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JudgmentOH DAE KENYA LIMITED VS ROSE LANGAT AND PATRICK MUTUNKEI27 min read

OH DAE KENYA LIMITED VS ROSE LANGAT AND PATRICK MUTUNKEI

Environment and Land Court at Kajiado Environment and Land Court · · M.N. Gicheru

1. The Plaintiffs’ claim against the Defendants is for the following reliefs.

  1. A declaration that LR. No. Kajiado/Kitengela/7468 and 551, suit parcels, which were initially known as Kajiado/Kitengela/183 measuring about 121.41 Ha. and any other subsequent subdivisions or mergers thereof belong and are owned by the late Jeremiah Mutunkei Kiponyi.
  2. An order compelling the 3rd Defendant to cancel and/or revoke title deeds to the suit parcels in the names of Oh-Dae(Kenya)Ltd and Embakasi Ranching Company Ltd and any other subdivisions thereof and open a new register/green card in the names of the late Jeremiah Mutunkei Kiponyi(deceased) and/or restore status as at 10th June 1983.
  3. Permanent injunction restraining the 1st and 2nd Defendants from encroaching, trespassing, interfering, whether themselves or their agents and servants with the ownership, use and possession by the Plaintiffs of the suit property.
  4. Costs of the suit.
  5. Mesne profits for illegal trespass.
  6. Interest on (d), (e) and (f) above.

This is as per the further amended plaint dated 11-5-2023.

The Plaintiffs’ case is as follows.

2. Firstly, they are the administratrices of the estate of the late Jeremiah Mutunkei Kiponyi, having been obtained this capacity through High Court Kajiado Succession Cause No. 34 of 2017. Secondly, the Plaintiffs reside on L.R. No. Kajiado/Oloitikoshi/Kitengela/22 where  they also conduct farming including cattle rearing. Thirdly, the deceased Jeremiah Mutunkei secured the services of a land surveyor in the year 1983 because he wanted to subdivide  the land into two portion. He was to sell one portion and utilize the proceeds in educating his large family. Fourthly, upon the subdivision of the original parcel into LR. No. Kajiado/Kitengela/182 and 183 L.R. No. 183 was never registered to the deceased as expected. Instead it later became L.R. No. Kajiado/Kitengela/7468. Fifthly, the deceased initiated an investigation to find out about L.R. No. 183. He found that the land was registered in the name of the 1st Defendant. The Plaintiffs believe that the 1st Defendant acquired the suit land fraudulently and without their knowledge. Sixthly, the Plaintiffs do not know the 1st and 2nd Defendants. The deceased did not transact with the 1st and 2nd Defendants. Seventhly,  the matter was reported to the Criminal investigations department at Kajiado. The 1st Defendant wrote a letter disassociating itself from the suit land. Eighthly, the 2nd Defendant has never reported to the CID Kajiado despite several summonses issued to it. Ninthly, none of the Defendants had ever occupied the suit land until this court made a ruling on 25-10-2021 allowing an application for injunction made by the second Defendant against Rose Langat and Patrick Mutunkei. This was in ELC Cause No. 29 of 2020. After the ruling of 25-10-2021, the directors and employees of the second Defendant came to the suit land in the company of the police and forcefully book possession of the suit land. In addition to the above, the Plaintiffs have pleaded seven(7) particulars of fraud. They include,

  1. Transfer of the suit without authority of the registered owner.
  2. Presenting forged transfer instruments, transfer not being attested or no transfer at all.
  3. Purporting to transfer L.R. 183 to the 1st Defendant without the consent of the Land Control Board, purporting to subdivide the same into parcels 352-550 and 552-850 into L.R. No. 7468 measuring 290 acres and L.R. No. 551 measuring 10 acres with the intention of confusing and defrauding the owner.
  4. By transferring the suit land to the 1st Defendant without any consideration to the deceased and thereafter transferring some part of it to the 2nd Defendant without any consideration with the motive of retransferring it back to the 2nd Defendant L.R No. 7468 to the 1st Defendant.
  5. The  4th Defendant drawing and registering a fraudulent mutation dated 1-1-1983.
  6. Fraudulently transferring agricultural land to the  2nd Defendant, a company owned by foreigners without seeking the consent of the Land Control Board and other laws of Kenya.
  7. The 3 Defendant unlawfully and fraudulently transferring the suit land to the 1st and 2nd Defendants without transfer documents executed by the deceased.

