URITHI HOUSING CO-OPERATIVE SOCIETY LIMITED VS MAUREEN KWAMBOKA MACHUNGO

Plaintiffs Case
Urithi Housing Cooperative Society Ltd (hereinafter referred to as the plaintiff) has come to court via amended plaint filed on 17.11.2022 seeking orders against Maureen Kwamboka Machungo and the Land Registrar Nakuru (hereinafter referred to as the defendants) in terms that a permanent injunction restraining the defendants either by themselves, their servants and/or agents form encroaching, alienating and/or interfering in any way with all that parcel of land known as Nakuru Municipality Block 23/557. She further seeks an order of cancellation of title to L.R Number Nakuru Municipality Block 23/557 appearing into name of the 1st defendant herein. Lastly, she seeks an order compelling the 2nd defendant herein to rectify its records, and have the plaintiffs name rectified in its records which records were initially hidden and/or destroyed. The plaintiff prays for the costs of the suit.
The plaintiff states that at all material times relevant to this suit. The Plaintiff herein remains the bonafide owner of all that parcel of land known as Nakuru Municipality Block 23/557 which parcel of land was purchased on or about the 28th day of November 2014. The title to Nakuru Municipality Block 23/557 was taken out by the Plaintiff on the 8th day of  January 2015. That it is now within the Plaintiff’s knowledge that the 1st Defendant herein has encroached onto the plaintiff’s parcel of land Nakuru Municipality Block 23/557 and worse still put up a flat with rental houses.
The plaintiff laments that it has equally dawned to him that the 1st Defendant herein equally has title to Nakuru Municipality Block 23/557 which title was taken out on the 10th day of November 2016. That in light of the afore-going it is now evident that the 2nd defendant in collusion with the 1st Defendant fraudulently took out a title deed dated 10th November 2016.
The plaintiff states that the 1st defendant purported to purchase a parcel of land that had already been sold to the Plaintiff. They took out a title deed whilst knowing very well that there existed another title deed to Nakuru Municipality Block 23/557. They caused all the initial records to Nakuru Municipality Block 23/557 to disappear or get lost form the lands offices so as to make new entries in relation to all that parcel of land known as Nakuru Municipality Block 23/557. They failed to follow the correct -spelt out rates payment records at the Nakuru rates county offices. Otherwise taking out or destroying title to Nakuru Municipality Block 23/557 twice.
The plaintiff contends that in light of the above the plaintiff herein has suffered great loss and damages. The plaintiff seeks the cancellation of title in relation to Nakuru Municipality Block 23/557 and in the alternative pray for an order  compelling the 2nd Defendant herein to rectify current records at the Nakuru Land office to have its name reflected on the green card as pertains ownership of the parcel of land in question. The Plaintiff equally prays for an eviction order to issue against the 1st Defendant herein. The plaintiff further prays for mesne profits as from the year 2016.
1ST Defendants Case
The 1st Defendant denies the claim by the plaintiff in particular the issuance of title to the suit property and encroachment and puts the plaintiff to strict proof thereof. The 1st Defendant further states that  she is the lawful registered owner of all that parcel of land known as Nakuru/Municipality Block 23/557 and that the claim herein is frivolous and an abuse of the process of the court. The 1st defendant avers that the entire claim herein is brought in bad faith, malicious and the plaintiff is guilty of non-disclosure of material facts to wit: - that it is relying on fraudulent documents to bring this suit. The 1st defendant denies the particulars of fraud as set out herein and puts the plaintiff into strict proof of the said allegations.
Further, the 1st defendant avers that if the allegations of fraud are true which is denied, she is a bona fide purchaser for value without notice as at the time she purchased the property from the original owner, she conducted the official search and there was not restriction of caveat on the proprietorship section. The 1st defendant avers further that during the purchase of the suit property, she conducted due diligence and paid all rates and other outgoings to the government authorities before and after the transaction for the effective conveyance and issuance of the certificate of lease in her favour.
The 1st defendant states that the ownership documents filed herein by the plaintiff are tainted with fraud and illegalities as the same do not emanate from the 2nd defendants office. The 1st defendant avers that the suit herein is incompetent and an abuse of the court process as the same had been instituted without a company resolution by the board of directors to the plaintiff.
The Evidence on Record
When the matter came for hearing, PW1 Samuel Ngundo Maina testified that Sometimes around October 2014, Urithi Housing Cooperative Society Ltd where he serves as the Chairman was interested in purchase of land at Naka Nakuru for the purpose of constructing a project for the members. The company through the board sent a word to the agents known to them in Nakuru to look for a suitable parcel of land. They consulted one Ibrahim Riko of ID Number 0720899 who showed them the suit parcel. They visited the site several times as executive board members and also the project team alongside their staff in Nakuru and  Marketers. Upon satisfaction that the land was seemingly good, they contracted the said Ibrahim Riko together with one of the staff called Ken Kahiga to conduct a land search in the lands office. The land search was conducted on 17th November 2014 vide receipt number 3698911 and the prerequisite fee of 520/- was paid to the land office.
On 18th November 2014, an official certificate of search was given for Nakuru Municipal Block 23/557 measuring zero decimal zero eight one nine (0.0819) hectares or thereabout. The nature of the title is leasehold.  Accordingly, the names of the proprietor were John Karanja Njenga and Kayaka Hamtal Oduori as joint proprietors.
The purpose of the search was confirmation of the real proprietors which was ascertained by the then registrar Mr Birundu who signed for the same. There was neither inhibition, caution nor restriction placed on the land nor encumbrances. Upon satisfaction from the search that the land was genuine, they organized for a meeting with the said proprietors and met severally for negotiation at the Golden palace hotel along Kanu Street and Hotel Waterbuck.  Eventually having certified to the best of their knowledge that the two proprietors Mr Karanja Njenga and Kayaka Hamtala were the owners, they proceeded to do an agreement on 25th November 2014.
They agreed the purchase price for the parcel to be 6,200,000/- and made a commitment on 28th November 2014 vide a cheque drawn by Daniel Mwangi Karnau. They continued paying for the balance of the land until they fully completed the payment of Kshs6, 200,000. Later they transferred the title into the name of Urithi which was issued on 8th January 2015 by Mr Birundu. Thereafter, they fenced the land with barbed wire and started mobilizing their members towards construction.
Sometimes in May 2016, they applied for a search for the purpose of developing the property. The search was not availed by the land's office. When the search could not come out, they sent a representative and staff to the land office Nakuru and the then registrar told them that there was a claimant to the land. The registrar summoned them and the two previous owners to accompany on 12thJu1y 2016. While at the lands office, each party thus Mr. Simon Kiptala Chesaro and the vendors insisted on their case. Mr Chesaro said he never  sold the land despite Mr Karanja producing a sale agreement.

They reported the matter to the Nakuru Police station and were given an  0ccurrence Book ref. no. 60/12/7/2016 and then proceeded to the DCIO-Nakuru. Before the matter could even be resolved between the parties, they came to learn someone had already erected a permanent building on the farm. Efforts to reach out to Mr Chesaro were fruitless. The state of affairs has left the Company totally disenfranchised since they had incurred other costs and their members are left unsettled despite investing heavily in the project.
