RAMESHCHANDRA G. SHAH VS EPHREM WANYOIKE NGUNYO AND GREY OAK LIMITED AND 4 Others

PLAINT.

1    The Plaintiff commenced this suit by way of Plaint dated 7^th July 2022 filed on 12/7/22. It is averred he is the registered owner of parcel No. Kwale/Galu Kinondo/620 (herein the suit property) having acquired it from Kanji Manji and Balwant Kaur Malkit Singh Grewal on 25^th February 2011. That pursuant to the transfer the Plaintiff was issued with a certificate of title and a green card proving his legal ownership and took possession. That the 1^st ,2^nd and 3^rd Defendants conspired to disposes him of the suit property. That in June 2022 the 2^nd Defendant trespassed into the suit property, destroyed structures and crops claiming he purchased the same from the 1^st Defendant. That upon investigations it emerged the transfer to the 1^st Defendant was registered around January 2021.

2    It is averred that at the prompting of the 1^st Defendant, the 3^rd Defendant published a Gazette Notice calling for objections for replacement of the 1^st Defendant green card which was claimed to be lost. That being unaware of this notice the Plaintiff did not raise objection to the 1^st Defendants alleged title. It is stated that the Plaintiff had not sold the property to anyone. That the 2^nd Defendant has continued to illegally trespass on the suit property in violation of the Plaintiffs rights and freedoms. The Plaintiff prays interalia for a declaration that the suit land belongs to him.

DEFENCE

3    The 1^st Defendant filed Statement of Defence on 26^th January 2023 dated 18^th January 2023. It is averred that the suit does not disclose a cause of action against the 1^st Defendant. That he was a previous bonafide registered owner of the suit land. That he was an innocent purchaser without notice of defect in title. That he conducted due diligence and purchased it after ascertaining the same was procedurally registered in the name of Peter Njenga Hunja. That the Plaintiff failed to raise objection to the reconstruction of another land register despite notice in the Kenya Gazette and local dailies. That all transfers by the respective proprietors were done freely. That the Plaintiff has failed to demonstrate any particulars of fraud, misrepresentation or collusion on the part of the Defendants to warrant invitation to revoke title.

4    The Plaintiff responded to the above vide Reply to the 1^st Defendant Statement of Defence filed on 16/5/23 enumerating details of the illegality, fraud and or conspiracy.

5    The 2^nd Defendant opposed the suit by Amended Statement of Defence filed on 12/9/22. It is averred that from documents obtained from the 3^rd Defendant the suit land belongs to the 1^st Defendant. The allegations of conspiracy to defraud the Plaintiff of the suit property are denied. That the 2^nd Defendant is an innocent purchaser for value without notice of another parties claim on the suit land. That pursuant to the purchase and due process of transfer the 2^nd defendant was issued with title, took possession and subdivided the suit land into 59 parcels without any opposition from the Plaintiff. That title Kwale/Galu Kinondo/620 no longer exists. The allegations of trespass are denied.

6    The 3^rd and 4^th Defendant filed their Statement of Defence on 1/11/23. It is denied that the 3^rd Defendant conspired tother with the 1 and 2^nd Defendant to dispose the Plaintiff of the suit land. That any title obtained through fraud is not protected by article 40 of the Constitution. That the Plaintiff failed to issue the mandatory notice of intention to sue the government and its agencies making the suit fatally defective. That the suit is statute barred.

EVIDENCE OF THE PARTIES

7    The suit was heard physically on 28/11/23 and 7/03/24. During the hearing the Plaintiff was represented by Mr. Wachira and the 1^st Defendant by Ms. Mukabane and Mr. Mungai, the 2^nd Defendant by Ms. Kimani and State Counsel Mr. Kemei represented the 3^rd and 4^th Defendants.

8    PW1 was Rameshchandra G. SHAH. He adopted his witness statement dated 7/07/2022 as his evidence in chief. He produced the documents in the list of documents dated 7/7/2022 (PEx 1-7), 7/3/2023 (PEX 8(a) – (o) for the payment requests and demand notice) and 24/8/2023 (PEX  9-11 bank statements). PW1 testified that since he purchased the property he grew mango trees, fruit trees and dug a well. That he has never lived in the land. That he sued the Defendants following information from his caretaker around end of 2019 or beginning of 2020 that there were people on the ground subdividing the suit property. The matter was reported to Diani police by the caretaker but no action was taken. He asked that the title deed is returned to them and all the land. He prayed for costs for the suit.

9    Cross examined by Ms. Mukabane the witness confirmed he undertook due diligence and confirmed that the property was not sold. Though he took physical possession he does not live on the suit land. That he never saw the advertisement and therefore never challenged it. That he was not aware of the adverse claims on the property by the other party. The witness conceded he did not produce the OB before court. That payment of rates is proof of ownership. He was not aware that he bought someone else’s property.

10    Upon cross examination by Ms. Kimani PW1 stated he did not produce the sale agreement. On being shown the bank statements he agreed the withdrawal made on 27/5/2010 did not show where the money was being transmitted to. That while he possessed the transfer document there is no document to show the registration to him in the lands office. He had no receipt for payment of stamp duty. On being shown the Caveat Emptor the witness conceded it did not list the suit property. That he undertook a search at the time of filing of this suit but there was no green card. On being shown the green card re-opened vide gazette notice (2^nd defendants bundle) PW1 stated he did not know the status of 620 at the time of filing this suit. That he was not aware there was an owner between the 1^st defendant and Malkit. That he tried to follow up the matter with the DCI but they were difficult. He had no evidence of the said follow up.

11    On being cross examined by Mr. Kemei PW1 indicated that though he bought the suit land from Malkit and Kanji he had no document to show they were the administrators. Though he knew the statutory obligations such as payment of stamp duty he had no evidence in court. That he paid for the transfer but he had no receipt.  He had no Land Control Board Consent.  He had no valuation for assessment of stamp duty. On being shown the green card and title   in his bundle PW1 explained a green card records all the entries on the property though it had no entry with his name. He noted his title was dated 17/10/11 and being shown the title ref GPK S403-100M-8/2011 the witness agreed 2011 is the same year noted on the date of the title deed.

12    The witness clarified in reexamination that green card produced by the Attorney General was certified on 16/8/2023.  That entry No. 15 of 2/3/2023 on the Green card re-opened through gazette notice bore the same edition and date of opening. The witness chose to agree with the status of plot 620 as given in the Land Registrar document as true as they are the custodians of all land records. That it was his dream to live in the property after retirement. That he did not publish the Gazette but the person who reported the loss of the Green card. That there was no Kenya Gazette notice in any of the bundles produced in court. On the caveat emptor the witness stated it was inadvertently placed in the bundle and had nothing to do with this dispute. PW1 confirmed he bought the land from Malkit Singh and Kanji who are both enjoined in these proceedings. While he undertook a search before filing suit he did not have it since the Green card was lost.  That they were the true owners of the suit land since they were not disturbed for 8 years, had deployed a caretaker and still held the original title.