For the above and other reasons, the Plaintiffs pray for the orders as per paragraph 1 above.

3. In support of their case, the Plaintiffs filed the following evidence.

  1. Witness statements by the two Plaintiffs, Kipanua ene Keponyi and Jimmy Kitamete.
  2. Copy of Grant in Kajiado High Court Succession Cause No. 34 of 2017.
  3. Copy of letter by DCI dated 31-7-2018
  4. Copy of certificate of death for Jeremiah Mutunkei  Kiponyi dated 2-8-2013.
  5. Copy of gazette notice dated 21-7-2017.
  6. Copy of green card extract for L.R. No. 22 running from 15/8/1978 to 10/6/1983 and for L.R. No. 183 and 7468.
  7. Copy of  title deed for L.R. No. 7468 in the name of the 2nd Defendant dated 14/4/2003.
  8. Copy of application for registration of caution dated 2-8-2016 together with receipt.
  9. Copy of letter to DCIO Kajiado from Plaintiff’s Counsel dated 18-4-2020.
  10. Copy of letter by Embakasi Ranching dated 21-9-2017.
  11. Copy of mutation form registered on 3-12-1996 for parcel Nos. 352-550 and 552-830.
  12. Copy of mutation form for L.R. No. 22 dated 28-1-1983.
  13. Copy of letter to CID Kajiajo dated 25-10-2021 written by the Plaintiff’s counsel.
  14. Copy of authority to swear affidavit dated 9-11-2021.
  15. Witness statement by Linus Ekiru Lotulya dated 15-11-2023.
  16. Copy of order issued in CM’s Kajiado Miscellaneous application No. 70 of 2020.
  17. Copy of letter by Central Bank to Kajiado CCIO dated 14-9-2020.
  18. Copy of letter from Daima Bank dated 22-10-2020 saying that account No. 001350005 does not exist.

4. The 1st Defendant, through counsel on record, filed a written statement of defence dated 10-7-2023 in which it avers as follows.

One, all the averments in the further amended plaint are denied. Two, the 1st Defendant owns L.R. No. 183. Three, the suit land was bought from the late Jeremiah Mutunkei Kiponyi alias Mutunkei Ole Kiponyi on 10-6-1983 at a consideration of Kshs.2.1 million. Four, the 1st Defendant is not party to any fraud. Five, there was no sale of the suit land by the 1st Defendant to the 2nd Defendant. For the above and other reason, the 1st Defendant prays for the dismissal of the suit against it.

5. In its counterclaim, the 1st Defendant prays for  the following reliefs against the Plaintiffs and the 2nd Defendant jointly and severally.

  1. A declaration that L.R. No. Kajiado/Kitengela/7468, suit land, was fraudulently transferred from the 1st Defendant’s name and registered in the 2nd Defendant’s name.
  2. A declaration that the 1st Defendant is the legal owner and proprietor of the suit land.
  3. An order directed at the 3rd Defendant to cancel the registration of the 2nd Defendant as the proprietor of the suit land and the title deed issued to it dated 14-4-2003.
  4. An order that the suit land be retransferred and registered in the name of the 1st Defendant. 
  5. An order of injunction restraining the Plaintiffs and the 2nd Defendant, their agents and/or servants from trespassing, entering, encroaching and/or dealing with in whatever manner the suit land.
  6. A permanent  order of injunction restraining the Plaintiffs and the 2nd Defendant whether by themselves, their agents, servants, employees or any other person claiming under them from claiming ownership or any  other rights howsoever over the 1st Defendant’s suit land.
  7. General damages for trespass on the suit land.
  8. Costs of this suit.
  9. Interest on (g) and (h) above
  10. In the alternative an order directed at the 2nd Defendant to compensate the 1st Defendant for the loss of the suit land at the current market value together with interest thereon from the date of the transfer and registration to the 2nd Defendant until payment  in full.
  11. Any other order that this court deems fit and just to grant.