On Cross examination by Mr Ombui, he states that he has come to court on behalf of Urithi Housing Company Ltd. He admitted not having filed a company resolution to come to court. He reiterated that their transactions were done legally and procedurally. However he admitted that there was no company seal on the agreements. The matter was investigated by the Kenya Police service and Mr Hamtalla and Karanja were charged but the charges were later withdrawn. The witness did not see a copy of the lease.
PW2 Kayaka Hamtala Oduori testified that he is a business man dealing in buying and selling of property and also a farmer at Rongai. He remembered that in the month of March 2006 within Nakuru his friend and business partner Mr. John Karanja called him and told him that there was a property plot being sold within Naka and that one Ngeny alias Chairman a land broker informed him of the piece of land that was on sale in Naka Nakuru area. Ngeny took them to the said land and both liked it since it was in the first row and instructed Ngeny to bring them the owner. Ngeny later brought a one Simon Kiptala Chesaro in Mr Karanja bar in Githima near Eveready.
They met at his bar where they got to know each other and then started to negotiate and agreed on a price of Kshs 900,000/- as the buying price which they contributed equally between himself and Mr Karanja each Kshs 450,000/-.
On the 9th day of March 2006 Mr Simon Kiptala Chesaro brought them the photocopy of his lease certificate. They visited the office of the Nakuru Housing & Development Co. Ltd which initiated the sale of Nakuru Municipality Block 23. They met at KFA building where the records of the said parcel of land were kept. At the Nakuru Housing Development Co. Ltd office they met one Bett who was in charge of the office at the time and who confirmed and assured them that the land belonged to Simon Kiptala since he was in the registry and she also knew him personally. They went to Vickers house along Kenyatta Avenue to the firm of Seth & Wathigo Advocates who has been contracted by Nakuru Housing and Development Co. Ltd to process lease title for its members. In the said office they met Selina a lady of Indian descent who confirmed to them that indeed Simon Kiptala was the legal owner of Nakuru Municipality Block 23/557.
On the same day they proceeded to the lands office where they conducted a search and got the result which result also indicated that the said land belonged to Simon Kiptala Chesaro.
On the 15th day of March 2006 all parties met at Kanu House in the firm of Julius Ombati Advocate's office where an agreement was drafted and they  paid in cash and Mr Simion Kiptala Chesaro gave them the original lease certificate. They did the transfer and both their names were indicated on the lease certificate as the original owners of Nakuru Municipality Block 23/557.
In the year 2010 his partner Mr Karanja informed him that he got a call from a friend telling him that there were people at their plot claiming that the land belonged to them. That Simion Kiptala sold the same to Joshua Kulei and his partner Mr. Karanja requested them to go to the Chief's office and make a formal report but on reaching the Chief's office in Free Area the people disappeared.  They went to the lands office on 12th February 2010 and requested for a copy   of the registered green card by then it was known as a white Card which they got and it showed their names as the registered owners. They went to the Registrar's office who made a few calls and informed them the source had told him that the land belonged to Simon Kiptala and that after getting the allotment letter he sold it to one Joshua Kulei.
This new information led them to look for Simon Kiptala Chesaro who had relocated to Kabartonjo. They went to Kabartonjo within Kabarnet searching for Simon Kiptala Chesaro but were met with hostility at the chief's camp and were forced to return to Nakuru without meeting Simion Kiptala.
In the year 2014 they decided to sell the piece of land to Urithi Cooperative Society who were brought by an agent by the name Ibrahim. They met with the Chairman Mr Maina and the Treasurer Mr. Kamau and showed them the land they negotiated after conducting the search and agreed on a buying price of Kshs 6,200,000/- which was to be paid in 3 instalments.
On the 28th day of November, 2014 they did the sale agreement at Munene C.M Advocate and commissioner for oaths office and payment was made via cheque no. 000136 for 1 st installment of kshs 500,000/- and the 2nd installment of Kshs 2,500,000/- was to be deposited on the 1st day of December 2014. Then 3rd installment of kshs 3,200,000/- would be made after completion of the transfer of the lease. The lease certificate plus other  documents were surrendered to facilitate the transfer and the same was transferred to Urithi after paying the balance in full.
In early April 2016 his partner Mr Karanja received a call from Ibrahim a broker at the Urithi sales and informed him that he was at the county office and there was an elderly man accompanied by Chelaite (the secretary of Nakuru Housing Development Company Ltd) and that he overheard that Nakuru Municipality Block 23/557 should be changed from the current name to Simon Kiptala Chesaro and that they had a letter from the lands office and he wanted to confirm whether they had sold the land to Urithi.
The following day his partner went to the Municipal offices where he inquired on the information he got from Ibrahim and he was told it was true but they declined the request of Simon Kiptala to change his detail back to the lease title unless there was a court order. The Municipal office requested him to come with all the documents for the purchase of land which he did on the same day and that is when he was shown a copy of lease certificate in the names of Simon Kiptala Chesaro issued in the year 2016 signed by registrar Birundu.
The witness went on to state that from the Municipal office his partner went straight to the Ardhi House Nakuru and confronted land registered Mr Birundu for issuing another title to Simion Kiptala Chesaro bearing in mind that he had also issued the same title deed to Urithi Housing Co-operative Society back in 2015. Mr Birundu informed him that he had made a mistake that Simon Kiptala had gone to his office complaining that the parcel of land Nakuru Municipality block 23/557 belonged to him and so he had removed the card from the binder and kept them in his office. He advised him to write a letter to the District Land Registrar stopping any transaction of Nakuru Municipality Block 23/557.
On 28th day of April 2016 through Ombati & Ombati Co. Advocates wrote a letter to the registrar and copy of Nakuru Municipal records office stopping  any transaction on Nakuru Municipality Block 23/557. He informed Urithi housing on what was happening for them to also do a follow up.
On 23rd day of May 2016 Ombati & Ombati Advocates received a copy of letter addressed to Simon Kiptala by Nakuru County Government informing him that only a court order from land court would make him change name.
On the 10th day of July 2016, they were summoned by the District land registrar Nakuru and on Monday. On the 11th day of July 2016 they met Mr Kamau, Mr Maina and a lady by the name Ruth who was the company advocate and proceeded to the lands office where they met Medeline who wanted to know how they got the property. They showed her the documents pertaining the piece of land.
When they left the registrar’s office they met Simon coming in and followed him but were stopped from re-entering the office. After about 10 minutes they were called in and one Medeline asked them whether they knew the elderly man in the room, to which they answered in affirmative. It was discovered that the records at the lands office were missing. He went to the police station and reported the same.
On cross examination by Mr Ombui,learned counsel for the 1st defendant, he states that neither him nor Chesaro is  a party in the suit. Mr Chesaro gave them a copy of the certificate of lease. The signed the agreement of sale in March 2006 before Ombati and Co advocates. The agreement is with their advocates. They paid the advocate Ksh900,000 who later paid Mr Chesaro. The money came from the house and not the bank. The transfer instrument was surrendered to the Lands office. They never paid for the rates in 2006 but did so in 2014.
On cross-examination by M/S Wanjeri, Senior Litigation Counsel, he states that he did not know who the land registrar called and why he called. They have no problem with the land registrar.
PW3 John Karanja Njenga repeated the evidence given by PW3, but purposes of record I will go through the same. He testified that he is a business man dealing in buying and selling of property and also owns a hardware business. In the month of March 2006 he was approached by one Ngeny a land broker who informed him of a piece of land that was on sale Nakuru area. Ngeny took him to the said land in the company of Hamtala Kayaka Oduori. They both liked it since it was in the first row and instructed Ngeny to show them the owner. Ngeny later brought a one Simon Kiptala Chesaro who was familiar to the witness since he used to go to a butchery next to his bar in Githima near Eveready.