13    With the above the Plaintiffs case was marked as closed.

14    DW1 was Ephrem Wanyoike Ngunyo the 1^st Defendant who adopted his witness statement dated 18/01/2023 as his evidence. The witness produced the documents in list of documents dated 18/01/2023 (DW1 EX 1-13). The witness told the court he was approached by one Peter Hunja at a time he was investing in property for the future. Towards the end of 1998 they agreed on sale price. That Hunja gave him a title dated 10/12/98 which the witness used to undertake a search at Kwale. The witness was satisfied the land belonged to Hunja and he bought it. Around 1999 DW1 applied and obtained Land Control Board consent (see DEX 2). The plot was transferred to DW1 in March 1999 and registered. That knowing he held title he relaxed and in 2021 he placed the property for sale when he met one Joram of Grey Oak. DW1 undertook a search but the Green card was missing. The Land Registrar advised the witness to apply for replacement which he did (DEX 6-10). That no one challenged the process. He has never been summoned to any police station on any complaint pertaining to the issue. He was currently not the owner having sold the property to Grey Oak also sued as 2^nd Defendant herein. DW1 reiterated that his transaction was genuine.

15    Upon cross examination by Mr. Wachira the witness stated that Mr. Hunja was not known to him before purchase of the property. That he had heard Mr. Hunja was now deceased though he had no proof. The price was about Kshs.1.2 which he paid by cash but had no proof of payment. He conceded he did not have the sale agreement. That he applied for a search as part of due diligence though he did not have the search. That he had nothing to prove before court that he did not have originals of the documents he had produced. That the same were destroyed by fire though he did not have an affidavit sworn in this regard. That he had physical possession from 1999 to 2021 about 22 years though he did not stay on the property physically. That he tried to fence the property to show the boundaries, though he did not have proof of the same. The witness admitted that the photos produced by the plaintiff were more recent photos of the property. He stated the fence/structures thereon were not erected by him. Apart from this and the title he obtained he did not do anything else. That he did not make any statutory payments to the Government of Kenya for the 22 years. That he did not have any proof from the Land registry confirming the Green card was lost.

16    Upon being shown his affidavit sworn on 24/6/2021 (DEx 9) he conceded the loss of Green card document signed by Dick J. Safari was not dated though he could not tell if it was normal for the registrar to issue undated documents. On the Deed of indemnity dated 24/6/2021 DW1 stated it was to advertise the loss of Green card but was not aware of a requirement to forward to Government printer. On the letter dated 28/6/21 he confirmed he made the payments for publication by the government printer as stated therein. He stated the notice he produced was in the Daily Nation 24/6/21 and not the Kenya gazette. That he had not produced any gazette notice before Court. The witness was referred to para 6 of his statement of Defence stating the 2^nd defendant conducted due diligence, to which he stated he did not know how the statement happened. He disagreed that he did not   purchase the property from Mr. Hunja.

17    On cross examination by Ms. Kimani DW1 confirmed he was the registered owner of plot 620 as at 22/12/21. The sale price with 2^nd defendant was Ksh 11 Million which was deposited in his account at Equity as well as received in cash Bank. That he received an acknowledgement. That he took Grey Oak to Land Control Board and the consent was granted. He signed the transfer in favor of Grey oak.

18    Cross examined by Mr. Kemei the witness indicated he discovered loss of Green card in the year 2021 when he went to conduct a search. He told the court the Transfer was done around March 2021 and the Green card was available and it did have an entry for Peter Hunja. DW1 reported to the registrar about the missing Green card but the witness didn’t find it necessary to report to the police. The stated he did not know the processes of reconstructing a Green card and a title deed though he was certain that he followed the right process because he complied with the instructions he was given. He reiterated he had supplied the title for Peter Hunja but did not have knowledge how it was done since the same are done at the lands office.

19    DW2 was Jorum Gaturu Mwangi sole director of Grey Oak limited the 2^nd Defendant. The witness adopted his witness statement dated 25/11/22 as his evidence in court. He also produced the documents in list of documents dated 25/11/22 (D2 Ex 1-17), 1/3/23 (D2 Ex 18-22). The witness testified that he undertook due diligence before purchase of property. That he did a search obtained copies of documents in respect of the land and googled if the gazette notice was published on the said 13/08/21. That he talked to several agents who confirmed that the 1^st Defendant was the owner. That he only knew Ephraim around 21/12/21. That upon being convinced of the title, he together with his lawyer Mr. Chebukaka held a meeting with Ephraim and expressed interest on the property.  That the lawyer had done due diligence. DW2 made an offer on condition that that Land Control Board consent is obtained prior to any payment. That the consent to transfer was issued and they embarked on the documentation.

20    That he paid Ephraim Kshs. 6 million being the full purchase through Equity bank. He paid a tranche of Kshs. 2.52 million in cash of two instalments which was acknowledged by Ephraim. On completion of the Conveyancing DW2 took possession. That he had adjoining properties and he started by grading the roads in the property and started building the club house and fencing the property and started subdivisions and selling to clients. That he obtained the title after transfer went through. That he surrendered the original title to the lands registry after subdivision in 59 plots 3413-3471 whose original titles he had carried with him to court. He denied conniving with the 1^st & 3^rd Defendant in acquiring the land. That the transaction was handled by different registrars and there was no way he would have connived. That he is a bonafide purchaser for value. That he had bought many plots around the area 621 next door 625,631,633 among others. That the current ground status of plot 620 was two graded roads, 2 club houses and concrete fence. That Plot 620 does not exist on the subdivisions. The witness asked the court to be allowed to continue running the business and the plaintiffs case to be dismissed.

21    DW2 on cross examination by Mr. Wachira conceded the application for consent to transfer which was dated 3/12/98 predated the meeting of the Board of 17/11/98. That this did not concern him. That the application for consent was not signed by the parties. Agreeing that the letter of consent was a government document and asked to compare how its dates are filled in vis a vis the transfer of land the witness stated the document could have issued in year 2000 which did not concern him. That had he realized this he would have re-confirmed with Government of Kenya which he did not. He conceded Mr. Hunjas ID as given on the title deed and the transfer were different. That he does not know how stamp duty is assessed. DW2 denied he did not do good due diligence. That for him based on the documents in the registry he bought land from a person with good title. That the land registrar is the custodian of all land records/documents. He conceded he did not produce gazette notice he got from the internet. On being shown the Attorney General Green card he stated it was certified on 16/8/23 and according to the card plot 620 does not exist. The witness reiterated he still believed he is an innocent purchaser that he undertook good due diligence and the property does not belong to the plaintiff.

22    On cross examination by Mr. Mungai, DW2 indicated that before purchase of the property he sought independent advice. He did not peruse the parent file though they got documents therefrom which tallied. That they undertook a physical inspection of the land and they found people clearing the property who informed them there was an owner. That they saw a well. That he was familiar with the land since it was opposite one of his parcels 629. The witness enumerated the process he undertook from purchase upto the transfer of the property to himself.  He confirmed subdividing the plot on 2/03/22 and stated that plot 620 was not in existence by the time the suit was filed on 7/07/2022 and the prayers sought were in respect of a property that was already subdivided.

23    DW2 agreed in further cross examination that the plaintiff did not produce any receipts on the prayer for special damages. That the prayers sought did not include cancelation of title meaning the 2^nd Defendants title is not challenged. The vendor from whom the property was purchased was not a witness in the proceedings. That Peter Hunja had not been made a party to this suit. He prayed that the court allows him to proceed developing the property since his title is not challenged before court.