6. The 1st Defendant’s case in support of the Counterclaim is as follows. Firstly, after purchasing the suit land from the late Mutunkei Kiponyi on  10-6-1983, the 1st Defendant subdivided it into parcels numbers 352-830 with a  view to distributing it among its shareholders but the process of distribution stalled due to internal issues which included disagreements between the shareholders and former directions of the 1st Defendant on how the portion ought to have been distributed and to whom. Secondly, on 5/12/1996 the 1st Defendant had the subdivisions combined to form the suit land as the decision on how to utilize it was put in abeyance. Thirdly, in April 2023, the  1st Defendant learnt that the suit land was fraudulently transferred in the name of the 2nd Defendant without its knowledge and/or consent. Fourthly, the 1st Defendant is a land buying company whose core business is to purchase land, subdivide  it and distribute it to its shareholders and it was not in the business of selling land and has never done so since it was established in the year 1975. Fifthly, the 1st Defendant has a laid down procedure of conducting business which includes acquisition and disposal of property and the sale of the suit land would have been subjected to that procedure including calling an AGM of shareholders to authorize the sale. Sixthly, no decision was ever made by the shareholders of the 1st Defendant to sell the suit land to the 2nd Defendant and its registration to the 2nd Defendant was fraudulent.

7. The 1st Defendant enumerates the following particulars of fraud on the part of the 2nd, 3rd and 4th Defendants.

(a) Registering  the 2nd Defendant as the proprietor of the suit land without following the laid down procedures for registration.

(b) Registering the suit land in the name of the 2nd Defendant without any document from and/or using forged documents from the 1st Defendant.

( c) The 3rd Defendant registering the suit land in the name of the 2nd Defendant without any sale agreement and/or resolution of the shareholders of the 1st Defendant.

(d) The 3rd Defendant registering the suit land in the name of the 2nd Defendant without payment of any consideration.

( e) The 2nd Defendant presenting fake/an or forged documents from 1st Defendant to apply  for a title deed to the suit land.

( g) The 3rd Defendant issuing a title deed to the suit land using fake and/or forged documents in complete disregard to the provisions of the Land Registration Act.

For the above and other reasons, the 1st Defendant states that it has good title and is the legal owner of the suit land.

8. In support of its case, the 1st Defendant filed the following evidence.

  1. Witness statements by Phideli Wangari and Harun Kamau Ndungu.
  2. Copy of certificate  of incorporation dated 19-6-1975.
  3. Copy of articles of association.
  4. Copy of memorandum of association.
  5. Copy of CR 12
  6. Copy of mutation form dated 18-1-1983
  7. Copy of green card
  8. Copy of mutation form dated 20-11-1996.
  9. Copies of green cards for parcels numbers 352-550 and 552-850.

9. The  2nd Defendant in its amended statement of defence, defence to the 1st Defendant counterclaim and its own counterclaim dated 6-10-2023 avers as follows. One, the averments in the amended plaint and the 1st Defendants counterclaim are denied. Two , parcel No. 22 was subdivided into L.R. Nos  182 and 183. Three, the late Jeremiah Mutunkei retained L.R. No. 182 and sold L.R. No. 183 to the 1st Defendant who in turn sold it to the 2nd Defendant  after subdivision and consolidation. Four, the 2nd Defendant is not aware of  L.R. No. 551, or where it could be.  Five, there cannot be any fraud in a transaction where all the parties willfully and with authority to do  so transacted  in selling and buying of the suit land. Six, all the allegations of fraud are vehemently denied and the 2nd Defendant acquired good title. Finally, there exists another suit filed by the Plaintiffs over the subject matter.

10. In the 2nd Defendants defence to the 1st Defendant’s counterclaim, it is averred as follows. Each allegation in the counterclaim is denied. Two, the 1st Defendant lawfully sold and transferred the suit land to the 2nd Defendant. Three, the 1st Defendant had power  and authority, though its elected directors and officials to sell and transfer the suit land to the 2nd Defendant. Four, the 1st Defendant made a resolution to sell the suit land. Five, the 2nd Defendant is not aware of any fraud and it innocently purchased it without notice of any other claim.  Six, the 1st Defendant received the full purchase price and since the year 2003, no one ever raised a claim. Six, the 2nd Defendant is in occupation and possession of the suit land since they purchased it in the year 2003 by fencing off a bigger chunk of it. Finally, the 1st Defendant’s rights over the suit land were extinguished once they sold it to the 2nd Defendant.