They agreed on a price of Kshs 900,000/. On the 9th day of March 2006 Mr Simon Kiptala Chesaro went with the photocopy of his lease certificate and visited the office of the Nakuru Housing & Development Co. Ltd which initiated the sale of Nakuru Municipality Block 23. They met at KFA building in the company of Hamtala and the land brokers Ngeny alias Chairman. At the Nakuru Housing Development Co. Ltd office they met one Bett who was in charge of the office at the time and who confirmed and assured them that the land belonged to Simion Kiptala and that she knew him personally. From there they went to Vickers house along Kenyatta's Avenue to the firm of Seth & Wathigo Advocates who had been contracted by  Nakuru Housing and Development Co. Ltd to process lease title for its members. In the said office they met Zarina a lady of Indian descent who confirmed to them that indeed Simion Kiptala was the legal owner of Nakuru Municipality Block 23/557.
On the same day they proceeded to the lands office where they conducted a search and got the result which indicated that the said land belonged to Simon Kiptala Chesaro.  On the 15th day of March 2006 all parties met at Kanu House in the firm of Julius Ombati Advocate's office where an agreement was drafted and they paid in cash and Mr Simon Kiptala Chesaro gave them the original lease certificate. They did the transfer and his name and that of partner Kayaka Hamtala was indicated on the lease certificate.
In the year 2010, he got a call from a friend telling him that there were people at his plot claiming that the land belonged to them. He immediately went to Naka where the said parcel of land is located and got two gentlemen of whom he  knew one by the name Karanja. He told him that the particular piece of land belonged to Joshua Kulei

They went to the lands office on 12th February 2010 and requested for a copy of the registered green card by then it was known as a white Card which they got and it showed that it was in their names, from there they proceeded to the  Registrar's office who made a few calls and informed him that his source had told him that the land belonged to Simion Kiptala and after getting the allotment letter he sold it to one Joshua Kulei.
This new information led them to look for Simon Kiptala Chesaro who had relocated to Kabartonjo. They went to Kabartonjo within Kabarnet in search of Simon Kiptala Chesaro but were met with hostility at the chief's camp  and were forced to return to Nakuru without meeting Simon Kiptala.
In the year 2014 they decided to sell the piece of land to Urithi Cooperative Society who were brought by an agent one Ibrahim. They met the Chairman Mr Maina and the Treasurer Mr. Kamau and showed them the land we negotiated after conducting the search they agreed on a buying price of Kshs 6,200,000/- which was to be paid in 3 installments.

On the 28th day of November, 2014 they did the sale agreement at Munene C.M Advocate and Commissioner for Oaths office and he received a personal cheque from one Daniel Mwangi Kamau the Treasurer of Urithi Housing Cooperative Society Ltd vide cheque no. 000136 for Kshs 500,000/- this being the first installment and the second installment of Kshs 2,500,000 was to be deposited in his account on the 1st day of December 2014. Then 3rd installment of kshs 3,200,000 would be made after completion of the transfer of the lease. He handed over the lease certificate plus other  documents to facilitate the transfer and the same was transferred to Urithi after paying the balance in full.
In early April 2016 he received a call from Ibrahim a broker at the Urithi sales and informed him that he was at the county office and there was an elderly man accompanied by Chelaite (the secretary of Nakuru Housing Development Company Ltd) and that he overheard that Nakuru Municipality Block 23/557 should be changed from the current name to Simon Kiptala Chesaro and that they had a letter from the lands office and he wanted to confirm whether he had sold the land to Urithi.
The following day he went to the Municipal offices where he inquired on the information he got from Ibrahim and was told it was true but they declined the request of Simon Kiptala to change his detail back to the lease title unless there was a court order. The Municipal office requested him to go  with all the documents for the purchase of land which he did on the same day and that when he was shown a copy of lease certificate in the names of Simion Kiptala Chesaro issued in the year 2016 signed by registrar Birundu.
That from the Municipal office he went straight to the Ardhi House Nakuru and confronted land registered Mr Birundu for issuing another title to Simon Kiptala Chesaro bearing in mind that he had also issued the same title deed to Urithi Housing Co-operative Society back in 2015. Mr Birundu informed him that he had made a mistake that Simon Kiptala had gone to his office complaining that the parcel of land Nakuru Municipality block 23/557 belonged to him and so he had removed the card from the binder and kept them in his office. He advised the witness to write a letter to the District Land Registrar stopping any transaction of Nakuru Municipality Block 23/557.
On 28th day of April 2016 through Ombati & Ombati Co. Advocates wrote a letter to the registrar and copy of Nakuru Municipal records office stopping any transaction on Nakuru Municipality Block 23/557. He informed Urithi housing on what was happening for them to also do a follow up. On 23rd day of May 2016 his lawyer received a copy of letter addressed to Simon Kiptala by Nakuru County Government informing him that only a court order from land court would make him change name. On the 10th day of July 2016, he was contacted by Mr Kamau the urithi treasurer that they had been summoned by the District land registrar Nakuru and on Monday. On the 11th day of July 2016 he met Mr Kamau, Mr Maina and a lady by the name Ruth who was the company advocate and proceeded to the lands office and when they got there they met Medeline who wanted to know how he got the property and showed her the documents pertaining the piece of land. She asked him whether he knew the said Simion Kiptala physically which he answered in the affirmative.
When he left the registrar office he saw Simon coming in and followed him but was stopped from entering the office. After about 10 minutes he was called in and Medeline asked him whether he knew the elderly man in the room which he answered in affirmative.
On cross examination by Mr Ombui, he states that Mr Chesang had the original title. They did not pay for the rates in 2006. They paid in 2014.
DW1 Simion Kiptala Chesaro testified that he is currently residing at Kabartonjo within Baringo County carrying on family business. That before he relocated to Baringo in the year 1993, he used to reside and work in Nakuru County. He was the original owner of all that property known as Nakuru/Municipality Block 23/557 having been allocated the same in the year 1991. That he paid the requisite fees on 13th May, 2015 and issued with the Certificate of Lease on the 11th of February, 2016. He states that as per the records held at the Lands office, up-to and including the month of June, 2016, he was still the registered. That he was the first registered owner as per the lease issued and registered in Nakuru on 11th February, 2016 and that it is not true that he had obtained another Certificate of Lease before the 15th March, 2006 which he could have transferred to the said John Karanja Njenga and Kayaka Hamtala Oduori as stated in their witness statements.  That it was after his lease had been registered and Certificate of Lease issued that he came to establish that the said John Karanja Njenga and Kayaka Hamtala Oduori had forged some documents purportedly executed by himself transferring property to them but the matter was  investigated by the Land Registrar who referred the same to Nakuru CID offices where all the parties were requested to record their statements and up-to date he has not received the outcome of the said investigations
He states that  on the 26th April, 2016, he received a copy of a letter by Land Registrar addressed to the Rates Department, Nakuru County Government offices confirming that he was the genuine and authentic registered owner of Nakuru/Municipality Block 23/557 (lease). That on the 10th October, 2016, he  proceeded with the said letter to the office of County Government of Nakuru, made payment of outstanding annual rates and arrears amounting to Kshs.21 7,934/=. That on the same day after due diligence and confirming that the Registrar at Lands Office was in proper order and all the relevant documents confirmed that he was the registered owner of the suit property, he entered into a sale agreement with one Maureen Kwamboka Machungo and executed all the relevant transfer documents in her favour.