24    Upon cross examination by Mr. Kemei DW2 stated prior to purchase of the property he had never heard of the Plaintiff. That he was connected to the 1^st Defendant by land agents. That they conducted a normal search at Kwale as part of due diligence followed by   a green card search when they noticed a green card had been re-opened. They confirmed it was done as per the law, that there was gazette notice No. 8151 of 13/8/21 and the land registrar proceeded to replace. According to DW2 the gazette notice was a confirmation that the Green card was lost and legally replaced. He visited the suit property for due diligence, it was vacant with only a wall and some people were slashing grass. That at the registry he didn’t find any document restricting transfer of the property to. The property was still the 2^nd Defendants possession. DW2 stated they have fenced, constructed two buildings on the property and graded all the roads leading to the property and also inside the property and beaconing all between January –July 2022 before the suit was filed. He confirmed parcel 620 has been subdivided supported by Green card from land registry, mutations and the 59 titles produced in court.

25    DW2 clarified in reexamination that he was not the one who prepared the application to and the Land Control Board consent. That he obtained them from Kwale land Registry. That the Land registrar list of documents dated 20/9/23 contained no documents showing the plaintiff as the owner of the property. The witness considered himself an innocent purchaser.

26    With the above evidence the 2^nd Defendants case was marked as closed.

27    DW3 was Steve Mokaya the Land Registrar Kwale. He outlined the entries on property Kwale/Galu Kinondo 620. That it was 1^st registered on 21/5/1974 under HAMISI ALI GUZO as per the adjudication record. That he was using a copy of the register he found in the lands record but which tallied with the adjudication record. In 1979 there was a change of the name from HAMISI ALI GUZO to HAMISI GUZO and land/certificate  issued on 7/12/1979. The same was returned for renewal in February 1981 and on 13/01/1992 Hamisi Guzo transferred the property to BAKARI RAMADHAN MWABIMBI through a sale of Kshs 100,000/= and title issued on the same date. That on 5/06/92 there was a sale to Malkiat Singh and Kanji Manji for Ksh 280,000. That from here the witness stated he could not trace any information/register for entries 8, 9, and 10 and could therefore not authenticate the transactions for this period. That on 24/3/1999 the suit property was transferred to the 1^st Defendant Ephraim Ngunyo and title issued on the same date. He stated there was a register that was opened vide gazette Notice 8151 dated 13/8/21 (entry 11). On 13/01/2022 the property was transferred to Grey Oak Limited and title issued on the same date. That on 22/3/22 there was a subdivision of parcel 620 into 59 portions in the name of Grey Oak limited but no transfer has been done to date. He produced the documents as DW3 1-6 & 7-23.

28    Upon being cross examined by Mr. Wachira DW1 admitted as at August 2023 he did not have the original of the land register though the same was certified True copy of the original. That the entry No. 7 for Malkit was a sale and the next entry No. 8 ought to be a title issued to Malkit followed by entry No.9 and 10. That PETER HUNJA featured nowhere in the records held at the land registry.

29    DW3 produced the original application for consent to transfer of land made to the Land Control Board and the attendant consent. He admitted that the Board cannot have sat to deliberate on something that was not applied for. He however stated that in  his experience it was not possible to receive an application on 3^rd December 1998 and meet in December17/11/98. That though this was not practical he did not term the consent a forgery. The witness maintained that based on the documents, there was no duly given consent to generate a transfer.

30    Upon scrutinizing the date 3^rd December 1998 on the original of the letter of consent, DW1 noted the number “20” below the “19” meant the form or consent paper was printed after the year “20”. It was not possible to have the letter printed in 1998. That the land registry were not the authors but only keep a record. Were the document to be presented before him today he would not accept it. He admitted his colleagues received it and therefore it formed part of the record. That any person performing due diligence must have seen the Land Control Board consent in the registry records.

31    The witness presented the original TRANSFER OF LAND and stated that though the transferor and transferee ought to sign the document, it was only signed by the transferee. The transferor Malkit SINGH GREWAL did not sign which invalidated the transfer. Asked to compare the originals of the Transfer of Land produced by the Plaintiff and the one produced by the Land Registrar Mr. Mokaya observed that the transferor was not the owner but the administrator meaning the owner is deceased. On being referred to paragraph 8 of his defence the witness emphasized that the problem was that the said Kanji Manji who was deceased appeared before a lawyer and appended his signature. Balwant Kaur Malkit Singh was expected to sign the transfer but it was done by the administrator. DW3 however confirmed the two red stamps meant stamp duty was paid. Mr. Mokaya confirmed that the original of RAMESHCHANDARA title bore all the security features a seal from ministry of land, signature by registrar duly executed, official Registrar stamp among others he was not permitted to disclose. Further that the title confirmed the earlier entries he had presented to the court.

32    Enumerating the documents required to be submitted to the registry on loss of Green card the witness stated their records did not bear a police abstract as well as an application for registration for reconstruction which is submitted after gazettement. That while it was important to produce a police abstract in the present case Investigation by the police was not necessary since it was a loss of a register in the office of the land registrar. A police abstract was mandatory where it is a title which is lost.

33    Mr. Mokaya confirmed there was an internal mechanism for re-issue especially if the mistake was attributable to the land’s office. Where fraud is suspected a court order is required. He stated he could not speak for his predecessor on how he chose to go about the issue. The witness declined to confirm entry No. 9 and 10 having confirmed the plaintiffs original title in names of RAMESHCHANDARA. He confirmed that as at 2/3/22 title 620 had been closed and that after entry on subdivision there was an order for injunction and nothing could go on.

34    On further cross examination by Mr. Mungai and on being shown the order of injunction DW3 confirmed it was an exparte order issued on a property that was already subdivided 4 months before the order. According to the witness the order affects the subdivision but since it was in respect of plot 620 he would not go beyond the plot 620 since it would be illegal.

35    DW3 confirmed prayer (a) and (b) of the plaint only referred to plot 620. He was aware a party is bound by his pleadings and the court would be limited to plot 620. The matter was before court on plot 620 and not the sub-divisions. That the Plaint bore no particulars of fraud which must be pleaded and specifically proved. Referring to Section 8 (3) of the Land Control Act on application for consent the witness indicated that the date of the application is the date of sitting of the Land Control Board. That failure to indicate date of application is fatal. On the letter of consent from MALKIT to PETER the witness testified he was aware of a special board which issues consents for urgent cases without parties appearing before it. They are then ratified by the board. That if you looked at it from this perspective there would be nothing wrong. However, the witness stated the registrars’ role is not just to register but under section 14 can do diligence and register or reject.

36    DW3 conceded they rely on documents presented to them.  That in the year 1998 it was a practice for parties to appear before the registrar to sign and authenticate/certify the signatures. The witness confirmed there is no original Green card for entry No. 9 and 10. That he had no records to show transfer to plaintiff, consent payment supporting the plaintiff title entry 9 and 10. He confirmed that the title surrendered by Hunja has all the security features and was from the Government printer. That the documents presented for Hunja were authentic. On the procedure for loss of card the witness confirmed there is no mandatory requirement for a police abstract.

