Vide the plaint dated 17th January 2023 the plaintiff sued the defendants over a parcel of land known as KAKAMEGA/BUGONDA/2187 measuring 0.08Ha (the suit land) which was reserved as a Muslim Community Centre.
The Plaintiff’s case was that the defendants on the 9th day of February 2018 conspired to fraudulently register the suit land in the joint names of the 1st and 2nd Defendants purportedly as Trustees of Mbale Muslim Mosque Committee Vihiga County. That due to the fraud the plaintiff Association has lost and continues to lose monthly rent of Kshs 100,000/= from a petrol station developed on the land.
The plaintiff therefore sought for orders of: -
- A declaration that the registration of the 1st and 2nd defendants and/or Mbale Muslim Mosque Committee Vihiga County as the proprietors of plot 2187 is subject to a constructive Trust in favour of the plaintiff/Association.
- A declaration that the 3rd and 4th defendants owed the Muslim Community a fiduciary duty to preserve plot 2187 for their benefit and use.
- That the registration of plot 2187 in the joint names of the 1st and 2nd defendants and/or Mbale Muslim Mosque Committee Vihiga County be cancelled and instead the plaintiff Association be registered as the proprietor thereof in trust of the Muslim Community.
- Payment of Mesne profits at a monthly sum of Kshs 100,000/= from the 9th day of February 2018.
- Costs of the suit.
In response to the plaintiff’s claim the 1st and 2nd defendants filed Statements of Defence dated 29th November 2024 vide which they denied the plaintiff’s claim. They averred that they are the registered officials of the Mbale Muslim Mosque Community of Vihiga County and registered owners of the suit land as Trustees. They further averred that the matter had been the subject of litigation namely VIHIGA SPMC NO. 125 of 2005 and KAKAMEGA HIGH COURT CIVIL APPEAL NO. 25 of 2006 in which the plaintiff lost.
The 3rd defendant filed 3rd defendant’s statement of defence dated 2nd March 2023 denying the plaintiff’s claim. It averred that the plaintiff had no legal nexus whatsoever with the suit property and lacked locus standi to institute the suit, and that no identifiable cause of action had been disclosed
The 4th defendant who entered appearance on 14/2/2023 filed no defence.
The evidence
The matter was disposed of by way of viva voce evidence.
On behalf of the plaintiff one witness Shaban Lahuya Khamis testified. He adopted the contents of his witness statement dated 17/1/2023 as his evidence in chief. He had stated in the said witness statement that the suit land was initially the property of Baraka Chanzu Lwoya who donated it for the Muslim Community. That following the donation, the suit land has over the years been administered for the general welfare of the Muslim Community by Maragoli Muslim Association, thereafter the Wastara Muslim Association and eventually the Vihiga District Muslim Association. That consequently the suit land was on 17th June 1976 registered in the name of the defunct Kakamega County Council to hold in trust for use as a Muslim Community Centre.
That the plaintiff Association and its predecessors have progressively developed the suit land by constructing Commercial structures which are let out and the proceeds therefrom go towards the general well-being of the Muslim Community.
That on 24th day of September 2004 the defund Kakamega County Council transferred the suit land to Mbale Muslim Mosque committee which in turn registered it in the joint names of its Trustees namely, Khamis Ali, Zubeir Shogobe, Adija Mugenya and Idi Ramadhan on 2/12/2005.
That following vehement opposition from the plaintiff Association that the suit land was not available for alienation, the transfer was nullified and the suit land restored in the name of the defunct Kakamega County Council.
That on 9th February 2018, the defendants conspired to fraudulently transfer and register the suit land in the joint names of the 1st and 2nd defendants as Trustees of Mbale Muslim Mosque Committee Vihiga County. That the plaintiff Association executed a Lease Agreement in respect of an undeveloped portion of land comprised within the suit land with one Asha Dubai Ibrahim on 8th day of June 2002 who developed the said portion of the suit land by putting up a petrol station thereon.
That the plaintiff had leased out the petrol Station to clients who had agreed to pay a monthly rental of Kshs 100,000/= per month but had declined to do so due to the wrangles on ownership of the suit land between the 1st and 2nd Defendants and the plaintiff.
That currently the Petrol Station is leased to Hass Petroleum Limited which is paying monthly rents to the 1st and 2nd defendants. PW1 produced documents contained in the plaintiff’s list of documents dated 17/1/2023 and 12/9/2024 namely; certificate of registration of Maragoli Muslim Association, Letter from Registrar of Societies, Letter from Registrar of Societies, copy of register for LR KAKAMEGA/BUGONDA/2187, Lease agreement dated 8/6/2006, Lease agreement dated 21/3/2011, Lease agreement dated19/9/2012, letter dated 2/10/2017, letter by Trojan International dated 14/8/2018, letter dated 16/3/2017, letter dated 24/1/2018 and transfer form as exhibits.