11. In its counterclaim against the Plaintiffs and the 1st Defendant, the 2nd Defendant seeks the following orders.

a) The Plaintiff’s suit and the 1st Defendants’ counter claim be dismissed with costs.

b)  An order of inhibition restraining any dealings of any nature whatsoever on the suit land without the express approval and consent of the 2nd Defendant.

c) An order of permanent injunction restraining the Plaintiffs and the 1st Defendant, their servants, agents, third parties, and any other persons claiming under them from entering , trespassing, remaining in , excursing, beaconing, subdividing, constructing on, grazing, or in any manner having any dealings within or in respect to the suit land.

  d) An order to the OCS Rongai Police Station or any other near police station

                                    does assist in the enforcement of any orders issued herein.

e) An order for removal of any restrictions, caveats or encumbrances registered by any party over the suit land.

f) An order directed to the 3rd and 4th Defendants to fix boundaries of the suit land measuring 121.4. hectares.

g) General damages.

h) Costs and interest.      

  1. Any other relief that the court may deem fit to grant.

12. In support of the counterclaim the 2nd Defendant avers as follows.  One, it filed case No. E029 of 2020 and finally relies on the contents  of the Plaint thereof. Two, the Plaintiffs herein had started trespassing and encroaching on the suit land measuring 121.4 Ha but they were stopped by orders of this Court issued in Kajiado ELC No. E029/2020 on  25-10-2021 but the boundary that they had disturbed has not been fixed. Three,  the 2nd Defendant has since found out that  the Plaintiff and the 1st Defendant and other unknown persons have put or attempted to put restriction and caveats over the suit land making it impossible to utilize the land for the intended  developments. Finally, the 2nd Defendant has suffered immense losses due to the said restrictions and caveats and thus lack of approvals for its development of a university and a hospital among other amenities in this prime parcel of land worth over Kshs. 2 billion now.

For the above reasons, the 2nd Defendant prays that the Plaintiffs’ suit and the 1st Defendant’s Counterclaim be dismissed and its own counterclaim be allowed as drawn.

13. In support of its defence and counterclaim, the 2nd Defendant filed the following evidence.

  1. Witness statement by  Hoi Park, a director of the 2nd Defendant.
  2. Copy of letter of authority dated 28-5-2020.
  3. Copy of letter dated 5-12-2001 authorizing the company secretary and chairman of the 1st Defendant to sell the suit land.
  4. Copy of sale agreement dated 27-2-2003.
  5. Copy of documents acknowledgment dated 27-2-2003.
  6. Acknowledgment document for deposit payment dated 27-2-2003.
  7. Copy of letter dated 4-3-2003 forwarding the sale agreement.
  8. Copy of application for the consent of the land control board.
  9. Copy of the consent of the land control board dated 12-3-2003.
  10. Transfer document duly registered on 14-4-2003.
  11. Copy of title deed for the suit land dated 14-4-2003.
  12. Post registration searches dated 14-4-2003 and 31-10-2014.
  13. Copy of notification of approval of development permission.
  14. Assorted photographs.
  15. Copy of demand letter dated 18-5-2020.

14. The 3rd and 4th Defendants filed a written statement of defence dated 3-10-2023 in which  they aver as follows. One, the allegations in the further amended plaint are all denied. Two, the late Jeremiah Mutunkei  Kiponyi was never registered as the owner of the suit land. Three, all the transfers and registrations in respect to the suit land were conducted in accordance with the lawful mandate of the 3rd Defendant. Four, the late Mutunkei subdivided L.R No. 22 into parcels numbers 182 and 183 and transferred the latter parcel to the 1st Defendant. Five, L.R.  No. 7468  was lawfully registered in the name of the 1st Defendant and lawfully  transferred to the 2nd Defendant on 14-4-2003. Six, the subdivision and registration of the suit property was in accordance with the lawful mandate of their offices upon conducting due diligence of documents submitted before them. Finally, the suit was instituted without demand  and notice of intention to sue and the Plaintiffs are not entitled to costs.

For the above reasons, the 3rd and 4th Defendants pray that the Plaintiffs’ suit against them be dismissed.