He swore that he had never sold the suit property to John Karanja Njenga and Kayaka Hamtala Oduori neither did he attend the chambers of Ombati and Ombati Advocates to execute any sale agreement and received any payment from the said two individuals. The only person he has dealt with in any land transaction touching on the suit property is Maureen Kwamboka Machungo the current registered owner.
DW2 Mariam Kwamboka Machungo testified that she is the registered owner of all that parcel of land known as Nakuru/Municipality Block 23/557.  That she purchased the said parcel of land from the original registered owner namely Simion Kiptala Chesaro on the 10th of October, 2016. That the above sale transaction was executed by both parties after she had carried out due diligence and established beyond doubt that both in the Lands Office Nakuru and County Government's office Nakuru, the official documents of ownership had established that Simion Kiptala Chesaro was indeed the registered owner. That after the parties executed the Sale Agreement, he proceeded to present the completion documents together with the requisite payment at the Nakuru Lands office and successfully transferred the property in his favour.
That he immediately commenced construction works comprising of Five (5) storey residential apartments with estimated rental income of Kshs.565,OOO/= per month. The open market value of the suit property currently is the sum of 67,000,000 (Kenya Shillings Sixty Seven Million). That since the month of October, 2016 when he purchased the suit property and developed the same, and has been enjoying peaceful and quiet possession of the same.
On cross examination by Mr Mongeri, the learned counsel for the plaintiff, he states that her agreement with Mr Chesaro does not specify the documents she was given. She does not have the original allotment letter issued to Chesaro on the 3/8/1991. Chesaro did not give her a copy of the letter of acceptance or cheque copy. The offer was to lapse after 30 days. She was not supplied with any documents to support the lease. The allotment letter was issued by the Commissioner of lands whereas the lessor is the county government, Nakuru and there is no allotment letter by the Conty Government of Nakuru.
DW3, Ojwang Omolo, the Deputy Director of Land Administration, in the directorate of land Administration ministry of lands stated that he was served with summons dated 11/11/2025 to attend court and was paid 50,000 to attend court by the 1st defendant. He produced the original file and the correspondence file. This was file number 6634/23/557 for parcel number Nakuru/municipality /block 23/557 in the name of Simeon Kiptala Chesaro. According to the witness, the property was allocated to Simeone K.A. Chesaro after sub-division of and change of user of LR NO 462/2 which was the property of Nakuru Housing Development co ltd. The company fronted a list of members and their respective parcels of land and the commissioner of lands approved. The property was paid for at Ksh 63,630 for 101 plots. The lease for the suit property was processed in 2016 in the names f Simion Kiptala Chesaro and forwarded to the District Land Registrar Nakuru on the 26th November 2016. The letter forwarding the lease was signed by the Chief Land Registrar. The lease was registered on the 11th February 2016.
On cross-examination by Chesang, Learned Counsel for the plaintiff,   he states that the allotment letter was issued on 8th March 1993 and the certificate of lease was issued on 11th February 2016. That the acceptance was to be made within 30 days of offer. He stated that this was a different case because it was private land. He agreed that the 1st name on the rates record is Simion K.A Chesaro.
The second name is John Karanja and third is Hayaka Oduor Hamtalla which are crossed out. He agreed that it is possible for the land records to be manipulated. However he insisted the file from the central land registry was intact from 1991. He stated that the white card and or the green card showing entries made on 22nd November 2000 was wrong as the lease was registered on the 11th February 2018. According to the witness, the certificate of lease issued to the plaintiff is not supported by any document from the central registry in Nairobi.
The 2nd Defendant called Sheila Mui, a Land Registrar, who testified that she knows Block 23/557. She had the parcel file. The same was registered on 11/2/2016 in the name of Simon Kiptala Chesaro. A certificate of lease was issued. She produced the white card as 2nd DEX 1 that showed that he was the 1st registered owner. She stated that a transfer was done on 10/11/2016 to Moreen Kwamboka Machungo. A certificate of lease   was issued on the same day. He produced a lease document in the name of Simon Kiptala Chesaro that was registered on 11/2/2016. He produced it as 2nd DEX 2. That was the close of the 2nd defendant’s case.
On cross examination by the counsel for the first defendant, Mr Ombui, he states that the certificate of lease for the plaintiff did not have supporting documents and that there are no transfer documents.
On cross examination by Chesang, learned counsel for the plaintiff, she states that the current registered owner of the suit parcel of land is the 1st defendant and that the white card produced as 2nd Dex10 exists. The entry is on a specific parcel of land. Entry no 1 was made on 22nd November 2000. There are no supporting documents for the entries made in the year 2000. The letter by Chesaro to place a restriction exists and was made in 2015. She states that the entries made in the white card opened in 2000 are not legitimate entries as there was no lease registered and no transfer of lease.
RIVAL SUBMISSIONS BY PARTIES
(a)    Plaintiffs Submissions
The plaintiff submits that the initial owner of land parcel Nakuru/municipality block 23/557 was Simion Chesaro who was allocated land in 1991 by virtue of the letter of allotment dated 5th August, 1991. From the contents of the letter of allotment, Simion Chesaro was required to pay Kshs. 610/- . Further, the said letter of allotment was signed  by the Commissioner of lands. From the contents of the lease, it goes without saying that the head lessor was the Government of Kenya.
According to the plaintiff, the Defence assertion that the initial owner was Simion Kiptala Chesaro, allegedly by virtue of a letter of allotment issued in 1991 and a lease registered in 2016 does not hold water due to documentary evidence produced by the plaintiff showing otherwise, thus a white Card certified on 23/7/2014 clearly showing  that PWI and PW2 were registered proprietors in 2006, long before the alleged 2016 lease to DWI    The Rate Account (Ex. 12) from Nakuru County Government shows the chronological movement of registered owners, including  Maureen Kwamboka Machungo
The plaintiff further submits that the Defence witness (DW3) admitted that records can be manipulated. DW4 also confirmed that she has in some instances met with fraudulent entries in her offices. The crossing out of names of PWI and PW2 was intentional especially noting the complexity of the matter. The names of PWI and PW2 did not miraculously appear on the rate account for the Municipal Council of Nakuru. DW2 confirmed before this Honourable Court that she has never paid any rates, but the same is paid by her father. The plaintiff wonders how her name was entered in the rates account. It will be safe to say, that the removal of PWI and PW2 from the rates account was a cover up.
The plaintiff contends that the testimony of DW4 that entries for PWI, PW2, and Urithi Housing were "not legit" simply because supporting documents were allegedly missing was not true because the same registry had previously issued the following documents:-
a.    A certified white card confirming these entries,
b.    A certified copy of rates records showing PWI & PW2 as owners, A certified search relied upon by Urithi Housing before purchase.
c.    Copies of Certificate of lease registered jointly in the names of PWI and PW2.
d.    Copies of Certificate of lease registered in the name of the Plaintiff herein.
The plaintiff submits that PWI produced a letter dated 23/5/2016 (Exb. 13) emanating from the County Government of Nakuru, which was addressed to Simion Kiptala Chesaro and stated as follows:
RE: NAKURU MUNICIPALITY BLOCK 23/557
The above land according to our records reads JOHN KARANJA NJENGA & KAYAKA KAMTALA ODWORI.