On cross-examination PW1 stated that the Mbale Jamia Mosque is not on the suit land but on parcel numbers 57, 58, 59 and 60.
That he sued the 1st and 2nd defendants as Trustees of Mbale Muslim Mosque Committee Vihiga County. That the National Land Commission transferred the land on behalf of the County Government. That it is Id Baraka who collects rent on behalf of the Muslims.
On behalf of the 1st and 2nd defendants one witness Zubeir Shogobe testified as DW1. He adopted the contents of his witness statement as his evidence in chief. He had stated in the witness statements that he is the Secretary General of Mbale Muslim Mosque Committee which is registered with the Registrar of Societies.
That together with the 1st Defendant, they were registered as Trustees in the suit land in the year 1981. That Mbale Muslim Mosque Committee was issued with a title deed in respect of the suit land.
That one Idi Baraka has constructed commercial rental buildings on the suit land earning rent of about Ksh 150,000/= monthly. That it is him and the 1st defendant who are the registered Trustees of Mbale Muslim Mosque Committee. He produced the documents on the list of documents dated 26/1/2024 namely; letter dated 12th June 2017, search for plot No. 2187, letter dated 7/7/2017, decree in Kakamega civil case No. 25 of 2006, Judgement in Kakamega Civil Case No. 25 of 2006 Minutes dated 23/09/2004, Mbale Muslim Mosque Committee Minutes dated 20/9/2004, letter dated 2/06/2016, Certificate of registration and Letter dated 10/12/2018as exhibits.
On cross examination he stated that 2 previous court cases and a complaint to the EACC affirmed their ownership of the suit land. That he holds the land as a Trustee.
The 3rd and 4th defendants called no evidence.
Submissions
It was submitted on behalf of the plaintiff vide the written submissions dated 28th day of January 2025 filed by K. N Wesutsa & Co Advocates that as the suit land had already been alienated to be used as a Muslim Community Centre, it was not available for further alienation or allotment to third parties such as the 1st and 2nd defendants.
That the views of the public comprising of the Muslim Community were not taken into consideration before the suit land was transferred to the 1st and 2nd defendants specially from the plaintiff Association which had been in use and occupation of the suit land for a number of decades.
That although the 1st and 2nd defendants claim that the suit land belongs to Mbale Muslim Mosque, this position is not factual as Mbale Muslim Mosque is the proprietor of Mbale plot No. 57, 58, 59 and 60. Counsel relied on the cases of Machakos ELC Petition Cause No. 18 of 2018 and Meru ELC Cause No 36 of 2020.
On behalf of the 1st and 2nd defendants, written submissions dated 13th February 2025 were filed by the firm of D.C Chitwah Advocates. Counsel submitted that it was spurious to allege fraud on the part of the 1st and 2nd defendants when in essence it is the plaintiff’s secretary who chaired the committee that approved transfer of the land.
That the minutes produced show that the transfer was above board. That certificate of registration from the Registrar of Societies confirms that indeed the 1st and 2nd defendants were the bona fide officials of MBALE MUSLIM MOSQUE COMMITTEE VIHIGA COUNTY. That EACC cleared the 1st and 2nd defendants of any wrong doing. That Idi Baraka who is collecting rent from the premised was once sued by the 1st and 2nd defendants over the rent collection and that the case was decided in their favour. That he appealed to the High court but his appeal was dismissed and he was ordered to pay costs of Kshs 60,000/= That due process was followed in registration of the suit property.
Issues for determination
From the pleadings, evidence and submission, the following emerge as the issued for determination.
- whether or not the suit land had been reserved for use as Muslim Community Centre.
- whether or not the transfer and registration of the suit land in favour of the 1st and 2nd defendants as Trustees of Mbale Muslim Mosque Committee was fraudulent.
- whether the plaintiff is entitled to the relief sought
- Costs.
Analysis and determination
Whether or not the suit land had been alienated for use as Muslim Community Centre.
The green card produced as exhibit showed that the register in respect of the suit land was opened on 17/6/1976 when the land was registered in the name of the now defunct Kakamega County Council and reserved for use as Muslim Community Centre.