15. In support of their case, the 3rd and 4th Defendants filed the following evidence.

  1. Witness statement by Rosemary Mwangi, Land Registrar dated 3-10-2023.
  2. Copy of title deed for L.R. No. 7468 dated 5-12-1996 in the name of the 1st Defendant.
  3. Copy of transfer form for the suit land from the 1st Defendant to the 2nd Defendant.
  4. Copies of mutation form, registered on 3/12/1996, letter from 1st Defendant dated 5-12-2001, consent of the L.C.B dated 12-3-2023 application for consent of the L.C.B dated 12-3-2023.
  5. Copy of mutation form for L.R. No. 183 registered  on 13-8-1985.
  6. Copy of letter of consent for subdivision of L.R. No. 183 from Kajiado LCB dated 12-3-1985.
  7. Copy of application for consent of the L.C.B dated 9-1-1985.
  8. Copy of memo dated 29-7-1985 from the ministry of Lands and Settlement.
  9. Copy of letter dated 29-7-1985 from Embakasi Ranching Co. Ltd.
  10. Copy of investigation form dated 29-7-1985.
  11. Copy of application for registration of mutation for LR. 183 dated 29-7-1985.
  12. Copy of application  for registration of transfer of L.R. No. 183  dated 10-6-1983.
  13. Certificate of incorporation for the 1st Defendant.
  14. Copies  of  green cards for 484 parcels all of which mutated from L.R. No. 7468.

16. At the trial on 16-10-2023, 16-10-23, 29-4-24 and 7-11-2024, a total of six witnesses testified. They included the 2nd Plaintiff on the part of the Plaintiff, Fideli Wangari, Linus Ekiru and Harun Kamau Ndungu’u for the 1st Defendant, Hoik Park for the 2nd Defendant and  R.W. Mwangi for the 3rd and 4th Defendants.

17.  On the part of the Plaintiffs, Naserian Mutunkei adopted her witness statements and documents in terms of paragraphs [2] and [3] above. Her cross-examination by the 1st Defendant’s counsel was on why the police took no action on the alleged fraud of the 1st Defendant and why her husband did nothing to recover his land from the 1st Defendant even after discovering the alleged fraud.

18. The Cross-examination of the Plaintiff’s witness by the 2nd Defendant was on whether she has expert evidence of a documents examiner to prove that any of  the conveyancing documents that she produced was forged.

19. The cross-examination by the Attorney General was on the reason why the late Mutunkei Kiponyi had to subdivide his land in the year 1983. Her answer was to the effect that he did it to separate his four  (4) wives.

20. The first witness for the first Defendant gave evidence as per paragraph [4], [5], [6],[7] and [8] of this judgment. She was cross-examined by counsel for the 2nd Defendant on the history of the 1st Defendant company, whether she ever worked with the chairman named Muhuri Muchiri who is said to have bought and sold the suit land. It was also put to her that she is not familiar with Muhuri Muchiri’s signature.  The absence of the Company records especially a sample of its resolutions and bank statements for the relevant period were also raised.  The ability of the former chairman to buy the suit land on behalf of the 1st Defendant and his disability to sell it was questioned as were specific clauses in the Memorandum and articles of association providing for the disposal of assets.

The Attorney General questioned the witness on the lack of expert evidence to disprove the signatures of the 1st Defendant’s  chairman on the sale agreement and the reason for the amalgamation of the 600 parcels if the intention of the Company was not to sell the suit land.

21. The second witness for the Plaintiffs on cross-examination by the 1st Defendant said  that the transaction between the 1st and 2nd Defendants was disowned by the  then chairman Mwangi Thuita who said that the Company was not involved in land grabbing. When shown the mutation form dated 28/1/1983, he said he had no evidence that it was fake. When shown the copy of green card, he said he had not seen it before.

22. When the same witness for the Plaintiff was cross-examined by counsel for the 2nd Defendant ,he said that the alleged fraud was still under investigation but not by him. His main concern was the evidence from Daima Bank saying that the account No. 001350005, where the balance of the purchase price paid to the 1st Defendant came from, did not exist.

23. The 2nd Defendant’s witness testified by adopting his evidence as summarized in paragraphs [9], [10],[11],[12] and [13] of this judgment. In cross-examination by counsel for the Plaintiff and the 1st Defendant, the witness reiterated that he paid full purchase price through his lawyer  and he took possession of the suit land by constructing a house for the caretaker at first and later fencing it.

24.  The land registrar’s evidence is to the effect that the transactions in relation to the suit land from 1983 were all lawful and in accordance with the law as can be seen from the copies of the green cards produced as evidence.