Consequently, we are unable to change that record without court order from the land court.
She submits that from the contents for the aforesaid letter, it goes without saying that as at 23/5/2016, Simon Kipatala was not the proprietor of the land. It is trite law that a certified copy of the registry extract is prima facie evidence of ownership. She refers to Section 80 of the evidence Act provides thus:
Certified copies of public documents.
(1)Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal  fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or pan thereof, as the case may be and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies. (2)Any officer who by the ordinary course of official duty is authorized to deliver copies of public documents shall be deemed to have the custody of such documents within the meaning of this section.
81, Proof by certified copies.
Certified copies of public documents may be produced in proof of the contents of the documents or parts of the documents of which they purport to be copies.
Equally section 78 (4) of the Evidence Act provides thus:
Electronic and digital evidence generated by a person in the ordinary course of business, or a copy or printout of or an extract from the electronic and digital evidence certified to be correct by a person in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.
The plaintiff presupposes that the Lands Registry's attempt to disown previously certified entries suggests tampering, not lack of registration as purported by DW3 and DW4. The initial valid and legal registration after allocation was the one in favour of Simion Chesaro in the year 2000, as confirmed in all the green cards produced. The purported registration of Simion Chesaro in 2020/2016 is inconsistent, impossible, and legally untenable—especially since he had already sold the land. A search in 2014 showed PWI and PW2 as proprietors and that he had already placed a restriction in 2015 acknowledging their ownership. He could not place a restriction on land he did not consider himself to own and or which was not registered before.
According to the plaintiff, the current rightful owner of land parcel Nakuru/municipality block 23/557 is the plaintiff. The uncontroverted chain of title is as follows:

(a) 2000: Simion Kiptala Chesaro
(b)    2006: PWI & PW2 registered upon purchase.
(c)    2014—2015: Uriithi Housing purchases the land; transfer registered and Certificate of Lease issued.
(d)    2016 onwards: DWI purports to obtain a new lease and sell to DW2.
The plaintiff argues that PW3, confirmed that the Certificate of Lease in favour of Urithi Housing's was acquired after due diligence, on the basis of a certified green card, with verification by the Lands Registry, before any restriction or dispute. In contrast, the Defendant's Certificate of lease issued to Maureen Kwamboka Machungo, was issued after a caution had been placed on the land by DWI himself and after Urithi Housing already held a Certificate of Lease and was based on records that DW3 admitted could be manipulated, was issued long after the original allocation (1991) with no plausible explanation for the 25-year delay.
The plaintiff cites the case of Wambui v Mwangi & 3 others (Civil Appeal 465 of 2019) [20211 KECA 144 (KLR) (19 November 2021) (Judgment) R. N. NAMBUYE, M. K. KOOME and ASIKE-MAKHANDIA stated the following concerning the issuance of a second title after issuance of an initial title.
“Second, the undisputable existence of title to the suit property in favour of the 1st respondent as at the time title over the same property was issued to the 3rd respondent and subsequently to the appellant in essence created two titles over the same subject property. The position in law as assessed above is that no property can in law have two parallel titles. In such an instance the earlier title prevails even assuming that the subsequent title was also procedurally acquired. Herein, notwithstanding that the appellant may have had no notice of the irregularity, unprocedurality, unlawfulness, deceitfulness and fraud attendant to the process that led to the acquisition of the title to the suit property  by the 3rd respondent, the position in law and which we are bound to uphold having been enunciated by this Court is that the earlier title held by the 1st respondent has primacy over that held by the appellant which in our view was therefore rightly vitiated by the judge.”
The plaintiff submits that the  rightful owner, under this head is thus Urithi Housing Cooperative Society Ltd  having acquired the property for value, after due diligence, and through a title whose root is valid and traceable. All subsequent titles including that issued to DWI and thereafter to DW2 are null and void ab initio. The plaintiff further submits that in this case, multiple red flags arise such as the irregular and impossible entries in the register. There was interference, Alteration and Suppression of documents. DW3, when asked whether copies of the original documents existed, indirectly admitted that the originals must be lying somewhere, but he remained evasive and deliberately avoided answering the question. The plaintiff urges that DW4 confirmed this position by producing before this Honourable Court an original copy of the white card showing all the seven (7) entries.
The plaintiff argues that the opening of a new register and registration of the 1st defendant as the proprietor of the property was a fraud. The plaintiff cites the case of   Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR), Justices P.N. WAKI, R.N. NAMBUYE and G.B.M. KARIUKI stated the following paragraph;
'52. According to Black's Law Dictionary,
"Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As  distinguished from negligence, it is always positive, intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one patty, or to cause an inconvenience or loss to the other. Fraud, in the sense of a court of equity, properly includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another'. 
At paragraph 53, the Learned Judge proceeds to state that
'it is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. One of the authorities produced before us has this passage from Bullen & Leake & Jacobs, Precedent of pleadings 13thEdition at page 427
"Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged (Wallingford v Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709, Garden Neptune V Occident[198911 Lloyd's Rep. 305, 308). The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see Lawrence V Lord Norreys (1880) 15 App. Cas. 210 at 221). It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (Davy V Garrett (1878) 7 ch.D. 473 at 489). "General allegations, however strong may be the words in  which they are stated, are insufficient to amount o an averment of fraud of which any court ought to take notice"
Fraud may be inferred from circumstantial evidence (Atthi Highway case). General & 2 others [20181 KECA 863 (KLR) Justices ASIKE-MAKHANDIA, S. GATEMBU KAIRU, FClArb and K. M'INOTI held thus.
We also do not think that the learnedjudge can be criticized for referring in his judgment to section 40(6) of the current Constitution which expressly provides that title to property which is obtained illegally does not enjoy constitutional protection. The learned judge was very clear in the judgment that it was the former Constitution, which applied in this case, and merely referred to Article 40(6) of the current Constitution to make the point, which he was entitled to do, that henceforth by dint of express constitutional edict, those who illegally acquire property cannot take refuge under the right to property that the Constitution guarantees.
Having carefully re-evaluated the evidence on record, we cannot fault the learnedjudge for refusing to grant the orders that the appellant had sought. The appellant's registration was not a first registration within the meaning of section 143 of the repealed Act and in addition the evidence leaves no doubt that the appellant had actual knowledge of the fraud that ultimately led to registration of the suit property in its name. This appeal has no merit and is dismissed with costs to the respondents. It is so ordered.”