There is therefore no doubt that the suit land was reserved for Muslim Community Centre. The question is who Muslim Community Centre is. The plaintiff is named in the plaint as Vihiga District Muslim Association a.k.a Muslim Community Centre. In paragraph 1 of the plaint, it describes itself as a registered entity under the Societies Act. Is the Plaintiff a society registered under the Societies Act and is it one and the same person as Muslim Community Centre?
The way to prove the existence of the plaintiff as a Society registered under the Societies Act is by production of the certificate of registration under section 10 of the Societies Act. No registration certificate was produced for Vihiga District Muslim Association a.k.a Muslim Community Centre.
In paragraph 1 of the plaint, the plaintiff states that it has brought the suit through its chair Mr. Shaban Lahuya Khamis who testified as PW1. Although PW1 also described himself as the Chair of the plaintiff and Mbale Jamia Mosque CBO, he produced no evidence to show that he was the chair of the plaintiff. The document dated 28/2/2019 titled Notification of Change of Officers or Title of any Officer does not show in respect of which organization or Society the same is written. The space where the name of the society is to be written is blank.
Secondly there is nothing on the document to show that the same was received or acted upon or effected/implemented by the Registrar of Societies to whom it was addressed.
No evidence was called or produced to show that Vihiga District Muslim Association was one and the same thing as Muslim Community Centre. The letter dated 9th June 2020 listed in the list of exhibits dated 17th January 2023 as letter from Registrar of Societies showing officials of the Mbale Jamia Muslim Mosque Committee relates to Mbale Jamia Mosque Community Based organization and not Muslim Community Centre.
There being no evidence firstly that the plaintiff is one and the same person as Muslim Community Centre, secondly that the plaintiff is a society registered under the Societies Act, I find that no nexus has been established between the suit land and the plaintiff.
The second issue for determination is whether or not transfer and registration of the suit land in favour of the defendant was fraudulent.
The plaintiff pleaded in paragraph 11 of the plaint that on 9th February 2018 the defendant conspired to fraudulently register plot No. 2187 in the joint names of the 1st and 2nd defendants purportedly as Trustees of Mbale Muslim Mosque Committee Vihiga County. The plaintiff pleaded the particulars of fraud as
- The defendant transferring property set aside for public use to private /individual without the consent or participation of the public for whose benefit the property was reserved.
- The defendant alleging that plot No. 2187 belongs to Mbale Muslim Mosque when in actual sense no such Mosque exists within the County of Vihiga.
- The defendant giving the impression that the property is under the administration of an entity by the name of Mbale Muslim Mosque Committee Vihiga County when in fact the plaintiff Association, and its predecessors have since time immemorial been the caretakers of the parcel of land for the benefit of the Muslim Community.
- The defendants causing the registration of the 1st and 2nd defendants as the absolute proprietors of plot No 2187 with the expression motive of accessing the rent denied from the petrol Station.
The green card produced as exhibit shows that on 24/9/2004 the suit land was transferred to Mbale Muslim Mosque Committee and title issued to it the same day. The green card shows that later on 2/12/2005 the land was transferred to Khamis Ali, Zubeir Shogobe, Adija Muhenya and Idi Ramadhan and title deed issued on the same date. The minutes of Vihiga Municipal Council produced by 1st and 2nd defendants dated 23/9/2004 show that approval was sought for transfer of the land to Mbale Muslim Mosque and Community. The resolution that was reached was that
“Plot No Bugonda/56 and plot No. Bugonda 2187 belong to Mbale Muslim Mosque and Community be endorsed by the Community so that the concerned parties can process their documentation”
There is no explanation in the green card or at all on how the registration moved from Mbale Muslim Mosque Committee to the defendants. DW1’s evidence was that the land was registered in his name and the name of the 1st defendant in trust for Mbale Muslim Mosque Committee. He conceded that there was no endorsement in the title deed that the registration was as Trustees.
I find that transfer of the suit land in favour of the defendants as individuals is fraudulent and unlawful as the land is for the Muslim Community and not personal property of the 1st and 2nd Defendants.
In the interest of just the court hereby makes a declaration that registration of the suit land in the names of the 1st and 2nd Defendants as individuals is unlawful and hereby directs that the register and all documents in respect of the suit land be rectified to indicate that the suit land is registered in the names of the 1st and 2nd Defendants as Trustees of Mbale Muslim Mosque Committee.
In the circumstances of the case each party to bear own costs of the case.
Orders accordingly.
Judgement dated and signed at Vihiga and delivered this 15th day of May, 2025 virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Ajevi------Court Assistant.
Kundu for the Plaintiff.
Chitwah for the 1st and 2nd Defendants.
Aresa for the 3rd Defendant.
N/A for the 4th Defendant
Cheruiyot or Interested Party.