25. The evidence of the representative of the Chairman of the land control board did not elicit any significant cross-examination. His evidence was mostly about the unavailability of the records after seven (7) years.

26. Counsel for the parties filed written submissions dated 21-11-2024, 20-1-2025, 27-1-2025 and 11-3-2025 respectively.

The Plaintiff’s Counsel identified the following issues.

  1. Whether the transfer of  L.R. No. Kajiado/Olooloitikoshi/Kitengela/183 from the late Jeremiah Mutunkei Kiponyi to Embakasi Ranching  Company Limited was illegal, irregular and fraudulent.
  2. Whether the title deed for the property No. KJD/Kitengela/7468 and Kajiado/Kitengela/551 in the name of Oh-Dae (Kenya) Ltd and Embakasi Ranching Company Limited respectively should be cancelled, recalled and revoked.
  3. Whether this court should issue orders of permanent injunction against the Defendants.
  4. Whether  the Plaintiffs should be awarded mesne profits.
  5. Who should bear the costs.

27. The issues identified by the 1st Defendant’s counsel are as follows.

  1. Whether the late Jeremiah Mutunkei Kiponyi sold L.R. No. Kajiado/Olooitikoshi/183 now Kajiado/Kitengela/7468 to the 1st Defendant.
  2. Whether the 1st Defendant committed any fraud while acquiring the suit land from the deceased.
  3. Whether the 1st Defendant sold the suit land to the 2nd Defendant  and/or whether the 2nd Defendant fraudulently acquired the suit land and had the same registered in its name.
  4. Whether the Plaintiffs are entitled to the orders sought.
  5. Whether the 1st Defendant is entitled to the orders sought  in  the counterclaim.
  6. Whether the 2nd Defendant is entitled to the orders sought in its counterclaim.

28. On the part of the 2nd Defendant, its counsel identified the following issues.

  1. Whether the Plaintiffs have proved their case of fraud against the Defendants.
  2. Whether the 1st Defendant sold and transferred L.R. No. Kajiado/Kitengela/7468 to the 2nd Defendant.
  3. Whether the 2nd Defendant has proved its counterclaim  to the required standard and if so, whether they have a good title to the suit parcel.
  4. Costs.

29. The 3rd and 4th  Defendants identified the three issues below.

  1. Whether all the transfers and registration in respect to the suit property was conducted in accordance with the lawful mandate of the 3rd Defendant.
  2. Whether there was any fraud on the part of the 3rd and 4th Defendants.
  3. Who should bear the costs of the suit.

30. I have carefully considered all the evidence adduced in this case by all the parties including the witness statements, the documents and testimony at the trial. I have also considered the submissions by learned counsel  for the parties, the issues identified and the law cited. I make the following findings on the identified issues.

31. On the first of the Plaintiff’s issues, I find that the transfer of  L.R. No. 183 from the late Mutunkei was not illegal , irregular or fraudulent.

It is the Plaintiffs who are making  all the allegations of fraud, illegality  and irregularity. Under section 107(1) of the Evidence Act it is provided as follows.

“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”.

Section 108 of the same Act continues as follows.

“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

In this case, it is the Plaintiffs who would fail if no evidence were adduced in this case. This is because the 2nd Defendant is not only the registered owner of the suit land but it is also in occupation thereof.

For the Plaintiffs to succeed in their case they need to prove all the seven particulars of fraud on a standard  of proof higher than in ordinary civil cases where it is on a balance of probabilities. Where fraud is pleaded, it must be proved to the standard set in the case of Ndolo vs Ndolo, Civil Appeal No. 128 of 1995] (1996) eKRL. In this case , the standard of proof was set as follows.

“We start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities, but the burden of proof on the Respondent was certainly not one beyond reasonable doubt as in Criminal cases…”

32. It is my finding that the Plaintiffs have fallen short of even the lower burden in ordinary civil cases let alone the higher one in fraud cases for the following reasons.

Firstly, in her witness statement dated 24-7-2020, Naserian Mutunkei had this to say in the second last line at Page 1.

“… which we both believed to have been acquired fraudulently without our knowledge…”

The use of  the word “believed” thoroughly undermines the Plaintiff’s case as one not based on knowledge of the facts but  mere  belief. It shows lack of confidence in what the Plaintiffs are alleging.

Secondly, in the same witness statement, the same witness had thus to say in paragraph 6 of her witness statement.