According to the plaintiff, DW3's admission-of record manipulation    was manifest. A senior Lands officer admitted manipulation was possible. Combined with the shifting registry position, this strongly supports fraudulent interference. DW3 admitted further that he was paid Kshs. 50,000/- to testify for the Defendants. He admitted under oath that the summons issued to him, was very specific and that was to give evidence on behalf of the Defendant. A perusal of the summons, which is also available on the CTS, confirms that he was not to be paid any money as the provision for the same was blank. DW3 gave an explanation that if he is called to testify out of his jurisdiction, then the person calling him to testify, ought to facilitate his movement. However, no policy was ever tabled before this Honourable court to confirm this position. It is trite that state officers cannot demand or receive any payment from litigants as a condition for giving evidence or producing public records. Their obligation to appear in court flows from their public duty and the court's authority under the Civil Procedure Rules. Any request for money in exchange for testifying amounts to an unlawful benefit and violates the Constitution, the Public Officer Ethics Act, and the Anti-Corruption and Economic Crimes Act. In Republic v. Patrick Kibui & Another (2018) eKLR, the court affirmed that a public officer who solicits or accepts a benefit in the course of official duty commits a corrupt practice. Similarly, the court in Walter Nangai v. KACC (2013) eKLR emphasized that public officers must uphold integrity and cannot seek private gain from official functions. It therefore follows that a state officer who requests payment to attend court or to produce official documents acts outside the law, and such conduct is illegal, unethical, and contrary to the principles of public service. Noting the nature of this case and the missing records in the Lands Office, who are the custodian of the records, the court should not take the issue of paid remittance lightly, especially the fact that DW3 was summoned to give evidence as a custodian of the office in his capacity as a public officer and NOT as an expert witness.
The plaintiff submits that she has proved her case on  a balance of probabilities. The Plaintiff has given the Chronology of events of exactly what transpired over the years to how they obtained the Certificate of lease.
Having submitted that Certificate of lease issued to Simion Chesaro on 11/2/2016 was null and void, the title deed now held by the 1st Defendant ought to be cancelled and the 2nd Defendant be directed to cancel the same.  The Certificate of Tile for the land parcel number Nakuru/ Municipality Block 23/557 was fraudulently issued to Simion Chesaro on 11/2/2016, thus all subsequent transactions arising from the said certificate of lease is null and void. Therefore the plaintiff prays that the Plaint be allowed as prayed in its entirety Defendants be compelled to pay costs to the Plaintiff.
1ST Defendant’s Submissions
The plaintiff submits that the suit is incompetent as discerned in the cross examination of the plaintiff’s witness Samuel Kuria Maina who conceded that he was not able to produce any evidence linking him to the plaintiff which is a registered company. The said witness PW1 did not file any authority or minutes from the company authorizing him to institute the claim, plaint and or on its behalf. According to the 1st defendant, it is now established legal principle and there are Court decisions in support of the contention that when companies authorize the commencement of legal proceedings, a resolution or resolutions have to be passed either at a company or Board of Directors meeting and recorded in the minutes. As regards the necessity for a company resolution to back the institution of the suit, Odunga J. in his judgment in The Leo Investments case referred to the holding of Howett, J in Assia Pharmaceuticals -YS- Nairobi Veterinary Centre Ltd HCCC No.391 of2000 as follows:
"It is settled law that where a suit is to be instituted for and on behalf of a company there should be a company resolution to that effect.... As regards litigation by an incorporated company, the directors are as a rule, the persons who have the authority to act for the company; but in the absence of any contract to the contrary in the articles of association, the majority of the members of the company are entitled to decide event on the extent of overruling the directors, whether an action in the name of the company should be commenced or allowed to proceed. The Secretary of the company cannot institute proceedings in the name of the company in the absence of express authority to do so; but proceedings started without proper authority may subsequently be ratified".
In Kenya Commercial Bank Limited -vs- Stage Coach Management Limited 2014 eKLR pg9 J.B Havelock J held:-
"In this case, there has been no such ratification even after the Plaintiff, through its Advocates or otherwise, became aware of the Preliminary Objection filed by the Defendant dated over a year ago now. In my view, the Plaintiff has been lackadaisical to say the least. As a result, I exercise my discretion to uphold the Defendant's Preliminary Objection and I dismiss this suit with costs to the Defendant".
The defendant submits that in the absence of a resolution by the directors of the plaintiff and any evidence or nexus between the plaintiff and PW1 who is claiming to be the chairman, the entire suit should be held to be incompetent and struck out accordingly.
The defendant further submits that the plaintiff also conceded that at some point the matter was investigated by the Directors of Criminal Investigation and criminal charges for fraud and obtaining money by false pretenses were preferred against the persons who had sold him the suit property thus John Karanja Njenga and Kayaka Hamtala Oduor PW2 and PW3 respectively. PW1 conceded to have withdrawn the criminal case and proceeded to institute the present civil proceedings.
According to the defendant, is not clear why the plaintiff preferred to make the two persons witnesses instead of suing them as defendants and also include Simion Kiptala Chesaro the original owner and who had raised a complaint with the registrar that he had not sold his property to PW2 and PW3 were processing and obtaining certificate of lease and opening a register at the lands office unknown he had not been issued a lease by the commissioner of Land. These were necessary parts in the suit for the court to adjudicate on merit and after hearing all the parties in order to establish the root of the documents including the certificate of lease and entries that were done at Nakuru Lands Registry which were later cancelled when the original owner Simion Kiptala Chesaro filed a formal complaint on the said transaction which he was not aware of. It is now an established principle that where there are two documents in regard to the same property or any other party is under obligation to prove that the ownership documents which were being held by PW2 and PW3 including the certificate of lease later transferred to him and produced in court by PW1 were acquired regularly and lawfully.
The 1st derfendant refers to the edict of the Supreme Court in Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 010) of 2021) [20231 KESC 30 (Constitutional -and Human Rights) held;
"The ownership of land whose title was not acquired regularly is not protected under article 40 of the constitution on the protection of right to property."
As held by the Supreme Court, applied to this case , the original owner or allottee the DWI herein having challenged the ownership documents held by PW2 and PW3 which were later transferred to the plaintiff, the plaintiff was under obligation to prove that the certificate of lease  produced in court was obtained lawfully.
The defendant submits that the ownership documents held by PW2 and PW3 having been obtained or acquired irregularly, the ownership of the property by the plaintiff thereafter cannot be protected under article 40 of the constitution. The root of the title having been challenged, the plaintiff cannot benefit from the doctrine of bonafide purchaser.
On whether the Plaintiff acquired any legal or equitable interest in the suit property, the 1st defendant submits that this issue must be anchored on the official land records, as rights in land under Kenyan law flow from registration and not from informal arrangements or assumptions.  On this point, the Plaintiffs own evidence, taken together with the testimony of the Land Registrar and the Deputy Land Administrator, is conclusive. Both officers confirmed, based on the Green Card and registry records that the Plaintiffs alleged vendors John Karanja Njenga and Kayaka Hamtala Oduori were never at any time registered proprietors of the suit property. Not a single entry in the land register bears their names, and there is no record of any transaction involving either the Plaintiff or its vendors in respect of the Suitland.
The Land Registrar and the Deputy Land Administrator further confirmed that the suit property was lawfully registered in the name of Simion Kiptala Chesaro until its lawful transfer to the 1st Defendant, and that the documents presented by the 1st Defendant were authentic, duly executed and procedurally processed in compliance with the law. Their evidence was consistent, objective and uncontroverted, and it establishes that the registration of the 1st Defendant was regular and free from any impropriety. Conversely, the documents relied upon by the Plaintiff were confirmed not to have originated from the Lands Office and could not override the official register.
In these circumstances, the Plaintiff acquired neither a legal nor an equitable interest in the suit property, as it purported to purchase land from persons who had no interest capable of being transferred. The principle articulated by the Court of Appeal in Arthi Highway Developers Ltd vs West End Butchery Ltd & Others [2015] eKLR squarely applies: no person can transfer a better title than he himself possesses. The Plaintiffs vendors had none, and the consequences of that defective transaction cannot be imposed upon the 1st Defendant, whose title was lawfully acquired from the registered proprietor and duly confirmed by the custodians of the land records.