37    Mr. Mokaya confirmed that from the records he was holding the Green card was duly re-constructed and the time frame of 60 days was also compliant. From the records there was no objection to the re-construction. That the registrar opened the Green card legally and procedurally. On the transfer from Malkit to plaintiff the witness testified that though administrators signed jointly with registered owner, succession ought to have been done. That if the registration was joint ownership he would have registered the death certificate. That RL6 would be the ideal form for transfer if the administrator herein had completed the succession protocols though he did not see the succession documents. RL 6 is to be used only for transfer by a registered owner. He confirmed transfer to the 2^nd defendant was regular.

38    Cross examined by Ms Kimani the witness confirmed he had no documents leading to the plaintiffs’ title. That the transfer form used by Malkit to transfer the property from the deceased owner must be reflected in the Green card and which was not.  That before this transfer there ought to have been succession documents. There was no entry of the grant to the administration transferring the property to the administrator. That he held original title from Grey OAK, Peter Hunja, Ephraim and Malkit which from the face value were all authentic. That as at the time of registration of Grey Oak there was no restriction. He confirmed the Registrar has discretion pursuant to section 14 of the LRA before registration of documents. According to the witness all the documents that accompanied Grey Oak registration met the requirements. Mr. Mokaya confirmed he had green cards for all the subdivisions and titles issued to Grey Oak. There was no order under the subdivision but for plot 620 and which is closed after it was surrendered to the Land Registry.

39    DW3 clarified on reexamination that paragraph 5 of their defence adequately responds to the contents of paragraph 8 of the Plaint. The plaint bore no particulars of fraud on the part of the land registrar. The 3^rd and 4^th Defendant’s case was closed at this juncture.

SUBMISSIONS

40    The court issued directions for filing submissions which parties filed and exchanged. The plaintiffs’ submissions are dated 7/4/2024, the 1^st Defendants 9/05/24, the 2^nd Defendants 9/5/24 and the 3^rd & 4^th Defendants 8/5/24. I have taken into account these submissions before arriving at this judgment.

ANALYSIS AND DETERMINATION

41        Having considered all the foregoing the following issues commend determination; -

1. Whether the Plaintiff is the legal registered owner of the suit property.
2. Whether the transfer of the suit property to the 1^st Defendant was regular and legal
3. Whether the 2^nd Defendant is a bonafide purchaser for value without notice
4. Whether the reconstruction of the register was regular
5. Is the Plaintiff entitled to the reliefs sought
6. Who bears the costs of this suit.

42    From the pleadings the Plaintiff claims to be the registered owner of parcel No. Kwale/Galu Kinondo/620 the suit property. That he acquired it from Kanji Manji and Balwant Kaur Malkit Singh Grewal on 25^th February 2011 and was issued with a certificate of title, a green card and took possession. But why is he in court then? The Plaintiff alleges that the 1^st, 2^nd and 3^rd Defendants collaborated to disposes him of the property culminating into the transfer of the suit property to the 2^nd Defendant. It is his evidence that he never sold or transferred the land to the 1^st Defendant who then sold it to the 2^nd Defendant. The Plaintiff desires that the court declares him the owner of the land Kwale/Galu Kinondo/620.

43    The burden of proof lay on the Plaintiff to prove that the above facts exist. Section 107 of the Evidence Act Chapter 80 of the Laws of Kenya, provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

44    In addition to his oral testimony it behooved the Plaintiff to produce documentary proof in support of his registration as proprietor of the suit property.  The Plaintiff   gave evidence on his own behalf as PW1. The witness produced a copy of Title Deed dated 17/10/2011 in his name that is Rameshchandara G. Shah among other documents I will address shortly.

45    The legitimacy of the Plaintiffs title is contested. In fact, the title produced above is being rivalled by the existence of another title in the name of Peter Ngenga Hunja whom I will refer to as Peter Ngenga Hunja (herein Hunja) who allegedly sold the property to the 1^st Defendant. Actually, the court sees the contest in this suit to be between the Plaintiff and the 1^st Defendant. The 2^nd Defendants case will largely abide the outcome of the contest between the former parties.

46    Section 26 of the Land Registration Act provides thus;-

26 (1) 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, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except

(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.

47    Bearing the above in mind it is now established that where legality or existence of a title is being challenged then the holder of the title must show how he acquired the title.  It is no longer enough to just dangle a title especially when it is being questioned. The Court of Appeal in Munyu Maina Vs. Hiram Gathiha Maina civil Appeal No. 239 of 2009 reiterated that where the registered proprietor’s title root is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.

48    In  Daudi Kiptugen Vs. Commissioner of Lands & 4 Others (2015) eKLR; -- Munyao J persuasively underscored thus

‘In order to determine the question whether the lease held by the plaintiff is valid, it must be demonstrated that it was properly acquired. It is not enough that one waves a Lease or a Certificate of Lease and assert that he has good title by the mere possession of the Lease or Certificate of Lease. Where there is contention that a Lease or Certificate of Lease held by an individual was improperly acquired, then the holder thereof, must demonstrate, through evidence, that the Lease or Certificate of Lease that he holds, was properly acquired. The acquisition of title cannot be construed only in the end result, the process of acquisition is material. It follows that if a document of title was not acquired through the proper process, the title itself cannot be said to be a good title. If this were not the position, then all one would need to do is to manufacture a Lease or Certificate of Title, at a backyard or the corner of a dingy street, and by virtue thereof, claim to be the rightful proprietor of the land indicated therein. It is therefore necessary for this court to determine how the plaintiff ended up having a Lease and Certificate of Lease in his name’

49    The Plaintiffs root of title stems from the Interested Parties whom he alleges to have purchased the land from. The Interested parties according to the record did not enter appearance. The court had to address the question whether the land belonged to the said Kanji Manji and Malkit Singh Grewal at any point in time. I think the fact that the land was owned by Kanji Manji and Malkit Singh Grewal is not in dispute. This is supported by the entries in the parcel file and documents produced by DW3 the Land Registrar Kwale specifically copy of Certificate of title for Kwale/Galu Kinondo/620 in the name of Malkit Singh Grewal & Kanji Manji dated 5/6/1992. None of the Defendants disputed the ownership of the suit upto this point, infact it is DW1 case that he bought the land from Peter Ngenga Hunja who purchased the same from Malkit and Manji.  DW3 testified that on 5/06/92 there was a sale to Malkit Singh and Kanji Manji for Ksh 280,000 and this is per entry No. 7 of the first green card opened on 15/11/1974. According to the witness it was from this point that he could not trace the next entry. However, DW3 admitted upon cross examination by Mr. Wachira that the entry No. 7 was the above sale and the next entry No. 8 ought to be a title issued to the said purchasers. This made sense to me.

50    For me with the above I had no reason to doubt that Malkit Singh and Kanji Manji were once registered as proprietors of the suit property around the year 1992. But pertinent to this discourse the elephant in the room is, to whom did Malkit Singh and Kanji Manji transfer the suit property to, the Plaintiff or Peter Ngenga Hunja?