“…he wanted the suit land subdivided into two portions to allow him dispose one portion by way of sale and utilize the proceeds in educating our large families…”

Yet at page 17 of the typed proceedings while under cross-examination by Mr. Mwambonu for the 3rd and 4th Defendants, she had thus to say.

“…my husband told us the reasons for the subdivision. This was not because he waited to sell 183. The reasons were that 2 wives could occupy the land and the other two wives the other…”

The Plaintiffs are inconsistent as to the reasons for the subdivision of the L.R No. 22.              This inconsistency makes them lose credibility. Yet they have a heavy of proof. Thirdly, the Plaintiffs cannot explain why their husband took no action to recover his land from the year 2003 when the 2nd Defendant occupied it to the year 2013 when he died. If he had not sold the land in the year 1983, he would have done everything he could to recover it. The fact that he took no action at all to recover it corroborates the assertion by the 1st Defendant that it bought the land from the late Mutunkei.

Finally, on this just issue, the Plaintiffs should have proved that the signature on the mutation form dated 28-1-1983 was not made by the late Mutunkei. The easiest way to prove this was to compare that signature with the known signatures of the deceased. Failure to call this kind of evidence means that the Plaintiffs case falls short of the stand in the case of Ndolo vs Ndolo(Supra).

33. As for issues (b), ( c) and (d), I find in the negative because they all depended on a positive finding on issue (a). In short the title deed in the name of the 2nd Defendant cannot be cancelled, recalled or revoked on the insufficient evidence called by the Plaintiffs. The court cannot issue orders of permanent injunction against the 2nd Defendant nor order it to pay mesne profits in favour of the Plaintiffs.

Section 26 of the Land Registration Act provides as follows.

“ The certificate of title issued by the Registrar… 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…”

The Plaintiffs have not adduced any evidence to displace this presumption  especially because of the evidence from the land registrar that the registration of the 2nd Defendant as the owner of the suit land is impeccable.

34. The 1st Defendants issues come up next for determination and on the first one, I find that the late Mutunkei sold L.R. No. Kajiado Olooloitikoshi/Kitengela/183 to the 1st Defendant. The reasoning in paragraph [32] of this judgment applies to this issue. The same reasoning  applies to the 1st Defendant’s second issue. The 1st Defendant did not commit any fraud while acquiring the suit land from the deceased.

35. Coming to the 1st Defendant’s 3rd issue, I find that the 1st Defendant sold the suit land to the second Defendant and there was no fraud on the part of the 2nd Defendant. The following are the reasons for this finding. Firstly, in the counterclaim, the 1st Defendant pleaded six(6) particulars of fraud. By pleading fraud, like the Plaintiffs did in their Plaint, the 1st Defendant put itself in the bracket of having to prove fraud to the standard in the case of Ndolo vs. Ndolo (supra). The two witnesses called by the 2nd Defendant did not preponderate this burden to the required standard. Fideli Wangari never worked with the late Muhuri Muchiri who bought  the suit land from the late Mutunkei and who sold it to the 2nd Defendant. She did not  produce the known signatures of Muhuri Muchiri and subject them to forensic examination by an expert in comparison with the signatures on the acknowledgment dated 27/2/2003 signed by him.  She did not do the same with the application for the consent of the land control board, the letter dated 5-12-2002 and the transfer of land form registered on 14-4-2003. That was the surest way of proving that the late Muhuri Muchiri did not sign the documents. Her oral evidence is not sufficient in the face of the availability of credible and consistent  evidence adduced by the 2nd Defendant proving compliance with all his legal procedures.

36. Secondly, the burden of proof was on the 1st Defendant to prove all the averments in the pleadings. The witness did not produce the Company records especially the resolutions and bank statements to prove that the records for the relevant period do not show banking of the balance of the purchase price. No evidence was adduced by the 1st Defendant showing an inventory of the land that they  own. Such an inventory would show the land bought and the land distributed to members of the 1st Defendant. It would also show the suit land among the undistributed assets of the 1st Defendant. Without such records, reliance on the word of witnesses who may not even have worked with the officials involved in the transactions in question becomes risky. If the 1st Defendant really owned the suit land, they would not have waited to be served with the Plaintiffs’ pleadings and summons to suddenly remember that they own the suit land.