The 1st defendant submits that the evidence on record clearly demonstrates that the 1st Defendant acquired the suit property through a lawful and transparent process. She dealt directly with Mr. Simion Kiptala Chesaro, who was, at all material times, and the undisputed registered proprietor of the suit land. Prior to the transfer, due diligence was conducted, and the ownership status was verified at Lands Office. The transfer instruments, payment receipts and requisite consents were duly executed and presented for registration in accordance with the law.
The testimony of the Nakuru Land Registrar and the Deputy Land Administrator was particularly -instructive on this issue. Both officers confirmed that the documents lodged by the 1st Defendant were authentic, properly executed and procedurally processed. They further confirmed that the registration of the Defendant followed the prescribed statutory procedure and that there was no evidence of collusion, manipulation of records or any form of irregularity in the registration process. Their evidence, coming from the custodians of the land records, decisively affirms the legality of the 1 5t Defendant's title.
Section 26(1) of the Land Registration Act 2012 provides that a certificate of title issued by the Registrar is prima facie evidence that the person named therein is the absolute and indefeasible owner of the land. Such title can only be impeached on proof of fraud or misrepresentation to which the registered proprietor was a party. In the present case, no such evidence has been tendered against the 1st Defendant. Accordingly, her Certificate of Lease remains valid, lawful and deserving of the fill protection of the law.
The defendant submits that the Plaintiff has not proved fraud against the 15t Defendant to the standard required in law. Allegations of fraud are among the most serious that can be made -in civil proceedings, and the law imposes a heavy burden on the party making them. He cites the case of  Vijay Morjaria v Nansingh Darbar Another [2000] eKLR; where the Court was emphatic that fraud must not only be specifically pleaded but must also be strictly proved, and that it cannot be inferred from suspicion or irregularities. In the present case, the Plaintiffs. Pleadings and evidence fall far short of this stringent legal threshold.
The Plaintiff tendered no evidence whatsoever linking the 1st Defendant to any fraudulent conduct. On the contrary, the Land Registrar and the Deputy Land Administrator testified unequivocally that the 1 5t Defendant complied with all legal requirements, submitted authentic documents, and followed the proper registration procedure.- They confirmed that there was no evidence of collusion, manipulation of records, or procedural impropriety in the issuance of the 1st Defendant's title. This independent testimony from the custodians of land records effectively dismantles the Plaintiff's allegations of fraud.
The defendant contends that the Plaintiff was unable to authenticate its own documents or to explain why its alleged transaction leaves no footprint in the official government records. No entry exists in the land register, no supporting documentation was traced .at the Lands Office, and no credible explanation was offered for this glaring omission.
On whether the 1st Defendant is a bona fide purchaser for value without notice, the 1st defendant submits that the evidence on record squarely places the 1st Defendant within the protection accorded to a bona fide purchaser for value without notice. The legal test for such protection vas clearly set out in Arthi Highway Developers Ltd vs West End Butchery Ltd & Others 12015] eKLR, where the Court held that a purchaser must demonstrate that they acquired the property in good faith, paid valuable consideration, had no notice of fraud or competing claims, and were not party to any impropriety. The 1st Defendant satisfies each of these requirements. The Defendant holds a valid and duly issued Certificate of Lease, having purchased the suit property from the registered proprietor after conducting due diligence at the Lands Office. She paid valuable consideration, relied on official land records, and proceeded with the transaction honestly and openly. At the time of purchase, there was no caution, restriction, or adverse entry on the register, nor was there any indication of a competing claim. She therefore had no notice, actual or constructive, of the Plaintiff's alleged interest.
The 1st defendant submits that the testimony of the Land Registrar reinforces the 1st Defendant's innocence and good faith. The Registrar confirmed that the land records disclosed no defect in title and no competing interest at the time of registration. In these circumstances, the law protects the 1st Defendant from any- claim arising from undisclosed or informal transactions. To hold otherwise would undermine the integrity of the land registration system and unfairly punish an innocent purchaser who relied on official records.
Ultimately, the 1st defendant submits that the Plaintiff is not entitled to the reliefs sought in law and in equity. Courts have consistently held that a party who purchases land from a person without title cannot seek the cancellation of a title lawfully issued to a bona fide purchaser. In Alice Chemutai Too v Nickson Kipkurui Korir [2015] eKLR, the Court made it clear that the sanctity of a registered title cannot be disturbed merely because a third party entered into a defective or informal transaction with a non-owner. The Plaintiffs claim, being rooted in such a transaction, cannot found a basis for the drastic remedy of cancellation of title. The Plaintiffs predicament arises from its own failure to verify ownership before parting with its money. It relied on non-official documents, failed to confirm the identity of the registered proprietor, and was unable to prove any fraud or illegality on the part of the 1st Defendant. The combined and consistent testimony of the Land Registrar and the Deputy Land Administrator clearly demonstrates that the Plaintiffs alleged transaction has no footing in the official land records. Equity does not aid the negligent, nor does it permit the consequences of such negligence to be shifted onto an innocent party who acted diligently and in good faith.
In conclusion, the defendant submits that the pleadings, evidence and testimony of all parties, including the 2nd Defendant and the Deputy Land Administrator, establish that the Plaintiff has no lawful claim to the suit property. The 1st Defendant dealt directly with the registered proprietor, complied fully with the law, and is protected under the doctrine of the bona fide purchaser. The official land records conclusively support the legitimacy of her title and completely undermine the Plaintiffs claim. It is therefore the 1st submission that this suit be dismissed with costs to the 1st Defendant.
Analysis and Determination
I have considered the pleadings, evidence on record and rival submissions and do find that the following issues are ripe for determination namely:-
1-Whether the suit is competent.
2- Which register was opened legally by the land registrar?
3-Whether there was fraud by either party or both
4-Whether the plaintiff is an innocent purchaser for value.
5-Whether the the plaintiff has proved her case on a balance of probabilities.
6- Which reliefs should the court grant.
1-Whether the suit is competent.
The defendant submits that the suit is incompetent because the plaintiff’s advocate has not produced the board’s resolution to file this case and therefore the plaintiff did not give the authority to file the suit. The defendant noted that the Plaintiff had not annexed minutes or a formal resolution appointing the said advocates to sue on behalf of the Plaintiff. It maintained that the Courts had reiterated on a number of occasions that seeking such authority was mandatory. To this end, it referred this Court to Petition No. 600 of 2013 East African Portland Cement Ltd v The Capital Markets Authority & 5 Ors in which the Ugandan case of Bugerere Coffee Growers Ltd v Seraduka & Anor. (1970) EA 147 had been referred to and in which it had been held in dismissing the suit:
“When companies authorise the commencement of legal proceedings, a resolution or resolutions have to be passed either at a company or Board of Directors’ meeting and recorded in the minutes, but no resolution had been passed authorising the proceedings in this case. The Court held further that where an advocate has brought legal proceedings without authority of the purported plaintiff the applicant becomes personally liable to the defendants for the costs of the action”
In the case of East African Safari Air Ltd v Anthony Kegode & Anor in which Emukule J. had detailed:
“When an Advocate is however instructed to file a suit, particularly against current or sitting directors or immediate former directors of the company, special care is required on the part of the Advocate or his firm that necessary authorisations by way of clear resolutions of the Board had been taken to institute the suit.”
