousand Five Sixteen Hundred (Kshs. 15,632,516/=) for its development, and having further found that the Defendant fraudulently caused the registration of the Suit Property solely in her name, the Court must now determine whether the Plaintiff is entitled to the declaratory and monetary reliefs sought in the Plaint. The Plaintiff seeks, inter alia, declarations of ownership, rectification of the land register, refund of monies advanced, interest, and costs.

77.   On the declaratory reliefs, the Court has already found that the Defendant’s registration as sole proprietor was fraudulent and misrepresentative. The provision of Section 80(1) of the Land Registration Act, No. 3 of 2012 empowers this Court to order rectification of the register by directing that any registration be cancelled or amended if it is satisfied that such registration was obtained, made, or omitted by fraud or mistake. 

78.   In the case of “Beatrice Matoya & Another (Supra)”, the Court held that before an order for rectification can issue, it must be shown that the registered proprietor was party to the fraud or contributed to the mistake. In the present case, the Defendant was the direct architect of the fraudulent registration. The Plaintiff is therefore entitled to the declaratory orders sought, including rectification of the register to reflect his proprietorship.

79.   On the refund of a sum of Kenya Shillings Fifteen Million Six Thirty Two Thousand Five Sixteen (Kshs. 15,632,516/=), the Plaintiff has adequately demonstrated that he advanced this sum to the Defendant for the development of the Suit Property. The Defendant failed to apply the funds for the intended purpose and instead unjustly enriched herself. The principle of restitution applies. In the case of:- “Stephen Karanja Kibuku – Versus - Safaricom Ltd [2018] eKLR”, the Court affirmed that a party unjustly enriched at another’s expense must make restitution. Similarly, in the case of:- “Madhupaper International Limited – Versus - Kenya Commercial Bank Ltd [2003] eKLR”, the Court emphasized that equity will not permit a party to retain benefits obtained unconscionably. The Defendant’s conduct falls squarely within this principle.

80.   On interest. The provision of Section 26 (1) of the Civil Procedure Act, Cap. 21 grants the Court discretion to award interest at such rate as it deems reasonable. Given the fraudulent nature of the Defendant’s conduct and the prolonged deprivation of the Plaintiff’s funds, interest at court rates from the date of filing suit until payment in full is just and equitable.

81.   The issue of costs shall be discussed below.

82.   In light of the foregoing, I find and hold that the Plaintiff is entitled to the reliefs sought in the Plaint, namely:

a.   Declarations nullifying the Defendant’s sole registration and affirming the Plaintiff’s ownership of the Suit Property;

b.   An order directing the Land Registrar, Kwale, to rectify the register accordingly;

c.   Refund of Kshs. 15,632,516 advanced for development, with interest at court rates from the date of filing suit until payment in full.

ISSUE No. D: Who should bear the costs of the suit

83.   It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that a party is granted at the conclusion of any legal process or proceedings in any litigation. The Black Law Dictionary defines cost to means:-

“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.

84.   The provision of Section 27 of the Civil Procedure Act, Cap. 21  grants the High Court discretionary power in the award of costs which ordinarily follow the event unless the Court for good reasons orders otherwise. Section 27 (1) of the Civil Procedure Act provides as follows;-

“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”

85.   Additionally, the provision provides for ‘costs of and incidental to all suit or application’ which expression includes not only costs of suit but also costs of application in suit as described by Mulla (supra) at 536. Furthermore, Rtd. Justice Richard Kuloba in his book Judicial Hints on Civil Procedure, 2nd Edition, 2005 at 95 notes that the words ‘the event’ means the result of all the proceedings incidental to the litigation. Accordingly, the event means the result of the entire litigation.  The order as to costs as provided for under Section 27 remains at the discretion of the court.

86.   The award of costs is therefore not cast in stone but courts have ultimate discretion. In exercising this discretion, courts must not only look at the outcome of the suit but also the circumstances of each case.  In the case of: “Morgan Air Cargo Limited – Versus -  Everest Enterprises Limited [2014] eKLR” the court noted that;

“The exercise of the discretion, however, depends on the circumstances of each case. Therefore, the law in designing the legal phrase that ‘’Cost follow the event’’ was driven by the fact that there could be no ‘’one-size-fit-all’’ situation on the matter. That is why section 27(1) of the Civil Procedure Act is couched the way it appears in the statute; and even all literally works and judicial decisions on costs have recognized this fact and were guided by and decided on the facts of the case respectively. Needless to state, circumstances differ from case to case.”

87.   In this case, as this Honourable Court has opined above, the Plaintiff has proved his claim against the Defendant herein  and therefore shall have the costs of the suit.

VII.   Conclusion and Disposition

88.   In the end, having caused such an in-depth analysis to the framed issues herein, the Honourable Court on the preponderance of probabilities finds that the Plaintiff has  established their case against the Defendant herein. Thus, the Court proceeds to make the following specific orders:-

a)   THAT Judgment be and is hereby entered in favour of the Plaintiff as per the Plaint dated 26th April, 2024 in its entirety.  

b)   THAT a Declaration be and is hereby made that the Defendant’s acts of causing the registration of the property known as Kwale/Diani S.S/4931 solely in her name was unlawful, wrongful, hence null and void.

c)   THAT a Declaration be and is hereby made that the Plaintiff is the sole legal, beneficial and indefeasible owner of all the property known Kwale/Diani S.S/4931.

d)   THAT an order be and is hereby issued directing the Land Registrar, Kwale Land Registry to henceforth register all the property known as Kwale/Diani S.S/4931 WITHIN THE NEXT NINETY (90) DAYS from the date of this Judgement in the name of the Plaintiff.

e)   THAT an order do and hereby issued directing the Defendant to refund the sum of Kenya Shillings Fifteen Million, Six Hundred and Thirty-Two Thousand, Five Hundred and Sixteen (Kshs. 15,623,516.00) wired to the Plaintiff for the purposes of developing the property known as Kwale/Diani S.S/4931 WITHIN THE NEXT 30 DAYS from the date of this Judgement.

f)   THAT interest on (e) from the date of filing the suit until payment in full.

g)   THAT the costs of the suit shall be in favour of the Plaintiff to be borne by the Defendant.  

IT IS SO ORDERED ACCORDINGLY. 

JUDGMENT DELIVERED THROUGH MICRO – SOFT TEAMS VIRTUAL MEANS SIGNED AND DATED AT KWALE THIS……11TH ….………DAY OF ………..DECEMBER……….….2025.

Judgement delivered in the presence of:

a)   Mr. Daniel Disii, the Court Assistant.

b)   Mr. Mutugo Advocate for the Plaintiff.

c)   No appearance for the Defendant.