51    The Plaintiff presented a Transfer of Land from Kanji Manji and Balwant Kaur Malkit Singh as the administrator of Malkit Singh Grewal) transferring the land to the Plaintiff. The transfer was registered on 17/10/2011. The Plaintiff also presented Bank Statements and cheque books showing the amounts that were corresponding with the purchase price. I’m aware that the Plaintiff stated in cross examination by Ms. Kimani that the same did not show where the money was being transmitted to. But let me state that also produced by the Plaintiff were demands for payment of rates in the names of the Kanji Manji and Malkit Singh Grewal and some in the name of the Plaintiff. Endorsed thereon are cheque numbers. I cannot state that the Bank Statement and the Demand notes were a mere coincidence. DW1 had nothing to produce from his end to support his case in this regard. This will become apparent later in this judgement.

52    Then there was the insinuation that the property was owned jointly by Manji and Malkit. I do not think that the property was a joint ownership because if it was, Balwant would not have signed the transfer as you would only need Malkit for purpose of the transfer. The title produced by the Plaintiff though registered in names of both Malkit and Manji doesn’t state whether the ownership is joint. It is now trite that where this is silent then the ownership shall be deemed to be common ownership see NNK v JNK [2020] eKLR where the court citing Moses Bii ...Vs... Kericho District Land Registrar & another [2015] eKLR where the Court held that;

“My view is that if the register does not reflect whether land is held jointly or in common, the fallback position should be to presume that the land is held in common. Joint proprietorship, where the same has not been explicitly indicated, should only be presumed in the clearest of circumstances, where there can be no shred of doubt that the contemplation of the parties was to have the property held jointly. I for myself cannot think of such a state of affairs other than where the proprietors are spouses, though I cannot rule out other situations, but they really must be so clear as to obviate debate on it.”

‘However, whether the land is held in Common or is Jointly owned, the only difference between the two would be the issue of survivorship. In this instant, it is not in doubt that both parties held interests and rights over the Suit property and therefore, they both have rights and interests over the suit property. Further, unless the same is severed, the parties are to consult each other before any dealings with the suit property.’

53    Arising from the above I therefore found no problem with the transfer as executed.

54    It is noteworthy that since the transfer in favour of the Plaintiffs was in 2011 it follows that the alleged transfer to Hunja ought to have predated that of the Plaintiff herein. The 1^st Defendant produced in evidence Transfer of land from Malkit Singh Grewal and Kanji Manji to Peter Hunja dated 9/12/1998, the attendant cancelled title deed in the name of Malkit Singh Grewal and Kanji Manji dated 10/12/1998. The court did not trace the corresponding application for Land Control Board consent from the 1^st Defendants bundle of documents however DW1 in this regard referred to the 2^nd Defendants exhibits during his testimony.  This application was produced by the 2^nd Defendant where Malkit Singh Grewal and Kanji Manji sought the consent of the LCB to sale to Peter Hunja.

55    The court spent time to scrutinize the above documents taking into consideration the emerging concerns pointed out during cross examination of DW1. The scrutiny was important because logically Malkit Singh Grewal and Kanji Manji can only have transferred their land once and not twice. Further should any of them have sold the property alone without the knowledge of the other the transaction would not be valid because the title was held in common ownership. The Application for Consent of Land Control Board Msambweni for sale of the suit property from Malkit Singh Grewal and Kanji to Peter Ngenga Hunja did not bear signatures of the owners/vendors and the purchaser in declaration that the information given was true. It was not dated save it was discernible from its reference (LCR No. 178//98) that it was made in 1998. This brings me to the consent issued by the LCB in respect of the alleged sale to Peter Hunja.

56    The consent was issued on 3/12/98 pursuant to a meeting of the Board held on 17/11/98. The consent refers to the date of the application pursuant to which it is being issued as 3/12/1998, I had already observed earlier that the application was not dated. The court had no way of telling this document in the manner it was presented was the one relied upon by the Board to issue the consent. But coming to the date of the meeting of the LCB vis a vis the date of the application a problem arises. How is it possible that the LCB sat to deliberate on an application that had not been made considering the Letter of consent is clear that the application is dated 3/12/1998. The LCB sat before this date to wit 17/11/1998.

57    During the hearing, DW3 was cross examined on the provisions of Section 8 (3) of the Land Control Act in relation to the above. This provision provides as follows; -

8(3) For the purposes of subsection (1) an application shall be deemed to be made when it is delivered to the authority prescribed in the manner prescribed.

58    The witness indicated that the date of the application is the date of sitting of the Land Control Board. But for me the Board can only deliberate on what has been presented or delivered before it. We have a chicken and egg situation here. There was no way of confirming that the consent issued was premised on the said application. The application cannot have been delivered to the Board if it had not been made by the date of the sitting. What did DW1 have to say to all this?

59    On cross examination by Mr. Kemei the witness reiterated he was supplied the title for Peter Hunja but did not have knowledge how it was done since the same are done at the lands office which in my view was not helpful to his case. The concern for me was that the court was faced with an application that was not executed by the vendors compounded by the fact that the sale agreement for the same transaction was not produced in proof. There was an attempt during the cross examination of DW3 by Mr. Mungai Counsel for the 1^st Defendant leaning towards special Land Control Board sittings. DW3 clarified that if the consent was to be looked at from that perspective then there would be nothing wrong with the consent as given. But this was not convincing to me because no evidence was placed before the court that there was a special board sitting that issued the consent and which was subsequently ratified in the present consent.

60    But let me address the purported transfer of land document. The transfer of Land produced is dated 9/12/98. It reveals that it is from Malkit Singh Grewal and Kanji Manji to Peter Hunja. It would appear that the parties signed the transfer before the land Registrar. The registration appears to have been effected and a title issued. I was able to see a signature by the transferee but none by the vendors.

61    Clearly the above lacunas have legal implications and dent the veracity of the transaction. For me it is clear there was no application made to the Land Control Board based on the documents presented. Consequently, there cannot have been a valid consent. Thirdly there cannot be a valid transfer based on these documents in the manner they were presented and fourthly the transfer having not been signed by the transferors there was nothing that was transferred.

62    The next step for the court was to look at the transfer process from Peter Hunja to the 1^st Defendant. The 1^st Defendant is the nexus in these proceedings to Peter Ngenga Hunja. It is DW1 case that he was approached by Peter Hunja at a time he DW1 was investing in property. Hunja gave him a title and upon search he was satisfied with the ownership and he bought the land.  What documentary proof did DW1 produce to support this testimony?  DW1 produced the documents listed in the List of documents dated 18/01/23 namely interalia copies of Title Deed dated 10/12/98 for Kwale/Galu Kinondo/620 issued to Peter Ngenga Hunja, Application for consent of Land Control Board for the same and attendant consent dated 10/3/1999, transfer of land form dated 16/3/1999 and attendant application for registration form dated 24/3/1999.

63    Did the documents above corroborate the testimony that the 1^st Defendant purchased the property from Mr. Hunja? Firstly, the search referred to above confirming that Hunja was the registered owner when he transferred the land to DW1 was not produced before court.  The question to ask is what due diligence was carried out by DW1 before he purchased the land from Mr. Hunja? DW1 conceded in cross examination he did not have the search. DW3 categorically stated in his testimony that there was no entry in his records to show the transfer to Mr. Hunja. Additionally, the witness DW1 contradicts his own pleading where he avers at paragraph 6 of the plaint that

…the 2^nd Defendant conducted due diligence on the property and after ascertaining the property was duly registered in the names of Peter Ngenga Hunja procedurally and regularly by the 3^rd Defendant purchased the same…

Upon being given an opportunity to explain the above in cross examination DW1 could only state he did not know how this statement came into his pleadings. It is trite that parties are bound by their pleadings see Independent Electoral and Boundaries Commission & another Vs Stephen Mutinda Mule & 3 Others ( 2014) eKLR.