37. Thirdly, the only other thing that the 1st Defendant  is holding onto in its claim  to own the suit land is the absence of documentary evidence to prove that the 2nd Defendant paid the balance of the purchase  price to the  1st Defendant’s bank account. The 2nd Defendant has adduced all the other critical evidence like the sale agreement, acknowledgement of receipt of Kshs. 1,950,000/= being 10% of the purchase price, application for consent of the land control board, the consent itself, the transfer of the land instrument duly signed by the then Chairman of the 1st Defendant, the title deed, certificates of official search, notification of approval of development permission and occupation. This is very substantial proof of ownership and compliance with the law and procedure in the acquisition of such ownership. It was upon  the 1st Defendant to prove failure of payment of the balance of the  purchase  price and not vice versa. For Muhuri Muchiri  to have signed the transfer instrument, he must have received the full purchase price as per the sale agreement.  After all, the 2nd Defendant has a good explanation about where he paid the balance. This is into account No.001350005 Daima Bank Limited. The letter dated 22-10-2020 says in part,

“…obtaining from the order, we have undertaken sanity of the records in our possession and noted that Daima Bank account No.001350005 does not exist…However with more supporting documents and details on the account and payments made, we can be of further assistance…”.

My understanding of this letter is that the account number did not exist on 22-10-2020. This does not mean that it did not exist in the year 2003. My further understanding is that with more particulars supplied to the liquidators of the bank, the account details could be traced. The Plaintiffs and the 1st Defendant did not call the author of the letter as a witness to explain what his letter means.

This evidence produced by the Plaintiffs  and the 1st Defendant is not sufficient to prove fraud to the standard in the case of Ndolo vs Ndolo. It is overwhelmed  by all the other evidence adduced by the 2nd Defendant in proof of ownership.

38. As for the 1st Defendants 4th issue, I find that the Plaintiffs are not entitled to the orders sought for the already given reason of failure to prove their case at all. In the same vein, the 1st Defendant is not entitled to the orders sought in the counterclaim for the same reasons of failure to prove their case against the 2nd Defendant at all as in paragraph [35], [36] and [37] of this judgment.

39. I find that the 1st and 2nd of the 2nd Defendant’s issues have already been decided in determining the issues raised by the Plaintiff and 1st Defendant. The only issue remaining is the 3rd one. I find that the 2nd Defendant has proved its counterclaim to the required standard on a balance of probabilities. Not only does it have possession of the suit land but also registration  obtained         

Legally and procedurally  as per the finding in paragraph [37] of this judgment.

40. It would be mere repetition if I have to go into detail on the issues identified  by the 3rd and 4th Defendants. In summary, I find that the registration of the suit land in the name of the 2nd Defendant was conducted in accordance with the lawful mandate of the 3rd Defendant and there was no fraud on their part. All the transactions are supported by all the necessary documents and instruments making the registration of the 2nd Defendant as the owner of the suit land lawful, procedural and proper.

41. On costs, I find that the 1st Defendant should not have joined the dispute of ownership knowing very well that it had no records to prove fraud, more than 20 years after its former officials had lawfully sold the suit land to the 2nd Defendant. The 1st Defendant and the Plaintiff must therefore pay the costs to the 2nd, 3rd and 4th  Defendants.

42. In conclusion and for the reasons already given, I dismiss the Plaintiffs, suit with costs to the 2nd, 3rd and 4th Defendants. I dismiss the 1st Defendant’s Counterclaim against the 2nd Defendant with  costs to the 2nd, 3rd and 4th Defendants.

I enter judgment for the 2nd Defendant as per prayers (a), (b), ( c), (d), (e), (f) and (h) of the counterclaim.

It is so ordered.

Dated, signed and delivered virtually at Murang’a this 14th day of  May, 2025.

M. N. GICHERU                                                JUDGE

Delivered online in the presence of:-

Court Assistant – Mwangi Njonjo

Plaintiffs’  Counsel –  Miss Shikali and Mr Nyamweya

1st Defendant’s Counsel – Mr Kariuki

2nd  Defendant’s Counsel – Mr Kirimi

3rd and 4th Defendant’s Counsel -

    OH DAE KENYA LIMITED VS ROSE LANGAT AND PATRICK MUTUNKEI OH DAE KENYA LIMITED VS ROSE LANGAT AND PATRICK MUTUNKEI