In the 2014 East African Portland Cement Ltd case as cited to Court by the Defendant (supra), Mumbi Ngugi J. summed up what she considered that the law provided with regard to suits filed without the authority of the company. The learned Judge detailed as follows:
“33.  In Affordable Homes Africa Limited vs Ian Henderson & 2 Others HCCC No. 524 of 2004, Njagi J observed that as an artificial body, a company can take decisions only through the agency of its organs, the Board of Directors and the shareholders and that where a company’s powers of management are, by the articles, vested in the Board of Directors, the general meeting cannot interfere in the exercise of those powers (see the decision of the Court in Automatic Self-Cleansing Filter Syndicate v. Cuninghame [1906] Ch.34, CA.); that it was therefore necessary to examine a particular company’s articles of association to ascertain wherein lies the power to manage the company’s affairs, for therein also lies the power to sanction the commencement of court actions in the name of the company.  The Court (Njagi J) observed that it was common ground that there was no authority from the board of Directors to institute the suit, and consequently, he held as follows:

‘The upshot of these considerations is that in the absence of a board resolution sanctioning the commencement of this action by the company, the company is not before the court at all.  For that reason, the preliminary objection succeeds and the action must be struck out with costs, such costs to be borne by the advocates for the plaintiff’.
  In Bugerere Coffee Growers Ltd vs Sebaduka & Another (supra), it was held, in dismissing the suit, that when companies authorize the commencement of legal proceedings, a resolution or resolutions have to be passed either at a company or Board of Directors meeting and recorded in the minutes, but no resolution had been passed authorizing the proceedings in the case.  The Court held further that where an advocate has brought legal proceedings without authority of the purported plaintiff the advocate becomes personally liable to the defendants for the costs of the action”.
As regards the necessity for a company Resolution to back the institution of the suit, Odunga J. in his Judgement in the Leo Investments case referred to the holding of Hewett, J. in Assia Pharmaceuticals v Nairobi Veterinary Centre Ltd HCCC No. 391 of 2000 as follows:
“It is settled law that where a suit is to be instituted for and on behalf of a company there should be a company resolution to that effect…….. As regards litigation by an incorporated company, the directors are as a rule, the persons who have the authority to act for the company; but in the absence of any contract to the contrary in the articles of association, the majority of the members of the company are entitled to decide even to the extent of overruling the directors, whether an action in the name of the company should be commenced or allowed to proceed. The secretary of the company cannot institute proceedings in the name of the company in the absence of express authority to do so; but proceedings started without proper authority may subsequently be ratified.”
In this case, there has been no such ratification at all. However, the Court of Appeal has held that the said resolution is not necessary.
In the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR, the Court of Appeal at paragraph 45 cited the case of United Assurance Co. Ltd v Attorney General: SCCA NO. 1 of 1998 where the Supreme Court of Uganda held that:
       “…it was now settled, as the law, that, it does not require a board of directors, or even the general meeting of members, to sit and resolve to instruct Counsel to file proceedings on behalf and in the names of the Company. Any director, who is authorized to act on behalf of the company, unless the contrary is shown, has the powers of the board to act on behalf of that Company.”
In the case of Fubeco China Fushun v NaiposhaCompany Limited & 11 others [2014] eKLR, the court while dealing with a case where a director’s powers to authorize the filing of an application on behalf a company had been challenged, stated that:
“In the case before me, Caroline Wairimu Kimemia is a director of the Defendant Company and she duly authorized the Advocates on record to commence this Application. That fact is not denied and I am surprised the person laying the objection is the Plaintiff and not the Defendant Company. The Plaintiff has also not presented any material or affidavit from the other directors denying the authority of Caroline Wairimu Kimemia as a director in the Defendant Company. As such, I do not think the Court is in any position to dispute the authority of Caroline Wairimu Kimemia or the instructions to the advocate on record to defend the interest of the company. Therefore, in the absence of evidence to the contrary, I find the affidavits filed to be in order and the advocate herein to be properly on record for the Defendant.”
On the second issue, thus which register was opened properly, this court notes that before a register is opened there must be a lease document that ought to be registered by the County Land registrar signed by the Commissioner of Lands as he then was and the lessee. There is no lease document issued by the commissioner of lands in the year 2000 that was registered by the Land Registrar Nakuru. DW3, Ojwang Omolo, the Deputy Director of Land Administration, in the directorate of land Administration ministry of lands stated that produced the original file and the correspondence file. This was file number 6634/23/557 for parcel number Nakuru/municipality /block 23/557 in the name of Simeon Kiptala Chesaro. According to the witness, the property was allocated to Simeone K.A. Chesaro after sub-division of and change of user of LR NO 462/2 which was the property of Nakuru Housing Development co ltd. The company fronted a list of members and their respective parcels of land and the commissioner of lands approved. The property was paid for at Ksh 63,630 for 101 plots. The lease for the suit property was processed in 2016 in the names of Simion Kiptala Chesaro and forwarded to the District Land Registrar Nakuru on the 26th November 2016. The letter forwarding the lease was signed by the Chief Land Registrar. The lease was registered on the 11th February 2016. The Deputy Director of land administration explained the delay in the preparation of the lease by stating that the property in dispute was private land. This court finds that the proper register was the one opened on the 11th of February 2016 because it had the records supporting the entries whereas the register opened on the 19th November 2000 did not have the supporting documents. The plaintiff did not produce the transfer of lease for the transfer of the property from Mr Chesaro to John Karanja Njenga and Hamtala Oduori.
On whether the parties have proved fraud, Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR), Justices P.N. WAKI, R.N. NAMBUYE and G.B.M. KARIUKI stated the following paragraph;
'52. According to Black's Law Dictionary,
"Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As  distinguished from negligence, it is always positive, intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one patty, or to cause an inconvenience or loss to the other. Fraud, in the sense of a court of equity, properly includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another'. 
At paragraph 53, the Learned Judge proceeds to state that
'it is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. One of the authorities produced before us has this passage from Bullen & Leake & Jacobs, Precedent of pleadings 13thEdition at page 427
The Deputy Director of Land administration and the County Land Registrar produced the lease document, and the entire official correspondence file which showed that the property was allocated to Simion Kiptala Chesaro after subdivision and change of user of LR NO 462/42. The lease for the property was processed in 2016 and forwarded to the Land Registrar Nakuru on 26th November 2016. The letter forwarding the lease was signed by the Chief Land Registrar and that the lease was registered on the 11th February 2016. I do find that the plaintiff has not discharged his burden of proof on allegation of fraud against the defendants.
The next issue is who the innocent purchaser for value without notice. In Arthi Highway Developers Ltd vs West End Butchery Ltd & Others 12015] eKLR, where the Court held that a purchaser must demonstrate that they acquired the property in good faith, paid valuable consideration, had no notice of fraud or competing claims, and were not party to any impropriety.
I do find that the plaintiffs obtained title from a doubtful process as the Land office has given documentary evidence that the lease was processed on the year 2016 and therefore there could be no register opened without a lease. The plaintiff has not produced the transfer instrument that cased the property to be registered in it name. The 1st defendant on the other hand produced the lease document in the name of Chesaro, the transfer instrument and all relevant documents. In conclusion, I do find that the 1st defendant has demonstrated that she is the legally registered owner of the property and that the plaintiff has not proved his case on a balance of probabilities. The suit is dismissed with costs.