64    But be that as it may, there was an invitation by counsel for the Plaintiff for a scrutiny of whether this transfer was presented for registration. I noted JGM4m was a receipt from Department of Lands issued on 24/3/1997 and which featured in cross examination of DW3. The receipt makes a figure of Kshs. 6,225/- services rendered to the 1^st Defendant. This is a receipt which clearly is backdated. I noted that it is receipt book with a prefix for any year after ‘20’ meaning the year 2000. The date of the receipt 24/3/1997 would no doubt raise eyebrows not only on the basis of the prefix but also considering that the alleged transfer of the suit property to the 1^st Defendant from Peter Hunja was in the year 1999.  It is strange that a receipt was issued in anticipation. DW3 on being cross examined on this receipt agreed it cannot have been written or issued before the year 2000.

65    The copy of the application attached to the 1^st Defendants bundle did not bear any date though I could deduce from its reference (LCR No. 241/99) that it was made in 1999. Infact a closer scrutiny shows it was largely blank. Only items 1(a), (b), 2(a), 5 and 6(a) are populated with the requisite information. At the bottom it bears two signatures. The consent bears the date 10/3/99. I did not see any problems with the LCB consent in terms of these dates unlike the previous applications. DW1 testified in cross examination that the consideration was Kshs.1.2 million and which he paid in cash. The witness had no evidence of the payment made and received. Granted, the purchase price may have been paid in cash, it is unbelievable that the vendors did not demand and or were not issued with an acknowledgement of the purchase price they paid. It was strange to me that DW1 in cross examination indicated the said Mr. Hunja was deceased but had no supporting evidence was tendered. Assuming it is true he was indeed deceased again conveniently the witness stated he paid the purchase price in cash. How, considering that it was DW1 testimony that he did not know Mr. Hunja prior to the sale. Yet he trusted him with Kshs.1.2 Million without a receipt or form of acknowledgement which in the year 1999 was no pocket change in my view.

66    Then there was the evidence that emerged in cross examination that DW1 documents were destroyed by fire. No evidence was provided to this effect at least a report would have been made to the police for use in replacement of any of the documents. At least the report would have contained a list of what was destroyed. To me this was just but an afterthought an attempt to bridge the gap in his evidence. The testimony led by DW1 did not create confidence in the court of a person who has bought property, taken possession and then sold the same. During his testimony his was just a leisure faire attitude. One such instance is when he reiterated he had supplied the title for Peter Hunja but did not have knowledge how it was done since the same are done at the lands office. I noted that the witness did not largely stand the test of cross examination. On possession DW1 in cross examination by Wachira counsel for the Plaintiff stated that he tried to fence the property to show the boundaries, though he did not have proof of the same. The witness admitted that the photos produced by the Plaintiff were more recent photos of the property. He stated the fence/structures thereon were not erected by him. That he did not make any statutory payments to the Government of Kenya for the 22 years he held the property. Assuming he did not pay the rates, what was difficult with him producing at least the demand notices from the relevant authorities.  Who would own land for 22 years and behave in such manner.

67    I think I have said enough to show that the evidence led by the 1^st Defendant did not create any confidence in this court that the DW1 bought the suit property from Peter Hunja neither was there a transfer of the land from Malkit Singh Grewal and Kanji Manji to Peter Hunja.

68    Having made the above findings what about the 2^nd Defendants claim? DW2 testified on his own behalf as the 2^nd Defendant. He narrated to the court how he acquired the property from the 1^st Defendant upon which he proceeded to subdivide the land into 59 portions. The 2^nd Defendant is in the business of real estate buying land and selling thus the subdivisions herein. DW2 produced the documents contained in the list of his documents 25/11/2022. But is important to note that the record bore his Replying affidavit to the Notice of Motion dated 7/7/2022. Some of these documents were used substantively in cross examination. DW2 evidence is that he is an innocent purchaser for value without notice of a third person claim over the suit property.

69    The attributes of an innocent purchaser have been discussed in many cases including the Court of Appeal decision in Samuel Kamere Vs Land Registrar (Kajiado Civil Appeal No.28 of 2005 (2015) eKLR where it was held that in order to be considered a bonafide purchaser for value, one must prove they acquired a valid legal title and carried out the necessary due diligence. Also see Dina Management SC Petition 8 (E010) of 2021 Dina Management Limited Vs County Government of Mombasa & 5 Others.

70        I will not spend much time on the above for the reason that the success of the 2^nd Defendants defence is largely anchored on the title that was transferred to him, in other words did the 1^st Defendant who sold the land to him hold a valid title capable of passing a good title to the 2^nd Defendant?  This question has been largely answered in the court analysis hereinbefore. Based on my finding that there was no transfer of land from the Interested Parties to Mr. Hunja neither was there a transfer from Mr. Hunja to the 1^st Defendant, the conclusion should be that the 1^st Defendant did not pass good title to the 2^nd Defendant. On this basis alone the 2^nd Defendants claim must collapse.

71    The 2^nd Defendant maintains that he is an innocent purchaser for value without notice of any defect in the title. DW2 on cross examination by Mr. Wachira conceded the application for consent to transfer which was dated 17/11/98, predated the meeting of the Board of3/12/98. The witness told the court this did not concern him. He conceded that the application for consent was not signed by the parties. This witness was also taken through the issue of the prefix of ‘20’ conceded the document could have issued in year 2000 which again he pointed did not concern him. But on being pressured further he indicated to the court that had he realized this he would have re-confirmed with Government of Kenya which he did not. He conceded Mr. Hunja’s ID as given on the title deed and the transfer were different. I think for me the 2^nd Defendant treated this transaction with a casualness I could not fathom and he has himself to blame for not being vigilant with the documentation. It is not enough to state he spoke to a number of agents who confirmed that the 1^st Defendant was the owner. The witness told the court he undertook a physical inspection of the land and they found people clearing the property who informed them there was an owner. That he also saw a well. The court is surprised this did not raise his curiosity. The 2^nd Defendant ought to have been more cautious with his due diligence.

72    At this juncture I must address the issue of the reconstruction of the Register which was highly contested. According to DW1 all along after buying the suit property from Peter Hunja, he had relaxed. That in the year 2021 he was desirous of putting up the property for sale but upon undertaking a search the Green card was missing. That the Land Registrar advised the witness to apply for replacement which he did. Ordinarily a search is undertaken by way of application and it is expected that the application is lodged and it must come back with comments that the same cannot be issued. I say so because this is as recent as the year 2021 when our land registries have now been exposed to the issue of missing green cards which had become so notorious and has featured in many litigations where the Land registrar has been named as a party with fingers pointed at the said office. The land registries ought to have proactively devised a formal mechanism of giving feedback to their clients. In my view this could be the counterpart envisaged under Regulation 22(3) of the Land Registration (General) Regulations 2017, with the requisite comments. Be that as it may DW1 stated in cross examination that he did not have any proof from the Land registry confirming the Green card was lost. The green card was subsequently reconstructed anyway.

73     Related to the above reconstruction of the green card the 1^st Defendant produced in proof the documents listed in items 6 – 10 of his bundle of documents. These were copies of notice of loss of green card, gazette notice for loss of green card on the Daily Nation and Standard newspapers dated 24/06/21, affidavit to confirm loss of green card dated 24/06/21, Deed of indemnity, Letter to Government Printers for loss of green card dated 28/06/21, application for registration form for gazettement of the loss of green card dated 14/10/21 and fee receipt for gazettement dated 14/10/21. All these documents were in respect of the suit property Kwale/Galu Kinondo/620. 

74    But before I delve into a discussion of the reconstruction, I looked at the legal requirements under the Land Registration Act Cap 300 and attendant regulations already cited hereinbefore. The power to reconstruct documents is donated to the Land Registrar by Section 33 of the Act as follows; -

33. Lost or destroyed certificates and registers

(1) Where a certificate of title or certificate of lease is lost or destroyed, the proprietor may apply to the Registrar for the issue of a duplicate certificate of title or certificate of lease, and shall produce evidence to satisfy the Registrar of the loss or destruction of the previous certificate of title or certificate of lease.

(2) The Registrar shall require a statutory declaration to be made by all the registered proprietors, and in the case of a company, the director, where property has been charged, the charge that the certificate of title or a certificate of lease has been lost or destroyed. (3) If the Registrar is satisfied with the evidence proving the destruction or loss of the certificate of title or certificate of lease, and after the publication of such notice in the Gazette and in any two local newspapers of nationwide circulation, the Registrar may issue a duplicate certificate of title or certificate of lease upon the expiry of sixty days from the date of publication in the Gazette or circulation of such newspapers; whichever is first. (4) If a lost certificate of title or certificate of lease is found, it shall be delivered to the Registrar for cancellation.

(5) The Registrar shall have powers to reconstruct any lost or destroyed land register after making such enquiries as may be necessary and after giving due notice of sixty days in the Gazette.

75    I think the most relevant is 33(5) above because what is purported to have been lost is the green card. Regulation 27, 28 and 29 are pertinent with regard to implementation of the above provisions and provide as follows; -

27. Lost documents

(1) A person whose instrument is lost, destroyed or misplaced shall apply for a replacement in Form LRA 12 set out in the Sixth Schedule and the application shall be supported by such evidence as is required under section 33 of the Act.

(2) Upon receipt of an application under paragraph (1), the registrar shall, by a notice in the Gazette in Form LRA 13, notify the public of the loss, destruction or misplacement.

(3) Where an instrument that has been lodged at a registry is lost, destroyed or misplaced, the Registrar shall notify the registered proprietor, in writing, of such loss, destruction or misplacement for purposes making an application under paragraph (1).

29. Reconstruction of a land register where title documents are missing

(1) Where the title documents are lost or destroyed, a person claiming to be a registered proprietor to make an application for reconstruction of the register in Form LRA 14 set out in the Sixth Schedule to the Registrar.

(2) Where the applicant under paragraph (1) is a body corporate, the application shall be accompanied by a statutory declaration in Form LRA 15 set out in the Sixth Schedule.

(3) Where the applicant under paragraph (1) is a natural person, the application shall be accompanied by a statutory declaration in Form LRA 16 set out in the Sixth Schedule.

(4) An applicant under paragraph (1) shall provide an indemnity to the Registrar in Form LRA 17.

(5) Upon receipt of an application made under paragraph (1), the Registrar shall notify the loss by notice in the Gazette in Form LRA 18 set out in the Sixth Schedule.

(6) After the expiry of the notice in paragraph (3), the Registrar shall obtain clarification on the parcel status from—

(a) the office or authority responsible for survey;

(b) the office or authority responsible for land administration; and

(c) any other office the Registrar may deem necessary.

(7) Upon clarification under paragraph (4) and no objection has been raised against the application made under paragraph (1), the Registrar may reconstruct the land register.

76    Guided by the above and bearing in mind the issues that arose on cross examination I will proceed to review the documents produced in relation to the reconstruction. In the present case and as evidenced in the affidavit sworn by Ephrem Wanyoike Nguyo (DW1) on 24/06/21, it is the green card of the suit property that is said to have been lost and its replacement sought. At paragraph 3 of the affidavit the deponent states

‘THAT the green card of the said parcel got lost and could not be traced as I have tried severally in vain.’

77    It is established that the green card is a record that is kept by the land registry and not by the owner of the parcel of land. The deponent states in the Deed of Indemnity that he together with the identified proposed transferee have tried severally to do so through an official search and the Land Offices Kwale have duly confirmed the position that green card has been misplaced and or is missing. DW1 stated in his evidence that he was advised to undertake the reconstruction. In my view this would have been supported by an acknowledgement by the Land Registry that the same is lost since action must start with them as envisaged by law before the applicant. I have already shown how there was no proof from the custodian of land records that the same was lost.  It is clear from the regulations above any request is by application, I have already shown the application for the search alluded to by DW1 that led him to the realization that the green card was missing/lost was not presented yet this was a mandatory document as we are not told it was a personal search either.

78    Section 33 of the Act is specific on Land Registers that is green cards requiring the registrars to make such inquiries as may be necessary and after giving due notice. It is not clear what inquires the registrar made. All that was attached was a copy of the ID and title deeds belonging to DW1. Mr. Mokaya confirmed there was an internal mechanism for re-issue especially if the mistake was attributable to the lands office and which in my view ought to be and which is the case in the instant proceedings since the Land Registrar is the custodian of the green card. While this internal mechanism was not enumerated, deriving from the legal provisions above the same would entail inquiries from the office or authority responsible for survey; the office or authority responsible for land administration; and any other office the Registrar may deem necessary. These from my reading of Regulation 29(6) and (7) above are in addition to the gazette notice of 60 days. The omission of this necessary step constitutes unprocedural registration. To me this points to irregularity and the casual manner in which the registry handled a replacement of a green card leaves a lot to be desired. DW3 told the court he could not speak for his predecessor on how he chose to go about the issue. But let me state the predecessor ought to have documented the process he took and in the absence of which the court is left with nothing to rely upon.

79    Was the requisite Gazette notice presented? DW1 evidence in cross examination on this issue is that he was not aware about the requirement to publish a notice in the Kenya Gazette and that what he did and produced in court was in respect of the newspaper advertisement. But I must point out that the record bears DW1 affidavit sworn on 13/10/22 in response to the application dated 7^th July 2022, where the witness states at paragraph 9 that he was advised by the Land Registrar thus’ ‘….i have to advertise the loss of green card in the Kenya Gazette and in the local dailies……..’ . Clearly he was aware of the requirement for the gazettement. But confirms only to have done the newspaper advertisement.

80    The 3^rd Defendant produced at page 28 of his further list of documents Gazette Notice No. 8151 dated 13/8/21. DW3 conceded that records did not bear an application for registration for reconstruction which is submitted after gazettement. DW2 in his evidence in chief told the court that he did a search obtained copies of documents and googled if the gazette notice was published on the said 13/08/21. For him to google it meant that the Gazette Notice was not in the parcel file. I had a problem with this for the reason that he ought to have obtained this document from the registry as the time of the transaction. The copy in the DW3 file is certified on 16/8/23 and it is not clear under what circumstances this was certified.

81    Be that as it may the court notes that a Gazette Notice is a public document and may be obtained online in this day and age. But having stated so this does not confirm the truthfulness of the contents of the said document. The gazette notice speaks to a loss of a green card whose publisher this court has already made a finding had no good title to the suit property or at all. He had no locus to file the gazette notice. To me nothing comes out of an illegality. See  Macfoy Vs. United Africa Limited (1961) ALL FR 1169. Additionally

82    I’m further guided by the decision of the Court of Appeal which was affirmed by the Supreme Court of Kenya in SC Petition 8 (E010) of 2021 Dina Management Limited Vs County Government of Mombasa & 5 Others where the Supreme Court of Kenya pronounced thus; -

[111] Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution.’

108 Further, we cannot, on the basis of indefeasibility of title, sanction irregularities and illegalities in the allocation of public land. It is not enough for a party to state that they have a lease or title to property. In the case of Funzi Development Ltd & Others Vs. County Council of Kwale, Msa Civil Appeal No. 252 of 2005 (2014) eKLR the Court Appeal which decision this court affirmed stated that; -

‘…. A registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot on the basis of indefeasibility of title sanction an illegality or give its seal of approval to an illegal or irregularly obtained title.’ Emphasis is mine.

83    Based on the foregoing I had no basis upon which to declare either the 1^st Defendant in respect of his alleged purchase from Mr. Hunja or the 2^nd Defendant as innocent or bonafide purchasers for value without notice.

84    I think the upshot of the foregoing is that this court must make a finding that the suit parcel belongs to the plaintiff.   It has been submitted that the suit property does not exist having been subdivided into 59 parcels of land. Indeed, this subdivision was discussed and confirmed in evidence and the court had occasion to see the original titles. It has been further submitted that despite the 2^nd Defendants proceeding to amend their Defence to capture the aspect of subdivisions, counsel for the Plaintiff never found it necessary to amend its pleadings. I think it would be a miscarriage of justice to uphold the arguments as to the non-existence of the suit property to the detriment of the Plaintiff. This court must look at justice. The bottom line is that the subdivisions cannot be delinked from the mother title as they are a product of the same. The court is also  a court of equity and this is one of those instances that I deemed necessary to render substantive justice as opposed to looking at technicalities. In this regard I’m emboldened by the dictum of the Court of Appeal in Macharia Mwangi Maina & 87 Others Vs Davidson Mwangi Kagiri Civil Appeal No. 26 & 27 of 2011 [2014] eKLR where the court was guided by the overriding objective of the court and the need to dispense substantive justice.

85    Is the Plaintiff entitled to the orders sought? The Plaintiff craves

for judgement against the Defendants for; -

1. A permanent injunction restraining the Defendants either by themselves, their agent and /or servants from harassing, threatening, intimidating, trespassing upon, demolishing and/or in any manner whatsoever interfering with the Plaintiff’s properties on the property known as land title no Kwale/Galu Kinondo/620 situated within Kwale County and measuring 2.8Ha.
2. A declaration that the property known as Kwale/Galu Kinondo/620 situated within Kwale County and measuring 2.8Ha belongs to the Plaintiff’s
3. Special damages
4. General damages
5. Costs of this suit
6. Any other relief that this honourable court may deem fit and just to grant in the interest of justice

86    I will first address the prayer for special damages. It is trite that special damages must be specifically pleaded and strictly proved (see Equity Bank Ltd vs Gerald Wangomb’e Thuni [2015] eKLR).  A look at the Plaint the same has only been pleaded as a prayer without any particulars. No evidence was led before this court at all on the issue. I decline to entertain the prayer for Special Damages.

87    With regard to the prayer for General damages while this is at the discretion of the court Counsel for the Plaintiff did not submit on the same and I find no basis upon which I would peg a figure for general damages.

88    On the prayers for permanent injunction against the Defendants, it is trite that this would be the right stage at which to grant prayers for permanent injunction. A permanent injunction defines the rights of the parties after the suit is heard on merit. Having made a finding that the plaintiff is the rightful owner of the suit property it is imperative that the 1^st and 2^nd Defendant are permanently restrained from claiming any right or doing any act over the property that would go against the Plaintiffs right. It is this courts finding that this prayer is merited.

89    It is noteworthy that the Plaint makes no orders for cancelation of the subdivisions. I have already discussed hereinbefore that I choose substantive justice. Additionally, the Plaintiff has also invited the court for other relief that this honourable court may deem fit and just to grant in the interest of justice. I have already set out in my discussions the gaps and illegalities in the acquisition of the 1^st Defendants title and therefore under the provisions of Section 26(1)(b) of the Land Registration Act, his title herein is impeachable for the illegalities and irregularities pointed in this judgement and it does not matter to what extent they participated in the same. The court having made all the above findings there is no way the subdivisions would remain untouched. I have also shown how the 2^nd Defendants titles therefore becomes a nullity. The court is conferred with powers under section 80 of the Land Registration Act to order for rectification of a register by directing that any registration be cancelled or amended if it is satisfied that any registration is marred with illegalities. See Daudi Kiptugen —vs- Commissioner of Lands & 4 Others (2015) eKLR

90    On who bears the costs of this suit, it is trite pursuant to the provisions of Section 27 of the Civil Procedure Act that costs follow the event.

91    The upshot of the foregoing discussions and  analysis is that it is this court’s finding that the Plaintiff has proved his case against the Defendants on a balance of probabilities that he is the legal owner of the suit property. This court therefore enters judgement for the Plaintiffs against the Defendants in the following terms; -

1. A permanent injunction restraining the Defendants either by themselves, their agent and /or servants from harassing, threatening, intimidating, trespassing upon, demolishing and/or in any manner whatsoever interfering with the Plaintiff’s properties on the property known as land title no Kwale/Galu Kinondo/620 situated within Kwale County and measuring 2.8Ha.
2. A declaration that the property known as Kwale/Galu Kinondo/620 situated within Kwale County and measuring 2.8Ha belongs to the Plaintiff.
3. An order of cancelation of all entries relating to the 1^st and 2^nd Defendants. The Land Registrar Kwale rectifies the register by cancelling the 59 subdivisions registered in the name of the 2^nd Defendant and removing all the entries that are against the interest of Plaintiffs registration as proprietor of the Kwale/Galu Kinondo/620 situated within Kwale County and measuring 2.8Ha.
4. An order that the Land Registrar shall rectify the Land Registrar in tandem with this judgement to reflect the Plaintiff as the legal registered proprietor of the Kwale/Galu Kinondo/620 situated within Kwale County and measuring 2.8Ha.
5. The 2^nd Defendant shall at its own cost remove and or demolish any of its developments erected on the suit property within 90 days of this judgement.
6. The Plaintiff shall have the costs of this suit.

Orders accordingly.

Judgement Delivered and Dated at Kwale This 8^th Day of October, 2024.

Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:

Mr. Omuyoma Holding brief for Mr. Wachira for the Plaintiff

Ms. Mukabane for the 1^st Defendant

Ms. Kimani for the 2^nd Defendant

Mr. Kemei for the 3^rd Defendant

Asmaa Maftah Court Assistant.